NCLT DraftingPleadingAppearances

DRAFTING, PLEADINGS &
APPEARANCES - NCLT
April 2016
DMD ADVOCATES 1
DEFINITIONS: DRAFT NCLT
RULES
• Application: It means any application filed under the
provisions of the Act, and also includes any application
seeking interim orders before the Tribunal and shall also
include a transferred application
• Document*: It means summons, notice, requisition, a

pleading, plea, motion, application, request, exhibit, brief,
memorandum of law, paper, or any other instrument in
paper form or electronic form and other legal process,
and registers, whether issued, sent or kept in pursuance
of the Act and Rules made there under or any other Act
or otherwise; but, does not include orders of the Tribunal
*Also defined under Indian Evidence Act, 1872, Indian Penal Code 1860, and General Clauses Act, 1897
DMD ADVOCATES 2
RULES Contd…
• EDGAR (Electronic Data Gathering, Analysis and

Retrieval) Filer Manual: It means the current version of
the manual prepared by the Tribunal setting out the
technical format requirements for an electronic filing of
Application or other documents with the Tribunal
• Electronic Filing: It is a process by which a filer files a

document with the Registry of the Tribunal by means of
an online computer transmission of the document in
electronic form other than by means of fax or e-mail
DMD ADVOCATES 3
RULES Contd…
• Petition: It means a petition or an application or an

Appeal or a Complaint in pursuance of which any
proceeding is commenced before the Tribunal.
• Pleadings: It means and includes application including

interlocutory applications, petitions, appeal, revisions,
reply, rejoinders, statements, counter claim, additional
statement supplementing the original applications and
reply statements including electronic form.
DMD ADVOCATES 4
MYTHS
• Only lawyers can draft
• I have been practicing as a Company Secretary for 20

years. It’s difficult to venture into a new arena
• Drafting is a burden
• I have not studied the subject(s)
DMD ADVOCATES 5
DRAFTING: MEANING
• Black’s Law Dictionary

The skill, technique, and practice of preparing operative
legal documents such as statutes, rules, regulations,
contracts and wills setting forth the rights, duties,
privileges and liabilities of people and legal entities
• Oxford Dictionary
Drafting is a specific type of legal writing dealing with
legislation, instruments, or other legal documents that
are to be construed by others. Statutes, rules,
regulations, contracts and wills are examples of legal
drafting
DMD ADVOCATES 6
PLEADING: MEANING
• Formal statement of cause of action or defense

– Civil pleadings
– Criminal pleadings
– Writs
• The backbone of proceedings before court or

tribunal
• Functions
– Notify the Parties/ Court/ Tribunal of the
respective Claims/ Defenses/ Counter-Claims
DMD ADVOCATES 7
PLEADING: MEANING Contd…
– Reduce the controversy to clear-cut, well-

defined Issues of Fact or of Law
– Operate as an aid to the Court in admitting or

rejecting evidence
– Serves as a Formal Basis for the Judgment
DMD ADVOCATES 8
CPC 1908
ORDER VI – Plaint, Written Statement & Replication.

• Order VI – Pleadings
– Rule 1 – Material Facts and not Evidence
– Material Facts v Material Particulars – facts
that required to be proved and facts by means
of which they are proved
– All necessary and material facts – concept is
that the other party should not be taken by
surprise
– Rule 2 – Numbered Paragraphs
DMD ADVOCATES 9
CPC 1908 Contd….
• Order VII – Contents of Plaint

– Name of Court
– Details of Plaintiff
– Details of defendant(s)
– If Plaintiff/Defendant is a Minor or Lunatic, a
Statement to that Effect
– Material Facts – Cause of Action and When It Arose
– Jurisdiction
– Relief
– Set Off/ Relinquished Claim.
– Value of Suit for Court Fee and Jurisdiction
DMD ADVOCATES 10
QUALITIES: GOOD
DRAFTSMAN
The minute you read something that you can't
understand, you can almost be sure it was drawn up
by a lawyer
• Succinct/ Crisp sentence formation but Dignified and Powerful
• Headings and sub-headings
• Paragraphing, spacing, and indenture
• No spelling/ grammatical/ typing mistake
DMD ADVOCATES 11
QUALITIES: GOOD
DRAFTSMAN Contd….
• Avoid
– Pronouns
– Repetition
– Complexity
DMD ADVOCATES 12
HOW TO BEGIN
KNOWLEDGE
• Familiarize yourself with the facts
• Peruse the law
• Peruse the case law
DMD ADVOCATES 13
LANGUAGE
• Know Your Audience
• Pleadings are addressed to the Court and never to

the other party
– Avoid unprofessional language – the court is

bound to or has to, vexatious, etc.
– Name calling and repeated legal threats in a
pleading make little sense and is best avoided
– Using slang is to be avoided
– Coherency in narration
DMD ADVOCATES 14
FORM Vs. SUBSTANCE
• FORM IS IMPORTANT— MAKE IT LOOK GOOD
• CONTEXT – Readers understand much more easily if

they have a context
• Front Load Your Document
• Build a Container
• Headings are Signposts — They Should Inform
DMD ADVOCATES 15
FORM Vs. SUBSTANCE Contd…
• Avoid Over chronicling — most dates are unimportant
• Write short and numbered paragraphs
• Do not state more than one important fact in a single

paragraph
• Keep it short — the page limit is your friend
• Conform to the format accepted by the Court/ Tribunal
DMD ADVOCATES 16
CONTENT
• State facts not law
• Plea mixed questions of fact and law and not

conclusions
• Material particulars
• Effect of Document(s)/ Annexures/ Exhibits
• Points of Law may be mentioned very briefly IF

ABSOLUTELY NECESSARY
DMD ADVOCATES 17
PREPARING FOR DEFENSE
• Know Your Case

• Peruse the Plaint Carefully
• Find Defects
– Cause of action
– Technical defects
– Jurisdiction
– Contradictions
– Case law, if relied upon in pleadings, if overturned or
appealed against
DMD ADVOCATES 18
PREPARING FOR DEFENSE
• Peruse the case law
• Specific traverse with clear reference to the point in

dispute
DMD ADVOCATES 19
SKILLS OF A GOOD
DRAFTSMAN
• Gather all facts

• Prepare an outline
• Use single principle of division
• Divide the subject matter into major topics
• Arrange matters in a logical sequence
• Give appropriate headings
• Clear writing
DMD ADVOCATES 20
SKILLS OF A GOOD
DRAFTSMAN
• Proper usage of words
• Avoid gender-specific words
• Short sentences
• Proper punctuations
• No drafting in the passive voice
• Statements in a positive form
• Emphatic words at the end
DMD ADVOCATES 21
APPEARANCES
• Dress Code
• Court Room Etiquettes
• Seating arrangement for petitioner and respondent
• Understand the psyche of the bench
• Know court practice when appearing for the first time
• Effective articulation of arguments
• Thorough preparation/ know your file
• Listening through ears and eyes is critical
• Effective listening
• Congruency between the words, tone and physiology
DMD ADVOCATES 22
QUESTIONS
Sumit Garg
Senior Associate
&
Divay Rastogi
Associate
30 Nizamuddin (East)
New Delhi – 110013, India
Cell: +91-98-186-97266
Email: [email protected]
Tel : +91 11 47194400
Fax : +91 11 40506977
24

NCLT DraftingPleadingAppearances

Uploaded by

Copyright:

Available Formats

NCLT DraftingPleadingAppearances

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

NCLT DraftingPleadingAppearances

Uploaded by

Copyright:

Available Formats

DRAFTING, PLEADINGS &

• Document*: It means summons, notice, requisition, a

• EDGAR (Electronic Data Gathering, Analysis and

• Electronic Filing: It is a process by which a filer files a

• Petition: It means a petition or an application or an

• Pleadings: It means and includes application including

• Only lawyers can draft

• I have been practicing as a Company Secretary for 20

• I have not studied the subject(s)

• Black’s Law Dictionary

• Formal statement of cause of action or defense

• The backbone of proceedings before court or

– Reduce the controversy to clear-cut, well-

– Operate as an aid to the Court in admitting or

– Serves as a Formal Basis for the Judgment

ORDER VI – Plaint, Written Statement & Replication.

• Order VII – Contents of Plaint

• Succinct/ Crisp sentence formation but Dignified and Powerful

• Headings and sub-headings

• Paragraphing, spacing, and indenture

• No spelling/ grammatical/ typing mistake

• Familiarize yourself with the facts

• Peruse the law

• Peruse the case law

• Pleadings are addressed to the Court and never to

– Avoid unprofessional language – the court is

• CONTEXT – Readers understand much more easily if

• Front Load Your Document

• Headings are Signposts — They Should Inform

• Avoid Over chronicling — most dates are unimportant

• Write short and numbered paragraphs

• Do not state more than one important fact in a single

• Keep it short — the page limit is your friend

• Conform to the format accepted by the Court/ Tribunal

• Plea mixed questions of fact and law and not

• Effect of Document(s)/ Annexures/ Exhibits

• Points of Law may be mentioned very briefly IF

• Know Your Case

• Peruse the case law

• Specific traverse with clear reference to the point in

• Gather all facts

You might also like