Drafting New 2

PREFACE
The Subject, Drafting, Pleading and Appearance (Paper 3) of CS Professional

Course New syllabus is something where you need to apply your bookish
knowledge as well as your writing skills so that you can elaborate asked
questions. You also have to be expert in preparing deeds and petitions which is
core of this subject.
In this book I have covered all the concepts of module as well as all the past
examination questions. Drafting of Deeds & Case laws plays a very
significant role in “Drafting”, hence they are also covered herewith.
As a professional student you have to study each subject in depth and not just
keep mugging it up as questions will be on analytical Basis. On top of all this,
being a student of ICSI it becomes mandatory for you to work hard and
compensate your own efforts to be called as reputed company secretary.
I promise you to give my 100% to help you in achieving success, subject to

condition that you give your full dedication.
CS Praveen Choudhary
www.pcbaba.in
Mail at: - [email protected]
- CS Praveen Choudhary
- CS Praveen Choudhary & PCbaba.in
- 09579872600
INDEX

Sr. No. Chapter Name Page No.
1 Judicial and Administrative Framework 1.1 – 1.16
2 General Principles of Drafting and Relevant Substantive Rules 2.1 – 2.15
3 Secretarial Practice in Drafting Notice, Agenda and Minutes of Company’s 3.1 – 3.25
Meetings
4 Drafting and Conveyancing Relating to Various Deeds and Documents (I) 4.1 – 4.41
5 Drafting and Conveyancing Relating to Various Deeds and Documents (II) 5.1 – 5.17
6 Drafting and Conveyancing Relating to Various Deeds and Documents (III) 6.1 – 6.39
7 Drafting and Conveyancing Relating to Various Deeds and Documents (IV) 7.1 – 7.26
8 Drafting of Agreements under the Companies Act 8.1 – 8.22
9 Pleadings 9.1 – 9.27
10 Art of Writing Opinions 10.1 – 10.9
11 Appearances & Art of Advocacy 11.1 – 11.12
www.pcbaba.in
www.pcbaba.in CS PRAVEEN CHOUDHARY
Judicial and Admin framework
Judicial and Administrative Framework

Legislative functions of Administration
There is no such general power granted to the executive to make law, it only supplements
the law under the authority of legislature. This supplementary legislation is known as
‘delegated legislation’ or ‘subordinate legislation’. The development of the legislative
powers of the administrative authorities in the form of the delegated legislation occupies
very important place in the study of the administrative law.

Necessity
Some of the limitation of the law making role of the Parliament are:
a) The Parliament sits only for a limited period of time. Certain emergency situations
may arise which necessitate special measures. In such cases speedy and appropriate
action is required.
b) The bulk of the business of the Parliament has increased and it has no time for the
consideration of complicated and technical matters.
c) Certain matters covered by delegated legislation are of technical nature which require
handling by experts. In such cases it is inevitable that powers to deal with such
matters is given to the appropriate administrative agencies to be exercised according
to the requirements of the subject matter.
d) Parliament while deciding upon a certain course of action cannot foresee the
difficulties, which may be encountered in its execution. various statutes contain a
‘removal of difficulty clause’ empowering the administration to remove such
difficulties by exercising the powers of making rules and regulations
e) The rules and regulations, if found to be defective, can be modified quickly.
Experiments can be made and experience can be profitably utilized.
Constitutionality
Articles 245 and 246 provide that the legislative powers shall be discharged by the
Parliament and State legislature. The power of Legislature to delegate its legislative
power is not prohibited in the Constitution.

There are risks inherent in the process of delegation. An overburdened legislature or one
controlled by a powerful executive may unduly overstep the limits of delegation.

It may-
a) not lay down any policy at all;
b) declare its policy in vague and general terms;
c) not set down any standard for the guidance of the executive;
d) confer an arbitrary power to the executive to change or modify the policy laid down
by it without reserving for itself any control over subordinate legislation.

Delegation is permissible so long as the Legislature does not abdicate its law making role
in favour of the executive. When a legislature is given plenary power to legislate on a
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particular subject, there must also be an implied power to make laws incidental to the
exercise of such power. A legislature cannot certainly strip itself of its essential functions
and vest the same on an extraneous authority. The primary duty of law making has to be
discharged by the legislature itself but delegation may be reported to as a subsidiary or
ancillary measure.

Mahajan C.J. in Hari Shankar Bagla v. State of Madya Pradesh, had observed: “The
Legislature cannot delegate its functions of laying down legislative policy in respect of a
measure and its formulation as a rule of conduct. The legislature must declare the policy
of the law and the legal principles which are to control and given cases and must provide
a standard to guide the officials of the body in power to execute the law”.

The Constitution confers a power and imposes a duty on the legislature to make laws. The
essential legislative function is the determination of the legislative policy and its
formulation as a rule of conduct. Obviously it cannot abdicate its functions in favour of
another.

The delegation should not, in any case, be unguided and uncontrolled. Parliament and
State Legislatures cannot abdicate the legislative power in its essential aspects which is
to be exercised by them. It is only a non-essential legislative function that can be
delegated.

Forms of delegation
There are various types of delegation of legislative power:
1. Skeleton delegation: In this type of delegation of legislative power, the enabling

statutes set out broad principles and empowers the executive authority to make rules
for carrying out the purposes of the Act. Eg: The Mines and Minerals (Regulation and
Development) Act, 1948.
2. Machinery type: This is the most common type of delegation of legislative power, in
which the Act is supplemented by machinery provisions, that is, the power is
conferred on the concerned department of the Government to prescribe –
i) The kind of forms
ii) The method of publication
iii)The manner of making returns, and
iv) Other administrative details
3. Removal of difficulty clause: Usually such a power comes with a time limit within
which it can be exercised. The power delegated to the Executive to modify any
provisions of an Act by an order must be within the framework of the Act giving such
power. The power to make such a modification no doubt, implies certain amount of
discretion but it is a power to be exercised in aid of the legislative policy of the Act
and cannot -
i. travel beyond it, OR

ii. run counter to it, OR
iii. change the essential features, the identity, structure or the policy of the Act.
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Requirements
1) Prior consultation with affected people: Interested bodies must be consulted

before the formulation and application of rules and regulations to ensure the
participation of affected interests so as to avoid various possible hardships
2) Prior publicity of proposed rules and regulations: The rules of publication provide
that notice of proposed ‘statutory rules’ is given and the representations of
suggestions by interested bodies be considered and acted upon if proper.
3) Publication of Delegated Legislation: To ensure that law may be ascertained with
reasonable certainty by the affected persons. Further the rules and regulations should
not come as a surprise and should not consequently bring hardships which would
naturally result from such practice. If the law is not known a person cannot regulate
his affairs to avoid a conflict with them and to avoid losses.
4) Laying: After delegation is sanctioned in an Act, the exercise of this power by the
authority concerned receives the attention of the House of the Parliament. In a formal
sense, this is sought to be provided by making it necessary that the rules, etc., shall be
laid on the Table of the House. The provisions for laying the rule, etc., are being made
now practically in every Act which contains a rule making provision.
Modes of control over delegated legislation

The delegation of legislative power in hands of administrative authorities can also be
dangerous because of the possibility of abuse of powers and other attendant evils.

The control of delegated legislation may be one or more of the following types:
1) Procedural
The most beneficial safeguard is the development of a procedure to be followed by the
delegates while formulating rules and regulations. Usually The Acts of Parliament
provide certain procedural requirements to be complied with by such authorities while
making rules and regulations etc., for example consultation with interested bodies,
publication of draft rules and regulations, hearing of objections, considerations of
representations, subordinate legislation in contravention of mandatory procedural
requirements would be invalidated by the court as being ultra vires the parent statute.

2) Parliamentary
Discretion as to the formulation of the legislative policy is prerogative and function the
legislature and it cannot be delegated to the executive. Discretion to make notifications
and alterations in an Act while extending it and to effect amendments or repeals in the
existing laws is subject to the condition precedent that essential legislative functions
cannot be delegated.

Parliamentary control of delegated legislation is exercised through Parliamentary debate
on the provisions of a Bill providing for delegation. During such debates the issue of
necessity of delegation and the contents of the provisions providing for delegation can be
taken up.
Along with bill Memoranda of Delegated Legislation is also provided in which -
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i. full purpose and effect of the delegation of power to the subordinate authorities,
ii. the points which may be covered by the rules,
iii. the particulars of the subordinate authorities or the persons who are to exercise
the delegated power
AND
By getting them scrutinized by Parliamentary Committee (Committee on Subordinate
Legislation, presided by member of opposition) of the Rules, Regulations, Bye-laws and
Orders.

The Committee examines whether-
i) The statutory rules, orders, bye-laws, etc. made by any-making authority, and
reports to the House whether the delegated power is being properly exercised.
ii) The Subordinate legislation is as per general objects of the Constitution or the
particular;
iii) It contains matter which should more properly be dealt within an Act;
iv) It contains imposition of any tax;
v) It directly or indirectly, ousts the jurisdiction of the courts of law;
vi) It gives retrospective effect to any of the provisions in respect of which the
Constitution or the Act does not expressly confer any such power;
vii) It is constitutional and valid;
viii) It involves expenditure from the CFI or the Public Revenues;
ix) it appears to make some unusual or unexpected use of the powers conferred by the
Constitution or the Act pursuant to which it is made; and
there appears to have been unjustifiable delay in its publication on its laying before
the Parliament.
Judicial
Judicial control over delegated legislature can be exercised at the following 2 levels:
1) Delegation may be challenged as unconstitutional: The scope of permissible

delegation is fairly wide. Within the wide limits delegation is sustained if it does not,
otherwise, infringe the provisions of the Constitution. Article 13(3)(a) of the
Constitution of India lays down that law, which includes any ordinances, order, by-
law, rule, regulation, notification, etc. if found in violation of fundamental rights would
be void. The limitations imposed by the application of the rule of ultra vires are quite
clear. If the Act of the Legislature under which power is delegated is ultra vires, the
power of the legislature in the delegation can never be good.
2) That the Statutory power has been improperly exercised. The court can inquire into
whether delegated legislation is within the limits laid down by the statute.
The validity of the rules may be assailed as the stage in 2 ways:
a. That they run counter to the provisions of the Act; and
b. That they have been made in excess of the authority delegated by the Legislature.
If a piece of delegated legislation were found to be beyond such limits, court would
declare it to be ultra vires and hence invalid.
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Tribunals
They are quasi-judicial bodies that are less formal, less expensive and enable speedy
disposal of cases. With 42nd amendment in constitution in 1976, Part XIV-A of the
Constitution of India having only 2 Articles viz 323 A and 323 B makes provisions for
establishment and functioning of the Tribunals in India. As per Article 323A any
parliamentary law may establish administrative Tribunal for Union and even for State
separately. Article 323 B covers matters other than specified under Article 323A. There
are tribunals for settling various administrative and other disputes including CAT, ITAT,
NCLT, NGT, COMPAT, SAT and many more.

Important Tribunals
Debt Recovery Tribunal
Established u/s 3 of Recovery of Debts Due to Banks and Financial Institutions (RDDBFI)
Act, 1993. Purpose was to receive claim applications from Banks and Financial
Institutions against their defaulting borrowers so that speedy recovery can be made and
NPA with banks and FI can be reduced. DRT acts as a single judicial forum for adjudication
of cases as well as execution of the decrees passed for recovery of debts due to banks and
FI under RDDBFI Act 1993, SARFAESI Act 2002 and IBC 2016 for Individuals and
Partnership firms.

National Company Law Tribunal
NCLT is a quasi-judicial body exercising equitable jurisdiction, which was earlier being
exercised by the High Court or the Central Government.
established by the Central government under section 408 of the Companies Act, 2013
with effect from 1 June 2016.
st
It has powers to regulate its own procedures.

Establishment of NCLT consolidates the corporate jurisdiction of the following
authorities:
i. CLB
ii. BIFR
iii. AAIFR
iv. Jurisdiction and powers relating to winding up restructuring and other such
provisions, vested in the High Courts.
Consumer Forum
To protect the rights of the consumers and establish a mechanism for settlement of
consumer disputes, a 3-tier redressal forum containing District, State and National level
consumer forums has been set up. The District Consumer Forum deals with consumer
disputes involving a value of up-to Rs. 20 Lakh. State Commission has jurisdiction in
consumer disputes having a value of up-to Rs.1 Cr. The National Commission deals in
consumer disputes above Rs.1 Cr, in respect of defects in goods and or deficiency in
service. It is important to note that consumer courts do not entertain complaints for
alleged deficiency in any service that is rendered free of charge or under a contract of
personal service.

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Motor Accident Claims Tribunal (MACT)
MACT deals with matters related to compensation of motor accidents victims or their
next of kin (legal Heir). Victims of motor accident or legal heirs of motor accident victims
or a representing Advocate can file claims relating to loss of life/property and injury cases
resulting from Motor Accidents. Motor Accident Claims Tribunal are presided over by
Judicial Officers from the State Higher Judicial Service and are under direct supervision
of the Hon’ble High Court of the respective state.

Central Administrative Tribunal (CAT)
Central administrative Tribunal is a multi-member body to hear on cases led by the staff
members alleging non-observation of their terms of service or any other related matters
and to pass judgments on those cases.

National Green Tribunal (NGT)
National Green Tribunal was established for effective and expeditious disposal of cases
relating to environmental protection and conservation of forests and other natural
resources including enforcement of any legal right relating to environment and giving
relief and compensation of damages to persons and property and for related matters.

Types of Courts

Broadly courts are of 2 types –
Civil - deal with matters of civil nature
Criminal - deal with criminal matters

The framework of the current legal system has been laid down by the Indian Constitution
and the judicial system derives its powers from it but the system has been inherited from
the British rule that preceded independence. In India, we have courts at various levels –
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different types of courts, each with varying powers depending on the tier and jurisdiction
bestowed upon them. They form a hierarchy with the Supreme Court of India at the top,
followed by High Courts of respective states with District and Sessions Judges sitting in
District Courts and Magistrates of Second Class and Civil Judge (Junior Division) at the
bottom.

The normal trend of the judiciary system is to start any general dispute in the lower court
which is then escalated to the higher courts. The judgments can be challenged in the
higher courts if the parties to the cases are not satisfied. The process of escalation is
systematic.

Supreme Court of India

Supreme court considered as guardian of
constitution of India is highest level of court
established under chapter IV of Part V of
constitution of India. The Supreme Court of India
consists of 26 Judges (including the Chief Justice of
India). The judges hold office until they attain the
age of 65 years.
ü It has exclusive and original power to hear the
cases between CG and SG or SG and SG.
ü It also has original but not exclusive power for enforcement of Fundamental Rights
conferred in constitution through writ jurisdiction.
ü It also has appellate jurisdiction.
ü It can exercise extra ordinary jurisdiction to hear any appeal against the order of any
court or tribunal through the option of special leave petition (SLP) except the case of
tribunal related to Armed Forces.
ü It can withdraw or transfer any case from any High Court.
ü It can review any verdict ordered.
ü Its order is binding on all the subordinate courts across India.
ü It can also provide its opinion on any matter in public interest on a reference made
by President.
High Courts

High Court stands at the head of the State's Judicial
Administration. There are 21 High Courts in the
country, 3 having jurisdiction over more than one
State. Among the Union Territories, Delhi alone has a
High Court of its own. Other 6 Union Territories come
under jurisdiction of different State High Courts. Each
High Court comprises a Chief Justice and such other
Judges as the President may, from time to time
appoint. The Chief Justice of a High Court is appointed by the President in consultation
with the Chief Justice of India and the Governor of the state. The procedure for appointing
of the High Courts judges is the same except that the recommendation for the
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appointment of Judges in the High Court is initiated by the Chief Justice of the High Court
concerned. They hold office up to 62 years of age. To be eligible for appointment as a
judge, one must be a citizen of India and should have held a judicial office in India for 10
years or must have practiced as an advocate of a High Court or 2 or more such courts in
succession for a similar period.

ü Article 226 of Constitution has given the power to the High Courts to issue different
writs for the enforcement of Fundamental Rights.
ü It can also hear appeals against the orders of lower courts.
ü As per Article 227 all High courts can practice superintendence over all the courts and
tribunals effective within the regional jurisdiction of the High Court.
ü All the High Courts can pronounce punishment for contempt of court.
ü The High Courts are confined to the jurisdiction of State, group of States or Union
Territory.
ü The subordinate courts are covered by the administrative power of the High Courts
under which they function.
Lower Courts or Subordinate courts

The District Court in India are established by the respective State Government in India
for every district or more than one district taking into account the number of cases,
population distribution in the district. These courts are under administrative control of
the High Court of the State to which the district concerned belongs.

The court at the district level has a dual structure that runs parallel
ü one for the civil side and

ü one for the criminal side.
The civil side is simply called the District Court and is headed by the district judge. There
1. 8

are additional district judges and assistant district judges who are there to share the
additional load of the proceedings of District Courts. These additional district judges have
equal power like the district judges for the jurisdiction area of any city which has got the
status of metropolitan area as conferred by the state government. These district courts
have the additional jurisdictional authority of appeal handling over the subordinate
courts in their jurisdiction. The subordinate courts covering the civil cases, in this aspect
are considered as Junior Civil Judge Court, Principal Junior and Senior Civil Judge Court,
which are also known as Subordinate Courts. All these courts are treated with ascending
orders.

The criminal court at the district level is headed by the Sessions Judge. Usually there are
Additional Sessions Judges as well in the Court to share the workload of the Sessions
Judge.
The subordinate courts covering the criminal cases are
ü 2nd Class Judicial Magistrate Court,

ü 1st Class Judicial Magistrate Court, and
ü Chief Judicial Magistrate Court along with
ü family courts
which are established to deal with the issues related to disputes of matrimonial issues
only. The status of Principal Judge of family court is at par with the District Judge.

The court of the district judges is the highest civil court in a district. It exercises both
judicial and administrative powers. It has the power of superintendence over the courts
under its control. The parallel structure of law courts at the district level usually
converges at the top and the head of the court has power of trying both civil and criminal
1. 9

cases. Thus he is designated as the District and Sessions Judge. It must also be borne in
mind that name of the subordinate courts at the district level is not uniform across the
States.

Revenue Courts
There is a government apparatus to deal with revenue matters. These are ‘courts’ but are
not a part of Judiciary because they come under the administration of the State
governments. Revenue courts deal with matters pertaining to stamp duty, registration
etc.
At the lowest level, we have the ‘Tehsildar’ or Assistant Tehsildar. Above it is the o ce of
the ‘Sub-Divisional Officer’ (SDO). Then comes the office of District Collector and above it
is the ‘Board of Revenue’. The Board of Revenue is the highest decision making body at
the State level.

Procedural aspects of working of Civil Courts
1) Jurisdiction
As per CPC 1908, the courts shall have jurisdiction to try all suits of a civil nature except
suits of which cognizance is either expressly or impliedly barred. The inherent lack of
jurisdiction cannot be cured even by consent of parties, which means if the court does not
have any jurisdiction at all, the parties cannot subsequently confer it by an agreement.
The onus of proving that the court does not have jurisdiction lies on the party who
disputes the jurisdiction.

The jurisdiction is basically of 3 types -
i. Pecuniary: - Depending on Monetary basis.

ii. Territorial: - Depending on Territorial Jurisdiction to ensure smooth and speedy
trial of the matter with least inconvenience to the affected parties.
iii. As to subject matter: disputes relating to terms of service of government
servants go to Administrative Tribunals. For example, Motor Vehicles Act provides
for special tribunal for matters under it.
Note: The 1st and fundamental rule governing jurisdiction is that suit shall be instituted
in the court of lowest grade competent to try it.
2) Stay
With the object of preventing courts of concurrent jurisdiction simultaneously trying 2

parallel suit in respect of the same matter in issue, CPC has vested inherent power in the
court to stay the suit. The pendency of a suit in Foreign Court does not preclude the courts
in India for trying a suit founded on same cause of action. The application for stay of suit
is maintainable at any stage of the suit. The court does not have option to refuse on
ground of delay.

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3) Res Judicata and bar to further Suits
Section 11 of the CPC deals with the doctrine of Res Judicata that is, bar or restraint on
repetition of litigation of the same issues. It is a pragmatic principle accepted and
provided in law that there must be a limit or end to litigation on the same issues.

The doctrine underlines the general principle that no one shall be twice vexed for the
same cause.

For the applicability of the principle of res judicata, the following requirements are
necessary:
• There are 2 suits filed at 2 different time.
• Both the matters are substantially the same.
• Parties are the same.
• Previously instituted suit is conclusively decided.
• The court in which previous suit is a competent court.

The doctrine of res judicata is based on the following public policy
i. There should be an end to litigation
ii. The parties to a suit shall not be harassed for the same matters
iii. The time of court should not be wasted over the matters that ought to have been and
should have been decided in the former suit between the parties.

4) Plaintà Covered in later part
5) Summonà Covered in later part
6) Appearance à Covered in later part
7) Adjournments: Courts have the power to adjourn a case and take it up on a future
date. Adjournments frequently sought by the parties contribute significantly to the
delays caused in deciding the matters. The granting of adjournments is at the
discretion of the court. The rules governing adjournments are considerably strict if
applied in their true spirit.
8) Ex-parte Decrees
A decree against the Defendant without hearing him or in his absence/in absence of his
defence can be passed under the following circumstances: -
i. Where any party from whom a written statement is required fails to present the
same within the permitted time, the court shall pronounce judgement against him
and on pronouncement of such judgement a decree shall be drawn up.
ii. Where Defendant has not led a pleading, it shall be lawful for the court to
pronounce judgement on the basis of facts contained in the plaint, except against
person with disability.
iii. Where the Plaintiff appears and Defendant does not appear when suit is called up
for hearing and summons is properly served the court may make an order that
suit will be heard ex-parte.

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9) Interlocutory Proceedings
The period involved between initiation and disposal of litigation is substantially long. The
intervention of the court may sometimes be required to maintain the position as it
prevailed on the date of litigation. In legal parlance it is known as “status quo”. It means
preserving existing state of things on a given day. In that context interlocutory orders are
provisional, interim, and temporary as compared to final. It does not finally determine
cause of action but only decides some intervening matter pertaining to the cause.

The procedure followed in the court is that the separate application for interim relief is
moved at the time of filing of suit or at a subsequent stage. The court either grants the
order ex-parte or issues urgent show cause notice and the reply is to be led within short
time.
One of the most common interlocutory reliefs sought is that of ‘injunction’.
10)Written Statement: Covered in later part

11)Examination of Parties
Examination of parties is an important stage after appearance. At first hearing of the
suit the court shall ascertain from each party or his pleader whether he admits or
denies such allegations of fact as are made in the plaint or written statement. Such
admissions and denials shall be recorded. The examination may be an oral
examination.

12) Production of documents
The parties or their pleaders shall produce at or before the settlement of issues, all
documentary evidence of every description in their possession or power, on which they
intend to rely, and which has not been led in the court or ordered to be produced. Every
document which a party is called upon to admit, if not denied specifically or by necessary
implication, or stated to be not admitted in the pleading of that party or in his reply to the
notice to admit documents shall be deemed to be admitted. The court may however at its
discretion and for reasons to be recorded, require any document so admitted to be
proved otherwise than by such admission.
13)Framing of Issues
The court shall at first hearing, after reading the plaint and written statement ascertain
upon what material propositions of facts or law parties are at variance. Issues may be
framed from allegations made on oath by the parties or in answer to interrogatories or
from contents of documents produced by either party.
14)Summoning and Attendance of Witnesses
On the date appointed by the court and not later than 15 days after the date on which
issues are settled parties shall present in court a list of witnesses whom they propose to
call either to give evidence or to produce documents.
Where a person to whom summons has been issued either to attend or to give evidence
or production of any documents and his deposition or production is material and person
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has failed to attend without lawful excuse, court may issue orders for arrest either with
or without bail. If the witness appears such orders may be withdrawn.
15)Affidavits
The court may at any time for sufficient reason order that any particular fact or facts may
be proved by affidavit or affidavit of any witness may be read at hearing, on such
condition, as court thinks reasonable. Affidavit shall contain only such facts as the
deponent is able of his own knowledge to prove. The affidavit be properly verified to
avoid any dispute at a later stage.
16)Final Argument
After examination and cross examination of witnesses, it allows both the sides to present
its case after taking into account the submissions made by the witnesses of the other
party and the documents produced by it. It can, therefore, be said to be an opportunity
for both the sides to present a summary of their case or defence, as the case may be.
17)Judgement
The statement given by the judge on ground of which a decree is passed. The court after
the case has been heard shall pronounce judgement in open court either within 1 month
of completion of arguments or as soon thereafter as may be practicable, and when the
judgement is to be pronounced judge shall fix a day in advance for that purpose and delay
(if any) shall be recorded.
18)Decree and Execution
After the decree is passed the process of execution which involves actual implementation
of the order of the court through the process of the court starts the entire process of
executing of decree.

Procedural aspects of working of criminal courts
Cr PC 1973 is a procedural Law for conducting a criminal Trial which includes –
ü Manner for collection of evidence

ü Examination of witnesses
ü Interrogation of accused
ü Arrests
ü Safeguards
ü Procedure to be adopted by police and courts
ü Bail
ü The process of criminal trial
ü A method of conviction
ü The rights of the accused of a fair trial by principles of natural justice.
A criminal court is usually set in motion with the registration of a FIR under Cr PC. IPC is
primary penal law which applies to all offences.
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Type of Criminal Trial
As per Cr. P.C 1973, a criminal trial is of 3 types –
1. Warrant Cases
2. Summon cases
3. Summary Trial
Warrant Cases: The cases which relates to offences punishable with death,
imprisonment for life or imprisonment for a term exceeding 2 years. In these cases, trial
starts either with filing of FIR in a police station OR by filing a complaint before a
Magistrate. Later, if the Magistrate is satisfied that the offence is punishable for more than
2 years, he sends the case to the Sessions court for trial. The process of sending it to
Sessions court is called “committing it to Sessions court”.
Important features of a warrant case are:
1. Charges must be mentioned in a warrant case

2. Personal appearance of accused is mandatory
3. A warrant case cannot be converted into a summons case
4. The accused can examine and cross-examine the witnesses more than once.
5. The Magistrate should ensure that the provisions of Section 207 are complied with
which include the supply of copies such as police report, FIR, statements recorded or
any other relevant document to the accused.
a) Different Stages of Criminal Trial in a Warrant Case when instituted by the police
report
Ø FIR
Ø Investigation
Ø Charges
Ø Plea of Guilty
Ø Prosecution Evidence
Ø Statement of Accused
Ø Defence Evidence
Ø Judgement
b) Stages of Criminal Trial in a Warrant Case when Private Complaint institutes
case
It may sometimes happen that the police refuse to register an FIR. In such cases one
can directly approach the criminal court. On the filing of the complaint, the court will
examine the complainant and its witnesses to decide whether any offence is made
against the accused person or not. After examination of the complainant, the
Magistrate may order an inquiry into the matter by the police and to get him submit a
report for the same.
ü After examination of the complaint and the investigation report, the court may come
to a conclusion whether the complaint is genuine or whether the prosecution has
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sufficient evidence against the accused or not. If the court does not find any sufficient
material through which he can convict the accused, then the court will dismiss the
complaint and record its reason for dismissal.
ü After examination of the complaint and the inquiry report, if the court thinks that the
prosecution has a genuine case and there are sufficient material and evidence with
the prosecution to charge the accused then the Magistrate may issue a warrant or a
summon depending on the facts and circumstances.
Summons Cases
Those cases in which an offence is punishable with an imprisonment of fewer than 2 years
is a summons case. A summons case doesn’t require the method of preparing the
evidence. Nevertheless, a summons case can be converted into a warrant case by the
Magistrate if after looking into the case he thinks that the case is not a summon case.
Important points about summons case
1. A summons case can be converted into a warrant case.

2. The person accused need not be present personally.
3. The person accused should be informed about the charges orally. No need for framing
the charges in writing.
4. The accused gets only one opportunity to cross-examine the witnesses.
Stages of Criminal Trial in a Summons Case
ü Pre-Trial
ü Charges
ü Plea of guilty
ü Plea of guilty and absence of accused
ü Prosecution and Defence evidence
ü Judgement
Summary Trial
Cases which generally take only one or two hearings to decide the matter comes under
this category. The summary trials are reserved for small offences to reduce the burden
on courts and to save time and money. Those cases in which an offence is punishable with
an imprisonment of not more than 6 months can be tried in a summary way. The point
worth noting is that, if the case is being tried in a summary way, a person cannot be
awarded a punishment of imprisonment for more than 3 months.
Stages of Criminal Trial in Summary Cases
1) The procedure followed in the summary trial is similar to summons-case.

2) Imprisonment up to 3 months can be passed.
1. 15

3) In the judgement of a summary trial, the judge should record the substance of the
evidence and a brief statement of the finding of the court with reasons.
Appellate Forum
The system of Appeal provides an opportunity to correct judicial orders which otherwise
would operate unjustly. Indian legal system has made sufficient provisions for appeal
both under CPC as well as Cr. P.C.
Under CPC, an appeal may be an appeal from order or an appeal from decree. The appeal
has to be preferred within prescribed limitation period before the appellate court. The
limitation period for appeal to High Court is 90 days and appeal to District Court is 30
days. If the period of limitation is expired, then application for condonation of delay also
is required to be moved.
Even Cr. PC contain elaborate provisions on appeal against a judgement or order of

criminal courts. District and Sessions Court and High Courts are the most common
appellate forums.
Supreme Court is the appellate court of last resort and enjoys very wide plenary and
discretionary powers in the matters of appeal
Reference
Sec 395 of Cr. PC, empowers a Court subordinate to the High Court to make reference
to High court in following conditions –
1) The case pending before it must involve a question as to validity of any Act, Ordinance
or Regulation. A mere plea raised by a party challenging the validity of an Act is not
sufficient to make a reference to the High Court unless the Court itself is satisfied that
a real and substantial question as to validity of the Act is actually involved for the
disposal of the case.
2) Secondly, the Court should be of the opinion that such Act, Ordinance Regulation, as
the case may be, is invalid or inoperative but has not been so declared by High Court
or by the Supreme Court.
3) While making a reference to the High Court, the Court shall refer to the case setting
out its opinion and reasons for making a reference.
Review – Covered in later part
Revision – Covered in later part
1. 16

General Principles in drafting
GENERAL PRINCIPLES OF DRAFTING AND

RELEVANT SUBSENTATIVE RULES
INTRODUCTION

Drafting, in legal senses means an act of preparing legal documents like agreements, contracts,
deeds etc. To understand the drafting, the relation/nexus between law, facts and language have to
be thoroughly understood.

IMPORTANCE OF DRAFTING AND CONVEYANCING
v For obtaining legal consultations,
v For carrying out documentation departmentally,
v For interpretation of the documents

WHICH WILL LEAD IN: -
v Better interaction while seeking legal advice from the legal experts
v Laying down rights and obligations of the parties.
v Better communication,
v Extraction of more information,
v Arriving on workable solutions, and
v Settlement of the draft documents, engrossment and execution thereof,

DRAFTING -IT’S MEANING

It may be defined as the synthesis of law & fact in a language form. All three characteristics rank
equally in importance. Drafting is Collection & Placing of all aspects of a matter in a logical, simple
& lucid manner so that the content can be understood without confusion.

2. 1

In other words, legal drafting is the crystallization and expression in definitive form of a legal right,
privilege, function, duty, or status. It is the development and preparation of legal instruments
such as constitutions, statutes, regulations, ordinances, contracts, wills, conveyances, indentures,
trusts and leases, etc.

It requires serious thinking and prompt actions to collect, consolidate and co-ordinate the above
facts in the form of a document. Thus, it is often said that, a proper understanding of drafting cannot
be realized unless a relation between law, fact and language is fully understood and accepted.

The process of drafting operates in two planes: the conceptual and the verbal. Besides seeking the
right words, the draftsman seeks the right concepts. Drafting, therefore, is first thinking and then
composing.

Conveyancing
Section 205 of the Law of Property Act, 1925
Section 2(10) of Indian Stamp Act, 1899
Section 5 of TOPA, 1882

Technically speaking, Conveyancing is the art of drafting of deeds
and documents whereby land or interest in land i.e. immovable
property, is transferred by one person to another; but the
drafting of commercial and other documents is also commonly
understood to be included in the expression

Thus, conveyance is an act of Conveyancing or transferring any
property whether movable or immovable from one person to another
permitted by customs, conventions and' law within the legal structure
of the country, As such, deed of transfer is a conveyance deed which
could be for movable or immovable property and according to the
Transfer of Property Act, 1882, transfer may be by sale, by lease, by
giving gift, by exchange, by will or bequeathment. But acquisition of
property by inheritance does not amount to transfer under the strict
sense of legal meaning.

Difference between Drafting and Conveyancing (Dec 2008)
Drafting Conveyancing
Drafting is the way and the manner of Conveyancing is the way and manner of preparation of
preparation of any document. Thus, drafting only those documents which are related to transfer
gives General Meaning synonymous to Of property.
preparation of Drafting of any documents.
Wider term as it covers all type of documents. Narrower than drafting
E.g. Arbitration agreement, Service Agreement, E.g. Sale Deed, Mortgage Deed etc.
Receipt etc

2. 2

Difference between conveyancing and contract
(June 2006, Dec 2014, June 2009, Dec 2011)
Conveyancing Contract
Art of drafting docs relating to transfer of Agreement enforceable by law.
property.
No promise & title in respect of property already It consist of reciprocal promises & each party is
passed bound to perform
It doesn’t create any right of action, however it It creates a right of action in favour of the parties. In
alters the existing rights case of breachà no. of remedies will be available to
parties
Governed by provisions of TOPA, 1882 Governed by Indian Contract Act, 1872

GENERAL PRINCIPLES OF DRAFTING ALL SORTS OF DEEDS AND
CONVEYANCING AND OTHER WRITI’NGS: (Dec 2007)

Following rules should also be followed while drafting the documents:

Fowlers' five To be DIRECT, SIMPLE, BRIEF, VIGOROUS AND LUCID."
rules of The principle referred to above may be translated into general in the domain of
drafting (Dec vocabulary as follows:
2005) v Prefer the familiar word to the farfetched (familiar words are readily
understood).
v Prefer the concrete word to the abstract (concrete words make meaning more
clear and precise).
v Prefer the single word to the circumlocution (single word gives direct meaning
avoiding adverb and adjective).
v Prefer the short word to the long (short word is easily grasped).
v Prefer the Saxon word to the Roman (use of Roman words may create
complications to convey proper sense to an ordinary person to understand).
v Always prefer active voice to the passive voice in the drafting of documents.
Sketch or It is always advisable to sketch or outline the contents of a document before taking
scheme of the up its drafting suggested by Mr. Davidson,
draft
document "The first rule on which a draftsman must act is this-that before his draft is
commenced, the whole design of it should be conceived, else his draft will be
confused and incoherent, many things will be done which ought not to be done and
many left undone which ought to be done.
Skelton draft After the general scheme of the draft has been conceived, the draftsman should note
and its self- down briefly the matters or points which he intends to incorporate in his intended.
appraisal
2. 3

Special Certain documents require extra care before taking up the drafting. Further, in all
attention to the documents where transfer of immovable property is involved through any of
be given to the prescribed legal modes, it is necessary to ensure the perfect title of the
certain transferor to such property proposed to be transferred by causing investigation
documents and searches in relation to such title done through competent lawyers or
solicitors in the concerned offices of Registrar of Assurance, local authorities,
Registrar of Companies (in the case of the vendor being a corporate unit) etc.

In addition, the requisite permissions required under different enactments viz.,
Income-tax Act, Land Ceiling Laws, Companies Act, 1956, Lessor's consent in the
case of leasehold land, or any compliance desired under other Central or State Laws
or personal laws etc. should be planned to be obtained in advance and recited in the
documents wherever thought necessary.
Expert's If the draft document has been prepared for the first time to be used again and again
opinion with suitable modification depending upon the requirements of each case it should
be got vetted by the experts to ensure its suitability and legal fitness if the corporate
executive feels it so necessary.

To sum up, the draftsman should bear in mind the following principles of drafting:
v Documents should be self-explanatory.
v Document should be clear to any person who has competent knowledge of the subject matter.
v Readily intelligible to layman.
v Must not be ambiguous
v Nothing shall be omitted and negative sentence should be avoided.
v Use of juridical language should be made.
v Documents should be divided into paragraphs, which should be self-explanatory and should be
properly marked by use of Nos. of letters for clause, sub-clause and paragraphs.
v Schedule should be provided in the documents.
v The active voice is preferable to the passive voice.
v Avoid the use of words of same sound.
v Avoid the use of words "less than" or "more than", instead, he must use “exceeding” & "not
exceeding"
v Use simple, shorter and Single Words
v Avoid Round about construction and unnecessary repetition.

v Reduce the group of words to single v Avoid the use of the words with similar
word sound (Eg. ‘End’ ‘And’)
v Use simple verb for group of words v Don’t refer the whole clause as such,
v Avoid round about construction instead use the number allotted to it.
2. 4

v Avoid unnecessary repetition v Try to avoid negative in successive
v Write shorter sentences phrases and if necessary, incorporate it
v Express ideas in fewer words very carefully.
v Prefer active voice to the passive v Properly use the word like ‘either’, ‘or’
voice and other like words
v Choose the right word
v Know exactly the meaning of the
words and sentences you are writing
v Put yourself in place of reader and
satisfy yourself about the overall
document including its content and
interpretation.

Basic components of deed

Document

Sec 31(18) General Clause Act 1894, “any matter written,
expressed or described” upon any substance by mean of letter,
figure or marks, which is intended to be used for the purpose of
recording that matter.
v A writing:
v Printed, lithographed, photographed.
v Map or plan.
v Inscription, on a metal plate or stone.
v A caricature is a document.

In short, a document is a paper or other material, which provide information, proof or
evidence. E.g.→ Minutes of meeting.

Instrument

(Sec 2(14) of India stamp Act 1899) and
(Sec 2(b) of Notaries Act, 1952)

v Every document, by which any right or
liability is to be created, transferred,
limited, extended, extinguished or
recorded.
v All instruments are documents but all
documents need not be instruments.
Stamp duty is payable on every
instrument but not in case of document
v E.g.: promissory note.

It includes, Awards made by Industrial Courts, A Will, A decree (sec 1 of interest Act) but it
doesn’t include Act of Parliament unless there is a statutory definition to that effect in any Act.
2. 5


Deed: - Deed has no specific definition, it is a solemn document or
instrument which is in writing, signed bearing legal seal and delivered.

Important Points
v Deed has no specific definition.
v Deed is a solemn document.
v “All the instruments by which two or more persons agree to
effect any right or liability”.
v A formal Writing of a non- testamentary character which
purports or operates to create, declare, confirm, assign, limit or
extinguish some right, title or interest.
v It is a written contract or agreement which has been properly signed the legal seal and
delivered.

Ø All deeds are document. But it is not always that all documents are deed.
Ø All the deeds are instruments but all the instruments need not be deeds.
Ø A deed is a present grant rather than a mere promise to be performed in the future.

Example: - Gift deed, Sale Deed, Deed of Partition, Partnership Deed, Deed of Family
Settlement, Lease Deed, Mortgage Deed, POWER OF ATTORNEY, BOND etc.

Various kinds of deeds
A good deed is one, which conveys a good title, not one which is good merely in form.

Inclusive The deed which contains within the designated boundary land expected from
operation of deed.
Latent deed Which is kept for 20 years or more in man’s strong box.

Lawful deed The deed which convey a lawful title or a good title.

Pretended Deed which is prima facie valid.
deed
Voluntary Without any valuable consideration, as it is defined by law.
deed
Warranty Containing on agreement of warranty.
deed
Special Have the term of general warranty deed only. But warranty title only against those
Warranty claiming by the greater conveys the described land itself.
deed

2. 6


IMPORTANT TERMS
v Deed Pool: - Deed between 2 or more persons in which
copies are made as there are parties, so that each party
may have a copy.

v Deed poll: - A deed in which there is only a single party.
E.g. promissory note or power of attorney. Drawn in
first person usually.

v Deed Escrow: - A deed, which is signed only by one
party until delivered to the other party, will be called as
deed escrow. It will be called as deed only after only
after signing by the last party till then it is only a mere
writing (scriptum)

v Indenture: - A deed in which there are two or more
parties. Written in duplicate upon one piece of paper
and 2 parts are served so as to leave an indented edge,
forging being then, rendered very difficult.

v Cyrographm: - Another type of indenture. Cyrographm
was written between two or more copies and the paper
was cut in a jugged line through this word. This was done
for the safeguard against the fraudulent substitution &
original document with duplicate one.

COMPONENTS OF DEED

A deed is divided into different paragraphs. Under each part relevant and related information
is put in paragraph in simple and intelligible language as explained in the earlier chapter. If a
particular part is not applicable in a particular case that part is omitted from the document.

v Name of deed
It is usual, but not necessary to begin a deed by giving it a name. The name should be
indicative of true content or the correct title.

E.g. “THIS DEED OF LEASE” or simply “THIS DEED”
Ø Should be written in capital letters
Ø Hints the nature of the deed
2. 7

Ø Gives a signal to the reader about the contents of the Deed.

v Date & Place
It is usual to give date and place on which the document is executed and territorial & legal
jurisdiction of a documents for the purpose of registration, stamping & for claiming legal
remedies. To be mentioned after the name of deed or the end before signature.
EG: - “This 7th day of June 2016 at Nagpur”

v Parties to deed
Whole detail should be provided so that the parties can be easily identified. While describing
the parties, the transferor should be mentioned first and then the transferee. Full
description of the parties should be given to prevent difficulty in identification.

Order must be as follows:
¬ Name
¬ Sir name
¬ Age
¬ Occupation
¬ Address

In case of judicial person such as company, Registered Office must be mentioned after their
name. In cases where it is intended that the successor of the parties will also be bound by the
deed, it is usual to add a clause after the description of the parties stating the following:
“The parties shall include their heirs, successor, assigns and legal representatives.”

v Recitals
Recitals contain the short story of the property or brief history of motive of making the deed.
Begin with the familiar word such as” where as the parties are desirous of coming into
agreement.
Recitals are of two types Narrative recitals and Introductory
Which is as follows: -

Ø Narrative Recitals
This part relates to the past history of the property transferred and sets out the facts and
instrument necessary to show the title and relation to the party to the subject matter of
the deed as to how the property was originally acquired and held and in what manner it
has developed upon the grantor or transferor. The extent of interest and the title of the
person should be recited. It should be written in chronological order i.e. in order of
occurrence.

Ø Introductory Recitals
It is used to explain the motive or intention behind execution of deed and placed after
narrative recitals. Objective of doing so, is to put the events relating to change of hand in
the property.

Recitals should be inserted with great caution because they precede the operative part and as
a matter of fact contain the explanation to the operative part of the deed. If the same is
ambiguous recitals operate as estoppel. Recital offers good evidence of facts recited therein.
2. 8


Recitals are not generally taken into evidence but are open for interpretation for the courts. If
the operative part of the deed is ambiguous anything contained in the recital will help in its
interpretation or meaning. In the same sense, it is necessary that where recitals contain
chronological events that must be narrated in chronological order.

Recitals carry evidentiary importance in the deed. It is evidence against the parties to the
instrument and those claiming under and it may operate as estoppels
[Ram Charanv. GirijaNandini].

Recital generally begins with the words "WHEREAS" and when there are several recitals
instead of repeating the words "Whereas" before each and every one of, them, it is better to
divide the recitals into numbered paragraphs.

v Testatum or witnessing clause
This is the “witnessing” clause, which refers to the introductory recitals of the agreement, if
any, and also states the consideration and recites acknowledgement of its receipt. It starts
with the words “NOW THIS DEED WITNESSES”.

Where there are more than one observations to be put in the clause the words, “NOW THIS
DEED WITNESSES AS FOLLOWS” are put in the beginning and then paragraphs are
numbered.

v Habendum
Habendum is a part of deed, which states the interest; the purchaser is to take in the property.
Habendum clause starts with the words “TO HAVE AND TO HOLD” or “To have to hold to
the use of………..” Now it is not necessary to express it so. In the modern deeds, however, the
expression “to have and to hold” is omitted.

The habendum limits the estate mentioned in the parcels. The transferee is mentioned again
in the habendum for whose use the estate is conveyed. Whatever precedes the habendum is
called the premises. The parcels or the description of the property usually again included in
the premises.

v Exceptions and Reservations Clause
It refers to admission of certain rights to be enjoyed by the transferor over the property to be
agreed to by the transferee. The clause generally is signified by the use of words “subject to”
in deeds. It is the contractual right of the parties to the document to provide exceptions and
reservations, which should not be uncertain, repugnant or contrary to the spirit of law
applicable to a particular document or circumstances.

v Covenants and Undertakings
The term “covenant” has been defined as an agreement under seal, whereby parties stipulates
for the truth of certain facts. In Whasten’s Law Lexicon, a covenant has been explained as an
agreement or consideration or promise by the parties, by deed in writing, signed, sealed and
delivered, by which either of the parties, pledged himself to the other than something is either
done or shall be done for stipulating the truth of certain facts. Covenant clause includes
undertakings also. However they cannot be separated in some cases. “The Parties aforesaid
2. 9

hereto hereby mutually agree with each other as follows:” Such covenants may be expressed
or implied.

v Parcels Clause
This is a technical expression meaning methodical description of the property. It is necessary
that in case of non-testamentary document containing a map or plan of the property shall not
be accepted unless it is accompanied by the True Copy. Usually the Parcel Clause starts with
the words “All Those……………………. And further or description covers as per the type of
property subjected to transfer under the deed. This clause includes words such as:
Tenements, Hereditaments, Land, and Water etc.

If property is land, the easements annexed thereto, the rents and profits thereof accruing after
the transfer, and all things attached to the earth;

If where the property is machinery attached to the earth, the movable parts thereof;
If house, the easements annexed thereto, the rent thereof accruing after the transfer, and the
locks, keys, bars, doors, windows, and all other things provided for permanent use therewith;

If a debt or other actionable claim, the securities therefore (except where they are also for
other debts or claims not transferred to the transferee), but not arrears of interest accrued
before the transfer;

If money or other property is yielding income, the interest or income thereof accruing after
the transfer takes effect.

v Testimonium Clause
Testimonium signifies that the parties to the document have signed the deed. This clause
marks the close of the deed and is an essential part of the deed. “In witness whereof the
parties hereto have signed this day on the date above written”.

v Signature and Attestation Clause
Signatures of the executants of the documents and their witnesses attesting their signatures
follow. If the executants is not competent enough to contract or is juristic person, the person
competent person on its behalf must sign deed. For E.g. Company.

Attestation should be done by at least two witnesses who should have seen the executant
signing the deed or should have received from the executant personal acknowledgement to
his signatures. There is no particular form of attestation but it should appear clearly that
witnesses intended to sign is attesting the witnesses. General practice followed in India is that
the deed is signed at the end of the document on the right side and attesting witnesses may
sign on the left side. The attesting witness should have put his signature, amino attestandi,
that he has seen the executant signing the document.

v Endorsements and Supplemental Deeds
2. 10

Endorsement means to write on the back or on the face of a document wherein it is necessary
in relation to the contents of that document or instrument. The term “endorsement” is used
with reference to negotiable documents like cheques, bill of exchange etc. Endorsement is
used to give legal significance to a particular document with reference to new facts to be
added in it. Endorsement helps in putting new facts in words on such document.

Supplemental deed is a document, which is entered into between the parties on the same
subject on which there is a prior document existing and operative for adding new facts to the
document. When a deed or document is required to be supplemented by new facts it can be
done either endorsement on the prior deed when short writing would be sufficient, or by
executing a separate deed described as supplemental deed.

For example, if lessee transfers his right in the lease to another person such transfer may be
done by way of endorsement. On the other hand, if the terms of the lease document are to be
altered then it becomes necessary to give effect to such alteration through a supplementary
deed.

Note: All endorsements or supplemental deed should be stamped depending upon nature of
the transaction. E.g. –Stamped as a receipt, Stamped as an agreement.

v Annexure or Schedules
Particulars about the land or property to be given in the Schedule to be appended to the deed.
E.g- A Site Plan or Map Plan showing exact location with revenue no. Mutation No., Munipal
No., Survey No., Street No., Ward Sector/Village/Panchayat/Taluka/District etc……………….
Plot No., etc. so that the demised property could be traced easily.

v Engrossment and Stamping of a Deed
The draft of document is required to be approved by the parties. Engrossment copied fair on
the non-judicial stamp-paper of appropriate value as may be chargeable as per Stamp Act.
Note: If a document is not properly stamped, it is rendered inadmissible in evidence nor it will
be registered with Registrar of Assurances.

Stamp Duty
Introduction
The primary object of Indian Stamp Act, 1899 is to raise the revenue for States. This has been
done by prescribing a stamp duty which is payable on every instrument.

In general, levy of stamp duty is a State subject. However, in certain cases, Parliament has
exclusive powers to fix the rates of duty. Bill of exchange, Promissory Notes, Share Transfer
Deed, Instrument of Proxy, Letter of Credit, Insurance Policies, etc. are some of such
instruments.

IMPORTANT PROVISIONS

2. 11

Single Transaction Where, in the case of any sale, mortgage or settlement, several instruments are
Effected By Several employed for completing the transaction, the principal instrument only shall be
Instruments [Sec. 4] chargeable with the duty prescribed in Schedule I, for the sale, mortgage or settlement.
As regards the other instruments called subsidiary instruments, they shall be
chargeable with a duty of Re.1 instead of the duty prescribed for it in that Schedule.
Instruments Any instrument, comprising or related to several distinct matters, shall be chargeable
Relating To Several with the aggregate amount of duties with which separate instrument, each comprising
Distinct Matters or relating to one of such matters, would be chargeable under Indian Stamp Act.

[Sec 5]
Where several distinct matters and transactions are embodied in a single instrument,
the instrument is called the multifarious instrument.
Instruments When an instrument falls within the provisions of two or more Articles in Schedule I,
Coming Within and the instrument does not contain distinct matters, it is to be charged with the
Several highest of the duties, when the duties chargeable are different.
It may be noted that the provisions of Section 6 are subject to the provisions of Section
Descriptions
5 i.e., if the instrument is containing the distinct matters, then Section 6 shall not apply
[Section 6] because in such situation Section 5 applies.

There are two modes of Payment of stamp duty:
v Adhesive Stamps; and

v Impressed Stamps.
Meaning of duly Duly stamped means that the instrument bears an adhesive or impressed stamp, not
stamped: less than proper amount and that such stamp has been affixed or used in accordance
with law in force in India. [Section 2 (11)]
In case of adhesive stamp, the stamps have to be effectively cancelled so that they
cannot be used again. Similarly, impressed stamps have to be written in such a way so
that it cannot be used for other instrument and the stamp appears at the face of
instrument. If stamp is not cancelled, the instrument is treated as unstamped. Similarly,
if the stamp duty paid is not adequate, the instrument is treated as not duly stamped.
Timing of Stamping: v Instruments executed in India must be stamped before or at the time of execution
(Sec. 17).
v Instruments executed outside India can be stamped within three months after it is
first received in India (Section 18).
v However in case of bills of exchange or promissory notes made out of India, it
should be stamped by first holder in India before he presents for payment or
endorses or negotiates in India. (Section 19)
Who Should Pay Following persons are liable to pay the stamp duty, subject to the contrary provisions,
Stamp Duty: if any, agreed between the parties:

v In case of promissory notes and bills of exchange, the maker or the drawer.
v In the case of mortgage deed, the person executing the instrument i.e., the
mortgagor.
v In the case of insurance, the insurer.
v In the case of lease, the lessee.
v In the case of partition deed, parties to partition have to pay stamp duty in
proportion to their respective shares in the property.
2. 12

Consequence of Section 35 provides that if an instrument is not duly stamped, it is not a void
Instruments not instrument. It is only inadmissible in evidence. An objection as to an instrument not
duly stamped: being duly stamped must be taken at the trial when the instrument is first tendered in
evidence. It is the duty of court to refuse to admin an instrument not duly stamped,
whether or not the parties object to its admission.

REGISTRATION OF DOCUMENTS
Introduction:

Registration Act, 1908 provides for registration of certain documents. Following are the
purposes or objectives of registration of Documents:
v To give notice to the world that such a document has been registered and to serve as a
source of information regarding the execution of the document and its existence.
v To prevent fraud and forgery with the purpose of providing good evidence of the
genuineness of the written document; and
v To secure the interest of person dealing with any immovable property where such dealing
requires registration.

Section 17 provides that the following documents require compulsory registration:
v Instruments of gifts of immovable property.
v Non-testamentary Instruments relating to immovable property of the value of Rs.100/-
and above.
v Following leases of immovable property
Ø Lease from year to year basis;
Ø Lease from the term exceeding 1 year; and
Ø Lease which reserves a yearly rent.
v Authorities to adopt a son and authorities not conferred by will.

Documents for which Registration is Optional (Section 18)
Section 18 provides that in respect of the following documents, registration is optional:
v Wills
v Other non-testamentary instruments relating to immovable property of the value less
than Rs.100/-
v Lease of immovable property for any term not exceeding 1 year
v Other documents not required to be registered as per section 17(2). For instance,
composition Deed, Share Transfer Deed, etc.

Time Limit for Presentation of Document for Registration:

2. 13

Documents Section 23 of Registration Act, 1908 provides that the document must
executed in be presented before the Registrar for registration within four months
India [Sections of its execution. However, a will may be presented at any time for
23 & 25] registration.

Section 25 further provides that the Registrar has got the power to
condone the delay in presenting the document for registration up to a
period of four months; provided that the applicant satisfies the
registration that he has been prevented by sufficient cause or reasons
beyond his control in presenting the documents for registration within
the prescribed period of four months.
Documents As per section 26 of the registration Act, where the Registrar is
executed outside satisfied that the document was executed outside India and it has been
India [Sections presented for registration within four months after its arrival in India,
26] he may accept such documents for registration on payment of proper
registration fees.

Effects of Registration of Documents [Section 47]

A registered document operates from the time from which it was intended to operate and not
from the date of registration.

A registered document, other than a will, relating to property, takes effect against any oral
agreement relating to such property. However, when the oral agreement is accompanied by
delivery of possession, then the oral agreement will prevail over the registered document.

Effects of Non-Registration of Documents [Section 49]

A document, which is compulsorily registrable, but not registered, fails to take effect and is
void as regards immovable property. It cannot affect any immovable property comprised
therein. Further it cannot confer any power to adopt.

An unregistered document cannot be received as evidence of any transaction affecting such
property or conferring such power. However such a document may be received as evidence of
a contract in a suit for specific performance or as evidence of part performance of a contract
as per section 53A of Transfer of Property Act.

2. 14

IMPORTANT CONCEPTS RELATING TO
INTERPRETATION OF DEEDS AND
DOCUMENTS

Informal In interpretation of informal agreements, the rule to be applied is that of
Agreements: reasonable expectation; that is to say, the agreement is to be interpreted in
the sense in which the party who used the words in question should
reasonably expect the reader to interpret.

However if the intention is not clear, then the confusion will prevail and the
other party will not interpret it in the same way as the party drafting the
document wanted it to be interpreted.
Formal Where the agreement is formal and written, the following rules of
Agreements: interpretation may be applied:
v The document should contain all the terms and conditions preceded by
recitals of all relevant and material facts.
v In cases of uncertainty, it is legitimate to take into account the
surrounding circumstances for ascertaining the intention of parties.
v The cardinal rule is that clear and unambiguous words prevail over any
hypothetical considerations or supposed intention.
v All mercantile documents should receive a liberal construction.
v If certain words employed in business, or in a particular locality, have
been used in particular sense, they must prima facie be construed in
technical sense.
v The ordinary grammatical interpretation is not to be followed, if it is
repugnant to the general context.
v If the main clause is clear and the contingency mentioned in the proviso
does not arise, the proviso is not attracted at all and its language should
not be referred to for construing the main clause in a manner
contradictory to its import.
v In case of any difference between the preliminary contract and the final
contract, the terms of the latter must prevail.
v The court must interpret the words in their popular, natural and ordinary
sense.
v Two different documents should not be interpreted in the same way
unless the language of the document is identical.
v If something is added in handwritten or such forms, then such additions
should prevail over the language in print.
v If an alteration is made to the deed without the consent of any of the party
liable, then such deed is void with prospective effect.

2. 15

www.pcbaba.in CS Praveen Choudhary

Secretarial Practice in Drafting Notice, Agenda

and Minutes of Company’s Meetings

COLLECTIVE DECISION MAKING PROCESS IN COMPANIES- “RESOLUTION”
Despite all these powers, since it is not a natural person, it expresses its will or takes its
decisions through natural persons (i.e. directors or members) collectively which is
known as “resolutions.”
There are 2 collective bodies in the company which take decision through
resolutions:
i. Board of Directors – who manage, control and direct the business of the company
ii. General body of members – who ultimately own the company.

Chart

3. 1


SECRETARIAL STANDARD

Secretarial Standards – Meaning
1. Secretarial Standards are the policy documents relating to various aspects of secretarial
practices in the corporate sector.
2. These standards lay down a set of principles which companies are expected to adopt and
adhere to, in discharging their responsibilities.

Formulator of the Secretarial Standards
ICSI constituted the Secretarial Standards Board (SSB) in the year 2000 for formulating
Secretarial Standards. SSB formulates Secretarial Standards taking into consideration the
applicable laws, business environment and the best secretarial practices prevalent.
Composition of Secretarial Standards Board (SSB)
SSB having members from following authorities.
1. ICSI members working in Companies as well as in practice
2. Representatives of MCA,
3. Representatives of SEBI
4. Representatives of ICAI
5. Representatives of ICWAI

Scope and Functions of the Secretarial Standards Board
The scope of SSB is to identify the areas in which Secretarial Standards need to be issued
by the Council of ICSI and to formulate such Standards, taking into consideration the
applicable laws, business environment and best secretarial practices. SSB will also clarify
issues arising out of such Standards and issue guidance notes for the benefit of members
of ICSI, Corporates and other users.
The main functions of SSB are
1. Formulating Secretarial Standards
2. Clarifying issues arising out of the Secretarial Standards
3. Issuing Guidance Notes
4. Reviewing and updating the Secretarial Standards

Scope of Secretarial Standards
1. The Secretarial Standards do not seek to substitute or supplant any existing laws or the
rules and regulations framed there under but, in fact, seek to supplement such laws, rules
and regulations.
2. Secretarial Standards that are issued will be in conformity with the provisions of the
applicable laws.
3. However, if, due to subsequent changes in the law, a particular Standard or any part
thereof becomes inconsistent with such law, the provisions of the said law shall prevail.
3. 2


Procedure for issuing Secretarial Standards

SSB, in consultation with the ICSI council, shall determine the areas in which Secretarial
Standards need to be formulated.
↓
SSB may constitute Working Groups to formulate preliminary drafts of the proposed
Standards
↓
The preliminary draft of the Secretarial Standard prepared by the Working Group shall
be circulated amongst the members of SSB for discussion and shall be modified
appropriately.
↓
The preliminary draft will then be circulated to the members of the Central Council as
well as to Chairmen of Regional Councils/ Chapters of ICSI, various professional bodies,
Chambers of Commerce, regulatory authorities for ascertaining their views.
↓
On the basis of the preliminary draft and the discussion with the bodies/organizations,
an Exposure Draft will be prepared and published in the “Chartered Secretary”, the
journal of ICSI, and also put on the Website of ICSI to elicit comments from members
and the public at large.
↓
After taking into consideration the comments received, the draft of the proposed
Secretarial Standard will be finalized by SSB and submitted to the Council of ICSI.
↓
The Council will consider the final draft of the proposed Secretarial Standard and
finalize the same in consultation with SSB. The Secretarial Standard on the relevant
subject will then be issued under the authority of the Council.

SECRETARIAL STANDARDS UNDER THE COMPANIES ACT, 2013
Introduction and Need
The term ‘Secretarial Standard’ is defined as an explanation to section 205 of the
Companies Act, 2013 to mean secretarial standards issued by ICSI constituted u/s 3 of
the Company Secretaries Act, 1980 and approved by the Central Government. Thus, for
the 1st time, Secretarial Standards have been accorded statutory recognition under the
Companies Act, 2013.
The formulation of Secretarial Standards by the SSB and its statutory recognition is a
unique and pioneering step towards standardization of diverse Secretarial practices
prevalent in the corporate sector. No similar Standards are in existence elsewhere in the
world.
Generally, in addition to the Secretarial Standards, the requirements laid down under any
other applicable laws and rules and regulations, need to be complied with. However, in
3. 3


case of variations in any provision of the applicable laws and the Secretarial Standards,
the stricter provisions need to be complied with.
If, due to subsequent changes in the law, a particular Standard or any part thereof
becomes inconsistent with such law, the provisions of the said law shall prevail.
Section 118 (10) of the Companies Act, 2013 requires every company to observe
Secretarial standards with respect to Board meetings (SS-1) and General meetings (SS-
2).
Also, as per section 205(1) (b), it is the duty of the company secretary to ensure that the
company complies with the applicable secretarial standards.
Note: Earlier SS were approved by CG on 10th April 2015 and were published in
Gazette on 23rd April 2015. They were supposed to be effective from 1st July 2015
but it was withdrawn on 30th Sept 2017 without effecting the enforceability of SS 1
and SS 2 during the period before such withdrawal.
Now Revised SS-1 and SS-2 are approved by CG on 14th June 2017 which shall be
effective from 1st October 2017.
Even Section 121 of the Companies Act, 2013 requires confirmation with respect to
compliance of Secretarial Standards in the Report on the AGM.
Section 205 (1) of the Companies Act, 2013 lays down the functions of the Company
Secretary which inter-alia include ensuring that the company complies with the
applicable Secretarial Standards.
SECRETARIAL STANDARD -1 BOARD MEETING

SECRETARIAL
STANDARD-1
NON-APPLICABLTY
APPLICABLTY
OPC in which there is only 1
Meeting of board and
director and section 8
committee meeting
company.

Ø Calendar Year is 1st January and ends on 31st December
Ø National Holiday” means Republic Day i.e. 26th January, Independence Day i.e. 15th
August, Gandhi Jayanti i.e. 2nd October and such other day as may be declared as National
Holiday by the Central Government

CONVENING A MEETING
3. 4


Any Director of a company may, at any time, summon a Board Meeting and the CS or
any authorized person, shall convene Board Meeting, in consultation with the Chairman
or in his absence, the MD or in his absence, the WTD, where there is any, unless otherwise
provided in the AOA.
DAY, TIME, PLACE, MODE AND SERIAL NUMBER OF MEETING:
Ø Every Meeting shall have a serial number.
Ø A Meeting may be convened at any time and any place, on any day (Even on Sunday
or any National Holiday).
Ø Even a meeting of Board of Director’s adjourned for want of quorum can be held on
national holiday.

NOTICE OF BOARD MEETING
Notice, Agenda and Notes of Agenda in writing of every Meeting shall be given to EVERY
DIRECTOR by following ways
Ø By hand or by Speed Post or by Registered Post or by fax or by Email or by any other
electronic mode.
Ø In case the company sends the Agenda and Notes on Agenda by speed post or by
registered post an additional 2 days shall be added for the service of Agenda and
Notes on Agenda.
Ø Where a Director specifies a particular means of delivery of Notice, the Notice shall
be given to him by such means. However, in case of a Meeting conducted at a shorter
notice, the Company may choose an expedient mode of sending notice.
Ø Proof of sending Notice and its delivery shall be maintained by the company for
such period as decided by the Board, which shall be at least 3 years from the date
of the Meeting.
Ø Notice shall be issued by CS/Director/any other authorized officer.
Ø Notice shall be sent even if meeting is held on pre-determined dates or at pre-
determined intervals.
Ø Notice on items of business which are in the nature of unpublished price sensitive
information may be given at a shorter period of time but only with consent of a
majority of the directors, which shall include at least 1 Independent Director.
Ø Any item not included in the Agenda may be taken up for consideration with the
permission of the Chairman and with the consent of a majority of the Directors
present in the Meeting.
Ø The decision taken in respect of any other item shall be final only on its ratification by a
majority of the Directors of the company, unless such item was approved at the Meeting
itself by a majority of Directors of the company.

TIME PERIOD FOR ISSUE OF NOTICE
↓ ↓
NORMAL NOTICE SHORTER NOTICE

Notice, Agenda and Notes of Agenda To transact urgent business, the Notice,
convening a Meeting shall be given at Agenda and Notes on Agenda may be given
least 7 days before the date of the
3. 5


Meeting, unless the Articles prescribed a at shorter period of time than stated
longer period. above,

In case the company sends the Notice, If at least one Independent Director, if any,
Agenda and Notes of Agenda by Speed shall be present at such Meeting.
Post or by registered post, An Additional
2 Days shall be Added for the service of If no Independent Director is present,
Notice. decisions taken at such a Meeting shall be
circulated to all the Directors and shall be
The Notice, Agenda and Notes on Agenda final only on ratification thereof by at least
shall be sent to the Original Director also one Independent Director, if any.
at the address registered with the
company, even if these have been sent to In case the company does not have an
the Alternate Director. Independent Director, the decisions shall
be final only on Ratification Thereof By A
Majority Of The Directors of the company,
unless such decisions were approved at
the Meeting itself by a majority of
Directors of the company

Matter which can’t be dealt at a meeting held though Video conferencing unless
expressly permitted by the Chairman:
Ø Approval of the annual financial statements;
Ø Approval of the Board’s report;
Ø Approval of the prospectus;
Ø Audit Committee Meetings for consideration of accounts; and
Ø Approval of the matter relating to amalgamation, merger, demerger, acquisition and
takeover.
Note: Directors shall not participate through electronic mode in the discussion on
certain restricted items. (Earlier, they could do so with express permission of
Chairman)

CHAIRMAN OF BOARD MEETING
1. The Chairman of the Board shall conduct the Board Meeting. If no such Chairman is
elected or if the Chairman is unable to attend the Meeting, the Directors present at the
Meeting shall elect one of themselves to chair and conduct the Meeting, unless otherwise
provided in the AOA
2. If the Chairman is interested in an item of business, he shall, with the consent of the
members present, entrust the conduct of the proceedings in respect of such item to
any Non-Interested Director with the consent of the majority of Directors present
and resume the chair after that item of business has been transacted. However, in
case of a private company, the Chairman may continue to chair and participate in
the Meeting after disclosure of his interest.
3. 6


3. If the item of business is a related party transaction, the Chairman shall also not be
present at the Meeting, whether physically or through Electronic Mode, during
discussions and voting on such items.
4. In case some of the Directors participate through Electronic Mode, the Chairman and the
Company Secretary shall take due and reasonable care to safeguard the integrity of the
Meeting by ensuring sufficient security and identification procedures to record
proceedings and safe keeping of the recordings. No person other than the Director
concerned shall be allowed access to the proceedings of the Meeting where Director (s)
participate through Electronic Mode, except a Director who is differently abled, provided
such Director requests the Board to allow a person to accompany him and ensures that
such person maintains confidentiality of the matters discussed at the Meeting.
5. The Chairman shall ensure that the required Quorum is present throughout the Meeting
and at the end of discussion on each agenda item the Chairman shall announce the
summary of the decision taken thereon
6. The Chairman of the Board or in his absence, the Managing Director or in their absence,
the Managing Director or in their absence, the WTD and where there is none, any Director
other than an Interested Director, shall decide, before the draft Resolution is circulated
to all the Directors, whether the approval of the Board for a particular business shall be
obtained by means of a Resolution by circulation.

FREQUECNY OF MEETING
↓ ↓
First board Meeting” should be held within Meetings of the Board of Directors;
30 days of Incorporation of Company. (Except Small Company, OPC and
Dormant co.);
Ø The company shall hold.
Ø At least 4 Board Meetings in a calendar
year.
Ø Maximum interval between 2 board
meetings 120 days

An adjourned Meeting being a continuation of the original Meeting, the interval
period in such a case, shall be counted from the date of the original Meeting.
MEETINGS OF THE INDEPENDENT DIRECTORS:
Where a company is required to appoint Independent Directors under the Act, such
Independent Directors shall meet at least once in a Calendar year.
QUORUM
Ø The Quorum for a Meeting of the Board shall be 1/3rd or total no. of directors OR 2
Directors whichever is HIGHER. Any fraction contained in the above 1/3rd shall be
rounded off to the next one.
Ø Where the Quorum requirement provided in the AOA is higher than 1/3rd of the total
strength; the company shall conform to such higher requirement.
Ø If the number of Interested Directors exceeds or is equal to 2/3rd of the total strength, the
remaining Directors present at the Meeting, being not less than 2, shall be the Quorum
during such item.
3. 7


Ø If there is no Quorum at the adjourned Meeting also, the Meeting shall stand cancelled.
Ø Quorum shall be present not only at the time of commencement of the Meeting but
also throughout the Meeting.
Ø Directors participating through Electronic Mode in a Meeting shall be counted for
the purpose of Quorum, unless they are to be excluded for any items of business
under the provisions of the Act or any other law.
Ø If a Director is interested in any resolution, he shall either be reckoned for Quorum nor
shall be entitled to participate in respect of an item of business in which he is interested.
However, in case of a private company, a Director shall be entitled to participate in
respect of such item after disclosure of his interest.
Ø If the item of business is a related party transaction, then he shall not be present at
the meeting, whether physically or through Electronic Mode, during discussions
and voting on such item.

ATTENDANCE REGISTERS
Every Company shall maintain separate attendance registers for the Meetings of the
Board & for the Meetings of the Committee. The pages of the respective attendance
registers shall be serially numbered. If an attendance register is maintained in loose-
leaf form, it shall be bound periodically at-least once in every 3 years.

↓ ↓
PARTICULARS OF ATTENDANCE SIGNING OF ATTENDANCE REGISTER;
REGISTER OF BOARD MEETING Ø Every Director, Company Secretary who is
Ø Serial number and date of the Meeting; in attendance and
Ø Place of the Meeting; Ø Every Invitee who attends a Meeting of the
Ø Time of the Meeting; Board or Committee thereof shall sign the
Ø Names of the Directors and signature of attendance register at that Meeting.
each Director and their mode of presence, Ø The attendance register shall be deemed
if participating through Electronic Mode. to have been signed by the Directors
Ø Name and Signature of the Company participating through Electronic Mode, if
Secretary and Also of persons attending their attendance is recorded in the
the Meeting by invitation. attendance register and authenticated by
Ø In case of Committee Meeting “name of the the Company Secretary or where there is
Committee” also be mentioned. no Company Secretary, by the Chairman
Ø The attendance register is open for or by any other Director present at the
inspection by the Directors, even after Meeting, if so authorized by the Chairman
a person ceases to be a Director, he and the fact of such participation is also
shall be entitled to inspect the recorded in the Minutes.
attendance register of the Meetings The attendance register shall be kept in
held during the period of his the custody of the Company Secretary.
Directorship
Ø The attendance register shall be Ø Where there is no Company Secretary, the
preserved for a period of at-least 8 attendance register shall be kept in the
financial years from the date of last entry custody of any other person Director
made therein and may be destroyed authorized by the Board for this purpose.
thereafter with the approval of the Board

3. 8


PASSING OF RESOLUTIO BY CIRCULATION

The Act requires certain business to be approved only at Meetings of the Board.
However, other business that requires urgent decisions can be approved by means
of Resolutions passed by circulation. Resolutions passed by circulation are deemed to
be passed at a duly convened Board Meeting and have equal authority.

Check whether
1. A Resolution proposed to be passed by circulation is sent in draft along with
necessary documents, individually to all the Directors including Interested
Directors on the same day.
2. The Resolution, if passed, shall be deemed to have been passed on the earlier of:
a) The last date specified for signifying assent or dissent by the Directors or
b) The date on which assent has been received from the required majority, provided that on
that date the number of directors, who have not yet responded on the resolution under
circulation, along with the Directors who have expressed their desire that the resolution
under circulation be decided at a Meeting of the Board, shall not be one third or more of
the total number of directors whichever is earlier and shall be effective from that date, if
no other effective date is specified in such Resolution.
3. Resolutions passed by circulation shall be noted at a subsequent Meeting of the Board
and the text thereof with dissent or abstention, if any, shall be recorded in the Minutes of
such Meeting.

MINUTES
1. Minutes shall be recorded in books maintained for that purpose.
2. A distinct Minutes Book shall be maintained for Meetings of the Board and each of its
Committees.
3. The pages of the Minutes Books shall be consecutively numbered.
4. Minutes shall not be pasted or attached to the Minutes Books, or tampered with in
any manner.
5. Minutes shall state, at the Beginning the serial number and type of the Meeting, name
of the company, day, date, venue and time of commencement and conclusion of the
Meeting.
6. Minutes shall be written in third person and past tense. Resolutions shall however
be written in present tense. Minutes need not be an exact transcript of the
proceedings at the Meeting.
7. Within 15 days from the date of the conclusion of the Board Meeting or Committee
Meeting, the draft Minutes shall be circulated to all the Directors for their comments.
8. Proof of sending draft Minutes and its delivery shall be maintained by the company for
at least 3 years from the date of the Meeting.
9. The Directors, (whether present at the Meeting or not), shall communicate their
comments, if any, in writing on the draft Minutes within 7 days from the date of
circulation. If no comment from director, the draft minutes shall be deemed to be
approved.
3. 9


10. If any Director communicates his comments after the expiry of 7 days, if so
authorized by the Board, the Chairman shall have the discretion to consider such
comments.
11. A Director, who ceases to be a Director after a Meeting of the Board is entitled to
receive the draft Minutes of that particular Meeting and to offer comments thereon,
irrespective of whether he attended such Meeting or not.
12. Minutes shall be entered in the Minutes Book within 30 days from the date of conclusion
of the Meeting.
13. A Member of the company is not entitled to inspect the Minutes of the Meetings of
the Board.
14. The Board Report shall include a statement on compliances of applicable Secretarial
Standards.
15. In case a Meeting is adjourned, the Minutes shall be entered in respect of the original
Meeting as well as the adjourned Meeting. In respect of a Meeting convened but
adjourned for want of Quorum, a statement to that effect by the Chairman or in his
absence, by any other Director present at the Meeting shall be recorded in the Minutes.

CONTENTS OF MINUTES:
a) The names of Directors present and their mode of attendance (Physical or Video
conference).
b) If a Director participate through E Mode à his particulars, the location from where and
the agenda item in which he participated and wherever required, his consent to sign the
statutory registers to be placed in at the Meeting as per the Act.
c) The name of CS who is in attendance and Invitees, if any, for specific items and mode of
their attendance if through E - Mode.
d) Record of election, if any, of the Chairman of the Meeting.
e) Record of presence of Quorum.
f) The names of Directors who sought and were granted leave of absence.
g) The fact that an Interested Director was not participate in the discussions and did not
vote on item of business in which he was interested and in case of a Related Party
Transaction such director was not present in the meeting during discussions and voting
on such item.

3. 10


Specimen Notice of a Board Meeting

Name of the Company ...............................................
Registered Address ..................................................................
CIN - ............................. Email- ............................. Telephone: .............................
Website: .............................

NOTICE OF ....................... (SERIAL NUMBER OF MEETING) BOARD MEETING
Mr. .......................
Director,
New Delhi.
Dear Sir,
1. NOTICE is hereby given that the ................................. (serial number of Meeting) Meeting of
the Board of Directors of the company will be held on ................................. (day of the week),
the ................................. (date) ................................. (month) ...................... (year) at ......................
(a.m./p.m.) at ...................... (Venue)
2. The Agenda of the business to be transacted at the Meeting is enclosed/will follow
3. You may attend the Meeting through Electronic Mode, the details of which are enclosed.
In case you desire to participate through such mode, please send a confirmation in this
regard to .......................... (Name of Company Secretary/ Chairman/other Authorised
Person), email ......................, Tel No. ...................... within ...................... days (time frame) to
enable making necessary arrangements.
Kindly make it convenient to attend the Meeting.
Yours faithfully,
For……..Limited/Pvt Limited
(Signature)
(Name)
(Designation)
(Email, phone No.)

Agenda for the ....................... (Number) Meeting of the Board of Directors of
....................... (Company Name), to be held on ............... (Day), ....................... (Date,
Month and Year) at ....................... (Time) at ....................... (Venue)
1. Attendance and Minutes
2. Directors (including, where applicable, Alternate Directors)
3. Related party transactions
4. Shares
5. Share Capital
6. Debentures, Loans and Public Deposits
7. Long term loans from financial institutions/ banks
8. Banking Facilities
9. Investments, Loans and Guarantees
10. Review of Operations
11. Payment of interim dividend
12. Projects
3. 11


13. Capital Expenditure

14. Revenue Expenditure
15. Auditors, etc.
16. Personnel
17. Legal Matters
18. To approve agreements Restructuring
19. Delegation of Authority
20. Annual Financial Statements
21. Annual General Meeting
22. Miscellaneous matters

Important to note
1. Divide the Agenda into two parts:
I. Usual or routine items
II. Other items
a. Items for approval
b. Items for information/noting.

2. For each item of the Agenda an explanatory note should be provided with sufficient
details of the proposal, including the proposed Resolution, if any, references to the
provisions of the Companies Act and other applicable laws, the Memorandum and
Articles of Association, other relevant documents, decisions of previous Board or General
Meetings, as necessary.
3. The agenda item should be initiated by the concerned Department and approved by the
competent authority as may be decided by the Board.
4. CS should refer to the Agenda of previous Meetings, to see whether any items had been
deferred and should consider whether such items are to be included for discussion at the
ensuing Meeting.
5. A few extra copies of the Agenda should always be kept available at the Meeting.

NOTES ON AGENDA FOR THE FIRST BOARD MEETING
Item No. 1: To appoint chairman of the meeting:
Item No. 2: To note the certificate of incorporation of the company, issued by the
Registrar of Companies.
Item No. 3: To take note of Memorandum and Articles of Association of Company, as
registered.
Item No. 4: To note the situation of the registered office of the company.
Item No. 5: To note the appointment of the first directors of the Company
Item No. 6: To read and record the notices of disclosure of interest given by the Director
Item No. 7: To elect chairman, appoint Managing Director and Secretary
Item No. 8: To consider the appointment of first auditors of the company.
Item No. 9: To approve preliminary expenses and preliminary contracts.
Item No. 10: To adopt the common seal of the company.
Item No. 11: To authorise printing of the Share Certificate form.
Item No. 12: To place draft statement in lieu of prospectus.
Item No. 13: To consider plan of action for commencement of business.
Item No. 14: To place copies of agreements entered into prior to incorporation.
3. 12


Item No. 15: To appoint bankers and to open bank account of the Company.
Item No. 16: To decide payment of sitting fees
Item No. 17: To consider any other matter with the permission of the chair.

Specimen of Resolution
Resolution No. _________
........ (NAME OF COMPANY)
Mr. ......... (Director)
Dear Sir,
Resolution by circulation

The following Resolution is intended to be passed by circulation as per the provisions of
Section 175 of the Companies Act, 2013. A note explaining the urgency and necessity for
passing the said Resolution by circulation and the supporting papers (if any) are
enclosed.

“RESOLVED THAT .....................
(Resolution intended to be passed is to be reproduced)”
None of the Directors are deemed to be concerned or interested in the Resolution.
*Assent / Dissent / Require Meeting
Signature
Name
Date

Kindly indicate your response to the aforesaid Resolution, by appending your signature
and the date of signing in the space provided beneath the Resolution and return one copy
to the undersigned or by e-mail at the address mentioned below so as to reach us on or
before ........................................
Yours faithfully,
For .......................................
(Name of Company).
Company Secretary
e-mail id:
Address:
Contact No:

3. 13


SECRETARIAL STANDARD – 2
GENERAL MEETINGS

APPLICABLITY
SS – 2 is applicable to all types of GM of all type of companies except following
1. OPC
2. Sec 8 co.
3. Other notified companies
However, sec 8 co. need to comply with the applicable provisions of the act relating
to GM.

Note:
1. Principles of SS 2 are applicable mutatis mutandis to meeting of debenture holders and
Creditors.
2. A General Meeting shall be convened by or on the authority of the Board only.

FREQUECNY OF GENERAL MEETING
AGM EGM:
Every Company in each Calendar Year, The Board may also, whenever it deems
hold a General Meeting called the AGM. fit, call an EGM of the Company.

FIRST AGM:
First AGM within 9 months from the date The Board shall, on the requisition of
of closing of 1st Financial Year of the Members who hold, as on the date of the
Company. In case of 1st AGM, it is not receipt of a valid requisition can call an
necessary for the company to hold any EGM,
AGM in the calendar year of its
Incorporation. 1. In the case of Company having a Share
Capital, not less than 1/10th of the PSC
Time period of 1 AGM after Incorporation carrying Voting Rights; OR
st
of Company cannot be extended.

2. In the case of a Company not having share
SUBSEQUENT AGM: capital, not less than 1/10th of total voting
Subsequent AGM shall be hold EARLIER of power of the Company.
followings:
Ø Within 6 months from the end of each FY
OR
Ø Within 15 months from the last AGM.
Ø Extension: Not exceeding 3 Month with the
Prior approval of ROC.

1. If, on receipt of a valid requisition having been made in this behalf, the Board, within 21
days from the date of such receipt, fails to call a Meeting on any day within 45 days from
the date of receipt of such requisition.
2. The requisitionists may themselves call and hold the Meeting within 3 months from the
date of requisition, in the same manner in which the Board should have called and held
the Meeting.
3. 14


3. Such requisition shall not pertain to any item of business that is required to be transacted
mandatorily through postal ballot.

NOTICE
a. In writing
b. To every Member, Directors and Auditors, Secretarial Auditor, to Debenture Trustee, if
any, and wherever applicable or so required, to other specified persons.
c. In case of a Nidhi company, Notice may be served individually only on Members who hold
shares of more than Rs. 1000 in face value OR more than 1% of the total PSC of the
company, (w.i.l). For other Members, Notice may be served by a public notice in
newspaper circulated in the district where the Registered Office of the company is
situated and by displaying the same on the notice board of the company.
WHERE THE COMPANY HAS RECEIVED INTIMATION OF DEATH OF A MEMBER,
Notice shall be sent as under:
Ø Where securities are held singlyà To the Nominee of the single holder;
Ø Where securities are held jointly and any joint holder dies à To the surviving 1st
joint holder;
Ø Where securities are held jointly and all the joint holders dies à To the Nominee
appointed by all the joint holders.
Ø In the absence of a Nomineeà To the legal representative of the deceased Member.
Ø In case of insolvency of a Member à To the assignee of the insolvent Member.
Ø In case the Member is a company or body corporate which is being wound up à To
the liquidator.
d. By hand/ordinary post/by speed post/by registered post/by courier/by fax/by e-
mail/by any other E-mode.
e. If any other particular mode is requested by Member, he shall pay such fees as may
be determined by the company in its AGM and the Notice shall be sent to him in
such mode.
f. If company have a website, the Notice shall simultaneously be hosted on the website till
the conclusion of the Meeting. In case of a private company, the Notice shall be hosted on
the website of the company, if any, unless otherwise provided in the AOA.
g. Notice shall contain complete particulars of the venue of the Meeting including route
map and prominent land mark, if any, for easy location, except in case of -
Ø A company in which only its directors and their relatives are members,
Ø A wholly owned subsidiary (WOS)
h. An AGM and a Meeting called by the requisitionists shall be called during business hours,
i.e., between 9 a.m. and 6 p.m., on a day that is not a National Holiday.
i. AGM shall be held either at the registered office of the company or at some other place
within the city, town or village in which the registered office of the company is situated,
whereas other General Meetings may be held at any place within India.
j. BUT if called by the requisitionists, it shall be held either at the registered office of
the company or at some other place within the city, town or village in which the
registered office of the company is situated.
k. In case of a Government company, the AGM shall be held at its registered office or any
other place with the approval of the CG.
l. Notice and accompanying documents shall be given at least 21 clear days in advance of
the Meeting. For the purpose of reckoning 21 days clear Notice, the day of sending the
Notice and the day of Meeting shall not be counted. Further in case the company sends
3. 15


the Notice by post or courier, an additional 2 days shall be provided for the service
of Notice.
m. In case a valid special notice has been received from any member, the company shall
give Notice of the Resolution to all its Members at least 7 days before the Meeting,
exclusive of the day of dispatch of Notice and day of the Meeting.
n. A shorter period of time is allowed, if written consent is given by physical or electronic
means, by not less than 95 % of the entitled Members. The request for consenting to
shorter Notice and accompanying documents shall be sent together with the Notice.
o. Notice of AGM shall also specify the serial number of the Meeting.
p. Notice shall be accompanied, by an attendance slip and a Proxy form with clear
instructions for filling, stamping, singing and/ or depositing the Proxy form.
q. A meeting convened upon due notice shall not be postponed or cancelled unless there is
a sufficient reason beyond the control of BOD. Such meeting can be reconvened to
transact the original business after giving at least 3 days prior intimation individually
or through public (Newspaper) advertisement.

QUORUM OF GENERAL MEETING:
PRIVATE LIMITED:
2 Members Personally Present
PUBLIC LIMITED:
In case of Public Company “Minimum Present of Members required”
Ø 5 members personally present if the number of Members as on the date of Meeting are
up to 1000.
Ø 15 members personally present if the number of Members as on the date of Meeting are
more than 1000 but up-to 5000.
Ø 30 members personally present if the number of members as on date of the Meeting
exceeds 5000.

IMPORTANT PROVISIONS FOR QUORUM OF GENERAL MEETING
Ø Quorum shall be present not only at the time of commencement of the Meeting but
also while transacting business.
Ø Presence of a duly authorized representative body corporate, president and governor
deemed to be a Member personally present and enjoy all the rights of a Member present
in person.
Ø One person can be an authorized representative of more than one body corporate. Even
he will treat as more than one member for the purpose of Quorum but there should be at
least one more member personally present.
Ø A member who is not entitled to vote on any particular item of business being a
related party, if present shall be counted for the purpose of Quorum.
Ø Stipulation of the presence of Quorum doesn’t apply with respect to items of
business transacted through postal ballot.
Ø Members who have voted by Remote e-voting have the right to attend the General
Meeting and accordingly their presence shall be, counted for the purpose of
Quorum.

ADJOURNAMENT OF MEETING:
Ø Meeting shall stand adjourned for want of requisite Quorum.
3. 16


Ø A duly convened Meeting shall not be adjourned unless circumstances so warrant.

Ø A Chairman may also adjourn a Meeting in the event of disorder or other like causes,
when it becomes impossible to conduct the Meeting and complete its business.
Ø A Chairman may adjourn a Meeting with the consent of the Members, at which a Quorum
is present, and shall adjourn a Meeting if so directed by the Members.

QUORUM AT ADJOURNED MEETING:
1. If, at an adjourned Meeting, quorum is not present within half hour from the time
appointed, the Member present, being not less than 2 in number, will constitute the
quorum.
2. If, at an adjourned Meeting, quorum is not present within half hour from the time meeting
called by the Requisitionists, the Meeting shall stand cancelled.

NOTICE OF ADJOURNMENT OF MEETING:
IF MEETING ADJOURNED FOR PERIOD MORE THAN 30 DAYS OR SINE DIE
If a Meeting adjourned for a period of ≥ 30 days, a Notice of the adjourned meeting
shall be given as if it is a fresh General Meeting.

IF MEETING ADJOURNED FOR PERIOD ≤ 30 DAYS:
The co. shall give at least 3 days’ prior notice specifying the DAY, DATE, TIME & VENUE
of the meeting, to the members either INDIVIDUALLY or by publishing AN
ADVERTISEMENT.

IF MEETING ADJOURNED FOR WANT OF QUORUM:
If a Meeting other than an AGM and a requisitioned Meeting, stands adjourned for want
of Quorum, the adjourned Meeting shall be held on the same day, in the next week at
the same time and place or on such other day, not being a National Holiday, OR as
determined by the Board.
An adjourned AGM, (adjourned for whatever reason), shall not be held on a
National Holiday, only if any item relating to filling up of vacancy of a director
retiring by rotation is included in the agenda of such adjourned Meeting.

The company shall ensure compliance of the provisions of holding the AGM every
year, including adjournment thereof within a gap of not exceeding 15 months from
the date of the previous AGM or within such extended period permitted by the ROC.

RESOLUTION TO BE DISCUSS AT ADJOURNED MEETING:
At an adjourned Meeting, only the unfinished business of the original Meeting shall be
considered. Any Resolution passed at an adjourned meeting would be deemed to
have been passed on the date of the adjourned meeting and not on any earlier date.

DISTRIBUTION OF GIFTS:
No gifts, gifts coupons, or cash in lieu of gifts shall be distributed to Member at or
in connection with the Meeting.

PRESENCE OF DIRECTOR, COMPANY SECRETARY AND AUDITORS AT GENERAL
MEETING

3. 17


WHO SHALL PRESENT IN GENERAL MEETING ALONG WITH SHAREHOLDERS

DIRECTOR: STATUTORY AUDITOR:
Any absenteeism of director shall be It is mandatory for the Auditor to
explained by Chairman attend General meeting; Auditor can
The Director who attends the General absent himself if he get exemption from
Meeting shall seat with Chairman. the Company to attend General Meeting
OR If his authorized representative
COMPANY SECRETARY: attend the General Meeting PROVIDED
The CS shall sit with chairman AND shall Authorized representative should also
assist the Chairman in conduction the be qualified to be an Auditor.
Meeting.
SECRETARIAL AUDITOR:
CHAIRMAN OF COMMITTEE’S It is mandatory for the SA to attend AGM;
The Chairman of Committee’s and any SA can absent himself if he get exemption
other authorized member of such from the Company to attend General
Committee authorized shall attend the Meeting OR If his authorized
General Meeting. representative attend the General Meeting
PROVIDED Authorized representative
should also be qualified to be an Auditor.

The Chairman may invite the Secretarial
Auditor to attend “Any Other General
Meeting”.

DUTIES OF CHAIRMAN:
Ø The Chairman shall ensure that the Meeting is duly constituted.
Ø The Chairman shall then conduct the Meeting in a fair and impartial manner and ensure
that only such business as has been set out in Notice is transacted.
Ø The Chairman shall regulate the conduct of voting keeping in view the provisions of the
Act.
Ø The Chairman shall explain the objective and implications of the Resolution before they
are put to vote at the Meeting.
Ø In case of public co., the chairman shall not propose any resolution in which he is
deemed to be concerned or interested nor shall he conduct the proceedings for that
item of business.

PROXY:
Ø A member entitled to attend and vote is entitled to Appoint Proxy.
Ø A proxy can’t act on behalf of more than 50 members and members holding aggregate
more than 10% of the total share capital of the Company carrying voting rights. However,
a member holding more than 10% of total voting right may appoint single proxy for his
entire shareholding.
Ø If a person is appointed as proxy for more than 50 members, he shall choose ANY 50
members and shall confirm the same to company before commencement of specified
period for inspection. OTHERWISE, the company shall consider only the 1st 50 proxies
received as valid.

SIGNING OF PROXY FORM
3. 18


WHO WILL SIGN THE PROXY FORM

↓ ↓
MEMBER IS INDIVIDUAL MEMBER IS BODY CORPORATE
BY THE MEMBER, or His attorney duly If the appointer is a body corporate than
authorized in writing. the instrument of Proxy should be under
its seal and shall be signed by the: An
officer, or An attorney duly authorized by
it.

SOME SPECIAL PROVISIONS ON PROXY
Ø An instrument of proxy is valid only if it is duly stamped.
Ø Unstamped or inadequately stamped Proxies are INVALID.
Ø The proxy-holder shall prove his identity at the time of attending the Meeting.
Ø If company receive multiple proxies without date or same date, all such multiple
proxies shall be treated as invalid. Otherwise the last dated proxy shall be
considered
Ø It should be deposit with the Company at least 48 hours before the commencement of
the Meeting even on holiday.
Note: Any provision in the AOA of a company which specifies or requires a longer
period for deposit of Proxy than 48 hours before a Meeting of the company shall
have effect as if a period of 48 hours had been specified in or required for such
deposit.
Ø Proxy form can be send either in Person or Through Post.
Ø All the Proxies shall be recorded chronologically in a register kept for that purpose.
Ø In case any proxy entered in the register is rejected, the reasons therefor shall be entered
in the remarks column.
Ø If the AOA so provide, a Member who has not appointed a Proxy to attend and vote
on his behalf at a Meeting may appoint a Proxy for any adjourned Meeting, not later
than 48 hours before the time of such adjourned Meeting.

REVOCATION OF PROXY:
Ø A proxy later in date can revoke the earlier dated proxies.
Ø Proxy is valid until written notice of revocation has been received by the Company before
the commencement of the Meeting or adjourned meeting.
Ø An undated notice of revocation shall not be accepted.
Ø In the case of joint membership, a notice of revocation of proxy shall be signed by the
same Member, who had signed the proxy.
Ø When both the Member and Proxy attend the Meeting, the proxy stand automatically
revoked.

Inspection of proxies
1. Requisitions for inspection shall be sent in writing at least 3 days before
commencement of meeting.
2. Proxy list shall be available for inspection during the period beginning 24 hours before
the commencement of the Meeting and Ending with the conclusion of the Meeting
Between 9 a.m. to 6 p.m.
3. If meeting is adjourned a fresh requisition is required to be made to inspect the
proxy list
3. 19


VOTING
1. Every Resolution shall be proposed by a Member and seconded by another
Member.
2. Every Listed company other than companies whose equity shares are listed on SME
Exchange or on the Institutional Trading Platform and other companies as
prescribed shall provide e-voting facility to their Members to exercise their Voting
Rights.
3. The result of the voting along with the scrutinizer’s report shall be displayed for at least
3 days on the Notice Board of the company at its Registered Office and its Head Office as
well as Corporate Office, if any, if such office is situated elsewhere, and also be placed on
the website of the company, in case of companies having a website.
4. Every company, which has provided e-voting facility to its Members, shall also put every
Resolution to vote through a ballot process at the Meeting. Ballot process may be carried
out by distributing ballot/ poll slips or by making arrangement for voting through
computer or secure electronic systems. Any Member, who has already exercised his votes
through Remote e-voting, may attend the Meeting but is prohibited to vote at the Meeting
and his vote, if any, cast at the Meeting shall be treated as invalid. A Proxy can vote in the
ballot process.
5. Nidhis are not required to provide e-voting facility to their Members.
6. In case of a private company, a member who is a related party is entitled to vote on
such Resolution.
7. A member who is a related party is entitled to vote on a Resolution pertaining to approval
of any contract or arrangement to be entered into by:
(a) A Government company with any other Government company; or
(b) An unlisted Government company with the prior approval of competent authority,
other than those contract or arrangements referred in clause (a)

CONDUCT OF POLL
When a poll is demanded on any Resolution, the Chairman shall get the validity of the
demand verified and, if the demand is valid,
ü shall order the poll forthwith, if it is demanded on the question of appointment of the
Chairman or adjournment of the Meeting and,
ü In any other case, within 48 hours of the demand for poll.

Each Resolution put to vote by poll shall be put to vote separately. One ballot paper
may be used for more than one item.

DECLARATION OF RESULTS
1. The scrutinizer’s report within 7 days from the last date of the poll to the Chairman who
shall countersign the same and
2. Declare the result of the poll within 2 days of the submission of report by the
scrutinizer, with details of
Ø The number of votes cast for and against the Resolution,
Ø Invalid votes and
Ø Whether the Resolution has been carried or not.

3. 20


If Chairman is not available, scrutinizer’s Report shall be submitted to any

authorized person, who shall countersign the scrutinizer’s report on behalf of the
Chairman.

PASSING OF RESOLUTIONS BY POSTAL BALLOT
1. Every company, (except a company having ≤ 200 Members) shall transact items of
business as prescribed, only by means of postal ballot instead of transacting such
business at a General Meeting.
Note: Ordinary Business shall not be transacted by means of a postal ballot.
2. The Notice shall be accompanied by the postal ballot form with the necessary
instructions for filling, signing and returning the same.
3. Notice of the postal ballot shall inform the Members about availability of e-voting
facility, if any, and provide necessary information thereof to enable them to access
such facility.
4. The postal ballot form shall be accompanied by a postage prepaid reply envelope
addressed to the scrutinizer.
5. A single postal ballot Form may provide for multiple items of business to be transacted.
6. A Resolution passed by postal ballot shall not be rescinded otherwise than by a
Resolution passed subsequently through postal ballot
7. No amendment or modification shall be made to any Resolution circulated to the
Members for passing by means of postal ballot.

WHEN A POSTAL BALLOT FORM SHALL BE CONSIDERED INVALID
Ø Any form used other than one issued by the company.
Ø It has not been signed by or on behalf of the Member
Ø Signature on the postal ballot form doesn’t match the specimen signatures with the
company
Ø It is not possible to determine without any doubt the assent or dissent of the
Member;
Ø Neither assent nor dissent is mentioned;
Ø Any competent authority has given directions in writing to the company to freeze the
Voting Rights of the Members.
Ø The envelope containing the postal ballot form is received after the last date
prescribed
Ø It is received from a Member who is in arrears of payment of calls.
Ø It is defaced or mutilated in such a way that its identity as a genuine form cannot be
established

MINUTES
Every company shall keep Minutes of all Meetings. Minutes kept in accordance with the
provisions of the Act evidence the proceedings recorded therein. Minutes help in
understanding the deliberations and decisions taken at the Meeting.

IMPORTANT PROVISIONS
1. A distinct Minutes Book shall be maintained for Meetings of the Members of the
company, creditors and others as may be required under the Act. The pages of the
Minutes Books shall be consecutively numbered.
3. 21


2. Minutes of Meetings, if maintained in loose-leaf form, shall be bound periodically at

least once in every 3 years.
3. Minutes shall state, at the beginning the Meeting, name of the company, day, date,
venue and time of commencement and conclusion of the Meeting.
4. Minutes of AGM shall also state the serial number of the Meeting.
5. Minutes shall record the names of the Directors and the Company Secretary present at
the Meeting.
6. The CS shall record the proceedings of the Meetings. If there is no Company Secretary,
any other authorized person shall record the proceedings.
7. Minutes shall be written in 3rd person and past tense. Resolutions shall however be
written in present tense. Minutes need not be an exact transcript of the
proceedings at the Meeting.
8. Minutes shall be entered in the Minutes Book within 30 days from the date of
conclusion of the Meeting.
9. Minutes of a General Meeting shall be signed and dated by the Chairman of the Meeting
or in the event of death or inability of that Chairman, by any Director who was present
in the Meeting and duly authorized by the Board for the purpose.
10. The Chairman shall initial each page of the Minutes, sign the last page and append to
such signature the date on which and the place where he has signed the Minutes.
11. If the Minutes are maintained in electronic form, the Chairman shall sign the Minutes
digitally.
12. Minutes of all Meetings shall be preserved permanently in physical or in electronic
form.
13. Minutes Books shall be kept in the custody of the CS or any authorized Director.
14. A company may maintain its Minutes in physical or in electronic form.
15. Minutes Books shall be kept at the Registered Office of the company.

Resolutions
ü Resolutions for items of business which are likely to affect the market price of the
securities of the company shall not be withdrawn.
ü Further, any resolution proposed for consideration through e-voting shall not be
withdrawn.
ü A Resolution passed at a Meeting shall not be rescinded otherwise than by a Resolution
passed at a subsequent Meeting.
ü Modifications to any Resolution which do not change the purpose of the Resolution
materially may be proposed, seconded and adopted by the requisite majority at the
Meeting and, thereafter, the modified Resolution shall be duly proposed, seconded and
put to vote.
ü No modification to any proposed text of the Resolution shall be made if it in any way alters
the substance of the Resolution as set out in the Notice. Grammatical, clerical, factual and
typographical errors, if any, may be corrected as deemed fit by the Chairman.
ü No modification shall be made to any Resolution which has already been put to vote by
Remote e-voting before the Meeting.

Reading of Reports
The qualifications, observations or comments or other remarks, if any, mentioned in the
Auditor’s Report on the financial transaction or Secretarial audit report issued by PCS,
which have any adverse effect on the functioning of the company shall be read at the AGM
3. 22


and attention of the Members present shall be drawn to the explanations/ comments
given by the Board of Directors in their report.

3. 23


PRACTICAL ASPECTS OF DRAFTING RESOLUTIONS AND MINUTES

Resolutions (Important Points)
1. All resolutions, should be drafted in clear and distinct terms.
2. All essential facts are included in the resolution
3. Immaterial and meaningless words or phrases should not be included in resolutions.
4. Reference to documents approved at a meeting should be clearly identified
5. Resolutions must indicate the relevant provisions or sections of the Act and the Rules
pursuant to which they are being passed.
6. If a resolution is one which requires the approval of the Central Government or
confirmation of the National Company Law Tribunal/Court, this must be stated in the
resolution.
7. A resolution must indicate when it will become effective.
8. A resolution must confine itself to one subject matter and two distinct matters should
not be covered in one resolution.
9. A resolution should be crisp, concise and precise and should be flexible enough to take
care of eventualities.
10. Lengthy resolutions shall be divided into paragraphs and should be arranged in their
logical order having regard to the subject matter of the resolution.
11. Resolution use to be closed within “…….” (inverted quomas)
12. It use to begin with “RESOLVED THAT……….
13. In case of resolution passed at general meeting, it shall be specifically mentioned in
the notice convening the meeting that whether it is Ordinary resolution or Special
resolution.
14. For filing forms with ROC and other authorities, authorize a person

Resolution passed in General Meeting
Matters requiring sanction by Ordinary Resolution (Unless otherwise specified in
the AOA)
i. To change name applied by furnishing wrong or incorrect information [Section
4(5)(ii)]
ii. To rectify the name of the company [Section 16(1)];
iii. After the Capital Clause of MOA for Limited Company having share capital [Section
13]
iv. Conversion of unlimited company into limited company [Section 65]
v. Acceptance of public deposit [Section 73(2)]
vi. Authorize a representative to participate in a general meeting [Section 113(1)]
vii. Appointment of auditor [Section 39]
viii. Removal of a Director [Section 169(1)]
ix. Company to have Board of directors [Section 149]
x. Appointment of directors [Section 152]
xi. Appointment of managing or whole time director [Section 196(4)]
xii. Re – appointment of retiring director
xiii. Remuneration of director [Section 197]
xiv. Related Party Transaction in certain companies or above certain threshold limit
[Section 188(1)]
Matters requiring Special Resolution
3. 24


1. Alteration of AOA under entrenchment [Sec 5(3)

2. Shifting of Registered Office outside local limit [Sec 12(5)]
3. Alteration of MOA [Sec 13(1)
4. Change in object clause where money raised from public through prospectus and still
has unutilized amount out of the money so raised [Sec 13(8)]
5. Conversion of private company into public company and vice versa [Sec 14(1)]
6. Conversion of private company into OPC
7. Variation in the terms of a contract referred to in the prospectus or objects for which
the prospectus was issued [Sec 27(1)]
8. Issue of Global Depository Receipt [Sec 41]
9. Variation of Shareholders rights[Sec 48(1)]
10. Issue of sweet equity shares [Sec 54(1)]
11. Issue of share capital under ESOS [Sec 62(1)(b)]
12. Issue of share capital to any person other than members or employees [Sec 62(1)(c)]
13. Issue of convertible debenture [Sec 62(1)(c)]
14. Reduction of Share Capital [Sec 66(1)]
15. Funding of purchase of share by trust for benefit of employees [Sec 67(3)]
16. Buy back of shares other than through Board Resolution [Sec 68(2)]
17. Issue of Convertible Debenture [Sec 71(1)]
18. Place of keeping registers and returns other than registered office [Sec 94(1)]
19. Removal of auditor before expiry of term [Sec 140(1)]
20. Appointment of more than 15 directors [Sec 149(1)] and
21. Re- appointment of retiring independent director [Sec 149(10)]
22. Specify a lesser number of companies in which a director may be a director [Sec
165(2)]
23. Exercise of restricted powers by Board [Sec 180(1)]
24. Approval of certain non – cash transaction with directors [Sec 192(1)
25. Appointment of MD or WTD or manager who has attained age of 70 [Sec 196(2)]
26. Appointment of MD or WTD or manager on certain terms [Sec 197(4)]
27. Request for investigation of affairs of the Company [Sec 210(1)]
28. Removal of the name of the company from the Register of Companies [Sec 248(2)]
29. Resolution for winding up of company by Tribunal [Sec 271(1)]
30. Applicability of Table – F of Schedule – I on company registered under Part – I of
Chapter – XXI [Section 371(3)]

Matters requiring Special Notice
i. Resolution for appointment of an auditors other the retiring auditor at an AGM
[Section 140(4)].
ii. Resolution at an AGM to provide that a retiring auditor shall not be re-appointed
[Section 140].
iii. Resolution to remove a director before the expiry of his period of office [Sec
169(2)]
iv. Resolution to appoint another director in place of the removed director [(Section
169(5)]

3. 25

Drafting - 1
DRAFTING AND CONVEYANCING RELATING

TO VARIOUS DEEDS AND AGREEMENT

AGREEMENT:
An agreement, which is enforceable by law, is called a contract. Generally, when
a contract is reduced to writing, the document itself is called an agreement.

FORM OF CONTRACT

There is no particular form prescribed but they must fulfill all the essential
requirements of a valid contract under the law applicable to the contract. If the
law requires any particular category of contracts to be in writing or to be
registered, these formalities must be complied with. It may be hand written,
type written or printed. It may be in brief or in detail.

It is essential that companies in both domestic and international contracts
should incorporate precise and comprehensive terms and conditions relating to
the subject matter and performance of the contract. In sale-purchase contracts
well defined provisions relating to the quality and quantity of the goods, the
shipment period, price (C.I.F./C&F/F.O.B etc.), delivery, port of shipment and of
destination packing and marketing, mode of payment, insurance,
brokerage/commission etc. should also be stipulated.

IMPORTANT POINTS TO BE CONSIDERED WHILE DRAFTING CONTRACTS

Description of Full description with Name, status, address & registered office (if co.).
Parties to the In case of an individual, father’s name and in case of a company, the
Contract: place where registered office is situated be also given. In case of firms
and companies the particulars of persons representing them be
invariably given including details of particulars of the firm.
Legal Nature Whether it is a sale/purchase contract or a commercial agency
of the contract or a contract for technical assistance and advice or building
Contract: construction and erection contract, etc. so as to avoid any doubt as
regards the nature of the contract and the legal position of the parties
there under.

Licenses and It is desirable to provide particularly in international trade contracts
4. 1

Drafting - 1
Permits: as to which party would be responsible for obtaining export/import
licences and the effects of delay, refusal or withdrawal of a license by
Government authority, etc. It is generally the commercial practice to
provide that each party to the contract may obtain the requisite
licenses in its own country.

Shipment of the It is desirable to stipulate precise particulars regarding the rights and
Goods: duties of the parties towards shipment of the goods, i.e., the time,
date and port of shipment, name of the ship and other ship
particulars. It may also be stipulated as to whether and up to what
time the shipment may be delayed by the seller. Sometimes a penalty
is provided for delay in shipment according to the time of delay.

Documentation: In modern business transactions, it is sometimes necessary for the
seller to supply detailed specifications, literature, etc. relating to the
goods particularly. If the goods are of scientific or technical nature. It
is also desirable to provide that the technical and confidential
information contained in the documentation to be kept confidential
by the buyer and that it will not be transmitted by him to a third-
party without the permission of the seller.

Guarantee: Sometimes the goods sold are of such a nature that the buyer insists
for guarantee regarding their use and performance for a particular
period. Under a guarantee clause, the seller is held responsible for the
defects appearing in the goods during the period of the guarantee.
The seller is usually given an option to remove the defects in the
goods either by replacement or by repair.

Passing of the It is very important to provide for the exact point of time when the
Property and title or the property in the goods and the risk will pass from the seller
Passing of the to the buyer. This is important to ascertain as to whether the seller or
Risks: the party will be responsible for the damage or lossto the goods
during transit at a particular point of time.

Amount, Mode Modes of payment may be on D/A or D/P basis or it may be a Letter
and .Currency of Credit or otherwise as per the agreement of the parties. One of the
of Payment: most important matter which needs to be provided in international
contracts relates to the exchange rate.

Force Majaure: Majaure or excuses for non-performance. This provision defines as to
what particular circumstances or events beyond the control of the
4. 2

Drafting - 1
seller would entitle him to delay or refuse the performance of the
contract, without incurring liability for damage. It is usual to list the
exact circumstances or events, like strike, lockout, riot, civil
commotion.

Proper Law of When both the parties to a contract are resident in the same country,
Contract: the contract is 'governed by the laws of the same country. However,
in international contracts, the parties are subject to different legal
systems and, therefore, they have to choose a legal system which will
govern the rights and duties of the parties. It is necessary to stipulate
the proper law of contract in international contracts. Especially that
which legal system to be followed.

Settlement of It is usual to provide for an arbitration clause in the contract,
Disputes and particularly under the auspices of an arbitral institution. A suitable
Arbitration: arbitration clause may be provided by the parties by mutual
agreement. It is also desirable to provide for the mode of
appointment of arbitrator and also for the venue of the arbitration in
the clause.

Where Company is a Party to an Agreement
Any agreement on behalf of the company can be signed by any director, officer
or any other person so specifically or generally authorized by the Board of
directors. The putting of seal of the company on agreements entered on behalf of
the company is governed by the provisions in the Articles of Association of the
company and/or by BR. However, non-putting of seal or an agreement may not
invalidate the agreement if it has been properly executed.

If a document purported to be sealed or signed on behalf of the company is

proved to be forged, it does not bind the company. But the company may be
stopped from disclaiming document as a forgery, if it has been put forward as
genuine by an official acting within his actual, usual, or apparent authority
[Naguneri Peace Memorial Cooperative Urban Bank Ltd. v.
AlameluAmmal].

TERMS AND CONDITIONS IN THE AGREEMENT TO
SELL/PURCHASE
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a) The vendor shall have a marketable title in the property agreed to be sold/
purchased and that the vendor shall produced the title deeds relating to the
property to the purchaser for his inspection or in any other manner.
b) If the property, agreed to be sold is a part of a larger property, an agreement
as to retention of a particular or all the title deeds to the property by a party
should be arrived at and incorporated in the agreement to sell/purchase.
c) If the property is subject to any prior charge or encumbrance should be
properly mentioned.
d) The mode of payment of the price or the balance thereof, if some earnest
money or deposit has been paid, should also be stipulated in the agreement.
Liability liable to pay rates, rents, taxes or other imposts during execution of
deed.
e) The parties should agree as to the point of time of possession of the property
to pass.
f) The parties should also agree as to who shall bear the cost and expense of
execution and registration and in which ratio.
g) If any broker is involved in the transaction, the agreement should clearly
spell out if any brokerage is payable, and by whom and at what rate, and at
what point of time.
h) Any amount of Brokerage or commission if payable.
FORMAT OF AGREEMENT OF SALE OF HOUSE PROPERTY

THIS SALE AGREEMENT executed on this _________________ day, 15th day of
March, 2015, at ___________________ between:

Mr. Amitabh Bacchan son of Mr. Harvansh Rai Bacchan residing at Mannat villa
(hereinafter called the vendor) OF THE ONE PART which expression shall
include their respective heirs, executors, administrators, legal representatives
and assigns unless repugnant to the context
AND
Ms. Jaya Bhaduri daughter of Mr. Arvind Bhaduri resident at __________
(hereinafter called the purchaser) OF THE OTHER PART, which expression
shall include their respective heirs, executors, administrators, legal
representatives and assigns unless repugnant to the context

WHEREAS the vendor is the sole and absolute owner of the property more fully
set out in the Schedule hereunder

AND WHEREAS it is agreed that the vendor shall sell and the purchaser shall
purchase the said property for a sum of Rs25, 00,000 (Rupees twenty-Five
Lakhs) free of all encumbrances.
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NOW THIS AGREEMENT WITNESSETH AS FOLLOWS:
1. The price of property is fixed at Rs. 25, 00,000 (Rs. Twenty-five lakhs) free
from all encumbrances & liabilities.
2. The purchaser has paid to the vendor this day, a sum of Rs10, 00,000 (Rs. Ten
Lakhs) by way of earnest money for the due performance of the agreement,
the receipt whereof the vendor doth hereby admit and acknowledge.
3. The agreement shall be performed within 6 months from the date hereof and
it is agreed that the time fixed herein for performance shall be of the essence
of this agreement.
4. The purchaser shall pay to the vendor the balance sale price of Rs15,00,000
(Rupees Fifteen Lakhs) before registration of the conveyance deed.
5. The vendor shall hand over all the title deeds of the property to the purchaser
or an advocate nominated by him within 7 days from the date of this
agreement for scrutiny of title and the opinion of the vendor’s advocate
regarding title to the property shall be final and conclusive. The purchaser
shall duly intimate the vendor about the approval of title within 7 days after
delivering the title deeds to him or to his advocate.
6. If the vendor’s title to the property is not approved by the purchaser, the
vendor shall refund the purchaser the earnest money received by him under
the agreement and on failure of the vendor to refund the same within 10
days, he shall be liable to repay the same with interest thereon at the rate of
5% per annum.
7. If the purchaser commits a breach of the agreement, he shall forfeit the
earnest amount paid by him to the vendor.
8. If the vendor commits a breach of the agreement, the vendor shall not only
refund to the purchaser the amount received by him as earnest money, but
shall also pay to the purchaser an equal sum by way of liquidated damages.
9. Any disputed arising under this agreement shall be referred to a single
arbitrator to be appointed by the parties.
10. The parties aforesaid hereto hereby mutually agree with each other.

In witness whereof both the parties have set their respective hands to the
agreement of sale/purchase on the day, month and the year above written, in
the presence of the following witnesses:
Witnesses:
(1) Name:
Father’s Name:
Address:
Signature: Vendor
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(2) Name:
Father’s Name:
Address:
Signature: Purchaser

Annexure:
Schedule of Property

House No…………….……………... situated in…………..…………….……………...
On its North is…………………….…………….………….....
South is…………….…………….…………………....
East is…………….…………….……………………...
West is…………….…………….……………………...

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BUILDING CONTRACTS
Building contracts, being legal documents, have to be drawn in accordance with
the provisions of the Indian Contract Act. Such an agreement must have all the
essential ingredients of a contract.

SPECIMEN OF A BUILDING CONTRACT
THIS BUILDING AGREEMENT is executed on this Sunday, 11th day of March
2015 at __________ by and between:

AA Ltd., a company incorporated under the Companies Act, 1956 or 2013,
having its Registered Office at ____________ acting through Shri Praveen
Choudhary, its Company Secretary, (hereinafter called “the builder”), which
term shall, unless repugnant to the context, include its legal representatives, of
the one part
AND
Shri Mohan Lal son of Shri SohanLal resident of _____________ (hereinafter called
“the owner”), which term shall, unless the context otherwise admits, include his
heirs, executors, administrators, legal representatives, nominees and assigns, of
the other part.

WHEREAS the owner has a plot of land measuring 1500 sq. ft. situated at
Ramdaspeth (as specified in Schedule I) duly registered in his own name with
the rights, title and interest therein absolutely vesting in him;

AND WHEREAS the owner has requested the builder to build a bungalow on the
said piece of land according to the plan approved by the Municipal authorities, of
the area.

AND WHEREAS the builder has agreed to build the desired bungalow on the
terms and conditions as contained in this agreement.

NOW THIS AGREEMENT HEREBY WITNESSES AS FOLLOWS
1. The builder will build and complete the bungalow within 12 months from the
date of execution hereof in a thorough manner and with the best material and
work as specified in Schedule II hereof.
2. Subject to the conditions hereinafter contained, the owner will pay to the
builder a sum of Rs. 50,00,000 (Rs. Fifty Lakhs only) as combined cost of
completion of the construction of the bungalow including interiors as
specified in Schedule II as per specifications of the architect of the owner.
The payment will be made in following manner:
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ü Construction up to plinth level – 10% of the total contract amount.
ü Completion of walls up to roof level – 15% of the total contract amount.
ü Completion of roof slab of the entire structure of the bungalow – 30% of
the total contract amount.
ü Fixing of shutters of doors, windows, completion of wooden almirahs,
pelmets and all other wood work – 20% of the total contract amount.
ü Finishing of the entire construction and fixing of electrical and sanitary
fittings – 15% of the total contract amount.
ü After receipt of Completion Certificate from the Municipal authorities -
Balance amount of the contract money.
3. It is expressly, agreed between both the parties that time is the essence of
this agreement.
4. The builder will do and perform all works incidental to the proper execution
and completion of the bungalow.
5. The builder will permit the owner, his representatives and his architect to
have access to the works while the same are under construction and to
inspect the same so as to make sure that the construction work is being done
according to sanctioned plan and materials are being used as per
specifications given by the architect.
6. While the bungalow is in the course of construction and until the owner takes
over the same, all materials used or to be used in the construction, shall
remain at the builder’s risk.
7. The owner will not be entitled to take possession of the bungalow until the
entire amount is paid within the time stipulated hereinabove.
8. The owner shall make payments of all the amounts in respect of the said
bungalow towards water and electricity deposits etc.
9. It is agreed by the owner that any amount that will be due and payable to the
builder as mentioned in this agreement shall be treated as a charge on the
bungalow till such time the same is paid in full.
10. If the owner requires any additional or extra items of work to be carried on
by the builder in the bungalow, other than the above specified works, the
builder should be informed by the owner in advance and the cost and/or
difference of cost for such items of work as per rates mutually agreed upon
should be paid by the owner to the builder in advance.
In Witness Whereof, the parties afore-mentioned have signed this deed in token
of acceptance of the terms thereof.
Witnesses:
(1) Name:
Father’s Name:
Address:
Signature: Owner
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(2) Name:
Father’s Name:
Address:
Signature: Builder

SCHEDULE I
Details of the plot of land upon which the bungalow is to be built by the builder
for the owner:

Plot No…….……………… measuring…….……… situated at __________
Street…….………………..
Road…….…………………
Bounded on East…….……………….…………….………….....
West…………….…………….……………………...
North…………….…………….……………………...
South….………….…………….…………………....
Within the district of…….………………
Schedule II
Details of the interiors
Foundation and super structure
Flooring
Almirah, doors and windows
Electricals
Water supply
Kitchen
Other details

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COMMERCIAL AGENCY CONTRACTS
Business conducted through the agency of independent agents appointed for the
purpose. Who will locate customers for the principal's goods and in certain
conditions would have an implied authority to deal with the goods of the
principal, allow credit terms to customers and receive payment from the
customers on behalf of the principal. The rights and duties of the principal and
his agent abroad would be governed by the contract of agency concluded
between them. Commercial agency contracts exhibit certain peculiar
characteristics of their own and their terms and conditions are substantially
different from those of a sale purchase or other trade contracts.

Provisions to be taken care of
ü Date of commencement or termination of the agency.
ü The goods or products to be covered by the agency.
ü The contractual territory.
ü The nature of the agency (sole or exclusive agency, etc.)
ü The rate and basis of commission payable.
ü Conditions regarding the reimbursement of expenses incurred by the agent;
payment of commission on orders and commission on repeat orders.

NOTE:
1. The commission may be calculated on the gross amount or the net amount of
the invoice. The currency of payment of the commission and the rate of
exchange applicable also be mentioned.
2. Permission of the Reserve Bank of India may be required for fixing the rate
and remittance of the commission to foreign agents.
Whether the agent may or may not make binding agreements on behalf of the
principal. It is usual to provide in the agency contracts that the agent shall
guarantee certain minimum sales turnover over a given period.

The duties of the agent –
Ø Not to divulge confidential information of the principal to 3rd-parties.
Ø Not to make secret profits or accept bribes.
Ø To use all reasonable diligence.
Ø Disclose all material facts and
Ø Be accountable to the principal for all monies received by him on behalf of the
principal.
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If the agreement is between the parties of different countries, it is essential to
ensure that nothing contained in such a contract shall be repugnant to
imperative provisions of the law of any country in which such a contract or any
part thereof has to be carried into effect.

Del - Credere agency:

There is a special type of agency, which combines agency with guarantee. This is
known as del-Credere agency. It is an arrangement where the agency is
combined with guarantee. Del Credere agent is one who, for an extra
remuneration undertakes the liability to guarantee the due performance of the
contract by the buyer. By reason of his charging a Del Credere commission he
assumes responsibility for the solvency and performance of the contract by the
vendee and thus indemnifies his principal against loss. He therefore gives an
additional security to the seller, but he does not shift the responsibility of
payment from the buyer to the seller. A commission Del-Credere is the premium
or price given by the principal to the agent for guarantee, which presupposes a
guarantee.

A del-Credere agent like any other agent is to sell according to the instructions of
his principal, to make such contract as he is authorized to make for his principal
and be bound, as soon as he receives the money, to hand it over to the principal.
He is distinguished from other agents simply in this sense that he guarantees
that those persons to whom he sells, perform the contracts, which he makes
with them.

A SPECIMEN OF AN AGENCY CONTRACT
THIS AGENCY AGREEMENT, executed on this Thursday, 20th day of March, 2015
at ______ by and between:

Mr. Shahid Kapoor son of Mr. Pankaj Kapoor, resident of ______________ hereinafter
called as ‘the principal’, which term shall, unless repugnant to the context,
include its legal representatives of the one part
And
Mr. Saif Ali Khan, son of Mr. Patodi Khan, resident of _________________ herein after
called ‘the agent’ which term shall, unless repugnant to the context, include its
legal representatives of the other part.

WHEREAS the principal is proposing to appoint the agent for carrying out the
work on such terms and condition more specifically described in this agreement.
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AND WHEREAS, the agent after having considered the proposal of the principal
has agreed to act as agent of the principal on the terms and condition as
contained in this contract.

NOW THIS DEED WITNESS AS FOLLOWS:
1. That the agent is hereby appointed the sole agent of the principal for Nagpur
(Hereinafter called “the agency town”) for the purpose of making sales of the
principal’s goods for a term of 5 years commencing from the date hereof on
the terms and conditions set forth hereunder.
2. That the agent shall not, while selling the principal’s goods make any
representation in the trade or give any warranty other than those contained
in the principal’s printed price list.
3. That the agent shall be allowed to deduct and retain as his agency
commission with himself 6% of the list price of all goods sold on behalf of the
principal.
4. The agent shall keep a record of all sales and shall regularly remit to the
principal on each Saturday all sums received by the agent in respect of such
sales less his agency commission.
5. All sales shall be made for cash against delivery of goods unless the
principal’s consent in writing to give credit to any particular purchaser be in
any case first obtained and in the case of such credit sales the principal may
direct for such increase in the price of his goods over and above the current
list price of the principal.
6. That the agent shall not make purchases on behalf of nor in any manner
pledge the credit of the principal without the consent in writing of the
principal.
7. That the agent shall, at the expense of the principal, take on rent and occupy
for the purpose of the agency, suitable premises with prior approval of the
principal and shall keep insured for full value against all available risks, all
the goods entrusted to his custody by the principal under this agreement and
on request, shall produce to the principal, receipts, for the rent, rates and
taxes of the said premises and for the premiums on insurance policies
showing that the same have been paid on or about their respective due dates.
That the agent shall bear all expenses relating to or incidental to the said
agency.
8. That the agent shall, in all his commercial dealings and on documents and on
the name-plate or letterhead indicating his place of business, describe him as
selling agent for the principal.
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9. That all goods shall be sold by the agent for delivery at agent’s place or
business but the agent shall, at his own expense, have the right to deliver
goods to purchasers at their places of business.
10. That in the event of any dispute arising out of or in relation to or touching
upon the agreement, the same shall be decided by arbitration in accordance
with the provisions of the Arbitration and Conciliation Act, 1996.
11. That the principal shall be entitled to terminate this agreement by one
month’s notice in writing to the agent in the event of his ceasing to carry on
the said business of the principal.
In Witness Whereof the parties have signed this deed on the day, date and year
mentioned above in presence of following witnesses:
Sd/-
Witness 1 Principal

Sd/-
Witness 2 Agent

SOLE SELLING AGREEMENT—WHERE A COMPANY IS
PRINCIPAL

If in the above mentioned agreement of sole selling agency, the principal is a
company, then as per provisions of Companies Act, one more clause must be
added as under:

“This agreement ceases to be valid if it is not approved by the shareholders of
the principal in first general meeting held after the date of this agreement”.

The above provisions are mandatory and if the directors enter into sole selling
agreement without the above condition, the appointment is void ab-initio.
Therefore, the shareholders cannot ratify such an agreement.
[ShalagramJhajharia v. National Co. Ltd.,]

Collaboration Agreement

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When two parties enter in contract for technical know–how, technical design,
drawings, training of technical personnel, research or development or such
other things, they are said to be collaboration in a desired venture.

In general, the word collaboration means a co-operation agreement between a
party within India and a party situated abroad. Such agreements are also known
as foreign collaboration Agreements.

Guidelines for entering into Foreign Collaboration
Agreements:
1. Investments à Value of shares to be acquired by the parties involved in
collaboration.
2. Lump sum payment à
Ø 1/3rd to be paid after the agreement has been approved by the CG.
Ø 1/3rd transfer of technical documents.
Ø 1/3rd on the commencement of commercial production.
3. Royalty à On the basis of (net ex-factory selling price – excise duty & cost
of imported components), rate of royalty may be 3% to 5%, depending on
the nature & extent of the technology involved.
4. Duration of agreement à Normal 8 yr. maximum 10 yr.
Governments approve usually 5 yr. from DOC of commercial production not
exceeding 8 yr. in total from the date of Agreement.
5. Renewal or extension of agreementà Extension of its period on merit.
6. Remittances à On the basis of prevailing exchange rates.
7. Sub licensing need not to normally impose any restriction subject to the
CG’s approval.
8. Exportsà No foreign collaboration agreement shall be allowed to contain
any restriction on the free export to all countries.
9. Procurement of cap. Goods etc. à The Indian collaborator must be free to
have control over pricing facility and selling arrangements.
10. Technicians à As approve by the Reserve Bank of India.
11. Training à Adequate facilities for training of Indian technicians for R&D.
12. Consultancy à It should be from Indian co. At least prime consultant
should be an Indian company in special circumstances.
13. Brand name à No insistence on the use of foreign brand names on
products from sale in India, no objection for use of name on products to be
exported to other countries.
14. Applicable Law à For resolving the disputes, which may arise.
15. Approval of Central Government.

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A Specimen Collaboration Agreement

THIS AGREEMENT executed this…………..….…………. day of…………..….…………. by
and between:

XYZ Ltd., a Foreign Company incorporated in the United Kingdom and having its
registered office at _______________ hereinafter called the U.K. Company of the ONE
PART and the term unless repugnant to the context otherwise shall also includes
its executor or any other person authorized by it on its behalf.
AND
ABC Ltd., a company incorporated in India and having its registered office at
________hereinafter called the Indian company of the OTHER PART and the term
unless repugnant to the context otherwise shall also includes its executor or any
other person authorized by it on its behalf.

WHEREAS the Indian company has been incorporated having for its object the
manufacture and production of __________________;

AND WHEREAS the Indian company has already constructed factory buildings,
installed plant and machinery and commenced manufacture and production
of_______________________;

AND WHEREAS the Indian company with a view to improve still further the
quality of the commodities manufactured and to increase production are
desirous of procuring the latest technique and know-how relates to the
manufacture of the above-said commodities;

AND WHEREAS the Indian company therefore approached the U.K. company
who have considerable experience in the line of manufacture engaged in by the
Indian company, and requested them to extend to them necessary technical
assistance in that behalf;

AND WHEREAS the U.K. company has agreed to extend technical assistance and
to furnish to the Indian company for improvement of their business the requisite
know-how in the form of designs, plans, engineering drawings, technical advice
and also to supply technicians to advice for improvement of the existing
factories, machineries and plant and also to provide to the Indian personnel
necessary technical training to enable them to successfully handle and exploit
the technical know-how to be imparted to the Indian company subject to the
terms and conditions set out hereunder:
NOW THIS AGREEMENT WITNESSES AS FOLLOWS:
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1. In consideration of the remuneration paid by the Indian company to the U.K.
company as described hereinafter the U.K. company shall supply to the Indian
company:
Ø Technical advice and know-how for the purpose of improving or adding to
the existing factories and installing additional plant and machineries if
necessary for the manufacture of…………..….………….;
Ø Further the necessary plans, factory-design and layouts, charts and
drawings, documentation and other forms of technical know-how for the
said purpose;
Ø Render advice in the matter of purchase of the further plant and machinery
suitable and necessary for the factory;
Ø Lend the services of their technicians to assist the Indian company in
carrying out the improvement to the factories and for installing additional
plants and machinery;
Ø Provide technicians from their own staff to attend at the Indian company’s
factory in India whenever necessary;
Ø Impart technical training to selected Indian personnel at their works in
England or in their associated companies, to enable them to operate the
machinery and plant to be installed and to exploit the imported technical
know-how to the best advantage;
2. Advise the Indian company, promptly and to the best of their ability, in
connection with any technical or manufacturing problems or difficulties,
which the Indian company may refer to it during the continuance of this
agreement.
3. For technical know-how and data supplied by the U.K. company to the Indian
company as above, the Indian company shall make a lump sum payment of
Rs…………..….…………. to the U.K. company phased as follows:
Ø 1/3rd on approval of the agreement by the Central Government;
Ø 1/3rd, on the U.K. company supplying the Indian company necessary
charts, plans, engineering drawings, documentation and other technical
data and know-how, which shall be done within 15 days from the date of
approval, of this agreement by the Central Government;
Ø The balance 1/3rd in three equal annual installments thereafter after
commencement of production.
4. This Agreement shall be in force for a period of 5 years at the first instance,
subject to extension for a further period of 5 years by mutual agreement and
subject to approval by the Central Government.
5. The Indian company may but not bound to use foreign brand names on their
products for internal sale or on products to be exported.
6. There shall be no restriction on the Indian company exporting their products
to foreign countries.
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7. The Indian company shall not have the right to pledge, mortgage or assign or
to sub-license the technical know-how, data, engineering designs, layouts etc.
to other parties, without the consent in writing of the U.K. Company.
8. There shall be no restraint on the Indian company having their own
arrangements for procurement of raw materials, purchase of spares and
components and for pricing their products and the sale thereof.
9. Technicians who may be deputed by the U.K. company to the Indian company
to advise and assist the Indian company under this agreement shall be paid
their salary, travelling expenses and boarding and lodging by the Indian
company.
10. The Indian company shall likewise bear all the expenses of the persons
sent by them to the U.K. Company for training in their works.
11. The parties hereto mutually agree that they will each inform the other of
any new development in design or methods of manufacture which they
respectively may discover during the continuance of this Agreement in so far
as such new developments are applicable to the products manufactured by
the Indian company.
12. On the expiry of the period prescribed herein or of extended period
provided in clause 3 (supra) or upon the termination of this agreement for
any reason the Indian company shall return to the U.K. company all copies of
information data or material sent to it by the U.K. company under this
Agreement and then in its possession and shall expressly refrain from
communicating any such information, technical data or material received by
it hereunder to any person, firm or company whatsoever.
In Witness Whereof the parties hereto have signed this Agreement
this________________ day of…………..….…………. 2013 in the presence of the following:
WITNESSES: For XYZ
Ltd
sd/-
1.
2
For ABC Ltd.
sd/-

SPECIMEN JOINT VENTURE AGREEMENT

THIS AGREEMNET IS MADE on 8th day of 2015 by and between:

AMCO INC. Incorporated under the appropriate laws of the United States of
America having its office at 5 Seventh Street, New York of the ONE PART and the
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term unless repugnant to the context otherwise shall also includes its executor
or any other person authorized by it on its behalf.
AND
INCO LTD. a company registered under the Companies Act, 1956 having its office
at 99, Chowringe Road Calcutta 700071 of the OTHER PART and the term unless
repugnant to the context otherwise shall also includes its executor or any other
person authorized by it on its behalf.

WHEREAS AMCO INC. (hereinafter referred to as AMCO) carries on business as
manufacturer of and dealer and exporter in Computers, Computer Hardware
and Software and has worldwide market and intends to extend its market here
in India and elsewhere.

AND WHEREAS INCO LTD. (hereinafter referred to as INCO) carries on business
as manufacturer of, dealer in and exporter of Computer Software and intends to
expand its business in India and abroad.

AND WHEREAS AMCO and INCO intend to co-operate in manufacturing/dealing
in and exporting Computers, Hardware and Software in India and abroad for
mutual benefit by setting up a new company.

NOW THESE PRESENTS WITNESSETH AND THE PARTIES HEREBY AGREE AS
FOLLOWS:
1. A Joint-stock company would be formed under the name and style of Indo-
American Company Pvt. Ltd. under the Companies Act 1956 having its
Registered Office at 99 Chowringhee Road, Calcutta 700 071.
2. AMCO and three of its nominees and INCO and three of its nominees would be
the subscribers to the Memorandum and Articles of Association of the said
company to be incorporated.
3. The shareholding in the Share Capital of the said company to be incorporated
would be in equal proportions between AMCO and INCO.
4. The Memorandum and Articles of Association of the company proposed to be
incorporated would be settled in mutual consultation and the same would
govern the rights and obligations of AMCO and INCO in relation to the said
proposed company.
5. AMCO will be allotted shares in the said new company partly in cash and
partly towards the cost of plant, machinery and equipment to be supplied by
AMCO to the new company and in consideration for assignments by AMCO of
its Patent Rights, Trade Marks, Trade Names and Licenses in favor of the new
company to be incorporated. The consideration for allotment of shares to
AMCO would also include the supply and transfer of technical formula, new
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inventions, secret processes, technical information concerning the
production, manufacturing, testing, specifications, instructions and
information as to the manufacture of, development, use and servicing,
maintenance and improvement of quality of Computers, Hardware and
Software and generally in connection with the successful carrying on of the
said business by the said new company to be incorporated.
6. Will furnish necessary technical assistance and expertise to the new company
for assembling, installation, start-up and for smooth running of the
manufacturing and selling processes as might be required by the new
company from time to time.
7. Will furnish to the new company all other technical assistance and advice in
relation to the operation of the plant and machinery, repairs thereof, testing
facilities, training facilities and Research & Development facilities should be
arranged for, provided and continued for successful running of the business
of the new company.
8. The shares that would be allotted by the new company should not be
transferred by either AMCO or INCO within a period of five years from the
date of allotment and thereafter if any of the parties intends to transfer any
share then the same shall be offered first to the other party at a price to be
determined by a Valuer to be appointed by mutual agreement and in absence
by application to the Indian Chamber of Commerce.
9. The new company will manufacture Computers, Hardware and Software and
allied accessories and products and the same would be marketed in India and
exported to other countries under the Trade name or Brand name made
available by AMCO and by any other name and shall obtain new Trade Mark
and obtain Patents for further and better manufacturing, selling and
exporting the new company’s products.
10. This agreement is made subject to obtaining approvals of the Indian
Government and other concerned authorities.
11. In the event certain additions or alterations are required under this
agreement due to imposition of certain terms and conditions by Government
of India or appropriate authority granting the approval shall be incorporated
in this agreement by way of a supplemental agreement and if required the
Memorandum and Articles of Association of the new company would also be
in conformity with such directions or approvals of the appropriate
authorities.

IN WITNESS WHERE OF the parties hereto have signed, sealed and delivered
these presents on the day, month and year first above-written in the presence of;

Witnesses
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1 For AMCO
Ltd.
Sd/-
2 For INCO Ltd.
Sd/-

ARBITRATION AGREEMENT

Meaning of Arbitration can be defined as the means by which the parties to dispute
Arbitration consent to get same settled through the intervention of a third person,
called arbitrator, without having recourse to a court of law.
Essential There should be a valid and binding agreement between the parties.
Ingredients Parties should intend to refer present or future disputes to arbitration.
of an Such agreement may be contained as a clause in a contract or in the form
Arbitration of a separate agreement.
Agreement Such an agreement must be in writing and includes an exchange of letters,
telex, telegrams or other means of communication which provide a record
of such arbitration agreement.
Appointment The person who is appointed to determine the difference or disputes is
of Arbitrator called the Arbitrator or Arbitral Tribunal. The parties to an Arbitration
Agreement are free to choose the arbitrator, which may be a Sole
Arbitrator or number of arbitrators but never an even number. Where
the arbitration agreement does not provide for the number of arbitrators
then the dispute shall always be referred to the Sole Arbitrator.

Where the arbitrator appointed by the parties fails to perform his duties
then as per Section 11 of the Arbitration and Conciliation Act, 1996,
arbitrator is appointed by the Chief Justice of the High Court concerned or
his designate Judge. In Konkan Railway Corporation Ltd. v. Rani
construction Pvt. Ltd., it was held that an order passed under Section 11 of
the Arbitration and Conciliation Act, 1996 by the Chief Justice or his
designate inot an adjudicatory order and thus, the same cannot be
challenged by way of Special Leave Petition under Article 136 of
Constitution of India.
Arbitral Award means the decision of the Arbitrator. An award may be defined as
Award the final and binding decision of dispute by a forum created by an
agreement of the parties to the dispute. Further, the term arbitral award
includes an interim award.
Form and The arbitral award must be in writing,
Contents of It must state the reasons unless otherwise agreed by the parties.
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Arbitral It must be dated and signed by the arbitrators.
Award It must state the place of arbitration.
A signed copy of the arbitral award must be delivered to each of the
parties to the reference.
Limitation There is no specific period provided under the Arbitration and
period for Conciliation Act, 1996 to pass an arbitral award. However, as per the
Arbitral legislative policy, the arbitrator should pass the award within a
Award reasonable period.

Registration The award which deals with immovable property of the value of Rs. 100
of Award or more requires registration.
Stamp Duty The stamp duty on the arbitration award passed by an arbitrator is
on payable as per Article 12 of Sch 1 of India Stamp Act, 1899. The rate of
Arbitration stamp duty varies from State to state.
Award

Legality of an arbitration agreement of the parties on the subject
matter already pending in the court

The existence of an arbitration agreement before the case is brought to court is
not essential and parties can enter into an arbitration agreement during
pendency of proceeding before the court. This view was established in Anand
Gajapathi Raju v. PVG Raju, where during the pendency of the appeal before
Supreme Court, all the parties entered into an arbitration agreement and agreed
to refer their dispute to a retired Supreme Court Judge as Sole arbitrator. The
agreement was in the form of an application and had been signed by all the
parties. It was held that the agreement need not already be in existence; the
phrase ‘which is the subject of an arbitration agreement does not necessarily
require that the agreement must already be in existence before the action is
brought in the Court – the phrase also connotes an arbitration agreement being
brought into existence while the action is pending. The court further stated that
the arbitration agreement satisfied the requirements of section 7 and that of the
language of section 8 is peremptory. It is therefore obligatory for the court to
refer the parties to arbitration in terms of their agreement.

ARBITRATION AGREEMENT

THIS AGREEMENT is made at Nagpur on Saturday 21st day of April 2015 by and
between:
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Mr. X. __________of _______ age_________ residing at ____________, hereinafter to be
called as 1st party and the expression unless repugnant to the context otherwise
shall also include his legal heir, power of attorney, executor thereof.
AND
Mr. Y……. of ……… residing at ………. Here in after to be called as 2nd party and the
expression unless repugnant to the context otherwise shall also include his legal
heir, power of attorney, executor thereof.

WHEREAS by an Agreement (Building contract) dated …… 2007 entered into
between the parties hereto, the Party of the First Part entrusted the work of
constructing a building on his plot of land situated at ……… to the Party of the
Second Part on the terms and conditions therein mentioned.

AND WHEREAS the Party of the Second Part has commenced the construction of
the building according to the plans sanctioned by the …….. Municipal
Corporation and has completed the construction to the extent of the 1st floor
level.

AND WHEREAS the Party of First Part has certain payments to the Party of the
Second Part on account but the Party of the Second Part is pressing for more
payments which according to the Party of the First Part he is not bound to pay
and, therefore the work has come to a standstill.

AND WHEREAS the said agreement provides that in the event of any dispute or
difference arising between the parties the same shall be referred to arbitration
of a common arbitrator if agreed upon and the provisions of the Arbitration &
Conciliation Act, 1996, shall govern the Arbitration.

AND WHEREAS the parties have agreed to refer all the disputes regarding the
said contract to Mr………. Architect, as common Arbitrator and have proposed to
enter into this Agreement for reference of the disputes to the sole arbitration of
the said Mr. ………

NOW IT IS AGREED BETWEEN THE PARTIES HERETO AS
FOLLOWS:
1. That the following points of dispute arising out of the said agreement dated….
are herby referred to the sole arbitration of the said Mr. ……. For his decision
and award.
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The points of dispute are:
a) Whether the Party of the Second Part has carried out the work according
to the sanctioned plans and specifications.
b) Whether the Party of the Second Part has delayed the construction.
c) Whether the Party of the Second Part is overpaid for the work done up
now.
d) Whether Party of the First Part is bound to make any further payment
over and above the payments made up to now for the work actually done.
e) All other claims of one party against the other party arising out of the said
contract up to now.
2. The said Arbitrator shall allow the parties to file their respective claims and
connotations and to file documents relied upon by them within such
reasonable time as the Arbitrator may direct.
3. The said Arbitrator shall give hearing to the parties either personally or
through their respective Advocates but the Arbitrator will not be bound to
take any oral evidence including cross examination of any party or person.
4. The said Arbitrator shall make his Award within a period of 4 months (four
months) from the date of service of a copy of this agreement on him any of
the parties hereto provided that, the Arbitrator will have power to extend the
said period from time with the consent of both the parties.
5. The Arbitrator will not make any interim award.
6. The award given by the Arbitrator will be final and binding on the parties
hereto.
7. The Arbitrator will have full power to award or not to award payment of such
costs of and incidental to this arbitration by one party to the other as he may
think fit.
8. The provisions of the Arbitration & Conciliation Act, 1996, shall govern the
Arbitration.
IN WITNESS WHEREOF the parties herein have set their hands the day, date,
month and year above mentioned in the presence of –
Witness
1
sd/-
1st party
2
sd/-
2nd party

ARBITRAL AWARD
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In the matter of the Arbitration and Conciliation Act, 1996 and in the matter of
an Arbitration Agreement dated ___________ between _________ S/o, aged ___________,
R/o __________and ________________ S/o, aged ___________, R/o______________.

This is the award of the Arbitral Tribunal made this ___________________

WHEREAS in pursuance of an agreement and/or submission in writing dated the
__________ day of ______________, _______________ and made between the above named
parties, the said ________ and ___________ referred to us, for decision and award the
matters in dispute and difference between them (state the matters in
difference). Now we have heard and examined the parties and considered the
pleadings and all allegations and counter-allegations made by them against each
other and also all books, papers, writing and other evidence produced before us.

Now, we have duly considered the matter referred to us, do hereby make our
award as follows:
We award:
That ______
That ____________

Dated the ___________ day of ______________, ________________
Sd/-
Arbitrator

GUARANTEES

Contract of A “contract of guarantee” is a contract to perform the promise,
Guarantee or discharge the liability, of a third person in case of his default.
The person who gives the guarantee is called the ‘surety’; the
person in respect of whose default the guarantee is given is
called the “principal debtor’; and the person to whom the
guarantee is given is called the “creditor”. A guarantee may be
either oral or written.
Purpose of a The primary idea of a guarantee or surety-ship is, an
Guarantee undertaking to indemnify the creditors in case the principal
debtor does not fulfil his promise; the contract of guarantee in
that sense is a contract to indemnify.
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Form of a The law does not require a contract of guarantee to be
Guarantee necessarily in writing. It may be either oral or in writing. It may
be express or it may even be implied. It might be even inferred
from the course of conduct of the parties concerned. However,
whatever may be the form of the contract, it must be
satisfactorily proved. Like any other contract, a contract of
guarantee must be supported by consideration. It is, however,
not necessary that the consideration should flow from the
creditor and be received by the surety. Consideration between
the creditor and the principal debtor is a valid and good
consideration for the guarantee given by the surety.
Construction The terms of a guarantee must be strictly construed. The surety
of a receives no benefit and no consideration. He is bound,
Guarantee therefore, merely according to the proper meaning and effect of
the written engagement that he has entered into. In construing
a guarantee, the principle is that a guarantee will only extend to
a liability precisely answering the description contained in the
guarantee.
Type of Guarantee
Continuing A guarantee which extends to a series of transactions is called a
Guarantee “continuing guarantee”, and it may be revoked by the surety at
any time as to future transactions, by notice to the creditor.
Fidelity A guarantee, guaranteeing an employer against misconduct of
Guarantee an employee or to answer for the debt or default of another, is
called a fidelity guarantee”.
Counter A guarantee given by the principal debtor to the surety
Guarantee providing him continuing indemnity against any loss or damage
that the surety may suffer on account of default on the part of
the principal debtor is called as “Counter guarantee”.
Performance A guarantee which ensures the contracted performance of
Guarantee another person and under which the surety undertakes to
compensate the person in whose favour the guarantee is given
in the event of failure on the part of the person on whose behalf
the guarantee is given is known as “performance guarantee”.
Bank A bank guarantee is a guarantee given by a bank on behalf of its
guarantee client or account holder to another person with whom the
client has entered into a contract to perform some job or to do
and call upon the bank to pay the guarantee amount in the
event of the contingency, mentioned in the guarantee,
happening or not happening, as the case may be.
Consideration Anything done, or any promise made, for the benefit of the
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for a principal debtor may be a sufficient consideration to the surety
Guarantee for giving the guarantee.

SPECIMEN DEED OF GUARANTEE FOR THE PERFORMANCE
OF A CONTRACT

THIS DEED OF GUARANTEE made on This Thursday, 23rd day of March 201_ by
and between:

Shri …..… Son of Shri…………..….…………. resident
of…………..….……………………..….………….. (Hereinafter called “the Guarantor”),
which expression shall, unless repugnant to the context, include his heirs, legal
representatives, assigns thereof of the one part
AND

Shri…………..….…………., son of……..….…………. resident
of……..….……………………..….………….. (Hereinafter called “the Principal), which
expression shall, unless repugnant to the context, include his heirs, legal
representatives, assigns etc., of the other part.

WHEREAS BY AN AGREEMENT DATED…………..….…………. made between
Shri…..….…………. son of Shri…..….…………. resident of……………..….………….. etc.,
therein referred to as “the Contractor”, of the one part and the said..….………….
Shri………..….…………. herein referred to as “the Principal”, of the other part, it was
inter alia agreed by and between the parties as follows:
(Here state the nature of the work to be done by the Contractor);

AND WHEREAS the said work was entrusted to the Contractor upon the
Guarantor having agreed with the Principal as to its guarantee of performance
by the Contractor and to indemnify and keep indemnified the Principal against
all losses, damages, costs, charges and expenses arising out of performance or
non-performance thereof.

NOW THIS DEED WITNESSES AS FOLLOWS:

1. The Guarantor will see that the Contractor (unless relieved from the
performance by operation of any clause of the contract or by statute or by virtue
of the decision of any tribunal or court of competent jurisdiction, shall carry out,
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execute and perform the contract without any exception or reservation and in
case he commits any breach thereof, the Guarantor will indemnify and keep
indemnified the Principal and his estate against all losses, damages, costs,
expenses or otherwise which he may suffer or otherwise incur by reason of any
act, negligence, default or error in judgment on the part of the Contractor in
performing or non-performing the contract.

2. In case of any dispute or difference as regards the quantum of such losses,
damages, costs, charges or expenses, the same shall be decided by reference to
arbitration of one architect or engineer if the parties so agree or otherwise to
two architects or engineers, one to be appointed by each, whose decision shall
be final and binding on all parties.

In witness whereof, the parties hereto have hereunto set and subscribed their
respective hands and seals the day, month and the year first above-written.

Signed, sealed and delivered in the presence of

WITNESSES
Sd/-
1. Guarantor
sd/-
2. Principal

OUTSOURCING AGREEMENTS

Outsourcing is the contracting out of a company's non-core, non-revenue
producing activities to specialists. It differs from contracting in that outsourcing
is a strategic management tool that involves the restructuring of an organization
around what it does best - its core competencies.

Two common types of outsourcing are Information Technology (IT) outsourcing
and Business Process Outsourcing (BPO). BPO includes outsourcing related to
accounting, human resources, benefits, payroll, and finance functions and
activities. Knowledge Process outsourcing (KPO) includes outsourcing related to
legal, paralegal, and other highly skilled activities.

A good outsourcing agreement is one, which provides a comprehensive road
map of the duties and obligations of both the parties - outsourcer and service
provider. It minimizes complications when a dispute arises.
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Before finalizing an outsourcing agreement, the terms should be thoroughly
discussed and negotiated to avoid any misunderstanding at a later stage. It is
advisable to consult a lawyer before finalizing any outsourcing agreement.

A Specimen of Outsourcing Agreement for Converting Hard
Copies of a Book in a Compact Disc (CD)

This Agreement for the conversion of the book titled Intellectual Property
Protection in India is executed on Wednesday 21st day of March 2015 by and
between

The Golden Law Publishing Co. Pvt. Ltd. having their Office at …………………….
represented by Mr. ……………….. Manager, Golden Law Publishing Co. Pvt. Ltd.
(hereinafter referred to as ‘the GLP Pvt. Ltd.) which expression shall, unless
repugnant to the context, include its legal representatives, assigns thereof
AND
M/s Bluetec Web Services Pvt. Ltd, a Company registered under the Companies
Act having their office at …………………. and represented by Mr. …………… Director,
M/s Bluetec Web Services Pvt. Ltd, (hereinafter referred to as the M/s Bluetec
Pvt. Ltd.) which expression shall, unless repugnant to the context, include its
legal representatives, assigns thereof

WHEREAS the GLP Pvt. Ltd. has published the book Intellectual Property
Protection in India it has decided to convert the hard copies of above mentioned
book into a soft copy version by getting the book digitized and thereafter put the
contents of the book in a CD (Compact Disc) along with a Search Engine. The GLP
Pvt. Ltd. floated a tender for this book vide tender document with closing date
…………2007 and after evaluating the bids of various parties, the GLP Pvt. Ltd. has
decided to award the project to M/s Bluetec Pvt. Ltd. on the following terms and
conditions:

1. M/s Bluetec Pvt. Ltd. would perform the job of digitization (of the relevant
portions marked for digitization) of the book including Data punching /
Scanning, OCR Validation, Proof-reading (at an accuracy level of 99.9%),
Tagging according to search parameters, Linking, Indexing etc.
2. M/s Bluetec Pvt. Ltd. would be developing a search engine as per the GLP’s
requirement. The search engine would be licensed to the GLP Pvt. Ltd. for its
perpetual use. The GLP Pvt. Ltd. would further be free to use this Search
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Engine for any purpose and would not be liable to pay to M/s Bluetec Pvt. Ltd.
any additional amount for such usage.
3. The copyright of the contents of the CD, marketing rights and all other rights
pertaining to the said CD would solely vest with the GLP Pvt. Ltd.
4. M/s Bluetec Pvt. Ltd. undertakes to complete the assignment within a period
of 100 days from the date of execution of this agreement.
5. After the completion of the job M/s Bluetec Pvt. Ltd. would give sufficient
training including technical aspects (relating to the features of the search
engine developed by the M/s Bluetec Pvt. Ltd. to the people deputed by the
GLP Pvt. Ltd. to facilitate to use the search engine independently. The training
must be up to the satisfaction of the GLP Pvt. Ltd. in all aspects.
6. M/s Bluetec Pvt. Ltd. would hand over the digitized contents of the book to
the GLP Pvt. Ltd. after the completion of the job.
7. The total project cost to be paid to M/s Bluetec Pvt. Ltd. would be as follows.
Ø Cost of developing the Search Engine – Rs.……………. (Rupees…………….
only)
Ø Digitization cost for each page (in hard copy) – Rs……….. per page
Ø Conversion cost for each page (in soft copy) – Rs……….. per page
Ø Total cost of each CD including the manual, jewel case, packing, printing
and security features.
8. It is to be noted that the original CD lot would be of 750 CDs only.
9. For the purpose of page count, 50% or more coverage would be treated as
one full page and less than 50% would be ignored and would not be taken in
counting.
In Witness Whereof the parties hereto have set their respective hands to the
agreement on the day, month and the year mentioned herein above.

Witnesses
1.
for GLP pvt. Ltd
sd/-

2.
for Bluetech Pvt. Ltd.
sd/-

SERVICE AGREEMENTS

Contents of a Service contracts are drafted in the same way as other agreements.
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Service The terms of employment should be definitely fixed and clearly
Contract: expressed and nothing should be left to presumptions. They are
required to be both affirmative (describing the acts and duties to be
performed) as well as negative (putting restrictions on the acts of the
employee during and/or after the term of employment).
It is therefore necessary to make provision for
Ø The time or period of employment;
Ø The remuneration and other perquisites, if any, including pay,
allowances, commission, rent-free house, conveyance, etc;
Ø Duties of employment;
Ø Powers of the employee;
Ø Leave and the terms on which it will be granted;
Ø Modes and grounds of determining the employment during the
term; and
Ø Restrictive covenants, if any.
Period of This may be definite or indefinite. If no period is fixed or an indefinite
Service: period is stated, e.g., "so long as the parties respectively please", the
contract is terminable by a reasonable notice on either side. What is a
reasonable notice varies in different cases, according to the
characters of the employment and the general custom, from 15'days
to six months, When no term is fixed, it is always proper to provide
for determination by notice, In such a case, and also in case option of
determination is reserved during the term, the period of notice
should be settled and expressed in the agreement.

Remuneration: Remuneration may be fixed monthly salary, or fees or commission, or
salary as well as fees or commission. Sometimes in business firms,
employees are allowed a share in the profits in addition to a fixed
salary. All these should be clearly provided

Leave: Conditions and grounds on which, and the period for which leave
may be granted as well as allowance payable during leave should be
stated. In the case of Government servants engaged on contract, the
leave rules applicable to permanent Government Servants in general
may be applied but as there are different rules for different classes of
Government Servants those applicable should be clearly referred to,
or if they are not lengthy, they may be embodied in the agreement in
the form of a covenant.
Determination The grounds for determination of employment should be clearly
of expressed in the agreement. The grounds on which the employment
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Employment: may be determined during the term are generally misconduct,
negligence, or want of medical fitness.

Restrictive It is usual to include restrictive covenants in the agreement such as
Covenants: that the employer will not undertake any other work or service or
that he will not divulge the employer's secrets or make improper use
of his trade secrets or information about the employer's affairs.

Effect of Many Acts have been passed by the Central or State legislatures
Labour Laws: relating to the conditions of employment of teachers and other
employees of aided schools and colleges and of universities, and of
workers in factories and commercial establishments, for e.g. the
Factories Act, the Industrial Employment (Standing Orders) Act, the
Payment of Wages Act, the Workmen's Compensation Act etc. In
drawing up a service contract for such an employee, the provisions of
the relevant Acts must be kept in view. Any term of contract contrary
to the statutory provisions will be null and void, as it is not open to an
employee to contract out of the safeguards provided by the
legislature for his protection.

SPECIMEN AGREEMENT OF EMPLOYMENT OF MANAGER
OF A BUSINESS CONCERN

AN AGREEMENT made on this…………… day of…………… by and between

AB, etc. (hereinafter called the “employer”) which expression shall, unless
repugnant to the context, include his heirs, legal representatives, assigns thereof
of the one part
AND
CD, etc, (hereinafter called the “manager”) which expression shall, unless
of the other part

WHEREAS
1. The employer wants to appoint a suitable person to work as manager for his
business concern; and
2. CD, the party of the other part, has agreed to serve as manager of the
employer for his business concern.
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www.pcbaba.in
CS PRAVEEN CHOUDHARY
Drafting - 1
NOW THIS AGREEMENT WITNESSES AS FOLLOWS:
1. The manager shall work as such for a term of…………… years from the day
of…………… at…………… or any other place as desired by the employer.
2. The manager shall give his whole time and attention to the said business and
shall use his best endeavor to improve and expand the same and shall in all
respects diligently and faithfully obey and observe all lawful orders and
instructions of the employer in relation to the conduct of the said business
and shall not without his consent divulge any secrets or dealing thereto.
3. The manager shall keep at the place of business at…………… proper books of
account showing all goods and moneys received and delivered and disbursed
by him with necessary particulars of all such transactions and shall duly
account for all moneys belonging to the employer and coming into the hands
or power of the manager and shall forthwith pay the same to the employer or
his bankers for the time being except only such moneys as the manager shall
be authorized by the employer to retain for immediate requirements of the
said business.
4. Either party hereto may terminate the engagement of the manager at any
time before the expiration of the said term of……………years on giving or
sending by registered post to the other party three calendar months, notice in
writing, such notice to be given or sent in the case of the employer to his
house at …………… and in case of the manager to his place of business or
residence provided by the employer and on the expiration of the said three
months from the date of giving or posting such notice, the said engagement
shall terminate provided that the employer may terminate the said
engagement at any time on payment of three months’ pay in advance in lieu
of such notice as aforesaid.
5. If the manager at any time willfully neglects or refuses or from illness or
other cause becomes or is unable to perform any of the duties under this
agreement, the employer may suspend his salary (and sum by way of
percentage) during such neglect, negligence or inability as aforesaid and may
further immediately terminate the engagement of the manager without
giving any such notice or making such payment or salary in advance as
hereinbefore provided.
6. The manager will at his own expense find and provide two respectable
sureties to the amount of Rs…………… each for his good conduct and for the
due performance by him of this engagement and if he fails to do so for a
period of three months from this date, the employer may terminate his
services forthwith.
In witness whereof, the parties hereto have hereunto set and subscribed their
respective hands and seals the day, month and the year first above-written.
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RENEWAL OF TERM OF SERVICE OF AN EMPLOYEE
(Either on old terms or new terms)

AN AGREEMENT made on this…………… day of…………… by and between

AB, etc. (hereinafter called the “employer”) which expression shall, unless
of the one part
AND
CD, etc, (hereinafter called the “manager”) which expression shall, unless
of the other part

WHEREAS the said CD has served the said AB as………… under an agreement
between the parties hereto dated the……………;

AND WHEREAS the term of the said CD’s engagement under the said agreement
having expired on the……………., it has been agreed that the said AB shall re-
engage, the said CD upon the terms and conditions hereinafter appearing (or,
upon the terms and conditions contained in the said agreement dated the………).

(1) The said CD shall serve the said AB as…… for one year from the……...
(2) .................................................
(3) ........................................... etc.
or, 2. The terms and conditions of the said agreement shall be the same as are
contained in the aforesaid agreement of the parties dated…………… in so far as
they may be applicable to the employment under this agreement and all the
terms and conditions contained in the said agreement shall be deemed to have
been incorporated in this agreement).

IN WITNESS WHERE OF etc.

E – CONTRACTS

Ecommerce is the selling and purchasing of goods and services using technology.
These are basically the contracts analyzed with e – commerce and other
transactions taking place in the digital environment.

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The principles and remedies as are applicable to traditional contracts are also
applicable to e – contracts. These are born out of the need for speed,
convenience and efficiency. In the electronic age, the whole transaction can be
completed in seconds, with both the parties simply affixing their digital
signatures to an electronic copy of the contracts.

The contracts formed through electronic media are treated as the general
contracts and their formation and acceptance are governed as per Indian
contract Act, 1872. Similarly, the Indian evidence act, 1872 deals with the
presumption as to e-records, providing the electronic records as evidence in the
disputed matter. However, the conventional law relating to contracts is not
sufficient to address all the issues that arise in electronic contracts and thus in
India the information Technology Act solves some of the peculiar issues that
arise in the formation and authentication of electronic contracts.

Essentials of E- contracts
a) An offer or proposal by one party and acceptance of that offer by another
party resulting in an agreement consensus-ad- idem.
b) An intention to create legal relations or an intent to have legal consequences.
c) The agreement is supported by lawful consideration.
d) The parties to contract are legally capable of contracting.
e) Genuine consent between the parties.
f) The object and consideration of the contract is legal and is not opposed to
public policy.
g) The terms of the contract are certain.
h) The agreement is capable of being performed i.e., it is not impossible of being
performed.

TYPES OF E-CONTRACTS
1. The Click-wrap or Web-wrap Agreements.
2. The Shrink-wrap Agreements.
3. The Electronic Data Interchange or (EDI).

CLICK WRAP AGREEMENT
These are the agreements, which we generally come across while surfing
internet such as “I AGREE” to the terms or “I DISAGREE” to the above conditions.
A click-wrap agreement is mostly found as part of the installation process of
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software packages. It is also called a “click through” agreement or click-wrap
license.

TYPES OF CLICK WRAP AGREEMENT
1. Type and Click where the user must type “I accept” or
other specified words in an on-screen box and then click a
“Submit” or similar button. This displays acceptance of the
terms of the contract. A user cannot proceed to download or
view the target information without following these steps.

2. Icon Clicking where the user must click on an “OK”
or “I agree” button on a dialog box or pop-up window.
A user indicates rejection by clicking “Cancel” or
closing the window. Upon rejection, the user can no
longer use or purchase the product or service. A click
wrap contract is a “take-it-or-leave-it” type of contract
that lacks bargaining power.
The Shrink-wrap Agreements

Shrink wrap contracts are license agreements or other
terms and conditions which can only be read and accepted
by the consumer after opening the product like CD ROM of
software. The terms and conditions are printed on the
cover of CD ROM. Sometimes additional terms are imposed
when in such licenses appear on the screen when the CD is
downloaded to the computer. The user has right to return if the new terms and
conditions are not to his liking.

Electronic Data Interchange or (EDI)

These contracts used in trade transactions which enables the transfer of data
from one computer to another in such a way that each transaction in the trading
cycle (for example, commencing from the receipt of an order from an overseas
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buyer, through the preparation and lodgment of export and other official
documents, leading eventually to the shipment of the goods) can be processed
with virtually no paperwork. Here unlike the other two there is exchange of
information and completion of contracts between two computers and not an
individual and a computer.

On-Line Shopping Agreement
Suppose Kerry Ltd. wants to offer online shopping services to its customers.
Kerry would tie-up with manufacturers of books, toys, clothes etc. and offer their
products for sale through its website. Some of the products could be stocked in
Noodle’s warehouses while others could be stocked with the manufacturers.
Additionally, visitors can post reviews, comments, photos etc on the Kerry
website. Kerry would need to enter into a contract with all its potential
customers “before” they place an order for a product using Kerry services.

This contract must serve the following purposes:
Ø Outline the scope of services provided by Kerry Ltd.
Ø Restrict Kerry’s liabilities in case there is any defect in the products sold
through the Kerry website.
Ø Outline the duties and obligations of the customer.
Ø Grant suitable license to the customer to use the Kerry website.
Ø Restrict Noodle’s liabilities in case of loss or damage suffered by the customer
as a direct or indirect result of the Kerry website.
IMPORTANT POINTS IN REGARD TO E-CONTRACTS

Customer’s The contract must specify that by using the Kerry website, the
relationship customer becomes subject to the terms of a legal agreement
with Kerry between the customer and Noodle. Customers must be informed
that they must be of legal age to enter into the contract.
Acceptance of The contract must clearly lay down that a customer cannot use the
the terms of the Kerry website unless he agrees with the terms of the contract. The
contract customer can usually indicate his acceptance by clicking on an “I
Accept” link or checking an “I Accept” checkbox.

Copyright The contract should clearly state that all content included on the
Kerry website, such as text, graphics, logos, button icons, images,
audio clips, digital downloads, data compilations, and software, is
the property of Kerry Ltd.

Customers The contract should clearly lay down the duties and obligations of
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duties and the customer. Amongst others, the customer must:
obligations
Ø Not overload Noodle’s systems.
Ø Not download or modify the Kerry website.
Ø Collect and use any product listings, descriptions, or prices.
Ø Download or copy account information by data gathering and
extraction tools.
Ø Not frame or utilize framing techniques to enclose any
trademark, logo, or other proprietary information (including
images, text, page layout, or form).
Ø Not use any “hidden text” utilizing Noodle’s name or trademarks.

License from The contract should specify that Kerry is giving the customer a
Noodle limited, revocable, and nonexclusive right to create a hyperlink to
the home page of Kerry so long as the link does not portray Noodle,
or its products or services in a false, misleading, derogatory, or
otherwise offensive matter. The contract must also specify that
Kerry is giving the customer a personal, worldwide, royalty-free,
non-assignable and non-exclusive licence to use the software
provided as part of the Kerry website. The contract must clarify that
this licence is for the sole purpose of enabling the customer to use
the Kerry website. The contract must forbid the customer from the
following acts in respect of the said software:
Ø copying,
Ø modifying,
Ø creating a derivative work of,
Ø reverse engineering,
Decompiling or otherwise attempting to extract the source code. The
contract must mention that the customer cannot assign, sub-license
or transfer his rights to use the Kerry software.

Reviews and The contract should clearly mention that the reviews, comments,
comments photos etc. posted by customers should not be illegal, obscene,
threatening, defamatory, invasive of privacy, infringing of
intellectual property rights, or otherwise injurious to third parties.

It should also be mentioned that such content should not consist of
or contain software viruses, political campaigning, commercial
solicitation, chain letters, mass mailings, or any form of “spam.” It
should also be stated that a customer who posts content grants to
Kerry Ltd non-exclusive, royalty-free, perpetual, irrevocable, and
fully sub licensable right to use, reproduce, modify, adapt, publish,
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translate, create derivative works from, distribute, and display such
content throughout the world in any media.

The contract must also state that the customer posting the content
indemnifies Kerry against all legal action and claims resulting from
the said content

Risk of loss Kerry has a shipping contract with various courier companies to
deliver the products to the customers. The contract should clearly
state that once the products are handed over to the courier
company, Kerry’s liability ends.

Pricing The contract should clarify how the prices listed on the Kerry’s
website are computed. The various options could be:
Ø The listed price represents the full retail price listed on the
product itself,
Ø The listed price is suggested by the manufacturer or supplier,
Ø The listed price is estimated in accordance with standard
industry practice, or
Ø The listed price is estimated in accordance with the estimated
retail value for a comparably featured item offered elsewhere.

Prohibitions The contract must specifically prohibit the following:
Ø Using “deep-link”, “page-scrape”, “robot”, “spider” etc to access,
acquire, copy or monitor any portion of the service.
Ø Reproducing the navigational structure or presentation of the
service.
Ø Circumventing the navigational structure or presentation of the
service.
Ø Attempting to gain unauthorized access to any portion or
feature of the service.
Ø Harvesting or collecting user names, email addresses or other
member identification information.
Ø Probing, scanning or testing the vulnerability of the service.
Ø Tracing information relating to other users.
Ø Agreeing not to use any device, software or routine to interfere
or attempt to interfere with the proper working of the service or
any transaction being conducted on the service, or with any
other person’s use of the service.
Ø Using the service for any unlawful purpose.

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Applicable Law The contract should mention the city / state and country whose law
will prevail in this contract. The courts having exclusive jurisdiction
over the disputes should also be mentioned. Conditions relating to
arbitration of disputes may also be mentioned.

Limitation of The contract must clearly mention that Kerry Ltd (and its
liability subsidiaries, affiliates, licensors etc.) will not be liable to the
customer for:
Ø Access delays or interruptions to the Kerry web site.
Ø The loss of registration or processing of an order.
Ø The unauthorized use of the customer’s account with Noodle.
Ø Deletion of, failure to store, or failure to process or act upon
email messages sent by customers to Kerry staff.
Errors taking place with regard to the processing of the
customer’s orders.
Ø Any direct, indirect, incidental, special consequential or
exemplary damages incurred by the customer pursuant of his
use of the Kerry website.
Ø Any loss of profit, any loss of goodwill or business reputation,
any loss of data suffered, cost of procurement of substitute
goods or services, or other intangible loss incurred by the
customer pursuant of his use of the Kerry’s services.
Ø Any loss or damage incurred by the customer as a result of
relationship or transactions with advertisers using the Noodle
website.
Ø Changes in or cessation of the Kerry’s services.
Ø Customer’s failure to keep his account information, passwords
etc. secure and confidential.
Exclusion of The contract must clearly mention that the customer expressly
warranties understands and agrees that his use of the services is at his sole risk
and that the services are provided “as is” and “as available”. The
contract must expressly disclaim all warranties and conditions of
any kind (express and implied).

It must also be mentioned clearly that Kerry (its subsidiaries,
affiliates, licensors etc.) do not represent or warrant to that:
Ø The Kerry’s services will meet the customer’s requirements,
Ø The Kerry’s services will be uninterrupted, timely, secure or free
from error,
Ø The information provided by or through the Kerry’s services
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will be accurate or reliable, and
Ø That defects in the operation or functionality of the Noodle
services will be corrected.
Ending the The contract must lay down that the customer can terminate the
relationship contract by closing his accounts with Noodle.
between Kerry
and the
customer

Kerry must retain the right to terminate the contract
under the following circumstances:
Ø The customer breaches any provision of the contract.
Ø The customer acts in a manner that clearly shows his intention to breach a
provision of the contract.
Ø Kerry is required by law to terminate the contract.
Ø The provision of the services to the customer is no longer commercially
viable.

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PAST EXAM QUESTIONS

Short note on:
Q1) Components of an award. (Dec’05)
Q2) Del-Creder agency (Dec’10, june’09)
Q3) Arbitration award (Dec’10)
Q4) Arbitration agreements (Dec’12)
Q5) Collaboration agreement (June’14)
Q6) Types of e-contracts (June’14)

Distinguish between

Q7) Counter guarantee & fidelity guarantee (Dec’09)
Q8) Lease & license (Dec’11)
Q9) Counter guarantee & performance guarantee & fidelity guarantee
(june’12)

Q10) Mention important guidelines for entering into foreign collaboration
agreement.
Q11) Hypothecation is an extended form of pledge. Explain the statement and
make suggestions for improvement in the law of hypothecation citing case
law. (june’12)
Q12) Formation of e-contracts, being paperless, lies outside the fowler’s rules of
drafting. (Dec’14)
Q13) In a contract if the material terms of agreement are clear & specific
omission of minor or basic details will not invalidate the agreement.
(june’14)
Q14) An arbitration award is required to be registered. (june’15)
Q15) What are e-contracts? Discuss important points with regards to drafting of
e-contracts. (june’15)
Q16) Explain in brief the essentials of hypothecation agreements. Draft a
specimen agreement on behalf of a firm excel & co. to hypothecate goods
to execute fixed loan from Rich bank. (june’15)

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DRAFTING AND CONVEYANCING RELATING TO
VARIOUS DEEDS AND AGREEMENTS-II

Promissory Note:
A promissory note is defined under sec 4 of Negotiable
Instrument Act, 1881 as ‘an instrument in writing containing
an unconditional undertaking, signed by the maker to pay a
certain sum of money only to or to the order of a certain
person or to the bearer of instrument’ For Example: Mr.
Ramdev BaBa signs instrument in the following manner.
Ø I promise to pay Sanju Baba Rs. 1500- it will be a
promissory note.
Ø I owe you Rs. 1500 – is not be considered as promissory
note.

Parties to promissory note:

The maker: à The person who makes or executes the note promising to pay the amount stated therein
The payeeà One to whom the note is payable.
The holder:à Either a payee or some other person to whom he may have endorsed the note.

Essential of promissory note: to be a promissory note, an instrument must

possess the following essentials:
F It must be in writing. An oral promise to pay is not sufficient.
F The promise or undertaking to pay must be unconditional
F The maker must sign the promissory note in token of an undertaking to pay to the payee or his
order.
F The maker must be a certain person and the payee must also be certain
F The sum payable must be certain and payment must be in legal money and the promissory note
must be properly stamped and must contain the place and date on which it is made.
F It must be properly stamped in accordance with the provisions of the Indian Stamp Act. Each
stamp must be duly cancelled by maker’s signature or initials.
Note: - Not mentioning the date and place will not invalidate promissory note.

Promissory note payable on demand
On demand I, Mr. _______, aged about ______, son of Mr. _________________, resident of ___________ and
Mr. ________, aged about ______, son of Mr. _________, resident of _________ do hereby jointly and
severally promise to pay a sum of Rs. ______ (in words) with interest at _____ % p.a. until the
payment of value received.

Dated and delivered at __________ this ____________, the ________ day of _________ 2019.

Place: sd/
Date: Maker 1

sd/-
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Maker 2
Promissory note in consideration of Loan

In consideration of loan of Rs. _______ (in words) advanced by Mr. ________, aged about _____, son
of Mr. ______, resident of ________, I, Mr. ______, aged about ______, son of Mr. _______, resident of
______, do hereby promise to repay the loan amount of said Rs. ________ with interest at 4% p.a.
to the said Mr. ________ or order.
Dated and delivered at _________ this ________, the day of __________ 2019.

Place: sd/-
Date: Maker

DEEDS OF POWER OF AUTHORITY

INTRODUCTION:
A definition of power of attorney is also contained in
Section 2(21) of the Indian Stamp Act, 1899 which reads
as follows:
"Power of Attorney" includes any instrument (not

chargeable with fee under the law relating to Court fees
for the time being in force) empowering a specified
person to act for and in the name of the person executing
it".

In terms of Section 1A of the Powers-of-Attorney Act, 1882 as amended by the Powers-of-
Attorney (Amendment) Act, 1982, a power of attorney includes an instrument
empowering a specified person to act for and in the name of the person executing it. It is
always kept by the attorney.

A power of attorney executed for the purpose of a specific act is called a "special power of attorney". It
is also called a "particular power of attorney". A specific act is meant to imply either a specific act or
acts related to each other as to form one judicial transaction, such as all the acts necessary to perfect a
mortgage or a sale of a particular property. A power of attorney executed for the purpose of generally
representing another person, or for performing more than one act, is called a 'general power of
attorney'.
Since the donee of a power of attorney is an agent of the donor, it is essential to know about the law of
agency. Several matters concerning agency are dealt with, not in the Powers-of-Attorney Act, but in the
Indian Contract Act, 1872 (sections relating to agency). Important amongst these are:
v Who may execute a power;
v Who may become an attorney;
v when is a power terminated; and
v Whether a power coupled with interest is revocable.

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Who can Execute Power of Attorney?
Section 2 of the Powers-of-Attorney Act, 1882 in its operative part provides that the donee of a power
of attorney may execute or do any assurance, instrument or thing in his own name and signature, and
an instrument or thing so executed or done shall be as effectual in law as if it had been executed or
done "by the donee of the power in the name and with the signature and seal of the donor thereof'.
Simply stated, the section provides that the signature of the agent will be deemed to be the signature
of the principal.
Section 5 of the Powers-of-Attorney Act, 1882, relating to married women's power to execute a power
of attorney provides that a married woman of full age shall, by virtue of this Act, have power, as if she
were unmarried, by a non-testamentary instrument, to appoint an attorney on her behalf, for the
purpose of executing any non-testamentary instrument or doing any other act which she might
herself execute or do; and the provisions of this Act relating to instruments creating powers-of-
attorney, shall apply thereto.

Form of Deed of Power of Attorney
Powers of attorney are executed in the form of Deed Poll, usually in the first person. It is unilateral
document. It begins either as - “KNOW ALL MEN BY THESE PRESENTS THAT I, ETC.” or “BY THIS
POWER OF ATTORNEY,I, ETC.”. Generally, the operative words making the appointment are
introduced directly without any recitals. If recitals become necessary, they should be added after the
words “KNOW ALL MEN BY THESE PRESENTS” thus “THAT WHEREAS etc.”, and after recitals the
operative part is introduced thus “Now I, the said AB, etc., hereby appoint, etc., or the deed may be
drafted with the heading “THIS POWER OF ATTORNEY is made on the, etc., then adding the recitals,
the operative part is introduced thus “NOW THIS DEED WITNESSES THAT IAPPOINT, ETC.”.

Duration of Unless expressly or impliedly limited for a particular period, a general power of attorney will
Power of continue to be in force until expressly revoked or determined by the death of either party. In
Attorney the case of a company, the power of attorney executed by the directors ceases to be operative
as soon as an order for winding up is made as the directors cease to function. A special power
of attorney to do an act is determined when the act is done. In case it is desired that the
power should continue for a particular period or until a certain event happens, an express
provision to that effect should be made in the deed itself.
Revocable A power of attorney executed in favour of a person can always, at the discretion of the donor
and thereof, be revoked. As we have seen earlier, the donee of a power of attorney is an agent of
Irrevocable the donor. If a donee himself has an interest in the matters covered by the power of attorney,
Power of which forms the subject matter thereof, the power of attorney in the absence of express
Attorney contract cannot be terminated to the prejudice of such interest. In other words, agency
coupled with interest cannot be terminated without the consent of the other party (Section
202 of the Indian Contract Act, 1872).
Therefore, a power of attorney executed, in which the donee himself has an interest, is
irrevocable. Such irrevocable powers of attorney are executed in favour of the financial
institutions by a company who offer financial assistance to the latter. Through such
irrevocable powers of attorney, powers are given to the financial institutions for executing a
security document for securing the financial assistance in the event of a company failing to
execute such a document by a certain date. A draft of the irrevocable power of attorney is
given at Annexure III. Such a power of attorney will need registration.
Stamp Duty Power of attorney is liable to stamp duty under the provisions of the Indian Stamp Act, 1899.
on Power of Duty varies from State to State. If a power of attorney is executed in a foreign country; it
Authority should be stamped within three months of its being received in India. If it is not so stamped
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within the period of three months of its being brought to India, then the same will be deemed
to be unstamped and cannot be acted upon.
Registration Registration of a power of attorney is not compulsory. Section 4 of the Powers-of- Attorney
of Power of Act, 1882 provides that it may be deposited in the High Court or District Court within the
Attorney local limits of whose jurisdiction the instrument is with an affidavit verifying its execution,
and a copy may be presented at the office and stamped as the certified copy and it will then be
sufficient evidence' of the contents of the deed.

In certain cases, registration of power of attorney may become compulsory under Section 17
of the Indian Registration Act, 1908. Thus, a power which authorizes the donee to recover
rents of immovable property belonging to the donor for the donee's own benefit is an
assignment and requires registration under clause (b) of Sub-section (1) of Section 17 of the
Registration Act. Similarly, a power of attorney which creates a charge on the immovable
property referred to therein in favour of the donee of the power requires registration.
In other cases, a mere general power of attorney, even though it deals with immovable
property, need not be registered (Kochuvareed v. Mariappa,) since it does not come under
any of the documents specified in the Indian Registration Act as requiring registration.

GENERAL POWER OF ATTORNEY

TO ALL TO WHOM THESE PRESENTS SHALL COME
KNOW ALL MEN BY THESE PRESENTS THAT I A.B s/o B. C. aged 40 yrs. r/o 123, MG Road,
Indore, state as follows:-

WHEREAS I am personally unable to attend to the managerial and other affairs with respect
to my property No 555, AB Road, Indore, so I, do hereby nominate and appoint Sh……………..
S/o……………… R/o……………… as my true and lawful Attorney to act for and on my behalf and I
authorize and empower him to do the following acts, deeds and things on my behalf:-

To lease, and rent the aforementioned property.
To demand, collect the rent due on the aforementioned property.

To manage and control my aforesaid property including collection of monthly rents, from the
tenants and issuance proper stamped receipts acknowledging the rent received.

To make applications, affidavits, documents etc., to the Govt. Dept and any other concerned
authorities, required for the managing of the aforesaid property and to do all other acts, deeds
and things in respect thereof.

To effect and carry out necessary repairs, additions, etc., in the said property as and when
may be desired, and for this purpose obtain all the necessary permissions and/or sanctions,
necessary from any appropriate authority.

To deal with Govt. deptt. and other local bodies for the purpose of any essential facilities or
amenities required to be provided in the building. He can sign all papers and documents etc.
for this purpose.
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To pay all the taxes, Municipal levies and other taxes, which may be, required to be paid.
To file any objections with Govt. deptt. or other local body of Government for any purpose
related with said property.

To engage valuer/Architects and/or to engage any Advocate or Attorney for the purpose and
or file or institute and legal action I court for the fulfillment of the purpose.

AND GENERALLY TO DO ALL other acts, deeds and things, which my said attorneys may deem
fit and proper for the maintenance, upkeep of my property.

Provided that the said attorney shall not sell or transfer the ownership of the property to any
person.

Provided further that the said attorney shall keep true accounts of all activities performed by
virtue of this power of attorney.
AND

I hereby agree and undertake to confirm and ratify all and whatsoever my said attorney shall
do or purport to do by the virtue of this power of attorney.

IN WITNESS WHERE OF this deed is signed by me at ________on this ______day of_______
(Signature of the giver)
EXECUTANT
WITNESSES:

1. …………………
Name and Address of Witness 1

2. …………………
Name and Address of Witness 2

SPECIMEN FORMS OF SPECIAL POWER-OF-ATTORNEY

(a) Power-of-Attorney to Present Document for Registration

BY THIS POWER OF ATTORNEY I, AB of etc., do hereby appoint CD of, etc., my attorney for me and on
my behalf to appear for and represent me before the Sub-Registrar of………………………… of all times as
may be necessary and to present before him for registration the………………………… deed dated
the………………… day of………………………… made between, etc., to admit the execution of the said deed by
me (if necessary toadmit the receipt of consideration), to do any act, deed or thing as may be necessary
to complete the registration of the said deed in the manner required by law and when it has been
returned to him after being duly registered, to give proper receipt and discharge for the same.

And I, the said AB, do hereby agree and declare that all acts, deeds and things done, executed or
performed by the said CD shall be valid and binding on me to all intents and purposes as if done by me
personally which I undertake to ratify and confirm whenever required.

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Signed, sealed and delivered
Sd/-
Witnesses AB

LETTERS OF AUTHORITY
Letters of authority is nothing but a power of attorney. They are executed on plain paper and
not on stamp paper. Letters of authority are usually issued for collecting some documents or
papers, dividend interest etc. on behalf of another. By and large, the law relating to the
powers of attorney will apply to letters of authority.

Will
Will means the legal declaration of the intention of a testator with
respect to his property, which he desires to be carried into effect after
his death. (Sec 2(h)) of Indian Succession Act, 1925

‘Codicil’ means an instrument made in relation to a will and
explaining, altering or adding to its dispositions and is deemed to form
part of the will. Sec 2(d) of Indian Succession Act, 1925

Essential characteristics of will:
Ø The document must be in accordance with the requirements laid down under the Indian
Succession Act i.e. executed by a person competent to make a will and attested as rqu9ired under
the Act.
Ø The declaration should relate to the properties of the testator, which he wishes to bequeath
Ø The declaration must be to the effect that it operates after the death of the testator
Ø It is revocable during the life time of the testator. Any clause in the will stating that the testator
cannot revoke; it will render the will void.

Important points in connection with a Will:

Who can make a will:
Every person of sound mind and not being a minor may dispose of his property by will. Every person
who is deaf or dumb or blind can make a will provided they are able to know what they do by it.
Further, a person who is ordinarily insane may make his will during the interval in which he is of
sound mine.

However, no person can make a will while he is in a state of mind arising from intoxication or from
illness or from any other cause such that he does not know what he is doing.

Testamentary disposition is personal; it cannot be delegated to any other person. Thus, a testator
cannot confide to another, the right to make a will for him.

Type of will

Privileged will: Any soldier being employed in an expedition or engaged in actual warfare or an
airman so employed or engaged or any mariner being at sea, may, if he has
completed the age of eighteen years, dispose of his property by will in the manner
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provided in sec 66. Such wills are called as privileged wills. Privileged wills may be
made orally and may not always be in writing. If written in handwriting of testator,
it need not be signed or attested. It is governed by sec 65 & 66 of the Indian
succession Act.
Unprivileged Wills prepared by a person other than the persons giving privileged will are known
will: as unprivileged will. Such wills are required to be in writing, signed by testator and
attested by the two witnesses (except those made by mohammedans). It is
governed by section 63 of Indian Succession Act.
Language & Preparation of a will does not require any specific legal language. Any form of
Registration: writing, printing or type writing may be applied.
However, the language should be as simple as possible and free from technical
words and easily intelligible to a layman.
Registration of a will is not mandatory, it is optional. However, a registered will has
certain advantages.
Attestation: The will must be attested by two or more witnesses. Each witness must have seen
the testator sign or affix his mark to the will and each witness must sign the will in
the presence of the testator.
However, it is not necessary that all the witnesses must be present at the same
time and no particular form of attestation is necessary.
Construction of There are two cardinal principles in the construction of wills, deeds and other
will: documents and will. The first is those clear and unambiguous dispositive words are
not to be controlled/qualified by any general expression or intention.

The second is to use Lord Denhman’s language, that technical word or words of
known legal imports must have their legal effect even though the testator uses
inconsistent words, unless those inconsistent words are of such a nature as to
make its meaning perfectly clear.
Principles to be Cardinal Maxim: this maxim is to be observed to ascertain the intentions of the
followed: testator. This intention has to be primarily gathered from the document which is to
be read as a whole. (Gnambal Ammal V.T.Raju Iyer)

Relevant considerations: In construing the language of a will, the courts are
entitled and bound to bear in mind other matters than merely the words used.
They must consider the surrounding circumstances, position of the testator, family
relationship and many such things. The court is entitled to put itself into the
testator’s arm chair. (venkatanarasimha V. parthasarthy)
Avoidance of If two constructions are reasonably possible and one of them avoids intestacy
Intestacy: while the other involves it, the court would certainly be justified in preferring that
construction which avoids intestacy. (Kasturi V. Ponnammal)

Effects should be given to every disposition: It is one of the cardinal principles of
construction of will that as much as legally possible, effect should be given to every
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disposition contained in the will unless the law prevents effect being given to it.
(Rampali V. Chando)
Later part or last word to prevail in case part irreconcilable or there is repugnancy:
if the several parts of the will are absolutely irreconcilable, the part that is later has
to prevail. In case of repugnancy, the last word in the will shall prevail. (CIT V.
sugar mills association)

Other important points

Probate: Probate is a certificate granted under the seal of competent court, certifying the
will as the will of the testator and granting the administration of the estate of the
deceased in accordance with that will to the executor named under the will.
Letter of In case where the testator has failed to appoint an executor under a will or where
administration: the executor is appointed by refuses to act, letter of administration can be obtained
from the court of competent jurisdiction. Letter of administration is always
necessary where a person governed by the Indian succession Act dies intestate.

Points to be kept in mind while drafting the will:
Will is a most solemn document. It is also a sacred one as by it a dead man entrusts to the living the
carrying out of his wishes and desire. The following points may be incorporated while drafting the
will:
1. Mention the name and address of the testator
2. Mention of the fact that the testator is making the will voluntarily and in sound disposing state
of mind.
3. Details of the persons who would be entitled to the properties on intestacy.
4. Details of the procedure of making bequests.
5. Use of clear and unambiguous language.
6. Avoidance of conflict with the rule of law

Short Form of a Will

This is the last Will of mine, AB, etc., made this the ______ day of _______ at _______ which cancels my will
dated _______ made in favor of __________ now deceased.

WHEREAS I had made a Will on _________ bequeathing all my property in favor of _________, my
____________ (state relationship).

AND WHEREAS the said _________ died on __________ leaving behind _______

NOW I DECLARE THAT:
1. I hereby revoke my former Will dated,_______ in favour of ________aforesaid.
2. I bequeath all my properties to ________ my __________ (state relationship) absolutely.
3. I bequeath the following annuities to commence from the date of my death and to be paid in
monthly installments:
i. To my daughter CD, etc., an annuity of Rs________ to be paid during her life ;
ii. To my nephew EF, etc., an annuity of Rs_________ for his life.
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iii. To my old servant GH, etc., an annuity of Rs__________ during his life.

In witness whereof I the said AB have signed this Will here under the day and year first written above.
Sd.
AB

Simple Will Giving All Property to Wife

I, AB, etc hereby revoke all former Wills and codicils made by me and declare this to be my last Will
whereby I bequeath and devise all my movable and immovable property whatsoever to my wife, CD
and appoint her sole executrix of this Will.

IN WITNESS WHEREOF. I have signed this Will hereunder on the.................day of.............
(Sd.)..........................
(AB)

Signed by the above-named testator in our presence at the same time and each of us has in the
presence of the testator signed his name hereunder as an attesting witness.
1..........................
2..........................

Will by a Hindu in Favor of Family

This is the last Will of mine, AB, etc., a Hindu, made this______________ the.......................... day of
.......................... Voluntarily and while in sound state of mind.

WHEREAS I am now 70 years old and have been keeping indifferent health for a past few months;

AND WHEREAS I am possessed of considerable movable and immovable properties more particularly
described in the schedule annexed hereto which are my self-acquired properties and which were
acquired without any detriment to the ancestral property or to the family funds and I have the
absolute powers of disposal over the same ;

AND WHEREAS I am anxious to make necessary arrangements in respect of the enjoyment of my
properties after my life-time so that unnecessary misunderstanding and consequential wasteful
litigation between the members of my family may be avoided. Therefore, I am executing this last Will
and testament of mine of my own free will voluntarily without any compulsion or pressure of any
person and with a sound disposing mind and declare as follows:

1. I hereby revoke all former Wills and codicils made by me at any time heretofore.
2. I have my wife CD, two daughters EF and GH and two sons KL and MN who will be entitled to
succeed to my properties under law in the normal course. But my daughters are all married and
they are living separately with their husbands. They have been properly and well provided for
during their marriage. They are therefore not given any share in my properties under this Will.
3. I bequeath the property bearing No.......................... described as item No. 1 in the Schedule hereto to
my first son KL absolutely to be held and enjoyed by him with full and absolute powers of
alienation.
4. I bequeath the property bearing No.......................... described as item No. 2 in the Schedule hereunder
to my second son MN absolutely to be held and enjoyed by him with full and absolute powers of
disposal.
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5. I bequeath to my wife CD the property bearing No.......................... and described as item No. 3 in the
Schedule hereto absolutely to be held and enjoyed by her with full and absolute power of
alienation.
6. Any assets, movable or immovable, which might be omitted from being mentioned in this Will or
which may hereafter be acquired by me shall be taken by my wife and the two sons aforesaid in
equal shares absolutely.
7. Though I have bequeathed no share in my properties to my daughters aforesaid, as a token of love
and affection for them I hereby direct my two sons KL and MN that each one of them will pay to
each one of my daughters a sum of Rs.......................... and this sum shall be a charge on the properties
allotted to my above sons respectively hereto.
8. All the jewellery and ornaments, gold and silver, will belong to my wife absolutely and my sons or
daughters aforesaid will have no right to the same.
9. I hereby appoint my two sons KL and MN as the joint executors under this Will.

IN WITNESS WHEREOF I, the above-named testator have signed this Will hereunder the day and year
first written above.
(Sd.)..........................
(AB)

Signed by the above-named AB in our presence at the same time and each of us has in the presence of
the testator signed his name hereunder as an attesting witness.

1..........................
2..........................

SCHEDULE OF PROPERTY
1..........................
2..........................
3..........................

Relinquishment Deed
A release or relinquishment deed is an instrument whereby a person
renounces a claim upon another or against any specified property,
which he is or may be entitled to enforce.

When considered from the point of view of the person in whose
favor the transaction operates, it is a ‘release’, when considered from
the point of view of the releaser, it may be said to be a
‘relinquishment’
A release must be in writing signed by all the releasers. It can be
drafted as a deed poll or as a deed. If it drafted as a deed then all
releasers and all persons having an interest in the claim or property
should be made parties.
If the deed is required to be registered, it should be attested by at
least two witnesses. In other cases, one witness may attest it.

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SPECIMAN FORMS
DEED OF RELEASE BETWEEN TWO PARTNERS ON DISSOLUTION OF PARTNERSHIP
THIS RELEASE is made on the.......................:........ day of................................ BETWEEN AB,etc., (hereinafter

called the “one party”) of the first part AND CD, etc. (hereinafter called the “other party”) of the second
part.
WHEREAS the said AB, and CD, were carrying on in partnership the business of................and the said
business was wound up and the partnership dissolved by deed, dated................executed by the said
parties;

AND WHEREAS the winding up of the said business was entrusted to the arbitration of EF
of........................... and he after realizing the debts and calling in the property and assets of the said
business and after paying all creditors and liquidating all the liabilities apportioned the shares of the
parties, giving to the said AB a sum of Rs................... and to the said CD the sum of Rs................. ;

AND WHEREAS the parties for mutual safety are desirous of executing this deed of release so that all
future disputes in regard to the said partnership or the business may be set at rest.

NOW THEREFORE THIS DEED WITNESSES that in pursuance of the said mutual desire the said AB
hereby releases the said CD and also that the said CD hereby releases the said AB from all sums of
money, accounts, proceedings, claims and demands whatsoever which either of them at any time had
or has up to the date of the said dissolution against the other, in respect of or in relation to the said
partnership or the business of the said partnership.

IN WITNESS WHEREOF the said AB, and the said CD have hereto at …………. signed on the day and the
year first above-mentioned.

Witnesses
Hire-Purchase Deed
Introduction
A contract of hire is a contract of bailment and is
governed by the provisions of Chapter IX of the Indian
Contract Act, 1872 and provisions of Sales of Goods
Act 1930

The Hire-Purchase Act, 1972 passed by the Parliament
received the assent of the President on June 1972 and
was to have come in force on September 1,1973, but
operation was postponed sine die by a Notification in the Gazette of India on 30th August,
1973.

The provisions of the Hire-Purchase Act, 1972, although the Act has not been enforced as law,
still provide ample guidance and the same should be adhered to in providing a legal cover to
the transaction of hire-purchase.

Some of the important aspects of the Act, relevant to hire-purchase agreements, are given
below:

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(1) Every hire-purchase agreement shall be:
(a) in writing, and
(b) signed by all the parties thereto.
(2) A hire-purchase agreement shall be void if not in writing and signed.
(3) Where the hire-purchase is associated with a contract of guarantee, the hire-purchase
agreement shall be signed by the surety also, and if the hire-purchase agreement is not so
signed, the hire-purchase agreement shall be voidable at the option of the owner

The essential terms of hire purchase agreement are
a. a clause by which the owners agree to let and hirer agrees to hire the goods; and
b. a clause giving to the hirer a right to determine the hiring or return the goods; and
c. a clause giving the hirer a right or option to purchase the goods for a nominal sum at the
end of the hiring.

Minimum payment Clause:
It is usual to provide the minimum payment clause, which provides that in the event of the
determination of the agreement by the hirer or the owner, the hirer shall be liable to pay 50%
of the total price after deduction of the installments already paid by the hirer.

Stamp duty and registration:
A deed of hire purchase is liable to stamp duty as an agreement under Article 5 of the Indian
Stamp Act, 1899. Registration is not compulsory.

Type of Hire Purchase Agreements:
The hire purchase agreement broadly takes one of the two forms:

1) When the owner is unwilling to look to the purchaser of goods to recover the balance of the
price and the financer obtains the hire purchase agreement from the customer under which
the latter becomes owner of the goods on payment of all the installments and exercising his
option to purchase.

2) In the other type of hire purchase, the goods are purchased by the customer, who in
consideration of executing a hire purchase agreement remains in possession of the goods,
subject to the liability.

Generally, there is also a guarantor who signs the agreement as a surety.

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AGREEMENT FOR HIRE PURCHASE

THIS AGREEMENT made this…………………… day of…………………… by and between:

Mr. A son of Mr. B residing at ____________________________ (hereinafter called the owner) OF THE ONE
PART which expression shall include his respective heirs, executors, administrators, legal
representatives and assigns unless repugnant to the context
AND
Mr. C son of _________ resident at __________ (hereinafter called the hirer) OF THE OTHER PART, which
expression shall include their respective heirs, executors, administrators, legal representatives and
assigns unless repugnant to the context

WHEREAS, the owner is engaged in the business of manufacturing……………… and has agreed
to let to the hirer…………………… and the hirer has agreed to take on hire the said goods more
particularly described in the Schedule A hereto for the term of…………………… years
from…………………… 2013 on the terms hereby agreed to between the owner and hirer as
follows:
NOW THIS AGREEMENT DO HEREBY WITNESSES AS FOLLOWS:

1. The hirer shall pay to the owner on the execution of this agreement the sum of
Rs…………………… the hire for the first month and on the first day of every calendar month
or year during the hiring the sum of Rs…………………… by way of hire for the said goods, or
shall pay the rent specified in Schedule-B hereto and payable without demand on the day
therein mentioned.

2. The hirer shall at any time during the hiring have the option of purchasing the said goods
for Rs…………………… and in that event the hirer shall receive credit for all sums previously
paid by him under the preceding clause. Until a purchase shall have been affected and the
price fully paid the said goods shall remain the property of the owner.

3. During the hiring tenure the hirer will:
a) Not sell, pledge, hypothecate, charge or in any manner encumber the goods or part
with possession of the said goods or any of them;
b) Not without the consent in writing of the owner, remove the said goods or any part
thereof from the premises of the hirer at…………………… and shall keep the owner
informed forthwith of any charge in address or shift of place;
c) Will not lend or transfer the goods to any other person without the previous sanction
in writing of the owner;
d) Will keep the goods in good order and condition and will, on the expiry of years or
earlier termination of this agreement, return the same to owner in the same condition
in which it has been lent, reasonable wear and tear excepted, and all loss or damage
due to breakage or any other cause shall be made good by hirer at his own cost;
e) Pay all taxes, fees, duties, fines, registration charges, other expenses, payable in
respect of the assets - when the same shall become due;
f) Permit the owner or his authorized agent or nominee at all reasonable times to
inspect and examine the condition of the said goods;
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g) Shall keep the goods insured against all losses or damage by fire, tempest or theft
upto the value of Rs…………………… with an Insurance Company to be approved by the
owner and shall punctually pay all premia and produce to owner when so required
the receipts for the last premium payable and keep the insurance alive during the
continuance of the agreement. If the said hired goods is injured or destroyed by fire
or lost by theft all moneys received in respect of such insurance shall be paid
forthwith to the owner and the hirer shall pay to the owner all sums of money
received in respect of such insurances who shall apply such money in making good
the loss by replacement of such damaged part or parts or the entire goods of similar
description and value whereupon such substituted part or parts or goods shall
become subject to this agreement in the same manner as the original goods;
h) In case of default by hirer in payment of any insurance premium as mentioned in sub-
clause (g) or the charges mentioned in sub-clause (e) above, the owner may pay the
same or any part thereof and any sum so paid by them shall be reimbursed by the
hirer together with interest thereon at the rate of 15% p.a. from the date of payment
by the owner;
i) The hirer shall indemnify the owner against claims by third parties arising by
accident caused by user of the asset until the determination of this agreement;
j) The hirer shall not use or permit or suffer the asset to be used in contravention of any
statute and regulations for the time being in force or otherwise in any way contrary to
law excepting as permitted under this agreement.

4. The hirer shall forthwith intimate the owners any change of address of the hirer and of the
address of the premises where the asset is kept and shall further more forthwith notify the
owner in writing of any loss or damage to the said asset.
5. If the hirer shall make default in the punctual payment in full, of the said monthly hire or
in the observance or performance of any of the provisions of this agreement, on his part to
be observed and performed the hiring shall immediately determine (specify here other
conditions stipulated by the owner).
6. At the termination of this agreement either at the instance of the hirer or the owner, the
hirer shall pay to the owner by way of compensation for depreciation of the said article
such sum as with the amount previously paid for hire shall make up a sum equal to not
less than one half of total amount payable under the agreement.
7. Any time or other indulgence granted by the owner shall not prejudice or affect his strict
rights under this agreement.

IN WITNESS WHEREOF the parties to this DEED have put and subscribed their respective
hands in presenceof witnesses on this .......... day of .......... in the year .......... at ..........

Witnesses
1 sd/
owner

2 sd/
Hirer

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SCHEDULE A
(Above referred to)
Family settlement Deeds

Introduction
A family arrangement is an agreement
between members of the same family,
intended to be generally and reasonable for
the benefit of the family property and
avoiding unwanted litigations.

Family arrangements are governed by

principles, which are not applicable to
dealings between strangers. The Supreme
Court has generally taken a broad view of the
matter and leaned heavily in favor of
upholding such arrangement. According to
Supreme Court, a family arrangement by
which the property is equitably divided
between the various contenders so as to
achieve an equal distribution of wealth instead of concentrating the same in the hands of few,
is undoubtedly a milestone in the administration of social justice.

In kale V. Dy. Director of consolidation, the SC has laid down the following propositions to put
the binding effect and the essentials of a family settlement in a concretized form:

The family settlement must be a bona fide one so as to resolve the family dispute by fair and
equitable distribution.

The said settlement must be voluntary and should not be induced by fraud, coercion writing.
The members who may be parties to the family arrangement must have some title, claim or
interest in the property, which is acknowledged by the parties to the settlement.

The family arrangement is final and binding on the parties to the settlement.
Even if a party has no title, but under the arrangement, a family member if relinquishing his
portion in the property to such a party, then the title of such party will be assumed and the
family arrangement will be upheld.

A family arrangement, which is for the benefit of the family generally, can be enforced in court
of law provided there was an occasion for effecting family arrangement and that it was acted
upon. (Lakshmi Perumallu v. Krishnavenarnma)

Specimen form
Settlement of Family Business

This Deed of Family Arrangement is executed on this .......... in the year 2013 by and between:

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AB S/o MN aged .......... years, occupation .......... R/o .................... (hereinafter called as the first
party)
And
CD S/o XM aged .................... years, occupation and R/o .................... (hereinafter called as the
second party)

WHEREAS
(1) The first party has started and carried out the business and undertaking described in
Schedule ‘C’ by hisown initiative and efforts with his own capital and funds.

(2) The second party, who is son of the pre-deceased son of the first party and residing with
him under thecare and parentage of the first party and assisting him in conduct of the
aforesaid business for which hewas being paid share in profit. The second party thus having
contributed his labour and skill for thedevelopment of the business rendered valuable
services for the same and rendered himself entitled for anequal share in the said business. It
has been settled and decided to distribute the business amongst theparties so also the
properties. The first party shall hold the share in business and properties described
inSchedule ‘D’ and the second party shall hold the share in business and properties described
in Schedule ‘E’.

(3) The movable and immovable properties, which is also described in Schedule ‘C’ have been
acquired bythe first party out of the funds of the said business in his name and for his use and
benefits.
NOW THIS DEED WITNESSETH AS FOLLOWS:
1. The second party shall hold, own and possess as full and absolute owner of the business
and propertiesdescribed in Schedule ‘E’ without any demand or claim by the first party any
account whatsoever forwhich, he has expressly granted, conveyed, transferred and assigned
by the first party.

2. The business and properties have been distributed amongst the parties to this deed. It is
hereby decidedand declared that the first party hereinafter shall hold, own and possess as full
and absolute owner ofthe business and properties described in Schedule ‘D’ and the second
party shall not interfere in thesame and he has relinquished his rights in the said part of
business and properties described in Schedule‘D’.

IN WITNESS WHEREOF the parties to this DEED have put and subscribed their respective
hands in presenceof witnesses on this .......... day of .......... in the year .......... at ..........

Witnesses
1.
2.
Signatures
First Party
Second Party

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PAST EXAM QUESTIONS
Q1 Write short notes on:
• Power of attorney & letter of authority (June’09)
• Irrevocable power of attorney (Dec’13, june’12)
• Principle governing the construction of a power of attorney (Dec’12)

Q2 Distinguish between:
• Probate & letter of administration (Dec’14, june’15)
• Privileged will & unprivileged will (Dec’14)
Q3 Every person of sound mind, not being minor may dispose off his property by a will. Comment.
(june’14)
Q4 In the light of judicial pronouncement, discuss the following:
• Relevant consideration in constructing a will. (June’14)
• The court is entitled to put itself into the testator’s armchair. (June’15)
• A family arrangement can be enforced in a court of law. (June’15)
• In case of repugnancy in a will, last word shall prevail. (June’15)
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VARIOUS DEEDS AND AGREEMENTS-III

INTRODUCTION
Sale of immovable property is governed by the provisions of Transfer of
Property Act, 1882. Chapter-III of the said Act deals with the sale of
immovable property exclusively.
Section 4 of the said Act defines sale as
A transfer of ownership in exchange for a price paid or promised or part-paid and part-
promised.
ESSENTIAL REQUIREMENTS OF SALE OF IMMOVABLE PROPERTY:

The following are the essential requirements of sale of an immovable property:
v Transfer of ownership in exchange of price paid or promised or part paid or part promised.
v Parties to transaction of sale are known as seller and buyer.
v Subject-matter of sale is immovable property which is sold by seller and purchased by buyer.
v Delivery of possession of property to the buyer by seller may be made as under:
Ø Property of the value of less than Rs. 100/- may be transferred merely by delivery of physical
possession;
Ø Property of the value exceeding Rs. 100/- may be transferred under a written instrument
known as 'Sale Deed' which should be registered under the Registered Act, 1908.
v Sale of immovable property attracts stamp duty under the Indian Stamp Act.

RIGHTS AND LIABILITIES OF BUYER AND SELLER:
Section 55 of the Act prescribes the rights and liabilities of buyer and seller.

The seller under Sub-section (1) is bound to
(a) Disclose to the buyer any material defect in the property or in his title to such
property.
(b) To give title documents to buyer for investigation of sellers titles to the property under
transaction of sale,
(c) To answer the question put to him by the buyer and provide all necessary information
to him in regard to the property.
(d) To execute the conveyance document on payment of consideration money in favor of
the buyer,
(e) Pay all public dues on the property till the date of conveyance and take due care as
a man of ordinary prudence to protect the title of the property till it is passed on to
the genuine buyer.

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The buyer is also duty bound under the provisions of the Act to do the following
things-
v To disclose to seller the interest of the seller in the property of which he is aware and
believes that the seller is not aware and this information is likely to affect the price of
the property.
v To pay or tender the purchases money to the seller or such person as he directs, where
the ownership of property has passed to buyer he has to bear the full responsibility
including any loss to the property etc.
v To pay public dues from the date of transfer of ownership of the property.

Some of the important conditions which a draftsman should bear in mind while
drafting a Sale Deed are very precisely noted below:

Lawful The property must be purchased as a part of legal transaction having paid
Consideration and the consideration as required under the provisions of the Indian Contract
Object Act, 1872 for a valid contract. Besides, the objectives for which the
property is being purchased by the company should be lawful i.e., not
forbidden by law, not to defeat the provisions of any law, not to be
fraudulent, not to involve or impart injury to the person or property of
another and should not be regarded by the court of law as immoral or
opposed to public policy.
Competence of For a company, the test of competence to enter into a transaction of sale
Person to Transfer or purchase is that its Board of Directors should authorise a person under
the resolution passed in their meeting held in conformity with the Articles
of Association and having object clause to sell or purchase immovable
property under its Memorandum of Association. In case the other party is
an individual who is either selling to the company or purchasing from the
company any land or immovable property such individual should be
considered competent to transfer if it fulfils the necessary conditions
prescribed under the Indian Contract Act, 1872 viz.
(i) Should be of the age of majority,

(ii) Be of sound mind;
(iii) Not be disqualified from contracting by any law to which such
individual is subjected.

Transfer of All All interests which a transferor is capable of passing in the property as
Interest - in the legal incident of the transfer should be explained in the document, for
Property example, if it is transfer of land, the easements annexed thereto, the rents
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of profits thereof, things attached thereto etc.
Absolute Transfer The transfer should be free of any conditions or limitations which may
inhibit the other party to make full use of the property in exercise of legal
rights.
Absolute Interest The interest being transferred in the property should not be conditional
in the Property which may restrict full enjoyment of the property by the transferee.
Justification for Cogent reasons for the transfer be given so as to establish bona fide base
Transfer for the transaction and to avoid eventualities of fraud and multiple
litigation therefrom.
Protection of Law protects creditors’ interest in the transferred property. In drafting of

Creditors’ Interest Sale Deed this point should be accommodated if the circumstances so
warrant.
Enforcement of If a transferee is aware of such rights attached to the property and the
Rights Attached to transfer is gratuitous then the person can enforce such rights against
Property on Valid transferee. But this could be avoided if the transferee has no notice about
Transfer such rights attached to property and also has paid full consideration for
the transaction.
Property to be Free The property being transferred should be free from any rights or
from Conditions obligations which a third person can enforce legally against transferee for
enjoying any benefits.
Transfer in Good Where the property is transferred by a person not to be the real owner, it
Faith and with Full is necessary to make such transfer valid for the transferor should have
Authority the authority to transfer and he must exercise this authority in good faith.
Protection for Law protects the transferee who acquires the immovable property under
Defective Title good faith and for bona fide consideration but by any circumstance
unknown to him is rendered to have defective title, Section 51 of the
Transfer of Property Act, provides such protection to bona fide
transferees acquiring properties in good faith.
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Precautions The draftsman should know beforehand that the property under transfer
is free from encumbrances and no litigation questioning such property or
rights or interest connected therewith is pending in any court. To avoid
fraudulent transfers, the draftsman should ensure that the title to such
property has been investigated by competent advocate and he has
certified the title free from any encumbrance whatsoever.

Sale by liquidator of a Company in Voluntary Liquidation
In case of sale by liquidator of a company in voluntary liquidation, liquidator acts as one of
the party (Seller) on behalf of the company under liquidation. In such an agreement, the
reference of the special resolution passed by the company should also be given in the recitals.
SALE BY LIQUIDATOR OF A COMPANY IN VOLUNTARY LIQUIDATION

Liquidation means winding of the company and Liquidator is the officer appointed to conduct the
winding up of a company. Winding up is a proceeding by means of which the dissolution of a
company is brought about and in the course of which its assets are collected and realized and
applied in payment of its debts and when these are satisfied, returning to its members the sums
which they have contributed to the company or paying them other moneys due to them in their
character of members.
SPECIMEN FORMS FOR DEEDS OF SALE OF IMMOVABLE PROPERTY

THIS SALE DEED made on the………….. Day of…………..2013 by and between:

AB, etc., (hereinafter called “the vendor”) of the one part and the term unless repugnant to the
context otherwise shall also include his legal heir, POA thereof.
AND
CD, etc, (hereinafter called “the purchaser”) of the other part and the term unless repugnant
to the context otherwise shall also include his legal heir, POA thereof.

Put Recital (both Narrative and introductory)
THIS DEED OF SALE WITNESSES AS FOLLOWS:

1. In consideration of the sum of Rs…………. paid by the purchaser to the vendor on
the…………………….. day of………….. (the receipt of which the vendor hereby acknowledges)
the vendor as owner hereby transfers to the purchaser by way of sale ALL that pucca
house standing on the land measuring meters by 10 meters fully described in the schedule
hereto annexed and thereon shown with its boundaries colored red TO HOLD the same to
the purchaser as absolute owner.

2. The vendor hereby covenants with the purchaser as follows:
a. The said premises shall be quietly entered into and upon and held and enjoyed and
the rents and profits received there from by the purchaser without any interruption or
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disturbance by the vendor or any person claiming through or under him and without
any lawful disturbance or interruption by any other person whomsoever;
b. The vendor will at the cost of the person requiring the same, execute and do every
such assurance or thing necessary for further more perfectly assuring the said
premises to the purchaser, his heirs or assigns as may reasonably be required;
c. The interest hereby transferred subsists and the vendor has power to sell the same;
d. The property hereby sold is free from encumbrances.

3. PROVIDED ALWAYS and it is hereby agreed that wherever such an interpretation would
be requisite to give the fullest possible scope and effect to any contract or covenant herein
contained the expressions “the vendor” and “the purchaser” hereinbefore used include
their respective heirs, legal representatives, successors and assigns.

IN WITNESS WHEREOF the parties hereto have signed this Deed of Sale on the date
mentioned against their respective signatures.

Witness 1 Vendor

Witness 2 Purchaser

The schedule herein referred to
(Description of the property)

DEED OF SALE BY A CERTIFIED GUARDIAN OF A HINDU MINOR
THIS DEED OF SALE is made on 08th Day of March, 2015 at (Place) by and between
Mr. A, Son of Mr. B, Residence of ______________ hereinafter called as ‘Vendor’ of the one part
(Which expression shall, unless repugnant to the context, include his legal heirs, executors,
administrators, representatives and assigns)
AND
Mr. C, Son of Mr. Y, Residence of ______________ hereinafter called 'Purchaser', of the other part
(which expression shall, unless repugnant to the context, include his legal heirs, executors,
administrators, representatives and assigns).
WHEREAS by an order made by the District Judge of __________ in case no. under Act, the said
Mr. A was appointed as a certificated guardian of Mr. X. who was then and is still now a minor.

AND WHEREAS by an order date ____________ made by the District judge of ___________, the said
and Mr. A was authorized to sell the lands and tenements belonging solely and exclusively to
the said minor on terms there under contained and the said order is still in full force.
AND WHEREAS in pursuance of the said order, the said Mr. A as such certificated guardian
has contracted with the said Mr. C for absolute sale of the said property more particularly
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described in the annexure to this deed.
NOW THIS DEED OF SALE HEREBY WITNESSETH AS UNDER:

1. That the price of the property is fixed at Rs. __________ (rupees_____________.) free from all
encumbrances.
That the Purchaser has paid to the vendor and the Vendor hereby acknowledges the receipt of
a Sum of Rs. ___________ (Rupees ___________________) as full consideration towards this deed on
__________ (Date).
That for consideration as aforesaid and by virtue of the aforesaid order of the District
Court , the Vendor do hereby grant, convey, sell, transfer and assure as certificated guardian
of said minor, the said property and every part thereof to the use of the said Purchaser, to
have and to hold the same absolutely and forever
In Witness Whereof The Vendor And The Purchaser have set their respective hands to the
agreement of sale/purchase on the day, month and the year above written in the presence of
the following witnesses
Witnesses:
1 Vendor
2 Purchaser
Annexure:
Municipal no./Ward no./Plot no./Khasra No.: CTS No.:
Location: Street name:
Police Station:
Tehsil/Taluka/Sub-district:
Plot no. Situated in CTS No.
On its North is
On its South is
On its East is
On its West is

SALE OF JOINT FAMILY PROPERTY BY HUF OUT OF LEGAL NECESSITY:
In case of co-owners of undivided property, all the co-owners join in as parties (Seller)
to the agreement. Such property sale may be due to some legal necessity such as to pay
off heavy liabilities, business closure etc.
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Such specific clauses will have to be incorporated in the agreement at appropriate
place whereas the rest of the agreement remains the same.
DEED OF SALE OF JOINT FAMILY PROPERTY FOR LEGAL NECESSITY

THIS DEED OF SALE is made on 08th Day of March, 2015 at (Place) by and between
Mr. A, Son of Mr. B, Residence of for self and as a Karta representing all other coparceners
Viz. his sons named Mr. X, Mr. Y and Mr. Z, all constituting a Joint Hindu undivided family
(hereinafter referred to as 'Vendor' of the first part) which expression shall, unless repugnant
to the context thereof, include the legal heir and legal representatives of the Co-parceners
thereof)
AND
Mr. D, Son of Mr. P, Residence of _________ hereinafter called 'Purchaser' of the other part
(which expression shall, unless repugnant to the context, include his legal heirs, executors,
administrators, representatives and assigns thereof).
WHEREAS the said joint family for several part owned and still owns and possesses
inter alia the lands, hereditaments and premises described in Schedule -A hereto as party
AND WHEREAS the said joint family also carried on and still carries on the business as dealers
and suppliers of _________ at __________________ under the name and style of _________________
AND WHEREAS the aforesaid business suffered huge losses of its capital and reserves
estimated at Rs. _________________in the year_________ due to outbreak of fire at its godown
situated at ___________ on the day of ________________________
AND WHEREAS the joint family could not also pay its income tax and other capital and
revenue liabilities of the said business aggregating to Rs. ____________and its business debts are
outstanding at Rs. ___________________
AND WHEREAS the said joint family has at present and in foreseeable future no source of
funds available nor any other means or resources to make up the deficit except by sale of one
of its properties.
AND WHEREAS in the circumstances aforesaid the said Mr. A for self and as Karta of the said
joint family has by an agreement agreed with the said Mr. 0 for sale of the property for the
sum of Rs.__________
AND WHEREAS such sale is to the interest and for the benefit of the said joint family and its
estate
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AND WHEREAS the said Mr. D, after bona fide and independent enquiry, is satisfied about
the clear title of the property as well as present financial condition of the family and the
debts and liabilities which results in the necessity for such sale.
(Include common terms and conditions in case of sale of property)
IN WITNESS WHEREOF THE VENDOR AND THE PURCHASER have set their respective
hand to the agreement of sale/purchase on the day, month and the year above written in
the presence of the following witnesses:

Witnesses:
1: Name of Witness
Father's name (Signature) Vendor (Signature)
Address

2 : Name of Witness
Father's name (Signature) Purchaser (Signature)
Address

Schedule A:
Municipal no./Ward no./Plot no./Khasra No. :
Location: Street name:

Plot no. ________________________ Situated in _ ___________________ CTS No. __________________________
On its North is ___________________
On its South is _ ___________________
On its East is __________________
On its West is _____________________
Police Station: Tehsil/Taluka/Sub-district:

A SPECIMEN OF DEED OF SALE BY LIQUIDATOR OF A COMPANY IN

VOLUNTARY LIQUIDATION

THIS SALE DEED is made on the16th day of March 2015 by:

Voluntary liquidator of ABC Co. Ltd., (in voluntary liquidation) (hereinafter called “the
vendor”) of the one part, in favour of Shri…... son of Shri…..……………..,
Occupation…..…………….., resident of…..…………….. (Hereinafter called “the purchaser”) of the
other part, under the terms and conditions mentioned below:

WHEREAS by a special resolution passed by the shareholders of…..…………….. Co. Ltd., at an
Extraordinary General Meeting held on the…..…………….. day of…..…………….., of which notice as
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prescribed by law had been duly given, and it was resolved that the company be wound up
voluntarily;

AND WHEREAS the said vendor was appointed its voluntary liquidator on…..………… the
notice whereof was duly submitted to the Registrar of Companies…..…………….. as prescribed
by law, on the…..…………….. Day of…..……………..;

AND WHEREAS in a meeting of the shareholders of the said company held in accordance with
the provisions of the Companies Act, 1956, it was resolved that the properties mentioned in
the Schedule annexed hereto be sold by the vendor after publishing a notice for sale
in…..…………….. and…..…………….., daily newspapers twice within a period of a fortnight, and
pursuant to such resolution, the vendor had duly advertised the sale of the said properties in
the issues of…..…………….. Dated…..…………….. Respectively and issues of…..…………..
Dated…..…………….. Respectively and pursuant thereto have received offers, the highest
whereof was that of the said purchaser;

AND WHEREAS the said vendor agreed to sell and the said purchaser agreed to purchase the
said properties on the terms and conditions mentioned herein and incorporated in an
agreement to sell dated…..…………….. Between the said vendor and the said purchaser.

NOW THIS DEED OF SALE WITNESSES AND IT IS HEREBY AGREED AND DECLARED AS
FOLLOWS:
That pursuant to the agreement and in consideration of the sum of Rs 25,00,000 (Rs. Twenty
five Lakhs) paid by the purchaser before the Sub-Registrar, on presentation of this Deed of
sale for registration thereof (the receipt whereof the vendor hereby acknowledges) the
vendor hereby transfers by way of sale and conveys on behalf of the said company all those
items of the property mentioned more particularly in the Schedule attached hereto, unto the
said purchaser, his heirs and assigns to have and to hold the same absolutely and forever.

In Witness Whereof the parties aforementioned have signed this Deed of Sale on the date,
month and the year aforementioned.

Witness: 1. Vendor
Witness: 2.
Purchaser

SALE OF BUSINESS AND ASSIGNMENT OF GOODWILL
Wharton's Law lexicon defines goodwill as the advantage or benefit which is required by a
business, beyond mere value of the capital stock, funds or property employed therein, in
consequence of the general public patronage and encouragement which It receives from
constant or habitual customers.
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Supreme Court of India in Khushal/ Khengar Shah v. Khorshedbanu, AIR 1970 SC 1147,
had opined goodwill of a business as an intangible asset being the whole advantage of the
reputation and connections formed with the customers together with the circumstances
which make the connections durable. It is that component of the total value of the undertaking
which is attributable to the ability of the concern to earn profits over a course of years
because of its reputation, location and other features.

A SPECIMEN OF DEED OF SALE OF A BUSINESS AND ASSIGNMENT OF GOODWILL

THIS INDENTURE made the..…………….. day of…..…..…………….. by and between:

AB of, etc. (vendor), of the one part,
AND
CD of, etc. (purchaser) of the other part

WHEREAS the said AB has been carrying on the trade and business of, etc. etc., at premises
No…..…………….. under the name and style of…..……………..

AND WHEREAS the said AB has contracted with the said CD for the sale to him of all his stock-
in-trade and other assets and goodwill of the said trade of and the business in entirety as a
going concern together with all book debts and other debts and all rights and benefits of all
pending contracts, orders, securities, etc., full particulars whereof are contained in the books
of the said business and all money due and payable to the said AB on account there for
whether adjusted or unadjusted subject however to all contracts, orders and engagements
which are still to be executed or for which the said AB is otherwise liable; at and for the sum
of Rs…..…………….. upon the terms hereinafter mentioned;

AND WHEREAS the said AB has delivered to the said CD the books of account and other books
relating to the said business containing full particulars of the debts, respectively due and
owing to and from the said AB and also the particulars of the contracts and engagements to
which he is liable in respect of the said business.

NOW THIS DEED OF SALE WITNESSES THAT

In pursuance of the said agreement and in consideration of the sum of Rupees…..……………..
paid by the said CD to the said AB (the receipt whereof the said AB hereby admits and
acknowledges), and also in consideration of the covenants and conditions there under
contained to be observed and performed on the part of the said CD the said AB do hereby and
hereunder grant, convey, sell, transfer, assign and assure unto and to the use of the said CD all
that the trade or business carried under the name and style of…………….. at premises
No………….. with ALL beneficial interest and goodwill of the said AB, in the said trade and
business of, etc., so carried on by him as aforesaid, and also all the books and other debts now
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due and owing to him on account of the said trade and the business and all securities for the
same, and also all contracts and engagements and benefits and advantages thereof which have
been entered into with the said AB and also all the stock-in-trade goods, fixtures, articles and
things which, at the date of this deed, belong to the said AB on account of the said trade and
business, and all the rights, title and interest of the said AB to and in the said premises; TO
HAVE AND TO HOLD the same to the said CD absolutely.

AND THAT THE SAID AB does hereby covenant with the said CD that he, the said AB, will not
at any time hereafter, either by himself or in collaboration with any other person or persons,
or as a partner or as a director of any limited company carry on the said trade and business of,
etc., within a radius of..…………….. miles of, etc.

AND THAT the amount and particulars of the debts respectively due and owing to and from
the said AB on account of the said trade and business and the particulars of the contracts and
engagements to which he is liable with respect to the said trade and business, are correctly
stated in the books of account and other books delivered by the said AB to the said CD.

AND FURTHER THAT the said AB will pay or cause to be paid all and every sum to the said
trade and business in excess of the amount or amounts which by the said books appear to be
so due and owing.

AND FURTHERMORE THAT the said AB has good right, full power, absolute authority and
title to grant, convey, sell, transfer, assign and assure the trade or business of “______________ ”
unto and to the use of the said CD in the manner hereunder indicated together with the
benefit of the tenancy according to the nature and tenure of the contract.

AND THIS INDENTURE ALSO WITNESSES THAT the said AB do hereby irrevocably
nominate, appoint and constitute the said CD as his attorney for him and in his name to do,
execute and perform all acts, deeds, and things as shall be necessary or requisite to carry on
the said business as his successor and for that purpose to represent him before all
appropriate authorities and in all courts of law and to sue for, recover, realise and to give good
valid discharges for all moneys due and payable to him on account of or in connection with
the said trade or business hereby assigned and appropriate the same for his use and purposes.

IT IS FURTHER AGREED THAT the names of the parties hereto shall, unless inconsistent
with the context, include as well the heirs, administrators or assigns of the respective parties
as the parties themselves.

IN WITNESS, etc.

Signed, sealed and delivered ..............AB
..............CD

DEEDS OF MORTGAGES, LICENSE AND LEASE

MORTGAGE:
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Sec 58 of TOPA:- A mortgage is a transfer of interest in specific immovable property for the
purpose of securing the payment of money advanced or to be advanced by way of a loan, existing
or future debt or the performance of an acknowledgement, which may give rise to pecuniary
liabilities.

Note:- The Transfer of Property Act, 1882 deals with the mortgage of immovable
property alone.
It does not deal with movable at all. Therefore, it cannot be
regarded as forbidding the mortgage of movable property. A
mortgage of movables, such as plant and machinery, stock in
trade, policy is perfectly a valid transaction even though the
possession is not delivered and the mortgage is only a
hypothecation. The hypothecation of movables is increasingly
resorted to in the case of borrowings by companies for financing and implementation of its
various investment proposals.
The transferor in the case of a mortgage is called a 'mortgagor' and the transferee as
'mortgagee', the principal money and interest of which payment is secured for the time being
are called the 'mortgage money' and the instrument, if any, by which a transfer is effected is
called a "mortgage deed".

TYPES OF THE MORTGAGES:

The following are different kinds of mortgages in effect in India:

Simple In a simple mortgage, the mortgagor without delivering possession of the mortgaged
Mortgage property binds himself personally to pay the mortgage money and agrees expressly or
impliedly that if he fails to pay the debt and interest in terms of the mortgage deed, the
property will be sold and the proceeds applied in payment of the mortgaged money.
Mortgage by In a mortgage by conditional sale, the property is sold subject to the condition that on
Conditional default in payment of the mortgaged money on a certain date the sale shall become
Sale absolute or that on such payment the sale shall become void or on such payment the buyer
shall transfer the property to the seller. Possession of the property shall be with the
mortgagee.
Usufructuary In this mortgage, the mortgagor delivers possession of the mortgaged property to the
Mortgage mortgagee who retains the possession until the satisfaction of the debt. The mortgagee will
take the usufruct in lieu of the interest or part payment of the principal or partly in
payment of interest or partly in part payment of the principal. The mortgagor is not
personally liable to pay the debt and the mortgagee is not entitled during the term of the
mortgage to demand his mortgage money.
English In an English mortgage, a mortgagor binds himself to repay the mortgaged money on
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Mortgage certain date and transfers the mortgaged property absolutely to the mortgagee subject to
the proviso that he will re-transfer it to the mortgagor upon payment of the mortgaged
money as agreed.
Mortgage by Mortgage by deposit of title deeds is called in English law as equitable mortgage. It is an
Deposit of Title oral transaction and no documents like Deed of Mortgage is required to be executed. No
Deeds written acknowledgement is required for creating this mortgage. It is however, prudent to
have a record of transaction to avoid difficulties to establish the creation of the mortgage.
In this case, a Memorandum of Mortgage by deposit of title deeds is prepared by the
mortgagee to secure the specific mortgage money.
The main characteristics of this type of mortgage are as under:

v Debt even time barred, present and future advances are covered under the
equitable mortgage. In other types of mortgage, future advances are not covered.
v Delivery of title deeds is required to be made in Bombay, Madras and Calcutta and
other specified towns to which the facility is extended by State Government from
time to time through Gazette notification.
v It is not necessary for creation of mortgage that the property be located in the
specified town or the company making deposit should have its registered office in
that town.
v This deposit can be made by the company through its nominee or agent duly
authorized.
v Intent to create security by deposit of title deeds should be present at the time of
such deposit in the mortgagor.
v Neither ownership nor possession of the property passes to the mortgagee under
the equitable mortgage.
Anomalous Anomalous Mortgage is a combination of any of the above forms of mortgage or any
Mortgage: mortgage other than those set out above.

WHO CAN BE MORTGAGOR AND MORTGAGEE?
Any living person, company, or association or body of individuals, who has an interest on immovable
property, can mortgage that interest. In the case of a company mortgage of the property should be
duly authorized by 'Object Clause' of the Memorandum of Association and approved by a resolution of
the Board of directors.

Any person capable of holding property may take a mortgage unless he is disqualified by any special
law from doing so. A minor may be a mortgagee but as he cannot enter into a contract, the mortgage
should not involve any covenants by him.

Generally, the mortgage is associated with immovable property; immovable property includes –
1. Lands,
2. Benefits arising out of the land and
3. A thing attached to it BUT
Does not include
1. standing timber,
2. growing crops or
3. grass.
When the principal money secured is 100/- or more a mortgage other than a mortgage by deposit of
title deeds, can be effected only by a Registered instrument signed by the mortgagor and attested by at
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least two witnesses.

Equitable mortgage is preferred by the lenders/banks/creditors as well as the commercial
enterprises because of the inherent advantages viz.
a) To save time and avoid inconvenience of documentation, and registration;
b) To minimize cost of creating mortgage and cost of borrowed funds by saving stamp duty;
c) To maintain secrecy of the debt transaction;
d) It is a cut short method and skips many formalities like compliance of Section 230A of
Income-tax Act, 1961, and 293(1)(a) of the Companies Act.

Rights of v Rights to sellàIf borrower fail to return the loan in the time then the
Mortgagee mortgagee has the right to sell property of the mortgagor, but the same
can only be sold through auction subject to approval from the court.
v Right to recover shortfallàIn the case the amount to be-recovered
falls short after selling property, mortgagee shall have the right to
recover the balance due.
v Refusal to dealàMortgagee shall have the right to get a foreclosure
decree from the court.
Liabilities of v Property should be protected to the best possible extend.
Mortgagee v No alteration to the property.
v Proper Insurance Cover against the property.
v All taxes, revenues levied by government should be paid.
Rights of v Right to redeem the property on the payment of due.
mortgagor v Rights to claim damages in the case property in possession of Mortgagor.
v Rights to lease the property in case the property is in possession of
Mortgagor.
Liabilities of v Liability to pay taxes, revenues levied by government in the case the
Mortgagor property in the custody of Mortgagor.

Drafting of Deed of Mortgage
A deed of mortgage may be drafted either as a Deed Poll on behalf of the mortgagor in
favour of the mortgagee
Or as a deed between the mortgagor and mortgagee as parties.
In the case of an equitable mortgage, as we have seen earlier, it is prudent to execute a
memorandum referred to the deposit of title deeds to secure a specific mortgage money.
Deed of Simple Mortgage

THIS DEED of Mortgage made the……….. day of………….. 2013, by and between
‘AB’ of………….. etc. (hereinafter called “the Mortgagor”), of the One Part
AND
‘CD’ of, etc. (hereinafter called the “Mortgagee”), of the Other Part.
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WHEREAS the Mortgagor is absolutely seized and possessed of or otherwise is well and
sufficiently entitled the property intended to be hereby mortgaged which is free from all
encumbrances and attachments.

AND WHEREAS the Mortgagee has agreed to lend and advance a sum of Rs.………….. to the
Mortgagor at his request upon having the repayment thereof, with interest at the rate
hereunder stated and secured in the manner hereinafter expressed.

NOW THIS DEED WITNESSES, that in pursuance of the said agreement and in consideration of
the sum of Rs. ___________________ paid to the Mortgagor by the Mortgagee simultaneously with
the execution of these presents the receipt whereof the Mortgagor do hereby admit,
acknowledge and confirm, the Mortgagor do hereby agree with the Mortgagee that the
Mortgagor will on or before the________ day of……………..………….. 2013, pay or cause to be paid
to the Mortgagee the sum of Rs.………….. with interest for the same in the meantime at the rate
of Rs.………….. per cent, per annum, such interest to be paid monthly and every month on the
7th of each following month without any delay or default.

AND THIS DEED FURTHER WITNESSETH that as a security for the repayment of the said loan
with interest, the said ‘AB’ do hereby charge, assure and mortgage, by way of simple
mortgage, upto and in favour of the said ‘CD’ all property specifically described in the
Schedule hereto annexed, and charge and assure the same by way of security for the
repayment of the said sum of Rs. ………….. together with interest thereon at the rate of…………..
per cent, per annum;

AND THE Mortgagor does hereby agree and covenant with the Mortgagee that he will pay or
cause to be paid to the Mortgagor the principal sum aforesaid, together with the interest then
due, on or before the………….. day of………….. 2013, without delay or default; parties that in
case the said sum of Rs.………….. with interest thereon at the stipulated rate is not paid within
the time and in the manner as aforesaid, it shall be lawful for the Mortgagee to enforce this
mortgage and to cause the property or any portion sold and appropriate the proceeds
towards satisfaction of the mortgage debt provided, however, that in the event of any short-
fall or deficiency, i.e. should the claim be not then satisfied, the Mortgagee shall be entitled to
recover the balance personally as against the Mortgagor who shall be entitled to redeem the
said mortgage at his option by payment of the amount of mortgage debt inclusive of interest
at any time before the………….. day of………….. 2013.

AND THIS INDENTURE FURTHER WITNESSETH that the Mortgagor do hereby covenant with
the Mortgagee that notwithstanding any act, deed or thing here before done, executed,
performed or suffered to the contrary, the Mortgagor has good title, full power and absolute
authority to charge, assure and mortgage the said property in the manner hereunder effected
and that the same is free from all encumbrances and attachments.

IN WITNESS WHEREOF the parties herein under have set their hands on the day and year
hereinabove mentioned.

Witnesses:
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1. ...........................
MORTGAGOR
2. ...........................
MORTGAGEE

DEED OF MORTGAGE BY CONDITIONAL SALE

THIS DEED of Mortgage made the……….. day of………….. 2013, by and between

‘AB’ of………….. etc. (hereinafter called “the Mortgagor”), of the One Part
AND
‘CD’ of………….. etc. (hereinafter called “the Mortgagee”), of the Other part

WITNESSES that in consideration of the sum of Rs.………….. paid to the Mortgagor by the
Mortgagee (the receipt whereof the Mortgagor hereby acknowledges) the Mortgagor do
hereby grant, transfer, convey, assign and assure to the Mortgagee ALL that etc. To Have and
To Hold the same absolutely and for ever subject to the condition hereby expressly declared,
namely, that if and when the Mortgagor shall repay or cause to be repaid the said sum of
Rs.………….. with interest thereon at the rate of………… per cent per annum on or before…………..
day of………….. 2013, time for which purpose shall be deemed as essence of contract then and
in such an event the sale hereby effected shall stand void and shall be of no effect to all intents
and purposes and the Mortgagee shall at the costs of the Mortgagor reconvey and retransfer
the said property and every part thereof as then existing to the Mortgagor provided, however,
that if the Mortgagor shall fail and/or neglect to repay the said sum with interest at the said
rate on or before the said date, or any portion thereof the sale hereby effected shall become
absolute and the Mortgagee shall be entitled to foreclose the mortgage when and in such an
event the Mortgagee shall be the absolute owner of the property freed and discharged from all
the right of equity of redemption of the Mortgagor.

AND IT IS HEREBY FURTHER AGREED AND DECLARED that notwithstanding anything
hereinbefore contained the Mortgagor shall remain in possession of the said property and pay
all rents, cess, taxes, rates and other impositions which are now or may hereafter be imposed
on the said property and in case the Mortgagor fails and/or neglects to make such payments
on or before the due date of payments therefor, the Mortgagee shall be at liberty to pay the
same and add such sum or sums to the principal money hereby secured which shall carry\
interest at the aforesaid rate. And that the Mortgagor do hereby covenant with the Mortgagee
that he has good title to the property and absolute authority and power to transfer the same
in the manner hereinbefore indicated and that the property is free from all encumbrances and
attachments whatsoever.

IN WITNESS WHEREOF the parties herein under have set their hands on the date and year

Witnesses: Signed, sealed and delivered
1. ........................... MORTGAGOR ‘AB’
2. ........................... MORTGAGEE ‘CD’

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The Schedule above referred to

DEED OF ENGLISH MORTGAGE
THIS MORTGAGE made the…………………………………..…..………….. day of..…………….., 2013, by and
between

‘AB’ of, etc. (hereinafter called the “Mortgagor”) of the One Part,
AND
‘CD’ of, etc. (hereinafter called the “Mortgagee”) of the Other Part.

WHEREAS the Mortgagor is absolutely seized and possessed or is otherwise well and
sufficiently entitled to an absolute estate of inheritance or an estate equivalent thereto free
from encumbrances to the lands, hereditaments……………………….. fully mentioned and
described in the Schedule hereto AND whereas the Mortgagor having occasion to borrow a
sum of Rs…………………….………….. approached the Mortgagee which the Mortgagee has agreed
to lend and advance on having repayment thereof with interest at………….. per cent per annum
and secured by a conveyance by way of mortgage of the said property.

NOW THIS INDENTURE WITNESSETH that in consideration of the sum of
Rs…………………..……….. this day paid to the said ‘AB’ by the said ‘CD’ (the receipt whereof the
said ‘AB’ hereby acknowledges), the Mortgagor hereby agrees with the covenant to pay to the
Mortgagee on the………………..………….. day of…………..………….. the sum of Rs………….. with
interest thereon in the meantime at the rate of Rs………….. per cent per annum computed from
the date of this deed such interest to be paid monthly and every month on the 15th of every
current month.

NOW THIS INDENTURE also witnesses that for the consideration aforesaid the said ‘AB’ as the
beneficial owner, do hereby grant, transfer convey unto and to the use of the said ‘CD’ all that
etc. (describe the property): TO HAVE AND TO HOLD the same absolutely and for ever
PROVIDED ALWAYS that if the Mortgagor shall pay or cause to be paid the sum of Rs…………..
with interest thereon, on the………….. day of………….., according to the foregoing agreement in
that behalf, the Mortgagee, his heirs, representatives or assigns shall, at the request and costs
of the Mortgagor, his heirs, representatives or assigns, reconvey to him or them as he or they
shall direct, the said property. AND THAT the Mortgagor do hereby covenant unto the
Mortgagee that the Mortgagor has absolute title to the land, hereditaments, messages and
premises hereby granted and conveyed and that the Mortgagor has good right, full power,
absolute authority and indefeasible title to grant, convey, transfer, assign and assure the same
unto and to the use of the Mortgagee in the manner hereinbefore indicated and further the
Mortgagor and all persons having lawfully or equitably any estate or interest in the same shall
at all time hereafter during the continuance of the security do execute or perform or cause to
be done, executed and performed all such further or other acts, deeds and things as may be
reasonably required for further and more perfectly assuring the same unto and in favour of
the Mortgagee.

Provided, however, and it is further agreed by and between the parties that if the Mortgagor
commits any default in payment of the principal amount on the due date or any three
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installments of interest, whether they have been demanded or not it shall be lawful for the
Mortgagee to institute a suit for sale and to have a Receiver appointed over the mortgaged
property.

in witness whereof the parties herein under have set their hands on the date and year
hereinabove mentioned in the presence of:

Witnesses:
1. ........................... ‘AB’
2. ........................... ‘CD’

FURTHER CHARGE

Sometimes the mortgagee advances further sums of money to the mortgagor on the same security and
on the same condition. The deed executed to secure the advance of further sums of money is called
"Deed of Further Charge". The deed so executed would make a reference to the first mortgage and
would also set out the new loan/s, terms of its/their repayment and would make the principal and
interest further charged on the same security to be endorsed in the same manner as per the original
mortgage.

Deed of Further Charge
This Further Charge made the………….. day of………….. 2013, Between ‘A’ of………….. etc.
(hereinafter called “the borrower” which expression shall also, where the context so admits,
include persons entitled to redeem the security) of the One Part and ‘B’ of…….. etc.
(hereinafter called “the mortgagee”) of the Other Part.

WHEREAS by a mortgage deed dated………….. the property mentioned therein and described
in the Schedule attached hereto was mortgaged by the borrower with the mortgagee and the
sum of Rs………….. remains to the mortgagee on the security of the said mortgage but all
interest for the same has been paid upto the date of this Deed.

AND WHEREAS the mortgagee has agreed to advance to the borrower the further sum of
Rs………….. upon terms and conditions and secured in the manner hereinafter appearing.

NOW THIS DEED WITNESSETH that in pursuance of the said agreement and in consideration
of the sum of Rs………….. now paid by the mortgagee to the borrower the receipt whereof the
borrower hereby acknowledges:

1. The borrower hereby covenants with the mortgagee to pay to the mortgagee on the…………..
day of………….. 2013 next the sum of………….. principal amount with interest at the rate
of………….. per cent per annum, and if the said moneys are not paid on the aforesaid date, to
pay interest at the said rate until payment.
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2. The borrower as beneficial owner hereby declares that all and singular the property
mortgaged under the aforesaid deed dated………….. and more particularly described in the
schedule attached hereto shall be security, and stand charged with the payment to the
mortgagee of the sum of Rs………….. the present advance with interest at the rate of…………..
per cent per annum, from the date of execution of these presents as well as the sum of
Rs………….. due on the recited mortgage together with interest thereon and shall not be
redeemable until on payment to the mortgage deed dated………….. and the present deed.
3. It is further agreed and declared that the provisions contained in the mortgage deed
dated………….. shall operate and take effect in like manner for securing payment or the money
hereby secured as if the same had formed part of the money secured by the said recited
mortgage.

IN WITNESS WHEREOF the parties herein under have set their hands on the date and year

Witnesses:
1. ........................... MORTGAGOR
2. ........................... MORTGAGEE

Note: Stamp duty chargeable on a deed of further charge is provided for by Article 31 of
the Indian Stamp Act

Memorandum of Mortgage by Deposit of Title Deeds
Memorandum that this……….. day of…….. 2013, ‘AB’ of, etc. (the mortgagor), as beneficial
owner, has deposited with ‘CD’ of, etc. (the mortgagee), the original title deeds comprised in
the Schedule A hereto, relating to the premises belonging to the said ‘AB’ and situate at………….
etc., described in Schedule B with intent to create a charge thereon for securing repayment to
the said ‘CD’ of the sum of Rs……….. this day lent and advanced by the said ‘CD’ to the said ‘AB’
on demand with interest for the same from this date at the rate of Rs…….. per cent per annum.
The said ‘AB’ do hereby undertake as and when required by the said ‘CD’ to execute and
register at the costs of the said ‘AB’ a legal mortgage in such form and containing such
covenants and provisions as he may reasonably require.
Dated this………….. day of………….. 2013. Sd/-
Mortgagor

The Schedule A
Description of the Title Deeds deposited.

The Schedule B
Description of the Property.

Mortgage by a Limited Company in favour of a Bank for Securing the Amount due on
Cash Credit Account

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THIS MORTGAGE made the………….. day of………….. 2013, at _________________ by and between:

‘AB’ a Limited Company, having its Head Office at………….. (hereinafter called “the borrower”)
of the One Part
AND
The………….. Bank Limited, having its Head Office at………….. (hereinafter called “the
Mortgagees”) of the Other Part.

WHEREAS the borrowers are a Limited Company having their Head Office at………….. and are
carrying on the business of Sugar Manufacturers at their factory known as………….. and situate
at………….. in the State of…………..

AND WHEREAS the borrowers are absolute owners of the said factory free from
encumbrances.

AND WHEREAS the borrowers have a cash credit account with the mortgagees for the
purposes of their business.

AND WHEREAS the mortgagees have already granted and may hereinafter grant
accommodation to the borrowers, and it has been agreed that all moneys now owing and
which shall hereafter become owing on the said cash credit account or otherwise from the
borrowers to the mortgagees should be secured in the manner hereinafter appearing.

NOW THIS DEED WITNESSETH that in pursuance of the said agreement and in consideration
of the mortgagees granting the aforesaid accommodation to the borrowers.
1. The borrowers hereby covenant with the mortgagees that the borrowers will on demand
pay to the mortgagees the balance which shall be owing on the said cash credit account or any
other account or for bills or drafts accepted, paid or discounted or advances made for the
accommodation of the borrowers upto the limit of Rs………….. together with interest at the
rate of………….. per cent per annum from the date of the said load or advance until payment.

2. The borrowers as beneficial owners hereby mortgage their property known as…………..
Sugar Mill, situate at………….. together with all the machinery, engine, boiler etc., and buildings,
land attached and appurtenant thereto, and more particularly described in the schedule
attached hereto as security for payment of the mortgagees of all principal moneys and interest
at the aforesaid rate and other moneys hereby secured.

3. The borrowers further covenant with the mortgagees that all accessories to the mortgaged
property shall be liable for the amount due under this Deed from the borrowers to the
mortgagees.

4. The borrowers hereby further covenant with the mortgagees that the borrowers will during
the continuance of this security keep the mortgaged property in good and substantial repairs
and insured against loss or damage by fire for Rs……….………….. in General Insurance
Corporation of India in the name of the mortgagees, and will duly and punctually pay all
premiums and other moneys necessary for effecting and keeping up such insurance. And if
default shall be made by the borrowers in keeping the mortgaged property in good and
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substantial repairs or in effecting or keeping up such insurance, the mortgagees may repair
(with power to enter upon the mortgaged premises for that purpose and without becoming
liable as mortgage in possession) or may insure and keep the same insured in any sum not
exceeding Rs……………….. and that all moneys expended by the mortgagees under this
provision shall be deemed to be properly paid by them.

5. The borrowers further covenant with the mortgagees that the borrowers shall not lease the
mortgaged property for any term exceeding one year or accept, surrender of any existing
lease without the previous consent in writing of the mortgagees.

6. And it is hereby further agreed and declared that if the borrowers fail to pay the mortgage
money with interest as agreed upon, the mortgagees shall be entitled to realise their dues by
sale of the mortgaged property and, if the sale proceeds thereof are insufficient to satisfy the
mortgagees’ dues, to recover the balance from the person and other property of the
mortgagors.

7. It is hereby further agreed and declared that if interest for any two instalments remains in
arrears, the mortgagees shall be entitled to have a Receiver appointed of the mortgaged
property.

8. Provided always that if the borrowers shall pay to the mortgagees the sum of Rs………….. or
the amount due on said account with interest thereon from the date hereof at the stipulate
rate, the mortgagees will at any time thereafter at the request and cost of the borrowers
execute a receipt of the mortgage amount or a deed of redemption and surrender the
premises before mortgaged to the borrowers.

9. By a Resolution of the Board of Directors of the ‘AB’ Company Limited dated…………..
Mr………….. one of the Directors has been authorised to execute this Deed on behalf of the
Company.

In witness whereof the parties hereunder have set their hands on the date and year

The Schedule above referred to containing description of the machinery and plant, and all
buildings and land appertaining thereto.

For and on Behalf of ‘AB Co. Ltd.’,
Sd/-
Director

For and on Behalf of the………….. Bank Ltd.,
Sd/-
Secretary

Deed of Redemption or Re-conveyance of Mortgaged Property by the Mortgagee
in favour of the Mortgagor
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THIS DEED is made the………….. day of………….. 2013 by and between

‘A’ of etc. (hereinafter called “the mortgagee”) of the One Part
AND
‘B’ of etc. (hereinafter called “the mortgagor”) of the Other Part.

WHEREBY by a mortgage deed dated………….. the property mentioned in that deed was
mortgaged by the said ‘B’ in favour of the said ‘A’ to secure payment of the amount of
Rs………….. with interest @………….. per cent per annum.

NOW THIS DEED OF RECONVEYANCE WITNESSETH:
That in consideration of all principal moneys and interest secured by the said mortgage deed
dated………….. having been paid, the receipt whereof the said ‘A’ hereby acknowledges. The
said ‘A’ as mortgagee hereby redeems or re-conveys unto the said ‘B’ all the property
comprised in the said mortgage deed to hold the same up-to and to the use of the said ‘B’ as
absolute owner discharged from all principal money and interest secured by and from all
claims and demands under the aforesaid mortgage deed.

SPECIMEN DEED OF SIMPLE MORTGAGE

THIS MORTGAGE DEED executed on the 15th day of March, 2015, at ___________________ between:

Mr. Amitabh Bachan son of Mr. Harvansh Rai Bachan residing at Mannat villa (hereinafter called the
mortgagor) of the one part (which expression shall include their respective heirs, executors,
administrators, legal representatives and assigns unless repugnant to the context)
and
Ms. Jaya Bhaduri daughter of Mr. Arvind Bhaduri resident at __________ (hereinafter called the
mortgagee) of the other part, (which expression shall include their respective heirs, executors,
administrators, legal representatives and assigns unless repugnant to the context)

WHEREAS the property is free from all encumbrances and attachments and mortgagor is
absolutely entitled to mortgage the property situated at ______ (more particularly described in
the scheduled annexed herewith)

AND WHEREAS the mortgagee has agreed to lend and advance a sum of Rs. _______ to the
mortgagor on the terms and conditions of repayment along with the interest rate hereinafter
mentioned.

NOW THIS DEED WITNESSETH AS FOLLOWS:
The mortgagor do hereby agree with the mortgagee that the mortgagor will on or before the
end of Dec, 2015 pay or cause to be paid to the mortgagee the sum of Rs. _______ with interest
@ 5% p.a.

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APPOINTMENT OF RECEIVER UNDER MORTGAGE
Under Section 69A of the Transfer of Property Act, a mortgagee having the right to exercise
the power to sell is entitled to appoint by writing signed by him or on his behalf a Receiver
of the income of the mortgaged property or any part thereof. Any person who has been
named in the mortgage deed and is willing and able to act as a Receiver may be appointed
by a mortgagee. If any person has been so named or if the person or persons are not
capable and unwilling to act or are dead, the mortgagee may appoint any person to whose
appointment the mortgagor agrees. Failing such an agreement the mortgagee shall be
entitled to apply to the Court for appointment of a Receiver and any person appointed by
the Court shall be deemed to have been duly appointed by the mortgagee.
The powers and functions of the Receiver have been set out in the Section and the Receiver
is required to apply all money received by him as follows:
i. in discharge of all rents, taxes, land revenue, rates and outgoings whatever affecting
the mortgaged property;
ii. in keeping down all annual sums or other payments, and the interest on all principal
sums, having priority to the mortgage in right whereof he is Receiver;
iii. in payment of his commission, and of the premiums on fire, life or other insurances,
if any, properly payable under the mortgage deed or under this Act, and the cost of
executing necessary or proper repairs directed in writing by the mortgagee;
iv. in payment of the interest falling due under the mortgage;
v. in or towards discharge of the principal money, if so directed in writing by the
mortgagee.

RELEASE AND RECONVEYANCE OF MORTGAGED ASSETS

Release of any of the mortgaged assets or re-conveyance of the mortgaged property could be
done by a registered document in case the mortgage has been created in the form other than
equitable mortgage by deposit of title deeds by a registered deed of mortgage.

In those cases where release or re-conveyance of mortgaged property covered under
equitable mortgage is sought by the mortgagor, the same could be done by releasing the
relevant title documents and re-depositing the remaining title deeds by rewriting the
memorandum for creation of equitable mortgage. On redemption of equitable mortgage all
the title deeds could be released by the mortgagee to the mortgagor by personal hand delivery
and against accountable receipts from the mortgagor.

LICENCE
Chapter VI of the Indian Easements Act, 1882 (hereinafter referred to as 'The Act') contains
the statutory provisions governing licenses. This chapter comprises of Sections 52 to 64. In
States where the aforesaid Act does not apply, Courts rely upon English Law and the
principles of the Act also {Sohan Lal Naraindas v. Laxmidas Reghunath}
Section 52 of the Indian Easements Act, 1882 defines
where one person grants to another, or to a definite number of other persons, a right to do, or
continue to do, in or upon the immovable property of the grantor, something which would, in
the absence of such right, be unlawful and such right does not amount to an easement or an
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interest in the property, the right is called a license".
A license may be granted by anyone in the circumstances and to the extent in and to which he
may transfer his interest in the property affected by the license (Section 54). The grant of
license may be expressed or implied from the conduct of the grantor, and an agreement
which purports to create an easement, but is ineffectual for that purpose, may operate to
create a license. (Section 54)

SPECIMEN DEED OF LICENSE FOR USE OF WALL OF A BUILDING FOR PUBLICITY AND
ADVERTISEMENT OF GOODS ETC.
THIS DEED OF LICENSE is made on 08th Day of March, 2014 at (Place) by and between
Mr. A, Son of Mr. B, Residence of hereinafter called as 'Licensor' of the one part (Which
expression shall, unless repugnant to the context, include his heirs, executors, administrators,
representatives and assigns thereof)
And
X, Son of Mr. Y, Residence of ______________ hereinafter called 'Licensee' of the other part
(which expression shall, unless repugnant to the context, include his heirs, executors,
administrators, representatives and assigns thereof).

WHEREAS the said Licensee has applied to Licensor for the use of the eastern outside wall of
his building being situated at ______________ for the purpose of utilizing the same for publicity
and advertisement of his goods for a period of 2 (Two) years.

AND WHEREAS the said Licensor has agreed to grant the license on the terms of conditions
hereinafter mentioned.
NOW THIS DEED OF LICENSE WITNESSES AND IT IS HEREBY AGREED AND DECLARED
AS FOLLOWS:
1. The Licensee shall be entitled to use the eastern outside wall of the aforesaid premises for
the purpose of advertisement of his goods by colored signs, marks, letters or other
representations for a period of 2 (two) years from the date of this
2. The Licensee agrees to limit the advertisement to the dimensions not exceeding and the
advertisement should not be contrary to any regulations of the Municipality.
3. The Licensee agrees to pay to the Licensor a sum of Rs. _____________________ as
advertisement charges per month in advance within 5th day of every month.
4. The Licensee agrees to execute all necessary repairs or pay adequate compensation to
Licensor if the outer wall or the plaster thereof is damaged on account of default or
negligence on the part of the licensee.
5. The Licensee agrees to bear all the charges, taxes and impositions on account of such
advertisement.
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6. The Licensor is entitled to revoke the license anytime within the said period of two years
in the event of failure to pay the charges or taxes by the Licensee.

In witness whereof the licensor and the licensee have set their respective hands to the
agreement of sale/purchase on the day, month and the year above written in the presence of
the following witnesses:
Witnesses:
1: Name of Witness
Father's name (Signature) Licensor
Address
(Signature)
2 : Name of W itness
Father's name (Signature) Licensee
Address (Signature)

KINDS OF LICENSE:
License may be of two types namely a bare license and a license coupled with a grant of
interest.
F A bare license merely gives the licensee the right lawfully to do something on that
property, which it would otherwise have been unlawful for him to do. A bare license is non
heritable.
F When a license is coupled with a grant for raising permanent structure on the land the
license is permanent and heritable.

License when A license ordinarily carries with it the incident of non-transferability. A license
transferable: cannot be transferred by the licensee or exercised by his servants or agents. The
only exception to this rule is that, unless a different intention is expressed or
necessarily implied, a license to attend a place of public entertainment may be
transferred by the licensee. (Section 56 of the Act)
Revocation of The revocation of license may be expressed or implied.

license : The general rule is that subject to the agreement between the parties, all licenses
are revocable at the will of the licensor. However, following are 2 exceptions to this
rule:
v A license which is coupled with a transfer of property and such transfer is in
force, and
v A license acting upon which the licensee has executed a work of permanent
character and incurred expenses in the execution cannot be revoked.

SECTION 62 OF THE ACT PROVIDES THAT A LICENSE IS DEEMED TO BE
REVOKED:
v When, for a cause proceeding the grant of it, the grantor ceases to have an interest in
the property affected by the license;
v the licensee releases it, expressly or impliedly, to the grantor or his representative;
v where it has been granted for a limited period or acquired on condition that it shall
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become void on performance or non-performance of a specified act, and the period
expires, or the condition is fulfilled;
v where the property affected by the license is destroyed or by superior force so
permanently altered that the licensee can no longer exercise his right;
v where the licensee becomes entitled to the absolute ownership of the property affected
by the license;
v Where the license is granted for a specified purpose and the purpose is attained or
abandoned, or becomes impracticable;
v Where the license is granted to the licensee as holding a particular office. employment
or character, and such office, employment or character ceases to exist;
v where the license totally ceases to be used as such for an unbroken period of twenty
years, and such cessation is not in pursuance of a contract between grantor and the
licensee;

REGISTRATION AND STAMP DUTY:

Ø A mere deed of license need not be registered unless any right, title or interest in immovable
property of the value of Rs. 100 or more is created, declared, assigned, limited or extinguished.
(Section 17, Registration Act, 1908)
Ø If a license is contained in any deed such as in a deed of sale or lease, no separate stamp duty is
required in respect of the covenants relating to the license, but if a separate deed is executed it will
be chargeable with the same duty as an agreement under Article 5, Schedule I of the Indian
Stamp Act, 1899.

Lease, License and Rental Agreements
The license is not a lease. The lease and the license both are different. The word
"License" under Section 52 of the Indian Easement Act, 1882 is a grant by one person to another
or to a definite number of persons, a right to do, or continue to do, in or upon the immovable
property of the grantor, something which would, in the absence of such right, be unlawful, and
such right does not amount to an easement or an interest in the property, the right is called a
license.

A lease of immovable property as per Section 105 of the Transfer of Property Act
is a transfer of a right to enjoy such property. It may be for a specified period, express
or implied. The price or payment of money is usually referred to as the "rent".

In a Leave and License Agreement, the juridical possession of the premises is deemed to remain
with the licensor and the licensee is said to be in constructive possession of the said premises.
Thus, a leave and License does not create any interest in the premises in favour of the licensee but
gives the licensee the mere right to use and occupy the premises for a temporary period.

A Rental Agreement between the landlord and tenant sets down the terms which will be followed
while the tenant lives in the rental unit. Month-to-Month Agreement is commonly called a "Rental
Agreement", This agreement is for an indefinite period of time, with rent usually payable on a
monthly basis. The agreement itself can be in writing or oral, but if any type of fee or refundable
deposit is being paid, the agreement must be in writing.

LEAVE AND LICENSE
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The word "leave" has many meanings. In Leave and License Agreements, it is used to indicate
"permission". The occupancy is in essence a permission granted by the landlord or owner to use
and occupy the property concerned.

Leave and License Agreements are preferred by the parties to get out of the rigours of landlord-
tenant relationship. Many types of agreements are made for the occupation of property like lease
deeds, lease or tenancy agreements, rental agreements etc. Despite these agreements, most
owners prefer to give their premises on leave and, license basis rather than tenancy or lease basis.
The process of eviction of tenants is generally difficult. The law is tilted in favor of the tenant for
various purposes. Generally it is being witnessed that a person having a vacant apartment will
never rent it out fearing what if the tenant decides not to vacate and makes the apartment his own.
That is why tenancy has been put on the backburner and Leave and License is now the most
popular option.

Mention should be made that the practice of entering into "Leave and License Agreements" was
adopted in Mumbai. In Mumbai, the provisions contained under the then Bombay Rents Hotel and
Lodging House Rates Control Act, 1947, popularly known as the "Bombay Rent Act" were
considerably in favor of the tenants. Further, Tenancy or Lease Agreement had to be stamped and
registered. Even if the Agreements were duly stamped and registered, the eviction of tenants was
still a very tough and time consuming procedure.

Lease and License: Distinction

The cardinal distinction between a lease and a license is that In a lease there is a transfer of
interest in the premises, whereas in the case of a license there is no transfer of interest, although
the licensee acquires a right to occupy the premises. When premises are given out on lease or
tenancy basis the legal possession of the premises in these cases is also deemed to be transferred
to the lessee and tenant respectively.

Whether an agreement to occupy the premises between the landlord and tenant is allowed to
occupy was an agreement to lease or an agreement of leave and license has been a subject of many
Supreme Court & High Court rulings. In a number of judgments various High Courts as well as the
Apex Court have distinguished the lease and the license.

In Khalil Ahmed Bashir Ahmed v. TufelhusseinSamasbhai Sarangpurwala,1988SCC 155, the

Supreme Court has held:

"In order to determine whether a document created a license or a lease the real test is to ascertain

the intention of the parties i.e. whether they intended to create a license or a lease. If the document

creates an interest in the property entitling the transferee to enjoyment, then it is a lease; but if it
only permits another to make use of the property without exclusive possession, then it is a license."

Factors to be considered while giving out Premises on Leave & License Basis:

In deciding whether to give out premises on leave & licenses basis some of the factors to be considered
as follows:
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Possession: In a leave and license agreement, the owner is deemed to be in legal or judicial
possession of the premises and the licensee is in constructive possession of the
premises.
Income In a leave and license agreement the owner has to pay the applicable rate of tax.
Tax:
Municipal In a leave and license agreement the Municipal Authorities may charge taxes as
Tax: applicable in the area, and if, there is a security deposit amount sometimes the
Municipal Authorities may calculate a notional interest on the securities deposit
amount and charge tax thereon.

A Specimen of Leave and License Agreement
THIS AGREEMENT is made on Saturday 21st March 2015, between:
Mr. Prasoon Gupta s/.________________ resident of _______________ age________ (hereinafter called as
Licensor) and includes his legal heir, assignee, executor etc.
And
Ms. Rushikesh Sashtri D/. of __________________ resident of _____________ age _________ (hereinafter
called as Licensee) and includes her legal heir, assignee, executor etc.

WHEREAS the Licensor is the owner of a piece of land at………………………... bearing Survey No ...
with a building consisting of …………. floor ...... having built up area of about ..... Square feet.

AND WHEREAS the Licensee has approached the licensor with a request to allow the Licensee to
temporarily occupy and use a portion of the...... floor of the said building, admeasuring about ......
square feet for carrying on his ...... business, on leave and license basis until the Licensee gets other
more suitable accommodation.

AND WHEREAS the Licensor has agreed to grant leave and license to the Licensee to occupy and
use the said ground floor portion of the said building and which portion is shown on the plan
hereto annexed by red boundary line on the following terms and conditions agreed to between the
parties hereto;

NOW IT IS AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS..
1. The Licensor hereby grants leave and license to the Licensee to occupy and use the said
portion of the ground floor/....... floor of the said building of the Licensor (hereinafter referred
to as the Licensed Premises) for a period of eleven months from...... The Licensee agrees to
vacate the said premises even earlier if the Licensee secures any other accommodation in the
locality where the said premises are situated.
2. The Licensee shall pay to the Licensor a sum of Rs………..... per month (calculated at the rate of
Rs………..... per square foot) as License fee or compensation to be paid in advance for each
month on or before the...... day of each month.
3. All the Municipal taxes and other taxes and levies in respect of the licensed premises will be
paid by the Licensor alone.
4. The electric charges and water charges for electric and water consumption in the said licensed
premises will be paid by the Licensee to the authorities concerned and the Licensor will not be
responsible for the same. For the sake of convenience a separate electric and water meter if
possible will be provided in the said premises.
5. The Licensee will be allowed to use the open space near the entrance to the Licensed premises
and shown on the said plan by green wash for parking cars during working hours of the
Licensee and not for any other time and no car or other vehicle will be parked on any other
part of the said plot.
6. The licensed premises will be used only for carrying on business and for no other purpose.
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7. The Licensee shall not carry out any work of structural repairs or additions or alterations to
the said premises. Only such alterations or additions as are not of structural type or of
permanent nature may be allowed to be made by the Licensee inside the premises with the
previous permission of the Licensor.
8. The Licensee shall not cause any nuisance or annoyance to the people-in the neighborhood or
store any hazardous goods on the premises.
9. If the Licensee commits a breach of any term of this agreement then notwithstanding anything
herein contained the Licensor will be entitled to terminate this agreement by fifteen days’
prior notice to the Licensee.
10. On the expiration of the said term or period of the License or earlier termination thereof, the
Licensee shall hand over vacant and peaceful possession of the Licensed premises to the
Licensor in the same condition in which the premises now exist subject to normal wear and
tear. The Licensee’s occupation of the premises after such termination will be deemed to be
that of a trespasser.

IN WITNESS WHEREOF the parties hereto have put their hands the day and year first hereinabove
written.
Witness1 sd/
Licensor
Sd/
Witness 2 Licensee

LEASE
According to Section 105 of the Transfer of Property Act, 1882, a lease of immovable property
is a transfer of a right to enjoy property. It is the method of acquiring the right to use
equipment or real property for consideration.
SUB-LEASE
A sub-lease is demise by a lessee for lesser term than he himself has. Every lessee, however
short his term may be, makes a sub-lease unless he is refrained by the contract of the
tenancy from subletting. If the demise is for the whole term or for a period beyond the
term, it amounts to assignment. If the lessee divests himself he becomes a stranger to the
demised property and he has no right to have possession delivered up to him. It is true that
a covenant against subletting will restrain the assignment, but a mere covenant against
subletting does not prohibit under letting a part of the premises. As long as the lessee
remains in possession he may permit another person to use the demised premises without
committing a breach of covenant, namely not to assign, underlet or part with the
possession of the demised premises.

Specimen Lease Agreement for Plant & Machinery

THIS DEED OF LEASE is made on Monday 08th Day of March, 2015 by and between
Mr. A, Son of Mr. B, Residence of_________ hereinafter called as 'Lessor' of the one part (Which
representatives and assigns) and
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Mr. X, Son of Mr. Y, Residence of_____________ hereinafter called 'Lessee' of the other part (which
representatives and assigns).

WHEREAS the Lessor is the rightful owner and in possession of Equipment described in Schedule A
annexed hereto.

AND WHEREAS the Lessee approached the Lessor to give the aforesaid equipment on lease for a
period of ___________ months subject to extensions if any ___________________________

AND WHEREAS the Lessor has agreed to lease the Equipment to the Lessee on the terms and
conditions hereinafter mentioned.

NOW THIS DEED OF LEASE WITNESSES AND IT IS HEREBY AGREED AND DECLARED AS
FOLLOWS:
1. Lease: The Lessor hereby agrees to give on lease the equipment to the Lessee.
2. Period: The Lessee shall take the equipment for its use on lease for the term to commence from
the date of payment by the lessor and to terminate at the end of ___________
3. Rental: In consideration of the lease, the Lessee shall pay to the lessor, lease rent at the rate of
___________ per month within 7 days of such rent becoming payable. In case of delay, the Lessee will
pay along with monthly rent a flat 5% penalty charges on the monthly rent.
4. Warranties: The Lessee has made the selection of Equipment based upon its own judgment prior
to taking it on lease and the Lessee expressly declares that it has not relied upon any statements or
representations made by the Lessor. The Lessor shall not be responsible for any repairs, service or
defects in the Equipment or operation thereof.
5. Title: No right, title or interest in the Equipment shall pass to Lessee by virtue of this deed. Lessee
also agrees and undertakes not to sell, assign, sublet, pledge, hypothecate or otherwise encumber
any interest in this Agreement or Equipment.
6. Indemnity: The Lessee agrees to comply with all the laws, regulations and orders relating to the
possession, operation and use of the Equipment and agrees to Indemnify the lessor and keep him
indemnified and hold him safe and harmless and undertakes to defend the lessor against any and
all claims, costs, expenses, damages and liabilities.
7. Inspection: Lessee will cause the Equipment to be operated in accordance with manufacturer’s
manuals or instructions. The Lessor shall have the right from time to time to inspect the equipment
during normal business hours to confirm the existence, condition and proper maintenance of the
Equipment.
8. Insurance: The Lessee shall obtain and maintain for the entire term of this agreement, at his own
expense, comprehensive insurance against loss or destruction or damage to the Equipment.

9. Other Assurances:
a. The lessee shall provide annual audited accounts to the Lessor, if asked, during the term of this
Deed.
b. Lessee irrevocably agrees to proportionately increase the lease rent in the event of increase in
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local taxes on the property or related and consequential charges.
10. Surrender: Upon expiration or termination of the lease, the lessee shall deliver to the lessor the
said Equipment at such a place as Lessor may specify in good repairable condition and working
order.
11. Notices: Any notice or demands required to be given herein shall be given to parties hereto in
writing and by post or by hand delivery at the address herein set forth.
12. The captions in this Agreement are for convenience only and shall not define or limit any of the
terms thereof.
13. Arbitration: All disputes, differences, claims and questions arising during the term of this
agreement shall be referred to the arbitration of two arbitrators, one to be appointed by each
party.

In witness whereof the lessor and the lessee have set their respective hands to the agreement of
sale/purchase on the day, month and the year above written in the presence of the following
witnesses:

Witnesses:
1: Name of Witness
Father's name (Signature) Lessor
Address
(Signature)
2 : Name of Witness
Father's name (Signature) Lessee
Address (Signature)

Schedule A : Description of the Equipment
Year of Make _______________
Technical Specifications_______________________
Operating instructions________________________
Safety Instructions________________________

Lease Agreement with Lessor, Lessee and Bank as Financing Party

THIS LEASE AGREEMENT is made on 08th Day of March, 2015 at (Place) by and between

The ABC Company Limited, a Company registered under the Companies Act, 2013 and having
their office at represented by their Director, Mr. A (hereinafter called as 'Lessor') which
expression shall unless repugnant to the context thereof include its Legal representatives and
assigns thereof and

The XYZ Company Limited, a Company registered under the Companies Act, 2013 and bang
their office at represented by their Director, Mr. X (hereinafter as 'Lessee') which expression
shall unless repugnant to the context thereof include its representatives and assigns thereof
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Limited, a Banking Company having their office at represented by Head Mr. M (hereinafter
called as 'Bank') which expression shall unless to the context thereof include its Legal
representatives and assigns thereof

WHEREAS under an Agreement for Hypothecation dated _______________ executed by the lessor
company in favour of the Bank, the Bank granted to the lessor a sum of Rs. as an by way of
advance in current account to enable the lessor an equipment for the purpose of leasing
secured by hypothecation

AND WHEREAS the Bank will allow the lease of the equipment to the lessee on provided the
terms and conditions set under this agreement are complied with.

AND WHEREAS with a view to record the conditions hereinbefore provided, the parties
hereto have agreed to enter into an agreement.
‘
NOW THIS AGREEMENT WITNESSETH AND IT IS HEREBY AGREED AND DECLARED BY
AN BETWEEN PARTIES AS FOLLOWS

1. The lessor company hereby covenants with the Bank that the Lessor Company has not
received any rent/hire charges as advance from the lessee company.
2. The lessee company hereby confirms that the said equipment is subject to the
hypothecation charges in favour of the Bank.
3. The lessor company hereby authorizes the lessee company to pay all the relevant charges
directly to the Bank
4. The lessor and Lessee hereby jointly declare and confirm that the Bank is entitled to
inspect the said equipment, during business hours, as and when necessary.
5. The lessee company hereby also confirms and declares that if the lessee company fails to
pay rent/hire charge to the Bank in terms of these resents, the Bank will be at liberty to
take possession of the said equipment if the bank so desires to protect the interest of the
Bank.
6. The lessee company hereby agrees that the said equipment will bear the seal
"Hypothecated with MNO Bank".
7. The lessee company hereby agrees to pay duly and punctually al the rents/hire charges to
the bank.
8. It is hereby expressly agreed and declared by and between the parties hereto that all the
terms, conditions and covenants herein contained shall override the terms, conditions and
covenants contained in the Agreement for Hypothecation and the Agreement for Lease
dated to the extent the same are inconsistent.

IN WITNESS WHEREOF the parties hereunder have set their hands through the authorized
representatives on the date and year hereinabove mentioned.
Witnesses:
1: Name of Witness
Father's name (Signature) Lessor
Address
(Signature)
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2 : Name of Witness
Father's name (Signature) Lessee
Address (Signature)

Schedule A

Surrender of Leases
Surrender of lease is not a transfer but mere yielding up by the lessee of his interest under
the lease to the lessor by mutual agreement. It is in effect merger of the estate of the lessee
into the reversion. It is not a transfer or an assignment of any right or estate within the
meaning of Section 5 of the Transfer of Property Act (Makhanlal v. Nagendranath). The
person who surrenders is called the surrenderor and the person to whom surrender is
made is called the surrenderee. Surrender must be made with clear intention to yield up as
mere non- payment of rent for years together or abandonment of the site does not amount
to surrender (Misri Lal v. Durga Narain,). A Requisition Order by the Government does
not amount to any surrender (Torabai v. Padan Chand,). It may be expressed or implied.
Except in a case of some special kinds of lease as required by special Act, no writing or
registration is necessary. Surrender may be oral, if accompanied by delivery of possession.

REGISTRATION AND STAMP DUTY:

Section 107 of the Transfer of Property Act, 1882 and Section 17(1)(d) of the Registration
Act, 1908 require that all leases from year to year, or for a term exceeding a year, or
reserving
a yearly rent must be registered. Other leases, if governed by the Transfer of
Property Act, must be registered except that Local Government may direct them to be
made by unregistered instruments. (Proviso to Section 107)

For the stamp duty of a lease, including an under-lease or sub-lease and agreement to let or
sub-let, Article 35 of the Indian Stamp Act, 1899 is to be followed:

LICENCE LEASE
v A personal non-heritable right. v An heritable right in rem.
v Creates no interest in the licencee. v Interest created in the lessee.
v Non assignable. v Usually assignable.
v Always permissive and normally revocable. v Permissive but not normally
v Not exclusive user. v Revocable.
v A positive right. v Exclusive user.
v Remedy for breach is damages. v A positive right.
v No notice necessary to terminate relationship. v Denial of lessor's title results in forfeiture.
v Instrument granting right does not require v Specially enforceable.
registration. v Notice necessary to terminate relationship.
v Does not entitle licensee to sue strangers in v Instrument creating right requires
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his own name. registration.
v A licensee does not qualify for a vote. v Can sue in his own name.
v Not liable for rents. v May qualify for a vote.
v User not liable for public nuisance. v Liable.

CHARGE

Meaning of A charge is created when immovable property of one person is made security for the
charge- in payment of money to another. No interest in the property is transferred. The concept
general of charge is regulated by the provisions of transfer of properties act, 1882 which are
applicable to a simple mortgage.
Meaning of A charge is a security, given for securing loans or debentures. The security may be
charge – as provided either by way of mortgage, hypothecation and pledge.
per
companies Thus, charge is a general concept and it covers each and every mode of creating the
act security on the assets of the company, for the purpose of securing the repayment of
any debt due by a company.

KINDS OF CHARGE
A charge on the property of the company as a security for debentures may be of the following
kinds, namely:-

v Fixed or specific charge
v Floating charge

Fixed or specific charge: a charge is fixed or specific when it is made specifically to
cover assets, which are ascertained and definite or are capable of being ascertained and
defined, at the time of creating charge e.g. land, building, or heavy machinery. A fixed charge,
therefore, is against security of certain specific property, and the company loses the right to
dispose off that property as unencumbered.

Floating charge: a Floating charge is a charge on a class of assets present and future,
which in the ordinary course of business is changing from time to time and leaves the
company free to deal with the property as it sees fit until the holders of charge take steps to
enforce their security. A floating charge is not attached to any definite property but covers
property of a fluctuating type e.g. stock in trade, debtors, etc. and is thus necessarily equitable.
Crystallization of floating charge

A floating charge attached to the company’s property generally remains dormant till it
crystallizes or becomes fixed. The company has a right to carry on its business with the help of
assets having a floating charge till the happening of some event, which determines this right.
On crystallization, the floating charge converts itself into a fixed charge on the property of the
company.

A floating charge crystallizes and the security becomes fixed in the following cases:-
v When the company goes into liquidation;
v When the company ceases to carry on the business;
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PLEDGE HYPOTHECATION
Pledge is a contract whereby some article or
Hypothecation is a form of transfer of property in
goods is deposited, with a lender of money or
goods. Hypothecation agreement is a document
promise, as security for the repayment of a loan
by which legal property in goods passes to the
or performance of a promise. The person who
person who lends money to them, but the
deposits the goods is called the pledgor or
possession does not pass. This form of transfer is
pawnor and the person with whom the goods are not regulated in India by any statute. Neither
deposited is called the pledge or pawnee. TOPA, 1882 nor the Indian contract act 1872, nor
the sale of goods act 1930, recognize the non
It may be noted that pledge is also a kind of
possessory hypothecation of movables and the
bailment or it is a particular species of bailment.
rights and remedies of the parties are regulated
It means that pledge is that kind of bailment in
by the courts according to the general law of
which the purpose is to secure the repayment of contract.
any debt or performance of promise. Thus,
pawnor in a pledge is equivalent to bailor in a
In hypothecation, there must be an intension of
bailment and similarly, pawnee in a pledge is
the parties to create a security on the property on
equivalent to bailee in a bailment. which the money has been lent. If that intention
can be established, equity gives effect to it.
v When the creditors or debenture holders take steps to enforce their security
v On the happening of the event specified in the deed.

Lease Agreement with Lessor, Lessee and Bank as Financing Party

THIS LEASE AGREEMENT is made on 08th Day of March, 2015 at (Place) by and between

The ABC Company Limited, a Company registered under the Companies Act, 2013 and having
their office at represented by their Director, Mr. A (hereinafter called as 'Lessor') which
expression shall unless repugnant to the context thereof include its Legal representatives and
assigns thereof
AND
The XYZ Company Limited, a Company registered under the Companies Act, 2013 and having
their office at represented by their Director, Mr. X (hereinafter as 'Lessee') which expression
shall unless repugnant to the context thereof include its representatives and assigns thereof
and Bank Limited, a Banking Company having their office at represented by Head Mr. M
(hereinafter called as 'Bank') which expression shall unless to the context thereof include its
Legal representatives and assigns thereof

WHEREAS under an Agreement for Hypothecation dated _______________ executed by the lessor
company in favour of the Bank, the Bank granted to the lessor a sum of Rs. _______________ as and
by way of advance in current account to enable the lessor to purchase equipment for the
purpose of leasing secured by hypothecation.
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AND WHEREAS the Bank will allow the lease of the equipment to the lessee on provided the
terms and conditions set under this agreement are complied with.

AND WHEREAS with a view to record the conditions hereinbefore provided, the parties hereto
have agreed to enter into an agreement.

NOW THIS AGREEMENT WITNESSETH AND IT IS HEREBY AGREED AND DECLARED BY
AN BETWEEN PARTIES AS FOLLOWS

1. The lessor company hereby covenants with the Bank that the Lessor Company has not
received any rent/hire charges as advance from the lessee company.

2. The lessee company hereby confirms that the said equipment is subject to the
hypothecation charges in favour of the Bank.

3. The lessor company hereby authorizes the lessee company to pay all the relevant charges
directly to the Bank

4. The lessor and Lessee hereby jointly declare and confirm that the Bank is entitled to
inspect the said equipment, during business hours, as and when necessary.

5. The lessee company hereby also confirms and declares that if the lessee company fails to
pay rent/hire charge to the Bank in terms of these presents, the Bank will be at liberty to
take possession of the said equipment if the bank so desires to protect the interest of the
Bank.

6. The lessee company hereby agrees that the said equipment will bear the seal
"Hypothecated with MNO Bank".

7. The lessee company hereby agrees to pay duly and punctually al the rents/hire charges to
the bank.

8. It is hereby expressly agreed and declared by and between the parties hereto that all the
terms, conditions and covenants herein contained shall override the terms, conditions and
covenants contained in the Agreement for Hypothecation and the Agreement for Lease
dated to the extent the same are inconsistent.

In witness whereof the parties hereunder have set their hands through the authorized
representatives on the date and year hereinabove mentioned.
Witnesses
1 sd/
2 Lesssor

sd/
Lessee
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(Schedule A)

Hypothecation Agreement

It is a form of transfer of property in goods. It is a document by which property in goods passes to the
person who lends money on them but the possession does not pass. This form of transfer is not
regulated in India by any statute.

Hypothecation is an extended form of pledge. In hypothecation, there must be an intention of the
parties to create a security on the property on which the money has been lent.

Hypothecation is mostly resorted to by banks & Financial Institutions for securing their loans and
limits of working capital, guarantees etc.

Hypothecation agreement usually covers moveable machinery, equipment, stock, raw material etc. As
there is no statute governing hypothecation and thus the principles of equity and justice are followed
by the court.

A Specimen Agreement to Hypothecate Goods to Secure Fixed Loan

The Manager,
…………..….………….Bank,
…………..….………….
…………..….………….
Sir,

In consideration of your Bank advancing to me/us on loan the sum of Rs…………..….…………. I/We
hereby agree to hypothecate and hold under lien to the Bank as security for the repayment as per
Schedule hereto of the principal amount of the loan and payment of interest on demand at…………..…%
per annum subject to a maximum of…………..….% per annum above Bank Rate.

The goods so to be held by me/us under lien to the Bank I/We declare to be my/our absolute property,
and to be stored in my/our godowns at………..….…………. I/We hereby agree to furnish you at the close
of business on the last day of each English calendar month so long as any money remains due in
respect of the said loan with a full and correct statement of particulars of all goods so held under lien
to the Bank, with the market value thereof respectively on that day.

All goods from time to time held by me/us under lien to the Bank in terms of this agreement shall be
kept separate and apart from all other goods in my/our possession, and no moneys shall be borrowed
by me/us from any company, firm or person on the security of such goods stored in the same godown
in a way that such other goods may be mixed with the goods held under lien to the Bank nor shall
I/We do any other act by means of which the Bank’s lien on the goods so held shall be in any way
impaired or affected.

It is understood that I/We are at liberty, from time to time in the ordinary course of business, to sell all
or any of the goods from time to time held under lien to the Bank under this agreement provided that
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no such sale shall reduce the value of the goods held under lien below the amount of my/our said debt
to the Bank plus the margin of…………..…. per cent. In case of any goods held under lien to the Bank
reducing the value of the goods held under this lien to less than the amount of my/our said debt to the
Bank plus such margin, the proceeds of such sale, as soon as the same are received, shall be paid into
the bank in part satisfaction of the said loan and shall in the meantime be held as specifically
appropriated to payment of the amount due by me/us on the security.

I/We empower you or any one from time to time authorised by you on behalf of the Bank to enter the
godowns in which the goods held under lien to the bank under this agreement shall be from time to
time stored, for the purpose of inspecting and taking an account of the said goods.

I/We further empower you or anyone authorized by you as aforesaid so long as any money advanced
by the bank under this agreement remains unpaid, to take possession of any goods from time to time
held by me/us under lien to the Bank under this agreement and or any promissory notes or bazaar
chits held by me/us in respect of any of the goods which may have been sold in such manner as you
may think fit and on so taking possession to exercise on behalf of the Bank all the rights of a Pawnee
under the Indian Contract Act and failing payment of the amount under this loan on…………..….………….,
to sell and realize the said goods and promissory notes or bazaar chits. No notice to me/us of such sale
shall be necessary, and I/We hereby agree to waive any such notice.

I/We agree to accept the Bank account of such sale signed by the Manager, Accountant or other duly
authorized officer of the Bank as sufficient proof of the correctness of the amount realized by the Bank
and the charges and expenses incurred in connection with such realization, and

I/We hereby further agree to sign all documents, furnish all information and do all acts and things
necessary for the purpose of enabling the Bank to sell any goods or realise any promissory notes or
bazaar chits of which you shall so take possession. I/We undertake to keep all held under lien to the
Bank under this agreement, insured against fire to their full value, and to produce and deposit the
policies with the Bank any time on demand and to hold all moneys which may become payable under
any such policies in trust for the Bank so long as any money shall remain due in Bank’s name or to
appropriate floating policies for the time being affected by the Bank towards insurance of the said
goods and in either case to debit the said loan with relative premiums. It is understood that the Bank’s
lien on the goods, so held under this agreement shall extend to any other sum or sums of money for
which I/we or any other of us either separately or jointly with any other person or persons may be or
become indebted or liable to the bank on any account.

Schedule of securities referred to in the agreement
…………..….………….
Schedule of installments for the repayment of the loan amount
…………..….………….

Yours faithfully,
For A B C Ltd.
(…………..….………….)
Managing Director,
New Delhi
Dated……….………….

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PAST EXAM QUESTIONS

Q1 Necessary Clauses in a sublease deed. (dec’10)
Q2 What is the difference between ‘mortgage’ and ‘lease’ from the point of view of drafting of
an agreement? (Dec’10)
Q3 Write a short note on:
• Release & re-conveyance of mortgaged assets
• Usufructuary mortgage
• Mode of transfer of actionable claim
• Surrender of lease

Q4 In the light of judicial pronouncements, discuss the following:
• A lease is a transfer of a right for use of equipment/real property for a consideration.
(Dec’14)
• Goodwill of a business as an intangible asset. (June’15)

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VARIOUS DEEDS AND AGREEMENTS- III
INTRODUCTION:
An assignment is a form of transfer of property and it is commonly used to refer the transfer
of an actionable claim or a debt or any beneficial interest in movable property. A transfer of an
actionable claim is usually called an assignment thereof.
Section 3 of the Transfer of Property Act, 1882 defines an actionable claim as:

"Actionable claim means a claim to any debt, other than a debt secured by mortgage of
immovable property or by hypothecation or pledge of moveable property or to any
beneficial interest in moveable property not in the possession, either actual or
Z constructive, of the claimant, which the Civil Courts recognize as affording grounds for
relief, whether such debt or beneficial interest be existent, accruing, conditional or
contingent."

The term assignment is, however, of wider import. It is well settled that a transfer of property clearly
contemplates that the transferor has an interest in the property, which is sought to be conveyed.

Mode of transfer of actionable claim (Sec 130)
(1) The transfer of an actionable claim whether with or without consideration shall be effected only by
the execution of an instrument in writing signed by the transferor or his duly authorized agent,
and shall be complete and effectual upon the execution of such instrument, and thereupon all the
rights and remedies of the transferor whether by way of damages or otherwise, shall vest in the
transferee, whether such notice of the transfer as is hereinafter provided be given or not;

(2) The transferee of an actionable claim may, upon the execution of such instrument of transfer as
aforesaid, sue or institute proceedings for the same in his own name without obtaining the
transferor's consent to such suit or proceedings, and without making him a party thereto."

Every notice of transfer of an actionable claim must be in writing signed by the transferor or his
agent duly authorized in this behalf, or in case the transferor refuses to sign, by the transferee or
his agent, and must state the name and address of the transferee.
(Transfer of Property Act, 1882, Section 131).

ASSIGNMENT OF BUSINESS DEBT
A sum due is the same thing as a debt due. It may be now payable
or will become payable in future by reason of a present
obligation. There must be an existing obligation to pay a sum of
money now or in future. It includes book debts, debts due on a
bond, provident fund, arrears of rent, amount due on settlement
of account between principal and agent, master and servant,
wages which have accrued due, money due under an insurance policy, claim to money
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deposited for the due performance of a duty, surplus left with the vendee of property, etc. A
debt is property. It is an actionable claim and is heritable and assignable and it is treated as
property under the Transfer of Property Act, 1882 and is known as "actionable claim".

Consideration An assignment of an actionable claim may be with or without consideration.
(Sec 130) Passing of the property in the assigned property does not depend on the payment
of consideration. The question of payment of consideration is in fact one between
the assignor and the assignee.
Liability of Section 132 of Transfer of Property Act provides that the transferee of an
Transferee of an actionable claim shall take it subject to all the liabilities and equities to which the
actionable claim transferor was subject in respect thereof at the date of transfer.
Warranty of Solvency of the debtor at the time of transfer is to be taken into account for
Solvency of a purposes of warranty by the transferor.
Debtor (Sec 133)

DEED OF ASSIGNMENT OF BUSINESS DEBTS
THIS DEED OF ASSIGNMENT is made on this 08th Day of March, 2015 at (Place) by and between:

Mr. A, Son of Mr. B, Residence of _________ hereinafter called as 'Assignor' of the one part (Which
representatives and assigns)
AND

Mr. X, Son of Mr. Y, Residence of ________ hereinafter called 'Assignee' of the other part (which
expression shall unless repugnant to the context, include his heirs, executors, administrators,

WHEREAS the Assignor has been from some time, carrying on the business of _________ under the
name and style of ___________

AND WHEREAS in the course of the business, several persons, whose complete details are given in
the schedule annexed hereto, have become debtors to him for the sums of money set opposite
their respective names.

AND WHEREAS the assignor has contracted with the assignee for the absolute sale to him of
the said business debts at ___________________ and for the sum of Rs. ___________________ (Rupees
__________ ) on the terms and conditions hereinafter mentioned.

NOW THIS DEED OF ASSIGNMENT HEREBY WITNESSETH AND IT IS HEREBY AGREED AND
DECLARED AS FOLLOWS:

1. The Assignor acknowledges the receipt of the sum of Rs. _________________ Received from the
Assignee.

2. In consideration of the receipt of the money as mentioned in clause 1, the assignor in the capacity
as a beneficial owner, does hereby transfer, sell and assign to the use of the said assignee, all the
several said debts and sums of money specified in the Schedule annexed herewith which are
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now due and payable to the assignor.

3. The assignor does hereby covenant with the assignee that all the several debts are lawfully due
to him and the parties by whom they are payable are alive.

4. The assignor shall at all times execute and perform all such and other acts, deeds, things or
writings as may be reasonably required for realization of the said debts or assuring them in
favour of the assignee.

In witness whereof the assignor and the assignee have set their respective hands to the deed of
assignment on the day, month and the year above written in the presence of the following
witnesses:

Witnesses:

1: Name of Witness
Father's name (Signature) Assignor
Address (Signature)

Name of Witness
Father’s name (Signature) Assignee
Address (Signature)
ASSIGNMENT OF SHARES IN A COMPANY

(Section 44 of the Companies Act, 2013)
"The shares or other interest of any member in a company shall be moveable property,
transferable in the manner provided in the articles of the company."

A "share" in a company is a right to a specified amount of the share capital of the company,
carrying with it certain rights and liabilities, while the company is a going concern and in
the winding up. It represents the interest of the holder measured for purposes of liability
and dividend by a sum of money.

A company cannot refuse to transfer shares except as provided by its articles. It is well
settled that unless the articles otherwise provide, a shareholder has a free right to transfer
his shares to whom he chooses. It is not necessary to look to the articles for a power to
transfer, since that power is given by the Act. It is only necessary to look to the articles of
association to ascertain the mode of transfer and the restrictions upon it.

DEED OF ASSIGNMENT OF SHARES IN A COMPANY

THIS DEED OF ASSIGNMENT is made on this 08th Day of March, 2015 (Place) by and between:

Mr. A, Son of Mr. B, Residence of _______ hereinafter called as 'Assignor' of the one part (Which
representatives and assigns) and

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Mr. X, Son of Mr. Y, Residence of _______ hereinafter called 'Assignee' of the other part (which
expression shall unless repugnant to the context, include his heirs, executors, administrators,

WHEREAS the Assignor holds the _ _________ (no.) of fully paid Equity shares of Company
Limited bearing consecutive no _________________ to (both inclusive).

AND WHEREAS the assignor has contracted with the assignee for the assignment of the said
E q u ity S h a re s fo r th e s u m o f R s . ______________________ (Rupees ___________ ) o n t h e t e r m s
a n d conditions hereinafter mentioned to hold the same to the assignee absolutely.

AND WHEREAS the assignee hereby agrees to take the said Equity Shares subject to terms and
conditions hereinafter mentioned.

NOW THIS DEED OF ASSIGNMENT WITNESSES AND IT IS HEREBY AGREED AND DECLARED AS
FOLLOWS:

The Assignor acknowledges the receipt of the sum of Rs.________ received from the, Assignee.

In consideration of the receipt of the money as mentioned in clause 1, the assignor in the capacity
as a beneficial owner, does hereby transfer, sell and assign to the use of the said assignee _______
(no.) of fully paid Equity Shares of Company Limited as described aforesaid.

assignment on the day, month and the year above written in the presence of the following
witnesses:

Witnesses:
1: Name of Witness
Address
(Signature)
Assignment of Policies of Insurance

Policies of Insurance are principally of two types:
(1) Insuring risk to life of a person and
(2) Covering various risks relating to goods.

An insurable interest in the subject matter insured is a right, which is
capable of assignment. An insurance policy may be transferred by
assignment unless it contains terms expressly prohibiting
assignment.

It must be assigned before death in the case of life insurance policy and it may be assigned either
before or after loss in the case of a marine or goods policy. An assured who has no insurable interest in
the subject matter insured cannot assign.

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A Specimen of Deed of Assignment of Policy of Life Assurance

THIS ASSIGNMENT made this……… day of………by and between
AB, son of……., resident of…… (hereinafter known as “the assignor”) of the one part
AND
CD, son of……. resident of………(hereinafter known as “the assignee”) of the other part.

WHEREAS a policy of assurance being No……… for Rs…….(Rupees……..) was issued by the Life
Insurance Corporation of India on the life of the assignor on the……day of…….to be paid to the
assignor or to his executors, administrators or assigns after his death, subject to the annual
premium of Rs………;

AND WHEREAS the said AB has agreed to transfer and assign to the said CD the said policy of
assurance of a sum of Rs…………(Rupees………);

THIS DEED WITNESSES that in consideration of the sum of Rs………(Rupees………) the receipt
whereof the said AB hereby acknowledges, the said AB as beneficial owner, hereby transfers
and assigns unto and to the use and for the benefit of CD the hereinbefore recited policy of
assurance, and the sum of Rs……(Rupees………) hereby assured and all the other moneys,
benefits and advantages to be had, recovered or obtained under or by virtue of the said policy:

TO HOLD the same unto and to the use of the said CD absolutely, subject to the conditions as
to payment of future premiums and otherwise to be henceforth observed in receipt of the said
policy:

AND the said AB hereby covenants with the said CD that he, the said AB, shall not do, or
knowingly suffer anything to be done, whereby the said policy may be rendered void or
voidable or the said CD or his heirs, executors, administrators or assigns may be prevented
from receiving the said sum of Rs…… (Rupees………) or any benefit there under.

IN WITNESS WHEREOF the assignor and the assignee do here to affix their respective
signatures on the day, month and the year stated above.
Witness: Assignor
Witness: Assignee

Assignment of Patents
Patent is a right granted under the Patents Act to the grantee for
the exclusive privileges of making or selling a new invention or
process protected under the Patent. The Act confers upon the
patentee, the right to safeguard his property in the patent and sue
the person who infringes upon his patent right.
If the patent is assigned, Section 69 of the Patent Act deals with

such situations, it states that If any person becomes entitled by
assignment, transmission or operation of law to a patent or to a share in a patent, then in such
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a case assignee shall apply in writing in the prescribed manner to the Controller for the
registration of his title.
SPECIMEN DEED OF ASSIGNMENT OF PATENT

THIS DEED OF ASSIGNMENT is made on this 08th Day of March, 2015 at (Place) by and between
Mr. A, Son of Mr. B, Residence of ________ hereinafter called as 'Assignor' of the one part (Which
AND
________ Company Limited, a company incorporated under the Companies Act, 2013 on _______ with
Authorized Share Capital of ______ divided into _______ Equity shares of Rs. _______ Each ,hereinafter
called as the 'Assignee' of the other part (which expression shall, repugnant to the context, include its
authorized representatives and assigns)

WHEREAS the assignor has invented a process for the manufacture of ______ which was duly registered
and entered in the Register of Patents bearing no. _______ dated _______ and duly sealed in the patent
office.

AND WHEREAS the assignee has its own manufacturing facility and is desirous to manufacture the
product using the patented process and approached the assignor assignment of the patent and
assignor has agreed to assign the patent.

AND WHEREAS it has been agreed between the parties to the Deed that the consideration for the
aforesaid assignment is agreed at _______ (Rupees ________) to be satisfied by allotment of _______ fully
paid Equity Shares to the assignor.

NOW THIS DEED OF ASSIGNMENT HEREBY WITNESSETH AND IT IS HEREBY AGREED AND

1. Board of Directors of the assignee company has approved the allotment of the aforesaid ________
fully paid Equity Shares to the Assignor as a consideration for the assignment.

2. The 'Assignor covenants with the assignee that he has not assigned or otherwise dealt the said
patent and that his title to the said patent subsists and he has done nothing to prejudice the
Assignee to use the patent exclusively.

3. The Assignor further covenants with the Assignee that he shall join the Company in applying to the
appropriate authority at the expense of the Assignee, for extension of the said patent.

4. The Assignor further covenants that if during the term of the patent and during the operation of
the assignee as a going concern, the assignor makes further inventions or improvements in respect
of the invention, he will disclose the same to the company and explain the new method of
discovery to the company and apply for patenting such new invention at the cost of the company.

IN WITNESS WHEREOF THE ASSIGNOR AND THE ASSIGNEE have set their respective hands or
through authorized representatives to the deed of assignment on the day, month and the year above
written in the presence of the following witnesses:

Witnesses:
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1. Name of Witness
Address
(Signature)
2. Name of Witness
Father's name (Signature) Assignee
Address
(Signature)
Assignment of Trade Marks

A trademark is a visual symbol in the form of a word, device or a label
applied to articles of commerce. Thus, with the help of trademark, goods
manufactured or dealt in by other persons are distinguished.
By virtue of the affixture of trademark, the person who sells his goods
under the particular trademark acquires an exclusive right subject to
certain conditions, to the use of the mark in relation to such goods.
A trademark is a property, but its precise nature differs substantially from other forms of property
with which most people are familiar. It is not necessary that the trademark chosen by a trader should
be the result of inventive skill or intellectual labour.
Section 37 of the Trade Marks Act, 1999, deals with the power of registered proprietor of a trade mark
to assign his rights in the trade mark.
Section 38 states that, subject to the provisions of this chapter, a registered trade mark shall be
assignable and transmissible, whether with or without the goodwill of the business concerned.
Section 39 states that an unregistered trademark shall not be assignable or transferable except along
with the goodwill of the business concerned.
SPECIMEN DEED OF ASSIGNMENT OF A REGISTERED TRADE MARK

This deed is made on this 7th Day of March, 2014 at ____________ by and between
Mr. Aloknath son of Mr. Parloknath, Resident of _____________ hereinafter called “assignor” of the other
part (which expression shall unless repugnant to the context, include his heirs, executors,
administrators, representatives and assigns).
AND
Mr. Somnath, son of Mr. omnath, resident of ______________ hereinafter called ‘assignee’ of the other part
(which expression shall unless repugnant to the context, include his heirs, executors, administrators,
WHEREAS the said assignor is the owner of a trade Mark number _____________ duly registered in the
register of trade mark maintained by the trade marks registration office at __________________
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AND WHEREAS the assignor has agreed to assign the aforesaid Trademark for exclusive use and
benefit of the assignee at total consideration of Rs. __________________ on the following terms and
conditions.
1. The Assignor acknowledges the receipt of the sum of Rs. ______________________ received from the
Assignee.
2. In consideration of the receipt of the money as mentioned in clause 1, the assignor in the capacity
as a beneficial owner, does hereby transfer and assign for the use and benefit of the Assignee the
hereinbefore mentioned trademark.
3. The Assignor hereby covenants with the assignee that he will not infringe or use a mark identical
with the Trade Mark hereby assigned nor use another trademark nearly resembling it as to be
likely to deceive or cause confusion.
4. The assignor further covenants that he shall, at the cost of Assignee do all the acts and things as
may be required for ensuring the aforesaid assignment.
assignment on the day, month and the year above written in the presence of the following witnesses:
Witness:
1. Name of Witness
(Signature)
2 : Name of Witness
name (Signature) Assignee
(Signature)

ASSIGNMENT OF COPYRIGHTS
Section 14 of the Copyright Act, 1957 defines “copyright” as an

exclusive right subject to the provisions of the Act to do or authorise
the doing of any of the acts stated thereunder in respect of a work or
any substantial part thereof with regard to original literary dramatic,
musical and artistic works; the cinematograph films and sound
recording. The rights granted under Section 14 of the Act relate to
reproduction, publication, performance, production, translation,
making film or sound recording, selling or giving on hire film or sound recording, communicate film or
sound recording to public and to make adaptation of the copyright work.
Section 18 of the Act deals with the assignment of copyrights. The Section lays down:

“(1) The owner of the copyright in an existing work or the prospective owner of the copyright in a
future work may assign to any person the copyright either wholly or partially and either generally or
subject to limitations and either for the whole term of the copyright or any part thereof;

Provided that in the case of the assignment of copyright in any future work, the assignment shall take
effect only when the work comes into existence.
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(2) Where the assignee of a copyright becomes entitled to any right comprised in the copyright, the
assignee as respects the rights so assigned, and the assignor as respects the rights not assigned, shall
be treated for the purposes of this Act as the owner of copyright and the provisions of this Act shall
have effect accordingly.

A Specimen of Deed of Assignment of Copyright of a Book

THIS DEED OF ASSIGNMENT made this……… day of………… between………… (hereinafter called the
“author”) of the first part and Messrs………… carrying on the business of publishers at………
(hereinafter called the “publishers”) of the second part.
WHEREAS the author is entitled to the copyright of the book known as…………;
AND WHEREAS the publishers approached the author for assignment thereof, which the author has
agreed to do on the terms and conditions hereunder contained.

NOW THIS DEED OF ASSIGNMENT WITNESSES AS FOLLOWS:

1. In consideration of an subject to the covenants on the part of the publishers as hereinafter
contained, the author does hereby grant, convey, transfer, sell, assign and assure unto and to the use of
the publishers all that copyright as defined in Section 14 of the Copyright Act, 1957, of the book
entitled……… on the subject of……… to have and hold the same as absolute owners thereof for the full
term of copyright as prescribed by law.

2. The publishers shall so long as the said work or any adaptation, modification or translation thereof
is published and sold, submit to the author twice every year once during the month of January and the
other during the month of June, a statement of account showing details of copies printed, published,
held in stock and sold or disposed of (Except otherwise by sale of damaged or destroyed copies) and of
the profits, if any, earned there under.

3. The publishers shall pay or cause to be paid to the author or his nominee or nominees a royalty at
the rate of……… per cent on the sale proceeds of the copies of the work or adaptations or translations
thereof that may be actually published and as disclosed in the statement of account referred to in
clause (2). No royalty shall be payable on any copies of the work that may be damaged or destroyed or
disposed of otherwise than by regular sale.

4. That the publishers shall also pay to the author half the net profits earned by them, if any, from any
transfer, sale or assignment of any of the rights comprising the copyright or from grant of any interest
or license therein: provided that the publishers shall not be entitled to and shall not do or cause
anything to be done in derogation of the author’s rights, particularly the right to royalty reserved
hereunder.

5. That the author does hereby agree to revise the work and bring it up to date or otherwise modify,
alter, adapt or translate it or get it translated whenever reasonably required by the publishers
provided also that the publishers will not normally require the author to do so more than once in two
years; provided further that in case the author shall fail and/or neglect, and/or refuse, to revise,
modify, alter, translate the work or get it translated as and when reasonably required by the
publishers, they shall be at liberty to get the same done on his account by any person or persons of
their choice after due notice to the author and deduct all costs, charges and expenses out of moneys
payable to the author: provided also that in selecting the person proposed to revise, modify, alter,
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adapt or translate the work and in fixing the remuneration to be paid there for, the author’s wishes, if
any, shall so far as possible, be respected by the publishers.

6. That the author has delivered (or shall deliver within a period of………………) the manuscript of the
said work to the publishers.

7. That the author does hereby declare that the work of which the copyright is being hereunder
assigned is entirely the original work of the author and that the same does not in any manner
whatsoever violate or infringe any existing copyright or any other right of any other person or other
persons; and further that it does not contain anything which may be considered as obscene, libellous,
scandalous or defamatory.

8. The author hereby agrees to indemnify and keep the publishers indemnified against all claims,
demands, suits and other actions and proceedings, if any, that may be instituted or taken and also
against all damages, costs, charges, expenses which the publishers shall or may suffer, on account of
printing, publication or sale of the said work or any part thereof, or by reason of such printing,
publication and/or sale being an infringement of some other person’s copyright or other rights in the
work or by reason of its containing anything which may in any sense be obscene, libellous, scandalous
or defamatory.

9. The publishers shall print and publish the work or cause the same to be printed and published as
soon as practicable within a period of twelve months from the date of this contract, and in default
thereof, the author may, by a notice in writing, call upon the publishers to print and publish the work
within two months of the receipt of the said notice; and if the publishers shall still fail and/or neglect
to print and/or publish the work within the said period, save and except in so far as they are
prevented from doing so by circumstances beyond their control, the author shall be at liberty to
rescind the contract on giving a notice to that effect to the publishers when the copyright shall revert
fully to the author and all the rights of publishers shall as from that date stand determined.

10. That in case of a dispute or difference arising between the parties touching the meaning,
construction, interpretation, breach or fulfilment or non-fulfilment of the terms of these presents or
any clause or condition thereof, the same shall be referred to the decision and arbitration of two
arbitrators, one to be nominated by each party and in case of difference of opinion between the two
arbitrators to an umpire to be nominated by the arbitrators before the commencement of the
reference; and the award of such arbitrators, as the case may be, shall be final and binding on both the
parties and this clause shall be deemed as of submission within the meaning of the Arbitration &
Conciliation Act, 1996 and its statutory modification and re-enactment.

11. That the words “author” and “publishers” or “parties” used hereinabove shall unless there be
something contrary to the context, include their respective heirs, survivors, successors,
representatives, executors, administrators and assigns and successors in business.

in witness whereof the parties hereto have executed these presents on the date, month and the year
hereinbefore mentioned in the presence of the witness.
Witness: Author
Witness: Publisher
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ASSIGNMENT OF BUSINESS AND GOODWILL AND OTHER RIGHTS AND INTERESTS
Goodwill is an intangible asset. It is easy to describe but

difficult to define. It represents the value to a business
attaching to all the factors, internal and external, which
enable it to earn a differential return of profit on the capital
employed; that is, a better return than that which arises in
other comparable businesses, having regard to the nature,
size, location and risk inherent in such a business, and which
is capable of being enjoyed by a successor.

Goodwill has been variously defined by different commercial pundits. Some definitions are: “The
goodwill of a business is the advantage, whatever it may be, which a person gets by continuing to
carry on, and being entitled to represent to the outside world that he is carrying on a business,
which has been carried on for some time previously.”

v “The attractive force which brings in custom.”
v “The benefit of a good name, reputation and connection of a business.”
v “The one thing which distinguishes an old-established business from a new business at its first
start.”
v “The monetary measurement of the benefits attaching to the ownership of a successful
business.”
v “The capitalized value attaching to the differential profit-capacity of a business.”

“The whole advantage, whatever it may be, of the reputation and connection of the firm which may
have been built up by years of honest work orgained by lavish expenditure of money.” Goodwill is
an intangible, but not necessarily a fictitious asset, representing the value - however difficult its
appraisement may be - to its owner, of benefits arising from the business in question, such as the
sole right to enjoy the profits of the business, and, where goodwill has been acquired, the sole right
of succession to the advantages of the business which have been built up in the past. Goodwill
arises mainly:
(a) by personal reputation of the owners;
(b) by reputation of the goods dealt in;
(c) by site monopoly or advantage;
(d) by access to sources of supply, e.g., large quotas;
(e) for patent and trade-mark protection;
(f) effectiveness of publicity;
(g) reputation of the first’s goods and methods;
(h) relationship between firm and personnel; and
(i) growth element.

v The purchaser of goodwill acquires the trade marks, patents, copyrights etc. of the business as well
as the benefits of contacts and all the benefits accruing from the location, reputation, connections,
organisation and other exceptional features of the business. The purchaser will seek to express the
sum payable in terms of the compound or capitalised value of an annuity of future differential or
“super” profits that is those profits in excess of the marginal return normally arising.

v No formula can be laid down for the accurate measurement of the value of goodwill, and in
practice a purchaser will be prepared to pay a sum representing a number of years’ purchase of
recent annual average profits, e.g. three years’ purchase, according to the estimated worth to the
buyer of the future earning capacity of the business, the risk of the discontinuance or diminution in
true profits being duly considered.
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Partnership
(Section 4 of the Partnership Act, 1932)

An association of two or more like-minded persons formed
with a common objective to establish a lawful business house
of their choice with the idea of earning profits. All partners of
a firm mutually agree to share all profits and losses of the
business amongst them according to their predetermined
shares/proportions fixed by them in the partnership
agreement.

Partnership requires three elements –
v An agreement entered into by all persons concerned;
v Distribution of the profits of business; and
v Management of the business by all or anyone or more of them acting for all,
A partnership agreement usually makes provisions for the duration of the partnership or for its
determination. Where no such provision is made the partnership is "partnership at will"

Who can be Partners?

Ø Only natural and legal persons (Duli Chand Vs. CIT).
Ø Must be competent to contract.
Ø A firm or a Hindu Undivided Family is not a legal person and cannot enter into partnership with
any person.
Ø When the Karta of a Joint Hindu Family enters into a partnership with strangers the other
members of the family do not ipso facto become partners (Firm Bahgat Ram vs. comm. Of
excess profit tax).

A minor cannot be a partner in a firm but, with the consent of all the partners, he can be admitted to
the benefits of partnership (Section 3D). He is entitled to share in the profits and his share is liable
for the acts of the firm, but he is not personally liable. He cannot be made liable for the losses of the
firm. Within six months of attaining majority or obtaining knowledge of his admission, whichever is
later, the minor may elect to become or not to become a partner in the firm.

Two partnership firms cannot enter into partnership as such but its partners can certainly form a
new partnership. However, a partnership firm may be a member of an association or company
licensed under Section 8 of the Companies Act, 2013. The limited company of which a firm may be a
member should be one formed for promoting Commerce, Art, Science, Religion, Charity or any
other useful object without any profit making motive. On dissolution of the firm, its membership of
the association or company shall cease.

Maximum As per provisions of Section 464 of the Companies Act, 2013 there cannot be more than 100
Number of partners in a firm established for carrying any business for profit. However as per rule 10 of
Partners in a companies (Misc) Rules 2014, the limit is 50 members. A partnership firm having more than
Firm the maximum prescribed limit of partners shall be illegal.

Registration It is optional. Consequences of non-registration of a partnership firm are set out in Section
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of 69 of the Partnership Act. An unregistered firm cannot enforce a right or claim arising out of
Partnership a contract against any third party. However, if the firm obtains registration on the date of
Firm (Sec institution of the claim against third person, the said claim or right would be perfectly
58) maintainable. Since the blow of the consequences of non-registration is very severe, it is
advisable to get the partnership registered under the Partnership Act, 1932 immediately on
its incorporation.
Points to be kept in mind while executing partnership Deed

v Name and place of business.
v Duration of the partnership.
v Shares of each partnership in the profits and losses of the business.
v The management of the business.
v Nature of principal work agreed to be carried on in partnership,
v Number of partners and initial capital employed by each one of them,
v Provision and the manner for raising future capital, if required,
v Work distribution, if any, of each of the partners,
v Obligation of partners who are members of a partnership firm,
v Operation of Bank Accounts,
v Withdrawal by partners.
v Accounting system of the business.
v Whether place of business belongs to partnership or any individual partner.
v Division/Devolution of goodwill of the business in case of dissolution of partnership.
v Distribution of assets and liabilities amongst partners at the time of dissolution.
v Provisions for bringing in or admitting new partners.
v The remaining partners, whether his heirs will take his place, or the partnership will continue the
effect of the death of a partner, or it will stand dissolved.
v Provision for resolving disputes relating to partnership if arises amongst the partners. If all
partners agree to settle their partnership disputes through the intervention of some named person
who may act as an arbitrator for them or even otherwise by arbitration, it is always advisable to
include an arbitration clause in the partnership stating that all disputes that may arise between the
partners will be resolved by reference to arbitrator under the provisions of the Arbitration and
Conciliation Act, 1996.

Introduction of Introduction of a new partner in the existing partnership brings in a change in the
a New Partner constitution of the firm. A new partner cannot be admitted to the existing partnership
(Sec 31) except with the consent of all the existing partners of the firm but subject to any contract to
the contrary between such partners. The person so admitted as a new partner in the existing
partnership shall not be liable for any act of the firm already done.

Retirement A partner may retire from a firm with the consent of all other partners. If the terms of the
and Expulsion agreement so provide, a partner may retire by notice to the other partners. In a partnership
of Partners at will also a partner can retire by giving notice in writing to all the other partners of his
(Sec 32 and 33)
intention to retire. A partner can be expelled from a firm by a majority of the partners where
such a power is conferred by the agreement between the partners and the power is
exercised in good faith.
Nomination It is quite common in partnership agreement to insert a clause and nominate a

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of Successor: successor who has a right to be declared and admitted as partner in the event of death or
retirement of a partner.

However, in CIT V. Govindram Sugar Mills , Supreme Court held that the nomination
is not effective in case of partnership firm consisting of two partners only as it stands
dissolved on the death of a partner.

DEED OF PARTNERSHIP BETWEEN TWO PARTNERS

THIS INDENTURE OF PARTNERSHIP is made on this 08th Day of March, 2015 at (Place) by and
between

Mr. A, Son of Mr. B, Residence of _______ hereinafter called as 'Partner 1' of the First Part (Which
AND
Mr. X, Son of Mr. Y, Residence of _______ hereinafter called as 'Partner 2' of the Second Part (Which

WHEREAS the parties hereto decided to form a Partnership and commence business of trading in
(Product X) in the City of ________

AND WHEREAS the Parties decided to enter into a written instrument of Partnership on such terms
and conditions hereinafter mentioned.

NOW THIS INDENTURE OF PARTNERSHIP WITNESSES AND IT IS HEREBY AGREED AND
1. The Partnership firm will be known by the name of 'AX Trading' (hereinafter referred to as
Partnership firm) and will have its place of business at _______.
2. The rent, taxes, duties, repairs and other expenses in respect of the aforesaid place of business
shall be paid out of the partnership.
3. The duration of the firm shall be for a period of 36 months beginning from the month of this Deed.
The parties may mutually agree for the extension on the expiry of the aforesaid period of 36
months.
4. The Capital of the firm for the time being is fixed at Rs. 10,00,000 (Ten Lakhs) to be contributed by
equally by both the partners i.e. Rs. 5,00,000 (Five Lakhs) to be contributed by Partner A and Rs.5,
00,000 (Five Lakhs) to be contributed by Partner X.
5. The partners shall distribute net profits and bear the losses in the equal ratios.
6. The Partners shall be entitled to withdraw out of the net profits, money not exceeding Rs. ______ in
each month adjustable against the accounts of each partner.
7. No apprentice, clerk or servant shall be employed or dismissed without the consent of all the
partners.
8. The firm shall regularly maintain, in the ordinary course of business, a true and correct account of
all its incoming and outgoing and also its assets and liabilities.
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9. A Partner in his individual capacity can deal in goods or purchase materials or take loan not
exceeding Rs. 1,00,000. Any dealing exceeding this limit will need the prior consent of both the
partners.
10. The Partnership firm shall open an account with MNO Bank at its _______ branch and the said
account shall be operated jointly by the partners.
11. Every partner shall be entitled to dissolve the partnership in the event of other committing breach
of the conditions herein coveted.
12. On the bankruptcy of any partner, the partnership shall terminate.
13. Upon the determination of the partnership, a full and general account of its valuation shall be
taken of its property and assets and liabilities, the debts should be realized and the liabilities
should be paid. The net remaining cash will be divided equally amongst the partners.
14. Any dispute or doubt in connection with the partnership shall be referred to arbitrator one to be
chosen by each of the partners. In the event of non-agreement amongst two arbitrators, the
arbitrators may appoint a third arbitrator.

IN WITNESS WHEREOF THE PARTNERS have set their respective hands to the indenture of
partnership on the day, month and the year above written in the presence of the following witnesses

Witnesses:
1. Name of Witness
Father's name (Signature) A
Address (Signature)
2. Name of Witness
Father's name (Signature) X
Address (Signature)
DEED EXTENDING PERIOD OF A PARTNERSHIP

THIS DEED OF AGREEMENT is made the……… day of………. 2013 BETWEEN A.B., C.D. and E.F. AND
WITNESSES as follows:
That each of the said A.B., C.D. and E.F. do hereby agree with the others of them, jointly and severally,
in the manner following, that is to say:

That the said A.B., C.D. and E.F. will remain and continue partners together in the said trade or
business of………… for the further term of………… years to be counted from the………. Day of.……. 2007
the day on which the original deed of partnership shall expire, upon such and the same terms and
conditions, and with, under and subject to such and the same covenants, provisions and agreements as
are expressed and contained in the said original deed of partnership to which this agreement is
appended, and to which the said partners hereto, their respective legal representatives would have
been subject or liable, if the said deed of partnership and the partnership thereby created, and the
several covenants, declarations, provisions and agreements therein mentioned and contained\ had
been made or entered into for the term of ten years instead of the term of five years.

IN WITNESS whereof the said A.B., C.D. and E.F. have hereto at………… by way of a supplementary deed
executed these presents on the day and the year first above mentioned and appended the same to the
original deed of partnership, deed………………
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WITNESSES:
Sd/- A.B.
Sd/- C.D.
Sd/- E.F.
ANNEXURE III

DEED OF AGREEMENT OF ADMISSION INTO FIRM OF A NEW PARTNER

THIS DEED OF AGREEMENT is made on this 08th Day of April, 2015 at (Place) by and between

Mr. A, Son of Mr. B, Residence of _______ hereinafter called as 'Original Partner 1' of the First Part
(Which expression shall, unless repugnant to the context, include his heirs, executors, administrators,
AND
Mr. X, Son of Mr. Y, Residence of ______ hereinafter called as 'Original Partner 2' of the ________ First Part
(Which expression shall, unless repugnant to the context, include his heirs, executors, administrators,
AND
Mr. E, Son of Mr. F, Residence of ______ hereinafter called as 'New Partner' of the Other Part (Which
expression shall, unless the context admits otherwise, include his heirs, executors, administrators,

WHEREAS the Original Partners carried on the business in the name of 'AX Trading' and are bound as
such under the partnership deed executed on 08th day of March, 2015 hereinafter referred to as
Original Partnership Deed.

AND WHEREAS the New Partner is desirous of being admitted as a partner in the aforesaid firm and
invest a sum of Rs. 10,00,000 AND the Original Partners are willing to admit him as an additional
partner.

NOW THIS DEED WITNESSES AND IT IS HEREBY AGREED AND DECLARED AS FOLLOWS:

1. The Partners continue to remain partners as per the terms and conditions mentioned in the
Original Partnership Deed in all respect as far as applicable except as varied by this agreement.
2. The new name of the firm will be 'AXE Trading'.
3. The new partner shall bring in Rs. 5,00,000 (Rupees Five Lakhs) towards Goodwill and Rs.
5,00,000 (Rupees Five Lakhs) towards capital contribution.
4. The capital mentioned in the Original Partnership Deed shall hereafter be changed to the sum of
Rupees 15,00,000 (Rupees Twenty Lakhs) and the partners shall have the equal share in the
partnership firm i.e. Rs. 5,00,000 (Rupees Five Lakhs) each.
5. The profits and losses of the partnership shall continue to be borne by the partners equally.

IN WITNESS WHEREOF THE PARTNERS have set their respective hands to the agreement for
admission of new partner on the day, month and the year above written in the presence of the
following witnesses:

Witnesses:
1. Name of Witness
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Father’s name (signature) A
(signature)
2. Name of witness
Father’s name (signature) X
(signature)
3. Name of witness
Father’s name (signature) E
(signature)
DISSOLUTION OF PARTNERSHIP FIRM
Dissolution of firm may take place either with the intervention of
the court or without intervention of the court.

Dissolution without the intervention of the court may take
place in the following cases :
• By an agreement between the parties
• By adjudication as insolvent of all partners or all partners
but one
• By the business of the firm becoming unlawful
• By notice in writing in case of partnership at will

Dissolution with the intervention of the court may take place in the following cases :
• When the partner has become of unsound mind
• One of the partner has become permanently incapable of performing his duties as partner
• One of the partner is guilty of misconduct or is willfully and persistently committing breach of the
agreement relating to the firm.
• When the business of the firm cannot be carried on except at a loss
• On any other grounds, which render it just and equitable that, the firm should be dissolved.

DEED OF DISSOLUTION OF PARTNERSHIP
THIS DEED OF Dissolution of Partnership is made on this 8th Day of May, 2015 at (Place) by and
between
Mr. A, Son of Mr. B, Residence of ______- hereinafter called as ' Partner 1' (Which expression shall,
unless repugnant to the context, include his heirs, executors, administrators, representatives and
assigns)
AND
Mr. X, Son of Mr. Y, Residence of _______ hereinafter called as 'Partner 2' (Which expression shall, unless
repugnant to the context, include his heirs, executors, administrators, representatives and assigns)
AND
Mr. E, Son of Mr. F, Residence of _______ hereinafter called as 'Partner 3' (Which expression shall, unless
repugnant to the context, include his heirs, executors, administrators, representatives and assigns)

WHEREAS the partners under a deed of partnership dated 08th March, 2015 as amended on 08th
April, 2015 made between them formed themselves into a business firm and carried on business
under the name and style of 'AXE Trading.'

AND WHEREAS it has been mutually decided between the parties that the said partnership shall be
dissolved and the said trade and business shall be wound up and the stock in trade, assets and credits
should be realized and called in
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NOW THIS DEED WITNESSES AND IT IS HEREBY AGREED AND DECLARED AS FOLLOWS:

1. The Partnership between the said partners shall be determined and stand dissolved with effect
from the date of this agreement. And the parties hereto singly or jointly shall not carry on the
business of the said firm of AXE Trading under the said name and style for a period of 5 years from
the date of the dissolution.
2. The partners shall sign the notice of dissolution and advertise the same in the official gazette and
shall also intimate the fact of the dissolution to the Registrar of Firms.
3. Within 30 days after the dissolution of the partnership, a full and general account shall be made by
the parties or by such other person as may be appointed for this purpose whose decision shall be
binding and final on the partners.
4. Cost of the dissolution shall be deemed to be liability of the partnership and paid from the funds of
the partnership.
5. In case the winding up shows a loss or the assets of the partnership are insufficient to meet the
liabilities and debts, then the partners shall pay such losses in proportion to their contribution to
the capital.

In witness whereof the partners have set their respective hands to the agreement FOR admission of
new partner on the day, month and the year above written in the presence of the following witnesses:

Witnesses:

1. Name of witness
Father’s name (signature) A
(signature)
Address

2. Name of witness
Father’s name (signature) X
(signature)
Address

3. Name of witness
Father’s name (signature) E
(signature)
Address

NOTICE OF DISSOLUTION OF PARTNERSHIP FOR INSERTION IN NEWSPAPER
NOTICE IS HEREBY GIVEN THAT the partnership subsisting between us the undersigned Mr. A, Mr. X
and Mr. E carrying on the business in the name and style of AXE Trading has this day been dissolved by
mutual consent. All debts due to an owing by the said late firm will be received and paid by Mr. A.
Dated: Signature:
A

X

E

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TRUST DEEDS
Sec 3 of Indian Trust Act 1882 an obligation annexed to the
ownership of property, and arising out of a confidence reposed in
and accepted by the owner, or declared and accepted by him for the
benefit of another or of another and the owner.

The person who reposes or declares the confidence is called the
'author of the trust'. The person who accepts the confidence is called
the 'beneficiary'. Subject matter is called trust property, or the trust
money and the person who manages the property is called Trustee (author himself can be called as
Trustee)

“The trust is the confidence and the confidante is the
trustee.’’

The breach of any duties imposed on the trustee by any law for the
time being in force is called 'breach of trust'.

Objects of Section 4 of the Indian Trusts Act, 1882 provides that the object of the trust must be lawful.
Trust The purpose of the trust is lawful unless it is:

i. Forbidden by law, or
ii. Is of such a nature that, if permitted, it would defeat the provisions of any law, or
iii. Is fraudulent, or
iv. Involves or implies injury to the person or property of another, or
v. The Court regards it as immoral or opposed to public policy.
Public and In a public trust the beneficiary is the general public or a specified section of it. In a private
Private trust the beneficiaries are defined and ascertained individuals. In a public trust the
Trusts beneficial interest is vested in an uncertain and fluctuating body of persons. The nature of
the trust may be proved by the evidence of dedication or by user and conduct of parties.
Where a trust is created for the benefit of the members of the settlor's family, it is a private
trust and not a public trust. Every charitable trust is only a public trust as benefit to the
community at large or to a section of the community is of the essence of a valid charitable
trust. But a religious trust need not necessarily be a public trust as there can be a private
religious trust also.
Trusts among Though Hindu religious and charitable endowments sometime partake of the nature of
the Hindus trusts, the Indian Trusts Acts does not apply to them. Property can be dedicated to the
and the beneficiary either by giving it to the trustee and executing a trust in the usual way or by
Muslims directly dedicating it to the beneficiary.
Though wakfs are trusts, the Indian Trusts Act does not apply to wakfs under the Muslim
Law. However, it is open to a Muslim to create a secular trust of a public and religious
character. Such a trust would be governed by the Indian Trusts Act, 1882.
Creation of A trust in respect of immovable property can be declared only by a non-testamentary
Trust instrument in writing signed by the author of the trust or the trustee and registered
OR
By the will of the author of the trust or of the trustee. A trust in respect of movable property
can be made either by a declaration as above or by the transfer of the ownership of the
property to the trustee (Section 5).

In places where the Indian Trusts Act, 1882 does not apply a trust of immovable property
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may be created orally if the author of trust is himself the trustee and consequently no
transfer of the property is involved, and all that is required is only a declaration of trust
(Madanji v. Tribhuwan).

The deed creating a trust should contain in reasonable certainty, among others, the
following:
v An intention to create a trust
v The purpose of the trust;
v The beneficiaries;
v Names of the trustee/s;
v Trust property;
v Unless the author is himself a trustee transfer of the legal ownership of the property to the
trustee; and,
v Duties, rights and liability of the settler, trustee and the beneficiary.

The deed may also provide for; re-imbursement of expenses incurred' by the trustee(s) in connection
with the discharge of his/their duties as a trustee(s) and also all expenses properly incurred in or
about the execution of the trust for the realization, preservation or benefit of the trust' property-or the
protection or the support of the beneficiary.

Acceptance of Acceptance of trust by trustee may be either express, e.g. by executing the deed of trust or
Trust by verbal assent, or inferred from conduct, e.g. by entering into possession of the property
and on the duties as trustee. But it is always safer to have the deed of trust executed by the
trustee also.
Registration A trust in relation to movable or immovable property which is declared by a non-
and Stamp testamentary instrument must be registered, irrespective of the value of the property. Deeds
Duty of wakf or of religious and charitable endowments must be registered if they relate to
immovable property worth Rs. 100 and upwards.
A trust declared otherwise than by a will is chargeable to stamp duty under Article 64,
Schedule I of the Indian Stamp Act, 1899. The stamp duty varies from State to State.
Revocation A trust cannot be revoked unless
and v All the beneficiaries consent;
Extinction of v A power of revocation has been reserved in the deed; and
Trusts v In case of a trust for payment of debts, it has not been communicated to the creditors.

If the trust property is to be applied for the author's own benefit the trust can be revoked. A power of
revocation may with advantage always be reserved in the deed. The declaration of trust for creating
provident fund, pension fund, superannuation fund, gratuity fund etc. should be irrevocable.

A trust is extinguished:
v When its purpose is completely fulfilled; or
v When its purpose becomes unlawful; or
v When the fulfillment of its purpose becomes impossible by destruction of the
trust property or otherwise; or
v When the trust, being revocable, is expressly revoked.

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A SPECIMEN DEED OF REVOCATION OF A TRUST

THIS DEED is made on the………day of……… by and between:

A.B. etc. (hereinafter called “the Settlor”) of the one part
AND
C.D. etc. (hereinafter called “the Trustee”) of the other part.

WHEREAS by a deed of trust dated…………………… the Settlor transferred him property specified
therein to the Trustee upon trust to sell the same and with the proceeds of the sale to pay the debts
due from the Settlor to the several creditors named in the said deed;

AND WHEREAS the trust created as aforesaid has not yet been communicated to any of the aforesaid
creditors;

AND WHEREAS the Settlor now desires to revoke the said trust and to make other arrangements for
the discharge of his aforesaid debts.

NOW THIS DEED WITNESSES that the Settlor hereby revokes the trust created by the aforesaid deed
of trust.

IN WITNESS WHEREOF parties have signed this deed on the…………………… day of……………………

Signed by……………………..………

In the presence of……………………

and of…………………………….……

Debenture Trust Deeds
Companies in the course of their normal business borrow funds by various modes, one such mode
being the issue of debentures. An issue of debentures is usually secured by a trust deed, whereunder
movable and immovable properties of the company are mortgaged in favour of the trustees for the
benefit of the debenture holders. The trust deed so created, as in the case of a trust, should specify all
the details which have been mentioned earlier.

In addition, the usual important conditions of debenture trust deeds may be stated as follows:
1. The trust deed usually gives a legal mortgage on block capital and a floating security on the other
assets of the company in favour of the trustee on behalf of the debenture holders.
2. The trust deed gives in detail the conditions under which the loan is advanced.
3. The trust deed should specify in some detail the remuneration payable to the trustee, their duties
and responsibilities in relation to the trust property. Section 71(7) of the Companies Act, 2013
specifically provides that any provision contained in a trust deed for securing an issue of debentures,
which has the effect of exempting a trustee or indemnifying him against any liability for breach of trust
shall be void.
4. It also gives in detail rights of debenture holders to be exercised through the trustees in case of
default by the company in payment of interest and principal as agreed upon.

The duty chargeable on a debenture is provided for by Article 27, Schedule I of the Indian Stamp Act,
1899. The stamp duty varies from State to State. But when a trust-deed accompanying a series of
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debentures is duly stamped, no stamp is necessary to be affixed on the debentures if they are
expressed to be issued in terms of the said trust deed.

The debenture trust deed is registrable and can be registered with the Registrar of Assurances at the
place where the registered office of the company is situated or at the place where a part of the
immovable property proposed to be given in the mortgage is situate or at the metropolitan cities,
namely, Delhi, Bombay, Calcutta and Madras.

DRAFT TRUST DEED - (PROVIDENT FUND)

DECLARATION OF TRUST is made this 08th Day of March, 2015 at (Place) by and between

ABC Company Limited, a company incorporated under the Companies Act, 2013 having its registered
office at _________ , hereinafter called as the 'Company' of the One Part, which expression shall, unless
repugnant to the context, include its legal representatives, assigns and liquidators thereof, herein
represented by Mr. A, Director of the company.
AND
Mr. X, Son of Mr. E, Residence of ________ and Mr. Y, Son of Mr. F, Residence of _______ and Mr. Z, Son of
Mr. G, Residence of ________, hereinafter called as the 'Trustees' of the other Part, which expression
shall, unless repugnant to the context, include their respective legal heirs and nominees thereof.

WHEREAS the Company intends to create a Provident Fund for the benefit of the employees

AND WHEREAS it is necessary to execute a declaration of trust in respect of the contribution of the
company and of the members to the fund.

THIS DEED WITNESSETH AND IT IS HEREBY AGREED AND DECLARED BY AND BETWEEN THE
PARTIES HERETO AS FOLLOWS:

1. That the above named persons, namely (1) Mr. X, (2) Mr. Y and (3) Mr. Z are hereby appointed as
the trustees for administering the provident fund of the company and the income thereof as
provided in the Provident Fund Rules of the Company in force for the time being.
2. Definitions:
a. 'Fund' means Provident fund constituted
b. 'Member' means an employee of the company subscribing to the fund
c. 'Subscription' means any sum credited by or on behalf of a member out of his salary to his
individual account but does not include interest.
d. Salary includes dearness allowance and commission (if terms of employment allows).
3. The trust shall not be revocable except with the consent of all the members of the fund.
4. The money constituting the fund shall be invested by the Trustees in such manner as may be
specified in the Income Tax Rules.
5. Composition of Trustees:
a. The number of trustees at all times shall be 3 (three)
b. One of the trustees shall be nominated by Board of Directors
c. Nominee of the Board of Directors shall be chairman of the Trust
d. The nominee of the Board of Directors shall hold office until a new representative is appointed
by the Board of Directors to take his place.
e. Other trustees shall be elected by ballot by members and shall hold office up-to 3 years.
6. The trustees may meet together for the dispatch of the business, adjourn or otherwise regulate
their meetings as they think fit. The Chairman and an elected trustee shall form quorum.

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Drafting - IV
7. The Board of Trustees shall be authorised to delegate any of their powers to such person as tought
fit from time to time.
8. The fund shall be exclusively managed and administered by the Trustees in accordance with the
rules.
9. The trustee shall have power to employ any person or persons to do any work for the trust as may
be required from time to time.
10. Every member shall subscribe to the funds at the rate of 10% of his monthly salary and such
percentage shall be deducted from his salary.
11. Monthly contribution payable by the company in respect of each member shall be equal to the
subscription payable by each member.
12. Subject to the previous approval by the Commissioner of Income Tax, the trustees shall, with the
approval of the Board of Directors be competent to alter the rules of the provident fund.
13. The trustee shall furnish a statement of Provident Fund account to each member at such intervals
not exceeding 12 months.
14. The accounts of the Provident Fund trust shall be made for each year and shall be duly audited by
the auditors appointed by the trustees with the approval of Board of Directors of the Company.
15. There shall be annual meeting of the trustees after the close of the year and the accounts shall be
presented and passed at such meeting.
16. All matters and procedures not specified here shall be regulated by such rules as the trustee may
make in that behalf, after consulting with Board of Directors.

IN WITNESS WHEREOF the parties hereto have put their respective hands (through authorised
representative) on the date, month and year above written in the presence of the following witnesses.

Witnesses:

4. Name of witness
Father’s name (signature)
(signature)
Address

5. Name of witness
Father’s name (signature)
(signature)
GIFT
Section 122 of the Transfer of Property Act, 1882 defines Gift as the
transfer of certain existing movable or immovable property made
voluntarily and without consideration, by one person, called the
donor, to another, called the donee and accepted by or on behalf of
the donee. Such acceptance must be made during the lifetime of the
donor while he is still capable of giving. If the donee dies before
acceptance, the gift is void.

Section 125-provides-that the gift of a thing to two or more donees of which one does not accept it is
void as the other cannot accept the whole.

Section 126 prescribes the circumstances when a gift may be suspended or revoked. The donor and
donee may agree that on the happening of any specified event, which does not depend on the will of
the donor, a gift shall be suspended or revoked.

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Drafting - IV
Gift in India are regulated by personal laws, usages and customs. Under Hindu law, a gift once
completed is binding upon the donor and he cannot revoke it unless it was obtained by fraud or undue
influence. However, Section 126 cannot be applied to Muslims. Thus, except under certain special
circumstances, a Muslim can revoke a gift even after delivery of possession.

Deed of Gift
The gift deed should be drafted as a deed of transfer with recitals if necessary. There is no
consideration involved in gift; as such no mention is required to be made of the same in the gift deed.
However, the words ‘Natural Love and Affection’ are outstanding achievements in social life.

Stamp duty and Registrationà
Stamp duty is payable on gift deed as is payable on the conveyance as per the amount of property as
mentioned in the need or as per market of such property whichever is greater.
Gift deed of immovable property requires compulsory registration.

SPECIMEN DEED OF GIFT FOR LOVE AND AFFECTION

THIS DEED OF GIFT is made on this 08th Day of March, 2015 at (Place) by and between:

Mr. A, Son of Mr. B, Residence of _______ hereinafter called as Donor, the one part (Which expression
shall, unless repugnant to the context, include his heirs, executors, administrators, representatives and
assigns) and

Mr. X, Son of Mr. A, Residence of _______ hereinafter called 'Donee' of the other part (which expression
shall unless repugnant to the context, include his heirs, executors, administrators, representatives and
assigns).

WHEREAS the donor is the owner of the property described in the Schedule and out of his paternal
love and affection for his son, the done, is desirous of making a gift of the said property to the donee at
the time of his marriage.


1. In consideration of the natural love and affection of the donor for the donee, the donor transfers to
the done free from encumbrances ALL the property described in the Schedule TO HOLD the same to
the donee absolutely for ever.

2. The donee accepts the transfers.

IN WITNESS WHEREOF, etc.,


AB
CD
(2) Deed of Gift of Property for Particular Purpose

THIS GIFT is made the……………………. day of……………………. by and between

AB of, etc. (hereinafter called “the Donor”) of the one part,
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Drafting - IV
AND
CD of, etc. (hereinafter called “the Donee”) of the other part.

WHEREAS the donee intends to start a school in his village……………………. for the education of girls
AND whereas the donor is desirous of donating the land fully mentioned and described in the Schedule
hereto to be used as a site for the said School.

NOW THIS INDENTURE WITNESSETH that in pursuance of the said pious wish and desire and as a
patron of the proposed school to be started by the donee, the donor do hereby and hereunder freely
and voluntarily grant, convey, transfer, give, assign and assure unto and to the use of the donee and his
successor ALL THAT, etc., etc., to be used solely and exclusively for the purpose of a site for
construction and accommodation of the proposed girls’ school TO HAVE AND TO HOLD the same so
long as the same shall be used and occupied as a site and/or building of the school AND THAT the
donee accepts the gift of the said property hereunder made solely and exclusively for the purpose
hereinbefore indicated subject to the condition hereunder provided.

THIS INDENTURE FURTHER WITNESSETH that it is expressly agreed and understood by and between
the parties that this gift of land will stand ipso facto revoked in the event the land hereunder given is
not used for the purpose of the intended school for which the same is given within a period of one year
from the date of thesepresents or in the alternative the said school is abolished or shifted elsewhere or
amalgamated with some other institution when and in all or any such event or events the land with all
buildings and structures, if any erected thereon, shall revert to and revest in the donor or his heirs,
executors, administrators and representatives and shall form part of his former estate as if this deed of
gift was never executed nor intended. And it is further agreed by and between the parties that in case
the land is acquired by the Government, the donee or his successors, including any person or persons
managing the school, shall invest the compensation money to be awarded in purchase of another land
or building to be used solely and exclusively for the school unless otherwise directed by any court of
competent jurisdiction. The estimated value of the property is Rs…………………….

IN WITNESS WHEREOF the donor has executed this deed of a gift and delivered the same to the donee
who has also executed the same in token acceptance thereof the day, month and year first above
written.
AB
CD
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PAST EXAM QUESTIONS

Q1 Three partners, Aman, Bhuvan and Chaman, decided to dissolve their firm named ABC & Co., by
mutual consent. However, Aman agreed to continue the business in his own name, as a sole
proprietor, and all the other partners agreed to this. Draft a notice of dissolution of ABC & Co. for
insertion in a national newspaper. (Dec’10)

Q2 Draft a specimen deed of sale of a business and assignment of goodwill. (June’13)

Q3 Author of the trust. (Dec’10)

Q4 Santosh and Swamy are the partners in a partnership firm 'Santswam'. In view of mounting losses
in the business, they decided to wind-up the business and dissolve the said firm. They require you
to provide a release deed for dissolution of the firm. Prepare the release deed. (June’15)

Q5 A partnership dissolution deed may be written on a plain paper. Its registration is not compulsory.
No format is prescribed for it. Illustrate through a specimen deed of dissolution of a partnership
firm.

Q6 In the light of judicial pronouncements, discuss the following:

Q7 A transfer of an actionable is usually called an assignment.

Q8 While drafting a deed of assignment of goodwill in the sale of business, goodwill ought to be
specifically calculated in unassailable figures or arbitrarily fixed.

Q9 In dissolution of the firm, jural relation between all the partners, inter se, is snapped. Comment.

(June’14)

ü Public trust & private trust (June’07, Dec’12)
ü Partnership & trust (june’09)
ü Revocation & extinction of trust (June’14)
ü Registration of partnership firm under Income Tax Act 1961 & Registration of partnership firm
under Indian Partnership act 1932 (Dec’12)

7. 26

Drafting under Co. Act 13
DRAFTING OF AGREEMENTS UNDER COMPANIES ACT

PROMOTER
The word ‘Promoter’ has not been defined by the Companies Act, 1956 but a definition of the word
promoter has been added in the Companies Act, 2013.

As per Section 2(69) of the Companies Act, 2013, Promoter” means a person –
a) Who has been named as such in a prospectus or is identified by the company in the annual
return referred to in section 92; or
b) Who has control over the affairs of the company, directly or indirectly whether as a
shareholder, director or otherwise; or
c) In accordance with whose advice, directions or instructions the Board of Directors of the
company is accustomed to act:

Provided that nothing in sub-clause (c) shall apply to a person who is acting merely in a professional
capacity;

Generally Promoter of a company is a person who does the necessary preliminary work in connection
with the formation and the establishing of the company. It is Promoters only who conceives an idea,
develops it, formulates a scheme or project and takes all the necessary steps for the formation of a
company to implement the project or the scheme.

Before the company is registered by the Registrar promoters continue to be known as promoters.
They gather funds for meeting the expenses in connection with the formation of the company and
spend them, which are known and designated as “preliminary expenses” and a provision is made in the
articles of association of the company authorizing the company and its directors to reimburse
promoters the preliminary expenses incurred by them, and also a provision for the formalization of
the contracts which the promoters of the company had entered into with third parties prior to the
company coming into existence. Promoters usually enter into contracts with the prospective directors,
solicitors, bankers, brokers, underwriters, auditors, secretary, manager and with those who offer to
sell land, plant, machinery equipment etc. for implementing the proposed project. Such contracts are
known as “promoters’ contracts” which are not binding on the company because the company had not
come into existence when they were entered into with third parties by the company’s promoters.
However, as a matter of practice, the company, on its incorporation enters into fresh contracts with
the third parties on the lines of the promoters’ contracts, which then become binding on the company.
PROMOTERS’ CONTRACT – PRE-INCORPORATION CONTRACTS

Companies Act, 2013 does not contain any provisions about Promoter’s Contract. The
promoters of a company usually enter into contracts to acquire some property or right for the
company, which is yet to be incorporated; such contracts are called preliminary or pre-
incorporation contracts. The promoter’s generally enter into such contracts as agents for the
company about to be formed. The legal position is that since presence of two consenting
parties is necessary for a contract, and the company before incorporation is a non-entity, the
promoters cannot act as agents for the company, which has yet to come into existence. As
such, the company is not liable for the acts of the promoters done before its incorporation.
8. 1


When the company comes into existence, it is not bound by the pre-incorporation contracts
even when it takes the benefit of the work done on its behalf. However, the third party against
the company may successfully claim specific performance of a contract between a third party
and the promoters, when the company enters into possession of the property on the faith of
the promoters’ contract.

Similarly, the company, after incorporation, cannot enforce any contract made before its
incorporation, which means the company cannot sue the other party to the contract if the
other party fails to carry out the contract. Promoters remain personally liable on the contract.

A company also cannot ratify a contract entered into by the promoters on its behalf before its
incorporation. Therefore, it cannot by adoption or ratification obtain the benefit of the
contract purporting to have been made on its behalf before it came into existence, as
ratification by the company when formed is legally impossible. The doctrine of ratification
applies only if an agent contracts for a principal who is in existence and who is competent to
contract at the time of the contract by the agent. Where a contract is made on behalf of
principal known to both parties to be non-existent, the contract is deemed to have been
entered into personally by the actual maker, i.e. the agent. A company may, if it desires, enter
into a new contract, after its incorporation, with the other party which is known as novation
of promoter’s contracts; and if it makes a fresh contract in terms of the preliminary contract,
the liability of the promoters comes to an end and if it does not make a fresh contract within a
limited, period of time, either of the parties may rescind the contract. The essential feature of
novation is that the right under the original contract is relinquished and a new right referable
to a new contract is created. The substituted contract must, in order to affect a Novation, be
enforceable one.

The pre-incorporation agreements entered into by the promoters acting on behalf of the
intended company with third party cannot always be avoided for various reasons. These
agreements affect the operations of the incorporated company.

SPECIMEN OF PROMOTER'S CONTRACT FOR THE PURCHASE OF

LAND
THIS AGREEMENT is made on this 08th Day of November 2014 at (Place) by and between:
Mr. A, Son of Mr. B, Residence of ______________________ hereinafter called as 'Promoter' of the one
part (Which expression shall, unless repugnant to the context, include his legal heirs,
executors, administrators, representatives and assigns thereof)
and
Mr. X, Son of Mr. Y, Residence of ________________________ hereinafter called as 'Vendor' of the Second
Part (Which expression shall, unless repugnant to the context, include his legal heirs,
executors, administrators, representatives and assigns thereof)

8. 2

WHEREAS the promoters have been engaged for quite some time in the past in promoting and
forming a company tome known as ABC limited which name is made available to the P ro m o te r
b y th e R e g is tr a r o f C o m p a n y ________ a n d c o n s e q u e n t u p o n w h ic h th e o th e r formalities
are in process.

AND WHEREAS the Memorandum and Articles of Association of the proposed ABC Limited
em pow ers the com pany and its directors to enter into Fresh agreem ent sim ilar to the
agreement entered into by the promoters for the purchase of land, plant, machinery,
equipment and such other agreements)

AND WHEREAS Vendor is the absolute owner of the Industrial plot of land measuring and
situated at (hereinafter referred to as 'Industrial Plot') more particularly described in the
Schedule A annexed hereto.

AND WHEREAS the Promoters are desirous to buy the said plot of land for the proposed Company to
set up an industrial unit on its incorporation.

NOW IT IS AGREED AND DECLARED BY AND BETWEEN THE PARTIES AS FOLLOWS :
1. That the Vendor shall sell and the promoter shall purchase the Industrial Plot in
consideration of the payment by the promoters on the date of this agreement of the s u m o f
Rs._________ and the balance of Rs. ___________ on the date of the
r e g i s t r a t i o n of the conveyance deed before the sub-registrar of assurance.
2. The Vendor shall satisfy the promoters about the title of the aforesaid Industrial Plot within
one month of the execution of this agreement and the promoter or his representative
will be entitled to ask for such information as may be necessary and the vendor shall be bound
to allow inspection of the title deeds relating to the plot of land at his place.
3. The parties shall complete the transaction of the sale within six month of the date of this
agreement if the promoter is satisfied about the title.
4. The parties shall bear the expenses of sale equally. Taxes and other expenses shall be
borne by the vendor.
5. The vendor shall deliver actual possession of the plot of land to the promoters or the
company on the date of payment of the balance amount as aforesaid and on the
registration of the conveyance deed.

In Witness whereof the parties have set their respective hands to this agreement on the day,
month and the year above written in the presence of the following witnesses:

Witnesses:
Name of Witness
Father’s name (Signature) A (Signature)
Address

Name of Witness
Father’s Name (Signature) X (Signature)
Address

8. 3

MEMORANDUM OF ASSOCIATION:
MOA is a document, which sets out the constitution of the company and is therefore the
foundation on which the structure of the company is built. It defines the scope of the
company's activities and its relations with the outside world.

FORM OF MEMORANDUM OF ASSOCIATION:
Table Applicability
Table A Applicable in case of companies limited by shares.
Table B Applicable in case of companies limited by guarantee not having a share capital.
Table C Applicable in case of companies limited by guarantee having a share capital.
Table D Applicable to unlimited companies not having a share capital.
Table E Applicable to unlimited companies having a share capital.
ARTICLES OF ASSOCIATION:
Section 2(5): Article means Articles of Association of the Company as originally
framed or altered from time to time or applied in pursuance of any previous company
law or of this Act.

Section 5(1) states that the Articles of the Company shall contain the regulations for
management of the company. The Articles of Association are its bye laws or rules and
regulations that govern the management of its internal affairs and the conduct of its
business.

It should be noted that neither the Articles nor the Memorandum can authorize the
company to do anything so as to contravene any of the provisions of the Act.

FORM OF ARTICLES OF ASSOCIATION

Table Applicability
Table F Applicable in case of companies limited by shares
Table G Applicable in case of companies limited by guarantee and having a share capital
Table H Applicable in case of companies limited by guarantee and not having a share capital.
8. 4

Table I Applicable to unlimited companies and having a share capital
Table J Applicable to unlimited companies and not having a share capital

A company may adopt all or any of the regulations contained in the model articles
applicable to such company.
A company may draft its own set of articles in conformity with the Companies Act, 2013
and the model forms given or it may adopt Table F or such other table as may be
applicable. If articles are not registered, the concerned table automatically becomes
applicable and if Articles are registered, Table will apply only to the extent provisions are
not there in the articles.

CONTENTS OF ARTICLES OF ASSOCIATION:
Share capital, rights of shareholders, variations of these rights, payment of
commission, share certificates etc.

v Lien on shares
v Calls on shares
v Transfer/Transmission of shares
v Forfeiture of shares
v Alteration of capital ➢ Buy Back of shares
v General meeting/Voting rights/proxy/Board of Directors
v KMP
v Common Seal
v Dividend and reserves
v Accounts
v Winding up
v Such other aspects relating to internal working/management
v Notice And Related details

ESSENTIAL FEATURES OF NOTICE OF MEETINGS:
The essential features of notice are as follows:
v The notice must fairly and intelligently convey the purpose for which the meeting is called. It
should not be misleading or equivocal: A benevolent construction is not to be applied in
construing the notice.
v The notice must not be contingent or conditional
v The notice must be frank, open, clear, satisfactory and free from 'trickiness'.
v Any resolution not covered by the notice cannot be validly passed by the meeting
v Except in case of a special resolution', it is not necessary that the actual resolution passed at the
meeting should be identical with the resolution specified in the notice.
v Notices are not to be construed with excessive strictness; substantial compliance with the articles
is sufficient Notices are to be construed as a businessman would construe them.

UNDERWRITING AND BROKERAGE AGREEMENTS
8. 5

Underwriting is an insurance against risk. The issues are by and large underwritten to ensure that all
the shares or debentures issued are taken up and thus the required capital is raised.

Section 40 permits a company to pay certain commission and prohibits the payment of all other
commissions, discounts etc.

A company may pay commission to any person for his procuring or agreeing to procure subscription
whether absolute or conditional for any shares or debentures of the company if articles authorize the
payment of commission.

In case of Shares the commission paid doesn’t exceed 5% of the issue price or the amount authorized
by article whichever is less however in case of other securities, e.g. Debentures 2.5% of the price at
which issue price or the amount or rate authorized by the articles whichever is less .
Rule 13 of companies (prospectus and allotment of securities) Rules, 2014, a company may pay
commission to any person in connection with the subscription or procurement of subscription to its
securities, whether absolute or conditional, subject to the following conditions:

Ø The payment of such commission shall be authorized in the company’s AOA.
Ø The commission may be paid out of proceeds of the issue or the profit of the company or both
Ø The rate of commission shall not exceed 5% in case of shares and 2.5% in case of debentures or the
rate as per AOA, which ever is less
Ø The prospectus of company shall disclose:-
Ø The name of underwriters
Ø The rate and amount of the commission payable to the underwriters and
Ø The number of securities, which is to be underwritten or subscribed by the underwriters
absolutely or conditionally.
Ø There shall not be paid commission to any underwriter on securities which are not offered to the
public for subscription
Ø A copy of the contract for the payment of commission is delivered to the ROC at the time of
delivery of the prospectus for registration.

UNDERWRITING CONTRACT
THIS UNDERWRITING CONTRACT is made on this 08th Day of March 2015 at (Place) by and
between
ABC Limited, a Company incorporated under the Companies Act, 2013 having its registered
office at and carrying on the business as underwriters (hereinafter called as 'Underwriters' of
the first part), which expression shall, unless repugnant to the context, include its legal
representatives and assigns thereof, herein represented by Mr. C, Director of the company.
AND
XYZ Limited, a Company incorporated under the Companies Act, 2013 having its registered office at
and coming up with a public issue (hereinafter called as 'Company' of the other part) which
expression shall, unless repugnant to the context, include its legal representatives and assigns
thereof, herein represented by Mr. X, director of the company.
WHEREAS the company is about to offer for public subscription an issue of 2,00,000 equity shares
of Rs. 100 each in accordance with the terms of draft prospectus, a copy of which is annexed hereto.
AND WHEREAS the Underwriters have shown their willingness to underwrite the whole of the
aforesaid issue.
8. 6


NOW IT IS HEREBY AGREED AS FOLLOWS:
1. Underwriters agree to completely underwrite the issue of 2,00,000 equity shares of Rs.100 each.
2. Underwriters agree to fulfill their underwriting liability within 10 days from the close of the
subscription list by applying for the remaining or all the shares as the case may be.
3. The responsibility of the underwriters shall cease if public subscribes all the shares.
4. The company shall pay to underwriter a commission at the rate of 3% of the nominal value
5. The agreement is to be irrevocable on part of the underwriters
6. Underwriters will give consent on demand to include their name as underwriters in the
prospectus or other document in connection with the issue

In witness whereof the parties have put their respective hands (through authorized representative) on
day and year first herein above written in terms of the resolution passed in its board of directors in the
presence of following witness:

Name of witness

Father’s name (signature) For ABC limited
Address Director

Name of witness
Father’s name (signature) For XYZ LIMITED
ADDRESS DIRECTOR

Annexure: draft prospectus

8. 7

CONTRACT OF APPOINTMENT WITH MANAGING DIRECTOR

Section 2(54) of the Companies Act, 2013 à “Managing Director” means “a director who, by virtue
of an agreement with the company or of a resolution passed by the company in general meeting or
by its Board of directors is entrusted with substantial powers of management of the affairs of the
company, and includes a director occupying the position of a managing director, by whatever name
called.”

While drafting a contract of appointment, the following points have to be taken care of:
The person who is being appointed as managing director must be a director of the company; and He
must be entrusted with substantial powers of management.

Usually the articles of association of companies empower the Board of directors to appoint one or
more of the directors as managing director(s) and fix their remuneration subject to the provisions
of Sections 196, 197, 198, 199, 200 and other applicable provisions of the Act and Rules make
thereunder. The Board of directors while appointing a director as managing director, critically
examines the draft agreement prepared by the secretary for the appointment of the managing
director and after having approved the same with or without any modification, authorizes one of its
directors to sign and execute for and on behalf of the company, the agreement for the appointment
of the managing director. It should, therefore, be made sure that the person executing the
agreement on behalf of the company is duly authorized by the Board of directors in this regard.

Being an agreement, such a contract must have all the other essential ingredients of a contract
under the Indian Contract Act, 1872, namely,
i. Free consent of parties;
ii. Competence to contract;
iii. For a lawful consideration;
iv. With a lawful object; and
v. Are not expressly declared to be void in the act (section 10).

Section 11 of the Contract Act lays down that “every person is competent to contract who is of the
age of majority, according to the law to which he is subject, and who is of sound mind, and is not
disqualified from contracting by any law to which he is subject.”

Section 12 of the said Act provides that a person is said to be of sound mind for the purpose of
making a contract if, at the time when he makes it, he is capable of understanding it and of forming
a rational judgment as to its effect upon his interests. A person who is usually of unsound mind, but
occasionally of sound mind, may make a contract when he is of sound mind. A person who is
usually of sound mind, but occasionally of unsound mind, may not make a contract when he is of
unsound mind.

Section 14 of the Contract Act, consent is said to be free when it is not caused by –
v Coercion;
v Undue influence;
v Fraud;
v Misrepresentation; or
v Mistake.

8. 8

SPECIMEN AGREEMENT OF SERVICE AS A MANAGING DIRECTOR OF THE COMPANY

THIS AGREEMENT is made on this 08th Day of March, 2015 at (Place) by and between:

XYZ Limited, a Company incorporated under the Companies Act, 2013 having its registered office at
________ herein represented by its Director Mr. Z, hereinafter referred to as 'Company' (Which
expression shall, unless repugnant to the context, include its legal representatives and assigns thereof)
AND
Mr. T, Son of Mr. Y, Residence of _________ hereinafter called as 'Managing Director' of the Second
Part (Which expression shall, unless repugnant to the context, include his legal heirs, executors,
administrators, representatives and assigns thereof)
WHEREAS the Company intended to appoint a Managing Director to look after the
business.
AND WHEREAS the company after screening various applications and conducting interviews has
decided to appoint Mr. T as the Managing Director of the Company
AND WHEREAS the Company and the Managing Director have agreed to decide on the terms
and conditions of service by entering into this agreement.
NOW THIS AGREEMENT HEREBY WITNESSETH AS FOLLOWS:
1. The company hereby appoints Mr. T as the Managing Director of the company for a term of 5 years
with effect from _______ and subject to such approvals as may be required.
2. The Managing Director shall exercise and perform such powers and duties as the Board of
Directors of the Company shall, from time to time, determine.
3. Apart from the other powers, Managing Director shall be entitled to exercise the following powers:
Ø To open and operate bank account in the name of the company and in the best interest of the
company
Ø To borrow money for the purpose of the working of the company not exceeding Rs. 5,00,000 in
a financial year.
Ø To incur capital expenditure upto a sum of Rs. 5,00,000 in a financial year.
Ø To engage employees and other servants for the company at a basic salary not exceeding Rs.
8000 per month.
Ø To institute, defend, prosecute, appear or appeal, refer to arbitration and do such related
things for and on behalf of the company from time to time.
4. The company shall pay the Managing Director a salary at Rs. 12,00,000 per month. In addition to
the salary, entertainment expenses, travelling expenses and out of pocket expenses shall be
reimbursed on actual basis.
5. Any dispute or difference arising between the parties shall be referred to the arbitration. The
venue of the arbitration shall be __________ unless otherwise agreed in writing.
In witness whereof the parties have put their respective hands on the day and year written herein in
terms of the resolution passed in its board of Directors in the presence of the following witnesses:

1 : Name of Witness
Father's name (Signature) A (Signature)
8. 9

Address
2 : Name of Witness
Father's name (Signature) T (Signature)
Address
3 : Name of Witness For XYZ Company Private Limited

Father's name (Signature)
Address Company Secretary

Annexure: Schedule 1

CONTRACT OF APPOINTMENT WITH MANAGER

Section 2(53) of the Companies Act, 2013 defines “Manager” as an individual who, subject to the
superintendence, control and direction of the Board of directors, has the management of the whole, or
substantially the whole, of the affairs of the company, and includes a director or any other person
occupying the position of a manager, by whatever name called, and whether under a contract of
service or not.

The above definition highlights the following points, which must be borne in mind by the secretary
while drafting an agreement for the appointment of a manager:
v A manager has to be an individual only;
v A manager has the management of the whole, or substantially the whole, of the affairs of the
company;
v A manager functions subject to the superintendence, control and direction of the Board of
directors of the company;
v A manager may be under a contract or not.

If, for the appointment of a manager, an agreement is not drawn and executed, then the secretary must
draft a detailed Board resolution approving the appointment of a manager, making it very clear that
the manager shall have the management of the whole or substantially the whole of the affairs of the
company, and shall function under the superintendence, control and direction of the Board of
directors, which means that he shall act under the directions of the Board, his actions shall be subject
to the scrutiny arid supervision of the Board and finally the Board shall direct the manager in his day-
to-day management of the affairs of the company. As against a managing director, who is entrusted by
the Board of directors with substantial powers of management, a manager by virtue of his
appointment has the power of management. A managing director after the powers of management
have been entrusted to him performs his day-to-day functions independently according to the
mandate of the Board, whereas a manager act sunders the superintendence, control and direction of
8. 10

the Board. Keeping the above subtleties between the two managerial personnel in view, the secretary
shall proceed to draft an agreement for the appointment of a manager.
CONTRACT OF APPOINTMENT WITH SECRETARY

The position of Secretary in a company is a very important one. He is the person who acts as liaison
between the Board of Directors and the shareholders on the one hand, with the Departmental Division
heads and with the world at large on the other hand. Every information from various departments,
divisions, branches, executives, departmental heads, shareholders, creditors, debtors, bankers,
financial institutions, Government departments and others concerned with the company converges in
his office. He gathers all the information, arranges it in a useful manner, furnishes it with explanations
etc. on the company’s long-term policies and short-term plans as formulated by the Board of directors
to the concerned persons. He collects, arranges and presents the desired/required information to the
Board on the progress in the implementation of the various decisions of the Board so that whenever
and wherever some corrective or preventive actions are to be taken, the same is to be taken in time by
the Board.

The Company Secretary is expected to be expert in all the aspects of corporate management viz.,
Company Law and Practice Income-tax Law and Practice, Excise, Sales tax, Import and Export and
Industrial Licensing Law and Practice, various types of insurance-covers, Patents, Trade Marks, Design
and Copyright Law and procedure, Industrial Law, Shops and Commercial Establishments Law and
Essential Commodities Act and the Orders issued there under, drafting of various corporate
documents, reports etc. and, accounts, audit, banking and finance.

The Board of Directors does the appointment of a Company Secretary and he functions at the pleasure
of the Board. He acts under the Board’s instructions but at the same time he is adviser to the Board in
all-corporate matters. Therefore, the relationship between the Board and the Company Secretary has
to be very cordial and there must be perfect understanding between the two, particularly with the
Chairman/Managing director, executive director and other Chief Executive Officers.

Usually the appointment of a Company Secretary is made by an appointment letter signed and issued
by the Chief Executive Officer, who may be the managing director, executive director, whole-time
director etc. under specific authority of the Board.

This letter is an offer by the company to the prospective Company Secretary and when he accepts the
same it become a binding contract between him and the company and their relationship is governed
by the terms and conditions thereof. “Company secretary”, according to Section 2(24) of the
Companies Act, 2013 means a company secretary as defined in clause (1) of sub-section (1) of section
2 of the Company Secretaries Act, 1980 who is appointed to perform the functions of company
secretary under this Act. The Government of India has formulated the Companies (Appointment and
Qualifications of Secretary) Rules, 1988.

8. 11

As per Section 205(1) of the Companies Act, 2013, the functions of the company secretary shall
include, –
a) To report to the Board about compliance with the provisions of this Act, the rules made there
under and other laws applicable to the company;
b) To ensure that the company complies with the applicable secretarial standards;
c) To discharge such other duties as may be prescribed.

Therefore, even if the letter of appointment of a Company Secretary or an agreement between the
company and the Company Secretary is silent on those statutory duties and functions, a Company
Secretary is bound by law to perform them strictly. Therefore, the letter of appointment or the
agreement need not detail all those duties. Usually it contains the fact of offer by the company, the date
on or before which he is required to join the service of the company, his salary and ‘perks’, his
answerability to the Board of Directors and/or other senior executives of the company, his
relationship with other departmental heads, his leave eligibility and other benefits, commitment on his
part not to divulge the secrets of the company, so on and so forth.

A SPECIMEN OF THE LETTER OF OFFER TO THE PROSPECTIVE COMPANY SECRETARY

Name and Address of the company
Ref. No. Date:____________
Mr………….………...
…………..…………..

Dear Sir,
I have been directed to advise you that the Board of Directors of the company have decided to appoint
you as Secretary of the company and the said assignment is hereby offered to you. You are requested
to join the service of the company on or before………….. and contact the undersigned so that you may
be introduced to the concerned persons before you start functioning.

1. You will be considered to have been appointed with effect from the day you actually join duty.

2. The company shall pay to you a monthly basic salary of Rs……. in the time scale of pay of
Rs……………………… with other allowances as are applicable to other employees of the company in
the same time scale of pay,

3. You will enjoy other benefits like the medical expenses reimbursement, leave travel allowance,
bonus etc. as may be permissible under the company’s service rules.

4. You shall be allowed casual leave/sick leave/festival holidays, weekly off days and earned leave as
per rules of the company.
5. You will be on probation for a period of six months and on your services during the said probation
period being found satisfactory the Board of Directors may consider you for confirmation in the
said post.

8. 12

6. During the period of your probation, the company without any notice may terminate your services
and you may also leave the service of the company at twenty-four hours’ notice. On confirmation,
however, the contract of’ employment may be terminated by either party by giving the other, thirty
days’ written notice or paying thirty days’ salary in lieu thereof.

7. The company may terminate your services even after confirmation without giving you any notice if
you are found by the Board of Directors of the company not performing your assigned duties and
your statutory duties properly and to the satisfaction of the Board.

8. As Company Secretary you shall be exclusively responsible:
a) For complying with all the provisions of the Companies Act and the various Rules framed there
under and other laws applicable to the company;
b) Maintaining all the statutory and non-statutory essential registers, books, files, records, papers
etc.;
c) Preparing and filing with the Registrar of Companies and other concerned authorities the
required reports, returns, documents, papers etc. complete in all respects and within the
prescribed periods of time; and
d) For carrying out the instructions, directions and advice of the Board of Directors of the company
given to you from time to time.
e) Ensuring the adherences of applicable secretarial standards.

9. You shall devote your whole time and attention to the work of the company during your tenure as
Company Secretary and shall work with due diligence and using your abilities to your best. You
shall obey the orders of the Board of Directors of the company. You shall do your best to promote
the interest of the company and shall faithfully serve the company.

10. You shall not disclose to any unauthorized person during your employment as Secretary of the
company an information obtained by you in relation to the business and corporate policies of the
company with special reference to the company’s policy regarding the issue of rights shares, bonus
shares, time and quantum of payment and/or declaration and payment of dividends from time to
time.

Please convey your acceptance of the offer and the terms and conditions attached thereto by signing
the carbon copy of this letter and returning the same to the company within a period of seven days
from the receipt hereof.

Thanking you.
Yours truly
For __________ Ltd.
(…………..…………..)
Managing Director

I accept the above offer of the post of Company Secretary with all the terms and conditions attached
thereto and shall join on…………..

8. 13

(…………..…………..)
Company Secretary
COMPROMISE, ARRANGEMENTS AND SETTLEMENTS

During its lifetime a company may find it necessary to reorganize itself. Such a re-organization may be
for many reasons. When a company is financially weak, it wishes to reach a compromise with its
members and/or creditors. It may wish to take over the business of another running but endangered
company. It may wish to restructure its share capital.

Sections 230 to 237 of the Companies Act, 2013 provide various methods of company reorganization
or reconstruction. The various terms used for reorganization are arrangement, reconstruction,
amalgamation, merger, take-over, etc. They are distinct terms but they have many common features
and to a great extent they overlap. The expression “arrangement” is of wider import and includes
reconstruction and amalgamation.

“Arrangement” has been defined in explanation to section 230(1) of Companies Act, 2013 as including
a reorganization of share capital of the company by the consolidation of shares of different classes, or
by the division of shares into shares of different classes, or by both these methods.

“Arrangement” has a wider interpretation and includes reconstructions and amalgamations.

“Reconstruction” has not been defined in the Act. A reconstruction normally entails the transfer of an
undertaking to another company, consisting substantially of the same shareholders with a view to its
being continued by the transferee company, and usually resorted to for achieving one or more of the
following objects:
v For the purpose of raising fresh capital by issuing partly paid shares in the new company in
exchange for fully shares in the old company, and calling up the balance on new shares as and
when required;
v For extending the company’s objects;
v For reorganizing or rearranging the capital structure and the rights of members as between
themselves; and
v For effecting a compromise with creditors, or the allotment to them of shares or debentures in
settlement of their claims.

A reconstruction may, however take place, without the promotion and incorporation of new company,
by compromise with members involving alterations of various rights between each class, usually also
involving the writing down of the amount of share capital (as in a reduction of capital, which is a
special form of reconstruction) and by a compromise with creditors (including debenture holders).

Amalgamation usually covers a situation where two or more companies join forces either under the
name of one of them or in a new company formed for the purpose. This is a blending of two or more
existing undertakings into one, the shareholders of each company becoming substantially the
shareholders in the company, which is to carry on the blended undertakings.

8. 14

Amalgamation will usually require the consent of the directors of both the companies and may also be
described as “Merger”. On the other hand, the word “take-over” is usually used to describe the
acquisition by one company of sufficient number of shares in another company so as to give the
purchaser company control over that company.

Amalgamations and take-overs are resorted to for any one or more of the following purposes:
v For saving overheads and working expenses and for improving efficiency in the management,
production and marketing by reason of unified control;
v For reduction or elimination of competition, and sometimes for securing the advantages of
vertical combination by an amalgamation of companies to secure a linking of different stages or
processes of production back to raw materials and forward to the finished product; and
v For obtaining greater facilities possessed by one large company, as compared with a number of
smaller companies, for raising additional capital, for buying raw materials, etc. and for securing
better credit facilities on the most favourable terms, and, what is, of increasing importance now a
days, for carrying out research work on a large and coordinated scale and basis.

The memorandum of association of almost every company permits it to amalgamate with another
company. In case there is no such provision, it will be necessary to alter the memorandum before any
scheme of amalgamation is drawn up.

“ARRANGEMENT”

As per the provisions of company law, when a compromise or arrangement (the word compromise
implies the existence of some dispute, but the word arrangement is of wider application) is proposed
between a company and
v Its creditors or any class of them; or
v Its members or any class of them,
Then the court may, on the application of the company, or any creditor or member, or, if the company
is being wound up, the liquidator, order a meeting to be called of the creditors or class of creditors, or
of the members or class, of members, as the case may be.

The compromise or scheme of arrangement will then be binding upon:
v All the creditors or class of creditors;
v The members or class of members;
v The company; and
v In the case of a company being wound up, upon the liquidator and contributories.

PROVIDED THAT:
v It is approved by a majority in number representing three-fourths in value of the creditors or
class of creditors, or members or class of members as the case may be, present and voting in
person or by proxy; and
v It is sanctioned by the court

PROCEDURE
REGULATORY FRAMEWORK OF MERGER AND AMALGAMATION
8. 15

• Companies Act 2013: - Chapter XV Comprising Sec 230 to 237 is a complete code itself.
• Companies (Compromise, Arrangement and Amalgamation) Rules, 2016
• National Company Law Tribunal Rules, 2016
Power to compromise or make arrangements with creditors and members [Sec

230]
(1) Where a compromise or arrangement is proposed –

• between a co. and its creditors or any class of them; or
• between a co. and its members or any class of them
The NCLT may on application in of
s Company
s Creditor/member
s Liquidator (in case of winding up)(appointed under Co. Act or IBC)
Order a meeting to be called, held and conducted in such manner as the NCLT directs
Note: -
1. Application to be filed in NCLT 1 along with
2. A notice of admission in Form No. NCLT-2
3. An affidavit in Form No. NCLT-6
4. A copy of scheme
5. Disclosure related to basis on which eachclass of members or creditors has been identified
for the purposes of approval of the scheme.
6. Fee as prescribed in the Schedule of Fees in Rules.
If applicant is more than one company, they may file Joint application.
If applicant is not company a copy of the notice of admission and of the affidavit shall be
served on the company, or, where the company is being wound up, on its liquidator, not less
than 14 days before the date fixed for the hearing of the notice of admission.
(2) Disclosure to be made along with application in Affidavit.

a. all material facts relating to the company, such as the latest financial position of the company,
the latest auditor‘s report on the accounts of the company and the pendency of any investigation
or proceedings against the company;
b. Reduction of share capital if any, included in the compromise or arrangement (C&A);
c. Any scheme of corporate debt restructuring (CDR) consented to by at least 75% of the secured
creditors in value, including—
i. A Creditor‘s Responsibility Statement (CRS) in the Form CAA 1;
ii. Safeguardsfor the protection of other secured and unsecured creditors;
iii. Report by the auditor that the fund requirements of the company after the CDR as approved
shall conform to the liquidity test based upon the estimates provided to them by the BOD;
iv. If company proposes to adopt the CDR guidelines specified by the RBI, a statement to that
effect; and
v. A valuation report in respect of the shares and the property and all assets, tangible and
intangible, movable and immovable, of the company by a registered valuer.
Note: Here CDR means a scheme that restructures or varies the debt obligationsof a company
towards its creditors.
8. 16

Directions at hearing of the application

Rule 5 of Co. (CAA) Rules 2016
Upon hearing the application u/s 230, the NCLT shall, unless it thinks fit for any reason to dismiss
the application, give such directions as it may thinknecessary in respect of the following matters:-
a) Determining the class or classes of creditors or of members whose meeting or meetings have to
be held for considering the proposed compromise or arrangement; or dispensing with the
meeting or meetings for any class or classes of creditors in terms Sec 230(9);
b) Fixing the time and place of the meeting or meetings;
c) Appointing a Chairperson and scrutinizer for the meeting or meetings to be held, as the case
may be and fixing the terms of his appointment including remuneration;
d) Fixing the quorum and the procedure to be followed at the meeting or meetings, including
voting in person or by proxy or by postal ballot or by voting through electronic means;
e) Determining the values of the creditors or the members, or the creditors or members of any
class, as the case may be, whose meetings have to be held;
f) Notice to be given of the meeting or meetings and the advertisement of such notice;
g) Notice to be given to sectorial regulators or authorities as required u/s 230(5);
h) The time within which the chairperson of the meeting is required to report the result of the
meeting to the NCLT; and
i) Such other matters as the NCLT may deem necessary.
(3) A notice of meeting shall be sent in Form No. CAA.2 by the chairman of meeting or other
authorised person to
i. all the creditors or class of creditors and
ii. to all the members or class of members and
iii. the debenture-holders of the company,
Individually at the registered addressby registered post or speed post or by courier or by emailor
by hand delivery or any other modeat least 1 monthbefore the date fixed for the meeting,
accompanied by –
i. a statement disclosing the details of the compromise or arrangement,
ii. a copy of the valuation report, if any, and
iii. explaining their effect on creditors, KMP, promoters and non-promoter members, and the
debenture-holders and
iv. the effect of the compromise or arrangement on any material interests of the directors of the
company or the debenture trustees, and
v. such other matters as may be prescribed:
Deemed service of Notice: àat the expiration of 48 hours after the letter containing the same is
posted
Note:- Such notice and other documents shall also be placed on the website of the company, if any,
and in case of a listed company, these documents shall be sent to SEBI and SE where the securities
are listed, for placing on their website and shall also be published in newspapers in prescribed
manner:
Advertisement of the notice of the meeting
8. 17

Rule 7 of Co. (CAA) Rules 2016
The notice of the meeting shall be advertised in Form No. CAA.2 in at least 1 English newspaper
and in at least 1 vernacular newspaperhaving wide circulation in the State in which the registered
office of the company is situated, or such newspapers as NCLT directs and shall also be placed, not
less than 30 days before the date of meeting, on thewebsite of the company (if any) and in case of
listed companies also on the website of the SEBI and the RSE where the securities of the company
are listed:
Provided that where separate meetings of classes of creditors or members are to be held, a joint
advertisementfor such meetings may be given.
Provided further that where the notice is issued by way of advertisement, it shall indicate the time
within which copies of the C&A can be obtained by concerned persons free of charge from the R.O.
of company.
(4) Notice shall provide that Voting can be done in the meeting either by themselves or through
proxies or by postal ballot within 1 month from the date of receipt of such notice:
Provided that any objection can be raised only by persons holding not less than 10% of the
shareholding or having outstanding debt amounting to not less than 5% of the total outstanding debt
as per the latest audited financial statement.
(5) Notice in form NO. CAA.3along with all the documents shall also be sent to
i. the CG,
ii. the IT authorities,
iii. the RBI,
iv. the SEBI,
v. the ROC,
vi. the respective SE,
vii. the Official Liquidator,
viii. the CCI, if necessary, and
ix. such other sectoral regulators or authorities
By registered post or by speed post or by courier or by hand delivery at the office of theauthority.
Which are likely to be affected by the C&A and shall require that representations, if any, to be made
by them shall be made within a period of 30 days from the date of receipt of such notice, failing
which, it shall be presumed that they have no representations to make on the proposals.
Rule 6(3):àThe notice of the meeting shall be accompanied by a copy of the scheme and a
statement disclosing the following details if not already included in the said scheme:-
(i) Details of the order of the NCLT directing the calling, convening and conducting of the
meeting:-
(a) Date of the Order;
(b) Date, time and venue of the meeting.
(ii) Details of the company including:
(a) CIN or GLN of the company;
(b) PAN;
(c) Name of the company;
(d) DOI;
8. 18

(e) Type of the company (whether public or private or OPC);
(f) Registered office address and e-mail address;
(g) Summary of main object as per the MOA; and main business;
(h) Details of change of name, R.O. and objects of the company during the last 5 years;
(i) Name of the DSE, if applicable;
(j) Details of the capital structure of the company including authorised, issued, subscribed and paid
up sharecapital; and
(k) Names of the promoters and directors along with their addresses.
(iii) If the scheme relates to more than 1 company, the fact and details of anyrelationship subsisting
between such companies who are parties to such scheme,including holding, subsidiary or of
associate companies;
(iv) the date of the BM at which the scheme was approved by the BOD including the name ofthe
directors who voted in favour of the resolution, who voted against the resolution and who did not
vote or participateon such resolution;
(v) Explanatory statement disclosing details of the scheme including:-
a. Parties involved;
b. In case of M&A, appointed date, effective date, share exchange ratio (if applicable) and
other considerations, if any;
c. Summary of valuation report (if applicable) including basis of valuation and fairness opinion
of the registered valuer, if any, and the declaration that the valuation report is available for
inspection at the registered office of the company;
d. Details of capital or debt restructuring, if any;
e. Rationale for the compromise or arrangement;
f. Benefits of the compromise or arrangement as perceived by the Board of directors to the
company, members, creditors and others (as applicable);
g. Amount due to unsecured creditors.
(vi) Disclosure about the effect of the compromise or arrangement on:
a. KMP;
b. directors;
c. promoters;
d. non-promoter members;
e. depositors;
f. creditors;
g. debenture holders;
h. deposit trustee and debenture trustee;
i. employees of the company:
(Vii) Disclosure about effect of compromise or arrangement on material interests of directors, KMP
and debenture trustee.
Note:àThe valuation report shall be made by a registered valuer or by an independent
merchant banker registered with SEBI an independent CA in practice having a
minimumexperience of 10 years.
(viii) Investigation or proceedings, if any, pending against the company under the Act.
(ix) Details of the availability of the following documents for obtaining extract from or for making
or obtainingcopies of or for inspection by the members and creditors, namely:
a. Latest audited financial statements of the company including CFS;
b. Copy of the order of NCLT;
c. Copy of scheme;
d. Contracts or agreements material to scheme;
8. 19

e. the certificate issued by Auditor of Co. to the effect that the accounting treatment, if any,
proposed in the scheme is in conformity with the prescribed AS under Section 133 of the
Companies Act, 2013; and
f. Such other information or documents as the BOD believes necessary and relevant for making
decision for or against the scheme;
(x) Details of approvals, sanctions or NOC, if any, from regulatory or any other authoritiesrequired,
received or pending for the proposed scheme.
(xi) A statement to the effect that the persons to whom the notice is sent may vote in the meeting
either in person or byproxies, or where applicable, by E voting.
Voting (Rule 9)
The person who receives the notice may within one month from the date of receipt of the notice
vote in themeeting either in person or through proxy or through postal ballot or through electronic
means to the adoption of thescheme of compromise and arrangement.
Note:
Shareholding à The shareholding of the members of the class who are entitled to vote on the
proposal
Outstanding debtà All debt owed by the company to the respective class of creditors thatremains
outstanding as per the latest audited accounts, or if such accounts is more than 6 months old, as
perprovisional financial statement not preceding the date of application by more than 6 months.
Rule 10 Regarding Proxies

(1) Voting by proxy shall be permitted if a proxy in the prescribed form duly signed by the person
entitled to attend and vote at the meeting is filed with the company at its RO not later than 48 hours
before the meeting.
(2) Where a body corporate which is a member or creditor of a company authorises a proxy, a copy
of the resolution of the BOD authorising such person to act as its representative at the meeting, and
certified to be a true copy by a director, the manager, the secretary, or other authorised officer of
such body corporate shall be lodged with the company at its R.O. not later than 48 hours before
the meeting.
(3) No person shall be appointed as a proxy who is a minor.
(4) The proxy of a member or creditor blind or incapable of writing may be accepted if such
member or creditor has attached his signature or mark thereto in the presence of a witness who shall
add to his signature his description and address which are in the handwriting of the witness and
such witness shall have certified at the foot of the proxy that all such insertions have been made by
him at the request and in the presence of the member or creditor before he attached his signature or
mark.
(5) The proxy of a member or creditor who does not know English may be accepted if it is executed
in the manner prescribed in the preceding sub-rule and the witness certifies that it was explained to
the member or creditor in the language known to him, and gives the member’s or creditor's name in
English below the signature.
(6) If, at meeting, majority of persons representing 3/4th in value of the creditors, or members,
agree to any C & A and if such compromise or arrangement is sanctioned by NCLT by an order, the
same shall be binding on the company, all the creditors or members or, in case of a company being
wound up, on the liquidator and the contributories of the company.
(7) An order made by NCLT shall provide for all or any of the following matters —
8. 20

a. If C&A provides for conversion of pref. shares into Eq. shares, such shareholders shall
have an option to either obtain arrears of dividend in cash or accept equity shares equal to
the value of the dividend payable;
b. Protection of any class of creditors;
c. if the C&A results in the variation of the shareholders‘ rights, it shall be given effect to
under the provisions of section 48;
d. if the C&A is agreed to by the creditors, any proceedings pending before the BIFR shall
abate;
e. such other matters including exit offer to dissenting shareholders,
Provided that no C&A shall be sanctioned by the NCLT unless a certificate by the company's
auditor has been filed with the NCLT to the effect that the accounting treatment, if any,
proposed in the scheme of C&A is in conformity with the prescribed AS.
(8) The order of the NCLT shall be filed with the ROC by the company within a period of 30 days
of the receipt of the order.
(9) The NCLT may dispense with calling of a meeting of creditor or class of creditors where such
creditors or class of creditors, having at least 90% value, agree and confirm, by way of affidavit, to
the scheme of C&A.
(10) C&A related to any buy-back of securities shall be sanctioned by the NCLT only if such buy-
back is as per provisions of section 68.
(11) Any C&A may include takeover offer made in prescribed manner as may be:
Provided that for listed companies, takeover offer shall be as per the SEBI regulations.
(12) Aggrieved party may apply to NCLT for grievances related to takeover offer of companies
other than listed companies in prescribed manner and the NCLT may, on application, pass such
order as it may deem fit.
Note: Sec 66 shall not apply to the reduction of share capital effected in pursuance of the order of
the NCLT under this section.

PAST EXAM QUESTIONS
Q1 State in brief the law regarding promoters' contract. Draft a specimen promoters' contract for the
purchase of an industrial plot for setting-up an industrial unit of the proposed company PMQ Ltd.

Q2 Rise Ltd. wants to engage Kapil as its managing director. The Chairman of the company wants you
to prepare and submit to him a draft specimen agreement of service with Kapil as a managing
director of the company. Draft the same and also mention the precautions you will take while
drafting the above agreement. (June’15)

Q3 A civil suit for removal of directors for malfeasance is maintainable if the articles of association
provide for civil suit instead of the companies act 2013 provisions. (Dec’11)

Q4 Short notes on:
a) Replication (dec’10)
8. 21

b) Pre-incorporation contract (June’13)
Q5 Examine the following: (June’14)
Q6 Slump sale agreement as defined under IT Act 1961
Q7 Significance of MOA as the foundation of the corporate structure
Q8 In the light of judicial pronouncement, discuss the following: (Dec’13)
Q9 In view of limited precedential value of many high court’s decisions, it is difficult to come to clear &
crisp answers as to the enforceability of shareholder’s agreement.
8. 22

Pleadings
PLEADINGS

INTRODUCTION
In the today’s scenario pleading system in our country is based on the provisions of the civil procedure
code, 1908 supplemented from time to time by rules in that behalf by high court of states. There are
rules of the Supreme Court and rules by special enactments as well.
Pleadings generally mean either a plaint or a written statement. The main objective behind

formulating the rules of pleadings is to find out and narrow down the controversy between the
parties.

Plaints and complaints are nearly synonyms. In both, the expression of
grievances is predominant. However, traditionally, the word ‘plaint’ is
used for Civil Court and the word ‘complaint’ is used for criminal court.

Provisions relating to pleadings in civil cases are meant to give each
side intimation of the case of the other so that it may be met to enable
courts to determine what is really at issue between parties, and to
prevent deviations from the course which litigation on particular
cause of action must take (Ganesh Trading v. Mojiram).

The whole object of pleading is that each side may be fully alive to the questions that are about to be
argued in order that they may have an opportunity of brining forward such evidence as may be
appropriate (Lakshmi Narayan v. State of Bihar).
The fundamental rule of pleadings is contained in provisions of Order 6 Rule 2 of the Civil
Procedure Code, which enjoins:
1. "Every pleading shall contain only a statement in a concise form of the material facts on which the
party pleading relies for his claim or defence as the case may be, but not the evidence by which
they are to be proved.
2. Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively each
allegation being, so far as is convenient, contained in a separate paragraph.
3. 3. Dates, sums and numbers shall be expressed in a pleading in figures as well as in words.

Deficiency in pleading: if parties are related to each other and know everything. Parties understood
the case and led the evidence accordingly. Deficiency in pleading would not affect case of the plaintiff.
(kailash Chandra v. Vinod)
PLAINT STRUCTURE

A suit is instituted by filing a plaint, which is the first pleading in a civil suit. It is a
statement of the plaintiff’s claim and its object is simply to state the grounds upon, and the
relief in respect of which he seeks the assistance of the court.
8. 1

Pleadings

Order VII of the Civil Procedure Code, 1908 deals with plaint. As per Order VII, R.1 CPC, every plaint
must contain the following things:

a) the name of the Court in which the suit is brought;
b) the name, description and place of residence of the plaintiff;
c) the name, description and place of residence of the defendant, so far as they can be ascertained;
d) where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that
effect;
e) the facts constituting the cause of action and when it arose;
f) the facts showing that the Court has jurisdiction;
g) the relief which the plaintiff claims;
h) where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so
allowed or relinquished; and

WRITTEN STATEMENT
It is incumbent on the defendant to file his defense in
writing. If the defendant fails to file written statement,
the court may pronounce judgment against him or may
under Order 8, Rule 10, make such order in relation to
the suit as it deems fit.

When the defendant appears and files a written pleading by way of defense, his pleading should
conform to all the general rules of pleading as are applicable to application or petition.

A subsequent pleading filed by the plaintiff, either in reply to a defendant's claim of set off, or with
leave of the court, in answer to defendant's pleas in defense, is also called a "written statement" (also
called Replication or Rejoinder). All the rules relating to defendant's written statement apply, mutatis
mutandis to such written statement of the plaintiff also.
Considerations before Drafting a Written Statement

Before proceeding to draft a written statement, it is always necessary for a pleader to examine the
plaint very carefully and to see:
Ø Whether all the particulars are given in it and whether the whole information that he requires
for fully understanding the claim and drawing up the defense is available.
Ø If any particulars are wanting, he should apply that the plaintiff be required to furnish them
before the defendant files his written statement.
Ø For instance, if two defendants, executants of a bond, are sued on the bond, and their plea is one
of satisfaction, they can file a joint written statement.

(1) Formal Portion of Written Statement:

(2) Body of the Written Statement: The rest of the written statement should be confined to the
defense.
Forms of Defence: A defense may take the form of defense:
v A "traverse or denials", one has to deny the averment of plaint/petition, which are incorrect,
8. 2

Pleadings
perverse or false. If any averment are not denied specifically it is assumed to have been
admitted by other party.

v A “confession and avoidance" or "special defense", where he admits the allegations but seeks
to destroy their effect by alleging affirmatively certain facts of his own, as where he admits the
bond in suit but pleads that it has been paid up, or that the claim is barred by limitation, or that
of

v "An objection in point of law" (which was formerly called in England "a demurrer"), e.g., that
the plaint allegations do not disclose a cause of action, or that the special damages claimed are
too remote.

v Another plea may sometimes be taken which merely delays the trial of a suit on merits. Eg: a
plea that the hearing should be stayed or that the suit is not properly framed or that there is
some defect in the cause of action and the case cannot be decided unless the defects are
removed.

v The plea which go to the root of the cause are known as pre –emptory pleas or pleas in bar,
whereas the pleas that do not talk about the root of the cause but are intended to delay the
proceedings are known as dilatory pleas.

v Set-off: it has the effect of extinguishment the plaintiff’s claims to the extent of the amount
claimed by the defendants.

When it is intended to take several defenses in the same written statement, it is convenient to adopt
the following order for the several pleas:
v Denials
v Dilatory Pleas
v Objections in point of law
v Special Defense
v Set off

REPLY
This nomenclature is used for pleadings filed by a party (plaintiff/petitioner as well as
defendant/respondent) in answer to the claims raised by a party and generally confined to
miscellaneous or interim applications. However, certain Tribunals/ Commissions/Forums use such
nomenclature to devote pleadings filed by a party in answer to the claims set out in the main petitions
as well, for ego in the case of proceedings before consumer forums. Pleadings filed by a respondent in
answer to the claims set out in the complaint, are generally referred to as reply. Again, the rules of
pleadings as apply to a written statement should be kept in mind while drafting reply in opposition to
the claims set out in the petition.

REJOINDER

A written
statement/reply of the plaintiff/petitioner by way of defense to pleas' raised in
the counter affidavit/written statement from the defendant/respondent, is termed as a
rejoinder or replication.

8. 3

Pleadings
Such statements are subsequent pleadings as contemplated in Order of Rule 9 of the Civil Procedure
Code. Under Rule 9, leave of the court is essential before any party can present a further pleading after
the written statement has been filed. The only subsequent pleading that may be filed without the leave
of the court is the written statement filed by way of defense to a set-off or a counter-claim.

It should be borne in mind that while filing a rejoinder/replication, a party couldn’t be allowed to fill
up gaps or lacuna in his pleadings. Nor again can a party introduce new material facts or different
cause of action except in a case where subsequent to filing of the petition/suit, the petitioner/plaintiff
discovers new matters and accordingly seeks leave of the Court to submit such further particulars in
his pleadings

Drafting of Reply/Written Statement - Important Considerations

At the time of drafting the reply or written statement, one has to keep the following points in
mind: -
v It must be noted that denial has to be specific and not evasive. However, general allegation in the
plaint cannot be said to be admitted because of general denial in written statement.
(Union V. A. Pandurang)
v If the plaint has raised a point/issue which is otherwise not admitted by the opposite party in the
correspondence exchanged, it is generally advisable to deny such point/issue and let the onus to
prove that point be upon the complainant. In reply, one has to submit the facts, which are in the
nature of defense, and to be presented in a concise manner.
(Syed Dastagir V. T.R. Gopalkrishnan Setty)
v Attach relevant correspondence, invoice, challan, documents, and extracts of books of accounts or
relevant papers as annexures while reply is drafted to a particular Para of the plaint.
v The reply to each of the Para of the plaint be drafted and given in such a manner that no Para of
the plaint is left unattended. The pleadings are foundations of a case.
v After reply, the same is to be signed by the constituted attorney of the opposite party.
v Please note that if a duly authorized person does not file the plaint or reply, the petition would be
liable to be dismissed (Nibro Limited V. National Insurance Company Limited.)
v The reply/written statement is to be supported by an Affidavit of the opposite party.
v The reply along with all annexures should be duly paged numbered and be filed along with
authority letter if not previously filed.
v It may be noted that if any of the important points is omitted from being given in the reply, it
would be suicidal as there is a limited provision for amendment of pleadings and also the same
cannot be raised in the Affidavit-in-Evidence at the time of leading of evidence. General rule is that
no pleadings, no evidence.
v In every pleading, one must state specifically the relief, which the party is claiming from the court
or tribunal or forum. While framing the prayer clause, one should claim all possible relief as
would be permissible under the pleadings and the law.

AFFIDAVIT (ORDER 19, CPC 1908)
An affidavit being a statement or declaration on oath by the deponent is an
important document and the consequences of a false affidavit are serious. Thus,
it must contain correct and accurate particulars. The person executing is called
deponent.
Every affidavit must clearly and separately indicate the statements

8. 4

Pleadings
which are true to the:
v Knowledge of the deponent;
v Information received by the deponent;
v Belief of the deponent; and
v Information based on legal advice.

Affidavit must be specified and verified, the contents true on the basis of personal knowledge &
believed to be true on the basis of information received by any deponent.

The following rules should be remembered when drawing up an affidavit:

Ø The person making the affidavit should be fully described in the affidavit;
Ø An affidavit should be drawn up in the first person;
Ø An affidavit should be divided into paragraphs, numbered consecutively, and as far as possible,
each paragraph should be confined to a distinct portion of the subject;
Ø Every person or place referred to in the affidavit should be correctly and fully described, so that
he or it can be easily identified;
Ø When the declarant speaks of any fact within his knowledge he must do so directly and
positively using the words "I affirm" or "I make oath and say";
Ø Affidavit should generally be confined to matters within the personal knowledge of the
declarant, and if any fact is within the personal knowledge any other person and the petitioner
can secure his affidavit about it, he should have it filed. But in interlocutory proceedings, he is
also permitted to verify facts on information received, using the words "I am informed by so
and so" before every allegation, which is so verified. If the declarant believes the information to
be true, he must add "and I believe it to be true".
Ø When the application or opposition thereto rests on facts disclosed in documents or copies, the
declarant should state what is the source from which they were produced, and his information
and belief as to the truth of facts disclosed in such documents;
Ø The affidavit should have the following oath or affirmation written out at the end:
"I swear that this declaration is true, that it conceals nothing, and that no' part of it is false".
Ø The officer before whom it is sworn must authenticate any alterations in the affidavit.
Ø An affidavit has to be drawn on a non-judicial Stamp Paper as applicable in the State where it
is drawn and sworn.
Ø The deponent in the presence of an Oath Commissioner, Notary Public, Magistrate or any other
authority appointed by the Government for the purpose, shall authenticate an affidavit.

Stamp duty
Affidavits are chargeable with stamp duty under Article 4, Schedule I, Stamp Act, 1899. But no
stamp duty is charged on affidavits filed or used in Courts. Such affidavits are liable to
payment of Court fee prescribed for the various Courts.

COUNTER AFFIDAVIT
8. 5

Pleadings

Pleadings filed by a defendant/respondent in answer to the claims set out by the plaintiff/petitioner,

in the form of an affidavit and/or supported by an affidavit are referred to as a counter affidavit.

This nomenclature is generally used while filing pleadings on behalf of a defendant/respondent before
the High Court / certain other Tribunals and Commissions etc. The rules of pleadings as are applicable
to a written statement, apply to a counter affidavit as well. Filing of a counter affidavit is obligatory
when the defendant/respondent is so required by the Court. Failure of the defendant/respondent to
file a counter affidavit on the day fixed by the Court, will not entitle him, as of right, thereafter to file it.
It does not mean that the defendant/ respondent will be shut out once for all. He may be permitted by
the Court to file it on a later date on sufficient grounds shown for not filing the same in time.
v The fundamental rule applicable would be same as written statement.
v Filling counter affidavit is obligatory if so required by the court.
v However, it may be permitted by the court to file it later on sufficient ground shown.

AFFIDAVIT IN EVIDENCE
Indian evidence act, 1872 contains the general rules of
evidence, which are applicable both in civil as well as in
criminal matters.
Section 3 of Indian stamp act recognizes the two categories of
evidence i.e. oral evidence or documentary evidence.

Oral evidence Oral evidence means and includes all statements which the court permits or
requires to be made before it by witnesses, in relation to matters of fact under
enquiry.
Documentary Documentary evidence means and includes all documents produced for the
evidence: inspection of the court.

For the purpose of evidence, facts are divided into the following two categories:

Facts in issue The facts which are constituent of a litigated right, liability or disability are
called facts in issue.
Relevant In order to prove the existence or non-existence of facts in issue, certain other
facts inter-connected facts may be given in existence. They are called relevant facts.

DRAFTING OF AFFIDAVIT IN EVIDENCE
IMPORTANT CONSIDERATIONS
The following must be kept in mind while preparing the affidavit-in-evidence by the parties -
v The best evidence is that of a person who was personally involved in the whole transaction. In
case, that person is not available for any reason, then any other person who has joined in his place
to make deposition by way of his affidavit.
v In case, the petitioner himself was involved in the execution of a contract, he should file affidavit-
in-evidence.
v The allegations or charges or grounds relating to facts should be re-produced duly supported by
8. 6

Pleadings
documentary evidence.
v In case, the point or issue pertains to engineering, medical, technology, science or other complex
or difficult issues, then the evidence of expert is to be filed in the form of his Affidavit. If necessary,
the said witness has to appear before the Forum for the purpose of cross-examination by the
counsel for the other party. For example, handwriting or finger print experts etc.
v Besides the leading evidence on the points raised by the petitioner or by the opposite party in his
written statement/reply, if possible, the party who is filing the affidavit-in-evidence should also
file documents, papers or books or registers to demolish the defence or case set up by the opposite
party.
v It is also permissible for any party to bring any outside witness (other than the expert witness) in
support of his case if the facts and circumstances of the case so warrant and permitted by the
Court/Tribunal.
v At the time of tendering affidavit-in-evidence, the party must bring along with it either the original
of papers, documents, books, registers relied upon by it or bring with it the carbon copy of the
same.

It may be noted that only photocopy of any paper or document cannot be relied upon and tendered
as an evidence. Evidence, as defined in Section 3 of the Evidence Act, 1872 means and includes-
ü All statements which the Court permits or requires to be made before it by witnesses in
relation to matters of fact under inquiry; such statements are called oral evidence;
ü All documents including electronic records produced for the inspection of the Court; such
documents are called documentary evidence.

No evidence is required of matters which are, either formally admitted for the purposes of the trial,
in civil cases, by the pleadings, by answer to interrogatories, by agreement or otherwise and in
criminal cases, as regards proof of those documents admitted under Section 294, Code of Criminal
Procedure, 1972.

RULE OF ADVERSE INFERENCE
It is incumbent upon a party in possession of best evidence on the issue involved, to produce such
evidence and if such party fails to produce the same, an adverse inference is liable to be drawn against
such party. The Court will be justified in drawing an adverse inference against that party.
[Ms. Shefali Bhargava v. Indraprastha Appollo Hospital]

Additional points:
v Deponent must be described in all particulars.
v Affidavit must contain oath or affirmation (I hereby solemnly affirm and declare as under)
v It should always be drawn in first person.
v Allegation should not be vague. Must be clear and specific.
v Execution must be on non-judicial paper.
v Stamp duty will be charged. Except to be filed in the courts, as they are liable to prescribed court
fees.
8. 7

Pleadings
v It must be sworn before oath commissioner or notary public or magistrate or such other authority
appointed by government.

ARGUMENTS ON PRELIMINARY SUBMISSIONS
The following points may be noted in this regard:
Preliminary submission should primarily confine to the true and correct facts regarding the issue
involved and which have been suppressed or not disclosed by the other side in the pleadings.
Additionally, the provisions of law or legal objections relevant and applicable to the issues involved in
the matter should be mentioned.
Before incorporating any facts or provisions of law in the write up, a lawyer/authorized
representative should be thorough with the provisions of law and interpretation based on the relevant
judgments so as to strengthen his case.
Arguments on merits
Arguments relating to facts pleaded by the parties are termed as arguments on merits.
The following important points are mentioned in these regards:
The lawyer should carefully point out the pleading of the parties and the relevant evidence in support
thereof, both oral as well as documentary.
While arguing on merits, the lawyer should ensure that all the contradictions in the pleadings of the
opponent are duly pointed out.
In case if the notice is alleged to have been served but there is no documentary evidence placed on
record by the opponent, then in such a case, it should be pointed out that the opponent has failed to
established that the notice has been served.

Relevant facts extraction from opponent or their witnesses during the course of cross examination and
relating to the factual issue involved in the matter should also be highlighted.
Legal pleadings/ submissions: the following points are important in connection the legal pleadings/
submissions:

While making legal pleadings/ submissions, it should be ensured that the legal provisions/
interpretations are very clear and directly applicable to the issues involved in the matter.
All the legal submission which go to the root of the controversy and which are sufficient as well as
material for adjudication of the issue involved should be taken in opposition to the claims of the
opponents.

Some of the reasons, which are generally used in legal pleadings/ submissions, are as follows:
v Suit is not maintainable for want of statutory notice etc.
v Plaint does not disclose cause of action
v Plaintiff has no right to sue
v Suit is barred by principles of Res – judicata
v Suit is barred by principles of estoppels
v Suit is barred by special enactment
v Court has no jurisdiction
v Suit is barred by limitation
8. 8

Pleadings
v Suit is premature and so on.

Out of above some are technically known as ‘special defense’. In a suit based on contract, the defendant
may admit that he made the contract, but may avoid the effect of admission by pleading performance,
fraud, release, limitation etc.

Interlocutory application: ‘interlocutory’ means not that decides the cause but which only settle
some intervening matter relating to the cause. After the plaintiff institutes the suit and before it is
finally disposed off, the court may make interlocutory orders as may appear to the court to be just and
convenient.

Interlocutory orders may take various shapes depending on the requirement of the respective parties
during the pendency of the suit. For Eg., Application for appointment of receivers, temporary
injunctions etc.

Execution Petition: Also known as Execution of Decree. A holder of a decree shall make application
for execution of a decree who desires to execute it to appropriate court, which passed it, or to the
officer appointed in this behalf. Application for execution of a decree may be either oral or written.

The court to which an application is made may require the application to produce a certified copy of
the decree. Some high court in different states has framed additional rules in this regard.
REPRESENTATIVE SUIT
Representative suit are in exception to the general principle
that all persons interested in a suit shall be parties thereto.
Representative suit are the suits in which parties represent –
a) Others; or
b) Themselves and also other suits by executors, trustees
etc.

The following essential conditions must be fulfilled in a
Representative suit:
v The parties must be numerous.
v The parties mostly have same interest in the suit.
v The suit must be brought or prosecuted with the permission or under the director of the court.
v Notice must be given to the parties to be represented in the suit.

8. 9

Pleadings
SPECIMEN AFFIDAVIT OF CREDITOR IN PROOF OF HIS DEBT IN PROCEEDING FOR THE
LIQUIDATION OF A COMPANY

IN THE (HIGH) COURT OF…………………………………………
The matter of the Indian Companies Act, 2013.
And
The matter of the liquidation of…………………… Company Limited.

I, A.B., aged………… years, son of Shri…………… resident of……………………, do hereby on oath (or on
solemn affirmation) state as follows:
1. That the above named company was on the…………… day of………………, 2018, the date of the order
for winding up the same, and still is justly and truly indebted to me in the sum of Rupees…………
(Rs………) only in account of (describe briefly the nature of the debt).

2. That in proof of the aforesaid debt I attach hereto the documents marked A, B and C.

3. That I have not, nor have any person or persons by my order or to my knowledge or belief for my
use, received the aforesaid sum of Rupees……………… or any part thereof, or any security or
satisfaction for the same or any part thereof except the sum or security (state the exact amount of
security).

4. That this my affidavit is true, that it conceals nothing and no part of it is false.

Sd/-
A.B.
Dated…………………… Deponent

Verification
I, the abovenamed deponent, verify that the contents of paragraphs 1 to 4 of this affidavit are true to
my personal knowledge.
Sd/-
A.B.
Dated……………

I, ................………………………………………… S/o…………......... R/o…………………………… declare, from a perusal
of the papers produced by the deponent before me that I am satisfied that he is Shri A.B.
Sd/-
……………………
Solemnly affirmed before me on this…………………… day of…………………… 2018 of…………………… (time)

by the deponent.
Sd/-
……………………
(Oath
Commissioner)

8. 10

Pleadings

REVIEW (Sec 114 & order 47,Rule 1 of CPC)
Any person considering himself aggrieved by a decree or order, may apply for a review of judgment, to
the Court which passed the decree or made the order,
on any of the following grounds:
v Discovery by the applicant of new and important matter or evidence which, after the exercise of
due diligence, was not within his knowledge or could not be produced by him at the time when the
decree was passed or order made; or
v On account of some mistake or error apparent on the face of the record; or
v For any other sufficient reason;
AND
Ø The Court may make such order thereon as it thinks fit.
Ø The reasons for the decision; and
Ø Where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.

REVISION (Sec 115 of CPC)
In a case where an appeal does not lie against a final order the aggrieved party can file a revision
before the High Court (and no other court). There are certain orders passed by the Civil Courts
subordinate to the High Court against which the remedy of appeal is not available, even through such
orders finally decide an important question involved in the suit or substantially affect the right or
interest of a party to the suit. In such cases the High Court can entertain a revision and quash or
modify the order of the court below.

As per Sec 115
1. The High Court may call for the record of any case which has been decided by any Court sub-
ordinate to such High Court and in which no appeal lies thereto, and if such sub-ordinate Court
appears:
a) To have exercised a jurisdiction not vested in it by law; or
b) To have failed to exercise a jurisdiction so vested; or
c) To have acted in the exercise of its jurisdiction illegally or with material irregularity, the High
Court may make such order in the case as it thinks fit:

Provided that the High Court shall not, under the Section, vary or reverse any order made, or any order
deciding an issue, in the course of a suit or other proceeding, except where:
a) The order, if it had been made in favour of the party applying for revision, would have finally
disposed of the suit or other proceeding; or
b) The order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to
the party against whom it was made.
2. The High Court shall not, under this Section vary or reverse any decree or order against which an
appeal lies either to the High Court or to any Court subordinate thereto.”

8. 11

Pleadings
SPECIMEN FORM OF REVISION
In the High Court of_______________
Civil Appellate Jurisdiction
Civil Revision No__________ of 2018

IN THE MATTER OF:
ABC S/o_____________________ R/o___________________
…Petitioner
Versus
XYZ S/o_______________________ R/o____________________
…Respondent
AND

IN THE MATTER OF:
Civil Revision Against The Order Dated______________ Passed By The Learned Sub-Judge, Ist
Class_________________ In The Suit Entitled Abc -Vs.- Xyz (Civil Suit No. _______________ Of 2018)

May it please the Hon’ble Chief Justice, High Court of_________________ and his companion Justices

THE PETITIONER
MOST RESPECTFULLY SHOWETH:
1. That the petitioner named above has filed a suit against the respondents for the recovery of
possession of a house situated in……………………, fully described in the plaint. The suit is pending in
the court of Sub-Judge 1st Class…………………… and the next date of hearing is……………………

2. That on being summoned the respondent appeared before the court below and filed his written
statement wherein he denied the petitioner’s title set up in the suit property.

3. That the trial court framed issues on……………… and directed the petitioner (plaintiff) to produce
evidence, upon which the petitioner promptly furnished to the court below a list of witnesses and
also deposited their diet expenses etc., making a request that the witness be summoned by that
Court.

4. That on a previous date of hearing that is……………………, 2017, two witness of the petitioner had
appeared and their statements were recorded. However, the learned Presiding Officer of the court
below passed an order that the petitioner-plaintiff on his own produce the remaining witnesses
without seeking the assistance of the court. This order was passed despite a request by the
petitioner that at least those witness named in the list who are State employees should be
summoned by the court, as they are required to produce and prove some official records.

5. That on the next date of hearing the learned trial court by the order impugned in this revision
closed the evidence of the petitioner-plaintiff on the ground that he did not produce the remaining
witnesses.
GROUNDS
8. 12

Pleadings
1. That the impugned order has caused great prejudice to the petitioner and if the same is allowed
to stand the petitioner’s suit is bound to fail.

2. That the trial court has unjustifiably denied assistance of the court to the petitioner-plaintiff to
secure the attendance of his witnesses. The interests of justice demand that he is provided with
all legal assistance in this regard.

In the facts and circumstances discussed above the petitioner prays that this Hon’ble Court be pleased
to quash and set aside the order under revision and direct the court below to provide assistance of the
court for summoning the plaintiff-witnesses.
Date:_______________ sd/-
Place: _____________ PETITIONER
(Affidavit shall be attached to the Revision)

SUIT FOR PERMANENT INJUNCTION
An injunction is a specific order of the Court forbidding the
commission of a wrong threatened or the continuance of a wrongful
course of action already begun, or in some cases (when it is called a
‘mandatory injunction’) commanding active restitution of the former
state of things.
Injunctions are two types-

(i) Temporary and
(ii) Permanent”.

Permanent injunction restrains a party for ever from doing the
specified act and the same can be granted only on merits at the
conclusion of the trial after hearing both the parties to the suit. It is governed by Sections 38 to 42 of
the Specific Relief Act, 1963.

A temporary or interim injunction on the other hand restrains a party temporarily from doing
the specified act and can be granted until the disposal of suit. It is regulated by the provisions of Order
39 of the Code of Civil Procedure and it may be granted at any stage of the suit. Injunctions are
preventive, prohibitive or restrictive i.e. when they prevent, prohibit or restraint some one from doing
some thing or mandatory, i.e. when they compel, command or order some persons to do some thing.

It is not the plaintiff alone who can apply for interim injunction. A defendant can also make an
application for grant of an injunction against the plaintiff. Injunction may be issued only against a
party and not against a stranger or third party. The various circumstances under which the temporary
injunction can be granted has been provided for under Order 39 Rule 1 C.P.C.

The power to grant temporary injunction is at the discretion of the court. The discretion however
should be exercised reasonably, judiciously and on sound legal principles.

8. 13

Pleadings
Specimen Suit for Temporary Injunction Restraining Waste
In the Court of the Civil Judge at ........................
Original Suit No. ........ of ..........
AB, s/o ................................................................aged ................................ r/o ................................ Plaintiff
versus
CD, s/o ............................................................... aged ................................ r/o ................................ Defendant
The above-named plaintiff states as follows:

1. The plaintiff is the absolute owner of (describe the property).
2. The defendant is in possession of the same under a lease from the plaintiff.
3. The defendant has cut down a number of valuable trees, and threatens to cut down many more
for the purpose of sale, without the consent of plaintiff.
4. The plaintiff claims that the defendant be restrained by injunction from committing or
permitting any further waste on the said premises.

Date:_______________ sd/-

Specimen Suit for Permanent Injunction Restrain Breach of Contract
In the Court of the Civil Judge at ........................
Original Suit No. ........ of ..........

AB, s/o ................................................................aged ................................ r/o ................................ Plaintiff
versus
CD, s/o ............................................................... aged ................................ r/o ................................ Defendant

1. The plaintiff let plots Nos. 142 and 678 in village___ to the defendant, by a deed of lease, dated July 6,
2010, for purposes of a nursery for 7 years, and the defendant agreed by the said deed of lease not to
use the land for any other purpose.

2. The defendant has, since July 1, 2013 commenced to dig earth from the said plots for the purposes of
his adjoining brick-kiln.

3. The removal of earth from the land would make it unfit for cultivation for several years and would
even otherwise reduce its quality and value and compensation in money would not afford adequate
relief to the plaintiff.

4. The defendant threatens and intends, unless restrained from so doing, to continue to dig earth from
the said plots.

The plaintiff claims a perpetual injunction restraining the defendant, his servants, or agents, from
digging earth from any portion of the said plots Nos. 142 and 678.

Date:_______________ sd/-
8. 14

Pleadings

SUIT FOR SPECIFIC PERFORMANCE

Specific performance is an order of a court which requires a party to perform a specific act, usually
what is stated in a contract. It is an alternative to awarding damages, and is classed as an equitable
remedy commonly used in the form of injunctive relief concerning confidential information or real
property. While specific performance can be in the form of any type of forced action, it is usually used
to complete a previously established transaction, thus being the most effective remedy in protecting
the expectation interest of the innocent party to a contract.

Orders of specific performance are granted when damages are not an adequate remedy, and in some
specific cases such as sale of land. Such orders are discretionary, as with all equitable remedies, so the
availability of this remedy will depend on whether it is appropriate in the circumstances of the case.

The Supreme Court in Babulal v. Hazari Lal Kishori Lal & others, has held that no special form of decree
in a suit for specific performance is supplied by the Civil Procedure Code. Chapter 11 of the Specific
Relief Act, 1963 deals with the various circumstances under which a contract may be enforced
specifically and where it cannot be allowed. When a contract is to be specifically enforced, it means
simply this that when the parties do not agree to perform the contract mutually, the intervention of
the Court is required and the Court will do all such things as the parties would have been bound to do
had this been done without the intervention of the Court.

By the decree for specific performance, the court sets out what it finds to be the real contract between
the parties and declares that such a contract exists and it is for the executing court to do the rest. In
may be noticed further that a decree in a suit for specific performance has been considered to be
somewhat in the nature of preliminary decree which cannot set out in the fullest detail the different
steps which are required to be taken to implement the main portion of the order directing specific
performance of the contract. The executing court is in such a case vested with authority to issue
necessary directions.

Specimen Suit by a Vendee for Specific Performance of Contract for Sale of Land

In the Court of the Subordinate Judge at ……………
Other Class Suit No. ……………… of 2018
A.B.
Son of late ……………………
By case Hindu, by occupation – agriculturist
Residing at …………...........
District …………................
……………. Plaintiff
C.D.
Son of …………
By case Hindu, by occupation – agriculturist
of Village ……………………
District ……………………...
……………. Defendant
Suit for specific performance of contract
Valued at Rs. 8,500
8. 15

Pleadings
1. That the defendant while owning and occupying the property, described in the Schedule below, had
entered into a contract in writing on ……….. agreeing therein to sell to the plaintiff the land, described
in the Schedule below, at a consideration of Rs. 8,500 and received from the plaintiff a sum of Rs. ……….
as earnest money.

2. That is was agreed therein that the defendant would sell the said property to the plaintiff by
executing a proper sale deed and register the same on receipt of the balance sum of Rs. ............ within
six months from the date of the ‘Bainanama’ referred to above.

3. That the plaintiff has been always willing to pay to the defendant the balance of consideration
money and as a matter of fact, the plaintiff offered to the defendant the said balance of consideration
by a notice dated............served by the plaintiff on the defendant by registered post with A/D through his
lawyer Shri............ (Advocate).

4. That in the said notice the defendant was requested for compliance with the terms in the notice
within 15 days from the date of receipt of the plaintiff’s notice. The defendant received the notice
on............ but did not comply with the request made therein.

5. That the plaintiff is entitled to specific performance of the said contract dated............

6. That the cause of action for this suit arose first on........... .(the date fixed for performance of the
contract) and thereafter on ................ after expiry of 15 days’ period after receipt of notice by the
defendant at Mouja...............P.S............. within the jurisdiction of this court.

7. That for the purpose of jurisdiction and court-fees, the suit is valued at Rs. 8,500 and ad valorem
court fees of Rs. 660 are paid.

The plaintiff, therefore, prays:

(1) that the suit be decreed directing the defendant to execute and register the sale deed in question in
favour of the plaintiff in respect of the property in the Schedule below, on accepting the contracted
purchase money less the amount already paid as an earnest money;

(2) that the defendant be directed to execute and register the sale deed within a time specified by the
court, failing which the said deed be executed and registered according to the provisions of O. 21, R. 34
(5) and 6(a) of C.P.C.;

(3) all costs of suit.

Date:_______________ sd/-

Schedule

Verification

8. 16

Pleadings

APPEALS
Although "Appeal" has not been defined in the Code of Civil
Procedure, 1908 yet any application by a party to an appellate
Court, asking it to set aside or revise a decision of a subordinate
Court is an "appeal".
A right of appeal is not a natural or inherent right but is a creature

of a statute. It is the statute alone to which the Court must look to
determine whether a right of appeal exists in a particular instance
or not. Parties cannot create a right of appeal by agreement or mutual consent. The right of appeal is
not a matter of procedure, but is a substantive right and can be taken away only by a subsequent
enactment, if it says so expressly or by necessary intendment and not otherwise. It is for the appellant
to show that the statute gives a right of appeal to him.

The Code of Civil Procedure, 1908 provides for four kinds of appeals:
v Appeals from original decrees (Sections 96 to 99 and Order XLI);
v Second Appeals (Sections 100 to 103);
v Appeals from Orders (Sections 104 to 106, Order XLIII, Rules 1 and 2); and
v Appeals to the Supreme Court.

Appeals from May be preferred from every decree passed by any Court exercising original jurisdiction to
original the Court authorized to hear appeals from the decisions of such Court on points of law as well
decrees: as on facts.
Second lie to the High Court from every decree passed in appeal by any Court subordinate to the High
Appeals: Court, if the High Court is satisfied that the case involves a substantial question of law.
Appeals from under Sections 104 to 106 would lie only from the certain orders on grounds of defect or
Orders: irregularity of law:
Appeals to the An appeal can be filed before the Supreme Court in respect of those decrees which have
Supreme been passed by the high court’s in their original jurisdiction.
Court:

Constitution of India provides for following appeals to the Supreme Court

Appeals in Clause (1) of the Article 132 of the Constitution provides that an appeal shall lie to the
Constitutional Supreme Court from any judgment, decree or final order of a High Court in the territory of
cases: India, whether in a civil, criminal or other proceedings, if the High Court certifies under
Article 134A that the case involves a substantial question of law as to interpretation of the
Constitution.
Appeals in Article 133 deals with appeals to the Supreme Court from decisions of High Court in civil
civil cases: proceedings. For an appeal to the Supreme Court the conditions laid down in this article must
be fulfilled. These conditions are:
(a) The decision appealed against must be a "judgment, decree or final order" of a High Court
8. 17

Pleadings
in the territory of India,
(b) Such judgment, decree or final order should be given in a civil proceeding, and
(c) A certificate of the High Court to the effect that:
(i) The case involves a substantial question of law, and
(ii) In the opinion of the High Court the said question needs to be decided by the Supreme
Court.
Appeals in A limited criminal appellate jurisdiction is conferred upon the Supreme Court by Article 134.
criminal It is limited in the sense that the Supreme Court has been constituted a Court of criminal
cases: appeal in exceptional cases where the demand of justice requires interference by the highest
Court of the land.

There are 3 modes by which a criminal appeal from any "judgment, final order or sentence" in
a criminal proceeding of a High Court can be brought before the Supreme Court:
v Without a certificate of the High Court.
v With a certificate of the High Court.
v Appeal by Special Leave.

Drafting of An appeal may be divided into three parts:
Appeals (1) Formal part, known as the memorandum of appeal,
(2) Material part, grounds of appeal, and
(3) Relief sought for.

The memorandum of appeal should begin with the name of the Court in which it
is filed. After the name of the Court, number of the appeal and the year in which it is filed are
given. As the number is noted by the officials of the Court, a blank space is left for it. Then
follow the names and addresses of the parties to the appeal. The name of the appellant is
given first and then that of the respondent. It should be indicated against the names of the
parties as to what character each party had in the lower Court, i.e. whether he was a plaintiff
or a defendant, or an applicant or an opposite party.
Drafting v Grounds of objection should be written distinctly and specifically;
Grounds of v They should be written concisely;
Appeals v They must not be framed in a narrative or argumentative form; and
v Each distinct objection should be stated in a separate ground and the grounds should be
numbered consecutively.
General Grounds of Appeal
v Any mistake committed by the lower court in weighing the evidence
v Any mistake in the view of law entertained by the lower court
v Any misapplication of law to the facts of the case
v Any material irregularity committed in the trial of the case
v Any substantial error or defect or procedure
v Any defect, error or irregularity of any interlocutory order passed in the case.

However it may be noted that the above grounds will be allowed subject to the following
conditions
v That the mistake of the lower court should be material i.e. it should be such as affects the
8. 18

Pleadings
decision and
v That the objection taken must be such as arises from the pleadings and evidence in the
lower court.
Relief Sought It is nowhere expressly provided in the Code that the relief sought in appeal should be stated
in Appeal in the memorandum of appeal. The absence of prayer for relief in appeal does not appear to
be fatal and the Court is bound to exercise its powers under Section 107 of the Code and to
give to the appellant such relief as it thinks proper. However, it is an established practice to
mention in the memorandum of appeal, the relief sought by the appellant.
Signature A memorandum of appeal need not be signed by the appellant himself. It may be signed by
him or by his counsel but if there are several appellants and they have no counsel, it must be
signed by an "of them. It is not required to be verified.

Specimen of Appeal to District court
In the Court of District Judge, Indore

Civil Appeal No. _________/ 2009
Under Section 96 of CPC, 1908.
IN THE MATTER OF:

A. B. s/o B. C.
123, A B Road, Indore, MP _____________Plaintiff/Appellant

Vs.
M. N. s/o O. P.
456, A B Road, Indore, MP ___________Defendant/Respondent

May it please the hon’ble chief Justice of District court of _________ and his lordship companion justice,

THE APPELLANT COMPANY


That the company herein is a company duly registered under the provisions of the companies act 2013
having its registered office at _______________- and engaged in the business of Manufacturing Product X.

That the respondent are doing the business of selling goods manufactured by the appellants and
approached the appellant for purchasing the aforesaid manufactured goods. An agreement was
reached between the parties and was reduced into writing.

That the appellant supplied goods worth Rs. 15,00,000 (Rupees Fifteen Lakhs) over a period of 8
months to the respondent. A statement of accounts regarding the goods so supplies is annexed hereto
and marked as “A-1”
8. 19

Pleadings
That the after paying total amount of Rs. 6,00,000, remaining amout has not been paid by the
respondendt despite repeated demands and issuance of a legal notice by the appellant through
advocate.
That on being summoned by respective court, the respondent appeared through counsel and filed
their written statement to which appellant plaintiff also filed replication.

That after hearing the counsel for the parties, the learned district judge has by his his judgement and
decree passed on ______________ dismissed the appellant’s suit on the ground that the evidence led by the
parties does not establish the claim of the appellant plaintiff. Copies of the judgement and decree of the
court are annexed hereto and marked as A-3 and A-4 respectively.

The aforesaid judgement and decree of the court is assailed on the following grounds amongst the
others.
GROUNDS
(1) That the orders passed by the Learned Lower Court are contrary to the provisions of law and the
principles of natural justice.
(2) That the findings arrived by the Learned Lower Court are not supported by the evidence on record.
(3) That the Learned Lower Court committed an error in holding that the house premises are not
required by the plaintiff/appellant for his personal bonafide occupation.
(4) That the copy of the Judgment and the Decree against which this appeal has been preferred is
attached alongwith.
(5) That the Learned Lower Court has having answered the first issue in the negative decided the rest
of the issues against the appellant, which itself is improper and illegal.
(6) That the necessary court fee is paid herewith.

PRAYER
(7) That the appellant, therefore, prays that for the reasons stated above and as may be argued at the
time of hearing, the record and proceedings be called for, this appeal be allowed, the orders under
appeal be set aside and quashed, and orders deemed just and proper be kindly passed. Further that the
cost of this petition be awarded in favor of plaintiff-appellant.

Place:__________ (Signature of the Plaintiff-Appellant)
Date:___________

Advocate
for Plaintiff-Appellant

VERIFICATION
I, ______, do hereby verify that the contents from paras 1 to 5 are correct and true to the best of my
knowledge and personal belief and no part of it is false and nothing material has been concealed
therein. Affirmed at Indore this 4th Day of September 2009.
(Signature)
Plaintiff-Appellant

8. 20

Pleadings
Specimen Form of Appeal to the High Court
IN THE HIGH COURT OF…………………… AT……………………
CIVIL APPELLATE JURISDICTION REGULAR CIVIL APPEAL NO…………………… OF

IN THE MATTER OF:

A.B.C. Company Ltd. a company incorporated under the provisions of the Companies Act and having its
registered office……………………
…Appellant
Versus
M/s…………………… a partnership concern
(or XYZ company Ltd., a company incorporated under the Companies Act and having its registered
office at……………………)
…Respondents
May it please the Hon'ble Chief Justice of the High Court of…………………… and his Lordship's
companion Justices,

THE APPELLANT-COMPANY

1. That the appellant herein is a company duly registered under the provisions of the Companies Act
and the registered office of the appellant is at…………………… and the company is engaged in the
business of manufacturing……………………
2. That the respondents who are also doing business of selling goods manufactured by the appellants
and other manufacturers approached the appellant for purchasing from the appellant company
the aforesaid manufactured goods. An agreement was reached between the party which was
reducing into writing.
3. The appellant supplied goods worth Rs. 15 lacs over a period of…………………… months to the
respondents. A statement of account regarding the goods so supplied is annexed hereto and
marked as ANNEXURE A-1. 3.
4. That the respondents have made a total payment of Rs. 6 lacs on different dates. The statement of
the said payments made by the respondents is appended and is marked as ANNEXURE A-2.
5. That the remaining amount has not been paid by the respondent despite repeated demands and
issuance of a legal notice by the appellant through advocate.
6. That the appellant filed a suit for recovery of the aforesaid balance amount of Rs. 9 lacs together
with interest at the rate of 12% per annum and the cost of the suit. The suit was filed
on…………………… in the court of the learned District Judge.
7. That upon being summoned by the said court the respondents appeared through counsel and filed
their written statement to which appellant-plaintiff also filed replication (rejoinder).
8. That the parties led evidence.
9. That after hearing the counsel for the parties the learned District Judge has by his judgment and
decree passed on…………………… dismissed the appellant's suit on the ground that the evidence led
by the parties does not establish the claim of the appellant/plaintiff. Copies of the judgment and
decree of the court below are annexed hereto and are marked as ANNEXURE A-3 AND A-4,
respectively.
8. 21

Pleadings

The aforesaid judgment and decree of the court is assailed (criticized) on the following grounds
amongst others.
GROUNDS
A. That the judgment and decree under appeal is erroneous both on facts as well as law.
B. That the learned trial court has failed to properly appreciate the evidence, and has fallen into error
in not finding that the preponderance of probability was in favor of the plaintiff appellant.
C. That there was sufficient evidence led by the plaintiff to prove the issues raised in the suit and the
defendant-respondent has failed to effectively rebut the plaintiff's evidence, more particularly the
documentary evidence.

8. That the valuation of this appeal for the purposes of payment of court-fee is fixed at
Rs…………………… and the requisite court fee in the form of stamps is appended to this memorandum of
appeal.
9. That this appeal is being filed within the prescribed period of limitation, the judgment and decree
under appeal having been passed on…………………

PRAYER
In the above facts and circumstances the appellant prays that this appeal be allowed, the judgment and
decree under appeal be set aside and the decree prayed for by the appellant in his suit before the court
below be passed together with up-to-date interest and costs of both courts.
APPELLANT

VERIFICATION

Verified at…………………… on this, the…………………… day of…………………, 20…. That the contents of the
above appeal are correct to the best of my knowledge and belief……………………
APPELLANT

THROUGH
COUNSEL
Dated: (……………………)

Complaint Sec 2(d) of Cr. PC

Any allegation made orally or in writing to a Magistrate, with a view to
his taking action under this Code that some person, whether known or
unknown, has committed an offence, but it does not include a police
report.

However, a report made by the police officer in a case which discloses
after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint, and
the police officer making the report as a complainant. A complaint in a criminal case is what a plaint is
in a civil case.

8. 22

Pleadings
The requisites of a complaint are:
a. an oral or a written allegation;
b. some person known or unknown has committed an offence;
c. it must be made to a magistrate; and
d. it must be made with the object that he should take action.

There is no particular format of a complaint and need not be presented in person. A petition addressed
to the Magistrate containing an allegation that an offence has been committed, and ending with a
prayer that the culprit be suitably dealt with is a complaint.

BAIL
Bail means the release of the accused from the custody of the
officers of law and entrusting him to the private custody of persons
who are sureties to produce the accused to answer the charge at
the stipulated time or date.

An “anticipatory bail” is granted by the High Court or a Court of
Session, to a person who apprehends arrest for having committed
a non-bailable offence, but has not yet been arrested (Section 438). An opportunity of hearing must be
given to the opposite party before granting anticipatory bail.

Specimen Bail Application before a Magistrate during Police Enquiry under
s. 437, Cr. PC 1973

In the Court of __________ Magistrate _______

The State ___________
Versus

Accused Mr. A son of Mr. B, Village: ____________

In the matter of petition for bail of accused

Mr. A, during police enquiry
The humble petition of Mr. A
The accused above-named

1. That the police arrested your petitioner on 5th March 2015 on mere suspicion. That nearly a
month has passed after the arrest but still the Investigating Police Officer has not submitted a
charge sheet.
8. 23

Pleadings
2. That any inmate of the house of Mr. Arvind where the burglary is alleged to have taken place did
not identify your petitioner, nor was any incriminating article found in his house.
3. That your petitioner has reason to believe that one Mr. Gopal with whom your petitioner is on
bad terms and who is looking after the case for complainant has falsely implicated your
petitioner in the case out of grudge.
4. That your petitioner shall fully co-operate with the police.
5. That your petitioner is not likely to abscond or leave the country.

Your petitioner prays that your Honour may be pleased to call for police papers and after perusing the
same be pleased to direct the release of your petitioner on bail.
And your petitioner, as in duty bound, shall ever pray.

Advocate Mr. A

VERIFICATION

I, Mr. A, son of Mr. B, residing at................ by occupation business, do hereby solemnly affirm and say as
follows:
1. I am the petitioner above-named. I know and I have made myself acquainted with the facts and
circumstances of the case and I am able to depose thereto.
2. The statements in paragraphs 1 to 5 of the foregoing petition are true and correct to my
knowledge and belief.
3. I sign this verification on the 6th day of May 2018.

Solemnly affirmed by the said Mr. A

on 6th May 2018 at the Court
House at......................... Mr. A

Before me
Notary/Magistrate

FIRST INFORMATION REPORT (FIR)
Section 154 Cr.P.C 1973 deals with information in cognizable cases. Section 154 reads:
1. Every information relating to the commission of a cognizable offence, if given orally to an officer
in charge of a police station, shall be reduced to writing by him or under his direction, and be
read over to the informant; and every such information, whether given in writing or reduced to
writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be
entered in a book to be kept by such officer in such form as the State Government may prescribe
in this behalf.
2. A copy of the information as recorded under Sub-section (1) shall be given forthwith, free of cost,
to the informant.
3. Any person, aggrieved by a refusal on the part of an officer in charge of a police station to record
the information referred to in Sub-section (1) may send the substance of such information, in
8. 24

Pleadings
writing and by post, to the Superintendent of Police concerned who, if satisfied that such
information discloses the commission of a cognizable offence, shall either investigate the case
himself or direct an investigation to be made by any police officer subordinate to him, in the
manner provided by this Code, and such officer shall have all the powers of an officer in charge of
the police station in relation to that offence.

The above provisions are mandatory. Hence the police officer concerned is duty bound to register the
case on receiving information disclosing cognizable offence. Genuineness or credibility of the
information is not a condition precedent for registration of a case. That can only be considered after
registration of the case.

Specimen Form of First Information Report
To
The Officer-in-Charge
———— (Name of the Police Station)

Sir
This is to inform you that my cycle has been stolen from the cycle stand in the daily market
last evening. Last evening, before I went to the market, I placed my green model Hero Cycle in
the cycle stand No. 1 as usual.

I had locked the cycle. The cycle bears the No. __ I had bought it only a month ago and it was almost
new. The cycle had a full gear case, a carrier and a side basket. When such mishap occurred I was
buying vegetables in the market. I asked everybody who were present there about the cycle. It was all
in vain.
I request you to kindly register a case of theft and initiate the necessary investigation to recover the
stolen cycle.

Yours faithfully,
________ (Your Name)

8. 25

Pleadings

8. 26

Pleadings
Past Exam Questions
Q1. Short notes on:
• Revision (June 2008)
• Art of pleading (June’11)
• Affidavits (Dec’12)
• Written statement (June 2013)
• Objects of pleadings (June 2013)
• Interlocutory application (June 2014)

Q2. Factors/considerations that a judge looks for in the pleadings of parties in the cause (Dec’14)

Q3. Wordings in the order of permanent injunction & wordings in the order of temporary injunction
(June’14)
Q4. In a pleading, there is no scope for law & evidence as per order6 of the code of civil procedure,
1908, yet in practice both are pleaded in higher courts, like high courts & tribunals.
(June 2015)
Q5. Several types of appeal have been provided in the ordinary civil law as well as constitutional
framework. Elucidate in respect of civil jurisdiction only. (Dec’14)

Q6. In the light of judicial pronouncements, discuss the following:
Ø It is well settled that evidence should be tailored strictly according to pleadings. (Dec’14)
Ø Pleading is just a written complaint for preventing deviations from the course which litigation
must take as held in Ganesh Trading vs. Motiram AIR 1970 SC 480.
Ø A complaint in a criminal case is what a plaint is in a civil case, whether the complaint is made
to police or to a court. (June’14)
Ø Material facts vis-a-vis immaterial facts while drafting a plaint. (June’14)

8. 27

Art of writing opinion
Art of Writing Opinion
WRITS
For enforcement of Fundamental Rights as conferred on the

citizens of India and others under the Constitution of India, Article
32 of the Constitution confers on the Supreme Court of India
power to issue directions or orders or writs including writs in the
nature of habeas corpus, mandamus, prohibition, quo warranto and
certiorari, whichever may be appropriate, for the enforcement of
any of the said rights.

The Constitution also confers power on the High Courts to issue certain writs.

Types of Writs
As mentioned in Articles 32 and 226 of the Constitution, writs are in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari. A brief discussion of each is as follows:

Habeas ¬ The writ of habeas corpus is a remedy available to a person who is confined without legal
Corpus justification. The words "Habeas Corpus" literally mean "to have a body". This is an order to let
the Court know on what ground he has been confined and to set him free if there is no legal
justification for his detention. This writ has to be obeyed by the detaining authority by
production of the person before the Court. Under Articles 32 and 226 of the Constitution, any
person may move the Supreme Court and the High Court of competent jurisdiction
respectively, for the issue of this writ.

The applicant may be the prisoner himself moving the Court or any other person may move the
Court on his behalf to secure his liberty praying for the issue of the writ of habeas corpus. No
person can be punished or deprived of his personal liberty except for violation of any law and
in accordance with the due process of law. Dis-obedience to the writ of habeas corpus attracts
punishment for contempt of Court under the Contempt of Courts Act, 1971.
Mandamus ¬ The expression "mandamus" means a command. The writ of mandamus is, thus, a command
issued to direct any person, corporation, inferior Court or Government authority requiring him
to do a particular thing therein specified which pertains to his or their office and is further in
the nature of a public duty. This writ is used when the inferior tribunal has declined to exercise
jurisdiction. Mandamus can be issued against any public authority. The applicant must have a
legal right to the performance of a legal duty by the person against whom the writ is prayed.
Mandamus is not issued if the public authority has discretion.

¬ Mandamus can be issued by the Supreme Court and all the High Courts to all authorities.
However, it does not lie against the President of India or the Governor of a State for the
exercise of their duties and powers (Article 360). It also does not lie against a private
individual or body except where the State is in collusion with such private party in the matter
of contravention of any provision of the Constitution or of a Statute. It is a discretionary
remedy and the Court may refuse if alternative remedy exists except in case of infringement of
Fundamental Rights.

10. 1

Prohibitions ¬ The writ of prohibition is issued by the Supreme Court or any High Court to an inferior Court
preventing the latter from usurping jurisdiction which is not legally vested in it. It compels
courts to act within their jurisdiction when a tribunal acts without or in excess of Jurisdiction
or in violation of rules or law.

The writ of prohibition is available only against judicial or quasi-judicial authorities and is not
available against a public officer who is not vested with judicial functions. If abuse of power is
apparent this writ may be prayed for as a matter of right and not a matter of discretion. The
Supreme Court may issue this writ only in case of Fundamental Rights being affected by
reason of the jurisdictional defect in the proceedings. This writ is available during the
pendency of the proceedings and before the order is made.
Certiorari ¬ CERTIORARI means to be more fully informed. Here the appellate court ask inferior court to
give or deliver it records in a case.
¬ The writ of certiorari is available to any person whenever any body of persons having legal
authority to determine questions affecting the rights of subjects and having the duty to act
judicially, acts in excess of its legal authority. The writ removes the proceedings from such
body to the High Court in order to quash a decision that goes beyond the jurisdiction of the
deciding authority.
Quo ¬ The writ of quo warranto is prayed for, for an inquiry into the legality of the claim which a
warranto person asserts to an office or franchise and to oust him from such position if he is an usurper.
The holder of the office has to show to the Court under what authority he holds the office. This
writ is issued when:
v The office is of a public and of a substantive nature;
v The office is created by a Statute or by the Constitution itself; and
v The respondent must have asserted his claim to the office. It can issue even though he has
not assumed charge of the office.

SPECIMEN FORM OF A WRIT PETITION

In the High Court of…………………… at……………………
Civil Original (Extra-ordinary) Jurisdiction
Civil Writ Petition No…………………… of 2016
IN THE MATTER OF:
JKL S/o……………… R/o…………………… former employee (Inspector Grade-I) in the Respondent

Company.
…Petitioner

1. XYZ Company Ltd., a company wholly owned by the Govt. of India and having its registered office
at……… through its Chairman.

2. Managing Director of the above Company
…Respondent
Civil Writ Petition against the order dated…………………… passed by the Managing Director, respondent
No. 2 herein, by which the services of the petitioner as an employee of the respondent-company have
been terminated.

May it please the Hon’ble Chief Justice of the High Court of ………… and His Lordship’s companion
Judges.
10. 2

THE PETITIONER


1. That the petitioner is a citizen of India and is therefore entitled to enjoy all the rights guaranteed by
the Constitution of India.

2. That respondent No. 1 is a company registered under the Companies Act, 1956 having its registere
office at……………………

The respondent-company is wholly owned by the Government of India and is, thus, an instrumentality
of State is given in Annexure 12 of the Constitution.

3. That the petitioner was an employee of the respondent-company, having been appointed as a Sub-
Inspector Grade-I on…………………… 2013 and he continued to work, earning one promotion also.

4. That on…………………… 2013 respondent No. 2 herein abruptly issued the impugned order
dated……………… terminating the services of the petitioner and the petitioner came to be relieved of his
duties the same day. A copy of the impugned order is annexed hereto and marked as ANNEXURE-1.

5. That on a bare reading of the impugned order it becomes clear that the order has been issued on the
basis of some alleged misconduct on the part of petitioner, but no inquiry under the relevant rules has
been held before the passing of the order.

6. That the petitioner has not committed any act that could be termed to be an act constituting
misconduct.

7. The impugned order is being assailed on the following, amongst other,
GROUNDS
7.1 That the petitioner being a permanent employee of the respondent-company, his services could
not be terminating without holding an enquiry under the rules applicable to the employees of the
company.

7.2 That the principles of natural justice have been contravened by the respondents in not giving to the
petitioner any opportunity of being heard.

7.3 That the impugned order is otherwise also erroneous and unsustainable, as it does not contain any
reason and is a non-speaking order.

7.4 That the impugned order is arbitrary and contravenes Article 14 of the Constitution.

7.5 …………………………………………

7.6 …………………………………………

8. That the petitioner has not filed any petition other proceedings relating to the matter at this petition
in any other court.
PRAYER
10. 3

In the facts and circumstances stated above the petitioner prays that a direction in the form of a writ of
quo warranto and mandamus or any other appropriate writ be issued quashing the impugned order
and reinstating the petitioner in service with all consequential benefits including back wages.

It is further prayed that the respondent be burdened with costs.
Sd/
DATED…………………… PETITIONER
THROUGH
Sd/
COUNSEL

MR.………………

Note:- The Writ petition must be supported by an affidavit of the petitioner.
SPECIAL LEAVE PETITIONS
Article 134A of the Constitution of India lays down that every High
Court, passing or making a judgment, decree, final order, or
sentence, referred to in Article 132 or Article 133 or Article 134.

Article 132 of the Constitution of India provides that an appeal
shall lie to the supreme court from any judgment, decree, final
order of a high court in the territory of India, whether in a civil,
criminal or other proceedings, if the high court certifies under
article 134 A that the case involves substantial question of law as
to interpretation of the constitution. Here, the petition of to obtain
the special leave is required to be made to the high court, for
making the aforesaid appeal to the supreme court.
Where the high court refused to issue the required certificate to
enable an aggrieved party to appeal to the Supreme Court against the judgment, order or sentence
awarded by the high court for grant of special leave to appeal under Article 136 of the Constitution.

Article 136 of the Constitution confers upon the Supreme Court power to grant special leave to appeal.

Special Leave Petition (SLP) to the Supreme Court under Article 136
In suitable cases, where some arguable questions, mostly on legal points, are involved the Constitution
confers under Article 136 wide discretionary powers on the Supreme Court to entertain appeals even
in cases where an appeal is not otherwise provided for. But so far as questions of fact, as distinct from
questions of law, is concerned, it is only in rare or exceptional cases that the Supreme Court interferes
and that too when finding of the High Court or the lower Court is such that it shocks the conscience of
the court.

SPECIMEN FORM OF A PETITION FOR SPECIAL LEAVE IN THE SUPREME COURT OF
INDIA

CIVIL APPELLATE JURISDICTION

IN THE MATTER OF:
10. 4

Special Leave Petition under Article 136 of the Constitution of India
AND
IN THE MATTER OF:
ABC Company Ltd., a company registered under the Companies Act through……… Chairman/Managing
Director, the company having its registered office at……………
…Petitioner
Versus
1. …………………… S/o…………………… R/o……………………
2. Union of India through the Secretary, Ministry of Corporate Affairs, New Delhi.
3. The Registrar of Companies……………………
…Respondents

May it please the Hon'ble Chief Justice of India and His Lordship's Companion Judges of the Supreme
Court.
THE PETITIONER-APPELLANT-(COMPANY)


1. That the petitioner is a company duly incorporated under the provisions of the Companies Act,
having its registered office at…………………… and is challenging by way of this Special Leave petition
the judgment and order of the High Court of…………………… dated in proceeding under
Section…………………… of the Companies Act.
2. That the questions of law involved in this matter are as follows:
a) Whether the High Court has fallen into error in taking the view that……………………?
b) Whether it would be a good ground for winding up of the petitioner-company that two of its
directors are not an speaking terms and there is, thus, a deadlock in the administration of the
affairs of the company. or [Here state any other ground that has been taken by the respondents
or any of the respondents seeking the relief of winding up of the company from the High Court
or any other relief……………………].
c) Whether…………………………………………

3. That respondent No. 1 herein had filed a petition before the Hon'ble High Court of……………………
seeking the relief…………………… which petition was contested by the petitioner-company inter alia
on the grounds that……………………
4. That the High Court after hearing the parties through their respective counsel allowed the said
petition, holding that sufficient grounds had been made out for winding up of the petitioner
company (or any other relief claimed in the petition before the High Court).
5. That the aforesaid findings and the final judgment/order of the High Court are assailed on the
following, amongst, other.
GROUNDS
5.1 That……………………
5.2 That……………………
5.3 That……………………

6. That the petitioner has not filed any appeal or other proceeding relating to this matter in this
Hon'ble Court or any other Court.
RELIEF

The petitioner-company accordingly prays that this Hon'ble Court be pleased to grant Special Leave to
Appeal in the matter and to allow the appeal, set aside the impugned judgment/order passed by the
High Court and dismiss the petition filed by the respondent (No. _______________) in the High Court.
Sd/
DATED…………………… PETITIONER
10. 5

THROUGH
Sd/
COUNSEL

MR.………………

PETITIONER
10. 6

OPINION WRITING
Introduction
v An opinion is a professional’s written response to client’s
instructions to advise in writing. It follows that it must contain
advice.
v Professionals do not advise someone simply by telling them what to
do, but supplement it with the basic reasoning behind it.
v Advising is inextricably bound up with and is part of the mental
attitude with which professionals approach opinion writing, with the
thinking process that precedes the actual writing of the opinion, and
with the writing process itself.

Need for a Legal Opinion
F Interpretation of statutes or documents
F Advise a transaction structure
F Opinion for guidance of decision makers in commerce, industry or government
F Opinion to Lenders on enforceability of Finance Documents
F Opinion for Investors for compliance by Target Companies
F Opinion on Foreign Direct Investment
F Determining provision for contingent liabilities or determination of contingent assets
F Merits or demerits of legal proceedings
F Provision for contingent liabilities or Identification of contingent assets
F Initiating civil or criminal proceedings
F Drafting a pleading
F Preparation for trial of arbitral or legal proceeding
F Ascertain compliance level for issue of securities and identification of risk factors for investors
F Valuation of business
Formulation of a Legal Opinion

Ø A request for a legal opinion will usually come in written form. Such a request will usually include
any document/ documents in the case.
Ø The request for a legal opinion will include at least one and usually a number of questions which
the legal advisor is being asked to address.
Ø A legal opinion will often have the over arching question – does the client have a good and viable
case. This is clearly the most important question to any client and must be approached with
honesty and directness.
Ø If the client’s case is not viable they must be advised about this during the course of legal opinion.
Ø If there is something that can be done to improve the client’s prospects of success, a good legal
opinion will spell out this very precisely.
Ø Numbered action points are one way of achieving clarity in this regard.

Above all, it is vital to remember that in being asked to draft a legal opinion, you are being asked to
advice. Sitting on the fence is not an option. Lay out the pros and cons of a particular course of action,
but always come down on one side or the other. Giving a percentage chance of success at the beginning
of a legal opinion is one way of being clear about what you think the client’s prospects are.

Drafting a legal opinion can and should always be split into three processes:
The mental attitude
The thinking process
The writing process.
10. 7


10. 8

PAST EXAM QUESTION
Q1 Desire Ltd. proposed to increase its share capital. A notice calling for general meeting for
considering and approving increase in share capital was issued to the shareholders. Questioning
the validity of the notice, a shareholder objected that the amount of proposed increase was not
specified in the notice. Is this objection legally valid? Justify your answer. (5 marks)

• Writ of prohibition & writ of certiorari (Dec’13, Dec’06)
• Writ of mandamus & writ of certiorari (June’15)

Q3 Explain: (June’10)
• Habeas corpus
• Mandamus
10. 9

Appearance & Art of Advocacy
APPEARANCES & ART OF ADVOCACY

RIGHT TO LEGAL REPRESENTATION:

An advocate can represent a person before a court. However, as far as before
the quasi-judicial bodies are concerned, an advocate can represent a person as
well as by a practicing company secretary/chartered accountant/cost
accountant.
Thus, practicing company secretary can appear as an authorized
representative before CLB/NCLT/CCI/SAT/TRAI and various other tribunals.

Under the Section 432 of the Companies Act, 2013 dealing with right to legal representation
Companies Act envisages that the applicant or the appellant may either appear in person or
authorise one or more chartered accountants or company secretaries or cost
accountants or legal practitioners or any officer to present his or its case before the
Tribunal or the Appellate Tribunal, as the case may be.
The expression ‘authorised representative’ has been defined under Regulation 2(d)
as a person authorized in writing by a party under Regulation 19(2) to function
before a Bench as the representative of such party.
Therefore, a person to be authorized must be one of the persons specified in

Regulation 19(2) viz. Advocate or Secretary in whole-time practice or a Practising
Chartered Accountant, or Practising Cost and Works Accountant. However, a
company may also appoint and authorize its Director or Company Secretary to
appear in its behalf, in any proceeding before the Bench. The Central Government,
the Regional Director or the Registrar may authorize an officer to appear on its
behalf (Regulation 19).
Company Secretaries who are in job can appear for and on behalf of Employer
Company, by virtue of powers given under a power of attorney while appearing
before CLB/NCLT or Authority Letter but preferably Power of Attorney.
Under the TRAI Section 17 of the Telecom Regulatory Authority of India (TRAI) Act, 1997 authorizes
Act Company Secretaries to present his or its case before the Appellate Tribunal.
Under the SEBI Securities and Exchange Board of India (SEBI) Act, 1992 under Section 15V permits the
Act appellant either to appear in person or authorize one or more of practicing Company
Secretaries, Chartered Accountants, Cost Accountants or Legal practitioners or any of its
officers to present his or its case before the Securities Appellate Tribunal.
Under the Sections 35 and 53S of the Competition Act, 2002 authorizes Company Secretaries in
Competition practice to appear before Competition Commission of India and Competition Appellate
Act Tribunal.

11. 1

Besides, there are a number of concepts and terms such as value of assets, turnover,
determination of market, relevant market, geographic market which require active
professional involvement and advice. Further, Competition Act, 2002 provides a number of
factors to be considered by the Competition Commission of India in determining
appreciable adverse effect on competition.

APPELLATE AUTHORITIES
v UNDER THE COMPANIES ACT, 2013
Appeal against Refusal to Register Transfer of shares:

Section 58 of the Companies Act, 2013 lays down that if a
company refuses, whether in pursuance of any power of
the company under its articles or otherwise, to register the
transfer of, or the transmission by operation of law of the
right to, any shares or interest of a member in, or debentures of, the company, it shall, within 2 months
from the date on which the instrument of transfer, or the intimation of such transmission, as the case
may be, was delivered to the company, send notice of the refusal to the transferee and the transferor
or to the person giving intimation of such transmission, as the case may be, giving reasons for such
refusal.
Section 58 further lays down that the transferor or transferee, or the person who gave intimation of
the transmission by operation of law, as the case may be, may appeal to the Board/Tribunal against
any refusal of the company to register the transfer or transmission, or against any failure on its part
within the period referred to in the preceding paragraph, either to register the transfer or
transmission or to send notice of its refusal to register the same.
The appeal under above paragraph shall be made within two months of the receipt of the notice of
such refusal or, where no notice has been sent by the company, within four months from the date on
which the instrument of transfer, or the intimation of transmission, as the case may be, was delivered
to the company.
Appeal to Supreme Court
Any person aggrieved by any decision or order of the NCLAT may file an appeal to the Supreme Court
within 60 days from the date of communication of the decision or order of the NCLAT to him on any
question of law arising out of such decision or order. However, the Supreme Court may, if it is satisfied
that the appellant was prevented by sufficient cause from filing the appeal within the said period,
allow it to be filed within a further period not exceeding 60 days [Section 423]
v APPELLATE AUTHORITIES UNDER TRAI ACT
Appeal to the Supreme Court

Section 18 of the TRAI Act provides that notwithstanding anything contained in the Code of Civil
Procedure, 1908 or in any other law, an appeal shall lie against any order, not being an interlocutory
order, of the Appellate Tribunal to the Supreme Court on one or more of the grounds specified in
Section 100 of that Code
11. 2

It further says that no appeal shall lie against any decision or order made by the Appellate Tribunal
with the consent of the parties.

Every appeal under this section shall be preferred within a period of ninety days from the date of the
decision or order appealed against.

However, the Supreme Court may entertain the appeal after the expiry of the said period of ninety
days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in
time.

v APPELLATE AUTHORITIES UNDER SEBI ACT
Appeal to the Section 15T of the SEBI Act lays down that any person aggrieved:
Securities (a) By an order of SEBI made, under this Act, or the rules or regulations made there
Appellate under; or
Tribunal (b) By an order made by an adjudicating officer under this Act; may prefer an appeal to
a Securities Appellate Tribunal having jurisdiction in the matter.

However, no appeal shall lie to the Securities Appellate Tribunals from an order made
by SEBI; by an Adjudicating Officer, with the consent of the parties.

Every appeal shall be filed within a period of 45 days from the date on which a copy of
the order made by SEBI or the Adjudicating Officer. However, Securities Appellate
Tribunal may entertain an appeal after the expiry of the said period of 45 days if it is
satisfied that there was sufficient cause for not filing it within that period.

On receipt of an appeal, the Securities Appellate Tribunal may, after giving the parties
to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit,
confirming, modifying or setting aside the order appealed against.
Appeal to Section 15Z lays down that any person aggrieved by any decision or order of the
Supreme Court Securities Appellate Tribunal may file an appeal to the Supreme Court within 60 days
from the date of communication of the decision or order of the Securities Appellate
Tribunal to him on any question of fact or law arising out of such order.

It has been provided that the Supreme Court may, if it is satisfied that the applicant was
prevented by sufficient cause from filing the appeal within the said period, allow it to be
filed within a further period not exceeding 60 days.

v APPELLATE AUTHORITIES UNDER THE COMPETITION ACT
Appeal to As per Section 53B of the Act - any direction, decision or order may prefer an appeal to the
Appellate Appellate Tribunal.
Tribunal:
Every appeal shall be filed within a period of sixty days from the date on which a copy of the
direction or decision or order made by the Commission is received. Appellate Tribunal may
entertain an appeal after the expiry of the said period of sixty days if it is satisfied that there
was sufficient cause for not filing it within that period.

On receipt of an appeal Appellate Tribunal may, after giving the parties to the appeal, an
11. 3

opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or
setting aside the direction, decision or order appealed against. The Appellate Tribunal shall
send a copy of every order made by it to the Commission and the parties to the appeal.
Appeal to Section 53T of the Act provides that the Central Government or any State Government or the
Supreme Commission or any statutory authority or any local authority or any enterprise or any person
Court aggrieved by any decision or order of the Appellate Tribunal may file an appeal to the Supreme
Court within sixty days from the date of communication of the decision or order of the
Appellate Tribunal.

Provided that the Supreme Court may, if it is satisfied that the applicant was prevented by
sufficient cause from filing the appeal within the said period, allow it to be filed after the expiry
of the said period of sixty days.

APPELLATE AUTHORITIES UNDER THE INCOME-TAX ACT, 1961

Appeal against the order of the Income-tax Officer lies with the Appellate Assistant Commissioner or
the Commissioner (Appeals) or Commissioner of Income-tax. Appeal against the order of the Appellate
Assistant Commissioner or the Commissioner (Appeals) can be preferred by the assessee or the
income-tax department and such appeal lies with the Appellate Tribunal. Appeal against the order of
the Appellate Tribunal by way of reference by the Tribunal can also be preferred by the assessee or the
income-tax department and such appeal lies to the High Court. The Order of the High Court on the
reference can be challenged either by the assessee or by the income-tax department by preferring an
appeal to the Supreme Court which is the final appellate authority.

ETIQUETTE & COURT CRAT (ART OF ADVOCACY)

INTRODUCTION
Company Secretaries are knowledge professional with compliance
bent of mind and analytical approach. They are not only conversant
with the technicalities and provisions of the corporate legal areas
but are highly specialized professionals in the matters of procedural
and practical aspects involved in the compliances enjoined under
various statutes and the rules, regulations, bye-laws and guidelines
made there under.

However, In changing scenario, it is equally important that they must possess manners, a professional
look and demeanor to project a professional and competent image in the corporate world as well as
while appearing before the tribunal and quasi judicial bodies.

For a CS it is very important to be familiar with dress code norms, court craft and professional
etiquettes having value for their career, value for their company, value for them as an individual to
achieve success in the professional career.
DRESS CODE
11. 4

In professional life it is important to look presentable because personal appearance counts. How you
look can be a major factor in how you are perceived by others. How you look, talk, act and work
determine whether you are a professional or an amateur. The way you dress, speaks volumes about
who you are as a person and as a professional. Whenever you enter a room for the first time, it takes
only a few seconds for people you have never met to form perceptions about you and your abilities.
Your clothes and body language always speak first. So it is important that your image gives people the
right impression.
Guidelines for Professional Dress of Company Secretaries

To enhance the visibility and brand building of the profession and ensuring uniformity, the
Council of the Institute of Company Secretaries of India has prescribed the following guidelines for
professional dress for members while appearing before / judicial/quasi-judicial bodies and
tribunals:
a) The professional dress for male members will be Navy Blue suit and white shirt with a tie
(preferably of the ICSI) or navy blue buttoned-up coat over a pant or a navy blue safari suit.
b) The professional dress for female members will be saree or any other dress of a sober colour
with a Navy Blue jacket.
c) Members in employment may wear the dress/uniform as specified by the employer for all
employees or if allowed the aforesaid professional dress.
d) Practising Company Secretaries appearing before any tribunal or quasi- judicial body should
adhere to dress code if any prescribed for appearing before such tribunal or quasi-judicial
body or if allowed the aforesaid professional dress.
Professional Etiquette is the fine art of behaving in front of others. It is a set of practices and forms
etiquettes which are followed in a wide variety of situations. Many people consider it to be a branch
of decorum, or general social behavior. Each society has its own distinct etiquette, and
various cultures within a society also have their own rules and social norms.

Practicing good professional etiquette is necessary for professional success in the
emerging business scenario which is constantly changing thus making the market place
more competitive. Every corporate professional must practice some basic etiquette tips
to go up the ladder of success in the workplace.

Even if the academic knowledge and skills aer spectacular, not knowing proper etiquette
required to be successful in the professional career could be road block preventing you to
achieve success in the professional life and business relationship.
Dressing etiquette With every organization program comes the inevitable question: What do I wear?
Knowing what to wear, or how to wear something, is key to looking great in any event.
v Always wear neat and nicely pressed formal clothes. Choose corporate shades while
you are picking up clothes for your office wear.
v Ties for men should compliment.
v Women should avoid wearing exposing dresses and opt for little but natural make-
ups.
v Heels should be of appropriate or modest height.
11. 5

v Men need to keep their hair (including facial hair) neatly trimmed and set.
v Always polish your shoes.
v Keep your nails clean.
v Wear clothes which you are comfortable in and can carry well. This is very important
while you are in a business meeting or client presentation.
Handshake Etiquette begins with meeting and greeting. A handshake is a big part of making a
etiquette positive first impression. A firm shake is an indication of being confident and assertive.
The following basic rules will help you get ahead in the workplace:
v Always rise when introducing or being· introduced to someone.
v Shake hands with your right hand.

v Shake hands firmly (but not with Cl bone crushing or fish-limp grip), and with only
one squeeze.
v Hold it for a few seconds (only as long as it takes to greet the person), and pump
up and down only once or twice.
v Make eye contact while shaking hands.
Communication v Always speak politely. Listen to others attentively. A good listener is always dear to
etiquettes every client.
v While speaking over telephones, always greet the other person while starting
and ending the call.
v Speak only when the other person has finished talking instead of interrupting in
between.

v Show interest in what other people are doing and make others feel good.
Stand about an arm's length away while talking to others.
v Question another person in a friendly, not prying, manner.
v Make eye contact when talking to others.
v Be polite. Avoid foul language, unkind statements, and gossip.
v Keep your conversations short and to the point.
v Maintain your sobriety and politeness even if the client speaks something offensive or
rude and avoid replying back in harsh tone/words.
Invitation How you respond to an invitation says volumes about your social skills. It reflects
Etiquette negatively on your manners if your response (or lack of response) to an invitation costs
time or money for your host.
v Reply by the date given in the invitation, so that the host or hostess knows what kind
of arrangements to make for the event, food is not wasted, and unnecessary expense
is eliminated.

v If an RSVP card is not included, respond by calling or sending a brief note.
v If you cancel after initially accepting an invitation, phone your regrets as soon as
possible. Send a note of regret following the phone conversation.
v Don't ask for permission to bring a guest unless the invitation states.
v Arrive at the event promptly, but not too early.
v Mingle and converse with the other guests.
v Don't overstay your welcome.
v Extend your thanks as you leave.
Dining Etiquettes v Always be courteous while official dinners. Offer the seat to your guest first. If you
11. 6

are the guest, be punctual and thank the host for the dinner.
v Wait until you receive your host's signal.
v Initiate conversations while waiting for the food.
v Never begin eating any course until everyone has been served or the host/hostess
has encouraged you to do so.
v Chew quietly; don't speak with your mouth full.
v Avoid pointing the knife or fork towards the other person while eating and speaking.
v Allow your guest to select the menu and wine.
v If something unwanted has gone to your mouth, place the napkin in front of your
mouth tactfully and bring it out instead if putting your hand inside the mouth to get
rid of it.
v Learn the basic table manners before you go out to dine with a potential
client or an important business meet.

COURT CRAFT
Company Secretaries act as an authorized representative before various Tribunals/quasi judicial
bodies. It IS necessary for them to learn art of advocacy or court craft for effective delivery of results
to their clients when they act as an authorized representative before any tribunal or quasi judicial
body.
For winning a case, art of advocacy is important which in essence means to convince the judge and
others that my position in tile case is the proper interpretation. Advocacy/court craft is learned when
we enter the practicing side of the profession. The aim of advocacy is to make judge prefer your
version of the truth.

Apart from the legal side of the profession, advocacy is often useful and sometimes vital, in client
interviewing, in negotiation and in meetings, client seminars and public lectures. It is a valuable and
lifelong skill worth mastering.
Technical and legal knowledge about the area in which Company Secretaries are acting is essential.
Better their knowledge, the better their advocacy skills and the greater their impact Good advocacy or
negotiating skills will not compensate for lack of appropriate knowledge.

PREPARATORY POINTS
There are certain basic preparatory points, which a Company Secretary should bear in mind when
contacted by a client.
v Take minute facts from the client;
v Lend your complete ears to all that client has to say;
v Put questions to the client while taking facts so that correct/relevant facts can be known;
v Convey to the client about exact legal position in context of 'relief sought by the client;
v Give correct picture of judicial view to the problem posed by the client.

Basic skills as regards Advocacy: CS should be able to formulate and present a coherent submission
based upon facts, general principles and legal authority in a structured and persuasive manner.
11. 7

Following are the basic skills A CS should carry during advocacy before tribunals/ quasi-judicial
authority:
v Identify the client’s goals
v Identify and analyze factual material
v Identify the legal context in which factual issue to each other
v State in summary form the strength and weaknesses of the case from each party’s perspective
v Develop a presentation strategy
v Outline the facts in simple narrative forms
v Structure and present in simple forms the legal framework of the case
v Structure the submission as a series of propositions based on the evidence
v Identify, analyze and assess the specific communication skills and techniques and tactics of
examination, cross examination and re-examination
v Demonstrate an understanding of ethics, etiquettes and conventions of advocacy.

DRAFTING OF PLEADINGS
Pleadings could be both written and oral. Mastering both the kinds of pleadings is must for effective
delivery of results to the clients. Some of the important factors, which may be borne in mind while
making written pleadings, are as under:
v Quote relevant provisions in the petition and excerpts of observations made by the Courts
relevant to the point;
v Draft prayers for interim relief in such a manner which though appears to be innocuous but satisfy
your requirements;
v Do not suppress facts;
v Highlight material facts, legal provisions and Court decisions, if any;
v State important points at the outset together with reference to relevant provisions /judgments.

If you are v File your reply to the petition at the earliest opportunity;
opponent: v Take all possible preliminary contentions together with reference to relevant legal point
and judgments;
v Submit your reply to each paragraph of the petition.
If you are for v File your rejoinder upon receiving the reply at the earliest opportunity;
the v Meet clearly with the specific points raised by the opponent in the reply affidavit.
petitioner:
Oral Effective oral pleadings are relevant both at the stage of preparation of the case before actual
Pleadings: presentation and also at the stage of actual presenting of the case before the tribunals and
other quasi judicial bodies. Following aspects could be relevant at both these stages:
v Preparation before presentation of the case;
v Carefully read your petition, provisions of law and judgements;
v Jot down relevant points on a separate sheet of paper together with relevant pages of the
compilation;
v Keep copies of judgments to be relied ready for the Court and for your opponent(s).

WHILE PRESENTING YOUR CASE
v Submit a list of citations to the Court Master before opening of case; Start your address with
11. 8

humble note;
v Refer to the order sought to be challenged or reliefs sought to be prayed;
v State brief facts;
v Formulate issues/points, categories them and address them one by one;
v Take each point, state relevant facts, provisions of law and relevant binding decisions;
v Hand over Xerox copies of binding decisions to the Court Master while placing reliance;
v Refer to relevant pages of the compilation, provisions of law and judgments;
v Complete all points slowly but firmly;
v Conclude your arguments by reiterating your points in brief;
v Permit the opponent counsel uninterruptedly. However, if facts are being completely twisted,
interrupt depending upon the relevant circumstances;
v Take instructions from client in advance with respect to alternative reliefs.

AS REGARDS ADVOCACY
Company Secretaries should be able to formulate and present a coherent submission based upon facts,
general principles and legal authority in a structured, concise and persuasive manner. They should
understand the crucial importance of preparation and the best way to undertake it, and be able to
demonstrate an understanding of the basic skills in the presentation of cases before the tribunals.
They should be able to:
v Identify the client's goals;
v Identify and analyze factual material;
v Identify the legal context in which the factual issue arises;
v Relate the central legal and factual issues to each other;
v State in summary from the strengths and weaknesses of the case from each party's perspective;
v Develop a presentation strategy;
v Outline the facts in simple narrative form;
v Structure and present in simple form the legal framework of the case;
v Structure the submission as a series of propositions based on the evidence;
v Identify, analyze and assess the specific communication skills and techniques;
v Demonstrate an understanding of the purpose, techniques and tactics of examination, cross-
examination and re-examination to adduce, rebut and clarify evidence:
v Demonstrate an understanding of the
ethics, etiquette and conventions of
advocacy.
CONDUCT
Duty to the Court:
v A Company Secretary shall, during the presentation of his case and while otherwise acting before a
Court/Tribunal, conduct himself with dignity and self-respect. He shall not be servile and
whenever there is proper ground for serious complaint against a judicial officer, it shall be his
right and duty to submit his grievance to proper authorities.
v A Company Secretary shall maintain towards the Court a respectful attitude, bearing in mind that
the dignity of the judicial office is essential for the survival of a free community.
v A Company Secretary shall not influence the decision of a Court by any illegal or improper means.
Private communication with the judge relating to a pending case is forbidden.
v A Company Secretary shall use his best efforts to restrain and prevent his client from resorting to
11. 9

sharp and unfair practices or from doing anything in relation to the Court, opposing counselor
parties, which the Company Secretary himself ought not to do. A Company Secretary shall refuse to
represent the client who persists in such improper conduct. He shall not consider himself a mere
mouthpiece of the client, but shall exercise his own judgment in the use of restrained language in
correspondence, avoiding scurrilous attacks in pleadings, and using intemperate language during
arguments in Court.
v A Company Secretary shall not enter appearance, act, plead or practice in any way before a
Court/Tribunal or any other Authority, if the sole or any member thereof is related to the
Company Secretary.
v A Company Secretary shall not appear in or before any Court or Tribunal or any other Authority
for or against an organization or an institution, Society or corporation, if he is a member of the
Executive Committee of such organization or institution or society or corporation.
v A Company Secretary should not act or plead in any matter in which he is himself pecuniary
interested.

Duty to Client:
v A Company Secretary shall not ordinarily withdraw from engagements once accepted, without
sufficient cause and unless reasonable and sufficient notice is given to the client.
v A Company Secretary shall not accept a brief or appear in a case in which he has reason to believe
that he will be a witness and if being engaged in a case, it becomes apparent that he is a witness on
a material question of fact, he should not continue to appear if he can retire without jeopardizing
his client's interest.
v A Company Secretary shall at the commencement of his engagement and during the continuance
thereof, make all such full and frank disclosures to his client relating to his connection with the
parties and any interest in or about the controversy as are likely to affect his client's judgment in
either him or continuing the engagement.
v It shall be the duty of a Company Secretary to fearlessly uphold the interest of his client by all fair
and honorable means without regard to any unpleasant consequences to himself or any other. He
shall defend a person accused of a crime regardless of his personal opinion as to the guilt of the
accused, bearing in mind that his loyalty is to the law which requires that no man should be
convicted without adequate evidence.
v A Company Secretary shall not at any time, be a party to fomenting of litigation. A Company
Secretary shall not act on the instructions of any person other than his client or his authorized
agent.
v A Company Secretary shall not do anything whereby he abuses or takes advantage of the
confidence reposed in him by his client.

Duty to Opponent:
v A Company Secretary shall not in any way communicate or negotiate upon the subject-matter of
controversy with any party represented by an Advocate except through that Advocate.
v A Company Secretary shall do his best to carry out the legitimate promise/promises, made to the
opposite-party. '

IMPORTANT PRINCIPLES
11. 10

Some of the important principles of advocacy a Company Secretary should observe include:
v Act in the best interest of the client;
v Act in accordance with the client's wishes and instructions;
v Keep the client properly informed;
v Carry out instructions with diligence and competence;
v Act impartially and offer frank, independent advice;
v Maintain client confidentiality.

ADVOCACY TIPS
Some of the tips given by legal experts which professionals like Company Secretaries should bear in
mind while appearing before Tribunals or other quasi- judicial bodies are given herein below. They
say while pleading, a judge in your pleadings looks for:

Clarity: The judge's time is limited, so make the most of it.
Credibility: The judge needs to believe that what you are saying is true and that you are on the right side.
Demeanour: We don't have a phrase "hearing is believing". The human animal which includes the human
judge, is far more video than audio. The way we collect most of our information is through our
eyesight.
Eye contact: While pleading, maintain eye contact with your judge.
Voice Voice modulation is equally important. Modulating your voice allows you to emphasize the
modulation: points you want to plead. Be very careful about raising your voice. Use your anger strategically,
but use it rarely.
Always be in control of it.
Psychology: Understand judge's psychology as your job is to make the judge prefer your version of the
truth.
Be likeable: At least be more likeable than your opponent. If you can convert an unfamiliar Bench into a
group of people who are sympathetic to you personally, you perform a wonderful service to
your client.
Learn to listen.
Entertain your judge. Humour will often bail you out of a tough spot.

11. 11


PAST EXAM QUESTIONS

Q1. Yuvi Ltd., in a litigation, was levied a penalty by the Company Law Board on 1st February, 2009. It
submitted an appeal to the High Court impugning the penalty order but after the stipulated period.
Can the High Court condone the delay and allow the appeal? Cite case law, if any. (6 marks)

Q2. “Practising of good professional etiquettes is necessary for professional success in the emerging
business scenario.” Discuss. (6 marks)

Q3. Short notes:
• Rule of adverse inference (June 2010, June’11,June 13)
• Representative suit (June 2010)
• Dress code (Dec 2011)
• Arguments on merit (Dec 2013)
• Right to legal representation under companies act 1956 read with the companies act 2013
(Dec 2014)
• Court craft (Dec 2012)

Q4. Amendment of the pleadings to the general rule no pleading no evidence

Q5. In what respect, if any, pleadings in the memorandum of appeals under sections 96 to 99,
Order XLI, sections 100 to 103, 104 to 106, Order XLIII, Rules 1 and 2 and Appeals to
Supreme Court under the Code of Civil Procedure, 1908, differ from the pleadings in
appeals under Articles 132(1), 133 and 134 of the Constitution of India.
(June 2011, June’15)
Q6. Highlight important professional etiquettes necessary for success in career. (Dec 2014)

Q7. State the arguments on preliminary submissions.

Q8. Process of appeal to Securities Appellate Tribunal (SAT) under the SEBI Act, 1992. (Dec’14)

Q9. Etiquettes is the art of behaving in front of others. (Dec 2013)

Q10. Enumerate the appellate authorities under telecom regulatory authority of India Act
1997 & SEBI 1992 (June ‘14)

11. 12

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PREFACE

The Subject, Drafting, Pleading and Appearance (Paper 3) of CS Professional

I promise you to give my 100% to help you in achieving success, subject to

Sr. No. Chapter Name Page No.

1 Judicial and Administrative Framework 1.1 – 1.16

2 General Principles of Drafting and Relevant Substantive Rules 2.1 – 2.15

8 Drafting of Agreements under the Companies Act 8.1 – 8.22

9 Pleadings 9.1 – 9.27

10 Art of Writing Opinions 10.1 – 10.9

11 Appearances & Art of Advocacy 11.1 – 11.12

1. Skeleton delegation: In this type of delegation of legislative power, the enabling

i. travel beyond it, OR

1) Prior consultation with affected people: Interested bodies must be consulted

Modes of control over delegated legislation

1) Delegation may be challenged as unconstitutional: The scope of permissible

It has powers to regulate its own procedures.

Lower Courts or Subordinate courts

ü one for the civil side and

ü 2nd Class Judicial Magistrate Court,

i. Pecuniary: - Depending on Monetary basis.

With the object of preventing courts of concurrent jurisdiction simultaneously trying 2

10)Written Statement: Covered in later part

14)Summoning and Attendance of Witnesses

18)Decree and Execution

ü Manner for collection of evidence

As per Cr. P.C 1973, a criminal trial is of 3 types –

Important features of a warrant case are:

1. Charges must be mentioned in a warrant case

Important points about summons case

1. A summons case can be converted into a warrant case.

Stages of Criminal Trial in a Summons Case

Stages of Criminal Trial in Summary Cases

1) The procedure followed in the summary trial is similar to summons-case.

Even Cr. PC contain elaborate provisions on appeal against a judgement or order of

Review – Covered in later part

Revision – Covered in later part

GENERAL PRINCIPLES OF DRAFTING AND

Basic components of deed

v Adhesive Stamps; and

Secretarial Practice in Drafting Notice, Agenda

PASSING OF RESOLUTIO BY CIRCULATION

Specimen Notice of a Board Meeting

13. Capital Expenditure

of Company cannot be extended.

Ø A duly convened Meeting shall not be adjourned unless circumstances so warrant.

WHO SHALL PRESENT IN GENERAL MEETING ALONG WITH SHAREHOLDERS

WHO WILL SIGN THE PROXY FORM

If Chairman is not available, scrutinizer’s Report shall be submitted to any

2. Minutes of Meetings, if maintained in loose-leaf form, shall be bound periodically at

PRACTICAL ASPECTS OF DRAFTING RESOLUTIONS AND MINUTES

1. Alteration of AOA under entrenchment [Sec 5(3)

DRAFTING AND CONVEYANCING RELATING

If a document purported to be sealed or signed on behalf of the company is

FORMAT OF AGREEMENT OF SALE OF HOUSE PROPERTY

Del - Credere agency:

The Shrink-wrap Agreements

IMPORTANT POINTS IN REGARD TO E-CONTRACTS

Parties to promissory note:

Essential of promissory note: to be a promissory note, an instrument must

"Power of Attorney" includes any instrument (not