DRAFTING, PLEADINGS & APPEARANCES - NCLT

DMD ADVOCATES

April 2016

1

• Application: It means any application filed under the

provisions of the Act, and also includes any application

seeking interim orders before the Tribunal and shall also

include a transferred application

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

pleading, plea, motion, application, request, exhibit, brief,

memorandum of law, paper, or any other instrument in

paper form or electronic form and other legal process,

and registers, whether issued, sent or kept in pursuance

of the Act and Rules made there under or any other Act

or otherwise; but, does not include orders of the Tribunal*Also defined under Indian Evidence Act, 1872, Indian Penal Code 1860, and General Clauses Act, 1897

2DMD ADVOCATES

DEFINITIONS: DRAFT NCLTRULES

• EDGAR (Electronic Data Gathering, Analysis and

Retrieval) Filer Manual: It means the current version of

the manual prepared by the Tribunal setting out the

technical format requirements for an electronic filing of

Application or other documents with the Tribunal

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

document with the Registry of the Tribunal by means of

an online computer transmission of the document in

electronic form other than by means of fax or e-mail

3DMD ADVOCATES

DEFINITIONS: DRAFT NCLTRULES Contd…

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

Appeal or a Complaint in pursuance of which any

proceeding is commenced before the Tribunal.

• Pleadings: It means and includes application including

interlocutory applications, petitions, appeal, revisions,

reply, rejoinders, statements, counter claim, additional

statement supplementing the original applications and

reply statements including electronic form.

4DMD ADVOCATES

DEFINITIONS: DRAFT NCLT RULES Contd…

MYTHS

• Only lawyers can draft

• I have been practicing as a Company Secretary for 20

years. It’s difficult to venture into a new arena

• Drafting is a burden

• I have not studied the subject(s)

5DMD ADVOCATES

• Black’s Law Dictionary

The skill, technique, and practice of preparing operativelegal documents such as statutes, rules, regulations,contracts and wills setting forth the rights, duties,privileges and liabilities of people and legal entities

• Oxford Dictionary

Drafting is a specific type of legal writing dealing withlegislation, instruments, or other legal documents thatare to be construed by others. Statutes, rules,regulations, contracts and wills are examples of legaldrafting

6DMD ADVOCATES

DRAFTING: MEANING

• Formal statement of cause of action or defense– Civil pleadings

– Criminal pleadings

– Writs

• The backbone of proceedings before court ortribunal

• Functions– Notify the Parties/ Court/ Tribunal of the

respective Claims/ Defenses/ Counter-Claims

7DMD ADVOCATES

PLEADING: MEANING

– Reduce the controversy to clear-cut, well-

defined Issues of Fact or of Law

– Operate as an aid to the Court in admitting or

rejecting evidence

– Serves as a Formal Basis for the Judgment

8DMD ADVOCATES

PLEADING: MEANING Contd…

ORDER VI – Plaint, Written Statement & Replication.

• Order VI – Pleadings

– Rule 1 – Material Facts and not Evidence

– Material Facts v Material Particulars – facts

that required to be proved and facts by means

of which they are proved

– All necessary and material facts – concept is

that the other party should not be taken by

surprise

– Rule 2 – Numbered Paragraphs

9DMD ADVOCATES

CPC 1908

• Order VII – Contents of Plaint

– Name of Court

– Details of Plaintiff

– Details of defendant(s)

– If Plaintiff/Defendant is a Minor or Lunatic, a Statement to that Effect

– Material Facts – Cause of Action and When It Arose

– Jurisdiction

– Relief

– Set Off/ Relinquished Claim.

– Value of Suit for Court Fee and Jurisdiction

10DMD ADVOCATES

CPC 1908 Contd….

The minute you read something that you can'tunderstand, you can almost be sure it was drawn upby a lawyer

• Succinct/ Crisp sentence formation but Dignified and Powerful

• Headings and sub-headings

• Paragraphing, spacing, and indenture

• No spelling/ grammatical/ typing mistake

11DMD ADVOCATES

QUALITIES: GOOD DRAFTSMAN

• Avoid

– Pronouns

– Repetition

– Complexity

12DMD ADVOCATES

QUALITIES: GOOD DRAFTSMAN Contd….

KNOWLEDGE

• Familiarize yourself with the facts

• Peruse the law

• Peruse the case law

13DMD ADVOCATES

HOW TO BEGIN

• Know Your Audience

• Pleadings are addressed to the Court and never to the other party

– Avoid unprofessional language – the court is bound to or has to, vexatious, etc.

– Name calling and repeated legal threats in a pleading make little sense and is best avoided

– Using slang is to be avoided

– Coherency in narration

14DMD ADVOCATES

LANGUAGE

• FORM IS IMPORTANT— MAKE IT LOOK GOOD

• CONTEXT – Readers understand much more easily if

they have a context

• Front Load Your Document

• Build a Container

• Headings are Signposts — They Should Inform

15DMD ADVOCATES

FORM Vs. SUBSTANCE

• Avoid Over chronicling — most dates are unimportant

• Write short and numbered paragraphs

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

paragraph

• Keep it short — the page limit is your friend

• Conform to the format accepted by the Court/ Tribunal

16DMD ADVOCATES

FORM Vs. SUBSTANCE Contd…

• State facts not law

• Plea mixed questions of fact and law and not

conclusions

• Material particulars

• Effect of Document(s)/ Annexures/ Exhibits

• Points of Law may be mentioned very briefly IF

ABSOLUTELY NECESSARY

17DMD ADVOCATES

CONTENT

• Know Your Case

• Peruse the Plaint Carefully

• Find Defects

– Cause of action

– Technical defects

– Jurisdiction

– Contradictions

– Case law, if relied upon in pleadings, if overturned or

appealed against

18DMD ADVOCATES

PREPARING FOR DEFENSE

• Peruse the case law

• Specific traverse with clear reference to the point in

dispute

19DMD ADVOCATES

PREPARING FOR DEFENSE

20

• Gather all facts

• Prepare an outline

• Use single principle of division

• Divide the subject matter into major topics

• Arrange matters in a logical sequence

• Give appropriate headings

• Clear writing

SKILLS OF A GOOD DRAFTSMAN

DMD ADVOCATES

21

• Proper usage of words

• Avoid gender-specific words

• Short sentences

• Proper punctuations

• No drafting in the passive voice

• Statements in a positive form

• Emphatic words at the end

SKILLS OF A GOOD DRAFTSMAN

DMD ADVOCATES

22

• Dress Code

• Court Room Etiquettes

• Seating arrangement for petitioner and respondent

• Understand the psyche of the bench

• Know court practice when appearing for the first time

• Effective articulation of arguments

• Thorough preparation/ know your file

• Listening through ears and eyes is critical

• Effective listening

• Congruency between the words, tone and physiology

APPEARANCES

DMD ADVOCATES

QUESTIONS

Sumit GargSenior Associate

&

Divay RastogiAssociate

30 Nizamuddin (East)

New Delhi – 110013, India

Cell: +91-98-186-97266

Email: sumit.garg@dumeds.com

Tel : +91 11 47194400

Fax : +91 11 40506977

24