• 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
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QUALITIES: GOOD DRAFTSMAN
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
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PREPARING FOR DEFENSE
• Peruse the case law
• Specific traverse with clear reference to the point in
dispute
19DMD ADVOCATES
PREPARING FOR DEFENSE
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• 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
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• 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
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• 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
Sumit GargSenior Associate
&
Divay RastogiAssociate
30 Nizamuddin (East)
New Delhi – 110013, India
Cell: +91-98-186-97266
Email: [email protected]
Tel : +91 11 47194400
Fax : +91 11 40506977
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