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PROFESSIONAL PROGRAMME DRAFTING, PLEADINGS AND APPEARANCES
Drafting, in legal sense, means an act of preparing the Legal Documents like agreements, contracts, deeds, etc. A proper understanding of drafting cannot be realised unless the nexus between the Law, the facts and the language is fully understood and accepted. Drafting of deeds and documents for various purposes in a company usually forms part of multifacet duties of the Company Secretary. For this purpose, the course contents of this study material have been so designed as to provide practical orientation and develop necessary acumenship in drafting legal documents. Only those deeds and documents have been included which are of direct relevance to the work of a Company Secretary. Further, the literature available on the subject has been found to be unwieldy and it has, therefore, been our endeavour to make the study material tailored made. Every effort has been made to provide a self- contained material and an integrated approach has been adopted throughout. While writing the study material, relevant provisions of the various Acts and Rules made thereunder have been kept in mind. Except where found absolutely necessary, text of the provisions of Bare Act(s), Rule(s), Order(s), etc. have not been produced. This paper presupposes knowledge of substantive law; therefore, students are advised to have thorough knowledge of the same by referring to various Acts mentioned at appropriate places in this study material. This paper also warrants continuous updation in terms of substantive and procedural laws as well as latest judicial pronouncements. Moreover, drafting of petitions, deeds and documents is an art and even acquiring working knowledge in this demands application of skills of higher order. Students are, therefore, advised not only to master the principles and applications of drafting and pleadings, but also keep themselves abreast of latest developments by regularly resorting to reading of at least one of the leading English Newspapers and additional source materials concerning corporate world which are published from time to time. Students are also advised to refer the ‘Student Company Secretary e-bulletin’/’Chartered Secretary’ wherein all important judicial and legislative developments are reported regularly. Although care has been taken in publishing this study material yet the possibility of errors, omissions and/or discrepancies cannot be ruled out. This publication is released with an understanding that the Institute shall not be responsible for any errors, omissions and/or discrepancies or any action taken in that behalf. In the event of any doubt, students may write to the Directorate of Academics in the Institute for clarification at Should there be any discrepancy, error or omission in the study material, the Institute shall be obliged if the same is brought to its notice for issue of corrigendum in the e-bulletin Student Company Secretary.
Detailed Contents 1. Judicial & Administrative framework: Procedure; Jurisdiction and Review; Revisions; Reference; Appellate forum. 2. General Principles of Drafting and relevant Substantive Rules : Drafting, Concept, General Principles and relevant substantive rules thereof; Drafting in simple language, nuances of drafting, common errors and its consequences like litigation, liability. Drafting policies, code of conduct, guidance note, waivers, releases, disclaimers, Basic Components of Deeds, Endorsements and Supplemental Deeds, Aids to Clarity and Accuracy, Legal Requirements and Implications; Supreme Court Rules and other guiding principles for drafting. 3. Secretarial Practices & Drafting : Principles relating to Drafting of various resolutions; Drafting of notices & Explanatory Statements; Preparation of Agenda for meetings; Drafting and recording of minutes. 4. Drafting and Conveyancing relating to Various Deeds and Agreements : Conveyancing in General, Object of Conveyancing- Drafting of Conveyancing agreements, wills, encumbrances and gift deeds. 5. Drafting of agreements, documents and deeds : Drafting of various Commercial Agreements, Guarantees, Counter Guarantees, Bank Guarantees, Outsourcing Agreements, Service Agreements, E-Contracts, Legal License, IPR Agreements; General and Special Power of Attorney; Pre-incorporation Contracts; Share Purchase Agreement; Shareholders Agreements and Other Agreements under the Companies Act, 2013; Drafting of Memorandum of Association and Articles of Associations; Drafting of Provisions for Entrenchment of Specified Provision of Articles; Joint Venture and Foreign Collaboration Agreement, Non-disclosure Agreements ; Drafting of Limited Liability Partnership Agreement, Drafting of Bye Laws for Societies; Drafting Replies to Regulatory Show Cause Notices; Review of critical business documents and press releases; Responding to proxy Advisory Reports, Drafting Response to Media Reports; Drafting and review of crisis communications, presenting complex legal subjects to simple business oriented language. 6. Pleadings : Pleadings in General; Object of Pleadings; Fundamental Rules of Pleadings; Civil: Plaint Structure; Description of Parties; Written Statements, Interlocutory Applications, Original Petition, Affidavit, Execution Petition and Memorandum of Appeal and Revision, Petition under Articles 226 and 32 of Constitution of India, Special Leave Petition; Criminal: Complaints, Criminal Miscellaneous Petition, Bail Application and Memorandum of Appeal and Revision; Drafting of Affidavit in Evidence;
Under the Constitution, the primary function of the legislature is to make law, that of the executive is to execute law and that of the judiciary is to enforce the law. In view of the multifarious activities of a welfare state, the legislature cannot work out all the details to fit the varying aspects of complex situations. It must necessarily delegate the working out of details to the executive or any other agency. Therefore, one of the most significant developments of the present century is the growth in the legislative powers of the executives. There is no such general power granted to the executive to make law, it only supplements the law under the authority of legislature. The objective of the lesson is to introduce the students regarding: – Legislative Functions of Administration – Types of Tribunals/Quasi-Judicial Bodies – Types of Courts – Procedural aspects of working of Civil Courts – Procedural aspects of working of Criminal Court – Appellate Forum – Reference, Review and Revisions under CPC
Drafting may be defined as the synthesis of law and fact in a language form. The importance of the knowledge about drafting and conveyancing for the corporate executives has been felt particularly for the three reasons viz., obtaining legal consultations; for carrying out documentation departmentally and for interpretation of the documents. Knowledge of drafting and conveyancing for the corporate executives is also essential for doing documentation departmentally. An executive can make a better document with all facts known and judging the relevance and importance of all aspects to be covered therein. A number of documents are required to be studied and interpreted by the corporate executives. In India, in the absence of any legislation on conveyancing, it becomes imperative to have knowledge about the important rules of law of interpretation so as to put right language in the documents, give appropriate meaning to the words and phrases used therein, and incorporate the will and intention of the parties to the documents. It is expected that, at the end of this lesson, student will, inter- alia, be in a position to: – Drafting, its meaning – Conveyancing, its meaning – Drafting and Conveyancing: Distinguished vii – Distinction between Conveyance and Contract – General Principles of Drafting – Legal Implications and Requirements – Components of Deeds
A company is an artificial judicial person created by law having its own distinct entity form and capable of entering into contracts. Though company is bestowed with the characteristic of separate legal entity but it cannot take decision on its own. It is capable of acting in its own name, entering into contracts. It is capable of owning and holding property in its own name, sue others and to be sued by others in its name. 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. Members or directors of a company can exercise their powers and can bind the company only when they act as a body at a validly convened and held meeting. As a company secretary you need to guide the members on the conduct of affairs of the company and facilitate the convening of meetings and attend Board and Committee meetings and maintain minutes of these meetings. The objective of the lesson is to facilitate the students to acquaint with: – Collective decision making process in companies – Secretarial Standards- Introduction – Secretarial Standard on Board Meetings – Secretarial Standard on General Meetings – Important points to be remembered while drafting notice of Board Meeting – Practical Aspect of Drafting Resolutions and Minutes Lesson 4-Drafting and Conveyancing Relating to Various Deeds and Documents (I) An agreement which is enforceable at law is called a contract. Generally when a contract is reduced to writing, the document itself is called an agreement. A company has to execute countless commercial agreements and other contracts during the course of its business. It is very much desirable and useful to keep in view certain important points in regard to the drafting of contracts, particularly commercial and international trade contracts. There is no particular form prescribed for the drawing up of trade contracts, except that they must fulfil 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. A contract may be hand written, type written or printed. It may be as brief or as detailed as the circumstances of a particular trade transaction demand. The purpose of the lesson is to familiarize the students with
Property has, always, been on the fundamental elements of socio economic life of an individual. Transfer of Property means an act by which a living person conveys property in present, or in future, to one or more other living persons, or to himself and one or more other living persons and “to transfer property” is to perform such an act. The law relating to transfer of property is governed by the Transfer of Property Act, 1882. 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. Lease is a contract between lessor and lessee for the fixed term for the use on hire of a specific asset selected by lessee. Lessor retains ownership of the assets and lessee has possession and use of the asset on payment of specified rental over a period. It is a sort of contractual arrangement between the two parties whereby one acquires the right to use the property called “lessee” and the other who allows the former the right to use his owned property, called the “lessor”. Thus, lease is a contractual arrangement, it originates from a contract between the lessor and lessee and is regulated by the terms, conditions and covenants of such contract
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. The deed of assignment stipulates what kind of rights have been assigned. An important aspect of intellectual property laws deals with assignment agreements. An assignment agreement is an intellectual property (IP) transaction that deals with the ownership and disposition of intellectual property rights as well as with the control over the use of or access to intellectual property. An instrument of trust is drafted either as a deed poll or as a regular deed between the author of trust and the trustee. Where trustees are strangers and a transfer of property is involved, it is better to draft the deed as a deed between the author of trust and the trustees. Where the author is to be the trustee himself and the deed requires a mere declaration of trust, it is drafted as a deed poll. It is expected that, at the end of this lesson, student will, inter- alia, be in a position to: – Deeds of Assignment – Assignment of Patents, – Assignment of Trade Marks – Assignment of Copyrights – Assignment of Business and Goodwill – Partnership Deeds – Trust Deeds
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. Memorandum of association of the company is the fundamental formation document. It is the constitution and charter of the company. It contains the basic conditions on the strength of which the company is incorporated. Articles are rules and regulations for management of internal affairs of the company. It constitutes a contract between the company and its members and members inter se. It is framed with the object of carrying out aims and objects of the company as contained in Memorandum. Shareholders’ agreements (SHA) are the result of mutual understanding among the shareholders of a company to which, the company generally becomes a consenting party. Such agreements are specifically drafted to provide specific rights, impose definite restrictions over and above those provided by the Companies Act. The objective of the lesson is to facilitate the students to acquaint with: – Promoters’ Contract-Pre- Incorporating Contracts – Drafting of Memorandum – Drafting of Articles – Underwriting Contract – Shareholders Agreement
Order 6, Rule 1 of Civil Procedure Code (C.P.C.) defines ‘pleading’. It means either a plaint or a written statement. The object of a pleading which aims at ascertaining precisely the points for contention of the parties to a suit. The rules of pleading and other ancillary rules contained in the Code of Civil Procedure have one main object in view. It is to find out and narrow down the controversy between the parties. The function of pleadings is to give fair notice of the case which has to be met so that the opposing party may direct his evidence to the issue disclosed by them. Pleadings are, therefore, the foundation of any litigation, and must be very carefully drafted. It is expected that, at the end of this lesson, student will, inter- alia, be in a position to: – Fundamental Rules of Pleading – Plaint Structure – Description of the Parties – Written Statement – Requirement of Written Statement – How to draft a Written Statement – Affidavit
A legal opinion is a written statement by a judicial officer or a legal expert based on giver’s professional understanding of a particular aspect of any matter based on legal principles. A person might want to know the correct legal position on a matter of interest or the likelihood of his winning a case if he initiates legal proceedings based on the information that he has supplied to the expert. An effective and legally sound legal opinion has an immense value. It can show where a party stands in a given factual matrix when looked from a legal perspective and also save time and money spent in futile litigation proceedings. The obligation of an opinion giver to exercise diligence in determining the factual and legal bases for an opinion is implicit in every opinion letter. The first rule is always to commence the opinion by setting out the facts that have been given or have been presumed from the instructions given. Adopting the practice of commencing opinion by outlining the facts upon which one is advising serves another purpose as well. It crystallises those facts in one’s mind, visualises any gaps as to which one may need to take further instructions or make assumptions and, where issues of fact are involved, suggests areas which need attention. The objective of the lesson is to introduce the students regarding: – Case for opinion writing – Types of Legal Opinion – Form and Elements of the Opinion Letter – Expression of the Opinion.
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