CS Professional - Drafting, Pleadings & Appearances cheat sheet

Structure order: title/description, date, parties (with description and address), recitals, operative clauses (testatum), testimonium, signature and attestation, schedules and annexures.

Recitals begin with "WHEREAS" and state existing facts only, never operative covenants; operative clauses begin with "NOW THEREFORE" and use "shall" for obligation, "may" for discretion, "shall not" for prohibition.

Drafting rule of construction: expressio unius est exclusio alterius - express mention of one thing excludes others; contra proferentem construes ambiguity against the drafter.

Noscitur a sociis: a word takes colour from surrounding words; ejusdem generis: general words after specific words are limited to the same class.

Numbering hierarchy: Clause 1, sub-clause 1.1, paragraph (a), sub-paragraph (i); cross-references must match this hierarchy exactly and be checked after every amendment.

Defined terms take initial capitals, are defined at first use or in a definitions clause, and must be used consistently thereafter; undefined capitalised terms are a drafting defect.

Rule against perpetuities and Sections 14, 18 and 23 of the Indian Contract Act, 1872 govern enforceability: free consent, lawful object and lawful consideration are essential.

Drafting conventions: use active voice, singular includes plural (add a General/Interpretation clause), figures with words for amounts, and avoid "and/or" and "hereinafter called" ambiguity.

Every instrument must satisfy the stamp law applicable at the place of execution and the registration requirement under the Registration Act, 1908 for documents compulsorily registrable.

A deed must be (i) in writing, (ii) signed by the executant, (iii) attested by at least two witnesses, and (iv) delivered; in India, a deed of transfer of immovable property must also be registered under Section 17, Registration Act, 1908.

Testatum clause wording: "IN WITNESS WHEREOF the parties have executed this deed on the day, month and year first above written"; testimonium follows signatures and witness attestation.

A deed poll is executed by one party only (e.g., a declaration of trust or change of name); an indenture (now called a deed) is executed by two or more parties.

Sale deed under Section 54, Transfer of Property Act, 1882 transfers ownership on registration; an agreement to sell creates only a right in personam enforceable by specific performance.

Lease vs licence: a lease (Section 105, TPA) creates an interest in immovable property, is transferable and heritable; a licence (Section 52, Indian Easements Act, 1882) is a personal permission, revocable and not transferable.

Gift deed under Section 122, TPA requires acceptance by the donee, is irrevocable, and must be registered; a gift of movable property is valid by delivery without registration.

Mortgage forms under Section 58, TPA: simple mortgage, mortgage by conditional sale, usufructuary mortgage, English mortgage, mortgage by deposit of title deeds (equitable mortgage) and anomalous mortgage.

Power of attorney: general or special; a power of attorney for sale of immovable property must be authenticated and stamped as per Article 48 of the Schedule to the Indian Stamp Act, 1899 and, where executed outside India, attested as required by Sections 32-33, Registration Act.

Wills: Section 63, Indian Succession Act, 1925 requires signature of the testator and attestation by two or more witnesses; probate is compulsory for Hindus, Buddhists, Sikhs and Jains only in the Presidency towns (Section 213).

Memorandum of Association (Section 4, Companies Act, 2013) contains Name, Registered Office, Object, Liability and Capital clauses; alteration of the object clause needs special resolution and, for companies with public offer, postal ballot.

Articles of Association (Section 5) are the internal regulations; Table F of Schedule I applies to companies limited by shares to the extent the articles are silent; articles cannot override the Act.

Board resolution is passed by simple majority of directors present at a validly convened meeting; circular resolution under Section 175 requires approval by majority of directors entitled to vote and is not permitted for matters required to be done at a meeting.

Special resolution requires at least three times the votes cast in favour as against those against (Section 114(2)); ordinary resolution requires a simple majority of votes cast.

Section 179(3) matters (e.g., borrowing money, issuing securities, investing funds, approving financial statements) must be passed by the Board at a meeting, not by circular resolution.

Notice of general meeting: at least 21 clear days' written notice (Section 101); shorter notice permitted with consent of 95% of members entitled to vote at an AGM and 95% at other meetings.

Secretarial Standards SS-1 (Board meetings) and SS-2 (General meetings) issued by ICSI are mandatory; minutes must be recorded within 30 days of the meeting and signed by the Chairman.

Annual General Meeting must be held within six months of the close of the financial year and within 15 months of the previous AGM (Section 96); first AGM within nine months of the close of the first financial year.

Annual return under Section 92 must be filed within 60 days of the AGM with MGT-7 (or MGT-7A for small companies/OPC); financial statements in AOC-4 within 30 days of the AGM.

A statutory notice must state the place, day, date and hour of the meeting, the nature of business, and the full text of every special resolution and explanatory statement under Section 102.

Statutory notice periods: Section 101 (21 clear days); Section 173 (7 days for Board meeting, shorter with independent director consent); Section 169 (special notice 14 days for removal of auditor); Section 140 (14 days for auditor's representation).

Explanatory statement under Section 102 must disclose any concern or interest (financial or otherwise) of every director, manager, key managerial personnel or their relatives, and the reasons for the proposed resolution.

Minutes must contain the date, time, place, names of directors present, names of directors dissenting, and the exact text of resolutions; they must not record the subjective opinion or discussion in a Board meeting.

Minutes of a general meeting must be recorded within 30 days and signed by the Chairman within that period; a copy must be filed with the Registrar in Form MGT-14 within 30 days where a special resolution is passed.

A resolution passed without proper notice is void; the requirement of notice can be waived only with the consent prescribed by Section 101(1) proviso, not by silence.

Drafting of notice: use the imperative "NOTICE IS HEREBY GIVEN" and identify the company, the meeting type, the venue, the record date and the agenda; attach the explanatory statement as an annexure.

Minutes are evidence of proceedings under Section 118(5); they must be kept at the registered office and preserved permanently, with inspection rights for members under Section 118(4).

Resolutions of a company are of three types: ordinary, special and resolutions requiring special notice; unanimous resolutions of members under Section 117(3)(g) require filing with the Registrar.

Core contract structure: identification of parties, recitals, definitions and interpretation, operative obligations, representations and warranties, covenants, indemnity, limitation of liability, termination, governing law and dispute resolution, notices, entire agreement, severability, counterparts, signature blocks.

Boilerplate clauses: entire agreement (merger), severability, waiver (no waiver by delay), assignment, force majeure, confidentiality, non-compete (enforceability limited by Section 27, Indian Contract Act), and third-party rights.

Indemnity under Section 124, Indian Contract Act covers loss caused by the conduct of the promisor; a guarantee under Section 126 requires a distinct tripartite contract and cannot be revoked for future transactions except by agreement or consent.

Arbitration clause essentials: seat and venue, number of arbitrators and appointment method, governing law, language, confidentiality; an arbitration agreement must be in writing (Section 7, Arbitration and Conciliation Act, 1996).

Liquidated damages must be a genuine pre-estimate of loss; Section 74, Indian Contract Act permits reasonable compensation whether or not actual loss is proved.

Loan and security documents: facility agreement, hypothecation deed, pledge agreement (Section 172, Indian Contract Act), guarantee, and debenture trust deed; registration of charges with ROC in Form CHG-1 within 30 days (Section 77, Companies Act, 2013).

Non-disclosure agreement must define confidential information, exclusions, permitted disclosures, term of confidentiality, return/destruction obligations and remedies; survival clause must outlast termination.

Term sheet and MOU: generally non-binding except for confidentiality, exclusivity and governing law clauses; expressly state which clauses bind to avoid ambiguity.

E-contracts: enforceability under Section 10A, Information Technology Act, 2000; electronic signature and digital signature recognition under Sections 3, 3A and 5.

Order VI Rule 1, CPC: pleadings means plaint or written statement; they must contain a concise statement of material facts, not evidence, and the relief claimed.

Order VI Rule 2: every pleading must contain only material facts on which the party relies, and not the evidence by which they are proved; Rule 4 requires the party to state the point of law if any.

Order VII Rule 1, CPC lists plaint contents: name of court, name and description of plaintiff and defendant, cause of action and when it arose, jurisdiction, relief, and valuation for court fees.

Order VIII Rule 1: written statement within 30 days of service of summons, extendable to a maximum of 120 days under the proviso as interpreted in Salem Advocate Bar Association v. Union of India (2005).

Order VI Rule 17: amendment of pleadings at any stage, but no amendment after trial has commenced unless the court concludes it cannot be allowed to prejudice the other side; amendment introducing a new cause of action barred after limitation.

Order II Rule 2: every suit must include the whole of the claim arising from the same cause of action; relinquishment bars a subsequent suit on the same cause.

Criminal pleadings: complaint under Section 200 CrPC (now Section 223 BNSS, 2023) and charge under Section 211 CrPC (Section 234 BNSS); charge must state the offence, the time and place, and the law under which the offence is charged.

Order VI Rule 15: every pleading must be verified by the party or a person acquainted with the facts, and the verification must state which paragraphs are true to knowledge, information or belief.

Plaint rejection grounds under Order VII Rule 11: no cause of action, relief undervalued, insufficient court fee, suit barred by law, or non-compliance with Section 80 CPC notice requirement for suits against the Government.

Advocate's right to appear: Section 30, Advocates Act, 1961 gives every advocate the right to practise in all courts including the Supreme Court, tribunals and quasi-judicial bodies; Section 32 allows appearance by recognised agents.

Vakalatnama must be signed by the client and the advocate, witnessed, and filed with the court; it authorises appearance, acts and applications and may be revoked with leave of the court.

Appearance before tribunals: NCLT/NCLAT (Insolvency and Bankruptcy Code, 2016 and Companies Act, 2013), ITAT (Income-tax Act, 1961), CESTAT (Customs Act, 1962), SEBI SAT; each requires separate enrolment/registration formalities in some cases.

Adjournment and costs: Order XVII CPC regulates adjournments; costs may be imposed for delay; the advocate must be present when the case is called, and absence may lead to dismissal under Order IX or Order XVII.

Court etiquette: address the court as "Your Honour" or "My Lord/My Lady" as per the court's practice; stand while addressing; do not interrupt opposing counsel; seek leave before withdrawing.

Examination: examination-in-chief under Order XVIII Rule 4 CPC by affidavit in civil suits; cross-examination under Section 138, Indian Evidence Act, 1872 (Section 148, Bharatiya Sakshya Adhiniyam, 2023); leading questions permitted in cross-examination under Section 142.

Professional conduct in court: Section 35, Advocates Act punishes professional misconduct; Bar Council of India Rules, 1975 (Part VI, Chapter II) prohibit appearing for both sides, suppress facts, or communicate with the opposite party directly.

Written submissions should be filed with a list of dates, chronology, list of authorities and a synopsis; oral arguments should follow the issues framed under Order XIV CPC.

Contempt: Section 2(c), Contempt of Courts Act, 1971 defines criminal contempt; the advocate must not scandalise the court or obstruct the administration of justice.

Conveyance deed structure: title recitals, description of property with boundaries, consideration, receipt clause, covenants for title, easements, and testimonium; registration under Section 17, Registration Act within four months of execution (Section 23).

Title investigation: examine the chain of title for at least 30 years, encumbrance certificate, revenue records, mutation entries, and search for charges in the ROC and sub-registrar's office.

Sale deed vs agreement to sell: the former conveys title, the latter creates an enforceable right to a future conveyance; stamp duty is payable on the conveyance and on the agreement as prescribed by the State Stamp Act.

Leave and licence agreement: licence fee, security deposit, term, notice period, and prohibition on transfer; a lease exceeding one year must be registered under Section 17(1)(d), Registration Act.

Partnership deed under the Indian Partnership Act, 1932 must state the firm name, partners, capital, profit-sharing ratio, and be registered with the Registrar of Firms under Section 58 for enforceability of certain rights.

Will drafting: testator's identification, revocation of prior wills, appointment of executor, specific and residuary bequests, and attestation by two witnesses under Section 63, Indian Succession Act; codicil for minor alterations.

Trust deed under the Indian Trusts Act, 1882: settlor, trustee, beneficiary, trust property, objects, powers, and vesting clause; a public charitable trust must be registered under the relevant State Public Trusts Act and may seek Section 12A/80G registration under the Income-tax Act.

Affidavits: Order XIX CPC and Section 139, CPC; must be sworn before a person authorised to administer oaths, state the deponent's age and address, and verify the contents paragraph-wise.

Legal notice under Section 80 CPC (two months' notice before suit against Government) and Section 138, Negotiable Instruments Act (15 days' notice after dishonour, followed by a 30-day window to pay).

Bar Council of India Rules, 1975, Part VI, Chapter II: an advocate must not advertise, solicit work, or accept a brief on a contingency fee; fee must not be shared with a non-advocate (Section 34, Advocates Act).

Advocate's duty to the court: not to mislead, not to cite overruled or repealed law, not to withhold material authority, and to disclose all relevant facts; duty to client includes confidentiality, competence and avoiding conflict of interest.

Section 126, Indian Evidence Act, 1872 (Section 132, Bharatiya Sakshya Adhiniyam, 2023): barrister/attorney/advocate cannot disclose communications with a client without consent; privilege belongs to the client.

Professional misconduct under Section 35, Advocates Act is tried by the State Bar Council's Disciplinary Committee, with appeal to the Bar Council of India and then the Supreme Court under Section 38.

Advocacy skills: case theory, issue identification, chronology and list of dates, examination-in-chief, cross-examination (leading questions, one fact per question), and closing argument structured around the burden of proof.

Burden of proof: Sections 101-103, Indian Evidence Act - the party who asserts must prove; onus shifts under Section 106 for facts especially within the knowledge of a person.

Limitation: civil suit limitation under the Schedule to the Limitation Act, 1963 (three years for contracts, twelve years for immovable property); criminal prosecution barred after the period prescribed in Sections 467-473 CrPC (now Sections 514-520 BNSS).

Practical procedure: filing of plaint with court fee, service of summons under Order V CPC, framing of issues under Order XIV, and the order of examination of witnesses under Order XVIII Rule 2.

Legal Aid: Article 39A of the Constitution and the Legal Services Authorities Act, 1987; an advocate is expected to provide pro bono services and cannot refuse a brief on the ground of the accused's poverty.

Bar Council of India Rules, 1975, Part VI, Chapter II: an advocate must not advertise, solicit work, or accept a brief on a contingency fee; fee must not be shared with a non-advocate (Section 34, Advocates Act).

Advocate's duty to the court: not to mislead, not to cite overruled or repealed law, not to withhold material authority, and to disclose all relevant facts; duty to client includes confidentiality, competence and avoiding conflict of interest.

Section 126, Indian Evidence Act, 1872 (Section 132, Bharatiya Sakshya Adhiniyam, 2023): barrister/attorney/advocate cannot disclose communications with a client without consent; privilege belongs to the client.

Professional misconduct under Section 35, Advocates Act is tried by the State Bar Council's Disciplinary Committee, with appeal to the Bar Council of India and then the Supreme Court under Section 38.

Advocacy skills: case theory, issue identification, chronology and list of dates, examination-in-chief, cross-examination (leading questions, one fact per question), and closing argument structured around the burden of proof.

Burden of proof: Sections 101-103, Indian Evidence Act - the party who asserts must prove; onus shifts under Section 106 for facts especially within the knowledge of a person.

Limitation: civil suit limitation under the Schedule to the Limitation Act, 1963 (three years for contracts, twelve years for immovable property); criminal prosecution barred after the period prescribed in Sections 467-473 CrPC (now Sections 514-520 BNSS).

Practical procedure: filing of plaint with court fee, service of summons under Order V CPC, framing of issues under Order XIV, and the order of examination of witnesses under Order XVIII Rule 2.

Legal Aid: Article 39A of the Constitution and the Legal Services Authorities Act, 1987; an advocate is expected to provide pro bono services and cannot refuse a brief on the ground of the accused's poverty.