CS Professional - Drafting, Pleadings & Appearances flashcards

32 cards. Read the term and the definition here. The deck at the top of this page is optional.

Testatum clause

The operative clause in a deed beginning "NOW THEREFORE" that introduces the covenant or grant; it follows the recitals and precedes the testimonium and signature blocks.

Deed poll

A deed executed by only one party, such as a declaration of trust or a deed of change of name; as opposed to an indenture executed by two or more parties.

Expressio unius est exclusio alterius

A rule of construction meaning the express mention of one thing excludes all others; used when interpreting statutes and contracts to infer deliberate omission of unmentioned items.

Ejusdem generis

A construction rule under which general words following specific words are read as limited to things of the same class as the specific words, preventing unintended wide interpretation.

Contra proferentem

Ambiguity in a contract is construed against the party who drafted it; the drafter bears the risk of unclear language and cannot benefit from it.

Mortgage by deposit of title deeds

An equitable mortgage under Section 58(f), Transfer of Property Act, 1882 created by delivering title deeds to a creditor in a notified town with intent to create security.

Usufructuary mortgage

A mortgage under Section 58(d), Transfer of Property Act where the mortgagor delivers possession to the mortgagee, who enjoys the usufruct and appropriates it towards interest and principal.

Section 63 Indian Succession Act

Requires a will to be signed by the testator and attested by two or more witnesses present at the same time; a will need not be registered to be valid.

Table F, Schedule I

The model articles of association for a company limited by shares under the Companies Act, 2013; they apply to the extent the company's own articles are silent.

Section 179(3) powers

Board powers that must be exercised only at a Board meeting, not by circular resolution, including borrowing, issuing securities, investing funds and approving financial statements.

Special resolution threshold

Under Section 114(2), Companies Act, 2013, a resolution passes as special when votes cast in favour are at least three times the votes cast against.

Section 102 explanatory statement

Annexure to the general meeting notice disclosing the nature of business, concern or interest of directors, managers, key managerial personnel and relatives, and reasons for the resolution.

21 clear days notice

Minimum notice period for a general meeting under Section 101, Companies Act, 2013, excluding the day of service and the day of the meeting; shorter notice requires 95% member consent.

Circular resolution

A resolution passed by directors without a meeting under Section 175, Companies Act, 2013; it needs majority approval of directors entitled to vote and cannot cover Section 179(3) matters.

Minutes as evidence

Under Section 118(5), Companies Act, 2013, minutes signed and recorded are evidence of the proceedings; they must be recorded within 30 days and preserved permanently.

Entire agreement clause

A merger clause stating that the written contract supersedes all prior negotiations, representations and understandings, preventing reliance on pre-contractual statements.

Section 74 Indian Contract Act

Provides that a party complaining of breach may receive reasonable compensation for loss, whether or not actual damage is proved, for liquidated damages stipulated in the contract.

Section 27 Indian Contract Act

Declares agreements in restraint of trade void, with exceptions for sale of goodwill and partnership arrangements; it limits the enforceability of non-compete clauses.

Order VI Rule 1 CPC

Defines pleadings as the plaint or written statement; pleadings must contain a concise statement of material facts and the relief claimed, not the evidence.

Order VII Rule 11 CPC

Lists grounds for rejection of a plaint: no cause of action, relief undervalued, insufficient court fee, suit barred by law, or non-compliance with statutory notice.

Order VIII Rule 1 CPC

Requires the written statement within 30 days of service of summons, extendable up to 120 days in total, as interpreted in Salem Advocate Bar Association v. Union of India.

Order II Rule 2 CPC

Requires a plaintiff to include the whole of the claim arising from the same cause of action in one suit; relinquishing part bars a later suit on the omitted part.

Vakalatnama

A written authority signed by the client and advocate, filed in court, empowering the advocate to appear, act and make applications on the client's behalf in the proceedings.

Section 30 Advocates Act

Confers on every advocate the right to practise in all courts, tribunals and quasi-judicial bodies in India, subject to rules of the court concerned.

Examination-in-chief by affidavit

Under Order XVIII Rule 4 CPC, a party examines witnesses in chief by filing an affidavit of evidence, with cross-examination and re-examination following orally.

Section 80 CPC notice

A two-month prior notice to the Government or public officer before instituting a suit against it; non-compliance leads to rejection of the plaint under Order VII Rule 11.

Section 17 Registration Act

Lists documents compulsorily registrable, including instruments of sale, gift, lease exceeding one year and mortgage of immovable property; non-registration affects enforceability.

Section 138 NI Act notice

After dishonour of a cheque, a written demand notice must be sent within 30 days; the drawer gets 15 days to pay, after which prosecution may be filed.

Chain of title search

Examination of the series of transfer documents for at least 30 years, together with encumbrance certificates and revenue records, to verify the vendor's ownership.

Contingency fee prohibition

Bar Council of India Rules, 1975, Part VI, Chapter II prohibit an advocate from agreeing to be paid a share of the subject matter or a fee contingent on success.

Section 126 Indian Evidence Act

Protects professional communications between an advocate and client from disclosure without the client's consent; the privilege belongs to the client, not the advocate.

Section 35 Advocates Act

Empowers State Bar Councils to reprimand or suspend or remove an advocate from the roll for professional or other misconduct, with appeal to the Bar Council of India.