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Drafting, Pleading

Conveyance

Chapter 1

Drafting :

 What is Draft?

 General Principles of drafting and relevant substantive rules.

 General Principles of Drafting and Relevant Substantive Rules :-

Key points Corporate Executive should keep in mind-

1. He must read the introductory note or the literature on the subject of the instrument.
2. Note down the important requirements of law which fulfilled complete instrument on the subject while drafting.
3. The facts which should be disclosed in the document cannot be suppressed. Nothing is to be omitted or admitted at random.
4. A company being a legal entity. The document is executed a person duly authorised by the directors by their resolution or by their power of attorney.
5. The format of documents adopted adheres to the customs and conventions in vogue in the business community or in the ordinary course of legal transactions. For any change in the form of such document, use of juridical and technical language should invariably be followed.
6. The order of the draft should be strictly logical. Legal language should be, to the utmost possible extent, precise and accurate. The draft must be readily intelligible to laymen. All the time the draftsman must keep his eye on the rules of legal interpretation and the caselaw on the meaning of particular words and choose his phraseology to fit them.
7. Document should be supported by the schedules, enclosures or annexures to the material facts.
8. Use concrete words.
9. Write short sentences.
10. Prepare a outline. Fowlers' five rules of drafting as follow as –
11. Prefer the familiar words.
12. Prefer the concrete word avoid abstract words.
13. Prefer the single word avoid synonyms words.
14. Prefer the short word rather than long words.
15. Prefer the Saxon word rather than Roman.
16. Prefer active voice to the passive voice in the drafting of documents.

Other rules –

1. Sketch or outline the contents of a document before taking up its drafting. This rule is suggested by Mr. Davidson,a celebrated authority on conveyancing in his book on Conveyancing.
2. Skelton draft and its self-appraisal- The Draftsman should frame “skeleton draft" which should be filled in or elaborated as he proceeds with his work. Once the draft of the document is ready, the draftsman should appraise it with reference to the available facts, the law applicable in the case, logical presentation of the facts.
3. Due care is required in certain documents to ensure it is adhere with applicable laws.

 Rules For Drafting :-

1. Use legal dictionary and ordinary dictionary for ascertaining the meaning of the words.
2. Use current meaning of the words, case laws, where such words or phrases have been discussed, could be quoted in reference.
3. Technical words may be used after ascertaining their full meaning, import of the sense and appropriate use warranted by the circumstances for deriving a technical or special meaning with reference to the context.
4. The draftsman should be able to convey his intention to the readers, in the same way as he wishes them to understand.
5. It is always beneficial to use reference of eminent legal experts’work, while interpreting the statute as it will give the readers clear idea and guidance.

Pleadings Asking a court to grantrelief.Theformalpresentationofclaimsanddefencesbypartiestoalawsuit. The specific papers bywhichtheallegationsofpartiestoalawsuitarepresentedinproperform; specifical ly the complaint of a plaintiffandtheanswerofadefendantplusanyadditionalresponsestothosepapersthat are authorize d by law.

 Civil :

 Plaint :-

A private memorial tendered in open court to the judge, where the party injured sets forth his cause of action. A proceeding in inferior courts by which an action is commenced without original writ. 3 Bl. Comm. 373. This mode of proceeding is commonly adopted in cases of replevin. 3 Steph. Comm. 006.In the civil law. A complaint; a form of action, particularly one for setting aside a testament alleged to be invalid. This word is the English equivalent of the Latin “que- rela,”.

 Particulars to be contained in Plaint :-

1) The names of the Court in which the sui is brought.

2. The name, description and place of residence of the plaintiff.
3. The Name, description and place of residence of the defendant, so far as they can be ascertained.
4. Where the plaintiff of the defendant is a minor or a person of unsound mind, a statement to that affect.
5. The facts constituting the cause of action and when it arose.
6. The facts showing that the Court has the jurisdiction.
7. The relief which the plaintiff claims.
8. Where the plaintiff has allowed a set-off or relinquished.
9. A statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of court-fees, so far as the case admits.

Format of Plaint

IN THE COURT OF Ms. SALONI SINGH, CIVIL JUDGE - 02, PATIALA

HOUSE, NEW DELHI

Civil Suit No. 102 of 2015

(Under Order XXXVII of the Code of Civil Procedure, 1908)

MEMO OF PARTIES

1 ) X

Having its Regd office at

C-9, Radial Road Number 4,

Connaught Place, Delhi 110001 ……………….Plaintiff

Versus

1. Y

Having its regd. Office at

4th Floor, Statesman House,

KG Marg, Delhi

………………Defendant

Delhi Plaintiff

Date: Through

Abc, Advocate

business, economics, companies, international trade, commercial

books, etc.

 That the Defendant is a consultancy firm incorporated under the

Companies Act, of 1956 having its registered office in 4th floor,

Statesman House, Kasturba Gandhi Marg, Delhi.

 That the Defendant approached Plaintiff on June 28, 2014 for supply

of newspapers, magazines and periodicals beginning the month of

July 2014.

 That the plaintiff insisted on an advance amount before commencing

supply.

 That defendant provided a post dated cheque 295959 for July 29,

2014 of Rs. 50,000/- drawn on HDFC Bank, Branch Barakhamba

Road, Delhi. The same was accepted by the plaintiff. This act of

defendant initiated the contract by conduct of parties and so the

plaintiff started supplying various reading materials to the

defendant. The copy of the cheque is annexed herewith and marked

as Annexure A- 1.

 That the plaintiff supplied newspapers, magazines and periodicals in

the month of July to the defendant. The total amount at the end of

the month of July was calculated as Rs. 75,000/- (Rupees Seventy

five thousand only). It was conveyed to the defendant vide

Invoice 2652 dated July 30, 2014 which was duly accepted. A copy is

annexed herewith and marked as Annexure A- 2.

 That vide a letter dated August 01, 2014 the deposited

cheque 295959 was returned dishonoured by plaintiff’s bankers i.e.

HDFC bank, Connaught Place Branch, Delhi. With this the plaintiff

withheld the supply of the books & circulars till defendants pay off

the dues. A copy of the letter is annexed herewith and marked

as Annexure A- 3.

 That the plaintiff requested the defendant several times, orally and

also via electronic mails to make the payment of the outstanding

amount but the defendant on one pretext or the other avoided to the

legitimate requests of the plaintiff without any cause or reason and

never made any payment to the plaintiff. A copy of the trailed mails

are annexed herewith and marked as Annexure A-4.

 That vide legal notice dated December 22, 2014 through registered

post the plaintiff requested defendant to pay an amount of Rs.

75,000/- (Rupees Seventy five thousand only) due towards the

services provided within 3 months (three months) after the receipt

of the letter. A copy the notice is annexed herewith and marked

as Annexure A-5.

 That no communication has been made till date by the defendants

regarding the payment of money.

 That the defendant has not been cooperating and also has failed to

repay their dues of the Plaintiff and hence this present suit.

 That the cause of action accrued to the plaintiff against the

defendant within the jurisdiction of this Hon’ble Court on March 25,

2015 when the legal notice served by the plaintiff upon the

defendant and he has not acted upon it thereafter.

 That the plaintiff is entitled to an interest @ 8.5% (at the rate of

eight and half percent per annum) which is in consonance with the

prevailing market rates and bank rates. The plaintiff claims interest

at the above rate from the defendant from the date it became due

till the date of realization.

 That the present suit being filed by the plaintiffs against the

defendant is the first suit and no such suit has been previously filed,

pending or decided by any court of law on the same subject matter.

 That plaintiff and the defendant works for gain and the entire cause

of action also accrued between the parties at Connaught Place Delhi,

within the territorial jurisdiction of this Hon’ble court. Therefore, this

IN THE COURT OF Ms. SALONI SINGH, CIVIL JUDGE - 02, PATIALA

HOUSE, NEW DELHI

Civil Suit No. 102 of 2015

(Under Order XXXVII of the Code of Civil Procedure, 1908)

IN THE MATTER OF:

X Versus Y

AFFIDAVIT

I, Mr. Aman Jain on behalf of X do hereby solemnly affirm and state as under

that:-

1. That the deponent is the plaintiff in the captioned suit. I am fully conversant

with the facts of the plaint and competent to swear this affidavit on my behalf.

2. That the present appeal has been drafted by my counsel under my instructions

and guidance and the contents of the same are true and correct and are not

being repeated herein for the sake of brevity and to avoid repetition and

prolixity.

3. That the contents of the plaint may kindly be read as part and parcel of this

Affidavit also.

DEPONENT

VERIFICATION:

Verified by me at Connaught Place-Delhi on this 27th day of March 2015, that the

contents of my above affidavit are true and correct to my knowledge, no part of it

is wrong and nothing material facts has been concealed there from.

DEPONENT

IN THE COURT OF Ms. SALONI SINGH, CIVIL JUDGE - 02, PATIALA

HOUSE, NEW DELHI

Civil Suit No. 102 of 2015

(Under Order XXXVII of the Code of Civil Procedure, 1908)

IN THE MATTER OF:

X Versus Y

I, Aman Jain, the Sole Proprietor of X (the plaintiff) do hereby appoint & retain

Advocate Abc (hereinafter called as “the Advocate”) to be my advocate in the said

Suit. I authorize the Advocate to do any or all of the following on my behalf:

1. a) To represent, act and appear for me

2. b) To conduct and prosecute (or defend) the same and all proceedings that may

be taken in respect of any application connected with the same or any decree

of order passed therein

3. c) To sign, file, verify, present, and receive all types of documents including

plaints, statements, pleadings, appeals, cross objections, petitions, applications,

revision, withdrawal, compromise or affidavits

4. d) To withdraw or compromise or submit to arbitration any differences or

disputes that may arise touching or in any manner relating to the said suit

5. e) To deposit, draw and receive money, cheques, cash and grant receipts

thereof

6. f) To do all other acts and things as may be necessary or expedient, in the

opinion of the Advocate, to be done

I do hereby agree to ratify and confirm all acts done by the Advocate or her

substitute in the matter as my own acts, as if done by me to all intents and

purposes.

Dated: March 25, 201 5 Signature

Written Statement

 Written Statement :-

The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence : Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the court, for reasons to be recorded in writing and on payment of such costs as the court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the Court shall not allow the written statement to be taken on record.

3. In reply to para III (2) of the plaint, it is submitted that the notice issued by the plaintiff was received by me on………….. The contents of the notice are vague and false. Since I did not approach the plaintiff for any hand loan and executed promissory note, I did not choose to reply the notice. Hence, the allegations in the notice are denied.
4. In reply to para III (3) of the plaint, it is submitted that I did not borrow any amount from the plaintiff and executed promissory note in favour of him. The allegation of the plaintiff is false and I need not bound to pay any amount to the plaintiff. It is not correct to say that I have borrowed a sum of Rs.25,000/- from the plaintiff and executed a promissory note in favour of him.
5. In reply to Para III (4) of the plaint, it is submitted that since there is no amount is borrowed from the plaintiff and executed pro-note, the figures of outstanding stated in para therein is false and fabricated one.
6. It is submitted that I have never approached the plaintiff for any amount said to have been borrowed by me and executed pro-note. Since we reside in the same street and due to rivalry between our two families regarding some disputes relating to colony problems, the plaintiff has fabricated the pro-note and filed the present suit alleging that I have borrowed a sum of Rs.25,000/- from plaintiff and executed a pro-note. The plaintiff is trying to mislead this Hon’ble Court and made false allegations in the plaint.
7. The other allegations of the plaint which are not specifically admitted herein are denied. The plaintiff is put to strict proof of the same. Hence, it is prayed that this Hon’ble Court may be pleased to dismiss the suit with costs. Counsel for the Defendant Defendant

Verification

I, Appa Rao, S/o ______________ aged about years, Occ: Employee, do hereby declare that the facts stated in paras 1 to 7 are true and correct to the best of my knowledge, information and belief and I believe the same to be true and correct. Hence, verified on this the day of June, 2007 at Hyderabad.

Affidavit