icsi-wirc 46th msop (group no.4) group 4.pdf · group 4 - corpus juris 3. powers such quasi...

ICSI-WIRC 46th MSOP (Group No.4)

Group 4 - Corpus Juris 1

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A body established to settle certain types of disputes and

to reduce the workload of Courts.

A court of Justice, often one set up to look into a specific

matter.

An assembly (including one or more judges) to conduct

judicial business.

Constitutional Scheme for Setting Up of Tribunals:-

Articles 323A and 323B

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Powers

Such quasi judicial bodies usually have powers of adjudication

in such matters as:

• breach of discipline

• conduct rules

• trust in the matters of money or otherwise.

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Quasi Judicial v/s Judicial Bodies

• Judicial decisions are bound by precedent in common law, whereas quasi-

judicial decisions usually are not so bound;

• Judicial decisions may create new law, whereas quasi-judicial decisions

must be based on conclusions of existing law;

• Quasi-judicial bodies need not follow strict judicial rules of evidence and

procedure;

• Quasi-judicial bodies must hold formal hearings only if mandated to do so

under their governing laws or regulations.

• A court may not be a judge in its own cause, but a quasi-judicial body may

both be a party in a matter and also issue a decision thereon;

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Company Secretaries have been recognized to appear before various Tribunals such as:

1. Company Law Board

2. Securities Appellate Tribunal

3. Competition Commission

4. Telecom Dispute Settlement and Appellate Tribunal

5. Consumer Forums

6. Tax Tribunals etc.

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National Company Law Tribunal (NCLT) is a proposed quasi-

judicial body in India that will govern the companies in India

It will be established under the Companies Act, 2013 and is a

successor body of the Company Law Board. The principal bench of

NCLT is expected to be established in New Delhi.

NCLT will have the same powers as assigned to the erstwhile CLB

(which are mostly related to dealing with oppression and

mismanagement), Board for Industrial and Financial

Reconstruction (BIFR)(revival of sick companies) and powers related

to winding up of companies(which was available only with the High

Courts.

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Advocating for what you believe in

is crucial- if you don’t ask for it,

people assume you don’t need it!

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Art of advocacy is important which in essence means to convincethe judge and others that my position in the case is the properinterpretation .

Advocacy/court craft is learned when we enter the practicising sideof the profession.

Learning of art of advocacy is vital for effective delivery of results.

The aim of advocacy is to make judge prefer your version of thetruth.

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Principles of Advocacy

• To act in the best interest of the client;

• To act in accordance with the client’s wishes and instructions;

• To keep the client properly informed;

• To carry out instructions with diligence and competence;

• To act impartially and offer frank, independent advice;

• To maintain client confidentiality.

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Duty to the Court

• To conduct himself with dignity and self-respect.

• To not influence the decision of the the court by any illegal or

improper means.

• To not act or plead in any matter in which he is himself

pecuniarily interested.

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Duty to Client

• To not withdraw from engagement once accepted without

sufficient cause.

• To Fearlessly uphold the interest of his client by all fair and

honorable means,

• To not act on the instructions of any person other than his

client or his authorised agent.

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Duty to Opponent

• To not in anyway communicate or negotiate upon the subject

matter of controversy of any party represented by an advocate

except through that advocate.

• To carry out the legitimate promise/promises made to the

opposite party.

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Dress Code as per CLB Regulations, 1991

• Dress for the members for the authorised representatives and for the

parties in person –

(1) For the members - The dress for the members will be suit with

a tie or buttoned up coat over a pant.

(2) For the authorized representatives - An authorised

representative who is a professional, shall appear before the Bench

in his/her professional dress, if any, and if there is no such dress –

(a) In the case of male, a suit with a tie or buttoned-up coat over a

pant.

(b) In the case of female, in a saree or any other dress of a sober

colour.

(3) For parties in person - Parties appearing in person before the

Company Law Board shall be properly dressed.

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Advocacy Tips

While pleading, a judge in your pleadings looks for:

- Clarity - Voice modulation

- Credibility - Psychology

- Demeanor - Be likeable

- Eye contact - Learn to listen

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Drafting, in legal sense, means an act of preparing the legal

documents like agreements, contracts, deeds etc.

Drafting may be defined as the synthesis of law and fact in a

language form.

Drafting, therefore, is first thinking and second composing.

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Prefer the familiar word to the far fetched

Prefer the concrete word to the abstract

Prefer the single word to the circumlocution

Prefer the short word to the long

Prefer the Saxon word to the Roman

Always prefer active voice to the passive voice in the drafting

of documents.

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Double and doubtful meaning of the intentions given shape in

the document.

Inherent ambiguity and difficulties in interpretation of the

documents.

Difficulties in implementation of the objectives desired in the

documents.

Increased litigation and loss of time, money and human

resources.

Misinterpretation of facts leading to wrongful judgement.

Causing harm to innocent persons.

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Reduce the group of words to single word;

Use simple verb for a group of words;

Avoid round-about construction;

Avoid unnecessary repetition;

Write shorter sentences;

Express the ideas in fewer words;

Prefer the active to the passive voice sentences;

Choose the right word;

Know exactly the meaning of the words and sentences you arewriting; and

Put yourself in the place of reader, read the document andsatisfy yourself about the content, interpretation and the senseit carries.

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Avoid the use of words of same sound.

When the clause in the document is numbered it is convenient to refer to

any one clause by using single number for it.

Negative in successive phrases would be very carefully employed.

Draftsman should avoid the use of words "less than" or "more than",

instead, he must use "not exceeding".

If the draftsman has provided for each of the two positions to happen

without each other and also happen without, "either" will not be sufficient;

he should write "either or both" or express the meaning of the two in other

clauses.

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Application/ Petitions

Written Statement

Affidavit

Counter Affidavit

Reply

Rejoinder

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Three parts of drafting of Appeal-

Formal part (Memorandum of appeal)

Material part (Ground of appeal)

Relief sought for (Prayer)

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The word 'Counsel' has its origin in the Latin word 'consilium'

which means advice.

Counselor w.r.t. legal profession means who gives legal advice

and handles legal affairs of client, including on his or her

behalf in civil, criminal or administrative action &

proceedings.

Counselee is a person who is counseled.

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Client Interviewing is a lawyer - client meeting, the client opens up

and talks his problem and concerns and expresses his expectations.

The lawyer listens, notes down and questions the client for

necessary information.

There is a sharing of information, views and needs through verbal

communication.

It is the life blood for effective counseling.

It is continuous process as the matter proceeds.

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To know the facts.

Assessment of legal problem.

Identification of alternatives.

Organized Decision Making process..

Building relationship with client.

Understanding the expectation of Client

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Care shall be taken to speak in client's language. A lay man cannot appreciate legal terminology. It shall be the duty of the lawyer to assist the client in understanding his rights and duties.

Explain Options available in the situation with cost & consequences.

Explain the weakness of the case.

Assistance in making choice from available options. No option shall be forced upon the client.

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Software

Patience

Careful listeners

Communication

Manner & tone of Questioning

Hardware

Knowledge

Procedure

Logical & Critical thinking

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Mock Counseling exercises.

Observing real interviews & counseling in advocate’s office

Attending workshops on Counseling.

Seminars on Counseling.

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SECURITIES EXCHANGE BOARD OF INDIA (SEBI)

V/S

SAHARA INDIA REAL ESTATE CORPORATION

LIMITED

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THANK YOU

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