This article is written by Saswata Tewari who is pursuing a Certificate Course in Introduction to Legal Drafting from LawSikho.
Table of Contents
Introduction
The Constitution of India enacted the Companies Act 2013 to ease the process of doing business in India and developing the framework of corporate governance by making the companies more accountable. Companies Act lays down the provisions for the incorporations of a company, states the responsibilities of a company and its directors, and gives detailed information about the procedure of dissolution of a company.
Company law always attracts lawyers since corporate lawyers are well paid in almost every company and therefore it is mandatory for all the corporate lawyers to have a deep understanding of the companies act because this act is relevant in almost all the stages of the life cycle of a company.
The companies act provides for several forums at district, state, and national levels for adjudicating issues relating to Indian companies. At the top is National Company Law Tribunal (NCLT) who is responsible for resolving issues relating to Indian companies. It is established by Section 408 of the companies act.
However, when an individual is aggrieved by any order of the NCLT, can approach the National Company Law Appellate Tribunal (NCLAT). NCLAT is formed under Section 410 of the companies act. But what happens when an individual is not satisfied with the order of the NCLAT. This shall be explained in Section 423 of the Companies Act.
Appeal under Section 423 of the Companies Act
Section 423 of the Companies Act states that if any person is aggrieved by an order of the Appellate Tribunal can file an appeal before the Supreme Court within 60 days from the date of the receipt of the order given by the Appellate Tribunal to the aggrieved person. The Supreme Court may allow the appeal to be filed after the said period of sixty days if it is assuaged that there was an adequate reason for not filing the appeal within the said period and the appeal has to be filed within a further period of sixty days.
About the appeal
The appeal under Section 423 of the Companies Act, 2013 has a particular format to be followed while drafting it. The correct way to draft the appeal and the format is explained in the following paragraphs.
Drafting the appeal
One should be very conscious when writing a legal document and always keep in mind the authorities you’re writing the legal document for. The appeal should be addressed to the concerned judge and the beginning should be written in a humble tone. Most of the appeals begin with ‘Most Respectfully Showeth’ where the detailed information of the facts and circumstances of the case and all the questions are mentioned.
One should always try to keep the appeal short, concise, and clear. Using long, complex words should be avoided at places where simple alternatives can do the work. The appeal should be complete in itself and should contain all the material facts irrespective of the length of the appeal. Nothing important information should be left out which is very significant relative to the case.
One has to ensure that all the information in the appeal is true and accurate. Being accurate is a vital part of writing an appeal. It is to be made sure that all the details given in the appeal are true and detailed. Even a small mismatch of information in the appeal can prove to be destructive to the legal validity of the document.
The correct use of grammar has to be kept in mind while drafting the appeal as not only does it give the right impression to the person reading it but also it avoids any confusion and gives the true meaning to the reader. You have to be very attentive about your punctuation in the same way. Using incorrect punctuation has resulted in creating confusion and distracting the reader.
To avoid any ambiguity, use the active voice while drafting the appeal. The usage of active voice mainly aids in pointing out who must perform what in a sentence. Using passive voice only makes it difficult to understand as it makes the sentences longer and exhaustive and in the process increases the chances for the reader to get distracted by the ambiguity in the writing.
For example “The appeal was drafted by the lawyer” is not as clear as the sentence “The lawyer drafted the appeal “. An active voice only makes the sentence simple to understand.
Another thing to be conscious about is to avoid writing any legal jargon in the appeal. The writing should be kept as simple as possible and it is also advised to keep the writing consistent and to avoid using different words for the same thing again and again, it creates confusion for the reader.
It is very important to use the right imperatives as it is used to establish a legal obligation. Imperatives mainly include words such as:
- Shall
- Must
- Will
- Should
Putting the right imperatives gives your writing clarity and helps to convey the true meaning of the sentence to the readers.
Every single word that you shall write in the appeal should be properly customized to cater to the interests of the client. The appeal should be drafted in a way to overthrow the respondent’s case. All information that is favouring the respondent’s case should be avoided and in case it is important to include that information, write the information in a manner that shall not prove to be harmful to your client’s case.
Synopsis
The synopsis is summarising and giving brief information about the facts of the case. It should be kept in mind that the synopsis should be as concise as possible and should be able to give a clear understanding of the facts of the case. A synopsis should be drafted in such a way that the judge understands the facts of the case just by reading and that too in a very little time. A well-drafted synopsis is a bonus as it impresses the judges and gives an upper hand to the lawyer representing the case.
A synopsis can be drafted by using a numbered list to note down the major points and events in the case and the events should be written in such a manner that it should flow smoothly from one event to another and it becomes easier for the reader to contemplate the points. No excess words or sentences shall be used which are not connected with the main gist of the case.
List of dates and events
Under this heading, the major events in the case are to be penned down chronologically along with the appropriate dates. This makes it easier for the judges to familiarize themselves with the major events of the case and one does not have to go through the entire facts of the case, saving time in the process.
Court and jurisdiction
It is very important to show that the appeal has been filed in the Supreme Court of India and that this appeal falls under the radar of the Appellate jurisdiction of the Supreme Court. Appellate jurisdiction is the authority vested in a court to review, amend, and overrule past decisions given by the other trial or lower courts.
It should be written as:
IN THE SUPREME COURT OF INDIA
(CIVIL APPELLATE JURISDICTION)
(UNDER SECTION 423 OF THE COMPANIES ACT, 2013)
CIVIL APPEAL NO. OF 20 _
Cause title
The cause title in the appeal shall lay down the following details:
- Name of the parties
- Description of the parties
- The capacity of the parties
The purpose of a cause title is to make the judges familiarize themselves with the parties in the case. The Appellant vs Respondent format should be used to describe the parties and mention the names of the parties along with some information such as their residential address and corresponding to the names of the parties write ‘Appellant’ or ‘Respondent’ as per the party.
For example:
Mr. Rohit Wadhwani is an Indian citizen
having his permanent residence at
436, Apcar Garden,
Subhaspally, Kolkata-700024. ….Appellant
Grounds of appeal
Grounds of appeal is an important clause as it reveals those issues which disclose the nature of the dispute of the parties. It is advised to keep the grounds of appeal as brief as possible. A few paragraphs explaining each ground of appeal are considered adequate. Repeating the same things again and again won’t prove beneficial to your client’s case.
The grounds of appeal should include all the sources of grievance and the paragraphs pinpointing the grounds of appeal should be simple, concise, and to the point to bring clarity and also it should be done without leaving any relative issues. The usage of intemperate language in the appeal should be avoided. Topics including issues such as lacking a proper chance of being heard or breach of any principle of natural justice must be particularly included in the grounds of appeal. The nature of the appeal and the relief wanted by the client should be highlighted in the appeal to avoid any further ambiguity. The point to keep the grounds brief and specific should be kept in mind at all times while drafting this clause.
If the grounds of appeal are drafted in a well-fashioned manner then the judge is more likely to allow your appeal to be permitted. It is through the grounds of appeal that one has to convince the judge to grant permission to appeal.
Prayer
The prayer clause in your appeal represents your whole case. The judges tend to look at the prayer clause primarily and any type of discrepancy can prove to be detrimental to your case.
Like every other clause of the appeal, the prayer should also be kept specific and concise. Keeping the prayer clause precise increases the chances for the judges to understand what relief you desire and it is most likely that after getting the clear picture, the relief may be granted. Simple and clear prayer clauses are most likely to be enforced and issued as a judgment of the court.
One should be aware of the possibility that relief may not be granted by the court and in that case, it is advised to specify any other alternative reliefs in its place. Also, separate reliefs should be requested at different points.
The prayer clause should include every relief that the appellant requests from the court. Not limited to the alternative reliefs but it is necessary to also include the interim reliefs and the reliefs for costs, fees, and damages.
At the end of the appeal, one should not forget to include details such as the name of the appellant and of the appellant’s advocate and the date on which the appeal is filed in the court.
Conclusion
The appellate jurisdiction of the Supreme Court of India makes sure that a citizen dissatisfied with the judgment given by a lower court may approach the higher court to get redress of the grievances. It is under this authority that a person may file the appeal in the Supreme Court under Section 423 of the Companies Act.
The appeal should be drafted in a well-fashioned manner taking care of the grammar, punctuation, and simplicity of language used in the appeal. The language should be simple and clear and should bring clarity to the readers reading the appeal. If all the essentials to draft the appeal are dealt with, the chances of the judgment to be favored towards your case increments. Therefore is an obligation of the lawyer to cater to the requirements of the appeal and makes sure to follow the correct format.
References
- https://beyondcounsel.io/10-tips-for-drafting-legal-documents-that-your-clients-will-be-able-to-read/
- https://appealsbarrister.com/2017/04/10/writing-grounds-of-appeal/
- https://taxguru.in/income-tax/art-drafting-appeal-filing-appeal-cit-appeals.html
- https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwjO1PWl49nsAhXVR30KHaA2D1wQFjAAegQIBhAC&url=https%3A%2F%2Fwww.arbitration-ch.org%2Fasset%2F7b9aed83b2e02803e0128f7f2d183b85%2Fhow-to-draft-prayers-for-relief-.pdf&usg=AOvVaw1O5Ibg8ZR4baOx7ohX4hEH
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