Chapter 10 Art of Writing Opinions – CS Professional Drafting, Pleadings and Appearances Notes is designed strictly as per the latest syllabus and exam pattern.
Art of Writing Opinions – Drafting, Pleadings and Appearances Study Material
Question 1.
Write notes on the following:
Need for a legal opinion (Dec 2016, 4 marks)
Answer:
Need for a legal opinion can be stated by following points:
(a) Interpretation of statutes or documents
(b) Advise a transaction structure
(c) Opinion for guidance of decision makers in commerce, industry or government
(d) Opinion to Lenders on enforceability of Finance Documents
(e) Opinion for Investors for compliance by Target Companies
(f) Opinion on Foreign Direct Investment
(g) Determining provision for contingent liabilities or determination of contingent assets
(h) Merits or demerits of legal proceedings
(i) Provision for contingent liabilities or Identification of contingent assets
(j) Initiating civil or criminal proceedings
(k) Ascertain compliance level for issue of securities and identification of risk factors for investors.
Question 2.
Write note on the following:
Name and explain various types of Writs allowed by Constitution of India. (June 2017, 4 marks)
Question 3.
Write note on the following:
Special Leave Petition (SLP) (Dec 2018, 4 marks)
Answer:
Special leave petition (SLP) means that an individual takes special permission to be heard in Apex Court in appeal against any court/tribunal verdict.
Section 112 of the Code of Civile Procedure, 1908 keeps the powers of the Supreme Court under Article 136 of the Constitution to grant special leave to appeal from any judgement, decree, determination, sentence or order in any cause or matter passed or made by any Court of tribunal in the Territory of India, beyond the scope of the provisions of the Code.
Where a High Court refuses to issue the required certificate under Article 134A of the Constitution of India to enable an aggrieved party to appeal to the Supreme Court against the judgment, order or sentence awarded by the High Court, the aggrieved party may file a petition in the Supreme Court for grant of special leave to appeal under Article 136 of the Constitution.
Question 4.
Write note on the following as desired :
Summarize standards applicable to preparation of an opinion. Mention the common purposes for which legal opinion are sought. (Dec 2019, 4 marks)
Answer:
Standards applicable to preparation of an opinion
1. General:
A lawyer is expected to be well informed and to exercise such skill, prudence and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of the tasks which they undertake. When a matter falls within a recognized area of legal specialty, such as tax or securities law, it is advisable to take that assignment only if it falls within the competence of the professional.
2. Customary Practice:
The opinion preparers should devote the time needed to interpret and apply legal principles relevant to the situation at hand, ascertain (through appropriate inquiry and certificates of officers of the Company) the facts that underlie the opinion, and identify areas of significant uncertainty (if any) in the interpretation and application of legal principles. In certain cases, opinion givers may conclude that it is necessary to conduct research with respect to particular legal principles or to conduct an investigation of the underlying facts relevant to the opinion.
3. Fraudulent or Misleading Opinions:
An opinion giver may be liable for an opinion that constitutes fraudulent misrepresentation. A lawyer owes a duty to nonclients to refrain from fraudulent misrepresentation. It is generally understood that, regardless of compliance with other standards, and even if an opinion is technically correct, a lawyer should not render an opinion that the lawyer recognizes would be misleading to the opinion recipient.
4. Ethical Issues Relating to the Provision of Opinions to Non-clients:
A lawyer delivering an opinion letter to a non-client should also consider ethical principles.
For example, rendering an opinion to a non-client may conflict with the opinion giver’s ethical obligations to maintain the confidence of its client. He should decline to give legal opinion in such cases.
Some of the common purposes for which legal opinion are sought are as follows:
- Lawfulness of an action : When one wants to know if an action is lawful.
- Legal consequences : Sometimes a party entering into a transaction obtaips legal opinion to ascertain if the action will lead to desired legal consequences.
- Answer questions : When client wants professional guidance in an area.
- Regulatory requirements : Sometimes legal opinion has to be sought because it is mandated by law.
- Compliance : It can be sought to meet the compliance requirement.
- Protective shield : Clients sometimes desire the protection of an expert’s legal opinion.
- Designed to mislead: Sometimes promoters of unscrupulous schemes obtain as many opinions from different experts as is possible and use the one which is favourable to their scheme of things.
- To satisfy contractual requirements : Sometimes a clause in commercial contracts require the opinion of an expert.
- Due Diligence : Lawyers and clients often cite due diligence as the principal reason for requesting.
Question 5.
Distinguish between the following:
‘Writ of certiorari and ‘writ of prohibition’. (Dec 2013, 3 marks)
Answer:
Writ of prohibition : Writ of prohibition is issued by a Superior Court to Subordinate Court preventing latter from usurping the jurisdiction which is legally not vested in it. The writ lies in both for excess of jurisdiction or absence of jurisdiction. It is generally issued before the trial of the case or during the pendency of the proceeding but before the order is made. It may be noted that this writ is available against judicial and quasi judicial body.
Writ of Certiorari : If any lower court or a tribunal gives its decision but based on wrong jurisdiction, the effected party can move this writ for a direction against such lower court or tribunal to ignore such decisions based on wrong jurisdiction the writ of certiorari issued to subordinate judicial or quasi judicial body when they act:-
(a) without or in excess of jurisdiction ;
(b) In violation of prescribed procedure ;
(c) contravention of principles of natural justice ;
(d) Resulting in an error of law apparent on the face of record.
Question 6.
Distinguish between the following:
A ‘writ of mandamus’ and a ‘writ of certiorari. (June 2015, 4 marks)
Answer:
Writ of Certiorari: if any lower court or a tribunal gives its decision but based on wrong jurisdiction, the effected party can move this writ for a direction against such lower court or tribunal to ignore such decisions based on wrong jurisdiction the writ of certiorari issued to subordinate judicial or quasi judicial body when they act:-
(a) without or in excess of jurisdiction ;
(b) In violation of prescribed procedure ;
(c) contravention of principles of natural justice ;
(d) Resulting in an error of law apparent on the face of record.
Mandamus: The expression “mandamus” means a command. The writ of mandamus is, thus a command issued to direct any person, corporation, inferior court or Government authority requiring him to do a particular thing therein specified which pertains to his or their office and is further in the nature of a public duty.
This writ is used when the inferior tribunal has declined to exercise jurisdiction, mandamus can be issued against any public authority. The applicant must have a legal right to the performance of a legal duty by the person against whom the writ is prayed. Mandamus is not issued if the public authority has a discretion, mandamus can be issued by the Supreme Court and all the High Courts to all authorities.
Question 7.
Distinguish between the following :
Habeas corpus and Quo warranto (June 2018, 4 marks)
Answer:
Habeas Corpus
One of the important writs for individual freedom is “Habeas Corpus” which signifies “You may have the body”. In the event that any individual is kept in jail or a private care without legitimate legitimization; this writ is issued to the power limiting such individual, to create him/her under the watchful eye of the Court. The Court mediates here and requests that the power give the motivations to such confinement and if there is no legitimization, the individual kept is sans set.
The candidate for this writ can either be the individual in detainment or any individual following up for his/her benefit to ensure his/her freedom. This writ accommodates quick help if there should arise an occurrence of unlawful detainment. It is the most significant writ for individual freedom. Habeas Corpus signifies, “Let us have the body.”
A man, when captured, can move the Court for the issue of Habeas Corpus. It is a request by a Court to the keeping power to deliver the capturbd individual before it with the goal that it might inspect whether the individual has been kept legitimately or something else. On the off chance that the Court is persuaded that the individual is illicitly kept, it can issue orders for his discharge
Quo warranto: Literally meaning “By what authority”, it is a high prerogative writ and the information in the nature of quo warranto lies against a person who claims or usurps any office, franchise or liberty, to inquire by what authority he supports his claim in order that the right to the office or franchise might be determined.
The object of this writ is to determine the right of a person to hold a particular public office. Such a person is asked to show what is the authority under which he is holding that office person against whom the writ is issued must be in actual occupation of the office. Which office must be a permanent one created by a valid law whose duties is of a public nature.
Question 8.
Distinguish between the following :
Prohibition and Certiorari (Dec 2018, 4 marks)
Answer:
The writ of prohibition is issued by the Supreme Court or any High Court to an inferior Court preventing the latter from usurping jurisdiction which is not legally vested in it. It compels courts to act within their jurisdiction when a tribunal acts without or in excess of jurisdiction or in violation of rules or law.
The writ of prohibition is available only against judicial or quasi-judicial authorities and is not available against a public officer who is not vested with judicial functions. If abuse of power is apparent this writ may be prayed for as a matter of right and not a matter discretion. The Supreme Court may issue this writ only incase of Fundamental Rights being affected by reason of the jurisdictional defect in the proceedings. This writ is available during the pendency of the proceedings and before the order is made.
The writ of certiorari is available to any person whenever any body of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially, acts in excess of its legal authority. The writ removes the proceedings from such body to the High Court in order to quash a decision that goes beyond the jurisdiction of the deciding authority.
Question 9.
ABC” Ltd. has decided to acquire XYZ Pvt. Ltd. by purchase of its entire shares. As a Practicing Company Secretary, you have been asked by ABC Ltd. for legal opinion on the acquisition. Explain the process involved in drafting the legal opinion. (June 2014, 8 marks)
Answer:
Drafting a legal opinion can and should always be split into three processes. The mental attitude, the thinking process and the writing process.
I. The mental attitude:
The mental attitude required to write a good opinion, or give good advice, is that of a practitioner as opposed to an academic. The approach required is a practical approach not an academic approach. The practical approach is something to be developed and acquired and defining it does not necessarily help. But, the four fundamental principles to remember to develop the right mental attitude at all times are:
(a) You are dealing with a real situation.
(b) The facts are more fundamental than the law.
(c) The law is a means to an end.
(d) Answer the question.
II. The Thinking Process :
The next stage in writing an opinion is the thinking process. It involves the following stages:
(a) Read and digest your instructions: Find out exactly what your instructions are, what is required of you, what the case is about, what are the basic facts and what your client actually wants to know.
(b) Answer the primary question:
You must have a clear idea of what your client wants to know if you are to address your mind the right issues and give proper advice. Your objective is after all, to tell your client what he or she wants to know.
(c) Digest and organise the facts:
The first thing to do is to digest and organise the facts. There will be facts in any case which are relevant and pertinent to the case and facts which are not. A legal opinion must focus on the relevant facts, but it may also be necessary to specifically advise that certain things are not relevant. The first stage will be about organising the facts of the case into these categories. It is a matter of personal preference how this is done, but charts and schedules are often useful and a chronology should be a starting point for every fact marshalling exercise.
(d) Construct a legal framework:
Once the facts are at your finger tips, a legal framework needs to be constructed into which these facts can be logically slotted. Different types of cases will involve different legal frameworks, but whatever the legal issue, the legal opinion must be continuously advising on the strength of the client’s position in the case. One question which is implicit in every request for a legal opinion is ‘what should be done next?’ This should be decided at the planning stage and should inform the legal opinion throughout.
(e) Look at the case as a whole:
What should also be borne in mind throughout the planning stage is the opponent’s case. A legal opinion will be useless ifit considers the client’s case in isolation. Evidential issues must also be considered. A good legal opinion will always address how a particular factual situation can be proved.
(f) Consider your advice:
What your client needs is good practical advice, so you should also consider the practical steps that you advise your client to take. Before you begin writing a legal opinion, you will know exactly what advice you are going to give, why you are giving it and how you are going to present it.
III. The Writing Process :
Simply knowing your opinion, knowing the answer, does not mean the writing process is a mere formality. You have to know how to express yourself in an opinion, how to transfer the thinking process on the paper.
The legal opinion should be written following a structure. It should be entitled OPINION or ADVICE and contain the title of the case in the heading. The first paragraphs should serve as an introduction to the legal opinion, laying out the salient facts and what you have been asked to advise about. At this point, many legal opinions will set out the main conclusions and advice and the overall opinion. This is good practice as it will encourage focus throughout the legal opinion and the reader will be able to read the following paragraphs knowing where they are leading. A percentage chance of success can be included in this section if appropriate.
The subsequent paragraphs should set out your reasons for reaching the legal opinion which you do in the opening paragraphs. This is where the legal structure will come in. Each issue should be taken in its logical order. Each section should include your opinion on that issue and the reasons for it.
There are certain rules of structure which ought to be followed for the sake of consistency in legal opinions. One example of these is that liability should be dealt with before quantum in civil claims. If there are two or more defendants take each of the defendant’s liability in turn before turning to quantum. The concluding paragraph of a legal opinion ought to be a ‘Next Step” paragraph advising what needs to be done to strengthen the client’s case.
Legal Opinion :
When we use the term “merger”, we are referring to the merging of two companies where one new company will continue to exist. The term “acquisition” refers to the acquisition of assets by one company from another company. In an acquisition, both companies may continue to exist. However, mergers and acquisitions (M & A) considered as a business transaction where one company acquires another company.
When one company decides to acquire another company, a series of negotiations will take place between the two companies. The acquiring company will have a well-developed negotiating strategy and plan in place. If the Target Company believes a merger is possible, the two companies will enter into various terms and conditions relating to acquisition. As a practicing company secretary, following issues are expected to come across while framing legal opinion:
As the negotiations for acquisition continue, both companies will conduct extensive Due Diligence in an effort to identity issues that must be resolved for a successful merger. If significant issues can be resolved and both companies are convinced that a merger will be beneficial, then a formal merger and acquisition agreement will be formulated.
The basic outline for the M & A agreement is rooted in the Letter of Intent. However, Due Diligence will uncover several additional issues not covered in the Letter of Intent. Consequently, the M & A Agreement can be very lengthy based on the issues exposed through Due Diligence.
Additionally, both companies need to agree on the integration process. For example, a Transition Service Agreement is executed to cover certain types of services, such as payroll. The Target Company continues to handle payroll up through a certain date and once the integration process is complete, the acquiring company takes over payroll responsibilities. The Transition Service Agreement will specify the types of services, timeframes and fees associated with the integration process.
Another important element within the M & A Agreement is indemnification. The M & A Agreement will specify the nature and extent to which each company can recover damages should a misrepresentation or breach of contract occur. A “basket” provision will stipulate that damages are not due until the indemnification amount has reached a certain threshold. If the basket amount is exceeded, the indemnification amount becomes payable at either the basket amount or an amount more than the basket amount. The sejler (Target Company) will insist on having a ceiling for basket amounts within the M & A Agreement.
Once all issues have been included and addressed to the satisfaction of companies, the merger and acquisition is executed by signing the M & A Agreement. The buyer and the seller along with their respective legal teams meet and exchange documents. This represents the closing date for the merger and acquisition. The transaction takes place through the exchange of stock, cash and/or notes. Once the agreement has been finalized, a formal announcement is made concerning the merger between the two companies.
Process involved in Drafting of Legal Opinion :
Following are the steps/process which should be taken into consideration. While drafting legal opinion, as all Practicing Company Secretary:
- How will the acquisition price be determined?
- What exactly are we acquiring? Is it physical assets, is it a controlling interest in the target, is it intellectual capital, etc.?
- How will the merger transaction be designed? Will it be an outright purchase of assets? Will it be an exchange of stock?
- What is the form of payment? Will the acquiring company issue stock, pay cash, issue notes, or use a combination of stock, cash and/or notes?
- Will the acquiring company setup and escrow account and deposit part of the purchase price? Will the escrow account cover unrecorded liabilities discovered from due diligence?
- What is the estimated time frame for the merger? What law firms will be responsible for creating the M & A Agreement?
- What is the scope of due diligence? What records will be made available for completing due diligence?
- How much time will the Target Company allow for negotiations? The Letter of Intent will usually prohibit the Target Company from “shopping itself” during negotiations.
- How much compensation (referred to as bust up fees) will the acquiring company be entitled to in the event that the target is acquired by another company? Once news of the proposed merger leaks out, the Target Company is “in play” and other companies may made a bid to acquire the Target Company.
- Will there be any operating restrictions imposed on either company during negotiations? For example, the two companies may want to
- If the two companies are governed by two states or countries, which one will govern the merger transaction?
- Scheme of the Merger and Acquisition.
- Approvals from the various Authority/Court etc.
- Compliance with the legal provisions.
Question 10.
Critically comment on the following: (Dec 2014)
(a) Writing process is an essential part of a legal opinion even if composed on a laptop.
(b) A High Court allows a writ petition (c) under Article 226 of the Constitution of India, issuing a writ of mandamus directing SEBI to enlist shares of XYZ (Pvt.) Ltd. along with those of AFC Corporation, a government company. (5 marks each)
Answer:
(a) A legal opinion is a professional’s written response to client’s instructions to advice in writing. It is not merely an advice as it needs to be supplemented with the basic reasoning behind it. Composing of legal opinion essentially involves three processes which are the mental attitude, the thinking process and the actual writing of the opinion. Writing being one of the most important processes as it acts as a medium to transfer the thinking process into the form of legal opinion.
Today most of the legal opinions are drafted in electronic form i.e. they are composed using laptop, desktop etc. and the mere fact that composing of legal opinion in laptop without use of pen and paper for writing does not dilute the importance of writing. Further as per Oxford dictionary writing means “a sequence of letters, words or symbols marked on a surface”, thus opinion composed on laptop is essentially a legal opinion written in electronic form. Therefore, the skill of drafting shall not be compromised with the modern techniques of writing.
(b) Mandamus:
The expression “mandamus” means a command. The writ of mandamus is, thus, a command issued to direct any person, corporation, inferior Court or Government authority requiring him to do a particular thing therein specified which pertains to his or their office and is further in the nature of a public duty. This writ is used when the inferior tribunal has declined to exercise jurisdiction.
Mandamus can be issued against any public authority. The applicant must have a legal right to the performance of a legal duty by the person against whom the writ is prayed. Mandamus is not issued if the public authority has a discretion. Mandamus can be issued by the Supreme Court and all the High Courts to all authorities. However, it does not lie against the President of India or the Governor of a State for the exercise of their duties and powers (Article 360).
It also does not lie against a private individual or body except where the State is in collusion with such private party in the matter of contravention of any provision of the Constitution or of a statute. It is a discretionary remedy and the Court may refuse if alternative remedy exists except in case of infringement of Fundamental Rights.
Question 11.
Examine the following statements:
A legal opinion should be structured. (Dec 2015, 4 marks)
Answer:
Formulation of a Legal Opinion:
A request for a legal opinion will usually come in written form. Such a request will usually include any document/documents in the case. The request for a legal opinion will include at least one and usually a number of questions which the legal advisor is being asked to address.
A legal opinion will often have the over arching question – does the client have a good and viable case. This is clearly the most important question to any client and must be approached with honesty and directness. If the client’s case is not viable they must be advised about this during the course of legal opinion. If there is something that can be done to improve the client’s prospects of success, a good legal opinion will spell out this very precisely.
Numbered action points are one way of achieving clarity in this regard. Above all, it is vital to remember that in being asked to draft a legal opinion, you are being asked to advise. Sitting on the fence is not an option. Lay out the pros and cons of a particular course of action, but always come down on one side or the other. Giving a percentage chance of success at the beginning of a legal opinion is one way of being clear about what you think the client’s prospects are.
1. The mental attitude:
(a) You are dealing with a real situation.
(b) The facts are more fundamental than the law.
(c) The law is a means to an end.
(d) Answer the question.
2. The Thinking Process:
(a) Read and digest your Instructions
(b) Answer the primary question
(c) Digest & organise the facts
(d) Construct a legal framework
(e) Look at the case as a whole
(f) Consider your advice.
3. The Writing Process:
Simply knowing your opinion, knowing the answer, does not mean the writing process is a mere formality. You have to know how to express yourself in an opinion, how to transfer the thinking process on the paper.
Question 12.
Explain briefly the various types of writs provided under the Constitution of India for the enforcement of fundamental rights. (Dec 2015, 8 marks)
Answer:
Types of Writs
As mentioned in Articles 32 and 226 of the Constitution, writs are in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. A brief discussion of each is as follows:
1. Habeas Corpus: The writ of habeas corpus is a remedy available to a person who is confined without legal justification. The words “Habeas Corpus” literally mean “to have a body”. This is an order to let the Court know on what ground he has been confined and to set him free if there is no legal justification for his detention. This writ has to be obeyed by the detaining authority by production of the person before the Court.
2. Mandamus: The expression “mandamus” means a command. The writ of mandamus is, thus, a command issued to direct any person, corporation, inferior Court or Government authority requiring him to do a particular thing therein specified which pertains to his or their office and is further in the nature of a public duty. This writ is used when the inferior tribunal has declined to exercise jurisdiction.
3. Mandamus can be issued by the Supreme Court and all the High Courts to all authorities. However, it does not lie against the President of India or the Governor of a State for the exercise of their duties and powers (Article 360). It also does not lie against a private individual or body except where the State is in collusion with such private party in the matter of contravention of any provision of the Constitution or of a Statute.
4. Prohibition: The writ of prohibition is issued by the Supreme Court or any High Court to an inferipr Court preventing the latter from usurping jurisdiction which is not legally vested in it. It compels Courts to act within their jurisdiction when a tribunal acts without or in excess of jurisdiction or in violation of rules or law.
5. Certiorari: The writ of certiorari is available to any person whenever any body of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially, acts in excess of its legal authority.
6. Quo Warranto: The writ of quo warranto is prayed, for an inquiry into the legality of the claim which a person asserts to an office or franchise and to oust him from such position if he is an usurper. The holder of the office has to show to the Court under what authority he holds the office. This writ is issued when:
- the office is of a public and of a substantive nature;
- the office is created by a Statute or by the Constitution itself; and
- the respondent must have asserted his claim to the office. It can issue even though he has not assumed charge of the office.
Question 13.
What are the provisions in the constitution regarding filing of SLP? (June 2017, 8 marks)
Answer:
Special Leave Petitions in India (SLP) holds a prime place in the Judiciary of India, and has been provided as a “residual power” in the hands of Supreme Court of India to be exercised only in cases when any substantial question of law is involved, or gross injustice has been done. It provides the aggrieved party a special permission to be heard in Apex Court in appeal against any judgment or order of any Court/Tribunal in the territory of India.
Article 136 of the Constitution confers upon the Supreme Court power to grant special leave to appeal. The Article lays down:
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgement, decree, determination, sentence or order in any cause or matter passed or made by any Court or Tribunal in the territory of India.
(2) Nothing in clause (1) shall apply to any judgement, determination, sentence or order passed or made by any Court or Tribunal constituted by or under any law relating to the Armed Forces”.
Section 112 of the Code of Civil Procedure, 1908 keeps the powers of the Supreme Court under Article 136 of the Constitution to grant special leave to appeal from any judgement, decree, determination, sentence or order in any cause or matter passed or made by any Court or Tribunal in the territory of India, beyond the scope of the provisions of the Code.
Special Leave Petition (SLP) to the Supreme Court under Article 136 In suitable cases, where some arguable questions, mostly on legal points are involved, the Constitution confers under Article 136 wide discretionary powers on the Supreme Court to entertain appeals even in cases where an appeal is not otherwise provided for. But so far as questions of fact, as distinct from questions of law, is concerned, it is only in rare or exceptional cases that the Supreme Court interferes and that too when finding of the High Court or the Lower Court is such that it shocks the conscience of the Court.
Question 14.
Draft a Special Leave Petition (SLP) before Supreme Court of India with assumed data. (Dec 2017, 12 marks)
Answer:
Special Leave Petition (SLP) to the Supreme Court under Article 136
In suitable cases, where some arguable questions, mostly on legal points are involved, the Constitution confers under Article 136 wide discretionary powers on the Supreme Court to entertain appeals even in cases where an appeal is not otherwise provided for. But so far as questions of fact, as distinct from questions of law, is concerned, it is only in rare or exceptional cases that the Supreme Court interferes and that too when finding of the High Court or the lower Court is such that it shocks the conscience of the court.
Specimen Form of a Petition for Special Leave in the Supreme Court of India
CIVIL APPELLATE JURISDICTION IN THE MATTER OF:
Special Leave Petition under Article 136 of the Constitution of India
AND
IN THE MATTER OF:
ABC Company Ltd., a company registered under the Companies Act, 2013 through ………………… Chairman/Managing Director, the company having its registered office at …………………..
…….. Petitioner
Versus
- ………………. S/o ………………….. R/o …………………..
- Union of India through the Secretary, Ministry of Corporate Affairs, New Delhi.
- The Registrar of Companies ……………………
………. Respondents
May it please the Hon’ble Chief Justice of India and His Lordship’s Companion Judges of the Supreme Court.
The petitioner-appellant-(company)
MOST RESPECTFULLY SHOWETH:
1. That the petitioner is a company duly incorporated under the provisions of the Companies Act, 2013 having its registered office at …………………… and is challenging by way of this Special Leave petition the judgment and order of the High Court of ……………………… dated …………………. in proceeding under Section ………………. of the Companies Act, 2013.
2. That the questions of law involved in this matter are as follows:
(a) Whether the High Court has fallen into error in taking the view that ……………………?
(b) Whether it would be a good ground for winding up of the petitioner-company that two of its directors are not on speaking terms and there is, thus, a deadlock in the administration of the affairs of the company.
or
[Here state any other ground that has been taken by the respondents or any of the respondents seeking the relief of winding up of the company from the High Court or any other relief ].
(c) Whether ………………….
3. That respondent No. 1 herein had filed a petition before the Hon’ble High Court of ………………….. seeking the relief …………………… which petition was contested by the petitioner-company inter alia on the grounds that …………………….
4. That the High Court after hearing the parties through their respective counsel allowed the said petition, holding that sufficient grounds had been made out for winding up of the petitioner-company (or any other relief claimed in the petition before the High Court).
5. That the aforesaid findings and the final judgement/order of the High Court are assailed on the following, amongst, other.
GROUNDS:
5.1 That ……………………
5.2 That …………………..
5.3 That ………………….
6. That the petitioner has not filed any appeal or other proceeding relating to this matter in this Hon’ble Court or any other Court.
RELIEF
The petitioner-company accordingly prays that this Hon’ble Court be pleased to grant Special Leave to Appeal in the matter and to allow the appeal, set aside the impugned judgement/order passed by the High Court and dismiss the petition filed by the respondent (No………………) in the High Court.
PETITIONER
AFFIDAVIT
IN THE HON’BLE SUPREME COURT OF INDIA
IN THE MATTER OF:
………………………..
…………. Petitioner
Versus
1. ………………………..
2. ………………………..
3. ………………………..
…………. Respondent
I, ……………………. company through the petitioner in the Special Leave Petition titled as above do hereby solemnly affirm and state as under:
- That I am the Chairman/Managing Director etc. of the petitioner- company and am fully aware of and conversant with the relevants facts concerning the matter in issue in this petition.
- That the contents of the accompanying Special Leave Petition are true and correct to the best of my knowledge and belief.
- That no relevant fact has been concealed or kept back in the S.L.P.
I, further solemnly affirm at …………………… (place) this the …………………… day of …………………… that the above averments are true and correct. Nothing has been kept back or concealed.
DEPONENT
Question 15.
Comment on the following Statement:
Formulation of a Legal opinion needs certain precautionary measure. (Dec 2018, 5 marks)
Answer:
- A request for a legal opinion will usually come in written form such a request will usually include any document/ documents in the case.
- The request for a legal opinion will include at least one and usually a number of questions which the legal advisor is being asked to address.
- A legal opinion will often have the overarching question – does the client have a good and viable case.
- This is clearly the most important question to any client gnd must be approached with honesty and directness.
- If the clients’s case is not viable they must be advised about this during the course of legal opinion.
- If there is something that can be done to improve the client’s prospects of success, a good legal opinion will spell out this very precisely.
- Numbered action points are one way of achieving clarity in this regard.
- Sitting on the fence is not an option. Lay out the pros and cons of a particular course of action, but always come dowp on one side or the other.
- Giving a percentage chance of success at the beginning of a legal opinion is one way of being of being clear about what your think the client’s prospects are.
Important – Drafting a legal opinion can and should always be split into three procedure: The mental attitude, the thinking process and the writing process.
Question 16.
There are some standards which are applicable for preparation of an opinion. Explain. (Dec 2020, 4 marks)
Answer:
Following are the standards applicable for preparation of an opinion:
1. Generally : A lawyer is expected to be well informed and to exercise such skill, prudence and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of the tasks which they undertake.
2. Customary Practice : An attorney does not ordinarily guarantee the soundness of his opinions and, accordingly, is not liable for every mistake he may make in his practice. He is expected, however, to possess knowledge of those plain and elementary principles of law which are commonly known by well informed attorneys, and to discover those additional rules of law which, although not commonly known, may readily be found by standard research techniques.
The opinion preparers should devote the time needed to interpret and apply legal principles relevant to the situation at hand, ascertain (through appropriate inquiry and certificates of officers of the Company) the facts that underlie the opinion, and identify areas of significant uncertainty (if any) in the interpretation and application of legal principles. In certain cases, opinion givers may conclude that it is necessary to conduct research with respect to particular legal principles or to conduct an investigation of the underlying facts relevant to the opinion.
3. Fraudulent or Misleading Opinions: An opinion giver may be liable for an opinion that constitutes fraudulent misrepresentation. A lawyer owes a duty to non clients to refrain from fraudulent misrepresentation.
It is generally understood that, regardless of compliance with other standards, and even if an opinion is technically correct, a lawyer should not render an opinion that the lawyer recognizes would be misleading to the opinion recipient.
4. Ethical Issues Relating to the Provision of Opinions to Non-clients:
A lawyer delivering an opinion letter to a non-client should also consider ethical principles.
Question 17.
Draft a writ of Quo-warranto under Article 226 of Constitution of India. (Dec 2020, 8 marks)
Answer:
IN THE HIGH COURT OF DELHI AT NEW DELHI
WRIT PETITION (CIVIL) NO …………………. / …………………..
(UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA)
IN THE MATTER OF:
A …………………. son of ………………..
Resident of …………………………
PETITIONER
VERSUS
1. ……………………… College
New Delhi
Throught its Principal
RESPONDENT NO. 1
2. Mr. ………………………
Assistant Professor
…………………. College
New Delhi
RESPONDENT NO. 2
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING FOR DIRECTION OR ORDER IN THE NATURE OF QUO WARRANTO TO THE RESPONDENTS AND REMOVE RESPONDENT NO. 2 FROM THE POST OF ASSISTANT PROFESSOR.
To,
The Hon’ble Chief Justice of High Court,
And His Companion Judges of the
Hon’ble High Court of Delhi.
Most Respectfully Showeth:
- That the Petitioner is filing the present writ petition under Article 226 of the constitution of India praying for direction or order in the nature of Quo Warranto to the respondents and remove Respondent No. 2 from the post of Assistant Professor.
- That, the Petitioner is a Law abiding Citizen of India and residing the above address.
- That, on …………………… the Respondent No. 2 has been appointed as Assistant Professor with ………………….. College. Copy of Appointment letter is attached herewith.
- That Respondent No. 2 has not qualified NET examination and not eligible to beappointed as Assistant Professor as per the UGC Regulations.
- The Petitioner aggrieved by the impugned Appointment order of the Respondent No. 1 has approached this Hon’ble Court.
PRAYERS
In view of the facts and circumstances stated above, it is most respectfully prayed that this Hon’ble Court may be pleased to:
(a) Issue a Writ in the nature of Quo Warranto to the Respondents to remove Respondent No. 2 from the Post of Assistant professor.
(b) Any other relief, order or direction this Court may deem fit and proper under the facts and circumstances of this case.
PETITIONER
New Delhi
Date
Question 18.
Briefly explain four types of writs (Except Quo warranto) that are available under Article 32 of Constitution of India. (Dec 2020, 8 marks)
Answer:
Writ of prohibition :
Writ of prohibition is issued by a Superior Court to Subordinate Court preventing latter from usurping the jurisdiction which is legally not vested in it. The writ lies in both for excess of jurisdiction or absence of jurisdiction. It is generally issued before the trial of the case or during the pendency of the proceeding but before the order is made. It may be noted that this writ is available against judicial and quasi judicial body.
Writ of Certiorari :
If any lower court or a tribunal gives its decision but based on wrong jurisdiction, the effected party can move this writ for a direction against such lower court or tribunal to ignore such decisions based on wrong jurisdiction the writ of certiorari issued to subordinate judicial or quasi judicial body when they act:
(a) without or in excess of jurisdiction
(b) In violation of prescribed procedure
(c) contravention of principles of natural justice
(d) Resulting in an error of law apparent on the face of record.
Mandamus:
The expression “mandamus” means a command. The writ of mandamus is, thus a command issued to direct any person, corporation, inferior court or Government authority requiring him to do a particular thing therein specified which pertains to his or their office and is further in the nature of a public duty.
This writ is used when the inferior tribunal has declined to exercise jurisdiction, mandamus can be issued against any public authority. The applicant must have a legal right to the performance of a legal duty by the person against whom the writ is prayed. Mandamus is not issued if the public authority has a discretion, mandamus can be issued by the Supreme Court and all the High Courts +o all authorities.
Habeas Corpus:
One of the important writs for individual freedom is “Habeas Corpus”which signifies “You may have the body”. In the event that any individual is kept in jail or a private care without legitimate legitimization; this writ is issued to the power limiting such individual, to create him/her under the watchful eye of the Court.
The Court mediates here and requests that the power give the motivations to such confinement and if there is no legitimization, the individual kept is sans set. The candidate for this writ can either be the individual in detainment or any individual following up for his/her benefit to ensure his/her freedom. This writ accommodates quick help if there should arise an occurrence of unlawful detainment. It is the most significant writ for individual freedom.
Habeas Corpus signifies, “Let us have the body.” A man, when captured, can move the Court for the issue of Habeas Corpus. It is a request by a Court to the keeping power to deliver the captured individual before it with the goal that it might inspect whether the individual has been kept legitimately or something else. On the off chance that the Court is persuaded that the individual is illicitly kept, it can issue orders for his discharge.
Question 19.
Draft a Special Leave Petition to the Supreme Court of India against NCLT decision of liquidation of your company. If required, assume other facts. (Aug 2021, 4 marks)
Answer:
In the Supreme Court of India
CIVIL APPELLATE JURISDICTION
IN THE MATTER OF:
Special Leave Petition under Article 136 of the Constitution of India
AND
IN THE MATTER OF:
XYZ Company Ltd., a company registered under the Companies Act, 2013 through …………………….. Chairman/Managing Director the company, having registered office at ……………………. Petitioner
Versus
- …………………….. S/o …………………….. R/o ……………………..
- Union of India through the Secretary, Ministry of Corporate Affairs, New Delhi
- The Registrar of Companies ……………………..
…………………….. Respondents
The Hon’ble Chief Justice of India and His Lordship’s Companion Judges of the Supreme Court.
THE HUMBLE PETITION ON BEHALF OF THE PETITIONER ABOVE NAMED
MOST RESPECTFULLY SHOWETH:
1. That the petitioner is a company duly incorporated under the provisions of the Companies Act, 2013 and is challenging by way of this special leave petition the judgment and order of the NCLT of …………………….. dated …………………….. in proceeding under section …………………….. of the Companies Act, 2013.
2. That the question of law involved in this matter are as follows:
(a) Whether the NCLT has fallen into error in taking the view that ……………………..?
(b) Whether it would be a good ground for winding up of the petitioner-company that two of its directors are not on speaking terms and there is, thus, a deadlock in the administration of the affairs of the company.
3. That respondent No. 1 herein had filed a petition before the Hon’ble NCLT of …………………….. seeking the relief …………………….. which petition was contested by the petitioner-company inter alia on the grounds that ……………………..
4. That the NCLT after hearing the parties through their respective Counsel allowed the said petition, holding that sufficient grounds had been made out for winding up of the petitioner-company.
5. That the aforesaid findings and final judgements/order of the NCLT are assailed on the following; amongst, other. Grounds
5.1 That ……………………..
5.2 That ……………………..
5.3 That ……………………..
6. That the petitioner has not filed any appeal or other proceeding relating to this matter in the Hon’ble Court or any other Court.
RELIEF
The petitioner company accordingly prays that this Hon’ble Court be pleased to grant Special Leave to Appeal in the matter and to allow the appeal, by setting aside the impugned judgement/order passed by the NCLT and dismiss the petition filed by the respondent (No ……………………..) in the NCLT.
PETITIONER
AFFIDAVIT
IN THE HON’BLE SUPREME COURT OF INDIA
IN THE MATTER OF
……………………..
…………………….. petitioner
Versus
1. ……………………..
2. ……………………..
3. ……………………..
…………………….. Respondents
AFFIDAVIT
I …………………….. company through the petitioner in the SLP titled as above do hereby solemnly affirm and state as under:
- That I am the petitioner and am fully aware of and conversant with the relevant facts concerning the matter in issue in this petition.
- That the contents of the accompanying Special Leave Petition are true and correct to the best of my knowledge and belief.
- That no relevant fact has been concealed or kept back in the S.L.P. ……………………..
I, further solemnly affirm at …………………….. (place) this the …………………….. day of …………………….. that the above averments are true and correct. Nothing material has been concealed therefrom.
DEPONENT
Question 20.
Mention the points which will cover a legal opinion. (Aug 2021, 4 marks)
Answer:
There is no form for a legal opinion prescribed by law or rule. In general a legal opinion will cover the following:
- Introductory matters, such as the date, identity of the opinion, and the purpose for which the opinion is given.
- A general or specific recitation of the documents and other factual and legal matters reviewed by the opinion giver, including various factual assumptions.
- The legal conclusions expressed in the opinion and any qualifications to the legal conclusions.
- Matters peculiar to the particular opinion, such as matter relative to opinions of local counsel in other jurisdictions and specific limitations.
- The person giving such legal opinion is desirable to use the usual disclaimers that the opinion is based on the facts and the documents that were supplied by the concerned person.
- The signature of the opinion giver.
Question 21.
A specimen of affidavit in support of Special Leave Petition filed before the Hon’ble Supreme Court of India. Assume facts, if required. ‘ (Dec 2021, 5 marks)
Question 22.
‘Opinions considered inappropriate due to certain reasons’. Explain with illustrations. (Dec 2021, 4 marks)
Answer:
In a business transaction a number of opinions would be think about inappropriate because their scope is not reasonably within the competence of the opinion giver or they are not cost-justified. Instances of such opinions include the following:
- The client is qualified to do business as a foreign corporation in all jurisdictions in which its property or activities require qualification or in which the failure to qualify would have a material adverse effect on the client:
- The client is not in material violation of any central, state or local law, regulation or administrative ruling; and
- The client is not in material violation of any contract, indenture or undertaking to which it is a party or by which it may be bound.
The general features of these Instances is that they are essentially openended. Requests for opinions of th’is sort inherently cast into question whether the party requesting the opinion may be effectively seeking legal insurance” rather than legal “assurance”. An opinion giver may properly refuse to give such opinions.
Question 23.
“ The opinion giver may also be requested to furnish an opinion on matters governed by the laws of some other country.” Comment and discuss the reliance of the opinion of local counsel on foreign laws. (June 2022, 5 marks)
Art of Writing Opinions Notes
Case for Opinion Writing
An effective and legally sound legal opinion has an immense value. It can show where a party stands in a given factual matrix when looked from a legal perspective and also save time and money spent in futile litigation proceedings. Business savvy clients do not want to litigate, defend or enter into transactions without obtaining a written opinion from at least one legal expert if not more.
Some of the common purposes for which legal opinion are sought are as follows:
- Lawfulness of an action
- Legal consequences
- Answer questions
- Regulatory requirements
- Compliance
- Protective shield
- Designed to mislead
- To satisfy contractual requirements
- Due Diligence
Types of Legal Opinion
1. Advices on Transaction: Due diligence is the principal reason for opinion letters in business transactions. An opinion letter may be one component of a party’s due diligence, but it is not normally a substitute for due diligence performed by the opinion recipient and its counsel.
2. Advices on Law: Sometimes the client would want to know how the law will apply to a given situation. Without in-depth knowledge of law and legal research one cannot give an opinion to the satisfaction of the client. The proper way is to start with the cases and work through to reach a deduction as to the principle of law that covers the situation.
3. Opinions on Facts: The third type of opinion is one which is predominantly related to facts. One is given a series of statements and documents and asked whether on that material there are reasonable prospects of prosecuting or defending the claim. The matter may be a simple personal injury case in which the law is well settled.
4. Advices on Evidence: A special type of opinion is a brief to advice on evidence. When advising on fact or law one should not be too positive. In relation to advices on quantum of damages one can never be sure so it is advisable to not give a precise figure but a range. Where the law is in a state of flux or doubtful the legal expert should always draw attention to this explaining why one cannot be more positive.
Quality of Writing
The primary purpose of a legal opinion is communication of advice to either a lay or professional client. It is therefore of the utmost importance that it is clear and in plain, understandable English. Every word of the legal opinion should be chosen because it communicates precisely the advice which the writer intends to covey.
A legal opinion will often contain a complicated set of facts which will have to be sorted into specific legal issues and defined in legal terms. Clarity of expression is therefore vital. Clarity of expression can only be achieved through thorough planning and thought.
A thorough plan will lead to a logical structure. Any legal opinion will be conveying a particular point, but that point will inevitably need to be broken down into sections. Clarity of legal writing also requires conciseness.
Form and Elements of the Opinion Letter
There is no form for a legal opinion prescribed by law or rule. Opinion letters, however, have developed a certain uniformity because of their repeated use.
1. Introductory Matters
- Title: It should be entitled OPINION or ADVICE and contain the title of the case in the heading.
- Date. The opinion speaks as of the date mentioned on the opinion letter and need not state separately the effective date of the opinion.
- Addressee. The opinion is normally addressed to a specified party ‘ in an individual capacity, to a party as representative of a larger group, or to an identified class of persons.
2. Introduction: The first paragraph should serve as an introduction to the legal opinion, laying out the salient facts and what the expert has been asked to advise about. An opinion must set out the questions on which it is sought very clearly and unambiguously.
3. Definitions. For purposes of brevity and clarity, it is advisable to define the principal terms used in the opinion. Whenever a term utilized in an opinion letter is derived from statutory law, the opinion customarily uses that term or provides an express definition.
4. Understanding facts of the case The obligation of an opinion giver to exercise diligence in determining the factual and legal bases for an opinion is implicit in every opinion letter. The first rule is always to commence the opinion by setting out the facts that have been given or have been presumed from the instructions given.
5. Research on Relevant Case Laws
After the facts are over the opinion giver may begin his analysis on which the opinion depends. There is no need to set out basic principles of law with which the opinion recipient will be familiar, Otherwise, authorities should be cited to support propositions of laws and when doing so a full citation should be given. It is important to prioritise the authorities cited in a legal opinion in order of importance to the point being addressed.
6. Expression of the Opinion
Once the facts are organised, a legal framework needs to be constructed into which these facts can be logically slotted. A legal opinion in a personal injury action for example will be based on negligence and therefore will usually be structured along the lines of duty, breach, damage, causation, forseeability and contributory negligence, in a negligence legal opinion it will be vital to assess the level of damages that the client can expect to receive or pay, out. This will be at the forefront of the client’s mind.
7. Qualifications. In practice, opinions are frequently subject to qualifications that narrow their apparent scope. Some opinions may be qualified by assumptions or exceptions. Opinions also may be qualified as to scope, particularly when the opinion covers a specialized area of the law. Qualifications take various forms, depending upon the opinion giver’s preference and the length of the qualification.
8. Special Matters
(a) Foreign Law and Reliance on Local Counsel: The principal opinion giver for a party in a business transaction typically renders an opinion covering the laws of the state and applicable central laws and sets forth this limitation in the text of the opinion. The opinion giver may also be requested to furnish an opinion on matters governed by the laws of some other country.
(b) Reliance on Opinion of ‘Special’ Counsel: Considerations similar to those arising in the selection and use of local counsel apply in the retention of special counsel. A lawyer who has no expertise in a specialized matter should not render an opinion in the specialized area, and should refer the matter to a lawyer qualified in that field.
9. Signature: The procedure typically followed by most law firms is for the opinion letter to be manually signed in the name of the firm. Some law firms follow different practices, such as “XY&Z by A, a partner” or “A on behalf of XY&Z.”
10. Usual disclaimers: Disclaimers can save the opinion giver from being reported for malpractice if the opinion is wrong. Under the disclaimer, it is written that the opinions provided are based on the law as per the time of drafting the opinion.
Things to be kept in mind while preparing for opinion letter
Standards applicable to preparation of an opinion
1. Generally: A lawyer is expected to be well informed and to exercise such skill, prudence and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of the tasks which they undertake.
2. Customary Practice: An attorney does not ordinarily guarantee the soundness of his opinions and, accordingly, is not liable for every mistake he may make in his practice.
3. Fraudulent or Misleading Opinions
An opinion giver may be liable for an opinion that constitutes fraudulent misrepresentation. A lawyer owes a duty to non-clients to refrain from fraudulent misrepresentation.
4. Ethical issues Relating to the Provision of Opinions to Non-clients
A lawyer delivering an opinion letter to a non-client should also consider ethical principles.
Types of Writs
Habeas Corpus
The writ of habeas corpus is a remedy available to a person who is confined without legal justification. The words “Habeas Corpus” literally mean “to have a body”. This is an order to let the Court know on what ground he has been confined and to set him free if there is no legal justification for his detention. This writ has to be obeyed by the detaining authority by production of the person before the Court.
Mandamus
The expression “mandamus” means a command. The writ of mandamus is, thus, a command issued to direct any person, corporation, inferior Court or Government authority requiring him to do a particular thing therein specified which pertains to his or their office and is further in the nature of a public duty. This writ is used when the inferior tribunal has declined to exercise jurisdiction.
Mandamus can be issued by the Supreme Court and all the High Courts to all authorities. However, it does not lie against the President of India or the Governor of a State for the exercise of their duties and powers (Article 360). It also does not lie against a private individual or body except where the State is in collusion with such private party in the matter of contravention of any provision of the Constitution or of a Statute.
Prohibition
The writ of prohibition is issued by the Supreme Court or any High Court to an inferior Court preventing the latter from usurping jurisdiction which is not legally vested in it. It compels Courts to act within their jurisdiction when a tribunal acts without or in excess of jurisdiction or in violation of rules or law.
Certiorari
The writ of certiorari is available to any person whenever any body of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially, acts in excess of its legal authority.
Quo warranto
The writ of quo warranto is prayed, for an inquiry into the legality of the claim which a person asserts to an office or franchise and to oust him from such position if he is an usurper.
Special Leave Petitions
Article 134A of the Constitution of India lays down that every High Court, passing or making a judgement, decree, final order, or sentence, referred to in Clause (1) of Article 132 or Clause (1) of Article 133 or Clause (1) of Article 134,
(a) may, if it deems fit so to do, on its own motion; and (b) shall, if an oral application is made, by or on behalf of the party aggrieved, immediately after the passing or making of such judgement, decree, final order or sentence, determine, as soon as may be after such passing or making, the question whether a certificate of the nature referred to in Clause (1) of Article 132, or Clause (1) of Article 133 or, as the case may be, sub-clause (c) of Clause (1) of Article 134, may be given in respect of that case.
Formulation of a Legal Opinion
I. The mental attitude
(a) You are dealing with a real situation.
(b) The facts are more fundamental than the law.
(c) The law is a means to an end.
(d) Answer the question.
II. The Thinking Process
(a) Read and digest your Instructions
(b) Answer the primary question
(C) Digest & organise the tacts
(d) Construct a legal framework
(e) Look at the case as a whole
(f) Consider your advice
III. The Writing Process