CS Professional · Drafting, Pleadings and Appearances

Art of Advocacy and Appearances: formula sheet

Full chapter guide

Key formulas

Core idea of advocacy: Facts + Law + Persuasive presentation = Advocacy; Use this as the frame for any answer. Missing one element weakens the case.
Essential qualities (memory list): Knowledge, honesty, preparation, courtesy, clarity, temperament, judgment, confidentiality; Pick the ones that fit the question and link each to a company situation.
Oral argument order: Opening → Facts → Issues → Law → Application → Relief; A logical order helps the bench follow you and keeps you within time.
Written presentation check: Accurate facts, clear issues, correct provisions, specific relief; Apply this to pleadings, written submissions and notes of argument.
Role of company secretary (Section 205): Report to Board on compliance; ensure compliance with applicable secretarial standards; other prescribed duties; Section 205(1) states the functions. It does not affect the duties of the Board, chairperson, managing director or whole-time director (Section 205(2)).
Section 432, Companies Act, 2013: Party may appear in person OR authorise one or more CAs / CSs / cost accountants / legal practitioners / any other person; Applies to any proceeding or appeal before the Tribunal (NCLT) or the Appellate Tribunal (NCLAT).
Nature of the right: Right to appear = in person or through an authorised representative; The representative acts on authorisation from the party. Keep written authority on record.
Company Secretary in practice (CS Act, 1980, section 2(2)): In practice = for remuneration, practising as CS to or in relation to a company, or other listed services, or holding out as CS in practice; Listed services include promotion, forming, incorporation, amalgamation, reconstruction, reorganisation and winding up of companies.
Scope limit: Section 432 covers NCLT and NCLAT only; Do not cite it for the Registrar or Regional Director.
Three conditions for a licence: Charitable or similar object + intention to apply profits and income in promoting the objects + intention to prohibit payment of dividend; The objects and both intentions must be proved to the satisfaction of the Central Government before a licence is issued, as in section 8(1)(a) to (c).
Name rule: Section 8 company: no "Limited" / "Private Limited" in the name; On revocation, the company may be directed to add these words and the Registrar registers it accordingly.
Alteration of MOA or AOA: Previous approval of the Central Government; Applies to a company registered under Section 8. The section requires previous approval of the Central Government, not just a company resolution.
Revocation grounds: Contravention of section or licence conditions OR fraudulent conduct OR violation of objects OR prejudice to public interest; Order only after reasonable opportunity of being heard; copy of the order goes to the Registrar.
Amalgamation rule: Section 8 company amalgamates only with another Section 8 company having similar objects; After revocation, the Central Government may also order such amalgamation if essential in public interest.
Surplus assets on winding up or dissolution: Transfer to a similar Section 8 company (Tribunal conditions) OR sale with proceeds to the Insolvency and Bankruptcy Fund; Assets remain after debts and liabilities are met.
Penalty for default: Company: ₹10,00,000 to ₹1,00,000,000 (₹1 crore). Directors and officers in default: ₹25,000 to ₹25,00,000; If affairs were conducted fraudulently, every officer in default is liable under section 447.
Order of examination of a witness: Examination-in-chief → Cross-examination → Re-examination; Re-examination is limited to matters arising out of cross-examination. Leading questions are generally not allowed in chief and generally allowed in cross.
Tribunal procedure (Section 424(1)): Not bound by CPC, 1908; guided by natural justice; may regulate own procedure; This is subject to the Act, the IBC where applicable, and the rules made under them.
Tribunal's civil court powers (Section 424(2)): Summon and examine on oath; discovery and production of documents; evidence on affidavits; commissions; dismissal for default or ex parte decision and setting aside; These powers are for discharging functions under the Act or the IBC.
Examination of a person in winding up (Section 300): Winding up order + Company Liquidator's report of fraud → Tribunal may direct the person to attend and be examined; Examination is on oath. The person gets a copy of the report at own cost and may engage a CA, CS, cost accountant or legal practitioner entitled to appear under Section 432.
Preparation checklist: Brief → Facts → Law → Evidence → Opponent's case → Arguments; Use this sequence as the skeleton of any answer.
Duty to the tribunal: Respect + candour + no misleading + no concealment of adverse binding authority; Overrides the duty to the client when the two conflict. Never put forward a false statement.
Duty to the client: Competence + diligence + confidentiality + no conflict of interest + honest accounting; Act within the client's authority and tell the client frankly about risks.
Duty to colleagues: Courtesy + fairness + no personal attacks + no unfair solicitation; Disagree on the law and facts, not on the person.
Representation of a body corporate (section 113): Board or governing body resolution → authorised person → same rights and powers as the body corporate; Includes the right to vote by proxy and by postal ballot at the meeting.
Professional assistance to Company Liquidator (section 291): Tribunal sanction → appointment of CA, CS, cost accountant, legal practitioner or other professional → disclose conflict of interest or lack of independence at once; The disclosure is made to the Tribunal in the prescribed form.
Examination under section 300: Person examined may employ CA, CS, cost accountant or legal practitioner entitled to appear under section 432, at his own cost; Applies after a winding-up order and a Liquidator's report of fraud.
Tribunal procedure (section 424): Not bound by the CPC, 1908 + guided by natural justice + civil court powers for specified matters; Proceedings are deemed judicial proceedings.

Quick revision

Advocacy is persuasive presentation of a case, built on preparation, clarity and credibility.
In a case question, first identify the forum, then who may appear before it, then apply the rule.
A Section 8 licence needs objects such as commerce, art, science, sports, education, research, social welfare, religion, charity or protection of environment.
A Section 8 company must intend to apply profits to its objects and prohibit dividends to members.
A Section 8 company enjoys the privileges and bears the obligations of limited companies.
It cannot alter its memorandum or articles without previous Central Government approval.
The Central Government may revoke the licence, but only after giving a reasonable opportunity of being heard.
A Section 8 company can amalgamate only with another Section 8 company having similar objects.
Default under Section 8: company fine of ₹10 lakh to ₹1 crore; officers in default ₹25,000 to ₹25 lakh.
A body corporate can authorise a representative by board resolution to act at meetings under Section 113.
Prepare facts, documents, law and arguments before every hearing.
Always end an answer with a clear conclusion on the facts given.

Common mistakes

Treating advocacy as only speaking in court Fix: Always cover both oral and written skills, and mention preparation of documents.
Writing a bare list of qualities with no explanation Fix: Add one line on why each quality matters in practice, such as honesty to the forum protecting credibility.
Saying only advocates can appear before the NCLT. Fix: Section 432 names CAs, CSs and cost accountants alongside legal practitioners, and adds any other person.
Citing section 432 for appearance before the Registrar or Regional Director. Fix: The section covers only the Tribunal and Appellate Tribunal. For other authorities, describe the authorised-representative practice without citing it.
Saying the company needs a licence from the Registrar. Fix: The Central Government issues the licence. The Registrar then registers the company on application in the prescribed form.
Treating alteration of the memorandum or articles as a normal special resolution matter. Fix: For a Section 8 company, previous approval of the Central Government is required before altering them.
Writing only about the hearing and skipping preparation. Fix: Always give preparation its own part: brief, facts, law, evidence. Then cover the hearing.
Saying leading questions are always banned in examination-in-chief. Fix: Say they are generally not allowed in chief, with exceptions such as introductory or undisputed matters, and generally allowed in cross-examination.
Saying the client's instructions always come first. Fix: State that the duty to the tribunal overrides any instruction to mislead, conceal or make false statements.
Treating an advocate and an authorised representative as the same. Fix: Say that an advocate is enrolled under the Advocates Act and bound by Bar Council rules, while an authorised representative appears only because the law and a valid authority permit it for that forum.

Exam tips

Define advocacy at the start. A short, correct definition earns marks and sets your structure.
Always split skills into oral and written when the question says 'presentation' or 'skills'.
In case-based questions, name the company and forum and apply each quality or skill to them.
Mention Section 205 only for the company secretary's role in reporting compliance and ensuring secretarial standards. Do not attach it to advocacy generally.
Keep short notes to about one page: definition, points with one-line reasons, conclusion.
Quote section 432 closely. The list of persons and the phrase 'any other person' are the points examiners look for.
Use the structure provision, analysis, conclusion, and end with a drafting or compliance point such as written authority.
Cite the section only for NCLT and NCLAT. For other authorities, say that the rules of that forum apply.