Saturday, 19 May 2012

Draft format - Application u/s 9 to obtain Interim Relief from Court




Drafting / Institution of Application / Petition u/s 9 of the Arbitration and Conciliation Act, 1996



Short title


Index


Proforma (Roznama)


Synopsis of the case
The chronology of happening of events (acts and omissions of the parties) which led to the filing of this Application / Petition.

Main points to be urged;

Acts (Statutes) and authorities (judgments) relied upon


Heading – 
Name and Place of the court,
Jurisdiction of the court,
Petition No.

Cause title –
Full Name, age, adult, Indian Inhabitant, place of residence / place of business of the Petitioners Respondents


  1. Brief introduction of the parties, i.e. of Petitioners / Respondents. It must be secured that all necessary and formal parties are joined in the Petition.

  1. The gist of the grievance of the Petitioner.

  1. Material and other relevant facts of the case:
Narration of material “Facts of the Case” is perhaps one of the most important skill of the draftsman, which really decides the “fate” and “length” of any litigation. Therefore, it is of core importance to understand what really constitute “Facts of the Case”.

The acts and omissions of the parties prior to the filing of the Petition constitute “Facts of the Case”; and “Facts of the Case” should not be misunderstood as interpretation and conclusions which are ordinarily drawn and alleged by the Parties from the said “Facts of the Case”; NOR the Evidence which are advanced in support of the “Facts of the Case” constitute any “Facts of the Case”.

Ordinarily, it is seen that parties to the litigation “argues and disputes” what “logically” flows from the “Facts of the Case”; and they sometimes really do not “dispute” the “Facts of the Case”.

  1. submissions of the Petitioner in the light of facts of the case and the position of law, so as to claim interim relief;

  1. Drawing main points to be emphasized upon, to show that Petitioner, is either in law or in equity, entitled for the relief claimed.


  1. Where the Petition is filed by Authorized Representative / power of attorney holder – a para to that effect that POA is duly executed and Resolution, wherever necessary, is passed accordingly.

  1. Valuation of the Petition and applicable court fees: A Para thereby valuing the subject matter of the Petition and stating that the Petitioner accordingly pays the applicable Court fees in accordance with the provisions of Court fees Act / Bombay Court fees Act.

  1. A Para narrating facts that this court has territorial / pecuniary and subject matter jurisdiction to adjudicate upon the present Petition and pass authoritative orders. The “Material acts and omissions” of the Parties, ordinarily, constitutes the “Cause of action”.

  1. Limitation: The date on which the cause of action have arose and stating that therefore the Application / Petition is filed within the limitation period.  If the Petition is filed beyond limitation, then, a statement showing the grounds on which the exemption from the law of limitation is claimed. 

  1. A Para stating that the Petitioner, with the leave of the Hon'ble Court, shall be entitled to add / amend / delete any clause in the present Petition.

  1. A Para stating that no notice has been received of lodging a caveat by the opposite party; or if Notice of caveat has been received and the copy of this petition together with the annexure (if any) have been supplied to the caveator.

  1. Grounds for relief claimed;

  1. Reliefs claimed: In my view, drafting of Petition must start from the Prayer Clause, that is to say, one must be very clear in his mind as what are the Reliefs he is seeking from the Court and so he must first articulate the Reliefs to be claimed; and than proceed to draft the rest of the Petition. The Reliefs Claimed, of course, would depend upon the nature of Petition filed and it must be secured that Reliefs Claimed in the Petition, should fall within the Jurisdiction” of that Court  before which the Petition is filed.

14. The Petitioner and the Advocate of the Petitioner (If there is any) shall Sign at the end of the Petition, i.e. after Prayer Clause. The Petitioner shall sign on the right side of the page and the Advocate shall sign on the left side of the page. (Before Verification clause)

Verification clause


Vakalatnama


Memorandum of Regd address of the Petitioner / Advocate on record


List of Documents relied upon



Exhibits


Affidavit in support of Petition



Docket



Check list before finalizing draft and before lodging –



Steps after Institution of petitions / complaints


1.                  Admission stage of the Petition
2.                  Service of Copy of the Petition to the Respondent
3.                  Affidavit of Service
4.                  Reply of the Respondent
5.                  Wherein it is alleged by the Petitioner that Respondent has in any way made false statements / false declarations in his reply or has filed false Affidavit or has filed a forged document; or wherein it is alleged by the Respondent that Petitioner has made a false claim in the Petition and/or that Petitioner has made false statements / false declarations in his Petition or has filed false Affidavit or has filed a forged document; Please refer following links:



6.                  Rejoinder of the Petitioner
7.                  Oral Arguments and Submission of Written Arguments
8.                  Judgment.




Related Links:

Imp Sections of Arbitration Act, 1996:
Arbitration


Interim Reliefs by the “Court”, before or after the commencement of Arbitration Proceedings – Section 9



Ingredients of Section 7, 9:
(Will be added soon)



Important Judgments
(Will be added soon)



Other Relevant Links:

Important aspects of any Litigations

Objective approach to any Litigation

Principles of Natural Justice

Transition to – “Due Process of law”: A “Proposition” to address almost every illegality
(Will be added soon)




Sentence of Caution

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