Bankruptcy
7 months ago
How to file for Bankruptcy, if I don't have any amount to bear the charges of lawyer. Can I file it myself?
A.Dear Sir,
Yes, you can file by following the below given procedure.
========================================================
Provision for Fighting One’s Own Case as per Advocate’s Act
Section 32 of the Advocate’s Act clearly mentions, the court may allow any person to appear before it even if he is not an advocate. Therefore, one gets the statutory right to defend one’s own case through Advocate Act in India. This rule is subject to certain exceptions.
• Article 19 of the Constitution of India guarantees certain freedoms to the citizens of this country which includes right to practise any profession or to carry on any occupation, trade or business. It, therefore, naturally follows that the right to practise law, which is a profession, is a fundamental right that is conferred upon all citizens of this country.
• Therefore, it can be said that the person has right to appear in any court in India. There are exceptions based on general rules that are only regulatory in nature and the main purpose is to impose reasonable restrictions in the interest of general public.
Every court has their rules which serve as a guideline for procedure implementation and these rules also talks about contending case without an advocate.
• Rules are regulatory provisions and do not impose a prohibition on the practice of law.
• These Rules prescribe that a person who is not an advocate in the High Court is obligated to file an appointment along with a local advocate. There is no absolute bar to appear.
• In fact, with the leave of the Court, a non-advocate is still permitted to appear even without a local advocate. Also, an advocate who is not on the roll of advocates in the High Court can appear along with a local advocate.
• Alternatively, even without fulfilling this requirement, an advocate who is not on the rolls of advocates in the High Court can move an application before the Court seeking leave to appear without even a local advocate and in appropriate cases, such a permission can be granted.[1]
Provision for Fighting One’s Own Case as per The Provision of Civil Procedure Code
Order rule 1 of Civil Procedure Code:
Any application, appearance or act in court can be made by the following-
1. The party in person, that is a party involved in a case.
2. Any recognized agent of such part.
3. By a pleader, appearing, acting, applying on his behalf.
4. This rule is as per court’s discretion.
The rules laid down are general rules and consider the appearing person not as a man but as a party in the suit. Agents, as mentioned in point number two, can only apply and not plead.
Power of attorney holder: An attorney holder is empowered to act on behalf of the principal.
Fighting One’s Own Case Without a Lawyer
There are multiple situations based on same facts where a party involved in a case have changed multiple lawyers and finally ends up with no cash in pocket. Not even to hire a new lawyer. What should a person do in such cases?
There is a solution to these problems and the solution is fighting one’s own case.
But with greater power comes greater responsibility.
It is true that you will be having in-depth knowledge of the facts as these represents your own timeline but along with the facts, one must be well versed with the working knowledge of substantive and procedural parts of the law.
Say for an example- you are a party to a breach of contract and you have in-depth knowledge of your agreement clauses. This alone will not suffice. Along with knowing your agreement clauses, you must know the provisions of Indian Contract Act and how a civil suit is filed.
There exists a definite and set mechanical procedure for filing cases in courts. Courts are enslaved by their own procedure. For everything there exist steps which you are mechanically required to follow. In-fact, even for getting a certified copy of one’s own judgment, you will be required to hop from one court office to the other and finally bribing the Munshi to take the copy of your own judgment.
Illustrating through an example:
• In Supreme Court, every annexure has to be certified on its last page, while in Delhi High Court, every annexure has to be certified on each page.
• There exists a pile of intricacies which, although, are not tough but requires knowledge of things and which comes with experience.
One can go and fight a case in the court, but the preparation beforehand is the real deal.
Take another illustration of drafting. There are many lawyers who don’t know drafting effectively as it requires experience and knowledge of law. A layman will face not only difficulties but also technical failures which might result in getting the case disposed at the registration stage itself.
Take another example of jurisdiction. Approaching the correct court is the first step towards filling a case. If the case is registered in the wrong court which has no jurisdiction to entertain your case, you will be thrashed up.
Illustrating with another incident will make things more clear.
Incident is of Jharkhand High Court, while a Doctor was fighting his own case. The doctor lost his temper and became aggressive towards the defendant’s lawyer. The hon’ble Chief Justice (Retd.) Justice VirendraSingh reminded the doctor of ethics of the legal profession.
“Judges might leave you as you are 10 feet away from us but the learned advocate to whom you are being aggressive won’t as he is at a distance of mere 2 feet from you”.
Therefore, learning the court ethics and mannerism is also difficult as these are not learned overnight.
The majority of Substantive and Procedural laws were drafted on the model of Common law.The linguistic character of the Acts and regulation are based on multiple semantics and pragmatics rule. Use of a particular ‘shall’ and ‘may’ is capable of turning the tables.Unlike American legal system where laws are very simply put in language so a layman also gets the gist of law.
Few Courts where It is Compulsory to Fight Your Own Case and No Advocates are Allowed
Rule 37 of the Family Court (Rules) 1988 empowers the Court to permit the parties to be represented by a lawyer in Court.
While interpreting section 13 of the Family Courts Act, 1984 and Rule 37 of the Family (Court) Rules, 1988, in LalaMahadeo Joshi v. DrMahadeoSitaram Joshi, a Division Bench of this Court held that section 13 of the Family Courts Act, 1984 does not prescribe a total bar to represent by a legal practitioner which would itself be unconstitutional.
The Court also observed that refusing permission to be represented by a legal practitioner may inevitably result in a possible miscarriage of justice.
In Kishorilal Govindram Bihani v. Dwarkabai Kishorilal Bihani reported,[2] the court reiterated that the party may be permitted to be represented by a lawyer before Family Courts considering the complexities of the case.
Thus, even where the statute contained a provision of an express bar for representation through legal practitioner without permission of the Court, Courts have held that such permission should not be normally be denied.
Arbitration and Conciliation Act, 1996 contains no provision which bars the representation of the parties by a legal practitioner. On the other hand, there is an indication in the Explanation to sub-section (8) to section 31 suggesting that appearance by lawyers is permitted.
No Need of a Lawyer in Consumer Forum
A review of the provisions of the Act discloses that the quasi-judicial bodies/authorities/agencies created by the Act known as District Forums, State Commissions and the National Commission are not courts though invested with some of the powers of a civil court. They are quasi-judicial tribunals brought into existence to render inexpensive and speedy remedies to consumers.
It is equally clear that these forums/commissions were not supposed to supplant but supplement the existing judicial system. The idea was to provide an additional forum providing inexpensive and speedy resolution of disputes arising between consumers and suppliers of goods and services.
The forum so created is uninhibited by the requirement of court fee or the formal procedures of a court. Any consumer can go and file a complaint. The complaint need not necessarily be filed by the complainant himself; any recognised consumers’ association can espouse his cause.
• Where a large number of consumers have a similar complaint, one or more can file a complaint on behalf of all.
• Even the Central Government and State Governments can act on his/their behalf.
The idea was to help the consumers get justice and fair treatment in the matter of goods and services purchased and availed by them in a market dominated by large trading and manufacturing bodies.
Indeed, the entire Act revolves around the consumer and is designed to protect his interest. Even a consumer can argue his own case under the provision of Consumer Protection Act.[3]
Same is the provision for arguing before Industrial Disputes Act, the Income Tax Act and the Sales Tax Act or the Monopolies and Restrictive Trade Practices Act. Such instances can be multiplied.
Court Slams Abusive Use of the Power to Represent One’s Own Case
In an incident, Chennai High Court took strict action against Ashok Surana who represented others without even having a law degree. He signed power of attorney agreements and merrily went on representing his ‘clients’ (he calls them ‘principals’) but non-advocates can not, as of right, barge into a courtroom and claim to plead for another.
Yes, you can file by following the below given procedure.
========================================================
Provision for Fighting One’s Own Case as per Advocate’s Act
Section 32 of the Advocate’s Act clearly mentions, the court may allow any person to appear before it even if he is not an advocate. Therefore, one gets the statutory right to defend one’s own case through Advocate Act in India. This rule is subject to certain exceptions.
• Article 19 of the Constitution of India guarantees certain freedoms to the citizens of this country which includes right to practise any profession or to carry on any occupation, trade or business. It, therefore, naturally follows that the right to practise law, which is a profession, is a fundamental right that is conferred upon all citizens of this country.
• Therefore, it can be said that the person has right to appear in any court in India. There are exceptions based on general rules that are only regulatory in nature and the main purpose is to impose reasonable restrictions in the interest of general public.
Every court has their rules which serve as a guideline for procedure implementation and these rules also talks about contending case without an advocate.
• Rules are regulatory provisions and do not impose a prohibition on the practice of law.
• These Rules prescribe that a person who is not an advocate in the High Court is obligated to file an appointment along with a local advocate. There is no absolute bar to appear.
• In fact, with the leave of the Court, a non-advocate is still permitted to appear even without a local advocate. Also, an advocate who is not on the roll of advocates in the High Court can appear along with a local advocate.
• Alternatively, even without fulfilling this requirement, an advocate who is not on the rolls of advocates in the High Court can move an application before the Court seeking leave to appear without even a local advocate and in appropriate cases, such a permission can be granted.[1]
Provision for Fighting One’s Own Case as per The Provision of Civil Procedure Code
Order rule 1 of Civil Procedure Code:
Any application, appearance or act in court can be made by the following-
1. The party in person, that is a party involved in a case.
2. Any recognized agent of such part.
3. By a pleader, appearing, acting, applying on his behalf.
4. This rule is as per court’s discretion.
The rules laid down are general rules and consider the appearing person not as a man but as a party in the suit. Agents, as mentioned in point number two, can only apply and not plead.
Power of attorney holder: An attorney holder is empowered to act on behalf of the principal.
Fighting One’s Own Case Without a Lawyer
There are multiple situations based on same facts where a party involved in a case have changed multiple lawyers and finally ends up with no cash in pocket. Not even to hire a new lawyer. What should a person do in such cases?
There is a solution to these problems and the solution is fighting one’s own case.
But with greater power comes greater responsibility.
It is true that you will be having in-depth knowledge of the facts as these represents your own timeline but along with the facts, one must be well versed with the working knowledge of substantive and procedural parts of the law.
Say for an example- you are a party to a breach of contract and you have in-depth knowledge of your agreement clauses. This alone will not suffice. Along with knowing your agreement clauses, you must know the provisions of Indian Contract Act and how a civil suit is filed.
There exists a definite and set mechanical procedure for filing cases in courts. Courts are enslaved by their own procedure. For everything there exist steps which you are mechanically required to follow. In-fact, even for getting a certified copy of one’s own judgment, you will be required to hop from one court office to the other and finally bribing the Munshi to take the copy of your own judgment.
Illustrating through an example:
• In Supreme Court, every annexure has to be certified on its last page, while in Delhi High Court, every annexure has to be certified on each page.
• There exists a pile of intricacies which, although, are not tough but requires knowledge of things and which comes with experience.
One can go and fight a case in the court, but the preparation beforehand is the real deal.
Take another illustration of drafting. There are many lawyers who don’t know drafting effectively as it requires experience and knowledge of law. A layman will face not only difficulties but also technical failures which might result in getting the case disposed at the registration stage itself.
Take another example of jurisdiction. Approaching the correct court is the first step towards filling a case. If the case is registered in the wrong court which has no jurisdiction to entertain your case, you will be thrashed up.
Illustrating with another incident will make things more clear.
Incident is of Jharkhand High Court, while a Doctor was fighting his own case. The doctor lost his temper and became aggressive towards the defendant’s lawyer. The hon’ble Chief Justice (Retd.) Justice VirendraSingh reminded the doctor of ethics of the legal profession.
“Judges might leave you as you are 10 feet away from us but the learned advocate to whom you are being aggressive won’t as he is at a distance of mere 2 feet from you”.
Therefore, learning the court ethics and mannerism is also difficult as these are not learned overnight.
The majority of Substantive and Procedural laws were drafted on the model of Common law.The linguistic character of the Acts and regulation are based on multiple semantics and pragmatics rule. Use of a particular ‘shall’ and ‘may’ is capable of turning the tables.Unlike American legal system where laws are very simply put in language so a layman also gets the gist of law.
Few Courts where It is Compulsory to Fight Your Own Case and No Advocates are Allowed
Rule 37 of the Family Court (Rules) 1988 empowers the Court to permit the parties to be represented by a lawyer in Court.
While interpreting section 13 of the Family Courts Act, 1984 and Rule 37 of the Family (Court) Rules, 1988, in LalaMahadeo Joshi v. DrMahadeoSitaram Joshi, a Division Bench of this Court held that section 13 of the Family Courts Act, 1984 does not prescribe a total bar to represent by a legal practitioner which would itself be unconstitutional.
The Court also observed that refusing permission to be represented by a legal practitioner may inevitably result in a possible miscarriage of justice.
In Kishorilal Govindram Bihani v. Dwarkabai Kishorilal Bihani reported,[2] the court reiterated that the party may be permitted to be represented by a lawyer before Family Courts considering the complexities of the case.
Thus, even where the statute contained a provision of an express bar for representation through legal practitioner without permission of the Court, Courts have held that such permission should not be normally be denied.
Arbitration and Conciliation Act, 1996 contains no provision which bars the representation of the parties by a legal practitioner. On the other hand, there is an indication in the Explanation to sub-section (8) to section 31 suggesting that appearance by lawyers is permitted.
No Need of a Lawyer in Consumer Forum
A review of the provisions of the Act discloses that the quasi-judicial bodies/authorities/agencies created by the Act known as District Forums, State Commissions and the National Commission are not courts though invested with some of the powers of a civil court. They are quasi-judicial tribunals brought into existence to render inexpensive and speedy remedies to consumers.
It is equally clear that these forums/commissions were not supposed to supplant but supplement the existing judicial system. The idea was to provide an additional forum providing inexpensive and speedy resolution of disputes arising between consumers and suppliers of goods and services.
The forum so created is uninhibited by the requirement of court fee or the formal procedures of a court. Any consumer can go and file a complaint. The complaint need not necessarily be filed by the complainant himself; any recognised consumers’ association can espouse his cause.
• Where a large number of consumers have a similar complaint, one or more can file a complaint on behalf of all.
• Even the Central Government and State Governments can act on his/their behalf.
The idea was to help the consumers get justice and fair treatment in the matter of goods and services purchased and availed by them in a market dominated by large trading and manufacturing bodies.
Indeed, the entire Act revolves around the consumer and is designed to protect his interest. Even a consumer can argue his own case under the provision of Consumer Protection Act.[3]
Same is the provision for arguing before Industrial Disputes Act, the Income Tax Act and the Sales Tax Act or the Monopolies and Restrictive Trade Practices Act. Such instances can be multiplied.
Court Slams Abusive Use of the Power to Represent One’s Own Case
In an incident, Chennai High Court took strict action against Ashok Surana who represented others without even having a law degree. He signed power of attorney agreements and merrily went on representing his ‘clients’ (he calls them ‘principals’) but non-advocates can not, as of right, barge into a courtroom and claim to plead for another.
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A.Dear Client,
In the prevailing situation, you have two options to resolve the crisis - 1) You can file a petition for bankruptcy if you are unable to repay a debt greater than ₹500 under the Provincial Insolvency Act,1920. After analyzing whether the conditions for filing for bankruptcy have been met, the court may accept or reject the application. Until the decision on the application is taken, an interim receiver takes possession of the property of the debtor. If the application is admitted, the court can apply for a stay on any legal proceedings against the property or assets of the debtor. In other words, you can get a stay order against further recovery efforts by your creditors/lender. 2) Secondly, you can make an application to the District Legal Services Authority or Sub-Division Legal Services Authority seeking free legal aid in resolving the issue. Under Section 12 of the Legal Services Authorities Act, 1987, (b) A victim of trafficking in human beings or begar as referred to in Article 23 of the Constitution; (h) a person in receipt of annual income less than Rupees One lakh or as may be prescribed by the State Government. However, in the case of the first option, You need the assistance of an Advocate for further guidance and steps which may be expensive and time-consuming,
In the prevailing situation, you have two options to resolve the crisis - 1) You can file a petition for bankruptcy if you are unable to repay a debt greater than ₹500 under the Provincial Insolvency Act,1920. After analyzing whether the conditions for filing for bankruptcy have been met, the court may accept or reject the application. Until the decision on the application is taken, an interim receiver takes possession of the property of the debtor. If the application is admitted, the court can apply for a stay on any legal proceedings against the property or assets of the debtor. In other words, you can get a stay order against further recovery efforts by your creditors/lender. 2) Secondly, you can make an application to the District Legal Services Authority or Sub-Division Legal Services Authority seeking free legal aid in resolving the issue. Under Section 12 of the Legal Services Authorities Act, 1987, (b) A victim of trafficking in human beings or begar as referred to in Article 23 of the Constitution; (h) a person in receipt of annual income less than Rupees One lakh or as may be prescribed by the State Government. However, in the case of the first option, You need the assistance of an Advocate for further guidance and steps which may be expensive and time-consuming,
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A.Dear Client,
Filing for bankruptcy in India can be a complex legal process, and it's generally advisable to seek legal counsel to navigate the proceedings effectively. However, not everyone is eligible for bankruptcy. Your financial situation and inability to pay your debts should meet the criteria set by the law. Gather all financial records, including income statements, tax returns, debt-related documents, and any other relevant paperwork that will help support your case. You will need to submit an application to the National Company Law Tribunal (NCLT) or the Debt Recovery Tribunal (DRT), depending on your case. The application should include details of your financial situation and the reasons for filing for bankruptcy. During the process, there may be negotiations with creditors to reach a settlement or repayment plan. The tribunal will appoint an Insolvency Professional (IP) to manage your case. Cooperate with the IP throughout the process.
Filing for bankruptcy in India can be a complex legal process, and it's generally advisable to seek legal counsel to navigate the proceedings effectively. However, not everyone is eligible for bankruptcy. Your financial situation and inability to pay your debts should meet the criteria set by the law. Gather all financial records, including income statements, tax returns, debt-related documents, and any other relevant paperwork that will help support your case. You will need to submit an application to the National Company Law Tribunal (NCLT) or the Debt Recovery Tribunal (DRT), depending on your case. The application should include details of your financial situation and the reasons for filing for bankruptcy. During the process, there may be negotiations with creditors to reach a settlement or repayment plan. The tribunal will appoint an Insolvency Professional (IP) to manage your case. Cooperate with the IP throughout the process.
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