NAME- Praveen Raut

CLASS- LL.B, 3rd Year

DIVISION- B
ROLL No. LC2124204

BALAJI LAW COLLEGE

MEMORIAL FOR MOOT COURT

BEFORE THE HON’BLE

SUPREME COURT

IN THE MATTERS OF
MR. RAM RAHIM AND ANR.
(PETITIONERS)

V.
Mr. KUMAR
(RESPONDENTS)

MEMORIAL ON THE BEHALF OF RESPONDENT

MEMORIAL FOR RESPONDENT 1

 INDEX
1) LIST OF ABBREVATION
2) STATUTES
3) TABLE OF CASES
4) STATEMENT OF JURISDICTION
5) STATEMENT OF FACTS
6) STATEMENT OF ISSUES
7) ADVANCED ARGUMENTS
8) PRAYER

MEMORIAL FOR RESPONDENT 2

 LIST OF ABBREVATIONS
1. & : And
2. AIR : All India Reporter
3. Ors : Others
4. ¶ : Paragraph
6. Hon’ble :Honourable
7. HC : High Court
8. No : Number
9. Exec : Executive
10.P : Page
11.pp : Pages
12.Sec : Section
13.Ss : Sections
14.V : Versus
15.SC : Supreme Court

MEMORIAL FOR RESPONDENT 3

 STATUTES:

1.Constitution of India, 1950

2. Advocates Act, 1961
3. Consumer Protection Act, 2019

Database:
1.www.casemine.com
2. www.ssconline.co.in
3.www.indiankanoon.com

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 TABLE OF CASES

1. SJ Choudhary V. State
2. VP Kumaravelu V. Bar Council of India
3. BuparaoPakhiddey V. Suman Dondey
4. LC Goyal V. Nawal Kishore
5. Devender Bhai Shanker Mehta V. Ramesh Chandra
Vitthal Dass Seth
6. Virendra Kumar Gupta V. Anil Kumar Gupta
7. Central Bureau of Hyderabad V. K Narayan Rao
8. NG Dastane V. Shrikant S Shivde
9.

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 STATEMENT OF JURISDICTION

The Respondent, hereby has the Honour to submit this Memorandum in reply
to this special leave petition filed by the appellant before the
Hon’ble Supreme Court.

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 STATEMENT OF FACTS

Facts of the case:

1. Kumar, resident of Devanahalli, who owned 10 acres of agricultural
land situated at Devanahalli, under Survey No.10/5 filed a suit
numbered as O.S.239/2010 before the Civil Judge (Jr. Dn.),
Devanahalli, for Declaration and Injunction against Neeraj on the
ground that he is the sole owner of the agricultural land in dispute.

2. On receipt of summons, Neeraj appeared before the said Court and

engaged a lawyer to conduct his case. Neeraj not only opposed the suit
claim but also filed a counter claim against Kumar for Declaration and
injunction in respect of the said property.

3. The suit was decreed in favour of Kumar declaring him as the owner of
10 acres of agricultural land and restrained Neeraj from interfering
with peaceful enjoyment of the said agricultural property by Kumar.

4. Aggrieved by the judgment and decree in O.S.239/2010 Neeraj filed

Regular Appeal before the First Appellate Court. On receipt of Appeal
Notice, Kumar engaged Sri. Ram Rahim, a famous civil lawyer in
Devanahalli, to represent and argue his case before the Appellate
Court. Kumar paid Fifty Thousand rupees as initial fee to Sri. Ram
Rahim.

5. When the Appeal was posted for hearing, Advocate representing

Neeraj argued the matter and completed his side. However, Sri Ram
Rahim sought several adjournments to argue on behalf of Kumar. He
did not turn up to argue even when it was posted for final argument.

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 6. The Appellate Court reversed the finding of the trial court and decreed
the counter claim of Neeraj in O.S.239/2010. The Appellate Court in its
judgment noted the absence of Respondent’s advocate (Sri. Ram
Rahim) during the course of argument and pointed out that the Court
had no assistance from Respondent’s Advocate in deciding the matter.

7. The judgment of the Appellate Court was death knell for Kumar as the
land in dispute was life line for him and his family.

8. Kumar enquired with his Advocate about his absence during hearing of
the Appeal but did not get a satisfactory answer. However, Sri. Ram
Rahim advised Kumar to file Second Appeal against the Judgment of
the First Appellate Court and referred the name of Sri. Ajathshatru.
Kumar followed his advice and engaged Sri. Ajathshatru for filing
Second Appeal and paid rupees One Lakh as initial fee.

9. Sri. Ajathshatru took his own time to file Second Appeal and by the
time Second Appeal was filed, the limitation period was over.
Thereafter, he filed Second Appeal along with an Application to
condone the delay.

10.The Second Appellate Court dismissed the Appeal on the ground of

limitation period since no sufficient cause was shown for condoning
the delay. Sri. Ajathshatru advised Kumar to approach the Supreme
Court.

11.Kumar virtually had no means to continue the litigation before the

Supreme Court as he had lost all the money in litigation. Neeraj spared
no time to execute the decree passed in his favor by the First Appellate
Court and took possession over the land in dispute.

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 12.Having lost agricultural land, which was life line for him and his family
due to inefficiency and negligence of his Advocates, Sri. Ram Rahim
and Sri. Ajathshatru , Kumar filed a case against them before the
National Consumer Disputes Redressal Commission (NCDRC), at New
Delhi for deficiency of service and claimed One crore rupees as
compensation.
13.Kumar argued that there was ‘deficiency of service’ on the part of both
the Advocates who failed to pursue his case before the Appellate
Courts in an efficient and professional manner. He also contended that
both the advocates were highly negligent, one of them did not argue
his case before the first Appellate Court and the other advocate failed
to file Second Appeal in time before the High Court and got it
dismissed at the threshold, as result of which he had lost his property
and means of livelihood. On notice, both the advocates appeared and
argued that, advocates are immune from any legal action under the
Consumer Protection Act, 1986, as Kumar is not a ‘consumer’ under
the Act and their relationship as client and advocate is a ‘contract of
personal service’ and not a ‘contract for personal service.’ They argued
that they are merely his agents and represented him in the Court and
are Officers of the Court and no legal action can be initiated for actions
done in the course of judicial proceeding. Further, it was argued that,
it is for the Court to decide the case on its merit and no advocate can
guarantee the result.

14.The NCDRC, however, allowed the claim of Kumar holding that there
was ‘deficiency of service’ and awarded One crore rupees as
compensation and directed both the advocates to pay together the
award amount within two months from the date of the order.

15.The said Order created havoc among the legal fraternity and became
national news. Within two months of passing of this Order there were
two thousand cases filed against advocates across the country before
consumer forums for deficiency of service.

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 16.Both the advocates approached the Supreme Court against the award
of NCDRC and contended that among other things that the said award
is also in violation of Article 19 (1) (g) of the Constitution of India. The
Supreme Court issued stay against the operation, execution of the
award.Now the case is set for hearing before the Supreme Court.

Statement of Issues

Issues:
1. Whether the Advocates fall within the provisions of the Consumer
Protection Act, 1986?

2. Whether the award is in violation of the fundamental right to

practice any profession, or to carry on any occupation as
contemplated under Article 19 (1) (g) of the Constitution of India?

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 Arguments Advanced

ISSUE ONE: Whether the Advocates fall within the provisions

of the Consumer Protection Act, 1986?
Yes, as per section 2(42) of the Consumer Protection Act,"service" means
service of any description which is made available to potential users and
includes, but not limited to, the provision of facilities in connection with
banking, financing, insurance, transport, processing, supply of electrical or
other energy, telecom, boarding or lodging or both, housing construction,
entertainment, amusement or the purveying of news or other information,
but does not include the rendering of any service free of charge or under a
contract of personal service.
A contract of services refers to an agreement where a person or entity
agrees to provide certain services to another party in exchange for
consideration (payment). These services are typically provided in the course
of a business or professional activity. The focus in a contract of services is
on the services being rendered, rather than the personal attributes of the
service provider. Contracts of services fall within the scope of consumer
protection laws. A contract for services refers to a contract in which one
party agrees to provide service-professional or technical service to another
in the performance of which he is not subject to detailed direction and
control and uses his own knowledge and discretion.
In the case of Srimathi Vs. Union of India [3], the Madras High Court held
that Section 2(1)(o) is wide enough to include legal services and therefore,
advocates can be sued under the provisions of the Consumer Act.

Lucknow Development Authority Vs. M.K. Gupta

The NCDRC held that when a client authorises an advocate to represent
before a forum, there is not any contract that imposes liability on the
advocates if the client had suffered from deficiency in their services. The

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 NCDRC observed that the advocates may not take responsibility for a
favourable decision for the client since the decision making is not only in
the hands of the complainant’s advocate as it depends on the inputs from
the advocate of the other side and the judges. However, if an advocate
showed any deficiency in his/her services and charged a fee for rendering
such services, then the advocate can be tried under the Consumer Act. This
is because the Consumer Act is a welfare legislation and the clients should
not be seen helpless against their advocates.

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 ISSUE TWO:Whether the award is in violation of the
fundamental right to practice any profession, or to carry
on any occupation as contemplated under Article 19 (1) (g)
of the Constitution of India?
No, the award granted by the NCDRC is not in violation of the
fundamental right to practice any profession, or to carry on any
occupation as contemplated under Article 19(1)(g) of the
Constitution of India because it’s essential to note that Article
19(1)(g) is subject to reasonable restrictions imposed by law in the
interest of the general public under Article 19(6) of the
Constitution. Therefore, any restriction imposed by an award must
be justified as being necessary and reasonable for the protection
of public interest or other legitimate reasons.
As per Order 17 rule 1 of the Code of Civil Procedure 1908 , The court
may, if sufficient cause is shown, at any stage of the suit grant time to the
parties or to any of them, and may from time to time adjourn the hearing of
the suit for reasons to be recorded in writing.
As because the litigants have been freely obtaining adjournment
causing delay of disposal of suits leading to serious harassment,
amendment of the rule has been made in 2003, by inserting sub-rule
(3) to (7) to rule 1 narrowing down the discretion of the court. The
Court shall not grant more than 6 adjournments at the instances to
either party to the suit before fixing a suit for peremptory hearing.
Not more than 3 adjournments with cost can be allowed after 6 initial
adjournments without costs.
When the Appeal was posted for hearing, Advocate representing Neeraj
argued the matter and completed his side. However, Sri Ram Rahim sought
several adjournments to argue on behalf of Kumar. He did not turn up to argue
even when it was posted for final argument.
While going through the facts of the case, it is observed that the default is
from the advocate’s side that the advocate had gone for the several
adjournments in spite of final call for the argument the advocate did not

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eventook the initiative to argue, which led the decree goagainst Kumar, which
shows the professional misconduct of the advocate Shri. Ram Rahim.

NG Dastane vs. Shrikant S. Shivde AIR 2001 SC 2028- Advocates kept

seeking adjournments, and thus harassing the witnesses for the purpose of
cross-examination. Guilty of misconduct. Court also analysed Section 35 of
the Act and held that the requirement of “reason to believe” cannot be
converted into a formalised procedural road block, it being essentially a
barrier against frivolous enquiries. Violation of Rule 11 of the BCI Rules-
Chapter II.

On the advice of Shri. Ram Rahim, the aggrieved party Mr. Kumar
approached Shri. Ajathshatru, for the second appeal for his case, also Shri.
Ajathshatru took his fee of Rs. One Lakh with the brief of the case. Sri.
Ajathshatru took his own time to file Second Appeal and by the time Second
Appeal was filed, the limitation period was over. Thereafter, he filed Second
Appeal along with an application to condone the delay.The Second
Appellate Court dismissed the Appeal on the ground of limitation period
since no sufficient cause was shown for condoning the delay.

Here the negligence was found on the part of Mr. Ajathshatru as he did not
filed the case for the second appeal and crossed the limitation period which
led the rejection of appeal filed.

Central Bureau of Hyderabad vs. K Narayan Rao

For liability, there has to be moral delinquency. Mere negligence sans moral
delinquency will not suffice. If negligence is done, then it may lead to
professional misconduct.

Hence, the rights of the advocates were not infringed and the award is in
violation of the fundamental right to practice any profession, or to carry on any
occupation as contemplated under Article 19 (1) (g) of the Constitution of
India.

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PRAYER

Whereof in the light of the facts stated, issue raised,

arguments advanced and authorities sites, it is humbly
requested that the Hon’ble Supreme Court may be pleased
to upheld the decision of NCDRC and declare that:
1. The Advocates fall within the provisions of the Consumer
Protection Act, 1986.
2. The award is not in violation of the fundamental right to
practice any profession, or to carry on any occupation as
contemplated under Article 19 (1) (g) of the Constitution of
India.
AND/OR
Pass any other order, which this Hon’ble Court may deem fit
in light of justice, equity and good conscience.
ALL OF WHICH IS RESPECTFULLY SUBMITTED.

Sd-
COUNSEL FOR RESPONDENT.

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