Moot Court 1

ALLANCE UNIVERSITY INTRA CLASS MOOT COURT 1, 2018
ALHAMRA AFROZ
15040142049
ALLIANCE UNIVERSITY
ALLIANCE SCHOOL OF LAW
INTRA CLASS MOOT COURT 1
2018
BEFORE THE HON’BLE
SUPREME COURT OF INDIA
(UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA)
IN THE MATTER OF
SRIRAM AND ANR. ....................................................................................APPELLANT
Vs.
KUMAR......................................................................................................RESPONDENT
-MEMORANDUM for THE RESPONDENT-

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Table of content
Index of abbreviation..................................................................................................................03
Index of Authorities................................................................................................................04-05
Statement of Jurisdiction..............................................................................................................06
Statement of Facts.....................................................................................................................07-08
Statement of issues......................................................................................................................09
Summary of arguments...............................................................................................................10
Arguments Advanced................................................................................................................11-20
I. Whether the advocate can be sued under the provisions of the consumer protection Act, 1886?
1.1 Client is regarded as consumer under provisions of consumer protection act....................10-11
1.2 Meaning of ‘service’ under section 2(1) (o) of Consumer Protection Act, 1986.................11-12
1.3 Deficiency in Service in Case of Lawyers.........................................................................13-14
II. Whether the Award passed by the NCDRC is in violation of fundamental right to practice any
profession, or to carry on any occupation as contemplated under Article 19 (1) (g) of the Constitution of
India?
2.1 Article 19(1)(g) of the Constitution of India.........................................................................15
2.2 Deficiency in Service in Case of Lawyers.............................................................................15-16
2.3 Negligence on the part of petitioners...............................................................................16-17
III. Whether the award passed by the NDCRC is correct and lawful?
3.1 Remedies for deficiency in legal services ........................................................................18-19
3.2 Damage suffered solely due to the petitioners negligence.................................................18-19
3.3 Consumer Protection Act,1986........................................................................................19-20
3.4 Breach of duty amounting to deficiency in service............................................................... 20
Prayer..........................................................................................................................................21

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Index of abbreviations
 &: And
 AC: Appeal Cases
 AIR AP: All India Reporter Andhra Pradesh
 AIR Bom: All India Reporter Bombay
 AIR HP: All India Reporter Himachal Pradesh
 AIR Mad: All India Reporter Madras
 AIR MP: All India Reporter Madhya Pradesh
 AIR Raj: All India Reporter Rajasthan
 AIR: All India Reporter
 All ER: All England Report
 Anrs.: Another
 LJ: Law Journal
 LR: Law Report
 LRAC: Law Report Appeal Cases
 Govt.: Government
 Hon’ble: Honourable
 Ors.: Others
 SCC: Supreme Court Cases
 w.r.t: With respect to
 V./Vs.: Versus
 S: Section
 U/S: Under Section
 Viz: Namely
 Eds: Edition
 LR: Law Reporter
 SC: Supreme Court
 P.: Page
 No.: Number
 HC: High Court
 RSA: Regular Second Appeal
 i.e: That is
 Art.: Article
 CPA: Consumer Protection Act, 1986
 AA: Advocates Act
 Para: Paragraph
 E.g: Example
 NCDRC: National Comission Dispute Redressal Comission

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Index of Authorities
Statutes
1. Consumer Protection Act, 1986

2. Advocates Act,
3. Constitution Of India, 1950
Books
1. Justice Ashok Bhan, Landmark Judgments on Consumer Protection Law, National Dispute
Redressal Comission
2. D.D Basu Constitution Of India,Lexis Nexis Butterworths, Wadhwa, Nagpur
3. H.M. Seervai, Constitutional law of India
4. P.K Majumdar Law of Consumer Protection Law in India, 7th Edn. 2nd Vol
5. M.P Jain Indian Constitution Law 7th Edn.
Cases
 Tiffin Hldg Ltd. v.Millican

 A.K. Gopalan v. state of Madras
 C.K.Johnny v.Jaisundaram
 Lucknow Development Authority v.M.K.Gupta
 Srimathi v. Union of India
 Supreme Court in Kishore Lal v. Chairman, Employee’s State Insurance Corp
 D.K.Gandhiv. M. Mathias
 S. Mahendranv. ChirayinkilC. P. Badra Kumar
 Ramon Services Pvt. Ltd. v.Subhash Kapoor
 C.S. Sarmav. P.V. Venkatswamy
 Ramon Services Pvt. Ltd. v.Subhash Kapoor
 In Fletcher & Son v. Jubb Booth and Hellz'well
 Riaz Ahmad v. Sharzfkhan v. Babu Mastafklzan
 R.K.Kannappanv. K.P.K. Komalam
 S. Mahendranv. ChirayinkilC. P. Badra Kumar
 C.S. Sarmav. P.V. Venkatswamy
 Virender Kumar Gupta v. Anil Kumar Jain
 Medical Association v. V.P. Shantha
 Dr. A.S. Chandra v. Union of India
Dynamic Links
 www.manupatra.com
 www.scconline.com
 www.westlawindia.com

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 www.lexisnexis.com
 www.heinonline.com

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STATEMENT OF JURISDICTION
The Hon’ble Supreme Court of India has the inherent jurisdiction to try, entertain and dispose of the
present case by virtue of Article 136 of Constitution Of India.
“Article 136. Special leave to appeal by the Supreme Court
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.

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STATEMENT OF FACTS
 Kumar, a resident of Devanahalli, who owned about 10 acres of agricultural land situated at
Devanahalli, in Survey No. 10/31, filed a suit numbered as O.S.95239/2010 before the Civil Judge (Jr.
Dn.), Devanahalli, for Declaration and Injunction against Neeraj on the ground that he is solve that he
is sole owner who is in absolute and peaceful possession, of the agricultural land in dispute. . 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.
 The suit was decreed in favour of Kumar, declaring the owner of the 10 acres of agricultural land and
restrained Neeraj from interfering with the possession and enjoyment of the property by Kumar.
 Neeraj filed a regular appeal before the First Appellate Court. On the receipt of notice Kumar engaged
Sriram to represent his case. During hearing Sriram sought several adjournments to argue his case.
Despite of the notices and regular reminder by Kumar he did not appear to argue even when it was
posted for final arguments.
 The ‘deficiency of service’ on the behalf of the Sriram, resulted in reverse decision of the Trial Court
and passed the Judgment allowing the counter-claim of Neeraj as prayed in O.S.95239/2010. The
Appellate Court in its Judgement noted the absence of Respondent’s advocate (Sriram) during the
course of argument and pointed out that the Court had no assistance from Respondent’s Advocate in
deciding the matter.
 Sriram failed to give any satisfactory answer for his absence. And this behaviour of his was nothing
but the negligence shown on his part. Which resulted in damage to Kumar as the agricultural land was
the only source of income he had. Rather than correcting his ‘deficiency of service’, he diverted his
onus of negligence to his friend Ajathshatru, and asked Kumar to approach Ajathshatru and filed the
Second Appeal.
 Ajathshatru, delayed in filing Regular Second Appeal, due to which The Second Appellate Court
dismissed the Appeal on the ground of limitation. As the agricultural land was the only source of
income Kumar had and due to the deficiency of service, misconduct and negligence on the part of the
advocates he was left with no savings to litigate before Supreme Court.
 So, Kumar filed a case against them before the National Consumer Disputes Redressal Commision
(NCDRC), at New Delhi which has the jurisdiction to try the matter. And claimed 2 Crores as
compensation.
 NCDRC, allowed the claim of Kumar holding that there was ‘deficiency of service’ on the part of the
said Advocates and awarded Rupees One Crore and Fifty Lakhs as compensation and directed both the
advocates to pay jointly within two months. 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.
 Advocates have approached the Supreme Court and their contention is that the award violates Article
19)(1)(g) of the Constitution of India. The Supreme Court issued stay against the operation, execution
of the award.

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STATEMENT OF ISSUES
I. Whether the advocate can be sued under the provisions of the consumer protection Act, 1986?
profession, or to carry on any occupation as contemplated under Article 19 (1) (g) of the Constitution
of India?
III. Whether the Award passed by the NCDRC is correct and lawful?

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SUMMARY OF THE ARGUMENTS

I.Whether the advocate can be sued under the provisions of the consumer protection Act, 1986?
The counsel on behalf of the respondent most humbly submits to the Hon’ble Supreme Court that yes,
the advocates can be sued under the provisions of the consumer protection Act. The respondent comes
within the ambit of section 2 (d) which defines consumer .And the services rendered by the petitioners
comes under the meaning of service defined under section 2(1)(o). There was deficiency of services on
the part of petitioners due to the gross negligence. Thus, the petitioners can be sued under the provisions
of Consumer Protection Act and liable for the damages.
profession, or to carry on any occupation as contemplated under Article 19 (1) (g) of the Constitution of
India?
The counsel on behalf of the respondent most humbly submits to the Hon’ble Supreme Court that, no,
the Award passed by NCDRC does not violate 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. As the
Award passed by NCDRC does not hinders or restricts the right of the petitions as granted under Article
19 (1) (g). It basis lies on the deficiency of services and negligence on the behalf of the petitioners
which resulted in damage to the respondent. Though a Lawyer may not be responsible for the favourable
outcome of a case as the result/out come does not depend upon only on lawyers’ work, but, if there was
deficiency in rendering services promised, for which consideration in the form of fee is received by him,
then the lawyers can be proceeded against under the Consumer Protection Act.
III. Whether the Award passed by the NCDRC is correct and lawful?
The counsel on behalf of the respondent most humbly submits to the Hon’ble Supreme Court that the
award passed by NCDRC is correct and lawful. A client aggrieved by any deficiency in service has legal
as well as administrative remedy.. A client can claim damages for injury arising from the negligent
conduct of the lawyer. The award to be lawful needs to fulfil following conditions:-
1. Client is a consumer under consumer protection act
2. The services rendered comes under the purview of section 2(1)(o)
3. Deficiency of Services
Thus, the award given by the NDCRC is lawful as it fulfils the conditions required the respondent is the
consumer within the purview of Consumer Protection Act, the services rendered by the petitioners are
considered as service under section 2(1)(o) and breach of duty amounting to deficiency in service.

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ARGUMENTS ADVANCED
I. WHETHER THE ADVOCATE CAN BE SUED UNDER THE PROVIIONS OF THE

CONSUMER PROTECTION ACT,1986?
The counsel would like to most humbly submits that, yes, advocates can be sued under the provisions of
the consumer protection Act, 1986.
1.1 Client is regarded as consumer under provisions of consumer protection act
According to section 2 (d),
“consumer” means any person who,—
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly
promised, or under any system of deferred payment and includes any user of such goods other than the
person who buys such goods for consideration paid or promised or partly paid or partly promised, or
under any system of deferred payment, when such use is made with the approval of such person, but
does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) [hires or avails of] any services for a consideration which has been paid or promised or partly
paid and partly promised, or under any system of deferred payment and includes any beneficiary of
such services other than the person who [hires or avails of] the services for consideration paid or
promised, or partly paid and partly promised, or under any system of deferred payment, when such
services are availed of with the approval of the first mentioned person [but does not include a person
who avails of such services for any commercial purpose];1
Hence, the respondent satisfies the conditions to be called as consumer in consumer protection Act.
In Tiffin Hldg Ltd. v.Millican2, Riley J. stated the obligations of a lawyer as follows:
a) To be skillful and careful.

b) To advise his client on all matters relevant to his retainer, so far as may be reasonably necessary.
c) To protect the interest of his client.
d) To carry out the instructions of his client by all proper means.
e) To consult with his client on all questions of doubt which do not fall within the express or implied
discretion left to him.
f) To keep his client informed to such an extent as may be reasonably necessary, according to the same
criteria.
Therefore it is very open to say that the essence of professional responsibility is that the lawyer must
act at all times utmost good faith to the client.
The Bar Council of India made rules under Section 49 (1)(c) of the Advocates Act, 1961 relating to the
Standards of Professional Conduct and Etiquette for Lawyer in India. It states that : “An Advocate shall,
at all times, comport himself in a manner befitting his status as an officer of the Court, a privileged
1
Consumer Protection Act, s 2(d)
2
Tiffin Hldg Ltd. v.Millican 49 DLR(2d)216

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member of the community, and a gentleman, bearing in mind that what may be lawful and normal for a
person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity may
still be improper for an advocate. Without prejudice to the generality of the foregoing obligation, an
advocate shall fearlessly uphold the interests of his client and in his conduct conform to the rules
hereinafter mentioned both in letter and in spirit. The rules hereinafter mentioned contain cannons of
conduct and etiquette adopted as general guides; yet specific mention thereof shall not be construed as a
denial of the existence of others equally imperative though not specifically mentioned.”
The Consumer Protection Act section 2 (d)(ii) defines ‘consumer of services’, as “any person who
hires or avails of any services for consideration which has been paid or promised…” Therefore to prove
that a client of an advocate is a consumer, he has to satisfy the following criteria:
a) Services are hired or availed of: Means if any person goes to advocate and hires or avail of his
services, he is called a consumer. In other ways if it is established that a particular act constitutes hiring
of services, the transaction falls within the net of the CPA and vice-versa.
b) Consideration must be paid or payable: Consideration is regarded necessary for hiring or availing of
services. However, its payment need not necessarily be immediate. It can be in installments. For the
services provided without charging anything in return; the person availing the services is not a consumer
under the Act. For e.g.: A client hires an advocate to file a suit for recovery of money from his
employer. He promises to pay fee to the advocate after settlement of the suit. That client is a consumer
under the Act.
The C.K.Johnny v.Jaisundaram3, is an instance for the above reasons, where it has been held that “a
client is a consumer as he has availed the service of the advocate for appropriate consideration.”The
draft for Legal Practitioners (Regulation and Maintenance of Standards in Profession, Protecting the
Interest of Clients and Promoting the Rule of Law) Act, 2010., also defines “Consumer of Legal
Profession” includes the clients of legal professionals and anyone who might have recourse to legal
services because of a legal issue and those who are using or may be contemplating using services
provided by the legal professionals in relation to the legal services arising out of a legal issue.4
1.2 Meaning of ‘service’ under section 2(1) (o) of Consumer Protection Act, 1886
“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, board 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.”5
3
C.K.Johnny v.Jaisundaram (1995) CPJ 311
4
Legal Practioners (Regulation and Maintenance of Standards in Profession, Protecting the Interests of Clients and
Promoting the Rule of Law) Bill, 2010
5
Consumer Protection Act, 1986 s2(1)(o)

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As held in Lucknow Development Authority v.M.K.Gupta6,this definition has three parts – the main
part, the inclusory part and exclusory part. The inclusory parts are merely illustrative whereas the main
part is expansive to cover any form of service.
The definition not only extended to actual users but those who are capable of using it are covered in the
definition. The clause is thus very wide and extends to any or all actual or potential users. But the
legislature did not stop there. It expanded the meaning of the word further in modem sense by extending it
to even such facilities as are available to a consumer in connection with banking, financing etc. Each of
these are wide ranging activities; in day to day life. They are discharged both by statutory and private
bodies. In absence of any indication, express or implied, there is no reason to hold that authorities created
by the statute are beyond purview of the Act7
Referring to inclusive part of the definition, it was said :
"The inclusive clause succeeded in widening its scope, but not exhausting the services which could be
covered in earlier part. So any service except when it is free of charge or under constraint of personal
service is included in it".
When a person engages a legal practitioner for extending the professional assistance on legal matters on
payment of fee paid or promise to be paid, he avails of the professional service for a consideration and
therefore, the provisions of the Act come into play. As elaborated later, we find no warrant to read down
the wide definition of service' to exclude the legal professional as a class from the purview of the Act.
In Srimathi v. Union of India8,
The Madras High Court, after referring to the statement of the objects and reasons of CPA rejected the
petitioner’s contentions. The Court observed,
“We are unable to find anything in the statement of objects and reasons which runs counter to the
provisions of section 3 of the Act. What section 3 of the Act says is that “the provisions of the Act shall
be in addition to and not in derogation of the provisions of any other law.” In other words, the Act does
not have the effect of overriding other enactments with reference to matters dealt with in the Act. The
section only provides that it will be open to any person to claim the benefits of this Act and also avail
himself of the provisions of other enactments if there is no inconsistency of conflict and if he is not barred
otherwise, by any other principles of law, like estoppels or election.”
With regard to the contention that once section 3 was declared unconstitutional, no person could institute
any proceeding before the consumer forums. The High Court held that even if the section was declared to
be unconstitutional, “other sections of the Act will continue to be intact and if the services of the advocate
fall within the definition of service under section 2(1)(o) of the Act, then it will certainly be open to a
client to proceed against the advocate before the Consumer Redressal Forum.” The court further observed
that the object of the petitioners to exclude the advocates from the purview of the Consumer Redressal
Forum could not be achieved by the grant of the prayer made in the writ petitions, namely, to declare
section 3 of the Act as unconstitutional.
6
Lucknow Development Authority v.M.K.Gupta (1994) 1 SCC 243
7
K. Vishnu v National Consumer Disputes
8
Srimathi v. Union of India AIR 1996 Mad 427

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In this case petitioners finally argued that a client, who engaged an advocate for professional services,
was not a ‘consumer’ under the section 2 (1)(d) of CPA. This contention was also rejected by the High
Court. The Court held that the language of the said section was very wide and that it used the expression
‘avails of any service for a consideration’. Thus according to the Court “that will not certainly exclude the
services rendered by an advocate.” The High Court referred to the definition of the term service as given
in section 2 (1)(d) of CPA. A reference was also made to a land mark decision of the Supreme Court that
is the case of Lucknow Development Authority v.M.K.Gupta.38 In the said case for instance, the
Supreme Court while referring to the word ‘service’ had made the following observations:
“The term has a variety of meanings. It may mean any benefit or any act resulting in promoting interest or
happiness. It may be contractual, professional, public, domestic, legal, statutory etc. the concept of service
is very wide.”
The Supreme Court in Kishore Lal v. Chairman, Employee’s State Insurance Corp9.,observed that
jurisdiction of the Consumer Forum has to be construed liberally so as to bring many cases under it for
their speedy disposal. The Act being beneficial legislation, it should receive a liberal construction.
In the case of D.K.Gandhiv. M. Mathias10, the National Consumer Redressal Commission made it clear
that all professionals, including lawyers, should come under the ambit of the CPA.
The National Commission stated that,
“The ambit and scope of section 2 (1)(o) of the CPA which defines ‘service’ is very wide and by this time
well established. It covers all services except rendering of services free of charge or a contract of personal
service. Undisputedly, lawyers are rendering service. They are charging fees. It is not a contract of
personal service. Therefore, there is no reason to hold that they are not covered by the provisions of the
Consumer Protection Act, 1986. The State Commission approached the question totally in an erroneous
manner by holding that by executing power of attorney, the client authorizes the lawyer to do certain acts
on his behalf and there is no term of contract as to the liability of the lawyer in case he fails to do such
act. It is to be stated that a lawyer may not be responsible for the favorable outcome of a case as the
result/outcome does not depend upon only on lawyer’s work. But, if there is deficiency in rendering
services promised, for which consideration in the form of fee is received by him, then the lawyers can be
proceeded against under the CPA. Further, it is totally erroneous to hold that it is a unilateral contract
executed by the client by giving authority to the lawyer to appear and represent the matter. Apparently, it
is a bilateral contract between the client and the lawyer, and, that too, on receipt of fees; the lawyer would
appear and represent the matter on behalf of his client. To hold that contract is unilateral is to ignore the
fact that even after discussion the client may not engage the advocate or the advocate may refuse to
accept the brief. Hence, such a contract can never be said to be unilateral.”
1.3 Deficiency in Service in Case of Lawyers
The lawyers render service and charge a fee for it, the basic requirement of service under CPA, 1986. A
lawyer may not be responsible for the favourable outcome of a case, but he should be liable if there is a
9
Kishore Lal v. Chairman, Employee’s State Insurance Corp (2007) 4 SCC 579
10
Order dated August 06, 2007 in RP No. 1392/2006 of National Consumer Dispute Redressal Commission, New Delhi,
(2007) CPJ 337 NC

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deficiency in rendering the promised services. There is a need to examine the amplitude of the term
‘deficiency in services’ under this Act. 11
In S. Mahendran v. ChirayinkilC. P. Badra Kumar, where advocate failed to file a suit; it amounted a
deficiency in service on the part of the advocate. The complainant was held entitled to costs fixed by the
NCDRC and was directed to be paid by the opposite party to the complainant within one month.
The case of misappropriation or misuse of funds, purposeful delay to defeat the limitation period12 and
filing appeals without proper stamps inspite of repeated reminders have been thought fit cases, because
they are considered to be “immoral and shameful” and are supposed to “dishonor” the legal community at
large.
Supreme Court in Ramon Services Pvt. Ltd. v.Subhash Kapoor13,has observed:
“the litigant who suffers entirely on account of his advocates non-appearance in court had also the remedy
to sue the advocate for damages… If advocate claims that his right to strike must be without any loss to
him but the loss must only be for his innocent client, such a claim is repugnant to any principle of fair
play and canons of ethics. So when he opts to strike work or boycott the court, he must as well be
prepared to bear at least the pecuniary loss suffered by the litigant client who entrusted the brief to that
advocate with all confidence that his case would be safe in the hands of that advocate.”
The Consumer Forums are empowered to give appropriate relief according to section 1465 of CPA and
also other relief like, a client can recover the fee paid to the lawyer for any deficiency in service. If it is
yet to be paid, the lawyer forfeits his right to recover the fee. In C.S. Sarmav. P.v. Venkatswamy14, the
complainant had paid fee for filing the suit but the lawyer did not file the suit. The lawyer was directed to
pay fee with interest. Likewise, in Virender Kumar Gupta v. Anil Kumar Jain, where in an execution
proceeding, while representing the petitioner, the respondent (advocate) did not appear and the same was
dismissed for default the petitioner was awarded Rs.1 lakh as compensation for mental agony and
harassment caused by deficiency in service on the part of the respondent.
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?
The award is not in violation of article 19 (1) (g) because it does not renders or hinders the petitioners to
practice their profession. It made the petitioners liable to pay the compensation of 1 crore 50 lakhs.The
award in no way restricts the petitioners to practice their profession or to carry on any occupation as
stated in article 19 (1) (g). It is a compensation given to the respondent for the ‘deficiency of service by
the petitioners.’
11
Jeet Singh Mann, “Liability of the Legal Practitioners for Professional Negligence : A Critical Analysis,” JILI, Vol. 51:3,
2009, Pp.393-394
12
(In Re Pleader, Tirupur, AIR 1945 Mad 55)
13
Ramon Services Pvt. Ltd. v.Subhash Kapoor (1999)(1)SCC
14
C.S. Sarmav. P.v. Venkatswamy (1984)A.C. 296

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‘the litigant who suffers entirely on account of his advocates non-appearance in court had also the remedy
advocate with all confidence that his case would be safe in the hands of that advocate.’
2.1 Article 19(1)(g) of the Constitution of India
Article 19(1)(g) clearly states that, ‘to practise any profession, or to carry on any occupation, trade or
business.’
The Article 19 (1) (g) guarantees to all citizens the right to practice any profession or to carry on any
occupation, trade or business. This freedom is not uncontrolled, for clause (6) of Article 19 authorises
legislation which imposes reasonable restrictions on this right in the interest of general public. However,
reasonable restrictions can be imposed on the use of this right. Under Article 19 (6).
The concept, “interest of the general public” is of wide import and covers legislation for these
preservation and protection of public safety, health, morality and general welfare of the people. In A.K.
Gopalan v. State of Madras , the Supreme Court has that the word, “general public” refers to the rest of
the citizens with reference to free citizen who claims the right in question. It does not refer to any group
or class of people as distinguished from the people generally.
Article 19(1)(g) is not violated as Article 19(6) comes into picture. It is in the interest of ‘general public’
the award was passed to make sure that in future no such negligence, misconduct and deficiency of
services are shown on the part of the advocates.
In the case it is very clear that there was ‘deficiency of service’ on the part of the petitioners. Hence, they
are liable for the compensation to the respondent as the agricultural land was the only source of income
the respondent had and due the negligence done by the petitioners the respondent has suffered.
The award in no sense violate the article 19(1)(g), the advocates are not liable for the outcome only and
only when they have performed their duty in a reasonable manner.
Though a Lawyer may not be responsible for the favourable outcome of a case as the result/outcome does
not depend upon only on lawyers’ work, but, if there was deficiency in rendering services promised, for
which consideration in the form of fee is received by him, then the lawyers can be proceeded against
under the Consumer Protection Act.
2.2 Deficiency in Service in Case of Lawyers:
The lawyers render service and charge a fee for it, the basic requirement of service under CPA, 1986. A
lawyer may not be responsible for the favourable outcome of a case, but he should be liable if there is a
15
Ramon Services Pvt. Ltd. v. Subhash Kapoor (1999) 1 SCC 37

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deficiency in rendering the promised services. There is a need to examine the amplitude of the term
‘deficiency in services’ under this Act.
The CPA, section 2 (1)(g) clearly defines the term ‘deficiency in service’. Therefore the deficiency must
be in relation to and always in term of a service which an advocate provides to the client. Thus if the
grievance pertains to a matter which does not fall in the definition of service (section 2 (1)(o)), the
concept of deficiency would not apply.
And in the present case it is very much clear that the petitioner did not appear to argue the case even when
the final judgement was to be passed. The petitioner 2 delayed in filing the second appeal due to which
limitation period was over.
2.3 Negligence on the part of petitioners:
The position has come to be established that the professional man owes to his client a duty in tort as well
as in contract to exercise reasonable care in giving advice or performing services.In the event of their
failure to exercise reasonable skill and care, they can be sued for negligence. The liability of a lawyer
arises independent of a contract. In tort liability is mainly based on professional negligence16.“ A lawyer
is bound to exercise such care and skill which is expected from a reasonably competent lawyer.”
In Fletcher & Son v. Jubb Booth and Hellz'well17 a client instructed the lawyer to initiate an action
against the local authority for personal injury. He omitted to do so within the period of limitation
prescribed by the Public Authorities Protection Act, 1893. It was held that he was negligent for not
initiating the action within the period of limitation and bound to pay compensation to the client
The question of deficiency in legal services came up in the case MC v. RA18 before the SCDRC for
Madhya Pradesh, Bhopal. A complaint was filed against the appellant advocate for deficiency in service
in not filing a revision before the National Commission despite payment of fee. The advocate explained
that the respondent complainant had got a certified copy of the impugned order, but had failed to deliver it
to the appellant, and in fact had caused the revision to be filed by another advocate. The State
Commission found that there was no deficiency in service and that the District Forum’s order directing
refund of fee was liable to be set aside.
It follows that a lawyer is held liable for the consequences of ignorance or non—obsenance of the
procedural laws and rules of practice pertaining to his department of profession.” A lawyer may be in fact
ignorant of a point of law. But he should take step to inform himself of it. He ought to know generally,
where and how to find the law concering his sphere of profession. The case of misappropriation or misuse
of funds, purposeful delay to defeat the limitation period and filing appeals without proper stamps inspite
of repeated reminders have been thought fit cases, because they are considered to be “immoral and
shameful” and are supposed to “dishonor” the legal community at large.19
16
R. A Percy (ed.), “Charlsworth on Negligence London , para 1006 (1977)
17
In Fletcher & Son v. Jubb Booth and Hellz'well (1920)l K.B. 275.
18
MC v. RA (2002) 3 CPR 351
19
Rupert M. Jackson and John L. Powell

-
(a) Failing to initiate the action with in the period of limitation : A lawyer is under a duty to initiate
proceedings within the period of limitation. If he allows the claim to be barred by limitation, his conduct
should be treated as negligence.20
(b) Failing to pursue the proceedings : After the institution of suit a lawyer is under an obligation to
pursue the proceedings. Any lapse on his part to do so might result in an ex-parte judgement in favour of
the opposite party. This can be considered as negligence.”
In Riaz Ahmad v. Sharzfkhan v. Babu Mastafklzan21,“ in the Maharastra State Commission

observed,”
“. .. Once the advocate is engaged by the client and he receives

fees in part or in full, he is duty bound to attend the interest
of his client. He must file the proceeding as asked for by the
client fortwith. He must incorporate all the pleadings subject
to law and rules and he must be deligent in filing the proceedings
before the court or the tribunal. He cannot relax on this point...
it is his duty to maximise the benefit and to minimise the loss
to his client .
The client may lose or win...”
In R.K.Kannappan v. K.P.K. Komalam22,the professional fee was deducted from land acquisition
compensation. Contention that 10% towards fee was deducted from the amount awarded by the Sub-
Court as agreed between parties, was not acceptable. Deficiency in service was proved. Complaint was
rightly allowed by the forum.
In S. Mahendranv. ChirayinkilC. P. Badra Kumar23 ,where advocate failed to file a suit; it amounted a
deficiency in service on the part of the advocate. The complainant was held entitled to costs fixed by the
NCDRC and was directed to be paid by the opposite party to the complainant within one month.
The award passed by NDCRC is no way violating article 19(1)(g).
3. WHETHER THE AWARD PASSED BY THE NDCRC IS CORRECT AND LAWFUL?
20
Riaz Ahmad Sharzflchan v. Babu Mustafa Khan (1998) 3 C.P.J. 559 (Maharastra S.C.D.R.C)
21
Riaz Ahmad v. Sharzfkhan v. Babu Mastafklzan (1998) 3 C.P.J. 559 (Maharastra S.C.D.R.C.)
22
Product Liability under the Consumer Protection Act 1987
Nicholas Ryder-Margaret Griffiths-Lachmi Singh - Commercial Law
23
S. Mahendranv. ChirayinkilC. P. Badra Kumar (1992) CPJ 883
24
Ramon Services Pvt. Ltd. v.Subhash Kapoor (1999) 1 SCC 37

-
The counsel would like to submit to the hon’ble court, that the award passed by the NDCRC is correct
and lawful.
3.1 Remedies for deficiency in legal services :
A client aggrieved by any deficiency in service has legal as well as administrative remedy. To seek legal
remedy he must either invoke the jurisdiction of civil courts under contract and tort law or the consumer
forae under the Consumer Protection Act, 1986. In both, he can claim damages. Disciplinary jurisdiction
of Bar Councils can also check abuse of position by lawyers. A client can claim damages for injury
arising from the negligent conduct of the lawyer.
The professional accountability of an advocate may be fixed independent of Consumer Protection Act
also. In a judgment of far reaching consequences, the Supreme Court in Ramon Services Pvt. Ltd. v.
Subhash Kapoor25, has observed:
The Consumer Forums are empowered to give appropriate relief according to CPA and also other relief
like, a client can recover the fee paid to the lawyer for any deficiency in service. If it is yet to be paid, the
lawyer forfeits his right to recover the fee. In C.S. Sarmav. P.V. Venkatswamy,26 the complainant had
paid fee for filing the suit but the lawyer did not file the suit. The lawyer was directed to pay fee with
interest. Likewise, in Virender Kumar Gupta v. Anil Kumar Jain27,where in an execution proceeding,
while representing the petitioner, the respondent (advocate) did not appear and the same was dismissed
for default the petitioner was awarded Rs.1 lakh as compensation for mental agony and harassment
caused by deficiency in service on the part of the respondent.
3.2 Damage suffered solely due to the petitioners negligence
As the agricultural land was the only source of income the respondent had. And due to the negligence on
the part of the petitioners, the damage was suffered. It was the only livelihood the respondent had.
It becomes necessary that the respondent needs to be compensated for the non appearance in the court due
to which the court had no assistance from the respondent’s advocate. And not filing the second appeal
with in the limitation period due to which the Second Appellate Court dismissed the Appeal on the
ground of limitation period since no sufficient cause was shown for condoning the delay.
Thus, the damages need to be compensated by the petitioners.
The award to be lawful needs to fulfil following conditions:-
25
Ramon Services Pvt. Ltd. v. Subhash Kapoor AIR 2001 SC 207
26
C.S. Sarmav. P.V. Venkatswamy (1997) CPJ 425 (AP SCDRC)
27
Virender Kumar Gupta v. Anil Kumar Jain 2011 (3) CPJ 409 : 2012(1) CLT 180(NC)

-
1. Client is a consumer under consumer protection act

2. The services rendered comes under the purview of section 2(1)(o)
3. Deficiency of Services
3.3 Cosumer Protection Act,1986
3.3.1 Client as consumer
a) Services are hired or availed of: Means if any person goes to advocate and hires or avail of his
services, he is called a consumer. In other ways if it is established that a particular act constitutes hiring of
services, the transaction falls within the net of the CPA and vice-versa.28
b) Consideration must be paid or payable: Consideration is regarded necessary for hiring or availing of
services. However, its payment need not necessarily be immediate. It can be in installments. For the
services provided without charging anything in return; the person availing the services is not a consumer
under the Act. For e.g.: A client hires an advocate to file a suit for recovery of money from his employer.
He promises to pay fee to the advocate after settlement of the suit. That client is a consumer under the
Act.
The C.K.Johnny v.Jaisundaram,29 is an instance for the above reasons, where it has been held that “a
client is a consumer as he has availed the service of the advocate for appropriate consideration.”The draft
for Legal Practitioners (Regulation and Maintenance of Standards in Profession, Protecting the Interest of
Clients and Promoting the Rule of Law) Act, 2010., also defines “Consumer of Legal Profession”
includes the clients of legal professionals and anyone who might have recourse to legal services because
of a legal issue and those who are using or may be contemplating using services provided by the legal
professionals in relation to the legal services arising out of a legal issue.30
3.3.2 Meaning of service
When a party engages a lawyer, there comes in operation a bilateral contract , where a lawyer renders
services in consideration of the fees is receives.
We have a comprehensive definition of the term 'service' and its wide amplitude is denoted by the phrase
"service of any description". After illustrating various services comprehended within the scope of
'service', the definition proceeds to exclude service rendered free of charge or under a contract of personal
service. What is the nature and meaning of contract of personal service has been explained in Indian
Medical Association v. V.P. Shantha31, and in Dr. A.S. Chandra v. Union of India, 32
In IMA case, S.C. Agrawal, J., speaking for the Supreme Court explained the distinction between
"contract of personal service" and "contract for personal service" in the following words:
28
Commentary on Consumer Protection Act
29
C.K.Johnny v.Jaisundaram (1995) CPJ 311
30
Medical Negligence-a Deficiency in Services Under Consumer Protection Act, 1986
Ms. Gupta - IMS Manthan (The Journal of Innovations) - 2015
31
Medical Association v. V.P. Shantha (1996) AIR 550
32
Dr. A.S. Chandra v. Union of India (1995) 1 SCC 400

-
"A 'contract of service' implies relationship of master and servant and involves an obligation to obey
orders in the work to be performed and as to its mode and manner of performance. We entertain no doubt
that Parliamentary draftsman was aware of this well accepted distinction between "contract of service"
and "contract for services" and has deliberately chosen the expression "contract of service" instead of the
expression 'contract for services', in the exclusionary part of the definition of 'service' in Section 2(1)(o),
the reason being that an employer cannot be regarded as a consumer in respect of the services rendered by
his employee in pursuance of a contract of employment. By affixing the adjective 'personal' to the word
'service' the nature of the contracts which are excluded is not altered. The said adjective only emphasises
that what is sought to be excluded is personal service only. The expression "contract of personal service"
in the exclusionary part of Section 2(1)(o) must, therefore, be construed as excluding the services
rendered by an employee to his employer under the contract of personal service from the ambit of the
expression 'service'.
In Lucknow Development Authority v. M.K. Gupta33 , Sahai, J., explained that the clause 'service of
any description' has been used in a wider sense extending from one to all. Referring to 'service of any
description' and 'potential users' coupled with the inclusive nature of definition in Section 2(1)(o), the
Supreme Court pointed out the word 'service' should receive a wide meaning and connotation. Sahai, J.,
explained:
"The term has variety of meanings. It may mean any benefit or any act resulting in promoting interest of
happiness. It may be contractual, professional, public, domestic, legal, statutory etc. The concept of
service thus is very wide. How it should be understood and what it means depends on the context in
which it has been used in an enactment".
3.4 Breach of duty amounting to deficiency in service:-
Breach of duty arises from violation of contractual or tortious obligations. In most of the situations this is
measured in terms of a reasonably competent lawyer.
Failing to initiate the action with in the period of limitation : A lawyer is under a duty to initiate
proceedings within the period of limitation. If he allows the claim to be barred by limitation, his conduct
should be treated as negligence.
Failing to pursue the proceedings : After the institution of suit a lawyer is under an obligation to pursue
the proceedings. Any lapse on his part to do so might result in an ex-parte judgement in favour of the
opposite party. This can be considered as negligence.”34
Thus, the award given by the NDCRC is lawful as it fulfils the conditions required the respondent is the
consumer within the purview of Consumer Protection Act, the services rendered by the petitioners are
considered as service under section 2(1)(o) and breach of duty amounting to deficiency in services.
33
Lucknow Development Authority v. M.K. Gupta (1994) SCC (1) 243
34
shodhganga.inflibnet.ac.in

-
PRAYER
IN THE LIGHT OF ARGUMENTS AND AUTHORITIES CITED, MAY THIS HON’BLE
COURT BE PLEADS TO:
I. THE NCDRC’S AWARD SHOULD BE UPHELD
II. THE ADVOCATES SHOULD BE SUED UNDER THE CONSUMER PROTECTION

ACT,1986
III. THE RESPONDENT SHOULD BE COMPENSATED FOR THE IRRECOVERABLE

LOSS
AND/OR
ANY OTHER ORDER AS IT DEEMS FIT IN THE INTEREST OF EQUITY, JUSTICE AND
GOOD CONSCIENCE.
FOR THE ACT OF KINDNESS, THE COUNSEL WILL BE DUTY BOUND FOREVER.
(COUNSEL FOR THE RESPONDENT)

-

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ALLANCE UNIVERSITY INTRA CLASS MOOT COURT 1, 2018

BEFORE THE HON’BLE

SUPREME COURT OF INDIA

(UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA)

SRIRAM AND ANR. ....................................................................................APPELLANT

-MEMORANDUM for THE RESPONDENT-

-MEMORANDUM for THE RESPONDENT-

-MEMORANDUM for THE RESPONDENT-

1. Consumer Protection Act, 1986

 Tiffin Hldg Ltd. v.Millican

-MEMORANDUM for THE RESPONDENT-

-MEMORANDUM for THE RESPONDENT-

“Article 136. Special leave to appeal by the Supreme Court

-MEMORANDUM for THE RESPONDENT-

-MEMORANDUM for THE RESPONDENT-

-MEMORANDUM for THE RESPONDENT-

SUMMARY OF THE ARGUMENTS

1. Client is a consumer under consumer protection act

2. The services rendered comes under the purview of section 2(1)(o)

-MEMORANDUM for THE RESPONDENT-

I. WHETHER THE ADVOCATE CAN BE SUED UNDER THE PROVIIONS OF THE

1.1 Client is regarded as consumer under provisions of consumer protection act

According to section 2 (d),

“consumer” means any person who,—

a) To be skillful and careful.

-MEMORANDUM for THE RESPONDENT-

-MEMORANDUM for THE RESPONDENT-

Referring to inclusive part of the definition, it was said :

In Srimathi v. Union of India8,

-MEMORANDUM for THE RESPONDENT-

The National Commission stated that,

1.3 Deficiency in Service in Case of Lawyers

-MEMORANDUM for THE RESPONDENT-

Supreme Court in Ramon Services Pvt. Ltd. v.Subhash Kapoor13,has observed:

2. WHETHER THE AWARD IS IN VIOLATION OF THE FUNDAMENTAL RIGHT TO

-MEMORANDUM for THE RESPONDENT-

Supreme Court in Ramon Services Pvt. Ltd. v.Subhash Kapoor15,has observed:

2.1 Article 19(1)(g) of the Constitution of India

2.2 Deficiency in Service in Case of Lawyers:

-MEMORANDUM for THE RESPONDENT-

2.3 Negligence on the part of petitioners:

-MEMORANDUM for THE RESPONDENT-

In Riaz Ahmad v. Sharzfkhan v. Babu Mastafklzan21,“ in the Maharastra State Commission

“. .. Once the advocate is engaged by the client and he receives

Supreme Court in Ramon Services Pvt. Ltd. v.Subhash Kapoor24,has observed:

The award passed by NDCRC is no way violating article 19(1)(g).

3. WHETHER THE AWARD PASSED BY THE NDCRC IS CORRECT AND LAWFUL?

-MEMORANDUM for THE RESPONDENT-

3.1 Remedies for deficiency in legal services :

3.2 Damage suffered solely due to the petitioners negligence

Thus, the damages need to be compensated by the petitioners.

The award to be lawful needs to fulfil following conditions:-

-MEMORANDUM for THE RESPONDENT-

1. Client is a consumer under consumer protection act

3.3 Cosumer Protection Act,1986

3.3.1 Client as consumer

3.3.2 Meaning of service

-MEMORANDUM for THE RESPONDENT-

3.4 Breach of duty amounting to deficiency in service:-

-MEMORANDUM for THE RESPONDENT-

I. THE NCDRC’S AWARD SHOULD BE UPHELD

II. THE ADVOCATES SHOULD BE SUED UNDER THE CONSUMER PROTECTION