CLASS MOOT 2018

ROLL NO- 1459

BEFORE THE LEARNED DISTRICT CONSUMER FORUM

OF MOHALI

Complaint No. ____ Of 2018

In the matter of

AAGAZ ASSOCIATION COMPLAINANT

V.

M/S HAPPY HOMES RESPONDENT

MEMORIAL ON BEHALF OF THE RESPONDENT

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS iii

INDEX OF AUTHORITIES iv

STATEMENT OF JURISDICTION v

SUMMARY OF FACTS vi

ISSUES RAISED vii

SUMMARY OF ARGUMENTS viii

ARGUMENTS ADVANCED 1-4

CONTENTION 1: THAT COMPLAINT HAS NO MERIT HENCE IT MUST BE DISMISSED ON MERITS 1-3
PRAYER ix

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LIST OF ABBREVIATIONS

& And
¶ Page
CPJ Consumer Protection Journal
NC National Commission
All Allahabad
Anr. Another
Bom. Bombay
Cal. Calcutta
Ed. Edition
Hon‟ble Honourable
H.P. Himachal Pradesh
Mad Madras
S. Section
S.C. Supreme Court
S.C.C. Supreme Court Case
T.N. Tamil Nadu
U.P. Uttar Pradesh
v. Versus
Vol. Volume
Ld. Learned

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INDEX OF AUTHORITIES

STATUTORY COMPILATIONS

 CONSUMER PROTECTION ACT, 1986

 REAL ESTATE (REGULATION AND DEVELOPMENT ACT, 2016
 PUNJAB STATE REAL ESTATE (REGULATION AND DEVELOPMENT) RULES, 2017

BOOKS AND DIGESTS

J N BOROWALIA, Commentary on the Consumer Protection Act, 2016 (6th ed.)

TABLE OF CASES

1. V.K Nayar v. Gaziabad Devlopment Authority 2003 CPJ 130 (NC)

2. Yash Bir Jaggi v. Unitech Ltd. IV (2006) CPJ 123 (NC)

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STATEMENT OF JURISDICTION

COUNCIL FOR RESPONDENT HUMBLY SUBMITS TO THE JURISDICTION INVOKED BY COMPLAINANT U/S
11 OF CONSUMER PROTECTION ACT 1986.

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SUMMARY OF FACTS

1. M/s Happy Homes is a company which develops residential colonies. Which has also
developed the project “Happy Homes”
2. It entered in construction linked agreement with buyers known as “ Builder Buyer
Agreement” that had a clause if the total area of construction increases after
construction of flats “super area” not exceeding Rs. 10 lacs for which buyers will be
liable.
3. M/s Happy Homes raised a demand of Rs. 10 lacs on account of increase in super area of
construction.
4. 33 out of 53 buyers formed an association „Aagaz‟ and filed a complaint in consumer
district forum.

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ISSUES RAISED

1. WHETHER THE COMPLAINT HAS NO MERIT AND WHETHER IT SHOULD BE DISMISSED ON

MERITS OR NOT?

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SUMMARY OF ARGUMENTS

CONTENTION 1: THAT COMPLAINT HAS NO MERIT HENCE IT MUST BE DISMISSED ON MERITS

IT IS HUMBLY SUBMITTED BEFORE THIS LD. FORUM THAT THE COMPLAINANT HAS NO
MERIT REGARDING THE MATTER IN DISPUTE THAT IS PRICING AND ESCALATION BEFORE
ALLOTMENT OF APARTMENTS THAT IS ACCORDING THE BUILDER BUYER AGREEMENT
HENCE THE COMPALINT BE DISSMISSED.

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 CLASS MOOT 2018

ARGUMENTS ADVANCED

CONTENTION 1: THAT COMPLAINT HAS NO MERIT HENCE IT MUST BE DISMISSED ON MERITS

It is humbly submitted before this Ld. Forum that the complaint has no merit regarding the
matter in dispute ie. Pricing and escalation that is according the builder buyer agreement
complaint regarding the pricing must be entertained when service provider has charged excess of
price in the following conditions1-:

a) fixed by or under any law for the time being in force

b) displayed on the goods or any package containing such goods
c) displayed on the price list exhibited by him by or under any law for the time being in
force
d) agreed between the parties

*Services include housing, construction2

Hence it is submitted that the matter which is regarding the excess charging of price due to
increase in super area comes under no head as listed above rather the parties have entered in a
builder buyer agreement which includes the price escalation clause upto Rupees Ten lacs and
builder has made a demand of Rupees Seven Lacs. Therefore the price has already been agreed
between the parties.

Further in the case of V.K Nayar v. Gaziabad Devlopment Authority3 it was held that Original
price tentative, escalation could be made at the time of finalizing of accounts. Forum cannot go
into the question of pricing. In this case Petitioner was the complainant before the District Forum
where he had filed a complaint praying to know the basis, on which price of the flat has been
increased as also the rationale for Rs. 3048/- levied as lease rent. District Forum after hearing the
parties dismissed the complaint on the grounds that actual price indicated was tentative and
additional amount of Rs. 15,900/- was sought after finally working out the price of the flats
Consumer Forum, in any case, cannot go into the question of Price Lease Rent needs no
1
Sec. 2 (c)iv Consumer Protection Act, 1986
2
Sec. 2 (o) Consumer Protection Act, 1986
3
2003 CPJ 130 (NC)

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clarification. Since the Petitioner is not coming forward to take possession of the flat despite
repeated notices. Since the possession has been offered within two years of allotment and
demands being as per terms of Brochure, there was no merit in the prayers made. An appeal filed
by the Petitioner before the National Commission was dismissed.

Moreover in the case of Yash Bir Jaggi v. Unitech Ltd.4 In this case the matter was that the
builder demanded additional amount on the ground that super area had been increased from 2108
sq. ft. to 2343.45 sq. ft. i.e. an increase of 235.45 sq. ft.; Rs. 2,92,931 towards escalation in the
cost of construction, and, Rs. 125 per sq. ft. towards the cost of electric substation, firefighting
installations, water and sewer connection charges. These amounts were payable by 31.1.2005
and 6.2.1995 respectively. The complainant did not pay these amounts. Hence, the builder had
sent a statement of account as on 28.2.1995 outstanding against the complainant indicating Rs.
7,19,390 plus Rs. 30,000 towards interest free security deposit. Rs. 7,19,390 included charges
for payment towards exclusive car parking space. As the amount was not paid, the builder did
not deliver the physical possession of the flat. And hence the complaint was dismissed on merits

Further it was also held that the complainant should approach the Civil Court for redressal of his
grievance, forum will be competent to take evidence and interpret the agreement entered into
between the parties in the light of the evidence. And pricing of flat or plot is not a factor which
falls within the purview of the Consumer Redressal Forum.

If the agreement allows company shall have the right to effect suitable and necessary alterations
in the plans, layout plans, if and when found necessary, which may involve all or any of the
changes namely in the position of the said apartment, change in number of said apartment,
change in its boundaries or floor etc. Further, as a result of such changes, if there is any
increase/decrease in the super area, described above, revised price will be applicable at the
original rate at which the said apartment was booked/allotted. 5

Therefore it is humbly submitted before this Ld. Forum that the “Builder– Buyer Agreement”
must be taken in consideration and the escalation shall be construed according to the agreement.

4
IV (2006) CPJ 123 NC
5
Ibid.

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And the demand of additional payment be held legal and tenable and the complaint shall be
dismissed on merits.

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PRAYER

In the light of the facts of the case, issues raised, arguments advanced and authorities cited, the
Counsel for the Respondent humbly prays before the Ld. Forum to kindly adjudge and declare
that:

TTHE DEMAND BY THE M/S HAPPY HOMES IS LEGAL AND TENABLE. MOREOVER COMPLAINANT’S

BE ORDERED TO PAY THE REMAINING AMOUNT TILL THE FIRST DATE OF NEXT MONTH.

And to further pass any order that the Ld. Forum may deem fit.
And for this act of kindness, the Counsel on behalf of the Respondent, as duty bound shall
forever pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

_______________________________

SD/-

COUNSEL FOR THE RESPONDENT

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