Hon'ble BHANDARI, J.—This appeal is directed against the judgment and order of the National Consumer Disputes Redressal Commission, New Delhi, dated 7.1.2004 passed in First Appeal No. 190 of 1996.

2. A two-Judge bench of this Court by its order dated 10.11.2009 referred this matter to a larger Bench. The said order reads as under:

"The questions in this case is whether proceedings before the Consumer Forum are suits. It appears that there are two conflicting judgments on this point – E.I.C.M. Exports Ltd. vs. South Indian Corporation (Agencies) Ltd. and Another 2009 (10) SCALE 22 and Patel Roadways Limited vs. Birla Yamaha Limited (2000) 4 SCC 91. Hence we are referring the matter to a larger Bench to resolve this conflict, to be constituted by Hon'ble the Chief Justice of India."

Brief Facts:

3. The respondent booked a consignment of Reactive Dyes with the appellant Ethiopian Airlines to be delivered at the Dar Es. Salaam, Tanzania on 30.9.1992. The airway bills were duly issued by the appellant from its office in Bombay at the Taj Mahal Hotel for the said consignment. According to the respondent there was gross delay in arrival of the consignment at the destination, which led to deterioration of the goods.

4. The respondent filed a complaint on 11.5.1993 before the Maharashtra State Consumer Dispute Redressal Commission (hereinafter referred to as 'the State Commission'). Pursuant to the notice issued by the State Commission, the appellant filed a written statement in which the appellant raised a preliminary objection regarding maintainability of the complaint.

5. On 17.1.1996, the State Commission held that the complaint filed by the respondent was not maintainable. The respondent aggrieved by the said order preferred an appeal before the National Consumer Disputes Redressal Commission (hereinafter referred to as 'the National Commission'). The National Commission categorically observed in the impugned judgment that Section 86 of the Code of Civil Procedure (for short 'C.P.C.') was not applicable since the case in dispute is covered under the provisions of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act').

6. The National Commission further held that Section 13(4) of the Act makes the CPC applicable only for the limited purpose. As such, the National Commission took the view that the judgment of the High Court of Delhi delivered in the case of Deepak Wadhwa vs. Aeroflot 24 (1983) Delhi Law Times 1 had no bearing and application in deciding the complaint filed by the respondent.

7. The National Commission set aside the order passed by the State Commission and remitted it to the State Commission so that the State Commission could decide it afresh in accordance with law.

8. The appellant, aggrieved by the said order, has preferred this appeal on the ground that a foreign State or its instrumentality cannot be proceeded against under the Act without obtaining prior permission from the Central Government. The appellant contends that a foreign State or its instrumentality can legitimately claim sovereign immunity from being proceeded against under the Act in respect of a civil claim.

9. It is submitted that, in India, it is clear that there is presumption that sovereign immunity is absolute, but that a foreign sovereign can still be sued in India under certain circumstances with the permission of the Government of India. The Central Government may give consent for such a suit if:

(a) the foreign State has instituted a suit in the Court against the person desiring to sue it; or

(b) the foreign State trades within the legal limits of the jurisdiction of the Court or;

(c) the foreign State is in possession of immovable property situated within those limits and is to be sued with reference to such property or for money charged thereon or;

(d) the foreign State has expressly or impliedly waived the privilege of immunity.

Relevant case law and submissions

10. Reliance was placed on a judgment of the Constitution Bench delivered

Click Here to Read the rest of this document