REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No. 7037 of 2004

Ethiopian Airlines

…Appellant

Versus

Ganesh Narain Saboo

…Respondent

J U D G M E N T

Dalveer Bhandari, J.

1.

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. v. South

Indian Corporation (Agencies) Ltd. and Another

2009 (10) SCALE 22 and Patel Roadways Limited

v. 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

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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 v. 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.

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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