REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 7037 of 2004
Ethiopian Airlines
...Appellant
Versus
Ganesh Narain Saboo
...Respondent
Dalveer Bhandari, J.
SHIV KUMAR SURISURYA KANT
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