Bombay High Court
Qatar Airways vs Shapoorji Pallonji & Co on 8 January, 2013
Bench: D.Y.Chandrachud, A.A. Sayed
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO. 387 OF 2012
IN
SUMMONS FOR JUDGMENT NO. 271 OF 2010
IN
SUMMARY SUIT NO. 1224 OF 2010
WITH
NOTICE OF MOTION NO. 1773 OF 2012
Qatar Airways. ..Appellant.
versus
Shapoorji Pallonji & Co.
ig ..Respondent.
.....
Mr. J. K. Presswalla with Ms. K.S. Daviervala i/by
Mulla & Mulla & CBC for the Appellant.
Mr. Jamshed Lentin with Ms. Viloma Shah and
Mr. Ativ Patel and Ms. Aziza Khatri i/by
Hariani & Co. for the Respondent.
Mr. Kevik Setalvad, ASG with Mr. Som Sinha and
Mr. Sumit Patni i/by Dhiren Shah for
Union of India.
......
CORAM : DR.D.Y.CHANDRACHUD, AND
A.A. SAYED, JJ.
08 JANUARY 2013.
ORAL JUDGMENT (Per Dy. D.Y. Chandrachud, J.) :
The Respondent has instituted a suit under Order XXXVII of the Code of Civil Procedure, 1908 for the recovery of a sum of Rs. 59.22 lakhs together with interest from the Appellant, based on a contract for carrying out the work of interior decoration at certain offices of the Appellant. In response to the Summons for Judgment, the Appellant filed an affidavit questioning the ::: Downloaded on - 09/06/2013 19:33:02 ::: dmt 2/19 APP387-12.sxw maintainability of the suit on the ground that permission of the Union Government under Section 86 of the CPC has not been obtained. The learned Single Judge held that the suit is maintainable.
2. The Appellant is a juristic entity, a company incorporated under the laws of Qatar. The Appellant has stated that the Company is a 'closed' Qatari share holding company incorporated in accordance with the provisions of Commercial Companies Law No. 11 for the year 1981. The Memorandum of Association and transfer of Qatar Airways Company from a limited liability company to a closed share holding company has been placed on record. The objectives of the Company as disclosed therein are as follows :
"1. Air transport of passengers, goods, mail, luggage and animals.
2. To carry out projects of aviation works, tourism and Air Cargo.
3. Buying, selling and hiring aircrafts and importing the necessary equipment and spare parts for its maintenance.
4. To establish branches and agencies of the Company in and outside the State of Qatar for the purpose of booking tickets and marketing and offering of air transportation.
5. To carry out all permissible air services such as air survey, photography and the like.
6. To participate with other entities, corporations and companies wherever such participation realises profits to the company.
7. To purchase, sell, mortgage, hire lands and buildings to achieve the objects of the company.
8. To establish and manage hotels, clubs and restaurants ::: Downloaded on - 09/06/2013 19:33:02 ::: dmt 3/19 APP387-12.sxw in and outside the State of Qatar.
9. To establish and manage duty free shopping.
10. To carry out landing, technical and commercial services as well as aircraft catering in principal or on behalf of any third party.
11. To establish and manage tourist offices and to carry out media and advertisement works.
12. To manage and operate airports."
According to the Appellant, the Company is owned and controlled by the State of Qatar and by its ruling family. On this basis it has been asserted that the Appellant "is a foreign state within the meaning of Section 86 of the Code of Civil Procedure" and the suit instituted in the original jurisdiction of this Court is not maintainable in the absence of permission by the Central Government.
3. The Respondent had by a communication of its Advocate dated 19 November 2009 to the Legislative Department sought the grant of consent of the Union Government in the Ministry of Law and Justice. The matter was examined and on 24 December 2009 the Union Ministry of External Affairs stated upon consultation with the Legal and Treaties Division that Qatar Airlines does not fall within the purview of Section 86 and thus the question of the grant of permission did not arise. On 13 January 2010 the Advocates for the Respondent once again addressed a communication to the Ministry of External Affairs and submitted that the consent of the Union Government would be required under Section 86 before instituting a suit. On 26 February 2010, the Ministry of External Affairs intimated that the matter was reexamined in the Ministry, which reiterated its earlier view that the grant of permission under Section 86 did not arise.
4. Before the learned Single Judge as well as in this Appeal by ::: Downloaded on - 09/06/2013 19:33:02 ::: dmt 4/19 APP387-12.sxw the Defendant the Additional Solicitor General appearing on behalf of the Union Government has submitted that the institution of the suit did not require the permission of the Union Government under Section 86 (1) since Qatar Airways is not a foreign State within the meaning of sub-section (1) of Section 86.
5. The learned Single Judge by the judgment impugned in these proceedings has held that the suit instituted against the Appellant is maintainable and that permission under Section 86 of the CPC was not required. Aggrieved, the original Defendant is in Appeal.
6.Counsel appearing on behalf of the Appellant submits that (i) Section 86 of the CPC applies to a suit instituted against a corporate body which carries on trading or business activities so long as the ownership of the share capital vests in a foreign State; (ii) In the decision of a Division Bench of this Court in Kenya Airways vs. Jinibai B. Kheshwala,1 it was held that an airline of which ownership and control vests in a foreign State would fall within the purview of the protection conferred by Section 86, though in that case it was held that the airline had in fact waived the protection conferred by Section 86 by participating in the proceedings without demur for a long period of time; (iii) The Supreme Court in EthIopian Airlines V. Ganesh Narain Saboo2 held that Section 86 is not applicable in the context of special legislation enacted by the Parliament subsequently, namely, the Carriage by Air Act, 1982 and the Consumer Protection Act, 1986. In the absence of the field being governed by special legislation of the kind involved in the Ethiopian Airlines case, the provisions of Section 86 would continue to apply and consequently in the absence of permission the suit would not be maintainable.
1 AIR 1998 BOMBAY 287
2 AIR 2011 SC 3495
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7. On the other hand, it has been urged on behalf of the Union Government by the Additional Solicitor General that (i) Qatar Airways operates as a corporate entity in the commercial sphere and to such a body, the provisions of Section 86 of the CPC are not attracted; (iii) The judgment of the Supreme Court in Ethiopian Airlines cannot be read as being restricted only to a situation where special legislation was enacted by Parliament. On the contrary, after considering the ambit of the doctrine of sovereign impunity, the Supreme Court held that the principle that a commercial airline is not entitled to sovereign immunity is consonant with the growing body of international law principles and the principles of law accepted in other jurisdictions including the United Kingdom; (iii) A company incorporated under the Indian Law, or for that matter, of a foreign State has a juristic personality distinct from its shareholders and even if the entire share capital of a foreign company is held by a State or by an entity of the State, that does not render the company a foreign State within the meaning of Section 86(1) of the CPC. The principle that a company has a distinct personality independent of its shareholders has consistently been accepted and applied in Indian law.
8. Counsel appearing on behalf of the original Plaintiff has adopted the submissions which have been urged by the ASG and submitted that in the present case the dispute arises out of a purely commercial contract between the Appellant and the Respondent to which the provisions of Section 86 have no application.
9. Section 86 of the CPC provides as follows :
"S.86.(1) No foreign State may be sued in any Court otherwise competent to try the suit except with the consent of the Central Government certified in writing by a Secretary to that Government:::: Downloaded on - 09/06/2013 19:33:02 :::
dmt 6/19 APP387-12.sxw Provided that a person may, as a tenant of immovable property, sue without such consent as aforesaid a foreign State from whom he holds or claims to hold the property.
(2) Such consent may be given with respect to a specified suit or to several specified suits or with respect to all suits of any specified class or classes, and may specify, in the case of any suit or class of suits, the Court in which the foreign State may be sued, but it shall not be given, unless it appears to the Central Government that the foreign State-
(a) has instituted a suit in the Court against the person desiring to sue it, or
(b) by itself or another, trades within the local limits of the jurisdiction of the Court, or
(c) is in possession of immovable property situate within those limits and is to be sued with reference to such property or for money charged thereon, or
(d) has expressly or impliedly waived the privilege accorded to it by this section.
(3) Except with the consent of the Central Government, certified in writing by a Secretary to that Government, no decree shall be executed against the property of any foreign State.
(4) The preceding provisions of this section shall apply in relation to-
(a) any Ruler of a foreign State;
(aa) any Ambassador or Envoy of a foreign State;
(b) any High Commissioner of a Commonwealth country;
and
(c) any such member of the staff of the foreign State or ::: Downloaded on - 09/06/2013 19:33:02 ::: dmt 7/19 APP387-12.sxw the staff or retinue of the Ambassador or Envoy of a foreign State or of the High Commissioner of a Commonwealth country as the Central Government may, by general or special order, specify in this behalf, as they apply in relation to a foreign State;
(5) The following persons shall not be arrested under this Code, namely:--
(a) any Ruler of a foreign State;
(b) any Ambassador or Envoy of a foreign State;
(c) any High Commissioner of a Commonwealth country;
(d) any such member of the staff of the foreign State or the staff of retinue of the Ruler, Ambassador or Envoy of a foreign State or of the High Commissioner of a Commonwealth country, as the Central Government may, by general or special order specify in this behalf.
(6) Where a request is made to the Central Government for the grant of any consent referred to in sub-section (1), the Central Government shall, before refusing to accede to the request in whole or in part, give to the person making the request a reasonable opportunity of being heard.
10. Section 84 empowers a foreign State to sue in any competent Court provided the object of the suit is to enforce a private right vested in a ruler of a State or in any officer of the State in its public capacity. Section 86 is, in essence, a counterpart of Section 84 because whereas Section 84 regulates the right of a foreign State to sue, Section 86 permits a foreign State being sued in a Court of competent jurisdiction in India subject to the condition that consent of the Central Government has been obtained, duly certified in writing by the Secretary to that Government. Sub-section (2) of Section 86 stipulates when the consent of the Central Government to sue a foreign State may be ::: Downloaded on - 09/06/2013 19:33:02 ::: dmt 8/19 APP387-12.sxw granted. The discretion which is conferred upon the Central Government under sub-section (1) of Section 86 is consequently channelised by sub-section (2). But the point to be noted is that the requirement of obtaining the consent of the Central Government under sub-section (1) of Section 86 applies where a foreign State is being sued in a Court of competent jurisdiction in India. Sub-section (3) requires the consent of the Central Government similarly to the execution of a decree against the property of any foreign State. Sub-section (4) of Section 86 stipulates that the preceding provisions are to apply in relation to any Ruler of a foreign State, an Envoy or Ambassador of a foreign State and to the members of the Consular staff falling under the description of clause (d) of sub-section (4). The requirement of the consent of the Central Government under sub-section (1) arises when a foreign State is proposed to be sued.
11. The underlying object of Section 86 was first considered in a judgment of a Constitution Bench of the Supreme Court in Mirza Ali Akbar vs. United Arab Republic & Anr. 1 . That was a case where a suit was instituted inter alia against the United Arab Republic and a department of the Government of Egypt at Cairo. Explaining the provisions of Section 86 the Supreme Court held that Parliament has by the statute modified to a certain extent the doctrine of immunity recognized by International Law and a foreign State against whom an action is brought could not rely upon a wider doctrine of sovereign immunity under International Law since the municipal Courts in India would be governed by the law enacted by Parliament. The Supreme Court held as follows :
"The effect of the provisions of s. 86(1) appears to be that it makes a statutory provision covering a field which would otherwise be covered by the doctrine of immunity under International Law. It is not disputed that every sovereign State is competent to make its own laws in 1 AIR 1966 SC 230 ::: Downloaded on - 09/06/2013 19:33:02 ::: dmt 9/19 APP387-12.sxw relation to the rights and liabilities of foreign States to be sued within its own municipal courts. Just as an independent sovereign State may statutorily provide for its own rights and liabilities to sue and be sued, so can it provide for the rights and liabilities of foreign States to sue and be sued in its-municipal courts. That being so, it would be legitimate to hold that the effect of s. 86(1) is to modify to a certain extent the doctrine of immunity recognised by International Law. This section provides that foreign States can be sued within the municipal courts of India with the consent of the Central Government and when such consent is granted as required by s. 86(1), it would not be open to a foreign State to rely on the doctrine of immunity under International Law, because the municipal courts in India would be bound by the statutory provisions, such as those contained in the Code of Civil Procedure. In substance, s. 86 (1) is not merely procedural; it is in a sense a counter-part of s. 84. Whereas s. 84 confers a right on a foreign State to sue, s. 86(1) in substance imposes a liability on foreign States to be sued, though this liability is circumscribed and safeguarded by the limitations prescribed by it. That is the effect of s. 86(1)."
The judgment of the Supreme Court in Mirza Ali Akbar's case (supra) involved an action which was brought inter alia against the United Arab Republic on the Original Side of the Calcutta High Court.
12. In a subsequent decision of the Supreme Court in Veb Deutfracht Seereederei Rostock vs. New Central Jute Mills Co.
Ltd., & Anr. 1 an action was brought against a company incorporated in West Germany. In defence to the action, it was urged that the company was a department or an agent or instrumentality of the German Democratic Republic (GDR) and the action could not have been maintained in the absence of permission under Section 86. The Supreme Court noted in the course of its decision that under the Constitution of the German Democratic Republic industrial enterprises, banks, insurance companies, and means of transport, amongst other industries, 1 (1994) 1 SCC 282 ::: Downloaded on - 09/06/2013 19:33:02 ::: dmt 10/19 APP387-12.sxw were nationally owned properties, private ownership being inadmissible in view of the provisions of Article 12 of the Constitution of G.D.R. The Supreme Court held that the Appellant was deemed to be a department of the Government of GDR.
Consequently to an entity which was a department of a foreign State, the provisions of Section 86 were held to apply. At the same time, the Supreme Court addressed a caution to the Union Government in deciding upon applications for permission under Section 86, noting that Section 86 should not be stretched to a point where a company or corporation which carries on business or trade should be immune to actions in a competent Court of jurisdiction in India. In that context the Supreme Court observed as follows :
"While considering the question of grant or refusal of such consent, the Central Government is expected to examine that question objectively. Once the Central Government is satisfied that a cause of action has accrued to the applicant against any foreign company or corporation, which shall be deemed to be a foreign State, such consent should be given. The immunity and protection extended to the foreign State on the basis of International Law should not be stretched to a limit, so that a foreign company and corporation, trading, within the local limits of the jurisdiction of the Court concerned, may take a plea of Section 86 although prima facie it appears that such company or corporation is liable to be sued for any act or omission on their part or for any breach of the terms of the contract entered on their behalf. It is neither the purpose nor the scope of Section 86 to protect such foreign traders, who have committed breach of the terms of the contract, causing loss and injury to the plaintiff. But, if it appears to the Central Government that, any attempt on the part of the plaintiff, to sue a foreign State, including any company or corporation, is just to harass or to drag them in a frivolous litigation, then certainly the Central Government shall be justified in rejecting any such application for consent, because such motivated action on the part of the plaintiff, may strain the relations of this country with the foreign State." (emphasis supplied) ::: Downloaded on - 09/06/2013 19:33:02 ::: dmt 11/19 APP387-12.sxw The reference to a company or corporation which is deemed to be a foreign state are clearly intended to refer to a situation where, as in that case, the entity in question is a department of a foreign state. An entity which is a department of a foreign state is part of the foreign State.
13. In so far as this Court is concerned, a Division Bench of this Court in The German Democratic Republic v. The Dynamic Industrial Undertaking Ltd.1 held that in deciding as to whether a particular foreign State is a foreign State for the purpose of Section 86 recognition de jure or de facto by the Union Government had the same consequence. Consequently, the State.
German Democratic Republic was held to be a foreign sovereign In a subsequent decision in Kenya Airways vs. Jinibai B. Kheshwala (supra), a Division Bench of this Court came to the conclusion that Kenya Airways against whom a suit for eviction had been instituted and which had raised an objection of the absence of consent under Section 86 after a lapse of nearly 16 years after the institution of the suit was precluded from raising the defence. The Division Bench held that Kenya Airways having filed its appearance and having participated in the proceedings had submitted to the jurisdiction of the Court and would be deemed to have waived its right, if any, under Section 86 of the Code. The Division Bench in a subsequent part of its decision however held that since the shares of Kenya Airways were wholly held by the Government of Kenya and not by the public, the company continued to be one which was fully owned and controlled by the Government of Kenya and to which the protection under Section 86 of CPC would have been applicable. However, in view of the earlier finding that the company had waived its right under Section 86, the Division Bench held that it was not entitled to claim the benefit of the protection and the suit was maintainable. As we shall indicate hereafter, the judgment of the Division Bench in 1 AIR 1972 BOMBAY 27 ::: Downloaded on - 09/06/2013 19:33:02 ::: dmt 12/19 APP387-12.sxw Kenya Airways has been construed by the Supreme Court in the judgment in Ethiopian Airlines (supra) as a judgment which prima facie held that Kenya Airways being a State entity would be entitled to immunity under Section 86 but that it had nevertheless waived this immunity by failing to raise the defence at an appropriate time.
14. The most recent of the decisions of the Supreme Court on the subject is that in Ethiopian Airlines (supra). The judgment of the Supreme Court, of a Bench of three learned Judges, arose out of a reference made to a larger Bench. A complaint was filed before the State Consumer Disputes Redressal Commission in respect of a claim arising out of a consignment which was booked on Ethiopian Airlines for delivery in Tanzania. The State Commission held that the complaint was not maintainable. In Appeal, the National Consumer Disputes Redressal Commission held that Section 86 of the CPC was not applicable to a proceeding under the Consumer Protection Act, 1986. The National Commission held that the provisions of the CPC were applicable to proceedings under the Consumer Protection Act, 1986 only for limited purposes. The Supreme Court came to the conclusion that the Consumer Protection Act, 1986 and the Carriage by Air Act, 1972, being more recent statutes of a special nature, Section 86 of the CPC which constitutes an older and more general statute would be inapplicable. Consequently, the consent of the Union Government was not required to subject Ethiopian Airlines to a suit in an Indian Court. But, significantly, the judgment of the Supreme Court does not rest only upon the inapplicability of the provisions of Section 86 to proceedings which were governed under a later and more special enactment. The Supreme Court held that it was consonant both with the principles emerging in International Law as well as with the trends of judicial decisions in other jurisdictions that a commercial airline would not be entitled to claim sovereign immunity. Consequently, the ::: Downloaded on - 09/06/2013 19:33:02 ::: dmt 13/19 APP387-12.sxw Appellant, Ethiopian Airlines, was held to be amenable in its commercial activities which otherwise it undertook in India to jurisdiction of a Court in India. This latter part of the decision emerges from the discussion in paragraphs 70, 71 and 72 which are extracted hereinbelow :
70. Ethiopian Airlines is not entitled to sovereign immunity with respect to a commercial transaction is also consonant with the holdings of other countries' courts and with the growing International Law principle of restrictive immunity. For instance, in England, in Rahimtoola v. H.E.H. The Nizam of Hyderabad and Ors. , Lord Denning found that "there was no reason why a country should grant to the departments or agencies of foreign governments an immunity which [the country does] not grant [its] own, provided always that the matter in dispute arises within the jurisdiction of [the country's] courts and is properly cognizable by them."
Lord Denning also held that "if the dispute concerns...
the commercial transactions of a foreign government... and it arises properly within the territorial jurisdiction of [a country's] courts, there is no ground for granting immunity," finding implicitly that it would not "offend the dignity of a foreign sovereign to have the merits of such a dispute canvassed in the domestic courts of another country."
71. Likewise, in Trendtex Trading Corporation Ltd. v. Central Bank of Nigeria , the Court held that the Central Bank of Nigeria was not entitled to plead sovereign immunity because, according to International Law principle of restrictive immunity, a state-owned entity is not entitled to immunity for acts of a commercial nature, jure gestionis. The Court noted that "if a government department goes into the market places of the world and buys boots or cement - as a commercial transaction - that government department should be subject to all the rules of the market place." The Court also noted an "important practical consideration." stating that foreign sovereign immunity, "in protecting sovereign bodies from the indignities and disadvantages of that process, operates to deprive other persons of the benefits and advantages of [the judicial] process in relation to rights which they posses and which would otherwise be susceptible to enforcement." As the court stated, the principle of restrictive immunity is "manifestly better in accord with practical good sense and with justice."
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72. On careful analysis of the American, English and Indian cases, it is abundantly clear that the Appellant Ethiopian Airlines must be held accountable for the contractual and commercial activities and obligations that it undertakes in India."
The rationale for this broader principle is again enunciated in the following observations :
"In the modern era, where there is close interconnection between different countries as far as trade, commerce and business are concerned, the principle of sovereign immunity can no longer be absolute in the way that it much earlier was. Countries who participate in trade, commerce and business with different countries ought to be subjected to normal rules of the market. If State owned entities would be able to operate with impunity, the rule of law would be degraded and international trade, commerce and business will come to a grinding halt. Therefore, we have no hesitation in coming to the conclusion that the Appellant cannot claim sovereign immunity."
15. Sub-Section (1) of Section 86 postulates the requirement of the consent of the Central Government before a foreign State may be sued in any court otherwise competent to try the suit in India.
Our jurisprudence has in a consistent line of precedent recognised that a corporate entity has a distinct juristic personality. That personality is distinct from those who own the share capital. The principle that a corporate entity incorporated under legislation has its own juristic persona is a well recognised principle under common law as well. This principle has been applied and followed in various contexts in India. An illustration of the authoritative application of this doctrine in Indian Law can be traced to the judgment of Constitution Bench of the Supreme Court in The Andhra Pradesh State Road Transport Corporation vs. The Income-tax Officer.1 The Supreme Court while construing Article 1 AIR 1964 SC 1486 ::: Downloaded on - 09/06/2013 19:33:02 ::: dmt 15/19 APP387-12.sxw 285 (1) of the Constitution held as follows :
"17. Reading the three clauses together, one consideration emerges beyond all doubt and that is that the property as well as the income in respect of which exemption is claimed under clause (1) must be the property and income of the State, and so, the same question faces us again : is the income derived by the appellant from its transport activities the income of the State? If a trade or business is carried on by the State departmentally and income is derived from it, there would be no difficulty in holding that the said income is the income of the State. If a trade or business is carried on by a State through its agents appointed exclusively for that purpose, and the agents carry it on entirely on behalf of the State and not on their own account, there would be no difficulty in holding that the income made from such trade or business is the income of the State. But difficulties arise when we are dealing with trade or business carried on by a corporation established by a State by issuing a notification under the relevant provisions of the Act. The corporation, though statutory, has a personality of its own and this personality is distinct from that of the State or other shareholders. It cannot be said that a shareholder owns the property of the corporation or carries on the business with which the corporation is concerned. The doctrine that a corporation has a separate legal entity of its own is so firmly rooted in our notions derived from common law that it is hardly necessary to deal with it elaborately; and so, prima facie, the income derived by the appellant from its trading activity cannot be claimed by the State which is one of the shareholders of the corporation.
.........
"19. In this connection, we may usefully refer to the observations made by Lord Denning in Tamlin v. Hanna for : "In the eye of the law," said Lord Denning , "the corporation is its own master and is answerable as fully as any other person or corporation. It is not the Crown and has none of the immunities or privileges of the Crown. Its servants are not civil servants, and its property is not Crown property. It is as much bound by Acts of Parliament as any other subject of the king. It is, of course, a public authority and its purposes, no doubt, are public purposes, but it is not a government department nor do its powers fall within the province of government." These observations tend to show that a trading activity carried on by the corporation is not a ::: Downloaded on - 09/06/2013 19:33:02 ::: dmt 16/19 APP387-12.sxw trading activity carried on by the State departmentally, nor is it a trading activity carried on by a State through its agents appointed in that behalf." (emphasis supplied).
16. The same principle was reiterated in a subsequent judgment of the Supreme Court in Western Coalfields Ltd. vs. Special Area Development Authority, Korba & Ors.1 thus :
"The companies, which are incorporated under the Companies Act, have a corporate personality of their own, distinct from that of the Government of India. The lands and buildings are vested in and owned by the companies: the Government of India only owns the share capital. In ig Rustom Cavasjee Cooper v. Union of India : [1970]3SCR530, 555 : (AIR 1970 SC 56 at p. 584) (The Banks Nationalisation case) it was held:
"A company registered under the Companies Act is a legal person, separate and distinct from its individual members. Property of the Company is not the property of the shareholders. A shareholder has merely an interest in the Company arising under its Articles of Association, measured by a sum of money for the purpose of liability, and by a share in the profit."
17. The judgments of the Supreme Court in Mirza Ali Akbar as well as in New Central Jute Mills Co. Ltd., clearly involved a situation where it was either a foreign State or a department of a foreign State that was being sued. In Mirza Ali Akbar the action was brought against the United Arab Republic and a department of Government of Egypt at Cairo on the Original Side of the Calcutta High Court . Similarly, the action in New Central Jute Mills Co. Ltd., in which proceedings eventually led upto the Supreme Court, was brought against an entity which was regarded having regard to the provisions of the Constitution of the German Democratic Republic as a department of the foreign State. The subsequent decision in Ethiopian Airlines now makes it abundantly clear that 1 AIR 1982 SC 697 ::: Downloaded on - 09/06/2013 19:33:02 ::: dmt 17/19 APP387-12.sxw a corporate entity which carries on business or trade in India does not fall within the protection of the doctrine of sovereign immunity as embodied in Section 86 of the CPC. In the world today, corporate bodies both Indian and foreign carry on trade, commerce and business across geographical and national boundaries. Foreign companies carry on business in India. They bring investment, finance and trade. Indian companies carry on business abroad, taking with them investment and our enormous human resource base. The contractual and commercial obligations which they assume are governed by the discipline of the law. In their commercial and business operations such corporate entities cannot claim an immunity to civil actions. Qatar Airways carries on commercial airline operations. It brings and takes passengers and cargo to and from India. It operates offices, engages employees, solicits business and carries on activities of a commercial airline here, as abroad.
18. The rationale for the emerging principle of law was recognised in the judgment of the Court of Appeal in the United Kingdom in Trendtex Trading Corporation Ltd. v. Central Bank of Nigeria1 in the following dictum :
"It is perhaps right to consider first whether the narrower principle is in better conformity with contemporary international relationships than the doctrine of absolute immunity. It seems undeniable that it is. So long as sovereign institutions confined themselves to what may in general terms be described as the basic functions of government a total personal or individual immunity from suit was unobjectionable since the area in which it operated had its own inherent limits. The comity of nations was aided by such a doctrine confined as it was, broadly speaking, to acts which could be properly described as an exercise of sovereign power. The radical changes in political and economic and sociological concepts since the first world war have 1 (1997) 1 All ER 881 ::: Downloaded on - 09/06/2013 19:33:02 ::: dmt 18/19 APP387-12.sxw falsified the very foundations of the old doctrine of sovereign immunity. Governments everywhere engage in activities which although incidental in one way or another to the business of government are in themselves essentially commercial in their nature. To apply a universal doctrine of sovereign immunity to such activities is more likely to disserve than to conserve the comity of nations on the preservation of which the doctrine is founded. It is no longer necessary or desirable that what are truly matters of trading rather than of sovereignty should be hedged about with special exonerations and fenced off from the processes of the law by the attribution of a perverse and inappropriate notion of sovereign dignity."
These principles have now been authoritatively recognised as being part of Indian jurisprudence in the Ethiopian Airlines decision of the Supreme Court. The judgment in Ethiopian Airlines has construed the observation in the judgment of the Division Bench of this Court in Kenya Airways as to the entitlement of Kenya Airways to immunity under Section 86 as a prima facie finding since in any event the Division Bench had come to the conclusion that the immunity had been waived by conduct.
19. In the present case, without expressing any view on merits of the rival entitlements in the summary suit, we need only observe that the claim is founded on a purely contractual and commercial dealing between the Appellant and the Respondent. The Appellant is not a foreign State within the meaning of sub- Section (1) of Section 86. It has a distinct legal personality of its own which finds recognition in the contractual relationships into which it enters. Those contractual relationships occasioned by its business activities in India would be subject to the jurisdiction of a competent court in this country.
20. For these reasons, we do not find that the learned Single Judge was in any error in holding that the suit was ::: Downloaded on - 09/06/2013 19:33:02 ::: dmt 19/19 APP387-12.sxw maintainable. The Union Government has been correct in its assertion that the question of permission of the Union Government did not arise and, as urged by ASG, that the provisions of Section 86 are not attracted.
21. The Appeal shall accordingly stand dismissed. There shall be no order as to costs.
22. On 8 August 2012, the Division Bench presided over by the learned Chief Justice had while standing over the hearing to 11 September 2012 stayed in the meantime the hearing of the Summons for Judgment in the Summary Suit. On the request of Counsel appearing on behalf of the Appellant and in order to enable the Appellant to seek recourse to its remedies against this judgment, we continue the stay granted on 8 August 2012 for a further period of four weeks from today.
23. In view of the dismissal of the Appeal, the Notice of Motion taken out in appeal does not survive. The Motion also stands dismissed.
(DR. D.Y. CHANDRACHUD, J.) (A.A. SAYED, J.) ::: Downloaded on - 09/06/2013 19:33:02 :::