State Consumer Disputes Redressal Commission
Ganpati International vs Uzbekistan Airways on 18 September, 2008
IN THE STATE COMMISSION:DELHI IN THE STATE COMMISSION: DELHI (Constituted under Section 9 of The Consumer Protection Act, 1986) Date of Decision: 18.09.2008 EX. No. -206/06 M/s Ganpati International Petitioner 205, Sarvpriya Vihar Apartments, New Delhi. Now merged into : Trident Infotech Corporation Ltd., Having Registered at: Trident Complex, Sanghera, Barnala, Punjab-148101. Versus M/s Uzbekistan Airways Opposite Party Suit No. 110-A, Hotel Ashok, Through B-50, Chanakyapuri, Mr. K.K. Khurana & New Delhi. Mr. A.K. Mehta, Advocates Presently At: GS-3, Parkash Deep Building, 7-Tolstoy Marg, New Delhi-110001. Also At: Upper Ground Floor, Kanchanjunga Building, Barakhamba Road, New Delhi-110001. CORAM: Justice J.D. Kapoor President Ms. Rumnita Mittal Member
1. Whether Reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Justice J.D. Kapoor, President (Oral)
1. The complaint of the petitioner was allowed by this Commission vide order dated 10.10.2006 in the following terms :-
Taking over all view of the matter as well as the nature of transaction between the parties and the mitigating circumstances explained by the OP as to the delay in lifting the cargo we deem that lump sum compensation of Rs. 1,00,000/-(Rs. one lac) would meet the ends of justice. Payment shall be made within one month.
Though OP claims that it is a State and performs sovereign function and therefore it could be sued only after service of notice under section 86 of CPC, the execution of the aforesaid order shall be subject to the production of the documentary evidence by the OP bringing it within the ambit of those entities that are governed by the provisions of Section 86(6) of CPC or may produce any certificate from the Government authority in this regard at the time of execution proceedings.
2. Pursuant to the execution petition, the respondent has filed a certificate issued by the Embassy of the Republic of Uzbekistan in India certifying that Uzbekistan Airways is a National Air Carrier of the Republic of Uzbekistan, Tashkent, Uzbekistan and the Airline is wholly owned and controlled by the Republic of Uzbekistan and therefore the functioning and the working of the Airline is under the decree of the President of the Republic of Uzbekistan. The certificate reads as under :-
This is to certify that Uzbekistan Airways is a National Air Carrier of the Republic of Uzbekistan, Tashkent, Uzbekistan and the Airline is wholly owned and controlled by the Republic of Uzbekistan and therefore the functioning and the working of the Airline is under the decree of the President of the Republic of Uzbekistan who is Head of the State and is a Sovereign Body. The headquarter of the Airline is in Tashkent, the Capital City of Uzbekistan. The Branch Office in India is an extension of the Department of Civil Aviation, Government of Uzbekistan, fully controlled from Tashkent by the Cabinet of the Government of Uzbekistan.
The Decree for creation of the Airline under Department of the Government of Uzbekistan is passed on 28th January, 1992 which was duly approved by the Resolution of the Cabinet of Ministers of the Republic of Uzbekistan as on 4th February, 1992.
3. Section 86 (1) CPC provide that 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. The relevant extracts are as under :-
Suits against foreign Rules, Ambassadors and Envoys (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;
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.
4. Admittedly no permission of the Central Government of India, under the provision of Section 86 (1) CPC, was obtained by the petitioner before filing the instant complaint. It is contended by the petitioner that the provisions of Section 86 (1) CPC are applicable in respect of suits only against foreign Rules, Ambassadors and Envoys whereas complaint u/s 12 of the Consumer Protection Act is not a suit. On the other hand, the counsel for the respondent has relied upon the decision of Supreme Court in Patel Roadways Ltd. Vs Birla Yamaha Ltd., holding that proceeding before the National Commission and for that purpose before the Consumer Forum or State Commission, come within the term suit. The observations of the Supreme Court on this point are as under :-
From the above it is clear that the term suit is a generic term taking within its sweep all proceedings initiated by a party for realization of a right vested in him under law. The meaning of the term suit also depends on the context of its user which in turn, amongst other things, depends on the Act or the rule in which it is used. No doubt the proceeding before National Commission is ordinarily a summary proceeding and in an appropriate case where the Commission feels that the issues raised by the parties are too contentious to be decided in a summary proceeding it may refer the parties to a civil court. That does not mean that the proceeding before the Commission is to be decided ignoring the express statutory provisions of the Carriers Act (Section 9) in a proceeding in which a claim is made against a common carrier as defined in the said Act. Accepting such a contention would defeat the object and purpose for which the Consumer Protection Act was enacted. A proceeding before the National Commission, in our considered view, comes within the term suit. Accordingly we reject the contention raised by Shri Ashok Desai in this regard.
5. Almost in identical cases where the execution petition was filed Delhi High Court in Deepak Wadhwa Vs Aeroflot, 1983(24) DLT 1 held that Aeroflot(Soviet Airlines) is a Government organization of USSR and, therefore, provisions of Section 86 Civil Procedure Code, apply to it and a decree obtained against it without obtaining consent of the Central Government certified in writing by a Secretary to that Government would be a nullity and not executable.
The Delhi High Court further held as under :-
That the doctrine of sovereign immunity is that a sovereign State should not be sued or could not be impleaded in the Courts of another sovereign State against its will.
The doctrine grants immunity to a foreign Government or its Department of State or anybody which can be regarded as an alter ego or organ of the Government. Every sovereign State respects the independence of every other sovereign State and as a consequence declines to exercise by means of any of its Courts jurisdiction over the person of any sovereign or over the public property of any State.
6. Similar view was taken by Delhi High Court in Mansoor Mumtaz Vs Saudi Arabian Airlines Corpn.
AIR 2002 Delhi 103 which is as under :-
The principle thus is clear and is un-ambiguous that so far as sub-section (1) to Section 86 is concerned, it gives effect to the well known principles of international law with qualifications that no suit can be brought against a foreign State except with the consent of the Central Government.
This is thus a qualified privilege and to this extent the doctrine of international law so far as India is concerned stands modified. If the consent of the Central Government has not been obtained before filing the suit necessarily it will not be maintainable.
7. In view of the aforesaid decision of Supreme Court and Delhi High Court, order dated 26.04.83 is not executable being a nullity as this order was subject to the production of a certificate bringing the respondent within the ambit of those entities that are governed by Section 86(6) of the Code of Civil Procedure.
8. The execution petition is not maintainable and is dismissed.
9. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record room.
10. Announced on 18th day of September, 2008.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member ysc