Calcutta High Court
Union Of India And Anr. vs Bilash Chand Jain And The Socialist ... on 17 August, 2001
Equivalent citations: (2001)3CALLT352(HC)
Author: Pranab Kumar Chattopadhyay
Bench: Pranab Kumar Chattopadhyay
ORDER
The Court
1. This is an appeal from a Judgment and order passed on the 30th of August. 1999 by the Hon'ble Mr. Justice Kalyan Jyoti Sengupta, setting aside a letter dated 23.3.92 written by J. N. Dixit the then Secretary, Ministry of External Affairs, whereby permission was refused under Section 86 Sub-section (3) of the Code of Civil Procedure to the writ petitioner plaintiff to execute a decree obtained by him, in Suit No. 431 of 1987, filed in our High Court against the foreign State of Romania and officers.
2. In the impugned letter it is stated as follows :
"It is regretted that the permission to execute the decree against the State of Romania cannot be acceded to in public interest and in view of immunity of States under' international law."
3. The suit was filed for a principal sum of some Rs. 50 lac, for services rendered to, and goodwill established on behalf of one Ice Chimica, but not paid for. The then Socialist Republic of Romania was the second defendant and it was a positive averment made in the plaint that the first defendant was no more than an agency and operating instrumentality of the State of Romania.
4. Permission was sought for under Sub-section (1) of Section 86 of the Civil Procedure Code before institution of the suit, and that permission was granted. The date of grant is 28th April 1987.
5. After the institution of the suit, however, the said grant of permission was sought to be revoked by a letter, dated 17.7.1987.
6. The plaintiff filed its first writ petition after such purported revocation. By an order dated 12.10.88 the Hon'ble B.L. Jain, then a sitting Judge of this Court, granted relief and the revocation of permission was cancelled.
7. There was a third defendant in the suit too, which is the State Trading Corporation of India.
8. The decree in the suit dated 6th August, 1990 was an ex parte one, passed by the same Hon'ble Judge who had disposed of the first writ on 12th October, 1988.
9. The decree was for a principal sum of Rs. 14.6 lac. but was passed against the first and the second defendants only, the State Trading Corporation being left out. The rate of interest allowed was 6% per annum from 1.7.83 till the institution of the suit and further interest was also allowed at the said same rate on the said principal sum.
10. Under Section 86 permission from the Central Government must be had by private plaintiff in regard to a foreign State twice before it can obtain satisfaction.
11. The first such sanction has to be had for institution of the suit; and the second such sanction has to had once again before execution of a decree obtained on the sanctioned suit.
12. Section 86, Sub-section (1) provides as follows:
"S.86. Suits against foreign Rulers, 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."
13. Sub-section (3) of the said section provides as follows:
"(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."
14. In his Lordship's judgment in the Court below not only has the refusal of permission under Sub-section (3) been set aside, but his Lordship has directed the issuance of a positive permission from the Ministry of External Affairs also. It is quite true that such issuance must come from the Secretary and not from the Minister but that is all that needs to be touched, with respect, in the order of his Lordship.
15. In the case of Harbhajan Singh, decided by the Supreme Court, and reported at the phase of sanction covered under Section 86(1) has clearly been held to be amenable to the writ Jurisdiction. There relief was granted to a person who had rendered services to the Algerian Embassy and was running from pillar to post to get payment of his principal sum of Rs. 27,000/-.
16. Justice Sabyasachl Mukherji, as his Lordship then was, speaking for the Court said at paragraph 22 of the judgment to this effect that though both Sections 86 and 87 are intended to save the foreign States from harassment, yet the power given to the Central Government must be exercised in accordance with the principles of natural Justice and in consonance with the principle that reasons must appear from the order. In the ordering portion the Court directed that the Union of India should reconsider the matter and should pass a reasoned order.
17. In paragraph 23 of the judgment his Lordship explained that the root of diplomatic immunity lies in the principle that, one equal cannot have jurisdiction over another equal. In other words, in the international field the States of Romania and India are both sovereign. Thus according to the strict theory of sovereignty neither the State of India nor the Courts of India can pronounce upon the State of Romania.
18. However, in the said same paragraph it is also explained that we are now in the days of international trade and commerce. There is international interdependence and international opening of embassies. In the grant of sanction in this aspect should be borne in mind and that is a positive guidance given expressly by the Supreme Court in the above case.
19. In the facts of this case we find that neither the State of Romania nor the alleged instrumentality of State has made any attempt to put in any appearance before the Court of law in any of the several proceedings had so far.
20. We also find in the letter of refusal of Dixit that the words "public interest" have been used in a mechanical manner. The mention of public interest is joined up with immunity of States under international law but it is because of the existence of that immunity that permission was sought for from the Central Government. If the existence of the law of diplomatic immunity prohibits the grant of sanction for execution, as is the impression under which the Secretary seems to have laboured, then 'and in that event, no plaintiff with a decree will ever get a sanction for execution. Although some reasons are mentioned in the letter of J. N. Dixit, yet those are mechanical repetitions of words showing a mind which has been unable to address itself to the problem.
21. For this failure of the Secretary, however, we do not much blame him. The law of diplomatic immunity has not developed any very much in India. The above Supreme Court case is no doubt there, but in regard to diplomatic immunity a host of cases are to be found decided in England and it is those cases which are still relied upon in India.
22. In the matter of procedure of claim of diplomatic immunity there is a big difference between the two countries. The claim of diplomatic immunity is not made as such in the suit itself by the foreign State in so far as proceedings in our country are concerned.
23. Applications for sanction under Sections 86(1) and 86(3) are made. Those are either granted or refused. But it appears that, contrary to law, the impression ruling in the Central Secretariat is, that refusal of permission is the rule, and grant is an exception.
24. As and when the dissatisfied litigant is served with a refusal of sanction, the only way open to it is to approach the superior Indian Judiciary for issuance of an appropriate quashing writ. Now, it is in the hearing of this writ that points of diplomatic immunity are properly to be raised. Those might be raised by the Central Government of India on behalf of the foreign State or may be, in the not too distant days of the future, the foreign Governments will overcome their sluggishness, and come forward before the writ Courts claiming immunity by way of a defence to the writ. Also it is possible that the Central Government will grant a sanction against the foreign State and the foreign State will call for its quashing, not on the basis of any fundamental rights, but on the basis of the existence of diplomatic immunity.
25. But these are distant days in the future. We have to anticipate all that, and rolling up all this procedure in one, we have to come to a just conclusion to-day. For such a conclusion the basic modern principle of diplomatic immunity must be understood.
26. Whenever and wherever a foreign State either acting by itself or through its agents or instrumentalities engages in ordinary or commercial transactions with parties or persons of another State, in all such cases, the sovereign comes down from his high pedestal. The sovereign engages in businesses and commerce and subjects itself to the ordinary incidents of commerce and industry and attempts at profit makings. In such cases there will be disputes, and resolution of disputes, and the necessity of the consequent satisfaction of the rights and liabilities arising either in favour of or against the foreign sovereign. The foreign sovereign might well have to sue in a foreign Court and might equally will be sued in a foreign Court. No principle of international amity or the maintenance of dignity of an international sovereign in the modern days requires that the Courts of law stay their hands against a foreign sovereign only because he is a foreign sovereign.
27. The transactions in which the foreign sovereign has got involved are to be examined. If on such examination it appears that the sovereign has been dealing in the matters in question as a sovereign, and not as an ordinary participator in the matters in issue, if the dignity of the sovereign has been maintained as such and at a level not accessible to persons below the rank of absolute sovereignty, then and in that event, the Courts will not touch, those matters, or embarrass the sovereign.
28. If, however, this cannot be established, and it will be a difficult task to establish this in ordinary commercial matters, then the Courts will happily go ahead and it is the duty of the Central Secretariat to let them go ahead happily.
29. After all, if an ordinary person buys something and does not pay, it is bad form and in our respectful opinion, it is equally bad form even if the purchaser is a king.
30. On these principles, the plaint being as it is, we find not a whiff or smell of sovereignty in the transactions brought before the Court. The plaintiff wanted agency commission. This was for boosting up the business of the State of Romania. Thus in these matters the State of Romania remained a sovereign no doubt but it was not doing a classical prototype sovereign job,
31. In these circumstances, the Central Government has no authority to refuse permission to execute.
32. We have to clarify that the decisions of the Central Government both under Sub-section (1) and under Sub-section (3) of Section 86 of the Code of Civil Procedure are peculiarly amenable to the writ jurisdiction; even more so, than ordinary administrative decisions are. This is because they deal with a sphere which is peculiarly judicial. They deal with the permission to proceed with a suit and the permission to execute a decree obtained in a suit. These permissions cannot be withheld excepting on the ground of sovereign immunity. Whether there is sovereign immunity or not in the facts and circumstances of a particular case is a judicial question and not an administrative one. It is very good and helpful to have an initial administrative decision before the Judicial mind has to address itself to the matter of diplomatic immunity, but the initial administrative decision cannot take any rank higher than an initial decision only.
33. Apart from Indian cases, we know only of cases decided in England and it is common knowledge that the Court of Appeal and the House of Lords have been again and again faced with the responsibility of deciding on issues of sovereign immunity; it is, or at least should be, well-known and that these decisions are not cursory or ordinary and ones and very well respected and well experienced judicial minds have had wide differences on these issues. It is impossible that where the: situation is this finely tuned, the matter can be left to a mere administrative decision. On the point of how interesting and trouble some immunity-matters can be, see the two pinoches cases, reported at [1998] 4 All ER 897 and [1999] 1 All ER 577.
The maintainability of the writ is, therefore, beyond question.
34. We were a little troubled with one or aspect of this case, and that this, that in the request for permission from the Secretary, the learned advocates for the plaintiffs had not specified the exact properly against which execution was sought to be levied.
35. We felt disturbed that a blanket permission of execution might lead, may be not in this case, but at any safe in some other possible cases, to an unseemly disturbance in the Embassy of a friendly foreign sovereign.
36. However, our doubts and misgivings were laid at rest by the research of Mr. Roychowdhury who rendered to us the best of assistance on behalf of the respondents. He pointed out to us the Diplomatic Relations (Vienna Convention) Act, 1972 (No. 43 of 1972) contains several checks and safeguards against irresponsible attempts by parties in India to execute against inviolable property of foreign states. A combined reading of Section 2 and the Schedule to the said Act shows, for example, that the premises of the mission are inviolable, unless the head of the mission himself should consent otherwise; that the furnishing and property on the mission and the means of transport of the mission are also equally inviolable. It is not necessary to enter into details of these safeguards as the safeguards are a product of the Vienna Convention on Diplomatic Relations. Expert international minds have already addressed themselves on the issue and the product is an acceptance in our national law of what the representatives of many countries have thought to be proper and sufficient safeguards for maintenance of diplomatic relations between friendly states.
37. Therefore, any further additional check in regard to imposition of restrictions on execution against property of a foreign state are unnecessary.
38. Needless to mention the particular property sought to be proceeded against will have to the mentioned in the tabular statement and the notice of the tabular statement the respondent in execution will naturally have, if the respondent is so entitled to, under the laws of execution prevailing in our country.
39. The only other point of construction which remains to be dealt with is whether the words "the property" of any foreign state occurring in Subsection (3) of Section 86 means any property of the foreign State or any particular property, which has to be specified before hand.
40. There is no specific form prescribed either under the Code or by means of department circulars in which specific manner sanction has to be sought for either under Sub-section (1) or under Sub-section (3). It is not an absolute necessity that when seeking sanction under Sub-section (1) a copy of the proposed plaint has to be annexed. It might be done in 3 particular case, but it does not necessarily have to be done. Similarly, there is no form or rule which requires 'that under Sub-section (3) a copy of the proposed tabular statement has to be sent to the Secretariat; again la a particular case it might be sent by a very careful executing plaintiff, but it does not have to be necessarily sent, in these circumstances we are unable to construe the words "the property" as implying, by reason only of the insertion of the definite article, that the sanction of the Secretary must be sought with regard to particularised property of the foreign state and particularised property only.
41. Use of the words "a property" would be grammatically wrong; one would have to say a piece of property, or use some such other expression.
42. Use simply of the word "property" instead of the words "the property" would be equally grammatically wrong; ordinary English requires an article to be inserted. Thus the legislature had no alternative but to use the Words "the property". Accordingly, the checks in the Diplomatic Relations Act being there, we find no necessity of the mention of specific property in requests for permission under Sub-section (3).
43. The appeal, therefore, is dismissed with costs. The only modification which we make of the order under appeal, on our own, is this that the direction shall be, not upon the foreign minister, but upon the respondent No. 2 i.e. the foreign Secretary, Ministry of External Affairs to grant sanction and accord approval to the letter dated 6.9.90 written on behalf of the writ petitioner, to be found at pages 88 to 90 of the Paper Book.
44. Such permission and according of approval be made within a period of four weeks from date hereof.
45. Mr. Roy Chowdhury, counsel for the appellant prays for stay of operation of the order but such prayer Js turned down. Mr. Roy Chowdhury also prays for certificate of appeal to the Supreme Court under. Articles 133 and 134A of the Constitution of India but such certificate is also refused.
46. All parties and all others concerned to act on an authenticated copy of this dictated order on the usual undertakings.
47. Appeal dismissed