# ETHIOPIAN AIRLINES ' v. GANESH NARAIN SABOO

- **Citation:** [2011] 9 S.C.R. 936
- **Court:** Supreme Court of India
- **Decided:** 2011-08-09
- **Case number:** Civil Appeal No. 7037 of 2004
- **Bench:** Dalveer Bhandari, Dr. Mukundakam Sharma, Anil R. Dave
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ethiopian-airlines-v-ganesh-narain-saboo-27923
- **Pages:** 46

## Headnote

Code of Civil Procedure, 1908 - s. 86 - Suit against
c foreign Rules, Ambassadors and Envoys - Complaint before
the Consumer Fora against appellant-foreign airlines by
respondent alleging deficiency in service - Applicability of s.
86 to proceedings before consumer fora - Case of appellant
that being a foreign State or its instrumentality it could not be
D proceeded against under the Consumer Protection Act
without obtaining proper permission of the Central
Government - Held: Proceeding before the Consumer Forum
comes within the sweep of term 'suit' - However, s. 86 is
inapplicable - Consumer Protection Act, 1986 and the
E Carriage by Air Act, 1972, which came long after the CPC,
are more focused and specific statutes, and thus, should be
held to exclude s. 86 - In the fora created by the Consumer
Act, the provisions of CPC are applicable to a limited extent
and not all the provisions of CPC are made applicable to the
..
~
F proceedings of the National Forum - Rules created pursuant
to the Consumer Act itself govern the procedure to be followed
in the Consumer Fora - Thus, appellant-foreign airlines is not
entitled to sovereign immunity with respect to a commercial
transaction - Any other consent of the Central Government
G is not required to subject the appellant-foreign airlines, to a
suit in an Indian Court - They must be held accountable for
the contractual and commercial activities and obligations that
it undertakes in India - Consumer Protection Act, 1986 -
Carriage by Air Act, 1972.
H
936
ETHIOPIAN AIRLINES v. GANESH NARAIN SABOO 937
4 ,,;
Suit - Meaning of - Held: Term 'suit' is a generic term
A
taking within its sweep all proceedings initiated by a party for
realisation of the right vested in him in law - In common
.r
parlance, the term 'suit' is taken to include all proceedings of
a judicial or quasi-judicial nature in which the disputes of
~
aggrieved parties are adjudicated before an impartial, forum
B
- Thus, proceedings before the consumer fora fall squarely
within the term suit.
Interpretation of statutes - Principle of statutory
interpretation - Held: Specific statutes that come later in time c
trump prior general statutes- ConsumerProtection Act, 1986
and the Carriage by Air Act, 1972, which came long after the
Code of Civil Procedure, 1908, are more focused and specific
statutes and therefore, should be held to supersede s. 86 -
Code of Civil Procedure, 1908.
D
Consumer Protection Act, 1986 - Object of.
Carriage by Air Act, 1972 - Application of - Held: Its
rules apply to carriage performed by the State or by legally
constituted public bodies - Thus, on facts, according to the
E
Indian Law, the appellant-foreign airlines can be subjected to
suit under the Act - By signing onto the Warsaw Convention,
.
, ..
the appellant-foreign airlines expressly waived its Airlines'
right to immunity in cases such as that sub judice - Thus, the
Central Governments of both India and Ethiopia have waived
F
that right by passing the Carriage by Air Act, 1972 .and by
signing onto the Warsaw Convention.
Doctrines/Principles:
Principle of expressio unius - Explained.
G
.,
Principle of restrictive immunity :... Explained
International Law.
Respondent booked a consignment of reactive dyes
with appellant-Foreign Airlines to be delivered in
H
•
J
~ •
938
SUPREME COURT REPORTS
[2011) 9 S.C.R.
A Tanzania. It is alleged that there was delay in delivery of
goods in Tanzania which resulted in deterioration of the
goods. The respondent filed a complaint against the
appellant-Foreign Airlines before the State Consumer
Redressal Commission under the Consumer Protection
B Act, 1986 for the alleged deficiency in service. The State
Commission held that the complaint was not
maintainable. On appeal, the National Commission set
aside the order of the State Commission and remitted the
matter to the State Commission for deciding it afresh.
c
Aggrieved, the appellant filed the instant appeal
before the Supreme Court on the ground that a foreign
Stat

## Text

_Characters 0–39,848 of 83,730. This is a partial read: ask again with offset=39848 for what follows._

[2011] 9 S.C.R. 936
A
ETHIOPIAN AIRLINES
' .
v.
GANESH NARAIN SABOO
(Civil Appeal No. 7037 of 2004)
B
AUGUST 09, 2011
;.
[DALVEER BHANDARI, DR. MUKUNDAKAM SHARMA
AND ANIL R. DAVE, JJ.]
Code of Civil Procedure, 1908 - s. 86 - Suit against
c foreign Rules, Ambassadors and Envoys - Complaint before
the Consumer Fora against appellant-foreign airlines by
respondent alleging deficiency in service - Applicability of s.
86 to proceedings before consumer fora - Case of appellant
that being a foreign State or its instrumentality it could not be
D proceeded against under the Consumer Protection Act
without obtaining proper permission of the Central
Government - Held: Proceeding before the Consumer Forum
comes within the sweep of term 'suit' - However, s. 86 is
inapplicable - Consumer Protection Act, 1986 and the
E Carriage by Air Act, 1972, which came long after the CPC,
are more focused and specific statutes, and thus, should be
held to exclude s. 86 - In the fora created by the Consumer
Act, the provisions of CPC are applicable to a limited extent
and not all the provisions of CPC are made applicable to the
..
~
F proceedings of the National Forum - Rules created pursuant
to the Consumer Act itself govern the procedure to be followed
in the Consumer Fora - Thus, appellant-foreign airlines is not
entitled to sovereign immunity with respect to a commercial
transaction - Any other consent of the Central Government
G is not required to subject the appellant-foreign airlines, to a
suit in an Indian Court - They must be held accountable for
the contractual and commercial activities and obligations that
it undertakes in India - Consumer Protection Act, 1986 -
Carriage by Air Act, 1972.
H
936
ETHIOPIAN AIRLINES v. GANESH NARAIN SABOO 937
4 ,,;
Suit - Meaning of - Held: Term 'suit' is a generic term
A
taking within its sweep all proceedings initiated by a party for
realisation of the right vested in him in law - In common
.r
parlance, the term 'suit' is taken to include all proceedings of
a judicial or quasi-judicial nature in which the disputes of
~
aggrieved parties are adjudicated before an impartial, forum
B
- Thus, proceedings before the consumer fora fall squarely
within the term suit.
Interpretation of statutes - Principle of statutory
interpretation - Held: Specific statutes that come later in time c
trump prior general statutes- ConsumerProtection Act, 1986
and the Carriage by Air Act, 1972, which came long after the
Code of Civil Procedure, 1908, are more focused and specific
statutes and therefore, should be held to supersede s. 86 -
Code of Civil Procedure, 1908.
D
Consumer Protection Act, 1986 - Object of.
Carriage by Air Act, 1972 - Application of - Held: Its
rules apply to carriage performed by the State or by legally
constituted public bodies - Thus, on facts, according to the
E
Indian Law, the appellant-foreign airlines can be subjected to
suit under the Act - By signing onto the Warsaw Convention,
.
, ..
the appellant-foreign airlines expressly waived its Airlines'
right to immunity in cases such as that sub judice - Thus, the
Central Governments of both India and Ethiopia have waived
F
that right by passing the Carriage by Air Act, 1972 .and by
signing onto the Warsaw Convention.
Doctrines/Principles:
Principle of expressio unius - Explained.
G
.,
Principle of restrictive immunity :... Explained
International Law.
Respondent booked a consignment of reactive dyes
with appellant-Foreign Airlines to be delivered in
H
•
J
~ •
938
SUPREME COURT REPORTS
[2011) 9 S.C.R.
A Tanzania. It is alleged that there was delay in delivery of
goods in Tanzania which resulted in deterioration of the
goods. The respondent filed a complaint against the
appellant-Foreign Airlines before the State Consumer
Redressal Commission under the Consumer Protection
B Act, 1986 for the alleged deficiency in service. The State
Commission held that the complaint was not
maintainable. On appeal, the National Commission set
aside the order of the State Commission and remitted the
matter to the State Commission for deciding it afresh.
c
Aggrieved, the appellant filed the instant appeal
before the Supreme Court 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; that a foreign State or its
D instrumentality can legitimately claim sovereign immunity
from being proceeded against under the Act in respect
of a civil claim.
The questions arose for consideration before the two
E judge Bench of this Court that whether proceedings
before the Consumer Forum are suits. There being two
conflicting judgments on the said issue, *E.l.C.M. Exports
Ltd. v. South Indian Corporation (Agencies) Ltd. and Another
2009 (10) SCALE 22 and **Patel Roadways Limited v. Bir/a
F Yamaha Limited (2000) 4 sec 91, the matter was referred1
to the present larger Bench.
Disposing of the appeal, the Court
HELD: 1. The impugned order passed by the
G National Commission is untenable so far it held that thej
proceeding before the Consumer Forum does not come
within the sweep of term "suit" because it is contrary to
the judgment of the Constitution Bench of this Court in
***Economic Transport Organization's case that a
H proceeding before the Consumer forum comes within the
., ,.
.. -
ETHIOPIAN AIRLINES v. GANESH NARAIN SABOO
939
1 ,
sweep of term suit. The finding of the National
A
Commission is set aside to that extent. However, the
findings of the National Commission so far as it has
remitted the matter to the State Commission for
adjudication is concurred with. [Para 75] [981-E-G]
~
B
***Economic Transport Organisation, Delhi v. Charan
Spinning Mills Private Limited and Anr. (2010) 4 SCC 114 -
followed.
**Patel Roadways Limited v. Bir/a Yamaha Limited
(2000) 4 sec 91: 2000 (2) SCR 665 - relied on.
c
*E. I. C. M. Exports Ltd. v. South Indian Corporation
(Agencies) Ltd. and Anr. 2009 (10) SCALE 22 - overruled.
)
2.1 As per the Annexure to the Carriage by Air Act,
D
1972 under Section 3 sub Section 2, Part-I, vide entry 47,
Ethiopia is a High Contracting Party to the Convention
w.e.f. 12.11.1950. The provisions of Section 7 of the Air
Act read with Rules in the first schedule leaves no room
or doubt that a state carrier or legally constituted public
E
body of the international carrier is deemed to have
submitted to the jurisdiction of the courts in India,
including for the purpose of the Code of Civil Procedure,
1908. There is a consent deemed to be granted by the
Central Government contemplated under Section 86(1) of
Code of Civil Procedure for a specified class of suits
F
under the Air Act. [Paras 44, 45 and 47] [967-G-H; 968-A;
969-A-B]
1.2 The term 'suit' has not been defined in the
Carriage by Air Act, 1972 nor is it provided in the
G
Consumer Protection Act that the term 'suit' will have the
•
same meaning as in the Code of Civil Procedure.·
~
Therefore, the term 'suit' has to be understood in its
ordinary dictionary meaning. In that sense, the term 'suit'
is a generic term taking within its sweep all proceedin1;1s
H
940
SUPREME COURT REPORTS
[2011] 9 S.C.R.
A initiated by a party for realisation of the right vested in him
in law. In common parlance, the term 'suit' is taken to
include all proceedings of a judicial or quasi-judicial
nature in which the disputes of aggrieved parties are
adjudicated before an impartial forum. Proceedings
B before the Consumer fora fall squarely within that
definition. [Para 53 and 55) [973-E-F; 974-A]
c
***Economic Transport Organisation, Delhi v. Charan
Spinning Mills Private Limited and Anr. (2010) 4 SCC 114 •
followed.
**Patel Roadways Limited v. Bir/a Yamaha Limited
(2000) 4 sec 91: 2000 (2) SCR 665 - relied on.
Upshur County v. Rich 135 US 467 (1890); Patterson v.
0 Standard Accident Insurance Co. 178 Mich. 288 - referred
to.
Black's Law Dictionary - referred to.
1.3 Notwithstanding the fact that proceedings of the
E National Commission are 'suits' under the Carriers Act,
vide the expressio unius principle, the Consumer
Protection Act, 1986 clearly enumerates those provisions
of the CPC that are applicable to proceedings before the
consumer fora. Such provisions include Section 13(4), in
.F which the Consumer Protection Act, 1986 vests those
powers vested in a civil court under the CPC to the
District Forum. However, according to the principle of
expressio unius, because the legislature expressly made
the aforementioned provisions of the CPC applicable to
G the consumer proceedings, the legislature is, therefore,
deemed to have intentionally excluded all other
provisions of the CPC from applying to the said
proceedings. This is particularly true since the Consumer
Protection Act, 1986 sets forth an exhaustive list of
H procedures, distinguishable from those required under
••
ETHIOPIAN AIRLINES v. GANESH NARAIN SABOO 941
~ ...
the CPC, that the consumer redressal fora must follow. A
Therefore, since the Consumer Protection Act does not
state that Section 86 applies to the consumer fora's
proceedings, that Section of the CPC should be held to
be not applicable. Likewise, the CPC itself does not claim
~
to make Section 86 applicable to proceedings before the B
consumer fora. Instead, the CPC includes a saving
clause, providing that "in the absence of any specific
provision to the contrary, nothing in [the CPC] shall be
deemed to limit or otherwise affect any special law or any
special form of procedure prescribed, by or under any c
other law." In addition, Section 86 only applies to a "suit
in any Court". This term should be understood differently
than the term "court" because the CPC refers exclusively
..
to Civil Courts. In particular, the CPC specifically refers
to the District Courts, the High Courts, and the Supreme D
Court and makes little if any reference to other, quasijudicial fora like the consumer redressal bodies. [Paras
58 and 59] (974-H; 975-A-H; 976-A]
H.H. The Maharana Sahib Shri Bhagwat Singh Bahadur
of Udaipur v. State of Rajasthan and Ors. AIR 1964 SC 444:
E
1964 SCR 1; Nawab Usmanali Khan v Sagarmal AIR 1965
SC 1798
~
1.4 Section 86 of the Code of Civil Procedure is
inapplicable to the instant case because the older and
F
more general statute has been excluded by more recent
special statute, namely, Consumer Protection Act, 1986
and the Carriage by Air Act, 1972. The appellant-Foreign
Airlines is not entitled to sovereign immunity in the suit
at issue in the instant case. Therefore, any other consent G
of the Central Government is not required to subject the
~
appellant, .Foreign Airlines, to a suit in an Indian Court.
(Paras 60 and 64] [976-B-C; 977 -D-E]
Ratan Lal Adukia and Anr. v. Union of India AIR 1990
SC 104: 1989 (3) SCR 440 - referred to.
H
942
SUPREME COURT REPORTS
[2011] 9 S.C.R.
A.
1.5 The Consumer and Carriage Acts, which came
long after the CPC, are more focused and specific
statutes, and therefore, should be held to exclude Section
86. The Supreme Court has previously found as such,
holding that in the fora created by the Consumer Act, "the
B provisions of the Code of Civil Procedure are applicable
to a limited extent and not all the provisions of the Code
of Civil Procedure are made applicable to the
proceedings of the National Forum." Rather, rules created
pursuant to the Consumer Act itself govern the procedure
c to be followed in the consumer fora. Even though the
consumer redressal fora utilized summary proceedings,
that "does not mean that proceedings before the
Consumer Forum [are] to be· decided by ignoring the
express statutory provisions of the Carriers Act in a
0
proceeding in which a claim is made against a common
carrier." [Para 62] [976-G-H; 977-A-B]
E
Economic Transport Organisation, Delhi v. Charan
Spinning Mills Private Limited and Anr. (2010) 4 SCC 114 -
followed.
E. I. C. M. Exports Ltd. v. South Indian Corporation
(Agencies) Ltd. and Anr. 2009 (10) SCALE 22 - overruled.
1.6 It is settled principle of statutory interpretation
that specific statutes that come later in time trump prior
F general statutes. Both the Consumer Protection Act,
1986 and the Carriage by Air Act, 1972, which came long
after the Code of Civil Procedure, 1908, are more focused
and specific statutes and therefore, should be held to
supersede Section 86 of the Code. In fora created by the
G Consumer Act, the provisions of the Code of Civil
•
Procedure are applicable only to a limited extent,
•
H
therefore, the provisions of the Code of Civil Procedure
have not been made applicable to the proceedings of the
National Consumer Forum. [Para 65) [977-F-G)
ETHIOPIAN AIRLINES v. GANESH NARAIN SABOO 943
J
'
Savita Garg v. Director, National Heart Institute (2004) 8 A
SCC 56: 2004 (5) Suppl. SCR 359 - relied on.
State of Kamataka v. Vishwabharathi House Building Cooperative Society and Ors. (2003) 2 SCC 412: 2003 (1) SCR
397 - referred to.
B
1.7 The Consumer Protection Act, 1986 is a
comprehensive and self-contained piece of legislation,
and its object is to decide consumers' complaints
I
expeditiously, via summary procedure. The Consumer
Protection Act, 1986 also permits authorized agents to c
appear on behalf of the complainants in order to ensure
that they are not burdened with the heavy professional
~
fees of lawyers. [Para 66] [978-A-B]
1.8 The Carriage by Air Act, 1972 explicitly provides D
that its rules apply to carriage performed by the State or
by legally constituted public bodies under Chapter 1,
Section 2, Sub-section 1. Thus, it is clear that according
to the Indian Law, the appellant-Foreign Airlines can be
subjected to suit under the Carriage Act, 1972. The E
Carriage by Air Act, 1972 (69 of 1972) is an Act to give
effect to the Convention for the unification of certain rules
?
relating to international carriage by air signed at Warsaw
on the 12th day of October, 1929 and to the said
Convention as amended by the Hague Protocol on the F
28th day of September, 1955 and to make provision for
applying the rules contained in the said Convention in its
original form and in the amended form (subject to
exceptions, adaptations and modification) to noninternational carriage by air and for matters connected
G
therewith. In effect, by signing onto the Warsaw
Convention, the appellant foreign airline~_had expressly
waived its Airlines' right to immunity in cases such as that
sub judice. Therefore, the Central Governments of both
India and Ethiopia have waived that right by passing the
Carriage by Air Act, 1972 and by signing onto the Warsaw H
944
SUPREME COURT REPORTS
(2011] 9 S.C.R.
A.
Convention. [Paras 67 and 68] [978-C-G]
The German Democratic Republic v. The Dynamic
Industrial Undertaking Ltd. AIR 1972 Bombay 27; Kenya
Airways v. Jinibai B. Kheshwala AIR 1998 Bombay 287 -
8
referred to.
1.9 The appellant-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
C principle of restrictive immunity. The appellant Ethiopian
Airlines must be held accountable for the contractual and
commercial activities and obligations that it undertakes
in India. It may be pertinent to mention that the Parliament
has recognized this fact while passing the Consumer
D Protection Act, 1986 and the Carriage by Air Act, 1972.
Section 86 was itself, a modification and restriction of the
principle of forejgn sovereign immunity and thus, by
limiting Section 86's applicability, the Parliament through
these incorrect acts, further narrowed a party's ability to
E successfully plead foreign sovereign immunity. 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
F much earlier was. Countries who participate in trade,
commerce and business with different countries ought
to be subjected to normal rules of the market. State
owned entities would be able to operate with impunity,
the rule of law would be degraded and international trade,
G commerce and business will come to a grinding halt.
Therefore, the appellant cannot claim sovereign
immunity. The preliminary objection raised tiy the
appellant before the court is devoid of any merit and must
be rejected. [Paras 70, 72 and 73] [979-D; 980-E-H; 981H A-BJ
..
ETHIOPIAN AIRLINES v. GANESH NARAIN SABOO 945
j ...,
Deepak Wadhwa v. Aeroflot 24 (1983) Delhi Law Times
A
1; Mirza Ali Akbar Kashani v. The United Arab Republic and
Anr. AIR 1966 SC 230: 1966 SCR 319; Veb Deutfracht
Seereederei Rosto<;k (D.S.R. Lines) a Department of the
German Democratic Republic v new Central jute Mills Co.
I
Ltd. and Another (1994) 1 SCC 282; Ghaziabad Zita Sahkari
B
...
Bank Ltd. v. Addi. Labour Commissioner and Ors. (2007) 11
SCC 756: 2007 (1) SCR 1007; Maruti Udyog Limited v. Ram
Lal and Ors. (2005) 2 SCC 638: 2005 (1) SCR 790 - referred
to.
Rahimtoo/a v. H. E. H. The Nizam of Hyderabad and Ors. c
(1957) 3 All E.R. 441; Trendtex Trading Corporation Ltd. v.
Central Bank of Nigeria (1977) 1 All E.R. 881 - referred to.
>
Case Law Reference:
24 (1983) Delhi Law Times 1 Referred to
Para 6
D
1966 SCR 319
Referred to
Para 10
(1994) 1 sec 282 .
Referred to
Para 11
2007 (1) SCR 1007
Referred to
Para 34
E
2005 (1) SCR 790
Referred to
Para 34
..
(2010) 4 sec 114
Followed
Para 56,
-....
62, 63,
74, 75
F
2009 (10) SCALE 22
Overruled
Para 56,
63, 74
135 us 467 (1890)
· Referred to
Para 57
G
178 Mich. 288
Referred to
Para 57
'•
1964 SCR 1
Referred to
Para 59
AIR 1965 SC 1798
Referred to
Para 59
' I
H
•
946
SUPREME COURT REPORTS
[2011] 9 S.C.R.
•
A
1989 (3) SCR 440
Referred to
Para 61
2004 (5) Suppl. SCR 359
Referred to
Para 65
2003 (1) SCR 397
Referred to
Para 66
B
AIR 1972 Bombay 27
Referred to
Para 69
~
AIR 1998 Bombay 287
Referred to
Para 69
(1957) 3 All E.R. 441
Referred to
Para 70
(1977) 1 All E.R. 881
Referred to
Para 71
c
2000 (2) SCR 665
Relied on
Para 74,
75
CIVIL APPELLATE JURISDICTION : From the Judgment
and Order dated 07.01.2004 of the National Consumer
D Disputes Redressal Commission in First Appeal No. 190 of
1996.
K.G. Presswala, Shiv Kumar Suri and Junaisa Rahman for
the Appellant.
E
Rakesh Kr. Khanna, Dr. Rashmi Khanna and Seema Rao
. (for Surya Kant) for the Respondent.
The Judgment of the Court was delivered by
.. ..
F
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.
G
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
H
two conflicting judgments on this point- E.l.C.M. Exports
ETHIOPIAN AIRLINES v. GANESH NARAIN SABOO
947
[DALVEER BHANDARI, J.]
Ltd. v, South Indian Corporation (Agencies) Ltd. and A
Another 2009 (10) SCALE 22 and Patel Roadways
Limited v. Bir/a 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."
B
...
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
C
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
D
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
E
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
respondent aggrieved by the said order preferred an appeal
F
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 G
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)
H
948
SUPREME COURT REPORTS
[2011] 9 S.C.R.
A 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
B by the respondent.
I •
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
c afresh in accordance with law.
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
"
D 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.
E
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:
~
F
(a)
the foreign State has instituted a suit in the Court
against the person desiring to sue it;
(b)
the foreign State trades within the legal limits of the
jurisdiction of the Court or;
G
(c)
the foreign State is in possession of immovable
property situated within those limits and is to be
.
"'
sued with reference to such property or for money
charged thereon or;
H
ETHIOPIAN AIRLINES v. GANESH NARAIN SABOO 949
[DALVEER BHANDARI, J.]
+·
(d)
the foreign State has expressly or impliedly waived
A
the privilege of immunity.
Relevant case law and submissions
~
10. Reliance was placed on a judgment of the Constitution
-
Bench delivered in the case of Mirza Ali Akbar Kashani v. The
B
United Arab Republic and Another AIR 1966 SC 230. This
Court in para 30 of the said judgment observed as under:
"The effect of the provisions of section 86(1) appears to
be that it makes a statutory provision covering a field which c
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
>
relation to the rights and liabilities of foreign States to be
.,
sued within its own municipal Courts. Just as an D
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 section 86(1) is to
E
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 section 86(1), it
F
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, section 86(1) is not merely procedural; it is
· in a sense a.counter-part of section 84. Whereas section
G
.
84 confers a right on a foreign State to sue, section 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. .. . .. . . . ."
H
950
SUPREME COURT REPORTS
[2011] 9 S.C.R.
A. .
11. Reliance was also placed on another judgment of this
Court in the case of Veb Deutfracht Seereederei Rostock
(D.S. R. Lines) a Department of the German Democratic
Republic v. New Central .lute Mills Co. Ltd. and Another ( 1994)
1 SCC 282. In para 5 of the judgment this Court held that:
B
"One of the principles of International Law is that sovereign
State respects the independence of every other foreign
State. This absolute independence and the international
comity underlines the relationship between sovereign
States.
c
The object of Section 86 of the Code is to give effect to
the principles of International Law. But, in India it is only a
qualified privilege because a suit can be brought with the
consent of the Central Government in certain
D
circumstances. Just as an independent sovereign State
may statutorily provide for its own rights and liabilities to
sue and be sued so can it provide rights and liabilities of
foreign States to sue and be sue;d in its Courts. It can be
said that effect of se~ction 86 thus is to modify the extent
E
of doctrine of immunity recognised by the International
Law. If a suit is filed in Indian Courts with the consent of
the Central Government as required by Section 86, it shall
not be open to any fcireign State to rely on the doctrine of
,J
immunity. Sub-section (1) of Section 86 says in clear and
F
unambiguous terms that no foreign State may be sued in
any court, except with the consent of the Central
Government certifiecl in writing by the Secretary to that
Government. Sub-section (2) prescribes that such consent
shall not be given unless it appears to the Central
G
Government that the case falls within any of the clauses
(a) to (d) of sub-sectiion (2) of Section 86. Sub-section (6)
•
"
enjoins that where a request is made to the Central
Government for the grant of any consent referred to in subsection (1), the Central Government shall before refusing
to accede to the request in whole or in part, give to the
H
ETHIOPIAN AIRLINES v. GANESH NARAIN SABOO
951
[DALVEER BHANDARI, J.]
person making the request a reasonable opportunity of A
being heard.
On a plain reading of different sub-sections of Section 86,
it is apparent that no foreign State may be sued in any
\
court in India, except with the consent of the Central B
;\
Government which has to be certified in writing by the
Secretary to that Government. In view of the provisions
aforesaid, before any action is launched or a suit is filed
against a foreign State, person concerned has to make a
request to the Central Government for grant of the c
necessary consent as required by sub-section (1) of
Section 86 and the Central Government has to accede to
the said request or refuse the same after taking into
).
consideration all the facts and circumstances of the case.
"
'\'
.........
D
12. It was submitted by the learned counsel for the
appellant, Mr. K.G. Presswala, that when interpreting Section
86 of the CPC, it should always be kept in view that the said
Section gives effect to the principles of international law.
E
13. The learned counsel for the appellant placed reliance
on the judgment of this court delivered in the case of H.H. The
Maharana Sahib Shri Bhagwat Singh Bahadur of Udaipur v.
},
State of Rajasthan and Others AIR 1964 SC 444, where an
~
ex-ruler contended that under section 86 of the CPC, a
reference made by the Government under the Industrial F
Disputes Act in respect of employees' wages was not
maintainable without the prior consent of the Central
Government. This Court in para 5 of the said judgment held:
"The appellant is recognised under Article 363(22) of the G
'
Constitution as a Ruler of an Indian State, but Section 86
"
in terms protects a Ruler from being "sued" and not against
the institution of any other proceeding which is not in the
nature of a suit. A proceeding which does not commence
}
with a plaint or petition in the nature of plaint, or where the H
952
SUPREME COURT REPORTS
[2011] 9 S.C.R.
claim is not in respect of a dispute ordinarily triable in a
civil court, would prima facie not be regarded as falling
within Section 86 Code of Civil Procedure .......... "
14. The learned counsel for the appellant submitted that
3
the Act specifically states in Section 3 that "the provisions of
'
this Act shall be in addition to and not in derogation to any other
+
law for the time being in forcH." The learned counsel for the
appellant also submitted that this Court in the case of State of
Karnataka v. Vishwabharathi House Building Co-operative
c Society and Others (2003) 2 SCC 412 in paragraphs 46 and
47 observed as under:
"46. By reason of the provisions of Section 3 of the Act, it
is evident that remedies provided thereunder are not in
derogation of those provided under other laws. The said
.._
D
Act supplements and not supplants the jurisdiction of the
civil courts or other statutory authorities.
47. The said Act provides for a further safeguard to the
effect that in the event a complaint involves complicated
E
issues requiring recording of evidence of experts, the
complainant would be a.t liberty to approach the civil court
for appropriate relief .. The right of the consumer to
approach the civil court for necessary relief has, therefore,
been provided under the Act itself."
.i
r
F
15. The learned counseil for the appellant further submitted
that a claim which is ordina.rily triable in a Civil Court can also
be tried in the Consumer Court if:
(i)
an Unfair Trade Practice or a restrictive trade
G
practice has been adopted by any trader or service
provider;
I
.,,,
(ii)
the goods boug:it by a person or agreed to be
bought by him suffer from one or more defects;
H
(iii)
the services hired or availed of or agreed to be
~!
ETHIOPIAN AIRLINES v. GANESH NARAIN SABOO 953
[DALVEER BHANDARI, J.]
~
hired or availed of by him suffer from deficiency in
A
any respect;
(iv)
a Trader or :t Service Provider as the case may be
has charged hr the goods or the services a price
)
in excess of tht. price:
B
..;
(a)
fixed by or under any law for the time being
in force;
(b)
displayed on the goods or any package
containing such goods;
c
(c)
displayed on the price list exhibited by him
or under any law for the time being in force;
,\
(d)
agreed between the parties
D
(v)
goods which would be hazardous to life and safety
when used are being offered for sale to the public
(e)
in contravention of any standards relating to
safety of such goods as required to be
E
complied with by or under any law for the time
being in force;
'
(f)
if the trader could have known with due
diligence that the goods' so offered are
unsafe to the public.
F
(vi)
services which are hazardous or likely to be
hazardous to the life and safety of the public when
used are being offered by the Service Provider
could have known with due diligence injurious to life
G
'
and safety.
'
16. Mr. Presswala also submitted that a Complaint and a
Plaint is one and the same thing and a proceeding in the
Consumer Court, though not a suit under the Civil Procedure
Code, is still a proceeding which is in the nature of a suit and ·H
954
SUPREME COURT REPORTS
[2011] 9 S.C.R.
A is commenced by a proceeding in the nature of a Plaint (i.e. a
Complaint and is in respect of a claim which is ordinarily triable
by a Civil Court). It is submitted by Mr. Presswala that Section
86 of the CPC would be squarely applicable to the proceedings
under the Act.
B
17. The learned counsel for the appellant further submitted
that the provisions of the CPC are not applicable to the
proceedings under the Act. Mr. Presswala also submitted that
the District Forums, the State Commission and the National
Commission have all the! trappings of a Civil Court.
C Consequently, the proceedings before these fora are legal
proceedings.
18. According to the appellant, the interpretation given by
the National Commission is totally untenable and cannot be
D sustained.
19. Mr. Rakesh Kumar Khanna, the learned senior counsel
for the respondent submitted that this appeal not only involves
the applicability of section 86 of the CPC and the Act, but also
E raises the following questions:
F
G
H
(a)
Vvhether the Consumer Protection Act being a later
and a Special Statute will have overriding effect
over the provision:s of general and previous Statute
(i.e. the Civil Proc:edure Code, 1908?)
(b)
Whether in view of the provisions of the Carriage
by Air Act, 1972, specially, Section 7 read with
Rules 1, 2, 18, 1 fl & 28 of First Schedule framed
under Section 3 c1f the Act thereof, the Appellant
Ethiopian Airlines will be deemed to have submitted
to the jurisdiction of the Indian Courts for the
purpose of Code 1of Civil Procedure, 1908?
(c)
Whether the provisions of Carriage by Air Act,
1972 will be rea1d into the provisions of the
Consumer Protection Act, 1986?
.
...
ETHIOPIAN AIRLINES v. GANESH NARAIN SABOO 95fi
[DALVEER BHANDARI, J.]
....
~ -!..
20. Learned senior advocate for the respondent also A
submitted that the Act is a complete code in itself. It sets forth
the procedure to be followed in dealing with complaints filed
before the fora provided for in the Act as well as with the
Appeals arising from the orders of those fora. Section 13 of
J
this Act provides for the procedure to be followed by the fora B
on receipt of the complaint. Sub-sections 4, 5 and 6 of section
13, which are relevant for the purpose of the present case, read
as under:
"13. Procedure on admission of complaint: (1) The c
District Forum shall, on admission of a complaint,
if it relates to any goods,
)()()()()()(
.~
)()()()()()(
D
(4)
For the purposes of this section, the District Forum
shall have the same powers as are vested in a Civil
Court under Code of Civil Procedure, 1908 (5 of
1908) while trying a suit in respect of the following
E
matters, namely:
(i)
the summoning and enforcing the attendance
\.
of any defendant or witness and examining
the witness on oath;
(ii)
the discovery and production of any F
document or other material object producible
as evidence;
(iii)
the reception of evidence on affidavits; •
', G
(iv)
the requisitioning of the report of the
·--.
. concerned analysis or test from the
-·
appropriate laboratory or from any other .
relevant source;
H
956
B
c
D
SUPREME COURT HEPORTS
[2011] 9 S.C.R.
(v)
issuing of any commission for the
examination of any witness; and
(vi)
any other matter which may be prescribed.
(5)
Every proceeding loefore the District Forum shall be
deemed to be a judicial proceeding within the
meaning of sections 193 and 228 of the Indian
Penal Code (45 of 1860), and the District Forum
shall be deemed to be a civil court for the purposes
of Section 195 and chapter XXVI of the Code of
Criminal Procedure, 1973 (2 of 1974).
(6)
Where the complainant is a consumer referred to
in sub-clause (iv) of clause (b) of sub-section (1) of
Section 2, the prcivisions of rule 8 of Order 1 of the
first Schedule to the Code of Civil Procedure, 1908
(5 of 1908) shall apply subject to the modification
that every reference therein to a suit or decree shall
be construed as a reference to a complaint or the
order of the District Forum thereon."
E
21. This Court in Savitcr Garg v. Director, National Heart
F
G
H
Institute (2004) 8 SCC 56 para 7 has observed that:
" ......... Therefore, as far as the Commission is
concerned, the provisions of the Code of Civil Procedure
are applicable to a limitE~d extent and not all the provisions
of the Code of Civil Procedure are made applicable to the
proceedings of the National Forum ......... ."
?2. In para 10 of the said judgment the Court further
observed as under:
"The Consumer Forum is primarily meant to provide better
j
protection in the interest of the consumers and not to shortcircuit the matter or to defeat the claim on technical
grounds ......... ."
1
ETHIOPIAN AIRLINES v. GANESH NARAIN SABOO 957
.
[DALVEER BHANDARI, J.]
' \
4.
23. The respondent contends that a bare perusal of A
Section 13(4), (5) and (6) clearly demonstrate that as far as the
fora created under the Consumer Protection Act, 1986 for
deciding consumer disputes are concerned, the provisions of
the CPC are applicable to a limited extent only and not all
j
provisions of CPC are made applicable thereto.
B
24. In exercise of powers conferred by Section 30A of the
Consumer Protection Act, 1986, the Consumer Protection
Regulations, 2005 have been framed. Regulation 26 of these
Regulations specifically provides that in all the proceedings c
before the consumer forum endeavour shall be made by the
parties and their counsel to avoid the use of provisions of CPC.
Regulation 26 of these Regulations reads as under:
,.
"26. Miscellaneous: (1) In all proceedings before the
~
Consumer Forum, endeavour shall be made by the parties
D
and their counsel to avoid the use of provisions of Code
of Civil Procedure, 1908 (5 of 1908).
Provided that the provisions of the Code of Civil Procedure,
1908 may be applied which have been referred to in the
E
Act or in the rules made thereunder."
25. The aforesaid view of the specific provisions of
Section 13(4) of the Consumer Protection Act read with
,
Regulation 26, makes it clear that the provisions of the CPC
in general are not applicable in the proceedings under the
F
Consumer Protection Act, except to the extent provided for
under Section 13 of the Act.
26. Mr. Khanna also submitted that the controversy involved
in this case Is no longer res integra, as evidenced by Savita
G
'
Garg (supra).
'
"
27. Mr. Khanna further submitted that the provisions of the
CPC are not applicable to the proceedings under the
Consumer Protection Act, 1986 and consequently, the bar
H
958
SUPREME COURT REPORTS
[2011] 9 S.C.R.
A under Section 86 of the CPC likewise does not apply to the
proceedings initiated under the Consumer Protection Act,
1986.
28. Mr. Khanna contended that the impugned order passed
B by the National Commission is in consonance with the legal ··
position crystallized in a serii:~s of judgments of this Court and
calls for no interference.
29. Mr. Khanna gave the historical background of the
enactment of the Consumer Protection Act, 1986. He submitted
C that the interests of consumeirs around the world had drawn the
attention of the United Nations for a long time and that after
long deliberations and continued consultations, the United
Nations in its General A:ssembly adopted guidelines for
consumer protection. The relevant portion of the guidelines is
D given as under:
"1. Taking into account the interests and needs of
consumers in all countries, particularly in developing
countries, recognize that consumers often face imbalances
E
in economic terms, e~ducational levels, and bargaining
power; and bearing in mind that consumers should have
the right of access to non-hazardous products, as well as
the right to promotf:l just, equitable and sustainable
economic and social development. These guidelines for
F
consumer protection have the following objectives:
G
H
(a'
To assist countries in achieving or maintaining
adequate protection for their population as
consumers;
(b)
To facilitate production and distribution patterns
responsive to the needs and desires of consumers;
(c)
To encourag1e high levels of ethical conduct for
those engag1ed in the production and distribution of
goods and services to consumers;
....
+-
'
..
.-
~·-
ETHIOPIAN AIRLINES v. GANESH NARAIN SABOO 959
[DALVEER BHANDARI, J.]
(d) .