Summary Suit No. 1224 of 2010

15th March, 2012

Petitioner Counsel: Mr. JAMSHED LENTIN with Mr. ATIV PATEL, HARIANI & CO.
Respondent Counsel: Mr. K. R. PRESSWALLA with Ms. K.R. DEVIERVALA, M/s.MULLA & MULLA

JUDGMENT

JUDGMENT :- The Plaintiff has filed this Suit by invoking the provisions of Order 37 of the Code of Civil Procedure (CPC) against the Defendant and also filed Summons for Judgment, based upon the averments made in the Petition read with the documents as, according to the Plaintiff they are entitled for the decree/summons for judgment as there is no serious dispute with regard to the liability and the due amount.

2. The Defendant in reply, apart from resistance of the claim, has raised a preliminary objection. Therefore, on 15 December 2011, framed a preliminary issue, added by one more on 6 January 2012. Both are reproduced as under :

1. Whether the Summary Suit is maintainable against the Foreign State without permission as contemplated under Section 86 of the Code of Civil Procedure and if yes, what is the effect of the written communication by the Ministry of External Affairs, Gulf Division ?

2. Whether the Summary Suit is maintainable against the Defendant despite permission having been sought by the Plaintiff under Section 86 of the Code of Civil Procedure and despite replies dated 24 December 2009 (Exhibit "D") and 26 February 2010 (Exhibit G) from the Ministry of External Affairs, Gulf Division stating and confirming that "in view of the fact hat Qatar Airways does not come within the purview of Section 86(4) of the Code of Civil Procedure, the permission under Section 86 of the Code of Civil Procedure in the present case does not arise?

3. Section 86 of the Code of Civil Procedure (CPC) deals with the Suits against foreign Rulers, Ambassadors and Envoys. The relevant portion of the Section is as under :

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.

(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 the staff or retinue of the Ambassador or Envoy of a foreign State or of the High Commissioner of a 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).

(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.

4. The party is to avoid frivolous or unjustified claims. The Central Government is not under obligation to give consent unless they deem fit if case falls within the ambit of the Section. The mandatory nature of prerequisite of Sections 80 and 86 have above foundation. It is also necessary to consider the scope and purpose of Section 86, commercial, national and international transactions point of view. The contractual and commercial activities and obligations undertaken by foreign state and/or its instrumentality in India is another aspect which concerned parties know better than anyone else.

5. In the present case, to the preliminary objection raised by the Defendant, there is an affidavit in rejoinder filed by the Plaintiff. Apart from this, considering the documents on record, the fact remains that by letter dated 19 November 2009 an application was made to the Secretary, Legislative Department, New Delhi for obtaining the consent of the Central Government under Section 86 of the CPC. The same was replied by letter dated 1 December 2009 by the Deputy Legislative Counsel, Ministry of Law and Justice, Legislative Department informing that the letter so referred above was forwarded to the Department of Legal Affairs (Judicial Section). The Deputy Legislative Counsel addressed a letter dated 8 January 2010 enclosing therewith a letter dated 24 December 2009 by the Ministry of External Affairs, Gulf Division wherein the following was stated :

"The Legal and Treaties Division has been consulted and it is hereby informed that "In view of the fact that Qatar Airways does not come within the purview of Section 86(4) Civil Procedure Codee which deals with the application of Section 86 CPC, the grant of permission does not arise in this case and the Hariani & Co., Advocates and Solicitors may be informed of this accordingly."

Therefore, it was clearly communicated that the grant for socalled permission is not necessary in this case.

6. By another letter dated 13 January 2010 again a letter was addressed to the Director (Gulf) Ministry of External Affairs that the consent would be necessary in view of Section 86(4) of CPC. It was forwarded along with judgments of this Court as well as Supreme Court. There was no reply received and, therefore, reminder was sent on 18 February 2010. By another communication dated 24 December 2009, it was again informed in the following words :

"The matter is re-examined in this Ministry and I am directed to convey that this Ministry reiterates its earlier views/opinion on the subject as cited above that the permission under section 86 of the CPC does not arise in this case."

7. In view of the above position on record, so far as the Plaintiff is concerned, they have taken all steps which are necessary and/or as contemplated under Section 86 of the CPC. The submission/ contention so raised by the learned counsel appearing for the Defendant that Court should pass appropriate order directing them to issue consent inspite of above factual position on record and as the permission/consent is necessary, in my view, is unacceptable, specifically at the instance of the Defendant, who, in no way, is concerned with the grant and/or non-grant of consent under Section 86 by the concerned Foreign State and/or Authority. The Plaintiff, as recorded above, if has taken all steps and there is positive reply from the concerned Department, in my view, the Court is not empowered even under Section 86 of CPC to direct the Foreign State and/or such Authority to grant the consent merely because the Plaintiff has asked for the same and/or the Defendant is insisting for the same. The requirement is to apply for the consent. They may or may not grant. They are entitled to say not necessary as done in the present case.

8. One cannot overlook the concept and purpose of issuing notices under this Section basically if case and/or action is against the Foreign State and/or the Authority. The requirement is that sufficient notice is required. In my view, it is not necessary and/or compulsory that they must give consent in writing to continue and/or to proceed with the Suit. After due consideration of facts as well as the documents, if the concerned Authority reiterate their position/stand, that no such consent/permission is necessary, in my view, in the present facts and circumstances, no further compliance of Section 86 of CPC is necessary. There is no question of further direction and/or order from Court against the Defendant inspite of above clear communications. The Plaintiff has complied with the requirement of Section 86. Therefore, there is no reason that Court should not proceed with the hearing of the matter.

9. The Suit, therefore, so filed is maintainable. I am of the view that merely there is a refusal communicated that itself is not sufficient to hold that the Suit itself is not maintainable. The communication, as recorded above, are clear that according to them the consent/or permission is not necessary. Therefore, I am inclined to observe that the Suit against the Defendant as filed is maintainable and in view of the above compliance of formality by the Plaintiff and refusal from the concerned Authority. The permission/consent under Section 86(4) is not necessary. Both the issues are answered accordingly.

10. The Suit be listed for hearing before the regular bench after four weeks.

Ordered accordingly.