SAURABH NAGPAL vs ROYAL JORDANIAN AIRLINES

THIS is an appeal directed against order dated 4.2.2003 passed by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh [for short hereinafter referred to as the District Forum] in Complaint Case No. 228 of 2000 vide which the complaint was dismissed as not maintainable without the consent of the Central Government. The complainant was relegated to the remedy of seeking consent of the Central Government as required by Section 86(1) of the Code of Civil Procedure [for short hereinafter referred to as the C.P.C.] and thereafter to file the complaint against the OP Nos. 1 to 3 afresh in accordance with law.

THE appellant Shri Saurab Nagpal filed the said complaint against four opposite parties i.e. Royal Jordanian Airlines thorough the Country Manager (Mr. Maqbool), G-56, Cannaught Circus, New Delhi; Royal Jordanian Airlines through Sales Officer, Amman City Terminal, 7 Circle Amman, Jordan; Royal Jordanian Airlines [Local Office] through Mr. Sukhwinder Dhami, SCO No. 14-15, Sector 9-D, Chandigarh and M/s. Grand Travel Planners Pvt. Ltd., 14-16 (1st Floor), SCO No. 55-56, Sector 17-C, Chandigarh. The District Forum considered the question of maintainability of the complaint against the respondents/OP Nos. 1 to 3, which according to the finding of the District Forum formed part of Sovereign Government of Jordan and in view of the provisions contained in Section 86(1) and Order 7 Rule 11 of the Code of Civil Procedure, the complaint could not be maintained before the District Forum under the provisions of the Consumer Protection Act, 1986 [for short hereinafter referred to as the C.P. Act], without obtaining the prior consent of the Central Government. This finding is based on the affidavit placed on record of the complaint case of Shri Hussein Hammoudeh, Regional Manager of Royal Jordanian Airlines wherein it was deposed that the Royal Jordanian Airlines was an organ of a State of Jordan and was created by Special Act approved by the King of Jordan and this Corporation was attached to the Ministry of Transport of the Government of Jordan and wholly controlled, managed and operated by the State and formed part of the Sovereign Government of Jordan.

The District Forum relied on the judgment of the Delhi High Court in the case of Mansoor Mumtaz & Ors., v. Saudi Arbian Airlines Corporation, 93 (2001) Delhi Law Times 851, where a suit had been filed against Saudi Arabian Airlines Corporation which stood on the same footing as Royal Jordanian Airlines. The Delhi High Court held that for filing a civil suit or legal proceedings against the said Saudi Arabian Airlines Corporation, the consent of the Central Government under Section 86 (1), C.P.C. and Order 7 Rule 11(d) was necessary. Resultantly, the complaint was dismissed as being not maintainable and the District Forum, as mentioned above, left the complainant to file fresh complaint after obtaining the consent of the Central Government in accordance with law.

THE complainant felt aggrieved against the impugned order passed by the District Forum and filed the present appeal. Notice of appeal was served on respondent Nos. 1 to 3 who put in appearance through Mr. Sunil Panwar, Advocate. Record of the complaint case was summoned from the District Forum. We have heard the learned Counsel for the appellant Mr. S.C. Nagpal, Advocate and the learned Counsel for respondent Nos. 1 to 3 Mr. Sunil Panwar, Advocate and have also carefully perused the impugned order and the record of the complaint case.

THE learned Counsel for the appellant in the first place submitted that the provisions of Section 86, C.P.C. were not applicable to the instant case filed under Special Act, i.e. Act i.e. C.P. Act and as such the complainant did not require any prior sanction or consent from the Central Government. In the second place, he contended that even assuming that the complaint case was not legally maintainable against respondent Nos. 1 to 3, still the complaint was quite maintainable against OP No. 4 M/s. Grand Travel Planners Pvt. Ltd. in respect of whom, no prior consent of the Central Government was required under Section 86 of C.P.C. Now so far as the first submission made by the learned Counsel for the appellant regarding non-applicability of the provisions of Section 86, C.P.C. is concerned, the District Forum has referred to the judgment of the Delhi High Court in the case of Mansoor Mumtaz & Ors. (supra) in Para 4 of the impugned order. In our considered opinion, this judgment is quite applicable to the instant case where the Royal Jordanian Airlines is claimed to be a State owned organisation which is wholly controlled by the State Government and formed part of Sovereign Government of Jordan. On facts, the District Forum has considered the affidavit of Regional Manager of Royal Jordanian Airlines, Shri Hussein Hammouden who has deposed about these facts in Para 3 of his affidavit which reads as under : "3. At the outset, I respectfully say and submit that the present complaint is not maintainable in law. The same is barred in view of the express provisions of Section 1986 of the Code of Civil Procedure Code, 1908. I respectfully say and submit that the opposite party is an organ of the State of Jordan and was created by a special leave approved by the King of Jordan. The opposite party is a Corporation attached to the Ministry of Transport of the Government of Jordan and is wholly owned, controlled, managed and operated by the State and forms a part of the Sovereign Government of Jordan. As such, no legal proceeding can be initiated against the opposite party without fulfilling the express provisions of Section 86 of the Code of Civil Procedure, 1908 which requires prior sanction of the Central Government before initiating legal proceedings against a Foreign State. I say and submit that the complainant has not fulfilled the statutory requirement as contemplated under Section 86 of the Code of Civil Procedure, 1908 and as such, the complaint is liable to be dismissed on this ground alone."

Section 86 of C.P.C. provides for "Suits against Foreign Rulers, Ambassadors and Envoys" and Sub-section (1), inter alia, lays down that : "(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."

SUB-section (2) of Section 86 of C.P.C. provides for grant of consent and it lays down that such consent shall not be given unless it appears to the Central Government (the foreign State) : (a) xxxxxx (b) by itself or another, trades within the local limits of the jurisdiction of the Court; or (c) xxxxxx (d) has expressly or impliedly waived the privilege accorded to it by this section.

SUB-section (3) of Section 86 of C.P.C. makes provision regarding execution of decree against the property of any foreign State. SUB-section (4) of Section 86, C.P.C applies the provision of Section 86 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 Commonwealth country as the Central Government may; by general or special order, specify in this behalf, as they apply in relation to foreign State.

SUB-section (5) of Section 86, C.P.C. provides that the persons mentioned therein shall not be arrested under this Code. Section 86(6) provides for dealing with of a request made to the Central Government for grant of any consent and it lays down that before the consent is refused in whole or in part, a reasonable opportunity of hearing to such person/applicant shall be afforded. The question whether the provisions of Section 86 of C.P.C. applied only to the civil suit filed and not to the complaints filed under the provisions of C.P. Act came up for consideration before this Commission in the case of Cadchem Laboratories Ltd. v. New India Assurance Company Ltd., I (2003) CPJ 377. This Commission held in Para 25, inter alia, as under : ".......We may further point out that Section 3 of the C.P. Act clearly provides that the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Provisions of Section 86 of the C.P.C. would normally be attracted even in cases filed under the C.P. Act......"

In the case of Cadchem Laboratories Ltd. (supra), The Peoples Insurance Company of China which had been impleaded as an opposite party was claimed to be a State owned Insurance Company transacting various clauses of domestic and insurance business in the Peoples Republic of China and it enjoys a history of 35 years since its establishment in the year 1949. The document placed on record of the complaint case in Cadchem Laboratories Ltd. (supra) vide Para 23 of the judgment (Annexure R-3/2) showed that the Peoples Insurance Company of China is a State owned Company and the same could not be controverted by the complainant. The provision of Section 86 of the C.P.C. were held applicable to the said Company and the complaint was held to be not maintainable without the prior consent of the Central Government.

IN the instant case also, the District Forum held that the provision of Section 86 of C.P.C. applied to the complaint case and as such, the same was not maintainable without the consent of the Central Government. We find that the view of the District Forum is in conformity with the view expressed in the case of Mansoor Mumtaz & Ors. (supra) and also with the view expressed by us in the case of Cadchem Laboratories Ltd. (supra). The District Forum has thus rightly held the complaint not maintainable in the absence of prior consent of the Central Government as required under Section 86(1) read with Order 7 Rule 11 of the C.P.C. The District Forum has rightly observed that the complainant/appellant has not controverted the averments made in Para 3 of the affidavit of Shri Hussein Hammouden, Regional Manager of Royal Jordanian Airlines. As regards the second submission raised by the learned Counsel for the appellant about the complaint surviving against the O.P. No. 4 - M/s. Grand Travel Planners Pvt. Ltd. is concerned, it may be mentioned that in the complaint, the appellant/complainant made allegations primarily against the O.Ps./respondent Nos. 1 to 3 and referred to version of the respondent No. 4 being at variance with the version of respondent Nos. 1 to 3. In para 17 of the complaint, the complainant assessed the loss to the tune of Rs. 1,85,000/- on account of deficiency in service provided by the respondents and Rs. 1,00,000/- on account of mental agony, harassment and torture caused to him. The complainant alleged that he was entitled to claim Rs. 1,85,000/- from the respondents jointly and severally. Since the liability of respondent No. 4-M/s. Grant Travel Planners Pvt. Ltd. has been alleged to be joint and several with the remaining respondent Nos. 1 to 3 and keeping into consideration that the version given by the respondent Nos. 1 to 3, on one hand, was at variance with the version given by respondent No. 4, it would not be appropriate that the complaint case be sent back to the District Forum to be proceeded with only against respondent No. 4 and without there being respondent Nos. 1 to 3 before the District Forum. Since, we have upheld the finding of the District Forum regarding the non-maintainability of the complaint case against respondent No. 1 as the complainant failed to obtain prior consent of the Central Government under Section 86(1) read with Order 7 Rule 11, C.P.C., we are in agreement with the observation of the District Forum that the appellant/complainant can after obtaining the consent of the Central Government as required under Section 86(1) of the C.P.C. file a fresh complaint against all the respondens including the respondent No. 4 Resultantly, the appeal lacks merit and is dismissed. However, since the case has been considered on the point of maintainability only, we leave the parties to bear their own costs of appeal. Copies of this judgment be sent to the parties free of charge. Appeal dismissed.