ETHIOPIAN AIRLINES versus GANESH NARAIN SABOO

35. Mr. Khanna also submitted that the Act is a special and a later Act which will prevail over the provisions of the CPC, F which is a general and previous statute. He submitted that the Act is a complete Code in itself as regards the disputes covered under it. As such, the general statute i.e. CPC can have no applicability and stands excluded after the enactment of the Act.

36. Mr. Khanna fL1rther contended that the Carriage by Air Act, 1972. (hereinaftf~r referred to as 'Air Act') again is a special Act regarding international carriage. The Air Act was enacted to give effect to the Convention for unification of Rules relating to international carriage by air signed at Warsaw on H 12.10.1929, as amended by Hague Protocol dated 28.9.1955 ETHIOPIAN AIRLINES v. GANESH NARAIN SABOO 963 [DALVEER BHANDARI, J.] .,., and the Montreal Convention dated 28.9.1999. India enacted this Act as it is a signatory to the Warsaw Convention of 1929 governing the liabilities of air carrier in respect of international carriage of passengers, baggage and cargo by air. The preamble of the Air Act reads as under: "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 28th day of May, 1999 and to make provision for c applying the rules contained in the said Convention in its original form and in the amended form {subject to exceptions, adaptations and modifications) to non- international carriage by air and for matters connected therewith."

37. Section 2 {ii) of the Air Act defines "Convention" to mean Convention for unification of certain rules relating to international carriage by air signed at Warsaw on 12.10.1929. Section 2 {ii) reads as under: "2 {ii) Convention means the Convention for the unification of certain rules relating to international carriage by air signed at Warsaw on the 12th day of October, 1929."

38. Section 3 of the Air Act provides that the Rules contained in the first schedule {the provisions of the Convention relating to the rights and liability of the carriers, passengers, consignors and other persons), shall have the force of law in India with respect to any carriage by air to which these rules apply, irrespective of the nationality of the air craft performing the carriage. Sub-Section 2 of section 3 provides that the high contracting parties to the Convention and date. of enforcement of the said Convention shall be such as are included in Part-I of the Annexure. Section 3 reads as under: "3. Application of Convention to India: SUPREME COURT !REPORTS (1) The rules contained in the First Schedule, being the provisions of the Convention relating to the rights . and liabilities of carriers, passengers, consignors, consignees and other persons shall, subject to the provisions of this ctct, have the force of law in India in relation to any carriage by air to which those rules apply, irrespective of the nationality of the aircraft performing the carriage. (2) For the purpose of this Act, the High Contracting c Parties to the Convention and the date of enforcement of thE~ said Convention shall be such as are included in part-I of the Annexure-1. (3) Any reference in the first schedule to the territory of any High Contracting Party to the Convention shall be construed as a reference to all the territories in respect of which he is a party. (4) Any reference in the first schedule to agents of the carrier shall be construed as including a reference to servants of the Garrier. (5) The Central Government may, having regard to the objects of this act, and if it considers necessary or expedient so to do, by notification in the official gazette, add to, or, as the case may be, omit from, Part I of the Annexure, any High Contracting Party and on such addition, or as the case may be, omission, such High Contracting Party shall be or shall cease to be, a High Contracting Party."

39. Section 7 of the Air Act provides that every high contracting party to the Conven~ion, shall for the purpose of any suit brought in a court in India in accordance with the provisions of rule 28 of the first schedule or of the second schedule as the case may be to enforce a claim in respect of the carriage H undertaken by him be deemed to have submitted to the ETHIOPIAN AIRLINES v. GANESH NARAIN SABOO 965 [DALVEER BHANDARI, J.] jurisdiction of that Court and to be a person for purpose of A Code of Civil Procedure, 1908. Secti.on 7 reads as under: "7. Provisions regarding suits against High Contracting Parties who undertake carriage by Air. (1) Every High Contracting Party to the Convention or the amended ,J Convention, as the case may be, who has not availed himself of the provisions of the Additional Protocol thereto shall, for the purpose of any suit brought in a Court in India in accordance with the provisions of rule 28 of the First Schedule, or of the Second Schedule, as the case may c be, to enforce a claim in respect of carriage undertaken by him, be deemed to have submitted to the jurisdiction of that Court and to be a person for the purpose of the Code of Civil Procedure, 1908. (2) The High Court may make rules of procedure providing for all matters which may be expedient to enable such suits to be instituted and carried on. (3) Nothing in this section shall authorize any Court to attach or sell any property of a High Contracting Party to the Convention or to the amended Convention."

40. The First Schedule to the Act vide Rule 1 provides that the Rules under this Schedule shall apply to all international carriage of persons, luggage or goods, performed by aircraft for reward. Sub Rule 2 defines the "High Contracting Party". Sub Rule 3 defines International Carriage. The provisions of Rule 1 read as under: "Rule1: (1) These rules apply to all international carriage of persons, luggage or. goods, performed by aircraft for G reward. They apply also to such carriage when performed gratuitously by an Air Transport undertaking. (2) In these rules, "High Contracting Party" means a High Contracting Party to the Convention. c (3) For the purposes of these rules the expression, "international carriage" means any carriage in which according to the contract made by the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transshipment, are situated either within thei territories of two High Contracting Parties, or within the territory of a single High Contracting Party, if there is an agreed stopping place within a territory subject to the sovereignty, suzerainty, mandate or authority of another power, even though that power is not a party to the Convention. A ca1rriage without such an agreed stopping place between territories subject to the sovereignty, suzerainty,, mandate or authority of the same High Contracting Party is not deemed to be international for the purposes of the1se Rules."

41. Rule 2 of these Rules, provides that these rules apply to carriage performed by the State or by legally constituted public bodies. Rule 2 reads as under: "2. (1) These rules apply to carriage performed by the State or by legally constituted public bodies provided it falls within the conditions laid down in rule 1. (2) These rules do not apply to carriage performed under the terms of any International Postal Convention."

42. Rule 18 provides for liability of the carrier for damages and Rule 19 provides for liability of the carrier for damages occasioned by delay. Rule 18 and 19 read as under: "18. (1) The carrier is liable for damage sustained in the event of the destruction or loss of, or of damage to, any registered luggage or any goods, if the occurrence which caused the damage so sustained took place during the carriage by air. j ETHIOPIAN AIRLINES v. GANESH NARAIN SABOO [DALVEER BHANDARI, J.] (2) The carriage by air within the meaning of sub- rule (1) comprises the period during which the luggage or goods are in charge of the carrier, whether in any aerodrome or on board an aircraft, or, in the case of a landing outside an aerodrome in any place whatsoever. (3) The period of the carriage by air does not extend to any carriage by land, by sea or by river performed outside an aerodrome. If, however, such a carriage takes place. in the performance of a contract for carriage by air, for the purpose of C loading, delivery or transshipment, any damage is presumed, subject to proof to the contract, to have been the result of an event which took place during the carriage by air. 19. The carrier is liable for damage occasioned by delay in the carriage by air of passengers, luggage or goods."

43. Rule 28 provides for Territorial Jurisdiction for suing for damages which reads as under: "28. An action for damages must be brought at the option of the plaintiff either before the Court having jurisdiction where the carri~r is ordinarily resident, or has his principal place of business, or has an establishment by which the contract has been made or before the Court having jurisdiction at the place of destination."

44. As per the Annexure to the Air Act 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.

45. A bare perusal of the aforesaid rules in the First Schedule, which has the force of law as per Section 3 of the Air Act, read with Section 7 leaves no room or doubt that a state A carrier or legally constituted public 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.

46. Mr. Khanna also submitted that even otherwise Section 86(2) of the CPC provides that the consent of the Central Government can be given with respect to a specified suit or to several specified suits 01r with respect to all suits of any specified class or classes. Section 86 of the CPC reads as under: c "86. Suits against foreign Rules, Ambassadors and Envoys: (1) No foreign state may be sued in any Court otherwisf~ competent to try the suit except with the consent of the Central Government certified in writing by a Sf~cretary 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. (2) Such consent may be given with respect to a specified suit or to several specified suits or with respect to all suits of any specified class or classes, and may speicify, in the case of any suit or class of suits, the court in which (the foreign state) may be sued, but it shall not be given, unless it appears to the Central Government that (the foreign State) – (a) has instituted a suit in the Court against the person desiring to :sue (it), or (b) by (itself) or another, trades within the local limits of the jurisdiction of the Court, or (c) is in possf~ssion of immovable property situated within those limits and is to be sued with reference ETHIOPIAN AIRLINES v. GANESH NARAIN SABOO 969 …. [DALVEER BHANDARI, J.] -I· to such property or for money charged thereon, or (d) has expressly or impliedly waived the privilege accorded to (it) by this section."

47. Thus, the provisions of Section 7 of the Air Act read .l with Rules in the first schedule makes it clear that 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 under the Air Act.

48. Mr. Khanna also referred to Section 3 of the Act and c submitted that the provisions of this Act shall be in addition to and not in derogation of the provisions of any other laws for the time being in force .

49. This Court in the case of Patel Roadways Limited D (supra) has considered this question and has laid down that the Disputes Redressal Agency provided for in the Act will have jurisdiction to entertain complaints in which the claim for loss or damage of goods entrusted to a carrier for transportation is in dispute. This Court also noted that the term "suit" in Section 9 of the Carriage Act was applicable both the cases filed in the Civil Court and to proceedings before the National Commission that decides the complaints by consumers following summary procedure. Mr. Khanna further contended that the view taken by this Court in Patel Roadways Limited (supra) has been affirmed by the Constitution Bench of this Court in the case of Economic Transport Organisation, Delhi v. Charan Spinning Mills Private Limited and Another (2010) 4 sec 114. In paras 53 to 57 of that case, this Court observed as under: "53. Section 14(1)(d) of the Act provides that the Forum under the Act can direct payment of compensation awarded by it to the consumer for any loss or injury' suffered by the consumer due to the negligence of the opposite party. This, according to the appellant, [2011) 9 S.C.R. makes it mandatory for the complainant to establish ~ — negligence on the part of the opposite party i.e. the carrier. It is further contended that presumption of negligence und1er Section 9 of the Carriers Act, 1865 (which provides that in any suit brought against a common carrier for the loss, damage or non-delivery of' the goods entrusted to him for carriage, it shall not be necessary for the plaintiff to prove that such loss, damage or non-delivery of goods was owing to the negligence or criminal act c of the carrier, his servants and agents) is applicable only to a civil s1Jit, and not to a complaint under the Act which specifically contemplates establishment of negligence by evidence. It is submitted that in this case the compensation has been awarded even though no evidence was led by the complainants about negligence of the driver of the appellant. 54. It is no doubt true that Section 14(1 )(d) of the Act contemplates award of compensation to the consumer for any loss suffered by the consumer due to the negligence of the opposite party (the carrier). Section 9 of the Carriers Act does not lay down a proposition that a carrier will be liable even if there was no negligence on its part. On the other hand, it merely raises a presumption that when there is loss. or damage or non-delivery of goods entrusted to a carrier, such loss, damage or non- delivery waf; due to the negligence of the carrier, its servant and agents. Thus where the consignor establishes• loss or. damage or non-delivery of goods, it is deemed that negligence on the part of the carrier is established. The carrier may avoid liability if it establishes that the loss, damage or non-deliv1~ry was due to an act of God or circumstances beyond its control. Section 14(1)(d) ETHIOPIAN AIRLINES v. GANESH NARAIN SABOO 971 [DALVEER BHANDARI, J.] –j of the Act does not operate to relieve the carrier against the presumption of negligence created under Section 9 of the Carriers Act. 55. The contention of the appellant that the presumption l under Section 9 of the Carriers Act is available only in suits filed before civil courts and not in other civil proceedings under other Acts, is not tenable. This Court in Patel Roadways Ltd. (supra) has observed: (SCC pp. 106-07, paras 47, 48 & 49) The principle regarding the liability of a carrier c contained in Section 9 of the Carriers Act, namely, that the liability of a carrier is that of an insurer and that in a case of loss or damage to goods entrusted to the carrier the plaintiff need not prove negligence, are applicable in a proceeding before the Consumer Forum. The term "suit" has not been defined in the Carriers Act nor is it provided in the said Act that the term "suit" will have the same meaning as in the Civil Procedure Code. Therefore, the term "suit" has to be understood in its ordinary dictionary meaning. In that sense, term "suit" is a generic term. taking within its sweep all proceedings initiated by a party for realisation of a right vested in him under law. It is true that a proceeding before Consumer Forum is ordinarily a summary proceeding and in an appropriate case where the Commission feels that the issues raised are too contentious to be decided in summary proceedings it may refer parties to a civil court. That, however, does not mean that proceedings before the Consumer Forum is to be decided by ignoring the express statutory provisions of the Carriers Act in a proceeding in which a claim is made against a common carrier. A proceeding before the Consumer Forum comes within the sweep of term "suit". 56. Again, in Economic Transport Organization v. Dharwad District Khadi Gramudyog Sangh (2000) 5 Sec 78 this Court reiterated the principle stated in Patel Roadways and added the following: (Economic Transport case (supra) sec p. 79, para 2) c "2 …. Even assuming that Section 9 of the Carriers. Act, 1865 does not apply to the cases before the Consumer Fora under the Consumer Protection Act, the principle of common law abovementioned gets attracted to all these cases coming up before the Consumer Fora. Section 14(1 )(d) of the Consumer Protection Act has to be understood in that light and the burden of proof !gets shifted to the carriers by the application of the legal presumption under the common law. Section 14(1)(d) has to be underntood in that manner. The complainant can di:scharge the initial onus, even if it is laid on him under Section 14(1)(d) of the Consumer Protection Act, by relying on Section 9 of the Carriers Act. It will, therefore, be for the carrier to prove absence of neglis1ence." 57. We reiterate the said settled position and reject the contention of the appellant that the presumption under Section 9 of the Carriers Act is not available in a proceeding under the Consumer Protection Act and that therefore, in the absence of proof of negligence, it is not liable to compensate the respondents for the loss." 50. Mr. Khanna further submitted that in the case of E.l.C.M. Exports Ltd. v. South Indian Corporation (Agencies) H Ltd. and Another 2009 (10) SCALE 22, this Court has held ETHIOPIAN AIRLINES v. GANESH NARAIN SABOO 973 —< [DALVEER BHANDARI, J.] firstly that the cases filed before the consumer forum are not suits within the meaning of Section 9 of CPC and secondly the limitation of two years for filing a case under the Act as provided vide Section 24 (A) of the Act will be applicable instead of Article Ill, Clause 6 of the schedule of the Indian Carriage of Goods by Sea Act, 1925, which provides for limitation of one year extendable by three months at the discretion of the Court. According to learned counsel for the respondent there is no conflict between the judgments of this Court in the cases of E.l.C.M. Exports (supra) and Patel Roadways Limited (supra). According to him the provisions of Carriage by Air Act, 1972 c have to be read into the provisions of the Act. 51. We have heard learned counsel for the parties and carefully perused relevant cases cited at the Bar. The Central Question which requires adjudication is whether the appellant Ethiopian Airlines is entitled to sovereign immunity in this case? 52. The short question which falls for our adjudication is whether the proceedings before the Consumer Forum are suits. 53. The term "suit" has not been defined in the. Carriage by Air Act, 1972 nor is it provided in the said Act that the term "suit" will have the same meaning as in the Civil Procedure Code. Therefore, the term "suit" has to be understood in its x ordinary dictionary meaning. In that sense, the term "suit" is a generic term taking within its sweep all proceedings initiated by a party for realisation of the right vested in him in law. In this view of the matter, we have to look to the dictionary meaning of the word "suit". 54. According to Black's Law Dictionary, the word "suit" means "any proceeding by a party or parties against another in a court of law." 55. 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 A impartial forum. Proceedings before the Consumer fora fall squarely within that definition. 56. It has been held in Patel Roadways Limited (supra) that proceedings before the Consumer Forums come within the B sweep of the term "suit". This judgment has been approved by a Constitution Bench of this Court in Economic Transport Organization (supra). Therefore, the controversy involved in this case is finally settled and we are bound by the decision of the Constitution Bench and this case has to be ruled in terms of C what has been decided by the Constitution Bench in Economic Transport Organisation (supra). 57. In the same vein, the U.S. Supreme Court has read the term "suit" broadly, finding that a "suit" is "any proceeding in a court of justice by which a person pursues therein that D remedy which the law affords him," Upshur County v. Rich, 135 US 467 (1890). Likewise, "the modes of proceeding may be various, but if a right is !litigated between parties in a court of justice, the proceeding ll:>y which the decision of the court is sought is a suit." Id. The Michigan Supreme Court similarly E found that "the word ["suit"], as applied to legal controversies, both by the legal profeission and others, is now used and recognized as a generic term of broad significance, often understood and used, even by legislatures and courts, to designate almost any proceeding." Patterson v. Standard F Accident Insurance Co., 178 Mich. 288. The proceedings held before the consumer redressal fora easily fall within the aforementioned definitions : these are proceedings in which consumers may pursue the remedies afforded to them by the Consumer Protection Act and other laws and where the rights G of the parties are fully li1tigated by an organ of justice. 58. However, notwithstanding the fact that proceedings of the National Commissi.on are "suits" under the Carriers Act, vide the expressio unius principle, The Consumer Protection Act, 1986 clearly enumerates those provisions of the CPC that H are applicable to proceedings before the consumer fora. Such ETHIOPIAN AIRLINES v .. GANESH NARAIN SABOO 975 [DALVEER BHANDARI, J.] \, … provisions include 13(4), in which the Consumer Protection Act, A 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 the consumer proceedings, the legislature is, therefore, deemed to B have intentionally excluded all other provisions of the CPC from applying to the said proceedings. This is particularly true since, as explained above, the Consumer Protection Act, 1986 sets forth an exhaustive list of procedures, distinguishable from those required under the CPC, that the consumer redressal fora must c follow. 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 hetd to be not "I applicable. 59. Likewise, the CPC itself does not claim to make 0 Section 86 applicable to proceedings before the consumer fora. lnstead1the 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, E by or under any other law .. ." In addition, Section 86 only applies to a "suit in any Court". This term should be. understood differently than the term "court" discussed above because the CPC refers exclusively to Civil Courts. In particular, the CPC specifically refers to the District Courts, the High Courts, and F the Supreme Court and makes little if any reference to other, quasi-judicial fora like the consumer redressal bodies at issue here. This interpretation has been approved by the Supreme Court, in H.H. The Maharana Sahib Shri Bhagwat Singh Bahadur of Udaipur {supra). In that case, the Apex Court found G that the phrase "sued in any Court" must be strictly construed and confined to "suits proper" and thus held that Section 86 did not bar adjudication of an industrial dispute in an industrial Tribunal. Similarly, in Nawab Usmanali Khan v. Sagarrna/, AIR 1965 SC 1798, this Court found that Section 87(8) does not H SUPREME COUHT REPORTS A apply to proceedings under the Arbitration Act. Similarly, Section 86 and 87 should be found inapplicable to the consumer redressal fora's proceedings at issue here. 60. Moreover, Section 86 of the CPC is inapplicable because the legislative intent is deem to exclude older and more general statute by rnore recent and special statutes : the Consumer Protection Act, 1986 and the Carriage by Air Act, 1972. And, under these Acts, Ethiopian Airlines is not entitled to sovereign immunity in a suit like that at issue here. Thus, consent of the Central Government is not required to subject C Ethiopian Airline to suit in an Indian court, let alone in a consumer redressal forum. 61 .. In Ratan Lal Adukia and Another v. Union of India, AIR 1990 SC 104, the Apex Court found that Section 80 of the D Railways Act, 1890, substituted 1961, was a special provision and self-contained code and that it impliedly repealed in respect of suits covemd by it the general provisions of the CPC. The Railways Act provides for a forum in which a suit for compensation for loss of life of, or personal injury to, a E passenger for loss, destruction, damage, deterioration or non- delivery of animals or goods against a railway administration may be brought. This is very much akin to the fora created by the Consumer Protectkm Act. Thus, a similar finding should be made here : the Consumer Protection and Carriers Acts must F be deemed special Acts bypassing Section 86 of the CPC, with respect to suits covered by those special Acts. 62. That is, the Consumer and Carriage Acts, which came long after the CPC, ar•~ more focused and specific statutes, and therefore should be held to exclude Section 86. The Supreme G Court has previously found as such, holding that in the fora created by the Consumer Act, "the 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, H rules created pursuant to the Consumer Act itself govern the ETHIOPIAN AIRLINES v. GANESH NARAIN SABOO 977 [DALVEER BHANDARI, J.] . "' procedure to be followed in the consumer fora. Similarly, a A .constitutional Bench of this Court, in Economic Transport Organisation (supra) found that 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 B Carriers Act in a proceeding in which a claim is made against a common carrier." 63. In view of the Constitution Bench judgment in Economic Transport Organisation (supra) the view which has been taken c by the two-Judge Bench of this Court in E.l.C.M. Exports (supra) is wholly untenable and unsustainable in law. 64. Section 86 of the Code of Civil Procedure is i inapplicable to the present case because the older and more general statute has been excluded by more recent special D statute, namely, Consumer Protection Act, 1986 and the Carriage by Air Act, 1972. Ethiopian Airlines is not entitled to sovereign immunity in the suit at issue in the present case. Therefore, any other consent of the Central Government is not required to subject the appellant, Ethiopian Airlines, to a suit in E an Indian Court. 65. It is settled principle of statutory interpretation that specific statutes that come later in time trump prior general statutes. Both the Consumer Protection Act, 1986 and the F 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 ta supersede Section 86 of the Code. This Court in Savita Garg (supra) has clearly laid down that the principle that in fora created by the Consumer Act, the provisions of the Code of Civil Procedure are applicable only to a limited extent, therefore, the provisions of the Co~e of Civil Procedure have not been made applicable to the proceedings of the National Consumer Forum. 66. This court in Vishwabharathi House Building Coop. H [2011) 9 S.C.R. A Society and Others (supra) dealt with the object of the Consumer Protection Act, 1986 : to provide expeditious adjudication of consumers' complaints by adopting summary procedure. The Consumer Protection Act, 1986 is a comprehensive and self-contained piece of legislation, and its B object is to decide consumers' complaints expeditiously, via summary procedure. Thei Consumer Protection Act, 1986 also permits authorized a~1ents to appear on behalf of the complainants in order to 1ensure that they are not burdened with the heavy professional f1ees of lawyers. c 67. Similarly, the Carriage by Air Act, 1972 explicitly provides 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, Ethiopian Airlines can be subjected to suit under the D Carriage Act, 1972. It may be pertinent to mention that the Carriage by Air Act, 19'72 (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 E the Hague Protocol on the 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 non- international carriage by air and for matters connected F therewith. 68. In effect, by signing onto the Warsaw Convention, Ethiopia had expressly waived its Airlines' right to immunity in cases such as that sub judice. Therefore, the Central G Governments of both 'India and Ethiopia have waived that right by passing the Carriage by Air Act, 1972 and by signing onto the Warsaw Convention. 69. In accordance with the interpretation set forth above, the Bombay High Cc1urt has noted that Section 86 is of only H limited applicability and can be overcome in cases of even I ETHIOPIAN AIRLINES v. GANESH NARAIN SABOO [DALVEER BHANDARI, J.] implied waiver. For example, in The German Democratic A Republic v. The Dynamic Industrial Undertaking Ltd., AIR 1972 Bombay 27, the Bombay High Court found that Section 86 does not supplant the relevant doctrine under International Law. Rather, Section 86 "creates another exception" to j immunity (emphasis added), i~ addition to those exceptions recognized under International Law. Likewise, in Kenya Airways v. Jinibai B. Kheshwala, AIR 1998 Bombay 287, the Bombay High Court found that, while Kenya Airways was a state entity prima facie entitled to immunity under Section 86, it had nevertheless waived that immunity by, in its written statements, c failing to raise a plea of sovereign immunity under Section 86 of the CPC. Therefore, in that case, the Bombay High Court found that Kenya Airways was not entitled to sovereign immunity . and could be subjected to suit in an Indian court. 70. Ethiopian Airlines is not entitled to sovereign immunity D with respect to a commercial transaction is also consonant with the holdings of otber countries' courts and with the growing International Law principle of restrictive immunity. For instance, in England, in Rahimtoola v. H.E.H. The Nizam of Hyderabad and Others (1957) 3 All E.R. 441, Lord Denning found that "there was no reason why (a country] should grant to the departments or agencies of foreign governments an immunity which [the country does] not grant [its] own, provided always that the matter in dispute arises within the jurisdiction of [the country's] courts and is properly cognizable by them." Lord Denning also held that "if the dispute concerns … the commercial transactions of a foreign government… and it arises properly within the territorial jurisdiction of (a country's] courts, there is no ground for granting immunity," finding implicitly that it would not "offend the dignity of a foreign sovereign to have the merits of such a dispute canvassed in the domestic courts of another country." 71. Likewise, in Trendtex Trading Corporation Ltd. v. Central Bank of Nigeria (1977) 1 All E.R. 881, the Court held A that the Central Bank of Nigeria was not entitled to plead sovereign immunity because, according to International Law Principle of restrictive immunity, a state-owned entity is not entitled to immunity for acts of a commercial nature, jure gestionis. The Court noted that "if a government department B goes into the market places of the world and buys boots or cement – as a commercial transaction – that government department should be subjec:t to all the rules of the market place." The Court also noted an "important practical consideration." stating that foreign sovereign immunity, "in c protecting sovereign bodies from the indignities and disadvantages of that process, operates to deprive other persons of the benefits and advantages of [the judicial] process in relation to rights which they posses and which would otherwise be susceptible to e:nforcement." As the court stated, 0 the principle of restrictive immunity is "manifestly better in accord with practical good sense and with justice." 72. On careful analysis of the American, English and Indian cases, it is abundantly clear that the ar-pellant Ethiopian Airlines must be held accountable for the contractual and commercial E activities and obligations that it undertakes in India. 73. It may be pertinent to mention that the Parliament has recognized this fact while passing the Consumer Protection Act, 1986 and the Carriage by Air Act, 1972. Section 86 was itself, F a modification and restriction of the principle of foreign sovereign immunity and thus, by limiting Section 86's applicability, the Parliament through these Acts, further narrowed a party's ability to successfully plead foreign sovereign immunity. In thei modern era, where there is close G 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 much E~arlier was. Countries who participate in trade, commerce and business with different countries ought to be subjected to normal rules of the market. if State owned entities ETHIOPIAN AIRLINES v. GANESH NARAIN SABOO [DAL.VEER BHANDARI, J.] would be able to operate with impunity, the rule of law would be degraded and international trade, commerce and business will come to a grinding halt. Therefore, we have no hesitation in coming to the conclusion that the appellant. cannot claim sovereign immunity. The preliminary objection raised by the appellant before the court is devoid of any merit and must be rejected. 74. The controversy involved in this case is no longer res- integra. This Court in Patel Roadways Limited (supra) clearly observed that a proceeding before the Consumer Forum comes within the sweep of term "suit". Again this Court in Economic Transport Organization (supra) reiterated the principle stated in Patel Roadways Limited (supra). Both these judgments have been specifically approved by the Constitution Bench of this Court in Economic Transport Organization (supra). The view which has been taken in E.l.C.M. Exports (supra) is clearly contrary to the view taken by the Constitution Bench judgment in Economic Transport Organization (supra) and the same cannot be sustained. 75. We are of the considered view that the impugned order passed by the National Commission is untenable so far it held that the 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 (supra). The finding of the National Commission is accordingly set aside to that extent. However, we agree with the findings of the National Commission so far as it has remitted the matter to the State Commission for adjudication. In the facts and circumstance of this case, we direct the State Commissi.on to dispose of the case as expeditiously as possible. 76. This appeal is accordingly disposed of, leaving the parties to bear their own costs. N.J. Appeal disposed of.