Case Note & Summary
The dispute arose from a Summary Suit filed by Shapoorji Pallonji & Company Limited against Qatar Airways under Order 37 of the Code of Civil Procedure, 1908 (CPC) for recovery of dues. The defendant resisted the claim and raised a preliminary objection regarding the maintainability of the suit, contending that prior consent of the Central Government under Section 86 CPC was mandatory because the defendant was a foreign entity. The court framed two preliminary issues: first, whether the suit was maintainable without such permission, and second, the effect of communications from the Ministry of External Affairs (MEA) stating that Qatar Airways did not fall within the purview of Section 86(4) CPC and therefore no permission under Section 86 was required. The plaintiff had applied for consent, and the MEA, in replies dated 24 December 2009 and 26 February 2010, clarified that the entity was not covered by the provision, making the grant of permission unnecessary. The plaintiff argued that all necessary steps had been taken and that the MEA’s clarification obviated the need for any further consent, while the defendant insisted that explicit consent was essential and that the court should direct its issuance. The court examined the scope and purpose of Section 86, noting that it applies to foreign states, rulers, ambassadors, envoys, and specified categories of staff as enumerated in sub-section (4). It held that the MEA’s determination that Qatar Airways was not within these categories was conclusive, and the plaintiff had satisfied the statutory requirement by seeking clarification. The court found that it could not compel the government to grant consent, especially when the authority itself had stated that no permission was necessary. Consequently, the preliminary issues were answered in favour of the plaintiff, the suit was held maintainable, and it was directed to be listed for hearing before the regular bench after four weeks.
Headnote
A) Civil Procedure - Suits against Foreign State - Requirement of Consent - Code of Civil Procedure, 1908, Section 86 - The plaintiff filed a summary suit against Qatar Airways, a foreign entity; the defendant raised a preliminary objection that the suit is not maintainable without consent of the Central Government under Section 86; Held, that Section 86 consent is required only if the entity falls within the categories specified in Section 86(4); the Ministry of External Affairs had clarified that Qatar Airways does not come within the purview of Section 86(4), so no permission under Section 86 is necessary; the suit is maintainable (Paras 5-9) B) Civil Procedure - Effect of Government Communication - Clarification that Entity Not Covered - Code of Civil Procedure, 1908, Section 86(4) - The Ministry of External Affairs, Gulf Division, repeatedly stated that Qatar Airways does not fall within the purview of Section 86(4), rendering the grant of permission unnecessary; Held, such communication amounts to a determination that the entity is not a foreign state or its instrumentality, and thus the plaintiff has complied with the requirement of seeking consent; the court cannot direct the grant of consent when the authority itself says it is not required (Paras 5-8)
Issue of Consideration
Whether a summary suit against Qatar Airways is maintainable without prior consent under Section 86 CPC, given the communication from the Ministry of External Affairs that the entity is not covered by Section 86(4) and no permission is necessary
Final Decision
The preliminary issues answered in favour of the plaintiff; the suit is maintainable as the permission under Section 86(4) CPC is not necessary, and the plaintiff has complied with the formalities. The suit to be listed for hearing before the regular bench after four weeks.
Law Points
- Section 86 CPC consent requirement applies only to entities covered under Section 86(4)
- if Ministry of External Affairs clarifies entity does not fall within purview
- no prior permission is necessary
- plaintiff’s compliance is satisfied by seeking clarification
- court cannot compel grant of consent
- communication from government that no permission arises is sufficient to dispense with consent requirement
