Case Note & Summary
The appellant, K.S. Dhondy, filed a suit in the Bombay High Court for recovery of US $25 million with interest against two respondents: Her Majesty the Queen of Netherlands (First Respondent) and the Union of India (Second Respondent). The appellant claimed to be the owner of a vessel chartered by the Dredging Corporation of India Ltd. on 10 November 1989. A national of the Netherlands was engaged as an expert to attach equipment to the vessel for bed levelling operations at the Port of Old Mangalore. The vessel capsized, allegedly due to the expert's negligence. The appellant relied on a Bilateral Trade Agreement between India and Netherlands, asserting that the Government of Netherlands undertook to reimburse amounts due from its employees, and that under Article 5 of the Agreement, the Government of India bore liability for damages caused by the expert. The suit was instituted on 30 May 1994. The First Respondent took out a Notice of Motion for dismissal of the suit for non-compliance with Section 86 of the Code of Civil Procedure, 1908 (CPC), lack of cause of action, and limitation. The Learned Single Judge, by order dated 20 January 2011, dismissed the suit against both Respondents under Order 7 Rule 11 CPC. Against the First Respondent, the suit was dismissed for want of permission under Section 86 CPC, no cause of action, and limitation. Against the Second Respondent, it was dismissed on grounds of limitation and absence of cause of action. The appellant appealed. The Division Bench held that the suit against the First Respondent could not be instituted without the consent of the Central Government under Section 86(1) CPC, which was not obtained. The appeal was dismissed, affirming the Single Judge's order.
Headnote
A) Civil Procedure - Suit Against Foreign Sovereign - Section 86 CPC - Consent of Central Government - A suit against a foreign sovereign cannot be instituted without the prior consent of the Central Government under Section 86(1) of the Code of Civil Procedure, 1908. The plaint did not disclose any such consent, and the suit against the First Respondent was rightly dismissed. (Paras 4-5) B) Civil Procedure - Dismissal of Plaint - Order 7 Rule 11 CPC - Limitation and Cause of Action - The Learned Single Judge dismissed the suit against both Respondents under Order 7 Rule 11 CPC on the grounds of limitation and absence of cause of action. The appeal against the dismissal was dismissed as the plaint did not reveal a valid cause of action and was barred by limitation. (Paras 3, 6)
Issue of Consideration
Whether the suit against the First Respondent (sovereign head of Netherlands) is maintainable without the consent of the Central Government under Section 86 CPC, and whether the suit against both Respondents is barred by limitation and discloses no cause of action.
Final Decision
The appeal is dismissed. The order of the Learned Single Judge dated 20 January 2011 dismissing the suit against both Respondents is affirmed.
Law Points
- Section 86 CPC mandatory for suing foreign sovereign
- Order 7 Rule 11 CPC for dismissal of plaint
- limitation for suit against sovereign
- cause of action requirement
