Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(Online)(Del) 48720

C. Hari Shankar, Ajay Digpaul, JJ
Kal Airways Private Limited – Appellant
Versus
Spicejet Limited – Respondent
FAO(OS) (COMM) 173/2024 | FAO(OS) (COMM) 171/2024

Advocates:
For the Appellants/Petitioners: Gaurav Pachnanda, Nandini Gore, Sonia Nigam, Swati Bhardwaj, Akarsh Sharma, Akhil Abraham Roy, Gauhar Mirza, Hiral Gupta, Sukanya Singh, Shreya Bansal
For the Respondents: Amit Sibal, K.R. Sasiprabhu, Goutham Shivshankar, Chinmayi Chatterjee, Darpan Sachdeva

Condonation of delay is an equitable remedy requiring bona fide conduct. It cannot be granted when a litigant engages in tactical 'fence-sitting,' deliberately concealing the pendency of proceedings, or uses delayed refiling as a calculated gamble to manage multiple legal outcomes to their advantage.

Headnote:(A) Commercial Courts Act, 2015 - Section 13(1-A) - Limitation Act, 1963 - Section 5 - Condonation of delay - When delay in refiling appeals is not bona fide and stems from a calculated gamble to keep litigation pending in multiple forums while awaiting outcomes of related proceedings, the court is not obligated to exercise discretion in favor of such litigants - Sufficient cause must be based on genuine, non-negligent reasons, not on tactical manipulation to suit litigant convenience. (Paras 8, 24, 27, 29, 36)

(B) Appellate Procedure - Condonation of delay - Refiling delay - While courts generally adopt a liberal approach regarding delay in refiling, such leniency is not absolute and cannot be extended where there is deliberate concealment, lack of bona fides, or a pattern of wilful inaction designed to achieve tactical advantages. (Paras 24, 26, 30, 31, 38)

Facts of the case:
The appellant sought condonation of 55 days delay in filing and 226 days in refiling appeals against a judgment. During the period these appeals were pending with registry objections, the appellant participated in parallel proceedings between the parties in other forums without disclosing the existence of the present appeals. The decision to pursue the current appeals was only actively taken after the appellant faced unfavorable outcomes in those parallel proceedings.

Findings of Court:
The court found that the request for condonation lacked bona fides. The appellant’s conduct was characterized as 'fence-sitting' and a 'calculated gamble,' where procedural opportunities were exploited for tactical advantage. The court emphasized that the principle of 'sufficient cause' cannot act as a shield for negligence or ulterior motives.

Issues: Whether the delay in filing and refiling the appeals warrants condonation, and whether the appellant demonstrated 'sufficient cause' under the relevant limitation laws.

Ratio Decidendi: Where delay in refiling is a product of deliberate strategy rather than inadvertence or excusable ministerial error, it lacks the essential element of 'bona fides' required to invoke the court's discretion under Section 5 of the Limitation Act. The court must prioritize justice and fairness, ensuring procedural flexibility is not abused to stifle expeditious dispute resolution.

Result: Applications for condonation of delay dismissed; Appeals dismissed.

Table of Content
1. the background of the arbitral award disputes and the procedural history of the associated appeals. (Para 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19)
2. the arguments regarding the permissibility of condoning delay in re-filing vs. original filing. (Para 20 , 21 , 22 , 23)
3. bona fides are essential for condonation of delay; lack thereof precludes relief. (Para 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 , 39 , 40 , 41 , 42 , 43)

% 23.05.2025 per C. HARI SHANKAR, J.

1. We have heard Mr. Gaurav Pachnanda, learned Senior Counsel for Kalanithi Maran, “Kalanithi”, hereinafter and Kal Airways Pvt. Ltd.2 3, the appellants in these appeals and Mr. Amit Sibal, learned Senior Counsel for Spicejet Limited and Ajay Singh, “the respondents”, collectively hereinafter, the respondents in these appeals.

2. Arguments were heard on CM Appl. 45531/2024 in FAO (OS) (Comm) 171/2024 and CM Appl. 45540/2024 in FAO (OS) (Comm) 173/2024, which seek condonation of delay of 55 days in filing the appeals and on CM Appl. 45532/2024 in FAO (OS) (Comm) 171/2024 and CM Appl. 45541/2024 in FAO (OS) (Comm) 173/2024, which seek condonation of delay of 226 days in re-filing the appeals.

3. For reasons which would presently become apparent, we find no merit in CM Appl. 45532/2024 and CM Appl. 45541/2024 which seek condonation of delay of 226 days in re-filing the appeals.

Resultantly, the appeals themselves are liable to be dismissed.

2 “KAPL”, hereinafter

3 “the appellants” collectively hereinafter

Facts

4. Disputes arose between the appellants, on the one hand, and the respondents, on the other, which were referred to an arbitral tribunal comprising three Hon’ble Retired Judges of the Supreme Court. The arbitral tribunal rendered its award on 20 July 2018.

5. The arbitral award was challenged both by the appellants, as well as by the respondents in these appeals by preferring petitions under Section 34 of the Arbitration and Conciliation Act, 1996, the 1996 Act, hereinafter. The appellants challenged the award by way of OMP (Comm) 450/20186 and OMP (Comm) 451/2018, Kalanithi Maran v Spicejet Ltd & Anr whereas the respondents challenged the award by way of OMP (Comm) 42/2019⁸ and OMP (Comm)

43/2019⁹, respectively.

6. All the Section 34 petitions were dismissed by a learned Single Judge of this Court by two separate judgments, rendered on 31 July

2023.

7. The judgment dated 31 July 2023, in OMP (Comm) 42/2019 and OMP (Comm) 43/2019, was assailed by Ajay Singh by way of FAO (OS) (Comm) 179/2023 and by Spicejet by way of FAO (OS) (Comm) 180/2023. Both the appeals were filed on 22 August 2023, within the statutory period of 60 days available in that regard, under

6 Kal Airways Pvt. Ltd v Spicejet Ltd & Anr

8 Spicejet Ltd v Kal Airways Pvt Ltd & Ors 9 Ajay Singh v Kal Airways Pvt Ltd & Ors

Section 13(1-A)¹⁰ of the Commercial Courts Act.

8. We may note the admitted position, at the Bar, that the statutory period for filing the appeal, as it emanates from an order of the Commercial Court, has to be determined in accordance with Section 13 of the Commercial Courts Act, as held by the Supreme Court in Government of Maharashtra v Borse Brothers Engineers and Contractors Pvt Ltd., (2021) 6 SCC 460 The said Section provides for 60 days for preferring the appeal against the judgment or order of the Commercial Division of this Court to the Commercial Appellate Division of this Court. It does not provide for condonation of delay. Accordingly, Section 5¹² of the Limitation Act, 1963 would apply, whereunder delay can be condoned on sufficient cause being shown.

9. The FAOs preferred by the respondents were listed before the Division Bench on 23 August 2023, 24 August 2023, 31 October 2023, 09 November 2023, 17 November 2023, 30 November 2023, 8 December 2023, 14 December 2023, 8 January 2024, 15 January 2024, 29 January 2024 and 7 February 2024, before they were finally disposed of by judgment dated 17 May 2024. The Division B

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2025 Supreme(Online)(Del) 48720

C. Hari Shankar, Ajay Digpaul, JJKal Airways Private Limited – AppellantVersusSpicejet Limited – RespondentFAO(OS) (COMM) 173/2024 | FAO(OS) (COMM) 171/2024

Cases Referred (3)

C. Hari Shankar, Ajay Digpaul, JJ
Kal Airways Private Limited – Appellant
Versus
Spicejet Limited – Respondent
FAO(OS) (COMM) 173/2024 | FAO(OS) (COMM) 171/2024