Kept Us and the Supreme Court in Dark: Delhi HC Denies Kal Airways’s Plea

The Delhi High Court, on Friday, heavily criticized Kal Airways and the owner, Kalanithi Maran, for suppressing material facts concerning their pending applications and for unjustifiably delaying the proceedings. These observations were made in an application filed by Kal Airways seeking condonation of delay.

The bench of Justice C. Hari Shankar and Justice Ajay Digpaul remarked, “the delay in refiling is completely lacking in bona fides, and represents a gamble by the unsuccessful litigant (Kal Airways) keeping all, including the successful litigant (SpiceJet), in the dark”.

The case stemmed from an arbitral award issued by a tribunal comprising three retired Supreme Court judges. Both parties filed objections to the award before the Delhi High Court. However, these objections were dismissed by a Single Judge. SpiceJet promptly filed their appeals within the statutory period of 60 days. Their appeals were heard extensively and allowed by the court on 17 May 2024, with the impugned order being set aside and their OMPs restored for fresh consideration.

In contrast, Kal Airways delayed filing their own appeals by 55 days, only submitting them on 23 and 24 November 2023. Crucially, Kal Airways did not cure the registry defects in these appeals for 226 days, and refiled them only on 30 July 2024.

During this extended delay, they neither served copies to SpiceJet nor disclosed the pendency of their appeals to the court, which continued hearing SpiceJet’s FAOs. Kal Airways also actively participated in those hearings, without once disclosing that they too had filed appeals arising from the same arbitral award.

Senior Advocate Gaurav Pachnanda, representing Kal Airways, contended that courts should adopt a liberal view in condoning delay in refiling, especially when procedural objections cause the delay. He argued that the delay was not deliberate but arose due to concurrent developments in SpiceJet’s appeals.

Senior Advocate Kapil Sibal, appearing for SpiceJet Airways, accused Kal Airways of engaging in calculated procedural misconduct. He described their conduct as that of “fence sitters” who observed the progress of SpiceJet’s FAOs and chose not to pursue their own appeals unless the outcome proved unfavorable.

Court's Observations:

The court acknowledged that while delay in refiling is generally treated more liberally than delay in initial filing, since it often involves administrative issues rather than substantive delay, this approach cannot be extended where the delay is not bona fide. “Limitation is a statute of equity and repose, and if the delay, whether in filing or refiling, is found to be lacking in bona fides, it has to be sternly dealt with”, the bench outlined.

In this case, the bench found a total absence of good faith. The bench noted that Kal Airways withheld the fact of their own appeals not only from SpiceJet but also from the High Court and the Supreme Court, even as those very courts were actively engaged in hearing and adjudicating related matters.

The court noted that Kal Airways deliberately allowed their FAOs to languish under objections for 226 days, despite knowing that SpiceJet’s FAOs were moving swiftly. Their refiling, prompted only after the dismissal of their SLPs, suggested a deliberate and tactical choice to revive the appeals only if the litigation outcomes turned unfavorable. Their conduct, the bench observed, amounted to a “calculated gamble”, aimed at benefiting from a favorable judgment while keeping their own challenges in reserve.

The court, referring to the conduct of Kal Airways, opined that “The manner in which the appellants acted in the present case is frankly disquieting to the conscience of the court… The inaction in removing the objections in the present FAOs and have them relisted, therefore, does not admit even of a scintilla of bona fides”.

The bench held that even if a liberal standard applied to refiling delays, it could not justify concealment, suppression, and calculated delay. “This, therefore, we reiterate, is not a simple case of delay in removing objections in refiling the appeals. It is a case of deliberate and wilful concealment of facts both from the Division Bench as well as from SpiceJet and a calculated gamble taken by the appellants”, the court observed.

In conclusion, the bench refused to condone either the 55-day delay in filing or the 226-day delay in refiling. It held that such conduct eroded the principles of equity and good faith, which underlie the doctrine of condonation of delay.

For Kal Airways: Senior Advocate Gaurav Pachnanda with Advocates Nandini Gore, Sonia Nigam, Swati Bhardwaj, Akarsh Sharma, Akhil Abraham Roy, Gauhar Mirza, Hiral Gupta, Sukanya Singh, and Shreya Bansal

For SpiceJet: Senior Advocate Amit Sibal with Advocates K.R. Sasiprabhu, Goutham Shivshankar, Chinmayi Chatterjee, and Darpan Sachdeva

Case Title: Kal Airways Pvt Ltd v SpiceJet (2025:DHC:4230-DB)