Limitation | No Courtesy of Condonation Can Be Extended to Fence-Sitters: Delhi High Court on Concealment and Delay in Filing Appeal

“Delay Was a Calculated Gamble, Not Inadvertent”, Delhi High Court delivered a scathing judgment while dismissing appeals filed with delay against the arbitral award in the long-running dispute involving SpiceJet. A Division Bench comprising Justice C. Hari Shankar and Justice Ajay Digpaul refused to condone a 55-day delay in filing and a 226-day delay in re-filing, branding the appellants’ actions as “deliberate,” “manipulative,” and lacking bona fides.

“This is not a simple case of delay… It is a case of deliberate and wilful concealment of facts... a calculated gamble taken by the appellants,” the Court observed in a blistering condemnation of procedural abuse.

Arbitral Awards Challenged by Both Sides — Section 34 Petitions Dismissed

The matter arose from arbitral proceedings between Kalanithi Maran/Kal Airways and SpiceJet/Ajay Singh, decided by a tribunal of retired Supreme Court judges. The award, dated 20 July 2018, was challenged by both parties under Section 34 of the Arbitration and Conciliation Act.

On 31 July 2023, the Single Judge dismissed all four petitions, prompting SpiceJet and Ajay Singh to file timely appeals under Section 13(1-A) of the Commercial Courts Act. These were eventually allowed on 17 May 2024, and the matter was remanded to the Single Judge for reconsideration.

Appeals by Maran Group: Filed Late, Refiled Later—and Kept Secret

While SpiceJet’s appeals were being actively heard and participated in by Maran and Kal Airways, **the appellants quietly filed their own appeals on 23 and 24 November 2023—**55 days late—and did not notify either the Court or the opposing party.

Even more egregiously, these appeals were filed with defects, left uncured for 226 days, and refiled only after their SLPs against the 17 May 2024 Division Bench judgment were dismissed by the Supreme Court on 26 July 2024.

“It is impossible to believe the appellants’ plea of ‘inadvertence’... The matter in which the appellants acted is frankly disquieting to the conscience of the court,” said the Division Bench, dismantling the plea for leniency.

Court's Legal Analysis: Limitation Law and Strategic Abuse of Process

Delay in Filing: 55 Days Beyond Statutory Period Under Commercial Courts Act

While the Commercial Courts Act prescribes a 60-day window for appeals, it does not permit delay unless justified under Section 5 of the Limitation Act. The Court clarified that any condonation is discretionary and must be founded on “sufficient cause.”

“The expression ‘sufficient cause’ is not a panacea for pressing negligent and stale claims,” the Court quoted from Borse Brothers Engineers, emphasizing that condonation is to be granted by exception, not rule in commercial matters.

Delay in Refiling: 226 Days of Fence-Sitting

The appellants argued for leniency in refiling delays, citing Delhi High Court Rule 5(3) and various precedents. However, the Court rejected their reliance on Northern Railway v. Pioneer Publicity and others by highlighting the difference between negligence and deliberate suppression.

“The delay in refiling... does not admit even of a scintilla of bona fides,” ruled the Court. “This is not mere negligence—it was orchestrated litigation strategy.”

In para 5(e) of the condonation application, the appellants inadvertently admitted that they waited to see the result of their SLPs before choosing to refile—a fact the Court described as a "Freudian slip".

Suppression and Misconduct: A Case of Manipulation

The Court lambasted the appellants for failing to disclose the filing of their FAOs during the hearings of the respondents’ appeals and even before the Supreme Court. The concealment was not incidental but systematic.

“The appellants even concealed the fact of the filing of the present FAOs, and their languishing under objections, from the Supreme Court,” noted the Bench.

Such concealment was described as “a calculated gamble”—an attempt to revive their challenge only if the respondents’ appeals succeeded.

Appeals Dismissed for Lack of Bonafides—No Merits Considered

The Court found that “delay in both filing and refiling is not bona fide and cannot be condoned.” It accordingly dismissed:

• CM Appl. 45531/2024 and 45540/2024 for delay in filing (55 days), and

• CM Appl. 45532/2024 and 45541/2024 for delay in re-filing (226 days)

With these applications dismissed, FAO(OS)(COMM) 171/2024 & 173/2024 were also dismissed without adjudication on merits.

“It hardly matters whether the delay is in filing or in refiling of the appeals. The Court cannot condone delay which is attributable to such factors.”

Strict Limits on Delay in Commercial Arbitration Disputes

This judgment reaffirms that commercial litigation demands strict adherence to timelines, particularly in arbitration matters under the Commercial Courts Act. Courts will not tolerate “strategic fence-sitting”, suppression, or manipulative delay tactics.

Date of Decision: 23 May 2025