Spicejet Limited vs Kal Airways Pvt Ltd & Ors.
- Court
- Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Date of decision: 04 MAY, 2026
IN THE MATTER OF:
+ O.M.P. (COMM) 42/2019
SPICEJET LIMITED .....Petitioner
Through: Mr. Mukul Rohatagi, Sr. Adv, Mr.
Amit Sibal, Sr. Adv., with Mr. K R
Sasiprabhu, Mr. Yasharth Misra, Mr.
Darpan Sachdeva, Mr. Mohammed
Ilyas, Mr. Parth Rashik, Ms. Vidhatri
Devoli, Advocates
versus
KAL AIRWAYS PVT LTD & ORS. .....Respondents
Through: Mr. Jayant Mehta, Sr. Adv., Ms.
Nandini Gore, Adv. Ms. Sonia
Nigam, Adv., Ms. Swati Bhardwaj,
Adv. Mr. Akarsh Sharma, Adv., Mr.
Arjun Singh Gautam, Adv., Ms.
Mansvini Jain, Adv
+ O.M.P. (COMM) 43/2019
AJAY SINGH .....Petitioner
Through: Mr. Mukul Rohatagi, Sr. Adv, Mr.
Amit Sibal, Sr. Adv., with Mr. K R
Sasiprabhu, Mr. Yasharth Misra, Mr.
Darpan Sachdeva, Mr. Mohammed
Ilyas, Mr. Parth Rashik, Ms. Vidhatri
Devoli, Advocates
versus
KAL AIRWAYS PVT LTD & ORS. .....Respondents
Through: Mr. Jayant Mehta, Sr. Adv., Ms.
Nandini Gore, Adv. Ms. Sonia
Signature Not Verified
Signed By:RAHUL
SINGH
Signing Date:04.05.2026
19:33:29
O.M.P. (COMM) 42/2019 & O.M.P. (COMM) 43/2019 Page 1 of 32
Nigam, Adv., Ms. Swati Bhardwaj,
Adv. Mr. Akarsh Sharma, Adv., Mr.
Arjun Singh Gautam, Adv., Ms.
Mansvini Jain, Adv
Mr. Abhimanyu Garg and Mr. Vishal
Yadav, Advocates for Respondent
No. 2 (EIL).
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT
REVIEW PET. 167/2026, I.A. 10257/2026 in O.M.P. (COMM)-42/2019
REVIEW PET.148/2026 in O.M.P. (COMM)-43/2019
1. By way of the instant applications under Section 114 read with Order
XLVII of the CPC [„ Review Petitions ‟], the Petitioners/Applicants seek
review of the Order dated 18.03.2026 passed by this Court in I.A. 6746/2026
in O.M.P. (COMM) 43/2019 and I.A. 6733/2026 in O.M.P. (COMM)
42/2019 [„ Impugned Order ‟]. For the sake of clarity, this Court shall refer
to the Petitioners/Applicants as the Review Petitioners unless the context
otherwise requires.
2. By way of the Impugned Order, this Court dismissed the
abovementioned two applications by directing as under:-
“ 25. As regards prayers made by the
Respondents/Decree Holders in EX.APPL.(OS)
358/2026 in OMP (ENF.) (COMM.) 32/2019 and
EX.APPL.(OS) 346/2026 in OMP (ENF.) (COMM.)
31/2019 are concerned, in view of the fact that the I.A.
6746/2026 in O.M.P. (COMM) 43/2019 and I.A.
6733/2026 in O.M.P. (COMM) 42/2019 seeking
modification of the Order dated 19.01.2026 stand
dismissed and the time granted by this Court vide
Order dated 19.01.2026 has come to an end, this Court
is inclined to extend the time by four weeks, to enable
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SINGH
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the Petitioners/Judgment Debtors for making an
endeavour to sell the Spicejet's Property and make
necessary arrangements for the deposit of Rs.
144,51,69,887/- with the Registry of this Court. ”
3. The facts in brief leading to the filing of the instant Review Petitions
are as follows:-
(i) The Respondents were the promoters and majority shareholders
of the M/s Spicejet Limited, holding 58.46% therein.
(ii) In 2013, when M/s Spicejet Limited began facing acute
financial distress and imminent cessation of operations and in
order to ensure continuity of operations, the Respondents issued
an Offer Letter dated 13.01.2015, proposing transfer of their
entire shareholding to Ajay Singh, being the Managing Director
of M/s Spicejet Limited for a nominal consideration of Rs.2/-,
coupled with an arrangement for infusion of committed
financial support aggregating to INR 450 crores. Pursuant
thereto, the parties entered into the Share Sale and Purchase
Agreement dated 29.01.2015 [“ SSPA ”], which contemplated
transfer of shares, issuance of warrants and non-Convertible
Redeemable Cumulative Preference Shares [“ CRPS ”], and
release of personal guarantees and securities furnished by the
Respondents.
(iii) Under the contractual framework, the CRPS was structured as a
debt instrument redeemable only after expiry of a period of
eight years and subject to the terms stipulated in the SSPA.
(iv) It is stated that disputes arose between the parties regarding
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SINGH
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performance of reciprocal obligations under the SSPA.
(v) Since the Review Petitioners failed to comply with their
obligations under the SSPA, the Respondents approached this
Court by filing Petitions, being OMP (I) COMM. 71/2016 &
OMP (I) COMM 72/2016 under Section 9 of the Arbitration
and Conciliation Act, 1996 [“ Arbitration Act ”], seeking
interim reliefs, which were disposed of vide Order dated
29.07.2016, wherein this Court directed the Review Petitioners
to deposit a sum of INR 579 crores with this Court, being the
value paid by the Respondents towards the value of warrants
and CRPS.
(vi) The Order dated 29.07.2016, was unsuccessfully challenged by
the Review Petitioners before the Division Bench of this Court,
though the Division Bench by way of its Order dated
03.07.2017, modified the direction passed by the Coordinate
Bench, by permitting the Review Petitioners to furnish Bank
Guarantee to the tune of INR 329 crores and deposit of the
balance amount of INR 250 crores in cash.
(vii) The Order dated 03.07.2017 was again unsuccessfully
challenged by the Review Petitioners before the Apex Court.
(viii) Subsequently, for adjudication of disputes, arbitration was
invoked and a three-member Arbitral Tribunal was constituted
on 29.09.2016 in terms of the arbitration agreement contained
in the SSPA. Upon completion of pleadings and hearings, the
learned Arbitral Tribunal rendered its Award dated 20.07.2018,
directing the Review Petitioners to pay a sum of INR
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SINGH
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308,21,89,461/- to the Respondents, along with pre-award and
pendente lie interest @ 12% p.a. w.e.f. 01.11.2015, within two
months. The Award dated 20.07.2018 was corrected and
modified by the learned Arbitral Tribunal vide Order dated
20.09.2018 on an application filed by the Review Petitioners
under Section 33 of the Arbitration Act [“ Arbitral Award ”].
(ix) Aggrieved by the Arbitral Award to the extent it allowed the
counter claim of the Review Petitioners, the Respondents filed
Petitions under Section 34 of the Arbitration Act, being OMP
(COMM) 450/2018 & OMP (COMM) 451/2018 before this
Court.
(x) The Review Petitioners also challenged the Award by filing
Petitions under Section 34 of the Arbitration Act, being OMP
(COMM) 42/2019 & OMP (COMM) 43/2019, before this
Court, to the extent of grant of claims in favor of the
Respondents.
(xi) During the pendency of the petitions under Section 34 of the
Arbitration Act, the Respondents initiated enforcement
proceedings under Section 36 of the Arbitration Act by filing
OMP(ENF.)(COMM) 31/2019 & OMP(ENF.)(COMM)
32/2019 [“ Enforcement Petitions ”] before this Court wherein
this Court vide Order dated 25.03.2019, directed the Registry of
this Court to release a sum of INR 250 crores in favour of the
Respondents.
(xii) Further, vide Order dated 20.09.2019, this Court disposed of the
Enforcement Petitions by directing the concerned bank on
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SINGH
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which the BG was drawn, to amend the said BG to the balance
amount due and payable by the Review Petitioners. This Court
also gave the Respondents liberty to approach the Court again,
in case of any subsequent development with respect to the
status of the Review Petitioners.
(xiii) Subsequently, the Respondents approached this Court, seeking
inter alia a direction to the Review Petitioners to deposit the
up-to-date interest component of the awarded sum. In the said
Applications, the Respondents also sought for an additional
prayer for restraining the Review Petitioners from allotting,
transferring, issuing, alienating and/or pledging and/or creating
any third-party interest(s) and/or encumbrance over any of the
promoter shares of the M/s Spicejet Limited. These
Applications were tagged with the Section 34 Petitions, which
were pending before this Court and in the Order dated
02.09.2020, notice of the deteriorating financial health of the
M/s Spicejet Limited was taken and it was observed that the
same qualified as a „subsequent development‟.
(xiv) The Order dated 02.09.2020 was challenged by the Review
Petitioners before the Apex Court and the Civil Appeals were
disposed of vide Order dated 13.02.2023 with the following
directions:
“ 15. Hence, we direct as follows :
(i) The bank guarantee shall be encashed
immediately and the proceeds shall be payable to
the respondent-decree holder within two weeks. This
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SINGH
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will ensure that quantum of the principal sum due in
the award is paid over in its entirety;
(ii) The appellant shall, within a period of three
months, pay an amount of Rs 75 crores to the
respondent towards the liability on account of
interest pending the disposal of the petition under
Section 34;
(iii) In the event that the appellant defaults in
complying with the above direction for payment or
any part thereof, the award shall become
executable forthwith in its entirety .”
(Emphasis Supplied)
(xv) Since the above directions were also not complied with, the
Review Petitioners filed Applications before the Apex Court,
seeking extension of time for compliance. The said
Applications were dismissed by the Apex Court vide Order
dated 07.07.2023 by holding that there was a breach of its
earlier Order dated 13.02.2023 and resultantly, the Arbitral
Award shall become executable forthwith.
(xvi) Thereafter, in the Order dated 20.11.2023, this Court took note
of the fact that in two applications, i.e., E.A. No.1283/2023 &
1284/2023 in OMP (ENF.) (COMM) 32/2019 & OMP (ENF.)
(COMM) 31/2019 filed by the Review Petitioners herein, there
was a „without prejudice‟ averment of the Review Petitioners,
admitting that an amount of INR 194,51,69,887/- was due and
payable to the Respondents.
(xvii) Vide Order dated 05.02.2024, this Court directed the Review
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Petitioners to pay an amount of INR 50 crores out of the
admitted outstanding amount of INR 194,51,69,887/- to the
Respondents within a period of six weeks from the date of the
said Order. This direction was duly complied with by the
Review Petitioners herein, reducing the outstanding amount to
INR 144,51,69,887/-.
(xviii) Subsequently, this Court on 19.01.2026 heard I.A. 1281/2019 in
O.M.P. (COMM) 42/2019 and I.A. 1286/2019 in O.M.P.
(COMM) 43/2019, which were the applications filed by the
Review Petitioners seeking stay on the execution of the Arbitral
Award. While taking note of the continuous non-compliance by
the Review Petitioners of the various Orders passed by the
Apex Court as well as this Court, the Review Petitioners were
directed to deposit the admitted outstanding amount of INR
144,51,69,887/- within a period of six weeks.
(xix) Against the Order dated 19.01.2026, the Review Petitioners
approached the Apex Court by way of SLP (C) No. 7512-
7515/2026. These SLPs came to dismissed by the Apex Court
vide Order dated 27.02.2026 whereby the Apex Court took the
view that the filing of the said SLPs by the Review Petitioners
was an abuse of the process of law and as such, imposed a cost
of INR 1 Lakh on the Review Petitioners.
(xx) Thereafter, the Review Petitioners filed I.A. No. 6746/2026 and
6733/2026 seeking modification of the Order dated 19.01.2026
before this Court, praying for a permission to provide the
property bearing No. Plot No.114, Udyog Vihar Phase I,
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Signed By:RAHUL
SINGH
Signing Date:04.05.2026
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Gurugram-122016 [„ Spicejet’s Property ‟] as security, in lieu
of providing the cash deposit of INR 144,51,69,887 /-.
(xxi) The Applications being I.A. No. 6746/2026 and I.A. No.
6733/2026 proceeded on the basis that the Review Petitioners
had already deposited a substantial amount of money with this
Court, which was sufficient to secure the awarded sum under
the Arbitral Award.
(xxii) The Review Petitioners further contended that they are now
facing severe liquidity constraints and for this reason, it would
be nearly impossible for them to arrange the amount of INR
144,51,69,887/-, and in any event, no prejudice would be
caused to the Respondents if this Court modifies the Order
dated 19.01.2026, to the extent of permitting the Review
Petitioners to give the Spicejet‟s Property as security in lieu of
the cash deposit of the admitted outstanding amount.
(xxiii) I.A. No. 6746/2026 and I.A. No. 6733/2026 were disposed of
by this Court by way of the Impugned Order, wherein it was
first observed that there was nothing placed on record by the
Review Petitioners to show that the Spicejet‟s Property was free
from encumbrances, especially when the same was under
mortgage till March, 2025. This Court also opined that in any
event, if the Spicejet‟s Property did in fact become
unencumbered thereafter, nothing prevented the Review
Petitioners from bringing it to the notice of this Court earlier.
(xxiv) Even though I.A. No. 6746/2026 and I.A. No. 6733/2026 were
dismissed by this Court vide the Impugned Order, in the interest
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SINGH
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of justice, a further time of four weeks was granted to the
Review Petitioners to enable the sale of Spicejet‟s Property in
order to make arrangements for depositing INR 144,51,69,887/.
(xxv) It is the said Impugned Order against which the instant Review
Petitions have been filed with the following prayers:-
“a. Review the Order dated 18.03.2026 passed by
this Hon'ble Court dismissing IA No. 6733/2026 in
OMP (COMM) No. 42/2019;
b. Pending hearing and final disposal of this
Application, permit the Applicants to secure the
amount of Rs.144,51,69,887 /- by depositing original
title deeds of Plot No. 114, Udyog Vihar, Phase-4,
Gurgaon in the Registry of this Court, in lieu of cash
deposit;
c. In the alternative to(a) and (b), grant the
Applicants an additional time of 12 weeks to effect
the sale of property at Plot No. 114, Udyog
Vihar,Phase-4, Gurgaon;
d. Pass such other and further order or orders as
this Hon'ble Court may deem fit and proper in the
facts and circumstances of the present case and in
the interest of justice.”
4. The Review Petitioners have raised the following grounds against the
Impugned Order:-
(i) As per the law laid down in Khoday Distilleries Ltd. and Others
v. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd.,
Kollegal, (2019) 4 SCC 376, the Order dated 19.01.2026
passed by this Court did not merge with the Order dated
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27.02.2026 passed by the Apex Court, for the reason that an in
limine dismissal only means that the Apex Court has refused to
exercise its discretion and not entertained the Review
Petitioners‟ SLPs. As such, this Court erred in observing that
the judgment in Khoday Distilleries (supra), will not apply to
the Review Petitioners‟ case.
(ii) Since the prayer before the Apex Court was merely to set aside
the Order dated 19.01.2026 directing deposit from the prayers
in I.A. No. 6746/2026 and I.A. No. 6733/2026 which were for
substitution of the deposit of Spicejet‟s Property, this Court
could not have concluded that all the grounds raised before this
Court were also raised in the SLPs before the Apex Court
which eventually came to be dismissed with exemplary costs.
(iii) There are notable subsequent developments which have
occurred after the dismissal of the SLPs which ought to be
noted by this Court, and were not brought to the attention of the
Apex Court. Firstly, the breaking out of hostilities in West Asia
leading to the immediate suspension of all flights to the Middle
East from 28.02.2026 as per the DGCA advisory. This has led
to grounding of 100% of the international operation of M/s
Spicejet Limited, with a reduction of 35% in total revenues.
(iv) The second subsequent development is with respect to the
release of the Spicejet‟s Property from bank mortgage on
13.03.2026.
(v) As per the dictum of the Apex Court in Sihor Nagar Palika
Bureau v. Bhabhulbhai Virabhai & Company, (2005) 4 SCC 1,
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SINGH
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it is not mandatory for a judgment debtor in
enforcement/execution proceedings to furnish a cash security,
deposit or bank guarantee to secure an arbitral award under
Section 36 of the Arbitration Act read with Order XLI of the
CPC.
(vi) Observation by this Court in the Impugned Order that the
Spicejet‟s Property was not free from encumbrances was based
on the annual report for the Financial Year 2024-25, a
document which was relied upon by the Respondents. However,
the annual report only reflected the position of M/s Spicejet
Limited as on 31.03.2025 and cannot be determinative of the
encumbrance on the Spicejet‟s Property on 18.03.2026.
(vii) Since the Review Petitioners did not get an opportunity to
respond to the Respondent‟s reliance on the annual report to
contend that the Spicejet‟s Property was encumbered, there was
a breach of the principles of natural justice.
5. During the course of arguments, learned Senior Counsel for the
Review Petitioners has also placed reliance on the Judgment of the Apex
Court in Lifestyle Equities C.V. & Anr. v. Amazon Technologies Inc., 2025
SCC OnLine SC 2153, to submit that a deposit is not a mandatory
condition precedent for granting an order of stay on the execution of a
decree by the Appellate Court. He further submits that the Appellate Court
ought to be guided by the principles of Order XLI of the CPC to examine
whether there is any existence of a “sufficient cause” in favour of the
appellant for granting stay on the execution of a decree.
6. The learned Senior Counsel for the Review Petitioners further submits
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that M/s Spicejet Limited is optimistic about obtaining financial support
from the aviation sector of the Government of India, which is being offered
in view of the unprecedented hardship which is being faced by the aviation
sector due to the disturbances in West Asia. He states that if obtained, the
financial position of M/s Spicejet Limited will improve marginally, enabling
it to earmark certain sums towards the money ordered to be paid by this
Court.
7. Per contra , learned Senior Counsel for the Respondents states that the
Review Petitions deserve to be dismissed, and their filing is an abuse of the
process of law. He states that the Review Petitioners have themselves
admitted that an amount of INR 194,51,69,887/- was due and payable in
their own application which was filed in 2023. He further states that the
Order passed by the Apex Court was categorical, that if the Order dated
02.09.2020 is not complied with, the Arbitral Award shall be executable in
its entirety. He further submits that vide Order dated 19.01.2026, what this
Court did was to direct the Review Petitioners to pay the admitted sum of
money, keeping in view the dictum of the Apex Court. He states that the
present Review Petitions and the earlier Applications filed by the Review
Petitioners seeking stay on the Arbitral Award are nothing but an attempt to
defy the Orders of the Apex Court and a serious view must be taken on the
same. He further states that one of the main grounds taken in SLP (C) No.
7512-7515/2026, which was filed by the Review Petitioners challenging the
Order dated 19.01.2026 passed by this Court, was the financial crunch being
faced by the Review Petitioners, in which regard, the Learned Senior
Counsel for the Respondents draws the attention of this Court to the list of
dates and the grounds for interim relief pleaded before the Apex Court in the
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said SLP, to contend that apart from pleading financial distress, the Review
Petitioner had also taken a ground that substantial amounts have been
deposited in this Court to secure the Arbitral Award. Relevant portions of
the Synopsis and the grounds for interim relief where financial crunch has
been pleaded by the Review Petitioners before the Apex Court are
reproduced herein and the same read as under:
“C. THE IMPUGNED ORDER FAILS TO PROPERLY
CONSIDER THE FINANCIAL STRAIN ON THE
PETITIONERS AS WELL AS THE PUBLIC INTEREST
Thirdly, the Impugned Order unfairly imposes an
undue financial strain on the Petitioners by
mechanically ordering the deposit of the entire interest
component of the Award without due consideration of
the relevant circumstances and subsequent
developments in the case, which would clearly
establish that no further deposit is necessary or
required in the present case. Petitioner No. 1 is an
airline operator which services several important
routes at affordable prices connecting millions of
Indians from smaller cities to metropolitan areas. The
civil aviation industry in India is already severely
distressed, and the Impugned Order gravely prejudices
the Petitioners and the operations of Petitioner No. 1.
In doing so, it also gravely prejudices public interest.
The Hon'ble High Court failed to appreciate that in
this case, the Section 34 Petitions were originally filed
in 2018, were then decided incorrectly in July 2023
without properly dealing with several submissions
made by the Petitioners, remanded by the Ld. Division
Bench in May 2024 for reconsideration (such remand
being confirmed by this Hon'ble Court in the same
month), and have thereafter been pending for final
adjudication. Even after remand, the Petitioners have
been pressing for final arguments. During this period
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from 2018 till date, when the Section 34 petitions have
awaited proper final adjudication, the Petitioners have
paid over the entirety of the principal amount due
under the award as well large sums towards interest as
noted above. The bulk of these payments have been
done in the background of extreme financial troubles
that have plagued the aviation industry generally in
India and the world, especially during and after the
Covid-19 pandemic. In such exceptional
circumstances, the Hon'ble High Court ought to have
realized that the Petitioners have certainly been able to
demonstrate sufficient cause for stay of the Award at
this juncture, pending final consideration of the
pending Section 34 Petitions.
*
6. GROUNDS FOR INTERIM RELIEF
....
6.2. BECAUSE the Petitioner No. 1 is an airline
operator which services several important routes at
affordable prices connecting millions of Indians from
smaller cities to metropolitan areas. The civil aviation
industry in India is already severely distressed, and the
Impugned Order gravely prejudices the Petitioners and
the operations of Petitioner No. 1.
.... ”
8. Learned Senior Counsel for the Respondents submits that despite
raising all the above grounds, the Apex Court vide Order dated 27.02.2026
dismissed the Review Petitioners‟ SLPs with costs. He states that the so-
called subsequent developments, which have transpired in February-March,
2026, virtually three years after passing of the Order of the Apex Court in
2023 holding that the Arbitral Award has become executable, cannot be
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taken into consideration at all for non-compliance of the Orders of the Apex
Court. He, therefore, states that there is no error apparent on the face of the
record in the Order dated 18.03.2026, passed by this Court.
9. Learned Senior Counsel for the Respondents further submits that this
Court has given sufficient reasons in the impugned Order to reject the
submissions of the Review Petitioners to accept the Spicejet‟s property in
lieu of the deposit and that nevertheless, this Court was magnanimous in
extending time to deposit the amount. He, therefore, states that the
indulgence of this Court must stop at some point of time and that bogey of
war cannot be countenanced. He further states that the announcement of
financial support made by the Government also cannot be considered at this
juncture, as no tangible timeframe has been given by the Government for
implementation of the Policy to help the aviation sector. It is also stated by
the learned Senior Counsel for the Respondents that the Judgment of the
Apex Court in Lifestyle Equities (supra), on which heavy reliance has been
placed by the learned Senior Counsel for the Review Petitioners, is not
applicable to the facts of the present case, as in that case, there was no Order
by the Apex Court to make any deposit.
10. Heard learned Counsel for the parties and perused the material on
record.
11. Before dwelling into the facts of the present case and adjudicating
upon the contentions advanced by the contesting parties, this Court deems it
fit to recall the parameters of a Court exercising its review jurisdiction. The
Apex Court in Haridas Das vs. Usha Rani Banik, ( 2006) 4 SCC 78 , while
considering the scope and ambit of Section 114 CPC read with Order 47
Rule 1 CPC observed as under:
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“ 14 . In Meera Bhanja v. Nirmala Kumari Choudhury
[(1995) 1 SCC 170 : AIR 1995 SC 455] it was held
that:
“8. It is well settled that the review proceedings
are not by way of an appeal and have to be
strictly confined to the scope and ambit of Order
47 Rule 1 CPC. In connection with the limitation
of the powers of the court under Order 47 Rule 1,
while dealing with similar jurisdiction available
to the High Court while seeking to review the
orders under Article 226 of the Constitution, this
Court, in Aribam Tuleshwar Sharma v. Aribam
Pishak Sharma [(1979) 4 SCC 389 : AIR 1979 SC
1047] speaking through Chinnappa Reddy, J. has
made the following pertinent observations:
„It is true there is nothing in Article 226 of
the Constitution to preclude the High Court
from exercising the power of review which
inheres in every court of plenary jurisdiction
to prevent miscarriage of justice or to
correct grave and palpable errors committed
by it. But, there are definitive limits to the
exercise of the power of review. The power
of review may be exercised on the discovery
of new and important matter or evidence
which, after the exercise of due diligence was
not within the knowledge of the person
seeking the review or could not be produced
by him at the time when the order was made;
it may be exercised where some mistake or
error apparent on the face of the record is
found, it may also be exercised on any
analogous ground. But, it may not be
exercised on the ground that the decision
was erroneous on merits. That would be the
province of a court of appeal. A power of
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review is not to be confused with appellate
power which may enable an appellate court
to correct all manner of errors committed by
the subordinate court.‟ ” (SCC pp. 172-73,
para 8)
15 . A perusal of Order 47 Rule 1 shows that review of
a judgment or an order could be sought : (a) from the
discovery of new and important matters or evidence
which after the exercise of due diligence was not within
the knowledge of the applicant; (b) such important
matter or evidence could not be produced by the
applicant at the time when the decree was passed or
order made; and (c) on account of some mistake or
error apparent on the face of the record or any other
sufficient reason.
16 . In Aribam Tuleshwar Sharma v. Aribam Pishak
Sharma [(1979) 4 SCC 389 : AIR 1979 SC 1047] this
Court held that there are definite limits to the exercise
of power of review. In that case, an application under
Order 47 Rule 1 read with Section 151 of the Code was
filed which was allowed and the order passed by the
Judicial Commissioner was set aside and the writ
petition was dismissed. On an appeal to this Court it
was held as under : (SCC p. 390, para 3)
“It is true as observed by this Court in Shivdeo
Singh v. State of Punjab [AIR 1963 SC 1909]
there is nothing in Article 226 of the Constitution
to preclude a High Court from exercising the
power of review which inheres in every court of
plenary jurisdiction to prevent miscarriage of
justice or to correct grave and palpable errors
committed by it. But, there are definitive limits to
the exercise of the power of review. The power of
review may be exercised on the discovery of new
and important matter or evidence which, after the
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exercise of due diligence was not within the
knowledge of the person seeking the review or
could not be produced by him at the time when the
order was made; it may be exercised where some
mistake or error apparent on the face of the
record is found; it may also be exercised on any
analogous ground. But, it may not be exercised on
the ground that the decision was erroneous on
merits. That would be the province of a court of
appeal. A power of review is not to be confused
with appellate powers which may enable an
appellate court to correct all manner of errors
committed by the subordinate court.”
17 . The judgment in Aribam case [(1979) 4 SCC 389 :
AIR 1979 SC 1047] has been followed in Meera
Bhanja [(1995) 1 SCC 170 : AIR 1995 SC 455] . In
that case, it has been reiterated that an error apparent
on the face of the record for acquiring jurisdiction to
review must be such an error which may strike one on
a mere looking at the record and would not require any
long-drawn process of reasoning. The following
observations in connection with an error apparent on
the face of the record in Satyanarayan Laxminarayan
Hegde v. Millikarjun Bhavanappa Tirumale [(1960) 1
SCR 890 : AIR 1960 SC 137] were also noted : (AIR p.
137)
“An error which has to be established by a long-
drawn process of reasoning on points where there
may conceivably be two opinions can hardly be
said to be an error apparent on the face of the
record. Where an alleged error is far from self-
evident and if it can be established, it has to be
established, by lengthy and complicated
arguments, such an error cannot be cured by a
writ of certiorari according to the rule governing
the powers of the superior court to issue such a
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writ.” (SCR pp. 901-02)
18 . It is also pertinent to mention the observations of
this Court in Parsion Devi v. Sumitri Devi [(1997) 8
SCC 715] . Relying upon the judgments in Aribam
[(1979) 4 SCC 389 : AIR 1979 SC 1047] and Meera
Bhanja [(1995) 1 SCC 170 : AIR 1995 SC 455] it was
observed as under : (SCC p. 719, para 9)
“9. Under Order 47 Rule 1 CPC a judgment may
be open to review inter alia if there is a mistake or
an error apparent on the face of the record. An
error which is not self-evident and has to be
detected by a process of reasoning, can hardly be
said to be an error apparent on the face of the
record justifying the court to exercise its power of
review under Order 47 Rule 1 CPC. In exercise of
the jurisdiction under Order 47 Rule 1 CPC it is
not permissible for an erroneous decision to be
„reheard and corrected‟. A review petition, it must
be remembered has a limited purpose and cannot
be allowed to be „an appeal in disguise‟.”
12. Since the present Review Petitions are largely based on the
contention that there is a mistake or error apparent on the face of record of
the Impugned Order, it is apposite to recall the Judgment of the Apex Court
in State of West Bengal vs. Kamal Sengupta, (2008) 8 SCC 612 , wherein
the Apex Court considered as to what exactly can be said to be a „ mistake or
error apparent on the face of record ‟ and has held as under:
“ 35 . The principles which can be culled out from the
abovenoted judgments are:
(i) The power of the Tribunal to review its
order/decision under Section 22(3)(f) of the Act is
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akin/analogous to the power of a civil court under
Section 114 read with Order 47 Rule 1 CPC.
(ii) The Tribunal can review its decision on either of
the grounds enumerated in Order 47 Rule 1 and not
otherwise.
(iii) The expression “any other sufficient reason”
appearing in Order 47 Rule 1 has to be interpreted in
the light of other specified grounds.
(iv) An error which is not self-evident and which can
be discovered by a long process of reasoning, cannot
be treated as an error apparent on the face of record
justifying exercise of power under Section 22(3)(f).
(v) An erroneous order/decision cannot be corrected in
the guise of exercise of power of review.
(vi) A decision/order cannot be reviewed under Section
22(3)(f) on the basis of subsequent decision/judgment
of a coordinate or larger Bench of the tribunal or of a
superior court.
(vii) While considering an application for review, the
tribunal must confine its adjudication with reference to
material which was available at the time of initial
decision. The happening of some subsequent event or
development cannot be taken note of for declaring the
initial order/decision as vitiated by an error apparent.
(viii) Mere discovery of new or important matter or
evidence is not sufficient ground for review. The party
seeking review has also to show that such matter or
evidence was not within its knowledge and even after
the exercise of due diligence, the same could not be
produced before the court/tribunal earlier.”
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13. The present stage of proceedings have constrained this Court yet
again to focus more on what led to the passing of the Order dated
19.01.2026 and thereafter the Impugned Order. A perusal of the Order dated
19.01.2026 shows that this Court, driven by Article 144 of the Constitution
of India, took a strong view that the Orders passed by the Apex Court cannot
be left in a limbo, more so, when nearly three years had passed after the
Apex Court specifically ordered the Arbitral Award to be executed. Relevant
portions of the Order dated 19.01.2026 reads as under:
“ 29 . Reference is made to Article 144 of the
Constitution of India which mandates all authorities –
civil and judicial, to act in aid of the Apex Court.
Accordingly, this Court is of the opinion that Orders
passed by the Apex Court cannot be left in a limbo,
more so for nearly three years after they have been
passed.
30 . The Petitioners/Judgments Debtors are in
continuous non-compliance of the Orders passed by
the Apex Court as well as this Court.
31 . As such, the contention of the learned Senior
Counsel for the Petitioners/Judgment Debtors that the
Orders of the executing Court would be subject to the
Orders passed in the pending Section 34 Petitions
cannot be accepted and, therefore, the contention that
the Petitioners/Judgment Debtors need not be asked to
deposit the decretal amount, also cannot be accepted.
32 . Furthermore, as noted above, the
Petitioners/Judgment Debtors have themselves in E.A.
No.1283/2023 & 1284/2023 filed in OMP (ENF.)
(COMM) 32/2019 & OMP (ENF.) (COMM) 31/2019,
categorically admitted that INR 194,51,69,887/- is due
and payable. Since INR 50 crores have already been
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deposited by the Petitioners/Judgment Debtors, now
INR 144,51,69,887/- is admittedly due and payable in
compliance of the Orders of the Apex Court. Even
though a larger amount is further due and payable as
per the Orders of the Apex Court, for the time being,
the Petitioners/Judgment Debtors are directed to
deposit the amount of INR 144,51,69,887/- with the
Registry of this Court within six weeks from the date of
upload of this Order.”
[Emphasis Supplied]
14. Going a little further in the timeline, reference is made to the Order
dated 13.02.2023, by way of which the Apex Court dismissed the SLPs filed
by the Review Petitioners herein, against an Order passed by a Coordinate
Bench of this Court, directing them to deposit an amount of INR
2,42,93,70,845.56/-. The Apex Court while dismissing the SLPs, directed
that in the event the Review Petitioners default in complying with the
direction for payment or any part thereof, the Arbitral Award shall become
executable forthwith in its entirety.
15. What is discernible from above is that way back in February, 2023,
the Apex Court had directed that the Arbitral Award shall immediately
become executable in its entirety, in the event that the Review Petitioners
herein fail to deposit the amount of INR 74 crores within the stipulated time
period. Even though it has been a consistent stand of the Review Petitioners
that a large sum was already deposited with this Court, it was an admitted
position that the amount directed by the Apex Court was not deposited
within the stipulated time period, which position was fortified when the
Review Petitioners approached the Apex Court seeking an extension of time
to comply with the Order dated 13.02.2023.
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16. In the interregnum, when the Enforcement Petitions were listed before
this Court on 29.05.2023, it was noted by the Co-ordinate Bench of this
Court that the Review Petitioners had failed to deposit an amount of INR 75
crores, as directed by the Apex Court and as such there was no other
alternative except to call upon the Review Petitioners to deposit the entire
outstanding amount qua the interest component. Relevant portion of the
Order dated 29.05.2023, passed by a Co-ordinate Bench of this Court in the
Enforcement Petitions, reads as under:
“ 8 . Since the judgment debtor had failed to pay an
amount of Rs.75.00 crores to decree holder, hence in
terms of para 15(ii) of the order dated 13.02.2023 of
the Hon‟ble Supreme Court, there is no other
alternative except to call upon the judgment debtors to
deposit the entire outstanding amount qua interest
forthwith, thus is so directed. Affidavit of assets be also
filed within four weeks from today.”
17. What is perhaps the most significant direction given by the Apex
Court thereafter came to be passed vide its Order dated 07.07.2023, by way
of which the Applications filed by the Review Petitioners seeking extension
of time to comply with the Order dated 13.02.2023 were dismissed.
Significance of the Order dated 07.07.2023 passed by the Apex Court is that
it specifically notes that there is a breach on the part of the Review
Petitioners in complying with its earlier Order, making the Arbitral Award
executable immediately.
18. Thereafter, this Court on 24.08.2023 noted that the Review Petitioners
in compliance with the earlier Orders passed by this Court came to file their
affidavit of assets, while also expressing difficulty on their part in making
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payments forthwith. Nevertheless, on the same date, in the presence of Mr.
Ajay Singh, an undertaking was given that M/s Spicejet Ltd., in order to
show its bona fide , shall release an amount of INR 100 crores by 10.09.2023
in favour of the Respondents. Relevant portion of the Order dated
24.08.2023 reads as under:
“ 1. Mr.Ajay Singh, the Managing Director of
respondent No.1 is present in person.
2. Learned senior counsel for the decree holder presses
for the deposit and release of money to it in view of
various orders passed by the Hon‟ble Supreme Court
and as well as by this Court.
3. Learned senior counsel for the judgment debtor
has filed affidavits of assets and expressed difficulty
of the judgment debtor in making the payments
forthwith but to show its bona fide, JD-1 will release
an amount of Rs.100.00 crores by 10.09.2023 in
favour of decree holder, while keeping open the rights
and contentions of parties in pending litigations. ”
[Emphasis Supplied]
19. This brings us to the proceedings before this Court which transpired
on 20.11.2023 wherein this Court took note that in two applications filed by
the Review Petitioners in the Enforcement Petitions, there was a „without
prejudice‟ averment of the Review Petitioners admitting that an amount of
INR 194,51,69,887/- was due and payable to the Respondents. Apart from
this, it was also noted that despite of its undertaking on the previous date,
the Review Petitioners did not show any bona fides and failed to deposit
INR 100 crores in favour of the Respondents.
20. Out of the aforesaid admitted amount of INR 194,51,69,887/-, this
Court on 05.02.2024, directed the Review Petitioners to first make a
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payment of INR 50 Crores within six weeks from the date of that order.
Admittedly, this Order was duly complied with.
21. It is thereafter that the Order dated 19.01.2026 came to be passed by
this Court, when the Applications filed by the Review Petitioners seeking
stay on the Arbitral Award were pressed and the Review Petitioners were
first directed to make a deposit of INR 144,51,69,887/-.
22. Against the above mentioned Order dated 19.01.2026, the Review
Petitioners approached the Apex Court by way of SLPs, wherein the
grounds raised by the Review Petitioners were mainly that this Court had
failed to consider that the amount under the Arbitral Award was sufficiently
secured and that this Court did not exercise its discretion to analyse as to
whether any further deposit was even required. Interestingly, in these SLPs,
the Review Petitioners also took a ground that the Order dated 19.01.2026
passed by this Court imposed a financial strain on them, despite the Civil
Aviation industry in India already being severely distressed.
23. The above SLPs were dismissed by the Apex Court on 27.02.2026
with the following observations:
“ 1. We are not inclined to interfere with the impugned
judgment(s) and order(s) passed by the High Court as
we are of the opinion that it is an abuse of the process.
2. The special leave petition are dismissed with costs
quantified at Rs 1,00,000/- (Rupees One lakh) which
shall be deposited with the “Supreme Court Advocate-
on-Record Association (SCAORA)” within two weeks
from today.
3. Pending application(s), if any, shall stand disposed
of.”
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The Apex Court was, therefore, well aware of the financial difficulties of the
Review Petitioners.
24. Subsequently, the proceedings before this Court on 18.03.2026 took
place, wherein this Court disposed of on one hand, the Applications filed by
the Respondents for necessary directions to the Review Petitioners for
deposit of the amount as directed vide Order dated 19.01.2026 and on the
other hand, the Applications filed by the Review Petitioners seeking
modification of the Order dated 19.01.2026 as well as extension of time for
complying with the said Order. By way of their Applications seeking
modification, the Review Petitioners inter alia prayed that instead of
depositing the amount of INR 144,51,69,887/-, they be permitted to give the
SpiceJet‟s Property as security. This prayer was made in light of the
averments that the Section 34 Petitions filed by the Review Petitioners are
pending adjudication by this Court, substantial amounts have already been
paid by them to secure the Arbitral Award and that the Review Petitioners
were facing severe liquidity constraints and other financial difficulties.
25. Driven by the dismissal of the SLPs filed by the Review Petitioners
vide Order dated 27.02.2026, passed by the Apex Court, that too with
exemplary costs, this Court observed that once the contention of financial
difficulty was advanced before the Apex Court and yet the Apex Court
deemed it fit to dismiss the SLPs, the Review Petitioners cannot be allowed
to re-agitate the same contention before this Court. Regarding the prayer of
the Review Petitioners‟ to substitute SpiceJet‟s property as security in place
of deposit of INR 144,51,69,887/-, this Court, while examining the material
on record, observed that there was nothing to show that the said property
was even free from encumbrances. Rather, it was noted that at least till
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March, 2025 the SpiceJet‟s Property was under mortgage. Even in this
situation, this Court deemed it fit, in the interest of justice, to grant a further
time of four weeks to enable the Review Petitioners in making necessary
arrangements for depositing INR 144,51,69,887/-, by selling the SpiceJet‟s
Property.
26. Now by way of the Review Petitions under adjudication, it is prayed
that this Court take note of the factum of breakout of hostilities in West-Asia
leading to the immediate suspension of all flights to the Middle East from
28.02.2026 as per the DGCA Advisory. The Review Petitioners also urge
that contrary to what is noted in the Impugned Order, the SpiceJet‟s Property
has been released from Bank mortgage on 13.03.2026 and now nothing
should prevent this Court from allowing the Review Petitioners to deposit
the original title deeds of the SpiceJet‟s Property with the Registry of this
Court in lieu of the cash deposit. Interestingly, the Review Petitions also
contain an alternative prayer for grant of an additional time of twelve weeks
to affect the sale of the SpiceJet‟s property.
27. Another aspect strongly urged by the learned Senior Counsel for the
Review Petitioners is that M/s SpiceJet Limited is optimistic about obtaining
financial support from the Government of India being offered in view of the
unprecedented hardship being faced by the aviation sector due to the
hostilities in West Asia.
28. What can be borne out from the grounds urged in the Review
Petitions, is that the grievance of the Review Petitioners is against this Court
heavily drawing its conclusions on the basis of dismissal of the SLPs by the
Apex Court, as well as denying permission as sought by the Review
Petitioners to deposit SpiceJet‟s property in lieu of the cash deposit. These
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grievances are supported by two main contentions, one being that this Court
ought to exercise its discretion under Order XLI of the CPC to examine as to
whether further deposit is required or not, and the second being the financial
condition of the Review Petitioners in view of the breakout of hostilities in
West Asia. One more argument of the Review Petitioners is that it is
permissible in law for this Court to substitute any other form of property in
place of calling for a cash deposit to secure a money decree.
29. At the very outset, this Court cannot lose sight that the breakout of
hostilities in West Asia is an event that has occurred in February, 2026,
while the Apex Court had directed the Arbitral Award to become executable
way back on 07.07.2023. Admittedly, more than two years have gone by
after passing of the Order dated 07.07.2023. Moreover, on 29.05.2023, this
Court had called upon the Review Petitioners to deposit the entire
outstanding amount qua the interest component under the Arbitral Award. In
this view, this Court is of the opinion that the Review Petitioners are now
attempting to take advantage of an event that has taken place more than two
years after the passing of the Order by the Apex Court directing the Arbitral
Award to become executable, which cannot be permitted in any manner
whatsoever. The Review Petitioners are, therefore, constantly disobeying the
Orders of the Apex Court.
30. This Court is also cognizant of the fact that the position of the Review
Petitioners regarding their declining financial health has not changed ever
since the passing of the Order dated 07.07.2023 by the Apex Court. In fact,
this position has been continuously considered by this Court as well as the
Apex Court and yet every single time, the Review Petitioners have been
directed to deposit, at the very least, the amount that has been admitted to be
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outstanding by them. As such, there is no force in the argument advanced by
the Review Petitioners that this Court has ignored the financial distress
being faced by the Review Petitioners.
31. Furthermore, argument of the Review Petitioners that this Court erred
in not allowing them to furnish the SpiceJet‟s property as security in place of
the cash deposit also ought to be dismissed, as the same was a fair exercise
of the discretionary power of this Court and it cannot be said that there is an
error apparent on the face of the record.
32. On the above aspect, what is also being prayed in alternative by the
Review Petitioners is that this Court grant some more time to the Review
Petitioners to make an attempt to sell the SpiceJet‟s property and deposit the
sale proceeds to ensure compliance with the Impugned Order. This prayer of
the Review Petitioners is supported with certain communications, which
depict the attempts being made by the Review Petitioners to sell off the
SpiceJet‟s property, which are being stalled due to the wariness of the
prospective buyers in view of the hostilities in West Asia. However, perusal
of the Impugned Order shows that this Court had already granted time to the
Review Petitioners for making an endeavour to sell off the SpiceJet‟s
property and as such, this argument has already been dealt with by this
Court. In the opinion of this Court, the Review Petitioners are only abusing
the indulgence given by this Court to sell the Spicejet‟s Property, which is
not appreciated by this Court.
33. This Court fails to see any valid ground raised by the Review
Petitioners which would warrant review of the Impugned Order, especially
when the present proceedings are now at the stage of execution of the
Arbitral Award as directed by the Apex Court, and now no question of
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equity or hardship can arise (refer: Madan Mohan v. Krishan Kumar Sood,
1994 Supp (1) SCC 437 ).
34. This Court finds merit in the contention of the learned Senior Counsel
for the Respondents that these Review Petitions are a complete abuse of the
process of law and the Review Petitioners have been constantly defying the
Orders of the Apex Court by filing one Application/Petition after the other.
The ground of financial distress is being placed before the Apex Court right
from 2023 and the so-called change in circumstance after February, 2026 is
not a ground to review the Impugned Order passed by this Court. The
arguments which have been raised in the SLPs have also been raised before
this Court and this Court, after considering the submissions of the Review
Petitioners, refused to modify the Order dated 19.01.2026.
35. The hostilities which broke out in February-March, 2026 cannot be
used to the advantage of the Review Petitioners and at the cost of repetition,
it is made clear that this Court was not prepared to accept the offer given by
the Review Petitioners for deposit of the title deeds of the Spicejet‟s
Property in lieu of the arbitral amount as in the opinion of this Court, the
said offer could not be a proper compliance of the Orders of the Apex Court.
36. This Court is, therefore, inclined to dismiss the present Review
Petitions with a cost of INR 50,000/-, to be deposited by the Review
Petitioners with the Armed Forces Battle Casualties’ Welfare Fund
(AFBCWF) within four weeks from today.
37. This Court is also not inclined to modify the Impugned Order dated
18.03.2026 by granting any enlargement of time to the Review Petitioners to
deposit the amount. Resultantly, the Review Petitioners are directed to
comply with the Impugned Order forthwith and take immediate steps to
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deposit the amount of INR 144,51,69,887/- with the Registry of this Court.
38. With the above directions and observations, the Review Petitions are
dismissed.
SUBRAMONIUM PRASAD, J
MAY 04, 2026
hsk/AP
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