'Scope Of Curative Jurisdiction Limited, Especially In Commercial Matters' : Supreme Court In DMRC v. DAMEPL Hearing

The Supreme Court today, while hearing a Curative Petition filed by the Delhi Metro Rail Corporation challenging the Court's 2021 decision of upholding an arbitral award won by the Delhi Airport Metro Express Private Limited (DAMEPL), analysed the strictly high threshold to reopen a case through Curative Jurisdiction under Article 142.The CJI noted that when curative petitions are filed concerning commercial issues, the threshold for consideration is aggravated. “ Particularly in a commercial case, that threshold must be particularly high, it's not like you are dealing with a human rights case, death penalty case etc..we get your point…it has to be seen in terms of certainty, consistency and predictability of the law.” The Bench comprising Chief Justice, DY Chandrachud and Justices BR Gavai and Surya Kant was hearing a curative petition of the earlier ruling of the Court in DAMEPL v. DMRC LL 2021 SC 432, wherein the 2018 Arbitral award against the state-owned Delhi Metro Rail Corporation (DMRC) was upheld in light of DMRC's non-payment of contract termination fees. Senior Advocate Harish Salve, appearing for DAMEPL at the outset objected to having the final decision of 2021 of the Supreme Court in a curative petition. Quoting Justice Krishna Iyer, in a matter of review concerning food and beverage taxes, Mr Salve expressed “ To ask for a review is to ask for the moon.” Picking from thereon, the CJI further remarked, “To ask for a curative petition is to ask for a solar system which is beyond ours.” The CJI noted that while the powers for hearing a curative petition are exceptional, they however do fall under Article 142 of the Constitution. However, Mr Salve expressed his concerns over the ambit of the jurisdiction under Article 142 over arbitration matters. Giving the example of the precedent set in the recent curative petition decision of the Court in Union of India v. Union Carbide Corporation, Mr Salve contended, “ In Union Carbide, your lordships stamped out hard. The court was invited in Union Carbide Curative, to say that please hold that Hurra (Rupa Hurra v. Ashoka Hurra) doesn't contain and we can show substantial error and you can look..your lordships said sorry we will not do that.” To buttress the same, Mr Salve read the relevant portion of Union Carbide as follows : 26. On this preliminary point, we may note that a curative petition relates to a reexamination of a final judgment of this Court, particularly one that has already undergone such re-examination through the Court's review jurisdiction. Since this Court's review jurisdiction itself is so restrictive, we find it difficult to accept that this Court can devise a curative jurisdiction that is expansive in character. 27. On the facts of this case, we have already noticed that when review petitions were filed against the orders recording the settlement, the Union of India sought to support the same. However, the Union subsequently opposed all other applications filed for reopening the settlement. We understand that such a strategy was adopted as the Union of India's endeavour is not to set aside the settlement but merely to 'top up' the settlement amount. 28. We have great hesitation in allowing such a prayer and granting such sui generis relief through the means of curative petitions. Although this Court in Rupa Ashok Hurra chose not to enumerate all the grounds on which a curative petition could be entertained; the Court was clear in observing that its inherent power ought not to be exercised as a matter of course, and that it should be circumspect in reconsidering an order of this Court that had become final on dismissal of the review petition. Nevertheless, looking at the nature of the matter before us, it would be advisable to also examine the curative petition(s), apart from the aforesaid preliminary objection.CJI taking note of Para 28 of the same decision observed that “ The constitution bench also held the position that the circumstances for exercising the jurisdiction which is elucidated in para 49 are not exhaustive ….but at the same time we say that look there is an exceptional situation where you will not exhaustively list out those circumstances because you do not want to stultify the hands of the future benches.” The relevant paragraph that the CJI referred to was : 49. Providing closure to a lis is also a very important aspect. This is more so in the context of the scenario faced by the Indian judiciary, where delay is almost inevitable. This concern would be further amplified in respect of a tort claim such as the present one - if evidence were to be led for each claimant, this would open a pandora's box in UCC's favour and would only be to the detriment of the beneficiaries. The money was needed in the immediate aftermath of the tragedy and not after three decadesMr Salve reminded the bench that while the Union Carbide Case was rather pertaining to human rights, the present issue is purely of a commercial nature. The...

'Scope Of Curative Jurisdiction Limited, Especially In Commercial Matters' : Supreme Court In DMRC v. DAMEPL Hearing

Anmol Kaur Bawa

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