Revue - Les Cahiers de l'Arbitrage N°2 - 2024 - 77

COMMENTAIRES DE JURISPRUDENCE
DAMEPL raised counterclaims for payments in connection with the termination
and other damages associated with the project. The three-member Tribunal,
constituted in August 2013 and comprised of engineers, 3
issued a final award in
May 2017, unanimously finding in favour of DAMEPL and awarding compensation
(with interest) which, as of 2024, stood at over USD 950 million. In particular,
the Tribunal found that (i) there were defects in the civil structure that impacted
the integrity of the structure, (ii) the defects remained uncured by DMRC after
the 90-days' cure period, and (iii) the CMRS approval (at lower speeds) and the
subsequent operation of the metro line were irrelevant to the issues at hand. 4
DMRC challenged the award before the Delhi High Court at the first instance
(Single Judge), which was dismissed. The Single Judge observed, among other
things, that the Tribunal " had analysed material and evidence in great detail, and
arrived at a plausible conclusion " . 5
DMRC then appealed against this decision at
the second instance before a Division Bench of the Delhi High Court. The Division
Bench reached a different conclusion and partly set aside the award after finding
it to be " perverse and patently illegal " owing to, among other things, the lack of
reasons on key issues and disregard of vital evidence by the Tribunal (the CMRS
approval). 6
DAMEPL appealed against the Division Bench decision before the Supreme
Court (by special leave), which set aside the Division Bench decision and
reinstated the award in 2021. Among other things, the Supreme Court held that
" the construction of the provisions of the contract was within the exclusive domain
of the tribunal " and that the " finding of the tribunal that the defects were not cured
was a finding of fact, not warranting interference " . 7
Although a further review
petition was filed in the Supreme Court against this decision, this was dismissed in
November 2021. 8
DMRC nevertheless filed a curative petition before the Supreme Court (as a
fifth level of scrutiny) for a further review of the decision of the Supreme Court
reinstating the award. Curative petitions are entertained in the " rarest of rare cases "
to prevent a miscarriage of justice and avoid judgements that " would be oppressive
to judicial conscience and cause the perpetuation of irremediable injustice. " 9
The
role of the Supreme Court in such petitions is thus not to sit as a court of appeal
to correct a previous judgement on the merits. Indeed, after laying down the basis
for this exceptional jurisdiction in the 2002 case of Rupa Hurra v Ashok Hurra, 10
the Supreme Court had exercised its curative jurisdiction in only two other cases
in history. 11
3. The dispute resolution clause in the Agreement is not public. It however appears that the
dispute resolution clause provided for an arbitral tribunal with three engineers, which is not standard
practice for a dispute resolution mechanism involving issues of contractual interpretation.
4. See, the Decision, paras. 18-22.
5. See, the Decision, para. 23.
6. See, the Decision, para. 24.
7. See, the Decision, para. 25.
8. See, the Decision, para. 26.
9. Rupa Hurra v Ashok Hurra, (2002) 4 SCC 288, para. 42.
10. Rupa Hurra v Ashok Hurra, (2002) 4 SCC 288.
11. The other instances where the curative jurisdiction was used by the Supreme Court are the
cases of Navneet Kaur v State (NCT of Delhi) (2014) 7 SCC 264 and Latoori Singh v. State of UP
(2024) SCC Online SC 590. Neither of these cases appear to deal with any commercial issues.
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Revue - Les Cahiers de l'Arbitrage N°2 - 2024

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