Recently, the supreme court of India rendered a significant concept of curative petition
maintainability in Arbitration. Basically, dispute raises from the disagreement over the
termination of concession agreements. In this case, curative jurisdiction highlight the integrity of
the Arbitral process and safeguarding measures for efficiency and efficacy of the arbitration
process.
FACTS:
In 2008, The Delhi Metro Rail Corporation Ltd. and Delhi Airport Metro Express Private
Limited entered into a concession agreement . Under this agreement, DAMEPL will providing
metro rail Connectivity between New Delhi Railway Station and the Indira Gandhi International
Airport and other points within Delhi. DAMPEL was also given Designing, construction,
operation, and maintenance rights with exclusive rights, license And authority to implement the
project.
In July 2012. A Joint Inspection Committee was set up to inspect The defects alleged by
DAMEPL. DAMEPL stopped operations due to safety concerns and a notice was served to
DMRC, listing the defects to be cured within 90 days. In October 2012, DAMEPL terminated the
concession agreement citing failure on the part of DMRC to rectify the Defects.
In Aug 2013, DMRC initiated Arbitral Proceedings and where Arbitral Tribunal ruled in favors
of DAMEPL, passing award in May 2017 with a substantial compensation amount of ₹7687
crore to be paid by DMRC.
Then DMRC Challenge the award in the Delhi High Court under sec 34 of A & C Act, 1996.
Due to Application dismissed , file before division bench under sec 37. The division bench
partialy allowed appeal and set aside the award. Then DAMEPL filed a special leave petition.
ISSUES:
Whether the curative petition Is maintainable ?
Whether this Court was justified in restoring the arbitral Award which had been set aside by the
Division Bench of the High court on The ground that it suffered from patently illegality ?
Petitioner’s & Respondent Position:-
DMRC claimed that , it took steps to cure the defects Immediately after it received the cure
notice, including approaching SYSTRA The original design consultant and convening meetings
with the Ministry of Urban Development and that DAMEPL actively participated in all of these
Steps and the real reason for the termination notice was that DAMPL had Ceased to find the
project financially viable.

DAMEPL claimed that there were defects attributable to DMRC’s faulty design; that these
defects were not cured and no effective steps were taken to Cure them within the 90-day cure
period, resulting in material adverse effects To DAMEPL, entitling it to terminate the concession
agreement.

Decision & Analysis :
The supreme court upheld maintanblelity of Curative petition Arbitration which is a judicial
innovation which given by the supreme court restored arbitral award and further said that the
court can reconsider its decision in the review petition . The court’s decision to allow a curative
petition in this case adds another stage of judicial scrutiny, has the potential to undermine the
efficiency and finality of the arbitration process.
Regardless of the merit of the DMRC case , the concept of reconsidering an arbitral award in a
Curative petition also fail the purpose of sec 5 of the A & C Act, which provide for minimal
intervention. Another which merit a decision is that DMRC award was set aside on ground of
patent illegality, which is badly affect India pro-arbitration status apply only in domestic
Arbitration case not in international arbitration cases.
By setting aside an arbitral award in a Curative petition, the supreme court has opened an
additional avenue for parties to keep assailing the arbitral award, ultimately undermining the
efficiency and finality of Arbitration. The DMRC Decision concludes with a warning that the
supreme court’s exercise of it’s inherent curative power ought not to be adopted as manner of
ordinary course.

This blog is authored by Vikash Kumar, who was the top 40 scorer in the ADR quiz competition organized by Lets Learn Law.