SC to hear DMRC curative plea against arbitral award favouring DAMEPL on Feb 15
The DMRC had filed its curative petition in August 2022 challenging the dismissal of its petition by the top court in September 2021
The Supreme Court on Monday said that a five-judge bench will on February 15 hear the curative petition filed by Delhi Metro Rail Corporation (DMRC) against dismissal of its plea questioning an arbitral award directing it to pay Reliance Infrastructure subsidiary, Delhi Airport Metro Express Private Limited (DAMEPL) to the tune of over ₹8,000 crore.
The petition came up for hearing before a bench headed by Chief Justice of India (CJI) Dhananjaya Y Chandrachud which instructed lawyers assisting Attorney General R Venkataramani for DMRC and senior advocates Harish Salve and Mukul Rohatgi for DAMEPL to file a common set of documents relied by both sides and a five-page note summarising arguments.
For DMRC and DAMEPL, advocates Tarun Johri and Mahesh Agarwal were selected as the nodal counsels.
The DMRC had filed its curative petition in August 2022 challenging the dismissal of its petition by the top court in September 2021.
Also Read: DMRC asks Supreme Court to urgently take up its curative petition in DAMEPL case
Earlier, the bench, also comprising justices BR Gavai and Surya Kant, indicated that on the next date of hearing, a five-judge bench may take up the case hearing.
“We can take it up in a combination of five. The two judges who passed the order (of September 2021) have since retired,” the bench said.
The earlier judgment was passed by a bench of justices LN Rao and S Ravindra Bhat. It was this bench that dismissed the review petition filed by DMRC in November 2021.
Salve appearing for DAMEPL objected to entertaining the curative plea.
He said, “I read and re-read the curative petition and I am flabbergasted that no ground for entertaining a curative petition is made out. Let them state specifically the ground on which curative is sought.” Senior advocate Mukul Rohatgi, also appearing for the R-Infra subsidiary said, “We have taken a preliminary objection to this petition. Neither violation of natural justice nor any other ground mentioned in Rupa Ashok Hurra case is made out.”
After the top court’s dismissal of DMRC petition, the DAMEPL approached the Delhi high court seeking execution of the arbitral award.
In March last year, the high court had directed DMRC to clear all outstanding dues in compliance with the award passed in 2017.
As the DMRC is a joint venture of Centre and Delhi government, the HC even directed the two governments to extend a sovereign guarantee to DMRC towards the payment after DMRC claimed it did not have adequate funds to meet its liability under the award.
In August last year, the top court had deferred proceedings before the Delhi high court pending hearing on the curative petition.
The Attorney General had on several occasions in the past urged the top court to take up the curative petition pending since August 2022.
He even pointed out that DMRC will come to a halt if the execution proceedings before the HC is given effect.
DMRC had earlier claimed that it deposited an amount of ₹1,678.42 crore out of its total liability of ₹8009.38 crore.
DAMEPL, a subsidiary of Anil Ambani-owned RInfra Limited, had raised safety issues in continuing with the contract to operate the 22.7km Airport Metro Express line, following which DMRC cancelled the contract in October 2012.
An arbitral tribunal award passed on 11 May 2017 was invoked by DMRC against the consortium of Reliance Energy Ltd (renamed as Reliance Infrastructure) and Construcciones y Auxiliar de Ferrocarriles SA. The DAMEPL cited the failure of DMRC to cure defects in the structure supporting the Airport Metro Express line.
The arbitral tribunal undertook a detailed enquiry into all aspects and found as many as 1,551 cracks in 367 girders and 80 girders with twists varying between 10 to 20 mm.
The tribunal was of the opinion that these defects adversely impacted the integrity of the structure.
As effective steps were not taken within the 90-day cure period, the tribunal held that DMRC breached the concession agreement.