Justice Indu Malhotra: On DMRC, first, it was a domestic award. In a domestic award, it can be set aside if the award is patently illegal. In my view, speaking of the merits and not the procedure, the curative order was correct. This was a case where a panel of three retired engineers were the arbitrators and when they wrote the award, they completely ignored the most crucial evidence and came to a wrong finding. At the Section 34 stage, the award was allowed to stand. But at the Section 37 stage, the Delhi High Court passed a detailed judgment, authored by Justice Sanjiv Khanna, finding that it was not a plausible award at all, that it was completely contrary to the statutory provisions on certification by a commissioner and that there were facts showing cracks in the metro rail, a public utility service.
He did not enforce the award and found it patently illegal, saying it didn’t stand to reason. That was reversed in the SLP and then it came to the curative petition. This has never been done before, it is very rare. The amounts involved were huge – public money, for a public utility service, in the vicinity of ₹7,800 crore. In those extraordinary facts, I feel the curative judgment was correct on the facts of the case. I would not recommend curative jurisdiction become a precedent, but this was an extraordinary case, in the public interest, involving an award that had ignored the most vital and crucial evidence. So I think it was rightly set aside.
