The Delhi Airport Metro Express Private Limited, a Reliance Infrastructure firm, on Tuesday told the Supreme Court that it was not seeking any damages from the DMRC and wanted the cost of trains, procured by it, for plying on the airport metro line here in terms of the 2017 arbitral award.
A special bench comprising Chief Justice D Y Chandrachud and justices B R Gavai and Surya Kant reserved its verdict on the curative plea of Delhi Metro Rail Corporation (DMRC) against the dismissal of its review petition against the arbitral award to the tune of Rs 8,000 crore in favour of the Delhi Airport Metro Express Private Limited (DAMEPL).
The Anil Ambani-owned Reliance Infrastructure Limited, the flagship firm of DAMEPL, represented by senior advocates Harish Salve and Kapil Sibal, termed the curative plea of DMRC against the top court’s decisions as the “whole-sale trial by ambush”.
The appeal and the review petitions of the DMRC, challenging the arbitral award asking it to pay Rs 8,000 crore to DAMEPL, have been dismissed by the top court which heard the curative petition and reserved the verdict.
The DMRC has been challenging the arbitral award on grounds including that the notice of October 8, 2012 issued by DAMEPL terminating the concessionaire agreement related to running the airport metro line in the national capital was “illegal”.
Attorney General R Venkataramani and senior advocate K K Venugopal, appearing for the DMRC, argued that the curative plea was maintainable and the award was wrong and upholding it would amount to “miscarriage of justice”.
Venugopal assailed the agreement termination notice of DAMEPL on the ground of some structural infirmities in the airport metro line and said, “Today the trains are running at the speed of 120 km/hour.”
At the outset, Salve put forth his arguments on behalf of the Reliance firm and said, “I am not suing them (DMRC) for damages. I am not seeking even a rupee as damages. I am seeking the cost of trains.”
“They (DMRC) have the trains. They have to pay for the trains and this (arbitral) award is for the trains. Well, if the amount has ballooned then it is how the arbitration law applies,” Salve said while wrapping up his submissions.
He also referred to certain structural deficiencies in the airport metro line and said in case of any untoward incident, the firm would have been held liable and sometimes, the liability can be criminal as well.
Referring to the list of dates, Salve said there was no ambivalence in the termination of the concessionaire agreement and it was sent on October 8, 2012 and it became effective on January 7, 2013. He referred to certain “new” points raised by DMRC in its pleadings related to the curative petition and said this is “whole-sale trial by ambush”.
Sibal, also appearing for the Reliance firm, dealt with the judicial principles and the law on curative plea and said the petition of DMRC was not maintainable.
“Curative petition cannot be decided on facts of each case. It will open Pandora’s box if such types of pleas are allowed on the basis of declared facts,” Sibal said.
Earlier, the top court had said that a five-judge bench may hear the curative plea of DMRC against the arbitral award.
The DMRC had filed the curative plea in August 2022 against the dismissal of its review plea by the top court in 2021.
After the dismissal of the plea of DMRC, the Reliance firm had moved the Delhi High Court seeking execution of the arbitral award.
The Delhi High Court, on March 29 last year, had said its earlier direction on attachment of DMRC funds in case of non-compliance of its directions in the execution plea will not come in the way of payment of salaries to employees as well as payment towards operation and maintenance expenses.
On March 17, the high court had directed the Centre and the city government to attend to the DMRC’s request for extending the sovereign guarantees or subordinate debt to enable it to make the payment of the dues of an arbitral award passed in favour of the DAMEPL.
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It had also said the sovereign governments cannot shirk their liability to abide by binding judgments and decrees.
The high court had also ordered that in case of a failure on the part of the parties to proceed in terms of the directions, the entire amount under “Total DMRC Funds, Total Project Funds and Total Other Funds” shall be attached.
The order was modified by the high court on the review plea of the DMRC.
In May 2017, an arbitral tribunal ruled in favour of the DAMEPL, which had pulled out of running the Airport Express metro line over safety issues, and accepted its claim that running the operations on the line was not viable due to structural defects in the viaduct through which the trains would pass.
Earlier, the court had noted that the total amount of the award with interest till February 14, 2022 was Rs 8,009.38 crore. Of this, a sum of Rs 1,678.42 crore has been paid by the DMRC and an amount of Rs 6,330.96 crore is still due.
