Written By: Apoorv Agarwal, Manav Goyal
Review, curative jurisdiction and Article 142 in commercial disputes, and what 2026 has done to them
Each of the three was built as a narrow exception to finality. Between April 2024 and May 2025 the Supreme Court used all three on commercial outcomes that everyone had treated as settled. Since then it has been closing them again. The practitioner needs to know where each door now stands.
In most areas of law finality is a virtue the system values for its own sake. In commercial law it is the thing the parties paid for. A resolution applicant prices a distressed company on the footing that Section 31 of the Insolvency and Bankruptcy Code will make the approved plan binding on everyone and that the company will come to it, in the Supreme Court’s phrase, on a clean slate.[1] An award-holder agrees to arbitrate because Section 35 makes the award final and Section 34 confines the challenge to a short list of grounds.[2] Take finality away and the price changes, or the deal does not happen.
Indian law has three routes by which a concluded matter can be reopened after the ordinary appeals are exhausted. A review under Article 137 and Order XLVII, confined to an error apparent on the face of the record.[3] A curative petition, created by the Constitution Bench in Rupa Ashok Hurra in 2002 for the rarest cases of abuse of process or gross miscarriage of justice.[4] And Article 142, the power to do complete justice, which sits above the statute and belongs to the Supreme Court alone. Between April 2024 and May 2025, each of these was used to disturb a commercial outcome that the parties had every reason to think was over. Since then, and particularly in 2026, the Court has been working to narrow them again. This article looks at what happened at each door and where it now stands.
The first door: review
The Bhushan Power and Steel litigation is the clearest illustration. JSW Steel’s plan was approved by the committee of creditors in 2019 with over 97 per cent of the vote, approved by the NCLT, and upheld with modifications by the NCLAT in February 2020.[5] JSW then implemented it, paying the creditors and taking over the company. On 2 May 2025, a two-judge Bench of the Supreme Court set all of that aside, rejected the plan for non-compliance with Sections 30(2) and 31(2), directed liquidation under Section 33, and ordered that the money paid to creditors be returned within two months. Roughly six years after the process began and more than three years after the plan had been carried out, the company was to be wound up.[6]
What followed was without precedent in this field. On 31 July 2025, a Bench headed by the Chief Justice allowed review petitions and recalled the judgment in its entirety, holding that it had not given due consideration to binding precedent, and directed a fresh hearing with all questions of law open.[7] On 26 September 2025, a three-judge Bench dismissed the original appeals and upheld the plan, observing that allowing them after JSW had revived the company would lead to disastrous results, and that permitting claims to be reopened which were never part of the plan would do violence to the Code.[8]
I think the September judgment is right, and most of the profession agreed with it. But it is worth being honest about how it was reached. Review jurisdiction under Order XLVII is meant for the error apparent on the face of the record. It is not an intra-court appeal. A Bench recalling a reasoned judgment of a coordinate Bench because it disagrees with the reading of precedent, and then rehearing the case from the beginning, is doing something that looks very like an appeal. The Solicitor General’s submissions in July were about the company’s 25,000 employees and the investment JSW had made, which are good reasons to reach a result but not review grounds. Both Benches invoked finality. The May Bench invoked it against the process, the September Bench invoked it in favour of the outcome. That two Benches of the same Court could deploy the same value to opposite ends, five months apart, is itself the point.
The second door: curative
The arbitration equivalent came a year earlier. The dispute between Delhi Metro Rail Corporation and the airport line concessionaire produced an award in 2017 that grew, with interest, to several thousand crore rupees. A single judge dismissed the Section 34 challenge. A Division Bench allowed the Section 37 appeal and set the award aside. The Supreme Court restored the award in September 2021 and dismissed review that November.[9] DMRC then filed a curative petition, and on 10 April 2024, a three-judge Bench allowed it, holding that the 2021 judgment had restored a patently illegal award that saddled a public utility with an exorbitant liability, and that this amounted to a grave miscarriage of justice warranting the power under Article 142.[10]
The Constitution Bench in Rupa Ashok Hurra had described the curative jurisdiction in terms of abuse of process, breach of natural justice and bias, and had said its list was not exhaustive. The DMRC judgment took that opening and added a new species: an award so patently illegal that leaving it in place is itself a miscarriage of justice. The Bench was aware of the danger and said so, warning that curative jurisdiction must not become a fourth or fifth stage of intervention in an arbitral award.[11] But patent illegality is a Section 34 ground.[12] Once the ground that failed at stages one to four can be run again at stage five under a different label, every award-debtor with the means and the motive will try.
The third door: Article 142
The third episode is Gayatri Balasamy v. ISG Novasoft, decided by a Constitution Bench on 30 April 2025 by a majority of four to one.[13] The question was whether a court hearing a Section 34 challenge can modify an award rather than only set it aside. The majority said it can, within limits: it may sever an invalid portion, correct clerical, computational or other manifest errors, and adjust post-award interest. It then went further and held that the Supreme Court may also modify an award under Article 142, exercising the power with great care and within the scheme of the Act.[14]
Justice K.V. Viswanathan’s dissent is the part of the judgment practitioners keep returning to. He held that Section 34 confers no power of modification at all, that the power to set aside and the power to vary are of different kinds, and that Article 142 cannot be used to supply what the statute has deliberately withheld. He also pointed to the enforcement problem: a foreign court asked to enforce an award under the New York Convention has no obvious way to treat a modification made by a constitutional court that is not the arbitral tribunal.[15] The majority’s answer is that the power will be used sparingly. That is an assurance about judicial temperament, not a rule of law, and the difficulty with Article 142 is that it has no statutory grounds by definition. A door that opens on “complete justice” has no frame.
2026: the doors begin to close
What has happened since is the more important story, and it has had less attention. In four judgments this year the Court has moved to restore the position that a concluded commercial matter stays concluded. On 15 April 2026, in Bhartiya Mazdoor Sangh v. State of U.P., a two-judge Bench refused to invoke Article 142 to regularise two decades of unauthorised dealings with the assets of Jaipur Udyog Ltd., holding in terms that the power cannot be used to condone substantive statutory illegalities where Parliament had provided a route and the party had not taken it.[16] Read alongside Gayatri Balasamy, that is a marker: Article 142 is available to tidy up an outcome within a statutory scheme, not to excuse a departure from it.
On the insolvency side, three decisions have hardened the clean slate. In Ujaas Energy (April 2026), the Court held that a counterclaim extinguished for not having been filed in the resolution process cannot come back as a plea of set-off in a later arbitration.[17] In Cosmic CRF v. Myotic Trading (14 May 2026), it held that a claim extinguished by an earlier approved plan cannot be revived even for the purpose of testing a resolution applicant’s eligibility under Section 29A.[18] And in Tata Steel v. Varsha (July 2026), it set aside orders of the Bombay High Court that had allowed an operational creditor’s recovery suit to proceed after plan approval, dismissed a parallel arbitration, and described unquantified claims resurfacing years later as a hydra-headed recurrence that no plan can survive.[19] It also held that an allegation that the plan was procured by fraud cannot be entertained in a collateral proceeding; the only route is an application before the NCLT under Rule 11.[20]
None of these four cases overrules anything decided in 2024 or 2025. What they do is narrow the space in which those decisions can be invoked. The Court reopened three closed cases in fourteen months, saw what that did to the market for resolution plans and awards, and has spent 2026 explaining why it will not do it often.
What this means in practice
First, finality is now a question of probability rather than of kind. Each of the three doors is described as being for the rarest of rare cases. But the rare cases are the large ones, and large money files a curative petition or a review as readily as it files an appeal. Counsel advising on a plan or an award of real size should price in the fifth stage.
Second, for award-holders, the answer to DMRC is speed. An award that has been executed is much harder to disturb than one that is still a paper liability. The 2015 amendment removed the automatic stay on enforcement; use it, and press for deposit conditions under Section 36(3) at the first hearing.[21]
Third, for the legislature, two small things. Section 34 should say in terms whether modification is permitted and, if so, on the three grounds the majority identified, so that the power rests on the statute rather than on Article 142. And the standard for curative intervention in arbitration matters should be written down, confined to the Rupa Hurra grounds, so that patent illegality returns to being a Section 34 question and stops being a fifth-stage one.
Fourth, for the Court itself, the 2026 cases show the way. The most useful thing the Court can do for finality is not to restate the principle but to refuse the next invitation to depart from it, and to say why. Bhartiya Mazdoor Sangh and Tata Steel v. Varsha did exactly that. If that is the pattern for the rest of the year, the three doors will still exist, but the market will once again be able to assume that they are shut.
[1]Section 31(1) of the Insolvency and Bankruptcy Code, 2016. The “clean slate” formulation is from Ghanashyam Mishra and Sons Private Limited v. Edelweiss Asset Reconstruction Company Limited, (2021) 9 SCC 657.
[2]Sections 34 and 35 of the Arbitration and Conciliation Act, 1996. Section 35 provides that an arbitral award shall be final and binding on the parties and persons claiming under them.
[3]Article 137 of the Constitution read with Order XLVII of the Code of Civil Procedure, 1908 and Order XLVII of the Supreme Court Rules, 2013.
[4]Rupa Ashok Hurra v. Ashok Hurra and Another, (2002) 4 SCC 388, decided by a Constitution Bench on 10 April 2002. The Court held that to prevent abuse of its process and to cure a gross miscarriage of justice it may reconsider its own final judgments in exercise of inherent power, and laid down procedural requirements including certification by a Senior Advocate. Justice Banerjee, concurring, applied a test of manifest injustice.
[5]The figure of 97.75 per cent of the committee of creditors was recorded in the submissions of senior counsel for JSW Steel at the review hearing of 31 July 2025. The National Company Law Tribunal approved the plan in September 2019 and the National Company Law Appellate Tribunal upheld it with modifications by its order dated 17 February 2020.
[6]Kalyani Transco v. Bhushan Power and Steel Limited, 2025 SCC OnLine SC 1010, decided on 2 May 2025 (Bela M. Trivedi and Satish Chandra Sharma JJ). The Court held the resolution process vitiated by non-compliance with sections 30(2) and 31(2), quashed the orders of the NCLT and the NCLAT, directed liquidation under Chapter III of the Code, and ordered restitution of amounts paid to creditors and of equity contributions within two months.
[7]Order dated 31 July 2025 allowing the review petitions and recalling the judgment dated 2 May 2025, with all questions of law left open for argument at the final hearing (B.R. Gavai CJ and Satish Chandra Sharma J). The matter was listed for hearing on 7 August 2025.
[8]Kalyani Transco v. Bhushan Power and Steel Limited, 2025 INSC 1165, also reported as 2025 SCC OnLine SC 2093, decided on 26 September 2025 (B.R. Gavai CJ, Satish Chandra Sharma and K. Vinod Chandran JJ). At paragraph 169 the Court held that permitting the reopening of claims which formed no part of the request for resolution plans or of the resolution plan would do violence to the provisions of the Code.
[9]Delhi Airport Metro Express Private Limited v. Delhi Metro Rail Corporation Limited, (2022) 1 SCC 131, decided on 9 September 2021, restoring the award; the review petition was dismissed in November 2021.
[10]Delhi Metro Rail Corporation Limited v. Delhi Airport Metro Express Private Limited, 2024 INSC 292, decided on 10 April 2024 (D.Y. Chandrachud CJ, B.R. Gavai and Surya Kant JJ). The Court held that the curative jurisdiction extends to cases where the Court has acted beyond its jurisdiction resulting in a grave miscarriage of justice, and that by setting aside the judgment of the Division Bench it had restored a patently illegal award which saddled a public utility with an exorbitant liability.
[11]The same judgment cautions that the curative jurisdiction should not be used to open the floodgates and create a fourth or fifth stage of court intervention in an arbitral award under the review or curative jurisdiction respectively.
[12]Patent illegality appearing on the face of the award is a ground of challenge under section 34(2A) of the Arbitration and Conciliation Act, 1996, inserted by the 2015 amendment, and is available only in arbitrations other than international commercial arbitrations.
[13]Gayatri Balasamy v. M/s ISG Novasoft Technologies Limited, 2025 INSC 605, decided on 30 April 2025 by a Constitution Bench (Sanjiv Khanna CJ, B.R. Gavai, P.V. Sanjay Kumar, K.V. Viswanathan and Augustine George Masih JJ), by a majority of four to one.
[14]The majority recognised the power to sever an invalid portion of a severable award, to correct clerical, computational or typographical errors and other manifest errors on the face of the record, and to modify post-award interest; and held that the Supreme Court may modify an award under Article 142, to be exercised with great care and within the structural confines of the Act.
[15]Dissenting opinion of Viswanathan J, running to about 129 pages. He held that the power to set aside and the power to modify do not emanate from the same genus, that severance is permissible under section 34 while modification is not, and that Article 142 cannot be used to override the express legislative scheme. On enforcement he observed that recognising a court-modified award as part of the award for the purposes of the New York Convention would require an express provision in the Act.
[16]Bhartiya Mazdoor Sangh, U.P. and Another v. State of U.P. and Others, 2026 INSC 364, Writ Petition (Civil) No. 392 of 2015 with Contempt Petition (Civil) Diary No. 61491 of 2025, decided on 15 April 2026 (Rajesh Bindal and Vijay Bishnoi JJ). The Court held that legitimate expectation cannot override illegality and declined to invoke Article 142 to regularise the conduct of Gannon Dunkerley and Company Limited, holding that the abatement of the proceedings before the AAIFR under section 252 of the Code following the repeal of the Sick Industrial Companies (Special Provisions) Act, 1985 was automatic, and appointing Justice M.M. Shrivastava, former Chief Justice of the Madras High Court, as Court Administrator.
[17]Ujaas Energy Limited v. West Bengal Power Development Corporation Limited, Civil Appeal No. 3619 of 2026 arising out of SLP (Civil) No. 29651 of 2024, decided in April 2026.
[18]Cosmic CRF Limited v. Myotic Trading Private Limited, decided on 14 May 2026 (J.B. Pardiwala and Ujjal Bhuyan JJ). The Court also held that eligibility under section 29A(c) is to be determined as on the date of submission of the resolution plan.
[19]M/s Tata Steel Limited v. Varsha and Another, 2026 INSC 717, Civil Appeal Nos. 9052-9053 of 2026 arising out of SLP (Civil) Nos. 24000-24001 of 2026, decided in July 2026 (Manoj Misra and Manmohan JJ, judgment authored by Manmohan J). The Court held that only claims crystallised and quantified as on the effective date of 18 May 2018 were payable under the plan, and set aside the orders of the Bombay High Court at Nagpur dated 28 March 2019 and 9 July 2019.
[20]The Court noted that no application under Rule 11 of the National Company Law Tribunal Rules, 2016 had been filed to challenge the approval of the plan, and held that in the absence of such proceedings allegations of manipulation could not be entertained in a collateral appeal. In an afterword the Bench recorded its concern about the position of micro, small and medium enterprises as operational creditors under the Code.
[21]Sections 36(2) and 36(3) of the Arbitration and Conciliation Act, 1996, as substituted by the Arbitration and Conciliation (Amendment) Act, 2015, under which an award is not automatically stayed by the filing of a section 34 application and the court may grant a stay subject to conditions, including deposit.
