M/S Sapphire Media Limited vs Nbcc Services Limited

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 08.04.2026
Judgment pronounced on: 11.05.2026
+ W.P.(C) 4147/2026, CM APPL. 20278/2026, CM APPL. 20279/2026,
CM APPL. 20280/2026 & CM APPL. 22033/2026
M/S SAPPHIRE MEDIA LIMITED .....Petitioner
Through: Mr. Vikas Singh, Sr. Adv. with
Mr. Varun Singh, Ms. Deepika
Kalia, Mr. Sudeep Chandra,
Ms. Kajal Gupta, Mr. Deepashu
Shakargaye, Ms. Urvashi
Chauhan, Ms. Khushi, Advs.
versus
NBCC SERVICES LIMITED & ANR. .....Respondents
Through: Mr. N Prabhakar, Mr. Uday
Sharma & Mr. Shailesh
Sharma, Advs. for NBCC
Mr. Nakul Sehgal & Mr. Prem
Kandpal, Advs. along with AR
of R-2.
CORAM:
HON'BLE MR. JUSTICE ANIL KSHETARPAL
HON'BLE MR. JUSTICE AMIT MAHAJAN
J U D G M E N T
AMIT MAHAJAN, J.
1. By the present petition, the Petitioner challenges the
disqualification of its Technical Bid, communicated vide email dated
28.03.2026 pertaining to the Tender No.
NSL/CEO/IIAC/NIT/2026/845 for “ Interior and Fitout work for IIAC
th th
at 4 & 5 , Tower A, World Trade Centre, Nauroji Nagar, New
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KAUR
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Delhi” for “ India International Arbitration Centre issued by
Respondent No. 1.
2. Briefly stated, the relevant facts circumscribing the adjudication
of the present petition are as follows:
2.1. On 14.03.2026, Respondent No. 1 issued a tender for Interior
and Fitout work for the India International Arbitration Centre. The last
date and time of submission of the online tender was up to 23.03.2026
by 11 PM. The estimated cost of the work was ₹31,64,86,727/-. As
per the Notice Inviting Tender (‘ NIT ’), the eligibility criteria required
the bidder to furnish, inter alia, in Form E, a self-certified Bank
Solvency Certificate issued by a Nationalised or Scheduled Bank for
an amount that was not less than 40% of the estimated cost of work
and issued within 6 months from the original last date of submission
of tender. The relevant clause is reproduced as follows:
“Self-Certified copy of Bank Solvency Certificate issued from
Nationalized or any Schedule Bank should be one in number for at
least 40% of the estimated cost of the project put to tender. The
certificate should have been issued within 6 months from original
last date of the submission of the tender.”
2.2. The Petitioner submitted its comprehensive bid including a
financial offer of ₹20,67,29,130.08/- on 22.03.2026. Along with the
Bid, the Petitioner submitted two solvency certificates – one issued by
Axis Bank dated 30.08.2025 and another issued by Kotak Mahindra
Bank dated 12.03.2025. By communication dated 24.03.2026,
Respondent No. 1 issued certain technical objections and sought
clarifications regarding the Petitioner’s financial documentation.
Amongst other things, the communication dated 24.03.2026 specified
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that the Bank Solvency Certificate submitted by the bidder/Petitioner
was not in line with the uploaded NIT. The same is reproduced as
follows:
“Bank solvency certificate is submitted by the bidder, however the
submitted solvency certificate is not inline with the uploaded NIT
“Self-Certified copy of Bank Solvency Certificate issued from
Nationalized or any Schedule Bank should be one in number for at
least 40% of the estimated cost of the project put to tender. The
certificate should have been issued within 6 months from original
last date of the submission of the tender”, the bank solvency
certificate submitted is beyond the period of 6 months earlier from
the date of the submission of the NIT (Expired). Further, solvency
certificate submitted by the bidder is in the name of NBCC (India)
limited and maha Mumbai metro operation limited. Revised
solvency certificate to be submitted issued by the bank from the
date prior to the last date of the submission of the Tender as per
NIT.”
2.3. The clarification sought required the Petitioner to submit query
related documents by 25.03.2026 up to 5 PM positively. In response
thereof, the Petitioner submitted two certificates – one issued by
Kotak Mahindra Bank dated 23.03.2026 (₹35 crores) and another
issued by PNB dated 11.02.2026 (₹15 crores). On 28.03.2026,
Respondent No. 1 issued an email, thereby disqualifying the Petitioner
for “ not meeting the eligibility criterion” without assigning any
reasons. Aggrieved by the same, the Petitioner has filed the present
writ petition.
3. The learned Senior counsel for the Petitioner submitted that the
Solvency Certificates submitted by the Petitioner at the stage of
clarification fully complied with the conditions stipulated in the
tender. He submitted that the revised Solvency Certificates – one from
Kotak Mahindra Bank (₹35 crores) dated 23.03.2026 and other from
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Punjab National Bank (‘ PNB ’) (₹15 crores) dated 11.02.2026
independently satisfied the criterion and also exceeded the 40%
financial threshold demanded by Clause 2(B)(iii) of the NIT. He
submitted that in such circumstances, the Respondent’s decision to
reject the Petitioner’s bid is patently arbitrary, perverse and the same
defeats the primary objective of maximising public value through
competitive bidding.
4. He submitted that once the Respondent admitted that
clarificatory documents could be used to cure defects, it was not open
to them to simply reject the certificate issued by PNB merely because
it was a fresh document. He submitted that Note 4 to Clause 20 of the
NIT, by itself, stipulated that no fresh document other than in the form
of clarification/revision in respect of an already submitted document
shall be accepted. He submitted that by that standard, the PNB
certificate constituted a valid ‘ revision ’ of the financial strength
documentation that was already placed on record.
5. He relied upon the counter affidavit of Respondent No. 1 to
argue that as per Respondent No. 1’s own admission, the certificate
issued by PNB fulfilled the criteria stipulated in the tender. He
submitted that the purpose of Solvency Certificate is only to
demonstrate that the bidder possessed the requisite financial capacity
and the same was adequately done by the PNB certificate. He
submitted that in such a scenario, rejecting the PNB certificate merely
because it was “ new ” despite having invited the Petitioner to submit a
revised solvency certificate is patently arbitrary.
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6. He submitted that even otherwise, the Kotak Mahindra Bank
certificate dated 23.03.2026 was a direct clarification and revision of
the earlier certificate provided by the same bank. He submitted that
the primary ground taken by Respondent No. 1 to reject the certificate
issued by Kotak Mahindra Bank stemmed from a misreading of
Clause 2(B)(iii) of the NIT which provided that “the solvency
certificate…. should have been issued within 6 months from the
original last date of submission of the tender. ” He submitted that
Respondent No. 1 is attempting to read into the said clause a
requirement that the balance sheets/financial data on which the bank
bases the certificate must also be from the last 6 months and
consequently the averment that the certificate should have highlighted
the solvency of the Petitioner with effect from 23.09.2025 as against
23.03.2026 is an illegal post facto addition to the tender terms.
7. He submitted that the requirement stipulated is the date of
issuance as opposed to the date of the underlying bank records. He
submitted that Respondent No. 1’s insistence on base data constitutes
an impermissible alteration to the NIT, and the same has been urged
only with a view to exclude the Petitioner. He submitted that the
Kotak Mahindra Bank Certificate in the end also stated that the same
“ is valid for 6 months from the date of issuance.” He consequently
submitted that said certificates evidenced that the Petitioner was
solvent on the date of issuance of the certificate.
8. He submitted that even if this Court were to consider the
objections of Respondent No. 1, it is apparent from a perusal of the
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solvency certificate submitted by Respondent No. 2 that the same was
also not in terms of ‘Form E’ despite which the same has been
accepted. He submitted that the solvency certificate submitted by
Respondent No. 2 does not say if Respondent No. 2 is solvent on the
said date of issuance but provides that the certificate was based on
“ last thirteen years as per bank record.”
9. He submitted that the financial bid of the Petitioner is of
₹20,67,29,130.08/- which is substantially lower than the financial bid
of Respondent No. 2 which was at ₹21,80,59,354/-. He relied upon the
judgment of the Hon’ble Apex Court in the case of Shanti
Construction (P) Ltd. v. State of Odisha : 2025 SCC OnLine SC
2368 and submitted that the primary objective of any tender process is
maximization of public value through a process that is fair, transparent
and competitive. He submitted that the tender evaluation committee is
expected to apply its mind reasonably to the information provided so
as to gain maximum benefit for the public exchequer. He
consequently prayed that the present petition be allowed and
Respondent No. 1 be directed to consider the Petitioner’s financial bid
and declare the Petitioner as L1 bidder.
10. The learned counsel for Respondent No. 1 submitted that the
present petition is without any merit and does not warrant any
interference by this Court. He submitted that in response to the
clarification sought by Respondent No. 1, the Petitioner submitted two
solvency certificates – one by Kotak Mahindra Bank dated 23.03.2026
and the other by PNB dated 11.02.2026. In relation to the certificate
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issued by the Kotak Mahindra Bank, it was submitted that while the
certificate per se was dated 23.03.2026, the same only evidenced the
solvency of the Petitioner as on 31.03.2025 and not with effect from
23.09.2025 as required and up to 23.03.2026.
11. Insofar as the certificate issued by PNB is concerned, the
learned counsel for Respondent No. 1 submitted that the said
certificate though fulfilled the criterion stipulated in Clause 2(B) of
the NIT, the same was a new document which had neither been
uploaded online nor did it form part of the original tender. He
submitted that the “revision” as stipulated by the communication
dated 24.03.2026 only sought revision in respect of the documents
that had already been filed and no new document was required to be
filed.
12. The learned counsel on behalf of Respondent No. 2 submitted
that the present petition ought to be dismissed as no mala fide has
been shown. He submitted that as per paragraph 19(i) of the NIT, the
bidder was required to upload “ Self-certified copy of Bank Solvency
Certificate- FORM-E ”. He submitted that the question before this
Court is not whether the Petitioner was solvent or not but whether the
Petitioner complied with the requirement stipulated in the tender
documents.
13. He drew the attention of this Court to note 4 under paragraph 19
of the NIT which laid down that “ the bidders are advised to upload
complete details with their bids as Technical Bid Evaluation will be
done on the basis of documents uploaded on the website by the
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bidders with the bids. Please note no fresh document other than in the
form of clarification/revision in respect of an already submitted
document shall be accepted after last date of submission of bids ” and
argued that as per the conditions itself, no fresh document could have
been filed. He submitted that even the query raised in respect of the
previously submitted document stated that the Bank Solvency
Certificate was expired and in different name. He submitted that the
same makes it clear that the query did not pertain to solvency of the
Petitioner per se and consequently no fresh document in the name of
the Petitioner being solvent could have been filed.
14. He submitted that even otherwise, much emphasis has been laid
on the PNB certificate that the same ought to have been considered.
He submitted that the PNB certificate dated 11.02.2026 was well
within the knowledge of the Petitioner at the time when the bid was
submitted, and yet the Petitioner chose to not rely upon the same. He
submitted that at this stage, when the Tender conditions clearly
stipulate that no fresh document ought to be filed, and clause 2(B) of
the NIT also requires that only one certificate ought to be filed, no
deviation from the tender conditions can be made. He submitted that
interference in the decision of the tender making authority is only
permissible if the decision is marred with mala fide.
Analysis
15. Before this Court embarks on the journey to delve into the
examination of the merits of the case, at the outset, it is apposite to
briefly note the scope of judicial review in matters pertaining to public
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auction/tender. It is not in doubt that the terms concerning the
invitation to tender and its consequential evaluation thereof primarily
falls within the domain of executive discretion. The Tender Evaluation
Committee, more often than not, comprises a body of experts who are
best suited to determine the financial and technical merits of the bids
received. This Court therefore does not sit as a Court of appeal but
merely reviews the manner in which the decision was made. For this
reason, plausible decisions ought not to be interfered with and latitude
also ought to be granted to the State to exercise its executive power.
At the same time, it is pertinent to note that the circumspection
involved in exercise of jurisdiction does not tantamount to mean that
the actions of the State or its instrumentalities are beyond scrutiny.
Pertinently, the scope of judicial review in matters relating to tender
has been navigated by the Hon’ble Apex Court in several judgments
and it has consistently been emphasised that accusations of illegality,
irrationality and procedural impropriety would suffice for Courts to
assume jurisdiction to remedy such defects. In the case of State of
Punjab v. Mehar Din : (2022) 5 SCC 648, the Hon’ble Apex Court
while considering the principles pertaining to the exercise of judicial
interference as evolved over time, observed as follows:
“21. In Tata Cellular v. Union of India [Tata Cellular v. Union of
India, (1994) 6 SCC 651] it was held that judicial review of
government contracts is permissible in order to prevent
arbitrariness or favouritism. It was fearlessly opined in this case as
under : (SCC pp. 687-88, para 94)
“94. The principles deducible from the above are:
(1) The modern trend points to judicial restraint in
administrative action.
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(2) The court does not sit as a court of appeal but merely
reviews the manner in which the decision was made.
(3) The court does not have the expertise to correct the
administrative decision. If a review of the administrative
decision is permitted it will be substituting its own
decision, without the necessary expertise which itself may
be fallible.
(4) The terms of the invitation to tender cannot be open to
judicial scrutiny because the invitation to tender is in the
realm of contract. Normally speaking, the decision to
accept the tender or award the contract is reached by
process of negotiations through several tiers. More often
than not, such decisions are made qualitatively by experts.
(5) The Government must have freedom of contract. In
other words, a fair play in the joints is a necessary
concomitant for an administrative body functioning in an
administrative sphere or quasi-administrative sphere.
However, the decision must not only be tested by the
application of Wednesbury principle of reasonableness
(including its other facts pointed out above) but must be
free from arbitrariness not affected by bias or actuated by
mala fides.
(6) Quashing decisions may impose heavy administrative
burden on the administration and lead to increased and
unbudgeted expenditure.”
22. The exposition of law on the subject has been consistently
followed by this Court even in the later decisions holding that
superior courts should not interfere in the matters of tenders,
unless substantial public interest was involved or the transaction
was mala fide. It was consistently stressed by this Court that the
need for overwhelming public interest should always be kept in
mind to justify judicial intervention in contracts involving the State
and its instrumentalities and while exercising power of judicial
review in relation to contracts, the courts should consider
primarily the question whether there has been any infirmity in the
decision-making process.
23. This view has been further considered by this Court in Jagdish
Mandal v. State of Orissa [Jagdish Mandal v. State of Orissa,
(2007) 14 SCC 517] , wherein it was observed as under : (SCC p.
531, para 22)
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“22. Judicial review of administrative action is intended
to prevent arbitrariness, irrationality, unreasonableness,
bias and mala fides. Its purpose is to check whether choice
or decision is made “lawfully” and not to check whether
choice or decision is “sound”. When the power of judicial
review is invoked in matters relating to tenders or award
of contracts, certain special features should be borne in
mind. A contract is a commercial transaction. Evaluating
tenders and awarding contracts are essentially
commercial functions. Principles of equity and natural
justice stay at a distance. If the decision relating to award
of contract is bona fide and is in public interest, courts
will not, in exercise of power of judicial review, interfere
even if a procedural aberration or error in assessment or
prejudice to a tenderer, is made out. The power of judicial
review will not be permitted to be invoked to protect
private interest at the cost of public interest, or to decide
contractual disputes. The tenderer or contractor with a
grievance can always seek damages in a civil court.
Attempts by unsuccessful tenderers with imaginary
grievances, wounded pride and business rivalry, to make
mountains out of molehills of some technical/procedural
violation or some prejudice to self, and persuade courts to
interfere by exercising power of judicial review, should be
resisted. Such interferences, either interim or final, may
hold up public works for years, or delay relief and succour
to thousands and millions and may increase the project
cost manifold.”
xxx
25 . The law on the subject is settled that the courts being the
custodian of fundamental rights are under an obligation to
interfere where there is arbitrariness, irrationality,
unreasonableness, mala fides and bias, if any, but at the same
time, the courts should exercise the power of judicial review with
a lot of restraint, particularly in contractual and commercial
matters. ”
(emphasis supplied)
16. From a reading of the judgment as quoted supra, it materialises
that while there are inherent limitations to the exercise of judicial
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review, the power may be invoked to obviate favouritism,
arbitrariness, irrationality and unreasonableness.
17. Turning the gaze now to the facts of the present case, it is
pertinent to note that post the communication dated 24.03.2026
(whereby clarification was sought from the Petitioner in respect of the
solvency certificate submitted as part of the original tender
submission) – the Petitioner was invited to submit revised solvency
certificate issued by the bank from the date prior to the last date of the
submission of the tender. In response thereof, the Petitioner submitted
two revised solvency certificates – one issued by Kotak Mahindra
Bank dated 23.03.2026 and another issued by PNB dated 11.02.2026.
18. Both the certificates came to be rejected by Respondent No. 1.
On the first hand, the certificate from Kotak Mahindra Bank dated
23.03.2026 came to be rejected on the ground that the same only
evidenced the solvency of the Petitioner as on 31.03.2025 and not
with effect from 23.09.2025 as required and upto 23.03.2026. On the
other hand, the certificate dated 11.02.2026 issued by PNB though
admittedly considered to be fulfilling the terms of the advertisement
also came to be rejected on the ground that it was a new document that
had neither been uploaded online nor was it a part of the original
tender submission.
19. It is the case of the Petitioner that both the revised certificates
independently satisfied and vastly exceeded the 40% threshold
mandated by the terms of the NIT. It has consequently been
emphasised by the Petitioner that the illegal rejection of these two
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solvency certificates submitted at the clarification stage is arbitrary
and based on a hyper-technical interpretation that defeats the primary
objective of maximising public value through competitive bidding.
20. In that regard, before delving into an analysis of the grounds
agitated by the Petitioner threadbare, it would be apposite to look into
the relevant clause encapsulated in the NIT in relation to submission
of bank solvency certificate. The relevant clause is as follows:
“iii) Self-Certified copy of Bank Solvency Certificate issued from
Nationalized or any Schedule Bank should be one in number for at
least 40% of the estimated cost of the project put to tender. The
certificate should have been issued within 6 months from original
last date of the submission of the tender.
Note: Bank Solvency Certificate is not required if estimated cost
put to tender is up to Rs. 25 Crore.”
21. From a reading of the same, it transpires that Clause 2(B)(iii) of
the NIT only mandated that the certificate should have been issued
within 6 months from the original last date of the submission of the
tender. A bare reading of the clause materialises that the same is
vague and does not in unequivocal terms define what the term ‘ issued
within 6 months ’ encapsulates. It also unclear whether the term ‘ issued
within 6 months ’ mandated the bidder to perchance provide a
certificate evidencing the bidder’s solvency for a period between
23.09.2025 – 23.03.2026 or whether the same only required the bidder
to provide a certificate that was obtained from the bank within 6
months from the original last date of the submission of the tender.
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22. Further, the communication dated 24.03.2026 whereby the
Petitioner was invited to submit revised solvency certificate also laid
down only the following :
23. The clarification sought, as reproduced above, only provided
that “ the bank solvency certificate submitted is beyond the period of 6
months earlier from the date of submission of the NIT (expired).
Further, solvency certificate submitted by the bidder is in the name of
NBCC (India) limited and maha Mumbai metro operation limited.”
As is apparent, the said communication is also vague and only
provides that the certificates submitted by the Petitioner were beyond
06 months. As is plain from a reading of the communication itself,
whether the same necessitated the Petitioner to provide a revised
certificate evidencing solvency for a particular period or whether the
same only mandated submission of a certificate obtained within 6
months from the original last date of the submission of the tender
remains enigmatic.
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24. From that prism, this Court now turns to inspect the relevant
certificates furnished by the Petitioner. Pertinently, at the time of
original tender submission, the Petitioner submitted two certificates –
one issued by Axis Bank dated 30.08.2025 and addressed to Maha
Mumbai Metro Operation Limited, and another issued by Kotak
Mahindra Bank dated 12.03.2025 and addressed to Respondent No. 1
based on tangible net-worth as on 31.03.2024. In its communication
dated 24.03.2026, Respondent No. 1 only stated that the certificates
furnished by the Petitioner were beyond a period of 6 months and
were in a different name. The clarification, in unequivocal terms, at no
place invited the Petitioner to submit a revised solvency certificate
pertaining to a particular period, for instance, to evidence solvency
between “23.09.2025-23.03.2026”. Clause 2(B)(iii) of the NIT as well
as the clarification merely required the bidder to furnish a certificate
‘ issued ’ by the bank within 6 months from original last date of the
submission of the tender.
25. Interestingly, if this Court were to look at the Kotak Mahindra
Bank certificate dated 12.03.2025 which formed part of the original
tender submission, it is apparent that the same was based on tangible
net worth as on 31.03.2024. If it were the mandate of the NIT that the
solvency certificate ought to have been based on tangible net worth
between 23.09.2025 – 23.03.2026 as claimed by Respondent No. 1
before this Court to reject the revised certificate, they could very well
have sought clarification on that aspect as well stating that the
submitted certificate only evidenced tangible net worth as on
31.03.2024.
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26. On such a conspectus of facts, this Court now turns its attention
to the revised certificates furnished by the Petitioner. Insofar as the
certificate issued by Kotak Mahindra Bank is concerned, the same was
issued on 23.03.2026 - which undoubtedly, in the opinion of this
Court, meets the criteria stipulated in the NIT, that is, the certificate
should have been issued within 6 months from original last date of the
submission of the tender . As noted above, no definition was provided
as to what the term date of issuance stipulated. Further, the
clarification too did not provide that the revised certificate ought to
have been based on the tangible net worth for a particular period.
Solvency certificates are generally based on audited balance sheets
and for that reason merely because the certificate noted that the same
was based on tangible net worth as on 31.03.2025 as per audited
financials provided by the company, the same cannot by itself mean
that the revised certificate failed to meet the criteria stipulated in the
NIT, particularly in the absence of any unambiguous directions
provided in the NIT itself or the communication dated 24.03.2026.
The argument thus taken by Respondent No. 1 that while the
certificate per se was dated 23.03.2026, the same only evidenced the
solvency of the Petitioner as on 31.03.2025 and not with effect from
23.09.2025 as required and up to 23.03.2026, in the opinion of this
Court, holds no water.
27. Even so, assuming that the certificate issued by Kotak
Mahindra Bank dated 23.03.2026 failed to meet the requisite criteria,
admittedly as per the case of Respondent No. 1 itself, the certificate
dated 11.02.2026 issued by PNB was in accordance with the terms of
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the NIT. The only ground taken by Respondent No. 1 to reject the said
certificate is that the PNB certificate was a new document which had
neither been uploaded online nor did it form part of the original
tender. It has been emphasised that the term “revision” as stipulated
by the communication dated 24.03.2026 only sought revision in
respect of the documents that had already been submitted and no new
document was required to be filed.
28. As far as the contention in relation to the certificate issued by
PNB is concerned, this Court finds itself at odds with the stance taken
by Respondent No. 1. The PNB certificate submitted by the Petitioner
was in the nature of clarification and was submitted pursuant to
Respondent No. 1 inviting the Petitioner to submit revised solvency
certificate issued by the bank from the sate prior to the last date of the
submission of the tender as per NIT. Once Respondent No. 1
themselves invited the Petitioner to submit a revised document, and
the same was in the nature of clarification, the PNB certificate could
not have been rejected merely on the ground that it was a fresh/new
document when it otherwise fulfilled the other terms of the NIT. Such
hyper-technical objections to reject the bidder, in the opinion of this
Court, defeats the very objective of a tender process which is to
encourage maximum participation in a fair manner.
29. It has consistently been emphasised that the chief objective of a
tender process is maximization of public value through a fair,
transparent and competitive tender process. Bearing the aforesaid
principle in mind, the tender evaluation committee is expected to sift
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through the material in a manner that derives maximum benefit for the
public exchequer. Consequently, exclusion of bidders merely on a
myopic view or on hyper-technical grounds would be akin to
defeating the very object of a tender process (Ref. Shanti
Construction (P) Ltd. v. State of Odisha and Others : 2025 SCC
OnLine SC 2368; MDC Pharmaceuticals Ltd. v. Union of India :
2022 SCC OnLine Del 488 ).
30. In the light of the foregoing, the disqualification of the
Petitioner’s technical bid vide email dated 28.03.2026 is set aside.
Respondent No. 1 is, therefore, directed to consider the bid of the
Petitioner in terms of the conditions stipulated in the NIT and
thereafter take appropriate decision to award the tender to the best
suited bidder.
31. The present petition is disposed of in the aforesaid terms.
AMIT MAHAJAN, J.
ANIL KSHETARPAL, J.
MAY 11, 2026
“SS”/“SK”
Signature Not Verified
Signed By:HARMINDER
KAUR
Signing Date:11.05.2026
15:00:36
W.P.(C) 4147/2026 Page 18 of 18