JUDGMENT : MOKSHA KHAJURIA KAZMI, J. Caveat No. 2230/2023 Heard learned counsel for the caveators. Caveat discharged. FAO No. 24/2023 1. By this Civil Miscellaneous Appeal, the appellants have invoked the jurisdiction under Order XLIII of the Civil Procedure Code, thereby challenging the order dated 08.09.2023, passed in File No. S/280/23 titled as M/s Saptagiri Restaurant Private Limited vs. Airport Authority of India and Another, by the Court of learned Additional District Judge, Fast Track, Budgam, whereunder two applications have been disposed of, one filed by the respondent/plaintiff for grant of interim relief and other filed by appellants/defendants seeking vacation of the interim order dated 22.08.2023 to the extent of holding respondent/plaintiff therein eligible for participation in the tendering process and also directing appellant No. 2 to open the bids, including that of respondent/plaintiff therein. Factual matrix of the case: 2. Appellants herein issued notice, inviting e-tender (NIET) for Short-Term License to operate Food and Beverages outlets (SHA) F/F and Arrival at Srinagar, International Airport, Srinagar bearing tender reference No. AAI/SXR/Comml/F&B/400/2023 E-bid No. 2023-AAI-163246 dated 03.08.2023. 3. In response to the tender notice various participants applied. The respondent also submitted his tender which was not updated and amount remitted to the tune of Rs.11.23 lacs towards cost of tender and EMD to the Bank (State Bank of India) in favour of appellants and the transaction was shown as pending on E-portal. The respondent through email dated 10.08.2023 addressed to the appellants, prayed for extension of the last date of submission of bid. The appellants informed respondent on 11.08.2023 through email with the following information: “as per information available with this office M/s Saptagiri, Restaurant Private Limited, L-322 Mahipalpur, Extension, New Delhi-110037, has been recently debarred for further participation in AAI tender for a period of three years, therefore, the submission of EMD, tender cost and further request for extension has no relevance.” 4. It is stated that while finalizing the tendering process, the appellants on 21.08.2023, observed “under the column of technical bids/opening summary/sub class summary” that four bids have been received, three are admitted and one non-admitted due to debarment action by AAI, Chennai and Amritsar. 5. It is stated that while finalizing the tendering process, the appellants on 21.08.2023, observed “under the column of technical bids/opening summary/sub class summary” that four bids have been received, three are admitted and one non-admitted due to debarment action by AAI, Chennai and Amritsar. 5. Being aggrieved of the tender summary report, respondent filed civil suit for declaration, perpetual injunction and mandatory injunction before learned Additional District Judge Fast Track Budgam, wherein he had sought various reliefs, more particularly decree of declaration to declare the action of the appellants of debarring the respondent/plaintiff from participating in the tender floated by the appellants as illegal and arbitrary and also a decree of declaration, declaring the debarment orders dated 26.07.2023 and 08.08.2023, issued by appellants at Chennai and Amritsar Airports, not applicable to the tender notice issued by the appellants at Srinagar and also a decree of perpetual injunction, restraining the respondent from debarring him to participate in the tender in question. 6. The learned Additional District Judge, Fast Track, Budgam, after consideration of the suit and interim application passed an order dated 22.08.2023, whereby the appellants were directed to allow the respondent/plaintiff to participate in the tendering process in terms of the tender dated 08.03.2023 with further direction to the appellants not to finalize the tendering process without orders of the Court. The appellants filed an application seeking vacation of the interim order dated 22.08.2023 and in opposition to the said application, a detailed reply was filed by the respondent. The appellants also filed detailed written statement in opposition to the main suit and objections to the interim application. 7. It is stated that both the applications were heard and decided in terms of impugned order dated 08.09.2023 and while disposing of both the applications, the learned Court of Additional District Judge, Budgam has held respondent eligible to participate in the tendering process and has also directed the appellants to open the bids, including that of the respondent/plaintiff and proceed in terms of the relevant provisions of law, taking into consideration the rules applicable and conclude the process. Paragraphs 33 to 35 being relevant are extracted as under: “33. Paragraphs 33 to 35 being relevant are extracted as under: “33. Plaintiff has already submitted his tender and defendants have opened the technical bid and are required to open the financial bid and restricting a person from participating in the tendering process while being eligible will be against the business policy as the same will deprive the plaintiff from his livelihood and it cannot be compensated thereafter by any means whatsoever, as such, it is the plaintiff shall suffer the irreparable loss which cannot be compensated thereafter. 34. Having regards to what has been stated herein above, and taking into consideration the submissions of both the sides and also the documents placed on file, I am of the considered view that the plaintiff has been able to make out a case in his favour and accordingly defendant No. 2 is directed to open the bids including that of the plaintiff and proceed in terms of relevant provisions of law taking into consideration the rules applicable and conclude the process. 35. However, expression of opinion, if any made herein above, shall not in any way be construed to have any effect on the disposal of the main suit.” Arguments raised by the learned counsels for the parties: 8. Learned counsel for the appellants Mr. M.M. Dar, has submitted that learned Additional District Judge, Fast Track, Budgam has erred in law while holding respondent eligible for participating in the tendering process, thereby directing the appellants to open his bid when admittedly the respondent is ineligible in terms of clause 12(a) of the tender document, which is reproduced as under: “Any party either a firm or an individual falling under the following categories is not eligible: Debarred/black listed by CBI or AAI or undertakings/departments like railway, defence or any other department of Government of India, State Government department etc. a declaration to this effect is also to be submitted by the party with tender documents.” 9. It is further submitted that the learned Additional District Judge, Fast Track, Budgam has wrongly concluded that the debarments pertaining to respondent were with respect to Airports at Chennai and Amritsar only and cannot be made basis for debarring the respondent at Srinagar Airport also, that too, without examining the contents of the order dated 08.09.2023, issued by the appellants. It is further submitted that the learned Additional District Judge, Fast Track, Budgam has wrongly concluded that the debarments pertaining to respondent were with respect to Airports at Chennai and Amritsar only and cannot be made basis for debarring the respondent at Srinagar Airport also, that too, without examining the contents of the order dated 08.09.2023, issued by the appellants. Learned counsel for the appellants have relied upon e-mail dated 08-09-2023, of Assistant Manager, Airport Authority of India, whereby, in reference to AAI Amritsar, Airport letter dated 08.08.2023, it is mentioned that the competent authority has debarred M/s Saptagiri Restaurant Private Limited for further participation in AAI tender for a period of three years. 10. Per contra, the learned counsel for the caveator/respondent Mr. Anil Bhan Senior counsel, has submitted that the respondent has been carrying on the business of managing restaurants and other related services for past 23 years, and has been running various Food and Beverage Outlets, Restaurants, Spa, Massage, Chair Facility, etc. in the Airports all over the country for the last two decades or so. It is submitted that respondent has been operating and is currently running about 150 facilities at least in 16 Airports across the country. 11. It is submitted that the respondent participated in the tender process at Chennai and Amritsar, but was debarred to participate in the tender process ostensibly on the ground that the employee of the plaintiff namely Mr. Karan Singh, proprietor of M/s Syona Spa, who happened to be an employee of the respondent company, had availed the benefits like ESI PF, etc. and also an Airport Employee Pass was issued to Mr. Karan Singh by the Bureau of Civil Aviation security in the name of M/s Saptagiri Restaurants Private Limited. It was alleged that said Mr. Karan Singh had availed a loan from the respondent and as such there was a conflict of interest as per the RFP provisions contained in the notice inviting E-tenders. The respondent lost no time in submitting his reply contending therein that the allegations were unfounded, baseless and engineered at the instance of the business rivals. So far as the tender pertaining to Chennai Airport is concerned, an illegal order was issued by virtue of which the respondent was debarred to participate in any tenders floated by Airport Director AAI at Chennai Airport. 12. So far as the tender pertaining to Chennai Airport is concerned, an illegal order was issued by virtue of which the respondent was debarred to participate in any tenders floated by Airport Director AAI at Chennai Airport. 12. It is submitted that the respondent had filed writ petition bearing number-23446 of 2023 before the High Court of Madras and the said Court, in terms of order dated 09.08.2023, directed the appellants herein, not to do anything in pursuance to the proceedings dated 26.07.2023, initiated by them and affect the commercial activities of the respondent in any way. The order dated 26.07.2023 debarring the respondent was also stayed. 13. It is further submitted that in terms of order dated 08.08.2023, respondent was debarred from participating in any tenders floated by Airport, Director AAI at Amritsar, for a period of three years ostensibly on the ground of conflict of interest and material representation. The respondent was again constrained to approach High Court of Punjab and Haryana at Chandigarh by way of a civil writ petition No. 17635 of 2023. Upon consideration of the mater, the respondent was advised to withdraw the writ petition and approach the Dispute Redressal Committee for redressal of its grievance and accordingly, a consent order was passed granting liberty to the respondent to approach the Dispute Redressal Committee. It is submitted that the debarment orders pertaining to Chennai Airport and Amritsar Airport cannot be applied to the tender floated at Srinagar as both the orders are confined to Chennai and Amritsar, respectively. 14. Learned Senior counsel for the respondent Mr. Anil Bhan, has submitted that in terms of the commercial manual 2019, 8.12.4, there are certain steps required to be followed for debarring an agency. Clause 8.12.4 of the commercial manual 2019, is reproduced as under: “8.12.4 Steps to be taken for debarring an Agency: (i) In the first instance, a show cause notice shall be issued by the concerned Airport Director for violation of breach of concession/license in respect of circumstances/ conditions as mentioned above, as the case may be. A timeframe i.e. 10 days from the issue of show cause notice should be indicated for replying to the show cause notice. A timeframe i.e. 10 days from the issue of show cause notice should be indicated for replying to the show cause notice. (ii) On receipt of the reply or after time period to reply is over, as the case may be, the tender processing officer of the station concerned will process the case with all facts and supporting documents and place the same before LCAC/RCAC for consideration/ deliberation. (iii) An opportunity should be given for a personal hearing to the delinquent agency to place his submission by the accepting authority. (iv) The LCAC/RCAC will examine and verify the facts and recommend the course of action for the approval of the accepting authority. The competent authority as per DOP shall give its decision on the recommendation of LCAC/RCAC/CAB, as the case may be, for debarment. (v) Once the approval is received by the Department of Commercial, a communication shall be sent to the delinquent agency for debarment outlining the breaches mentioning the period of debarment and description of concessions/licenses etc. PAN of the agency should also be mentioned in the debarment order. A general notice is to be issued and circulated to all the Airports, regional offices and also pasted on the notice boards/uploaded on AAI Website for wide publicity. [Link: AAI Website-Tenders-Restraint on Issue of tender for AAI works] (format for the debarment is in annexure XI). (vi) The agency will be intimated about the debarring by Airport/RHQ/CHQ, as the case may be. (vii) The complete process should be done within a maximum period of sixty days from the date of show cause notice. (viii) The debarred agency may make an appeal to the next higher authority against the debarment who after deliberation will give its decision.” 15. It is submitted that the respondent had submitted an undertaking regarding debarment/backlisting strictly in terms with clause 12(a) of the tender document. As per the manual, no steps have been taken by the appellants herein as such the action of the appellants is in clear violation of the commercial manual 2019. It is further submitted that though the respondent has been debarred by Airport Director AAI Chennai and Amritsar, but that cannot be construed as debarment by AAI all over the country. No powers have been delegated upon Airport Director, Chennai and Amritsar to debar anyone on behalf of the competent authority of AAI, in terms of delegation of powers of 2021. No powers have been delegated upon Airport Director, Chennai and Amritsar to debar anyone on behalf of the competent authority of AAI, in terms of delegation of powers of 2021. As such appellant No. 2 had no authority to debar and not to accept the bid of the respondent on the basis of the debarment orders issued by Airport Director, Chennai and Amritsar. 16. Learned senior counsel, Mr. Anil Bhan has relied upon judgment of the Apex Court rendered in case titled as Erusian Equipment and Chemicals Ltd. and Others vs. State of West Bengal and Others, (1975) 1 SCC 70 . Paragraph 20 of the said Judgment being relevant is extracted as under: “20. Blacklisting has the effect of preventing a person from the privilege and advantage of entering into lawful relationship with the Government for purposes of gains. The fact that a disability is created by the order of blacklisting indicates that the relevant authority is to have an objective satisfaction. Fundamentals of fair play require that the person concerned should be given an opportunity to represent his case before he is put on the blacklist.” 17. Learned senior counsel, Mr. Anil Bhan has also relied upon judgment of the Apex Court rendered in case titled as Raghunath Thakur vs. State of Bihar and Others, (1989) 1 SCC 229. Paragraph 4 of the said Judgment being relevant is extracted as under: “4 Indisputably, no notice had been given to the appellant of the proposal of blacklisting the appellant. It was contended on behalf of the State Government that there was no requirement in the rule of giving any prior notice before black-listing any person. In so far as the contention that there is no requirement specifically of giving any notice is concerned, the respondent is right. But it is an implied principle of the rule of law that any order having civil consequence should be passed only after following the principles of natural justice. It has to be realized that black-listing any person in respect of business ventures has civil consequence for the future business of the person concerned in any event. Even if the rules do not express so, it is an elementary principle of natural justice that parties affected by any order should have right of being heard and making representations against the order. Even if the rules do not express so, it is an elementary principle of natural justice that parties affected by any order should have right of being heard and making representations against the order. In that view of the matter, the last portion of the order in so far as it directs blacklisting of the appellant in respect of future contracts, cannot be sustained in law. In the premises, that portion of the order directing that the appellant be placed in the blacklist in respect of future contracts under the Collector is set aside. So far as the cancellation of the bid of the appellant is concerned, that is not affected. This order will, however, not prevent the State Government or the appropriate authorities from taking any future steps for blacklisting the appellant if the Government is so entitled to do so in accordance with law, i.e. giving the appellant due notice and an opportunity of liberty to pass any order in accordance with law indicating the reasons therefore. We, however, make it quite clear that we are not expressing any opinion on the correctness or otherwise of the allegations made against the appellant. The appeal is thus disposed of.” 18. The learned senior counsel for the respondent also referred to and relied upon the Judgments delivered by the Apex Court in case titled Daffodills Pharmaceuticals Ltd. and Others vs. State of U.P and Others, (2020) 18 SCC 550 and UMC Technologies Private Limited vs. Food Corporation of India and Others, (2021) 2 SCC 551 . 19. Heard learned counsel for the parties, perused the material on record and considered the submissions made by the learned counsel for the parties. 20. The appellants herein, have challenged the order impugned dated 08.09.2023, passed by the Court of learned Additional District Judge (Fastrack) Budgam, on the ground that the respondent being ineligible as per clause 12(a) of the tender document had already been debarred by AAI for participating in tendering process for a period of three years. 20. The appellants herein, have challenged the order impugned dated 08.09.2023, passed by the Court of learned Additional District Judge (Fastrack) Budgam, on the ground that the respondent being ineligible as per clause 12(a) of the tender document had already been debarred by AAI for participating in tendering process for a period of three years. The learned Additional District Judge, Fast Track, Budgam without taking into consideration the information already provided to the appellants, with respect to ineligibility of the respondent, on the ground of having been debarred at the Airports of Chennai and in Amritsar, has directed the appellants to open the bid of the respondent and to proceed in terms of relevant provisions of law, taking into consideration the applicable rules and conclude the process. 21. In terms of clause 12 (a) of the tender document, any party either a firm or an individual who has been debarred/blacklisted by CBI or AAI or undertakings/departments like railway, defence or any other department of the Government of India, State Government Department etc. a declaration to this effect is to be submitted by the party with the tender documents. The learned counsel for the respondent has placed on record the undertaking which has been submitted by the respondent on 09.08.2023. It is specifically stated that the firm of the respondent is not restrained/debarred/blacklisted by AAI or central/state Government departments/PSUs/World Bank/ADB etc, except being debarred by the Airport, Director, Chennai Airport, vide letter dated 26.07.2023 and by Airport Director, Amritsar, Airport, vide letter dated 08.08.2023, which has been stayed by the High Court of Chennai in WPMP No. 22980/23 and WP No. 23446/23 before High Court of Punjab and Haryana at Chandigarh, was pending at the time the undertaking was submitted along with the bid by the respondent. 22. Once the respondent has been debarred to participate in the tendering process at Chennai and at Amritsar by Airport Directors of respective Airports, the respondent cannot be deemed to be debarred by AAI throughout the country. The competent authority to debar on behalf of AAI has to be the chairman i.e. appellant No. 1. The learned counsel for the appellant though has placed on record a copy of email which has a reference with respect to AAI Amritsar Airport letter dated 08.08. The competent authority to debar on behalf of AAI has to be the chairman i.e. appellant No. 1. The learned counsel for the appellant though has placed on record a copy of email which has a reference with respect to AAI Amritsar Airport letter dated 08.08. 2023, whereby Assistant Manager, AAI has informed that the competent authority has debarred respondent for further participation in AAI tender for a period of three years, but has failed to show to this court that the competent authority referred to in the said email is in fact the chairman AAI, i.e. Appellant No. 1. 23. As far as clause 12(a) of the tender document is concerned it clearly specifies that a company or the firm should be debarred by AAI and not by any of the Airport Director of State/UT. The learned counsel for the appellants has also failed to justify that the debarment of the respondent by Airport, Director, Chennai and Amritsar has applicability at all the Airports throughout the country. There is a procedure reflected in the commercial manual 2019 in chapter 8.12: Process for debarring. Clause 8.12.4 (supra) steps to be taken for debarring an agency. At the first instance, a show cause notice has to be issued by the concerned Airport Director for violation of breach of concession/license in respect of circumstances/conditions enumerated in clauses 8.12.1, 8.12.2 and 8.12.3. A timeframe of 10 days from issuance of show cause notice has to be indicated for replying to the show cause notice. On receipt of the reply, the tender processing officer of the station concerned has to process the case with all facts and supporting documents and place the same before Local Commercial Advisory Committee (for short “LCAC”) Airport/Regional Commercial Advisory Committee (for short “RCAC”) Region for consideration/ deliberation. An opportunity has to be given for a personal hearing to the delinquent agency to place a submission before the accepting authority. The LCAC/RCAC has to examine and verify the facts and recommend the course of action for the approval of accepting authority. The competent authority as per DOP has to give its decision on the recommendation of LCAC/RCAC/CAB, as the case may be, for debarment. Once the approval is received by the Department of Commercial, a communication has to be sent to the delinquent agency for debarment, outlining the breaches, mentioning the period of debarment and description of concessions/licenses, etc. The competent authority as per DOP has to give its decision on the recommendation of LCAC/RCAC/CAB, as the case may be, for debarment. Once the approval is received by the Department of Commercial, a communication has to be sent to the delinquent agency for debarment, outlining the breaches, mentioning the period of debarment and description of concessions/licenses, etc. The agency has to be intimated about debarring by Airport/RHQ/CHQ, as the case may be. The process has to be completed within a maximum period of 60 days from the date of show cause notice. The debarred agency has a right to make an appeal to the next higher authority against the debarment, who after deliberation has to give its decision. 24. As far as instant case is concerned, none of the steps (supra) have been taken by the appellants to the extent of non-acceptance of tender bid of the respondent dated 03.08.2023, issued by appellant No. 2 Airport Director AAI, UT of Jammu and Kashmir. The respondent was not even informed that his bid will not be accepted, on the reply to the email sent by the respondent he was informed that due to the debarment of the respondent by the Airport Directors at Chennai and Amritsar the bid of the respondent has not been accepted which constrained the respondent to approach the learned Additional District Judge, Fast Track, Budgam. As far as Airport Directors of Chennai and Amritsar are concerned at least procedure was followed to little extent. High Court of Chennai has already stayed the order of debarment passed by Airport Director Chennai dated 26.07.2023, with an observation that the debarment order is far more cryptic with a specific direction that the order of debarment passed by the Airport Director Chennai, should not have any affect on the commercial activities of the petitioner in anyway. It has also not been denied by the appellants that the respondent is still operating in terms of various tenders at 16 Airports and is currently running about 150 facilities throughout the country. 25. The debarment/blacklisting of a firm or company simply signifies a business decision by which the party affected by the breach decides not to enter into any contractual relationship with the party committing the breach. It is between two parties. In the instant case debarment of the respondent firm is between Airport Directors, Chennai/Amritsar and the respondent. 25. The debarment/blacklisting of a firm or company simply signifies a business decision by which the party affected by the breach decides not to enter into any contractual relationship with the party committing the breach. It is between two parties. In the instant case debarment of the respondent firm is between Airport Directors, Chennai/Amritsar and the respondent. The decision has not been taken or approved by the competent authority AAI, which can be made applicable to all the Airport Directors, AAI, throughout the country. In M/s Kulja Industries Ltd. vs. Chief General Manager W.P. Proj. BSNL and Others, (2014) 14 SCC 731 , the Apex Court in paragraph 17 of the said Judgment has held as under: 17. That apart the power to blacklist a contractor whether the contract be for supply of material or equipment or for the execution of any other work whatsoever is in our opinion inherent in the party allotting the contract. There is no need for any such power being specifically conferred by statute or reserved by contractor. That is because ‘blacklisting’ simply signifies a business decision by which the party affected by the breach decides not to enter into any contractual relationship with the party committing the breach. Between two private parties the right to take any such decision is absolute and untrammelled by any constraints whatsoever. The freedom to contract or not to contract is unqualified in the case of private parties. But any such decision is subject to judicial review when the same is taken by the State or any of its instrumentalities. This implies that any such decision will be open to scrutiny not only on the touchstone of the principles of natural justice but also on the doctrine of proportionality. A fair hearing to the party being blacklisted thus becomes an essential pre-condition for a proper exercise of the power and a valid order of blacklisting made pursuant thereto. The order itself being reasonable, fair and proportionate to the gravity of the offence is similarly examinable by a writ Court. A fair hearing to the party being blacklisted thus becomes an essential pre-condition for a proper exercise of the power and a valid order of blacklisting made pursuant thereto. The order itself being reasonable, fair and proportionate to the gravity of the offence is similarly examinable by a writ Court. The legal position on the subject is settled by a long line of decisions rendered by this Court starting with Erusian Equipment and Chemicals Ltd. vs. State of West Bengal and Another, (1975) 1 SCC 70 where this Court declared that blacklisting has the effect of preventing a person from entering into lawful relationship with the Government for purposes of gains and that the Authority passing any such order was required to give a fair hearing before passing an order blacklisting a certain entity. This Court observed: “20. Blacklisting has the effect of preventing a person from the privilege and advantage of entering into lawful relationship with the Government for purposes of gains. The fact that a disability is created by the order of blacklisting indicates that the relevant authority is to have an objective satisfaction. Fundamentals of fair play require that the person concerned should be given an opportunity to represent his case before he is put on the blacklist.” 24. Suffice it to say that ‘debarment’ is recognised and often used as an effective method for disciplining deviant suppliers/contractors who may have committed acts of omission and commission or frauds including misrepresentations, falsification of records and other breaches of the regulations under which such contracts were allotted. What is notable is that the ‘debarment’ is never permanent and the period of debarment would invariably depend upon the nature of the offence committed by the erring contractor. 26. Learned counsel for the appellants has also submitted that the criteria for participating in the tendering process as well as eligibility prescribed therein cannot be altered by this Court unless the same is not proved to be arbitrary or mala-fides in nature. It is submitted that since the bid of the respondent has not been entertained by the appellants which has been admitted by the respondent while addressing email dated 10.08.2023, in which he has stated that his transaction of Rs. It is submitted that since the bid of the respondent has not been entertained by the appellants which has been admitted by the respondent while addressing email dated 10.08.2023, in which he has stated that his transaction of Rs. 11.23 lacs has been shown pending at the portal of the appellants which means that his document has not been received by the appellants, as such, there is no question of opening the bid of the respondent as has been directed by the learned Additional District Judge, Fast Track, Budgam. 27. The learned senior counsel for the respondent Mr. Anil Bhan on asking of this Court has verified from the online portal that the tender bid of the respondent is still available at the E-portal of the appellants. The statement made by the learned senior counsel for the respondent clearly reflects that there can be no reasonable ground for the appellants in not considering the bid of the respondent which is still available on the E-portal of the appellants. 28. It is settled by the Apex Court that the terms and conditions of the invitation to tender are within the domain of the tenderer/tender making authority and are not open to judicial scrutiny, unless they are arbitrary, discriminatory or mala-fide. In the instant case, the action of the appellants is not only discriminatory, biased but also arbitrary in nature. 29. The Apex Court has laid down the guidelines as to how and when the interference of the Courts in contract matters is warranted. Being relevant, paragraph 48 of the Judgment titled Tata Motors Limited vs. The Brihan Mumbai Electric Supply and Transport Undertaking (Best) and Others, 2023 Live Law (SC) 467 is reproduced herein: “48. This Court being the guardian of fundamental rights is duty-bound to interfere when there is arbitrariness, irrationality, mala-fides and bias. However, this Court has cautioned time and again that courts should exercise a lot of restraint while exercising their powers of judicial review in contractual or commercial matters. This Court is normally loathe to interfere in contractual matters unless a clear-cut case of arbitrariness or mala-fides or bias or irrationality is made out. One must remember that today many public sector undertakings compete with the private industry. The contracts entered into between private parties are not subject to scrutiny under writ jurisdiction. This Court is normally loathe to interfere in contractual matters unless a clear-cut case of arbitrariness or mala-fides or bias or irrationality is made out. One must remember that today many public sector undertakings compete with the private industry. The contracts entered into between private parties are not subject to scrutiny under writ jurisdiction. No doubt, the bodies which are State within the meaning of Article 12 of the Constitution are bound to act fairly and are amenable to the writ jurisdiction of superior courts but this discretionary power must be exercised with a great deal of restraint and caution. The courts must realise their limitations and the havoc which needless interference in commercial matters can cause. In contracts involving technical issues the courts should be even more reluctant because most of us in Judges' robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain. The courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give “fair play in the joints” to the government and public sector undertakings in matters of contract. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer. [See: Silppi Constructions Contractors vs. Union of India, (2020) 16 SCC 489 ].” 30. The Apex Court has discussed the scope of judicial review in the Judgment titled N.G. Projects Limited vs. Vinod Kumar Jain and Others, (2022) 6 SCC 127 . It would be profitable to reproduce paragraph 15 of the Judgment herein: 15. In Uflex Ltd. vs. Government of Tamil Nadu, (2022) 1 SCC 165 this Court stated that the enlarged role of the Government in economic activity and its corresponding ability to give economic “largesse” was the bedrock of creating what is commonly called the “tender jurisdiction.” The objective was to have greater transparency and the consequent right of an aggrieved party to invoke the jurisdiction of the High Court under Article 226 of the Constitution of India beyond the issue of strict enforcement of contractual rights under the civil jurisdiction. However, the ground reality today is that almost no tender remains unchallenged. Unsuccessful parties or parties not even participating in the tender seek to invoke the jurisdiction of the High Court under Article 226 of the Constitution. The Court held as under: “2. However, the ground reality today is that almost no tender remains unchallenged. Unsuccessful parties or parties not even participating in the tender seek to invoke the jurisdiction of the High Court under Article 226 of the Constitution. The Court held as under: “2. The judicial review of such contractual matters has its own limitations. It is in this context of judicial review of administrative actions that this Court has opined that it is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala-fides. The purpose is to check whether the choice of decision is made lawfully and not to check whether the choice of decision is sound. In evaluating tenders and awarding contracts, the parties are to be governed by principles of commercial prudence. To that extent, principles of equity and natural justice have to stay at a distance. 3. We cannot lose sight of the fact that a tenderer or contractor with a grievance can always seek damages in a civil court and thus, “attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of 10 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.” 31. The Apex Court in yet another Judgment titled M/s Michigan Rubber (India) Ltd. vs. State of Karnataka and Others, has again laid down the guidelines in respect of the judicial review in tender matters, while referring the Judgment titled Jagdish Mandal vs. State of Orissa and Others, (2007) 14 SCC 517 , the following conclusion is relevant: “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. 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.....” 32. Since learned counsel for the appellants has failed to justify the action taken by the appellants against the respondent, declaring him ineligible to participate in the tendering process initiated in terms of tender notice dated 03.08.2023, that too, without following due procedure of law, therefore, this Court finds no reason to interfere with the impugned order dated 08.09.2023 passed by the Court of Additional District Judge, Fast Track, Budgam. 33. In view of above, Civil Miscellaneous Appeal under Order XLIII of the Civil Procedure Code is dismissed, being devoid of any merit.