A Division Bench comprising Justice Sindhu Sharma and Justice Shahzad Azeem made the observation while dismissing an LPA filed by M/s Jai Sukrala Trading Co. against an order permitting the Army authorities to proceed with and finalise a defence tender, subject to the outcome of the pending writ petition.

The Bench held that the Single Judge had neither decided the legality of the appellant's technical disqualification nor finally determined any of the allegations concerning the tender process. The order merely modified an earlier interim restraint while expressly keeping the tender finalisation subject to the result of the writ petition.

Background:

The appellant, a proprietorship concern engaged in supplying fencing, electrification, solar and allied structural works to Army units under the 25 Infantry Division/16 Corps, had participated in nine open tender enquiries floated by the 59 Engineer Regiment. The tenders concerned the realignment of IAIOS/AOIS at multiple stretches in the Naushera-Jhangar sector and connected works.

A corrigendum issued shortly before the original bid-submission deadline required bidders to physically submit a sample of a “Solar Cube Generator-cum-Invertor” at the Technical Evaluation Committee stage.

The appellant was subsequently declared “rejected-technical” in all nine tenders on grounds including non-submission of BIS/ISO certificates, alleged failure to submit the sample within time, non-conformity of the sample and failure to establish that the offered product did not infringe a patent.

The appellant challenged the rejection before the Single Judge, seeking, inter alia, re-evaluation by a duly constituted Technical Evaluation Committee, opening of its financial bid and restraint against finalisation of the tender.

On August 3, 2026, the writ court directed that opening of the financial bid be deferred. Subsequently, after the respondents informed the Court that the financial bids had already been opened and rate analysis was underway, the Single Judge modified the interim order on August 13, permitting the respondents to proceed with and finalise the bidding process.

The finalisation, however, was expressly made subject to the outcome of the writ petition and the successful bidder was prohibited from claiming equity on the basis of the action taken pursuant to the order.

Before the Division Bench, the appellant argued that the Single Judge had not returned any finding on its eligibility and had also failed to deal with its allegations concerning the manner in which competing bidders were cleared.

It was contended that the corrigendum altering the tender specifications shortly before the original deadline was “tailored-made” and vitiated by mala fides. The appellant also raised allegations concerning pooled samples, BIS certification and the eligibility of certain competing bidders.

On that basis, it was argued that the August 13 order had effectively taken away the protection earlier granted by the writ court and affected the appellant's valuable right to compete, thereby making the order a “judgment” appealable under Clause 12 of the Letters Patent.

Rejecting the maintainability challenge, the Division Bench noted that the writ petition continued to remain pending. The Single Judge had neither upheld nor quashed the appellant's technical rejection or the corrigendum. Nor had the Court finally determined whether the appellant was technically qualified or disqualified, the court stated.

The Bench noted,

“It has not finally declared the appellant technically qualified or disqualified.”

Similarly, the allegations concerning cartelisation, tailored specifications, absence of the Technical Evaluation Committee and discrimination had all been left open for adjudication in the main writ petition, the court said

The Bench accordingly characterised the impugned order as a balancing of competing equities rather than a final determination of rights.

“What is discernible, therefore, is that the writ Court order under challenge is a classic example of balancing of equities and is not a disposal of the application for interim relief in the sense of a final determination of rights.”, remarked Justice Azeem authoring the judgement.

Modification Of Interim Restraint Is Ordinary Interlocutory Exercise

The Division Bench also rejected the argument that modification of the earlier interim order amounted, in substance, to its final and irreversible disposal. The Court explained that an interim order remains capable of being modified or moulded by subsequent orders during the pendency of the same proceeding.

“An interim order merges in, and remains capable of being moulded by, later orders in the same proceeding.”

The Bench further observed that treating every modification of an interim direction as a “judgment” under Clause 12 would effectively convert the Division Bench into a first appellate court against every interlocutory direction of a Single Judge.

The Court also noted that the writ court had expressly preserved the appellant's substantive challenge by making the tender finalisation subject to the outcome of the writ petition and by restraining the successful bidder from claiming equity.

“An order that keeps the petition alive, keeps every substantial issue open, and only refuses to halt an ongoing tender, does not determine vital rights with finality.”

Clause 12 Requires Determination Of A Right Or Issue

Referring to Shah Babulal Khimji v. Jayaben D. Kania and Midnapore Peoples' Cooperative Bank Ltd. v. Chunilal Nanda, the Bench reiterated that while a “judgment” under Clause 12 may be final, preliminary or intermediary, it must carry an element of finality and determine some right or issue between the parties.

Routine interlocutory orders which do not determine such rights, therefore, do not fall within the expression “judgment”, the court emphasised.

The Bench held that the appellant's complaint that the Single Judge had not recorded point-wise findings on every certificate or document of competing bidders misconceived the nature of the order.

The writ court was not deciding the writ petition finally; it was only deciding whether the defence tender should remain frozen pending adjudication of the writ petition. Since the disputed issues were expressly reserved for the main proceedings, absence of issue-wise findings at that stage was not a legal infirmity.

Court Cannot Sit In Appeal Over Technical Evaluation Committee

The Division Bench also reiterated the limited scope of judicial review in tender matters. It observed that judicial review concerns the decision-making process and not a re-trial of the Technical Evaluation Committee's decision.

“The Court does not sit in appeal over the Technical Evaluation Committee.”

The Bench added that where technical issues are involved, judicial restraint is greater and technical evaluation or comparison by the Court is impermissible.

The Court also took note of the operational character of the procurement, observing that the tender related to realignment works on the Line of Control in the Naushera-Jhangar sector, undertaken pursuant to directions concerning operational readiness after “OP Sindoor”.

It held that defence procurement concerning operational works could not be halted merely on a vendor's claim that it would have emerged as L-1 if permitted to participate in the financial bid.

The Division Bench ultimately held that the August 13, 2026 order was not a “judgment” within the meaning of Clause 12 of the Letters Patent.

“It is a discretionary modification of an interim direction in a pending writ petition, with the lis kept alive and equity expressly balanced.”, the court said and dismissed the Letters Patent Appeal

Case Title: M/s Jai Sukrala Trading Co. v. Union of India & Ors.

Citation: 2026 LiveLaw (JKL) 326

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