Delhi High Court - Orders
Vandana Gupta vs Union Of India & Ors on 12 August, 2025
Author: Sachin Datta
Bench: Sachin Datta
$~114
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 12093/2025 and CM APPL.49373/2025
VANDANA GUPTA .....Petitioner
Through: Mr. Sumit Bansal, Sr. Advocate along
with Ms. Rashi Suri Anand, Ms.
Tulna Rampal, Ms. Jasleen Kaur and
Ms. Samriddhi Goswami and
Mr. Utsav Garg, Advocates.
versus
UNION OF INDIA & ORS. .....Respondents
Through: Mr. Sushil Kumar Pandey, SPC along
with Mr. Sarvesh P. Shrivastava, GP
for R-1/UOI.
Mr. Vipul Ganda, Mr. Ishan
Upadhaya, Ms. Sakshi Panwar,
Advocates and Mr. Vivek Tyagi,
Legal HSCC for R-2.
CORAM:
HON'BLE MR. JUSTICE SACHIN DATTA
ORDER
% 12.08.2025
1. Issue Notice.
2. Learned counsel, as aforesaid, accept notice on behalf of the respondent nos.1 and 2.
3. Issue notice to the respondent no.3 (Indian Overseas Bank), through all permissible modes, including electronically.
4. The present petition has been filed by the petitioner, who is the sole proprietor of M/s Pharma Surge Impex, a Micro, Small & Medium Enterprise (MSME) registered under Udyam Registration No. UDYAM-DL- 06-0027145 and is classified as a "Small Enterprise" for the financial year This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 13/08/2025 at 23:06:27 2025-26 under the MSME classification.
5. The petitioner is aggrieved by the order/communication dated 25.07.2025 whereby it has been directed that a fallen action be taken against the petitioner, for the following reasons :
"(a) The Unsuccessful Bidder failed to comply with Tender which required submission of technical specifications on the manufacturer 's letterhead for influenza vaccine and diagnostic kits. (as per the Amendment dated May 16. 2025). However the documents submitted by the Unsuccessful Bidder was addressed to a third party (Toasha Agencies), made no reference to the bidder or the Tender. and was denied by the M/s Abbott India lid. Under Clause 2 of undertaking/ affidavit furnished under Format-VIII of the Tender, it is the bidder's responsibility to ensure accuracy and authenticity of documents submitted and as per Tender documents any misrepresentation or submission of incorrect documents is liable to result in disqualification of the bidder forfeiture of EMD and debarment.
(b) The Unsuccessful Bidder has violated the declaration given under Format VIII (Affidavit) affirming that in case any document, information or certificate submitted was found to be incorrect, false or Fabricated, HSCC would be entitled to disqualify the bidder, forfeit the EMD and debar the bidder."
6. In terms of the impugned order, the debarment and forfeiture of EMD is premised on the following:
(i) The petitioner had no authority to participate on behalf of M/s Abbott India Ltd., in the tender floated by the HSCC/respondent no.2, bearing tender no. HSCC/PUR/MEA-AFGHANISTAN/MEDICINES AND KITS/2025 dated 08.05.2025, for the procurement and supply of medicines and diagnostic kits to Kabul, Afghanistan, as amended vide Amendment dated 16.05.2025.
It is submitted that Abbott India Ltd had confirmed to the concerned respondent that no authority had been granted in favour of the petitioner or M/s Toasha Agencies (whose certificate was sought to be relied upon by the petitioner) for participation in the aforesaid tender.
This is a digitally signed order.
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(ii) There was an infirmity in the 'manufacturer authorisation' in respect of the I-CHROMA diagnostic kits issued in favour of the petitioner by Boditech Med India Pvt. Ltd.
7. It was held in the impugned order as under:
1.10 Based on these complaints, verification of the manufacturer authorization of the 1-Chroma diagnostic kits was carried out by HSCC and it was found that this claim is factually incorrect. The documentary record unequivocally demonstrated the following:
• Boditech Med India Pvt. Lid. is not the OEM of I-CHROMA diagnostic kits. The diagnostic kits arc manufactured only by Boditech Med Inc., South Korea, as confirmed by the email from Boditech Med Inc., South Korea dated June 12, 2025, and the only authorized importer and distributor of Boditech Med Inc., South Korea, in India is Kin Diagnostics, Kolkata.
• Official correspondence from Boditech Med Inc., South Korea further affirms that Boditech Med India Pvt. Ltd. is our subsidiary. and not the manufacturer of I- CHROMA diagnostic kits . It was further confirmed that the Boditech Med India Pvt. Ltd, does not possess the authority to appoint exclusive distributors or issue authorisations for participation in government tenders.
• A letter issued by the Drugs Controller-cum-Licensing Authority, Haryana, dated July 1, 2025 explicitly states that Boditech Med India Pvt. Ltd. does not hold any valid manufacturing license under the Drugs and Cosmetics Act. 1940.
In light of the above it is clear that the Unsuccessful Bidder is not authorized to supply either the vaccines or the diagnostic kits, as required under the Tender as per the respective manufacturers of the vaccines (namely. M/s Abbott India Ltd) or the diagnostic kits (namely. Boditech Med Inc., South Korea). In fact, to the contrary, M/s Abbott India Ltd has clarified that the Unsuccessful Bidder is an unauthorized entity for the supply of the vaccines. And Boditech Med Inc., South Korea has clarified that the Unsuccessful Bidder is ununauthorised entity for the supply o f the diagnostics kits.
It is imperative that any supplier o f medicine, vaccines, diagnostics kits. equipment or any product. ought to be authorized to supply such medicines, vaccine,. diagnostics kits, equipment or any product. It is unfathomable for any person, especially in a situation where the supply of medicines vaccines and diagnostics kits is to another sovereign under the aegis of the Ministry of External Affairs, Government of India. that This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 13/08/2025 at 23:06:27 the supply of the products is permitted even through an unauthorised person.
In summary HSCC noted the following on the basis of which the stand taken by the Unsuccessful Bidder was found to be unsatisfactory and unbecoming:
(a) The authorization document submitted by the Unsuccessful Bidder, in relation the vaccines, was issued by M/s Abbott India Ltd. to M/s Toasha Agencies, which neither refers to the Unsuccessful Bidder nor makes any mention of the HSCC or the Tender. The letter is generic in nature, limited to hospital supply, and does not confer any legitimacy to the claims of the Unsuccessful Bidder.
(b) M/s Abbott India Ltd., the original manufacturer of the vaccines, vide email dated May 30, 2025, unambiguously confirmed that only M/s Sysmed Exim Pvt. Ltd. was authorized to participate in the Tender. It specifically denied having issued any authorization to M/s Toasha Agencies or to the Unsuccessful Bidder for the Tender.
(c) The document trail indicates that the Unsuccessful Bidder relied upon a third-party document without due verification, failed to undertake any confirmation from the manufacturer, and later attempted to shift the responsibility onto HSCC by alleging selective correspondence, which is both factually incorrect and legally untenable.
(d) Moreover, your conduct in directly revealing sensitive commercial details such as price comparisons to third-party authorities, constitutes a breach of principles of fair competition.
This is another serious contravention, especially in an international Tender involving two sovereign nations. Your attempts to influence outcome of the Tender Process post- disqualification, while misrepresenting documents, and your attempt to draw comparison between you and M/s Sysmed Exim Pvt. Ltd. based on bid prices, having been disqualified displays an attempt to disrupt and sabotage the two-stage tender process.
(e) More gravely, your unsolicited disclosure of price bid details, including those of other bidders, constitutes an act of deliberate interference with the sanctity of the tender process. Such unauthorised disclosures amount to a direct act of sabotage against a sensitive international procurement effort involving inter-governmental cooperation, which not only undermines the This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 13/08/2025 at 23:06:27 integrity of the Tender process but also potentially jeopardises bilateral relations and national interest.
(f) Further, it was asserted in the Complaint that the Unsuccessful Bidder is the sole authorized distributor of I-CHROMA diagnostic kits from the OEM, Boditech Med India Pvt. Ltd., despite which preferential treatment was given to the other bidder. This assertion also turnout to be incorrect and false, on verification, as detailed aforesaid.
(g) Additionally, certain documents were sought from the Unsuccessful Bidder vide our letter dated June 17, 2025 as well as by letter dated June24. 2025. However, the Unsuccessful Bidder did not provide the following documents, in support of the assertion that Boditech Med India Pvt. Ltd. is the authorized OEM of the diagnostics kits such as (i) Valid Manufacturing License
(ii) Product Permissions for each quoted kit
(iii) WHO-GMP/EU-GMP/WHO-PQ certificates (as applicable)
(iv) Relevant statutory approvals under the Drugs and Cosmetics Act, 1940 and Medical Devices Rules, 2017
(v) Proof of OEM status for Boditech Med India Pvt. Ltd.
(h) Your reply dated June 19, 2025, instead raised frivolous assertions regarding the disqualification of the bid, which is untenable and does not absolve you of your obligations to provide clarification regarding your statements and allegations. Your failure to provide the requisite documentation despite being granted a further opportunity vide HSCC's letter dated June 24, 2025, establishes that the said documents were neither in your possession nor available with your claimed OEM, and your complaint was based on unsubstantiated and misleading representations. complaint In fact, your representation that Boditech Med India Pvt. Ltd. is the OEM of the diagnostic kits and that you are the authorised distributor for such kits amounts to a material misstatement and constitutes a fresh instance of misrepresentation and misleading conduct. This is in breach of the undertaking/ affidavit furnished under Format-VIII of the Tender document and is a violation of Articles 2(4) and 4(2) of the Integrity Pact, which prohibit any wilful misrepresentation or concealment of material facts during the tender process."
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 13/08/2025 at 23:06:27
8. It is submitted by the learned senior counsel for the petitioner that the aforestated reasons for debarment and forfeiture of EMD by the respondents are wholly misconceived inasmuch as:
(i) The Petitioner, at no point in time participated in the tender, claiming to be authorized by M/s Abbott India Ltd. The tender as amended vide Amendment dated 16.05.2025, only stated that "COA Test Report/NABL Test Report, distributor drug license will be accepted". The tender never required the bidder to be the authorized distributor, nor did it mandate that the supply of vaccines must be routed through a tender specific authorized distributor. Neither the Petitioner nor M/s Toasha Agencies ever declared to be the authorized distributor of M/s Abbott India Ltd. for the specific tender in which the Petitioner participated. The Petitioner participated solely in the capacity of a supplier. Further, the documents filed by the Petitioner of M/s Taosha Agencies have not even been alleged to be fake/forged."
(ii) Secondly, the assertion that M/s Boditech Med India Pvt. Ltd.
is not the manufacturer of I-CHROMA Diagnostic Kit is completely misleading, as Boditech Med India Pvt. Ltd. is a 100% subsidiary of the manufacture of Boditech Med Inc., South Korea. In fact, the documents submitted by the Petitioner, along with the communication dated 13.06.2025, contained an authorization letter from M/s Boditech Med India Pvt. Ltd, which clearly stated that the said company is having a factory at 43, Geodudanji I-gil, Dongnae-myeon, Chuncheon-si Gangwon-do 24398, Republic of. Korea, Republic of This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 13/08/2025 at 23:06:27 Korea. Notably, the aforesaid document has not even been referred in the impugned order.
9. It has also been brought out that the Show Cause Notice issued to the petitioner, sought to castigate the petitioner solely on the limited ground that the bid of the petitioner was not authorised by M/s Abbott India Ltd; and that upon a communication addressed to the concerned respondent by M/s. Abbott India Ltd., it was clarified that M/s Abbott India Ltd. had authorized only M/s Sysmed Exim Pvt Ltd. to participate in the tender on its behalf.
10. Prima facie, the petitioner is right in contending that in terms of the relevant tender conditions, the petitioner's bid was not required to be authorised or approved by the M/s Abbott India Ltd. The tender as amended vide amendment I dated 16.05.2025 only stated that "COA Test Report/NABL Test Report, distributor drug license will be accepted". The petitioner solely participated as a 'supplier'.
11. Importantly, the impugned communication refers to alleged infractions/transgressions that were not even mentioned in the Show Cause Notice. The same refers to the alleged lacuna in the authorisation documents relied upon by the petitioner and/or difficulty with the 'manufacturer authorisation' in respect of diagnostic kits.
12. Learned counsel for the respondent no.2/HSCC vehemently controverts the submissions made by the learned counsel for the petitioner and seeks to justify the impugned order.
13. Let reply be filed by the respondents within a period of two weeks from today.
14. In the above factual conspectus, it does appear, prima facie, that the Show Cause Notice issued to the petitioner makes no reference to the This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 13/08/2025 at 23:06:27 specific allegations / infractions which ultimately weighed with the concerned authority in passing the debarment order against the petitioner.
15. In Gorkha Security Services Vs. Government (NCT of Delhi) and Ors., (2014) 9 SCC 105 and UMC Technologies Pvt. Ltd vs. Food Corporation of India and Anr., 2021 2 SCC 551, it has been held that an action of debarment has to be preceded by a notice specifically informing the noticee as to the basis on which the said action is sought to be taken. In this regard, the Supreme Court has specifically observed in Gorkha Security Services (supra) as under:
"16. It is a common case of the parties that the blacklisting has to be preceded by a show-cause notice. Law in this regard is firmly grounded and does not even demand much amplification. The necessity of compliance with the principles of natural justice by giving the opportunity to the person against whom action of blacklisting is sought to be taken has a valid and solid rationale behind it. With blacklisting, many civil and/or evil consequences follow. It is described as "civil death" of a person who is foisted with the order of blacklisting. Such an order is stigmatic in nature and debars such a person from participating in government tenders which means precluding him from the award of government contracts."
16. It has been reiterated by the Supreme Court in numerous cases that blacklisting / debarment is akin to "civil death" having a debilitating effect on the concerned entity. This Court also takes note of the submission / undertaking of learned senior counsel for the petitioner (on instructions) that although the subject tender (with regard to which the controversy has arisen) has been scrapped, in the event of respondents retendering for the same products, the petitioner shall not be participating in the same.
17. In the circumstances, the operation of the impugned order dated 25.07.2025 shall remain stayed till the next date of hearing. The same shall be subject to the petitioner keeping alive the bank guarantee/s [given in This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 13/08/2025 at 23:06:27 respect of the Earnest Money Deposit (EMD)], and / or the other securities, during the pendency of the present petition.
18. List on 16.09.2025.
19. Order dasti.
SACHIN DATTA, J AUGUST 12, 2025/at, ss This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 13/08/2025 at 23:06:27