Judgment A. K. Ganguly, J. 1. -the question which falls for determination in this writ application is whether the respondents can accept the offer of the petitioner after they have come to know of the revocation of the offer made by the petitioners and the consequential question is whether the petitioners can be penalised by way of forfeiture of their security deposit as a consequence of acceptance of their revoked offer. 2. The aforesaid questions arise in the facts of this case which are briefly narrated as follows :- Petitioner No.1 is a Proprietorship firm of which Sitaram Agrawal is the sole proprietor and petitioner No.2 is the son of petitioner No.1 and looks after the business of petitioner no.1. Pursuant to the seizure made by the Custom authorities of certain goods and after the said goods Vested in the Central government, tenders were invited by the Custom authorities for selling those goods. On or about 16th July, 1993 a notice inviting such tenders was published by the Collector of Customs (Disposal ). Indo Nepal Board, Central Revenue Building, birchand Patel Marg, Patna in the Hindi edition of hindustan patna dated 21st July, 1993. The said tender was in respect of various goods lying at different Divisions of the Customs department including Muzaffarpur Division and Motihari (Raxaul)Division. The last date for submitting tenders and for the deposit of earnest mony was 29th July, 1993. Pursuant to the said tender notice, the petitioners submitted tenders for Taj Mixed dalchini and Plaster of Paris lying at Muzaffarpur Division of the Customs Department and in terms of Clause 4 of the tender notice, the petitioners also deposited the required earnest money namely Rs.16,000/- and Rs.2,5000/- at the Customs Headquarters at Patna. The petitioners also submitted tender for Nepali katha for which earnest money of Rs.65,000/- was also deposited. The said Katha was lying at Mothari (Raxaul) Division of the customs Department. The tenders submitted by the petitioners were found to be in order. The petitioners also submitted tender for Nepali katha for which earnest money of Rs.65,000/- was also deposited. The said Katha was lying at Mothari (Raxaul) Division of the customs Department. The tenders submitted by the petitioners were found to be in order. 3 The petitioners case is that as the respondents were delaying the finalisation of the tenders and the goods meant for being sold were of perishable nature and must have been in seizded condition for quite some time, the petitioners wrote a letter to the Collector, Customs (Disposal)Patna under registered post on 16th September, 1993 that as over 50 days have elapsed without finalisation of the tenders, the petitioners withdraw their tenders and requested the authorities to refund their earnest money. After writing the said letter on 16th September, 1993, the petitioners sent two reminders dated 29th September, 1993 and 12th October, 1993, clearly stating therein that the petitioners are withdrawing their tenders and requested for refund of the earnest money. Thereafter the petitioners were surprised to find to letters both dated 21st October, 1993 informing the petitioners that their tenders for Taj Mixed Cinnamon and Plaster of Paris which were lying at the Muzaffarpur Division of the respondents have been accepted and the petitioners were directed to deposit the entire amount after adjusting the security money within seven days from the date of receipt of the said letter. Thereafter the petitioners received another letter dated 16th March, 1994 from respondent no.4 the Assistant Collector - of Customs (Preventive)Division Muzaffarpur to the effect that on the petitioners failure to lift plaster of Paris and Taj mixed Cinnamon, their secutity deposit of Rs.2,500/-and Rs.16,500/- stood forfeited. It may be further stated that as far as the petitioners offer for Katha, clove and Jaifal which were lying at Motihari (Raxaul) Division, the petitioners did not receive any acceptance of the said offer from the respondents. 4. In the counter affidavit the respondents have stated that on 13th october, 1993 the alleged acceptance of the petitioners offer for Katha lying at motihari (Raxaul) Division was despatched by the respondents under ordinary post to the petitioners. 5. 4. In the counter affidavit the respondents have stated that on 13th october, 1993 the alleged acceptance of the petitioners offer for Katha lying at motihari (Raxaul) Division was despatched by the respondents under ordinary post to the petitioners. 5. The petitioners have, however, written a letter of protest dated 7th April, 1994 requesting for the refund of the earnest money to which the respondents wrote back by letter dated 20th April, 1994 that the earnest money deposited by the petitioners has already been forfeited by the Assistant collector Customs, Muzaffarpur. 6. In the counter affidavit the respondents have admitted the position that they had received the petitioners letter of revocation of offer dated 29th September, 1993 on 4th October, 1993 and they have also stated in paragraph 19 that the acceptance leter for Katha lying at Motihari (Raxaul) Division was issued by ordinary post. They have, of course, not produced any other material before this Court in support of the despatch of that letter of acceptance under ordinary post. 7. It is surprising that the letter of acceptance in respect of Katha lying at Motihari (Rexaul) Division was sent by the. Customs authorty under ordinary post whereas in respect of the acceptance letter of Muzaffarpur division, the same was sent under registered post, 8. Be that as it may, factually it cannot be disputed that before the letters of acceptance dated 21st October, 1993 or 13th October, 1993 were sent by the Customs authorities, the petitioners letter dated 29th September, 1993 withdrawing their offer had been received in the office of the respondents on 4th October, 1993 This fact is not disputed. In the background of these facts the question whether or not the respondents authorities can forfeit the earnest money deposited by the petitioners falls for determination in the writ petition. 9. Learned counsel for the petitioners has stated that it is open to them to revoke their offer of proposal before its acceptance. This right is recognised under Sec.5 of the Indian Contract Act hereinafter referred to as the said Act ). Provisions of Sec.5 of the said Act are set out below :- "a proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer, but not afterwards. This right is recognised under Sec.5 of the Indian Contract Act hereinafter referred to as the said Act ). Provisions of Sec.5 of the said Act are set out below :- "a proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer, but not afterwards. An acceptance may be revoked at any time before the communication of the acceptance is complete as against the acceptor, but not afterwards. " 10. In the instant case the offer of the petitioners was revoked much before the acceptance of the said offer of the petitioners. Therefore, there was no offer in existence which allegedly was accepted and purportedly communicated either on 13th or 21st October, 1993. petitioners are thus within their rights to revoke their offers and their offers were revoked in time. Thereafter it is no longer open to the respondents to accept such non-existent offers. 11. Learned counsel for the petitioners has, in this connection, relied on a decision in the case of Rajendra Kumar Verma V/s. State of Madhya Pradesh and others reported in [air 1972 MP Page 131]. The same was also a case relating to tender and in paragraph 3 of the said judgment in the case of kajendra Kumar Verma (supra), the following proposition has been laid down relying on Sec.5 of the Indian Contract Act :- " A person who makes an offer is entitled to withdraw his offer or tender before its acceptance is intimated to him. The Government by merely providing such a clause in tender notice could not take away that legal right of the petitioner. The fact that the petitioner had applied for withdrawal of the tender is not denied. " 12. In this case there is even no clause in the tender notice that the offers once made cannot be withdrawn. Therefore, in this case, the case of the petitioners stands on stronger footing and they had opportunity to withdraw their offer before its acceptance and which they did. Another decision cited by the learned counsel for the petitioners is in the case of Abdul Salam Choudhury v. State of Assam and others reported in [air 1991 Gauhati page 9]. Therefore, in this case, the case of the petitioners stands on stronger footing and they had opportunity to withdraw their offer before its acceptance and which they did. Another decision cited by the learned counsel for the petitioners is in the case of Abdul Salam Choudhury v. State of Assam and others reported in [air 1991 Gauhati page 9]. In the said case also relying on the provisions of Sec.5 of the said Act, the same principle has been enunciated at page 12 in paragraph 10 of the report:- "it being a statutory right of the petitioner under the provisions of the Indian Contract Act entitling him to withdraw/revoke bis offer/proposal made in his tender before acceptance thereof by the authorities and the petitioner having done so in the instant case, the contract of sale of the Mahal in question for the settlement period could not be enforced on the petitioner and he cannot be saddled with the liability to make good the deficiency. " 13. Learned counsel for the respondents has raised a preliminary objection that this writ petition is not maintainable inasmuch as the petitioners rights are governed by a contract and as such the petitioners will have to file a suit for the redressal of their grievance, if any. The other objection made by the respondents is that the letter of withdrawal has not been sent by the firm, Therefore, it cannot be treated as a letter of withdrawal. 14. From perusal of annexures 2 and 3 it appears that the said letter of withdrawal has been sent on the letterhead of petitioner no.1 Which is a proprietorship firm of which the sole proprietor is Sitaram Agrawal and it was signed by petitioner no.2. 15. It has been averred in paragraph 3 of the petition that petitioner no, 1 is the sole proprietership firm of which Sitaram Agrawal is the sole proprietor and petitioner no.2 as the son of the proprietor looks after the business of petitioner no.1. The said factual position has not been controverted by the respondents. As such the aforesaid objection cannot be raised inasmuch as the same is not tenable either in law or on facts. The said factual position has not been controverted by the respondents. As such the aforesaid objection cannot be raised inasmuch as the same is not tenable either in law or on facts. Apart from that the said objection being one on facts and not having been stated in the counter affidavit filed by the respondents cannot be allowed to be raised for the first time in the course of arguments. 16. In support of the first objection raised by the respondents that the petitioners cannot maintain this writ petition inasmuch as their rights arise out of a contract, reliance was placed by the learned counsel for the respondents on a Full Bench decision rendered in the case of M/s. Shakti Tubes limited and another V/s. State of Bihar and others reported in [air 1994 Patna page 162]. The ratio of that Full Bench decision in the case of M/s, Shakti tubes (Supra) is that in matters of contractual obligation cannot be enforced by filing a writ petition is based on a totally different factual mould. In the case of M/s. Shakti Tubes Limited (Supra), the petitioner was seeking to enforce its right to get interest free sales tax loan from the State and pressed in that context the doctrine of Promissory Estoppel into service. The Full bench decision of this Court held that the right, if any, to get interest free sales tax loan of the petitioner on the basis of the doctrine of promissory estoppel cannot be enforced in writ petition in view of the factual controversies involved but the same right can be enforced in a civil suit. 17. Right to get interest free sales tax loan from the State and the right to get a refund of the deposit of earnest money does not and cannot stand on the same footing. In the case of grant of interest free loan various disputed questions of fact may arise. One of them may be the financial capability of the State Government to grant loan whereas in the case of refund of security deposit, the question of capability to refund does not and cannot arise inasmuch as the petitioners money was kept in deposit with their respondents as part payment of the amount in respect of which they had given tenders. Now once the petitioners have withdrawn their offer and in law has withdrawn it correctly, the respondents cannot refuse to part with that money under any legitimate pretext. Therefore, the decision of the Full bench in the case of M/s. Shakti Tubes (Supra) is distinguishable on facts. 18. Reliance in this case has been rightly placed by the learned counsel for the petitioners in the case of M/s. Hyderabad Commercials V/s. Indian Bank and others reported in [air 1991 SC page 247]. The Hon ble Supreme Court directed that when the liability of the Bank is admitted, it has no right to drive the aggrieved party to file a suit on the alleged ground of disputed questions of fact. In paragraph 5 of the said report, the following observations have been made. "since the basic facts regarding the un-authorised transfer of the disputed amount from the appellants account as well as the banks liability was admitted, there was no justification for the high Court to direct the appellant to file suit on ground of disputed questions of fact. The respondent Bank is an instrumentality of the State and it must function honestly to serve its customers. " 19. The stand which a governmental authority should take in such matters has been very precisely stated by the Supreme Court in the case of m/s. Hindustan Sugar Mills V/s. State of Rajasthan and others reported in [air 1981 SC page 1681]. The relevant portion from the said judgment is set out below :- "we hopefully expect that the Central Government will not try to shirk its legal obligation by resorting to any legal technicalities for we maintain that in a democratic society governed by the rule of law, it is the duty of the State to do what is fair and just to the citizen and the State should not seek to defeat the legitimate claim of the citizen by adopting a legalistic attitude but should do what fairness and justice demand " 20. This Court is in respectful agreement with the aforesaid enunciation of the legal principle vis-a-vis the duty of the State or the Central Government in such matters In that view of the matter, the objection raised by the respondents cannot be sustained and the writ petition succeeds. 21. This Court is in respectful agreement with the aforesaid enunciation of the legal principle vis-a-vis the duty of the State or the Central Government in such matters In that view of the matter, the objection raised by the respondents cannot be sustained and the writ petition succeeds. 21. The respondents are directed to refund the earnest money deposited by the petitioners pursuant to the tenders submitted by them and the impugned order of forfeiture of the earnest money communicated to the petitioners as contained in Annexures 5 and 6 are hereby quashed. The respondents are, therefore, directed refund the entire earnest money deposited by the petitioners within a period of six weeks from the date of receipt/ production of a copy of this judgment failing which the respondents authorities will have to refund the same to the petitioners along with interest at the rate of 12 percent per annum to be calculated form the date of expiry of the aforesaid period of six weeks till the actual payment is made. This writ petition is accordingly allowed. There will be no order as to costs. Petition allowed