Judgment 1. The appellants are the defendants l and 2 end the Respondent is the plaintiff before the courts below. 2. The respondent/plaintiff filed the suit in O.S.No.346 of 1992 on the file of the Principal Subordinate Judges Court at Tiruchirappali for recovery of a sum of Rs.29,600 on the following grounds: The respondent/plaintiff is one of the contractors of the appellants/defendants. The respondent/plaintiff submitted the tender for the purchase and removal of engine-ashes (cinder) from 1.4.1989 to 31.3.1990 between Villupuram and Pondicherry, and his sealed tender was opened on 8.3.1989, and it was accepted as it was the highest offer for a sum of Rs.7,21,899 for this contract the respondent-plaintiff deposited an earnest money of Rs.20,000. On 16.3.1989 the tender was accepted by the appellants/defendants and it was intimated to the respondent/plaintiff on the same day by a letter, which was received by the respondent/plaintiff on 21.3.1989 as seen from the date put up by the postal authorities in the envelope through which the letter was sent. The envelope is enclosed with the letter. On 16.3.1989 the respondent/plaintiff sent a letter to the Ist appellant/1st defendant withdrawing this tender and the copy of the same is filed stating that he is unable to manage such a huge amount and also his health is affected, he is not in a position to carry out the work financially and physically. and so he is withdrawing his tender. Therefore the respondent/plaintiff prays for the return of the earnest money of Rs.20,000 with interest at 18% p.a. from 16.3.1989. Hence the suit. 3. The appellants/defendants filed a written statement raising the following contentions: Since the respondent/plaintiff has rescinded the contract, he is not entitled to the return of the earnest money deposited, and the same has been forfeited as per the conditions and terms of the tender. The defendant has deposited the money only in consonance with the terms of the tender. The administration made all arrangements for the commencement and execution of the work completing their part of the contract. The respondent/plaintiff, who kept quiet for one week, came forward with a letter withdrawing his obligation. By this act of withdrawal, the respondent/plaintiff has caused immense loss and inconvenience to the administration. 4. The administration made all arrangements for the commencement and execution of the work completing their part of the contract. The respondent/plaintiff, who kept quiet for one week, came forward with a letter withdrawing his obligation. By this act of withdrawal, the respondent/plaintiff has caused immense loss and inconvenience to the administration. 4. On the above pleadings and after considering the oral and documentary evidence placed before her, the learned Principal Subordinate Judge at Tiruchirapalli came to the conclusion that the appellant/defendants are not justified, in forfeiting the earnest money deposit and the appellants/defendants are bound to refund the same with interest at 18% pa. and so the learned Principal Subordinate Judge, at Tiruchirapalli, decreed the suit for a sum of Rs.29,600 with interest at 18% p.a. on the deposit amount of Rs.20,000. 5. Aggrieved against the said findings of the trial court, the appellants/defendants preferred the first appeal in A.S.No.51 of 1994 before the Principal District Judges Court at Tiruchirapalli, and the learned Principal District Judge at Tiruchirapalli was also of the view that the action of the appellants/defendants in forfeiting the earnest money deposit before the expiry of the period stipulated in condition No.4 of the respondent/plaintiffs tender marked as Ex.B-1 is wrong, and the lower court has gone in detail not only on the facts of the case but also the position of law involved and finally it has come to a correct conclusion, and so the forfeiture of a sum of Rs.20,000 deposited by the respondent/plaintiff with the appellants/defendants is not valid, and so he decreed the suit for a sum of Rs.27,200 but with interest at 12% p.a. 6. Not satisfied with the concurrent findings of both the courts below, the appellants/defendants have preferred this second appeal. 7. Not satisfied with the concurrent findings of both the courts below, the appellants/defendants have preferred this second appeal. 7. When the second appeal came up for admission, the learned counsel for the appellants/defendants contended that the appellants/defendants after receiving the withdrawal of the plaintiffs offer in Ex.A-2 was forced to select the next awardee of the contract, and the respondent/plaintiff is bound by clause 4 of the tender document marked as Ex.B-1 in this case, wherein the respondent/plaintiff is not entitled to revoke the offer within 90 days from the date of the offer, and the findings of both the courts below that the appellants/defendants are liable to refund the deposit amount of Rs.20,000 with interest is not in accordance with law, and those findings are without any basis, and the judgment of both the courts below are vitiated for non-application of mind, and hence the second appeal must be admitted. All these contentions raised on behalf of the appellants/defendants in this second appeal cannot be upheld for the following reasons. 8. Both the courts below have gone into the oral and documentary evidence placed before the court and applied their and mind and thereafter only delivered judgments. Clause 4 of the tender document marked as Ex.B-1 on the side of the appellant/defendants states as follows: “…The successful tender on receipt of the acceptance of the tender should remit within 7 days the full amount tendered and the caution deposit money due after adjusting the KMD and execute the agreement in the prescribed form (C.S.67) and abide by the conditions stipulated therein. Failure to pay the full amount within 7 days and execute the agreement within 14 days from the date of receipt of advice of acceptance of tender will entail cancellation of the tender and for forfeiture of the deposit money in full as liquidated damages.” 9. In accordance with the terms and conditions of the tender as extracted earlier, the respondent/plaintiff was not remitted the full tender amount within 7 days. But the respondent/plaintiff has sent the letter dated 16.3.1989 marked as Ex.A-2 withdrawing his tender, and thus the respondent/plaintiff is entitled to avail the period of 7 days from 21.3.1989 to remit the full amount, and he is entitled to execute the agreement within 14 days from 21.3.1989. But the respondent/plaintiff has sent the letter dated 16.3.1989 marked as Ex.A-2 withdrawing his tender, and thus the respondent/plaintiff is entitled to avail the period of 7 days from 21.3.1989 to remit the full amount, and he is entitled to execute the agreement within 14 days from 21.3.1989. Therefore, before the expiry of the said period of 7 days from the date of the acceptance of the tender, the respondent/plaintiff has withdrawn his offer, and therefore, there is no concluded contract arrived at between the respondent/plaintiff and the appellants/defendants herein. In those circumstances the is no breach of the contract and the appellants/defendants are not justified in forfeiting the earnest money deposit of Rs.20,000 deposited by the respondent/plaintiff towards the said tender. The action of the appellants/defendants in forfeiting the earnest money deposit of Rs.20,000 amounts to penalty because the appellants/defendants have not let in any iota of evidence to show that the suffered any damages or loss due to the acceptance of the tender of next awardee. It is significant to note that no one has stepped into the witness box on behalf of the appellants/defendants herein to say before the trial court that the appellants/defendants suffered damages or loss by the conduct of the respondent/plaintiff in withdrawing his offer of tender. Except the tender document marked as Ex.B-1 there is no scrap of paper filed on the side of the appellants defendants to show that they suffered damages or loss in this action of the respondent/plaintiff is withdrawing his offer of tender. In such circumstances, the forfeitures of the deposit amount of Rs.20,000 made by the respondent/plaintiff is a penalty and so the appellants/defendants are bound to refund the same with interest at 12% p.a as held by the first appellate court. This view going support from the decisions which are as follows: In the decision reported in Maula Box v. Union of India Maula Box v. Union of India Maula Box v. Union of India, (1970)2 MLJ. (S.C.) 61itwas laid down as follows: “Where under the terms of the contract the party in breach has undertaken to pay a sum of money or to forfeit a sum of money which he has already paid to the party complaining of a breach of contract, the undertaking is of the nature of penalty. (S.C.) 61itwas laid down as follows: “Where under the terms of the contract the party in breach has undertaken to pay a sum of money or to forfeit a sum of money which he has already paid to the party complaining of a breach of contract, the undertaking is of the nature of penalty. Deposits made by the party to a contract with the other party, as security, for guaranteeing due performance of the contract, with a stipulation that such deposit would stand forfeited his part of the contract, cannot be regarded as earnest money…. where loss in terms of money can be determined, the party claiming compensation must prove the loss suffered by him, but does not do so, he cannot be entitled to any relief by way of compensation, nor can he exercise the right to forfeit the amount deposited with him by the party in breach as security for guaranteeing due performance of his part of the contract, treating as reasonable compensation.” 10. In the other decision of our High Court reported in Marimuthu Gounder v. Ramaswamy Gounder and others, 92 L.W. 3 it was held as follows: “Without reference to any actual damage, the amount referred to in the agreement cannot be forfeited, because it would be in the nature of penalty. Proof of actual damage is a sine quo non to seek damages.” 11. In the light of the dictum laid down in the above decisions and in the absence of any evidence either oral or documentary on the side of the appellants/defendants to prove the actual damage or loss sustained by them in view of the withdrawal of the tender offered by the respondent/plaintiff, it is not open to the appellants/defendants to forfeit the earnest money deposit of Rs.20,000 made by the respondent/plaintiff, because it would be in the nature of penalty. 12. Besides the above facts and circumstances of this case, there are concurrent findings of facts by both the courts below. 12. Besides the above facts and circumstances of this case, there are concurrent findings of facts by both the courts below. In the decision reported in Ramanuja Naidu v. Kanniah Naidu , (1996)3 S.C.C. 392 at 398 it was pointed out that it is now well settled that the concurrent findings of fact of trial court and the first appellate court cannot be interfered with by the High Court in exercise of its jurisdiction under Sec.100, C.P.C. The concurrent findings of the courts below in this case were findings of fact and they were not open to challenge in this second appeal. 13. For the foregoing reasons, I am of the view that this second appeal is devoid of merits, and the same has to be dismissed without costs, and the judgment and decree of both the courts below have to be confirmed, and consequently I answer this point as against the appellants/defendants. 14. In the result the second appeal is dismissed without costs. The Judgment and decree of both the courts below are confirmed. 15. Consequently the stay petition in C.M.P.No.13872 of 1998 is also dismissed as unnecessary.