JUDGMENT : AKIL KURESHI, J. 1. All these petitions have common factual background. They are, therefore, being disposed of by this common order. 2. We may record the facts as arising in SCA No. 15371 of 2015. Petitioner No. 1 is a Company registered under the Companies Act. Petitioner No. 2 is a Director of the Company. Petitioners are engaged in civil construction activities. Respondent No. 2 Board Municipality invited tenders for carrying out civil construction works by issuing tender notice dated 08.09.2015. As per this notice, estimated cost of the work was Rs. 1,26,20,411/-. Tender fee was Rs. 5,000/- non-refundable. Earnest Money Deposit (EMD) of Rs. 1,26,204/- was demanded. This tender notice itself did not specify the mode of payment of these two amounts. However, separate notice inviting on-line tender contains such details in para-11 which reads as under:- “11. Tender Fee and Bid Security i.e. EMD in the form of DD in favour of Botad Nagar Palika from any Nationalized/Scheduled Bank shall be valid upto 120 days. DD issued after the last date of submission of tender will not be considered as valid or accepted in any case.” 3. Petitioners deposited the tender fee of Rs. 5,000/- through DD on 09.09.2015. However, when it came to offering EMD, there were two problems. The first was that while filling up on-line form, the system would not accept the mode of payment through DD and, instead, it prompted the mode of payment through FDR. Petitioners have produced at Annexure-D a print-out of such on-line format which reads as under: “EMD Details: EMD Amount 126204 Mode of Payment FDR In Favour of BOTAD NAGAR PALIKA Instrument No. 50300109661229 Instrument Date 10-09-2015 Bank Details HDFC BANK LTD. S.G. ROAD, AHMEDABAD-380054” The second difficulty that the petitioners faced was that the notice inviting on-line tender required payment through DD which must have a validity of 120 days. According to the petitioners, as per RBI directives, banks are not authorized to issue DD of a validity in excess of 90 days. The case of the petitioners, therefore, is that on account of these two apparent anomalies, the petitioners posted an FDR in the name of respondent No. 2 Nagar Palika for the requisite sum of Rs. 1,26,204/- towards EMD. The case of the petitioners, therefore, is that on account of these two apparent anomalies, the petitioners posted an FDR in the name of respondent No. 2 Nagar Palika for the requisite sum of Rs. 1,26,204/- towards EMD. It appears that tenders were opened on 18.09.2015 and since the petitioners were disqualified, the petitioners have approached this Court challenging the action of respondent No. 2 in not considering their financial bids. Facts in other petitions are similar. 4. On 22.09.2015 while issuing notice, we had prevented the respondents from awarding the contract pursuant to the tender process in question. In response to such notice, respondent No. 2 Nagar Palika has appeared and filed reply. 5. Learned counsel Mr. Buch for the petitioners submitted that the petitioners had no reason to offer the EMD through FDR instead of DD, if the system had accepted such mode and if insistence of the validity of DD of 120 days was not made by the Municipality. Since it was not possible to satisfy both these conditions, namely, filling up of the on-line form and the validity of 120 days of DD, the petitioners instead enclosed FDR in the name of the Municipality. He submitted that the petitioners did not commit breach of any essential condition of the tender. If at all that was only on account of the ambiguity on the part of respondent No. 2 that the present situation arose and, in any case, the deviation was merely technical in nature. He referred to a decision of the Supreme Court in case of Poddar Steel Corporation vs. Ganesh Engineering Works and Others, (1991) 3 SCC 273 : AIR 1991 SC 1579 in which the tenderer had submitted a cheque of Union Bank of India for EMD instead of State Bank of India as provided in the tender notice. The Supreme Court held that this cannot be stated to be a breach of essential condition of the tender. 6. On the other hand, learned counsel Ms.Pahwa opposed the petitions contending that the tender notice clearly required payment of EMD through DD and no other mode. The petitioners instead offered EMD through FDR. If there was any confusion, the petitioners ought to have sought clarification from the Municipality. They breached the essential condition of the tender. The petition may, therefore, be dismissed. The petitioners instead offered EMD through FDR. If there was any confusion, the petitioners ought to have sought clarification from the Municipality. They breached the essential condition of the tender. The petition may, therefore, be dismissed. Counsel relied on a decision of the Supreme Court in case of Kanhaiya Lal Agrawal vs. Union of India, (2002) 6 SCC 315 : AIR 2002 SC 2766 in which it is observed as under: “6. It is settled law that when an essential condition of tender is not complied with, it is open to the person inviting tender to reject the same. Whether a condition is essential or collateral could be ascertained by reference to consequence of non-compliance thereto. If non-fulfilment of the requirement results in rejection of the tender, then it would be essential part of the tender otherwise it is only a collateral term. This legal position has been well explained in G.J. Fernandez vs. State of Karnataka & Others, 1990 (2) SCC 488 : AIR 1990 SC 958 . 7. Counsel also relied on a decision of the Supreme Court in case of Global Energy Ltd. and Another vs. Adani Exports Ltd. and Others, (2005) 4 SCC 435 : AIR 2005 SC 2653 also in support of the contention that the petitioners, who had breached the essential condition, were rightly disqualified. 8. Having heard learned counsel for the parties and having perused the materials on record, we may recall that the main tender notice itself did not provide for the manner in which the EMD would be deposited. It is, however, true that the notice inviting on-line tender did specify that such deposit would be through DD. Ordinarily, therefore, the petitioners were duty bound to fulfill such condition if they wanted to qualify for the next stage of tender process. Any other mode would generally not satisfy this condition. However, facts of the case are somewhat peculiar. According to the petitioners, and this is not disputed by respondent No. 2 that when the petitioners tried to fill up on-line form, the system would not accept EMD payment through DD and instead it would prompt only the details of FDR. This is the first starting point where the petitioners could harbour some doubt. Whatever doubt the petitioners may have, got further compounded while the tender requirement was of payment of EMD through DD of a validity of 120 days. This is the first starting point where the petitioners could harbour some doubt. Whatever doubt the petitioners may have, got further compounded while the tender requirement was of payment of EMD through DD of a validity of 120 days. Again, it is contended by the petitioners, and not disputed by the respondents, that, as per current position, the RBI directives would not authorize the banks to issue DDs with a validity of 120 days. The maximum validity would be of 90 days. 9. It was on account of these reasons that the petitioners, instead of annexing DD for EMD, took out FDR of the matching sum in the name of respondent No. 2 Municipality and posted the same for consideration. For several reasons, the petitioners cannot be blamed for this minor variation. Firstly, as noted above, the two anomalies in the tender process were on account of the inadvertent oversight on the part of respondent No. 2 Municipality. Its on-line format did not accept EMD through DD. Instead, it insisted on details of FDR. Secondly, the condition of the DD having validity of 120 days also was possible of creating considerable doubt. No tenderer would have fulfilled this requirement. We are informed that other contractors, instead, tendered the EMD through DD of validity of 90 days. If, under the circumstances, the petitioners, instead of taking the liberty of furnishing DD of a validity lesser than what was insisted by the authorities, presented the same through FDR, the petitioners cannot be penalized with disqualification. In fact, the rigid approach would make all the other tenderers disqualified since they had not fulfilled the requirement of providing DD with a validity period of 120 days which, as noted, was an impossible condition to fulfill. 10. In case of Global Energy Ltd. ( AIR 2005 SC 2653 ) (supra), the issue was of satisfying EMD requirement. One of the tenderers, who had not fulfilled the condition of depositing the EMD, filed a writ petition for a direction to the Electricity Board, who had floated the tender, to accept its bid without fulfilling the requirement of depositing the EMD. The case of the petitioner was that insistence on collecting such EMD from licensed tenderers and not from Central or State Organizations and Public Sector Undertakings was an undue favour to them. The case of the petitioner was that insistence on collecting such EMD from licensed tenderers and not from Central or State Organizations and Public Sector Undertakings was an undue favour to them. Learned single Judge, by way of ex parte interim order, directed the Electricity Company to accept the tender of the petitioner without depositing the EMD. It was in this background, the Supreme Court observed as under: “10. The principle is, therefore, well settled that the terms of the invitation to tender are not open to judicial scrutiny and the Courts cannot whittle down the terms of the tender as they are in the realm of contract unless they are wholly arbitrary, discriminatory or actuated by malice. This being the position of law, settled by a catena of decisions of this Court, it is rather surprising that the learned single Judge passed an interim direction on the very first day of admission hearing of the writ petition and allowed the appellants to deposit the earnest money by furnishing a bank guarantee or a bankers— cheque till three days after the actual date of opening of the tender. The order of the learned single Judge being wholly illegal, was, therefore, rightly set aside by the Division Bench.” 11. The facts of the present case are vitally different. The petitioners never intended to participate in the tender process without payment of EMD. Only the mode of depositing such amount was the cause of some confusion. As noted above, such confusion was possible on account of the inadvertent error on the part of respondent No. 2 Municipality. Bona fides of the petitioners can be judged from the fact that they did deposit the entire amount; the mode alone being not to the satisfaction of the Municipality. We do not at all dispute the authority of the Municipality to insist on collecting the EMD in a particular mode and no other. If the issue was as clear as that, the petitioners could not have sought qualification without fulfilling such requirement in the manner insisted by the Municipality. We do not at all dispute the authority of the Municipality to insist on collecting the EMD in a particular mode and no other. If the issue was as clear as that, the petitioners could not have sought qualification without fulfilling such requirement in the manner insisted by the Municipality. However, when we find that ample confusion was possible that too, due to the conditions prescribed by the Municipality and when we also find that the condition of depositing EMD was satisfied, though the mode of such deposit, due to peculiar facts, varied from that specified in the tender conditions, we do not find that the action of the Municipality disqualifying the petitioners was justified. 12. We have proceeded on the basis that the petitioners were disqualified only on account of tendering of EMD through FDR. 13. In the result, respondent No. 2 Municipality shall consider the petitioners qualified for being considered in the tenders in question, of course, subject to fulfillment of all other requirements. Their financial bids would be opened and would be considered in competition with other qualified contractors. 14. Petitions are disposed of accordingly. Direct service permitted. Order accordingly.