JUDGMENT : Dr. B.R. SARANGI, J. The Chief Engineer and Basin Manager, R.V.N. Basin, Berhampur-opposite party no.2 issued notice inviting tender through e-procurement for execution of the work “Construction of Right Head Regulator at RD 998 M of Dam Axis for Right Main Canal of Ret Irrigation Project” vide Bid Identification No.CE & BM, RVN Basin (RID) 06/2008-09. As per Detailed Tender Call Notice (DTCN), the tender documents were to be downloaded from the Government website from 10.00 AM on 28.01.2009 to 17.00 hours of 16.02.2009 on payment of Rs.10,000+ 4% VAT, i.e., Rs.10,400.00 only for each set. It was also indicated that papers would be received through Government website only from 10.00 AM on 02.02.2009 to 17.00 hours of 16.02.2009. The tender was to be submitted in two covers, cover-1 was to contain Earnest Money Deposit (EMD), signed DTCN, copy of registration certificate, PAN card, valid VAT clearance certificate, certificates duly filled-in and documents required as per the relevant clauses of the DTCN and special conditions, if any. The cover was to be sealed and super-scribed as Cover-I (Technical Bid) for the work duly filled in and signed by the tenderer and was to be super-scribed as Cover-II (Price Bid) for the work. 2. In consonance with the conditions stipulated in DTCN, the petitioner submitted its Cover-I (Technical Bid) and Cover-II (price bid) along with others. As per the condition, the work was to be completed in all respect within 18 calendar months from the date of issue of work order. All tenders received were to remain valid for 3 months from the date of their receipt and validity of tenders could also be extended, if agreed to by the tenderers and the Department. The tenderer, whose tender was accepted, must submit a programme of work immediately after issue of work order for approval of Engineer-in-charge. The date of commencement of work was to be, as notified in the work order. The bids for the works would remain open for acceptance for a period of 90 days from the last date of receipt of bids. The date of commencement of work was to be, as notified in the work order. The bids for the works would remain open for acceptance for a period of 90 days from the last date of receipt of bids. If any bidder/tenderer withdrew its bid/tender before the said period or made any modification in the terms and condition of the bid, the EMD would be forfeited if the tenderer backed out from offer before acceptance of tender by the competent authority as concurred in by Law Department and Finance Department in their UOR No.848/L 31.05.1997 and UOR NO.202/WFD Dt. 06.03.1998 respectively and also the EMD would be forfeited, if the tenderer failed to sign the agreement after acceptance and not willing to deposit the required ISD and additional performance security for the unbalance tender items. 3. The petitioner being found the lowest bidder, was intimated vide letter dated 16.05.2009 indicating the validity of tender would expire on 17.05.2009 (within 90 days since last date of receipt of bids) and accordingly request was made for giving willingness for a further period of 90 days revalidity of tender on or before 25.05.2009. In response to same, the petitioner intimated on 25.05.2009 that since the validity period of 90 days for the work in question was over, the EMD deposited by the petitioner be refunded/released to its authorized signatory whose signature was attested. After expiry of validity period of 90 days, the petitioner was communicated vide letter dated 27.05.2009 that its tender had been accepted by opposite party no.2 for an amount of Rs.3,08,03,787/- being the lowest one and it had been called upon to deposit ISD amounting to Rs.2,81,076/-. The petitioner, on 31.05.2009, communicated to opposite party no.4 stating that 90 days validity period having been passed on 17.05.2009, the petitioner was not willing to extend the validity of the tender for any further period. 4. Opposite party no.4 vide letter dated 12.08.2009 communicated to the petitioner indicating that the EMD amount deposited by the petitioner for the work in question in shape of TDR pledged was forfeited and further action as deemed fit would be initiated as per Clauses-42 and 67 of Section-I (NIT & DTCN) and as per clause xxii of Works Department Resolution No.22348 dated 19.11.2005, and no further claim would be entertained in that regard in future. Further, on 20.08.2009 the petitioner had been intimated that TDA, which was duly pledged in favour of opposite party no.4, had been duly encashed and up to date interest calculation has been made by the State Bank of India, Bhawanipatna, which came to Rs.3,42,055/-. Out of which the forfeited amount of Rs.3,34,800/- deposited to the Government revenue and the balance amount of Rs.7,255/-was sent in shape of Bank cheque No.J466770 dated 17.08.2009 to the petitioner, which the petitioner refused to receive. Being aggrieved by the forfeiture of EMD amount vide letter dated 12.08.2009 and consequential refund of excess amount of interest after adjustment of the EMD amount on encashment of TDA dated 20.08.2009, the petitioner has filed this writ petition. 5. Mr. Tanmay Mishra on behalf of Mr. M.K. Mishra, learned Senior Counsel for the petitioner strenuously urged that the lowest bid offered by the petitioner, for the work in question, having not been accepted within 90 days (i.e., the period of validity of tender) but after expiry of 90 days period on 17.05.2009, since the last date of receipt of bids, the petitioner’s claim for refund of EMD amount made on 25.05.2009 having not been acceded to and, on the other hand, the same having been forfeited, the opposite parties have committed grave illegality and irregularity, which cannot be sustained in the eye of law. 6. Mr. B.P. Pradhan, learned Addl. Government Advocate for the State-opposite parties, justifying the action taken by the authorities in forfeiting the EMD amount deposited by the petitioner, strenuously urged before this Court that the petitioner having backed out from the tender by refusing to extend the validity of the period of tender, which was for 90 days, and further being not willing to deposit the ISD amount and execute the work on the flimsy ground of onset of rainy season, no fault can be found with the authorities in forfeiting the EMD, as the same has been done in terms of Clause-42 (para-13), Clause-67 (para-17) of Section-1 (NIT & DTCN) and as per Clause-XXII of Works Department Resolution No.22348/10 dated 16.11.2005. To substantiate his contention he has relied on National Thermal Power Corporation Limited v. Ashok Kumar Singh and others, (2015) 4 SCC 252 . 7. To substantiate his contention he has relied on National Thermal Power Corporation Limited v. Ashok Kumar Singh and others, (2015) 4 SCC 252 . 7. From the above pleadings of the parties, the moot question that falls for consideration of this Court is, whether the forfeiture of earnest money deposited by the petitioner before acceptance of tender is justified or not. 8. For effective adjudication of the matter, it is worthwhile to have a glance on the relevant clauses of the Notice Inviting Tender (NIT) and the Detailed Tender Call Notice (DTCN). Clause-10 of the notice inviting tender reads thus: “The bids for the works shall remain open for acceptance for a period of 90 days from the last date of receipt of bids. If any bidder/tenderers withdraws his bid/tender before the said period or makes any modification in the terms and condition of the bid, the EMD deposited at the time of submission of tender shall stand forfeited”. Similarly, Clause-67 of the DTCN reads as follows: “The EMD will be forfeited if the tenderer backs out from offer before acceptance of tender by the competent authority as concurred in by law Deptt. & Finance Deptt. in their UOR No. 848/L 31.5.97 & UOR No. 202/WFD Dt. 6.3.98 respectively. (Works Deptt. Memo No. 101/Clt. 30.03.98) also the EMD will be forfeited if the tenderer failed to sign the agreement after acceptance and not willing to deposit the required ISD and additional performance security for the unbalance tender items”. 9. On perusal of the above mentioned clauses it is made clear that: (i) the bids for the works shall remain open for acceptance for a period of 90 days from the last date of their receipt; (ii) the EMD will be forfeited if the tenderer backs out from offer before acceptance of tender by the competent authority; and (iii) the EMD will be forfeited if the tenderer failed to sign the agreement after acceptance and not willing to deposit the required ISD and additional performance security for the unbalance tender items. 10. In view of the conditions referred to above, a time stipulation of 90 days was prescribed for acceptance of the bids offered by the bidders. Admittedly, the validity of tender expired on 17.05.2009, with the expiry of 90 days period, as stipulated in the notice inviting tender. 10. In view of the conditions referred to above, a time stipulation of 90 days was prescribed for acceptance of the bids offered by the bidders. Admittedly, the validity of tender expired on 17.05.2009, with the expiry of 90 days period, as stipulated in the notice inviting tender. Nothing has been produced before this Court to indicate that the petitioner was the first lowest bidder and as such its bid was accepted by the authority. On the other hand, before one day of expiry of 90 days period, i.e., on 16.05.2009 vide Annexure-2 a request was made by the opposite parties to the petitioner to give willingness to revalidate his tender for a further period of 90 days on or before 25.05.2009. The petitioner wrote a letter on 25.05.2009 to opposite party no.4 candidly stating that the validity period of 90 days for the work in question having been over, its EMD for the said work be refunded/released. But, on 27.05.2009, opposite party no.4 made a communication to the petitioner that the petitioner being the first lowest tenderer, its tender has been accepted by the opposite parties and the petitioner was required to deposit the ISD amounting to Rs.2,81,076/- duly pledged in favour of the Executive Engineer, Ret Irrigation Division, Bhawanipatna. In reply to letter dated 16.05.2009 (Annexure-2), the petitioner on 31.05.2009 again communicated to opposite party no.4 stating that 90 days validity period being already passed on 17.05.2009, the petitioner is not willing to extend the validity of the tender for any further period. Without considering the same, on 12.08.2009, opposite party no.4 forfeited the EMD, and on 20.08.2009, the EMD deposited in shape of TDA was encashed and after deducting the forfeited amount, the balance amount was refunded to the petitioner in shape of a cheque, which the petitioner refused to receive. 11. Section 55 of the Indian Contract Act, 1872 deals with effect of failure to perform at fixed time, in contract, in which time is essential. 11. Section 55 of the Indian Contract Act, 1872 deals with effect of failure to perform at fixed time, in contract, in which time is essential. Section 55 of the Act states as follows: “When a party to a contract promises to do a certain thing at or before a specified time, or certain things at or before specified times, and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable at the option of the promise, if the intention of the parties was that time should be of the essence of the contract.” On perusal of the above mentioned provision, which provides for a special Rule in regard to the performance of a promise to do a certain thing at or before the specified time, namely, that (unlike terms of contracts generally) the Court is not to enforce such a promise in accordance with its term but is to enforce it subject to the provisions of Section 55. 12. In Jamshed Rhodaran Irani v. Burjorj Dhunjibhai, 1915 Privy Council 1983, law is well settled that the intention to make time essence of contract must be expressed in unmistakable language. 13. In Gomathinayagam Pillai and others, v. Palaniswami Nadar, AIR 1967 SC 868 , the Apex Court held as follows: “The intention as to time being of the essence of the contract may either be express or implied”. In view of such position, time is always considered of the essence of the contract in following cases: (i) Where the parties have expressly agreed to treat it as of the essence of contract. (ii) Where delay operates as an injury, and (iii) Where the nature and necessity of the contract require it to be so construed. 14. Applying the said text to the present context, it appears that the bid of the bidder was to be accepted within 90 days from the date of its submission. Admittedly, though the petitioner was the lowest bidder, his bid has not been accepted nor any scrap of paper has been produced before this Court indicating that the bid of the petitioner has been accepted by the authority within the time specified, i.e., 90 days. Admittedly, though the petitioner was the lowest bidder, his bid has not been accepted nor any scrap of paper has been produced before this Court indicating that the bid of the petitioner has been accepted by the authority within the time specified, i.e., 90 days. On the other hand, the documents enclosed to the writ petition indicate that before expiry of 90 days period on 17.05.2009, a communication was made on 16.05.2009 to revalidate the tender period for a further period of 90 days and till such period the offer of the petitioner, as the lowest bidder, was not accepted. Therefore, after expiry of 90 days period of acceptance of the tender, the petitioner requested on 25.05.2009 to refund and release the EMD amount in its favour. As per Clause 67 of the DTCN, the EMD can be forfeited, (i) if the tenderer backs out from offer before acceptance of tender by the competent authority, (ii) if the tenderer fails to sign the agreement after acceptance and not willing to deposit the required ISD and additional performance security for the unbalance tender items. As per clause-10 of the notice inviting tender, which stipulates the bids for the works shall remain open for acceptance for a period of 90 days from the last date of receipt of bids, the question of tenderer backing out from the offer before acceptance of the tender by the competent authority, in the present context, does not arise. In other words, admittedly, 90 days period from date of receipt of bids had already been over on 17.05.2009. Therefore, even though the petitioner was the lowest bidder, as its bid was not accepted nor any such communication was received by it within time, the petitioner requested for refund of EMD amount on 25.05.2009. With regard to the request made on 16.05.2009 for revalidation of 90 days period, whether the same was communicated or not well within the time specified, nothing has been produced before this Court by the opposite parties. So far as the rest conditions for forfeiture of the EMD amount are concerned, the same are not attracted to the present case. 15. Reliance has been placed by Mr. So far as the rest conditions for forfeiture of the EMD amount are concerned, the same are not attracted to the present case. 15. Reliance has been placed by Mr. B.P. Pradhan, learned Additional Government Advocate on the judgment in National Thermal Power Corporation Limited (supra) wherein the Apex Court held that forfeiture of earnest money when it is made for breach of auction/tender conditions at pre-contractual stage when no contract has yet come into existence, does not infringe any statutory right under the Contract Act, 1872 since earnest/security is given and taken in such cases to ensure that a contract comes into existence. The tenderer has a right to withdraw his offer, but he will have no right to claim refund of earnest money, if said offer is subject to condition that earnest money will be forfeited if offer is withdrawn. On perusal of factual matrix of the said case, it appears that the condition 2 of the said contract reads as follows: “2. The earnest money shall be forfeited on the following grounds: (a) On revocation of the tender or, (b) On refusal to enter into a contract after ward to a contractor or (c) If the work is not commenced after the work is awarded to a contractor.” A plain reading of the above would show that one of the special conditions of the contract, subject to which the intending bidders could submit their bids, was that the earnest money accompanying the bid shall be forfeited in any one of the three contingencies referred to in Condition 2. One of these contingencies was revocation of the tender, which would in the context in which the special provision is made imply any withdrawal of the bid/tender by the bidder concerned. The aforementioned contingency does not arise in the present case. Rather, factually the present case is completely different from that of the judgment of the Apex Court mentioned supra. 16. In view of the facts and circumstances as well as law discussed above, the petitioner is justified in claiming refund of the earnest money deposited by it after expiry of 90 days period as per Clause-10 of the conditions stipulated in the notice inviting tender issued by opposite party no.2. 16. In view of the facts and circumstances as well as law discussed above, the petitioner is justified in claiming refund of the earnest money deposited by it after expiry of 90 days period as per Clause-10 of the conditions stipulated in the notice inviting tender issued by opposite party no.2. Therefore, in our considered opinion, the order dated 12.08.2009 in Annexure-6 forfeiting the EMD amount and consequential refund of interest out of the deposit of earnest money dated 20.08.2009 in Annexure-8 cannot sustain in the eye of law. Accordingly, the same are hereby quashed and opposite party no.2 is directed to refund the EMD amount with 10% simple interest per annum from the date of claim of the petitioner for refund of EMD, i.e. 25.05.2009, till actual payment is made to the petitioner. 17. With the aforesaid observation and direction, the writ petition is allowed. No order as to cost.