ORDER : 1. Heard learned counsel for the parties. Both the appeals have been tagged together and are being heard analogously as they involve the same issue and arise out of the judgments of learned Single Judge passed on the same date 22nd April, 2014 in two writ petitions W.P.(C) No. 6213/2011 and W.P.(C) No. 6255/2011 of the same writ petitioner. The dates of tender notices were also same. Facts of both the writ petitions are common, but for convenience sake, relevant material facts as borne from the writ petition W.P.(C) No. 6213/2011 are being noticed hereunder. 2. The legal issue posed for answer in both the appeals is whether the action of the employer/respondent-Steel Authority of India Limited/appellants herein in forfeiting the earnest money of the petitioner was proper in the eye of law or not. Learned Single Judge was of the view that since the petitioner withdrew his bid offer after expiry of 90 days i.e. the validity period offender as per Clause-5 of the tender notice, as the respondents were at fault in not issuing the work order within the stipulated period, there was no question of application of penalty clause for forfeiting the petitioner's earnest money. The bare facts required to be noticed for determination of this issue are as under:-- 3. Petitioner in the respective writ petitions participated under two tender notices both dated 26th November, 2010; one for production and dispatch of dolomite and the other for limestone. On the scheduled date of opening of the tender there was only one offer. The date of opening of tender was extended with the approval of the competent authority and within the extended time two additional offers were received. Since three tenders were received and still they were less than the required number of tenders as per PCP-2009, the opening date of tender was again extended up to 5th February, 2011 with the approval of the competent authority. On request of the existing contractors, date of opening of tender was again extended up to 18th February, 2011 with the approval of the competent authority when five more offers were received which increased the number of offers to eight. Evaluation of these eight offers were done by the Tender Committee. Only seven of them qualified techno-commercially. 4. When the price bid was opened, the writ petitioner company emerged as L-1 tenderer. Evaluation of these eight offers were done by the Tender Committee. Only seven of them qualified techno-commercially. 4. When the price bid was opened, the writ petitioner company emerged as L-1 tenderer. His rate was 14.93% higher than the departmental estimate which was beyond the permissible range of deviation (+) 2.5% on higher side for such type of jobs. The respondent-SAIL received a letter in between from an M.L.A. of Bhawanathpur on 24th April, 2011 alleging that the writ petitioner company did not execute any job and had submitted fake documents. The tender committee in its meeting held on 30th April, 2011 and 3rd May, 2011 deliberated on the issue and examined the documents submitted by the writ petitioner and decided that before processing of the tender, some of the documents submitted by him related to income tax return and TDS may be verified. Letters were written to the Income Tax Officers of Ranchi, Daltonganj and Bengaluru for verification/authentication. The DGM (M) BNP-TDR Mines submitted one report in which he also expressed doubt about the work experience of the respondent. Tender Committee decided to check and verify from the website of Income Tax Department. Its TAN number indicated in the TDS certificate in the financial year 2009-10 issued by M/s. Maa Vaishnav Enterprises, Dola Chopan, Sonebhadra (U.P.) was one such document submitted by the writ petitioner. On downloading the data the following anomalies were indicated in the TDS certificate:-- (a) Name of the TAN Holder was mentioned as "MAA Vaishno Enterprises" which is different from "Maa Vaishnav Enterprises" as indicated in the TDS certificate. (b) Address of the TAN Holder was mentioned as "K-1/93, Machhodri, Bisheswargang, Varanasi, Uttar Pradesh" which was different from Dola, Chopan, District-Sonebhadra (UP) as indicated in the TDS certificate. (c) PAN Number of the TAN Holder was mentioned as "AACFM7817M" which was different from "AARFM7817Q" as indicated in the TDS certificate. 5. The Tender Committee of Tulsidamar Dolomite Mines also examined all letters received from various sources by the Contract Cell after their earlier meeting dated 30th April, 2011. It decided that respondent should be asked to establish the authenticity of the work experience and some specific documents/statements/declarations should also be furnished by him. The writ petitioner had, in the meantime, revised his offer rate from Rs. 592.25 to Rs. It decided that respondent should be asked to establish the authenticity of the work experience and some specific documents/statements/declarations should also be furnished by him. The writ petitioner had, in the meantime, revised his offer rate from Rs. 592.25 to Rs. 570.00 per Metric Ton vide letter dated 30th April, 2011 and extended the validity of their offer for further period of two months w.e.f. 19th May, 2011 in response to the letter dated 30th April, 2011 of the SAIL. The revised offer was still 10.25% higher than the departmental estimate. In order to satisfy the genuineness of the documents/work experience, the appellant-SAIL through letter dated 17th May, 2011 requested the respondent to submit additional documents/clarification and to come to the office of D.G.M.(CC), Kolkata on 24th May, 2011 along with the documentary proof. However, without complying the same, the writ petitioner company through his letter dated 17th May, 2011 requested the appellant-SAIL to finalise the tender. Further on 18th May, 2011 it sent a letter through FAX and E-Mail and intimated that they were withdrawing their letter dated 30th April, 2011 containing the extension of validity of their offer vide another letter dated 19th May, 2011. The writ petitioner withdrew his offer and requested the appellant to refund the earnest money. 6. In this background when the writ petitioner resiled from his letter dated 30th April, 2011, and not only withdrew the said letter of extension, but also withdrew its offer before expiry of the extended two months period, the appellant-SAIL proceeded to forfeit its earnest money by the impugned order dated 18th June, 2011. 7. Learned Single Judge took note of some of the bare facts without these details and came to a conclusion that when the employer-SAIL did not issue the work order even beyond the validity period of 90 days as per Clause-5 of the tender notice, the contractor was well within his rights to withdraw its offer. Since there was no violation of Clause-5 of the tender notice, therefore there was no question of forfeiting the petitioner's earnest money. Accordingly, the impugned letter forfeiting earnest money was quashed as being wholly arbitrary, illegal and unjust. 8. Learned counsel for the appellants and the writ petitioner/respondent contractor have argued against and in support of the impugned judgment. Since there was no violation of Clause-5 of the tender notice, therefore there was no question of forfeiting the petitioner's earnest money. Accordingly, the impugned letter forfeiting earnest money was quashed as being wholly arbitrary, illegal and unjust. 8. Learned counsel for the appellants and the writ petitioner/respondent contractor have argued against and in support of the impugned judgment. While learned counsel for the appellant has harped upon the material facts noted hereinabove to justify the decision of the forfeiture of the earnest money, the counsel for the writ petitioner has relied upon Clause-5 of the tender notice whereunder the penalty for forfeiture of the earnest money could have been levied in case of withdrawal of the bid offer within a period of 90 days only. Learned counsel for the appellants has relied upon a judgment rendered, by the Apex Court in Bhanwar Lal vs. State of Rajasthan reported in 1995 Supp. (4) SCC 726. 9. We have considered the submissions of the counsel for the parties, gone through the relevant materials on record pleaded and also delved upon the position in law as given by the Apex Court from time to time on the subject. 10. Here is a case on facts, where original terms of tender notice specifically Clause-5 were not adhered due to circumstances detailed in by the appellant-SAIL as per the sequence of facts noticed hereinabove. SAIL extended date of opening of the bid on more than one occasions in order to await sufficient number of offers. This was never objected to by the writ petitioner nor the bid was withdrawn as a result of the extension of the date of opening of bid. Out of 8 such offers, 7 were found to be technically and commercially viable and when the bid was opened, the writ petitioner company was found to be L-1. The Tender Committee undertook the process of verification of the documents submitted by the tenderer on receipt of complaints relating to its genuineness. It accordingly requested the bidder to extend the validity period of its offer for two months which was duly extended by letter dated 30th April, 2011. The bidder was also asked to submit additional documents/clarification in respect of the documents such as TAN number, TDS certificate, PAN number, etc. which created doubts about original documents submitted by him. It accordingly requested the bidder to extend the validity period of its offer for two months which was duly extended by letter dated 30th April, 2011. The bidder was also asked to submit additional documents/clarification in respect of the documents such as TAN number, TDS certificate, PAN number, etc. which created doubts about original documents submitted by him. However, instead of responding to the request for clarification within the extended period of its offer, it chose to withdraw its letter dated 30th April, 2011 extending the offer for two months and also chose to withdraw the bid itself on 18th May, 2011. It is clear from these facts that on the one hand there was no concluded contract between the parties on the other hand the bidder, despite extending the validity of its offer for two more months w.e.f. 30th April, 2011, chose to resile and withdraw the bid offer as well as its commitment to extend the offer for two months. The terms under Clause-5 of the tender notice by virtue of the conduct of the parties had got extended beyond the validity period of 90 days as are evident from the aforesaid facts. If the Tender Committee found the documents submitted by the bidder to be suspicious or doubtful in nature, the bidder was under obligation to clarify the same and that too within the extended period of his offer. In that sense there was a clear breach of the tender condition on the part of the bidder and taken further, if the genuineness of certain documents were not clarified, the employer SAIL had sufficient reason to believe that there was misrepresentation on the part of the bidder. 11. In these circumstances, when breach of tender conditions and misrepresentation on the part of the bidder were undeniable on facts, the action of the employer SAIL to forfeit the earnest money cannot be said to be arbitrary, illegal and unjust. As has been noticed hereinabove, the facts of the present case are not one where the earnest money has been forfeited after conclusion of the contract for any alleged breach of the terms and conditions of the contract. This is a case where the earnest money has been forfeited on the ground of breach of the conditions of the tender notice and/or misrepresentation on the part of the bidder. This is a case where the earnest money has been forfeited on the ground of breach of the conditions of the tender notice and/or misrepresentation on the part of the bidder. We may profitably rely upon the opinion of the Apex Court rendered in M/s. Kailash Nath Associates vs. Delhi Development Authority & Anr. reported in (2015) 4 SCC 136 : [2015 (2) JLJR (SC) 285]. The Apex Court has drawn clear distinction in case of forfeiture of earnest money at a pre-contractual stage and post-contractual stage. The forfeiture of earnest money in post-contractual stage are governed by the terms and conditions of the contract and Sections 73 and 74 of the Indian Contract Act. However, if the forfeiture has been before the conclusion of the contract, the Apex Court had the following observations:-- "15. Having heard the learned counsel for the parties, it is important at the very outset to notice that earnest money can be forfeited under sub-clause (iv) set out hereinabove, only in the case of default, breach, or noncompliance with any of the terms and conditions of the auction, or on misrepresentation by the bidder." "43.7. Section 74 will apply to cases of forfeiture of earnest money under a contract. Where, however, forfeiture takes place under the terms and conditions of a public auction before agreement is reached, Section 74 would have no application." 12. Learned Single Judge failed to have taken notice of the relevant material facts which went on to show that the bidder was guilty of breach of the terms and the conditions of tender notice by resiling from his stand of extension of bidder offer for two more months w.e.f. 30th April, 2011. This was in the background facts where he had been asked to clarify doubts about the genuineness of the documents submitted in original at the time of submission of bid. As already observed above, if the bidder had failed to remove any doubt about the genuineness of the documents submitted by him on being asked, the employer-SAIL had good reason to come to an opinion that the bidder had indulged in misrepresentation. In such circumstances, the conduct of bidder was not bona fide. The terms of the tender notice cannot be literally construed in a manner to denude the employer-SAIL from forfeiting the earnest money of such bidder. In such circumstances, the conduct of bidder was not bona fide. The terms of the tender notice cannot be literally construed in a manner to denude the employer-SAIL from forfeiting the earnest money of such bidder. Learned Single Judge, therefore, seems to have committed an error of facts and law in appreciating the case of the parties in its correct perspective. We are, therefore, inclined to interfere in the impugned judgments. The impugned judgments are accordingly set aside. The action of the appellant-SAIL in forfeiting the earnest money of the writ petitioner is upheld. The legal issue posed at the outset is answered in the affirmative. Appeal stands allowed. Pending interlocutory applications are closed.