The date of issuance of a Letter of Acceptance has to be taken as day “zero” and not day “one”: High Court of Delhi
The legal position that emerges is that law disregards fractions. While calculating the number of days, the fraction of a day has not to be counted. If anything is to be done within a certain time of, from, or after the doing or occurrence of something else, the day on which the first act or occurrence takes place is to be excluded from the computation. This was held in M/S JAI DURGA ENTERPRISES. V. UOI &amp; ORS.. [W.P.(C) 7611/2020] in the High Court of Delhi by a single bench consisting of JUSTICE SANJEEV SACHDEVA. The facts are that the Petitioner was a successful bidder and was awarded a contract. Later he was given a termination letter which rescinded the contract on the ground that he had failed to submit the required performance guarantee after 60 days from the issue of the Letter of Award. Resultantly every partner, as well as the partnership firm, was debarred from participating in the re-tendering process and the earnest money that was deposited was forfeited. The counsel for the petitioner submitted that the termination is bad in law as the performance guarantee was submitted within time, the termination on the ground that it was not submitted even after 60 days is bad in law and the consequential debarment of the petitioner and the proprietor, as well as the forfeiture of the earnest money deposit, should be set aside. The counsel for the respondent submitted that in terms of the Letter of Acceptance, the performance guarantee was to be submitted within 21 days, which was extendable to 60 days by the competent authority and since the petitioner had failed to submit the performance guarantee within 60 days, the contract was rightly terminated and petitioner was debarred whilst the bank guarantee was forfeited. The court made reference to the judgment of Apex Court in Tarun Prasad Chatterjee Vs. Dinanath Sharma., wherein it was held that “Expressions such as ‘from such a day’ or ‘until such a day’ are equivocal since they do not make it clear whether the inclusion or the exclusion of the day named may be intended. As a general rule, however, the effect of defining a period in such a manner is to exclude the first day and to include the last day”. The court also made reference to the judgment of Apex court in M/s. Econ Antri Ltd. Vs. Rom Industries Ltd. &amp; Anr., wherein it was held that “…day from which such period is to be reckoned is to be excluded for calculating limitation….However, since, in the instant case we have reached a conclusion on the basis of Section 9 of the General Clauses Act, 1897 and on the basis of a long line of English decisions that where a particular time is given, from a certain date, within which an act is to be done, the day of the date is to be excluded.”
IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: 24.05.2021 W.P.(C) 7611 2020 & CM. APPLS. 25237 2020 & 13915 2021 M S JAI DURGA ENTERPRISES ….. Petitioner UOI & ORS. Advocates who appeared in this case: For the Petitioner: Mr. Saurabh Bajaj Advocate. For the Respondent: Ms. Rashmi Malhotra Advocate for the Respondents. CORAM: HON’BLE MR. JUSTICE SANJEEV SACHDEVA SANJEEV SACHDEVA J.The hearing was conducted through video conferencing. Learned counsel for respondent submits that reply to CM Application No.13915 2021 diary No. E 380690 2021 on 22.05.2021. However the same is not on record but a copy has been furnished on the e mail of the Court Master. The same is taken on record. The Registry is also directed to place the reply on record. W.P.(C) 7611 2020 1 Learned counsel submits the reply along with documents be read in addition to the short reply to the writ petition filed by the respondents. letter dated 18.08.2020 whereby the contract awarded to the petitioner has been rescinded on the ground that he has failed to submit the requisite performance guarantee even after 60 days from the issue of Letter of Awardi.e. 03.01.2020 and further every member partner as an individual or as a partnership firm joint venture has been debarred from participating in the re tendering process and the earnest money deposit forfeited. Learned counsel for the petitioner submits that the termination is bad in law inasmuch as the performance guarantee was submitted on the 60th day and not on the 61st day as alleged by the respondents. He submits that since the performance guarantee was submitted within time the termination on the ground that it was not submitted even after 60 days is bad in law and the consequential debarment of the petitioner and the proprietor as well as the forfeiture of the earnest money deposit is liable to be set aside. Learned counsel appearing for the respondent submits that the performance guarantee was submitted on the 61st day from the date of issuance of the Letter of Award and not on the 60th day as W.P.(C) 7611 2020 2 alleged by the counsel for the petitioner. She submits that in terms of the Letter of Acceptance the performance guarantee was to be submitted within 21 days which was extendable to 60 days by the competent authority and since the petitioner had failed to submit the performance guarantee within 60 days respondents had rightly terminated the contracted debarred the petitioner and forfeited the bank guarantee. The facts leading to the present petition are that on 26.07.2019 a notice inviting bids was issued by the respondent for indoor and outdoor RRI Signalling work at B Panel and addition and alternation at Anand Vihar station in connection with part commissioning of 3rd and the 4th line between Sahibabad Anand Vihar in Delhi Division of Northern Railway. Petitioner submitted his bid and his bid was accepted and a Letter of Acceptance dated 03.01.2020 was sent by e mail on 03.1.2020 at 15:16:31. The admitted position is that as per the Letter of Acceptance the performance guarantee was to be submitted as per the General Conditions of Contracttender document. 10. As per the General Conditions of Contract the successful bidder had to submit a performance guarantee within 21 days from the date of issue of Letter of Acceptance 7611 2020 3 submission of performance guarantee beyond 21 days and upto 60 days from the date of issue of Letter of Acceptance can be given by the authority who is competent to sign the contract again. However a penal interest of 12% per annum is to be charged for the delay beyond 21 days. It further provides that in case the contractor fails to furnish the requisite performance guarantee even after 60 days from date of issue of LOA the contract is liable to be terminated and the earnest money deposit forfeited. 11. The admitted position is that the petitioner submitted the performance guarantee on 03.03.2020. 12. The Letter of Award was issued on 03.01.2020 at 3.16 P.M.. Though the contention of learned counsel for the petitioner is that the document was first viewed only on 04.01.2020 at 10.56 P.M. It will not make a difference as to whether petitioner read the email on 03.01.202.01.2020. The crucial fact would be as to when the e mail was sent by the Respondent and received by the petitioner. Admittedly the e mail was sent and received on 03.01.2020 at 3.16 P.M. Thus the date of issuance of Letter of Acceptance would have to be taken as 03.01.2020. 13. The issue that arises for consideration is as to whether the performance guarantee has been furnished on the 60th day or the 61st day. To determine the said issue the question that falls for W.P.(C) 7611 2020 4 determinations is as to whether 03.01.2020has to be considered as day “one” or day “zero” for the purposes of calculating 60 days. If the date of issuance of Letter of Awardis to be taken as day “one” then the performance guarantee which was submitted on 03.03.2020 would have been submitted on 61st day i.e. beyond the stipulated period provided by the General Conditions of Contractof the contract. In case 03.01.2020 is to be taken as day “zero” then the performance guarantee was submitted on the 60th day and consequently the termination would not be sustainable. 15. Section 9 of the General Clauses Act 1897 reads as under: “9. Commencement and termination of time.— 1) In anyor Regulation made after the commencement of this Act it shall be sufficient for the purpose of excluding the first in a series of days or any other period of time to use the word “from” and for the purpose of including the last in a series of days or any other period of time to use the word “to”. 2) This section applies also to all made after the third day of January 1868 and to all Regulations made on or after the fourteenth day of January 1887.” In terms of Section 9 of the General Clauses Act if the expression “from” has been used then for the purposes of computing W.P.(C) 7611 2020 5 time the first in series of days has to be excluded. 17. The Supreme Court in Tarun Prasad Chatterjee Vs. Dinanath Sharma 8 SCC 649 has held as under: “10. Section 9 of the General Clauses Act 1897 gives statutory recognition to the well established principle applicable to the construction of statutes that ordinarily in computing the period of time prescribed the rule observed is to exclude the first and include the last day. 11. p. 92 it is stated as follows: In Halsbury s Laws of England 37th Edn. Vol. 3 “Days included or excluded — When a period of time running from a given day or even to another day or event is prescribed by law or fixed as contract and the question arises whether the inclusively or to be made exclusively of the first mentioned or of the last mentioned day regard must be had to the context and to the purposes for which the computation has to be made. Where there is room for doubt the enactment or instrument ought to be so construed as to effectuate and not to defeat the intention of Parliament or of the parties as the case may be. Expressions such as ‘from such a day’ or ‘until such a day’ are equivocal since they do not make it clear whether the inclusion or the exclusion of the day named may be intended. As a general rule however the effect of defining a period in such a manner is to exclude the first day and to include the last day.” 12. Section 9 says that in any Central Act or regulation made after the commencement of the General W.P.(C) 7611 2020 6 Clauses Act 1897 it shall be sufficient for the purpose of excluding the first in a series of days or any other period of time to use the word “from” and for the purpose of including the last in a series of days or any period of time to use the word “to”. The principle is that when a period is delimited by statute or rule which has both a beginning and an end and the word “from” is used indicating the beginning the opening day is to be excluded and if the last day is to be included the word “to” is to be used. In order to exclude the first day of the period the crucial thing to be noted is whether the period of limitation is delimited by a series of days or by any fixed period. This is intended to obviate the difficulties or inconvenience that may be caused to some parties. For instance if a policy of insurance has to be good for one day from 1st January it might be valid only for a few hours after its execution and the party or the beneficiary in the insurance policy would not get reasonable time to lay claim unless 1st January is excluded from the period of computation. 13. It was argued that the language used in Section 81(1) that “within forty five days from but not earlier than the date of election of the returned candidate” expresses a different intention and Section 9 of the General Clauses Act has no application. We do not find any force in this contention. In order to apply Section 9 the first condition to be fulfilled is whether a prescribed period is fixed “from” a particular point. When the period is marked by terminus a quo and terminus ad quem the canon of interpretation envisaged in Section 9 of the General Clauses Act 1897 require to exclude the first day. The words “from” and “within” used in Section 81(1) of the RP Act 1951 do not express any contrary intention.” underlining supplied) W.P.(C) 7611 2020 7 18. The judgment in Tarun Prasad Chatterjee was relied upon by the Supreme Court in M s. Econ Antri Ltd. Vs. Rom Industries Ltd. & Anr. 11 SCC 769 wherein the Supreme Court held as under: “34. As the Limitation Act is held to be not applicable to the NI Act drawing parallel from Tarun Prasad Chatterjee v. Dinanath Chatterjee8 SCC 649] where the Limitation Act was held not applicable we are of the opinion that with the aid of Section 9 of the General Clauses Act 1897 it can be safely concluded in the present case that while calculating the period of one month which is prescribed under Section 142(b) of the NI Act the period has to be reckoned by excluding the date on which the cause of action arose. It is not possible to agree with the counsel for the respondents that the use of the two different words “from” and “of” in Section 138 at different places indicates the intention of the legislature to convey different meanings by the said words. We may at this stage note that the learned counsel for the appellant relied on State of H.P.12 SCC 210 4 SCC605] where while considering the question of computation of three months limitation period and further 30 days within which the challenge to the award is to be filed as provided in Section 34(3) and proviso thereto of the Arbitration Act this Court held that having regard to Section 12(1) of the Limitation Act 1963 and Section 9 of the General Clauses Act 1897 W.P.(C) 7611 2020 8 day from which such period is to be reckoned is to be excluded for calculating limitation. However since in the instant case we have reached a conclusion on the basis of Section 9 of the General Clauses Act 1897 and on the basis of a long line of English decisions that where a particular time is given from a certain date within which an act is to be done the day of the date is to be excluded it is not necessary to discuss whether State of H.P.12 SCC 210 4 SCC 605] is applicable to this case or not because Section 12(1) of the Limitation Act is relied upon therein.” underlining supplied) 19. A learned single judge of this court in Frank Anthony Public School Versus Amar Kaur 6 DRJ 47 while examining the question of filing of leave to defend within 15 days from service of summons held as under: “26. The expression “day” has been understood in different ways by different nations in different times. Lord Coke said: “The Jewes the Chaldeans and Babylonians begin the day at the rising of the sua the Athenians at the all the Umbri in Italy beginne at midnight and so doth the law of England in many cases”. The English day begins as soon as the clock begins to strike twelve p.m. of the preceding day. Williams v. Nash 28 L J. Ch. 886”. the Egyptians and Romanes In Halsbury s Laws of England third edition Vol. 37 P 84 it is said: W.P.(C) 7611 2020 9 “The term “day” is like the terms “year” and “month” used in more senses than one. A day is strictly the period of time which begins with one midnight and ends with the next. It may also denote any period of twenty four hours and again it may denote the period of time between sunrise and sunset.” 27. Counsel for the landlady argues that time ought to be counted from 12 5 1982 and the period of fifteen days expired on 26 5 1982. In any event he says the leave application made on 27 5 1982 was barred by time. I have no hesitation in rejecting this argument. The question is what is meant by the phrase “within fifteen days from the service hereof”. In my opinion on a proper reading of the third schedule the word “day” should be read as meaning a “calendar day”. I propose to found my decision R. v. Turner 1 K.B. 346 CCA) and Chambers v. Smith 152 E.R. 1085 and to decide that the phrase means fifteen clear days exclusive of the day of service. The words “within fifteen days of the service hereof” in the form of summons prescribed in third schedule must be construed as meaning fifteen consecutive periods of twenty four hours after the service of the summons. It is well known maxim that the law disregards 28. fractions. By the Calendar the day commenced at midnight and most nations reckon in the same manner. The English do it in this manner. We too have adopted the same. In the space of a day all the twenty four hours are usually reckoned the law generally rejecting all fractions of a day in order to avoid disputes. If anything is to be done within a certain time of from or after the doing or occurrence of something else the day on which the first act or occurrence takes place is to be excluded W.P.(C) 7611 2020 10 from the computation. Williams v. Burgess 113 E.R. 955) unless the contrary appears from the context. Hare v. Gocher. 2 Q.B. 641). The ordinary rule is that where a certain number of days are specified they are to be reckoned exclusive of one of the days and inclusive of the other.20. The legal position that emerges is that law disregards fractions. While calculating number of days fraction of a day has not to be counted. If anything is to be done within a certain time of from or after the doing or occurrence of something else the day on which the first act or occurrence takes place is to be excluded from the computation. 21. As per Section 9 of the General Clauses Act day from which such period is to be reckoned is to be excluded for calculating limitation. Where a particular time is given from a certain date within which an act is to be done the day of the date is to be excluded W.P.(C) 7611 2020 11 22. When a period is delimited by statute or rule which has both a beginning and an end and the word “from” is used indicating the beginning the opening day is to be excluded and if the last day is to be included the word “to” is to be used. Therefore when the period is marked by terminus a quo and terminus ad quem the canon of interpretation envisaged in Section 9 of the General Clauses Act 1897 require exclusion of the first day. 23. Applying the above legal position it is clear that the date on which the Letter of Acceptance has been issued has to be excluded while calculating 60 days. Accordingly the date of issuance of Letter of Acceptance has to be taken as day “zero” and not day “one”. The starting point of limitation for furnishing performance guarantee thus be 04.01.2020. Calculated from 04.01.2020 performance guarantee furnished on 03.03.2020 has to be taken as having been furnished on the 60th day and not the 61st day. In view of the above legal position the impugned letter dated 18.08.2020 the contract on the ground performance guarantee was not furnished even after 60 days from the issue of Letter of Award is erroneous and not sustainable. 25. Thus the Termination letter dated 18.08.2020 is set aside. Consequently further directions issued in the said letter debarring the petitioner as well as its members partners from participating in re W.P.(C) 7611 2020 12 tendering process and forfeiting the earnest money deposit is not sustainable and is also set aside. 26. The Writ Petition is allowed in the above terms. 27. Copy of the order be uploaded on the High Court website and be also forwarded to learned counsels through email by the Court MAY 24 2021 SANJEEV SACHDEVA J. W.P.(C) 7611 2020 13 