( 1 ) THE respondent invited tenders for the supply of coal. The petitioner has submitted his tender on August 6, 1984. Under Clause 27 of the conditions of tender, the offer shall remain valid for acceptance for a period of 60 days from the date set for opening of the tender. The tenderer shall not be entitled during the said period of 60 days, without the consent in writing from N. T. P. C. , to revoke or cancel his tender or vary the tender of any item thereof. The tender was to be opened on August 15, 1984. Before that date, the petitioner has submitted a letter on August 13, 1984, withdrawing the offer made by him. (It is unnecessary to go into the reasons for withdrawal ). The tender was accepted on August 16, 1984 and it was communicated to the petitioner by telegram on August 18, 1984. Since the petitioner has not executed the contract in terms of the conditions of tender, the earnest money of Rs. one lakh deposited by the petitioner was forfeited. The petitioner tiled this writ petition for direction to refund the earnest money.

( 2 ) THE main premise on which the petitioner rests his claim is that before acceptance of the tender, he has a right to withdraw the offer made. In this case, even before the date set for opening of the tender, the petitioner had withdrawn the tender. Therefore he committed no breach of the contract as it was at the stage of offer. Thereby, the forfeiture of the earnest money is unwarranted under law. Sri Rajagopala Reddy, his learned counsel contends that Section 5 of the Indian CONTRACT ACT, 1872 (Act IX of 1872), for short, "the Act" accords a statutory right to a tenderer to withdraw or revoke his offer before communication of its acceptance. The petitioner has exercised that right to withdraw his offer before acceptance and he is within his right to do so. Sri Subrahmanya Narusu, learned standing counsel for the respondent has contended that the petitioner having accepted the conditions of the tender, he is bound by Clause 27 thereof ; he has no unilateral right to withdraw the offer for a period of sixty days unless it is done with the written consent of the Corporation. No written consent in this case was obtained to withdraw the offer. Consequently it is open to the corporation to open the tenders and to accept the offer : the acceptance was communicated to the petitioner; he did not execute the contract and therefore the earnest money was rightly forfeited. He further contended that the supply of coal is an on-going process for generating electrical energy by the Corporation. With a view to facilitate smooth flow of coal-the raw-material for production of electrical energy; Clause 27 has been incorporated. The moment the tender has been offered, it must bi construed that it was accepted even before its communication, Therefore, the petitioner has no right to withdraw unilaterally.

( 3 ) THE question therefore is as to when the contract comes into being? Section 3 of the Act postulates thus :"the communication of proposals, the acceptance of proposals and the revocation of proposals and acceptance, respectively, are deemed to be made by any act or omission of the party proposing, accepting or revoking, by which he intends to communicate such proposal, acceptance or revocation, or which has the effect of communicating it. "section 4 postulates of communication as to when it completes. It provides that the communication of a proposal is complete when it comes to the knowledge of the person to whom it is made. The communication of acceptance as against the proposer is complete when it is put in a course of transmission to him so as to be out of the power of the acceptor. Communication of revocation is complete as against the person who makes it when it is put into course of transmission to the person to whom it is made, so as to be out of the power of the person who makes it. Section 5 provides revecation and it reads thus :"a proposal may be revoked at any time before