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 & 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 Later he was given a termination letter which rescinded the contract on the ground that he had failed to submit the required performance guarantee after 60 days from the issue of the Letter of Award.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. & 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.”
Considering the facts of the case and the legal precedents, the court observed As per Section 9 of the General Clauses Act, the 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. Thus terminating the contract was erroneous and not sustainable.