A. Sheik Dawood vs The State of Tamil Nadu

V. Kanagaraj, J.—This appeal suit is directed against the judgment and decree dated 23.1.1986 made in O.S. No. 157 of 1984 by the

Court of District Judge, Nilgiris at Uthagamandalam.

To trace the facts, the original suit before the trial court has been filed by the respondent herein for recovery of an amount of Rs. 15,146.79 with

interest and costs, on averments that the defendant submitted a tender and it was accepted on 13.5.1975 directing him to remit the full value within

15 days as per letter dated 20.5.1975, but the defendant defaulted, that on his failure to remove the materials on payment of an amount of Rs.

56,789.99 within the time stipulated, the earnest money deposit of Rs. 1,000 was forfeited and fresh tenders have been called for; that the highest

tender was for an amount of Rs. 40,800 and therefore the plaintiff sustained a loss of Rs. 15,989.99 apart from the advertisement charges at Rs.

156.80 but deducting the earnest money deposit of Rs. 1,000, the defendant as liable to pay a sum of Rs. 15,146.79 as per condition No. 11 of

the tender conditions and hence the suit to make good the loss to the plaintiff.

On the part of the defendant besides admitting the plaintiff calling for the tenders and the defendant submitting his tender form on 6.2.1974 and

depositing Rs. 1,000 as earnest money deposit, he would further submit that under Clause 5 of the tender conditions, the tender should be

accepted by the plaintiff within 90 days from 7.2.1974, but the plaintiff sent the letter of acceptance only on 20.5.1975; that since there was no

valid acceptance of the tender within 90 days, there was no concluded contract; that there was no breach committed on the part of the defendant

and hence he is not liable to pay damages; that he had withdrawn his tender by letters written to the plaintiff; that calling for fresh tender was not

notified to the defendant; that there is no valid contract binding on the defendant and the claim is not enforceable; that there is no cause of action

for the suit and that the defendant is entitled to recover the sum of Rs. 1,000 from the plaintiff by way of counter claim and would pray to dismiss

the suit with costs and to allow his counter claim.

The plaintiff would also file a reply statement denying the allegations of the written statement and further laying emphasis that there was a valid

and concluded contract, in which the defendant committed default; that the defendant did not protest the letter of acceptance and hence the breach

was certain and that the earnest money deposit had already been forfeited and there is no question of returning the same and would pray to decree

the suit and dismiss the counter claim of the defendant.

On the above pleadings, the trial court having framed three issues, viz.,

Whether the plaintiff is entitled to get the suit amount from the defendant as damages?

Whether there was no concluded and valid contract between the parties and whether the defendant is not liable to pay any damages to the

plaintiff?

Whether the defendant is entitled to get the refund of Rs. 1,000 from the plaintiff? and

To what relief?

has conducted a thorough trial in the case in which on the part of the plaintiff and the defendant as well, they would examine each one witness for

oral evidence, and for documentary evidence, the plaintiff would mark 13 documents as Exs.A-1 to A-13, Ex.A-1 dated 20.5.1975 being the

letter from the plaintiff to the defendant, Ex.A-2 dated 29.12.1975 being the tender notice, Ex.A-3 dated 18.1.1974 being another tender notice,

Ex.A-4, dated 13-5.1975 being the extract of G.O.Ms. No. 464, Forest and Fisheries Department, Ex.A-5 dated 20.5.1975 being the copy of

acceptance letter, Ex.A-6 dated 22.5.1975 being the postal acknowledgment in the name of the defendant, Ex.A-7 dated 4.6.1975 being the

letter by the defendant to the plaintiff, Ex.A-8 dated 17.6.1975 being the letter of the defendant, Ex.A-9 dated 19.6.1975 being the postal

acknowledgment of the defendant Ex.A-10 dated 19.7,1975 being the letter by the defendant to the plaintiff, Ex.A-11 dated 26.7.1975 being the

letter from the plaintiff to the defendant, Ex.A-12 dated 30.7.1975 being the postal acknowledgment and Ex.A-13 dated 6.2.1974 being the form

of sealed tender signed by the defendant. On the part of the defendant, two documents would be marked as Exs.B-1 and B-2 being copies of

letters respectively dated 24.10.1974 and 9.12.1974.

On these evidence placed on record and in appreciation of the same in the context of the pleadings, the trial court would ultimately decree the

suit as prayed for in favour of the plaintiff with costs. It is only aggrieved against this judgment and decree dated 23.1.1986 made in O.S. No. 157

of 1984 by the trial court, the defendant therein has come forward to prefer the above appeal suit on certain grounds as brought forth in the

memorandum of grounds of appeal.

On 9.10.2000, when the above appeal suit was taken up for consideration, only the learned Counsel for the appellant appeared and argued his

case on behalf of the appellant/defendant but no representation was made on behalf of the respondent/plaintiff and hence in consideration of the

pleadings by parties and having regard to the materials placed on record and upon hearing the learned Counsel for appellant, this Court has to

decide the above matter.

During arguments, the learned Counsel for the appellant would submit that the tender is to be accepted within 90 days from 7.2.1974; that the

respondent sent letter of acceptance only on 20.5.1975 and hence there was no valid acceptance or concluded contract. The learned Counsel

would further submit that the appellant also, on his part, withdrew from the contract by his letter dated 24.10.1974; that at a stage the plaintiff also

accepted to return the earnest money deposit; that prior to calling for the second tender, the plaintiff did not issue any notice or passed on

information to the appellant and that the Director, Chinchona Department has no authority to enter into contract, which is admitted in the relevant

paragraph of the plaint itself.

The learned Counsel for the appellant would also submit that under Clause 5 of the tender conditions, the tender should be accepted within 90

days but in fact, the respondent accepted the same over and beyond 90 days; that the respondent sent a letter of acceptance under Ex.A-5 dated

20.5.1975; that thereafter they did not care for a longtime; that in the meantime, on the part of the appellant, two letters have been sent the first one

on 24.10.1974 and the other on 9.12.1974 which are Exs.B-1 and B-2, withdrawing from the tender for which there was no reply at all; that there

was no concluded contract nor validly accepted on the part of the respondent nor had there been any notice of the second tender having been

called for; that there was no discussion at. all by the lower court on this aspect and the time element between the two auctions should also be taken

into consideration. With these arguments, the learned Counsel for the appellant would pray for the appeal to be allowed setting aside the judgment

and decree made by the lower court.

On these facts, and circumstances revealed in evidence and having regard to the materials placed on record, including the judgment and decree

passed by the lower court and upon hearing the learned Counsel for the appellant, the points that arise for determination of the appeal suit are:

(1) Whether there had been valid acceptance of tender offered by the appellant and whether there had been a concluded contract?

(2) Whether Clause 5 of the tender conditions has been violated on the part of the respondent?

(3) Whether the lower court is right in granting the reliefs as sought for in the suit?

(4) What relief, if any, is the appellant entitled to?

Points 1 and 2: Since points 1 and 2 are interconnected and interrelated, Clause 5 being a subject pertaining to the acceptance as it is

contended on the part of the appellant, it is appropriate to deal with both these points jointly.

A glance at Clause 5 would be more appropriate at this juncture to decide whether there had been any valid acceptance on the part of the

respondent regarding the tender offered on the part of the appellant. Clause 5 recites ""a tender should be kept open for acceptance for 90 days

from the date of opening the tender. No post sale offer or offers received after the last date fixed for the receipt of tenders will be entertained.

A plain reading of the above clause would reveal that it is not meant for the acceptance of the tender by the respondent, once it is offered on

the part of the individual such as appellant, but this clause is for the acceptance of the tender form from various intending parties which is spelt out

under this Clause meaning thereby that once the tender offer is made on the part of the respondent for intending tenderers to accept the same and

to come forward with their tenders, it should be kept open for 90 days from the date of opening of the tender. From the wording of the next part

of this Clause that ""No post sale offer or offers received after the last date fixed for the receipt of the tenders will be entertained"", it is clear that it is

for offering the tenders by private individuals and not for accepting the same on the part of the respondent the said 90 days have been fixed and

hence there is no pith or substance in the arguments of the appellant to the effect that once the tender is made and taken for consideration by the

respondent, it should be accepted in 90 days which is a total misconception of the provisions of the tender conditions on the part of the appellant

and nothing else. Therefore, it is safe to conclude that this clause has nothing to do with accepting the tender offer made on the part of the

appellant. Therefore, the acceptance of the tender of the appellant made on the part of the respondent has nothing to do with the 90 days

prescribed under Clause 5 and therefore it has to be concluded that the acceptance of the tender of the petitioner by the respondent is not barred

by any limitation much less by the 90 days prescribed in Clause 5 of the tender conditions. The appellant has been under a miserable

misconception of the relevant provision of the tender conditions and nothing else.

Coming to the next question of concluded contract, it is the case of the appellant that under Exs.B-1 and B-2, dated 24.10.1974 and

7.12.1974 respectively the letters written by the appellant to the respondent, he had withdrawn from the tender and hence there was no concluded

contract. At the outset, it should be noted whether this contention has any statutory or legal backing. Absolutely, no material has been placed either

before the lower court or before, this Court on the part of the appellant to the effect that he is entitled to withdraw from the tender at any point of

time for any valid reason prescribed thereunder. It is on his own accord the appellant had sent those letters stating thereby that he was withdrawing

from the tender, which has absolutely no bearing on the scheme of tender or the process of the same, since being bereft of any legality. Once the

tender is quoted and submitted, the role that is to be played on the part of the appellant so far as the scheme of tender is concerned, is over and he

should only wait for the confirmation order or acceptance by the other side to be made and it has been made under Ex. A-5 in a valid and tangible

manner and therefore just for the simple reason that suo motu and without any authority or legality the appellant wrote letters of withdrawal from

the tender, it cannot be under any circumstances, be concluded that there had been no concluded contract. Nor under the pretext that there had

been no valid acceptance, such conclusion that there had been no concluded contract could be arrived at. There has been a concluded contract

since the contract become concluded, the moment the appellant submitted his tender and it is only upto the authorities to decide whether the tender

so submitted on the part of the appellant was to their norms and within the rules and tender conditions and only for such verification the authorities

would take their own time, and hence on mere withdrawal letter sent on the part of the appellant, in the meantime, he cannot come forward to take

up the plea that there had been no concluded contract. Only accepting the norms and tender conditions, the tender is entered into on the part of the

appellant wherein the liability is attached rather fastened with the appellant then and there and the contract is concluded there itself. The other

formalities to be observed are only for the purpose of the authorities in which the appellant has absolutely no role to play. Hence, it has to be

concluded that there is a concluded contract so far as the acceptance of the tender of the appellant was made on the part of the respondent in the

case in hand.

Points Nos. 3 and 4: So far as the lower court dealing with the subject is concerned, on a perusal of the judgment it comes to be known that it

has framed proper issues and having a wide discussion based on the evidence placed on record, assessing the undercurrent of the matter right from

the time of opening the tender, down to its acceptance by the respondent, dealing with cash and every aspect that gets involved in the whole of the

case and giving expression to the tender conditions, would find that the appellant did not comply with the clauses therein and therefore, giving effect

to Clause 11 which stipulates that All monies due to the Director Chinchona Department from the successful tenderers shall be recoverable under

the Tamil Nadu Revenue Recovery Act...if there is resale on account of failure on the part of the accepted tenderer, the expenditure incurred by

the plaintiff in conducting a resale and the difference that occur in between the original sale and resale value would also be recovered from the

defaulted tendered. The lower court says that after receiving the acceptance letters the appellant/defendant had written two letters seeking further

time for payment of the amount under tender and the same in spite of having been granted, he did not turn up to pay the same and therefore as it is

seen from the evidence of P. W. 1 there was a fresh tender in which the highest offer is only Rs. 40,800. Calculating the others sundry charges and

expenses involved, ultimately the suit claim has been arrived at, on the part of the appellant, as it was found by the lower court thereby and

therefore the lower court has arrived at the valid conclusion to decree the suit as prayed for. Therefore, points No. 3 and 4 are also answered

against the appellant and in favour of the respondent.

It should be mentioned that the lower court has rightly decided to decree the suit in favour of the respondent deciding all the issues in favour of

the plaintiff and against the appellant/defendant. The issues framed on the part of the lower court and the appreciation of the evidence in the context

of the facts and circumstances of the case are within the legal precincts and well within the expectations of law No serious infirmities or

inconsistencies could be found in the entire judgment delivered by the lower court, nor the judgment and decree as passed by the lower court

suffer from any patent errors of law or perversity in approach so as to warrant interference by this Court into the same as it is prayed on the part of

the appellant. This Court does not find any valid or tangible reason to cause its interference into the well considered and well merited judgment of

the lower court.

In result, the above appeal suit is without merit and the same is dismissed. The judgment and decree dated 23.1.1986 made in O.S. No. 157

of 1984 by the Court of District Judge, Nilgiris at Uthagamandalam is confirmed.

However, in the circumstances of the case, there shall be no order as to costs.