Sec.9 of the Indian Contract Act sets out that in so far as the proposal or acceptance of any promise is made in words, the promise is said to be express. In so far as such proposal or acceptance is made otherwise than in words, the promise is said to be implied. A contract implied, in fact requires meeting of minds. It is well settled, the Courts should refuse to read an implied term into a contract which is silent on the point or did not clearly indicate the nature of terms.
01- The plaintiff offered his premises to let-out, claimed that there was acceptance from the defendants. However, it was subsequently not materialised, and for non user of premises he was required to incur damages consequently he claimed Rs.1,57,500/- as rentals for thirty months, Rs.10,000/- as repair charges and Rs.1,000/- towards notice charges.
02- The Civil Judge, Senior Division, Dhule by his order dated 05th April 2003 decreed the suit. The First Appellate Court confirmed the decree. The Second Appeal was moved by aggrieved defendant and by order dated 05-12-2007 the appeal came to be admitted on the grounds set-out in para nos. II, III, IV, and VI to constitute substantial questions of law, namely,
= Whether the suit filed by the
respondent was maintainable in law
when there was no concluded
contract between the parties?
= Whether the respondent-original 3
plaintiff could have prayed for
damages by way of the suit when
there was no acceptance of the
proposal by the respondent
-plaintiff, thereby giving rise to
breach of contract?
= Whether the courts below rightly and properly interpreted the
documents i.e., Ex.23 to 35 so as
to come to a conclusion that there
was a privity of contract?
= Whether the suit was maintainable in the absence of evidence in
regard to compliance of the
provisions of Section 164 of the
Maharashtra Cooperative Societies
Act, 1960, except the bare
statement in the plaint?
03- The parties are referred by their original status as to plaintiff and defendants.
04- The defendants after filing written statement did not participate in the proceedings before the Court of first instance. The defendants requested the appellate Court to remand the matter, however it was negatived.
05- The matter starts with and revolves around a letter Ex.23 from defendant no.3 dated 07-03-1997 making enquiry with the plaintiff about letting his premises, bases on former's advertisement. Ex.24 is the response from the 4
plaintiff dated 10-03-1997 whereby he offered his premises @Rs.4.50 per sq. feet. There was subsequent talks. Consequently by letter Ex.25 dated 21-04-1997 the plaintiff offered to let-out the premises @ Rs.3.50 per sq. feet. Since the defendant did not come forward to take the premises, consequently a notice dated 22-07-1997 [Ex.26] came to be issued by the plaintiff. At Ex.30 dated 05-02-1998 there is inter-se communication between the defendant no.2 to defendant no.3 whereby the superior officers of the defendant approved the request of sub-ordinates to enter with rental transaction and also directed the Sub Divisional Manager, Dhule to contact the plaintiff to get necessary lease agreement entered into. It was also directed that developments were to be communicated to the Divisional Manager, Jalgaon.
06- Parties agreed that apart from above correspondence, a notice dated 10-07-1998 [Ex.31] was issued by the plaintiff asserting that he has sustained loss of rental for one year and four months to the tune of Rs.85,000/- and if the premises is not taken, he will be forced or 5
compelled to initiate action for damages for the loss suffered at the instance of the officers of the defendants.
07- The counsel for the plaintiff claimed that the scope of this Court into second appeal is very limited. It should be brought on record that there was an apparent error of perversity in the orders under challenge, then only there can be reversal to the concurrent finding of two courts. There cannot be quarrel to the proposition of law as has been enunciated in the case of Santosh Hasari Vs. Purushottam Tiwari, [2001] 3 Supreme Court Cases 179.
179
08- Now reverting back to the very set of documents. This Court is not inhibited to deal with those documents in its proper perspective as they have changed the colour and complexion of the matter by misreading by both the Courts. By no stretch of imagination both the courts could gather that there was a concluded contract between the parties in order to accept the premises on rent. If the internal communication dated 05-02-1998 [Ex.30] is taken to its logical end, 6
even that will not tantamount to accept that the plaintiff was made aware about such communication dated 05-02-1998 and that the plaintiff was asked to keep the premises vacant for user of the office of the defendant. That apart, the letter from the plaintiff Ex.26 dated 22-07-1997 illustrated the mind set of the plaintiff. He has stated, since the premises is not occupied or the transaction is not completed, he will be compelled to proceed ahead to let-out the premises to others. He was forced to cause proclamation in Daily Deshdoot for letting the premises and he has got offer from M.S.E.B. and that he has been negotiating with M.S.E.B. to let-out the premises @Rs.5 per sq. feet.
09- The plaintiff cannot wriggle out contention of his own letter Ex.26. He had kept his options open. The letter exposed his conscious intention to offer premises to M.S.E.B. As stated above, though through the letter Ex.30 dated 05-02-1998 [the inter-se communication] though directed the officials to proceed ahead, there was no document from defendant to the plaintiff that the defendant communicated in pursuance of said communication. 7
The plaintiff has failed to establish that the officers contacted him after 05-02-1998 and rather assured him that the premises will be taken on lease @ Rs.3.50 per sq. feet or at any other rate as will be approved by the Government Department as per their schedule of fixation of rentals. Since there was no communication that could have been put in force even after 05-02-1998, the contention of the plaintiff that he has kept the premises vacant from May 1997 to October 1999 thereby making a claim of thirty months of so called rental, is obviously misconceived and was not at all warranted under any legal system. 10- Sec.9 of the Indian Contract Act sets out that in so far as the proposal or acceptance of any promise is made in words, the promise is said to be express. In so far as such proposal or acceptance is made otherwise than in words, the promise is said to be implied. A contract implied, in fact requires meeting of minds. It is well settled, the Courts should refuse to read an implied term into a contract which is silent on the point or did not clearly indicate the nature of terms.
8
11- To revert back to Ex.30, the further response obviously was silent as it did not materialise or was not coined by the officials of the defendant. Though there was such directions from the superiors, the plaintiff, legally could not have taken benefit of the inter-se communication dated 05-02-1998 [Ex.30], as the plaintiff had, even otherwise not disclosed its sources. That apart, as stated earlier, the letter will not come to the rescue of the plaintiff as the officials did not actuate it. 12- It is well settled, unless the conditions stipulated by the land-lord by his offer are specifically accepted, there is no question of the contract having come into picture or existence or being concluded between the parties. The correspondence demonstrate there was no acceptance in absolute terms from the defendant to take the premises on rent. It was all through out the plaintiff who had offered the premises or reduced the rentals. The absence of any communication from the defendant to proceed ahead with the offer of the plaintiff, being obvious, it cannot be said 9
that the plaintiff was made to believe on the representation of any of the officials of the defendants.
13- In the matter of U.P.Rajkiya Nirman Nigam Ltd., Vs. Indure Pvt. Ltd., and others, AIR 1996 Supreme Court 1373 the Hon'ble Lordships while discussing the legal position observed that conduct of appellant of submitting unilateral tender did not amount to acceptance of the counter offer made by the respondents. They gave reference to the Clause 10 of the draft agreement which thrusts responsibility on the respondent was deleted in the counter proposal.
14- Taking survey of the entire evidence, the Courts below did not consciously appreciate the evidence and documents. The order of the Court of first instance or of the first appellate court do not display that they have applied the legal position in sound and requisite manner. In the situation, since the findings are based on erroneous appreciation of documents, the interference to such findings which are perverse, at its threshold is not obliterated.
10
15- The grounds which are raised, set out hereinbefore by this Court will have to be answered that the plaintiff could not have filed the suit when there was no concluded contract between the parties. The plaintiff could not have prayed for damages by way of the suit in the nature here has filed, as there was obviously no acceptance of the proposal by the defendant and consequently there was no breach of any contract. 16- The mandatory notice as required under Sec.164 of the Maharashtra Cooperative Societies Act is stated to have not been issued, for which ground no.6 was raised. However the notice on record at Ex.31 complied the requisition. Consequently that point will not come to the assistance of the defendant. In the result the findings recorded by both the Courts, decreeing the suit of the plaintiff is erroneous. The judgment and decree in Special Civil Suit No.157 of 1999 and Regular Civil Appeal No.07 of 2004 of the 04th Ad-hoc Additional District Judge, Dhule dated 25-07-2005 is set aside.
The Second Appeal is allowed. 11
Date:13/01/2009. [K.U.CHANDIWAL]
JUDGE.
/aejaz/0109/
sa1522.05
Print Page
To revert back to Ex.30, the further response obviously was silent as it did not materialise or was not coined by the officials of the defendant. Though there was such directions from the superiors, the plaintiff, legally could not have taken benefit of the inter-se communication dated 05-02-1998 [Ex.30], as the plaintiff had, even otherwise not disclosed its sources. That apart, as stated earlier, the letter will not come to the rescue of the plaintiff as the officials did not actuate it. 12- It is well settled, unless the conditions stipulated by the land-lord by his offer are specifically accepted, there is no question of the contract having come into picture or existence or being concluded between the parties. The correspondence demonstrate there was no acceptance in absolute terms from the defendant to take the premises on rent. It was all through out the plaintiff who had offered the premises or reduced the rentals. The absence of any communication from the defendant to proceed ahead with the offer of the plaintiff, being obvious, it cannot be said 9
that the plaintiff was made to believe on the representation of any of the officials of the defendants.
Bombay High Court
01- The Maharashtra Rajya ... vs Original on 13 January, 2009
Bench: K.U. Chandiwal
01- The plaintiff offered his premises to let-out, claimed that there was acceptance from the defendants. However, it was subsequently not materialised, and for non user of premises he was required to incur damages consequently he claimed Rs.1,57,500/- as rentals for thirty months, Rs.10,000/- as repair charges and Rs.1,000/- towards notice charges.
02- The Civil Judge, Senior Division, Dhule by his order dated 05th April 2003 decreed the suit. The First Appellate Court confirmed the decree. The Second Appeal was moved by aggrieved defendant and by order dated 05-12-2007 the appeal came to be admitted on the grounds set-out in para nos. II, III, IV, and VI to constitute substantial questions of law, namely,
= Whether the suit filed by the
respondent was maintainable in law
when there was no concluded
contract between the parties?
= Whether the respondent-original 3
plaintiff could have prayed for
damages by way of the suit when
there was no acceptance of the
proposal by the respondent
-plaintiff, thereby giving rise to
breach of contract?
= Whether the courts below rightly and properly interpreted the
documents i.e., Ex.23 to 35 so as
to come to a conclusion that there
was a privity of contract?
= Whether the suit was maintainable in the absence of evidence in
regard to compliance of the
provisions of Section 164 of the
Maharashtra Cooperative Societies
Act, 1960, except the bare
statement in the plaint?
03- The parties are referred by their original status as to plaintiff and defendants.
04- The defendants after filing written statement did not participate in the proceedings before the Court of first instance. The defendants requested the appellate Court to remand the matter, however it was negatived.
05- The matter starts with and revolves around a letter Ex.23 from defendant no.3 dated 07-03-1997 making enquiry with the plaintiff about letting his premises, bases on former's advertisement. Ex.24 is the response from the 4
plaintiff dated 10-03-1997 whereby he offered his premises @Rs.4.50 per sq. feet. There was subsequent talks. Consequently by letter Ex.25 dated 21-04-1997 the plaintiff offered to let-out the premises @ Rs.3.50 per sq. feet. Since the defendant did not come forward to take the premises, consequently a notice dated 22-07-1997 [Ex.26] came to be issued by the plaintiff. At Ex.30 dated 05-02-1998 there is inter-se communication between the defendant no.2 to defendant no.3 whereby the superior officers of the defendant approved the request of sub-ordinates to enter with rental transaction and also directed the Sub Divisional Manager, Dhule to contact the plaintiff to get necessary lease agreement entered into. It was also directed that developments were to be communicated to the Divisional Manager, Jalgaon.
06- Parties agreed that apart from above correspondence, a notice dated 10-07-1998 [Ex.31] was issued by the plaintiff asserting that he has sustained loss of rental for one year and four months to the tune of Rs.85,000/- and if the premises is not taken, he will be forced or 5
compelled to initiate action for damages for the loss suffered at the instance of the officers of the defendants.
07- The counsel for the plaintiff claimed that the scope of this Court into second appeal is very limited. It should be brought on record that there was an apparent error of perversity in the orders under challenge, then only there can be reversal to the concurrent finding of two courts. There cannot be quarrel to the proposition of law as has been enunciated in the case of Santosh Hasari Vs. Purushottam Tiwari, [2001] 3 Supreme Court Cases 179.
179
08- Now reverting back to the very set of documents. This Court is not inhibited to deal with those documents in its proper perspective as they have changed the colour and complexion of the matter by misreading by both the Courts. By no stretch of imagination both the courts could gather that there was a concluded contract between the parties in order to accept the premises on rent. If the internal communication dated 05-02-1998 [Ex.30] is taken to its logical end, 6
even that will not tantamount to accept that the plaintiff was made aware about such communication dated 05-02-1998 and that the plaintiff was asked to keep the premises vacant for user of the office of the defendant. That apart, the letter from the plaintiff Ex.26 dated 22-07-1997 illustrated the mind set of the plaintiff. He has stated, since the premises is not occupied or the transaction is not completed, he will be compelled to proceed ahead to let-out the premises to others. He was forced to cause proclamation in Daily Deshdoot for letting the premises and he has got offer from M.S.E.B. and that he has been negotiating with M.S.E.B. to let-out the premises @Rs.5 per sq. feet.
09- The plaintiff cannot wriggle out contention of his own letter Ex.26. He had kept his options open. The letter exposed his conscious intention to offer premises to M.S.E.B. As stated above, though through the letter Ex.30 dated 05-02-1998 [the inter-se communication] though directed the officials to proceed ahead, there was no document from defendant to the plaintiff that the defendant communicated in pursuance of said communication. 7
The plaintiff has failed to establish that the officers contacted him after 05-02-1998 and rather assured him that the premises will be taken on lease @ Rs.3.50 per sq. feet or at any other rate as will be approved by the Government Department as per their schedule of fixation of rentals. Since there was no communication that could have been put in force even after 05-02-1998, the contention of the plaintiff that he has kept the premises vacant from May 1997 to October 1999 thereby making a claim of thirty months of so called rental, is obviously misconceived and was not at all warranted under any legal system. 10- Sec.9 of the Indian Contract Act sets out that in so far as the proposal or acceptance of any promise is made in words, the promise is said to be express. In so far as such proposal or acceptance is made otherwise than in words, the promise is said to be implied. A contract implied, in fact requires meeting of minds. It is well settled, the Courts should refuse to read an implied term into a contract which is silent on the point or did not clearly indicate the nature of terms.
8
11- To revert back to Ex.30, the further response obviously was silent as it did not materialise or was not coined by the officials of the defendant. Though there was such directions from the superiors, the plaintiff, legally could not have taken benefit of the inter-se communication dated 05-02-1998 [Ex.30], as the plaintiff had, even otherwise not disclosed its sources. That apart, as stated earlier, the letter will not come to the rescue of the plaintiff as the officials did not actuate it. 12- It is well settled, unless the conditions stipulated by the land-lord by his offer are specifically accepted, there is no question of the contract having come into picture or existence or being concluded between the parties. The correspondence demonstrate there was no acceptance in absolute terms from the defendant to take the premises on rent. It was all through out the plaintiff who had offered the premises or reduced the rentals. The absence of any communication from the defendant to proceed ahead with the offer of the plaintiff, being obvious, it cannot be said 9
that the plaintiff was made to believe on the representation of any of the officials of the defendants.
13- In the matter of U.P.Rajkiya Nirman Nigam Ltd., Vs. Indure Pvt. Ltd., and others, AIR 1996 Supreme Court 1373 the Hon'ble Lordships while discussing the legal position observed that conduct of appellant of submitting unilateral tender did not amount to acceptance of the counter offer made by the respondents. They gave reference to the Clause 10 of the draft agreement which thrusts responsibility on the respondent was deleted in the counter proposal.
14- Taking survey of the entire evidence, the Courts below did not consciously appreciate the evidence and documents. The order of the Court of first instance or of the first appellate court do not display that they have applied the legal position in sound and requisite manner. In the situation, since the findings are based on erroneous appreciation of documents, the interference to such findings which are perverse, at its threshold is not obliterated.
10
15- The grounds which are raised, set out hereinbefore by this Court will have to be answered that the plaintiff could not have filed the suit when there was no concluded contract between the parties. The plaintiff could not have prayed for damages by way of the suit in the nature here has filed, as there was obviously no acceptance of the proposal by the defendant and consequently there was no breach of any contract. 16- The mandatory notice as required under Sec.164 of the Maharashtra Cooperative Societies Act is stated to have not been issued, for which ground no.6 was raised. However the notice on record at Ex.31 complied the requisition. Consequently that point will not come to the assistance of the defendant. In the result the findings recorded by both the Courts, decreeing the suit of the plaintiff is erroneous. The judgment and decree in Special Civil Suit No.157 of 1999 and Regular Civil Appeal No.07 of 2004 of the 04th Ad-hoc Additional District Judge, Dhule dated 25-07-2005 is set aside.
The Second Appeal is allowed. 11
Date:13/01/2009. [K.U.CHANDIWAL]
JUDGE.
/aejaz/0109/
sa1522.05
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