In the present matter, the tender notice i. e. invitation to
offer clearly stipulates down that the contract period would be 90
weeks. The offer was also given by the petitioner for an amount
of Rs. 1,99,71,577/as
a contract for collection of toll on the said
section of the road for a period of 90 weeks. However, the letter
of acceptance issued by the respondent on 20.03.2002 accepted
the offer for Rs. 1,99,71,577/,
but for a period of 52 weeks only.
The said letter of acceptance cannot be said to be absolute. In
fact, the said letter of acceptance of offer would be a counter offer.
The said counter offer given by the respondent by way of letter of
acceptance was never accepted by the petitioner.
If the acceptance is not absolute or introduces new terms or
new contract period, it does not create contractual relationship.
Such an acceptance would revoke the offer. It becomes a counter
offer/proposal which may become a contract on terms offered by a
offeree if the proposer accepts it. Otherwise such an acceptance
would revoke the offer/proposal. Inter alia would not create any
reciprocal rights or obligations. In the light of that, promise had
never come into existence, no contractual relations between the
parties came into existence. As the offer was not accepted by the
respondents in the same sense as it was given by the petitioner,
there was no acceptance so as to culminate the proposal/offer into
a promise. No relationship of promissor and promisee between
the parties was formed. As the proposal/offer of the petitioner
was not accepted in the same terms as given by the petitioner,
there was no consensus ad idem between the parties and the
contract never came into existence. As per Sec. 2(h) of the
Contract Act, an agreement enforceable by law is a "contract"
and as per Sec. 2(e) of the Contract Act, every promise and every
set of promises forming the consideration for each other is an
"agreement". For an agreement there has to be a promise and
the proposal/offer culminates into a promise only if the
acceptance of the offer is absolute and unqualified.
If the new terms in the letter of acceptance are trivial or it
contains statements which do not intend to vary the terms of the
offer, then still said 'acceptance' will have legal effect.
Immaterial or minor variances between the offer and acceptance
will not prevent formation of contract
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1311 OF 2003
M/s Abhay Construction,
Versus
The State of Maharashtra.
CORAM : S. V. GANGAPURWALA AND
N. W. SAMBRE, JJ.
DATE : 01ST APRIL, 2014.
JUDGMENT (Per S. V. Gangapurwala, J.)
Citation;2014(4) MHLJ 829 Bom
The present petition stems up against the action of
respondent Nos. 2 to 4 forfeiting earnest money deposit of Rs.
8,00,000/of
the petitioner.
2. The respondent No. 2/corporation floated tenders inviting
the offers for the purpose of collecting toll. The petitioner firm
submitted its offer. As per the terms of the tender the offerers
were required to deposit Rs. 8,00,000/in
the form of demand
draft as earnest money deposit. The petitioner submitted offer of
Rs. 1,99,71,577/for
collection of toll at Rotegaon on ShiurShrirampur
road for a period of 90 weeks. The offer of the
petitioner firm was highest. Vide letter dated 20th March, 2002,
the respondents communicated acceptance of the offer of the
petitioner for a period of 52 weeks. Vide letter dated 04.04.2002,
the respondents intimated the petitioner firm that as the
petitioner failed to pay performance security and security deposit
within the stipulated time, the earnest money deposit of Rs.
8,00,000/stood
forfeited to the M. S. R. D. C. Ltd. Mumbai.
After exchange of legal notice and reply, the present petition is
filed.
3. Mr. Suryawanshi, the learned counsel during the course of
his strenuous arguments submits that, the tender inviting offers
suggested the contract period to be 90 weeks. Considering the
tender notice and corrigendum, the offer was submitted by the
petitioner of Rs. 1,99,71,577/and
had also submitted earnest
money deposit of Rs. 8,00,000/.
However, while issuing letter of
acceptance dated 20.03.2002 it was stated that the appointment
of the petitioner as contractor for collection of toll at approved
rate for a period of 52 weeks from the date of authorization of the
competent officer has been accepted. The petitioner had offered
amount of Rs. 1,99,71,577/keeping
in mind the period of
contract for 90 weeks as per the tender notice. As the letter of
acceptance issued by respondents for the amount offered by the
petitioner was only for 52 weeks, the offer of the petitioner cannot
be said to have been accepted and as such, no question arises of
the petitioner giving a bank guarantee and performance
guarantee, nor the respondents can get a right to forfeit the
amount. The petitioner is entitled for the refund of the same.
4. Mr. S. V. Adwant, the learned counsel for
respondent/corporation during the course of his erudite
arguments canvassed following propositions :
i) The offer of the petitioner was accepted. The petitioner
gave offer pursuant to the tender notice. As per the tender notice
the contract period is 90 weeks.
ii) In the letter of acceptance a mistake occurred in which it
was stated that, the same is for a period of 52 weeks. The letter
of acceptance will have to be read as a whole. Vide the same
acceptance letter, the petitioner was directed to give a bank
guarantee of an amount equivalent of 5% of the sum of Rs.
1,99,71,577/.
This would show that, the offer of the petitioner
was accepted.
iii) Even vide letter dated 26.03.2002, the petitioner was
directed to give security deposit of Rs. 1,98,580/and
the same
should be for a period of 26 months which is equivalent to 90
weeks.
iv) Writ petition was filed by one M/s. Huma Constructions
bearing Writ Petition No. 794/2002. In the said writ petition
affidavit in reply is filed by present respondent clearly suggesting
that the petitioner's offer has been accepted. All these facts
would go to show that the offer of the petitioner has been
accepted and the same was for a period of 90 weeks.
v) According to the learned counsel in writ jurisdiction the
petitioner cannot get redressal in respect of breach of contract.
The learned counsel relies on the judgments of Apex Court in a
case of Bareilly Development Authority and another Vs. Aji
Pal Singh and others reported in (1989) 2 SCC 116, in a case
of National Highways Authority of India Vs. Ganga
Enterprises and another reported in (2003) 7 SCC 410 and in
a case of Rajasthan State Industrial Development and
Investment Corporation and another Vs. Diamond & Gem
Development Corporation Ltd. and another reported in
(2013) 5 SCC 470.
vi) The learned counsel submits that, even otherwise, the
petitioner could have approached the respondents to seek
clarification. The petitioner failed to get the clarification from
the respondents. Now cannot blame the respondents for
forfeiture of the earnest amount.
vii) According to the learned counsel, forfeiture of the amount
is completely a different aspect. The petitioner gave his offer on
condition that earnest money will be forfeited for not entering
into contract, as such he has no right to claim return of earnest
amount. The earnest money is given and taken to ensure that
the contract comes into existence.
viii) According to the learned counsel, if a mistake is committed
by a party, the same does not make the contract voidable in view
of Sec. 22 of the Contract Act.
5. Before we proceed to advert to the arguments canvassed by
the learned counsel for respective parties and appreciate them, it
would be appropriate to refer to the tender notice, the offer and
the letter of acceptance as under :
MAHARASHTRA STATE ROAD DEVELOPMENT
CORPORATION LIMITED MUMBAI
TENDER NOTICE
Sealed and super scribed offer is invited by Maharashtra
State Road Development Corporation Limited., Aurangabad for
the purpose to collect Toll on vehicles specified, from eligible
persons including firms and companies as per criterion laid
down. The blank offer forms shall be issued from Executive
Engineer, MSRDC, Aurangabad in the office of Chief Engineer,
MSRDC Ltd., Camp Office, Adalat Road, Bankham Bhavan,
Aurangabad from 15.11.2001 to 14.12.2001 upt to 16.00 hrs. on
all working days during office hours.
The competitive offers shall be received by the
Superintending Engineer, Maharashtra State Road Development
Corporation Ltd., Aurangabad not later than 15.00 hors on
21.12.2001.
Name of Work Estimated
Realisation
for contract
period
Earnest Money Contract
Period
Cost of
Blank
offer
sets
1 2 3 4 5 6
1 Collection of toll
at ROB at
Rotegaon on
Shiuer
Shrirampur
Road Km
23/400.
Rs. 322.00
Lakhs
Rs. 16.10 Lakhs in
the form of Demand
Draft payable at
Aurangabad in
favour of
Maharashtra State
Road Development
Corporation Ltd.
90
Weeks
Rs.
4000.00
per set
payable
as
abobe.
1. The net worth of the offerer shall be Rs. 28.00 Lakhs and
annual turnover shall be Rs. 93.00 lakhs in any one year
in the last three years for work at Sr. No. 1.
2. Prebid meeting will be held on 1.12.2001 in the office of
the Chief Engineer, M.S.R.D.C. Camp Office, Adalat
Road, Bandhkam Bhavan, Aurangabad.
3. Detail Offer notice inviting offers is available in the Office
of the M.S.R.D.C. Camp Office, Adalat Road, Bandhkam
Bhavan, Aurangabad.
4. The validity period of the offers will be (90) ninety days
fromt he date of submission of the offer.
5. Right to give preference or accept or reject any or all the
offers without assigning any reason is reserved by
Maharashtra State Road Development Corporation
Limited.
6. The Contractor should make well conversant with himself
regarding eligibility and qualification criteria as
prescribed in para 2.0 of contract document, Volume 1.
7. For more details, contact on phone number
0240/349830/349831. Fax. 0240/349501.
Executive Engineer,
MSRDC Ltd., Aurangabad
Competent Officer
Signature of Contractor.
**
*
*
*
MAHARASHTRA STATE ROAD DEVELOPMENT
CORPORATION LIMITED,
Nepean Sea Road, Priyadarshini Park, Mumbai 400
036.
Tel. 0223686112,
Fax : 0223684943
CORRIGENDUM NO.
The tender notice already published in this paper on 14/11/2001
for the work of collection of toll at ROB at Rotegaon on Shiuer
Shrirampur Road.
The following changes are made 1.
The estimated realisation of the work
will be Rs.
159.52 lakhs
2. Earnest Money Deposit will be Rs.
8.00 lakhs
3. Annual turn over of the offer shall
be Rs.
49.00 lakhs
4. The net worth of the offer shall be Rs.
13.82 lakhs
5. The prebid meeting will be held on18/
12/2001
6. Last date for sale of tender forms
extended upto 29/
12/2001
7. Date of receipt of offers shall be 08/
01/2002
All other matter remains unchanged.
INFORMATION TO OFFERERS
1. NAME OF THE
WORK/PROJECT
Offer for appointment of contractor
for collection of Toll at ROB at
Rotegaon on Shiuer Shrirampur
Road Km. 23/400 state highway No.
47, Tq. Vaijapur, Dist. Aurangabad.
2. Authorized representative of
Maharashtra State Road
Development Corporation Ltd.
Mumbai.
Executive Engineer, M.S.R.D.C. Ltd.,
Camp Office, Aurangabad.
3. Offer No. 4.
Estimated realization of toll for
contract period
Rs. 159.52 Lakhs.
5. Contract period. 90 Weeks.
6. Minimum Annual Turnover of
individual/firm
Rs. 49.00 Lakhs.
7. Net worth of Offerers shall not
be less than
Rs. 13.82 Lakhs.
8. Bank Authorized by the
Corporation
Indian Bank Branch Aurangabad.
9. Date, time and place of issue of
offer documents.
Date : 15.11.2001 to 29.12.2001 upto
16 hours.
Time : All working days,
Place : Chief Engineer Office,
M.S.R.D.C. Ltd., Camp Office,
Aurangabad.
10. Date, time and place of prebid
Meeting.
Date : 18.12.2001.
Time : 16.00 hrs.
Place Office of the MSRDC Ltd.,
Camp Office, Adalat Road,
Bandhkam Bhavan, Aurangabad.
11. Date, time and place of
submission of offer.
Last Date : 08.01.2002.
Time Not later than 15 hrs.
Place : Superintending Engineer
Office, M.S.R.D.C. Ltd., Camp Office,
Aurangabad.
12. Date, time and place of opening
of offer.
Date : 08.01.2002.
Time 16 hrs. (if possible).
Place : Superintending Engineer
Office, M.S.R.D.C. Ltd., Camp Office,
Aurangabad.
13. Earnest Money Deposit. Rs. 8.00 Lakhs in the form of
Demand Draft Payable at
Aurangabad in favour of
Maharashtra State Road
Development Corporation Ltd.
Signature of Contractor Competent Officer
14. Amount of Security Deposit 5% of the offer amount to the offerer
for the 98 weeks.
15. Amount of Performance
Security and the form in which
it is to be deposited.
5% of the offer amount of the offerer
of the 98 weeks in the form of bank
guarantee of any
Nationalized/Scheduled bank in
favour of Maharashtra State Road
Development Corporation Ltd.,
Mumbai.
16. Designation of Competent
Officer appointed by the
Corporation.
As decided by the Corporation.
17. Designation of officers in charge
of the Project
Executive Engineer, M.S.R.D.C.
Aurangabad. Supdt. Engineer,
M.S.R.D.C. Aurangabad. Chief
Engineer, M.S.R.D.C. Aurangabad.
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18. Name of the Bank & Account
No. of the Corporation for
remittance of toll amount.
Indian Bank, Aurangabad, Collection
Account.
19. Specified Information : The contract period or toll station
will be or 90 weeks. Theofferer has to quote total sum for
90 weeks for toll station.
The offerer shall quote offers in the form of offer as
mentioned above.
The offerer offering to pay highest toll amount for
contract period will be declared as successful offerer.
Toll collection period means the period for which
Contractor will be authorized to collect toll.
Signature of Contractor Competent Officer
**
*
*
*
FORM OF OFFER
Sr. No. ________
Full Name M/
s Abhay Construction Age :YearsAddressAt
Post Khullod, Tal. Sillod, Dist. Aurangabad. CorresponGramni
Police Station; Ist Flor. Shivaji Nagar, Sillod, Dist. A'bad.
(i) Telephonic Address, if any 92523204.
(ii) Telephone Number, if available 92523204.
To,
Subject :Offer
for appointment as Contractor for collection
of toll at approved rates on all specified vehicles,
trailers drawn by such vehicles at Sir,
1. Pursuant to the Notice inviting Offer No. dated
issued
on behalf of the Maharashtra State Road
Development Corporation Ltd., Mumbai. I/We hereby
submit my/our offer for being appointed as your
Contractor for a period of 90 weeks from the date of
authorization therefore by the MAHARASHTRA STATE
ROAD DEVELOPMENT CORPORATION LTD., MUMBAI
for collection of toll at approved rates on all specified vehicles
and trailors drawn by such vehicles passing over the
location/section of roads as specified in Volume II of the offer
document.
2. For toll station I/We offer sum of Rs. 1,99,51,577/(
Rupees
,d dkVs h uO;kuks yk[k ,dkRrj gtkj ikp'ks
lR;kRrj #i;s QDr/only) as and by way of Our offer
as your Contractor for collection of toll on the said
section of road/project during the period of 90 weeks.
3. I/We have thoroughly read and understood the
Instructions to the offerers offer for being appointed as
your Contractor for the aforesaid purpose and the Terms
and Conditions of contract which is token thereof have
been signed by me/us and I/We hereby agree to duly abide by
them. We have studied the traffic volume and made our own
assessment of traffic including frequent and non frequent
travellers.
4. I/We to keep my/our this offer open for acceptance the
Corporation upto 90 days after the last date of receipt of
offer and agree not to revoke our offer at any time, during
such period. I/We shall be bound by the communication of
acceptance of this offer dispatched by the Corporation
within the aforesaid time.
5. As required by the Terms and Conditions of offer I send
the Earnest Money in envelope No. 1 of Rs. 800000 (Rs.
Eight Laceonly)
being the amount equal to the 5% of
estimated relization of the contract period by a demand
draft No. 1732820 Dated 7 Jan2002
drawn by State
Bank of Indore Nationalized/scheduled Bank payable at
Aurangabad payable at Aurangabad in favour of the
Maharashtra State Road Development Corporation Ltd.
In the event of my/our this offer being accepted by the Corporation.
I/We agree to duly furnish the performance security and Security
Deposit to Corporation within the period prescribed therefor and
execute the agreement as and when called upon so to do.
The names and address of the partners of our Firms/Directors of our
company are as follows :
Name Address
1. Wagh Nanasaheb BajaraoAt
Khullod Post Tal. Sillod
Dist. Aurangabad.
2. Wagh Prabhakar BajaraoAt
Khullod Post Tal. Sillod
Dist. Aurangabad.
3. Wagh Annasaheb BajaraoAt
Khullod Post Tal. Sillod
Dist. Aurangabad.
4. Wagh Manikrao BajaraoAt
Khullod Post Tal. Sillod
Dist. Aurangabad.
A copy of our Deed of partnership duly certified as true is enclosed.
OR
A copy Memorandum of Association and Articles of Association of
our company is enclosed. Our Company is a Private/Public Limited
Company registered under the Indian Companies Act 1913/the
Companies Act 1956 and its registered office is situated at
Aurangabad. A copy of the print of memorandum and Articles of
Association of our company duly certified as true is enclosed in
envelope. No. 1.
Yours faithfully,
DATE / /
Name :Signature
of Offerer
Address: Capacity in which signing
Sd/Signature
of Contractor Competent Officer
**
*
*
*
BY R. P. A. D.
LETTER OF ACCEPTANCE OF OFFER
Maharashtra State Road
Development Corpn. Ltd.
(A Govt. of Maharashtra
Undertaking)
No. MSRDC/I.B. 77/
Date :20/
03/2002.
To,
M/s Abhay Constructions,
Sillod, District Aurangabad
Sub: Appointment as agent for collection of toll at approved
rates on all specified vehicles and trailers drawn by such
vehicles at Rotegaon on Shiver Shrirampur road at km
23/400.
Ref: Your offer, submitted pursuant the work of appointment
as Contractor for collection of toll at approved rates on all
specified vehicles and trailers drawn by such vehicles at
Rotegaon on Shiver Shrirampur road at Km 23/400.
Dear Sir,
This is to inform you that your above mentioned offer for
appointment as Contractor for collection of toll at approved rates
on all specified vehicles and trailors drawn by such vehicles
passing over the said section of road/project for a period of 52
weeks from the date of authorization by the competent officer
has been accepted by the Corporation on the terms and
conditions of contract and forming part of the offer document
submitted by you.
As you are aware, as per the terms and conditions of
contract, you have to pay the Corporation Security Deposit
equivalent to the 5% of the offer amount by giving your consent
to convert Earnest Money into Security Deposit and paying the
difference between the amount of 5% of offer amount and the
Earnest money in the form of demand draft payable at Mumbai
in favour of "Maharashtra State Road Development Corporation
limited". Also you have to give a bank guarantee of an amount
equivalent to 5% of the sum of Rs. 1,99,71,577/which
is your
"Offer" accepted by the Corporation being the amount of
performance security, of any specified bank, which amount is to
remain as a Performance Security for due observance and
performance of the said terms ad conditions of contract.
Please note that as per the said Terms and Conditions of
contract if you fail or neglect to pay to the Corporation within
seven days of issue of this letter of acceptance of offer to you, the
amount of Security Deposit and furnish performance security
and execute the agreement within the specified time, then this
contract for your appointment as Contractor shall forthwith
automatically stand terminated and thereupon, without
prejudice to any other rights and remedies of the Corporation,
the amount of Earnest Money paid by you shall forthwith stand
forfeited to the Corporation and the Corporation shall be entitled
to appoint in your place another Contractor at your risk as to
costs and consequences.
Sd/(
S. S. Momin)
Jt. Managing Director
CC:
The Chief Engineer, MSRDC Camp Office, Aurangabad for
information and necessary action.
After furnishing the required Security Deposit and bank
guarantee for performance security, the work order at your level
may be given to the agency after signing the agreement.
**
*
*
*
6. This Court vide order dated 08th April, 2003 had disposed
of the present writ petition on the ground that as the
relationship between the parties is contractual, the grievance can
be agitated by the petitioner by filing civil suit in the competent
Civil Court having jurisdiction or adopting arbitration
proceedings if available. The petitioner had assailed the said
order before the Apex Court by filing Civil Appeal No. 4884/2004.
The Apex Court observed that, the petitioner is not merely
seeking enforcement of contractual rights and the issue involved
in the petition can be adjudicated upon by exercise of writ
jurisdiction. The matter is remitted to this Court for hearing
and decision on merits, by the Apex Court.
7. In the light of the fact that, the Apex Court has remitted
the matter for deciding it on merits, this Court is bound to
consider and decide the matter on merits. As such, the
judgments referred supra by Mr. Adwant, the learned counsel for
the respondent/Corporation to buttress his submissions with
regard to tenability of the writ petition on the ground that the
petitioner is agitating its rights under the contract cannot be
considered.
8. There cannot be any dispute with the proposition that a
'tender' is an invitation to offer i. e. inviting offers from the
public. Pursuant to the tender floated by the respondent, the
petitioner has submitted its offer. It is for the respondents to
accept the offer. The petitioner had given the proposal/offer. For
the offer to culminate into a promise, the acceptance has to be
absolute and unqualified as per Sec. 7 of the Contract Act.
9. In the present matter, the tender notice i. e. invitation to
offer clearly stipulates down that the contract period would be 90
weeks. The offer was also given by the petitioner for an amount
of Rs. 1,99,71,577/as
a contract for collection of toll on the said
section of the road for a period of 90 weeks. However, the letter
of acceptance issued by the respondent on 20.03.2002 accepted
the offer for Rs. 1,99,71,577/,
but for a period of 52 weeks only.
The said letter of acceptance cannot be said to be absolute. In
fact, the said letter of acceptance of offer would be a counter offer.
The said counter offer given by the respondent by way of letter of
acceptance was never accepted by the petitioner.
10. If the acceptance is not absolute or introduces new terms or
new contract period, it does not create contractual relationship.
Such an acceptance would revoke the offer. It becomes a counter
offer/proposal which may become a contract on terms offered by a
offeree if the proposer accepts it. Otherwise such an acceptance
would revoke the offer/proposal. Inter alia would not create any
reciprocal rights or obligations. In the light of that, promise had
never come into existence, no contractual relations between the
parties came into existence. As the offer was not accepted by the
respondents in the same sense as it was given by the petitioner,
there was no acceptance so as to culminate the proposal/offer into
a promise. No relationship of promissor and promisee between
the parties was formed. As the proposal/offer of the petitioner
was not accepted in the same terms as given by the petitioner,
there was no consensus ad idem between the parties and the
contract never came into existence. As per Sec. 2(h) of the
Contract Act, an agreement enforceable by law is a "contract"
and as per Sec. 2(e) of the Contract Act, every promise and every
set of promises forming the consideration for each other is an
"agreement". For an agreement there has to be a promise and
the proposal/offer culminates into a promise only if the
acceptance of the offer is absolute and unqualified.
11. If the new terms in the letter of acceptance are trivial or it
contains statements which do not intend to vary the terms of the
offer, then still said 'acceptance' will have legal effect.
Immaterial or minor variances between the offer and acceptance
will not prevent formation of contract. However, in the present
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matter, the invitation to offer on the part of the respondents was
for contract period of 90 weeks. The offer/proposal given by the
petitioner was also for 90 weeks, but, the letter of acceptance
given by the respondent/corporation to the petitioner was for a
period of only 52 weeks. The period of contract itself was varied
in terms of acceptance. The same was not a trivial, minor or
immaterial variation. The offer to pay Rs. 1,99,71,577/to
respondent was given by petitioner on premise that petitioner
would collect toll for 90 weeks. Vide the letter of acceptance, the
respondent accepted amount of Rs. 1,99,71,577/,
but only for 52
weeks i. e. petitioner should collect toll for 52 weeks only. The
said variation in the duration of the contract period is
substantial to the prejudice and detriment of the petitioner.
12. The said acceptance being not absolute could not convert
the proposal/offer into a promise, inter alia no agreement came
into existence much less a contract. The offer given by the
petitioner was not accepted absolutely, in the same manner and
in the same sense. As the promise had not come into existence,
the respondent did not get any right to demand any amount
towards the performance guarantee and security deposit to the
extent of 4% and 5% respectively. So also the respondent did not
get any right to forfeit the amount of earnest money deposit on
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the ground that the petitioner has failed to give the performance
guarantee of the security deposit. The act of the respondents in
forfeiting the earnest money deposit of Rs. 8,00,000/on
the said
count is arbitrary and illegal.
13. As the letter of acceptance very categorically and
specifically laid down that the offer is being accepted for a period
of 52 weeks, it would be futile to look to the other documents
such as the affidavit filed in another writ petition in which it was
said that the offer of the petitioner is considered as the highest.
The language of letter of acceptance does not admit of any other
interpretation and specifically refers to accepting the offer of the
petitioner for a period of 52 weeks only. Interpreting the letter of
acceptance in any other manner would be rewriting the term of
the letter of acceptance which is not permissible.
14. The Apex Court in a case of Rajasthan State Industrial
Development and Investment Corporation and another
Vs. Diamond & Gem Development Corporation Ltd. and
another referred supra and relied by the learned counsel for the
respondent/corporation held that, terms or nature of contract are
not to be varied/altered while interpreting the same. The
contract has to be construed strictly without any outside aid.
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The same proposition would apply to the letter of acceptance.
The same will have to be construed strictly without any outside
aid. As such, construing the letter of acceptance issued on the
part of the respondent as it is the only irresistible conclusion that
can be drawn is that the amount offered by the petitioner for
period of 90 weeks in its proposal pursuant to the invitation to
offer i. e. the tender floated by respondents was accepted for a
period of 52 weeks by the respondents. In the light of that, the
letter of acceptance tantamounts to counter offer and as such
cannot be said that the said acceptance converts the proposal into
a promise.
15. The respondents did not get any right or authority to forfeit
the earnest money deposit, as the petitioner was not at fault and
it is the respondent who on its own volition did not give the letter
of acceptance in the same manner as the offer was given i. e. for
the period of 90 weeks.
16. In the light of the above, the writ petition is allowed. The
respondent Nos. 2 to 4 shall pay back the earnest money deposit
of Rs. 8,00,000/(
Rs. Eight Lacs only) to the petitioner with
interest at the rate of Rs. 6% per annum from 01.10.2002 till the
date of realisation.
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Rule accordingly made absolute in above terms. No costs.
[ N. W. SAMBRE, J. ] [ S. V. GANGAPURWALA, J. ]
bsb/April 14
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