ZODIAC ELECTRICALS PRIVATE LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) This appeal by special leave raises a very short question of construction of certain correspondence between the appellants and the Directorate General of Supplies and Disposals (hereinafter referred to as DGS and D). The question is whether as a result of this correspondence a concluded contract came into being between the appellant and the Govt. of India acting through the DGS and D.

(2.) The DGS and D invited tenders for ACSR Conductors. The tender forms were issued by the DGS and D along with the Schedule which set out the terms and conditions on which the tenders were invited. Clause 4 of the Schedule dealt with the question of delivery while Cl. 8 provided for giving of security deposit. The appellants by their letter dt. 9th June, 1979 submitted their tender to the DGS and D for certain quantity of ACSR Conductors on the terms and condition set out in the Schedule which was submitted by them along with the tender. The appellants stipulated in Cl. 4 of the Schedule that delivery would commence after 30 days from the date of receipt of commercially and technically clear detailed order from the DGS and D and the ACSR Conductors will be supplied at the rate of 30M/tonnes to 35M/tonnes aluminium content per month or 1/6th of the ordered quantity per month whichever was less and under Cl. 8 of the Schedule the appellants made it clear that since they were registered with DGS and D and National Small Industries Corporation, they should not be required to furnish any security deposit. It is clear from this tender and the Schedule accompanying it that the offer made by the appellants for supply of ACSR Conductors was on the condition that they would not furnish any security deposit and this offer was kept open for acceptance up to 15-8-1979. The DGS and D addressed two letters to the appellants both dt. 13th August, 1979. It does not appear clear from the record as to which of the two letters was addressed first in point of time. But nothing turns upon it and we need not, therefore, try to ascertain as to which letter was addressed first and which letter was written subsequently on the same day. In one of the two letters dt. 13th August, 1979, the DGS and D pointed out that it may not be possible for DGS and D to take a final decision by 15th August, 1979 up to which the offer was kept open by the appellants and therefore the DGS and D requested the appellants to keep the offer open until 15th September 1979 and added that this request for extension of the offer was being made without prejudice to the purchaser's right of acceptance of the offer of the appellants up to 15th August, 1979. This letter showed that the DGS and D wanted the appellants to keep their offer open till 15th September, 1979, but they reserved their right to accept the offer up to 15th August, 1979. The offer here referred to was obviously the offer as made by the appellants which included a condition that no security deposit shall be required to be made by them. The DGS and D by the other letter dt. 13th August, 1979 informed the appellants that the offer made by the appellants in the tender submitted by them was accepted on the terms and conditions specified in the Schedule to the tender form. This Schedule contained a term in Cl. 8 that security deposit shall be required to be made by the tenderer. It was also made clear in Cl. 9 of the Note set out at the foot of this letter dt. 13-8-1979 that in terms of Cl. 7 of the General Conditions of the Contract, under which the appellants had tendered, the appellants were required to deposit by 15-9-1979 a sum of Rs. 75,000/- as security deposit for due performance of the contract. It is, therefore, obvious that though in the opening part of this letter dt. 13-8-1979 the DGS and D appeared to accept the offer contained in the tender of the appellants, they did not unconditionally accept this offer, because they insisted that the appellants should deposit by 15-9-1979 a sum of Rs. 75,000/- as security deposit. The DGS and D thus added a condition which was contrary to the stipulation made in the offer of the appellants. This letter dt. 13-8-1979 could not possibly, therefore, be regarded as unconditional acceptance of the offer of the appellants and in the circumstances it could not be possibly contended that a concluded contract had been arrived at between the parties by reason of this letter dt. 13-8-1979. This letter dated 13-8-1979 was really in the nature of a counter-offer made by the DGS and D to the appellants. The question is whether this counter-offer was accepted by the appellants.

(3.) The respondent contended, and this contention found favour with the High Court, that the counter-offer made by the DGS and D by their letter dt. 13-8-1969 was unconditionally accepted by the appellants by sending at telegram to the DGS and D on 21-8-1979 and addressing a letter to DGS and D confirming the telegram. Since the entire controversy between the parties has arisen on the question whether this telegram and confirmatory letter could be treated as constituting unconditional acceptance of the counter-offer made by the DGS and D, it is necessary to reproduce these two documents in extenso. It will be enough to reproduce only the confirmatory letter because it contains the telegram as well. The confirmatory letter reads as follows: