A SHEIK DAWOOD Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) FOR the 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.

(2.) 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 is 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.

(3.) 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 long time; 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 replay 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 :