PUDUKOTTAH TEXTILES LTD Vs. B. R. ADITYAN

JUDGEMENT

(1.) THE defendants, who failed in the City Civil Court, Madras in O.S. No. 4362 of 1967, are the appellants. The first defendant is Pudukottah Textiles Ltd, which was represented for all purposes in this action as well as in the correspondence by its Director -in -charge, Narayana Chettiar, who is the second defendant in the suit. In June 1965, the defendants caused a publication to be made in regard to the sale of certain textile machineries belonging to them. The plaintiff in response to the said advertisement, offered, after inspection, to purchase the said machineries for a sum and consideration of Rs. 2,50,000 but made the offer subject to the following conditions.

(2.) THE defendants formally accepted the offer by a telegram, but followed it up by a letter stating that the offer has been accepted on condition that the machinery should be taken delivery of on or before 8th May, 1956, on payment of the sum of Rs. 2,25,000/ -. The acceptance was also conditioned by the fact that the offer was subject to the permission being granted for the sale of the machinery by the Madras Industrial Investment Corporation. As the defendants did not in toto accept the offer and the conditions imposed thereon by the plaintiff, the plaintiff wrote under Exhibit P -9 stating that the terms were not acceptable to them; but again they made a fresh offer under it subject to almost all the conditions referred to above excepting that the date by which the balance of the consideration has to be paid and the machinery taken delivery of would be 15th of July, 1966. Here again, a formal confirmation was made by the defendants under Exhibit A -10, which was followed up by Exhibit A -11, which stated that a sum of Rs. 1,00,000/ - at least should be paid on or before 31st May, 1966 and the balance on or before 15th July, 1966. This counter -offer made by the defendants was not acceptable to the plaintiff. Therefore, under Exhibit A -12 the plaintiff withdrew their offer and called upon the defendants to return the advance of Rs. 25,000/ - paid by them by a cheque, which cheque apparently, the defendants encashed without adverting to the conditions under which the cheque was tendered by the plaintiff to the defendants. As the defendants did not return the said advance, the plaintiff followed up the correspondence by a lawyer's notice Exhibit A -13 demanding the payment of the same, which evoked a reply from the defendants under Exhibit A -14 to the effect that the contract was concluded and that the sum of Rs. 25,000/ - was forfeited because of the breach committed by the plaintiff. The following issues were framed for trial on the pleadings as above.

(3.) EQUALLY it is clear from a perusal the relevant exhibits already referred to that the contract was never concluded as between the parties. There was no consensus ad idem between them at any material point of time. In the first phase of the correspondence, the plaintiff made it clear that they could take delivery of the goods on or before 31st May, 1966. But the defendant, while formally accepting the offer of the plaintiff to purchase the textile machinery stated that the machineries and spares should be taken delivery before 15th March, 1966, and that payment should also be made before the date. This was followed up by another letter Exhibit A -6 wherein the defendants of their own accord extended the time for such delivery of machinery and concurrent payment to 8th May, 1966. But the fact remains that the offer of the plaintiff was not accepted. But there was indeed a counter -offer by the defendants in the matter of the payment of the balance of consideration and the delivery of the machinery on such payment. As we said, this counter -offer, as it were by the defendants, was not accepted by them. But under Exhibit A -9, they made a fresh offer, but subject to the material conditions stated above and made it clear that they could pay and take delivery of the machinery on or before 15th July, 1966, only. To this again, the defendants would not agree. They made a counter -proposal under Exhibit A -12 wherein they would ask the plaintiffs to pay the sum of Rs. 1,00,000/ -, before 31st May, 1966 and pay the balance on or before 15th July, 1966. Thus the trend of correspondence indicates that at no point of time the parties ever agreed that there was a concluded contract as between them. The sum and substance of the material exhibits referred to above point out that there were proposals and counter - proposals between the parties and they have themselves not resolved to commit themselves to a particular situation in the matter of the offer and acceptance of the contract to sell and buy the textile machinery as above. The learned Judge was, therefore, right when he found that there was no concluded contract between the parties and in consequence, the encashment of the cheque of Rs. 25,000/ - by the defendants was premature in the sense that they ought not to have done before a contract was concluded in the manner known to law.