KALEESWARA MILLS LIMITED COIMBATORE Vs. LAKSHMI STEELS

JUDGEMENT

(1.) BEING aggrieved by the judgment and decree dated 27.6.1991 made in O. S. No. 561 of 1985 on the file of the III Additional Sub-Court, Coimbatore, the first defendant has filed the above appeal.

(2.) FOR the sake of convenience, the parties are referred to as per their ranking in the suit.

(3.) THE second defendant has filed a written statement with the following contentions: (i) THE plaintiff failed to perform conditions stipulated in Clauses 8 and 9 of the tender contract. This defendant being the next highest tenderer is entitled to compel the first defendant to accept their offer and confirm the sale in their favour. THE contract in favour of the plaintiff stands rejected on account of default committed by the plaintiff and as such the plaintiff is not entitled to compel the first defendant to convey the property. (ii) THE plaintiff has committed breach of contract and the second defendant had always been ready and willing and continue to be ready and willing to perform the terms and conditions by remitting the entire sum due. THE plaintiff ought to have invoked the arbitration clause. A tender contract is different from ordinary enforceable contract and tender contract is subject to condition and stipulation as agreed to and it gives right to the tenderer either to accept it or to reject it. THE first defendant has rejected the tender of the plaintiff rightly having regard to the terms and conditions of the contract on the ground of non-fulfillment of the essential condition. (emphasis supplied). THE second defendant has adopted the written statement filed by the first defendant, which is not in variance with the contentions of the second defendant. THE sum of Rs. 1,97,338/- said to have been sent by the plaintiff was not within time and in accordance with the conditions of the contract. THE plaintiff having committed breach of contract, with a view to cover up his omission, appears to have created a make belief story or readiness by creating self-serving draft sale deeds and other correspondence. Even if the first defendant had given any assurance to the plaintiff against the right of the second defendant, it is not binding on him. THE plaintiff is not entitled to a decree for specific performance and the first defendant is liable to accept the tender of the second defendant and confirm it in its favour.