MESBAHUDDIN AHMED Vs. JAMES FINLAY

JUDGEMENT

(1.) This appeal by-leave by the plaintiff-appellant is from the judgment and decree dated 29.11.1993 passed by a Division Bench of the High Court Division in First Appeal No.23 8 of 1991 allowing the appeal and thereby dismissing the suit filed by the plaintiff-appellant for refund of Tk. 15,00,0007-being earnest money forfeited by the defendant-respondent.

(2.) The plaintiff filed Other Suit No.70 of 1987 on the allegations, inter alia, that the defendant by publishing an advertisement in the Daily Azadi dated 23.2.1987 invited tender for sale of 4.6291 acres of hilly land together with two one-storied buildings thereon situated at Chatteswari Road, Chittagong. In pursuance thereof the plaintiff submitted a tender in the prescribed form offering Tk.2,87,00,000/-. He also deposited Tk.15,00,000/- with the defendant as earnest money. Offer of the plaintiff was provisionally accepted subject to the fulfillment of certain terms and conditions which included payment of the balance amount of Tk.56,75,000/- within one month from the date of acceptance calculated @ 25% of the bid money. The money was not paid. The plaintiff suggested amendments in clauses 4, 6 and 12 in the draft agreement for sale of the suit property, which the plaintiff was called upon to sign. Discussions and negotiations then followed but there was no decision. The plaintiff awaited further discussions in the matter and was ready to pay the money sought but suddenly he received a letter from, the defendant informing him that the earnest money paid by him stood forfeited. Thereupon the plaintiff requested the defendant to accept the balance of the 25% of the bid money and also to agree to the suggested amendments to the draft agreement. But the defendant did not agree. In the circumstances, the plaintiff claimed that the forfeiture was illegal.

(3.) The defendant contested the suit by filing written statement contending that the terms and conditions of the tender notice constituted the contract of sale of the suit property between the parties as soon as the tender of the plaintiff was accepted by the defendant and since the plaintiff failed to pay 25% of the bid money for the suit property even within the extended time, the earnest money was forfeited in terms of the contract as the forfeiture of the earnest money was in accordance with the terms of the contract concluded between the parties.