IMPORTANT POINT
Concluded contract – Offer and acceptance of an offer must be absolute. It can give no room for doubt.

JUDGMENT :

INDIRA BANERJEE, J.

1. The short question involved in this appeal is, whether the acceptance of a conditional offer with a further condition results in a concluded contract, irrespective of whether the offerer accepts the further condition proposed by the acceptor. This question does not appear to have been addressed by the High Court or the Court below.

2. This appeal is against a common Judgment and Order dated 10.10.2006 passed by the High Court of Judicature at Hyderabad in Appeal Nos. 2196 and 2197 of 2000 confirming a Judgment and Order dated 31.3.2000 of the Additional Senior Civil Judge, Visakhapatnam allowing the suit being O.S. No. 106 of 1993 filed by the Respondent-Port Trust against the Appellant for damages, and dismissing O.S. No. 450 of 1994 filed by the Appellant for refund of earnest deposit.

3. On or about 17.7.1990, the Respondent-Port Trust floated a tender for supply of Wooden Sleepers. The tenders were due to be opened on 01.08.1990.

4. Clauses 15 and 16 of the tender are extracted herein-below:-

“15. The purchaser will not pay separately for transit insurance and the supplier will be responsible till the entire stores contracted for arrive in good condition at destination. The consignee will as soon as but not later than 30 days of the date of arrival of stores at destination notify the supplier of any loss, or damage to the stores that may have occurred during transit.

16. In the event of the supplies being found defective in any matter the right to reject such materials and return the same to the supplier and recover the freight by the Port is reserved.”

5. Pursuant to the aforesaid tender, the Appellant submitted its offer on or about 01.08.1990. It was a specific condition of the offer of the Appellant that inspection of the Sleepers, as per the requirement of the Respondent-Port Trust, would have to be conducted only at the depot of the Appellant. The Appellant did not accept Clauses 15 and 16 of the Tender and rather made a counter proposal. In accordance with the terms and conditions of the tender, the Appellant deposited Rs. 75,000/- towards earnest deposit, along with its quotation.

6. On or about 02.08.1990, the Controller of Stores of the Respondent-Port Trust informed the tenderers that the opening of the tenders had been postponed to 08.08.1990.

7. On 08.08.1990, the Appellant submitted its revised quotation and/or offer, reiterating that inspection as per the requirement of the Respondent-Port Trust would have to be conducted only at the depot of the Appellant. After the tenders were opened certain discussions took place between the Appellant and the Tender Committee of the Respondent-Port Trust.

8. By a letter dated 11.10.1990, the Appellant agreed to supply wooden sleepers to the Respondent-Port Trust on the terms and conditions stipulated in the said letter. The Appellant reiterated that the Respondent-Port Trust could inspect the goods to be supplied, at the factory site of the Appellant at Vepagunta, Visakhapatnam, as this would facilitate re-transit of rejected goods to the depot of the Appellant, without additional financial burden.

9. The Appellant made it clear to the Respondent-Port Trust, that if the Respondent-Port Trust still required inspection at the site of the Respondent-Port Trust, the Appellant would charge 25% above the rate quoted by the Appellant for the supply of wooden sleepers. The said letter is extracted herein-below for convenience:-

“1. We are agreeable to supply the B.G. Track Indian sale wood sleepers F.D.R. V.P.T. site by our own transportation.

2. With regard to inspection clause you can inspect the material at our factory site at Vepagunta, Visakhapatnam. This will facilitate us to retransist the rejected materials if any to our the depot without any additional financial commitment. If you still require inspection, at your site we will charge 25% extra in our rate.

3. As the tender committee had mentioned during the discussion on 10.10.90, we are agreeable