The main legal point established in the judgment is that the acceptance of an offer must be absolute and unqualified to form a valid contract, and any variation in the acceptance may constitute a counter offer, leading to the absence of a contractual relationship.

S.V. Gangapurwala, J.

1. The present petition stems up against the action of respondent Nos. 2 to 4 forfeiting earnest money deposit of Rs. 8,00,000/- of the petitioner.

2. The respondent No. 2/corporation floated tenders inviting the offers for the purpose of collecting toll. The petitioner firm submitted its offer. As per the terms of the tender the offerers were required to deposit Rs. 8,00,000/- in the form of demand draft as earnest money deposit. The petitioner submitted offer of Rs. 1,99,71,577/- for collection of toll at Rotegaon on Shiur-Shrirampur road for a period of 90 weeks. The offer of the petitioner firm was highest. Vide letter dated 20th March, 2002, the respondents communicated acceptance of the offer of the petitioner for a period of 52 weeks. Vide letter dated 04.04.2002, the respondents intimated the petitioner firm that as the petitioner failed to pay performance security and security deposit within the stipulated time, the earnest money deposit of Rs. 8,00,000/-stood forfeited to the M. S. R. D. C. Ltd. Mumbai. After exchange of legal notice and reply, the present petition is filed.

3. Mr. Suryawanshi, the learned counsel during the course of his strenuous arguments submits that, the tender inviting offers suggested the contract period to be 90 weeks. Considering the tender notice and corrigendum, the offer was submitted by the petitioner of Rs. 1,99,71,577/-and had also submitted earnest money deposit of Rs. 8,00,000/-. However, while issuing letter of acceptance dated 20.03.2002 it was stated that the appointment of the petitioner as contractor for collection of toll at approved rate for a period of 52 weeks from the date of authorization of the competent officer has been accepted. The petitioner had offered amount of Rs. 1,99,71,577/-keeping in mind the period of contract for 90 weeks as per the tender notice. As the letter of acceptance issued by respondents for the amount offered by the petitioner was only for 52 weeks, the offer of the petitioner cannot be said to have been accepted and as such, no question arises of the petitioner giving a bank guarantee and performance guarantee, nor the respondents can get a right to forfeit the amount. The petitioner is entitled for the refund of the same.

4. Mr. S. V. Adwant, the learned counsel for respondent/corporation during the course of his erudite arguments canvassed following propositions:

i) The offer of the petitioner was accepted. The petitioner gave offer pursuant to the tender notice. As per the tender notice the contract period is 90 weeks.

ii) In the letter of acceptance a mistake occurred in which it was stated that, the same is for a period of 52 weeks. The letter of acceptance will have to be read as a whole. Vide the same acceptance letter, the petitioner was directed to give a bank guarantee of an amount equivalent of 5% of the sum of Rs. 1,99,71,577/-. This would show that, the offer of the petitioner was accepted.

iii) Even vide letter dated 26.03.2002, the petitioner was directed to give security deposit of Rs. 1,98,580/- and the same should be for a period of 26 months which is equivalent to 90 weeks.

iv) Writ petition was filed by one M/s. Huma Constructions bearing Writ Petition No. 794/2002. In the said writ petition affidavit in reply is filed by present respondent clearly suggesting that the petitioner's offer has been accepted. All these facts would go to show that the offer of the petitioner has been accepted and the same was for a period of 90 weeks.

v) According to the learned counsel in writ jurisdiction the petitioner cannot get redressal in respect of breach of contract. The learned counsel relies on the judgments of Apex Court in a case of Bareilly Development Authority and another Vs. Aji Pal Singh and others reported in (1989) 2 SCC 116, in a case of National Highways Authority of India Vs. Ganga Enterprises and another reported in (2003) 7 SCC 410 and in a case of Rajasthan State Industrial Development