The main legal point established in the judgment is that acceptance must be absolute under Sec.7 of the Indian Contract Act, and the jurisdiction clause in a tender notice cannot be enforced when there is no concluded contract.

JUDGMENT :

A.K. Rath, J.

Defendant no.1 is the appellant against a reversing judgment in a money claim.

2. Plaintiff-respondent no.1 instituted the suit for realization of Rs.12,750/- with P.I. and F.I. @18% per annum from the defendants. The case of the plaintiff is that the defendant no.1, a Government of India undertaking, issued an advertisement in the newspaper inviting tenders for purchase of different types of mild steel and boiler quality plate cuttings. The last date for accepting tender as well as the opening of the tender was 5.12.1979. On 5.12.1979, the plaintiff submitted the tender and deposited the earnest money of Rs.10,000/- with a condition that free lifting time shall be 90 days instead of 30 days as offered by the defendants. On 5.12.1979 the tenders were opened. The plaintiff was not present at the time of opening. The plaintiff sent a letter on 24.12.79 to the defendants as to the result of the tender submitted by it and intimated that if the rates quoted were not acceptable to the defendants, then the earnest money of Rs.10,00/- be refunded to it. The defendant no.1 sent a telegram on 27.12.79 to the plaintiff to attend the office at 10.30 a.m. on 31.12.1979 for price negotiation. The plaintiff was not present on that day. On 3.1.1980, the defendant no.1 sent a telegram intimating the plaintiff that his tender for lots c and h had been accepted at Rs.2600/- each per tonne. The plaintiff was directed to deposit the money before 13.1.1980 and lift the materials. In the letter confirming this telegram there was certain terms and conditions, such as, period of free lifting time as 30 days which was not acceptable to the plaintiff and the payment of whole of the amount for the entire lots on 12.1.1980 was also not acceptable to him. Since the additional terms and conditions were not acceptable to the plaintiff, the plaintiff did not proceed with the further negotiation and claimed the refund of the earnest money of Rs.10,000/-. With this factual scenario, it instituted the suit seeking the reliefs mentioned supra.

3. The defendants filed joint written statement stating that the suit was not maintainable. There was no cause of action. The courts at Bhubaneswar had no jurisdiction to entertain the suit. The courts at Visakhapatnam had the jurisdiction. It pleaded that there was a concluded contract. Since the plaintiff did not fulfil its part of the contract, the security deposit was forfeited. The defendants suffered loss of resale of the materials.

4. On the interse pleadings of the parties, learned trial court struck five issues. Parties led evidence, oral and documentary. Learned trial court dismissed the suit holding that it has no jurisdiction to entertain the suit. The plaintiff is not entitled to refund the earnest money deposit. Plaintiff appealed before learned Additional District Judge, Bhubaneswar. Learned lower appellate court came to hold that the court has jurisdiction to entertain the suit. There was no concluded contract between the parties. The defendants did not accept absolutely the terms offered by the tenderer with regard to the free lifting time of 90 days. The question of forfeiture of either earnest money or security deposit does not arise. Held so, it allowed the appeal.

5. The second appeal was admitted on the substantial questions of law enumerated in ground nos.2, 3 and 4 of the memorandum of appeal. The same are:

"2. For that the learned lower appellate court grossly erred in law in reversing the decision of the learned Subordinate Judge and holding that the Subordinate Judges Court at Bhubaneswar had jurisdiction to entertain the suit. It is submitted that in view of the specific terms and conditions in the tender paper, Ext.3 providing that any dispute arising out of the transaction thereof shall be entertained in Visakhapatnam Courts only, the learned lower appellate court misconstrued the materials on record and erroneously held that as there was no concluded contract it could not be