Appuhamy, H.K.J. V. Attorney General

1954 Present: Gratiaen J. and Gunasekara J.

H. K. J. APPUHAMY, Appellant, and THE ATTORNEY-GENERAL,
Respondent

S. C. 371-D. C. Ratnapura, 8,638M
 

Contract-Tender-Execution of a further agreement-Point of time when contract becomes binding.

Plaintiff had been invited to make a tender for certain work on the understanding that, if the tender was accepted, he would be required within a fixed period of time to sign an agreement for the due performance of the work. He accordingly signed an agreement whereby he undertook to complete the work within a certain period.

Held, that the contract automatically became operative as soon as the plaintiff signed the agreement. It was not open to the other party thereafter to change his mind on the ground that he had not signed the agreement himself.

APPEAL from a judgment of the District Court, Ratnapura.

Sir Ukwatte Jayasundera, Q. C., with V. T. de Zoysa and G. T. Samarawickreme, for the plaintiff appellant.

B. C. F. Jayaratne, Crown Counsel, for the Crown.

Cur. adv. vult.

April 5, 1954. GRATIAEN J.-

This is an action against the Crown for breach of contract.

In December 1946 tenders were invited for the construction of two abutments for a bridge at Pellakada across the Heenganga. The notices stated that the tenders should reach the Chairman of the Village Committee of Palle Pattu, Kukul Korale, not later than the afternoon of 20th February, 1947, and that the successful tenderer " must be prepared to enter into an agreement with the Government Agent for the due performance of the work within 7 days of the notification of acceptance and to furnish cash security in a sum of not less than 10% of the amount of the tender ". It is common ground that the printed words " Government Agent " appearing in this clause should have read, and were understood to mean, " Assistant Commissioner of Local Government ".

The Village Committee recommended to the Assistant Commissioner that the plaintiff's tender for Rs. 4,795 should be accepted, and the Assistant Commissioner's acceptance of that tender was in due course notified to the plaintiff. He thereupon deposited at the Ratnapura Kachcheri on 28th April, 1947, a sum of Rs. 480, and he contemporaneously signed in triplicate a printed agreement which was placed before him for signature by the Superintendent of Village Works attached to the Office of the Assistant Commissioner of Local Government. In this document (marked P3) :

1. he bound himself, inter alia, to execute the works as set forth in the relative plans, specifications and schedule of rates ;

2. he hypothecated in favour of the Assistant Commissioner the sum of Rs. 480 as security for the due performance of his contractual obligations ;

3. he undertook to complete the work " within 6 months from date hereof" and, in default thereof, to pay liquidated damages to the Assistant Commissioner at a specified rate.

After the plaintiff had signed this agreement, the Superintendent of Village Works (whose function it was to supervise contracts of this nature) showed the plaintiff where the work had to be done, and on 16th May, 1947, the plaintiff commenced building operations which the learned Judge assessed at Rs. 2,087.50. On 10th July, 1947, however, he received from the Assistant Commissioner a letter bearing the date 30th June, 1947 instructing him " not to commence work until you hear from me and receive a signed copy of the agreement form ".

The Assistant Commissioner sought to explain his attitude in writing this letter by stating that, shortly after the plaintiff had signed the agreement and deposited his security as required by the notice calling for tenders, departmental consideration was for the first time given to the question whether it would be " more expedient " to call for fresh tenders for the entire work to be undertaken by a single contractor. This new development was not however co

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