Appeal No 1851 of 1968
Appeal from the judgment and decree dated June 19 1963 of the Mysore High Court in Regular Appeal No 231 of 1960
Shyamala Pappu and Vineet Kumar for the appellant
K R Chaudhuri and K Rajendra Chaudhuri for respondent No 1
section V Gupte G R Ethirajulu Naidu B N Sen 0
P Khaitan A N Parikh K R Chaudhuri and K Rajendra Chaudhuri for respondent to 2 The Judgment of the Court was delivered by Bachawat J
The plaintiffs instituted a suit Os No 515 of 1957 against the defendant alleging that by a contract dated September 2 1957 the defendant had agreed to assign to the plaintiffs his leasehold interest under a mining lease in respect of 184 acres of land in Kudrekanave Kaval Hosadurga Taluk and claiming specific performance of the contract
The Trial Court decreed the suit
The defendant filed an appeal against the decree
The High Court allowed the appeal and dismissed the suit
The present appeal has been filed by the plaintiffs after obtaining a certificate under article 133 of the Constitution
The main question arising in this appeal is whether there
was a contract as alleged in the plaint
Under a contract dated August 3 1957 the defendant agreed to sell to the plaintiffs 40000 tons of float iron lying in the aforesaid mining area and gave them the right to win and remove the iron ore
We are not directly concerned with this contract in this appeal
On September 2 1957 the defendant wrote the following letter to the plaintiffs 583 Further to our agreement dated 3rd August 1957 I hereby agree to assign the sad lone area of 184 acres for iron and manngase ores in your favour subject to your paving me one lakh and eighty thousand rupees at your option to be decided by you within three months from this date
 This document though worded as an agreement was in point of law an offer only
As a matter of fact
on September 2 1957 the plaintiffs had not agreed to purchase the mining lease
Until both parties were bound there could be no con cluded contract
The promise to keep the offer open for three months was not supported by any consideration
The defendant was at liberty to revoke the offer at any tune beforeits acceptance by the plaintiffs
on October 31 1957 the defendant posted a letter to the Plaintiffs revoking the offer
This letter reached the plaintiffs on November 6 1957
Before that date theplaintiffs did not accept the offer either orally or by any letter sent to the defendant
On November 1 1957 the plaintiffs filed suit OS No 46 of 1957 against the defendant claiming a declaration that they were entitled to remain in possession of the mining area
The primary object of the suit was to enforce the plaintiffs  right under the contract dated August 3 1957
The defendant filed his written statement in that suit on November 5 1957
The High Court held that the plaintiffs accepted the offer of September 2 1957 by their plaint in OS No 46 of 1957 and that this acceptance was communicated to the defendant before November6 1957
We are unable to agree with this finding
The pleadings and issues raised the question whether a con tract was made on September 2 1957
If the plaintiffs desired to set up a new case that the contract was concluded in November 1957 they should have amended their pleadings accordingly
We need not say anything more on this point because we find that the plaintiffs have failed to establish the new case
In paragraphs 14 and 19 of the plaint in OS No 46 of 1957 the plaintiffs alleged that by the letter dated September 2 1957 the defendant agreed to assign the mining lease that they were ready and willing to perform the contract and that they reserved their right to file a suit for specific performance
The suggestion was that the contract was concluded on September 2 1957 and that in breach of the contract the defendant failed to apply for and obtain the necessary consent of the central government to the assignment of the mining lease
Paragraph 17 and the prayer portion of the plaint suggested that by virtue of this contract and the earlier contract dated August 3 1957 they were entitled to remain in possession of the mining area
584 The Suggestion was an atempt to add to the terms of the offer of September 2 1957
On acceptance of the offer according to its terms the plaintiffs could not get a possessory right before execution of a conveyance of the mining lease
In point of law the Plaint was not an acceptance of the offer not was it intended to be an acceptance
It is not usual to accept a business offer by a plaint nor is it usual to communicate an acceptance by serving a copy of the plaint through the medium of the Court
We shall be straining the language of sections 26 3  7 the Contract Act if we were to hold that the Plaint was an acceptance and that the service of a copy of the plaint along with the writ of summons was a communication of the acceptance
Under the old chancery practice the mere filing of a bill in a suit to enforce specific performance was regarded as sufficient acceptance of the defendant s offer unless the offer had been withdrawn before the filing of the suit see Boys vs Ayerst1 Agar vs Biden2 Fry on Specific Performance 8th ed article 306 page 142 Pomeroy on Specific Performance 3rd ed article It may well be doubted whether this rule can apply under our present practice and procedure
A plaint in a suit for specific performance should allege a concluded contract see the Code of Civil Procedure 1st Schedule Appendix A Form No 48
The offer as well as the acceptance should Pr the institution of the suit
However the precise point does not arise in this case
OS No 46 of 1957 was not a suit for specific performance of the contract
Before the present suit for specific performance of the contract was instituted the offer had been withdrawn
Counsel for the appellant relying on Bloxam s Case3 sub mitted that the communication of an acceptance was not necessary
The argument is misconceived
We have held that the plaint in OS No 46 of 1957 was not an acceptance
There was no other acceptance either oral or in writing
Mere mental assent of the plaintiffs to the defendants proposal is not sufficient
In the peculiar facts of Bloxam s case a contract to take shares was concluded by an oral application for shares followed by allotment though no notice of allotment was given to the applicant
 Ordinarily  there is no contract unless there is an acceptance of the application for shares and the acceptance is communicated to the applicant see In re Pellatt s Case4 
In the last case Lord Cairns LJ pointed out that Bloxam s case turned on its own special facts
Bloxam was orally in formed that if he did not receive an answer within a certain time he was to consider his application granted
In the peculiar cir 1 1822 6 Madd 316 326 1 2 1115
3  2 4 5 85 cumstances Bloxam could be regarded as having dispensed with the necessity of the communication of the acceptance
In the present case we are not concerned with a contract to take shares
The defendant made an offer to assign a mining lease
No acceptance was made or communicated to the defendant before hi withdrew the offer
There was no concluded contract and the appeal must fail on this ground
The High Court held that the assignment of the mining lease could not be lawfully made without the sanction of the State Government and the approval of the Central Government and that as the governments concerned could not be compelled to accord the necessary sanction and approval the contract to assign the mining lease could not be specifically performed and on this ground the High Court dismissed the suit
We do not think it necessary to express any opinion on this question Me appeal is liable to be dismissed in view of our conclusion
that there was no concluded contract between the parties
In the result the appeal is dismissed
The appellant will pay one set of costs to the respondents
GC Appeal dismissed


Summary:
Under a contract dated August 3 1957 the defendant agreed to sell to the plaintiffs 40000 tons of float iron lying in a mining area in the Hosadurgo Taluka in Mysore State and gave them a right to win and remove iron ore
On September 2 1957 the defendant wrote to the plaintiffs that further to the agreement dated August 3 1957 he agreed to assign the said lease area of 184 acres for iron and manganese ores to the plaintiffs subject to their paying one lakh and eighty thousand rupees within three months
The three months expired on November 6 1957 without the offer being accepted by the plaintiffs orally or by letter
On October 31 1957 the defendant posted a letter to the plaintiffs revoking the offer which reached them on November 6 1957
The plaintiffs instituted a suit OS No 55 of 1957 against the defendant alleging that by contract dated September 2 1957 the defendant had agreed to assign to the plaintiffs his leasehold interest in the aforesaid 184 acres of land and claiming specific performance of the contract
The trial court decreed the suit
The defendant appealed to the High Court
On the question whether the offer made in the defendant s letter of September 2 1957 had been accepted by the plaintiffs the High Court held that the plaintiffs had accepted the said offer in their plaint in another suit relating to the possession of the same land OS No 46 of 1957 a copy of which was served on the defendant on November 5 1957 a day earlier than the defendant  s letter revoking the offer reached the plaintiffs
Despite this finding on another ground the High Court allowed the defendant appeal and dismissed the suit namely OS No 55 of 1957
The plaintiff appealed with certificate to this Court
HELD  The appeal must be dismissed on the ground that there was no concluded contract between the parties
585 C D The letter dated September 2 1957 sent by the defendant to the plaintiffs though worded as an agreement was in point of law an offer only
The defendant was at liberty to revoke the offer at any time before its acceptance by the plaintiffs
The defendant s letter revoking the offer reached the plaintiffs on November 6 1957
Before that date the plaintiffs did not accept the offer either orally or by letter
The High Court was wrong in holding that the plaintiffs accepted the offer by their plaint in OS No 46 of 1957 and that this acceptance was communicated to the defendant before November 6 1957
583 B B Considering the contents of its relevant paragraphs the plaint in question was not in point of law an acceptance of the offer nor was it intended to be an acceptance
It is not usual to accept a business offer by a plaint nor is it usual to communicate an acceptance by serving a copy 592 of the plaint through the medium of the Court
To hold thus would be straining the language of s section 26 3 and 7 of the Contract Act
585 A B The old chancery practice under which the mere filing of a bill in a suit to enforce specific performance was regarded as sufficient acceptance of the defendant s offer unless the offer had been withdrawn before the filing of the suit cannot be applicable under the present Indian practice and procedure
585 C E The argument based on Bloxam s case that the communication of an assent was not necessary and mere mental assent of the plaintiffs to the defendant s proposal was sufficient
was misconceived
585 F Boys vs Ayerst   32656 ER 11 12 1115 Agar vs Biden and Bloxam s case   distinguished
In re  Pellatt s case  applied