IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 25TH JUNE 2010 / 4TH ASHADHA 1932 AS.No. 763 of 1999(A) --------------------- OS.1159/1993 of PRL.SUB COURT,TRIVANDRUM .................... APPELLANT(S): DEFENDANTS: ----------------------------------------------- 1. STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SUPERINTENDING ENGINEER, NATIONAL HIGHWAY, SOUTH CIRCLE, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SMT. SUMANGALA RESPONDENT(S): PLAINTIFF: --------------------------------------------- A.K.MOHAMMED KUNJU, S/O.KUNHAMMED KUNJU, CONTRACTOR, RESIDING AT AYIRATHU HOUSE, KANNAMPALLY BHAGAM, KAYAMKULAM. BY ADVS. SRI.NAIR AJAY KRISHNAN, SRI.NAGARAJ NARAYANAN. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 25/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N. KRISHNAN, J. ........................................... A.S.NO.763 OF 1999 ............................................. Dated this the 25th day of June, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Trivandrum in O.S.No.1159/1993. The suit is one for a declaration and an injunction. The plaintiff had submitted a tender with respect to a road work and his tender was accepted and he was informed that he should come and deposit the earnest money and thereafter execute an agreement and also to commence the work within a week from the date of execution of the agreement. The plaintiff would submit that he started storing materials for the purpose of doing the work but the inhabitants of the locality prevented him from storing the materials which was informed to the governmental authorities and as they could not resolve the same, he could not enter into an agreement or enforce the work. The order of the department forfeituring security amount is improper and there cannot be any cancellation as well. 2. The defendants in their written statement would : 2 : A.S.NO.763 OF 1999 contend that after the acceptance of the tender, the plaintiff was communicated to be present in the office and execute the document and start the work. Since the plaintiff committed breach of the terms of agreement, the money has been forfeited and cancellation has been done under Ext.A5. The trial court after consideration of the entire materials, granted a decree as prayed for and it is against that decision, the Government has come up in appeal. 3. Heard the learned counsel for the Government as well as the other side. It is the case of the plaintiff that he had submitted a tender for doing work in relation to a road but he could not enter into an agreement with the Government for the reason that the inhabitants of the locality had prevented him from storing the materials and therefore the work cannot be gone through. 4. On the other hand, the Government would contend that after submitting the tender which has been accepted by the Government, it was the responsibility of the plaintiff to come and execute the agreement and therefore non compliance of the same entitles the Government to forfeit : 3 : A.S.NO.763 OF 1999 the deposit and cancellation of the contract. 5. The trial court rightly did not accept the case of the plaintiff that he was prevented by the local people from storing the materials which resulted in not entering into an agreement. The court held that it is only an excuse and therefore did not accept the case. 6. The main question to be considered is whether the plaintiff is liable for cancellation of contract and forfeiture of the security amount. The court below found that there was only submission of a tender and acceptance of the tender was with the conditions that the plaintiff should attend the office of the defendants, execute agreement in a stamp paper, deposit security and proceed with the work. So, in order to have an enforceable contract, there must be such an agreement between the parties. An invitation to enter into an agreement cannot be said to be an agreement between the parties. The trial judge had referred to a decision of this Court reported in Baker Koyi v. R.P. Govindan Sons (1990 (2) KLJ 437). It is stated therein that “in other words, there is only an agreement to agree in future : 4 : A.S.NO.763 OF 1999 or there is a contract to enter into a contract, which, it is well settled, is not enforceable at law” Again referring to another decision in Muthu Mohammed Rawther v. Pathanamthitta Municipality (1991 (2) KLT 514), the lower court held that “for an enforceable contract there should be an offer and an unconditional acceptance, and a person who makes such an offer has the right to withdraw it before acceptance, in the absence of a condition to the contrary supported by consideration. A provisional acceptance cannot take a binding contract”. The lower court again held that in the light of the decision reported in Punit Scriwala v. Suva Sanyal (AIR 1998 Calcutta 44) a mere agreement to agree is not enforceable in a court of law. 7. It is true that the plaintiff has submitted a tender and the tender has been accepted. In order to reopen a contract, there must be an agreement entered into between the plaintiff and the Government and it is only the terms and conditions of that agreement which will bind the parties. A mere unilateral contract or unilateral declaration : 5 : A.S.NO.763 OF 1999 made by a party without anything to the contrary cannot be accepted. Therefore I find that the trial court was justified in granting a declaratory decree as well as refund of the money deposit. Therefore the appeal lacks merit and the same is dismissed but without costs. M.N. KRISHNAN, JUDGE. cl : 6 : A.S.NO.763 OF 1999 M.N. KRISHNAN, J. . .......................................... A.S.NO.763 OF 1999 ............................................. 25th day of June, 2010. J U D G M E N T