FAO No. 1299 of 2009 (O&M) 1 In the High Court for the States of Punjab and Haryana at Chandigarh. Decided on 23.7.2010. The Punjab State Cooperative Supply & Marketing Federation Ltd. --Appellant vs. M/s.Sandya Organic Chemical Private Ltd --Respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Ms.Deepali Puri,Advocate, for the appellant Mr.B.R.Mahajan,Advocate, or the respondent Rakesh Kumar Jain, J, This appeal is directed against the order of Addl.District Judge,Chandigarh, dated 4.9.2008 by which objection filed by respondent No.1. under Section 34 of the Arbitration & Conciliation Act,1996 (for short, the Act) for setting aside arbitral award dated 23.6.2003 has been dismissed. In brief, The Punjab State Cooperative Supply & Marketing Federation Limited which is a registered Society, (for short the Society) invited tenders to purchase 70 Metric Tons of A.P.Tablets which were to be received up to 27.4.1999 and were to be opened on the same day at 2.30 p.m. in the presence of tenderers subject to their presence. Respondent No.1. submitted its tender alongwith other tenderers personally through its FAO No. 1299 of 2009 (O&M) 2 authorized signatory, who remained present in the office of the Society on 27.4.1999. As per clause 4 of the tender, the price quoted was to be effected up to 31.3.2000 and it was agreed that time shall be the essence of the contract On 27.4.1999, the tender was not opened and was postponed for 3.5.1999at 2.30.p.m. It was on 3.5.1999 before opening of the tender, respondent No.1. withdrew its offer, which was received by the respondent- Society well before the opening time. However, tender of respondent No.1.was accepted and they were called upon to supply the tablets. This led to the dispute between the parties. Respondent No.1 represented that there is no complete contract of goods. However, the Society, unilaterally referred the dispute to the Arbitrator. In the claim petition, the society claimed a sum of Rs.32,66,265/- as compensation being loss caused to it on account of the purchase of the tablets from other supplier under the risk and cost clause of the earlier tender allegedly submited by respondent No.1. The claim was contested by respondent No.1. on the ground that there was no complete contract between the parties as the offer was withdrawn by respondent No.1. even prior to the opening of the tenders on 3.5.1999. The Arbitrator,however, vide his award dated 23.6.2003 allowed the claim of the Society against which respondent No.1. filed his objection under Section 34 of the Act which has been allowed by the Civil Court vide its impugned order dated 4.9.2008. Learned counsel for the appellant has vehemently argued that the impugned order is illegal as respondent No.1. was liable to compensate the appellant for loss having been caused due to their denial of accepting the tender. It is submitted that a bare perusal of tender form filled by respondent FAO No. 1299 of 2009 (O&M) 3 No.1 would show that it was duly accepted on 27.4.1999 and the case set up by respondent No.1 that they had withdrawn the offer before acceptance is patently false. In reply, learned counsel for respondent No.1. has submitted that the tender was to open on 27.4.1999 at 2.30.p.m. in the presence of tenderers. Respondent No.1 was present in the office of respondent-Society till 6.p.m. but on that date, tender was not opened. It was postponed for 3.5.1999 at 2.30p.m. but before opening the tender, respondent No.1. had withdrawn its offer which was received by the Society well before the time it was opened. It is submitted that in case of tender, where tenders submitted by the tenderers were never opened as they were postponed, the tender cannot be said to have been accepted. The tenderer had the right to withdraw the offer and withdrawal of the tender is not illegal In this regard, learned counsel for the respondents has placed reliance upon a decision of the Madras High Court in the case of M/s. Asia Tech Engineering Associates, Nagercoil Vs. Director General (Road Development), Ministry of Road Transport and Highways, New Delhi & Ors AIR 2010 Madras 54 , in which it was held that as per Section 5 of the Indian Contract Act, 1872, a proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer, but not afterwards. In the present case, tenders submitted by the tenderers were never opened as they were postponed and were not accepted by respondent No.1. who had exercised its right of withdrawing the tender in which there is no illegality or irregularitybecause the appellant was communicated by respondent No.1 about its choice for not accepting the tender. In these circumstances, in my view, respondent No.1. cannot be FAO No. 1299 of 2009 (O&M) 4 burdened with liability of risk and costs in the event of purchase of goods by the appellant from some other sources. No other point has been raised by learned counsel for the appellant. In view of the above discussion, I do not find any merit in this appeal and the same is hereby dismissed with costs through out. 23.7.2010 (Rakesh Kumar Jain) RR Judge