IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.775 of 2008 1. THE RAILWAYS BOARD THROUGH THE CHAIRMAN, RAILWAYS BARODA HOUSE, NEW DELHI 2. THE GENERAL MANAGER, RAILWAYS E.C.-HAJIPUR 3. THE CHIEF SINGNAL & TELECOM ENGINEER, CONSTRUCTION CAO-CON/ECR-OFFICE COMPLEX MAHENDRU GHAT EAST CENTRAL RAILWAY MAHENDRU GHAT, PATNA 4. DEPUTY CHIEF SIGNAL & TELECOM ENGINEER (COAST), WORKS EAST CENTRAL RAILWAYS MAHENDRU GHAT, PATNA ………..Appellants Versus M/S TECHNOCOM HAVING ITS REGISTERED OFFICE AT KARMRUP ROAD FANCY BAZAR GUWAHATI (ASSAM) THROUGH ITS PROPRIETOR DWARKA PRASAD DIDWANI, S/O- LATE SAGAR MAL DIDWANIA, RESIDENT OF 26/I KARMENION STREET, 2ND FLOOR, KOLKATTA-WEST BENGAL. ……..Respondent ----------- For the Appellants : Mr. N.K.Agrawal, Senior Advocate Mr. Arvind Ujjwal, Advocate ---------- P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal --------- Dated, the 16th October, 2008. We heard Mr. N.K. Agrawal, senior counsel for the appellants and considered the available material as well as the - 2 - order of the Single Judge. 2. The Single Judge considered the matter thus: “It is now established beyond doubt that a notice inviting tender is nothing but calling of an offer under Section 4 of the Contract Act. Tenders filed are nothing but offer made. Petitioner made his offer for the entire scope of work and quoted his rate. For the purpose of exclusive rate negotiation petitioner was called and considering the entire scope of work, petitioner agreed to reduce the rates. Thus, we find that considering the scope of work and the negotiation that followed, petitioner negotiated the rates. It was open to the railway to accept the rate or if they wanted to bifurcate the tender or withdraw substantial work from the tender to further call the petitioner for negotiation but they could not unilaterally truncated the offer as made by the petitioner and accept a part of it and reject another. The only option to the railway was either to accept the entire offer, i.e. the entire work with the rates of the same as offered by the petitioner or re-negotiate the matter but they themselves could not drastically out the scope of work and force the same as an agreement on the head of the petitioner. This was clearly impermissible. This in terms of Section 4 read with Section 7 of the Contract Act is not a valid acceptance. There being no valid acceptance by the railway, there is no question of holding petitioner to be resiling from the agreement. Petitioner has not resiled to complete the agreement provided, it was so accepted. Petitioners refusal to sign the agreement and enter into an agreement was, if any, due to failure on part of the respondent-railway to accept the offer of the petitioner in entirety. A reservation or a truncated acceptance is not an acceptance in the eye of law. Thus there being no acceptance of offer of petitioner there cannot be violation of any agreement in this regard. If that be so, then the earnest money cannot be forfeited because the petitioner is not at fault. He cannot be forced to work against his terms and against his will. Thus the letter as contained in Annexure-2, dated 20.2.2008 communicating the decision forfeiting the earnest money cannot be sustained and is hereby quashed. The railway would be obliged to refund - 3 - the earnest money forthwith.” 3. The counsel for the appellants did not dispute that the complete offer made by the contractor was not accepted by the Railways as only part of the offer came to be accepted. 4. In this view of the matter, the Single Judge considered the matter in right perspective. Impugned order does not suffer from any legal flaw. 5. L.P.A. is dismissed in limine. R.M. Lodha, CJ Kishore K. Mandal, J. Anil/