IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 18TH AUGUST 2010 / 27TH SRAVANA 1932 OP.No. 17918 of 2001(G) ----------------------- PETITIONER(S): --------------- K.A. VISWANATHAN, KALLUMADATHIL VEEDU, EDAVANAKKAD P.O., COCHIN TALUK. BY ADV. SRI.T.I.DANIEL RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY THE CHIEF SECRETARY, GOVT. SECRETARIAT, TRIVANDRUM. 2. THE EXECUTIVE ENGINEER, HARBOUR ENGINEERING DIVISION, MUNAMBAM P,O, PALLIPORT, COCHIN TALUK. 3. THE DISTRICT COLLECTOR, ERNAKULAM COLLECTORATE OFFICE, KAKKANAD, ERNAKULAM. 4. THE DEPUTY TAHSILDAR (R.R) TALUK OFFICE, KOCHI. GOVERNMENT PLEADER SRI. M.A. ASIF. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 18/08/2010, THE COURT ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P.NO. 17918/2001 ----------------------------------------------------------------- EXT.P1 COPY OF ORDER DT. 1-12-1999. EXT.P2 NOTICE DT. 26-6-2000. EXT.P3 REPRESENTATION DT. 7-8-2000. EXT.P4 REPLY NOTICE DT. 8-9-2000. EXT.P5 NOTICE DT. 8-2-2001. EXT.P6 LAWYER NOTICE DT. 26-4-2001. EXT.P7 REPLY NOTICE DT. 8-5-2001. EXT.P8 PHOTO COPY OF DEMAND NOTICE. EXT.P9 DEMAND NOTICE DT. 22-5-2001. EXT.P10 OBJECTION DT. 2-6-2001. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 17918 of 2001 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 18th day of August, 2010. J U D G M E N T The petitioner responded to a tender floated by the 2nd respondent for conducting a canteen and a provision store at Munambam Fisheries Harbour. The petitioner was the highest bidder. His bid was accepted. Despite issuing several notices directing the petitioner to execute the formal agreement, the petitioner did not respond. Therefore, the 2nd respondent accepted the second best tender and initiated proceedings for recovery of the difference between the petitioner's tender and the accepted tender towards damages suffered by the respondents on account of the breach of contract by the petitioner. The petitioner is challenging the said proceedings in this original petition. 2. The contention of the petitioner is that immediately after the submission of the tender, the petitioner felt chest pain and left the place. He was subsequently diagnosed as having heart attack and therefore he sent letters requesting to relieve him from the liability under the tender which was not accepted. The petitioner would contend that insofar as the petitioner has not executed any agreement accepting the tender, the petitioner is not liable to pay any damages for breach of contract. 3. A counter affidavit has been filed by the 1st respondent, wherein the contention of the petitioner that he suffered heart attack and intimated the same to the respondent is sought to be controverted. In paragraph 5 of the counter affidavit, it is specifically stated that after accepting the petitioner's tender, in response to the notice dated 26-10-1999 directing the petitioner to execute an agreement with the Department before 4.11.1999, the petitioner submitted an application on 3.11.1999 in which he requested to exempt him from executing the agreement and to cancel his O.P. No. 17918/2001 -: 2 :- quotation. It is submitted that the reason explained therein was that he was afraid of suffering heavy loss by executing the agreement and running the canteen and provision store in the Munambam Harbour. It is categorically stated in the counter affidavit that the petitioner has not mentioned anything about his illness in his letter. It is submitted by the learned Government Pleader that once the tender was accepted, the contract is complete and execution of agreement is only a formality and the petitioner cannot escape from the liability of breach of contract on the ground that no formal agreement has been executed pursuant to the acceptance of the tender. Therefore, according to the learned Government Pleader, the petitioner is liable to pay the amount now demanded for breach of contract. 4. I have considered the rival contentions in detail. 5. It is not disputed before me that the petitioner was the highest bidder and that his bid was accepted. Once the bid is accepted, the contract is complete. Therefore, the petitioner cannot thereafter wriggle out from the contract on the ground that he has not executed a formal agreement pursuant to the acceptance of the tender. The petitioner has not cared to produce any evidence whatsoever to prove his alleged illness even after the specific statement in the counter affidavit that the petitioner had not mentioned in his letter dated 3-11-1999 that he was suffering from illness. The specific averment in the counter affidavit that the petitioner had sought to withdraw from the agreement because he was afraid of suffering loss is also not controverted by filing a reply. In view of the same, I am not inclined to accept the contentions of the petitioner. 6. Evidently, the petitioner has committed breach of contract. O.P. No. 17918/2001 -: 3 :- What has been demanded from him is the difference between the amount quoted by him and the amount quoted by the second best tenderer, which has been subsequently accepted in view of the refusal of the petitioner to execute the formal agreement. Insofar as breach of agreement has been clearly established, the petitioner cannot escape from the liability to pay damages. Therefore, there is no merit in the original petition and accordingly, the same is dismissed. Sd/- S. Siri Jagan, Judge. Tds/