Karnataka High Court
M/S Applesoft vs The Director General on 2 June, 2025
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2025:KHC:18573
RFA No. 1340 of 2019
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JUNE, 2025
R
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
REGULAR FIRST APPEAL NO.1340 OF 2019 (INJ)
BETWEEN:
M/S. APPLESOFT,
NO.39, 1ST MAIN,
1ST CROSS, SHIVANAGAR,
WEST OF CHORD ROAD,
BENGALURU - 560 010.
SRI. N. ANBARASAN, C.E.O.
S/O. M. NARASIMHALU,
PROPRIETOR,
POA IN FAVOUR OF N ANBARASAN.
Digitally signed by
MALLIKARJUN ...APPELLANT
RUDRAYYA
MALLIKARJUN KALMATH
RUDRAYYA Location: HIGH
COURT OF
KALMATH KARNATAKA
DHARWAD BENCH
(BY SRI. S. KRISHNAMURTHY)
Date: 2025.06.03
10:53:29 +0530
AND:
1 . THE DIRECTOR GENERAL,
CENTRE FOR DEVELOPMENT OF
ADVANCED COMPUTING
C - DAC PUNE UNIVERSITY CAMPUS,
GANESH KHIND,
PUNE - 411 007.
MAHARASHTRA, INDIA,
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NC: 2025:KHC:18573
RFA No. 1340 of 2019
HC-KAR
2 . THE DIRECTOR,
CENTRE FOR DEVELOPMENT OF
ADVANCED COMPUTING
CORPORATE OFFICE,
AGRICULTURE COLLEGE
CAMPUS NEAR DISTRICT
INDUSTRIES CENTRE,
SHIVAJINAGAR,
PUNE - 411 005.
3 . THE SECRETARY TO GOVERNMENT,
DEPARTMENT OF INFORMATION
TECHNOLOGY
MINISTRY OF C & I TECHNOLOGY,
ELECTRONICS NIKETAN,
6, CGO COMPLEX,
NEW DELHI - 110 003.
....RESPONDENTS
(BY SRI. ASHOK G. V. ADVOCATE FOR R1 TO R3)
THIS RFA FILED U/S.96 OF CPC AGAINST THE JUDGMENT AND
DECREE DATED 23.03.2019 PASSED IN OS.NO.8799/2012 ON THE
FILE OF THE XXIX ADDL.CITY CIVIL JUDGE, BENGALURU CITY
DISMISSING THE SUIT FOR PERMANENT INJUNCTION.
THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT AND COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
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NC: 2025:KHC:18573
RFA No. 1340 of 2019
HC-KAR
CAV JUDGMENT
The plaintiff has preferred this Regular First Appeal challenging the judgment and decree dated 23.03.2019 passed in O.S.No.8799/2012 on the file of XXIX Additional City Civil and Sessions Judge, Bengaluru City (CCH-30) (hereinafter referred to as 'the Trial Court' for short), thereby, the suit filed by the plaintiff is dismissed with cost of Rs.25,000/-.
2. For the sake of convenience and easy reference, the parties are referred to as per their rankings before the Trial Court.
3. The entire premise of suit is pertaining to the law of contract.
THE PLAINTIFF'S CASE:
4. Under the peculiar facts and circumstances involved in the case, it is beneficial to state the prayers made by the plaintiff in the suit, which are as follows: -4-
NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR "45. Prayer: - Wherefore, the plaintiff respectfully prays that: -
This Hon'ble Court may be pleased to pass a judgment and decree in favor of the plaintiff by setting aside the contentions of the defendants on the following terms.
a) Granting permanent injunction against the Defendants and their officers/agents or any person, acting or claiming through or under them from continuing to distribute or permit free downloading of the Tamil language software of the Version 2 that was released during the First World Classical Tamil conference (June 2010) and also to refrain from making any other fresh versions of the Tamil Language software under the same scheme till such time the issue in that regard with the Plaintiff herein is resolved through this OS.
b) To declare the right of the plaintiff to the extent of his legitimate claims for inclusion of the valid and due software tools that as per law merited to be added in the Version 2 of the free distribution software in the Tamil Language and which was illegally and unjustly denied to the plaintiff and in consequence direct the defendant to submit to this Hon'ble Court all the relevant details (under Order XI Rule 1 to Rule 22 of the CPC as applicable) to enable discovery and inspection of the relevant documents and records so as to enable the estimation of the financial loss imposed on the plaintiff by the actions of the plaintiff as enumerated in the M O S and to fix the cost of loss and other negative impositions that have been made on the plaintiff by the illegal, impermissible and unjust actions of the defendant and on those facts being ascertained grant compensatory costs including damages and other costs against the Defendants.
c) Direct the defendants to make good the financial loss accrued due to the non-consideration of the software tools submitted by the Plaintiff as per law and to reject the unjust, false and improper excused advanced with regard to the software tools -5- NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR that were already subjected to technical evaluation by the Defendant and to fulfill the promise of consideration of the software tools for which the Defendant has in writing confirmed that due action would be taken but had quietly and surreptitiously stopped further due action, (more so in the fact of release of the Version 2 during the World Classical Tamil Conference held at TN during June 2010) which clearly conveys that the defendant had no mind ab initio to fulfill his part of the implied contract made in this regard.
d) To consider instances as enumerated in this M O S and to reject the false and untenable pleas that may be raised by defendant with regard to each of them in terms of the specific performance due and in case that has been rendered infructuous to arrive at the estimation of loss and damages that have been Imposed on the plaintiff and direct the Defendant to make good the loss as well as compensate for the mental injuries and consequential impositions that was made on the plaintiff.
e) To Award Damages for such abuse & violation of the standard rules on transparent and accountable processes (and that too being an important public agency and status) that is due on an agency like that of the Defendant under the Government.
f) To accord Permission to amend the plaint if and when required.
g) Decree be drawn accordingly in favor of the plaintiff and such other and further reliefs that this Hon'ble Court deems fit in the face of all the facts and circumstances of the case and in the interest of justice."
4.1 The plaintiff has stated the facts in detail that the plaintiff is in the business of software development for -6- NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR various Indian languages and among other things the plaintiff has been working on developing various software tools for Tamil, Kannada and other regional languages of India.
4.2 Defendant No.1 had called for proposals in response to the advertisement in the Hindu newspaper and based on that advertisement the plaintiff had responded to the call which was seeking proposals from the public. Notwithstanding compliance to the offer made by the plaintiff, the plaintiff has been denied the fruits of his labours and not honoured the implied contract and therefore alleged agreement of defendant No.1 that series of fraudulent and premeditated as well as impermissible and illegal actions of defendant No.1 resulting into serious financial losses and burdens to the plaintiff. Therefore, filed suit to seek reparation for all losses and damages.
4.3 Defendant No.1 has mislead the plaintiff and made the plaintiff to make believe that fair, equal and -7- NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR open opportunity is being given to the plaintiff to participate in the process of selection of a suitable software tools in relation to the professed free distribution of Tamil software, which is in relation to software tools for various regional languages of India including Tamil language and the plaintiff has made plea in relation to Tamil language free software, but by the act of defendant No.1 the plaintiff has suffered substantial financial loss and damages. Therefore, alleged that the defendants' fraudulent omissions and commissions caused the financial loss to the plaintiff. It is alleged that the defendants have caused breaches of legal obligations and a contract which after required processes would be binding on both the parties as the defendants chose to resort to devious steps to avoid his part of the obligation, resultantly the plaintiff has suffered financial loss.
4.4 On 27.02.2006, defendant No.1 published an advertisement in "The Hindu" newspaper inviting proposals for Indian languages resources from amongst the public in -8- NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR relation to selection of software tools for several languages including the Tamil language. The said advertisement was a public and open 'call' from defendant No.1. The defendant No.1 was seeking formal responses from amongst the public of India to provide or submit due proposals as per the specifications made out in the said advertisement. It is contended that as per law it was an offer seeking proposal/s and the plaintiff has responded to it. In response to the said advertisement, the plaintiff took action to submit due responses to the said advertisement as per the terms and conditions explicitly made out in the said advertisement. It is contended that once the compliance of the conditions indicated in the offer was made, then it is deemed as an acceptance and a contract becomes effective. In addition to that, the responses submitted by the plaintiff were also framed keeping in mind some of the requirements indicated in the official website of defendants. The plaintiff has taken all steps in pursuance of that advertisement and all such -9- NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR steps were taken in furtherance of the public call of the defendants believing that it is so done in a bonafide manner to the response to the said advertisement. The steps taken by the plaintiff were not voluntary actions or application/s or stemming or commencing from the side of the plaintiff, but also it was an act to accept the offer and thus the contract comes into play subject to various conditions as per the terms of offer and facet of acceptance so done by the plaintiff.
4.5 Further the response so made by the plaintiff was also pursued by the defendants thus the defendants after receiving due responses from the plaintiff, called for specific software tools for evaluation and took further steps in pursuit of considering its inclusion in the Version 2.0 for technical and financial evaluation. Therefore, an implied contract comes into force and could not be withdrawn or dropped by the defendants.
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR 4.6 Further, the plaintiff had submitted its proposals in response to the said advertisement in the Hindu newspaper dated 27.06.2006 in writing and great detail vide letter dated 10.07.2006 and the said letter was received by the defendants. The defendants after considering all the responses that were received from various vendors and suppliers, who responded to the said public advertisement. However, after making enquiries, the defendants had already handpicked from some so chosen entities and had added software tools for Tamil language from those pre-chosen entities therefore this action is a deliberate mindset and false nature of the said advertisement which is alleged that the defendant had already chosen some entities even before advertisement and therefore, it is alleged that the act of the defendants is surreptitiously nature in this regard the plaintiff has indetail discussed that the defendants had adopted in surreptitive manner.
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR 4.7 Further it is the case of the plaintiff that the defendants had published an advertisement on 19.05.2005 prior to the advertisement dated 27.06.2006 and the public response to that advertisement was poor. Later, another advertisement was issued on 27.06.2006. The plaintiff, upon choosing the entities, obtained information under the (Right to Information 'RTI Act') and the defendants informed the plaintiff that there were 46 responses received by the defendants in response to the advertisement made in "The Hindu" newspaper dated 27.06.2006.
4.8 Further, it is stated that one Sri. Mahesh Kulkarni of defendants' company has been communicating with the plaintiff through email/s and letters about software/s and one of such communication conveyed that the defendants would be considering for inclusion of some software/programs/tools submitted by the plaintiff for release of Version 2.0 of the said Tamil language software tools. It is opinion of the plaintiff that free public
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR distribution of software not only has a financial advantage but also serves as public service. Thus the conduct of the defendant is nothing but causing loss to the legitimate and valid vendor/supplier/author due to the wrongful, non- transparent and illegal actions by the defendant.
4.9 The plaintiff has stated instances of legal injuries sustained by it and has pleaded the following instances: (i) that the officials of the defendants, namely Sri. Mahesh Kulakarni and Sri. Chandrakanth were communicating through letters/emails to inform the plaintiff about the progress of various issues concerning the plaintiff's case. The said Chandrakant mentioned that the software products of the plaintiff, Version 2.0, namely
(i) Surabhi 2000 (ii) Surabhi U V (iii) Visaitamil, were not considered. Therefore, through this communication, the defendants confirmed that the above said software products/tools had been received by the defendants. However, the defendants conveyed to the plaintiff that the above said three software tools/programs were similar to
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR the programs/tools/software that were already available with the defendants, hence the defendants would not consider the said three programs for inclusion in the release of Version 2.0. However, with regard to these software products, the defendants had previously written to the plaintiff about some bugs present in the software tools and had expressly sought that the said bugs to be fixed by the plaintiff. Based on this written communication from the defendants, the plaintiff attended to all such items and re-pursued the matter by submitting the duly attended versions of the said tools. It is submitted that the defendant had specifically indicated that software tools Visaitamil was taken for testing and evaluation but took no further steps.
4.10 Further, the Second Version of the free software for Tamil language was made public during the World Classical Tamil Conference held at Coimbattore, Tamil Nadu, in the year 2010. The plaintiff was able to secure a copy of Version 2.0 and examined it out of general
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR curiosity to know facts relating to the release of the said software tools. The plaintiff found his shock and surprise that the said Version 2.0 contained software products from the following two venders/suppliers: (a) M/s New Wave Consulting (Private) Ltd., (b) M/s New Horizon Media (Private) Ltd. It is submitted that the above said Version 2.0 contains the following programs/tools, which are similar to the programs/tools/software found in the Version or Version 1.0 released earlier.
4.11 It is alleged that the defendant has not furnished true, correct and acceptable clarification; thus, the averments made by the defendants cannot be accepted on its face value. In this way, the defendants have misled the plaintiff. Further, the plaintiff has stated the following instances regarding the said Version 2.0 which contained software/tools/programs.
a) M/s. New Wave Consulting (P) Ltd.,
b) M/s. New Horizon Media (P) Limited.
c) M/s. C-DAC.
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR 4.12 Therefore, it is alleged that the action taken by the defendant surreptitiously enables the above said three agencies to benefit from the impermissible action and therefore the defendants have shown illegal favour to the above said agencies, contrary to all principles of transparency and Rule of Law, besides breach of contract.
4.13 It is stated that M/s New Wave Consulting Pvt. Ltd. and M/s New Horizon Media Pvt. Ltd., were not in the list of agencies or organizations that had actually responded to the advertisement in "The Hindu" newspaper dated 27.06.2006 and as on 12.07.2006. Thus, prima facie these two agencies were not eligible to be considered for any action with reference to the defendants' advertisement in "The Hindu" newspaper dated 27.06.2006. Therefore, those who had not responded to the said advertisement as per list of the defendants would be ineligible for any consideration. Thus, the action of the defendants does not stem from or follow the advertisement.
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR 4.14 It is alleged that the defendants have illegally favoured the above said two agencies in breach of contract with plaintiff. The defendants had no legal power or valid authority to assign a task or grant a vendor opportunity to any of the said three agencies. The action of the defendants is illegal and with malicious motivated by malice, therefore as a result of the above impermissible actions, commissions and omissions by the defendant, the plaintiff has been denied a fair and open opportunity, which has been illegally denied to the plaintiff, in order to show legal favour to the above said two agencies. Therefore, the stand taken by the defendants is false and untrue. As such, the refusal or failure by the defendants to consider the software tools prepared by the plaintiff is illegal action. The defendants have made the plaintiff to attend to many specific actions like fixing bugs in the relevant software tools as suggested by the defendants and in response to that direction, the plaintiff has acted by suitably modifying the software tools for the coexistence of
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR the programs as per the requirements indicated by the defendants in the final product. These failures, acts and omissions on part of the defendants have resulted in causing financial losses to the plaintiff. It is submitted that in the normal course after due selection of the software tools, negotiations would have ensued to fix the final price of the products; therefore, the defendants are estopped from retracting its offer.
4.15 The instances (ii) stated by the plaintiff is that the defendants by their communication as indicated that out of the several programs/software/tools submitted in response to the same advertisement. The following items were under test by the defendants:
1. Aatral
2. Senthamil 1A
3. Senthamil 1B and
4. Senthamil 4.
4.16 As per the communications made by the defendants, the above four software tools were under test or evaluation by the defendants. It was also conveyed in
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR writing by the defendants through letter/email dated 15.05.2007 and 14.06.2007 that three of the above four programs might be considered for possible inclusion at the time of release of version 2.0 of the Tamil language software tools, but the defendants had not provided contract to the plaintiff. The plaintiff, based on the communications made by the defendants had legitimate expectations that the above said software tools would be considered favourably, but the defendants rejection of the plaintiff's offer caused heavy financial loss to the plaintiff due to this surreptitious action. Therefore, the plaintiff is left with no other alternative ways but to take legal action against the defendants. It is alleged that technical evaluation as well as financial evaluation had to precede the final selection of the software tools. The defendants confirmed the progress of the technical evaluation through its communication, but without taking any legal action or steps in this regard resiled from the contract, which is illegal. Even after five years from that date, no steps had
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR been taken to fulfil their part of the legally binding obligations and the failure in this regard by the defendants is illegal action. Therefore, the legitimate expectation of the conditional contract coming into effect would have met the valid aspirations of the plaintiff if allowed to emerge. Thus, in this way, the defendants defrauded the plaintiff of legitimate claims. As a result of which, the plaintiff has suffered financial loss besides mental agony and tension.
4.17 Further, it is pleaded that the defendants had requested the plaintiff vide email dated 26.07.2007 to fix the bugs in the programs above as sent to them in response to the advertisement dated 27.06.2006 and based on that written communication, the plaintiff had acted and taken steps accordingly to attend to those specific observations of the defendant. Therefore, from the written communications made by Sri. Mahesh Kulakarni of the defendants' company dated 13.03.2006 and from the letter dated 14.06.2007, it is clear that the defendants had sought from the plaintiff to send the above
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR said four specific programs to the defendants. Through these communications, the defendants had shown a clear indication that it was keen to include these four programs in Version 2.0 of the Tamil software tools. This request was further reiterated by the defendants through its letters dated 15.05.2007 and 14.06.2007. 4.18 It is alleged that after the said communications, the defendants suddenly went silent and through the above said communications, the defendants had kept the plaintiff on a false promise of fulfilling the contract that came into effect by the offer and acceptance, thereby causing financial loss, damage and mental agony to the plaintiff without any just cause of reason action. 4.19 The defendant had raised reasonable and natural expectations in the mind of the plaintiff, making the plaintiff believe that the plaintiff's software tools directed by the plaintiff would be accepted by the
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR defendants, but the defendant illegally retracted its acceptance, causing loss to the plaintiff.
4.20 The plaintiff has stated instance (iii) that with regard to the Surabhi tools U V, by a communication from the defendants dated 27.11.2007, the defendants conveyed that the above said software programs were being considered for inclusion in the release of Version 2.0. However, no further steps have been taken by the defendants in this regard, despite the developments surrounding the release of Version 2.0 at the World Classical Tamil Conference during the month of June 2010, and instead, the defendants misled the plaintiff. The defendants made the plaintiff believe that the software tools developed by the plaintiff would be accepted by the defendants for released at the World Classical Tamil Conference. Thus, without following norms, procedures, the defendants had unilaterally kept silent, despite the offer made in the advertisement being accepted by the plaintiff and the defendants reciprocating the acceptance.
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR In this way, the contract is fulfilled and the acceptance made by the defendants is proved by the communication as discussed above. However, thereafter, the defendants has retracted its acceptance without any reason, through commissions and omissions by the defendants, causing loss and injury to the plaintiff. Therefore, the plaintiff has filed the suit.
4.21 It is further pleaded that the plaintiff had responded to the advertisement in "The Hindu" newspaper by which the defendants had called for "read to integrate software" tools under the condition of unlimited licensing and based on that advertisement the plaintiff had submitted the proposals for the requirements specified in the said advertisement. Further, as per the terms and conditions for the submission of the proposals for the said software's, the proposals had to be submitted under an unlimited, worldwide, transferable irrevocable license for free distribution. Based on such express and professed conditions, the plaintiff had submitted the proposals as per
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR those guidelines and in the expectation of a fair opportunity and just consideration. The plaintiff had not made any other efforts to continue or venture to market its products, in anticipation of a positive outcome. As a natural consequence, the plaintiff has been made a sufferer, as the process of selection adopted by defendant No.1 is illegal, unjust, and contrary to law and procedure.
4.22 The plaintiff, right from the time of its first response to the advertisement in the Hindu newspaper, clearly conveyed to the defendants the company details of the software products in question and provided a total profile of all the software tools offered by the plaintiff including their size, potential and other details and all such details were provided to the defendants. Thus, the defendants are estopped from retracting their contract and the defendants have caused financial loss, injury, damage and mental agony to the plaintiff. Hence, the plaintiff is constrained to file the suit for claiming the above said reliefs.
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR 4.23 The plaintiff by filing the suit in the City Civil Court had stated the cause of action to file the instant suit arose when the defendants released the Version 2.0 of the free distribution language tools in Tamil during the period of 23rd to 27th of June 2010 and when the plaintiff had secured a copy of the second Version released during the World Classical Tamil Conference 2010 held in Tamil Nadu. This realization occurred when the plaintiff understood that defendant No.1 had no intention to conduct a fair, just and lawful process in pursuance of its own advertisement made on 27.06.2006, though the plaintiff became aware of the defendants real intention only during June 2010. When the plaintiff realized the fraudulent intentions of defendant No.1 not to honour its own commitment and its demonstrated refusal to follow a valid, legal, transparent and just procedure, instead kept the plaintiff in the knowing the plaintiff's position. Thus, the cause of action arose during the period of 23rd to 27th of June 2010 and if the suit is filed within a period of limitation from the time
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR of that date of cognizance on the part of the plaintiff concerning the illegal steps taken by defendant No.1. 4.24 Regarding jurisdiction to file the suit in City Civil Court at Bengaluru, it is stated that the defendants had advertised in "The Hindu" newspaper on 26.06.2006 (published from the city of Bengaluru) and the transactions commenced at that event, with communications and correspondences made by the plaintiff form its office in Bengaluru. Thus, the City Civil Court, Bengaluru, had territorial jurisdiction. Therefore, the suit filed by the plaintiff for the above stated prayers with facts narrated above.
THE DEFENDANTS' CASE:
5. Defendant Nos.1 and 2 have filed written statement by giving reply to each paragraph in the plaint. Defendant No.3 has adopted the written statement filed by defendant Nos.1 and 2.
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR 5.1 The defendants have totally denied the case of the plaintiff as false. The case made out by the plaintiff in plaint that the advertisement in "The Hindu" newspaper dated 27.06.2006 inviting tenders, is not an offer but rather an invitation to offer. Further, the defendants denied that the defendants have caused the plaintiff to sustain loss and injury.
5.2 Further, the defendants have pleaded that the suit is not maintainable on the grounds of lack of jurisdiction, absence of cause of action, being barred by limitation and absence of privity of contract between the plaintiff and the defendants. Also submitted that due to insufficient Court fee paid and vagueness of the averments in the plaint, the suit is not maintainable. 5.3 Further, it is pleaded that regarding territorial jurisdiction, the defendants have stated that defendant Nos.1 and 2 are carrying on their activities from Pune and defendant No.3 from New Delhi. The advertisement dated
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR 27.06.2006 published in the English daily newspaper "The Hindu" was released from the Pune office of defendant Nos.1 and 2. Thus, no cause of action has arisen under the jurisdiction of City Civil Court, Bengaluru. 5.4 It is pleaded that the correspondence and actions made by the plaintiff's office in Bengaluru and the advertisement dated 26.06.2006 was published in the Bengaluru edition of English daily newspaper "The Hindu"
does not confirm territorial jurisdiction on the City Civil Court, Bengaluru. As per Section 20 of the Code of Civil Procedure (hereinafter referred to as 'CPC' for short), a suit can be filed either in the Court within the local limits of whose jurisdiction the defendant resides or carries on business or where the cause of action arises. Therefore, it is pleaded that in the present case, neither of the said two conditions is satisfied and mere exchange of correspondence at Bengaluru on behalf of the plaintiff does not entitle it to invoke the territorial jurisdiction of the City Civil Court, Bengaluru.
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR 5.5 Just because the said advertisement appeared in the Bengaluru edition of "The Hindu" newspaper, it cannot be said that cause of action has arisen in Bengaluru. Therefore, in view of non-satisfaction of either of the two conditions envisaged in Section 20 of CPC, the suit is liable to be dismissed on the ground of lack of territorial jurisdiction.
5.6 It is pleaded in reply to the plaint allegation that if it was the plaintiff's opinion that the defendants did nothing since 2007, the plaintiff ought to have filed the suit before 2010. In the defendants' email reply dated 15.05.2008, which was in response to the plaintiff's letter dated 28.04.2008, the defendants have specifically informed the plaintiff that the Tamil language CD had already been released and there were no immediate plans to release the second version of the earlier released software tools and fonts CD and that all the decisions regarding procurement of further additional tools technologies had been put on hold. It was made clear to
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR the plaintiff on 15.05.2008 itself that the issue of considering its software for Tamil language CD had been closed. Even if this email is taken as starting point of limitation, the suit ought to have been filed on or before 14.05.2011, but the suit filed is barred by limitation. The plaintiff has admitted that the defendants vide letter dated 18.12.2008 sent it the proceedings of its technical committee and in the said report, the technical report clearly stated that price quoted by the plaintiff was too high and its software was too big to be accommodate in a single CD. The plaintiff has averred that the defendants were not justified in not considering its software because of its big size; the plaintiff knew on 18.12.2008 itself that its software had been rejected by the defendants and therefore ought to have filed suit before 17.12.2011, but filed thereafter, making the suit barred by limitation. Therefore, the pleading taken by the plaintiff to overcome the limitation issue is false and the plaintiff has made a false averment that the cause of action for the suit
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR commenced when the defendants released Version 2.0 CD during the World Tamil Conference held at Coimbatore from 23rd to 27th June, 2010. The plaintiff was under the mistaken impression that the CD released at the Coimbatore conference was Version 2.0 CD. The defendants have stated that the facts on record show that Version 1 CD consists all numerous free and open source tools localized in Indian languages as well as tools such as keyboard drivers, fonts, dictionaries etc., released by the Technology Development for Indian languages Programme of the Department of Electronics and Information Technology, Government of India.
5.7 It is further pleaded that the tools in the language CD were mostly from C-DAC and other research institutions. The CD is distributed free for non-commercial usage and is language specific released in all 22 Indian languages in phases, including Tamil language. The World Classical Tamil Conference was held in Coimbatore in June, 2010 under the auspicious of the Government of Tamil
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR Nadu. Various committees were formed to take care of different themes, one of such themes was international Conference in Tamil. A Committee was formed by the Tamil Nadu Government for this purpose under the Chairmanship of Prof. M. Anandakrishna, IIT, Chennai. Since the Department of Electronics had already released CDs in 22 languages, the Committee requested its help in releasing a CD in Tamil during the Coimbatore conference. The latest localized versions of a few free and open source tools and other tools as suggested by the said Committee were included in a CD specific to the Coimbatore Conference. The CD known as "Tamil 2010" was released in June 2010 at the Coimbatore conference. This is not Version 2.0 CD, as falsely contended by the plaintiff. Version 2.0 CD has not been released by the defendants even to date. The CD released at the Coimbatore conference was an event specific release at the initiative of the Government of Tamil Nadu, which has nothing to do with the Version 2.0 CD. The plaintiff also has not
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR produced any material in support of its contention about the release of Version 2.0 CD and has confined itself to making false averments to somehow bring the suit within the period of limitation. In view of this, the suit is liable to be dismissed as barred by limitation. 5.8 Further it is pleaded that the plaintiff has falsely averred that there is a contract between it and the defendants. According to the plaintiff, the defendants' advertisement in the English daily newspaper, "The Hindu"
dated 27.06.2006 was an offer by the defendants and compliance with the conditions of the advertisement by the plaintiff was a deemed acceptance of the offer, thus resulting in a concluded contract between them. This stand of the plaintiff is not tenable either in law or on facts. In the advertisement dated 27.06.2006, it is clearly stated that proposals are invited from interested persons for ready to integrate software tools/technologies and resources for any of the 22 scheduled Indian languages. This cannot, by any stretch of imagination, be construed
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR as an offer. At the most, it is only an invitation to offer. The response of the plaintiff to this advertisement can only be considered as an offer. As the defendants have at no point of time accepted the offer of the plaintiff, there is no concluded contract between them.
5.9 Further, it is stated that the plaintiff is fully aware of the fact that there is no concluded contract with the defendants, as clearly borne out by its letter dated 12.05.2007 addressed to the defendants, in which it has clearly stated that it would be much interested to upgrading/rewriting spell checker and administrative glossary only after finalization of the pending proposal or on receipt of a formal work order, purchase order or agreement. In the said letter, the plaintiff has also asked the defendants about the terms and conditions for the software tools and financial offers for the same. Despite this, the plaintiff has filed the suit by wrongly assuming a valid contract between it and the defendants. In the
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR absence of any contract between the parties to the suit, the very basis of the suit is taken away. 5.10 Further, it is pleaded that there is nothing in the plaint to indicate that any right has accrued in favour of the plaintiff to justify filing of the suit. The plaintiff has not been able to even quantify its alleged loss; it has clearly admitted that the extent of loss is yet to be computed and calculated. Despite this, one of the prayers in the plaint is for a direction to the defendants to compensate for the financial loss suffered by it. It has made another untenable prayer at clause (d) in prayer of the plaint to estimate its alleged loss and for a direction to the defendants to pay it. It has also prayed for damages without quantifying it. The plaint is replete with grievances and innumerable repetitions of the same averment/allegation along with unsustainable prayers. 5.11 Further, it is pleaded that the plaintiff has misrepresented material facts, which the defendants deem
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR it necessary to place them on record. The defendants had released a compact disc containing free Tamil software tools on 15.04.2005. Due to rapid changes in technology, it was felt necessary to release yet another compact disc containing revised and updated versions of the earlier compact disc released on 15.04.2005. Accordingly, the defendants issued an advertisement dated 27.06.2006 produced as Annexure-A to the plaint, inviting proposals to provide software tools, technologies and resources for any of the 22 scheduled languages. The proposals so received along with the accompanying software tools were to be evaluated by the technical and finance committees of the defendants and upon approval, the relevant proposals along with the software tools would be accepted for inclusion in the revised compact disc containing the revised version of the contents of the erstwhile disc released on 15.04.2005. As already stated above, the CD released at the Coimbatore conference has nothing to do with Version 2.0 CD, which has not been released so far.
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR 5.12 Further, the plaintiff has made all sorts of false allegations without any basis and the same allegations are repeated multiple times in the plaint. The defendants submit that no fraud has been committed by them and are not liable for the alleged mental agony and financial losses of the plaintiff.
5.13 Further, it is pleaded that the averments made in the plaint that the plaintiff has suffered financial loss due to wanton and premeditated breaches of its legal obligations by the defendants that the defendants have taken dubious steps to avoid its part of the obligations resulting in loss of financial income that would have otherwise accrued to it and due to acts of omission and commission on the part of the defendants great mental loss and anxiety has been caused to the plaintiff and that the defendants are responsible for the loss, injury and damages caused to the plaintiff are hereby denied as false. As already stated above, no contract between the plaintiff and the defendants has come into existence and the
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR plaintiff has repeatedly made this false averment in the plaint.
5.14 Further, it is stated that the plaintiff itself has clearly admitted that the defendants invited proposals from the public in the advertisement dated 27.06.2006 in the English daily newspaper "The Hindu". This contradicts its own false stand that the said advertisement is an offer and that by complying with its terms and conditions, it has accepted the offer, thus resulting in a contract. 5.15 Further, it is pleaded that the plaintiff made enquiries and learnt that the defendants had already (before the said advertisement itself) handpicked some chosen entities, that it added the software tools of the chosen entities for the Tamil language, that it had taken such a step during April 2005 itself, about which said advertisement dated 27.06.2006 had been issued. This is a clear pointer to the deliberate mindset and false nature of the said advertisement, though the defendants made an
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR attempt to couch that action by stating in the advertisement dated 27.06.2006 that it was in continuation of the efforts to release of language CD's etc. The plaintiff's allegation that it was all along in the dark about the illegal plans adopted in this regard by the defendants and that the defendants did not follow any transparent or open procedure as per law in the process by which the products of such handpicked entities or agencies were deliberately, purposefully and without due legal authority added to the said CD released to the marked by the defendants during the year 2005 itself are all denied as false.
5.16 Further, it is pleaded that it is true that defendant No.1 in response to the RTI application preferred by the plaintiff, informed that the defendants had received 46 proposals in response to the said advertisement and further, the defendants have also provided to the plaintiff proceedings of technical committee of defendant No.1, which had examined and
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR evaluated the responses. This clearly shows the transparent, bonafide and legal procedure followed by the defendants to evaluate the responses received to the advertisement.
5.17 Further, it is pleaded that it can be seen from a perusal of the proceedings of the technical committee of the defendants produced as Annexure-H to the plaint that the committee found the price quoted by the plaintiff to be quite high and its software size was too big that it could not fit in a single CD. It has not recommended acceptance of the plaintiff's proposal. On the other hand, it recommended only relook at the proposal when the second version of the specific language CD is planned. This is yet another proof to show that the defendants at no time accepted the proposal of the plaintiff.
5.18 Further the defendants have pleaded that in the letter dated 13.09.2006, one Sri. Mahesh Kulkarni has only stated that the defendants are planning to
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR incorporate more tools, especially the language learning tutors, as mentioned in the proposal of the plaintiff, but the plaintiff has falsely averred that Sri. Mahesh Kulkarni has stated in the said letter that the defendants are considering inclusion of the plaintiff's software for release in Version 2.0 CD. Thus, there was no commitment of whatsoever nature on the part of the defendants to include the software of the plaintiff in Version 2.0 CD and it was only at the planning stage and not even at the consideration stage. In view of this, no right can be said to have accrued in favour of the plaintiff to bind the defendants to include its software in Version 2.0 CD.
5.19 Further the defendants have pleaded that the allegations made are just repetitions of allegations made earlier and all of them are false. It is unfortunate that the plaintiff, after admitting that it is in the process of getting some more information from the defendants to know the real nature of its dealings with M/s. New Wave Consulting (P) Ltd. and M/s. New Horizon Media (P) Ltd., has chosen
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR to make wild allegations against the defendant based on incomplete and wrong information and assumptions. The defendants have not favoured the said two companies as falsely alleged by the plaintiff.
5.20 Further, the defendants have pleaded that since the plaintiff has not incurred any loss, the question of making good the loss does not arise. In its letter dated 12.05.2007, the plaintiff has clearly informed the defendants that it (plaintiff) will start work only after finalization of the pending proposal or formal work order or agreement. As even according to the plaintiff, none of these things happened there was no occasion for the plaintiff to start any work. This clearly goes to show that the plaintiff has falsely claimed to have incurred loss to make ill-gotten money at the expense of the defendants. 5.21 Further, the defendants have pleaded that there is nothing in the letter/email dated 15.05.2007 and 14.06.2007 of the defendants to give the plaintiff
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR legitimate expectation that the defendants would favourably consider its proposal regarding inclusion of certain items in Version 2.0 CD. In his email dated 27.11.2007, the said Sri. Chandrakant has clearly informed the plaintiff that four of its software programmes have been rejected and the remaining four would be considered at the time of Version 2.0 CD. The plaintiff has no right to force the defendants to include any of its software programme/tools in Version 2.0 CD. Even if the allegation of the plaintiff that the defendants have chosen to keep quiet since 2007 is assumed to be correct without admitting it that only goes to prove that the present suit is clearly time barred. In addition, the plaintiff has no right to force the defendants to release Version 2.0 CD or include its software in it. It is for the defendants to decide whether it should release Version 2.0 CD or not or include anybody's software in it and nobody can have a say in this matter. As already stated, the CD released at the Coimbatore conference in June, 2010 is not Version 2.0
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR CD, as wrongly presumed by the plaintiff and all the averments made by it based on this wrong presumption, in addition to being false are also irrelevant. 5.22 Further, the defendants have pleaded that the allegations that the defendants had via email dated 26.07.2007 requested the plaintiff to fix the bugs in its programs, that based on it, the plaintiff took steps to attend to the specific observations of the defendants that by its communications dated 13.09.2006 and 14.06.2007, the defendants had given a clear indication that it was keen to include four programs of the plaintiff that the defendants via letters dated 14.06.2007 and 15.05.2007, had made it clear to the plaintiff that the four programs of the plaintiff were intended to be included in Version 2.0 CD and that Version 2.0 CD was released in the World Tamil Classical Conference held in Coimbatore in June 2010, are hereby denied as false.
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR 5.23 Further, the defendants have pleaded that the plaintiff has completely and unjustifiably misconstrued the communications from the defendants referred to above and is under the false impression that version 2.0 CD was released in June 2010.
5.24 Further, the defendants have pleaded that the averments that after the communications referred in Para 31 of the plaint, the defendants suddenly went silent that it is obvious that the letters and communications of the defendants to the plaintiff were dishonest ab-initio, that the defendants had kept this plaintiff on a false promise of fulfilling the contract that came into effect by the offer and acceptance that it acted on the directions of the defendants and that the defendants caused financial loss, damage and mental agony to the plaintiff without any just cause or reasons are hereby denied as false. 5.25 Further, it is pleaded that the defendants had raised a reasonable and natural expectation in the mind of
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR the plaintiff that the plaintiff had not taken any other normal business step to market any of the said software tools, which it might have done had the defendants not fed it with all false, misleading and bogus promises, that the loss to the plaintiff was not only stemming from unjust and illegal non-consideration of the proposals by the defendants but also from loss of prospective business of the said software in the open market and that the defendants had engaged in sham and bogus activities are hereby denied as false.
5.26 The defendants further pleaded in the written statement that the defendants submit that it has always acted in a fair and lawful manner with the highest standards of ethical compliance in all its dealings with others, including those with the plaintiff. The mere fact that each and everyone of the plaintiff's queries and communications was promptly responded to is a testimony to the bonafide intentions of the defendants and the transparency with which it dealt with all proposals received
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR by it. Therefore, there is no question of the defendants acting in a fraudulent, dishonest, surreptitious or illegal manner. If the plaintiff has not taken any other normal business steps to market the said software tools, as claimed by it, it has to blame itself and the defendants are in no way responsible for it. The plaintiff also at no time brought this to the notice of the defendants, which clearly goes to show that in addition to being false, the said averments/allegations are a result of afterthought. When there is no contract between the plaintiff and the defendants, there is no question of making good the alleged loss to the plaintiff.
5.27 Further, the defendants pleaded that the defendants have not released Version 2.0 CD in the Coimbatore conference; all the averments made in Para 34 in addition to being false, are also irrelevant. 5.28 Further, the defendants submit that as admitted by the plaintiff itself, the defendants had only informed it
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR that it would consider inclusion of plaintiff's software in Version 2.0 CD and there was no binding commitment to this effect. As Version 2.0 CD has not been released, there is no question of causing any loss to the plaintiff. Even if Version 2.0 CD has been released without including the software of the plaintiff, then also the plaintiff cannot have any grievance over the same, as the defendants are under no obligation to include its software in Version 2.0 CD. The plaintiff has not incurred any loss as alleged, if at all it has incurred any loss, it has to blame itself. 5.29 Further, it is pleaded that the allegations that the defendants really had no intention to follow the patent financial canons of the Government or follow any legally bound transparent procedures that all the steps taken by the defendants were in a ruse to mislead, misrepresent and falsely do all the illegal processes behind the back of legitimate aspirants of those who in good faith responded to the said advertisement that the plaintiff has been denied the anticipated financial gain that financial loss,
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR mental anxiety and torture have been caused to the plaintiff and that the defendants have to make good the said loss, are hereby denied as false. The fact that the plaintiff has not incurred any loss is very clear from the fact that nowhere it has quantified it and on the other hand, it has tried to cover up this by making an untenable statement that the loss and damages have to be computed based on the details to be provided by the defendants. It goes without saying that if at all the plaintiff has incurred any loss, it should have known the quantum of loss and that quantification of its loss cannot depend on the information to be supplied by some other party. 5.30 Further, it is pleaded that at no time the defendants had made a binding commitment to the plaintiff to include its software in Version 2.0 CD and as admitted by the plaintiff itself, the defendants had only stated that it would consider including the plaintiff's software in Version 2.0 CD. In view of this, there is no merit in the contention of the plaintiff that the defendants
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR failed to act as promised and caused serious loss and anxiety to the plaintiff and that it has to make good the alleged loss to the plaintiff.
5.31 Further, the defendants have pleaded that averments that the plaintiff had not made any other effort to continue or venture to market its products in anticipation of a fair opportunity and just consideration by the defendants that it has suffered due to alleged illegal process of selection adopted by the defendants and that the defendants have to make good the alleged loss are denied as false. As already stated above, there has never been any contract between the plaintiff and the defendants and if at all the plaintiff has kept quiet for many years without marketing its products, it is solely responsible for the same and the defendants cannot be blamed for it.
5.32 The defendants have pleaded that the averments that the defendants, by having access to
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR various software programmes developed by others has gained for itself very vital information without any real intellectual effort on its part and this action is virtually an invasion and abuse of the intellectual property of those who have placed their software for due consideration by the defendants and that the defendants have indulged in making an illegal and improper situation by having access to the intellectual property of the plaintiff and others are denied as false. It is clear from the said averments of the plaintiff that it has mistaken this suit for a public interest litigation. No other software developer has made any complaint against the defendants and the plaintiff has no right to assume the role of their spokesman. In the present suit, the main grievance of the plaintiff is that the defendants have not made use of its software. After having clearly admitted that its software has not been made use of by the defendants, it is not known on what basis the plaintiff has made the allegation that the
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR defendants have gained by having access to the software of the plaintiff and others.
5.33 Further, the defendants pleaded that vide email dated 15.05.2008, they intimated the plaintiff that its proposal was rejected as the project itself had been scrapped. The plaintiff has admitted that the defendants have observed silence in the matter since 2007. The defendants have not released Version 2.0 CD in June 2010, as wrongly averred by the plaintiff. In view of this, no cause of action has arisen in favour of the plaintiff to file the above suit. Only with a view to bring the present suit within the period of limitation, the plaintiff has referred to the release of an unrelated compact disc in the month of June 2010 as the date on which the cause of action arose.
5.34 Further, the defendants have demonstrated above that the cause of action did not arise in June 2010. The plaintiff has made a false averment that Version 2.0
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR CD was released in June 2010 only with a view to bring the suit under the period of limitation. The suit is clearly time-barred.
5.35 Further, the defendants have pleaded that neither are the defendants carrying on their business from Bengaluru nor any cause of action has arisen in Bengaluru. The publication of the advertisement in "The Hindu"
newspaper published from Bangaluru office, does not entitle the plaintiff to invoke the jurisdiction of City Civil Court, Bengaluru.
5.36 Therefore, the defendants, in the written statement have answered with a specific reply to each of the pleadings in the plaint and denied the entire plaint averments as false and frivolous. It is pleaded that there was absolutely no offer by the defendants to the plaintiff and there was no acceptance of any contract by the defendants. What was made in the advertisement in the newspaper "The Hindu" was only an invitation to offer, but
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR not an offer and the defendants had never accepted any of the proposals of the plaintiff. The plaintiff has misconstrued the fact that mere communications between the plaintiff and the defendants constitute a conclusive contract. Therefore, the defendants denied that there was a concluded contract between them. Hence, the defendants have taken pleading that the suit is filed is only on the assumption and presumption and thus is not maintainable. Therefore, prayed to dismiss the suit.
6. Based on the pleadings of the parties, the Trial Court has framed the following issues:
1) Whether the plaintiff proves that, he has given three of his softwares i.e., Surabhi 2000, Surabhi UV and Visaitamil, to the defendant?
2) Whether he further proves that he made improvements in the softwares as required by the defendant?
3) Whether he further proves the tools provided by the ineligible persons were illegally included in version 2?
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NC: 2025:KHC:18573
RFA No. 1340 of 2019
HC-KAR
4) Whether he further proves that
defendant failed to take action against such inclusion of version 2 by ineligible persons?
5) Whether he further proves the loss
suffered by the refusal of including
software tools in version 2 by the
defendant?
6) Whether he further proves that the
supply of softwares tools namely Aatral, Sentahmil IA, Senthamil 1B and Sentamil 4 as per the demand of defendant?
7) Whether he further proves the illegal steps taken by the defendant which affected the legitimate and valid interest?
8) Whether the suit is barred by time?
9) Whether this Court has jurisdiction to try the suit?
10) To what Order/Decree?
7. In order to prove the case, the Chief Executive Officer of the plaintiff's company has been examined as PW-1 and documentary evidence has been marked as Exs.P-1 to P-36. On behalf of the defendants, the Senior
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR Technical Officer has been examined as DW-1 and documentary evidence has been marked as Exs.D-1 to D-7.
REASONINGS OF THE TRIAL CORT:
8. Upon considering and appreciating the evidence on record, the Trial Court has dismissed the suit of the plaintiff with cost of Rs.25,000/-. The Trial Court assigned reasons that upon answering issue No.1 that the plaintiff proves that he has given three of the software tools i.e., Surabhi 2000, Surabhi UV and Visaitamil. The Trial Court had observed that Ex.P-1-advertisement is not offer by the defendants, but an invitation for proposals. Therefore, it is an invitation to the general public to make an application i.e., an invitation to offer. Further, it is observed that the defendants have exclusive right to act or reject the offer therefore, the reply made by the defendants is not promissory assurance of accepting the plaintiff's offer.
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR
9. Further, when it is at the discretion of the defendants that either to reject or accept the invitation to offer made through newspaper "The Hindu", the defendants are of the opinion that the price quoted by the plaintiff is too high and total size is too big to insert in CD. Therefore, the defendants' response to relook at it freshly as and when the Version 2.0 of the specific language CD is planned. Therefore, the Trial Court observed that the defendants have rejected the plaintiff's offer. Hence, though the plaintiff has provided three software tools, but that were rejected and whatever public advertisement made and correspondence was exchanged does not constitute an offer and acceptance, but the paper advertisement in "The Hindu" newspaper is only an invitation to offer.
10. Further, while answering issue No.2, it is held that the plaintiff fails to prove that he made improvements in the software as required by the defendants. It is observed by the Trial Court that in Ex.P-5 and Ex.P-8, the
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR defendants have mentioned that they will consider the proposal when they plan for Version 2.0. Ex.P-8 does not show any date when this report was prepared and when the plaintiff obtained this copy. Though the plaintiff has sent software tools, but it was not improved Version. The Technical and Finance Committee of the defendants' Company will finalize the incorporation of Version 2.0. In the letters (Exs.P-13 and P-14 of April and June, 2007), it is specific only after the valuation they will make decision. Though the plaintiff through letter (Ex.P-14) sent several software for evaluation purpose, but Ex.P-16 is the test report of software where on each software, where for each software it has mentioned error and not working with the photos of subjects and vide email Ex.P-17, the plaintiff was required to send correct software for retesting, for which the plaintiff replied that they have not come across any such error. Upon correspondence between the plaintiff and defendants, there was no assurance by the defendants for acceptance of the offer. Therefore, the
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR Trial Court came to the conclusion that the plaintiff failed to prove acceptance of offer and there is no binding contract from the defendants' side. Though the plaintiff has sent some software even four times, but each time software tools were referred for evaluation only. The plaintiff has not made any improvement in the software and the defendants have not accepted the same therefore, there was no concluded contract between the plaintiff and defendants.
11. Further, upon the admission of PW-1 in cross- examination that when the plaintiff sent software in the year 2007, it had some problems/errors. Therefore, the correspondence made in this regard is only for evaluation, but not amounting to acceptance of the contract by the defendants. Accordingly, issue No.2 was answered in the Negative.
12. The Trial Court while answering issue Nos.3 and 4, held that although the plaintiff claimed that tools
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR provided by other persons were illegally included in Version 2.0, there was no evidence to support this allegation. According to the plaintiff's allegation, the two agencies were not in the list of proposals sent to the defendants and were ineligible for consideration. However, the plaintiff failed to produce evidence to prove that Version 2.0 CD was released in the World Tamil Conference 2010. The Trial Court discussed the documentary evidence, Exs.P-26, P-27 and P-8 and Ex.D-4 and found that the plaintiff failed to prove these issues. It was noted that the main subject of the letter of correspondence was the "launch of Unicode complaint Tamil CD", but there was no evidence that Version 2.0 was released at the Coimbatore conference. Therefore, the plaintiff failed to prove that the software product tools of the other agencies were illegally included and consequently, there was no question of taking action against them.
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR
13. The Trial Court observed that the defendants' stand was that unless an evaluation decision was taken by the Expert Committee, there was no question of inclusion of plaintiff's software tools. However, the Committee, after evaluation had opined negatively regarding the software tools of the plaintiff finding them unsuitable for inclusion. Therefore, there was no concluded contract between the plaintiff and the defendants.
14. The Trial Court while answering issue No.5 held that the plaintiff failed to prove the quantum of loss suffered due to refusal of its offer. The Trial Court observed that the plaintiff merely stated that it had suffered loss but failed to produce evidence on how the loss was incurred. Additionally, the plaintiff has not quantified the loss or specifies which actions of the defendants led to the loss and there was no evidence to support this claim. In this regard, the Trial Court considered the evidence of PW-1, the Chief Executive Officer of plaintiff's company, who admitted that the
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR plaintiff had not quantified the loss. The Trial Court, by appreciating documentary evidence on record coupled with oral evidence, including Exs.P-25, P-28 and P-10 observed that the plaintiff failed to prove the loss suffered.
15. Further, the Trial Court, while answering issue No.6, held that plaintiff's documents revealed inconsistencies between the software tools send and the defendants' requirements. The defendants' responses at Exs.P-9, P-11, P-12 and P-13 indicate that the software tools sent by the plaintiff did not match with the defendants' demands. Hence, issue No.6 was answered in the Negative.
16. Further, the Trial Court while answering issue No.7, held that although the plaintiff alleged that the defendants' steps were illegal and affected the plaintiff's interest, the Trial Court observed that there was no evidence to support this claim. Through documentary evidence and letters of correspondence, it was clear that
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR the plaintiff's software tools were not up to the mark for inclusion in Version 2.0 due to the high price quoted by the plaintiff and the large software size, which made it unsuitable for inclusion in the CD. Therefore, the Trial Court held that the plaintiff failed to prove the allegations made in the plaint and accordingly, issue No.7 answered in the Negative.
17. Further, the Trial Court while answering issue Nos.8 to 10 held that the suit is barred by limitation as well as the suit is not maintainable for want of territorial jurisdiction.
18. Therefore, for the aforesaid reasons discussed in brief, the Trial Court dismissed the suit of the plaintiff with cost of Rs.25,000/-.
19. Being aggrieved by the dismissal of the suit, the appellant/plaintiff has preferred the instant appeal.
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR GROUNDS RAISED AND SUBMISSIONS:
20. The appellant/plaintiff has raised many grounds in the appeal praying to interfere with the judgment and decree passed by the Trial Court.
21. The grounds raised in the memorandum of appeal and the submissions made by the learned counsel for the appellant/plaintiff that the opinion formed by the Trial Court that the suit is barred by limitation is not correct. It is submitted that the file of Government of India clearly states that the CD released by the defendants during World Tamil Conference 2010 is Second Version Tamil language software tools. Therefore, the cause of action arose on that event in 2010. Hence, the suit filed was within a period of limitation, but the Trial Court erroneously connected it to the defendants' actions in 2008 and wrongly held that the suit is barred by limitation.
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR
22. The communications/correspondences from the defendants' company conveying that software tools of the plaintiff would be considered for the Second Version. The First Version of Tamil language software tools had already been released in the year 2005 and it reasonably followed that any subsequent consideration would be for the Second Version. The limitation period would start only when Second Version released and failed to fulfil the express commitments. Therefore, the cause of action arose during World Tamil Conference 2010 held at Coimbatore, making the suit filed well within the period of limitation.
23. Further raised ground and the learned counsel for the appellant/plaintiff submitted that the Trial Court had territorial jurisdiction to try the suit. Ex.P-1- advertisement was issued in "The Hindu" newspaper, Bengaluru edition and the plaintiff had corresponded from Bengaluru. Therefore, the Trial Court had jurisdiction to try the suit and accordingly, the suit was filed in the Court
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR which had territorial jurisdiction. However, the Trial Court wrongly construed the provisions of Sections 20 and 21 of CPC, and held that it lacked territorial jurisdiction. Hence, submitted that the Trial Court had territorial jurisdiction.
24. Further, the learned counsel for the appellant/plaintiff submitted that the Trail Court failed to appreciate the documentary evidence correctly, resulting in erroneous dismissal of the suit. It was submitted that Prof. Anandkrishan's committee had no power to select tools or direct C-DAC to add eligible tools to the Second Version of Tamil software tools CD. However, the communications between the parties conclusively proved that there was a concluded contract between them. The defendants' acceptance of some software tools submitted by the plaintiff evidenced a deemed contract, which the defendants breached by not honouring their promises. The plaintiff had developed software tools based on the defendants' promises, incurring expenditure, but the
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR defendants failed to fulfil their obligations, causing loss to the plaintiff. The Trial Court failed to appreciate these facts correctly, causing to an erroneous judgment.
25. Further raised grounds that the defendants failed to consider the plaintiff's software tools for the Second Version as per law and instead, illegally included Tamil software tools from ineligible persons in the CD of the World Tamil Conference 2010. Further submitted that the defendants' claim that the processes post-impugned advertisement of 27.06.2006 had been abandoned was questionable, especially since the scheme had been implemented as per the records of the Government of India. Defendant Nos.1 and 2 had filed compliance reports for all expenditure incurred to implement the scheme confirming that the expenses were lawful. In this regard, it was argued that the World Tamil Conference 2010 CD, being Second Version of Tamil language software tools, contradicted the defendants' records, as there was no
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR evidence to suggest that steps were taken for an event- specific CD.
26. The task of the committee was limited only to coordinating with the Tamil Government and taking steps related to demonstrating of work done under TDI Programmes part of the planned scheme of the Government of India during the event known as World Tamil Conference 2010. Therefore, the action of the defendants in this regard is highly questionable, particularly as they included software tools from ineligible companies of which two agencies were not listed as per Ex.P-1-advertisment. The subsequent conduct of the defendants regarding the CD of the year 2006 is an exhibit in the case of the plaintiff and this falsifies the claim of the defendants.
27. It was further argued that all the reply clarifications by M/s. Swarnalatha ought to have been considered as part of the evidence, but the Trial Court
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR committed error in appreciating the evidence in this regard. Further submitted that there was concluded contract between the plaintiff and defendants, wherein the defendants had offered to include software tools in Version 2.0 CD to be exhibited in World Tamil Conference 2010 and the plaintiff had submitted its software tools. However, the defendants illegally rejected the plaintiff's tools and selected tools from other agencies, resulting in a breach of contract. The correspondence between the plaintiff and the defendants conclusively proved that the defendants had accepted the offer made by the plaintiff but later on retracted from their promise, constituting a breach of contract. Due to this breach, the plaintiff sustained loss. Therefore, prays to allow the appeal by setting aside the judgment and decree passed by the Trial Court.
28. Further, submitted that the defendants' delay tactics in finalizing the software tools after the 2006 advertisement, spanning over 10 years, constituted
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR negligent and deliberate acts that diluted the plaintiff's software tools, rendering them outdated and worthless. Therefore, the plaintiff is entitled compensation from the defendants. In support of this contention, the learned counsel argued that the unlimited worldwide licence clause imposed on the plaintiff's software tools made the defendants' illegal and impermissible denial of inclusion actionable under law. Furthermore, by adding ineligible tools in World Tamil Conference 2010, the defendants caused tortuous injuries to the plaintiff's legitimate claims and hence, the plaintiff deserved compensation.
29. Therefore, with all these submissions prays to allow the appeal and decree the suit by setting aside the judgment and decree passed by the Trial Court.
30. Learned counsel for the appellant/plaintiff in support of arguments places reliance on the following judgments:
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a. ANJANEYA SHETTY VS. RAMAIAH
SHETTI1 (Anjaneya's case)
b. NUTAN KUMARI VS. B.R.A. BIHAR
UNIVERSITY AND OTHERS2 (Nutan
Kumari's case)
31. On the other hand, learned counsel for the respondents/defendants submitted that Ex.P-1-
advertisement in "The Hindu" newspaper was not an offer but merely an invitation to offer and the plaintiff had misconstrued it as an offer, leading to file false and frivolous suit. He argued with reference to the documentary evidence and admissions made by PW- 1/plaintiff in the course of cross-examination conclusively proved the fact that there was no concluded contract, which was correctly observed by the Trial Court. After considering the facts, circumstances and evidence in the case and applying the law of contract, the Trial Court rightly dismissed the suit. Therefore, prays to dismiss the appeal.
1 AIR 2000 KAR 387 2 Civil Appeals No.6232-6236 of 2013 dated 12.10.2023
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32. Further, submitted that the defendants have given a reply to the plaintiff that their software tools have not been included and assigned reasons for this, which were communicated to the plaintiff. In this regard, the learned counsel has taken the Court to the said documentary evidence and submitted that with valid reasons assigned for not including the software tools of the plaintiff, the defendants effectively rejected the offer of the plaintiff. Though there was no express rejection of the plaintiff's offer, the communications between the plaintiff and defendants conclusively proved that there was no acceptance of offer made by the plaintiff and thus, there was no concluded contract. Hence in this regard, the findings given by the Trial Court are perfectly justifiable and legal, which needs no interference.
33. Further, submitted that the plaintiff has not pleaded in the plaint what are the losses sustained by the plaintiff, nor has it explained in what way the plaintiff sustained loss and injury and there is no evidence from
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR the plaintiff in this regard. Additionally, there is no pleading or evidence from the plaintiff regarding the quantum of loss sustained by the plaintiff. The entire claim of the plaintiff in the case is based solely on assumptions and presumptions and this was rightly appreciated by the Trial Court. Thus, correctly dismissed the suit.
34. Further, submitted that the suit is barred by limitation and the Trial Court lacked territorial jurisdiction to consider the suit. These findings by the Trial Court are well founded based on the pleadings; therefore, the appeal ought to be dismissed only on the grounds of limitation and lack of territorial jurisdiction. The Trial Court magnanimously considered the case on merits to put the matter to rest, and it is evident that the plaintiff does not have a case on merits. Additionally, the suit is barred by limitation and lack of territorial jurisdiction. Therefore, the judgment and decree passed by the Trial Court is well
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR meritorious, which need not be interfered with. Therefore, prays to dismiss the appeal.
POINTS FOR CONSIDERATIONS:
35. Upon considering the rival submissions at the Bar, facts pleaded in the plaint and written statement and the evidence adduced by both the sides both the documentary and oral evidence, the following points emerged for consideration:
i. Whether, under the facts and circumstances involved in the case, the plaintiff proves that there was concluded contract between the plaintiff and defendants so as to include the software tools of the plaintiff in World Tamil Conference 2010 held at Coimbatore?
ii. Whether, under the facts and circumstances involved in the case, the plaintiff proves that what is the quantification of sustaining the loss and injury due to alleged action of the defendants?
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iii. Whether, under the facts and
circumstances involved in the case, the plaintiff proves that the defendants have illegally included three agencies/companies contrary to the terms and conditions of Government of India?
iv. Whether, under the facts and circumstances involved in the case, the suit is barred by limitation?
v. Whether, under the facts and circumstances involved in the case, the Trial Court has territorial jurisdiction to entertain the suit?
REASONS All the points are interlinked each other therefore, they are taken together for common consideration to avoid repetition of facts and evidence.
36. The entire case of the plaintiff is based on the law of contract. It is the case of the plaintiff that the defendants have offered for supply of software tools and the said offer was accepted by the defendants and there
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR were frequent communications between the plaintiff and defendants, but the defendants breached the contract without honouring it. Therefore, this is the sum and substance of the case made out by the plaintiff in the suit.
37. Whether a concluded contract between the plaintiff and defendants existed or not is the question to be considered by appreciating the evidence on record and only then does the question of breach of contract comes into picture. Ex.P-1 is an invitation for proposals for Indian language resources for the release of language CDs, inviting proposals from interested individuals/organizations/private agencies/academic institutions/public agencies for ready to integrate software tools/technologies and resources for many of the 22 scheduled Indian languages issued through a paper publication in "The Hindu" newspaper in Bengaluru edition. This, Ex.P-1 is an invitation for proposals from the agencies as above stated. Ex.P-1 is an invitation to offer but not an offer. The plaintiff has understood this Ex.P-1
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR paper advertisement published in "The Hindu" newspaper as an offer made by the defendants, but upon perusal of Ex.P-1-paper advertisement, it is clear that it is an invitation to offer, but not the offer.
38. The difference between "an offer" and "invitation to offer" depends on the party's intention; an offer allows the other party to enter into a legally binding agreement once accepted. On the other hand, an invitation to treat mainly invites the other party to negotiate and make an offer themselves. Therefore, this is the basic difference and in this context, the present case is to be considered in the background of evidence adduced by both the parties.
39. Section 2 (a) of the Indian Contract Act, 1872 (Contract Act) defines as follows:
"(a) When one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal;"
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40. When one person communicates their willingness to do or not to do something to obtain another person's agreement, it is considered an offer or proposal. Whereas, under an "invitation to offer", the party does not specify an intention to enter into a contract. In an offer, both parties intend to enter into a legally binding agreement after proper negotiation. However, such an intention is not present in an 'invitation to offer'. In an offer, there is clear intention to create a contract, whereas an invitation to offer does not carry the intention. An invitation to offer allows for more flexibility and negotiations between the parties involved before reaching a final agreement.
41. The basic difference between "offer" and "an invitation to offer" are as follows:
1. "Purpose: An offer is a clear and specific proposal made by one party to another party to enter into a legally binding contract, while an invitation to offer, also known as an invitation to treat, is an expression of willingness to negotiate or enter into a contract.
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2. Acceptance: An offer can be accepted, rejected, or counter offered, while an invitation to offer cannot be accepted as it is not a legally binding proposal.
3. Binding nature: An offer creates a legally binding contract upon acceptance, while an invitation to offer does not create a legally binding contract.
4. Advertising: An advertisement can be considered as an invitation to offer rather than an offer, as it is an invitation to the public to make an offer to purchase the advertised goods or services.
5. Examples: Examples of an offer include a job offer, a proposal to sell a house or a car, or a bid in an auction. Examples of an invitation to offer include a menu in a restaurant, a price list, or a display of goods in a store.
6. Revocation: An offer can be revoked before it is accepted, while an invitation to offer cannot be revoked as it is not a legally binding proposal."
42. Therefore, considering Ex.P-1, the document of paper publication, it is inviting proposals for Indian language resources. It is an invitation to offer made by the defendants, but not an offer.
43. Ex.P-1, the paper invitation, is not a promise made by the defendants. Ex.P-1 cannot be considered as a promise made by the defendants to the plaintiff.
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44. The High Court of Calcutta in the case of INDANE LPG DISTRIBUTORS ASSOCIATION, WEST BENGAL v. INDIAN OIL COPORATION LTD. & ORS. reported in WPA No.16495/2023 dated 29.09.2023 at para 37 has held as follows:
"The difference between offer and invitation to offer is very basic and lies mainly in the intention of the parties. While an offer directly allows the other party to enter into a contract, that is, a legally binding agreement as soon as it is accepted, an invitation to offer mainly invites the other party to make negotiations and himself make an offer to the person who invites to offer. This might sound complicated, but it is a very fundamental difference that we see very often in our day to day lives. As for example when we go to a shop, the mere display of the articles in the shop is an invitation to offer by the seller to the general public. Anyone passing by the shop can choose to come to buy one of such articles displayed or may choose otherwise. Here, no one is legally bound to perform any action. Similarly, most forms of advertisements are not actually offers but invitations to offer. To fully grasp the difference I may say that in an invitation to offer, no specific party has the intention to enter into a contract. The seller may enter into a contract with anybody from the public who makes the best offer to him. So, the essence of an invitation to offer is that the offer is actually made by the seller. It is for the buyer to make a offer that is good enough and when the seller accepts it, it becomes a contract".
45. Section 2 (e) of the Contract Act, defines as follows:
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR "(e) Every promise and every set of promises, forming the consideration for each other, is an agreement;"
46. Section 2 (h) of the Contract Act, defines as follows:
"(h) An agreement enforceable by law is a contract;"
47. Therefore, every promise and set of promises forming the consideration for each other is an agreement and such agreement enforceable by law is a contract. Here, whether the defendants made an offer is the question to be considered, and in this background, the evidence on record are to be appreciated. A contract comes into existence only when all the terms and conditions have been finalized. Ex.P-2 is the terms and conditions for software proposals, including two conditions; the defendants reserve the right to accept or reject any offer without assigning reasons and incase of similar/overlapping technologies, the defendants shall
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR have the exclusive right to accept or reject any or all such software/tools/technologies. In this context, Ex.P-3 a letter issued by the plaintiff dated 10.07.2005, is considered, which states that the plaintiff has offered software tools in response to Ex.P-1-paper advertisement. Therefore, the plaintiff has forwarded the proposals concerning with and offer the software/tools developed for Tamil for consideration by the defendants. As per this offer, Ex.P-3, the plaintiff has offered for terms for favourable consideration by the defendants, which are as follows:
a) "Janani
b) Surabhi 2000
c) Surabhi Tools 2.0
d) Surabhi Tools IE
e) Surabhi UV
f) Surabhi Tools UV
g) Senthamizh 1A
h) Senthamizh 1B
i) Senthamizh 4
j) Visaithmizh
k) Aatral"
48. Therefore, the plaintiff has offered to provide software tools to the defendants and Ex.P-3 is the offer
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR made by the plaintiff. Thus, the plaintiff is the "offeror" and defendants are the "offerees".
49. The next question that comes into picture for consideration is whether the defendants have accepted the offer made by the plaintiff; this is the question to be considered in the present appeal.
50. Section 3 of the Contract Act, defines as follows:
"3. Communication, acceptance and revocation of proposals.- The communication of proposals, the acceptance of proposals, and the revocation of proposals and acceptances, respectively, are deemed to be made by any act or omission of the party proposing, accepting or revoking, by which he intends to communicate such proposal, acceptance or revocation, or which has the effect of communicating it."
51. As per the case pleaded by the plaintiff, the correspondences made by the defendants amounts to acceptance, but this is denied by the defendants. Therefore, this aspect of "acceptance" is the key factor to decide whether there is a concluded contract between the
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR plaintiff and defendants. It is the case of the plaintiff that there is deemed contract between plaintiff and defendants.
The plaintiff is relying on the communications/correspondences/exchange of letters
between the plaintiff and defendants, which amount to acceptance. Therefore, the plaintiff is mainly relying on the communications between the plaintiff and defendants as acceptance by the defendants to the offer made by the plaintiff.
52. Ex.P-4 is the letter addressed by the defendants seeking some clarifications/inputs from the plaintiff before the defendants considered the offer made by the plaintiff. Ex.P-8 is the technical report by the committee constituted for the purpose of evaluating and assessing the quality of products proposed by the plaintiff and various other agencies. Ex.P-5 is the list of offers made by the various agencies, including the plaintiff. Therefore, the technical committee was constituted in this regard by the defendants. As far the software products offered by the
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR plaintiff, the committee has made observations/notes, which are as follows:
• "The price quoted for the same is quite high. • The total size of the softwares is around 1742 MB. Hence not possible to put in a single CD. • The proposal may be re-looked at freshly as and when the second version of specific language CD is planned."
53. Finally, the committee, as per Ex.P-8 gave report that the proposal may be relooked at freshly as and when the Second Version of specific language CD is planned.
54. Ex.P-9 is the letter issued by the defendants via email, which was received by the plaintiff stating that the defendants have replied to the plaintiff that the software tools viz., Janani, Surabhi 2000 and Surabhi Tools 2.0 are not considered. Further, in the very same letter, regarding software tools Sentamil 1A, Sentamil 1B and Senthamizh 4, testing is under progress. Ex.P-11 is the letter sent by the defendants dated 15.05.2007, requesting the plaintiff to send the software for evaluation purposes mentioned in the said letter. Likewise, Ex.P-12
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR is another letter requesting the plaintiff to send software for checking purposes. It is also noted in Ex.P-12, that once the software products sent by the plaintiff are evaluated by the technical and financial committee, they may be finalized for possible incorporation. Therefore, as of 14.06.2007 there is no concluded contract between the plaintiff and defendants regarding the offer made by the plaintiff. When the plaintiff sent software products to the defendants, they were still at the stage of evaluation and assessment by the technical and financial committee. Exs.P-13 and P-14 are letters addressed by the defendants to the plaintiff requesting to send software for evaluation purposes. In response to these letters, the plaintiff sent two CDs for evaluation purposes and the plaintiff is awaiting a positive response. Ex.P-15 is the letter issued by the plaintiff that the plaintiff forwarding two CDs to the defendants for evaluation purposes and looking forward to a response from the defendants.
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55. Ex.P-16 is the response from the defendants to the plaintiff with a detailed inspection and test report stating that there are errors in the software tools; Ex.P-17 is one more letter regarding clarifications on the errors reported by the defendants; Ex.P-18 is the letter of the plaintiff/appellant asking the defendants to provide an evaluation of software reports; Exs.P-19, P-20 and P-21 are the responses from the defendants stating that there is no concluded contract and these responses are the feedback on the functionality of the software tools. Further, Ex.P-22 is the letter of the plaintiff/appellant that sending two sets of software/s to the defendants; Exs.P- 23 and P-24 are the responses from the respondents/defendants; in Ex.P-24, it is stated that Surabi Tools UV are considered for inclusion and so far as other sets of software are concerned there is no positive response from the respondents/defendants; Ex.P-25 is the proposal submission form issued by the respondents/defendants therefore there is only an offer to
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR invitation by the participant/organization. Hence, there is no concluded contract between the plaintiff and defendants.
56. The document at Ex.P-26 is the letter of the appellant/plaintiff requesting for providing certified copies regarding advertisement; Ex.P-27 is the reply given by the respondents/defendants. Upon considering all these documentary evidence, there is no concluded contract. Therefore, considering all the above discussed documentary evidence, there is only correspondence between the plaintiff and defendants. As above discussed, the defendants have called for tenders from the prospective participant/organizations for the supply of software tools, it is only an invitation to offer but not offer. The plaintiff has offered by sending software tools to the defendants; the defendants have tested and placed certain materials produced by the plaintiff before the Expert Committee, but the Expert Committee has expressed its unhappiness over the software tools produced by the
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR plaintiff. Ultimately, the Expert Committee as above discussed has not favoured in receiving the software tools produced by the plaintiff. Therefore, here there is no concluded contract between the plaintiff and defendants. The offer made by the plaintiff is not accepted by the defendants. Just because, the plaintiff has produced some software tools to the defendants that cannot amount to concluded contract; the software tools produced by the plaintiff were still under testing. Unless the defendants were satisfied with the quality of software and accepted it, there would not be any concluded contract. What the plaintiff is under the impression that the correspondence made between the plaintiff and defendants, as above discussed is presumed to be a concluded contract and deemed contract between the plaintiff and defendants, but this impression got amended by the plaintiff is only based on assumption that the defendants have accepted the offer. However, there is no evidence from the plaintiff that there was concluded contract between the plaintiff and
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR defendants. Mere correspondence of letters between the plaintiffs and defendants could not be termed as concluded contract. Though the defendants might not have rejected the offer of the plaintiff expressly, the correspondence shown by the plaintiff itself proves that the defendants impliedly rejected the offer made by the plaintiff. There is no evidence by the plaintiff that the defendants have accepted the software tools and there was promise by the defendants and hence there was concluded contract between them. The plaintiff has not produced evidence of express conclusion of contract or deemed contract, as discussed above from the documentary evidence.
57. The Senior Technical Officer, C-DAC, Pune University Campus, Pune is examined as DW-1 on behalf of the defendants and he has completely denied the fact that there was concluded contract. The sum and substance of evidence of DW-1 is that there was some correspondence between plaintiff and defendants, but the offer made by the plaintiff is deemed to have been
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR rejected as the software tools produced by the plaintiff were not up to the mark according to the Expert Committee and accordingly there was deemed rejection of offer made by the plaintiff.
58. Ex.D-2 is the letter issued by the defendants stating that sending of the software tools by the plaintiff does not guarantee inclusion. In this regard, just sending copies/software tools does not amount to inclusion of software in Tamil conference. Further, upon considering the cross-examination of DW-1, nothing is proved that there was concluded contract, much less a deemed conclusion of contract.
59. Now considering the oral evidence of PW-1, the entire examination-in-chief of PW-1 is a repetition of facts pleaded by the plaintiff. Upon considering the cross- examination of PW-1, he has admitted that there was no title of CD which was released in 2010 and Version-2.0 was not released. PW-1 in the course of cross-
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR examination admitted that he has no proof to show that the oral CD of Tamil software was launched in the 2010 or that there was second release of original Tamil software in 2010. Further, admitted that he could not say whether Version 2.0 released in 2010 is not related to the CD launched in 2010. Further, PW-1 admitted that he has grievance because the defendants have not considered his proposal; therefore, it is an admission given by PW-1 that the proposals made by the plaintiff have not been considered. When this being the admission of PW-1, it is proved that there could not be concluded contract.
60. Further, when the plaintiff has filed suit for claiming compensation to make good the financial loss alleged to have been sustained by the plaintiff, PW-1 in the course of cross-examination admitted that he has not quantified the loss and stated it in his pleadings. Further, admitted that he has not demanded a specific amount from the defendants at any time. Further, admitted that the defendants have not evaluated the software tools
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR financially but have evaluated them technically and not intimated their assessment; therefore, he has not mentioned loss in his plaint. Further, admitted that he has not produced any documentary evidence to show the loss suffered by him. Further, admitted that he has submitted Income Tax returns earlier but has not produced. Further, admitted that he does not remember whether loss is mentioned in his Income Tax returns or not and the loss is not mentioned in the Income Tax sheet. Further, admitted that he cannot produce document to show that his losses; therefore, there is no evidence that the plaintiff has suffered loss due to defendants.
61. Upon Ex.D-2 letter, the plaintiff admitted that he knew that there could not be guarantee of inclusion in the request for sending copies. Further, admitted that due to non-fulfillment of the conditions, the offer of the plaintiff was not considered. PW-1 further admitted in the course of cross-examination that he could not have appointed a
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR distributor for commercial software tools that had not yet been accepted by the defendants/C-DAC.
62. In the end of 2010, he received RTI information that no decision had been taken by the defendants. Further, admitted that the defendants did not convey the decision taken on his proposal. Therefore, upon considering the admissions in the cross-examinations, it is proved that the software tools sent by the plaintiff were still under test and evaluation only and not included the software tools produced by the plaintiff. Hence, there is no question of concluded contract. Therefore, in this regard, the Trial Court has correctly assessed the documentary and oral evidence and there is no perversity in appreciating the evidence on record by the Trial Court. Therefore, the Trial Court is correct in dismissing the suit. Accordingly, I answer point Nos.(i) and (ii) in the Negative.
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR Point No.(iii)
63. It is allegation of the plaintiff that the defendants have illegally included three agencies/companies contrary to the terms and conditions of the Government of India. The plaintiff has barely made allegation against the defendants, but here the plaintiff has not produced any evidence regarding what the three agencies are and how their software tools were included contrary to the rules framed by the Government of India. There is no pleading in the plaint and no proof in the evidence regarding how and in what manner the defendants have illegally included the software tools of three agencies. Mere making allegations is not sufficient, if it is definite case of the plaintiff that three agencies have been included contrary to the rules, then it is a burden on the plaintiff to demonstrate the same by placing cogent evidence, but that has not been done by the plaintiff. Therefore, the plaintiff has failed to prove that the
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR defendants have illegally included the three agencies/companies contrary to the terms and conditions of the rules framed by the Government of India. Accordingly, I answer point No.(iii) in the Negative. Point No.(iv)
64. Ex.P-1 is the advertisement dated 27.06.2006 published in "The Hindu" newspaper; it is an invitation for proposal. Ex.P-8 is the proposals received in response to advertisement No.DAVP 2006/286, in which the committee has made an opinion that the price quoted for the same is quite high and the total size of the software is around 1742 MB. Hence, it is not possible to put in a single CD; thus, it is deemed to rejection by the defendants. PW-1, in his evidence admitted that he received reply probably in the end of 2008 therefore, the suit ought to have been filed within a period of three years from the end of 2008. If we consider, as per evidence of PW-1 himself, the reply was received probably in the end of 2008 and even it is
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR reckoned that the reply was received on 31.12.2008 for all practical purposes of considering the limitation, then the suit ought to have been filed within 31.12.2011, but the suit is filed on 13.12.2012. Therefore, the suit is barred by limitation. In the course of cross-examination, PW-1 admitted that the plaintiff was waiting for the action of the defendants; therefore, the suit is filed in the year 2012. Further, PW-1 admitted that he has no proof to show that the original CD of Tamil software was launched in the year 2010. Hence, in this regard the suit filed is barred by limitation.
65. The basic subject in respect of relief is the software 2010. The letters dated 15.05.2008 and 28.04.2008 do not specify the applications rejected, whereas they say the software tools will be considered for Version 2.0 CD. As per the plaint, the cause of action arose on 27.06.2006, on which date the advertisement was issued. It also references the cause of action commenced in the month of June 2010, when Version 2.0
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR CD was released in the conference held at Coimbatore. However, upon perusal of the subject, it shows the release of CD in the year 2010 is not the subject of cause of action because the defendants have proved that they not taken decision on the inclusion of software for Version 2.0 CD. There was no advertisement given for software for permission of Version 2.0 CD. The CD Version 2.0 released in the year 2010 has no connection with the proposals given on 27.06.2006/advertisement. Further, after the communication of April-2006 letter, the plaintiff has not made any further communication till the release of CD in 2010; then the plaintiff again started communication in the year 2011. Therefore, the suit filed is barred by limitation. Accordingly, I answer point No.(iv) in the Affirmative holding that the suit is barred by limitation. Point No.(v)
66. The plaintiff has pleaded in the plaint that the defendants have advertised in "The Hindu" newspaper on
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR 26.06.2006, published from the Bengaluru. Here, the said advertisement was released from Pune office of the defendants and the newspaper advertisement was published in Bengaluru. The defendants are carrying out the activities from Pune; the plaintiff in his evidence stated that he had sent letters through email as well as through post. The plaintiff had admitted his correspondences were made only with the Pune office. Further he admitted that he has not made any correspondence with the Bengaluru office of the defendants. The plaintiff sent total eleven proposals to the office of the defendants at Pune. Here, the plaintiff made only proposal to the defendants at the Pune office, but there is no acceptance by the defendants, as above discussed. In case of contract, it is complete only when the offer made by the plaintiff is accepted and the acceptance of the offer gives rise to a cause of action, whereas in the suit, it is only an invitation to offer.
67. Learned counsel for the appellant/plaintiff submitted that since the plaintiff's office is situated in
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR Bengaluru and the paper publication advertisement is in Bengaluru and the defendants' branch office also situated in Bengaluru. Therefore, the Courts at Bengaluru have territorial jurisdiction. In this regard, he referred Section 20 of the Code of Civil Procedure.
68. But, whereas the plaintiff has made correspondence with the Pune office of the defendants and the plaintiff has sent software tools for evaluation and testing to the Pune office. Just because an advertisement was published in Bengaluru and the plaintiff's office is situated in Bengaluru is not a ground to say that the Courts at Bengaluru have territorial jurisdiction. The Trial Court has rightly placed reliance on the judgment of Hon'ble Supreme Court in the case of OIL AND NATURAL GAS COMMISSION VS. UTPAL KUMAR BASU AND OTHERS3.
3 (1994) 4 SCC 711
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69. In case of contract, as involved in the present case, which involve exchange of correspondences, the place where contract is concluded determines the territorial jurisdiction. Here, there is no concluded contract; if the contract was concluded, the Courts at Bengaluru would have territorial jurisdiction. However, in the present case, there is no concluded contract; hence, there is no territorial jurisdiction that would allow the filing of a suit in the Courts at Bengaluru. The Trial Court has rightly relied on the judgment of Delhi High Court in the case of M/S. PROGRESSIVE CONSTRUCTIONS LTD., VS. BHARAT HYDRO POWER CORPORATION LTD.4 Therefore, the plaintiff cannot claim that the Courts at Bengaluru have territorial jurisdiction based on the fact that Ex.P-1 is an advertisement inviting proposals. In response to this, the plaintiff has offered, but the defendants have not accepted the offer and the defendants' office situated in Pune. All correspondences 4 ILR 1 DEL 232
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NC: 2025:KHC:18573 RFA No. 1340 of 2019 HC-KAR were made with the Pune office there was no acceptance of the offer by the defendants. Unless the offer is accepted by the defendants, the plaintiff cannot claim that his office is situated in Bengaluru and the advertisement was published in Bengaluru, therefore, the Civil Court at Bengaluru has jurisdiction. When, in the case of contract, there is no complete transaction and acceptance forming full circle, the suit may be filed at Bengaluru or at Pune. However, since the defendants operate from their office at Pune, the suit ought not have been filed in the Courts at Bengaluru. Therefore, the City Civil Court at Bengaluru does not have jurisdiction to entertain the suit. Accordingly, I answer point No.(v) in the Negative.
70. Though the Trial Court at initial stage ought to have considered the suit on the grounds of limitation and territorial jurisdiction, but also considered the case on merits; therefore, this Court is constrained to consider and appreciate the case on merits, not only on the points of limitation and jurisdiction.
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71. Therefore, for the above said reasons, there is no merit found in the suit and in appeal and the Trial Court has rightly dismissed the suit, which needs no interference. Therefore, the appeal filed by appellant/plaintiff is liable to be dismissed.
72. In the result, I proceed to pass the following:
ORDER i. The appeal filed by the appellant/plaintiff is dismissed.
ii. The judgment and decree dated
23.03.2019 passed in
O.S.No.8799/2012 on the file of XXIX Additional City Civil and Sessions Judge, Bengaluru City (CCH-30), is hereby confirmed.
iii. No order as to costs.
iv. Draw decree accordingly.
Sd/-
(HANCHATE SANJEEVKUMAR)
JUDGE
SRA
List No.: 19 Sl No.: 1