Calcutta High Court
United Bank Of India And Anr. vs Shyam Sundar Banerjee on 30 October, 2006
Equivalent citations: AIR2007CAL87, AIR 2007 CALCUTTA 87, 2007 (3) ABR (NOC) 521 (CAL) 2007 A I H C (NOC) 273 (CAL), 2007 A I H C (NOC) 273 (CAL), 2007 A I H C (NOC) 273 (CAL) 2007 (3) ABR (NOC) 521 (CAL), 2007 (3) ABR (NOC) 521 (CAL)
Bench: K.J. Sengupta, Sanjib Banerjee
ORDER
1. The appellants have impugned the judgment and decree of the learned trial Judge declaring that there was a concluded contract between the plaintiff and the defendants for installation and operation of a 5 KVA generator at Subodh Mallick Square branch of the defendant/ appellant No. 1 and permanently restraining the defendants from interfering with the operation of the generator and further restraining the defendants from installing any other generator at the said branch of the Bank.
2. The short facts of the case, as it appears from the pleadings, are as follows:
In order to ensure uninterrupted electric energy for smooth functioning of the said branch, the defendant Bank engaged the plaintiff/respondent for installing and operating a motor driven 3.5 KVA generator during power cuts. Subsequently, the Bank required a generator having more capacity.
3. It appears from the records that there were negotiations between the parties for replacement of the said 3.5 KVA generator by a 5 KVA generator. On the basis of the correspondence exchanged, the plaintiff/appellant claimed that there was a concluded contract for replacement of the 3.5 KVA generator by a 5 KVA generator and such factum of conclusion of contract would appear from a letter dated 24th/28th August, 1990 being Exhibit A-5 and a letter dated 31st August, 1990 being Exhibit 6/4 read with the letter dated 5th November, 1990 being Exhibit-B.
4. It is the case of the plaintiff that in spite of the concluded contract, the defendant Bank had cancelled the same by writing a letter dated 15th November, 1990 being Exhibit-A6 and further prevented and obstructed the plaintiff from entering the said Bank premises for installation of the new generator or operation of the old generator and further made an attempt to engage a third party in his place and stead.
5. In the written statement it has been denied that there was any concluded contract between the parties for replacement of the old generator by a 5 KVA generator.
6. The learned trial Judge framed the following issues:
1. Is the suit maintainable in its present form and prayer?
2. Is contract in between the plaintiff and defendant for installation and operation of 5 KVA Generator at S. M. Square Branch concluded?
3. Is anybody that is other than plaintiff entitled to install, operate any generator for S.M. Square Branch of the defendant No. 2?
4. Is the plaintiff entitled to any declaration and injunction as prayed for?
5. To what any relief or reliefs the plaintiff is entitled in this suit?
7. The plaintiff examined two witnesses and also produced several documents. Some of the documents were not exhibited, though produced. The Bank examined one witness. After considering and appreciating the evidence, the learned trial Judge found that there was a concluded contract and the learned Judge found that the letter dated 15th November, 1990 written by the Bank was not proper and lawful. Moreover, the reasons given in the said letter for cancellation of the contract were not justified.
8. Learned Counsel for the appellant, while placing the case, submits that the findings of the learned trial Judge on the issue of existence of the concluded contract are totally perverse. The case of both the sides were sought to be proved by documentary evidence and there was no necessity to go into the oral evidence. He further submits that if the Bank's letter dated 24th/28th August, 1990 is read carefully, then it will be evident that it was an offer given by the Bank setting down the terms for acceptance of the plaintiff, although at the top of the letter it was mentioned that the letter was in response to a proposal for installation of a 5 KVA generator.
9. He has drawn our attention to the response of the respondent to such offer, wherefrom it would appear that the terms were not accepted by the respondent, but a counter proposal was forwarded containing substantially different terms from those put forward by the Bank. He further submits that the terms and conditions for installation of the 5 KVA generator were the essence of the contract and when the terms of the Bank were not accepted by the plaintiff/respondent and when the counter terms were not accepted by the Bank, it could not be found by any reasonable or prudent person that there was a concluded contract between the plaintiff and the Bank.
10. He further submits that because of the unsatisfactory performance of the 3.5 KVA generator and upon the plaintiff not having accepted the terms of the Bank, his client had no option but to terminate the first contract as well as to close all negotiations and dealings regarding installation of 5 KVA generator. It was, thus, clear from the acts and conduct of the Bank and the communication of the letter of November 15, 1990 that there was no concluded contract. Accordingly, a third party was engaged and the said third party had already installed a 5 KVA generator which had been performing satisfactorily. The third party has raised bills and payment has also been made. He has shown the appropriate exhibits, in support of this submission.
11. Mr. Mallick, learned Senior Counsel, while supporting the decree contends that there was a concluded contract and the learned trial Judge had rightly found so. He says that a proposal for installation of a 5 KVA generator had been given by his client and the Bank had accepted the same. However, in order to clarify the position, his client wrote a letter, responding to the Bank's letter dated 24th/28th August, 1990.
12. According to Mr. Mallick the contract was concluded the moment the Bank accepted the proposal. His client had accepted the basic terms. Moreover, by a letter dated 5th November, 1990, his client made it clear that all the terms put forward by the Bank by its first letter were accepted.
13. He submits further that in view of the aforesaid fact, the Bank ought not to have cancelled the first contract and further ought not to have closed the dealings and transactions regarding installation of 5 KVA generator. According to him, the letter dated 5th November, 1990 was served upon the Bank before the Bank had written the letter dated 15th November, 1990. He further submits that the findings of the learned trial Judge regarding irrelevancy of the letter dated 15th November, 1990 are justified and such letter should be ignored. He contends that this Court should not interfere with the findings of the learned Court below as there was no perversity and no absurdity.
14. We have heard and considered the respective contentions of learned Counsel for both the parties and we have gone through the evidence recorded by the learned trial Judge and the documents that have been brought on record by way of exhibits. We find some substance in the argument of the learned Counsel for the appellant that letter dated 24th/28th August, 1990 of the Bank was a mere proposal and not a letter of acceptance to the proposal of the plaintiff/respondent. Though the Bank mentioned that the letter was in response to the plaintiffs proposal, but we feel that there must only have been some suggestion from the plaintiff in the nature of an invitation to treat. It is settled law that invitation to treat cannot be said to be a firm offer. The letter of the Bank dated 24th/28th August, 1990 is clear in terms and no other conclusion can be arrived at other than the same being a clear-cut offer, setting down the terms.
15. Therefore, we set out the text of the entire letter of the Bank dated 24th/28th August, 1990, being Exhibit A-5 hereunder UNITED BANK OF INDIA Ref. No. SMSQ/Mgr/6 Set/90/1864 24/28-8-90 M/s. Banerjee & Company 44/1, Malanga Lane, Calcutta-12.
Dear Sir, Re : Your proposal for supply of 5 KVA Generator Set in place of 3.5 KVA Gen. Set in that Branch premises.
We are glad to inform you that our Regional Manager has accorded his approval for the installation of 5 KVA New Generator Set replacing his old 3.5 KVA Gen. Set installed by you in the year 1979. The terms and conditions will be as under:
1) Installation of 5 KVA new Kirlosker Gen. Set with accessories.
2) Monthly rent will be Rs. 1600/- (Rs. One thousand six hundred only) inclusive of fuel, maintenance & operator's salary etc.
3) Installation should be made in such a manner so that no damage is caused to his building or bank's property.
4) A log book to be maintained to note day to day running hours & initiated by the bank officials.
5) Proportionate rent will be deducted for failure of the G. Set.
6) A sum of Rs. 1300/- (Rs. One thousand three hundred only) to be credited to Transport loan A/c. in the name of S. S. Banerjee with us till liquidation of the loan.
7) The Generator Set to be installed must be approved by the Branch Official as to make brand Engine No. 1 and energy meter & its manufacturer for ensuing standard supply of power during the load shedding.
8) All formalities with C.E.S.C. Ltd. Regarding the proposed change over to be completed by you.
9) Installation cost to be borne by you.
If you are agreeable to the terms and conditions - please send us a letter of acceptance with reference to this letter.
Yours faithfully, For & on behalf of UNITED BANK OF INDIA S. M. Square Branch, Sd/- Illegible Manager.
16. In response to the aforesaid letter, the plaintiff/respondent wrote back accepting the Bank's proposal for installation of the 5 KVA generator but did not accept the terms put forward by the Bank regarding mode of payment and duration of the service. Rather, the plaintiff put forward his own terms regarding payment and installation expenses and other charges. We, therefore, feel it proper to set out the text of the letter dated 31st August, 1990 being Exhibit 6/4 hereunder:
I am glad to receive your letter No. SMSQ/Mfg./G Set/90/1864 dt. 24-8-1990. The points mentioned in your letter is more or less quite satisfactory and agreeable. But I must add that some points are not clearly explained and not fully satisfactory.
Here I mention my opinion on those matters.
1. In Point No. 2 of your letter you have mentioned the monthly rent as Rs. 1,600/-(Rupees one thousand six hundred only). But you have not mentioned how long the Generator will be operated daily. According to my business policy that rate will be only agreeable when the Generator will be operated during office hours i.e. from 10-00 a.m. to 5.00 p.m. and Rs. 10/- (Rupees ten only) per hour will be charged for operating the Generator after office hours i.e. after 5.00 p.m. because it will cost extra fuel and overhead expenses.
2. Installation charges for Generator as per the present business policy followed almost all the Generator lenders, will be borne by you. It will cost near about Rs. 4,500/-(Rupees Four thousand five hundred only).
3. After fulfilment of your requirement, I must be at liberty to supply power to other offices.
4. For any major type of break-down of Generator I will have 72 hours maximum to bring the Generator in running condition and for other break-down. It will take 24 hours, I am agreeing your proposal for proportionate deduction during break-down period.
The points which I have mentioned before. I think, is not at all difficult to agree from your end. Expecting your kind consideration.
17. On receipt of the aforesaid letter, however, the Bank did not reply and remained silent till the letter dated 15th November, 1990 was admittedly served. Mr. Ballick says that in view of silence of the Bank, it must be presumed that the Bank had accepted his client's terms or at least, the Bank had accepted the basic ingredient of the contract viz. installation of the 5 KVA generator. The other terms and conditions were not essential.
18. We are unable to accept this submission for the simple reason that such case, had not been pleaded, not to speak of being proved. We, therefore, conclude that there was no concluded contract at any stage and the parties were at the negotiation stage.
19. The Bank's letter dated 15th November, 1990 being Exhibit A/6 contains two subjects viz. one for cancellation of the earlier contract for supply of electric energy by 3.5 KVA generator and the other regarding closure of negotiations and dealings for installation of 5 KVA generator.
20. The documents mentioned above have been exhibited and admitted as regards receipt and correctness of the contents of the same. But one issue which has been raised by Mr. Mallick is that before the letter dated 15th November, 1990 reached his client, a letter dated 5th November, 1990 was sent to the Bank accepting at the terms of the Bank, put forward to his client. So, by the letter dated 5th November, 1990, the contract was concluded. On that score also, the decree passed by the learned Court below should be left as it is. as submitted by Mr. Mallick.
21. We are unable to accept this submission also for the reason that the learned Court below has found that letter dated 5th November, 1990 was received by the Bank on 3rd December, 1990 by the mode of postal communication. The envelope received by the Bank has been exhibited. The letter itself has been exhibited, which, shows that it was posted under only one mode, i.e. Certificate of Posting. There being no cross-objection against the findings of the learned trial Judge, we have no option but to accept the same. The only course of action is to assess the implication of the subsequent communication received by the Bank. Although the letter is dated 5th November, 1990, but the date is of no significance unless it is communicated on such date. The learned trial Judge discarded the letter dated 15th November, 1990 of the Bank which we think was erroneous. From the text of the letter it is clear that the Bank had cancelled all transactions and negotiations and there cannot be any acceptance of any terms by necessary implication. The learned trial Judge's findings in this regard are not acceptable by anyone having ordinary prudence; so we do not accept the same.
22. Under those circumstances, we are unable to accept the contention of learned Counsel Mr. Mallick that the judgment and decree does not call for any interference.
23. The appeal is, therefore, allowed. We, accordingly, set aside the Judgment and decree passed by the learned Court below. Naturally, the suit stands dismissed. There will be no order as to costs.