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5. The next argument of Mr. Roy is that assuming the tender was kept open for acceptance till 13-11-1952, the tender submitted by the petitioner was not in fact accepted inasmuch as the A/T issued by the Director of Supply clearly indicates that there is a divergence between the terms in the tender and the terms in the A/T dated 13-11-1952.

Hence the said A/T cannot be considered to be an acceptance of the offer of the contractor as contained in his tender dated 18-7-1952. In law the A/T is nothing more than a counter-offer. If this contention is right, then this counter-offer as contained in the A/T dated November 13, must be accepted by the contractor at a subsequent point of time to effect a binding contract between the parties. But in that case the difficulty of the Government is, firstly, that the case made in the petition is that the A/T dated 13-11-1952 is the contract between the parties and no other; and secondly, such a contract if concluded at all at a subsequent date is hit by the provisions of Article 299 of the Constitution and thirdly, no such contract has in any event been proved to have been concluded between the parties by the acceptance of the counter-offer contained in the A/T dated November 13. This argument has been made with great forensic ability and deserves very careful consideration.

14. The next point to be considered is Article 299 of the Constitution and its applicability to the facts of this case, Article 299 lays down the formalities to be complied with in order that there might be a binding contract with the Government. It reads as follows :

"All contracts made in exercise of executive power of the Union .... shall be expressed to be made by the President ...... and all such contracts ......made in the exercise of that power shall be executed on behalf of the President ...... by such person and in such manner as he may direct or authorise."

The contention of Mr. Subimal Roy is that the formal document contemplated in Article 299 cannot be executed in the manner indicated in the Article before the contract is concluded. In the case of Government contracts, the Tender is the offer and A/T is the acceptance o the offer which results in a binding contract if the A/T complies with the formalities laid down in Article 299 of the Constitution. If, however, the A/T does not conclude the deal and if it is nothing more than a counter offer which requires further acceptance by the other contracting party, to conclude the contract, as in the, instant case, then a further formal document must be executed in compliance with the formalities prescribed by Article 299. The A/T which is yet to be accepted cannot be said to be in compliance with the formalities prescribed by Article 299 of the Constitution, because the contract has not yet been concluded. In other words, there must be a concluded contract first, before a formal document in compliance of Article 299 can come into existence. If the formal document is anterior to the conclusion of the contract, Article 299 is not complied with. I do not think this argument is sound. There is nothing in Article 299 to indicate that the formal document embodying the terms of the contract cannot come into existence before the acceptance of the terms by the other contracting party. The Article only requires that the terms of a contract, in order that it may bind the Government, must be agreed to by the proper authority and must be evidenced by an instrument executed by an officer duly empowered. There is nothing to prevent the Government from offering a contract by a formal document in compliance with Art 299 for the other contracting party to accept and conclude the deal. In the instant case, the Government has offered a contract to the petitioner by its A/T dated 13-11-1952 containing all the terms of the contract and the A/T is executed by an officer duly authorised and it is in compliance with the formalities. In my judgment Article 299 has been complied with in the instant case and on the acceptance of the A/T dated 13-11-1952, a contract is concluded between the parties. It is not necessary to decide in the instant case at what date the contract was concluded. Whether it was concluded on 19-11-1952 when the letter was sent by the contractor or subsequently when the first consignment of goods was sent or on 9-3-1953 when the parties agreed to a Novation is wholly immaterial for the purpose of this case. The Government's case is that the contract is evidenced by the A/T dated 13-11-1952 which contains the terms including the arbitration clause. The fact that it was accepted by the other contracting party at a subsequent date is wholly immaterial.

15. Mr. Kar has contended that Article 299 is a constitutional provision to give protection to the Government and Government alone. Hence it cannot be invoked by the other contracting party to defeat a contract which is not in strict compliance with Article 299 of the Constitution. Such a contract, in his submission is not void. Mr. Kar relied on the observation of the Supreme Court in Chaturbhuj Vithal Das v. Moreshwar Parashram . It has, however, been held authoritatively that the provisions of Article 299 are mandatory and not directory and as such a contract which does not comply with the formalities prescribed by Article 299 is unenforceable in law, Mr. Kar's argument is that" it is unenforceable against the Government, but enforceable against the other contracting party by the Government; in other words, one of the contracting parties is bound and not the other. A number of decisions including an unreported decision of the appeal Court has been cited by the parties : Union of India v. Ramnagina Singh, 89 Cal LJ 342 (357); Sankara Mining Syndicate Ltd. Nellore v. Secy, of State, AIR 1938 Mad 749; S.C. Mitter and Co. v. Governor General of India in Council, ILR (1950) % Cal 431; New Churulia Coal Co., Ltd. v. Union of India, . Perumal Mudaliar v. Province of Madras, ; Jagu Singh v. M. Shaukat Ali, 58 Cal WN 1066; Surendra Nath v. Dalip Singh ; P. H. Avari v. State of West Bengal, , and 1944-1 KB 12; Halsbury (Simonds Edition) Volume VIII, Articles 128 and 129 Cheshire page 31. It is not necessary for me in the instant case to express any opinion on this point, in view of my finding that in the instant case the contract is evidenced by the A/T dated 13-11-1952. This A/T is admittedly in strict compliance with the provisions of Article 299 of the Constitution. It has been proved that R. C. Das Gupta had the authority to enter into the contract. Mr. Roy contended that the Government is bound by its own pleading and in the affidavit of Das Gupta the case made is that the A/T dated 13-11-1952 concluded the deal. It is not therefore open to the Government to make a new case that by subsequent acceptance by the contractor of the A/T dated 13-11-1952, there was a concluded contract between the parties. But the petitioner himself has made the case in 20 (g) of the petition, that he never agreed to accept the counter-offer made in the A/T and he asks for a negative declaration that there was no concluded agreement. Failure of the Government to establish that the A/T dated 13-11-1952 concluded the agreement, would not entitle the petitioner to the negative declaration unless the petitioner succeeds in proving his own case that the counter offer contained in the A/T was not accepted by the petitioner. This case the petitioner, has failed to substantiate and he is not entitled to the negative declaration claimed in the petition, I am not therefore inclined to accept this argument of Mr. Roy.