Railway Board, replied to the letter of the Respondents of the 21st September 1968, stating that it was number companyrect that their officehas assured them that it would arrange to get the missing details from the companycerned C.O.Ss.
Reference Your letter Nos.
The Respondents replied to this letter by their letter dated 25 1 1969 expressing surprise and companytesting the stand taken by the Railway Board.
companytract without delay.
Nil dated 21 5 68, 15 6 68, 29 6 68, 8 7 68, 10 7 68 and 15 7 68.
accepted our offer and companycluded the companytract.
On the same day as the letter of 15th July was sent by the Respondents, P. C. Oak signing for the Secretary of the Railway Board, addressed the following letter of acceptance, No.
After this letter two other letters were written by the Respondents to the Director, Railway Stores, dated 7th and 23rd November 1968.
In reply thereto, by a letter dated 25 5 1968, the Dy.
After the receipt of this letter the Joint Director, Railway Stores G , wrote to the general Manager S , All Indian Railways with a companyy to the respondents calling for the required information.
After some negotiations the terms of the companytract were finalized and the Secretary, Railway Board by his letter No.
No reply was, however, received by the time indicated in the letter of the appellants and while so stating another letter was addressed to the Respondents on 3 6 68 by C. Parasuraman for Secretary, Railway Board, seeking further clarification in respect of items Nos.
68/RS G /709/10 to the Respondents Subject Tender No.
The de tailed terms and companyditions of the companytract will be apprised to you when finalized.
68/RS G /709/10 dated 15 7 68 indicated an intention to enter into a company tract with you, but subsequent to this, discussions had been held with you over a number of sittings on 20 7 68, 12 8 68, 26 8 68, 27 8 67 culminating in your letter dated 18 9 68.
that the companytract has been companycluded by the issue of sellers letter No.
RB Rails 68/1 dated 23 11 68 that the Railway Board is number authorized to sell rails to other parties because of their having companycluded a companytract with you is factually incorrect.
RB Rails/68/1/114, dated 2nd December 1968.
Director, Railway Stores, Railway Board, P.C. Oak in para 1 6 categorically.
The Judgment of the Court was delivered by Jagammohan Reddy, J. This appeal is by special leave.
Consequently the appellant has annexed a true companyy of the enclosures with the special leave petition and prayed that this may be admitted in evidence.
P. C. Oak.
1 of 1968 for Export sale of used re rollable and repayable steel rails.
Yours faithfully, Sd.
O.S. No.
68/RS G /709/10 dated 15 7 68 to the buyers that the term of the companytract shall be three years from 1 11 1968 to 31 10 1971 that the buyers reserve the right to act upon the companytract any time before 1 1 1 68 and start inspection and take delivery of the goods but this will number in any manner effect the terms of the companytract.
K. Sen, G. L. Sanghi and B. R. Agarwala, for respondent No.
exchanged regarding which there is a dispute but ultimately be, fore us it is number companytested that a draft agreement, which the appellants say is the 5th draft, but according to the Respondents is the final draft, was handed over to the Respondents by P. C. Oak on 27 8 68 but this, however, was number signed.
In the petition of the Respondents filed in Court after setting out the relevant companyrespondence leading upto the letter of acceptance of P. C. Oak dated 15th July 1968, it was stated that that letter was a definite acceptance of the offer and companystitutes a binding and valid companytract between the parties.
68/RS G 70910 dated 15 7 68,.
It invited offers in respect thereof to be addressed to the President of India and sent to Shri R. No.
The special companyditions of tender dealt with prices, quotations, payments, terms of shipment, weighment, basis of sales and handling at ports, force majeure, arbitration, legal jurisdiction, acceptance of offers and title and risk.
1 of 1968 was issued by the President of India, therein referred to as the Government of India, Ministry of Railways Railway Board proposing to sell 80,000 tones of surplus released serviceable and scrap rails, as per details given in the schedule thereto, to established buyers abroad or their accredited agents.
The default clause in clause 11 provided that where a buyer fails to execute the companytract the seller was to have power under the hand of the Director, Railway Stores, Railway Board, to declare the companytract at an end at the risk and companyt of the buyer.
Similarly, para 4B. gave the proforma performance guarantee bond to be addressed to the President of India executed by the tenderer and accepted for and on behalf of the President of India by the ,person so designated.
B, dated 21 5 1968, offered to buy 80,000 tonnes of rails at 45.1 per tonne F.O.B. Indian Ports on the term and companyditions set out therein.
26 and 27 of the offer companytained in the aforesaid letter of the Respondents dated 21 5 1968.
The delivery F.O.B. Free an Board /F.A.S. Free Alongside Ship invoices and freight were dealt with in clause 9.
No doubt, letter No.
The additional terms were agreed to by the plaintiffs Respondents by their letter to the Director, Railway Stores, dated 18 9 1968.
This would amply indicate that numberagreement had been reached on vital terms and companyditions, and the question of the existence of a companycluded companytract does number arise.
In para 16 it was further alleged that after the letter of acceptance by the appellants the then Acting Director of Railway Stores and the Director of Finance proposed to the plaintiffs that the price offered by them should be increased or in the alternative certain alterations be made in the agreed terms, but the plaintiffs having justly refused to do so, the 2nd defendant C. Parasuraman falsely wrote to the plaintiffs on 15 1 1969 that numberconcluded companytract had taken place and that the Railway Board was, therefore, number precluded from selling rails to other parties.
In para 2 it was stated that the offer of the respondents was number addressed to the President of India as required under clause 1 3 of the Instructions to the Tenderers and, therefore, the Respondents were required to companyfirm that their offer was deemed to nave been addressed to the President of India and is open for acceptance on behalf of the President, it was further stated in para 4 that they should send the reply addressed to the President of India through the Director of Railway Stores, Railway Board companyering all the points indicated therein, to reach them number later than 28 5 1968.
The question for companysideration is whether there is a binding, valid and companycluded companytract between the appellants and the respondents.
As there was numberdispute in respect of the companytents thereof, we have allowed this prayer because without them it is number possible to arrive at a just companyclusion.
Clause 2 of this draft agreement states.
CIVIL APPELLATE JURISDICTION C.A. No.
The tenderer was required to offer companyments clause by clause on the general companyditions of tender and the special companyditions of tender either companyfirming acceptance of the clauses or indicating deviation therefrom, if any.
On the 23rd October 1968, C. Parasuraman, for Secretary.,
An appeal against that order to a Division Bench was dismissed.
for Secretary, Railway Board.
In 4A of these instructions the proforma deed bond was given which was to be signed by the tenderer and the acceptance was to be signed for and on behalf of the President of India by the person designated for that purpose.
On an application filed by the respondents under section 20 of the Arbitration Act a single Judge of the Delhi High Court directed the appellants to file the arbitration agreement to refer the disputes between the parties arising under the companytract to arbitrators.
On the 21st March 1968, a numberice of Global Tender No.
Even thereafter there was further companyrespondence between the parties.
By letter dated 18 9 68 the Respondents wrote to the Director, Railway Stores, agreeing to several other matters to be included in the final draft and requested him to issue the final.
With this numberice were enclosed the general companyditions of tender, special companyditions of tender, instructions to tenderers, including proforma for performance guarantee and deed bonds as in clauses 4A and 4B, shipping terms and schedule of stocks available as on 1st March 1968.
The appellants in their written statement, raised a prelimi nary objection, namely, that the petition was misconceived as there was numberarbitration agreement between the parties and so the question of enforcing the arbitration clause in the alleged companytract did number arise.
M. Tarkunde, G. L. Sanghi, B. R. Agarwala and Janendra Lal, for respondent No.
Mubayi, Director, Railway Stores, Railway Board.
A. Palkhivala, D. Mukherjee, R. H. Dhebar and A. J. Rane, for the appellants.
In the instructions to tenderers, the tenderers were requested to quote their highest offer indicating the price per metric tonne inclusive of export incentive of 5 of F.O.B. value currently applicable as guarantee by the Government of India which will always be to, the sellers benefit for handing over of the rails F.O.B. docks F.A.S. F.O.B. Indian Port or I.F. destination port.
It appears that the terms and companyditions enclosed with the tender numberice annexed to the petition filed in companyrt were number full and companyplete.
1067 of 1971.
In the general companyditions the seller was defined to mean the President of India acting through the Director, Railway Stores, Railway Board, unless the companytext otherwise provided.
It was further provided that the companytract will companye into force from the date the buyers letter of credit is accepted by the sellers numberinee.
In the first letter it was stated thus In pursuance of your invitation we submitted our tender for purchase of used relayable and re rollable steel rails on 21 5 68.
40 of 1970.
In order to understand the scope of the companytroversy, a few facts may be stated.
With respect to the draft agreement of the 27th August 1968 handed over to the Respondents embodying the agreement between the parties, the averment was that the then Acting Director of Railway Stores desired certain additional terms to be embodied in the terms that were agreed to.
The terms and companyditions also set out the shipping terms in detail, though a few of them were also mentioned in the special companyditions under the headings Shipment, Terms of Shipping and Receiving Notice.
Pursuant to this tender numberice, the respondents, by their letter, Ex.
Appeal by special leave from the judgment and order dated October 30, 1970 of the Delhi High Court in F.A.0.
On the 21st September 1968 the Respondents again wrote to the Director, Railway Stores, companyplaining that the information provided by the various Railways was number companyplete and requested him to companytact the various Railways and obtain the required information as soon a , possible.
The Respondents wrote subsequently to the Director, Railway Stores on the 15th June, 29th June, 8th July and the three letters on 10th July and one on the 15th July 1968, some of which were written after a discussion with the Director of Railway Stores in the presence of the Director of Finance, Mr. Datta.
stated by reference to para 14 of the companyditions of the letter of the respondents that as shipping terms have finan cial implications they were requested to indicate with reference to the tender which particular clauses they desire to re negotiate and settle.
Formal companytract will be issued shortly.
In that letter the Joint Director stated thus the Board have finalized an export cum internal sale companytract with M s. N. K. p Ltd., New Delhi for a period of 3 years, entitling them to export stock of such surplus rails available with the Railways.
Kindly be advised that your offer at 39 per long ton F.O.B. Indian Port for export and Rs.
458/ per long ton for indigenous companysumption with terms and companyditions referred to in your above letters is hereby accepted.
Thereafter, it is alleged that several draft agreements were.
There were also two other clarifications in respect of the weight of the tonne for which 45.1 was quoted and the option to transfer the companytract in the name of the foreign principles which it was stated, companyld number be agreed to straightaway unless and until they knew the names of the foreign principles and their willingness to enter into a legal binding guarantee of all the terms and companyditions of the companytract.
Your companytention companytained in your letter No.
To this, P. C. Oak for Secretary, Railway Board, replied Kindly refer to companyrespondence resting with your letters dated July 26, 1968, 18th September 1968 and No.
Kindly acknowledge receipt.
