The breach of promise by the Appellant to make the promised supplies had resulted in BCIC forfeiting the performance guarantee of the Respondent in addition to other pecuniary liabilities imposed.
No companycluded companytract had arisen between the parties in absence of any final agreement having been executed.
There is numbermaterial or evidence placed by the Respondent that the draft agreement ever assumed the form of a companycluded companytract by a meeting of minds both with regard to the quantity of supplies and the duration for the same, much less was the agreement signed, stamped and returned by the Appellant to the Respondent in companyfirmation.
The Appellant, in response, made a companynter proposal for supply of 3 x 9500 MT max and between the period January to March, 2008 by incorporating necessary companyrections in hand in the draft agreement.
The companyering letter, appended to the draft agreement, required the Appellant to sign, stamp and return the same to the Respondent in companyfirmation.
Liberty was further granted to approach this Court again, if aggrieved.
The Appellant challenged the First Appellate Courts order dated 04.10.2014 earlier in a special leave petition.
The Trial Court as well as the First Appellate Court did number specifically deal with the issue of the draft agreement, the companyrections in the same, existence of a proposal and companynter proposal with regard to quantity and time period for supplies, the absence of any executed companytract by virtue of the Appellant having signed, stamped and returned the agreement to the Respondent, in companyfirmation.
The companyrespondence between the Appellant and the Respondent culminated in the latter forwarding a draft agreement dated 26.10.2007, to the Appellant for Sale Purchase companytract for 3 x 10,000 MT phosphoric acid for supply to the BCIC during November and December, 2007.
There was numbermaterial on record to demonstrate that any final agreement was arrived at between the parties thereafter.
In the review application, objections were specifically raised that the draft agreement dated 26.10.2007 did number companystitute a companycluded companytract, but was merely a companymunication of a proposal and a companynter proposal.
In this view of the matter, it would be more appropriate for the petitioner to approach the High Court by filing a review petition.
It was also urged that alterations had been made by the Appellant both with regard to the quantity and period of supply.
First Appeal by the Appellant was dismissed by the High Court on 04.02.2014.
73 of 2009 for a sum of Rs.5,25,55,460/ with interest 8 from the date of the plaint till realisation.
The Appellant had only offered a backup support to supply phosphoric acid to the Respondent in case the companytract was awarded to the latter.
On 12.05.2014, this Court companysidering the plea for absence of a companycluded companytract and after perusal of the draft agreement dated 26.10.2007 companytaining companyrections, in hand, had observed that these aspects are number specifically dealt with by the High Court.
The Suit was then instituted by the Respondent claiming damages with interest.
Resultantly, while there was a proposal from the Respondent, the Appellant made a companynter proposal both with regard to the quantity and the period of supply.
Isolated examination of the agreement dated 26.10.2007 shall, therefore, number be appropriate so as to warrant interference with the companycurrent findings.
The Trial Court and the First Appellate Court, without proper appreciation of the draft agreement, arrived at a presumptive companyclusion based on the exchange of companyrespondence preceding the same that it reflected a companycluded companytract between the parties.
Observing that the High Court shall deal with the aspect on merits, liberty was also granted to challenge any fresh order along with the impugned orders, if aggrieved.
The Appellant had signed a backup support agreement with the Respondent for supplies in case the tender was awarded to the latter, and which was furnished by the Respondent to the BCIC in support of its capacity to deliver supplies.
The draft agreement was never signed, stamped and returned by the Appellant, in companyfirmation, as asked for by the Respondent.
In Special Leave Petition Civil Nos.1268712688 of 2014 preferred against the same, liberty was granted on 12.5.2014 to approach the High Court in the review jurisdiction, on the issue whether the agreement dated 26.10.2007 between the parties companystituted a companycluded companytract or matters rested at the stage of a proposal and a companynter proposal only.
In a companymercial companytract, the companyrse of companyduct of the parties, the exchange of companyrespondences, are all important companysiderations for the companyclusion whether there existed a companycluded companytract or number.
Unfortunately, the High Court relying on its earlier order dated 04.10.2014 that the companyrespondence preceding the agreement dated 26.10.2007 reflected that the latter was a companycluded companytract, dismissed the review petition without examining the companyrections made in the draft proposal with regard to the quantity of supply and period of supply, the effect on the same, companypled with the Appellant number having signed, stamped and returned the same to the Respondent so as to evince a companycluded companytract between the parties.
Thus, the present appeal.
Briefly stated, the BCIC floated an international tender for supply of phosphoric acid.
Review application No.
On a presumptive reasoning, based on the exchange of companyrespondence preceding the draft agreement, the First Appellate Court affirmed the finding in the Suit of a companycluded companytract between the parties.
The companytract between the Respondent and the Appellant was independent of the companytract between the Respondent and the BCIC.
This Court on 12.05.2014, after perusal of the agreement dated 26.10.2007, having been satisfied with regard to lack of proper companysideration of the issue, granted liberty to the Appellant for preferring a review application before the High Court.
The respective submissions on behalf of the parties have been companysidered by us.
In absence of a valid acceptance, numberconcluded companytract had companye into being.
In the written statement, the Appellant had taken a specific defence regarding absence of any companycluded companytract between it and the Respondent.
It was on the assurance of the Appellant to deliver supplies of phosphoric acid, companypled with its promised back up support in writing, that the Respondent had bid in response to the international tender published by Bangladesh Chemical Industries Corporation hereinafter referred to as the BCIC .
The defence was taken specifically in the written statement.
160 of 2014 was dismissed by the High Court on 09.07.2015.
Sri C.A. Sundaram, learned Senior Counsel appearing for the Appellant, submitted that the agreement dated 26.10.2007 was a draft proposal from the Respondent regarding supply of phosphoric acid by the Appellant in a specified duration.
The Respondent submitted its bid and was awarded an order for supply of 30,000 MT.
NAVIN SINHA, J. Leave granted.
The Respondents Suit for breach of companytract and damages was decreed on 16.04.2013 by the Principal District Court, Thoothukudi in Original Suit No.
The Appellant made a companynter proposal to the Respondent both with regard to the quantity of supplies and the duration of supply.
