TMI Blog1996 (4) TMI 445X X X X Extracts X X X X X X X X Extracts X X X X ..... lab basis. - - - - - Dated:- 24-4-1996 - G.B. PATTANAIK AND RAMASWAMY, K. JJ. JUDGMENT: PATTANAIK. J. Leave granted. This appeal by special leave is directed against the Judgment of the Division Bench of the Madras High Court dated 6.9.1995 in O.S.A. No. 112 of 1987. The plaintiffs who are the respondents in this appeal filed the suit on the original side of the High Court for recovery of a sum of Rs. 46,08,820/- together with interest at 18% per annum. It was alleged in the plaint that the defendants who are appellants in this appeal invited tenders for transportation of iron and steel materials including unloading, weighment and stocking from various stockyards of the suppliers to the destination stores during the period 1.9.1978 to 31.8.1979. In pursuance of the aforesaid advertisement the Plaintiff No. 1 submitted his tender on 13.7 .1978 and along with tender submitted a letter was also enclosed. This offer of the plaintiff was accepted and an agreement was entered into. In accordance with the agreement the plaintiff furnished a bank guarantee and deposited the necessary earnest money and commenced the work of transport of materials. It was further alleged t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submission of the tender. The words were "I have quoted my rates for each slab and add for every extra one and part thereof". The plaintiffs' case is essentially based on the aforesaid expression in the letter which was enclosed to the tender and which according to the plaintiffs was ultimately accepted. The learned Single Judge, however, construed the expression "for each slab" mentioned in Exhibit D-6 and came to hold that the tender was not on multi slab basis. The learned Judge also held that merely because the tender conditions are not clear one cannot accept the contention of the plaintiff that the rates agreed upon is on multi slab basis. Further taking into account the terms and conditions of Exhibit D-1 the learned Judge came to hold that the irresistible conclusion is that what was intended is only a single slab basis. The learned Judge also examined several other tenders and then negatived the plaintiff's contention that the agreement was on multi slab basis. On an analysis of the pattern of the working of the rates in several tenders the learned Judge rejected the plaintiffs contention that the contract was on multi slab basis. Though the plaintiffs relied upon se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ignature either of the plaintiff or of the receiving officer on the same and further it was really astonishing that though the tender was submitted on 12.7.1978 but according to the plaintiff an attested copy of the letter could be obtained from the departmental officer on 11.7.1978. Mr. Reddy further argued that the acceptance of the tender by the contractor clearly indicates that it was on single slab basis as the note to the same states "only one rate should be quoted for various lengths and sizes and not different rates for different lengths". Mr. Reddy further urged that the very fact that the plaintiffs did not submit any bills till the end of the contract period and started to submit the bills during the extended period of the contract would indicate that with an obvious illegal design the bills were not being submitted in time. Repelling the reasonings advanced by the Division Bench of the High Court Mr. Reddy urged that passing of some bills by some of the Superintending Engineers on multi slab basis is not determinative of the terms and conditions of the contract particularly when the contract is a written one and consequently the Division Bench erred in law that the cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce to ascertain the terms of the contract. It is only when the written contract does not contain the whole of the agreement between the parties and there is any ambiguity then oral evidence is permissible to prose the other conditions which also must not be inconsistent with the written contract. The case in hand has to be adjudged bearing in mind the aforesaid principles and the plaintiffs being conscious of this position along with the tender appended a letter and in that letter inserted certain terms by writing in ink to establish the case that the acceptance of the plaintiffs' tender would tantamount to the acceptance to the terms contained in the letter in which there was insertion in writing to the effect that it was on multi slab basis. It is in this context the question whether such hand written portion was originally there or was subsequently inserted assumes great significance. We are unable to accept the stand taken by the learned counsel for the respondents that there was no such issue on this question inasmuch as this question was considered by the learned Trial Judge while discussing Issue No. 1 on the basis of evidence laid and the Trial Judge had given a finding in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no document whatsoever in support of the aforesaid so called after tender discussion and the acceptance of the terms in the said discussion to the effect that rate would be charged on multi slab basis. Then again if the plaintiff had appended the letter to the tender indicating that he would be charging on multi slab basis there was no occasion to have any after tender discussion or to raise the issue of rate being accepted on multi slab basis. The so called statement of DW-1 therefore is wholly unacceptable and in the eye of law also cannot be taken into account to vary the terms of the written contract. The Division Bench of the High Court committed obvious error in allowing variance of the terms of the written contract relying upon such statement of DW-1 and granted the decree on multi slab basis. The only other question which survives for consideration is whether the conduct of some of Superintending Engineers in passing some of the bills on multi slab basis can be pleaded as an estopped against the defendants and can form the basis of plaintiffs' case. The answer to this question must be in the negative. It transpires that some of the Superintending Engineers passed some o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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