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TMI Blog2003 (3) TMI 541X X X X Extracts X X X X X X X X Extracts X X X X ..... e amount involved in tender was to the tune of Rs. 14,30,761.25. Pursuant to an order of the Supreme Court dated 15th May, 1992, all quarries in Delhi were ordered to be closed with a view to control pollution in the city and consequently no stones were to be crushed. On 25th May, 1992, the petitioner sent his revised offer and requested that if revised offer was not acceptable, the earlier offer be deemed to be withdrawn. The respondent, however, did not accept the revised rates and ignoring the modified offer issued a latter of intent No. 390 dated 25th May, 1992. According to the petitioner, the said offer was deemed to be withdrawn resulting in non-execution of an enforceable, valid and binding contract. The petitioner again requested t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w the earlier offer and gave a revised offer dated 25th May, 1992. The respondent ignoring the modified offer accepted the original offer of the petitioner vide its letter No. 1799 dated 10th July, 1992, i.e. after the expiry of 90 days validity period and overlooking his withdrawal of the offer and the modified offer. 6. In OMP No. 86/94, the petitioner submitted his offer on 24th March, 1992 in response to the notice inviting tender for the work of foundation in 220 KV Yard sub-station, Delhi Cantt., Naraina and deposited an earnest money of Rs. 20,000, the value of the contract being Rs. 18,13,841.60. The validity of the offer was again for 90 days, i.e. till 23rd June, 1992. However, due to the above referred changed circumsta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent having issued notices inviting tenders and the petitioner having made his offers but it is stated that the present petitions are not maintainable inasmuch as per clause 10 of the notice inviting tender, successful tenderer whose tender was accepted was required to execute an agreement on a stamp paper of Rs. 1.50 within 30 days of the issue of written order to start work and clause 11 provided that in the event of failure of tenderer to sign the contract documents within a period of 30 days of the issue of written order, the entire earnest money deposited by him shall be forfeited; that in terms of the said clauses, the petitioner has failed to sign and execute the contract despite the work orders having been issued after due acce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fer within the validity of the earlier offer and before the acceptance of earlier offer by the respondent. This clearly means that the petitioner is not seeking the opinion of this Court determination by it about the validity or otherwise or the existence of an arbitration agreement but in essence he is seeking a declaration that no valid and enforceable contract came into being between the parties. Therefore, it is to be seen as to whether the petitioner is entitled to invoke the jurisdiction of this court under section 33 of the Act for the said relief. In support of his contention that he is entitled to such a relief, the counsel for the petitioner has strongly relied upon a decision of this Court in the case of Sanjay Paper Chemical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osite party. On the contrary, the opposite party, by this telex message accepted the offer of old rates, and therefore, it cannot be said that in this case, the binding contract has been concluded. When there was no concluded contract, there was no question of giving security for earnest money by way of Bank Guarantee by the tenderer and thus the opposite party could not exercise its right to invoke Bank guarantee. The Bank guarantee was not produced before the Court inspite of repeated demands and therefore adverse inference that it is conditional one could be drawn against the opposite party. The tenderer is entitled to interim injunction restraining the opposite party from encashing the Bank guarantee, since there is no concluded contrac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . From the aforesaid Supreme Court decision, it is manifest that the petitioner is indirectly seeking a declaration about the existence and validity of an arbitration agreement between the parties though in essence his relief is for a declaration that no valid and binding contract came into being between the parties on account of the respondent either having accepted the offer of the petitioner beyond its validity period or after the original offer was withdrawn or revised by a modified offer. Such a relief can only be sought and granted by a Civil Court in a civil suit and not through a petition under section 33 of the Act. This Court has, therefore, no hesitation in holding that the present petitions under section 33 for the said relief ..... X X X X Extracts X X X X X X X X Extracts X X X X
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