Judgment S. B. Sinha, J. 1. This First Appeal is directed against a judgment and decree dated 30-6-1986 passed by Sri Harballava Chandra Prasad, Additional subordinate Judge. Ranchi in Money Suit No.61/32 of 1981/81, whereby and wbereunder tne said learned court decreed the plaintiff-respondents suit for damages. 2. The fact of the matter lies in a narrow compass. 3. A Notice Inviting Tender was issued by the plaintiff-respondent inviting tender from manufacturer of miners books or their authorised agents for entering into a rate contract for one year for supply of Steel Toe cap miners safety Rubber canvas boots strictly conforming to the ISI specification no. IS : 3976-1975 required for the collieries situated in the States of Bihar, qrissa, Madhya Pradesh and U. P. (Ext. A ). In the said notice inviting tender, there was a price escalation clause, which is in the following terms :- "normally the rates are not subject to any upward revision until the period of the contract is completed. However, under certain abnormal conditions like in cases where additional statutory deposits are levied by the Government in the form of duties and taxes during the currency of the contract which directly affects the cost of the materials, a price increase may be permitted after full justification for such increase is provided by the firm, with documentary evidence. " 4. In response to the aforementioned notice inviting tender, the defendant submitted his quotation on 7-3-1978 which was received by the plaintiff on 14-3-1978 and was marked as Ext. B. 5. In terms of a letter dated 29-4-1978, the dependant was informed by the plaintiff that his above referred quotation has been accepted for yearly rate contract for supply for safety Rubber Canvands Boots for miners Type II 1st marked and DGMS. approved as per ISI 3976-75 at a unit price of rs.30.20 per pair FOR. Calcutta inclusive of Excise Duty, sales tax extra, for the (B and K), (A), (O) and Hathars Area. It was further stated therein that its formal rate contract with detailed terms and conditions was under issue. The defendant, however, in the meantime, was requested to arrange to make supplies with the "direct demanding officers" against the demand orders if placed with it. The said letter dated 19th June, 1978 has been marked as Ext, D. 6. It was further stated therein that its formal rate contract with detailed terms and conditions was under issue. The defendant, however, in the meantime, was requested to arrange to make supplies with the "direct demanding officers" against the demand orders if placed with it. The said letter dated 19th June, 1978 has been marked as Ext, D. 6. However, it appears that by an earlier letter dated 29-4-1978, the defendant informed the plaintiff that he will agree for about the 30 days of deferred payment in respect of the goods supplied by him. (Ext. C ). On or about 22-6-1978, the plaintiff requested the defendant to commence supply of the boots pending issuance of formal rate contract (Ext, E ). On or about 23-6-1978, however, formal rate contract in duplicate was issued which was marked as Exts. F and F/1. It is admitted that the defendant did not sent back the copy of the said rate contract after signing the same in token of his acceptance of the terms thereof. 7. According to the defendant in the said rate contract, the escalation clause as contained in Ext. A was deleted. The defendant, therefore, objected to the deletion of the aforementioned escalation clause by issuing a letter dated 4-7-1978, which was marked as Ext, G. 8. By another letter dated 7/10th July, 1978, the plaintiff informed the defendant that price escalation clause would stand deleted from the rate contract and further informed that his request to include a price variation clause was not acceptable (Ext.8 ). The defendant in turn by his letter dated 17-7-1978 did not agree to the condition of the plaintiff to delete the price variation clause and according to him, in that view of the matter, the rate contract became unilateral and thus invalid. The said letter dated 1-7-1978 has been marked as both Ext. H as also Ext.10. By anoter letter dated 11-8-1978 the defendant requested for amendment of the rate contract, which has been marked as Ext. J as also ext.11. By another letter dated 16-8-1978, which is contained in Ext.13, the defendant informed about the terms of payment and further by another letter dated 22-8-1978 (Ext. K) the defendant requested the amendment of the rate contract. 9. Admittedly, in the meanwhile, the defendant had been continuing to supply goods as and when requisitions therefor were sent by the authorised representatives of the plaintiff. 10. K) the defendant requested the amendment of the rate contract. 9. Admittedly, in the meanwhile, the defendant had been continuing to supply goods as and when requisitions therefor were sent by the authorised representatives of the plaintiff. 10. By a letter dated 29-8-1978 (Ext. M) the defendant raised a specific claim for increase in price of the articles supplied from Rs.30.20 paise to rs.32.00. It was further stated that the price of boots has increased mainly owing to increase in Excise duties of different commodies. Alongwith the said letter, the defendant annexed a chart showing comparative price structure which was prevalent at the time of submission of the tender and at the relevant time 11. The defendant further appended a chart showing detailed price costa analysis together with compact cost structure and percentage of involvement in each group so that the same may be considered by the plaintiff. 12. The defendant further contended that a total cost involvement increased to Rs.4/- per pair approximately, but he would request for price escalation @ Rs.2/- per pair approximately to cope with the situation and to maintain supplies. The defendant, therefore, by reason of the said letter gave its price as follows; "the price is Rs.32/- per pair on F. O. R. ing and forwarding charges which currency of the contract. " calcutta, inclusive of pack-will remain firm during the it was further stated therein that other terms of the contract would remain the same. 13. The defendant further stated in this aforementioned letter that inspite of above escalated price of Rs.32/- per pair, excise duty would not be charged extra. The said letter dated 29-8-1978 was marked as Ext. M. In respons to the defendants aforementioned letter, the plaintiff sent telegrams on 29-8-1978, 19-9-1978 and 22-9-1978 (Exts. NN/1 and N/2)requesting the defendant to hold discussions in the matter. 14. The defendant, however, by his letter dated 19-9-1978 (Ext.18), stated that it was not possible for him to depute an authorised representative immediately and requested the plaintiff to fix a date at the end of the said month so that his authorised representative may be sent there for holding discussions in the said matter. 15. By a letter dated 20-9-1978, the defendant, however, requested for adjustment in the delivery schedule. 15. By a letter dated 20-9-1978, the defendant, however, requested for adjustment in the delivery schedule. Thereafter, the defendant sent a telegram stating that in view of the fact that there has been a flood nobody could be sent to attend the meeting. The said telegram is contained in Ext. N/3 as also exts.20 and 21. 16. According to the defendant, Western Coalfields Ltd. however, in relation to a similar contract agreed to the request of price escalation clause by Rs.3/- per pair of bools as requested for by the defendant. The telegram of W. C. L. dated 6-11-1978 intimating its approval for price increase has been marked as Ext. N/4. 17. By letter dated 10-11-1978, the plaintiff issued a notice upon the defendant to supply remaining part of the shoes agreed to be supplied by 16-11-1978 and it was threatened therein that on his failure to do so, the risk! purchase clause shall be invoked. The said letter was marked as Ext. O. 18. The defendant by his letter dated 28-11-1978 requested the plaintiff for giving a date, so that the differences can be sorted out by holding a discussions (Ext, P ). The plaintiff, however, by another telegram dated 4-12-1978 (Ext.16) called upon the defendant to resume the supply. 19. It appears from a letter dated 13-12-1978 (Ext.17) issued by the defendant that discussions had been held by and between the representative of defendant and the Materials Manager of Central Coalfields Ltd. Ranchi, wherein it has emphasised that it had been explained to him that due to act of god, the defendant had lost the manufacturing capacity and therefore, he was helpless and the supply cannot be accelerated. It was further contended therein that he has been able to resume a small production, therefore, he is in a position to make a supply of 2,000 pieces in the month of December 1978. With regard to the price escalation, it was contended therein that in the meeting held on that date, the Materials Manager of the respondent-Company asked the plaintiff to furnish to him a certificate from a licensed Rubber dealer showing the running ptice of the Rubber at the time of R/q and also current prices of Rubber at Calcutta so that the same may be considered. By reasons of another letter dated 6th April, 1979, which was marked as Ext.24, plaintiff sent a final risk purchase notice alleging therein that they had procured boots from alternative sources at the risk and the cost of the defendant and the extra expenditure of Rs.1,44,000.00 in this respect has been incurred was to be recovered from him. 20. The defendant, by reason of his letter dated 18-2-1984 to addressed the Sr. Purchase Officer, CCL. , Ranchi expressed his surprise in receiving the said notice and also expressed his intention to call on him to explain the situation so that the parties may overcome any mis-understanding for mutual benefit. The plaintiff has contended that it had to buy the boots from the Bata india Ltd. as the defendant failed and/or neglect to perform its part of contract at the rate of Rs.36.75 paise per pair and in that view of the matter, it was entitled to a sum of Rs.1,44,000.70 paise by way of damages which sum it had to pay extra to the aforementioned Bata India Ltd. 21. The aforementioned basic facts are not in dispute. 22. However, the defendant in its written statement took up various pleas alleging therein that there had been no concluded contract and thus it is not bound to pay any damages on the basis of the purported risk purchase clause contained in the rate contract. 23. The defendant further contended that in view of terms and conditions in the notice inviting tender (Ext. A), it was entitled to the benefit of the Clause relating to escalation of price and the plaintiff oa insisting with the said Clause 1 deleted from the contract has itself committed a breach of contract. 24. In short, the defendant in his written statement reiterated its denial in respect of : " (i) the existence in fact or in law, of any allegad formal operativr and binding rate contract; (ii) the good faith and the bona fides of the alleged purchase by the plaintiff of the Miners Boots from the Bata Shoe Co. Ltd. at rs.36.75 per pair ; (iii) Any liability on tint account by the defendant whatsoever at all; (iv) The merits, the tenability, the justifiability of the alleged letter dated the 3rd May, 1978 (Annexure-4 ). (v) On any risk or costs over accruing to the defendant either in accordance with the law of any contract. Ltd. at rs.36.75 per pair ; (iii) Any liability on tint account by the defendant whatsoever at all; (iv) The merits, the tenability, the justifiability of the alleged letter dated the 3rd May, 1978 (Annexure-4 ). (v) On any risk or costs over accruing to the defendant either in accordance with the law of any contract. " 25. In view of the aforementioned pleadings of the parties, the learned court below framed the following issues : " (1) Is the suit as framed maintainable (2) Has the plaintiff got cause of action to sue (3) Was there a concluded rate contract between the plaintiff and the defendant for the supply of the goods (4) Was the defendant entitled to claim increase in the price of the miaers safety boots per pair in view of Clause 9 of the tender e t. A and whether such claim was justifiable (5) Was the plaintiff entitled to make purchase from other sources at the risk and cost of the defendant (6) Whether the plaintiff took all reasonable steps for mitigating the losses alleged to have been sustained on account of the breach of contract (7) Whether the plaintiff is entitled to claim for compensation and money as claimed for (8) Is the plaintiff entitled to any other relief ?" 26. The learned court below took up issues No.3, 4, 5 and 6 together and held that the contract entered into by the parties was a concluded one. It further held that the plaintiff was entitled to make purchase of the remaining quantity of miners boots not supplied by the defendant at its risk and costs at the prevalent market price which Bata India Ltd. offered to the plaintiff. With regard to the issue No.7, the learned court below held that the plaintiff was entitled to a decree for a sum of Rs 143733.00 by way of damages for non-supply of 21944 pairs of the Miners boots calculated on the basis of difference in price namely @ Rs.6.55 per pair. 27. Mr. M. Y. Eqbal, the learned counsel appearing on behalf of the appellant raised two contentions in support of this appeal. 27. Mr. M. Y. Eqbal, the learned counsel appearing on behalf of the appellant raised two contentions in support of this appeal. It was firstly submitted that from the pleadings of the parties as also the evidences on record, it would appear that there has baen no concluded contract entered into by and between the plaintiff and the defendant with regard to the rate at which the defendant was required to supply miners boots to the plaintiff. 28. The learned counsel contended that the defendants quotation dated 23-6-1978 being in response to the plaintiffs notice inviting tender dated 1-3-1978 was an offer which having not been accepted by the plaintiff by its letter dated 19-6-1978 (Ext. D), the said contract was not a concluded one. It was also submitted that the plaintiff could not have by reason of its subsequent offer, namely, dated 23-6-1978 (Ext F) insisted on deletion of the escalation clause which was a material term in the notice inviting tender. The learned counsel, in this connection has placed strong reliance upon in Currimbhoy and Co. Ltd. V/s. L. A. Greet and others, AIR 1933 PC 29 ; shankarlal Narayandai Mundane V/s. The New Moffussil Co. Ltd. , AIR 1946 PC 97 and Kollipara Sriramalu V/s. T. Aswatha Narayana and others, AIR 1968 SC 1028 . 29. Mr. Iqbal, next contended that in any event from the conduct of the plaintiff, it is evident that it never tried to mitigate its damages inasmuch as even assuming that the defendant had committed a breach of contract, in view of the fact that it had offered to supply the boots at the rate of Rs.32/-per pair, refusal to accept the said price and purchase of the said boots from bata Shoe Ltd. at the rate of Rs.36.75 per pair must be held to be wholly unjustified. 30. According to the learned counsel, it was obligatory on the part of the plaintiff to show that it took all reasonable steps to mitigate its losses and failure on its part to do so will disentitle it to claim damages. 31. Mr. 30. According to the learned counsel, it was obligatory on the part of the plaintiff to show that it took all reasonable steps to mitigate its losses and failure on its part to do so will disentitle it to claim damages. 31. Mr. Debi Prasad, the learned counsel appearing on behalf of the respondent, on the other hand, submitted that risk purchase clause being one of the terms and conditions of the contract, the plaintiff was entitled to invoke the same in law so as to entitle to recover the damage it suffered by way of excess payment made to a subsequent seller. 32. According to the learned counsel, such measures of claiming damages is permissible in terms of Sec.73 of the Indian Contract Act. The learned counsel, in this connection, has strongly relid upon a decision of this Court in Firm Rampratap Mahadeo Prasad and others V/s. Sasansa sugar Works, AIR 1964 Pat 250 . 33. In view of the rival contentions of the parties, the following questions will arise for consideration in this appeal:- (i) Whether a concluded contract was arrived at by, reason of the plaintiffs letter dated 19-6-1978 (ii) Whether the plaintiff was entitled to delete the price escalation clause, as contained in Clause 9 of the Notice Inviting Tender (Ext. A) (iii) Whether in the facts and circumstances of the case, the plaintiff has been able to prove that its action in purchasing quantity pf non-supplied miners boots by the defendant from M/s Bata. Shoes Ltd. was fair and reasonable and thus it was entitled to the relief? re-Questions I and II 34 As both the contentions are inter releted, the same are being taken up for hearing together. 35. The notice inviting tender (Ext. A) dated 1-3-1978 was a proposal and in response whereof, the defendant made an offer on 7-3-1978 (Ext. B.)From a perusal of the plaintiffs letter dated 19-6-1978 (Ext. D) it appears to here stated as fellows :- "your above referred quotation has been accepted for yearly rate contract for supply of Safety Rubber Canvas Boots for miners tyre II, ISI marked and DGMS approved as per ISI 3976-75 at a unit price of Rs.30.20 per pair F. O. R. Calcutta inclusive of excise Duty, the Sales tax extra, to our (B and K), (A), (O) and kathara Area. Our formal rate contract with detailed terms and conditions in under issue. Our formal rate contract with detailed terms and conditions in under issue. In the meantime, you are requested to please arrange supplies to the direct demanding officer against the demand order if placed with you 36. According to Mr. Eqbal, if by reason of Ext. D the plaintiff had made an unequivocal acceptance of the offer made by the defendant, then and then only, the same will fructify in a concluded contract. 37. Mr. Debi Prasad, on the other hand, submitted that as the formal rate contract with detailed terms and conditions was to follow ; by reason of ext. D, the offer of the defendant was accepted subject to the terms and conditions which were to be contained in the rate contract and which in fact was issued by the plaintiff on 26-6-1978 (Exts. F and F/l ). 38. From the facts, as stated hereinbefore, the clear picture which emerges is that defendant never accepted the deletion of escalation clause from the notice inviting tender which was to form part of the agreement itself. 39. It is further clear that the defendant had all along been insisting for inclusion of the escalation clause and in fact, by a letter dated 29-8-1978 (Ext. M), it made a specific claim for increase in the price of goods from rs.30.20 paise to Rs.32.00. It is, therefore, clear that the purported acceptance of offer made by the defendant in response to the plaintiffs proposal was a counter-proposal and not an absolute acceptance of the offer. 40. Section 7 of the Indian Contract reads as follows ;- "acceptance must be absolute.-In order to convert a proposal into a promise the acceptance must :- - (i) be absolute and unqualified. (ii) be expressed in some usual and reasonable prescribed the manner in which it is to be accepted. If the proposal scribes a manner in which it is to be accepted, and the acceptance is not made in such manner, the proposer may, within 3 reasonable time after the acceptance is communicated to him, insist that his proposal shall be accented in the prescribed manner, and not otherwise ; but, if he fails to do so, he accepts the acceptance. " 41 It is well known that except consensus ad idem, there can be no contract. The consideration for an object of agreement must be something which both sides agree with each other. 42. " 41 It is well known that except consensus ad idem, there can be no contract. The consideration for an object of agreement must be something which both sides agree with each other. 42. The letter of the plaintiff dated 19-6-1978 (Ext. D has to be read in this context. In that letter, there is nothing to show that the plaintiff expresed its intention to delete the escalation clause which is a material condition in a commercial contract. The defendant, therefore, began to make supplies in terms of the plaintiffs aforementioned letter dated 19-6-1978 treating the same to be an absolute acceptance of its offer. Reading the letter, as a whole, it is not possible to accept the contention that the same was intended to make a substantial variation in the contract, inasmuch as, as indicated hereinbefore, there is nothing to show that the rate agreement was to contain terms and conditions which would be at substantial variance with the proposal made by the plaintiff itself in response whereof, the defendant made the offer by reason of Ext. B. 43. However, if the contention of Mr. Debi Prasad is accepted that the acceptance of the offer was a conditional one and subject to the terms and conditions of the formal rate contract, in such an event, it must be held that no concluded contract was arrived at by and between the parties. 44. In Haji Mohammad Haji Jiya V/s. E. Spineer and others, ILR 24 bombay, 511, Sir L. H. Jenkins, Kt. Chief Justice, after referring to Sec.7 of the Contract Act, observed that until there is such an acceptance the stage of negotiations has not been passed, and no legal obligation in imposed. Similarly, and departure from the terms of the offer or any qualification vitiates the acceptance it accompanies unless it is agreed to by the person from whom the offer comes. In other words, an acceptance with a variation is no acceptance ; it is simply a counter proposal, which must be accepted by the original promisor before a contract is made. 45. Further, in this case, admittedly, the formal rate contract (dated 26-6-1978 in duplicate was sent to the defendant for his acceptance of the terms contained therein by putting his signature thereupon It is admitted that the defendant never returned the said formal rate control upon putting his signature in a copy thereof. 46. 45. Further, in this case, admittedly, the formal rate contract (dated 26-6-1978 in duplicate was sent to the defendant for his acceptance of the terms contained therein by putting his signature thereupon It is admitted that the defendant never returned the said formal rate control upon putting his signature in a copy thereof. 46. Bombay High Court in Haji Mohammad Haji Jiyas case (supra)considered such a situation and held that because the acceptance was not shown to have been returned, no inference could be drawn that the defendant must have assented to the terms in which it failed to correspond to his offer. It further held it is clear that a person making a proposal cannot impose on the party to whom it is addressed the obligation to refuse it under the penalty of imputed assent, or attach to his silence the legal result that he must be deemed to have accepted it. 47. Mr. Debi Prasad submitted that in any event, the defendant must be held to have accepted the counter offer inasmuch as it began to supply the poods which continued upto 29-11-1978, the learned counsel, therefore, submitted that Ext. F reflects a concluded contract. 48. Mr. Debi Prasad, in this connection, strongly relied upon Exts, 12 and 13, which according to him, signify the acceptance of the offer of plaintiff by the defendant, although the plaintiff did not agree to the incorporation of the escalation clause in the contract. It appears from Ext.13 which is a letter dated 16th August, 1978 iisued by the plaintiff that thereby, it reminded the defendant about its assurance to provide them with necessary amendment in inspection Clause which was still awaited. The said letter was issued in response to the defendants letter dated 23-6-1978. 49. In that letter, it was further mentioned that payment in respects of the goods supplied had not been made and if payments were not made promptly, further supplies might have be stopped. 50. It is true that from Exts.12 and 13, it does not appear that the defendant in his letter made any grievance about the non-incorporation of the price escalation clause. For the purpose of finding out as to how and when a concluded contract had been arrived at by and bstween the parties, the entire conduct of both the parties are relevant. 51. For the purpose of finding out as to how and when a concluded contract had been arrived at by and bstween the parties, the entire conduct of both the parties are relevant. 51. It is not a case where the offer made by the defendant was unequivocally accepted, subject to preparation of formal document but even in such a case, where the agreement is made subject to certain conditions thence specified or to be specified by the party making it, then until those conditions are accepted, there is no final agreement such as the court will enforce. (See : Raingold V/s. Bromley, reported in 1931 All England Law Reports (Rep ) 822. 52. It is, therefore, a question of construction where the execution of the formal contract is a condition or term of the bargain or whether it is a mere expression of the desire of the parties, as to the manner in which the transaction already agreed to will in fact go through. In the former case, there is no enforceable contract either because the condition is unfulfilled or because law does not recognise a contract to enter into a contract. In the latter case, there is not a binding contract. Reference, in this connection may be made to Shankarlal Narayandas mundane V/s. The New Mofussil Co. Ltd. and others, AIR 1946 PC 97, wherein the judicial committee laid down the law thus:- "it is a question of construction whether the execution of the further contract is a condition or term of the bargain, or whether it is a mere expression of the desire of the parties as to the manner in which the transaction already agreed to will in fact go through. " 53. In Kollipara Sriramuli V/s. T. Aswatha Narayana, AIR 1968 SC 1028 , the Supreme Court held that: "it is well established that a mere reference to a future formal contract will not prevent a binding bargain between the parties refer to the preparation of an agreement by which the terms agreed upon are to be put in a more formal shape does not prevent the existence of a binding contract. There are, however, oases where the reference to a future contract is made in such terms as to show that the parties did not intend to be bound until a formal contract is signed. There are, however, oases where the reference to a future contract is made in such terms as to show that the parties did not intend to be bound until a formal contract is signed. The question depends upon the intention of the parties and the special circumstances of each particular case. " in that decision, the Supreme Court referred with approval the decision of the Privy Council in Currimbhoy and Co. Ltd. V/s. Greet, AIR 1933 PC 29. 54. It is well known that an acceptance with a variation is no accep-tance. It ia a simple counter proposal which must be accepted by the offerer before a contract is made. (See : Pacific Mineral Ltd. V/s. Singhbhum Mining Syndicate, AIR 1938 calcutta 343 and Haji Mohamad Haji Jiya case (supra ). 55. However, in this case, as noticed hereinbefore, Mr. Debi Prasad has contended that the contract came into being by reason of inaction on the part of the defendant to insist upon the escalation clause. Although, in a certain class of cases, a concluded contract can be presumed by applying the doctrine of acceptance sub silentio, but, as is well-known its application is very limited. 56. However, in this case, from the records, it is evident that not only the defendant had all along been insisting for insertion of the price escalation clause but also in fact, gave its offer of Rs.32.00 per pair on F. O. R. Calcutta. In this case, it is further evident from Ext, 17 that the plaintiff even agreed to give enhance price to the defendant, subject to his furnishing certain certificate which the defendant did vide Ext-U series. 57. However, from the conspectus of events, it appears that immediately thereafter, the risk purchase clause was invoked and within a period of about three months the balaace quantity of the goods were purchased by the plaintiff from the Data India Ltd. as would be evident from Ext.24, which is the final risk purchase notice dated 6-4-1979. 58. An implied contract brought only by the conduct of the parties merely give rise to a case of quasi-contract as envisaged under Sec.70 of the Contract Act. (See : Craven Ellis V/s. Canons Ltd. (1936 (2) All England Law Reports, 1066 ). 59. Mr. 58. An implied contract brought only by the conduct of the parties merely give rise to a case of quasi-contract as envisaged under Sec.70 of the Contract Act. (See : Craven Ellis V/s. Canons Ltd. (1936 (2) All England Law Reports, 1066 ). 59. Mr. Debi Prasad, in support of his contentions relied upon in Heavy engineering Corporation Ltd. V/s. Crompton Greaves Ltd, AIR 1972 Calcutta 217 ; Haji Mohammad Ishaq Wd. S. K. Mohammad and others, V/s. Mohammad iqbal and Mohammad All and Co. , AIR 1978 SC 798 and in Shiv Pal Koran kholo and others V/s. State ofu. P. and others, AIR 1988 Allahabad 268 the decision cited by Mr. Prasad are not applicable to the facts of this case. 60. In Heavy Engineering Corporation Ltd. V/s. Crompton Greaves Ltd. , AIR 1972 Calcutta 217, it was held that the respondents had accepted the terms contained in the counter offer. In that situation, it was held : "thus even if the tender was submitted subject to the special conditions, the said special conditions never became part of the contract between the parties. The said special conditions never applied to the contract between the parties. " In this case, Clause 9 of the notice inviting tender was a part of the notice inviting tender. 61 In Haji Mohammad Ishaq V/s. S. K. Mohammed and other, AIR 1978 sc 798 , the Supreme Court was dealing with a situation that where the plaintiff had been proceeding on the basis of the express contract but it was found that although, no express contract could be proved, the case pleaded would bring the matter within the purview of an implied contract brought about by the conduct of the parties, namely, supply of the goods by the defendant and their acceptance by the plaintiff. In that case, it was held that goods were supplied on an implied contract and thus the plaintiff was entitled to receive the price thereof. It is, thus, not a case where the plaintiffs counter proposal to delete the price escalation clause from the notice inviting tender was accepted by the defendant. 62. In that case, it was held that goods were supplied on an implied contract and thus the plaintiff was entitled to receive the price thereof. It is, thus, not a case where the plaintiffs counter proposal to delete the price escalation clause from the notice inviting tender was accepted by the defendant. 62. In Shiv Pal Karam Kholi and others V/s. State of U. P. and others, AIR 1988 Allahabad 268, a Devision Bench of the Allahabad High Court was dealing with a case of allotment of House under Government Housing Scheme wherein the Government at a later stage of the contract increased the costs and the allotee paid the increased payment and obtained possession. In that situation, it was held that the contract being a concluded contract, the petitioner can not be allowed to re-open the question on the ground of estoppel. 63. Taking thus all facts and circumstances into consideration in my opinion, it is clear that no concluded contract came into being by and between the plaintiff and the defendant and thus the plaintiff in law could not have been enforced the risk purchase clause. Only an implied contract came into being relation to supply of goods wherefor the defendant became entitled to recover the price actually supplied by him to the plaintiff. Re-Question No. III 64. In view of my findings aforementioned, it was not necessary to deal with the other questions but as the matter has been argued at length, I intend to deal with the same very briefly. 65. A risk purchase clause is not unconstitutional or against public policy. Such a risk purchase clause is not hit by Sec.23 of the Indian contract Act, nor such a claim is unconscionable. 66. Reference, in this connection, may be made to a recent decision of this court in M/s Kumarjuri Fire Bricks and another V/s. Bokaro Steel Ltd. Company, (F. A. No.65 of 1982 (R), disposed of on 6th April, 1990 ). 67. There cannot be any doubt that in a case of breach of contract, the plaintiff is entitled to damages suffered by it either in terms of Sec.73 or section 74 of the Indian Contract Act, even if no such clause exists in the contract. 68. Where a party breached a condition of contract the other contracting party suffering losses pursuant thereto is entitled to damages. 68. Where a party breached a condition of contract the other contracting party suffering losses pursuant thereto is entitled to damages. However, even in such a case, the plaintiff can not have unequivocal descretion nor can it claim damages arbitrarily. Such a risk purchase clause is subject to the provision of law with regard to the reasonable conduct of the parties. A ieasonable conduct on the part of the plaintiff is also necessary in view of the fact that the plaintiff is a state within the meaning of Article 12 of the Constitution of India. (See : Dwarka Das Mafatia V/s. The Board of Trustees of the Port of bombay reported in AIR 1989 S. C.1642. 69. In Halsburys Laws of England (4th Edition) Vol.12 at para-1193, the law has been stated thus :- "this plaintiff must take all reasonable steps to mitigate the loss which he has sustained consequent upon the defendants wrong, and, if he fails to do so, he cannot claim damages for any such loss which he ought reasonably to have avoided. " 70. In Cheshire and Fifoots law of contract (ninth edition), Page-604, the learned authors state :- "the rules given above are subject to this limitation, that the law imposes a duty upon the plaintiff to take all reasonable steps to mitigate the loss caused by the breach of contract, and debars him from claiming compensation for any part of the damage which is due to his neglect to do so. " 71. In Ansons law of contract (25th Edition) at page-570, the law has been stated thus : -"it follows from the rule that damages are compensatory only that one who has suffered less from a breach of contract must take any reasonable steps that are available to him to mitigate the extent of the damage caused by the breach. He cannot claim to be compensated by the patty in default for loss which is really due not the breach but to his own failure to behave reasonably after the breach. " 72. In The Union of India V/s. The Wen Punjab Factories, AIR 1966 SC 395 , the Supreme Court held that it is well settled that the market price at the time of damage is the measure of damages to be awarded and the contract price is no measure of damages to be awarded. 73. " 72. In The Union of India V/s. The Wen Punjab Factories, AIR 1966 SC 395 , the Supreme Court held that it is well settled that the market price at the time of damage is the measure of damages to be awarded and the contract price is no measure of damages to be awarded. 73. In this case, there is no dispute that the defendant himself offered to supply miners boots at the rate of Rs.32/- per palr. Such rate, therefore, was the market rate which was prevalent at that time. In such a situation, the plaintiff could have purchased goods from the defendant and sue him for damages on the basis of difference in price. 74. In Payzu Ltd. V/s. Sounders, 1918-1919 All England Law Reports (Rep.), 219 : 1919 (2) Kings Bench, 586) Scrutton, L. J. observed : "whether it be mere correct to say that a plaintiff must minimise his damages, or to say that he can recover no more than he would have suffered if he had acted reasonably, because any further damages do not reasonably follow from the defendants breach, the result is the same. The plaintiff must take "all reasonable steps to mitigate the loss consequent on the breach" and this principle "debars him from claiming any part of the damage which is due to his neglect to take such steps," British Westing house Electric and Manufacturing Co. V/s. Underground Electric railways Co. of London, Ltd. (1) Per Lord Haldana, L. C. Counsel for the plaintiffs has contended that in considering what steps should be takcd to mitigate the damage all contractual relations with the party in default must be excluded. That is contrary to my experience. In certain cases of personal service it may be unreasonable to expect a plaintiff to consider an offer from the other party who has grossly injured him : but in commercial contracts it is generally reasonable to accept an offer from the party in default. " 75. In that view of the matter, there cannot be any doubt that the plaintiff, if at all coale sue the defendant for damages only on the differences in price at the rate of Rs 1,80 per pair of Miners boots. 76. " 75. In that view of the matter, there cannot be any doubt that the plaintiff, if at all coale sue the defendant for damages only on the differences in price at the rate of Rs 1,80 per pair of Miners boots. 76. In view of the findings aforementioned, this appeal is allowed and (he judgment and decree passed by the learned court below is set aside, but in the facts and circumstances of the case, the parties are directed to bear their own costs throughout. Appeal allowed.