Judgment :- Defendant is the appellant. PW-1 the Special Officer of the plaintiff published Ext. A1 notifying the right to vend mutton in the three permanent stalls in Pathanamthitta market for one year ending with 31-2-1981 would be auctioned on 4-3-1980. Defendant deposited earnest money of Rs.500/- and participated in the auction. He was the highest bidder. He did not deposit one-fourth of the bid amount and also did not execute the necessary agreement. Therefore Ext. A3 notice was issued by the plaintiff to the defendant intimating him that the sale is cancelled, and that the said right would be re auctioned at the risk and costs of the defendant. Defendant sent Ext. A-4 reply denying his liability. Thereafter the plaintiff published Ext. A5 notice for re-auction and in the auction held on 18-3-1980 the highest bid was only Rs. 5,001/-, whereas the highest bid by the defendant in the previous auction was Rs. 12,380/-. The suit was filed for recovery of the difference in the sale amount as damages after deducting Rs. 500/-the earnest money which was forfeited. 2. Defendant contended that there was only a provisional acceptance by the plaintiff; there was no concluded contract. Therefore, he maintained he cannot be held liable in damages for breach of contract. It was also contended that inasmuch as the defendant did not deposit one-fourth of the sale amount as per Ext. A1 notification, no confirmation was possible and on that ground also there was no concluded contract. 3. The trial court decreed the suit. The appeal by the defendant was dismissed by the lower appellate court. Now the defendant has come up in Second Appeal. 4. As noted, the main contention of the defendant was that there was no concluded contract as there was no unconditional acceptance. If there was no concluded contract, then the defendant cannot be made liable for breach of contract. It was also his case that, no acceptance in the circumstance was possible. On the other hand the learned counsel for the respondent plaintiff contended, PW-1 the Special Officer since was competent to accord confirmation, no further steps were necessary and,, therefore there was a concluded contract. 5. S.87(1) of the Kerala Municipalities Act (for short 'the act) enjoins that the council can enter into and perform all contracts as it may consider necessary. 5. S.87(1) of the Kerala Municipalities Act (for short 'the act) enjoins that the council can enter into and perform all contracts as it may consider necessary. Clause (c) of sub-section (2) of the Act states that, the Commissioner shall not be entitled to make a contract unless the tender has been accepted by the competent authority. A bid at a stage is merely an offer. The highest bidder is the offer. The bid may or may not be accepted by the auctioneer. As per S.412(1) of the Act, when a Municipality is constituted for the first time, the Government may appoint a Special Officer to exercise the powers, discharge the duties and perform the functions of a municipal council, its Chairman and Commissioner. PW-1 was the Special Officer. Therefore, in view of the said provision PW-1 was competent to accept the bid. The question precisely for consideration is whether the highest bid by the defendant was accepted; whether there was unconditional acceptance which alone can conclude a contract. 6. With due regard to the nature of the contention raised, it is necessary to note the conditions of sale in Ext. A1. Clauses 5,6 and 7 of Ext. Al, in the circumstance, are of importance. Clause 5 enjoins that the highest bid would be provisionally accepted and that the Special Officer has got the absolute right to confirm or reject the bid; clause 6 states that immediately on provisionally accepting the bid, one-fourth of the auction amount has to be deposited as security, and clause 7 among other things states, within a week of confirmation the bidder has to execute an agreement on a stamp paper at his expense. As has already noted the case of the defendant is that there was only a provisional acceptance and the sale was never confirmed. It is also his case that inasmuch as he did not deposit the one-fourth of the sale amount as security, no confirmation could have been accorded. Consequently, according to him there was no concluded contract. In paragraph 2 of the written statement the defendant specifically contended, since there was no concluded contract, the suit is not maintainable. It is also his case that inasmuch as he did not deposit the one-fourth of the sale amount as security, no confirmation could have been accorded. Consequently, according to him there was no concluded contract. In paragraph 2 of the written statement the defendant specifically contended, since there was no concluded contract, the suit is not maintainable. In paragraphs 4 and 5 the defendant maintained that, the bid was accepted only provisionally, that the same would become a concluded contract only on confirmation, and that such confirmation as per the notification could only be on deposit of the security amount. According to the defendant the sale was cancelled because the acceptance was provisional and that as he failed to deposit the security amount. 7. A Division Bench of the Madras High Court in Somasundaram Pillai v. Provincial Government of Madras (AIR 1947 Mad. 366) held that for an enforceable contract there should be an offer and on unconditional acceptance, and a person who makes such an offer has the right to withdraw it before acceptance, in the absence of a condition to the contrary supported by consideration. The decision proceeded to hold that a provisional acceptance cannot make a binding contract. The court held: "A provisional acceptance cannot in itself make a binding contract. There must be a definite acceptance or the fulfilment of the condition on which a provisional acceptance is based". This decision was followed by a Division Bench of this court in State of Kerala v. A.R.A.S. Arumughaswamy Nadar & Co. (1964 KLT 203). A Division Bench of the Patna High Court in Abdul Rahim v. Union of India (AIR 1968 Patna 433) also followed the decision in Somasundaram Pillai's case (AIR 1947 Mad. 366) and held that one who bids at an auction thereby does not conclude a contract, but only makes an offer; and it is open for him to withdraw the offer before acceptance. The decision also held that where the auctioneer has full power to confirm the sale, the sale would be complete when the hammer falls. The Supreme Court in the decision in Union of India v. B.W. Ram (AIR 1971SC 2295) held that till the confirmation the person whose bid has been provisionally accepted is entitled to withdraw his bid. 8. From the above it is clear that if the acceptance was provisional the same cannot bring about a concluded contract. The Supreme Court in the decision in Union of India v. B.W. Ram (AIR 1971SC 2295) held that till the confirmation the person whose bid has been provisionally accepted is entitled to withdraw his bid. 8. From the above it is clear that if the acceptance was provisional the same cannot bring about a concluded contract. As has noted, clause 5 of Ext. A1 also states that the highest bid would only be provisionally accepted. Ext. A2 is the sale diary. PW-1 and the defendant have signed Ext. A2. There, it is stated that the sale was provisionally confirmed. Ext. A3 is the notice issued by PW-1. In that what PW-1 stated is that the sale was confirmed provisionally and that since the defendant did not deposit the security as per clause 6 of Ext. A1, the sale which was provisionally confirmed in the name of the defendant is cancelled and that the earnest money deposit Rs. 500/- has been forfeited. It also states that he would be liable for the loss of the municipality on reauction. What is to be noted is, Ext. A1 contemplates only a provisional acceptance and the same is confirmed by Ext. A2 sale diary and even by Ext. A3 notice issued by the plaintiff. To crown all this even in Ext. A8 suit notice what is stated is since the defendant did not deposit one-fourth of the sale amount on the provisional confirmation, a reauction was conducted on 18-3-1980 on the risk and costs of the defendant and that as per the same the municipality has sustained a loss of Rs. 7,379/- for which the defendant is liable. A provisional confirmation followed by the deposit of one-fourth of the sale amount as security since is contemplated even in Ext. A1, confirmation was necessary; and even according to the plaintiff, no such confirmation was made. It is true PW-1 was competent to accept the bid; but the question is whether he accepted it as is now claimed. In the face of the statements in Exts. A2, A3 and A8 that confirmation was only provisional, it is not open to the plaintiff to say that since PW-1 affixed the signature in Ext. A2, the sale was confirmed and thus there was a concluded contract. Ext. A7 is the sale diary concerning the re-auction. There also it is seen, the successful bidder and PW-1 have signed. A2, A3 and A8 that confirmation was only provisional, it is not open to the plaintiff to say that since PW-1 affixed the signature in Ext. A2, the sale was confirmed and thus there was a concluded contract. Ext. A7 is the sale diary concerning the re-auction. There also it is seen, the successful bidder and PW-1 have signed. But, there is. no statement that the sale was only provisionally confirmed; the distinction in the procedure adopted in Ext. A2 and A7 is pronounced. The case now sought to be pursued is totally inconsistent with what PW-1 himself has stated in Exts. A2, A3 and A8. PW-1 in his cross-examination said that for confirmation, resolution is necessary, and according to him since the power of the council is vested in him he would pass the resolution. But no such resolution was produced. From the said evidence it is difficult to accept the case of the plaintiff that there was acceptance. 9. As has noted, clause 6 of Ext. Al requires deposit of one-fourth of the sale amount as security. The sequence of steps contemplated by Ext. A1 would reveal that for the confirmation deposit of one-fourth of the bid amount was necessary. It was held in the decision in State of Madhya Pradesh v. Firm G. Dass (AIR 1973 SC1164) when a deposit is condition precedent for the acceptance of the tender, in absence of any power to waive such condition the acceptance cannot be treated as valid without satisfying the condition. In the decision in State of U.P. v. Kishori Lai (AIR 1980 SC 680) the highest bidder though affixed his signature in the respective bid sheets in token of his acceptance, did not deposit one-sixth of the bid amount as was required. It was held that since the bid offered was not sanctioned by the concerned authority the same cannot be said to have been finally accepted. Thus in the given circumstance there could not have been a valid confirmation in as much as the one-fourth of the sale amount was not deposited as security. The decision in Tellicherry Municipal Council v. V.P. Samsu (1985(1) ILR 615) relied on by the respondent is distinguishable. In that case the bid was accepted by the plaintiff municipality as per their resolution and was communicated to the defendant. In the case in hand there was no resolution accepting the bid. The decision in Tellicherry Municipal Council v. V.P. Samsu (1985(1) ILR 615) relied on by the respondent is distinguishable. In that case the bid was accepted by the plaintiff municipality as per their resolution and was communicated to the defendant. In the case in hand there was no resolution accepting the bid. In the face of Exts. A2, A3 and A8, PW-1 though was competent to confirm the sale cannot contend that there was acceptance; what is disclosed is that there was only a provisional acceptance. In that view, there could have been no concluded contract and therefore the defendant could not be held liable for damages. Of course inasmuch as he failed to comply with the conditions the earnest money deposited by him was rightly forefeited; but as noted the claim was after deducting the said amount. The judgments of the courts below are liable to be set aside. I do so. In the result the appeal is allowed and judgments and decrees of the courts below are set aside. There will be no order as to costs.