JUDGMENT 1. - This judgment will also dispose of the cross-objections filed by the plaintiff-respondent in this appeal arising out of the judgment and decree dated 29.10.1985 passed by the learned District Judge, Jhunjhunu in Civil Suit No. 1/82. The brief facts are as under: 2. The defendant-appellant had invited tender (Ex.1)(first tender) for construction of a ward and operation theatre in Bhagwan Das Khetan Hospital, Jhunjhunu (BDK Hospital). The plaintiff-respondent submitted his-tender undertaking to do the work for Rs. 86,101/- and, in accordance with the terms of the tender, deposited Rs. 719/- as security. The defendant-appellant issued letter dated complete it by 22-12-1978. Vide letter dated 13.6.1978 (Ex.2) stating that the tender dated 15.2.1978 submitted by the plaintiff-respondent.was accepted for construction of a ward and operation theatre in old Hospital Complex, Jhunjhunu and he was required to commence his work on 23.6.1978 and 28.8.1978 (Ex.3) the plaintiff-respondent wrote that the tender invited was for BDK Hospital, whereas, in the letter (Ex. 2) the site has been shown as old Hospital Complex and that the matter be clarified and layout plan be given to him. Vide letter dated 17.10.1978 (Ex. 4) the Executive Engineer of the Public Works Department in the office of the appellant, wrote to the plaintiff-respondent stating that the tenders were invited for the work to be constructed in BDK Hospital, but before the issue of work order the site had been decided for Old Hospital Complex and that the lay out plans were to be given to him but he failed to take them. The plaintiff-respondent was asked to proceed in the matter immediately. Vide letter dated 15.11.1978 (Ex. 5) the plaintiff-respondent stated that the acceptance letter (Ex. 2) did not relate to the tender submitted by him as there was change in the site and, as such he was not ready to carry on the work in respect of the work order (Ex.2) issued to him. Vide letter dated 29.12.1978 (Ex. 6) the plaintiff-respondent wrote to Executive Engineer of the appellant. stating that although the rates had increased since the time that he submitted the tender, he was still prepared to do the work at the site for which the tender was submitted. Vide letter date 30.12.1978 (Ex. Vide letter dated 29.12.1978 (Ex. 6) the plaintiff-respondent wrote to Executive Engineer of the appellant. stating that although the rates had increased since the time that he submitted the tender, he was still prepared to do the work at the site for which the tender was submitted. Vide letter date 30.12.1978 (Ex. 7) the Executive Engineer wrote to the plaintiff-respondent that he had failed to commence the work and, as such, penalty amounting to 10% on the estimated cost of whole of the work was levied on him and the work order stood withdrawn. The plaintiff-respondent filed an appeal dated 23.5.1979 (Ex. 9) to the Superintending Engineer against imposition of penalty. His appeal was dismissed and, vide letter dated 21.8.1981 (Ex. 8) the intimation in this respect was sent to him. 3. Another tender (Ex. 10) (second tender) was invited by the defendant-appellant for construction of a ward and operation theatre in Zanana Hospital, Jhunjhunu of the estimated value of Rs. 65,749/-. The plaintiff-respondent submitted a tender agreed to make the construction for Rs. 78,379/- and his tender was accepted vide letter dated 7.2.1979 (Ex 12). The plaintiff-respondent carried on the work in regard to this second tender and submitted his bills. The defendant-appellant recovered a sum of Rs. 8988.39 as the amount of penalty from the bills of the plaintiff-respondent for the work done by him in the second tender. Since the sum of Rs. 719/- deposited by the plaintiff-respondent as security against the first tender was not refunded by the defendant-appellant, who also recovered the sum of Rs. 8988.39 p. as the amount of penalty imposed in respect of non-commencement of the work against the first tender, from the bills of the work done against the second tender, on 2.1.1989, the plaintiff-respondent instituted a suit against the defendant-appellant pleading that security amount of Rs. 719/- deposited by him against the first tender had been wrongfully forfeited by the defendant-appellant, who had no right to recover any amount by way of penalty from him and that a sum of Rs. 8988.39 p. recovered by the defendant-appellant from the bills for the work done against. the second tender was payable by the defendant-appellant to the plaintiff-respondent. 719/- deposited by him against the first tender had been wrongfully forfeited by the defendant-appellant, who had no right to recover any amount by way of penalty from him and that a sum of Rs. 8988.39 p. recovered by the defendant-appellant from the bills for the work done against. the second tender was payable by the defendant-appellant to the plaintiff-respondent. The plaintiff-respondent also claimed other charges like loss of profit, payment of amount by way of salary of Chowkidar and hiring of ballies and phantas for the side at BDK Hospital for doing the work against the first tender. In this way, he filed a suit for recovery of Rs. 17,843.89 p. against the defendant-appellant. The suit was contested by the defendant-appellant. After framing the necessary issued and recording the evidence produced by the parties, the learned trial court came to the conclusion that the plaintiff-respondent was liable to pay the amount by way of penalty as he had not carried on the work against the first tender but the defendant-appellant had no right to recover the same from the bills for the work done against the second tender. The learned trial court held that the plaintiff-respondent was not entitled to claim any charges by way of salary stated to have been paid to Chowkidar and hiring of ballies and phantas and on account of loss of profit and was entitled to recover the sum of Rs. 719/- deposited by him as security against the first tender besides a sum of Rs. 8988.39 p. deducted from his bill by way of penalty imposed on account of non-performance of the contract against the first tender. In this view of the matter, vide the impugned judgment dated dated 29.10.1985, the suit filed by the plaintiff-respondent has been decreed against the defendant-appellant for Rs. 9056.39p. with proportionate cost. Feeling aggrieved, the defendant-appellant has filed this appeal under section 96 of the Code of Civil Procedure. Cross-objections have been filed by the plaintiff-respondent challenging the finding of the learned trial court that the penalty could be imposed by the appellant on the plaintiff-respondent on account of the latter not having carried out the work against the first tender and also against the dismissal of the suit in regard to the other charges claimed in the suit by the plaintiff-respondent. 4. 4. I have heard the learned counsel for the parties and have also perused the record of the case. 5. It is not disputed that the first tender was invited in regard to the construction of a ward and operation theatre in BDK Hospital and in response thereto the plaintiff-respondent had submitted his tender for the site in question, but instead of accepting the offer in the form of tender submitted by the plaintiff-respondent the defendant-appellant issued the work order in respect of the other site which was not the subject mat','r of the first tender for which the offer was submitted by the plaintiff-respondent. Admittedly, the plaintiff-respondent did not agree to carry out the work in accordance with the work order and, as such, the issuing of work order only amounted to a counter offer by the appellant and the having not been accepted by the plaintiff-respondent no contract came into existence on submission of the tender by the plaintiff-respondent or on issuing of the work order for another site. No contract having come to existence in regard to the first tender the terms and conditions attached with the tender which authorised the appellant to impose penalty could not be enforced as that right was given to the appellant in case of breach of the terms of the contract regarding the first tender. In this view of the matter, it has rightly been contended by the learned counsel for the plaintiff-respondent that there being no contract no breach thereof can be said to have been committed and no amount by way of penalty could have been imposed in accordance with the terms attached with the first, tender and further that the plaintiff-respondent had a right to get back the amount deposited by way of security. The position that the offer submitted against the first tender by the plaintiff-respondent having not been accepted by the appellant who issued a counter offer no contract came into existence has not been disputed. In this view of the matter, the cross objections have to be accepted to the extent that the learned trial court's finding that the appellant was entitled to impose the amount of penalty on the plaintiff-respondent is to be set aside. 6. In this view of the matter, the cross objections have to be accepted to the extent that the learned trial court's finding that the appellant was entitled to impose the amount of penalty on the plaintiff-respondent is to be set aside. 6. Now coming to the other claims of the plaintiff-respondent in respect of which the cross objections have been filed by him, it may be noted that the plaintiff-respondent himself is contending that no contract had come into existence in regard to the first tender. The claims made by him in respect of salary of Chowkidar and hiring of ballies and phantas etc. and loss of profit in regard to the first tender could arise if the contract had come into existence between the parties. This being not the position, the plaintiff-respondent could not claim any amount on the above said counts. Even otherwise, the learned trial court on facts also rightly disallowed the claim on these charges as there was no commencement of the work and the plaintiff-respondent had refused to commence the work as the site in question had been changed. No interference is called for in the impugned judgment in respect of the claims of the plaintiff-respondent disallowed by the learned trial court. 7. No other point has been raised before me.For the reasons mentioned above, the cross-objections are allowed to the extent that the learned trial court's finding that the appellant was entitled to imposed the penalty for non-performance of the contract against the first tender is set aside. The appeal being without any merit is dismissed and the cross-objection also are dismissed except to the extent mentioned above. In the circumstances of the case, the parties are left to bear their own costs of the' appeal and the cross objections.Appeal and Cross-objection disallowed. *******