SATYA BRATA SINHA, J. ( 1 ) A letter dated 8-10-1995 cancelling acceptance of an offer made by the petitioners as regards supply of loading arms to the respondents Nos. 1 and 2 pursuant to a request for quotation for supply of loading arms as contained in Annexure 'l' to the writ application as also issuance of a global tender notice issued by the first respondent in terms of its letter dated 10th October, 1995 in Annexure 'm' thereto are the subject matter of the present writ application. ( 2 ) THE fact of the matter shortly stated is as follows :-A request for quotation for supply of loading arms was made by the petitioner on or about 14-9-1994 in relation where two bids were required to be submitted in two parts; (i) the unpriced bid complete with technical and commercial details and (ii) price bid complete with all technical details and commercial details as also with full price details. ( 3 ) TECHNICAL specification were required to be given in terms of the requisition attached thereto and in case of revision the same were required to be spelt out. The petitioners submitted their technical commercial bid and price bid on 24-10-1994. Various letters were exchanged and discussions were held for a period of over nine months. By a fax dated 5-8-1995 the offer of the petitioner was accepted by the respondent No. 1 as contained in Annexure-I to the writ application; one of the clauses whereof required joint signature and acceptance of purchase orders by the petitioners as also its American collaborator O. P. W. Engineering System, USA (hereinafter referred to as the 'collaborator' ). On the same date the said offer was accepted by the petitioner but by a fax dated 10th August, 1995 the respondent No. 1 requested the petitioners to hold action on fax of acceptance, which the petitioner agreed in terms of its fax message dated 14th August, 1995 without prejudice to its rights and contentions. However, on 8-10-1995 the respondent No. 1 intimated to the petitioner by a fax message that the earlier fax of acceptance of offer dated 5-8-1995 was cancelled and a decision to reissue tender was intimated to it whereafter on 10th October, 1995 a global notice was issued inviting tenders for supply of loading arms. However, on 8-10-1995 the respondent No. 1 intimated to the petitioner by a fax message that the earlier fax of acceptance of offer dated 5-8-1995 was cancelled and a decision to reissue tender was intimated to it whereafter on 10th October, 1995 a global notice was issued inviting tenders for supply of loading arms. ( 4 ) THE petitioners contend that they were to supply loading arms to be used in the petroleum industry under technical collaboration with M/s. Engineering System, U. S. A. They submitted bid for 1000 numbers of loading arms to be installed for Indian Oil Corporation at Panipath terminal and after due tender and consideration processes, the respondent No. 1 accepted the same upon holding discussions and evaluation of technocommercial aspects and were awarded a firm order to supply 840 numbers of loading arms purely on merits which was accepted by them. But the impugned action was taken unilaterally in an arbitrary manner at the instance of one M/s. Emco Wheaton, U. K. as some sort of representation was filed by it before the Hon'ble Minister of Petroleum. ( 5 ) THE writ petition was moved on 16-10-1995 and B. Ghosh, J. passed an interim order staying process in respect of global tender and also gave directions to the respondents to file affidavit. The respondents Nos. 1 and 2 moved an appeal on 16-11-1995 against the said order wherein an interim order was passed by the Division Bench on 9-11-1995. On 1-11-1995 the revised schedule for sale of bid document and due dates for opening of bids pursuant to global tender were intimated to the petitioner by respondent No. 1. The petitioner protested with regard to the wording of the proposed press notification on or about 14-11-1995 but despite the same on 16-11-1995 a press notification giving revised dates for global notice inviting tender was issued. On 18-11-1995 the petitioner received the communication from Respondent No. 1 enclosing amendment clause to tender document 7 to be issued pursuant to the global notice inviting tender. ( 6 ) THE contention of the respondents Nos. On 18-11-1995 the petitioner received the communication from Respondent No. 1 enclosing amendment clause to tender document 7 to be issued pursuant to the global notice inviting tender. ( 6 ) THE contention of the respondents Nos. 1 and 2 appears to be that Indan Oil Corporation is setting up a refinery at Panipath for production of petroleum products; a project of high national importance and for effective marketing and distribution, it became necessary to build terminal near the Panipath refinery to receive and distribute such petroleum products by road and rail tankers. For the loading facilities by rail, the project envisaged an automated system with the help of Loading Arms Which are of metallic flexible conducts used for transfer of petroleum products from pressurised pipings to Rail wagons. The petitioners submitted their technical bids and after negotiations, the first respondent sent the fax message but no such communication was sent to the collaborator of the writ petitioner. ( 7 ) IT is stated that while processing the said bids, certain relevant issuer had not been considered/ explored in the decision making process. As it required further study and enquiry, the aforementioned fax dated 10th August, 1995 was sent. An internal assessment was thereafter undertaken by the first respondent wherein a system failure and serious errors were found to have crept in. It was stated that lapses have occurred in the evaluation process, particularly in the course of technical bid analysis which are follows :- (a) The technical Parameters were frozen on 21st April, 1995, and the same was communicated to all the tenderers. Annexure I of the Frozen Technical Parameters provided that the Loading Arms to be supplied were to be fully assembled and imported as such without any further work in India. A copy of the Frozen Parameters will appear from the communication dated 21st April, 1995 together with the Annexures thereto, which are annexed and marked'v'. (b) After receiving the Frozeen Technical Parameters, all the participants submitted their revised bids. (c) The writ petitioner had quoted with three options, namely, (i) fully imported; (11) imported components but assembled in India; and (iii) imported components and indigenous Swivel Joint but assembled in India. EMCO (foreign) quoted with two options, namely, (i) imported, (ii) imported components but assembled in India. (c) The writ petitioner had quoted with three options, namely, (i) fully imported; (11) imported components but assembled in India; and (iii) imported components and indigenous Swivel Joint but assembled in India. EMCO (foreign) quoted with two options, namely, (i) imported, (ii) imported components but assembled in India. (d) On this state of affairs, TBA showed that the writ petitioner was acceptable for the fast two options, and EMCO was acceptable for its first option. The second option of EMCO was not even considered. (e) Tested against the Frozen Commercial Parameters EMCO's quotation for its First Option was found to be the lowest. The First Respondent negotiated with EMCO for further reduction and EMCO responded positively by making a reduced price offer on 13th July, 1995. (f) In the meantime certain adverse reports were received by the First Respondent regarding financial condition of EMCO and based on that it was decided not to proceed further with EMCO. (g) Hence on 18th July, 1995 the First Respondent requested the other bidders to submit revised price bid. The other tenderers including the writ petitioner responded. (h) Before the First Respondent could finally consider these revised offers of others, EMCO furnished evidence of solvency, based on which it was decided that EMCO's revised offer made on 13th July, 1995 would be owned and if it was found to be within the revised in house cost estimate, the order would be placed on them, but if they were higher, then the matter would be refereed to the management for decision. This was decided on 26th/ 27th July, 1995. (i) The revised EMCO's bid was thereafter opened. The discount offered was found to be low, i. e. , the revised in house cost estimate still lower. As such it was decided that the revised prices of the others would be opened and a comparative statement would be made including the price of EMCO, and the order would be finalised strictly on L-1 basis. This was decided on 28th July, 1995. 8 (j) On 29th July, 1995 the other offers were opened and the recommendation was to award in favour of the writ petitioner's quotation for indigenous assembly, i. e. , its Second option. (k) It was evident that the evaluation process did not proceed on a common basis and the comparative statement was in respect of quotations made on different basis. (k) It was evident that the evaluation process did not proceed on a common basis and the comparative statement was in respect of quotations made on different basis. It was particularly noted that EMCO's first option which was in accordance with the Frozen Technical Parameters was considered along with the writ petitioner's and others' quotations which were dehors the condition of Frozen Technical Parameters, i. e. , imported components but assembled in India. ( 8 ) IT is contended that the matter was studied at some depth and the first respondent also took legal advise in the matter and pursuant thereto it was advised to cancel the offer to the the writ petitioner and go for global tender. ( 9 ) THE said respondent also contend that the writ application is not maintainable as :- (a) It involves various disputed questions of fact; (b) The writ petitioners had no enforceable right as no concluded contract had been arrived at nor any firm commitment against the general principles as well as the terms and conditions of the tender was made; (c) No purchase order has been issued having regard to the terms of the tender as well as the agreed minutes dated 31st July, 1995. ( 10 ) IT has been urged that this Court has no territorial jurisdiction to entertain, try and decide writ application inasmuch as the Park Street Office of the First Respondent or the Gariahat Road Office of the Second Respondent have no connection whatsoever and were never involved with the transactions which are in question, nor did they play and role therein. It is contended that the Head Office of the Second Respondent is situated at Bombay. The refinery and the Terminal are in Panipat. The communications of 10th August, 1995, 7th October, 1995 and 10th October, 1995 could not be the basis of invoking the jurisdiction of this Court nor the same constitute an integral part as cause of action for the enforcement of which the petitioner has filed the writ petition. ( 11 ) JAYANTA Mitra, the learned Counsel appearing on behalf of the petitioner, has raised the following contentions in respect of this writ application. ( 11 ) JAYANTA Mitra, the learned Counsel appearing on behalf of the petitioner, has raised the following contentions in respect of this writ application. (1) The offer made by the respondent accepting the bid of the petitioner as also the termination of the said contract having been communicated to the petitioners at Calcutta as a result whereof the petitioner suffered pecuniary losses at Calcutta, this Court has territorial jurisdiction to entertain this writ application. Reliance in this connection has been placed in Mussummat Chand Kour v. Partab Sing reported in (1880) 15 IA 156, Union of India v. Hindustan Aluminium Corporation Ltd. reported in AIR 1983 Cal 307 , Everest Coal Co. Pvt. Ltd. v. Coal Controller reported in 90 CWN 438, Oil and Natural Gas Commission v. Utpal Kumar Basu reported in 1994 (4) SCC 711 , State of Rajasthan v. M/ s. Swaika Properties reported in AIR 1985 SC 1289 , Arthur Butler and Co. Ltd, v. District Board of Gaya reported in AIR 1947 Patna 134, G. Venkatesha Bhat v. M/ s. Kamlapat Motilal reported in AIR 1957 Madras 201 and Serajuddin and Co. v. The State of Orissa reported in AIR 1971 Cal 414 . It was urged that only because the Head Offices of the respondents are not within the jurisdiction of the Court the same by itself would not take away the jurisdiction of this Court as a part the cause of action arose at Calcutta. Reliance in this connection has been placed in M/ s. Patel Roadways Ltd. v. M/ s. Prasad Trading Company reported in AIR 1992 SC l5l4 : 1992 AIR SCW 1621. It was also submitted as the breach of contract took place at Calcutta in view of the fax message and the letter of communications as contained in Annexure-J and L pages 112 and 116 of the writ application and thus the cause of action arose at Calcutta as the same amounts to communication within the meaning of Section 4 of the Indian Contract Act. It was further submitted that in any event even the 9 new global tender has been sent in Calcutta. (2) The respondents being 'state' within the meaning of Article 12 of the Constitution of India, were bound to act fairly and the impugned orders being illegal and arbitrary, this Court should quash the same. It was further submitted that in any event even the 9 new global tender has been sent in Calcutta. (2) The respondents being 'state' within the meaning of Article 12 of the Constitution of India, were bound to act fairly and the impugned orders being illegal and arbitrary, this Court should quash the same. The learned Counsel relying on or on the basis of the decisions of M/ s. Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay reported in AIR 1989. SC 1642, Kumari Shrilekha Vidyarthi v. State of Uttar Pradesh reported in 1991 SC page 537, council of Civil Service Unions v. Minister for the Civil Service reported in 1984 (3) All ER 935 : 1985 App Cas 374, Jones v. Swansea City Council reported in 1989 (3) All ER 162, Tata Cellular v. Union of India reported in 1994 (6) SCC 651 , Sterling Computers Ltd. v. M /s. M. and N. Publications Ltd. reported in 1993 (1) SCC 445 , New Horizons Ltd. v. Union of India reported in 1995 (1) SCC 478 , L. I. C. of India v. Consumer Education and Research Central reported in AIR 1995 SC 1811 as also two decisions of this Court in Marine Engineer v. Siddeswar Halder reported in 1991 (1) CLJ 467 and Jute Corporation of India Ltd. v. Nillimarla Jute Mills Co. Ltd. reported in 1993 (1) CLT 79 submitted that the illegal termination of contract also comes within the purview of the judicial review of this Court under Article 226 of the Constitution of India. According to the learned Counsel the contract was terminated without assigning any detailed reason inasmuch as in the impugned fax message the reason stated to be 'techno-administrative'one which is a vague term and thus cannot be sustained. (3) As the matter was reopened at the instance of EMCO Wheaton, the said action is also mala fide. In support of his aforementioned contention the learned Counsel has relied upon Punit Rai v. Mohammad Majid reported in AIR 1964 Patna 348, Badat and Co. Bombay v. East India Trading Co. reported in AIR 1964 SC 538 and Smt. Asha Handa v. Baldev Rai Handa reported in AIR 1985 Delhi 76. In this connection the learned Counsel has also relied upon an unreported decision of mine dated 27th February, 1995 in India Hotels Co. Bombay v. East India Trading Co. reported in AIR 1964 SC 538 and Smt. Asha Handa v. Baldev Rai Handa reported in AIR 1985 Delhi 76. In this connection the learned Counsel has also relied upon an unreported decision of mine dated 27th February, 1995 in India Hotels Co. Ltd. v. Calcutta Municipal Corporation in Matter No. 3743 of 1994 and an unreported decision of Babulal lain, J. dated 8th September, 1993 in Matter No. 3106 of 1993 Niranjan Pipalia v. Hindusthan Steel Works Construction Ltd. as also as an article on Judicial Review and the Contractual Powers of the Public Authorities by Sue Arrosmith publichsed in 106. The Law Quarterly Review, page 277. Mr. Mitra would urge that as the impugned order does not contain any reason, the respondents cannot be permitted to supplement the same in their affidavits and in this connection reliance has been placed in Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi reported in AIR 1978 SC 851 . My attention has further been drawn to the decision of the Apex Court in Tata Cellular v. Union of India reported in 1994 (6) SCC 651 . (4) The pititioners having submitted the bid and participated in a detailed negotiation on all aspects of the matter, be it technical or the price and such offer having been accepted, they had a legitimate expectation of making supply of loading arms. The learned Counsel urges that the doctrine of legitimate expectation is rooted in fairness and the procedural protections is aimed at projection of substantive interest of the parties. In support of his aforementioned contention reliance has been placed on R. v. Board of Inland Revenue, ex parte MFK Underwriting Agencies Ltd. and related applications1990 (1) All ER 91, Food Corporation of India v. M/ s. Kamdhenu Cattle Feed Industries reported in 1993 (1) SCC 71 , R. v. Ministry of Agriculture Fisheries and Food, ex parte Hamble (Offshore) Fisheries Ltd. reported in 1995 (2) All ER 714 as also an article by P. P. Craig 'a Conspectual Analysis' Published in 108 Law Quarterly Review, page 79. ( 12 ) MR. S. Pal appearing on behalf of the respondents, however, submitted that the question of territorial jurisdiction would depend upon the determination of jurisdictional fact which this Court being not in a position to adjudicate, should not interfere in the matter. ( 12 ) MR. S. Pal appearing on behalf of the respondents, however, submitted that the question of territorial jurisdiction would depend upon the determination of jurisdictional fact which this Court being not in a position to adjudicate, should not interfere in the matter. The learned Counsel contends 0 that keeping in view various documents it would be apparent that no concluded contract had been arrived at by and between the parties and thus the question of revocation of such contract and communication thereof to the writ petitioners in terms of Section 4 of the Indian Contract Act does not arise. ( 13 ) MR. Pal would urge that a decision is not required to be communicated and in view of the fact that such a decision not to award work in favour of the petitioner has been taken by the respondents at Delhi, no part of cause of action arose within the jurisdiction of this Court. Reliance in this connection has been placed on Burn Standard Company Limited v. Mcdermott International INC. reported in 1991 (2) SCC 669 : AIR 1991 SC l191 : 1991 AIR SCW l105. ( 14 ) IT was been submitted that there being no concluded contract the question of revocation thereof will not arise and in the event, it is held by this Court that there exists a concluded contract, this Court may not exercise its jurisdiction in view of existence of an arbitration agreement. Reference in this connection has been made to A. C. Roy and Co. v. Union of India reported in AIR l995 Cal 246. ( 15 ) IT was submitted that on perusal of Clause 40 of the general conditions of contract it will be evident that the parties consented to submit themselves to the jurisdiction of the Bombay Court and as such a clause is valid in terms of Section 28 of the Indian Contract Act, this Court has no territorial jurisdiction in relation thereto. Reliance in this connection has been placed on Hakam Singh v. Gaman India Limited reported in AIR 1971 SC 740 . It was further submitted that no averment in the writ application has been made that by reason of the purported revocation the loss has been suffered by the petitioner at their corporate office at Calcutta. Reliance in this connection has been placed on Hakam Singh v. Gaman India Limited reported in AIR 1971 SC 740 . It was further submitted that no averment in the writ application has been made that by reason of the purported revocation the loss has been suffered by the petitioner at their corporate office at Calcutta. The learned Counsel submits that Hindalco's case (supra) reported in AIR 1983 Cal 307 has been distinguished in Everest Coal Company's case reported in 90 CWN page 438. ( 16 ) ASSUMING a part of cause of action has arisen within the jurisdiction of this Court, Mr. Pal submits that doctrine of forum conveniens should be applied. Reliance in this connection has been placed on Bhagar Singh Bigga v. Dewan Jagbir Sawhany reported in AIR 1941 Cal page 670, Mandal Jalan v. Madanlal reported in (1945) 49 CWN 357, M/s. New Horizon Ltd. v. Union of India reported in AIR 1994 Delhi 126 as also the decision of the Supreme Court in O. N. G. C. v. Utpal Basu reported in 1994 (4) SCC 711 . ( 17 ) MR. Pal would submit that in a contractual matter relating to procurement of materials no writ application is maintainable unless such contract is granted by the State in exercise of its Governmental power, and as the instant case, has a commercial character as contra distinguished from a public character the writ petition is liable to be dismissed. Reliance in this connection has been placed on Lekhraj v. N. M. Shah, Deputy Custodian reported in AIR 1966 SC 334 , Radhakrishna Agarwala v. State of Bihar reported in 1977 SC 1496, M / s. Pancham Singh v. State of Bihar reported in AIR 1991 Patna 168 : 1991 (1) PLJR 352 , Sri Konaseema Co-operative Central Bank v. N. Seetharam Raju reported in AIR 1990 AP 171 : 1990 Lab IC NOC 63 (FB), Gita Timbers v. State of Kerala reported in AIR 1991 Kerala 350; in R. v. Disciplinary Committee of the Jocky Club ex parte Agakhan reported in 1993 (2) All England Law Reporter, page 853 and in A. C. Roy v. Union of India reported in AIR 1995 Cal 246 . ( 18 ) IT was also contended that the petitioner cannot have any legitimate expectation for grant of contract. ( 18 ) IT was also contended that the petitioner cannot have any legitimate expectation for grant of contract. Reliance in this connection has again been placed on A. C. Roy v. Union of India reported in AIR 1995 Cal 246 . ( 19 ) THE question which, therefore, arise for consideration in this application are :- (i) Whether this Court has territorial jurisdiction to entertain the writ application and in any event whether this Court should exercise its jurisdiction in the facts and circumstances of the case. (ii) Whether the impugned order terminating the alleged contract and issuing the global 1 tender notice suffers from illegality, irrationality or procedural irregularity. (iii) Whether the petitioner had a legitimate expectation to be awarded the contract in question. ( 20 ) RE : Question - I A question as to whether the Court has territorial jurisdiction to entertain the writ application would depend upon the findings as to whether cause of action or any part thereof arose within the jurisdiction to this Court. Clause (2) of Article 226 of the Constitution of India reads thus :-"the power conferred by Clause (1) to issue directions, orders or writs to any Government, authority of person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. " ( 21 ) CAUSE of action, as is well known, although not defined under the Constitution must be held to mean a bundle of facts which are necessary to be proved by the petitioner to obtain reliefs sought for. ( 22 ) IT is not disputed that the Head Office of the respondent No. 2 is at Bombay. The refinery and terminal of the said respondent are in Panipat. Although the respondent No. 2 has offices at Park Street and Gariahat Road and the same had no connection whatsoever and never involved with the transactions in question. The petitioner in paragraph 17 of the writ application stated thus :-"part of the records of the instant case are lying within the jurisdiction of this Hon'ble Court. Although the respondent No. 2 has offices at Park Street and Gariahat Road and the same had no connection whatsoever and never involved with the transactions in question. The petitioner in paragraph 17 of the writ application stated thus :-"part of the records of the instant case are lying within the jurisdiction of this Hon'ble Court. The communications of August 10, 1995, October 8, 1995 the letter of October 10, 1995 along with Notice Inviting Tender bearing No. PR/95-96/85 were all received by the petitioner No. 1 at its registered office at 25, Swallow Lane, Calcutta-700 001 within the aforesaid jurisdiction and thereby sought to be made effective against the petitioner within the jurisdiction of this Hon'ble Court. The cancellation of the concluded contract between the petitioners and the respondent No. 2 became effective only on receipt of the communication of October 8, 1995 by the petitioner No. 1 at its registered office within the aforesaid jurisdiction. The acts and conduct of the respondents complained or hereinabove have also caused loss and damage to the petitioners at the registered office of the petitioner No. 1 at 25, Swallow Lane, Calcutta-700 001 within the aforesaid jurisdiction. In such circumstances, part of the cause of action has also arisen within the jurisdiction of this Hon'ble Court. In the premises, this Hon'ble Court has the jurisdiction to entertain, try and determine the instant application. " ( 23 ) THE core question which arises for consideration in this application is as to whether there had been a concluded contract and such contract was concluded in Calcutta as also the fact as to whether the action on the part of the First Respondent to repudiate contract was communicated to the petitioner at Calcutta. ( 24 ) THE petitioner has stated that the petitioner's corporate Head Quarters is at Calcutta. Of course it has its office as also carries its manufacturing and operation at 344 GIDC Waghadia in the district of Baroda in the State of Gujarat. By a fax dated 5th August, 1995 the petitioner were allegedly offered the contract. The said fax of acceptance being 3412/163 as contained in Annexure-I to the writ application although was dispatched at its Calcutta address, admittedly the same was issued from Delhi and had been accepted by the petitioner in its entirety on the same date itself namely 5th August 1995 at Delhi. The said fax of acceptance being 3412/163 as contained in Annexure-I to the writ application although was dispatched at its Calcutta address, admittedly the same was issued from Delhi and had been accepted by the petitioner in its entirety on the same date itself namely 5th August 1995 at Delhi. The petitioners agreed to furnish performance guarantee on the proforma of the respondent No. 1 within 10 days. The contract, if any, was, therefore, concluded at Delhi and not at Calcutta where a copy of the said fax was sent for information. ( 25 ) THE question as to whether the parties have arrived at a concluded contract or not would depend upon the intention of the parties which has to be found out from the correspondences passed between the parties. 2 A document as is well known must be read in its entirety and upon consideration of the intention of the parties which has to be gathered not only from the wording used therein but also from the attending circumstances. In this connection, therefore, it is necessary to take into consideration the conduct of the parties as also the conditions of fax of acceptance so as to enable this Court to come to the conclusion as to whether the contract can be said to have been concluded only upon joint signature and acceptance of purchase order by the petitioner as also their collaborator. ( 26 ) CLAUSES 9 and 13 of the said fax of acceptance read thus :-"9. Purchase order will be jointly signed and accepted by OPW collaborator and D. Wren. 13. Our general purchase conditions and other conditions attached with our enquiry documents are totally acceptable to you without any deviation whatsoever. " ( 27 ) IT is, therefore, also necessary to consider the relevant provisions of the general purchase conditions which is contained in Annexure-A to the writ application. In the said general conditions the words 'owner, vendor, contractual delivery date and project' have been defined as follows :-"the 'owner' means Indian Oil Corporation Limited, a company incorporated in India having its registered office at G. 9 Ali Yavar Jung Marg, Bandra (East) Bombay acting through Panipath Marketing Terminal and shall include its successors and assignees. 'vendor' shall mean the Person, Firm or Corporation to whom this purchase order is issued. 'vendor' shall mean the Person, Firm or Corporation to whom this purchase order is issued. 'contractual Delivery Date' is the date on which goods shall be delivered F. O. P. despatching point/destination in accordance with the terms of the Purchase Order. This contractual delivery date/period is inclusive of all the lead time for engineering, procurement of raw materials, manufacturing, inspection, testing, packing and any other activity whatsoever required to be accomplished for effecting the delivery at the agreed delivery point. Panipath Marketing Terminal of Indian Oil Corporation Limited (Marketing Divn.)" ( 28 ) THUS, it may be true that issuance of a purchase order plays an important role as would be evident from clause 27 of the said contract in terms whereof the right of the owner to cancel the purchase order arises only thereunder. Clause 39 of the said agreement contains arbitration clause in respect of all disputes arising out of the purchase order. Clause 40 of the said general agreement states:"the vendor hereby agree that the court situated at Bombay alone shall have the jurisdiction to hear and determine all actions and proceedings arising out of this contract. " ( 29 ) HOWEVER, in my opinion, the said clause has no application to the fact of the present case as the same does not and cannot override a constitutional provision contained in Art. 226 (2) of the Constitution of India. ( 30 ) IT may be true that all material correspondences were made by the petitioner with the respondent No. 1 at its Delhi Office from its Baroda Office and not from Calcutta as on the body of the said document, a rubber stamp of the Baroda Office of the petitioner appears, but does that mean that no part of cause of action arose within the jurisdiction of this Court ? ( 31 ) IT is not in dispute that the petitioner responded to the notice inviting tender issued by the respondent No. 1. In a letter dated 25th April, 1995 issued by the collaborator of the petitioner, it is stated :"opw Engineered Systems would like Engineers India Limited to recognize that the D. Wren International Limited quotation for the loading arms at your Panipath Marketing Terminal is a joint consortium offer from both D. Wren International Limited and OPW Engineered Systems. In a letter dated 25th April, 1995 issued by the collaborator of the petitioner, it is stated :"opw Engineered Systems would like Engineers India Limited to recognize that the D. Wren International Limited quotation for the loading arms at your Panipath Marketing Terminal is a joint consortium offer from both D. Wren International Limited and OPW Engineered Systems. If the order should be placed with the consortium partners, there will be no change in the scope of supply, price or (for each company) the 3 delivery schedule stated in the quote. The consortium between the partners covers the following points. " ( 32 ) AGAIN the said collaborator of the petitioner in its letter dated 26th May, 1995 addressed to the respondent No. 1 issued certain clarification as regards the consortium bid offered by it and the petitioner inter alia stating :-"should at any point in time the sub-contract between OPW Engineered Systems and D. Wren International Limited be abrogated/fail, OPW Engineered Systems will supply Indian Oil with the loading arms at the agreed upon price and within the agreed upon delivery schedule. This will keep the total liability to Indian Oil unchanged. " ( 33 ) THE petitioner in its letter dated 22nd June, 1995 addressed to the respondent No. 1 stated :"our collaborators, M/s. OPW Engineered Systems, USA have also offered to furnish an unconditional Bank Guarantee regarding the supplies to be made by our company against the subject tender. Further, M/s. OPW Engineered Systems, USA have also committed to assume full responsibility of the order (including all terms and conditions ). In the event of D. Wren being unable to execute the order due to unforeseen circumstances beyond our control, to the satisfaction of EIL. " ( 34 ) FURTHERMORE from the minutes of meeting held at New Delhi between respondent No. 1 and the petitioner as contained in Annexure 'h' to the writ application it appears that the petitioner agreed that in case their offer is selected for purchase order, they would call M/s. OPW Engineered Systems, USA and purchase order may be accepted by it and the said M/s. OPW Engineered Systems, USA jointly. ( 35 ) APPARENTLY it is pursuant to that arrangement, the respondent No. 1 in its fax dated 5-8-95 had imposed one of the conditions being condition No. 9 thereof as quoted hereinbefore that the said purchase order would be jointly signed and accepted by the collaborator as also by the petitioner. ( 36 ) IT is not in dispute that pursuant to the notice inviting tender, the writ petitioner submitted its tender. A detailed negotiation took place whereafter the fax of acceptance as contained in Annexure 1' to the writ application was issued. It is also not in dispute that during the course of negotiation the collaborator of the writ petitioner agreed to join the contract but as noticed hereinbefore, such negotiation took place through the petitioner. During negotiation several new conditions were attached as regards participation of the collaborator of the petitioner in the execution of the contract which was accepted by the petitioner as also its collaborator. They also agreed to execute a performance guarantee and accept the purchase order jointly. They also made themselves liable jointly and severally for breach of contract. ( 37 ) AS the offer was made to the writ petitioner alone the fax of acceptance being No. 3412/163 was sent to the writ petitioner alone laying down the conditions therein. ( 38 ) THE said fax of acceptance refers to the offer of the petitioner dated 24-10-94 and the consortium offer dated 24-7-95 Memorandum dated 31-7-95 and all other correspondences up to and including the writ petitioner's 3 fax dated 3-8-95 from its Delhi office for loading arms (rail wagons) against respondent No. 1's notice inviting tender. ( 39 ) IN no uncertain terms in the said fax, it was stated "pleased to issue firm order on M/s. OPW Engineered Systems - D. Wren International Limited consortium basis for white oil loading arms 840 numbers. " The price was quoted and the terms and conditions were also quoted therein. The terms and conditions include a firm price offer, time of delivery, supervision charges, liability of the petitioner and its collaborator for timely execution of the contract, the manner in which the work is to be executed etc. . . In terms of condition No. 12 D. Wren/opw was to furnish contract performance bank guarantee. It also contains terms of payment. . . In terms of condition No. 12 D. Wren/opw was to furnish contract performance bank guarantee. It also contains terms of payment. ( 40 ) BY reason of the said fax of acceptance the petitioner was asked to acknowledge receipt thereof and the said fax of acceptance, 4 in no uncertain terms states "regular purchase order follows. " ( 41 ) THE said fax of acceptance was accepted by the Managing Contractor of the petitioner in its entirety and it was stated that CPG will be furnished on EIL's pro forma within 10 days. ( 42 ) ALTHOUGH Mr. Pal submitted that the said fax of acceptance is really a fax of intent, a bare reading of the aforementioned fax in its entirety together with the conduct of the parties and the attending circumstances, there cannot be any doubt that the same was a fax of acceptance. ( 43 ) THE conditions Nos. 9 and 12 upon which strong reliance has been placed by Mr. Pal are merely conditions subsequent and the same, in my opinion, do not constitute a conditional acceptance/counter offer. ( 44 ) THE subsequent fax dated 10-8-95 whereby the petitioner was asked to hold action on fax of acceptance as also the impugned telegram dated 8th October, 1995 as contained in Annexure 'l' to the writ application also terms the said communication dated 5-1-95 as fax of acceptance and not a fax of intent. ( 45 ) IT is also relevant to notice that the pro forma bank guarantee (performance) which is to be furnished in terms of the general purchase conditions (indigenous) a pro forma of which was annexed along with the request for quotation and upon which strong reliance has been placed by Mr. Pal clearly stated "in consideration of the Indian Oil Corporation Limited having awarded. . . . . " The words having awarded in the pro forma bank guarantee must thus be read along with the aforementioned fax of acceptance dated 5-8-95, and, thus, there cannot be any doubt whatsoever that the contract performance guarantee and issuance of purchase order were merely the condition subsequent. ( 46 ) IN Jawaharlal Barman v. Union of India reported in AIR 1962 SC 378 : 1962 All LJ 411, the Apex Court clearly held that an acceptance of contract subject to making security deposit constitutes concluded contract. ( 46 ) IN Jawaharlal Barman v. Union of India reported in AIR 1962 SC 378 : 1962 All LJ 411, the Apex Court clearly held that an acceptance of contract subject to making security deposit constitutes concluded contract. The Apex Court held that although S. 7 of the Contract Act requires the acceptance of offer must be absolutely unqualified and it cannot be conditional, but reading the letter as a whole, the same amounted to absolutely an unqualified acceptance of the tender or offer made by the appellant. In the said case also tender of security deposit was treated as a subsequent condition. Acceptance of purchase order by the writ petitioner as also its collaborator were also one of the conditions had emerged during the negotiation and such condition was also accepted by the petitioner. ( 47 ) IT is now well known that in a given case it is necessary to examine the language of offer and acceptance to determine the existence of an agreement. See Cheshire, Fifoot and Furmston's Law of Contract, 11th Edn. , p. 28. ( 48 ) IN the instant case also the petitioner was asked to acknowledge the receipt of the fax and confirm acceptance and thus it was treated as an offer without reference to its collaborator and whose offer having been accepted by the fax of acceptance a concluded contract came into being. It was stated that the fax of acceptance was addressed to the writ petitioner only and at the bottom of the same the writ petitioner has been described as 'vendor' and endorsement at the bottom thereof of the expression, 'vendor's acceptance' has been used. The subsequent conduct of the respondents also show that they had proceeded on the basis that a concluded contract has come into being. Reference to general conditions of contract by the petitioner means that same would be acceptable by both the parties for working out the contract. ( 49 ) THE communication dated 21-4-1995 required that the delivery be effected from the 9 months from the date of letter of acceptance of offer. The minutes dated 31-7-95 also shows that the contract was to be concluded by issuance of fax of acceptance. ( 50 ) MR. ( 49 ) THE communication dated 21-4-1995 required that the delivery be effected from the 9 months from the date of letter of acceptance of offer. The minutes dated 31-7-95 also shows that the contract was to be concluded by issuance of fax of acceptance. ( 50 ) MR. Pal's submission that the collaborator did not accept the offer and thus no concluded contract has come into being is of not much importance in view of clause (4) of the fax of acceptance and particularly in view 5 of the fact that OPW had already agreed to such conditions as would appear from the Memorandum of Understanding dated 24-7-1995 (Anx.-F) which are in the following terms : (CC)"opw will offer to negotiate with EIL, New Delhi, India, a Bank Guarantee for execution of contract, jointly and severally with D. Wren and will offer all technical assistance, including deputing appropriate technical personnel for timely execution of contract, in event of order, if so necessary. (DD) OPW hereby affirms complete and total technical and financial support to D. Wren for timely execution of the order, if so placed on D. Wren, whilst adhereing to the terms and conditions of the order placed by EIL. Further OPW and D. Wren will be jointly and severally responsible to EIL for the order. (FF) OPW/d. Wren will also offer a guarantee against all manufacturing defects for the operation of the loading arms. 18 months from date of supply or 12 months from date of installation, whichever is later. "