Judgment :- The Judgment was delivered by : This Appeal Suit is directed against the judgment and decree dated 1-2-1984 rendered in O.S. No. 4770/81 by the 11th Additional Judge, City Civil Court, Madras thereby dismissing the suit filed by the appellant for the recovery of a sum of Rs. 89, 187/- with interest of Rs. 10, 717/-, with a further interest at 12% per annum from the date of plaint to the date of decree and with a further interest at 6% per annum from the date of decree till the date of realisation and with costs. 2. The plaint averments are that the plaintiff Corporation owns a rice mill at Cheyyar as in other places of the State of Tamil Nadu; that the plaintiff called for the tenders for the disposal of rice bran (raw rice and boiled rice) produced at Cheyyar for a period of three months from 1-1-1977 to 31-3-1977; that out of six tenders received, since the tender of the defendant was the highest, the plaintiff accepted the same as per its L.Dis.2126/77 dated 20-1-1977; that according to the terms and conditions the defendant was asked to deposit Rs. 2, 000/- as security deposit which bears no interest; that the bran stocks were sold in the same condition as they lie "as is where is basis" which should be cleared within a week from the date of receipt of intimation in writing or over phone depending upon the availability of the stock; that the cost of bran should be paid in the shape of a crossed demand draft in favour of Tamil Nadu Civil Supplies Corporation Ltd. before actually lifting the stock; that in the event of failure to complete the payment within the aforesaid period of one week, the Regional Manager, TNCSC Ltd. Vellore shall have the option to resell the stock at the risk and cost of the original successful tenderer and also to recover the loss sustained by the Corporation from the security deposit or in any other manner and any saving or profit of resale shall be exclusively to the account of the Corporation and the original buyer shall have no claim to any part of such gain. 3. The further case of the plaintiff is that in accordance with the tender conditions the defendant lifted 44-537 M.T. of bran valued at Rs. 3. The further case of the plaintiff is that in accordance with the tender conditions the defendant lifted 44-537 M.T. of bran valued at Rs. 57, 052/- and paid for the same on 8-2-1977. But on 26-2-1977 the defendant refused to lift the further accumulation of bran available from MRM Cheyyar on the ground that there is low percentage of oil content in the bran; that the plaintiff issuing a notice dated 25-3-1977 called upon the defendant to lift the remaining stock of 137 MT of bran available for which the defendant sent a reply on 29-3-1977 expressing their inability to lift the remaining stocks; that as per the terms and conditions of the tender the defendant has to lift the stocks of bran up to 31-3-1977; that in spite of a reminder dated 18-5-1977 to lift the remaining stock of 137 MT of bran the defendant failed to lift the same and thus committed the breach of the terms of the contract. 4. The further case of the plaintiff is that he issued another notice dated 24-8-1977 calling upon the defendant to take delivery of the stocks before 31-8-1977 otherwise it would be sold and the loss sustained by the Corporation would be recovered from the defendant; that since there was no response from the defendant, the plaintiff sold the remaining stocks of 137 M.T. of bran at the rate of Rs. 630/- per M.T. in which the plaintiff incurred a loss of Rs. 89, 187/-; that in the communication of the defendant to the Managing Director dated 6-6-1977 the defendant raised a plea that the bran produced was of inferior quality since there had been a change in the method of manufacturing rice bran by MRM, Cheyyar and as such they were not willing to lift the remaining 137 M.T. of bran which is the result of after- thought : that as per clause 7 of the tender conditions the plaintiff has a right to resell the stocks and recover the loss sustained therefrom from the defendant in the event of failure on the part of the defendant to lift the stock of bran after payment of the fixed price; that since the defendant had not removed the bran within the stipulated period, the plaintiff sustained loss of Rs. 89, 187/- and the objection raised on the part of the defendant being incorrect and false, the plaintiff would ultimately come forward to institute the suit after due notice to the defendant on 1-3-1978 praying for the relief extracted supra. 5. In the written statement filed by the defendant, besides generally denying the allegations barring those that are admitted the defendant would further alleged that the rice bran offered by the plaintiff was cone polished rice bran, which was evident from the price quoted by the defendant but it turned out to be huller type rice bran which was the second quality in the trade; that at the relevant time the market price in respect of the huller type rice bran, which was known as second quality in the trade was far less than Rs. 500/-; that the samples of cone polished rice bran were shown at the time of tender; that the usual production of the Modern Rice Mill at Cheyyar was cone polished rice bran and hence the defendant quoted their tender for cone polished rice bran; that the MRM at Cheyyar turned out cone polished rice bran on prior occasions; that since the cone polish machine went out of order, they had switched over to huller type rice bran; that the plaintiff made the defendant to believe that the tenders invited by the plaintiff were for the disposal of the cone polished rice bran which was the second quality; that since the MRM at Cheyyar was producing cone polished rice bran previously, the defendant offered Rs. 1281/- per MT for boiled rice bran and Rs. 1210/- per MT for raw rice bran; that the defendant came to know of the change in process of manufacture subsequently; that the quality offered by the plaintiff under this tender was available in plenty in Tamil Nadu at far less than Rs. 1281/- per MT for boiled rice bran and Rs. 1210/- per MT for raw rice bran; that the defendant came to know of the change in process of manufacture subsequently; that the quality offered by the plaintiff under this tender was available in plenty in Tamil Nadu at far less than Rs. 500/- per MT at that time; that the huller type rice bran was known as second quality in the trade and this fact was well known to the plaintiff at that time; that the defendant therefore deputed their representative to the office of the plaintiff at Cheyyar to make a representation with regard to the huller type rice bran lifted from the mill at Cheyyar; that the plaintiff informed the defendant's representative that the cone polished machine was out of order and therefore they had switched over to huller type machine; that the defendant brought these facts to the Assistant Manager of the plaintiff at Cheyyar by letter dated 26-2-1977 and further explained as to how the defendant incurred a loss of Rs. 35, 000/- and also questioned the maintainability of the suit before the trial Court and pleaded bar of the same under the law of limitation. Ultimately the defendant would pray for dismissal of the suit with costs. 6. The trial Court based on the above pleadings by parties framed six issues for determination of all the questions involved in the suit including the one for deciding the jurisdiction question and another for the limitation question and has conducted the trial into the facts and circumstances pleaded by parties in which for oral evidence the plaintiff would examine three witnesses and the defendants on their part would examine two witnesses as P.Ws. 1 to 3 and D.Ws. 1 and 2 respectively. For documentary evidence the plaintiff would submit that 35 documents as Exs. A-1 to A-35 were marked whereas defendant would submit that 17documents as Exs. B-1 to B-17 were marked. 7. Having regard to the materials placed on record in the above manner, the trial Court in appreciation of the same in the manner known to law would ultimately arrive at the conclusion to dismiss the suit without costs. Aggrieved the plaintiff has come forward to prefer the above appeal suit on certain grounds as brought forth in the grounds of appeal. 8. Aggrieved the plaintiff has come forward to prefer the above appeal suit on certain grounds as brought forth in the grounds of appeal. 8. During arguments the learned counsel appearing on behalf of the appellant would submit that under Ex. A-1 tender notice inviting offers for disposal of the rice bran, nothing is mentioned about cone polished rice bran; that there had been more than 65 circulars issued wherein nothing had been mentioned to the effect whether it is cone polished or huller type rice bran, but mentioned only as rice bran and the defendant accepted the same and offered the tender which came to be accepted by the plaintiff. The learned counsel says that the defendant was under the impression that it was cone polished rice bran, but the same was not proposed under any condition; that the learned counsel says that there had been no flaw at all; that the case of the defendant is that the defendant was under the impression that it was cone polished rice bran and hence he offered the tender but there is absolutely no evidence to such offer and the defendant's impression that the system that was functioning at Cheyyar was not the huller type rice bran and that it could not produce cone polished rice bran was not known to them cannot be the defence. At this juncture the learned counsel also cited three judgments namely, 1. Union of India v. Kishorilal Gupta. 2. U.P. Government v. Nanhoo Mal, 1960 AIR(Allahabad) 420. 3. Lakshmanprasad v. Achutan Nair, 1955 AIR(Madras) 662. So far as the first judgment cited by the learned counsel is concerned, it is held therein that "When the words are clear and unambiguous there is no scope for drawing upon hypothetical considerations or supposed intentions of the parties." 9. In the second judgment cited above, it is held" Mistakes in the formation of contracts may be of three kinds, namely, unilateral mistake, mutual mistake and common mistake. In a case of unilateral mistake only one of the contracting parties is mistaken and the other knows of his mistake. Its consequence is that the contract is void. In a case of mutual mistake the contracting parties misunderstand each other and there is no real correspondence of offer and acceptance. The parties are really not consensus ad idem and there is in fact no agreement at all. Its consequence is that the contract is void. In a case of mutual mistake the contracting parties misunderstand each other and there is no real correspondence of offer and acceptance. The parties are really not consensus ad idem and there is in fact no agreement at all. In this case also the contract is void. In a case of common mistake both the contracting parties make the same mistake. The minds of the contracting parties are ad idem and there comes into being an agreement, but it is devoid of force and efficacy because both the parties are mistaken about some fact which is vital to the agreement. Section 20 of the Contract Act deals with the common mistake of fact and no mutual mistake of fact. Section 20 does not apply to a case where the contracting parties have made no mistake as to any fact existing at the time of the making of the contract and it is complained that one of them is unable to carry out its part of the contract on account of the unexpected refusal of a third person to carry out his obligation under another agreement." 10. In the third judgment cited above, it is held," The matter could be looked at from two aspects. One was to consider the contract as having been entered into under a mutal mistake of fact. It was open therefore to the respondent to have avoided the contract and returned the car and got back the money which he had paid. He, however, could not in law compel the appellants to consent to a new contract, namely, a sale of the car for the control price. The case does not come under S. 72, Contract Act. The money was not paid by mistake. It was paid as money rightly payable under the contract as it stood. It was the contract which was entered into on a mistaken assumption as to the price. But the mistake occurred at the time of the formation of the contract. Once the contract had come into existence, there was no mistake made so far as the payment was concerned." . . . . . . . . . . . . . . . . . . . . . . " In the present case there is no question of misconstruction of the terms of contract. Once the contract had come into existence, there was no mistake made so far as the payment was concerned." . . . . . . . . . . . . . . . . . . . . . . " In the present case there is no question of misconstruction of the terms of contract. It is clear that under the contract what was payable was Rs. 9, 350/-. There was no mistake about it and that was the amount which the respondent paid. What is now alleged is that he entered into a contract for the purchase of the car at the said price on a mistaken impression that that was the maximum price fixed by the Government under the Control order. The mistake alleged is a mistake which goes to the root of the contract, namely, the price, Following the decision of Sen, J. in 1946 AIR(Cal) 245, we hold that the respondent is not entitled to recover the difference between the contract price and control price." 11. Apart from citing the above three judgments for various propositions held therein, the learned counsel would also cite a passage from T.S. Venkatesa Iyer's Law of Contract and Tenders which reads thus : "mistake as to quality in contracts of sale is normally without effect for either the buyer or the seller will have assumed the risk. The general principle usually applicable in such cases is caveat emptor, let the purchaser beware. It is not the duty of the seller to inform the purchaser of the defects in the wares he is selling; it is the duty of the purchaser to examine them and rely on his own judgment." 12. On the part of the respondent no representation is made either by the counsel on behalf of the respondent or by the respondent himself in person so as to argue the case of the respondent and therefore, this Court is left with no option but to decide the case in consideration of the facts and circumstances pleaded, the evidence made available on record and upon hearing the learned counsel for the appellant on merits and in accordance with law. 13. 13. The case of the appellant before the lower Court is that it called for the tenders for the disposal of the rice bran (raw rice and boiled rice) produced in Modern Rice Mill at Cheyyar for a period of three months from 1-1-1977 to 31-3-1977 and the defendant having tendered the highest offer, the plaintiff accepted the same on 20-1-1977 and in accordance with the terms and conditions of the tender the stocks were sold in the same condition as they lie "as is where is basis". The defendant also lifted certain quantity that is, 44.537 MT of bran valued at Rs. 57, 052/- and paid for the same on 8-2-1977, but failed to lift the other stocks as per the terms and conditions of the tender. As per clause 7 of the tender conditions the plaintiff has a right to resell the stocks and recover the loss sustained therefrom, from the defendant in the event of failure on the part of the defendant to lift the stock of bran after payment of the fixed price. Since the defendant had not removed the bran within the stipulated period, the plaintiff sustained a loss of Rs. 89, 187/- which the defendant is liable to compensate in terms of the tender conditions and therefore, the plaintiff has come forward to file the suit claiming the said amount with interest at 12% per annum amounting to Rs. 10, 717/- and with future interest at 6% per annum from the date of decree till the date of realisation and for costs. 14. Though many aspects have been dealt with in the written statement by the defendant in a repeated manner, the only relevant point raised for consideration therein is that the plaintiff made the defendant believe that the stock was cone polished rice bran and therefore the defendant quoted the maximum price under the impression that the Modern Rice Mill at Cheyyar was turning out cone polished rice bran. But after removal of the stock in the first instalment the defendant came to understand that they were huller type rice bran which was the second quality and therefore, the defendant did not venture to remove the remaining stock as per the terms and conditions and in such event the defendant is not liable to compensate the loss said to have occurred to the plaintiff in the process of the sale of the remaining stock and hence prays for the dismissal of the suit. 15. In the above circumstances, the only point that arises for consideration in this suit is whether it was right on the part of the defendant to allege that due to the conduct and misrepresentation made on the part of the plaintiff the defendant was misled so as to quote highest price in the tender under the mistaken impression that the item to be sold was the cone polished rice bran and whether the lower Court is right in accepting such plea taken on the part of the defendant to dismiss the suit? 16. It is the open case of the plaintiff that under Ex. A-1 tender notice dated 20-12-1976 they invited tenders for the disposal of the rice bran (raw rice and boiled rice). A perusal of the vital document in this context that is, Ex. A-1 is to the effect as extracted hereunder :- "Notification inviting sealed tenders for the disposal of rice bran, raw rice bran and boiled rice bran to be produced in the Modern Rice Mill, Cheyyar from 1-1-1977 to 31-3-1977 is enclosed." A plain reading of the tender notice under Ex. A-1 would indicate the quality of the stock for disposal is rice bran - raw rice bran and boiled rice bran to be produced in the Modern Rice Mill. Cheyyar". There is no specification to the effect whether it is cone polished rice bran or huller type rice bran or any other variety. A clue is given therein that the rice bran for disposal is to be produced in the Modern Rice Mill, Cheyyar. Cheyyar". There is no specification to the effect whether it is cone polished rice bran or huller type rice bran or any other variety. A clue is given therein that the rice bran for disposal is to be produced in the Modern Rice Mill, Cheyyar. In such circumstances, the reasonable expectations from a prudent man offering tender pertaining to such stock is that with abundant caution he ought to have verified and known the variety of the rice bran kept for disposal or to be produced by MRM, Cheyyar prior to quoting the tender or at least he could have sought for clarification from the plaintiff and also at MRM, Cheyyar as to what sort of rice bran is produced therein and having ascertained such facts the defendant could have entered into the game of offering tender. But what the defendant says is that without verification of such details he ventured to offer the tender and being the highest tenderer the tender has been allotted in his favour and only after the contract was thus entered into for removing a part of the stock to the extent of 44.537 MT, the defendant would allege that he was given to understand that the variety of rice bran was not that type which contained that much of oil, for being used in the solvent extraction plant owned by the defendant and therefore, attributing the reason that the plaintiff made him believe that the stock for removal pertaining to the tender was cone polished rice bran and that he was not bound to remove the further stock and would abruptly stop with the movement of a part of the whole of the materials meant under the tender as a result of which, the plaintiff would come forward to institute the suit claiming damages to the extent of Rs. 89, 187/- and with interests and costs. 17. 89, 187/- and with interests and costs. 17. A perusal of the judgment of the lower Court for decision on this vital point is though the learned Judge has considered the contentions of the plaintiff that the defendant agreed to lift the bran "as is where is basis" as shown in condition No. 3 of the tender notice and that when the defendant had agreed to lift the stock of bran "as is where is basis" condition, it is not open to the defendant to come forward with the contention that what was lifted by them was not cone polished rice bran and it contained less of oil and therefore they could not lift the remaining quantity. The learned Judge expressing that when there had been a flaw in the consent and when the defendant was under the impression that what was offered was only cone polished rice bran, what is stated in the tender condition No. 3 could not be said to be applicable. The learned Judge also cites certain judgments alleged to have been cited by the learned counsel for the defendant and has considered the point of view of the defendant and has ultimately arrived at the conclusion that there had been a mistake of fact in the agreement between the plaintiff and the defendant and it is a ground to avoid the agreement by the defendant and therefore, it had to be held that there was no contract at all between the parties because of the mistake of fact and would ultimately hold that under such circumstances the plaintiff cannot come forward with the case that there was a breach of contract on the part of the defendant and would thus dismiss the suit. 18. The lower Court is in error in arriving at such conclusion to hold that the defendant was under the bona fide impression that it was the cone polished rice bran and the agreement was not clear and therefore it has become void and the defendant is not bound to compensate the loss said to have been sustained by the plaintiff. The lower Court is in error in arriving at such conclusion to hold that the defendant was under the bona fide impression that it was the cone polished rice bran and the agreement was not clear and therefore it has become void and the defendant is not bound to compensate the loss said to have been sustained by the plaintiff. In the whole of the case it is purely on account of the follies of the defendant which is revealed throughout he had quoted the tender which came to be accepted culminating into the contract and hence the reasons assigned on the part of the defendant are unacceptable as though the defendant came to know of the variety of the bran produced in the MRM, Cheyyar only after lifting the stock of 44.537 MT and after testing the same in the solvent plant the defendants were able to ascertain that the said variety of bran did not contain much of oil since being not the variety of cone polished rice bran but huller type rice bran which was not the expectation of the defendant while offering the tender are all products of afterthought and unacceptable. This sort of argument would only indicate that the defendant had of late arrived at the conclusion to rescind with the contract deliberately as a result of afterthought and absolutely no genuineness or bona fides are attached to the same and therefore the defendant is not entitled to any relief. In such cases as well remarked in the cases cited on the part of the learned counsel for the appellant and also in T.S. Venkatesa Iyer's law of contract and tenders' wherein it is given that on a mistake as to quality in contracts of sale is normally without effect for either the buyer or the seller will have assumed the risk. The principle applicable in such cases is caveat emptor, 'let the purchaser beware'. The principle applicable in such cases is caveat emptor, 'let the purchaser beware'. It is not the duty of the seller to inform the purchaser of the defects in the wares he is selling; it is the duty of the purchaser to examine them and rely on his own judgment.If these legal principles which are the most favoured ones for application to the facts and circumstances of the case in hand are applied, there is absolutely no case for the defendant to offer and the defendant would become liable to compensate the loss occurred to the plaintiff in the manner pleaded and established and to the extent that the reliefs are sought for in the suit by the plaintiff. 19. The manner in which the factual position of the case is appreciated by the Court below so as to arrive at the conclusion to deny the relief to the plaintiff is perverse. That in spite of valid arguments advanced on the part of the learned counsel for the plaintiff as extracted by the lower Court itself in para 45 of its judgment, the lower Court is wrong in not accepting the same but to offer its own opinion that when there had been a flaw in the consent and when the defendant was under the impression that what was offered was only cone polished rice bran, the tender condition No. 3 could not be said to be applicable, and on such untenable remarks the lower Court has gone up to the extent of dismissing the suit. Rather the defendant should have exercised abundant caution in quoting the tender and he should have checked the details seeking clarifications if any and it is not at all correct on the part of the defendant to come forward to put up the plea that he was either under mistaken identity or wrong impression regarding the items or quality or the standard of the property for tender or offer such lame excuses for his failure to comply with the tender conditions having himself volunteered to offer the tender which came to be accepted as per the conditions of the tender and then to shift the blame to the plaintiff's acceptance of the tender. If every tenderer comes forward to offer such lame excuses for his own follies after the acceptance of the tender muchless after part performance of the tender conditions there cannot be any fair deal struck or smooth functioning of the system of such contracts and the net result would be only disputes and litigations. In the case in hand if at all any one speaks to the allegation of the defendant that he acted under the wrong impression, it is none else than the defendant himself and therefore, for such of the follies committed by the defendant the plaintiff cannot be punished with the dismissal of his case as the trial Court has erroneously done and it is not out of place to say that the trial Court judgment suffers from serious infirmities and inconsistencies and the same cannot be sustained in law. The reasons assigned on the part of the trial Court for dismissing the suit are neither valid nor sustainable in law and they are outright rejected. The plaintiff has put up a valid case and has positively proved the same with proper evidence and hence the point framed is answered against the defendant and in favour of the plaintiff. 20. The circumstances broughtforth above would only lead this Court to cause its interference into the findings of the trial Court which suffers from patent errors and perversity in approach ultimately leading to wrong conclusions arrived at in dismissing the suit. In result, (a) the above Appeal Suit succeeds and the same is allowed with costs throughout. (b) The judgment and decree dated 1-2-1984 rendered in O.S. No. 4770/81 by the XI Additional Judge, City Civil Court, Madras is hereby set aside. (c) The suit in O.S. No. 4770/81 is decreed as prayed for. Appeal allowed.