Judgment : K. MOHAN RAM, J. Being aggrieved by the judgment and decree dated 27.6.1991 made in O. S. No. 561 of 1985 on the file of the III Additional Sub-Court, Coimbatore, the first defendant has filed the above appeal. 2. For the sake of convenience, the parties are referred to as per their ranking in the suit. 3. The case of the plaintiff as pleaded in the plaint is set out below: (i) The first defendant in or about January 1985 called for tenders and invited offers from the general public for the purchase of two building sites Nos. 2 and 10 of an extent of about 9 cents each, the former at the minimum rate of Rs.18,000/- per cent and the latter at the minimum rate of Rs. 15,000/-, fixing 14.2.1985 as the last date for receiving tender. The plaintiff sent its tender forms for the purchase of plot No. 10B measuring about 8.425 cents and enclosed a bankers cheque, dated 13.2.1985 for Rs. 10,000/- representing initial deposit amount. (ii)The first defendant accepted the plaintiffs offer by sending its letter of confirmation, dated 11.5.1985 and required the plaintiff to remit the balance price of Rs. 1,97,338/- by means of a demand draft and further required the plaintiff to purchase the necessary stamp papers to enable the first defendant to prepare and execute the document early. The plaintiff by letter dated 23.5.1985 requested the first defendant to send the plan of the site showing the measurements and boundaries so that the plaintiff could prepare and send the draft sale deed for the first defendants approval and indicated thereby that it was ready and willing to perform its part of the obligation. (iii) Ever sincethe time when the contract was concluded and confirmed, viz., on and from 11.5.1985, the plaintiff was, has been, and continues to be ready and willing to perform its part of the obligation under the contract and the plaintiff even now has the money ready, in the form of bank deposit receipts standing in the names of the partners. (iv)The plaintiff bona fidely expected the first defendant to furnish the plan of the suit property to enable the plaintiff to incorporate the description of the property in the sale deed and the partners of the plaintiff were in touch with the officers of the first defendant between 11.5.1985 and 22.6.1985. (iv)The plaintiff bona fidely expected the first defendant to furnish the plan of the suit property to enable the plaintiff to incorporate the description of the property in the sale deed and the partners of the plaintiff were in touch with the officers of the first defendant between 11.5.1985 and 22.6.1985. The first defendant made the plaintiff to understand that its office would send the needed particulars in due course and the plaintiff could wait to discharge its obligations till then. (v)While so, the plaintiff received the first defendants letter, dated 22.6.1985 on 24.6.1985, stating that in view of the alleged non-compliance of Clauses (8) and (9) of the tender terms, the plaintiffs offer was treated as cancelled and the deposit amount of Rs. 10,000/-was forfeited. The plaintiff was made to believe that it would take some time for finalizing the draft sale deed itself and the question of payment of balance price could arise only after approval of the draft sale deed. The first defendants cancellation of the contract is untenable in law, unreasonable and unjustified in the light of their confirmation letter, dated 11.5.1985, in and by which, the plaintiff was required to pay the entire balance price and not as per Clauses (8) and (9). The first defendant ought to have given the notice of cancellation before 30 days from 11.5.1985, expressing its intention to avoid the contract for the alleged non-performance of payment, assuming without admitting that time was the essence of the contract. In contracts relating to immovable property, time is not the essence of the contract. In the instant case, time was never agreed to be the essence of the contract and at any rate not expressly agreed to be so. Nor did the first defendant purport to treat time as the essence of the contract at any time before 22.6.1985. (vi) The plaintiff immediately approached the first defendant on 26.6.1985 itself with the bank draft for Rs.1,97,338/- drawn in favour of the first defendant and tendered it to the first defendant, but the first defendant refused to receive it. Thereupon, the legal notice dated 29.6.1985 was sent enclosing the bank draft for Rs. 1,97,338/- and requiring the first defendant to execute the sale deed. The first defendant sent a belated reply dated 24.7.1985 to the plaintiff, returning the bank draft therewith. Thereupon, the legal notice dated 29.6.1985 was sent enclosing the bank draft for Rs. 1,97,338/- and requiring the first defendant to execute the sale deed. The first defendant sent a belated reply dated 24.7.1985 to the plaintiff, returning the bank draft therewith. The first defendants purported act of treating the deposit amount as having been forfeited is untenable. The second defendant is the next tenderer and so the second defendant is also impleaded. The plaintiff has prayed for a judgment and decree directing the first defendant to execute the sale deed in plaintiffs favour in respect of the suit property; to put the plaintiff in possession of the suit property or in the alternative to direct the first defendant to pay Rs. 50,000/-by way of damages to the plaintiff; to refund the deposit amount of Rs. 10,000/- and to pay future interest on Rs.60,000/- till date of realization and for costs. 4. Thefirst defendant has filed a detailed written statement containing the following defence: (i) The plaintiff is not entitled to the discretionary relief of specific performance. The plaintiff has committed breach with regard to the terms and conditions of the tender. As per Clause No. 8, on receipt of intimation of acceptance of tender, the successful tenderer shall within a period of 20 days from the date of such a letter, remit 50% of the value of the site allotted to him by Demand Draft and shall within a period of 30 days from the date of the said letter, arrange to pay the balance of the price and take the sale deed at its cost. As per Clause No. 8, the plaintiff should have further remitted the balance of 50% of the value within 30 days from 11.5.1985 i.e. on or before 10.6.1985 and since the plaintiff failed to make the remittances as per Clause No. 8 of the tender conditions there is no concluded contract at all, which can be enforced in a Court of law. (ii) The plaintiff did not make any request for any plan of the suit property. Even otherwise the plaintiff had all the particulars available with them before the offer was made and even if such request was true it was only made to gain time. The plaintiff was not ready and willing to perform its part of the contract. (ii) The plaintiff did not make any request for any plan of the suit property. Even otherwise the plaintiff had all the particulars available with them before the offer was made and even if such request was true it was only made to gain time. The plaintiff was not ready and willing to perform its part of the contract. The plaintiff and its partners were not periodically in touch with the first defendant between 11.5.1985 and 22.6.1985. The averment that the first defendant made the plaintiff to understand that the details sought for by it will be sent in due course and the plaintiff can await for discharging its obligations is not true. There is no need to issue notice of cancellation before 30 days from 11.5.1985. The belated bank draft manipulated by the plaintiff would not advance their case. 5. The second defendant has filed a written statement with the following contentions: (i) The plaintiff failed to perform conditions stipulated in Clauses 8 and 9 of the tender contract. This defendant being the next highest tenderer is entitled to compel the first defendant to accept their offer and confirm the sale in their favour. The contract in favour of the plaintiff stands rejected on account of default committed by the plaintiff and as such the plaintiff is not entitled to compel the first defendant to convey the property. (ii) The plaintiff has committed breach of contract and the second defendant had always been ready and willing and continue to be ready and willing to perform the terms and conditions by remitting the entire sum due. The plaintiff ought to have invoked the arbitration clause. A tender contract is different from ordinary enforceable contract and tender contract is subject to condition and stipulation as agreed to and it gives right to the tenderer either to accept it or to reject it. The first defendant has rejected the tender of the plaintiff rightly having regard to the terms and conditions of the contract on the ground of non-fulfillment of the essential condition. (emphasis supplied). The second defendant has adopted the written statement filed by the first defendant, which is not in variance with the contentions of the second defendant. The sum of Rs. 1,97,338/- said to have been sent by the plaintiff was not within time and in accordance with the conditions of the contract. (emphasis supplied). The second defendant has adopted the written statement filed by the first defendant, which is not in variance with the contentions of the second defendant. The sum of Rs. 1,97,338/- said to have been sent by the plaintiff was not within time and in accordance with the conditions of the contract. The plaintiff having committed breach of contract, with a view to cover up his omission, appears to have created a make belief story or readiness by creating self-serving draft sale deeds and other correspondence. Even if the first defendant had given any assurance to the plaintiff against the right of the second defendant, it is not binding on him. The plaintiff is not entitled to a decree for specific performance and the first defendant is liable to accept the tender of the second defendant and confirm it in its favour. 6. Onthe above said pleadings, the following issues have been framed by the trial Court viz.: i) Whether time was the essence of the contract entered into between the plaintiff and the first defendant. ii) Whether the plaintiff is entitled to a decree for specific performance. iii) Whether this Court has got jurisdiction to try the suit. iv) To what other relief the plaintiff is entitled to. On the above said issues, the parties went into trial. On the side of the plaintiff, one of its partner Thiru. Rajasekar has been examined as P. W. 1 and Exhibits A-1 to A-11 have been marked. On the side of the first defendant, no witness has been examined, but Exhibit B-1 has been marked. On the side of the second defendant, its accountant Thiru. Govindaraj has been examined as D.W.I and no documents have been marked. 7. On a consideration of the oral and documentary evidence adduced in the case, the trial Court has granted a decree for specific performance in favour of the plaintiff and has also awarded costs. Being aggrieved by that, the first defendant in the suit has filed the above appeal. 8. I heard Mr. N. Sridhar, learned counsel for the appellant, Mr. S. Parthasarathy, learned senior counsel for the first respondent and Mr. J. Raja Kalifullah, learned counsel for the second respondent. 9. Mr. Being aggrieved by that, the first defendant in the suit has filed the above appeal. 8. I heard Mr. N. Sridhar, learned counsel for the appellant, Mr. S. Parthasarathy, learned senior counsel for the first respondent and Mr. J. Raja Kalifullah, learned counsel for the second respondent. 9. Mr. N. Sridhar, learned counsel appearing for the appellant/first defendant submitted that the first defendant by the paper advertisement Exhibit A-2 called for tenders and invited offers from the general public for the purchase of the suit property and another property. The plaintiff sent its tender form for the purchase of the suit property and the first defendant under Exhibit A-3 dated 11.5.1985, accepted the offer of the plaintiff. As per Clause 8 of the terms and conditions incorporated in Exhibit B-1, on or before 31.5.1985 i.e. within 20 days from 11.5.1985, the plaintiff should have paid 50% of the sale consideration and thereafter on or before 10.6.1985 i.e. within 30 days from 11.5.1985, should have paid the remaining balance amount, but without making the above said two payments, the plaintiff wrote a letter Exhibit A-4 dated 23.5.1985 requesting the first defendant to furnish the plan copy of the suit property to incorporate the description of the property in the sale deed. According to the learned counsel, the full description of the suit property and the particulars of other property have been furnished in the Annexure to Exhibit B-1. He further submitted that in Exhibit A-2, the paper publication, it has been specifically stated that the intending purchasers may inspect the suit property between 2 p.m. and4p.m. on all working days from30.1.1985 to 6.2.1985 and as such there was no need for the plaintiff to seek for the copy of the plan and other details, but only with a view to gain time, the plaintiff has sent Exhibit A-4. The learned counsel further submitted that Clauses 8 and 9 of the tender conditions are special conditions, which should be construed as making time as the essence of the contract. The learned counsel further submitted that Clauses 8 and 9 of the tender conditions are special conditions, which should be construed as making time as the essence of the contract. Since the plaintiff failed to remit the initial payment of 50% and also the balance payment within the stipulated time as per Clause 8 of the terms and conditions of tender, the first defendant invoking Clause 9 of the terms and conditions of tender, vide Exhibit A-5 letter dated 22.6.1985, addressed to the plaintiff informed it that the offer is treated as cancelled and forfeited the Earnest Money Deposit of Rs. 10,000/-. 10. The learned counsel further submitted that there is no concluded contract between the plaintiff and the first defendant. In support of his submission, the learned counsel relied upon the decision reported in Veera Property Development Pvt. Ltd. and etc. v. Tamil Nadu Slum Clearance Board Veera Property Development Pvt. Ltd. and etc. v. Tamil Nadu Slum Clearance Board Veera Property Development Pvt. Ltd. and etc. v. Tamil Nadu Slum Clearance Board AIR 1999 Mad. 304 : (1999) 1 MLJ 676 . 11. The learned counsel further submitted that time is of the essence of the contract and the finding of the trial Court that in this case time is not of the essence of the contract, is erroneous. The learned counsel submitted that the trial Court has failed to see that the contract of sale in this case is not a regular contract of sale, but it is a tender sale and as such the legal principles applicable for deciding the question as to whether time is of the essence of the contract in a regular contract of sale, should not be applied in respect of a tender sale. The trial Court has failed to note this vital distinction between a tender sale and a regular contract of sale. In support of the said submission, the learned counsel relied upon the decision in the case of P. S. Duraikanoo v. M. Saravana Chettiyar and Another P. S. Duraikanoo v. M. Saravana Chettiyar and Another P. S. Duraikanoo v. M. Saravana Chettiyar and Another AIR 1963 Mad. 468 (DB) : (1963)2 MLJ 399. 12. Further, Mr. N. Sridhar, learned counsel for the appellant/first defendant submitted that P.W.1 in his cross-examination has deposed as follows: “ Vernacular matter omitted. 468 (DB) : (1963)2 MLJ 399. 12. Further, Mr. N. Sridhar, learned counsel for the appellant/first defendant submitted that P.W.1 in his cross-examination has deposed as follows: “ Vernacular matter omitted. - Ed.” On the basis of the said admission of P.W. 1, it was submitted that the plaintiff has understood that time is of the essence of the contract in this case and therefore, the finding of the trial Court is erroneous. 13. On the other hand, Mr. Rajakalifulla, learned counsel appearing for the second defendant/second respondent submitted that there is no equity in the contract between the plaintiff and the first defendant and Exhibit A-3 is only a confirmation of the highest bid and not an acceptance letter and as such there is no concluded contract between the plaintiff and the first defendant. The learned counsel in support of his submissions relied upon the following judgments: i) Rajasthan Co-operative Dairy Federation Ltd. v. Mahalaxmi Mingrate Marketing Services Pvt. Ltd and Others Rajasthan Co-operative Dairy Federation Ltd. v. Mahalaxmi Mingrate Marketing Services Pvt. Ltd and Others Rajasthan Co-operative Dairy Federation Ltd. v. Mahalaxmi Mingrate Marketing Services Pvt. Ltd and Others AIR 1997 SC 66 : 1996 (10) SCC 405 ; ii) Rickmers Verwaltung GMBH v. Indian Oil Corporation Ltd. AIR 1999 SC 504 : 1999 (1) SCC page 1; iii) H. G. Krishna Reddy and Co. v. M.M. Thimmiah and Another H. G. Krishna Reddy and Co. v. M.M. Thimmiah and Another H. G. Krishna Reddy and Co. v. M.M. Thimmiah and Another Vol. 96 LW 88. He further submitted that he is adopting the arguments of the learned counsel for the appellant and submitted that the offer of the second defendant being the second highest, the same should have been accepted when the plaintiff failed to perform his part of the contract within the stipulated time and when the first defendant chose to cancel the contract of sale with the plaintiff. 14. Per contra, Mr. S. Parthasarathy, learned senior counsel appearing for the plaintiff/first respondent submitted that by Exhibit A-3, dated 11.5.1985, the first defendant had accepted the offer of the plaintiff and as on 11.5.1985, a concluded contract had been made. He further submitted that nothing further remained to be done either by the plaintiff or by the first defendant. 14. Per contra, Mr. S. Parthasarathy, learned senior counsel appearing for the plaintiff/first respondent submitted that by Exhibit A-3, dated 11.5.1985, the first defendant had accepted the offer of the plaintiff and as on 11.5.1985, a concluded contract had been made. He further submitted that nothing further remained to be done either by the plaintiff or by the first defendant. The learned counsel further submitted that neither the learned counsel for the appellant nor the learned counsel for the second respondent submitted as to what remained to be done by the plaintiff or the first defendant after Exhibit A-3 and submitted that the submissions of both the learned counsel on this aspect are not legally sustainable. The learned senior counsel submitted that though in paragraph 10 of the plaint the plaintiff has stated that time was not of the essence of the contract, the first defendant, though has adverted to the averments made in paragraph 10 of the plaint, in paragraph 10 of the written statement, it has not specifically denied the same. Based on that the learned senior counsel submitted that under Order 8Rule 5 C.P.C., since the facts stated in the plaint are not denied, they should be taken as admitted. The learned senior counsel referred to paragraph 8 of the plaint and submitted that the plaintiff had met the officers of the first defendant for gathering particulars between 11.5.1985 and 22.6.1985 and the first defendant made the plaintiff to understand that the particulars would be sent in due course and the plaintiff can wait to discharge its obligations till then. The general presumption in a contract relating to immovable property is that time is not of the essence of the contract and the conduct of the officers of the first defendant referred to in paragraph 10 of the plaint would show that time was not treated as essence of the contract of sale. The learned senior counsel further submitted that in Exhibit A-3 the first defendant had not stated the manner in which the sale consideration should be paid. The learned senior counsel further submitted that in Exhibit A-3 the first defendant had not stated the manner in which the sale consideration should be paid. Though the plaintiff had written a letter Exhibit A-4 dated 23.5.1985 and the last date for paying the 50% of the sale consideration was 31.5.1985 and though the amount was not paid by the plaintiff, the first defendant did not send any reply for Exhibit A-4 and also did not cancel the contract of sale on the basis of non-payment of the 50% of the sale consideration within 20 days from the date of Exhibit A-3 and no notice was sent by the first defendant to the plaintiff calling upon him to make the said payment. The learned senior counsel further submitted that even though Exhibit A-4 is referred to in Exhibit A-5 dated 22.6.1985 under which the first defendant sought to cancel the contract of sale, nothing has been said about the request made by the plaintiff in Exhibit A-4. The learned senior counsel further submitted that the plaintiff is the promisor and the first defendant is the promisee and under Section 63 of the Indian Contract Act, the promisee, viz., the first defendant, may extend time for performance of the contract and as such the conduct of the first defendant in not insisting for the payment of 50% of the sale consideration within 20 days from the date of Exhibit A-3 and the non-cancellation of the contract of sale for non-payment within 20 days would show that the first defendant had extended the time for performance of the contract of sale. The learned senior counsel further submitted that the 30 days’ time from the date of Exhibit A-3 expired on 10.6.1985 and though the plaintiff had not paid the balance 50% of the sale consideration, the first defendant did not immediately cancel the contract. But yet the first defendant while cancelling the contract by issuing Exhibit A-5 dated 22.6.1985 relied upon Clause 8 of the tender conditions. According to the learned senior counsel, the above said facts are the distinguishing features from the facts of the case relating to P. S. Duraikanoo v. M. Saravana Chettiyar and Another. P. S. Duraikanoo v. M. Saravana Chettiyar and Another. P. S. Duraikanoo v. M. Saravana Chettiyar and Another. (supra). 15. According to the learned senior counsel, the above said facts are the distinguishing features from the facts of the case relating to P. S. Duraikanoo v. M. Saravana Chettiyar and Another. P. S. Duraikanoo v. M. Saravana Chettiyar and Another. P. S. Duraikanoo v. M. Saravana Chettiyar and Another. (supra). 15. The learned senior counsel further submitted that when the plaintiff pleaded that time is not of the essence of the contract and the first defendant did not deny it either in the written statement or in the evidence, the Court is bound to accept the plea of the plaintiff. In support of the said submission, the learned senior counsel relied upon the judgment rendered in the case of Swarnam Ramachandran and Another v. Aravacode Chakungal Jayapalan Swarnam Ramachandran and Another v. Aravacode Chakungal Jayapalan Swarnam Ramachandran and Another v. Aravacode Chakungal Jayapalan (2004) 8 SCC 689 . 16. The learned senior counsel further submitted that when P. W. 1 has deposed that he met Thiru Arunachalam, General Manager of the first defendant Company and he promised to give the details sought for by the plaintiff and asked the plaintiff to pay the balance amount after finalisation, the first defendant has not chosen to examine the said Arunachalam and thereby failed to produce the best evidence to substantiate its claim. In support of his submission, the learned senior counsel relied upon the judgment rendered in the case of Gopal Krishnaji v. Mohd. Haji Latif AIR 1968 SC 1413 at 1416. 17. The learned senior counsel further submitted that time is not of the essence of the contract in so far as this case is concerned and relied upon the following decisions: i) Khodaram Irani v. Burjorji Dhunjibhai Contractor Khodaram Irani v. Burjorji Dhunjibhai Contractor Khodaram Irani v. Burjorji Dhunjibhai Contractor Vol. 30 MLJ 186 (part V); ii) Keshavlal Lallubhai Patel and Others v. Lalbhai Trikumlal Mills Ltd Keshavlal Lallubhai Patel and Others v. Lalbhai Trikumlal Mills Ltd Keshavlal Lallubhai Patel and Others v. Lalbhai Trikumlal Mills Ltd AIR 1958 SC 512 ; iii) Chand Rani v. Kamal Rani AIR 1993 SC 1742 : 1993(1) SCC 519 . 30 MLJ 186 (part V); ii) Keshavlal Lallubhai Patel and Others v. Lalbhai Trikumlal Mills Ltd Keshavlal Lallubhai Patel and Others v. Lalbhai Trikumlal Mills Ltd Keshavlal Lallubhai Patel and Others v. Lalbhai Trikumlal Mills Ltd AIR 1958 SC 512 ; iii) Chand Rani v. Kamal Rani AIR 1993 SC 1742 : 1993(1) SCC 519 . The learned senior counsel further submitted that the intention to treat the time as the essence of the contract may be established by circumstances to displace the normal presumption and in support of that, he relied upon the decision rendered in the case of Govind Prasad Chaturvedi v. Hari Dutt Shastri and Another Govind Prasad Chaturvedi v. Hari Dutt Shastri and Another Govind Prasad Chaturvedi v. Hari Dutt Shastri and Another AIR 1977 SC 1005 : 1977 (2) SCC 539 (para 5 and 6 at page Nos. 1007 and 1008). 18. The learned senior counsel further submitted that reasonable notice was not given by the first defendant to the plaintiff before issuing Exhibit A-5 cancellation letter and he further submitted that no prejudice would have been caused to the first defendant if the demand draft sent by the plaintiff had been accepted and the sale deed had been executed in favour of the plaintiff. 19. The learned senior counsel by relying upon the judgment rendered in the case of Boramma v. Krishna Gowda 2000 (9) SCC 214 (para No. 10), submitted that it will not be a sound rule of appreciation of evidence to pick up an answer from the cross-examination of a witness and draw an inference taking it in isolation, but the Court must see as to how consistent the testimony of the witness is and as to how that answer fits in with the rest of the evidence and probabilities of the case. The learned senior counsel therefore submitted that the argument advanced by the counsel for the appellant based on the isolated answer elicited from P.W. 1 is liable to be rejected. 20. By way of reply, Mr. N. Sridhar, learned counsel appearing for the first defendant/appellant submitted that 10.6.1985 was the last date for payment of the sale consideration and hence the first defendant treating time as of the essence of the contract cancelled the contract of sale within 12 days from 10.6.1985 by Exhibit A-5 dated 22.6.1985. 20. By way of reply, Mr. N. Sridhar, learned counsel appearing for the first defendant/appellant submitted that 10.6.1985 was the last date for payment of the sale consideration and hence the first defendant treating time as of the essence of the contract cancelled the contract of sale within 12 days from 10.6.1985 by Exhibit A-5 dated 22.6.1985. The learned counsel further submitted that both the plaintiff as well as the first defendant understood that time is of the essence of the contract. The learned counsel also submitted that the plaintiff, only after fully understanding the terms and conditions, made the offer and the plaintiff had understood the fact that time is of the essence of the contract. He further submitted that Clauses 8 and 9 should be viewed as offerors conditions and that is the difference between the regular contract of sale and a tender sale. He further submitted that the subject matter of sale in the case of Jamshed Khodaram Irani v. Burjorji Dhunjibhai, Contractor Jamshed Khodaram Irani v. Burjorji Dhunjibhai, Contractor Jamshed Khodaram Irani v. Burjorji Dhunjibhai, Contractor (supra), was not an immovable property but movables and therefore the law laid down therein is not applicable to the facts of this case. He further submitted that P.W.1s evidence does not show that time was extended by the first defendant. He further submitted that the decisions relied upon by the learned senior counsel for the plaintiff in support of his contention that time is not of the essence of the contract are not applicable to the facts of this case, since all those cases arose out of regular contracts of sale but not out of tender sales. The learned counsel submitted that the case reported in P.S. Durai Kanoo v. M. Saravana Chettiyar (supra), relates to an auction sale which is similar to a tender sale. Therefore, the learned counsel submitted that the law laid down in the decision reported in P.S. Durai Kanoo v. M. Saravana Chettiyar (supra) squarely applies to the facts of this case and applying the same, the appeal should be allowed. 21. On the basis of the above submissions made by the learned counsel, the following points arise for determination in the above appeal. (i) Whether a concluded contract has been arrived at between the plaintiff and the first defendant. 21. On the basis of the above submissions made by the learned counsel, the following points arise for determination in the above appeal. (i) Whether a concluded contract has been arrived at between the plaintiff and the first defendant. (ii) Whether the general rule that time is not deemed to be the essence of the contract in a regular contract of sale of immovable property is applicable to a tender sale and whether time was of the essence of the contract entered into between the plaintiff and the first defendant. (iii) Whether the decree for specific performance granted by the trial Court in favour of the plaintiff is sustainable. 22. (I) Whether a concluded contract has been arrived at between the plaintiff and the first defendant. (a) Admittedly the first defendant advertised the sale of the suit property and one another property by Exhibit A-2 fixing 14.2. 1985 as the last date for submission of filled in tender forms with Earnest Money Deposit (in short, EMD) and the plaintiff submitted its tender dated 14.2.1985. The offer of the plaintiff was accepted by the first defendant under Exhibit A-3 dated 11.5.1985. In Exhibit A-3 the first defendant confirmed the description of the property, its area, its price per cent as offered by the plaintiff in its tender and informed the plaintiff that the plaintiff may arrange to remit the balance sale consideration of Rs. 1,97,338/- after deducting the EMD of Rs. 10,000/- from the total sale consideration of Rs. 2,07,338/-. Further the first defendant was asked to arrange to purchase necessary stamp papers to enable the first defendant to prepare and execute the documents early. Therefore, in the considered view of this Court, nothing further remained to be done either by the plaintiff or by the first defendant after Exhibit A-3 except the payment of the sale consideration by the plaintiff as per the terms and conditions of tender and to purchase necessary stamp papers to enable the first defendant to prepare and execute the sale deed. The payment of balance of sale consideration and the execution of the sale deed relate to performance of the contract of sale and they are not conditions precedent to conclude the contract. The payment of balance of sale consideration and the execution of the sale deed relate to performance of the contract of sale and they are not conditions precedent to conclude the contract. The moment the first defendant had confirmed the offer of the plaintiff and accepted the same under Exhibit A-3, a concluded contract had been entered into between the plaintiff and the first defendant. (b) In sales by auction, the announcement about the auction is a mere invitation to offer, the request for bids by the auctioneer is not an offer which can be accepted by the highest bidder, the actual bids made are all offers, each higher bid superseding the previous bid, and that when the hammer falls on the last bid, there is an acceptance and the contract becomes complete. Acceptance signifies a final and unqualified assent to the terms of an offer. It means in general, the expression of assent by the person to whom the proposal is made. The moment a person expresses his acceptance of the offer, that moment the contract is concluded, and a vinculum juris binds both the parties from which, they cannot get out, except by mutual consent. Sir William Anson, very aptly compares the offer to a train of gun-powder and the acceptance to a lighted match stick. (c) If the above principles are applied to the facts of this case, there could never ever be an iota of doubt that a concluded contract has been arrived at between the plaintiff and the first defendant. The offer of the plaintiff dated 14.2.1985 made under Exhibit A-2 had been accepted by the first defendant by its letter of confirmation/acceptance by Exhibit A-3 dated 11.5.1985 and the moment the offer of the plaintiff had been accepted by the first defendant, a concluded contract had been arrived at. The tender sale of the suit property is equivalent to an auction sale and therefore the principles of law applicable to auction sale are equally applicable to tender sales. Tested in that light also it can be safely held that a concluded contract has been arrived at between the plaintiff and the first defendant. (d) Neither Mr. N. Sridhar, learned counsel for the appellant/the first defendant nor Mr. Tested in that light also it can be safely held that a concluded contract has been arrived at between the plaintiff and the first defendant. (d) Neither Mr. N. Sridhar, learned counsel for the appellant/the first defendant nor Mr. J. Raja Kalifullah, learned counsel for the second respondent/second defendant was able to point out as to what further the plaintiff or the first defendant had to do after Exhibit A-3. Neither the terms and conditions of the tender incorporated in Exhibit B-1, nor Exhibit A-3 stipulate anything further to be done either by the plaintiff or by the first defendant to conclude the contract of sale. When nothing further remained to be done, as stated above, the contention of the learned counsel for the appellant as well as the counsel for the second respondent that no concluded contract has been arrived at between the plaintiff and the first defendant is liable to be rejected. (e) The facts of the case in Larsen and Toubro Ltd., Calcutta v. Neyveli Lignite Corporation Ltd., Chennai and Another Larsen and Toubro Ltd., Calcutta v. Neyveli Lignite Corporation Ltd., Chennai and Another Larsen and Toubro Ltd., Calcutta v. Neyveli Lignite Corporation Ltd., Chennai and Another AIR 1999 Mad. 304 are totally different from the facts of this case. In that case the contention of the writ petitioner was that 25% of the plot cost paid by the petitioner was not only received but also realized and utilized and so it amounted to acceptance under the provisions of the Contract Act. The learned Judge did not accept the said submission on the ground that under Section 7 of the Indian Contract Act, the acceptance must be absolute and unqualified and it cannot be said that the confirmation is a formal one and by relying upon Clauses 8 and 9 of the tender conditions in that case, the learned Judge came to the conclusion that only if a successful bidder pays 25% of the plot cost, his bid will be considered for confirmation and the Chairman was having right to accept or reject any offer. On that reasoning, the learned Judge held that the acceptance of 25% of the plot cost, though it was a part of the sale consideration and though the said amount was realized, it could not be said that it was an absolute acceptance. On that reasoning, the learned Judge held that the acceptance of 25% of the plot cost, though it was a part of the sale consideration and though the said amount was realized, it could not be said that it was an absolute acceptance. The above said facts are different from the facts of this case since in this case the offer made by the plaintiff has been confirmed and accepted by the first defendant. Therefore, the above said decision is not of any help to the appellant. (f) Mr. J. Raja Kalifullah relied on the decisions Rajasthan Co-operative Dairy Federation Ltd. v. Mahalaxmi Mingrate Marketing Services Pvt. Ltd. (supra) and H. G. Krishna Reddy & Co. v. M. M. Thimmiah (supra) I fail to understand as to how the decision Rajasthan Co-operative Dairy Federation Ltd. v. Mahalaxmi Mingrate Marketing Services Pvt. Ltd. (supra) is relevant to the facts of this case. In that case, the validity of the cancellation of a contract and the applicability of the doctrine of audi alteram partem was considered and it was held that when the reasons for cancellation are clearly set out in the cancellation letter and are germane to the decision not to enter into a contract with the first respondent, the extraneous circumstances cannot be relied upon to hold the decision mala fide. Therefore, the said decision is not applicable to the facts of this case. (g) In Rickmers Verwaltung GMBH v. Indian Oil Corporation Ltd. (supra), in paragraphs 13 and 14 it is observed as follows: “ 13. In this connection the cardinal principle to remember is that it is the duty of the Court to construe correspondence with a view to arrive at a conclusion whether there was any meeting of mind between the parties, which could create a binding contract between them but the Court is not empowered to create a contract for the parties by going outside the clear language used in the correspondence, except insofar as there are some appropriate implications of law to be drawn. 14. From a careful perusal of the entire correspondence on the record, we are of the opinion that no concluded bargain had been reached between the parties as the terms of the stand by letter of credit and performance guarantee were not accepted by the respective parties. 14. From a careful perusal of the entire correspondence on the record, we are of the opinion that no concluded bargain had been reached between the parties as the terms of the stand by letter of credit and performance guarantee were not accepted by the respective parties. In the absence of acceptance of the standby letter of credit and performance guarantee by the parties, no enforceable agreement could be said to have come into existence. The correspondence exchanged between the parties shows that there is nothing expressly agreed between the parties and no concluded enforceable and binding agreement came into existence between them“. If the observation of the Honourable Supreme Court of India in paragraph 13 of the judgment is applied to the facts of this case, it could be seen that there was clear meeting of mind between the plaintiff and the first defendant creating a binding contract between them. Therefore, the above decision does not in any way help the case of the second defendant. (h) In H. G. Krishna Reddy and Co. v. M.M. Thimmiah and Another H. G. Krishna Reddy and Co. v. M.M. Thimmiah and Another H. G. Krishna Reddy and Co. v. M.M. Thimmiah and Another (supra), in paragraph 9 it is observed as follows: “ 9. It is now settled that if a document which is entered into between two parties and which is relied on as constituting a contract contemplates the execution of a further regular agreement between the parties, it is a matter of construction whether the execution of a further contract is a condition of the terms of a bargain or whether it is a mere expression of the desire of the parties as to the manner in which the original agreement should be performed. In the former case, there cannot be any enforceable contract unless the condition is fulfilled or on the ground that law does not recognize a contract to enter into a contract”. The above said observation made in that case clearly shows that the facts of the case are totally different from the case on hand and as such the said decision in no way helps the case of the second respondent. The above said observation made in that case clearly shows that the facts of the case are totally different from the case on hand and as such the said decision in no way helps the case of the second respondent. Therefore, the contention of the learned counsel for the appellant and second respondent does not merit acceptance and it is clear that a concluded contract had been arrived at between the plaintiff and the first defendant. 23. Whether the general rule that time is not deemed to be essence of the contract in a regular contract of sale of immovable property is applicable to a tender sale and whether time was of the essence of the contract entered into between the plaintiff and the first defendant. (a) It will be useful toextract the vital clauses of the terms and conditions of the tender viz., Exhibit B-1. ” (4) The sites can be inspected on any working day from 30.1.1985 to 6.2.1985 between 2.00 p.m. and 4.00 p.m. (5)…… (6)……. (7) The successful tenderer shall be intimated the acceptance of his offer and the sale confirmation letter will be posted to him within a reasonable period from the date of opening and finalisation of the tender. (8) On receipt of intimation of acceptance of tender, the successful tenderer shall within a period of 20 days from the date of the said letter, remit 50% of the value of the site allotted to him by Demand Draft and shall within a period of 30 days from the date of the said letter, arrange to pay the balance of the price and take the sale of the site, at his cost as to stamp duty, Registration and incidental charges. The EMD shall be adjusted against the said consideration at the time of the final payment. (9) If the successful tenderer fails to make the initial payment as per Clause 8 above or after having made the initial payment fails to make the final payment and take the sale as per Clause 8 above, the EMD paid by the tenderer will be forfeited and the site/sites allotted to the defaulting tenderer will be resold either to the second best tenderer or by the re-tender and all consequential losses and expenses arising on such re-sale/re-tender will be recovered from the defaulting tenderer. (10)… (11)… (12)… (13) Any tenderer not agreeing to comply with the Clauses 1 to 12 above is also liable to be summarily rejected.” (b) In Exhibit B-1 the partner of the plaintiff has affixed his signature accepting to abide by all the terms and conditions contained therein. So the plaintiff and the defendants are bound to abide by all the terms and conditions contained in Exhibit B-1. As per Clause 7 of Exhibit B-1, the first defendant intimated the acceptance of the plaintiffs offer and the sale confirmation letter Exhibit A-3 was posted to the plaintiff on 11.5.1985, which is within a reasonable period from the date of opening and finalisation of the tender. In fact, it was not the case of the plaintiff that Exhibit A-3 was sent beyond the reasonable period or after an unreasonable delay. But the contention of the plaintiff was that no time limit had been fixed in Exhibit B-1 for sending the confirmation letter by the first defendant. But Clause 7 effectively answers the said contention. The first defendant had to send the confirmation letter only within a reasonable period from the date of opening and finalisation of the tender and accordingly the confirmation letter Exhibit A-3 had been sent within a reasonable period. (c) A reading of Clause 8 of Exhibit B-1 shows that the plaintiff being the successful tenderer should have, within a period of 20 days (on or before 31.5.1985) from the date of confirmation letter namely Exhibit A-3 dated 11.5.1985, remitted 50% of the value of the site allotted to the plaintiff by Demand Draft and further the plaintiff within a period of 30 days ( i.e. on or before 10.6.1985) from Exhibit A-3 dated 11.5.1985 paid the balance of the price and taken the sale deed for the site at his cost as to stamp duty, registration and incidental expenses. The EMD shall be adjusted against the sale consideration at the time of final payment. (d) A reading of Clause 9 of Exhibit B-1 shows that if the successful tenderer, in this case the plaintiff, fails to make any one of the payments as stipulated in Clause 8, has to face the following consequences, viz., i) the EMD will be forfeited. ii) the site/sites allotted to the defaulting tenderer will be re-sold either to the second best tenderer or by re-tender. ii) the site/sites allotted to the defaulting tenderer will be re-sold either to the second best tenderer or by re-tender. iii) all consequential losses and expenses arising on such re- sale/re-tender will be recovered from the defaulting tenderer. Clause 13 of Exhibit B-1 stipulates that any tender not agreeing to comply with Clauses 1 to 12 is also liable to be summarily rejected. Only in satisfaction of Clause 13, the plaintiff had accepted, by signing Exhibit B-1, to abide by all the terms and conditions contained in Exhibit B-1. Therefore, it is clear that the plaintiff as well as the defendants are bound to abide by the terms and conditions contained in Exhibit B-1. (e) Clauses-8 and 9 of Exhibit B-1 are special clauses as rightly submitted by the learned counsel for the appellant. In this context the effect of default by the tenderer and the question of forfeiture of EMD have to be considered. Earnest Money Deposit represents a guarantee that the contract will be fulfilled, in other words, “earnest” is given to bind the contract. It is part of the purchase price when the transaction is carried out. It is forfeited when the transaction falls through by reason of the default or failure of the purchaser; and unless there is anything contrary in the terms of the contract, on default committed by the purchaser, the seller is entitled to forfeit the earnest. It is settled law that forfeiture of earnest money where the amount is unreasonable would not be governed by Section 74 of the Contract Act, since it is not a penalty. Generally, earnest money forms a small proportion to the consideration to be passed by the purchaser to the seller. When the purchasers conduct amounts to a total repudiation of the contract, the Court will not allow him to get back the earnest money on the principle that he could not be permitted to take advantage of his own wrong. In this case the earnest money fixed and paid is only Rs. 10,000/- which forms a small proportion to the sale consideration. (f) Normally in a regular contract of sale, the purchaser pays an advance, which will bear very great proportion to the totality of the consideration and the advance shall be regarded as liable to be refunded on the contract falling through. 10,000/- which forms a small proportion to the sale consideration. (f) Normally in a regular contract of sale, the purchaser pays an advance, which will bear very great proportion to the totality of the consideration and the advance shall be regarded as liable to be refunded on the contract falling through. (g) The second consequence of default being committed by the purchaser under Exhibit B-1 is that the site/sites allotted to the defaulting tenderer will be resold either to the second best tenderer or by retender. (h) The third consequence of default being committed by the purchaser under Exhibit B-1 is that the defaulting tenderer is liable to pay all consequential losses and expenses arising on such re-sale/re-tender. (i) These types of stipulations are only found in terms and conditions relating to tender sales and auction sales alone but not in regular contracts of sale. These terms and conditions are the distinguishing features of a tender sale or an auction sale from a regular contract of sale. Only in the light of these special features, contained in Exhibit B-1, the question as to whether time is of the essence of the contract in so far as the present case is concerned has to be considered. In the considered view of this Court the general rule that time is not of the essence of the contract applicable to regular contracts of sale is not applicable to the suit transaction, which is a tender sale. The stipulations contained in Exhibit B-1 have to be strictly construed in deciding the question as to whether the parties to the contract intended time to be of the essence of the contract. 24. Mr. S. Parthasarathy, learned senior counsel by relying upon the decision of the Privy Council in the case of Jamshed Khodaram Irani v. Burjorji Dhunjibhai Contractor (supra), submitted that in the case of contracts for the sale of land, time is presumed in equity not to be of the essence of the contract and specific performance will be enforced notwithstanding the failure to keep the dates assigned by the contract if justice can be done and there is nothing in the express stipulations, the nature of the property, or the surrounding circumstances which would make it inequitable to interfere with and modify the legal rights of parties. He further submitted that an intention that time should be of the essence of the contract may be inferred from what has passed between the parties prior to the signing of the contract but not from what takes place after the contract has been entered into unless it amounts to an agreement to modify the terms of the earlier contract. There cannot be any dispute regarding the above statement of law made by the Privy Council. But what the learned senior counsel failed to see is that the above said statement of law came to be made in the context of a private/regular contract of sale and not in respect of a tender sale and therefore that will not help the case of the plaintiff. In the same judgment, it is observed as follows: “The special jurisdiction of equity to disregard the letter of the contract in ascertaining what the parties to the contract are to be taken as having really and in substance intended as regards the time of its performance may be excluded by any plainly expressed stipulation. But to have this effect, the language of the stipulation must show that the intention was to make the rights of the parties depend on the observance of the time limits prescribed in a fashion which is unmistakable. The language will have this effect if it plainly excludes the notion that these time limits were of merely secondary importance in the bargain, and that to disregard them would be to disregard nothing that lay at its foundation…….Equity will further infer an intention that time should be of the essence from what has passed between the parties prior to the signing of the contract. Tilley v. Thomas where specific performance was refused, illustrates this class of transaction. But in such a case the intention must appear from what has passed prior to the contract, the construction of which cannot be affected in the contemplation of equity by what takes place after it has once been entered into.” If the terms and conditions in Exhibit B-1 are considered in the light of the above observations made by the Privy Council, it is clear that the stipulations show that the intention was to make the rights of the parties depend on the observance of the time limits prescribed in a fashion which is unmistakable. The above said consequences that have to be faced by the defaulting tenderer plainly exclude the notion that the time limits fixed in Clause 8 of Exhibit B-1 were of merely secondary importance in the bargain and in the considered view of this Court to disregard the said stipulations would be to disregard nothing that lay at their foundation. The above said view of this Court is fortified by a Division Bench judgment of this Court rendered in the case of Pichai Moideen Rowthar v. Chathurbuja Das Kushal Das and Sons and Others Pichai Moideen Rowthar v. Chathurbuja Das Kushal Das and Sons and Others Pichai Moideen Rowthar v. Chathurbuja Das Kushal Das and Sons and Others AIR 1933 Mad. 736 : Vol. 65 MLJ 491. In fact in this judgment the decision of the Privy Council reported in Jamshed Khodaram Krani v. Burjorji Dhunjibhai Contractor Jamshed Khodaram Krani v. Burjorji Dhunjibhai Contractor Jamshed Khodaram Krani v. Burjorji Dhunjibhai Contractor (supra) has been distinguished. In this decision, it is observed as follows: “At one time it was suggested by Mr. Varadachariar that this is not a contract in which time was of the essence of the contract. He relied on Jamshed Khodaram v. Burjorji Dhunjibhai. Whatever resemblance that may be in the terms of this and the terms of that contract there are certainly important differences. That was a private contract whereas the case before us is a case of auction”.