JUDGMENT A. K. GANGULY, C.J. : The order of termination of contract by order dated 18.7.2007 vide Annexure-13 is the subject matter of challenge in this writ petition. Even though the said order of cancellation was passed, the authorities have made it clear that the said termination will take effect on and from 18.10.2007 and in the meantime the petitioner has been allowed to continue the work. 2. The material facts of the case are that opposite party No. 1, viz., Mahanadi Coalfields Limited, a subsidiary of Coal India Limited, issued a notice inviting tender on 18.11.2005. In response to the same, the petitioner dropped its bid on 23.12.2005, which was within the scheduled time as extended by opposite party No. 1. After accepting the petitioner’s bid opposite party No. 1 issued a work order on 5.3.2006 in petitioner’s favour asking it to complete the work within a period of three years with effect from 3.3.2006. When the petitioner was carrying on its work opposite party No. 1 certificated that the petitioner had completed substantial portion of the work during the period from 3.3.2006 to 28.5.2006. 3. Some time thereafter the petitioner was asked to show cause as Chief Vigilance Officer of opposite party No. 1 vide its communication dated 11.8.2006 alleged that the petitioner - company, which is a joint venture of M/s. Karamjeet Singh & Co. Ltd. and M/s. Utkal Highways made incorrect statement regarding sale and delivery of surface miner being serial nos. 8210001 and 03216002990260. The petitioner, was therefore, asked to submit an explanation alongwith supporting documents on the points raised in the show cause within ten days from the date of receipt of the show cause. The petitioner gave its reply to show cause on 25.8.2006 stating therein that it was the lawful owner of the said surface miner at the time of dropping the tender and the said surface miner was purchased from M/s. Utkal Mines & Infra¬structure (Private) Ltd. against the sale deed on deferred payment basis by issue of post dated cheques as per mutual understanding between the seller and the purchaser. The petition¬er also submitted various documents including insurance policies showing the petitioner’s ownership of the surface miner, and payment of consideration amount for the same and also the partic¬ulars were given to the Chief Vigilance Officer. The petition¬er also submitted various documents including insurance policies showing the petitioner’s ownership of the surface miner, and payment of consideration amount for the same and also the partic¬ulars were given to the Chief Vigilance Officer. Even though the aforesaid explanation was furnished by the petitioner, the petitioner was never restrained from working and the petitioner was allowed to work in terms of the contract. Thereafter the petitioner was served with a set of questionnaire on 15th March, 2007. According to the petitioners, the said questionnaire is nothing but repetition of the queries raised in the show cause by the Chief Vigilance Officer. On 15.5.2007 the petitioner gave its reply to the questionnaire on the same lines of its reply to the show cause issued by the Chief Vigilance Officer. The petitioner was never informed anything about the outcome of the show-cause proceeding. Suddenly again on 19.6.2007 the opposite party No. 2 issued a notice alleging that the sale deed in support of ownership of the surface miner submitted by the petitioner was not genuine as the same was not valid and the petitioner was given time to submit its written statement of defence within 21 days. Consequently the petitioner gave its written statement of defence on 9.7.2007. Thereafter came the order of termination dated 18.7.2007 which was received by the petitioner on 20.7.2007. 4. Learned counsel for the opposite parties while accepting the aforesaid facts stated that the petitioner had submitted two sale deeds to satisfy the eligibility criteria about the ownership of surface miners in the tender condition. It was submitted that the petitioner, as a bidder under the tender condition, was to submit an affidavit in the prescribed pro forma on a non-judicial stamp paper duly sworn in before the Magistrate/Notary Public to the effect that the documents submit¬ted by it with the tender are genuine and correct and if in any part of the declaration given by the petitioner is found not genuine and incorrect then the tender will be rejected, the contract will be terminated, the earnest money will be forfeited and the petitioner will be debarred from participating in the subsequent tender of the company. It was stated by the learned counsel that the in the petitioner’s reply which was given in answer to the show cause of the Chief Vigilance Officer dated 11.8.2006 it was admitted that the entire sale consideration amount in respect of the surface miners was to be paid by the petitioner and the payment was made by post-dated cheques as per mutual agreement. According to the learned counsel for the opposite parties this shows that the petitioner did not pay the entire consideration money in respect of the surface miners at the time the petitioner submitted its tender. Therefore, its claim regarding ownership is not correct. The petitioner was also asked to furnish the sale deeds containing the correct information regarding full and final payment of the consideration value. According to the learned counsel, the sale deeds contain incorrect information regarding payment of full and final consid¬eration value by the purchaser which is in deviation with the undertaking given by the petitioner along with the tender docu¬ment in accordance with the Clause 10 of the Notice Inviting Tender. As such, the competent authority came to the conclusion that the petitioner has violated the provision of Clause 10 of the Notice Inviting Tender and therefore, the order was passed for terminating the contract. 5. These are the rival contentions by the learned counsel for the parties. 6. In order to find out whether the termination of contract is a correct decision or an arbitrary one, the Court has to consider the relevant part of the Tender document. Learned counsel for opposite parties has relied on Clause 8(c) of the Tender Notice. Clause 8(c) of the Tender Notice is as follows : “8. Eligibility Criteria : (c) ownership of a fleet of minimum 1/3rd of the tipping trucks/trucks and equipment required for the annualized work.” Clause 10 of the Tender Notice is as follows : “10. GENUINENESS OF CREDENTIALS : In Part-I envelope, the bidder must submit an affidavit in the prescribed pro forma (available I detailed NIT) on a non-judicial stamp paper valuing required amount as appropriate, duly sworn in before a Magistrate/Notary Public to the effect that all the supporting documents submitted with the tender are genuine and correct. GENUINENESS OF CREDENTIALS : In Part-I envelope, the bidder must submit an affidavit in the prescribed pro forma (available I detailed NIT) on a non-judicial stamp paper valuing required amount as appropriate, duly sworn in before a Magistrate/Notary Public to the effect that all the supporting documents submitted with the tender are genuine and correct. If it is found at any point of time that the said documents were not genuine then in that event the tender will be rejected or the contract will be terminated, earnest money will be forfeited and the tenderer may be debarred from participating in any further tender of this Company.” In this connection, learned counsel for the opposite parties submitted that Clause 2.0 of the special Terms and Conditions of contract further provides that the tenders should enclose docu¬ments in the Part-I of the Tender inviting bid to show the ten¬derer’s proposed arrangement of deployment for surface miners to achieve the ultimate daily average/monthly output capacity. It is not in dispute that in respect of those two surface miners the petitioner has produced two sale deeds. If we look at those sale deeds, it appears that the sale deed which was signed by M/s. Utkal Mines & Infrastructure (Pvt.) Ltd., was to the effect that said M/s. Utkal Mines & Infrastructure (Pvt.) Ltd., has sold and delivered one surface miner to M/s. Utkal Highways, At-Lingaraj OCP, P.O. Deulbera Colliery, Talcher, Dist. Angul (Orissa) and in the said sale deed the following declarations have been given : “(1) We have received full and final consideration value from the purchaser. (2) We have no objection on the said Surface Miner. (3) The said Surface Miner is not a theft one.” Similarly another sale deed was also produced by the petitioner towards purchase of another surface miner from the said M/s. Utkal Mines & Infrastructure (Pvt.) Ltd. and in the said sale deed it has been stated that the surface miner was sold and delivered to M/s. Karamjeet Singh & Company Limited. In the said sale deed the following declarations were appended. “(1) We have received full and final consideration value for Rs. 1,25,00,000/- (Rupees one crore twenty five lac only) from the purchaser. (2) We have no objection on the said Surface Miner. In the said sale deed the following declarations were appended. “(1) We have received full and final consideration value for Rs. 1,25,00,000/- (Rupees one crore twenty five lac only) from the purchaser. (2) We have no objection on the said Surface Miner. (3) The said Surface Miner is not a theft one.” The petitioner has also filed an affidavit regarding genuineness of the declaration in terms of Clause 10 of the Tender document. In the said affidavit it has been stated by the petitioner as follows : “(i) We are submitting Tender by the name and style of M/s. KJSL Utkal (JV) for the work ‘Extraction and transfer of cal/coal measure strata by deploying surface miners on hiring basis at Ananta OCP, Jagannath Area of MCL’ against Tender Notice No. MCL/SBP/GM (TC)/NIT-377/2005/1168 dated 18.11.2005 && Corrigendum Notice No. HCL/SBP/GM(TC)/NIT-376, 377 & 378/2005/1292 dated 10.12.2005. (ii) None of the partners of our firm is relative of employ¬ee of Mahanadi Coalfields Ltd. (iii) All information furnished by us in respect of fulfilment of eligibility criteria and qualification information of this Tender is complete, correct and true. (iv) All documents/credentials submitted along with this Tender are genuine, authentic, true and valid. (v) If any information and document submitted is found to be false/incorrect at any time, department may cancel my Tender and action as deemed fit may be taken against us, including termina¬tion of the contract, forfeiture of all dues including Earnest Money and banning/delisting of our firm and all partners of the firm etc.” 7. The case of the opposite parties is that the said affidavit which has been filed is false and incorrect inasmuch it appears on record that full and final payment of consideration value of the two surface miners was not paid to the seller on the date of submission of tender by the petitioner. The fact that consideration money was paid by post-dated cheques is admitted by the petitioner. The petitioner furnished incorrect documents in connection with the contract and therefore, termination of the contract was validly done. 8. Learned counsel for the petitioner on the other hand submitted that the sale can take place on various terms which are mutually agreed upon between the seller and the purchaser. In the instant case, the sale had taken place on deferred payment basis. 8. Learned counsel for the petitioner on the other hand submitted that the sale can take place on various terms which are mutually agreed upon between the seller and the purchaser. In the instant case, the sale had taken place on deferred payment basis. Learned counsel submitted that the entire case of the opposite parties is based on a misunderstanding of the concept of sale and this appears from the report of the Chief Vigilance Officer. Learned counsel for the petitioner submits that in view of the definition of ‘sale’ as defined in different Acts, the stand of the opposite parties cannot be substantiated. 9. Learned counsel has referred to the definition of ‘sale’ under Section 2(g) of the Orissa Sales Tax Act, 1947. Under Section 2 (g) of the said Act, it appears that the word ‘sale’ means the transfer of property in goods for cash or deferred payment or other valuable consideration. Therefore, a sale can take place by transfer of any property in goods by payment of entire money either by cash or by way of deferred payment or by any other valuable consideration. The other modes of sale are also stated to be delivery of goods on hire purchase or any system of payment by instalments. Therefore, the deferred payment of consideration does not prevent a sale from taking place. 10. Learned counsel for the petitioner has referred to Sections 5, 19 and 20 of the Sale of Goods Act, 1930 and argued, and in our view rightly, that a sale may take place where there is an offer to buy or sell goods for a price and its acceptance. Such contract of sale may provide for the immediate delivery of the goods or immediate payments of the price or both. It may also provide for the delivery or payment by instalments or postponement of both delivery and payment. Such a contract of sale may be made either orally or in writing, or partly in writing and partly orally and it may be implied from the conduct of the parties. It may also provide for the delivery or payment by instalments or postponement of both delivery and payment. Such a contract of sale may be made either orally or in writing, or partly in writing and partly orally and it may be implied from the conduct of the parties. Section 19 of the said Act also provides that where there is a contract for the sale of movable property and the goods are transferred to the buyer at such time as the parties to the contract intend it to be transferred and for the purpose of ascertaining the intention of the parties regard must be had to the contract. Section 20 further provides that where there is an unconditional contract for the sale of specific goods in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment of the price or the time of delivery of the goods, or both, is postponed. 11. Reference has also been made to Section 54 of the Transfer of Property Act. The said definition, however, applies to sale of immovable property. In defining the word ‘sale’ in Section 54 of the said Act, the same concept as in the Sale of Goods Act has been reiterated. Under Section 54 of the T.P.Act, it is provided that ‘sale’ is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. 12. Learned counsel for the petitioner relying on the aforesaid definition of ‘sale’ submitted that in the instant case the sale of surface miners had taken place and this was clear from the intention of the parties. The goods had been delivered to the petitioner, there is a contract of sale and also a contract of deferred payment. Though on the date the petitioner submitted the tender the petitioner did not pay the entire consideration money but it cannot be said that the sale had not taken place. 13. In the case of Agricultural Marketing Committee vrs. Shalimar Chemical Works Ltd., reported in (1997) 5 SCC 516 , learned Judges of the Hon’ble Supreme Court dealt with the provisions of Sections 19 and 20 of the Sale of Goods Act. 13. In the case of Agricultural Marketing Committee vrs. Shalimar Chemical Works Ltd., reported in (1997) 5 SCC 516 , learned Judges of the Hon’ble Supreme Court dealt with the provisions of Sections 19 and 20 of the Sale of Goods Act. While dealing with the said provisions, learned Judges held that in a contract of sale, property in the goods may pass at the time of delivery or at the time of payment of price or even at the time of making of contract. It all depends upon the intention of the parties and the Court has to ascertain the intention of the parties and in doing so, they have to be guided by the principles laid down in Section 19(2) of the Sale of Goods Act. In the instant case, the intention of parties is clear and the seller has pursuant to that intention, has transferred the property in the goods, to the petitioner-buyer, despite the contract of deferred payment. It is clear from a combined reading of Sections 5, 19 and 20 of Sale of Goods Act that, ‘deferred payment’ is an accepted mode of payment of consideration money and if that mode of payment is accepted by the seller, the intention of the party is clear and the property in the goods passes on to the purchaser. In the present day situation of commercial transaction, it is difficult for this Court to ignore the mode of deferred payment in sale and purchase of goods. Therefore, it is not possible for this Court to accept just because the payment was made by the petitioner by post dated cheques any incorrect representation was made by the petitioner at the time of submission of its tender. 14. In the case of State of Rajasthan & another v. Rajasthan Chemists Association, reported in AIR 2006 SC 2699 , learned Judges of the Supreme Court have pointed out the neces¬sary ingredients of sale. Learned Judges have pointed out at paragraph 15, page 2704 of the report that in order to constitute a valid sale, there are four ingredients, first of which is that the party was competent to contract, the second one is there was mutual assent, third thing is that thing of sale or general property must be transferred from the seller to buyer and fourth thing is that money may be paid or promised. In the instant case, all the constituents of sale formulated by the learned Judges of the Supreme Court are present. The same principles have been reiterated by the learned Judges in paragraph 21 at page 2704-2705 of the report. 15. Apart from that, in the facts of this case, it appears that the opposite parties have allowed the petitioner to continue working even after the Vigilance Enquiry was held in the month of August, 2006. The opposite parties have entered into an agreement and signed the formal agreement on 17.22007 for working with them. This appears from the communication of opposite party dated 20.2.2007. The agreement was signed after the approval to the same was given by the General Manager on 24.1.2007. From the said conduct of the party, it is clear that the opposite parties have virtually accepted the petitioner’s explanation which was given by it in answer to the show-cause proceeding of the Chief Vigi¬lance Officer. 16. It is well known that a party can waive stipulations in the contract which are made for its benefit. Reference in this case is made to the judgment of the Supreme Court in the case of Ramdev Food Products (P) Ltd. v. Arvindbhai Rambhai Patel and others, reported in (2006) 8 SCC 726 . In paragraph 74 at page 761-762 of the judgment, learned Judges quoted from Halsbury’s Laws of England, 4th Edn., Vol. 16, para 1471, in order to ex¬plain the concept of waiver. The learned Judges held that a person who is entitled to rely on a stipulation which exists for his benefit alone in a contract or in a statutory provision, may waive it and allow the contract or transaction to proceed as if the stipulation or provision did not exist and waiver of this kind depends upon consent and the fact that the other party has acted on it. In the instant case, it was open to the opposite parties not to enter into any formal agreement with the petition¬er after the show-cause proceeding was initiated by the Chief Vigilance Officer. By entering into an agreement the opposite parties thereafter, have in the facts of this case, virtually waived the right to insist on the stipulation in the tender form about the incorrect submission of documents by the petitioner. 17. By entering into an agreement the opposite parties thereafter, have in the facts of this case, virtually waived the right to insist on the stipulation in the tender form about the incorrect submission of documents by the petitioner. 17. This argument noted hereinabove has been made by the learned counsel for the petitioner in the alternative and this Court finds that this is a very valid argument in the facts of this case. Similar views have been expressed by the Hon’ble Supreme Court in the case of B.L.Sreedhar and others v. K.M.Munireddy and others, reported in (2003) 2 SCC 355 . Here also again quoting from Halsbury’s Laws of England, 3rd Edn., Vol. 14, in Article 1175 at page 637, the learned Judges explained the concept of waiver. Learned Judges held that waiver can be expressed or implied from the conduct of the parties and the learned Judges held that a person who is entitled to the benefit of a stipulation in a contract or of a statutory provision may waive it. Learned Judges also held following the Halsbury’s Laws of England that the essence of waiver is estoppel and where there is no estoppel, there can be no waiver. However there is an essential difference between the two, namely that estoppel is a rule of evidence and waiver is a rule of conduct. Similar principles have been expressed by the Hon’ble Supreme Court in the case of Lachoo Mal v. Radhye Shyam, reported in AIR 1971 SC 2213 . (see paragraph 6 and 7). 18. It cannot be said that the singing of contract by the opposite parties in February, 2007 is not an intentional conduct on their part. By signing the contract despite the pendency of a show-cause proceeding at the instance of Vigilance Commission, the opposite parties have waived their right to terminate the contract on the same facts on which the show-cause proceeding was pending. 19. In the context of the aforesaid facts and the legal position, the argument of the learned counsel for the opposite parties is that the petitioner has suppressed the facts about the contents of the sale deed. Such an agreement cannot be accepted. It cannot be said that the petitioner suppressed any part of the sale deed, in fact they were disclosed and have been set out herein above. There has been no misdeclaration on the part of the petitioner. Such an agreement cannot be accepted. It cannot be said that the petitioner suppressed any part of the sale deed, in fact they were disclosed and have been set out herein above. There has been no misdeclaration on the part of the petitioner. Therefore, the judgment which was cited by the learned counsel for the opposite parties in the case of Shiv Kant Yadav v. Indian Oil Corporation and others, reported in AIR 2007 SC 1534 does not apply to the facts of this case. In that judgment, the applicant made mis-declaration about certain facts in the application form. Here, everything has been disclosed in the tender document. The question is what is the legal effect of the same. As had already been discussed, in view of deferred payment it cannot be said that the sale has not taken place. In the facts of this case, the decision in the case of Shiv Kant Yadav has also no application. Similar views have been expressed by the Supreme Court in the case of Union of India and others v. M. Bhaskaran, reported in 1995 Supp. (4) SCC 100. In that case, persons procured their employment as workmen in railway on the basis of bogus and forged casual labour service cards. In that case, learned Judges held that the workmen were guilty of mis-representation and fraud. Therefore, the same amount to mis-conduct. But the instant case, no fraud has been practised by the petitioner and the petitioner has disclosed all the particulars and after disclosure of all the particulars the bid of the petitioner was accepted and even after enquiry by the Vigilance Officer, the agreement was entered into with the petitioner by the opposite parties. 20. Learned counsel for the opposite parties also relied on a decision of the Supreme Court in the case of Kerala State Electricity Board and another v. Kurien E. Kalathil and others, reported in AIR 2000 SC 2573 . Learned counsel for the opposite parties have also relied on a judgment of the Supreme Court in the case of State of Andhra Pradesh and another, v. T. Suryachandra Rao, reported in AIR 2005 SC 3110 . In that judgment, learned Judges of the Supreme Court described what is meant by fraud. The proposition of law formulated by the learned Judges about fraud are settled proposition. In that judgment, learned Judges of the Supreme Court described what is meant by fraud. The proposition of law formulated by the learned Judges about fraud are settled proposition. But in the instant case, there has been no fraud on the part of the petitioner. Therefore, the principles laid down in the aforesaid judgment has no appli¬cation in the facts of this case. Similarly, decision of the Supreme Court in the case of Kendriya Vidyalaya Sanghathan v. Ram Ratan Yadav, reported in AIR 2003 SC 1709 on the question of suppression of material facts has also no application in the facts of this case inasmuch as no suppression has been made by the petitioner. 21. For the reasons aforesaid, this Court finds that the action on the part of the opposite parties in terminating the contract cannot be sustained in the eye of law. In any event, the said attempt of termination of contract is a half hearted one, inasmuch as even after the termination has been made, the petitioner has been allowed to continue by the opposite parties. For the reasons aforesaid. This Court is constrained to set aside the order of termination of contract made by the opposite parties and as such the order dated 18.7.2007 at Annexure-13 which has been incorporated in the writ petition by amendment vide Misc. Case No. 8937 of 2007 is quashed. 22. The writ petition is allowed to the extent indicated above. There shall be no order as to cost. Misc. Case Nos. 8522/2007 and 8937/2007 are also disposed of. I. MAHANTY, J. I agree. Order accordingly.