Judgment 1. In Special Civil Suit No.568 of 1991 for recovery of Rs.22,76,673/ towards blast hole drilling works carried out by the appellant/plaintiff during the period from 26.11.1989 to 31.3.1990, the Trial Court has passed a decree on 12.7.1994, holding that the appellant/plaintiff is entitled to recover the total amount of Rs.1,03,811.20 from the respondent/defendant – Mineral Exploration Corporation Ltd., with interest at the rate of 6% per annum from the date of filing of the suit till its realization. The decree is based upon the rate of Rs.115/per meter as against the claim of the appellant/plaintiff at the rate of Rs.140/per meter. The appellant/plaintiff has, therefore, filed First Appeal No.429 of 1994 for enhancement of the claim, whereas the respondent/defendant Mineral Exploration Corporation Limited (MECL), the employer, has filed First Appeal No. 596/1994 challenging the decree passed by the Trial Court. 2. The appellant/plaintiff is a contractor whereas, the respondent/defendant is the statutory body viz. The Mineral Exploration Corporation Ltd., which engaged the plaintiff for the works in question. The parties shall hereafter be called/referred to according to their original status as the “plaintiff” and the “defendant”. 3. The points for determination, which arise in the present appeals, are as under : (I) Whether there was a concluded contract entitling the plaintiff to recover the amount of blast hole drilling work at the rate of Rs.140/per meter for the period from 26.11.1989 to 31.3.1990?, and (II) Whether the decree passed by the Trial Court for an amount of Rs.1,03,811.20 on the basis of the rate of Rs.115/ per meter is deficient? As to Point No.(I) : 4. The plaintiff placed reliance upon the offer made by him at the rate of Rs.140/per meter, in the tender submitted on 16/17.11.1989. According to him, he was allowed to start the work on 26.11.1989, which he carried out till 10.1.1990, when he was asked to stop the work by the letter at Exhibit 47 issued by the defendant. The plaintiff thereafter continued with the said work, in view of the subsequent letter dated 12.1.1990 at Exhibit 49 issued by the defendant and it was discontinued with effect from 31.3.1990 by issuing another communication dated 15.1.1990 at Exhibit 50 issued by the defendant. The plaintiff thereafter continued with the said work, in view of the subsequent letter dated 12.1.1990 at Exhibit 49 issued by the defendant and it was discontinued with effect from 31.3.1990 by issuing another communication dated 15.1.1990 at Exhibit 50 issued by the defendant. The plaintiff examined the power of attorney Uday Gopichand Sanghi at Exhibit 41, stating that there was a concluded contract and the rate of Rs.140/per meter was accepted by the defendant and there being no dispute about the actual work carried out, the claim of Rs.22,76,673/ at the rate of Rs.140/ for the period from 26.11.1989 to 31.3.1990 was required to be granted. 5. The defendant filed its written statement and opposed the claim. It is the stand taken that there was no concluded contract accepting the offer of Rs.140/ per meter given by the plaintiff. The defendant examined DW2 Shriniwasan Jairaman, the Director of Finance, who deposed in support of the stand taken in the written statement that the work was allotted to the plaintiff by the Area Manager who was not authorized and the Director of the Finance was not consulted in the matter. He deposed that there was no understanding between the plaintiff and the defendant company regarding the rate at which the work is to be allotted. He admitted that certain payments were made to the plaintiff. 6. It is the stand taken by the defendant that the bids for the work in question were received from the plaintiff along with three other parties i.e. (i) Gupta Rig Industries, Nagpur, (ii) Shree Borewells, Nagpur and (iii) M/s. Metro Drill Equipment (P) Ltd., Bombay. All the parties quoted the same rate of Rs.140/per meter. The plaintiff was allowed to carry out the work in question from 26.11.1989 to 31.03.1990. The circumstances under which all the parties quoted the same rate, the submission of quotation by plaintiff after the last date, the plaintiff was allowed to carry out the work on oral advise, and the release of the advance payment to the plaintiff was under the investigation by the C.B.I. The defendant examined DW1 Narendra Shankar Varsney, a Company Secretary and Chief Vigilance Officer of the defendant, who was authorized to carry out the preliminary investigation by the Chairman. He submitted his report at Exh. 92, dated 30.04.1991. It is the stand taken that the matter was under negotiation and investigation. He submitted his report at Exh. 92, dated 30.04.1991. It is the stand taken that the matter was under negotiation and investigation. The plaintiff was allowed to carry out the work subject to negotiations regarding the fixation of rate. The plaintiff submitted his revised offer at the rate of Rs. 134/ per meter on 23.01.1990 at Exh. 75 along with the other tenderers and the defendant ultimately fixed the rate at Rs. 115/ per meter after negotiations. The plaintiff was entitled to the payment at the rate of Rs.115/per meter and not at Rs.140/ per meter. 7. In the light of the rival submissions, it is required to be decided as to whether there was a concluded contract between the plaintiff and the defendant for the blast hole drilling works at the rate of Rs. 140/ per meter. The learned counsel for the parties have invited my attention to the provisions of Sections 3 and 7 of the Indian Contract Act, 1872, which are reproduced below; (3) Communication, acceptance and revocation of proposals. The communication of proposals, the acceptance of proposals, and the revocation of proposals and acceptances, respectively, are deemed to be made by any act or omission of the party proposing, accepting or revoking by which he intends to communicate such proposal, acceptance or revocation, or which has the effect of communicating it. (7) Acceptance must be absolute. In order to convert a proposal into a promise, the acceptance must (1) be absolute and unqualified; (2) be expressed in some usual and reasonable manner, unless, the proposal prescribes the manner in which it is to be accepted. If the proposal prescribes a manner in which it is to be accepted, and the acceptance is not made in such manner, the proposer may, within a reasonable time after the acceptance is communicated to him, insist that his proposal shall be accepted in the prescribed manner, and not otherwise; but, if he fails to do so, he accepts the acceptance. From the aforesaid provisions, it is clear that mere silence in response to any proposal does not amount to its acceptance. In the absence of written communication of the acceptance of proposal, the act or the conduct of parties or the correspondence between them must show meeting of mind between the parties to create a binding contract on the material terms. In the absence of written communication of the acceptance of proposal, the act or the conduct of parties or the correspondence between them must show meeting of mind between the parties to create a binding contract on the material terms. The acceptance must be shown to be absolute and unqualified and without any reservations or conditions. 8. After taking into consideration the provisions of Section (3) and Section (7) of the Indian Contract Act, the Apex Court has held in case of U.P. Rajkiya Nirman Nigam Ltd vrs. Indure Pvt. Ltd., and others, reported in AIR 1996 SC 1373 in paragraph 9 that in the absence of any consensus ad idem on the material terms of contract to be entered into between the parties, there emerges no concluded contract. 9. In the subsequent decision of the Apex Court in case of Rickmers Verwaltung GMBH vrs. Indian Oil Corporation Ltd., reported in (1999) 1 SCC 1 , the following principles of law are laid down in paragraph 13 which is reproduced below. 13. In this connection the cardinal principles 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 appropriate implications of law to be drawn. Unless from the correspondence, it can unequivocally and clearly emerge that the parties were ad idem to the terms, it cannot be said that an agreement had come into existence between them through correspondence. The court is required to review what the parties wrote and how they acted and from that material to infer whether the intention as expressed in the correspondence was to bring into existence a mutually binding contract. The intention of the parties is to be gathered only from the expressions used in the correspondence and the meaning it conveys and in case it shows that there had been meeting of mind between the parties and they had actually reached an agreement upon all material terms, then and then alone can it be said that a binding contract was capable of being spelt out from the correspondence. The Apex Court has held that it is the duty of the court to construe the 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. While doing this, 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. Unless from the correspondence it can unequivocally and clearly emerge that the parties were ad idem to the terms, it cannot be said that an agreement had come into existence between them through correspondence. The intention of the parties is to be gathered only from the expressions used in the correspondence and the meaning it conveys showing that they had actually reached an agreement upon all material terms. 10. It is the plaintiff who is coming before the Court with a plea that it was a concluded contract between the parties determining the rate at Rs. 140/ per meter for the work of blast hole drilling. In view of Sections 102 and 103 of the Evidence Act, the burden of proof to show that the rate was fixed at Rs.140/per meter lies upon the plaintiff, who would fail if this fact is not proved. It is the plaintiff who want the court to believe in existence of this fact. He may either prove this fact by producing on record any documentary evidence or by showing conduct of parties, accepting rate of Rs. 140/per meter in an absolute and unqualified manner, which can also be spelt out from the correspondence between the parties. 11. It is the averment in the plaint and also a statement in the deposition of PW1 that there was no formal order issued by the defendant for the work in question, accepting the terms and conditions given by the plaintiff including one in respect of the rate of Rs.140/per meter. It is not in dispute that the plaintiff has not produced even a single document to show that the defendant had allotted the work at the rate of Rs. 140/per meter and this is also the finding recorded by the trial court, which has not been assailed in this appeal. It is not in dispute that the plaintiff has not produced even a single document to show that the defendant had allotted the work at the rate of Rs. 140/per meter and this is also the finding recorded by the trial court, which has not been assailed in this appeal. PW1 examined by the plaintiff has stated in his evidence that the defendant allotted the work of blast hole drilling at the rate of Rs. 140/per meter by verbal order. PW1 is the Power of Attorney Holder of the plaintiff and there is nothing in his evidence to show as to when and by whom such verbal order was given. 12. The trial Court has recorded the finding that PW2 and PW3 examined by the plaintiff are not on the point that the defendant had allotted the work in question at the rate of Rs. 140/ per meter and they have not uttered even a single word about it in their depositions. The trial Court holds that none of the witnesses examined by the plaintiff supported the version of PW1. The trial Court further holds that PW1 admits in his cross examination that no letter in writing was given by the defendant putting as to what rate would the plaintiff get for the work done, which discloses that no rate of blast hole drilling was fixed by the defendant. In fact, the plaintiff firm was required to examine its partner, but none of the partners have entered the witness-box for the reasons best know to the plaintiff. The trial Court has, therefore, recorded the finding that the oral evidence led by the plaintiff is not enough to hold that the defendant had allotted the work in question at the rate of Rs. 140 per meter. I do not find any reason to take different view of the matter. 13. It is not in dispute that the plaintiff has performed the work in question during the period from 26.11.1989 to 31.03.1990 and certain payments have also been made by the defendant to the plaintiff. It is the specific averment in the plaint that the partners of the defendant did assure the plaintiff that the formal order will be issued in due course of time and looking to the past relations, the plaintiff in good faith relying upon the assurances, commenced the work on 26.11.1989. It is the specific averment in the plaint that the partners of the defendant did assure the plaintiff that the formal order will be issued in due course of time and looking to the past relations, the plaintiff in good faith relying upon the assurances, commenced the work on 26.11.1989. The defendant also accepts in its written statement and evidence that there was urgency to carry out the work and keeping in view the financial difficulties and request made by the plaintiff, some advance was released. It was only a part payment which was made. The trial Court has considered the terms and conditions of the contract Exh. 74, which require the bills submitted to bear a certificate of acceptance for payment. The plaintiff has not produced any evidence on record to show that such certificate was issued. There is nothing on record to show that such payments were made by accepting the rate of Rs. 140/per meter. I do not find any reason to take a different view of the matter. 14. The question of submission of quotation by the plaintiff after the last date; the award of work on oral advise and the circumstances under which all the four parties quoted the same rate for the work in question were the matters under investigation. The defendant has examined DW1 Narendra Shankar Varsney, who conducted preliminary investigation and submitted his report dated 30.04.1991 at Exh. 92. In this report, the finding is recorded that the quotations were invited in sealed covers only from three parties on 16.11.1989, namely Gupta Rig Industries, Nagpur; Shree Borewells, Nagpur and M/s. Metro Drill Equipment (P) Ltd., Bombay, who submitted their bids on 17.11.1989. The contents of report show that the plaintiff was neither asked by the defendant on 16.11.1989, nor the plaintiff submitted his quotation by due date of 17.11.1989. The quotation of the plaintiff was received on 18.11.1989. All the firms quoted the same rate of Rs. 140/ per meter and the plaintiff was allowed to start the work without issuing any order of allotment in writing and the payments were also released to him without there being any agreement. The allotment of work to the extent of Rs. 48.94 lakhs was beyond delegation of powers to the C.M.D by the Board. 15. 140/ per meter and the plaintiff was allowed to start the work without issuing any order of allotment in writing and the payments were also released to him without there being any agreement. The allotment of work to the extent of Rs. 48.94 lakhs was beyond delegation of powers to the C.M.D by the Board. 15. Coming to the correspondence placed on record, Exh.46 is the letter issued by the plaintiff to the defendant quoting the rate of Rs.140/ per meter. There is no document placed on record indicating response by the defendant to the communication at Exh. 46. On 10th January, 1990, the defendant issued communication at Exh.47 to the plaintiff regarding discontinuation of blast hole drilling work at Wani. The said communication is reproduced below. “No.9/Blast Hole/8990 10 JANUARY 1990 M/s. Shri Somyia Enterprise, Drilling Contractor (Madras), Ramdaspeth, Nagpur. Sir, Sub: Discontinaution of Blast Hole Drilling at Wani & Asasti of WCL Area. We are calling fresh enquiries from the different parties for hiring of the drilling equipments with accessories and maintenance crew for conducting the Blast Hole drilling. In this connection you are hereby directed to stop this work within seven days time from the date of issue of this letter. Yours faithfully, Sd/Area Manager c.c. Chief Manager (P&C), MECL, Nagpur. Area Manager” The defendant has informed the plaintiff that fresh enquiries are being made and hence the plaintiff was directed to stop the work. 16. Exh. 48 dated 11.01.1990 is the communication by the plaintiff in response to Exh. 47. The said communication is reproduced below; “File S.S.E./8990/ D1/2 11.1.1990 To, The Area Manager, Mineral Exploration Corporation Ltd., Nagpur. Subject : Blast Hole Drilling work at New Majri Open Cast, Sasti of W.C.L. Area. Sir, We refer to your letter NO.9/Blast Hole/8990, dated 10.1.90 and as instructed by you, we confirm that our drilling machine at present deployed with men and material for doing blast hole drilling at Wani Project shall be withdrawn w.e.f. 17.1.1990. As you are aware, our machine was put in operation w.e.f. 16.11.1989 and from time to time we were advised that we should make all necessary arrangements of men and material required to operate this machine for blast hole drilling to render round the clock drilling upto 31.3.1990. Accordingly, we had made all necessary arrangements and stocked required material for the purpose by paying advances to various suppliers. Accordingly, we had made all necessary arrangements and stocked required material for the purpose by paying advances to various suppliers. However, keeping in view your instructions, we shall withdraw the machine although the same would mean considerable loss on account of expenditures incurred by us for keeping the machine in operation till 31.3.1990. We are submitting herewith our bill for the drilling carried out till 10.01.1990 based on the agreed hire charges of Rs.140/ per mtr inclusive of all inputs including machine and labour charges. Bill for the balance work to be carried out till 16.01.1990 shall be submitted by us by 19.01.1990. We request you to kindly arrange to release payment of the enclosed bill amounting to Rs. 16,80,000/. We are also enclosing along with the bill photo copies of joint measurements for your record and would produce original of the same if so required by you as we understand the same is also maintained at your Project level. In your letter dated 10.01.1990 you have indicated that you are calling fresh quotations for the work beyond 16.01.1990. We have so far not received any enquiry for the same. We hope while calling quotations, we shall also be considered as we have already established our performance to the entire satisfaction of the MECL. Thanking you, Yours faithfully, for Shri Sowmiya Enterprises sd/C. C. To : The Chief Manager (P&C) WCL Nagpur” The plaintiff informed the defendant that the bills for drilling carried out till 10.01.1990 based on agreed hire charges of Rs.140 per meter inclusive of all inputs including machine and labour charges are submitted alongwith the said communication. It request for release of payment. In the last paragraph of the said communication, it is stated that while calling the fresh quotations, the plaintiff should also be considered as it had already established the performance to the satisfaction of the defendant. 17. The defendant on 12th January, 1990, issued communication at Exh. 49, which is also reproduced below. “No.9/Blast Hole/8990 January 12, 1990. M/s. Somyia Enterprises Drilling Contractor (Madras), Ramdaspeth, Nagpur. 17. The defendant on 12th January, 1990, issued communication at Exh. 49, which is also reproduced below. “No.9/Blast Hole/8990 January 12, 1990. M/s. Somyia Enterprises Drilling Contractor (Madras), Ramdaspeth, Nagpur. Sub : Discontinuation of Blast Hole Drilling at Wani and Sasti of WCL Area Dear Sir, Further to my letter No. 9/Blast Hole/8990, dated 10th January, 1990, and in view of the urgency of the work, we may continue to hire your rigs beyond 7 days, provided you agree to receive hiring charges at a rate which we may get after competitive tendering, if that happens to be lower than the present hiring charges of your rig. In case we get the rates higher than what we are paying now, you will be paid only the existing rates. You may kindly send your acceptance, if this offer is agreeable to you and continue to provide your rigs on hire to MECL till further notice or completion of the present work, whichever is earlier. Thanking you, Yours faithfully, sd/AREA MANAGER” The defendant made it clear to the plaintiff that the plaintiff may continue the work and shall be paid at the competitive rate if it is received lower than the rate quoted by the plaintiff. It further makes it clear that if the rates received are higher that the rates quoted by the plaintiff then the plaintiff would be entitled to existing rates. 18. From the notices at Exh. 60 dated 07.05.1990 and at Exh. 62 dated 28.05.1990, issued by the plaintiff to the defendant, it is clear that there was a meeting between the plaintiff and the defendant in the month of January, 1990, wherein the matter regarding the rate of Rs.140/ per meter offered by the plaintiff was discussed. It was made clear to the plaintiff that an enquiry to find out the competitive rates was being conducted and the rate of Rs.140/ per meter offered by the plaintiff was subject to such rates to be fixed. The plaintiff also participated in such enquiry and submitted rate of Rs.134/ per meter for Wani area and this was by communication dated 31.03.1990 at Exh.75. In such enquiry, rate of Rs. 115/was found to be lowest and when it was offered to the plaintiff, it was declined. Thus, there was no concluded contract accepting offer of Rs.140/ per meter. The matter was throughout pending subject to negotiations. In such enquiry, rate of Rs. 115/was found to be lowest and when it was offered to the plaintiff, it was declined. Thus, there was no concluded contract accepting offer of Rs.140/ per meter. The matter was throughout pending subject to negotiations. The plaintiff was not entitled to a rate of Rs.140/ per meter for the period from 26.11.1989 to 31.03.1990. The point No.1 is answered accordingly. 19. In First Appeal No. 596, the defendant has challenged the decree passed by the trial Court for an amount of Rs.1,03,811.20. I have gone through the findings recorded by the trial Court. Undisputedly, the plaintiff has carried out the blast hole drilling work from 34958.10 meters. The plaintiff is entitled to rate of Rs.115/ per meter as has been fixed ultimately after negotiations. The amount to which the plaintiff is entitled to for the works carried out during 26.11.1989 to 31.03.1990 comes to Rs.40,20,181.50. The plaintiff has been paid total amount of Rs.39,16,370.20. The trial Court has arrived at the balance amount of Rs.1,03,811.20, to which the plaintiff is held entitled to. The trial Court has taken into consideration the calculations submitted by the defendant in the pursis at Exh. 29 and I do not find any fault with the same. Hence, the decree passed by the trial Court for an amount of Rs.1,03,811.20 along with interest at the rate of 6% per annum from the date of filing of the suit till realization does not call for interference. The point no.2 is, therefore, answered accordingly. In the result, both the appeals are dismissed with no orders as to costs.