JUDGMENT : A.K. Rath, J. Defendant no.1 is the appellant against a reversing judgment in a money claim. 2. Plaintiff-respondent no.1 instituted the suit for realization of Rs.12,750/- with P.I. and F.I. @18% per annum from the defendants. The case of the plaintiff is that the defendant no.1, a Government of India undertaking, issued an advertisement in the newspaper inviting tenders for purchase of different types of mild steel and boiler quality plate cuttings. The last date for accepting tender as well as the opening of the tender was 5.12.1979. On 5.12.1979, the plaintiff submitted the tender and deposited the earnest money of Rs.10,000/- with a condition that free lifting time shall be 90 days instead of 30 days as offered by the defendants. On 5.12.1979 the tenders were opened. The plaintiff was not present at the time of opening. The plaintiff sent a letter on 24.12.79 to the defendants as to the result of the tender submitted by it and intimated that if the rates quoted were not acceptable to the defendants, then the earnest money of Rs.10,00/- be refunded to it. The defendant no.1 sent a telegram on 27.12.79 to the plaintiff to attend the office at 10.30 a.m. on 31.12.1979 for price negotiation. The plaintiff was not present on that day. On 3.1.1980, the defendant no.1 sent a telegram intimating the plaintiff that his tender for lots c and h had been accepted at Rs.2600/- each per tonne. The plaintiff was directed to deposit the money before 13.1.1980 and lift the materials. In the letter confirming this telegram there was certain terms and conditions, such as, period of free lifting time as 30 days which was not acceptable to the plaintiff and the payment of whole of the amount for the entire lots on 12.1.1980 was also not acceptable to him. Since the additional terms and conditions were not acceptable to the plaintiff, the plaintiff did not proceed with the further negotiation and claimed the refund of the earnest money of Rs.10,000/-. With this factual scenario, it instituted the suit seeking the reliefs mentioned supra. 3. The defendants filed joint written statement stating that the suit was not maintainable. There was no cause of action. The courts at Bhubaneswar had no jurisdiction to entertain the suit. The courts at Visakhapatnam had the jurisdiction. It pleaded that there was a concluded contract. With this factual scenario, it instituted the suit seeking the reliefs mentioned supra. 3. The defendants filed joint written statement stating that the suit was not maintainable. There was no cause of action. The courts at Bhubaneswar had no jurisdiction to entertain the suit. The courts at Visakhapatnam had the jurisdiction. It pleaded that there was a concluded contract. Since the plaintiff did not fulfil its part of the contract, the security deposit was forfeited. The defendants suffered loss of resale of the materials. 4. On the interse pleadings of the parties, learned trial court struck five issues. Parties led evidence, oral and documentary. Learned trial court dismissed the suit holding that it has no jurisdiction to entertain the suit. The plaintiff is not entitled to refund the earnest money deposit. Plaintiff appealed before learned Additional District Judge, Bhubaneswar. Learned lower appellate court came to hold that the court has jurisdiction to entertain the suit. There was no concluded contract between the parties. The defendants did not accept absolutely the terms offered by the tenderer with regard to the free lifting time of 90 days. The question of forfeiture of either earnest money or security deposit does not arise. Held so, it allowed the appeal. 5. The second appeal was admitted on the substantial questions of law enumerated in ground nos.2, 3 and 4 of the memorandum of appeal. The same are: "2. For that the learned lower appellate court grossly erred in law in reversing the decision of the learned Subordinate Judge and holding that the Subordinate Judges Court at Bhubaneswar had jurisdiction to entertain the suit. It is submitted that in view of the specific terms and conditions in the tender paper, Ext.3 providing that any dispute arising out of the transaction thereof shall be entertained in Visakhapatnam Courts only, the learned lower appellate court misconstrued the materials on record and erroneously held that as there was no concluded contract it could not be said that the Bhubaneswar Court would not have jurisdiction to entertain the suit. Further, the learned lower appellate court erred in holding that it could not be said that the plaintiff had waived its right to file the suit in Bhubaneswar court by submitting the tender. It is further humbly submitted that the learned lower appellate court has not correctly interpreted the decisions cited before him on the question of jurisdiction. 3. Further, the learned lower appellate court erred in holding that it could not be said that the plaintiff had waived its right to file the suit in Bhubaneswar court by submitting the tender. It is further humbly submitted that the learned lower appellate court has not correctly interpreted the decisions cited before him on the question of jurisdiction. 3. For that the learned lower appellate court also erred in law in holding that there was no concluded contract between the parties and by so holding it further erroneously reversed the decision of the learned trial court. It is humbly submitted that the learned lower appellate court had lost sight of two important letters written by the plaintiff itself dated 5-12-79 and 9-1-80 which would conclusively prove and establish that the plaintiff was bound by the terms of the contract. It is further submitted that the plaintiffs tender having been accepted by the defendants, the earnest money deposited by it would become automatically security deposit and therefore the plaintiff had become liable to forfeiture of the said amount on its failure to comply with the terms and conditions of the contract. In the other words, it is humbly submitted that the plaintiff having become a defaulter the defendants were entitled to forfeit the earnest money and the learned trial court had rightly held that the plaintiff was not entitled to refund of the earnest money. It is submitted that the decision of the learned lower appellate court on this aspect of the case is vitiated by errors of law and fact on record as material documents had not been referred to and the correct position of law was not kept in view. 4. For that the learned appellate court grossly erred in law in decreeing the suit with a stipulation of payment of interest at the rate of 12% per annum. It is humbly submitted that under the code of civil procedure the learned court had no jurisdiction to grant interest exceeding 6% per annum from the date of the decree till the date of payment or such earlier date as the court thinks fit." 6. Heard Mr. M. Mohapatra on behalf of Mr. D. Mohapatra, learned Advocate for the appellant. None appears for the respondents. 7. Mr. Heard Mr. M. Mohapatra on behalf of Mr. D. Mohapatra, learned Advocate for the appellant. None appears for the respondents. 7. Mr. Mohapatra, learned Advocate for the appellant submits that in the tender call notice there is a clause that any dispute arising out of the transaction thereof shall be subject to Visakhapatnam jurisdiction. Learned Subordinate Judge, Bhubaneswar has no jurisdiction to entertain the suit. No part of cause of action has been treated. Since the plaintiff has not lifted the materials within the stipulated time, his earnest money has been forfeited in accordance with the clause of the tender call notice. He places reliance on the decision of the apex Court in the case of Oil and Natural Gas Commission vs. Utpal Kumar Basu and others, (1994) 4 SCC 711 . 8. Tender Call Notice has been exhibited as Ext.1. Clause 13 of the Ext.1 provides that the unsuccessful tenderers EMD will be refunded within 20 days from the day of the opening of the tenders. Clause 17 provides that failure to comply with the satisfactory clearance of the material will result in forfeiture of the security deposit and also right on the material. Clause 19 provides that any other dispute arising out of the transaction shall have the legal validity in the jurisdiction of Visakhapatnam court only. 9. Admittedly, the defendant no.1 floated tender for lifting mild steel and boiler quality plate cuttings on 5.12.1979 vide Ext.1 and added certain conditions for accepting the tender vide Ext.4. There was a counter proposal by the plaintiff that free lifting time would be 90 days. The earnest money shall be refunded immediately otherwise interest @18% shall be charged. The offer was valid for 30 days from the date of opening of the tender. On 24.12.79 the plaintiff sent a letter, vide Ext.5, to the defendants to let him know about the result of the tender. It was also mentioned that in case the rates quoted by the plaintiff was not acceptable, the earnest money should be refunded. The defendants sent a telegram on 27.12.79 vide Ext.6 requesting the plaintiff to be present at the defendants place at 10.30 a.m. on 31.12.79 for price negotiation. But then, the plaintiff did not attend the defendants office. It was also mentioned that in case the rates quoted by the plaintiff was not acceptable, the earnest money should be refunded. The defendants sent a telegram on 27.12.79 vide Ext.6 requesting the plaintiff to be present at the defendants place at 10.30 a.m. on 31.12.79 for price negotiation. But then, the plaintiff did not attend the defendants office. On 3.1.80, the defendants sent a telegram to the plaintiff vide Ext.7 stating that his offer was accepted on 5th December for lots (c) and (h) at Rs.2600/- each per tonne for 70 plate cuttings, deposit the money before 12.1.1980 and lift the materials. The telegram was confirmed by the letter vide Ext.8 on the same date sent by the defendant. This carried the terms and conditions, some of which are found to have been newly added. 10. Learned lower appellate court held that as per the terms and conditions of the tender document, charging of interest @18% was not there. Secondly there was no stipulation for any fixed date for deposit of the price for the material, whereas under Ext.7 the plaintiff was required to deposit the amount before 12.1.80 though according to the tender document he was required to deposit the money before lifting. By Exts.7 and 8, the defendants forced the plaintiff to accept a new offer with regard to the charging of interest which was not there in the original tender document. The proposal of the plaintiff allowing 90 days as free lifting time was not accepted. The defendants also forced the plaintiff with regard to investment of rupees one lakh by demanding the deposit before 12.1.80. The subsequent offer with regard to payment by a particular date was not acceptable to the plaintiff. There was no justification for compelling the plaintiff to deposit the money by 12.1.80 while allowing free lifting time for 30 days. There was counter offer from the side of the defendant which the plaintiff did not accept. 11. Sec.7 of the Indian Contract Act, 1872 provides acceptance must be absolute. The same is quoted hereunder. "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. The same is quoted hereunder. "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." 12. In M/s. Rickmers Verwaltung Gimb H. vs. Indian Oil Corporation Ltd., AIR 1999 SC 504 , the apex Court held that 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. 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. 13. A Division Bench of this Court in the case of M/s. Chandaneswar Enterprises Ltd. vs. Industrial Promotion & Investment Corporation of Orissa Ltd., AIR 2015 Ori.46 held: "6. 13. A Division Bench of this Court in the case of M/s. Chandaneswar Enterprises Ltd. vs. Industrial Promotion & Investment Corporation of Orissa Ltd., AIR 2015 Ori.46 held: "6. Section 7 of the Indian Contract Act, 1872 provides that in order to convert a proposal into a promise, the acceptance must be absolute, unqualified and without conditions. The offer and acceptance must correspond. The acceptance must match with the terms of the offer. When there is a variation between the offer and acceptance even in respect of any material term, acceptance cannot be said to be absolute. It does not result in the formation of a contract. An acceptance does not convert a proposal into a promise, if it is qualified by conditions." 14. In view of the same, the inescapable conclusion is that there was no concluded contract between the parties. Thus, the question of forfeiture of earnest money does not arise at all. 15. In M/s. Pattnaik Industries Pvt. Ltd. vs. Kalinga Iron Works and another, AIR 1984 Ori.182, this Court held: "6. In this case, there may have been a breach, the contract may have been rescinded but the clause relating to jurisdiction does not perish, it subsists to regulate the jurisdiction of the Court where the dispute can be tried. There is another answer also to the argument. The plaintiff relies upon the contract for the enforcement of his claim. It cannot bypass the clause relating to jurisdiction. So, I hold, though the Courts at Keonjhar and at Bhubaneswar, both, have jurisdiction to entertain the suit, the parties agreed that the Court at Keonjhar alone shall have jurisdiction to entertain the suit. It is well settled that it is not open to the parties by agreement to confer jurisdiction on a Court which it does not possess under the Code; but where two Courts or more have under the Code jurisdiction to try a suit or proceeding, an agreement between the parties that the dispute between them shall be tried in one of such Courts, is not contrary to public policy. It does not contravene S. 28 of the Contract Act (see Hakam Singh v. M/s. Gammon (India) Ltd., AIR 1971 SC 740 ). xxx xxx xxx 8. The principle that can be culled from the aforesaid decisions is that the agreement between the parties does not oust the jurisdiction of the Court. It does not contravene S. 28 of the Contract Act (see Hakam Singh v. M/s. Gammon (India) Ltd., AIR 1971 SC 740 ). xxx xxx xxx 8. The principle that can be culled from the aforesaid decisions is that the agreement between the parties does not oust the jurisdiction of the Court. It may operate as an estoppel against the parties but it cannot deprive the Court of its power to do justice. Ordinarily the Court would have regard to the choice of the parties: where, however, the Court whose jurisdiction has been ousted is satisfied that the stipulation would operate harshly, is oppressive in character, inequitable or unfair, for the ends of justice, it can relieve the party of the bargain. The ouster clause can be ignored." 16. In M/s.Surajmall Shibvhagawan vs. M/s. Kalinga Iron Works, 1979 CLT-104, this Court held that ouster of Courts jurisdiction should not be easily construed and cannot be assumed or presumed very easily. Ouster of jurisdiction must be proved by express word or by necessary or inevitable implications. Merely mentioning, "All subject to Calcutta jurisdiction" by one of the parties at the top of his purchase order, it cannot be said that the jurisdiction of other Courts, which can be legally approached by the other parties under the CPC or under any other law, is ousted by the said words. 17. In the instant case, there was no concluded contract between the parties. Learned lower appellate court is perfectly justified in holding that the terms in the tender call notice would have been enforced only when the parties had entered into a contract. But this cannot be enforced when there is no contract. There is no document from the side of the defendant in express terms from the side of the plaintiff accepting the jurisdiction clause. The matter did not progress between the parties beyond certain limit. The plaintiff nowhere accepted the jurisdiction clause and therefore was entitled to file the suit in the court at Bhubaneswar. 18. The decision cited by learned Advocate for the appellant is distinguishable on facts. In the said case, no part of cause of action arose within the jurisdiction of Calcutta High Court. The apex Court held that the expression "cause of action" means that bundle of facts which the petitioner must prove, if traversed, to entitle him to a judgment in his favour by the Court. In the said case, no part of cause of action arose within the jurisdiction of Calcutta High Court. The apex Court held that the expression "cause of action" means that bundle of facts which the petitioner must prove, if traversed, to entitle him to a judgment in his favour by the Court. Therefore, in determining the objection of lack of territorial jurisdiction the court must take all the facts pleaded in support of the cause of action into consideration albeit without embarking upon an enquiry as to the correctness or otherwise of the said facts. There was no quarrel over the proposition of law. Since no part of the cause of action arose within the jurisdiction of Calcutta High Court, the apex Court held that it has no jurisdiction to entertain the writ application. The substantial questions of law are answered accordingly. 19. In the wake of the aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. The suit is decreed. There shall be no order as to costs.