Panchapakesa Ayyar, J. - (1.) THIS is an appeal by the plaintiffs in C.S. No. 150 of 1955, on the file of this Court, against the judgment and decree of our learned brother, Rajagopala Ayyangar, J., dismissing that suit with costs.
(2.) THE facts were briefly these : In 1951 or so, the Government of India entertained the idea of extending the Madras Harbour by constructing an R.C. Jetty at North Quay and ore and coal berths, for importing coal and exporting iron and manganese ore, etc., at a cost of more than a crore of rupees. Mr. Srinivasan, the Chief Engineer, Madras Port Trust, prepared various plans and specifications from the year 1951, modifying them from time to time, as the works involved a huge investment and required very careful consideration regarding efficiency, economy, etc. He prepared those plans, including a plan, Exhibit D -1, dated 28th July, 1952, in consultation with Messrs. Rendel, Palmer and Pritton, London, a leading firm of consulting engineers, who have been consulting engineers of the Madras Port Trust for more than half a century. As is usual in such cases, some ideas in the first plan were altered in the subsequent plans. For instance, the lay -out of the ore berth and coal berth and the ore hoppers, and the length and breadth of the suggested constructions differed, and the final plan and lay -out, Exhibit P -26 (a), enclosed along with the notice calling for tenders, differed somewhat from the original plan and lay -out, as also the breadth, etc. The Government of India were, of course, the authorities to sanction the estimates, and approve of the final selected tender, and to pass final orders regarding all vital things connected with the extensions. By their letters, dated 30th October, 1953 and 10th February, 1954, to Mr. G. Venkateswaran, I.C.S., the Chairman of the Madras Port Trust, they sanctioned the construction of R.C. Jetties at North Quay at an estimated cost of Rs. 30,50,000 the construction of ore and coal berths (South Quays III and IV) at an estimated cost of Rs. 36,25,000 and the construction of an approach head to the ore and coal berths at an estimated cost of Rs. 40,30,000. Tenders were called for by the Madras Port Trust so as to reach the Chief Engineer, Madras Port Trust, by 3 P.M. on 15th September, 1954. Along with the tender notice, a copy of the last revised plan prepared by the Chief Engineer, Madras Port Trust, Exhibit P -26 (a), showing the lay -out as tentatively proposed, was enclosed, as also an elaborate annexure stating the conditions of the tender. This annexure ran to four typed pages, and contained 17 conditions. Conditions No. 11 originally ran as follows: Should the contractor wish to submit for the consideration of the Board any alternative type of design for this work, in whole or in part, a statement of the salient features of the same, including design and details, together with schedule of quantities and rate for such alternative schemes, partly or wholly, with detailed drawings, should accompany the tender. The Government of India appointed Mr. Srinivasan, Chief Engineer, Madras Port Trust, Mr. Nanjundiah, Chief Engineer, Visakhapatnam Port and Mr. Ganapathi, Chief Engineer, Kandla Port, to scrutinise and report on the tenders.
(3.) SEVEN tenders were received, all from leading contractors, one of them being from the plaintiffs, the Braithwaite, Burn and Jessop Construction Company Limited, Calcutta, a leading firm of contractors, who had Braithwaite Engineering Company, London, as their consulting engineers. The plaintiffs had heard late in 1952, or early in 1953, about the proposals of the Madras Port Trust for the Harbour expansion, and naturally wanted to try their chance and get this big and interesting contract for themselves. In August, 1953, P.W. 1, Mr. Massarik, the Chief Engineer of the Plaintiff firm, went to London on leave, and had a discussion with Mr. Brickley, the Chief Engineer of Braithwaite Engineering Company, London, and with the Senior Assistants, Gates, Benjamin, etc., regarding the proposed extension to the Madras Harbour. He also visited the Madras Harbour in 1953 to inspect the site of the proposed extensions, and visited the Cochin Harbour also once or twice, evidently in order to be conversant with the conditions of harbours in general. He discussed with the Madras Port Trust Engineering staff about the proposed work. Just after the tenders were called for, Mr. Ostrowski, the Head of the Foundation Department of Braithwaite Engineering Company, came to Madras and inspected the Madras Harbour along with P.W. 1 for two or three days. P.W. 1 and he inspected the tender papers at the Madras Port Trust Office, and saw a copy of the tender documents in the Chief Engineer's Office and read through them. Exhibit D -1, an earlier plan prepared by Mr. Srinivasan on 28th July, 1952, was hanging on the wall of the discussion room then, though P.W. 1 said that he did not notice it or scrutinise it. Seeing the original condition No. 11 allowing of alternative designs, and having a better and more economic design in mind, P.W. 1 and Mr. Ostrowski asked the Chief Engineer, Mr. Srinivasan, for permission to submit an alternative design and to quote for an alternative lay -out. Thereupon, Mr. Srinivasan and the Port Trust Authorities told P.W. 1 and Mr. Ostrowski that they could not make any fundamental alteration or modification to the plan and lay -out in Exhibit P -26 (a) attached to the tender notice, but the slight modifications might be suggested, if thought fit, to the official lay -out. Condition No. 11 was then altered to read as follows: Should the tenderer wish to submit for the consideration of the Board any alternative type of designs for this work, in whole or in part, or any slight modification to the official lay -out, which, without materially affecting the Port's requirements, will result in economy or be otherwise advantageous to the Port, a statement of the salient features of the same, including the design, details, together with schedule of quantities and rate for such alternative scheme, partly or wholly, with detailed drawings, should accompany the tender.;