M.M.Dutt, J. - (1.) In this appeal, the appellant, M/s. C. V. Enterprises, a Partnership firm, has challenged the propriety of the judgment and order dated March 21, 1984 of D. K. Sen, J. dismissing the writ petition of the appellant.
(2.) On September 2, 1982, respondent 1 Braithwaite & Co. Ltd., which is a Government company, issued a notice in the Statesman, Calcutta inviting tenders for the purchase of REP licences that would be issued to respondent 1, inter alia, against the exports of structural to Bahrain and exports of wagons to Vietnam under export contracts registered in 1966-67 and 1978-79. The enclosure to the tender notice was a chart containing particulars of the exports for which the REP licences were applied for. The particulars included the value of REP licences against the exports of wagons to Vietnam as Rs. 45,52,843/- and the exports of structural to Bahrain as Rs. 3,03,988/-. In response to the said notice, the appellant submitted his offer for the purchase of REP licences of respondent 1. After the submission of the offer by the appellant, there were some discussions and correspondence between the appellant and respondent 1. Ultimately, respondent 1 by its letter dated February 19, 1983 accepted the order of the appellant. The terms and conditions of the contract are contained in the said letter, which is set out below: "M/s. C. V. Enterprises, 18, Raja Woodmunt street, Calcutta 700001. Dear Sirs. Transfer of REP Licences We refer to your revised offer bearing Ref. No. CVZ/50/82-83 dated 31-1-1983 submitted in response to our invitation to Tender reference DCP/376/82 dated 12-12-1982 as amended by our letter Corp (Pur/RE) Tender dated 15-1-1983. 2. We are pleased to confirm acceptance of your offer to the extent described below: (a) We accept your offer to pay to us a lump sum amount of Rs. 40,00,000/- (Rupees Forty lakhs only) irrespective of the value of the Licences to be issued to us against export of Railway wagons to Vietnam as consideration payable to us for transfer of the corresponding licences to you. (b) We accept your offer to pay to us a lump sum amount of Rs. 2,25,000/- Rupees Two lakhs and twenty-five thousand only) irrespective of the value of the licences to be issued to us against export of P. S. Tanks (Structurals) on Bahrain as consideration payable to us for transfer of the corresponding licences to you. (c) We note that necessary and effective liaisons with the licensing authorities and customs for expeditious issue of the licences will be done by you for which we accept your charge of 1/2% (one half of one per cent) of the value of licences. These charges will become due to you upon receipt of the licences by us and will be adjusted from the amounts payable to us against (a) and (b) above respectively. 3. We stipulated that having accepted your offers on a lump sum basis irrespective of the face value of the licences to be issued no claim shall be entertained for any charge and/or review of the lump sum amounts payable by you as consideration for transfer of the licences. 4. The amount of Rs. 1,00,000/- (Rupees one lakh only) paid to us along with your offer as earnest money is being retained by us as initial security deposit in terms of para 5 (a) of our Invitation to Tender. 5. In accordance with para 5 (a) of our invitation to Tender, you are requested to pay to us an additional sum of Rupees 4,85,683,10 (Rupees Four lakhs eighty five thousand six hundred eighty three and paise Ten only) being 10% of the expected value of licences against the contracts mentioned in Para 2 above. This amount should be paid to us by a Crossed Demand Draft favouring Braithwaite Co. Ltd." and payable at State Bank of India, Hide Road Branch, Calcutta 43, within 7 days from the date of this acceptance failing which you shall render yourselves liable for forfeiture of the initial security deposit and treatment of this acceptance of your offer as lapsed. 6. Kindly note that this acceptance letter together with our Invitation to Tender and your offer cited above constituted an irrevocable binding contract between this Company and you. Any breach in the performance of this contract by you shall confer upon this Company the right to forfeit the security deposit and to take such other action as may be deemed necessary and fit to secure and recover its rightful dues. 7. Please acknowledge receipt. Yours faithfully, Braithwaite & Co. Limited Sd. S. S. Mathur Dy. Controller (Purchase)"
(3.) It is the case of the appellant that under the said contract, the appellant became entitled to have the transfer of the REP licences that would be issued to respondent 1 against the exports of Railway wagons to Vietnam and P. S. Tanks (Structurals) to Bahrain during the years 1979-80, 1980-81 and 1981-82. On the basis of the said contract, the appellant paid a further sum of Rs. 4,85,683.10 by a pay order issued by the Bank of Madurai Limited, Calcutta Branch. Pursuant to Clause 2 (c) of the contract the appellant took up liaison work for Securing the issue of REP licences against the import entitlement of respondent 1. It is the case of the appellant that after the relevant papers were handed over to the appellant by respondent 1, the appellant came to know that the value of the REP licences was much higher than that mentioned in the said chart being an enclosure to the tender notice. It is not disputed that respondent 1 was and is still entitled to REP licence of the value of Rs. 1,07,08,210/- in respect of, Vietnam exports and licences of the value of Rs. 9,12,000/- in respect of Bahrain exports and not Rs. 45,52,843/- and Rs. 3,03,988/-respectively as believed to be and applied for. The real value was, however, brought to the notice of respondent 1 by the appellant as revised applications for the issuance of the said REP licences had to be made before the Joint Chief Controller of Imports and Exports (JCC & E). Respondent 1 signed the revised applications. The liaison was completed by the appellant by May 31, 1983 in respect of REP licences to be issued against exports to Bahrain. The appellant accordingly, by its letter dated June 3, 1983 while intimating to respondent 1 about the completion of the said liaison work, sent a Bank draft for Rs. 2,25,000/- in full payment of the price for the transfer of, REP licences against exports to Bahrain. Thereafter, although respondent 1 got the REP licences, by its letter dated June 24, 1983, respondent 1 resoled from the contract on the ground that the contract was void and of no effect.;