Himachal Pradesh State ... vs M/S. Sumer Chand & Sons
2000 Latest Caselaw 219 Del

ORDER

K.S. Gupta, J.

1. Suit was filed, inter alia, alleging that the plaintiff is a statutory corporation incorporated under Section 5 of the Indian Electricity Supply Act, 1948. Surinder Mohan Sood, Law Officer was authorised to sign and verify the plaint and to institute suit on behalf of the plaintiff vide Office Order No. 142 dated 27th March, 1974. On 19th June, 1973 the plaintiff invited tender No. 28 as per general conditions of contract as detailed in para No. 3 of the plaint, for supply of galvanised mild steel tubes with the schedule of requirement and despatch as under :-

      Description    Total          D e s t i n a t i o n 
                    quantity       (i)       (ii)      (iii)
                    reqd. mts.     Kiratpur  Kalka     Nangal
                                   Sahib               Dam
     15 mm          20000          10000     9000      1000
     20 mm          20000          10000     8000      2000
     25 mm          12000           2000     8000      2000
     40 mm           6000            --`     5000      1000
     50 mm          11000           5000     5000      1000
     100 mm          1500           1500      ---       ---

 

2. It is alleged that last date for submission of tender was 23rd July, 1973. On 23rd July, 1973 the defendant submitted tender alongwith a cheque for Rs. 5,000/- by way of earnest money. In lieu of that cheque, on 31st July, 1973 the defendant sent a bank draft for Rs. 6,544/- towards earnest money @ 1% of the total value of tender. On 18th August, 1973, the plaintiff accepted the tender of defendant in respect of pipes of the sizes 15 mm @ Rs. 5.46 per meter, 20 mm @ Rs 5.66 per meter and 25 mm @ Rs 8.44 per meter and the quantities thereof were 14,000, 20,000 and 12,000 MTs respec-

tively. Accordingly, an order was placed on the defendant on 18th August, 1973 itself. It is further alleged that in continuation of said order the plaintiff wrote a letter dated 31st August, 1973 giving the details of material, delivery and other terms and conditions as noted in para No. 6 of the plaint. As the plaint did not receive any reply, another letter dated 8th October, 1973 was sent to the defendant asking it to acknowledge the receipt of the said supply order and also to execute a contract which was only a formality. Defendant's letter dated 8th ctober, 1973 repudiating the contract was received by the plaintiff on 18th October, 1973. By this letter, the contract was repudiated on the ground of deviations in the conditions of contract. It is claimed that with the placing of supply order on 18th August, 1973 after acceptance of the tender of defendant, the contract was concluded. In response to the said letter, dated 22nd October, 1973 was sent by the plaintiff to the defendant. In the reply letter dated 1st November, 1973, the defendant reiterated the stand taken in said letter dated 8th October, 1973.

3. It is pleaded that the plaintiff sent another letter dated 14th Decemer, 1973 to the defendant to show cause why the amount of earnest money deposited, be not forfeited. In this letter, the defendant was also told that if no satisfactory reply was received, the plaintiff would be constrained to purchase the contracted material at the risk and cost of defendant from other sources. After the defendant refused to honour the contract, the plaintiff re-invited tenders and on 8th January, 1974 the lowest tender of M/s. Kuldip Singh & Bros., Delhi was accepted. M/s. Kuldip Singh & Bros. later on supplied the material as detailed in para No. 13 of the plaint. It is stated that the plaintiff suffered a loss of Rs. 2,66,400/- being the difference in the prices of the materials purchased from M/s. Kuldip Singh & Bros. and at which the defendant had agreed to supply them. Plaintiff is also entitled to claim Rs. 26,640/- @ 10% on account of Central Sales-Tax payable on the said amount in addition to interest @ 12 % per annum which comes to Rs. 8000/-. However, the plaintiff restricts its claim to Rs. 3 lacs. It was prayed that a decree for Rs. 3 lacs with interest pendente lite and future of the plaintiff and against defendant.

4. Defendant contested the suit by filing written statement and also raising counter-claim for Rs. 8,889/-. Although it is admitted that the plaintiff is a statutory corporation as alleged but it is denied that the plaint is signed and verified and suit instituted on its behalf by a duly authorised person. It is stated that a tender form containing Schedules I & II of tender No. 28 was issued by the plaintiff to the defendant. On 23rd July, 1973, a representative of the defendant went to Shimla and had discussion with Chief Purchase Officer only in regard to deposit of security. Thereafter, tender was submitted and the conditions thereof were materially different from those contained in said tender No. 28 particularly regarding terms Nos. 4, 5, 6, 7, 8, 9 & 10. It is not disputed that cheque for Rs.

5,000/- submitted with the tender was replaced by a bank draft for Rs. 6,544/- towards earnest money as alleged. It is pleaded that condition precedent to the acceptance of tender of the defendant dated 23rd July, 1973, was that the order of supply for material, if any, should be placed on the defendant before 15th August, 1973. On 10th August, 1973, the plaintiff secured extension of three days for placement of supply order to which the defendant agreed. However, no order was placed by the plaintiff upto 18th August, 1973. It is stated that a letter No. HPSEB-CPO-GI Pipe/73-1062 dated 18th August, 1973 from the plaintiff was received by the defendant mentioning the acceptance for the quantities at the rates stated therein without disclosing the destination stations. This letter also noticed that a detailed supply order will be sent shortly. It is claimed that no concluded contract for supply of materials bnding on the parties came into existence on 18th August, 1973. Receipt of the plaintiff's order dated 31st August, 1973 is admitted but it is alleged that the defendant was ot bound to supply material as per that order as the terms and conditions noted therein were materially different from those contained in the tender submitted by the defendant. It is further alleged that the defendant did not execute contract as provided by condition No. 9. It is denied that the execution of contract was only a formality. It is further denied that the grounds for repudiation of he contract as taken by the defendant in the letter dated 8th October, 1973 were untenable, as alleged. Receipt of the plaintiff's letter dated 22nd October, 1973 is admitted bt it is stated that the same was replied on 1st November, 1973. Receipt of the plaintiff's letter dated 14th December, 1976 is not disputed and it is alleged that the threat to forfeit earnest money of Rs. 6,544/- was illegal and so was the threat to effect repurchase. Alleged re-purchases from M/s. Kuldip Singh & Bros. are mala fide. Liability to pay the alleged difference in prices of Rs. 2,66,400/-, Central Sales Tax amounting to Rs. 26,640/- and interest @ 12% per annum as claimed by the plaintiff, is emphatically denied. It is pleaded that the plaintiff by the letter dated 28th January, 1974 had intimated about the forfeiture of the amount of earnest money of Rs. 6,544/-. It is asserted that the forfeiture is illegal and the defendant is entitled to the refund of earnest money toether with interest @ 12% per annum from 2nd February, 1974 to 28th February, 1977 amounting to Rs. 2345/-.5. In the replication, the plaintiff has controverted the averments made n the written statement-cum-counter claim besides re-affirming those made in the plaint.

6. On the pleadings of the parties, following issues were framed on 25th September, 1978 :-

1. Whether the plaint is signed, verified and instituted by a properly authorised person?

     2.   Whether  there was a contract for supply of steel  tubes  as detailed in the plaint or whether the parties failed to agree  to      the terms thereof? If there was a contract, what were its terms? 
 

     3.   If it is found that there is a contract between the parties,  was it a term thereof that goods had to be ordered thereunder  by  18th August, 1973? 
 

     4.   Whether  the plaintiff ordered the supply of goods  on  31st  August,  1973, and whether this was a valid and  effective  order  under the terms of the contract? 
 

     5.   Whether  the  order for supply dated 31st August,  1973,  is valid  under  the  contract (if any is found)  being  within  the permissible  degree or variation contemplated by the  parties  or implied by the terms of the contract? 
 

     6.   Whether the plaintiff is entitled to damages, and if so,  to  what extent? 
 

     7.   Whether  the  defendant  is entitled to the  refund  of  Rs. 8,889.00? 
 

     8.   Whether  the  defendant is entitled  to  compensatory  costs under  Section 35-A, Code of Civil Procedure, and if so  to  what 
     amount? 
 

     9.   Relief, and against whom? 

 


 

7. These issues may be taken together for discussion. It is the admitted case of parties that pursuant to tender notice of the plaintiff published in the issue of 'Tribune' dated 19th June, 1973, the defendant submitted tender Ex. P-1 on 23rd July, 1973. In short, the controversy centers around the fact whether a concluded contract came into existence between the parties with the placing of supply orders dated 18th August, 1973 and 31st August, 1973 by the plaintiff on defendant. On that point, tender Ex. P-1, supply orders Ex. PW-1/1 and Ex. PW-1/2, letters Ex. P-3, Ex. PW-1/4 and Ex. P-4 are relevant. Tender Ex. P-1 which is addressed to the Chief Purchase Officer, Stores Purchase Organisation of the plaintiff-corporation which is material, reads as under :-

"Please note the following rates for the supply of G.I. pipes in different sizes as mentioned below.

1. Galvanised mild steel tubes Medium Quality confirming to I.S. 1239 - Part I (1968) screwed at both ends to I.S. 554 pipe thread, one end fitted with socket and the other end protected as per specifications in random lengths to 4 to 7 meters.

 Size of Pipe in Q        Rate per meters, 
i.e. for one meter
15 mm Q                  Rs. 5.46
20 mm Q                  Rs 5.66
25 mm Q                  Rs. 8.44
40 mm Q                  Rs. 12.36
50 mm Q                  Rs. 17.20
100 mm Q                 Rs. 44.90

 

 CONDITIONS: 
 

 1. The above rates are rates F.O.R. KIRTPUR SAHIB, KALKA, NANGAL DAM, by goods train. 
 

 2. SALE Tax will be charged extra as per applicable. 
 

 3. The goods will be supplied by us strictly as per IsI specifications. 
 

 4. Inspection of the goods will be carried out before despatch from our despatching stations & that will be the final inspection. 
 

 Payments & discounts : 
 

 (1) 1/2 % (half) trade discount shall be allowed if 98% payment will be made to us through any bank against proof of R.R. & balance 2 % shall be made to us within 30 days from the date of the bill and the discounts will be only on cost of goods and not on sale tax etc. 
 

 Delivery: 
 

 Delivery shall be made within two to twenty weeks or earliest possible subject to force major clause beyond our control. 
 

 Earnest Money: 
 

 Rupees 5,000/- vide cheque No. CA/71 G 0400525 of Bank of Baroda in favour of Senior Accounts Officer H.P.S.E.B. Simla 4 & and copy of the latter for the guarantee is also attached herewith. 
 

 Security: 
 

 The security shall be deposited through bank guarantee after receipt of the order. 
 

 If the Central/State Government will increase or impose any kind of new duty or taxes during the supply period that will be charged extra in the consignee's bill. 
 

 Please send your order, if any, before 15.8.73 & oblige."    

8. Ex. PW-1/1 is the office copy of supply order dated 18th August, 1973 bearing the endorsement regarding receipt of supply order under the signature of C.K. Aggarwal (DW-1) together with date as 18th August, 1973. This order/letter notices that the rates per meter as noted therein for supply of G.I. pipes of the sizes of 15 mm for 14,000 meters, 20 mm for 20,000 meters and 25 mm for 12,0000 meters, have been accepted and a detailed supply order will be sent shortly. This order/letter was issued under the signature of A.K. Srikantiah, Chief Purchase Officer of the Plaintiff, Ex. PW-1/2 is the cyclostyled copy of supply order issued under the signature of said A.K. Srikantiah to the defendant. The sizes of pipes to be supplied, total quantity thereof in meters and also the rates per meter as indicated in Ex. PW-1/1 have been repeated therein under the subhead 'Description of material', Names of Consignee, destinations and the details of pipes to be sent, have further been indicated under the subhead 'Packing, Consignee and Destination'. Clauses pertaining to Inspection of material under sub-head 4, Delivery under sub-head 5, Terms of payment under sub-head 7 and Contract under sub-head 9 in said Ex. PW-1/2, which are material, require to be reproduced :-

"Inspection of material :

The material will be inspected by any officer authorised by the undersigned at your premises on receipt of intimation that the material is ready for inspection. At least 10 days notice is to be given. The material will only be inspected with respect to the quality, workmanship and confirmation to specifications. Suitable markings will be made on the tubes inspected.

Delivery:

The delivery should commence within two weeks of the receipt of this order and should be completed on or before 31st December, 1973. The date of R/R, will be reckoned as the date of despatch.

Terms of payment :

(a) 98% of the price of each consignment against R/R, through Bank (Bank charges to be borne by the supplier).

(b) Balance 2 % of the prices of each consignment within 45 days from the date of receipt of material at site in good condition and in accordance with the specifications.

Half per cent (1/2 %) discount will be given for prompt payment.

Contracts :

You are requested to execute a legal contract with the Board, as per the draft enclosed. The contract should be on stampedpaper, charges to be borne by the supplier."

9. With reference to Ex. PW-1/2, reminder Ex. PW-1/3 dated 8th October, 1973 was sent by the plaintiff askingdefendant to deposit the required amount of security money and sent the contract duly signed on stamp paper in triplicate as per the terms of purchase order. Ex. P-3 is the letter sent by registered post by the defendant to Chief Purchase Officer of the plaintiffcorporation with reference to the tender Ex. P-1 and reminder Ex. PW-1/3. Omitting the immaterial portion this letter which is relevant, reads as under :-

"In this connection we have to point out there are some glaring deviation in the conditions given in the supply order and those given in our offer dated 23rd July, 1973. Keeping in view the fact that you have not been able to send us clear cut order strictly according to our offer, which appears to be the result of some clerical error, we regret to accept your order and we fail to understand as to why the supply order was not placed on us as the conditions of our offer, which run as under :-

1. In our offer we had given a delivery period of 2-20 weeks whereas in the supply order it is mentioned as 31st December, 1973.

2. There is no mention about the clause of Excise Duties which is contrary to our offer.

3. Discount :- The clause of the discount given in our offer was as under :-

"1/2 % trade discount shall be allowed if 98% payment will be made to us through any bank against proof of R/R & balance 2% shall be made to us within 30 days from the date of the bill and the discount will be only on cost of goods and not sales tax etc."

Whereas in the supply order the discount has been shown to be applicable for full payment.

4. We have also found that the condition of packing has also been given in the supply order whereas there is nothing mentioned to the effection in our offer.

5. Besides above the condition attached with the supply order are contrary to the terms given in our offer and as such we are not in a position to accept the order placed on us.

6. It has also been observed that the clause of Inspection is also misleading and ambiguous. Because in our offer the inspection was required to be carried out at the despatching stations whereas in the supply order it stated that the same will be carried out at Delhi which is also contrary to the conditions given in our offer.

Under the circumstances explained above and on account of your failure to send us your order based on our offer, it is not possible for us to accept it.

In the meanwhile we may inform you that Central Duties and other Taxes have been increased by the Government of India on G.I. Pipes.

Under the all circumstances explained above the abovementioned order may be treated as cancelled as we cannot supply the goods as per attached agreement terms and above mentioned conditions."

10. Letter Ex. PW-1/4 was issued by the Chief Purchase Officer of plaintiff to the defendant with reference to said letter Ex. P-3. Contents of this letter which too are material, are reproduced below :-

"This is with reference to your abovementioned letter informing us your inability to accept our order on account of deviations in the conditions given in the order from those of your offer date 23rd July, 1973. In this connection, it is intimated that the order is quite in conformity with the terms and conditions of your offer and the subsequent discussions held on 18.8.73 at Simla. The parawise reply to the points raised by you is as follows :-

1. In the supply order we have mentioned that the delivery should be completed on 31st December, 1973 which comes to about 18 weeks from the date of acceptance of order i.e. 18.8.73. This can, however, be extended by two weeks i.e. upto 18.1.74. As regards Force Majeure conditions the same are provided in the draft agreement clause No. 9 Article-III.

2. In case the Central/State Government will increase the Excise Duties the same will be paid on the production of the documentary proof which shall accompany the invoice. Please note that only the increase in duties and taxes will be admissible (as claimed by you) and not any increase in the cost of raw materials which have gone in manufacture of G.I. Pipes.

3. The clause of discount is in accordance with the terms of your offer. Discount is always calculated on the cost of goods and not on the sales tax & it is felt there is no departure from your offer in this case. However in clause 7(b) of our order i.e. 1/2 % discount will be admissible, if balance 2 % of the prices of each consignment is paid within 30 days from the date of the bill.

4. You have stated in your offer that the goods will be supplied strictly as per I.S. Specifications. Clause 17 of the relevant I.S. specifies the packing requirements for these G.I. Pipes, which is in conformity with our conditions of packing.

5. This is not clear to us. It is presumed that by the conditions you mean the draft contract agreement. In this case it is stated that this is only a Draft Contract conditions. These terms and conditions which have been mutually agreed upon supersede these terms and conditions in the draft sent to you to the extent as indicated in the supply order & the draft has to be suitably modified accordingly.

6. The clause of inspection is fully in line with your offer. The material is to be inspected at your premises i.e. at any place specified by you, which you will intimate to us. We have not specified in the order that the material will be inspected at Delhi as contended by you.

It is felt that you are trying to wriggle out of the commitment of supplying the G.I. Pipes as per terms of offer for which discussions were held at Simla. In case you do not honour the supply order, we will be constrained to forfeit the earnest money deposited with the Board and we will be forced to take the legal action against you as the supply order was placed within the validity period. It will be in your own interest that you convey your acceptance of our order within fifteen days of the receipt of this letter."

11. In the letter Ex. P-4 dated 1st November, 1973 sent to the Chief Purchase Officer in response to letter Ex. PW-1/4, the defendant reiterated the stand taken in the earlier letter Ex. P-3. This letter also notices that the discussions referred to in the letter Ex. PW-1/4 held at Shimla, related to the deposit of earnest money and not the supersession of conditions or withdrawal or amending of any part of the tender. Suffice it to say that by the letter dated 14th December, 1973 (office copy Ex. PW-1/5) sent by the Chief Purchase Officer of plaintiff-corporation to the defendant, the latter was intimated that without prejudice to the other remedies available to the corporation, it will make purchases of the contracted material from other sources at the risk and cost of defendant. In terms of this letter, the defendant was further asked to show cause why the amount of Rs. 6,544/- deposited towards earnest money, be not forfeited. Subsequently, after considering the reply of defendant dated 22nd December, 1973 aforesaid amount of earnest money was forfeited by the plaintiff and defendant was intimated about that decision through the letter Ex. PW-1/6 dated 28th January, 1974. Amount of Rs. 2,66,400/- is the total difference which the plaintiff had to pay to M/s. Kuldip Singh & Bros. because of nonsupply of materials for which said supply orders dated 18th August, 1973 and 31st August, 1973 were placed on the defendant.

12. Needless to say that in the supply order Ex. PW-1/2 and the letter EX. PW-1/4, there is reference about the negotiations held on 18th August, 1973 at Shimla. According to the plaintiff, terms and conditions as incorporated in Ex. PW-1/2 were finalised between the parties during discussion. Although the defendant admits of having discussion on 18th August, 1973 but it is denied that the terms and conditions as contained in said supply order were finalised between the parties as alleged. A.K. Srikantiah, the then Chief Purchase Officer as PW-1 in cross-examination stated that since the rates and some other terms quoted by the defendant were different from those given in the tender document, the department had called the defendant to Shimla for discussion. Though he took part in the discussion on behalf of department alongwith other officials, he cannot say who was there on behalf of defendant. He did not remember who were the other officials present. To a question whether any memorandum of the discussions was prepared, he replied that he did not find any such document on the file. It is further in his crossexamination that he did not remember if any nothing in respect of the discussions was made in the file. He also could not point out any document containing the terms that were finally agreed to between the defendant and the department. R.N. Thakur, working as Executive Engineer with the plaintiff during the period tender No. 28 was floated, towards the end of his examination-in-chief deposed that he was not present during discussion. Sarwan Singh was the Meeting Assistant of plaintiff at that time and his function was to place the agenda and other papers of meetings before the Board. Sarwan Singh was examined as PW-4 but his deposition is silent about the discussion which took place between the parties on 18th August, 1973. On the other hand, Chand Kishore Aggarwal, one of the partners of defendant-firm as DW-1 deposed that he went to Shimla on 18th August, 1973 and had discussion with the Chief Purchase Officer of plaintiff at his office around 12.00 noon. He told him that the offer as contained in the tender Ex. P-1 has been accepted and he would place order for supply of materials by afternoon. He again went to the office of plaintiff at about 3.30 PM and the Chief Purchase Officer gave him letter of acceptance Ex. PW-1/1 placing the order. He acknowledged the receipt by signing at portion 'A'. Although the detailed terms and conditions of contract were not given to him being not readily available but he was assured orally that the terms and conditions tendered by the defendant, will be adhered to and there will be no deviations therefrom. On or about 3rd or 4th September, 1973 he received detailed order Ex. PW-1/2 alongwith the draft agreement form. The salient difference between the two are stated in para No. 6 of the written statement. There is a typing error in the date of 8th October, 1973 as written in the letter Ex. P-3 and the correct date is 18th October, 1973. It was not even remotely suggested to him in crossexamination that in the discussion held on 18th August, 1973, the conditions of tender as noted in Ex. P-1 were agreed to be varied on the lines indicated in said supply order Ex. PW-1/2. Had DW-1 agreed to any variation in the conditions as mentioned in tender Ex. P-1, at least nothing to that effect should have been made by A.K. Srikantiah, PW-1 in the tender file maintained by the department. Weighing the statements of PW-1 and DW-1 in the backdrop of what is stated above, I have no hesitation in holding that there had been no discussion between both these witnesses regarding variation in the conditions mentioned in tender Ex. P-1 on 18th August, 1973.

13. On comparison of two sets of conditions in tender Ex. P-1 and supply order Ex. PW-1/2 extracted above, it is manifest that variations do occur therein particularly in regard to delivery period, duration for admissibility of discount at the rate of 1/2%, payment of Excise Duties and the place of inspection of materials to be supplied which fact was also impliedly admitted by the plaintiff in the letter Ex. PW-1/4 by agreeing to adhere to the conditions as noted in the tender on said counts. Under Section 7 of the Indian Contract Act, 1872, to convert a proposal into a promise, the acceptance must be absolute and unqualified. An acceptance which is quali fied by certain conditions cannot amount to an absolute and unqualified acceptance which only can result into a concluded contract. Considering the aforesaid extent of variations which obviously are not within the permissible limits, no binding contract must be held to have come into existence between the parties during the extended period upto 18th August, 1973. I am unable to accept the submission which is based on the decision in Deviprasad Khandelwal & Sons Vs. Union of India, advanced by Sh. M.S. Vohra appearing for the plaintiff-corporation that aforesaid variations were impliedly included in the tender Ex. P-1. On a bare reading of paras 11 & 12 (at pages 171-172) it is evident that the contract in said case was for sale of a quantity of iron hoops weighing 244 tons approximately and the contention of the petitioners was that they would be entitled to the entire lot of goods whether in excess or short of the said quantity. While dealing with that contention it was observed that it may observed that it may reasonably be expected that in such a case if on actual weighment the goods are found to be less than 244 tons, the excess prices paid would be refunded; that it is also reasonable to expect that if the goods are found to be more, the seller will call upon the buyer to pay the balance price and to take delivery of the excess goods and these terms should be implied into the contract. Obviously, ratio in Deviprasad Khandelwal's case (supra) has no applicability to the facts of the present case. Other decisions relied on behalf of the plaintiff need not be referred here as they have no relevance whatsoever on the controversy on hand. For the foregoing discussion, Issues No. 2 to 5 are answered against the plaintiff.

14. Sarwan Singh, PW-4 deposed that S.M. Sood was working as Law Officer with the plaintiff in 1973 and he continued to work in that capacity till the year 1983 when he became the Deputy Secretary. Sh. Sood died a year or so ago. As far as he remembered, the plaintiff had authorised S.M. Sood to file the suit. Resolution passed in that behalf was destroyed in fire which took place sometime in 1981-82. He had brought the certified copy of the Board's resolution authorising S.M. Sood to file the suit on behalf of plaintiff. He can identify the signatures of S.M. Sood as he had seen him signing. Ex. PW-4/1 was attested by S.M. Sood. Plaint and vakalatnama in favour of the counsel are signed by him. In crossexamination, he stated that he cannot say from which particular record Ex. PW-4/1 was prepared. It was only recently when he was coming to appear as a witness he got hold of Ex. PW-4/1 from the legal section of plaintiff. Submission advanced by Bawa Shiv Charan, Singh. Sr. Advocate appearing for the defendant was that neither the copy of alleged Board's resolution authorising said S.M. Sood to file suit etc. on behalf of the plaintiff nor the record from which Ex. PW-4/1 was prepared, have been filed by the plaintiff. So, this issue deserves to be decided against the plaintiff, Ex. PW-4/1 is the office order No. 142/HPSEB (Sectt.)/74 dated 27th March, 1974 issued under the signature of V.M. Bajaj, the then officer on special duty of the plaintiff, amongst others, authorising the Law Officer to sign, attest and authenticate any plaint, application, petition, written statement, replication, affidavit, power of attorney in favour of any counsel and any other legal instrument or document in any fresh or pending case or proceedings in any Court concerning the plaintiff. Reference of the said office order is made in para No. 1 of the plaint and a cyclostyled copy thereof was also filed on 31st October, 1977 in this case. Ex. PW-4/1 must have been drafted pursuant to resolution certified copy whereof was brought by PW-4, the original being destroyed in fire, passed by the Board of plaintiff corporation. It is pertinent to note that no question was put in cross-examination to the said witness with reference to above resolution implying thereby that it was not disputed that in pursuance of that resolution S.M. Sood was authorised to file suit etc. on behalf of the plaintiff. In the decision in State Bank of Bikaner & Jaipur Vs. Subhash Chander Jain & Ors., , this Court has held that a counsel validly appointed on the basis of power of attorney signed by the attorney of the plaintiff in his favour can institute a suit on its behalf. In view of the said evidence the plaint must be held to have been signed and verified and suit instituted by a properly authorised person on behalf of the plaintiff. Issue is answered accordingly.

15. In para No. 19 of the written statement the counterlaim for refund of Rs. 6,544/- being the amount of the earnest money and Rs. 2,345/- towards interest thereon has been raised. In corresponding para of the replication, the plaintiff has alleged that the amount of Rs. 6,544/- was forfeited on failure of the defendant to execute contract and he was duly intimated of the forfeiture by the letter No. HPSEP:CPO:G.I.P. Pipes/73-1030-31 dated 28th January, 1974 and as such the counterclaim is barred by time. In corresponding para No. 19 of the rejoinder filed by the defendant to the plaintiff's replication. It is alleged that in the plaint which was filed on 13th September, 1976 and also in the letter of even date, the plaintiff had acknowledged the receipt of the amount of earnest money and these acknowledgements extend the period of limitation under Section 19 of the Limitation Act and claim for refund is thus within time. The defendant has filed the said letter dated 28th January, 1974 Ex. D-9. Although the exact date of receipt of this letter is not available on record but in ordinary course, it must have been received by the defendant latest sometime in first week of February, 1974. Under Section 3(2)(b)(i) of the Limitation Act, 1963, counterclaim will be deemed to have been instituted by the defendant on the date of filing of written statement which is 28th February, 1977. Prescribed limitation of three years in his case would start running from the date the right to sue accrued to defendant. That right accrued to him immediately on receipt of said Ex. D-9. Averments regarding receipt of earnest money made in the plaint cannot tentamount to acknowledging liability to pay that money by the plaintiff within the meaning of said Section 19. Alleged letter dated 13th September, 1976 has not been proved by the defendant. Thus the counterlaim made on 28th February, 1977, was barred by limitation. Issue is answered against the defendant.

16. In view of the findings particularly on issue Nos. 2, 3, 4, 5 & 7, the suit and also the counterclaim deserve to be dismissed.

17. Accordingly, the suit and also the counterclaim are dismissed leaving the parties to bear their costs.