Karnataka High Court
M/S Applesoft vs The Director General on 2 June, 2025
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
-1-
NC: 2025:KHC:18573
RFA No. 1340 of 2019
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JUNE, 2025
R
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
REGULAR FIRST APPEAL NO.1340 OF 2019 (INJ)
BETWEEN:
M/S. APPLESOFT,
NO.39, 1ST MAIN,
1ST CROSS, SHIVANAGAR,
WEST OF CHORD ROAD,
BENGALURU - 560 010.
SRI. N. ANBARASAN, C.E.O.
S/O. M. NARASIMHALU,
PROPRIETOR,
POA IN FAVOUR OF N ANBARASAN.
Digitally signed by
MALLIKARJUN ...APPELLANT
RUDRAYYA
MALLIKARJUN KALMATH
RUDRAYYA Location: HIGH
COURT OF
KALMATH KARNATAKA
DHARWAD BENCH
(BY SRI. S. KRISHNAMURTHY)
Date: 2025.06.03
10:53:29 +0530
AND:
1 . THE DIRECTOR GENERAL,
CENTRE FOR DEVELOPMENT OF
ADVANCED COMPUTING
C - DAC PUNE UNIVERSITY CAMPUS,
GANESH KHIND,
PUNE - 411 007.
MAHARASHTRA, INDIA,
-2-
NC: 2025:KHC:18573
RFA No. 1340 of 2019
HC-KAR
2 . THE DIRECTOR,
CENTRE FOR DEVELOPMENT OF
ADVANCED COMPUTING
CORPORATE OFFICE,
AGRICULTURE COLLEGE
CAMPUS NEAR DISTRICT
INDUSTRIES CENTRE,
SHIVAJINAGAR,
PUNE - 411 005.
3 . THE SECRETARY TO GOVERNMENT,
DEPARTMENT OF INFORMATION
TECHNOLOGY
MINISTRY OF C & I TECHNOLOGY,
ELECTRONICS NIKETAN,
6, CGO COMPLEX,
NEW DELHI - 110 003.
....RESPONDENTS
(BY SRI. ASHOK G. V. ADVOCATE FOR R1 TO R3)
THIS RFA FILED U/S.96 OF CPC AGAINST THE JUDGMENT AND
DECREE DATED 23.03.2019 PASSED IN OS.NO.8799/2012 ON THE
FILE OF THE XXIX ADDL.CITY CIVIL JUDGE, BENGALURU CITY
DISMISSING THE SUIT FOR PERMANENT INJUNCTION.
THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT AND COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
-3-
NC: 2025:KHC:18573
RFA No. 1340 of 2019
HC-KAR
CAV JUDGMENT
The plaintiff has preferred this Regular First Appeal
challenging the judgment and decree dated 23.03.2019
passed in O.S.No.8799/2012 on the file of XXIX Additional
City Civil and Sessions Judge, Bengaluru City (CCH-30)
(hereinafter referred to as 'the Trial Court' for short),
thereby, the suit filed by the plaintiff is dismissed with cost
of Rs.25,000/-.
2. For the sake of convenience and easy
reference, the parties are referred to as per their rankings
before the Trial Court.
3. The entire premise of suit is pertaining to the
law of contract.
THE PLAINTIFF'S CASE:
4. Under the peculiar facts and circumstances
involved in the case, it is beneficial to state the prayers
made by the plaintiff in the suit, which are as follows:
NC: 2025:KHC:18573
HC-KAR
"45. Prayer: - Wherefore, the plaintiff
respectfully prays that: -
This Hon'ble Court may be pleased to pass a
judgment and decree in favor of the plaintiff by
setting aside the contentions of the defendants on the
following terms.
a) Granting permanent injunction against the
Defendants and their officers/agents or any person,
acting or claiming through or under them from
continuing to distribute or permit free downloading of
the Tamil language software of the Version 2 that was
released during the First World Classical Tamil
conference (June 2010) and also to refrain from
making any other fresh versions of the Tamil
Language software under the same scheme till such
time the issue in that regard with the Plaintiff herein
is resolved through this OS.
b) To declare the right of the plaintiff to the
extent of his legitimate claims for inclusion of the
valid and due software tools that as per law merited
to be added in the Version 2 of the free distribution
software in the Tamil Language and which was
illegally and unjustly denied to the plaintiff and in
consequence direct the defendant to submit to this
Hon'ble Court all the relevant details (under Order XI
Rule 1 to Rule 22 of the CPC as applicable) to enable
discovery and inspection of the relevant documents
and records so as to enable the estimation of the
financial loss imposed on the plaintiff by the actions of
the plaintiff as enumerated in the M O S and to fix the
cost of loss and other negative impositions that have
been made on the plaintiff by the illegal,
impermissible and unjust actions of the defendant and
on those facts being ascertained grant compensatory
costs including damages and other costs against the
Defendants.
c) Direct the defendants to make good the
financial loss accrued due to the non-consideration of
the software tools submitted by the Plaintiff as per
law and to reject the unjust, false and improper
excused advanced with regard to the software tools
NC: 2025:KHC:18573
HC-KAR
that were already subjected to technical evaluation by
the Defendant and to fulfill the promise of
consideration of the software tools for which the
Defendant has in writing confirmed that due action
would be taken but had quietly and surreptitiously
stopped further due action, (more so in the fact of
release of the Version 2 during the World Classical
Tamil Conference held at TN during June 2010) which
clearly conveys that the defendant had no mind ab
initio to fulfill his part of the implied contract made in
this regard.
d) To consider instances as enumerated in this
M O S and to reject the false and untenable pleas that
may be raised by defendant with regard to each of
them in terms of the specific performance due and in
case that has been rendered infructuous to arrive at
the estimation of loss and damages that have been
Imposed on the plaintiff and direct the Defendant to
make good the loss as well as compensate for the
mental injuries and consequential impositions that
was made on the plaintiff.
e) To Award Damages for such abuse &
violation of the standard rules on transparent and
accountable processes (and that too being an
important public agency and status) that is due on an
agency like that of the Defendant under the
Government.
f) To accord Permission to amend the plaint if
and when required.
g) Decree be drawn accordingly in favor of the
plaintiff and such other and further reliefs that this
Hon'ble Court deems fit in the face of all the facts and
circumstances of the case and in the interest of
justice."
4.1 The plaintiff has stated the facts in detail that
the plaintiff is in the business of software development for
NC: 2025:KHC:18573
HC-KAR
various Indian languages and among other things the
plaintiff has been working on developing various software
tools for Tamil, Kannada and other regional languages of
India.
4.2 Defendant No.1 had called for proposals in
response to the advertisement in the Hindu newspaper
and based on that advertisement the plaintiff had
responded to the call which was seeking proposals from
the public. Notwithstanding compliance to the offer made
by the plaintiff, the plaintiff has been denied the fruits of
his labours and not honoured the implied contract and
therefore alleged agreement of defendant No.1 that series
of fraudulent and premeditated as well as impermissible
and illegal actions of defendant No.1 resulting into serious
financial losses and burdens to the plaintiff. Therefore,
filed suit to seek reparation for all losses and damages.
4.3 Defendant No.1 has mislead the plaintiff and
made the plaintiff to make believe that fair, equal and
NC: 2025:KHC:18573
HC-KAR
open opportunity is being given to the plaintiff to
participate in the process of selection of a suitable
software tools in relation to the professed free distribution
of Tamil software, which is in relation to software tools for
various regional languages of India including Tamil
language and the plaintiff has made plea in relation to
Tamil language free software, but by the act of defendant
No.1 the plaintiff has suffered substantial financial loss and
damages. Therefore, alleged that the defendants'
fraudulent omissions and commissions caused the financial
loss to the plaintiff. It is alleged that the defendants have
caused breaches of legal obligations and a contract which
after required processes would be binding on both the
parties as the defendants chose to resort to devious steps
to avoid his part of the obligation, resultantly the plaintiff
has suffered financial loss.
4.4 On 27.02.2006, defendant No.1 published an
advertisement in "The Hindu" newspaper inviting proposals
for Indian languages resources from amongst the public in
NC: 2025:KHC:18573
HC-KAR
relation to selection of software tools for several languages
including the Tamil language. The said advertisement was
a public and open 'call' from defendant No.1. The
defendant No.1 was seeking formal responses from
amongst the public of India to provide or submit due
proposals as per the specifications made out in the said
advertisement. It is contended that as per law it was an
offer seeking proposal/s and the plaintiff has responded to
it. In response to the said advertisement, the plaintiff
took action to submit due responses to the said
advertisement as per the terms and conditions explicitly
made out in the said advertisement. It is contended that
once the compliance of the conditions indicated in the offer
was made, then it is deemed as an acceptance and a
contract becomes effective. In addition to that, the
responses submitted by the plaintiff were also framed
keeping in mind some of the requirements indicated in the
official website of defendants. The plaintiff has taken all
steps in pursuance of that advertisement and all such
NC: 2025:KHC:18573
HC-KAR
steps were taken in furtherance of the public call of the
defendants believing that it is so done in a bonafide
manner to the response to the said advertisement. The
steps taken by the plaintiff were not voluntary actions or
application/s or stemming or commencing from the side of
the plaintiff, but also it was an act to accept the offer and
thus the contract comes into play subject to various
conditions as per the terms of offer and facet of
acceptance so done by the plaintiff.
4.5 Further the response so made by the plaintiff
was also pursued by the defendants thus the defendants
after receiving due responses from the plaintiff, called for
specific software tools for evaluation and took further
steps in pursuit of considering its inclusion in the Version
2.0 for technical and financial evaluation. Therefore, an
implied contract comes into force and could not be
withdrawn or dropped by the defendants.
- 10 -
NC: 2025:KHC:18573
HC-KAR
4.6 Further, the plaintiff had submitted its
proposals in response to the said advertisement in the
Hindu newspaper dated 27.06.2006 in writing and great
detail vide letter dated 10.07.2006 and the said letter was
received by the defendants. The defendants after
considering all the responses that were received from
various vendors and suppliers, who responded to the said
public advertisement. However, after making enquiries,
the defendants had already handpicked from some so
chosen entities and had added software tools for Tamil
language from those pre-chosen entities therefore this
action is a deliberate mindset and false nature of the said
advertisement which is alleged that the defendant had
already chosen some entities even before advertisement
and therefore, it is alleged that the act of the defendants
is surreptitiously nature in this regard the plaintiff has
indetail discussed that the defendants had adopted in
surreptitive manner.
- 11 -
NC: 2025:KHC:18573
HC-KAR
4.7 Further it is the case of the plaintiff that the
defendants had published an advertisement on 19.05.2005
prior to the advertisement dated 27.06.2006 and the
public response to that advertisement was poor. Later,
another advertisement was issued on 27.06.2006. The
plaintiff, upon choosing the entities, obtained information
under the (Right to Information 'RTI Act') and the
defendants informed the plaintiff that there were 46
responses received by the defendants in response to the
advertisement made in "The Hindu" newspaper dated
27.06.2006.
4.8 Further, it is stated that one Sri. Mahesh
Kulkarni of defendants' company has been communicating
with the plaintiff through email/s and letters about
software/s and one of such communication conveyed that
the defendants would be considering for inclusion of some
software/programs/tools submitted by the plaintiff for
release of Version 2.0 of the said Tamil language software
tools. It is opinion of the plaintiff that free public
- 12 -
NC: 2025:KHC:18573
HC-KAR
distribution of software not only has a financial advantage
but also serves as public service. Thus the conduct of the
defendant is nothing but causing loss to the legitimate and
valid vendor/supplier/author due to the wrongful, non-
transparent and illegal actions by the defendant.
4.9 The plaintiff has stated instances of legal
injuries sustained by it and has pleaded the following
instances: (i) that the officials of the defendants, namely
Sri. Mahesh Kulakarni and Sri. Chandrakanth were
communicating through letters/emails to inform the
plaintiff about the progress of various issues concerning
the plaintiff's case. The said Chandrakant mentioned that
the software products of the plaintiff, Version 2.0, namely
(i) Surabhi 2000 (ii) Surabhi U V (iii) Visaitamil, were not
considered. Therefore, through this communication, the
defendants confirmed that the above said software
products/tools had been received by the defendants.
However, the defendants conveyed to the plaintiff that the
above said three software tools/programs were similar to
- 13 -
NC: 2025:KHC:18573
HC-KAR
the programs/tools/software that were already available
with the defendants, hence the defendants would not
consider the said three programs for inclusion in the
release of Version 2.0. However, with regard to these
software products, the defendants had previously written
to the plaintiff about some bugs present in the software
tools and had expressly sought that the said bugs to be
fixed by the plaintiff. Based on this written communication
from the defendants, the plaintiff attended to all such
items and re-pursued the matter by submitting the duly
attended versions of the said tools. It is submitted that
the defendant had specifically indicated that software tools
Visaitamil was taken for testing and evaluation but took no
further steps.
4.10 Further, the Second Version of the free software
for Tamil language was made public during the World
Classical Tamil Conference held at Coimbattore, Tamil
Nadu, in the year 2010. The plaintiff was able to secure a
copy of Version 2.0 and examined it out of general
- 14 -
NC: 2025:KHC:18573
HC-KAR
curiosity to know facts relating to the release of the said
software tools. The plaintiff found his shock and surprise
that the said Version 2.0 contained software products from
the following two venders/suppliers: (a) M/s New Wave
Consulting (Private) Ltd., (b) M/s New Horizon Media
(Private) Ltd. It is submitted that the above said Version
2.0 contains the following programs/tools, which are
similar to the programs/tools/software found in the
Version or Version 1.0 released earlier.
4.11 It is alleged that the defendant has not
furnished true, correct and acceptable clarification; thus,
the averments made by the defendants cannot be
accepted on its face value. In this way, the defendants
have misled the plaintiff. Further, the plaintiff has stated
the following instances regarding the said Version 2.0
which contained software/tools/programs.
a) M/s. New Wave Consulting (P) Ltd.,
b) M/s. New Horizon Media (P) Limited.
c) M/s. C-DAC.
- 15 -
NC: 2025:KHC:18573
HC-KAR
4.12 Therefore, it is alleged that the action taken by
the defendant surreptitiously enables the above said three
agencies to benefit from the impermissible action and
therefore the defendants have shown illegal favour to the
above said agencies, contrary to all principles of
transparency and Rule of Law, besides breach of contract.
4.13 It is stated that M/s New Wave Consulting Pvt.
Ltd. and M/s New Horizon Media Pvt. Ltd., were not in the
list of agencies or organizations that had actually
responded to the advertisement in "The Hindu" newspaper
dated 27.06.2006 and as on 12.07.2006. Thus, prima
facie these two agencies were not eligible to be considered
for any action with reference to the defendants'
advertisement in "The Hindu" newspaper dated
27.06.2006. Therefore, those who had not responded to
the said advertisement as per list of the defendants would
be ineligible for any consideration. Thus, the action of the
defendants does not stem from or follow the
advertisement.
- 16 -
NC: 2025:KHC:18573
HC-KAR
4.14 It is alleged that the defendants have illegally
favoured the above said two agencies in breach of contract
with plaintiff. The defendants had no legal power or valid
authority to assign a task or grant a vendor opportunity to
any of the said three agencies. The action of the
defendants is illegal and with malicious motivated by
malice, therefore as a result of the above impermissible
actions, commissions and omissions by the defendant, the
plaintiff has been denied a fair and open opportunity,
which has been illegally denied to the plaintiff, in order to
show legal favour to the above said two agencies.
Therefore, the stand taken by the defendants is false and
untrue. As such, the refusal or failure by the defendants
to consider the software tools prepared by the plaintiff is
illegal action. The defendants have made the plaintiff to
attend to many specific actions like fixing bugs in the
relevant software tools as suggested by the defendants
and in response to that direction, the plaintiff has acted by
suitably modifying the software tools for the coexistence of
- 17 -
NC: 2025:KHC:18573
HC-KAR
the programs as per the requirements indicated by the
defendants in the final product. These failures, acts and
omissions on part of the defendants have resulted in
causing financial losses to the plaintiff. It is submitted
that in the normal course after due selection of the
software tools, negotiations would have ensued to fix the
final price of the products; therefore, the defendants are
estopped from retracting its offer.
4.15 The instances (ii) stated by the plaintiff is that
the defendants by their communication as indicated that
out of the several programs/software/tools submitted in
response to the same advertisement. The following items
were under test by the defendants:
1. Aatral
2. Senthamil 1A
3. Senthamil 1B and
4. Senthamil 4.
4.16 As per the communications made by the
defendants, the above four software tools were under test
or evaluation by the defendants. It was also conveyed in
- 18 -
NC: 2025:KHC:18573
HC-KAR
writing by the defendants through letter/email dated
15.05.2007 and 14.06.2007 that three of the above four
programs might be considered for possible inclusion at the
time of release of version 2.0 of the Tamil language
software tools, but the defendants had not provided
contract to the plaintiff. The plaintiff, based on the
communications made by the defendants had legitimate
expectations that the above said software tools would be
considered favourably, but the defendants rejection of the
plaintiff's offer caused heavy financial loss to the plaintiff
due to this surreptitious action. Therefore, the plaintiff is
left with no other alternative ways but to take legal action
against the defendants. It is alleged that technical
evaluation as well as financial evaluation had to precede
the final selection of the software tools. The defendants
confirmed the progress of the technical evaluation through
its communication, but without taking any legal action or
steps in this regard resiled from the contract, which is
illegal. Even after five years from that date, no steps had
- 19 -
NC: 2025:KHC:18573
HC-KAR
been taken to fulfil their part of the legally binding
obligations and the failure in this regard by the defendants
is illegal action. Therefore, the legitimate expectation of
the conditional contract coming into effect would have met
the valid aspirations of the plaintiff if allowed to emerge.
Thus, in this way, the defendants defrauded the plaintiff of
legitimate claims. As a result of which, the plaintiff has
suffered financial loss besides mental agony and tension.
4.17 Further, it is pleaded that the defendants had
requested the plaintiff vide email dated 26.07.2007 to fix
the bugs in the programs above as sent to them in
response to the advertisement dated 27.06.2006 and
based on that written communication, the plaintiff had
acted and taken steps accordingly to attend to those
specific observations of the defendant. Therefore, from
the written communications made by Sri. Mahesh
Kulakarni of the defendants' company dated 13.03.2006
and from the letter dated 14.06.2007, it is clear that the
defendants had sought from the plaintiff to send the above
- 20 -
NC: 2025:KHC:18573
HC-KAR
said four specific programs to the defendants. Through
these communications, the defendants had shown a clear
indication that it was keen to include these four programs
in Version 2.0 of the Tamil software tools. This request
was further reiterated by the defendants through its
letters dated 15.05.2007 and 14.06.2007.
4.18 It is alleged that after the said communications,
the defendants suddenly went silent and through the
above said communications, the defendants had kept the
plaintiff on a false promise of fulfilling the contract that
came into effect by the offer and acceptance, thereby
causing financial loss, damage and mental agony to the
plaintiff without any just cause of reason action.
4.19 The defendant had raised reasonable and
natural expectations in the mind of the plaintiff, making
the plaintiff believe that the plaintiff's software tools
directed by the plaintiff would be accepted by the
- 21 -
NC: 2025:KHC:18573
HC-KAR
defendants, but the defendant illegally retracted its
acceptance, causing loss to the plaintiff.
4.20 The plaintiff has stated instance (iii) that with
regard to the Surabhi tools U V, by a communication from
the defendants dated 27.11.2007, the defendants
conveyed that the above said software programs were
being considered for inclusion in the release of Version
2.0. However, no further steps have been taken by the
defendants in this regard, despite the developments
surrounding the release of Version 2.0 at the World
Classical Tamil Conference during the month of June 2010,
and instead, the defendants misled the plaintiff. The
defendants made the plaintiff believe that the software
tools developed by the plaintiff would be accepted by the
defendants for released at the World Classical Tamil
Conference. Thus, without following norms, procedures,
the defendants had unilaterally kept silent, despite the
offer made in the advertisement being accepted by the
plaintiff and the defendants reciprocating the acceptance.
- 22 -
NC: 2025:KHC:18573
HC-KAR
In this way, the contract is fulfilled and the acceptance
made by the defendants is proved by the communication
as discussed above. However, thereafter, the defendants
has retracted its acceptance without any reason, through
commissions and omissions by the defendants, causing
loss and injury to the plaintiff. Therefore, the plaintiff has
filed the suit.
4.21 It is further pleaded that the plaintiff had
responded to the advertisement in "The Hindu" newspaper
by which the defendants had called for "read to integrate
software" tools under the condition of unlimited licensing
and based on that advertisement the plaintiff had
submitted the proposals for the requirements specified in
the said advertisement. Further, as per the terms and
conditions for the submission of the proposals for the said
software's, the proposals had to be submitted under an
unlimited, worldwide, transferable irrevocable license for
free distribution. Based on such express and professed
conditions, the plaintiff had submitted the proposals as per
- 23 -
NC: 2025:KHC:18573
HC-KAR
those guidelines and in the expectation of a fair
opportunity and just consideration. The plaintiff had not
made any other efforts to continue or venture to market
its products, in anticipation of a positive outcome. As a
natural consequence, the plaintiff has been made a
sufferer, as the process of selection adopted by defendant
No.1 is illegal, unjust, and contrary to law and procedure.
4.22 The plaintiff, right from the time of its first
response to the advertisement in the Hindu newspaper,
clearly conveyed to the defendants the company details of
the software products in question and provided a total
profile of all the software tools offered by the plaintiff
including their size, potential and other details and all such
details were provided to the defendants. Thus, the
defendants are estopped from retracting their contract and
the defendants have caused financial loss, injury, damage
and mental agony to the plaintiff. Hence, the plaintiff is
constrained to file the suit for claiming the above said
reliefs.
- 24 -
NC: 2025:KHC:18573
HC-KAR
4.23 The plaintiff by filing the suit in the City Civil
Court had stated the cause of action to file the instant suit
arose when the defendants released the Version 2.0 of the
free distribution language tools in Tamil during the period
of 23rd to 27th of June 2010 and when the plaintiff had
secured a copy of the second Version released during the
World Classical Tamil Conference 2010 held in Tamil Nadu.
This realization occurred when the plaintiff understood that
defendant No.1 had no intention to conduct a fair, just and
lawful process in pursuance of its own advertisement
made on 27.06.2006, though the plaintiff became aware of
the defendants real intention only during June 2010.
When the plaintiff realized the fraudulent intentions of
defendant No.1 not to honour its own commitment and its
demonstrated refusal to follow a valid, legal, transparent
and just procedure, instead kept the plaintiff in the
knowing the plaintiff's position. Thus, the cause of action
arose during the period of 23rd to 27th of June 2010 and if
the suit is filed within a period of limitation from the time
- 25 -
NC: 2025:KHC:18573
HC-KAR
of that date of cognizance on the part of the plaintiff
concerning the illegal steps taken by defendant No.1.
4.24 Regarding jurisdiction to file the suit in City Civil
Court at Bengaluru, it is stated that the defendants had
advertised in "The Hindu" newspaper on 26.06.2006
(published from the city of Bengaluru) and the
transactions commenced at that event, with
communications and correspondences made by the
plaintiff form its office in Bengaluru. Thus, the City Civil
Court, Bengaluru, had territorial jurisdiction. Therefore,
the suit filed by the plaintiff for the above stated prayers
with facts narrated above.
THE DEFENDANTS' CASE:
5. Defendant Nos.1 and 2 have filed written
statement by giving reply to each paragraph in the plaint.
Defendant No.3 has adopted the written statement filed by
defendant Nos.1 and 2.
- 26 -
NC: 2025:KHC:18573
HC-KAR
5.1 The defendants have totally denied the case of
the plaintiff as false. The case made out by the plaintiff in
plaint that the advertisement in "The Hindu" newspaper
dated 27.06.2006 inviting tenders, is not an offer but
rather an invitation to offer. Further, the defendants
denied that the defendants have caused the plaintiff to
sustain loss and injury.
5.2 Further, the defendants have pleaded that the
suit is not maintainable on the grounds of lack of
jurisdiction, absence of cause of action, being barred by
limitation and absence of privity of contract between the
plaintiff and the defendants. Also submitted that due to
insufficient Court fee paid and vagueness of the averments
in the plaint, the suit is not maintainable.
5.3 Further, it is pleaded that regarding territorial
jurisdiction, the defendants have stated that defendant
Nos.1 and 2 are carrying on their activities from Pune and
defendant No.3 from New Delhi. The advertisement dated
- 27 -
NC: 2025:KHC:18573
HC-KAR
27.06.2006 published in the English daily newspaper "The
Hindu" was released from the Pune office of defendant
Nos.1 and 2. Thus, no cause of action has arisen under
the jurisdiction of City Civil Court, Bengaluru.
5.4 It is pleaded that the correspondence and
actions made by the plaintiff's office in Bengaluru and the
advertisement dated 26.06.2006 was published in the
Bengaluru edition of English daily newspaper "The Hindu"
does not confirm territorial jurisdiction on the City Civil
Court, Bengaluru. As per Section 20 of the Code of Civil
Procedure (hereinafter referred to as 'CPC' for short), a
suit can be filed either in the Court within the local limits
of whose jurisdiction the defendant resides or carries on
business or where the cause of action arises. Therefore, it
is pleaded that in the present case, neither of the said two
conditions is satisfied and mere exchange of
correspondence at Bengaluru on behalf of the plaintiff does
not entitle it to invoke the territorial jurisdiction of the City
Civil Court, Bengaluru.
- 28 -
NC: 2025:KHC:18573
HC-KAR
5.5 Just because the said advertisement appeared
in the Bengaluru edition of "The Hindu" newspaper, it
cannot be said that cause of action has arisen in
Bengaluru. Therefore, in view of non-satisfaction of either
of the two conditions envisaged in Section 20 of CPC, the
suit is liable to be dismissed on the ground of lack of
territorial jurisdiction.
5.6 It is pleaded in reply to the plaint allegation
that if it was the plaintiff's opinion that the defendants did
nothing since 2007, the plaintiff ought to have filed the
suit before 2010. In the defendants' email reply dated
15.05.2008, which was in response to the plaintiff's letter
dated 28.04.2008, the defendants have specifically
informed the plaintiff that the Tamil language CD had
already been released and there were no immediate plans
to release the second version of the earlier released
software tools and fonts CD and that all the decisions
regarding procurement of further additional tools
technologies had been put on hold. It was made clear to
- 29 -
NC: 2025:KHC:18573
HC-KAR
the plaintiff on 15.05.2008 itself that the issue of
considering its software for Tamil language CD had been
closed. Even if this email is taken as starting point of
limitation, the suit ought to have been filed on or before
14.05.2011, but the suit filed is barred by limitation. The
plaintiff has admitted that the defendants vide letter dated
18.12.2008 sent it the proceedings of its technical
committee and in the said report, the technical report
clearly stated that price quoted by the plaintiff was too
high and its software was too big to be accommodate in a
single CD. The plaintiff has averred that the defendants
were not justified in not considering its software because
of its big size; the plaintiff knew on 18.12.2008 itself that
its software had been rejected by the defendants and
therefore ought to have filed suit before 17.12.2011, but
filed thereafter, making the suit barred by limitation.
Therefore, the pleading taken by the plaintiff to overcome
the limitation issue is false and the plaintiff has made a
false averment that the cause of action for the suit
- 30 -
NC: 2025:KHC:18573
HC-KAR
commenced when the defendants released Version 2.0 CD
during the World Tamil Conference held at Coimbatore
from 23rd to 27th June, 2010. The plaintiff was under the
mistaken impression that the CD released at the
Coimbatore conference was Version 2.0 CD. The
defendants have stated that the facts on record show that
Version 1 CD consists all numerous free and open source
tools localized in Indian languages as well as tools such as
keyboard drivers, fonts, dictionaries etc., released by the
Technology Development for Indian languages Programme
of the Department of Electronics and Information
Technology, Government of India.
5.7 It is further pleaded that the tools in the
language CD were mostly from C-DAC and other research
institutions. The CD is distributed free for non-commercial
usage and is language specific released in all 22 Indian
languages in phases, including Tamil language. The World
Classical Tamil Conference was held in Coimbatore in June,
2010 under the auspicious of the Government of Tamil
- 31 -
NC: 2025:KHC:18573
HC-KAR
Nadu. Various committees were formed to take care of
different themes, one of such themes was international
Conference in Tamil. A Committee was formed by the
Tamil Nadu Government for this purpose under the
Chairmanship of Prof. M. Anandakrishna, IIT, Chennai.
Since the Department of Electronics had already released
CDs in 22 languages, the Committee requested its help in
releasing a CD in Tamil during the Coimbatore conference.
The latest localized versions of a few free and open source
tools and other tools as suggested by the said Committee
were included in a CD specific to the Coimbatore
Conference. The CD known as "Tamil 2010" was released
in June 2010 at the Coimbatore conference. This is not
Version 2.0 CD, as falsely contended by the plaintiff.
Version 2.0 CD has not been released by the defendants
even to date. The CD released at the Coimbatore
conference was an event specific release at the initiative of
the Government of Tamil Nadu, which has nothing to do
with the Version 2.0 CD. The plaintiff also has not
- 32 -
NC: 2025:KHC:18573
HC-KAR
produced any material in support of its contention about
the release of Version 2.0 CD and has confined itself to
making false averments to somehow bring the suit within
the period of limitation. In view of this, the suit is liable to
be dismissed as barred by limitation.
5.8 Further it is pleaded that the plaintiff has falsely
averred that there is a contract between it and the
defendants. According to the plaintiff, the defendants'
advertisement in the English daily newspaper, "The Hindu"
dated 27.06.2006 was an offer by the defendants and
compliance with the conditions of the advertisement by
the plaintiff was a deemed acceptance of the offer, thus
resulting in a concluded contract between them. This
stand of the plaintiff is not tenable either in law or on
facts. In the advertisement dated 27.06.2006, it is clearly
stated that proposals are invited from interested persons
for ready to integrate software tools/technologies and
resources for any of the 22 scheduled Indian languages.
This cannot, by any stretch of imagination, be construed
- 33 -
NC: 2025:KHC:18573
HC-KAR
as an offer. At the most, it is only an invitation to offer.
The response of the plaintiff to this advertisement can only
be considered as an offer. As the defendants have at no
point of time accepted the offer of the plaintiff, there is no
concluded contract between them.
5.9 Further, it is stated that the plaintiff is fully
aware of the fact that there is no concluded contract with
the defendants, as clearly borne out by its letter dated
12.05.2007 addressed to the defendants, in which it has
clearly stated that it would be much interested to
upgrading/rewriting spell checker and administrative
glossary only after finalization of the pending proposal or
on receipt of a formal work order, purchase order or
agreement. In the said letter, the plaintiff has also asked
the defendants about the terms and conditions for the
software tools and financial offers for the same. Despite
this, the plaintiff has filed the suit by wrongly assuming a
valid contract between it and the defendants. In the
- 34 -
NC: 2025:KHC:18573
HC-KAR
absence of any contract between the parties to the suit,
the very basis of the suit is taken away.
5.10 Further, it is pleaded that there is nothing in the
plaint to indicate that any right has accrued in favour of
the plaintiff to justify filing of the suit. The plaintiff has
not been able to even quantify its alleged loss; it has
clearly admitted that the extent of loss is yet to be
computed and calculated. Despite this, one of the prayers
in the plaint is for a direction to the defendants to
compensate for the financial loss suffered by it. It has
made another untenable prayer at clause (d) in prayer of
the plaint to estimate its alleged loss and for a direction to
the defendants to pay it. It has also prayed for damages
without quantifying it. The plaint is replete with
grievances and innumerable repetitions of the same
averment/allegation along with unsustainable prayers.
5.11 Further, it is pleaded that the plaintiff has
misrepresented material facts, which the defendants deem
- 35 -
NC: 2025:KHC:18573
HC-KAR
it necessary to place them on record. The defendants had
released a compact disc containing free Tamil software
tools on 15.04.2005. Due to rapid changes in technology,
it was felt necessary to release yet another compact disc
containing revised and updated versions of the earlier
compact disc released on 15.04.2005. Accordingly, the
defendants issued an advertisement dated 27.06.2006
produced as Annexure-A to the plaint, inviting proposals to
provide software tools, technologies and resources for any
of the 22 scheduled languages. The proposals so received
along with the accompanying software tools were to be
evaluated by the technical and finance committees of the
defendants and upon approval, the relevant proposals
along with the software tools would be accepted for
inclusion in the revised compact disc containing the
revised version of the contents of the erstwhile disc
released on 15.04.2005. As already stated above, the CD
released at the Coimbatore conference has nothing to do
with Version 2.0 CD, which has not been released so far.
- 36 -
NC: 2025:KHC:18573
HC-KAR
5.12 Further, the plaintiff has made all sorts of false
allegations without any basis and the same allegations are
repeated multiple times in the plaint. The defendants
submit that no fraud has been committed by them and are
not liable for the alleged mental agony and financial losses
of the plaintiff.
5.13 Further, it is pleaded that the averments made
in the plaint that the plaintiff has suffered financial loss
due to wanton and premeditated breaches of its legal
obligations by the defendants that the defendants have
taken dubious steps to avoid its part of the obligations
resulting in loss of financial income that would have
otherwise accrued to it and due to acts of omission and
commission on the part of the defendants great mental
loss and anxiety has been caused to the plaintiff and that
the defendants are responsible for the loss, injury and
damages caused to the plaintiff are hereby denied as false.
As already stated above, no contract between the plaintiff
and the defendants has come into existence and the
- 37 -
NC: 2025:KHC:18573
HC-KAR
plaintiff has repeatedly made this false averment in the
plaint.
5.14 Further, it is stated that the plaintiff itself has
clearly admitted that the defendants invited proposals
from the public in the advertisement dated 27.06.2006 in
the English daily newspaper "The Hindu". This contradicts
its own false stand that the said advertisement is an offer
and that by complying with its terms and conditions, it has
accepted the offer, thus resulting in a contract.
5.15 Further, it is pleaded that the plaintiff made
enquiries and learnt that the defendants had already
(before the said advertisement itself) handpicked some
chosen entities, that it added the software tools of the
chosen entities for the Tamil language, that it had taken
such a step during April 2005 itself, about which said
advertisement dated 27.06.2006 had been issued. This is
a clear pointer to the deliberate mindset and false nature
of the said advertisement, though the defendants made an
- 38 -
NC: 2025:KHC:18573
HC-KAR
attempt to couch that action by stating in the
advertisement dated 27.06.2006 that it was in
continuation of the efforts to release of language CD's etc.
The plaintiff's allegation that it was all along in the dark
about the illegal plans adopted in this regard by the
defendants and that the defendants did not follow any
transparent or open procedure as per law in the process
by which the products of such handpicked entities or
agencies were deliberately, purposefully and without due
legal authority added to the said CD released to the
marked by the defendants during the year 2005 itself are
all denied as false.
5.16 Further, it is pleaded that it is true that
defendant No.1 in response to the RTI application
preferred by the plaintiff, informed that the defendants
had received 46 proposals in response to the said
advertisement and further, the defendants have also
provided to the plaintiff proceedings of technical
committee of defendant No.1, which had examined and
- 39 -
NC: 2025:KHC:18573
HC-KAR
evaluated the responses. This clearly shows the
transparent, bonafide and legal procedure followed by the
defendants to evaluate the responses received to the
advertisement.
5.17 Further, it is pleaded that it can be seen from a
perusal of the proceedings of the technical committee of
the defendants produced as Annexure-H to the plaint that
the committee found the price quoted by the plaintiff to be
quite high and its software size was too big that it could
not fit in a single CD. It has not recommended acceptance
of the plaintiff's proposal. On the other hand, it
recommended only relook at the proposal when the
second version of the specific language CD is planned.
This is yet another proof to show that the defendants at no
time accepted the proposal of the plaintiff.
5.18 Further the defendants have pleaded that in the
letter dated 13.09.2006, one Sri. Mahesh Kulkarni has
only stated that the defendants are planning to
- 40 -
NC: 2025:KHC:18573
HC-KAR
incorporate more tools, especially the language learning
tutors, as mentioned in the proposal of the plaintiff, but
the plaintiff has falsely averred that Sri. Mahesh Kulkarni
has stated in the said letter that the defendants are
considering inclusion of the plaintiff's software for release
in Version 2.0 CD. Thus, there was no commitment of
whatsoever nature on the part of the defendants to include
the software of the plaintiff in Version 2.0 CD and it was
only at the planning stage and not even at the
consideration stage. In view of this, no right can be said
to have accrued in favour of the plaintiff to bind the
defendants to include its software in Version 2.0 CD.
5.19 Further the defendants have pleaded that the
allegations made are just repetitions of allegations made
earlier and all of them are false. It is unfortunate that the
plaintiff, after admitting that it is in the process of getting
some more information from the defendants to know the
real nature of its dealings with M/s. New Wave Consulting
(P) Ltd. and M/s. New Horizon Media (P) Ltd., has chosen
- 41 -
NC: 2025:KHC:18573
HC-KAR
to make wild allegations against the defendant based on
incomplete and wrong information and assumptions. The
defendants have not favoured the said two companies as
falsely alleged by the plaintiff.
5.20 Further, the defendants have pleaded that since
the plaintiff has not incurred any loss, the question of
making good the loss does not arise. In its letter dated
12.05.2007, the plaintiff has clearly informed the
defendants that it (plaintiff) will start work only after
finalization of the pending proposal or formal work order
or agreement. As even according to the plaintiff, none of
these things happened there was no occasion for the
plaintiff to start any work. This clearly goes to show that
the plaintiff has falsely claimed to have incurred loss to
make ill-gotten money at the expense of the defendants.
5.21 Further, the defendants have pleaded that there
is nothing in the letter/email dated 15.05.2007 and
14.06.2007 of the defendants to give the plaintiff
- 42 -
NC: 2025:KHC:18573
HC-KAR
legitimate expectation that the defendants would
favourably consider its proposal regarding inclusion of
certain items in Version 2.0 CD. In his email dated
27.11.2007, the said Sri. Chandrakant has clearly
informed the plaintiff that four of its software programmes
have been rejected and the remaining four would be
considered at the time of Version 2.0 CD. The plaintiff has
no right to force the defendants to include any of its
software programme/tools in Version 2.0 CD. Even if the
allegation of the plaintiff that the defendants have chosen
to keep quiet since 2007 is assumed to be correct without
admitting it that only goes to prove that the present suit is
clearly time barred. In addition, the plaintiff has no right
to force the defendants to release Version 2.0 CD or
include its software in it. It is for the defendants to decide
whether it should release Version 2.0 CD or not or include
anybody's software in it and nobody can have a say in this
matter. As already stated, the CD released at the
Coimbatore conference in June, 2010 is not Version 2.0
- 43 -
NC: 2025:KHC:18573
HC-KAR
CD, as wrongly presumed by the plaintiff and all the
averments made by it based on this wrong presumption,
in addition to being false are also irrelevant.
5.22 Further, the defendants have pleaded that the
allegations that the defendants had via email dated
26.07.2007 requested the plaintiff to fix the bugs in its
programs, that based on it, the plaintiff took steps to
attend to the specific observations of the defendants that
by its communications dated 13.09.2006 and 14.06.2007,
the defendants had given a clear indication that it was
keen to include four programs of the plaintiff that the
defendants via letters dated 14.06.2007 and 15.05.2007,
had made it clear to the plaintiff that the four programs of
the plaintiff were intended to be included in Version 2.0
CD and that Version 2.0 CD was released in the World
Tamil Classical Conference held in Coimbatore in June
2010, are hereby denied as false.
- 44 -
NC: 2025:KHC:18573
HC-KAR
5.23 Further, the defendants have pleaded that the
plaintiff has completely and unjustifiably misconstrued the
communications from the defendants referred to above
and is under the false impression that version 2.0 CD was
released in June 2010.
5.24 Further, the defendants have pleaded that the
averments that after the communications referred in Para
31 of the plaint, the defendants suddenly went silent that
it is obvious that the letters and communications of the
defendants to the plaintiff were dishonest ab-initio, that
the defendants had kept this plaintiff on a false promise of
fulfilling the contract that came into effect by the offer and
acceptance that it acted on the directions of the
defendants and that the defendants caused financial loss,
damage and mental agony to the plaintiff without any just
cause or reasons are hereby denied as false.
5.25 Further, it is pleaded that the defendants had
raised a reasonable and natural expectation in the mind of
- 45 -
NC: 2025:KHC:18573
HC-KAR
the plaintiff that the plaintiff had not taken any other
normal business step to market any of the said software
tools, which it might have done had the defendants not fed
it with all false, misleading and bogus promises, that the
loss to the plaintiff was not only stemming from unjust
and illegal non-consideration of the proposals by the
defendants but also from loss of prospective business of
the said software in the open market and that the
defendants had engaged in sham and bogus activities are
hereby denied as false.
5.26 The defendants further pleaded in the written
statement that the defendants submit that it has always
acted in a fair and lawful manner with the highest
standards of ethical compliance in all its dealings with
others, including those with the plaintiff. The mere fact
that each and everyone of the plaintiff's queries and
communications was promptly responded to is a testimony
to the bonafide intentions of the defendants and the
transparency with which it dealt with all proposals received
- 46 -
NC: 2025:KHC:18573
HC-KAR
by it. Therefore, there is no question of the defendants
acting in a fraudulent, dishonest, surreptitious or illegal
manner. If the plaintiff has not taken any other normal
business steps to market the said software tools, as
claimed by it, it has to blame itself and the defendants are
in no way responsible for it. The plaintiff also at no time
brought this to the notice of the defendants, which clearly
goes to show that in addition to being false, the said
averments/allegations are a result of afterthought. When
there is no contract between the plaintiff and the
defendants, there is no question of making good the
alleged loss to the plaintiff.
5.27 Further, the defendants pleaded that the
defendants have not released Version 2.0 CD in the
Coimbatore conference; all the averments made in Para 34
in addition to being false, are also irrelevant.
5.28 Further, the defendants submit that as admitted
by the plaintiff itself, the defendants had only informed it
- 47 -
NC: 2025:KHC:18573
HC-KAR
that it would consider inclusion of plaintiff's software in
Version 2.0 CD and there was no binding commitment to
this effect. As Version 2.0 CD has not been released,
there is no question of causing any loss to the plaintiff.
Even if Version 2.0 CD has been released without including
the software of the plaintiff, then also the plaintiff cannot
have any grievance over the same, as the defendants are
under no obligation to include its software in Version 2.0
CD. The plaintiff has not incurred any loss as alleged, if at
all it has incurred any loss, it has to blame itself.
5.29 Further, it is pleaded that the allegations that
the defendants really had no intention to follow the patent
financial canons of the Government or follow any legally
bound transparent procedures that all the steps taken by
the defendants were in a ruse to mislead, misrepresent
and falsely do all the illegal processes behind the back of
legitimate aspirants of those who in good faith responded
to the said advertisement that the plaintiff has been
denied the anticipated financial gain that financial loss,
- 48 -
NC: 2025:KHC:18573
HC-KAR
mental anxiety and torture have been caused to the
plaintiff and that the defendants have to make good the
said loss, are hereby denied as false. The fact that the
plaintiff has not incurred any loss is very clear from the
fact that nowhere it has quantified it and on the other
hand, it has tried to cover up this by making an untenable
statement that the loss and damages have to be computed
based on the details to be provided by the defendants. It
goes without saying that if at all the plaintiff has incurred
any loss, it should have known the quantum of loss and
that quantification of its loss cannot depend on the
information to be supplied by some other party.
5.30 Further, it is pleaded that at no time the
defendants had made a binding commitment to the
plaintiff to include its software in Version 2.0 CD and as
admitted by the plaintiff itself, the defendants had only
stated that it would consider including the plaintiff's
software in Version 2.0 CD. In view of this, there is no
merit in the contention of the plaintiff that the defendants
- 49 -
NC: 2025:KHC:18573
HC-KAR
failed to act as promised and caused serious loss and
anxiety to the plaintiff and that it has to make good the
alleged loss to the plaintiff.
5.31 Further, the defendants have pleaded that
averments that the plaintiff had not made any other effort
to continue or venture to market its products in
anticipation of a fair opportunity and just consideration by
the defendants that it has suffered due to alleged illegal
process of selection adopted by the defendants and that
the defendants have to make good the alleged loss are
denied as false. As already stated above, there has never
been any contract between the plaintiff and the
defendants and if at all the plaintiff has kept quiet for
many years without marketing its products, it is solely
responsible for the same and the defendants cannot be
blamed for it.
5.32 The defendants have pleaded that the
averments that the defendants, by having access to
- 50 -
NC: 2025:KHC:18573
HC-KAR
various software programmes developed by others has
gained for itself very vital information without any real
intellectual effort on its part and this action is virtually an
invasion and abuse of the intellectual property of those
who have placed their software for due consideration by
the defendants and that the defendants have indulged in
making an illegal and improper situation by having access
to the intellectual property of the plaintiff and others are
denied as false. It is clear from the said averments of the
plaintiff that it has mistaken this suit for a public interest
litigation. No other software developer has made any
complaint against the defendants and the plaintiff has no
right to assume the role of their spokesman. In the
present suit, the main grievance of the plaintiff is that the
defendants have not made use of its software. After
having clearly admitted that its software has not been
made use of by the defendants, it is not known on what
basis the plaintiff has made the allegation that the
- 51 -
NC: 2025:KHC:18573
HC-KAR
defendants have gained by having access to the software
of the plaintiff and others.
5.33 Further, the defendants pleaded that vide email
dated 15.05.2008, they intimated the plaintiff that its
proposal was rejected as the project itself had been
scrapped. The plaintiff has admitted that the defendants
have observed silence in the matter since 2007. The
defendants have not released Version 2.0 CD in June
2010, as wrongly averred by the plaintiff. In view of this,
no cause of action has arisen in favour of the plaintiff to
file the above suit. Only with a view to bring the present
suit within the period of limitation, the plaintiff has
referred to the release of an unrelated compact disc in the
month of June 2010 as the date on which the cause of
action arose.
5.34 Further, the defendants have demonstrated
above that the cause of action did not arise in June 2010.
The plaintiff has made a false averment that Version 2.0
- 52 -
NC: 2025:KHC:18573
HC-KAR
CD was released in June 2010 only with a view to bring
the suit under the period of limitation. The suit is clearly
time-barred.
5.35 Further, the defendants have pleaded that
neither are the defendants carrying on their business from
Bengaluru nor any cause of action has arisen in Bengaluru.
The publication of the advertisement in "The Hindu"
newspaper published from Bangaluru office, does not
entitle the plaintiff to invoke the jurisdiction of City Civil
Court, Bengaluru.
5.36 Therefore, the defendants, in the written
statement have answered with a specific reply to each of
the pleadings in the plaint and denied the entire plaint
averments as false and frivolous. It is pleaded that there
was absolutely no offer by the defendants to the plaintiff
and there was no acceptance of any contract by the
defendants. What was made in the advertisement in the
newspaper "The Hindu" was only an invitation to offer, but
- 53 -
NC: 2025:KHC:18573
HC-KAR
not an offer and the defendants had never accepted any of
the proposals of the plaintiff. The plaintiff has
misconstrued the fact that mere communications between
the plaintiff and the defendants constitute a conclusive
contract. Therefore, the defendants denied that there was
a concluded contract between them. Hence, the
defendants have taken pleading that the suit is filed is only
on the assumption and presumption and thus is not
maintainable. Therefore, prayed to dismiss the suit.
6. Based on the pleadings of the parties, the Trial
Court has framed the following issues:
1) Whether the plaintiff proves that, he has
given three of his softwares i.e., Surabhi
2000, Surabhi UV and Visaitamil, to the
defendant?
2) Whether he further proves that he made
improvements in the softwares as
required by the defendant?
3) Whether he further proves the tools
provided by the ineligible persons were
illegally included in version 2?
- 54 -
NC: 2025:KHC:18573
HC-KAR
4) Whether he further proves that
defendant failed to take action against
such inclusion of version 2 by ineligible
persons?
5) Whether he further proves the loss
suffered by the refusal of including
software tools in version 2 by the
defendant?
6) Whether he further proves that the
supply of softwares tools namely Aatral,
Sentahmil IA, Senthamil 1B and Sentamil
4 as per the demand of defendant?
7) Whether he further proves the illegal
steps taken by the defendant which
affected the legitimate and valid interest?
8) Whether the suit is barred by time?
9) Whether this Court has jurisdiction to try
the suit?
10) To what Order/Decree?
7. In order to prove the case, the Chief Executive
Officer of the plaintiff's company has been examined as
PW-1 and documentary evidence has been marked as
Exs.P-1 to P-36. On behalf of the defendants, the Senior
- 55 -
NC: 2025:KHC:18573
HC-KAR
Technical Officer has been examined as DW-1 and
documentary evidence has been marked as Exs.D-1 to
D-7.
REASONINGS OF THE TRIAL CORT:
8. Upon considering and appreciating the evidence
on record, the Trial Court has dismissed the suit of the
plaintiff with cost of Rs.25,000/-. The Trial Court assigned
reasons that upon answering issue No.1 that the plaintiff
proves that he has given three of the software tools i.e.,
Surabhi 2000, Surabhi UV and Visaitamil. The Trial Court
had observed that Ex.P-1-advertisement is not offer by the
defendants, but an invitation for proposals. Therefore, it
is an invitation to the general public to make an
application i.e., an invitation to offer. Further, it is
observed that the defendants have exclusive right to act
or reject the offer therefore, the reply made by the
defendants is not promissory assurance of accepting the
plaintiff's offer.
- 56 -
NC: 2025:KHC:18573
HC-KAR
9. Further, when it is at the discretion of the
defendants that either to reject or accept the invitation to
offer made through newspaper "The Hindu", the
defendants are of the opinion that the price quoted by the
plaintiff is too high and total size is too big to insert in CD.
Therefore, the defendants' response to relook at it freshly
as and when the Version 2.0 of the specific language CD is
planned. Therefore, the Trial Court observed that the
defendants have rejected the plaintiff's offer. Hence,
though the plaintiff has provided three software tools, but
that were rejected and whatever public advertisement
made and correspondence was exchanged does not
constitute an offer and acceptance, but the paper
advertisement in "The Hindu" newspaper is only an
invitation to offer.
10. Further, while answering issue No.2, it is held
that the plaintiff fails to prove that he made improvements
in the software as required by the defendants. It is
observed by the Trial Court that in Ex.P-5 and Ex.P-8, the
- 57 -
NC: 2025:KHC:18573
HC-KAR
defendants have mentioned that they will consider the
proposal when they plan for Version 2.0. Ex.P-8 does not
show any date when this report was prepared and when
the plaintiff obtained this copy. Though the plaintiff has
sent software tools, but it was not improved Version. The
Technical and Finance Committee of the defendants'
Company will finalize the incorporation of Version 2.0. In
the letters (Exs.P-13 and P-14 of April and June, 2007), it
is specific only after the valuation they will make decision.
Though the plaintiff through letter (Ex.P-14) sent several
software for evaluation purpose, but Ex.P-16 is the test
report of software where on each software, where for each
software it has mentioned error and not working with the
photos of subjects and vide email Ex.P-17, the plaintiff
was required to send correct software for retesting, for
which the plaintiff replied that they have not come across
any such error. Upon correspondence between the
plaintiff and defendants, there was no assurance by the
defendants for acceptance of the offer. Therefore, the
- 58 -
NC: 2025:KHC:18573
HC-KAR
Trial Court came to the conclusion that the plaintiff failed
to prove acceptance of offer and there is no binding
contract from the defendants' side. Though the plaintiff
has sent some software even four times, but each time
software tools were referred for evaluation only. The
plaintiff has not made any improvement in the software
and the defendants have not accepted the same therefore,
there was no concluded contract between the plaintiff and
defendants.
11. Further, upon the admission of PW-1 in cross-
examination that when the plaintiff sent software in the
year 2007, it had some problems/errors. Therefore, the
correspondence made in this regard is only for evaluation,
but not amounting to acceptance of the contract by the
defendants. Accordingly, issue No.2 was answered in the
Negative.
12. The Trial Court while answering issue Nos.3 and
4, held that although the plaintiff claimed that tools
- 59 -
NC: 2025:KHC:18573
HC-KAR
provided by other persons were illegally included in
Version 2.0, there was no evidence to support this
allegation. According to the plaintiff's allegation, the two
agencies were not in the list of proposals sent to the
defendants and were ineligible for consideration.
However, the plaintiff failed to produce evidence to prove
that Version 2.0 CD was released in the World Tamil
Conference 2010. The Trial Court discussed the
documentary evidence, Exs.P-26, P-27 and P-8 and Ex.D-4
and found that the plaintiff failed to prove these issues. It
was noted that the main subject of the letter of
correspondence was the "launch of Unicode complaint
Tamil CD", but there was no evidence that Version 2.0 was
released at the Coimbatore conference. Therefore, the
plaintiff failed to prove that the software product tools of
the other agencies were illegally included and
consequently, there was no question of taking action
against them.
- 60 -
NC: 2025:KHC:18573
HC-KAR
13. The Trial Court observed that the defendants'
stand was that unless an evaluation decision was taken by
the Expert Committee, there was no question of inclusion
of plaintiff's software tools. However, the Committee,
after evaluation had opined negatively regarding the
software tools of the plaintiff finding them unsuitable for
inclusion. Therefore, there was no concluded contract
between the plaintiff and the defendants.
14. The Trial Court while answering issue No.5 held
that the plaintiff failed to prove the quantum of loss
suffered due to refusal of its offer. The Trial Court
observed that the plaintiff merely stated that it had
suffered loss but failed to produce evidence on how the
loss was incurred. Additionally, the plaintiff has not
quantified the loss or specifies which actions of the
defendants led to the loss and there was no evidence to
support this claim. In this regard, the Trial Court
considered the evidence of PW-1, the Chief Executive
Officer of plaintiff's company, who admitted that the
- 61 -
NC: 2025:KHC:18573
HC-KAR
plaintiff had not quantified the loss. The Trial Court, by
appreciating documentary evidence on record coupled with
oral evidence, including Exs.P-25, P-28 and P-10 observed
that the plaintiff failed to prove the loss suffered.
15. Further, the Trial Court, while answering issue
No.6, held that plaintiff's documents revealed
inconsistencies between the software tools send and the
defendants' requirements. The defendants' responses at
Exs.P-9, P-11, P-12 and P-13 indicate that the software
tools sent by the plaintiff did not match with the
defendants' demands. Hence, issue No.6 was answered in
the Negative.
16. Further, the Trial Court while answering issue
No.7, held that although the plaintiff alleged that the
defendants' steps were illegal and affected the plaintiff's
interest, the Trial Court observed that there was no
evidence to support this claim. Through documentary
evidence and letters of correspondence, it was clear that
- 62 -
NC: 2025:KHC:18573
HC-KAR
the plaintiff's software tools were not up to the mark for
inclusion in Version 2.0 due to the high price quoted by
the plaintiff and the large software size, which made it
unsuitable for inclusion in the CD. Therefore, the Trial
Court held that the plaintiff failed to prove the allegations
made in the plaint and accordingly, issue No.7 answered in
the Negative.
17. Further, the Trial Court while answering issue
Nos.8 to 10 held that the suit is barred by limitation as
well as the suit is not maintainable for want of territorial
jurisdiction.
18. Therefore, for the aforesaid reasons discussed
in brief, the Trial Court dismissed the suit of the plaintiff
with cost of Rs.25,000/-.
19. Being aggrieved by the dismissal of the suit, the
appellant/plaintiff has preferred the instant appeal.
- 63 -
NC: 2025:KHC:18573
HC-KAR
GROUNDS RAISED AND SUBMISSIONS:
20. The appellant/plaintiff has raised many grounds
in the appeal praying to interfere with the judgment and
decree passed by the Trial Court.
21. The grounds raised in the memorandum of
appeal and the submissions made by the learned counsel
for the appellant/plaintiff that the opinion formed by the
Trial Court that the suit is barred by limitation is not
correct. It is submitted that the file of Government of
India clearly states that the CD released by the defendants
during World Tamil Conference 2010 is Second Version
Tamil language software tools. Therefore, the cause of
action arose on that event in 2010. Hence, the suit filed
was within a period of limitation, but the Trial Court
erroneously connected it to the defendants' actions in
2008 and wrongly held that the suit is barred by limitation.
- 64 -
NC: 2025:KHC:18573
HC-KAR
22. The communications/correspondences from the
defendants' company conveying that software tools of the
plaintiff would be considered for the Second Version. The
First Version of Tamil language software tools had already
been released in the year 2005 and it reasonably followed
that any subsequent consideration would be for the
Second Version. The limitation period would start only
when Second Version released and failed to fulfil the
express commitments. Therefore, the cause of action
arose during World Tamil Conference 2010 held at
Coimbatore, making the suit filed well within the period of
limitation.
23. Further raised ground and the learned counsel
for the appellant/plaintiff submitted that the Trial Court
had territorial jurisdiction to try the suit. Ex.P-1-
advertisement was issued in "The Hindu" newspaper,
Bengaluru edition and the plaintiff had corresponded from
Bengaluru. Therefore, the Trial Court had jurisdiction to
try the suit and accordingly, the suit was filed in the Court
- 65 -
NC: 2025:KHC:18573
HC-KAR
which had territorial jurisdiction. However, the Trial Court
wrongly construed the provisions of Sections 20 and 21 of
CPC, and held that it lacked territorial jurisdiction. Hence,
submitted that the Trial Court had territorial jurisdiction.
24. Further, the learned counsel for the
appellant/plaintiff submitted that the Trail Court failed to
appreciate the documentary evidence correctly, resulting
in erroneous dismissal of the suit. It was submitted that
Prof. Anandkrishan's committee had no power to select
tools or direct C-DAC to add eligible tools to the Second
Version of Tamil software tools CD. However, the
communications between the parties conclusively proved
that there was a concluded contract between them. The
defendants' acceptance of some software tools submitted
by the plaintiff evidenced a deemed contract, which the
defendants breached by not honouring their promises. The
plaintiff had developed software tools based on the
defendants' promises, incurring expenditure, but the
- 66 -
NC: 2025:KHC:18573
HC-KAR
defendants failed to fulfil their obligations, causing loss to
the plaintiff. The Trial Court failed to appreciate these
facts correctly, causing to an erroneous judgment.
25. Further raised grounds that the defendants
failed to consider the plaintiff's software tools for the
Second Version as per law and instead, illegally included
Tamil software tools from ineligible persons in the CD of
the World Tamil Conference 2010. Further submitted that
the defendants' claim that the processes post-impugned
advertisement of 27.06.2006 had been abandoned was
questionable, especially since the scheme had been
implemented as per the records of the Government of
India. Defendant Nos.1 and 2 had filed compliance reports
for all expenditure incurred to implement the scheme
confirming that the expenses were lawful. In this regard,
it was argued that the World Tamil Conference 2010 CD,
being Second Version of Tamil language software tools,
contradicted the defendants' records, as there was no
- 67 -
NC: 2025:KHC:18573
HC-KAR
evidence to suggest that steps were taken for an event-
specific CD.
26. The task of the committee was limited only to
coordinating with the Tamil Government and taking steps
related to demonstrating of work done under TDI
Programmes part of the planned scheme of the
Government of India during the event known as World
Tamil Conference 2010. Therefore, the action of the
defendants in this regard is highly questionable,
particularly as they included software tools from ineligible
companies of which two agencies were not listed as per
Ex.P-1-advertisment. The subsequent conduct of the
defendants regarding the CD of the year 2006 is an exhibit
in the case of the plaintiff and this falsifies the claim of the
defendants.
27. It was further argued that all the reply
clarifications by M/s. Swarnalatha ought to have been
considered as part of the evidence, but the Trial Court
- 68 -
NC: 2025:KHC:18573
HC-KAR
committed error in appreciating the evidence in this
regard. Further submitted that there was concluded
contract between the plaintiff and defendants, wherein the
defendants had offered to include software tools in Version
2.0 CD to be exhibited in World Tamil Conference 2010
and the plaintiff had submitted its software tools.
However, the defendants illegally rejected the plaintiff's
tools and selected tools from other agencies, resulting in a
breach of contract. The correspondence between the
plaintiff and the defendants conclusively proved that the
defendants had accepted the offer made by the plaintiff
but later on retracted from their promise, constituting a
breach of contract. Due to this breach, the plaintiff
sustained loss. Therefore, prays to allow the appeal by
setting aside the judgment and decree passed by the Trial
Court.
28. Further, submitted that the defendants' delay
tactics in finalizing the software tools after the 2006
advertisement, spanning over 10 years, constituted
- 69 -
NC: 2025:KHC:18573
HC-KAR
negligent and deliberate acts that diluted the plaintiff's
software tools, rendering them outdated and worthless.
Therefore, the plaintiff is entitled compensation from the
defendants. In support of this contention, the learned
counsel argued that the unlimited worldwide licence clause
imposed on the plaintiff's software tools made the
defendants' illegal and impermissible denial of inclusion
actionable under law. Furthermore, by adding ineligible
tools in World Tamil Conference 2010, the defendants
caused tortuous injuries to the plaintiff's legitimate claims
and hence, the plaintiff deserved compensation.
29. Therefore, with all these submissions prays to
allow the appeal and decree the suit by setting aside the
judgment and decree passed by the Trial Court.
30. Learned counsel for the appellant/plaintiff in
support of arguments places reliance on the following
judgments:
- 70 -
NC: 2025:KHC:18573
HC-KAR
a. ANJANEYA SHETTY VS. RAMAIAH
SHETTI1 (Anjaneya's case)
b. NUTAN KUMARI VS. B.R.A. BIHAR
UNIVERSITY AND OTHERS2 (Nutan
Kumari's case)
31. On the other hand, learned counsel for the
respondents/defendants submitted that Ex.P-1-
advertisement in "The Hindu" newspaper was not an offer
but merely an invitation to offer and the plaintiff had
misconstrued it as an offer, leading to file false and
frivolous suit. He argued with reference to the
documentary evidence and admissions made by PW-
1/plaintiff in the course of cross-examination conclusively
proved the fact that there was no concluded contract,
which was correctly observed by the Trial Court. After
considering the facts, circumstances and evidence in the
case and applying the law of contract, the Trial Court
rightly dismissed the suit. Therefore, prays to dismiss the
appeal.
AIR 2000 KAR 387
Civil Appeals No.6232-6236 of 2013 dated 12.10.2023
- 71 -
NC: 2025:KHC:18573
HC-KAR
32. Further, submitted that the defendants have
given a reply to the plaintiff that their software tools have
not been included and assigned reasons for this, which
were communicated to the plaintiff. In this regard, the
learned counsel has taken the Court to the said
documentary evidence and submitted that with valid
reasons assigned for not including the software tools of
the plaintiff, the defendants effectively rejected the offer
of the plaintiff. Though there was no express rejection of
the plaintiff's offer, the communications between the
plaintiff and defendants conclusively proved that there was
no acceptance of offer made by the plaintiff and thus,
there was no concluded contract. Hence in this regard,
the findings given by the Trial Court are perfectly
justifiable and legal, which needs no interference.
33. Further, submitted that the plaintiff has not
pleaded in the plaint what are the losses sustained by the
plaintiff, nor has it explained in what way the plaintiff
sustained loss and injury and there is no evidence from
- 72 -
NC: 2025:KHC:18573
HC-KAR
the plaintiff in this regard. Additionally, there is no
pleading or evidence from the plaintiff regarding the
quantum of loss sustained by the plaintiff. The entire
claim of the plaintiff in the case is based solely on
assumptions and presumptions and this was rightly
appreciated by the Trial Court. Thus, correctly dismissed
the suit.
34. Further, submitted that the suit is barred by
limitation and the Trial Court lacked territorial jurisdiction
to consider the suit. These findings by the Trial Court are
well founded based on the pleadings; therefore, the appeal
ought to be dismissed only on the grounds of limitation
and lack of territorial jurisdiction. The Trial Court
magnanimously considered the case on merits to put the
matter to rest, and it is evident that the plaintiff does not
have a case on merits. Additionally, the suit is barred by
limitation and lack of territorial jurisdiction. Therefore, the
judgment and decree passed by the Trial Court is well
- 73 -
NC: 2025:KHC:18573
HC-KAR
meritorious, which need not be interfered with. Therefore,
prays to dismiss the appeal.
POINTS FOR CONSIDERATIONS:
35. Upon considering the rival submissions at the
Bar, facts pleaded in the plaint and written statement and
the evidence adduced by both the sides both the
documentary and oral evidence, the following points
emerged for consideration:
i. Whether, under the facts and
circumstances involved in the case, the
plaintiff proves that there was concluded
contract between the plaintiff and
defendants so as to include the software
tools of the plaintiff in World Tamil
Conference 2010 held at Coimbatore?
ii. Whether, under the facts and
circumstances involved in the case, the
plaintiff proves that what is the
quantification of sustaining the loss and
injury due to alleged action of the
defendants?
- 74 -
NC: 2025:KHC:18573
HC-KAR
iii. Whether, under the facts and
circumstances involved in the case, the
plaintiff proves that the defendants have
illegally included three
agencies/companies contrary to the terms
and conditions of Government of India?
iv. Whether, under the facts and
circumstances involved in the case, the
suit is barred by limitation?
v. Whether, under the facts and
circumstances involved in the case, the
Trial Court has territorial jurisdiction to
entertain the suit?
REASONS
All the points are interlinked each other therefore,
they are taken together for common consideration to avoid
repetition of facts and evidence.
36. The entire case of the plaintiff is based on the
law of contract. It is the case of the plaintiff that the
defendants have offered for supply of software tools and
the said offer was accepted by the defendants and there
- 75 -
NC: 2025:KHC:18573
HC-KAR
were frequent communications between the plaintiff and
defendants, but the defendants breached the contract
without honouring it. Therefore, this is the sum and
substance of the case made out by the plaintiff in the suit.
37. Whether a concluded contract between the
plaintiff and defendants existed or not is the question to
be considered by appreciating the evidence on record and
only then does the question of breach of contract comes
into picture. Ex.P-1 is an invitation for proposals for
Indian language resources for the release of language
CDs, inviting proposals from interested
individuals/organizations/private agencies/academic
institutions/public agencies for ready to integrate software
tools/technologies and resources for many of the 22
scheduled Indian languages issued through a paper
publication in "The Hindu" newspaper in Bengaluru edition.
This, Ex.P-1 is an invitation for proposals from the
agencies as above stated. Ex.P-1 is an invitation to offer
but not an offer. The plaintiff has understood this Ex.P-1
- 76 -
NC: 2025:KHC:18573
HC-KAR
paper advertisement published in "The Hindu" newspaper
as an offer made by the defendants, but upon perusal of
Ex.P-1-paper advertisement, it is clear that it is an
invitation to offer, but not the offer.
38. The difference between "an offer" and
"invitation to offer" depends on the party's intention; an
offer allows the other party to enter into a legally binding
agreement once accepted. On the other hand, an
invitation to treat mainly invites the other party to
negotiate and make an offer themselves. Therefore, this
is the basic difference and in this context, the present case
is to be considered in the background of evidence adduced
by both the parties.
39. Section 2 (a) of the Indian Contract Act, 1872
(Contract Act) defines as follows:
"(a) When one person signifies to
another his willingness to do or to abstain
from doing anything, with a view to
obtaining the assent of that other to such
act or abstinence, he is said to make a
proposal;"
- 77 -
NC: 2025:KHC:18573
HC-KAR
40. When one person communicates their
willingness to do or not to do something to obtain another
person's agreement, it is considered an offer or proposal.
Whereas, under an "invitation to offer", the party does not
specify an intention to enter into a contract. In an offer,
both parties intend to enter into a legally binding
agreement after proper negotiation. However, such an
intention is not present in an 'invitation to offer'. In an
offer, there is clear intention to create a contract, whereas
an invitation to offer does not carry the intention. An
invitation to offer allows for more flexibility and
negotiations between the parties involved before reaching
a final agreement.
41. The basic difference between "offer" and "an
invitation to offer" are as follows:
1. "Purpose: An offer is a clear and specific
proposal made by one party to another party
to enter into a legally binding contract, while
an invitation to offer, also known as an
invitation to treat, is an expression of
willingness to negotiate or enter into a
contract.
- 78 -
NC: 2025:KHC:18573
HC-KAR
2. Acceptance: An offer can be accepted,
rejected, or counter offered, while an
invitation to offer cannot be accepted as it is
not a legally binding proposal.
3. Binding nature: An offer creates a legally
binding contract upon acceptance, while an
invitation to offer does not create a legally
binding contract.
4. Advertising: An advertisement can be
considered as an invitation to offer rather
than an offer, as it is an invitation to the
public to make an offer to purchase the
advertised goods or services.
5. Examples: Examples of an offer include a
job offer, a proposal to sell a house or a car,
or a bid in an auction. Examples of an
invitation to offer include a menu in a
restaurant, a price list, or a display of goods
in a store.
6. Revocation: An offer can be revoked before
it is accepted, while an invitation to offer
cannot be revoked as it is not a legally
binding proposal."
42. Therefore, considering Ex.P-1, the document of
paper publication, it is inviting proposals for Indian
language resources. It is an invitation to offer made by
the defendants, but not an offer.
43. Ex.P-1, the paper invitation, is not a promise
made by the defendants. Ex.P-1 cannot be considered as
a promise made by the defendants to the plaintiff.
- 79 -
NC: 2025:KHC:18573
HC-KAR
44. The High Court of Calcutta in the case of
INDANE LPG DISTRIBUTORS ASSOCIATION, WEST
BENGAL v. INDIAN OIL COPORATION LTD. & ORS.
reported in WPA No.16495/2023 dated 29.09.2023 at para
37 has held as follows:
"The difference between offer and invitation to offer
is very basic and lies mainly in the intention of the
parties. While an offer directly allows the other party
to enter into a contract, that is, a legally binding
agreement as soon as it is accepted, an invitation to
offer mainly invites the other party to make
negotiations and himself make an offer to the person
who invites to offer. This might sound complicated,
but it is a very fundamental difference that we see
very often in our day to day lives. As for example
when we go to a shop, the mere display of the
articles in the shop is an invitation to offer by the
seller to the general public. Anyone passing by the
shop can choose to come to buy one of such articles
displayed or may choose otherwise. Here, no one is
legally bound to perform any action. Similarly, most
forms of advertisements are not actually offers but
invitations to offer. To fully grasp the difference I
may say that in an invitation to offer, no specific
party has the intention to enter into a contract. The
seller may enter into a contract with anybody from
the public who makes the best offer to him. So, the
essence of an invitation to offer is that the offer is
actually made by the seller. It is for the buyer to
make a offer that is good enough and when the
seller accepts it, it becomes a contract".
45. Section 2 (e) of the Contract Act, defines as
follows:
- 80 -
NC: 2025:KHC:18573
HC-KAR
"(e) Every promise and every set of promises,
forming the consideration for each other, is an
agreement;"
46. Section 2 (h) of the Contract Act, defines as
follows:
"(h) An agreement enforceable by law is a
contract;"
47. Therefore, every promise and set of promises
forming the consideration for each other is an agreement
and such agreement enforceable by law is a contract.
Here, whether the defendants made an offer is the
question to be considered, and in this background, the
evidence on record are to be appreciated. A contract
comes into existence only when all the terms and
conditions have been finalized. Ex.P-2 is the terms and
conditions for software proposals, including two
conditions; the defendants reserve the right to accept or
reject any offer without assigning reasons and incase of
similar/overlapping technologies, the defendants shall
- 81 -
NC: 2025:KHC:18573
HC-KAR
have the exclusive right to accept or reject any or all such
software/tools/technologies. In this context, Ex.P-3 a
letter issued by the plaintiff dated 10.07.2005, is
considered, which states that the plaintiff has offered
software tools in response to Ex.P-1-paper advertisement.
Therefore, the plaintiff has forwarded the proposals
concerning with and offer the software/tools developed for
Tamil for consideration by the defendants. As per this
offer, Ex.P-3, the plaintiff has offered for terms for
favourable consideration by the defendants, which are as
follows:
a) "Janani
b) Surabhi 2000
c) Surabhi Tools 2.0
d) Surabhi Tools IE
e) Surabhi UV
f) Surabhi Tools UV
g) Senthamizh 1A
h) Senthamizh 1B
i) Senthamizh 4
j) Visaithmizh
k) Aatral"
48. Therefore, the plaintiff has offered to provide
software tools to the defendants and Ex.P-3 is the offer
- 82 -
NC: 2025:KHC:18573
HC-KAR
made by the plaintiff. Thus, the plaintiff is the "offeror"
and defendants are the "offerees".
49. The next question that comes into picture for
consideration is whether the defendants have accepted the
offer made by the plaintiff; this is the question to be
considered in the present appeal.
50. Section 3 of the Contract Act, defines as
follows:
"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."
51. As per the case pleaded by the plaintiff, the
correspondences made by the defendants amounts to
acceptance, but this is denied by the defendants.
Therefore, this aspect of "acceptance" is the key factor to
decide whether there is a concluded contract between the
- 83 -
NC: 2025:KHC:18573
HC-KAR
plaintiff and defendants. It is the case of the plaintiff that
there is deemed contract between plaintiff and defendants.
The plaintiff is relying on the
communications/correspondences/exchange of letters
between the plaintiff and defendants, which amount to
acceptance. Therefore, the plaintiff is mainly relying on
the communications between the plaintiff and defendants
as acceptance by the defendants to the offer made by the
plaintiff.
52. Ex.P-4 is the letter addressed by the defendants
seeking some clarifications/inputs from the plaintiff before
the defendants considered the offer made by the plaintiff.
Ex.P-8 is the technical report by the committee constituted
for the purpose of evaluating and assessing the quality of
products proposed by the plaintiff and various other
agencies. Ex.P-5 is the list of offers made by the various
agencies, including the plaintiff. Therefore, the technical
committee was constituted in this regard by the
defendants. As far the software products offered by the
- 84 -
NC: 2025:KHC:18573
HC-KAR
plaintiff, the committee has made observations/notes,
which are as follows:
• "The price quoted for the same is quite high.
• The total size of the softwares is around 1742
MB. Hence not possible to put in a single CD.
• The proposal may be re-looked at freshly as and
when the second version of specific language CD
is planned."
53. Finally, the committee, as per Ex.P-8 gave
report that the proposal may be relooked at freshly as and
when the Second Version of specific language CD is
planned.
54. Ex.P-9 is the letter issued by the defendants via
email, which was received by the plaintiff stating that the
defendants have replied to the plaintiff that the software
tools viz., Janani, Surabhi 2000 and Surabhi Tools 2.0 are
not considered. Further, in the very same letter,
regarding software tools Sentamil 1A, Sentamil 1B and
Senthamizh 4, testing is under progress. Ex.P-11 is the
letter sent by the defendants dated 15.05.2007,
requesting the plaintiff to send the software for evaluation
purposes mentioned in the said letter. Likewise, Ex.P-12
- 85 -
NC: 2025:KHC:18573
HC-KAR
is another letter requesting the plaintiff to send software
for checking purposes. It is also noted in Ex.P-12, that
once the software products sent by the plaintiff are
evaluated by the technical and financial committee, they
may be finalized for possible incorporation. Therefore, as
of 14.06.2007 there is no concluded contract between the
plaintiff and defendants regarding the offer made by the
plaintiff. When the plaintiff sent software products to the
defendants, they were still at the stage of evaluation and
assessment by the technical and financial committee.
Exs.P-13 and P-14 are letters addressed by the defendants
to the plaintiff requesting to send software for evaluation
purposes. In response to these letters, the plaintiff sent
two CDs for evaluation purposes and the plaintiff is
awaiting a positive response. Ex.P-15 is the letter issued
by the plaintiff that the plaintiff forwarding two CDs to the
defendants for evaluation purposes and looking forward to
a response from the defendants.
- 86 -
NC: 2025:KHC:18573
HC-KAR
55. Ex.P-16 is the response from the defendants to
the plaintiff with a detailed inspection and test report
stating that there are errors in the software tools; Ex.P-17
is one more letter regarding clarifications on the errors
reported by the defendants; Ex.P-18 is the letter of the
plaintiff/appellant asking the defendants to provide an
evaluation of software reports; Exs.P-19, P-20 and P-21
are the responses from the defendants stating that there
is no concluded contract and these responses are the
feedback on the functionality of the software tools.
Further, Ex.P-22 is the letter of the plaintiff/appellant that
sending two sets of software/s to the defendants; Exs.P-
23 and P-24 are the responses from the
respondents/defendants; in Ex.P-24, it is stated that
Surabi Tools UV are considered for inclusion and so far as
other sets of software are concerned there is no positive
response from the respondents/defendants; Ex.P-25 is the
proposal submission form issued by the
respondents/defendants therefore there is only an offer to
- 87 -
NC: 2025:KHC:18573
HC-KAR
invitation by the participant/organization. Hence, there is
no concluded contract between the plaintiff and
defendants.
56. The document at Ex.P-26 is the letter of the
appellant/plaintiff requesting for providing certified copies
regarding advertisement; Ex.P-27 is the reply given by the
respondents/defendants. Upon considering all these
documentary evidence, there is no concluded contract.
Therefore, considering all the above discussed
documentary evidence, there is only correspondence
between the plaintiff and defendants. As above discussed,
the defendants have called for tenders from the
prospective participant/organizations for the supply of
software tools, it is only an invitation to offer but not offer.
The plaintiff has offered by sending software tools to the
defendants; the defendants have tested and placed certain
materials produced by the plaintiff before the Expert
Committee, but the Expert Committee has expressed its
unhappiness over the software tools produced by the
- 88 -
NC: 2025:KHC:18573
HC-KAR
plaintiff. Ultimately, the Expert Committee as above
discussed has not favoured in receiving the software tools
produced by the plaintiff. Therefore, here there is no
concluded contract between the plaintiff and defendants.
The offer made by the plaintiff is not accepted by the
defendants. Just because, the plaintiff has produced some
software tools to the defendants that cannot amount to
concluded contract; the software tools produced by the
plaintiff were still under testing. Unless the defendants
were satisfied with the quality of software and accepted it,
there would not be any concluded contract. What the
plaintiff is under the impression that the correspondence
made between the plaintiff and defendants, as above
discussed is presumed to be a concluded contract and
deemed contract between the plaintiff and defendants, but
this impression got amended by the plaintiff is only based
on assumption that the defendants have accepted the
offer. However, there is no evidence from the plaintiff that
there was concluded contract between the plaintiff and
- 89 -
NC: 2025:KHC:18573
HC-KAR
defendants. Mere correspondence of letters between the
plaintiffs and defendants could not be termed as concluded
contract. Though the defendants might not have rejected
the offer of the plaintiff expressly, the correspondence
shown by the plaintiff itself proves that the defendants
impliedly rejected the offer made by the plaintiff. There is
no evidence by the plaintiff that the defendants have
accepted the software tools and there was promise by the
defendants and hence there was concluded contract
between them. The plaintiff has not produced evidence of
express conclusion of contract or deemed contract, as
discussed above from the documentary evidence.
57. The Senior Technical Officer, C-DAC, Pune
University Campus, Pune is examined as DW-1 on behalf
of the defendants and he has completely denied the fact
that there was concluded contract. The sum and
substance of evidence of DW-1 is that there was some
correspondence between plaintiff and defendants, but the
offer made by the plaintiff is deemed to have been
- 90 -
NC: 2025:KHC:18573
HC-KAR
rejected as the software tools produced by the plaintiff
were not up to the mark according to the Expert
Committee and accordingly there was deemed rejection of
offer made by the plaintiff.
58. Ex.D-2 is the letter issued by the defendants
stating that sending of the software tools by the plaintiff
does not guarantee inclusion. In this regard, just sending
copies/software tools does not amount to inclusion of
software in Tamil conference. Further, upon considering
the cross-examination of DW-1, nothing is proved that
there was concluded contract, much less a deemed
conclusion of contract.
59. Now considering the oral evidence of PW-1, the
entire examination-in-chief of PW-1 is a repetition of facts
pleaded by the plaintiff. Upon considering the cross-
examination of PW-1, he has admitted that there was no
title of CD which was released in 2010 and Version-2.0
was not released. PW-1 in the course of cross-
- 91 -
NC: 2025:KHC:18573
HC-KAR
examination admitted that he has no proof to show that
the oral CD of Tamil software was launched in the 2010 or
that there was second release of original Tamil software in
2010. Further, admitted that he could not say whether
Version 2.0 released in 2010 is not related to the CD
launched in 2010. Further, PW-1 admitted that he has
grievance because the defendants have not considered his
proposal; therefore, it is an admission given by PW-1 that
the proposals made by the plaintiff have not been
considered. When this being the admission of PW-1, it is
proved that there could not be concluded contract.
60. Further, when the plaintiff has filed suit for
claiming compensation to make good the financial loss
alleged to have been sustained by the plaintiff, PW-1 in
the course of cross-examination admitted that he has not
quantified the loss and stated it in his pleadings. Further,
admitted that he has not demanded a specific amount
from the defendants at any time. Further, admitted that
the defendants have not evaluated the software tools
- 92 -
NC: 2025:KHC:18573
HC-KAR
financially but have evaluated them technically and not
intimated their assessment; therefore, he has not
mentioned loss in his plaint. Further, admitted that he has
not produced any documentary evidence to show the loss
suffered by him. Further, admitted that he has submitted
Income Tax returns earlier but has not produced. Further,
admitted that he does not remember whether loss is
mentioned in his Income Tax returns or not and the loss is
not mentioned in the Income Tax sheet. Further, admitted
that he cannot produce document to show that his losses;
therefore, there is no evidence that the plaintiff has
suffered loss due to defendants.
61. Upon Ex.D-2 letter, the plaintiff admitted that
he knew that there could not be guarantee of inclusion in
the request for sending copies. Further, admitted that due
to non-fulfillment of the conditions, the offer of the plaintiff
was not considered. PW-1 further admitted in the course
of cross-examination that he could not have appointed a
- 93 -
NC: 2025:KHC:18573
HC-KAR
distributor for commercial software tools that had not yet
been accepted by the defendants/C-DAC.
62. In the end of 2010, he received RTI information
that no decision had been taken by the defendants.
Further, admitted that the defendants did not convey the
decision taken on his proposal. Therefore, upon
considering the admissions in the cross-examinations, it is
proved that the software tools sent by the plaintiff were
still under test and evaluation only and not included the
software tools produced by the plaintiff. Hence, there is
no question of concluded contract. Therefore, in this
regard, the Trial Court has correctly assessed the
documentary and oral evidence and there is no perversity
in appreciating the evidence on record by the Trial Court.
Therefore, the Trial Court is correct in dismissing the suit.
Accordingly, I answer point Nos.(i) and (ii) in the
Negative.
- 94 -
NC: 2025:KHC:18573
HC-KAR
Point No.(iii)
63. It is allegation of the plaintiff that the
defendants have illegally included three
agencies/companies contrary to the terms and conditions
of the Government of India. The plaintiff has barely made
allegation against the defendants, but here the plaintiff
has not produced any evidence regarding what the three
agencies are and how their software tools were included
contrary to the rules framed by the Government of India.
There is no pleading in the plaint and no proof in the
evidence regarding how and in what manner the
defendants have illegally included the software tools of
three agencies. Mere making allegations is not sufficient,
if it is definite case of the plaintiff that three agencies have
been included contrary to the rules, then it is a burden on
the plaintiff to demonstrate the same by placing cogent
evidence, but that has not been done by the plaintiff.
Therefore, the plaintiff has failed to prove that the
- 95 -
NC: 2025:KHC:18573
HC-KAR
defendants have illegally included the three
agencies/companies contrary to the terms and conditions
of the rules framed by the Government of India.
Accordingly, I answer point No.(iii) in the Negative.
Point No.(iv)
64. Ex.P-1 is the advertisement dated 27.06.2006
published in "The Hindu" newspaper; it is an invitation for
proposal. Ex.P-8 is the proposals received in response to
advertisement No.DAVP 2006/286, in which the committee
has made an opinion that the price quoted for the same is
quite high and the total size of the software is around
1742 MB. Hence, it is not possible to put in a single CD;
thus, it is deemed to rejection by the defendants. PW-1,
in his evidence admitted that he received reply probably in
the end of 2008 therefore, the suit ought to have been
filed within a period of three years from the end of 2008.
If we consider, as per evidence of PW-1 himself, the reply
was received probably in the end of 2008 and even it is
- 96 -
NC: 2025:KHC:18573
HC-KAR
reckoned that the reply was received on 31.12.2008 for all
practical purposes of considering the limitation, then the
suit ought to have been filed within 31.12.2011, but the
suit is filed on 13.12.2012. Therefore, the suit is barred
by limitation. In the course of cross-examination, PW-1
admitted that the plaintiff was waiting for the action of the
defendants; therefore, the suit is filed in the year 2012.
Further, PW-1 admitted that he has no proof to show that
the original CD of Tamil software was launched in the year
2010. Hence, in this regard the suit filed is barred by
limitation.
65. The basic subject in respect of relief is the
software 2010. The letters dated 15.05.2008 and
28.04.2008 do not specify the applications rejected,
whereas they say the software tools will be considered for
Version 2.0 CD. As per the plaint, the cause of action
arose on 27.06.2006, on which date the advertisement
was issued. It also references the cause of action
commenced in the month of June 2010, when Version 2.0
- 97 -
NC: 2025:KHC:18573
HC-KAR
CD was released in the conference held at Coimbatore.
However, upon perusal of the subject, it shows the release
of CD in the year 2010 is not the subject of cause of action
because the defendants have proved that they not taken
decision on the inclusion of software for Version 2.0 CD.
There was no advertisement given for software for
permission of Version 2.0 CD. The CD Version 2.0
released in the year 2010 has no connection with the
proposals given on 27.06.2006/advertisement. Further,
after the communication of April-2006 letter, the plaintiff
has not made any further communication till the release of
CD in 2010; then the plaintiff again started communication
in the year 2011. Therefore, the suit filed is barred by
limitation. Accordingly, I answer point No.(iv) in the
Affirmative holding that the suit is barred by limitation.
Point No.(v)
66. The plaintiff has pleaded in the plaint that the
defendants have advertised in "The Hindu" newspaper on
- 98 -
NC: 2025:KHC:18573
HC-KAR
26.06.2006, published from the Bengaluru. Here, the said
advertisement was released from Pune office of the
defendants and the newspaper advertisement was
published in Bengaluru. The defendants are carrying out
the activities from Pune; the plaintiff in his evidence stated
that he had sent letters through email as well as through
post. The plaintiff had admitted his correspondences were
made only with the Pune office. Further he admitted that
he has not made any correspondence with the Bengaluru
office of the defendants. The plaintiff sent total eleven
proposals to the office of the defendants at Pune. Here,
the plaintiff made only proposal to the defendants at the
Pune office, but there is no acceptance by the defendants,
as above discussed. In case of contract, it is complete
only when the offer made by the plaintiff is accepted and
the acceptance of the offer gives rise to a cause of action,
whereas in the suit, it is only an invitation to offer.
67. Learned counsel for the appellant/plaintiff
submitted that since the plaintiff's office is situated in
- 99 -
NC: 2025:KHC:18573
HC-KAR
Bengaluru and the paper publication advertisement is in
Bengaluru and the defendants' branch office also situated
in Bengaluru. Therefore, the Courts at Bengaluru have
territorial jurisdiction. In this regard, he referred Section
20 of the Code of Civil Procedure.
68. But, whereas the plaintiff has made
correspondence with the Pune office of the defendants and
the plaintiff has sent software tools for evaluation and
testing to the Pune office. Just because an advertisement
was published in Bengaluru and the plaintiff's office is
situated in Bengaluru is not a ground to say that the
Courts at Bengaluru have territorial jurisdiction. The Trial
Court has rightly placed reliance on the judgment of
Hon'ble Supreme Court in the case of OIL AND NATURAL
GAS COMMISSION VS. UTPAL KUMAR BASU AND
OTHERS3.
(1994) 4 SCC 711
- 100 -
NC: 2025:KHC:18573
HC-KAR
69. In case of contract, as involved in the present
case, which involve exchange of correspondences, the
place where contract is concluded determines the
territorial jurisdiction. Here, there is no concluded
contract; if the contract was concluded, the Courts at
Bengaluru would have territorial jurisdiction. However, in
the present case, there is no concluded contract; hence,
there is no territorial jurisdiction that would allow the filing
of a suit in the Courts at Bengaluru. The Trial Court has
rightly relied on the judgment of Delhi High Court in the
case of M/S. PROGRESSIVE CONSTRUCTIONS LTD.,
VS. BHARAT HYDRO POWER CORPORATION LTD.4
Therefore, the plaintiff cannot claim that the Courts at
Bengaluru have territorial jurisdiction based on the fact
that Ex.P-1 is an advertisement inviting proposals. In
response to this, the plaintiff has offered, but the
defendants have not accepted the offer and the
defendants' office situated in Pune. All correspondences
ILR 1 DEL 232
- 101 -
NC: 2025:KHC:18573
HC-KAR
were made with the Pune office there was no acceptance
of the offer by the defendants. Unless the offer is
accepted by the defendants, the plaintiff cannot claim that
his office is situated in Bengaluru and the advertisement
was published in Bengaluru, therefore, the Civil Court at
Bengaluru has jurisdiction. When, in the case of contract,
there is no complete transaction and acceptance forming
full circle, the suit may be filed at Bengaluru or at Pune.
However, since the defendants operate from their office at
Pune, the suit ought not have been filed in the Courts at
Bengaluru. Therefore, the City Civil Court at Bengaluru
does not have jurisdiction to entertain the suit.
Accordingly, I answer point No.(v) in the Negative.
70. Though the Trial Court at initial stage ought to
have considered the suit on the grounds of limitation and
territorial jurisdiction, but also considered the case on
merits; therefore, this Court is constrained to consider and
appreciate the case on merits, not only on the points of
limitation and jurisdiction.
- 102 -
NC: 2025:KHC:18573
HC-KAR
71. Therefore, for the above said reasons, there is
no merit found in the suit and in appeal and the Trial Court
has rightly dismissed the suit, which needs no
interference. Therefore, the appeal filed by
appellant/plaintiff is liable to be dismissed.
72. In the result, I proceed to pass the following:
ORDER
i. The appeal filed by the
appellant/plaintiff is dismissed.
ii. The judgment and decree dated
23.03.2019 passed in
O.S.No.8799/2012 on the file of XXIX
Additional City Civil and Sessions
Judge, Bengaluru City (CCH-30), is
hereby confirmed.
iii. No order as to costs.
iv. Draw decree accordingly.
Sd/-
(HANCHATE SANJEEVKUMAR)
JUDGE
SRA
