MEMORANDUM ON BEHALF OF THE RESPONDENT

1

IN THE HIGH COURT OF
New Delhi

M\S PROGRESSIVE CONSTRUNCTION LTD.
PETITIONER
Vs.
BHARAT HYDRO POWER CORPORATION LTD.
RESPONDENT
ON SUBMISSION TO THE HIGH COURT OF NEW DELHI

MEMORIAL ON BEHALF OF THE RESPONDENT
BHARAT HYDRO POWER CORPORATION LTD.

BATCH-XI
ROLL NO- 169






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____________________________________________________
TABLE OF CONTENTS
INDEX OFAUTHORITIES........................ 03
Books.03
Dictionaries...03
Websites,...03
National judgement.....03
Foreign Judgments ...................................................................................................03

STATEMENT OF FACTS......................................................................................................................04
QUESTIONS PRESENTED....................................................................................................................05
__________________________________________________________________________________
WRITTEN SUBMISSION...........06
___________________________________________________________________________






PRAYER FOR RELIEF08



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INDEX OF AUTHORITIES

BOOKS
CONTRACT AND SPECIFIC RELIEF, AVTAR SINGH, EASTERN BOOK COMPANY,
TENTH EDITION

DICTIONARIES
1. Blacks Law Dictionary (West Group Publishers, 2002)
2. THE LAW LEXICON, BAKSHI, P. M., Ashoka Law House, New Delhi.

WEBSITES
www.manupatra.com

National Judgments
1. American Pipe Co. v. State of U. P
2. Union of india v. S.Narayan Singh
3. M.M.& M. Refinery, Bangalore v. MSSI Corporation
4. Mill Stores Trading Co. v. Seth Mathuradas

Foreign Judgments
1.Pokhar Mal v. Khanewal Oil Mills



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STATEMENT OF FACT
1. The petitioner is a construction company having its registered office at Hyderabad, Andhra
Pradesh and administrative office at New Delhi.The respondent is a company having its head
office at Calcutta. On 27-5-1993, the respondent published a notice inviting tenders for the
construction of balance work of concrete gravity dam at Karvi-Langpi. The petitioner
submitted its tender in the respondent's office at Calcutta accompanied by earnest money of
Rs.10 lakhs by way of a bank guarantee.
2. Then commenced an exchange of letters between the parties seeking variations,
negotiations and review of the terms and conditions of the contract. A final discussion was
held on 31-3-1994 at Calcutta and the respondent agreed to issue a letter of intent for the
construction of the concrete gravity dam and the associated works to the petitioner. Vide this
letter of intent dated 6-5-1994, the respondent awarded the work to the petitioner.
3. However, the letter of intent requested the petitioner to reach Calcutta on 20-3-1994 for
finalising and signing the formal contract on 16-5-94.
4. The respondent sent updated version of Volume-I of the tender documents stated to be
incorporating all the changes agreed upon between the parties. The petitioner found some
minor discrepancies therein to which the attention of the respondent was invited vide
petitioner's letter dated 28-5-1994. Again a few letters were exchanged. The contract
documents could not be signed as the discrepancies left over could not be sorted out
between the parties. On 29-7-94 the respondent has cancelled the contract.






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QUESTIONS PRESENTED

Issues
1.Whether their was existence of binding contract?
2.Whether the court of jurisdiction is Delhi or Guwahati\ Calcutta?

















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________________________________________________________________
WRITTEN SUBMISSIONS

CONTENTION NO-1
1.No their was no existance of binding contract because of the following grounds (i) that
there was no concluded contract between the parties; the contract agreement was yet to be
signed; (ii) that in as much as there was no contract concluded and signed between the
parties, (iii) that the court at Delhi does not have jurisdiction to try the petition inasmuch as
court at Guwahati/ Calcutta would alone have jurisdiction to hear the petition.As providing of
the letter of intent to the petitioner was provisional acceptance as the signature of final
agreement was remained due to certain discrepancies and the respondent again requested the
petitioner to come to calcutta for finalising and signing the contract agreement.Such as in the
case of Union of india v.S.Narayan Singh
1
the court held that the person whose bid has
been provisionally accepted is entitled to revoke his bid so in this case also the signature of
final agreement was remained and the respondent can cancel the contract because the
petitioner had not come to calcutta for finalising and singing the contract on the request of the
respondent.A formal contract had remained to be signed because there were minor
discrepancies or variations in the terms which were being negotiated between the parties.In
M.M.& M. Refinery, Bangalore v. MSSI Corporation
2
the court held that the successful
tenderer was required to execute an agreement within ten days of the announcement of
acceptance of the tender and till such agreement was executed there was no binding contract.
In the former case there is no enforceable contract because the condition is unfulfilled.
CONTENTION NO-2
The court of jurisdiction will be calcutta\ Guwahati not delhi because when the
communication of acceptance is done through post then the court of jurisdiction
will be the place where the proposal is received and from where the acceptance is
sent so in this case the acceptance of tender was communicated to the petitioner at
delhi from calcutta by the respondent so the court of jurisdiction will be calcutta

1
AIR 1953 Punj 274
2
AIR 1974 Mad 39
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not delhi.Such as in the case of American Pipe Co. v. State of U. P
3
the contract
was by correspondence through post. The acceptance was posted at UP and
received by the offerer at Calcutta. A suit complaining of a breach of contract was
filed at Calcutta. The Division Bench held "In, the instant case contract was by
correspondence through post. Contract takes place where the acceptance takes
place. In the instant case, the acceptance was posted at U. P. Thus, the contract was
formed in U. P. There is another case in which Division Bench of Lahore High
Court in Pokhar Mal v. Khanewal Oil Mills
4
and by Judicial Commissioner's
Court at Nagpur in Mill Stores Trading Co. v. Seth Mathuradas
5
said that when
offerer and offeree are not at one place and are exchanging the offer and acceptance
through post then the contract would be deemed to have been entered into at the
place where the offer was received and the acceptance was posted. The place of
delivery of acceptance is irrelevant and does not provide any cause of action.So the
filing of petition in delhi is irrelevant.












3
AIR 1983 Cal 186
4
AIR 1945 Lahore 260
5
AIR 1921 Nagpur 42
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PRAYER

Wherefore, in the light of facts of the case, issues raised, arguments advanced and authorities
cited, this Court may be pleased to adjudge and declare that:
a) There is no existance of binding contract .



A Al ll l o of f w wh hi ic ch h i is s r re es sp pe ec ct tf fu ul ll ly y s su ub bm mi it tt te ed d. .

Place: New Delhi
Date: 12-3-2012
Vinay Kumar Sahu
(On behalf of the Respondent)