C.K. Mahajan, J.

1. The petitioner/DDA invited tenders for construction of 260 DUs under the Self Financing Scheme in Pocket IV, Sector C, Group II SH; 130 DUs(78 category III and 52 category II) and 78 scooter garages including internal development of land Group I. The respondent, who is a registered contractor with the petitioner submitted his application for allotment of the tender.

2. The notice inviting tenders contained certain directions/conditions and the clause relevant for the purpose of deciding this petition is Clause 13A(1) which is reproduced hereunder:

It may please be carefully noted that no conditions whatsoever (beyond the tender documents placed under) shall be accepted by the department and the contractor are strictly prohibited from giving conditional tenders. If any contract is not prepared to execute the work at the terms and conditions contained in the tender documents, he is requested not to tender for this work. It may be noted that if any contractor choose to submit conditional tender, inspite of clear directions given above, his tender shall be liable to be rejected summarily and his full earnest money shall stand forfeited. He will also be liable for being debarred from the tendering in DDA for a period of six months.

3. In terms of the aforesaid clause if the contractor submitted a conditional tender the same was liable to be rejected summarily and the full earnest money was to stand forfeited. The contract was liable for being debarred for tendering in DDA for a period of six months.

4. The respondent was one of the contractors who filed the tender documents with the DDA and the quotation submitted were conditional. The petitioner/DDA after the expiry of the validity of the tender period informed the respondent vide letter dated 24th March, 1986 that since the respondent had submitted conditional tender the earnest money was being forfeited.

5. The respondent represented against the forfeiture of the earnest money of Rs. 20,000 which was deposited along with the quotation.

6. The respondent filed a suit in the Court of the Additional District Judge under Order 37 of the Code of Civil Procedure. The petitioner filed an application for leave to defend the suit stating that it should be given permission to defend the suit as triable issues arose in the suit. The plea of the petitioner was that the plaintiff-firm had violated the terms and conditions of the notice inviting tenders and earnest money was rightly forfeited.

7. The only question that arises for consideration is whether any triable issue arose in terms of Clause 13A(i) of the notice inviting tenders. The District Judge rejected the petitioners application for leave to defend holding that there was no valid agreement between the parties as the agreement was without consideration.

8. The learned Counsel for the petitioner contends that a triable issue arose between the parties as to whether or not the petitioner was entitled to forfeit the earnest money if there was breach of the conditions of the notice inviting tenders.

9. The petitioner has raised an issue of law whether it was entitled to forfeit the security amount if there was a violation of Clause 13A(1) of the notice inviting tenders. The Trial Court without granting leave to defend gave a finding on the question of law. The clause in the notice inviting tender called for a legal interpretation and not on facts.

10. The question that arises for consideration in this revision petition is whether any triable issue is raised by the DDA on account of forfeiture of earnest money under a clause in the notice inviting tenders.

11. The learned Additional District Judge has proceeded to decide this question on a legal finding whether or not the clause can stand the scrutiny of law. The learned Additional District Judge proceeded to interpret the clause legally and came to a finding that the said clause violates the provisions of the Indian Contract Act. The notice was not covered under Section 25 of the Contract Act and since there was no contract or valid agreement between the DDA and the plaintiff, the respondent could not forfeit money. Hence there was no triable issue that remains to be tried. The application of the petitioner for leave to defend was rejected. According to the Additional District Judge the petitioner did not have a good, fair, bona fide or reasonable defence to be claim on merits and, was thus not entitled to leave to defend. If the condition of forfeiture is bad in law obviously the question of granting leave to defend would not arise. However, if the clause was to stand the scrutiny of law the order refusing leave to defend has to be struck down.

12. The Court was satisfied that the petitioner did not have a good defence and on the facts disclosed the Court came to the conclusion that there was no contract between the parties and the petitioner did not have any right to forfeit any money and the breach of instructions in the invitation to tender had no legal sanctity. The petitioner could not have penalised the respondents. The petitioner was empowered to reject the tender. The clause in the invitation to tender is unilateral clause and such a clause violates the provisions of the Contract Act.

13. In the circumstances the petitioner had no defence or the defence was illusory and the petitioner was not entitled to leave to defend. The issue of fact and law was decided by the Court below in the presence of the parties and the petitioner as well as the respondents were given adequate opportunity of establishing their respective cases. The issue raised by the petitioner did not require any evidence and related only to interpretation of Clause 13A of the notice inviting tender. The Trial Court by way of a reasoned order rejected the contention of the petitioner on merits.

14. The tender notice is merely an invitation to the contractors for making an offer and does not amount to an offer or proposal. The advertisement is not a proposal within the meaning of the Contract Act. It invites a proposal. It is the bid that constitutes an offer. Therefore, unless the bid is accepted and the acceptance is communicated to the bidder there is no binding contract between the parties. In the circumstances there being no binding contract between the parties the question of forfeiting the earnest money on the making of conditional offer would not arise. It does not constitute a triable issue. It is purely a legal issue. It is settled law that a person who makes an offer is entitled to withdraw the name before its acceptance is intimated to him by providing a clause in the tender notice to the contrary cannot take away the legal rights of a person. In the circumstances the conditional offer made by the respondent amounted to modification of the offer.

15. In a revision petition the Court is only required to satisfy itself that a particular case has been decided according to law; that a particular order does not suffer from infirmity of having been passed without jurisdiction, in excess of jurisdiction, in denial of jurisdiction or is otherwise not illegal or suffering from material irregularity. The revisional powers have to be exercised within the limit of the powers conferred.

16. The impugned order does not suffer from material irregularity or illegality. No interference is called for in exercise of the power under Section 151 of the Code. The revision petition is without merit and is dismissed.