JUDGMENT
Mukul Mudgal, J.
1. This second appeal by the appellant/original plaintiff challenges the order of the learned Addl. District Judge, Delhi dated 30th August 2001 in RCA No. 37 of 1998 against the order dated 23rd September 1998 passed by the Civil Judge, Delhi in suit No. 188 of 1998. The appellant who was the plaintiff had set up the following case:
a) that it was running a proprietorship concern providing coordination services in relation to fashion show and other cultural activities.
b) the respondent/defendant was in the work of advertising and marketing services and the appellant was on a friendly terms with her;
c) that a sum of Rs. 50,000/- was provided by the plaintiff to the defendant for choregraphy and direction for organizing a show under the banner ‘The Spirit of Jodhpur’ on 21st December 1994 at Jodhpur;
d) that as per letter dated 5th December 1994 the respondent agreed to provide choregraphy and direction for a sum of Rs. 1,30,000/-;
e) that this estimate of Rs. 1,30,000/- was subject to confirmation by the plaintiff;
f) that subsequently the respondent changed and enhanced the estimate to Rs. 1,50,000/-;
g) due to variance of estimates the appellate/plaintiff did not agree to the propose agreement and the terms and conditions conveyed vide letter dated 5th December 1994 were not finalized;
h)that the appellant accordingly demanded the return of Rs. 50,000/- and the respondent took the stand that she had already engaged models and technicians and paid advance month to them and also made other arrangements for which she spent Rs. 63,200/- and in fact demanded the balance amount from the plaintiff/appellant.
2. The learned civil judge by its judgment dated 23rd March, 1998 decreed the suit of the plaintiff for recovery of Rs. 50,000/- as principal amount and recorded the following findings:
a) that advance of Rs. 50,000/- was paid to the defendant by the plaintiff on 4th December 1994;
b) the contract between the parties did not conclude because the terms offered by the defendant were not accepted by the plaintiff;
c) since the offer of the defendant was not signed by the plaintiff hence it was not accepted;
d) consequently the contract was canceled on 18th December 1994 and the defendant should not have paid any amount to the models as the contract had till then not been concluded;
e) The suit was accordingly decreed for a sum of Rs. 50,000/- in favor of the original plaintiff.
3. In reversing the judgment of 23rd September 1998 passed by the Civil judge Delhi, the Addl. District Judge by its judgment dated 30th August, 2001 impugned in this second appeal recorded the following findings:
a) Undisputedly prior to 3rd December 1994 the letter dated Ex. DW 1/1 was signed by the respondent;
b) this letter was an invitation to confirm the cultural show on 21st December 1994 at Jodhur and a cheque had been issued for hiring of models, music, co ordination, etc for which the receipt was issued on 5th December 2004;
c) the receipt of the cheque and sending of money and the letter dated 3.12.94, Ex. DW1/1 to the respondent was sufficient to show that a concluded contract had come into being;
d) the trial court has wrongly found that after receipt of telephonic message on 8th December 2004 the defendant should not have paid the amount to the models and the concluded contract cannot be sustained as the parties are well known to each other and there was a detailed discussion in addition to the sending of a cheque which established the concluded contract between the parties;
e) There was difference between estimates and accepting of an offer to organise shows.
f) Due to shortage of time at the disposal of the defendant as the show was on 21st December 1994 in Jodhpur, immediately after receiving the advance on 6th December 1994 the defendant started making arrangements including payment for the purpose of the show. The payments were made on 6th December 1994 which was prior to the cancellation on 8th December 1994 by the plaintiff. In fact it was the defendant who sent a notice to the plaintiff on 10th December 1994 claiming the balance sum due to her, which led to the plaintiff to sue the defendant.
g) The plaintiff never sent a reply to the notice received from the defendant dated 10th December 1994 and never served any notice or sent a communication demanding back the payment of Rs. 50,000/-; The defendant’s plea that the respondents cancelled the contract telephonically only on 8th December 2004 has not been rebutted in the replication.
h)The statement of the plaintiff is not supported by any documentation but is full of concealment of relevant facts such as concellation of the contract, details of the demand of advance made by the plaintiff and the reply, if any, to the notice dated 8th December 2004, send by the defendant. The defendant’s witnesses have deposed about the valid contract on the basis of original discussions on 3rd December 1994.Merely because the plaintiff is agreed to have seen the estimate cannot override the earlier contract by payment or encashment of cheuqe of Rs. 50,000/-. The plaintiff had also concealed that she organized the show under a different banner on a different date. In the cross examination the plaintiff admitted that while drafting the plaint she had mentioned this fact to her counsel that cultural show was organized on 26th December 2004 but this fact was not reflected in the plaint.
4. The appellate court in view of the above findings reversed the judgment of the trial court and dismissed the suit filed by the appellant by its impugned judgment dated 30th August 2001.
5. These findings have been challenged in a second appeal before this court by the learned counsel for the plaintiff, Shri Vineet Choudhary by relying on the following judgments:
Ushamil private Ltd. v. Gimplex Ltd. reported as 1001(2) RAJ 300 (Delhi)
Bhagwandas Goverdhandas Kedia v. Girdharilal Purshottamdas and Co. and Ors. repoted as AIR 1966 SC 543
Alcatel India Ltd. v. Mahanagar Telephone Nigam Limited and Anr. reported as 92 (2001) DLT 586 (DB)
6. In Ushamil (supra) it was held :
It is settled law that the communications exchanged between the parties at the stage of negotiation become irrelevant once the parties enter into final written agreement which becomes binding and concluding agreement.
In Bhagwandas (supra) it was held by the Hon’ble Supreme Court as follows:-
Making of an offer at a place which has been accepted elsewhere does not form part of the cause of action in a suit for damages for breach of contract. Ordinarily it is the acceptance of offer and intimation of that acceptance which result in a contract. By intimating an offer, when the parties are not in the presence of each other, the offeror is deemed to be making the offer continuously till the offer reaches the offeree. The offeror thereby merely intimates his intention to enter into a contrat on the terms of the offer. The offeror cannot impose upon the offeree an obligation to accept nor proclaimed that silence of the offeree shall be deemed consent. A contract being the result of an offer made by one party and acceptance of that very offer by the other acceptance of the offer and intimation of acceptance by some external manifestation which the law regards as sufficient is necessary.
In Alcatel (supra) a Division bench of this court has held:
Merely issuance of the letter of intent and acceptance thereof by the bidder Along with furnishing of the performance security, does not amount to creation of a contract between the parties. By that stage even the contract price and the contract date is not fixed. LOI only signifies the intention of the purchaser. We are unable to accept the submission of the learned Senior Counsel for the appellant that furnishing of the performance security and acceptance of the LOI issued by the first respondent constituted a contract between the parties and the first respondent was obliged to existence between the parties, there was nothing to prevent the first respondent from scrapping the tender. …..
In my view the judgment in Ushamil (supra) is not applicable because the appellate court has correctly recorded a finding of fact and in my view rightly that a contract had come into being upon a payment of Rs. 50,000/- encashment of the cheque and sending of the receipt of the said amount and taking of urgent action by the defendant prior to 8.12.94 pursuant to the said payment. Furthermore, the contract was acted upon by encashment of cheque on 6th December 1994 due to urgency as the show as on 21st December 1994 and the models were mostly from Bombay. In so far as the judgment of Bhagwandas (supra) is concerned, in my view this judgment does not apply because the appellate court has rightly recorded the finding that by making a payment of Rs. 50,00/- the contract stood concluded between the parties, particularly, in view of the fact that the cheque was encashed by the defendant and advance payments made for the proposed show in view of the urgency of the event and the subsequent disagreement on the estimate cannot invalid the earlier concluded contract between the parties. In fact the telephonic message given by the plaintiff/appellant on 8.12.94 which the defendant/respondent has termed as the cancellation of the contract shows that there was an existing contract. Furthermore the appellate Court has rightly found that even the difference between the parties only related to the extra amount of Rs. 20,000/- to be paid to Bombay Models and qua the sum of Rs. 1,30,000/- there was no dispute. As regards Alcatel (supra) judgment is concerned, formal tenders of MTNL cannot be equated with the contract which was based on personal discussions by two known persons particularly in the light of payment of Rs. 50,000/- and the encashment of cheque and subsequent payment prior to cancellation of the contract by the plaintiff on 8.12.94.
7. Accordingly, in my view the aforesaid judgments do not come to the aid of the appellant. Furthermore, all the above findings recorded by the appellate Court apart from being justified are in any event mere findings of fact and not amenable to challenge in a second appeal under Section 100 of the Civil Procedure Code and certainly no substantial question of law is involved in the present appeal.
8. In view of the above no case for interference, in the judgment of Addl. District Judge, is made out and the Second Appeal is accordingly dismissed.