Bangladesh Moktijoddah Kalyan Trust Vs. Kamal Trading Agency, 50 DLR (AD) (1998) 171

Case No: Civil Appeal No. 43 of 1995

Judge: Latifur Rahman ,ATM Afzal ,

Court: Appellate Division ,,

Advocate: Syed Ishtiaq Ahmed,Amirul Islam,Sharifuddin Chaklader,,

Citation: 50 DLR (AD) (1998) 171

Case Year: 1998

Appellant: Bangladesh Moktijoddah Kalyan Trust

Respondent: Kamal Trading Agency

Subject: Law of Contract,

Delivery Date: 1997-11-6

 
Supreme Court
Appellate Division
(Civil)
 
Present:
ATM Afzal CJ
Mustafa Kamal J
Latifur Rahman J
Md. Abdur Rouf J
Bimalendu Bikash Roy Choudhury J
 
Bangladesh Moktijoddah Kalyan Trust represented by the Managing Director
………………… Appellant
Vs.
Kamal Trading Agency and ors
……………..Respondents 
 
Judgment
November 6, 1997
 
The Contract Act, 1872
Section 7
Defendant floated a tender inviting offers for setting its property to which plaintiff offered to purchase the same and sent a bank draft for 2% of the offered price and though the same was encashed by the defendant no decision was taken by the defendant accepting plaintiff’s offer. Hence plaintiff filed a suit for specific performance of contract.
Held: the core of a valid contract, namely, consensus ad interim was thus plainly lacking in the present transaction. The statements made by the plaintiff in ext. 8 (ka) and 1 that the defendant was yet to take a decision and the plaintiff’s tender was pending, which is the case of the defendant, knock the bottom out of plaintiff suit for specific performance of contract, for there was no agreement which was enforceable by law…………………(32 & 34)
 
Cases Referred to- 
Bishun Padre vs. Chandi Prasad & Co. AIR 1919 (Allahabad) 7, HC Mills vs. Tata Air Craft, AIR 1970 (SC) 1986, (Kunwar) Chiranjit Singh vs. Har Swarup, AIR 1926 PC I , Carlill vs. Carbolic Ball Co [1893] QB 256 (262), Begum Khodeza vs. Hajera Khatun, 37DLR (AD) 212, Tamizul Haque vs. Shamsul Haque 45 DLR (AD) 34, Bishu Pada Halder vs. Chandi Prashed & Co, AIR 1919 Allahabad 7, Hindusthan Co-operative Insurance Society Ltd. vs. Shayarn Sunder and others, AIR 1952 Calcutta 619. 
 
Lawyers Involved:
Amirul Islam, Senior Advocate, (Aktar Imam, Advocate with him), instructed by SH Siddique, Advocate-on-Record — For the Appellant. 
Syed Ishtiaq Ahmed, Senior Advocate, (Rafiqul Islam, Advocate with him), instructed by Sharifuddin Chaklader, Advocate-on-Record —For Respondent Nos. 1 and 2.
Not represented—Respondent No. 3.
 
Civil Appeal No. 43 of 1995
(From the Judgment and order dated 12 January 1995 passed by the High Court Division, Dhaka in FA No. 63 of 1992).
 
JUDGMENT
 
ATM Afzal CJ.
 
This appeal, by leave, at the instance of the defendant arises out of a suit for specific performance of contract for sale of the suit property, Title Suit No. 34 of 1991 of the (new) Court of Subordinate Judge, Narayanganj and the moot question for consideration is whether the trail court and the High Court Division in appeal, FA No. 63 of 1992, were right in holding that the defendant had accepted the offer of the plaintiff respondents to purchase the disputed property to make it a binding contract. The suit was decreed which was affirmed in appeal on the concurrent finding that the offer was accepted. The defendant contends that the finding was wrong both on fact and law, leave was granted to consider the said contention. 
 
Plaintiff’s case, briefly, is that, the schedule property comprising land and building being holding Nos. 9 and 10 Old Bank Road, and 13 of B Das Road, Narayanganj comprising 61.75 Kathas of land originally belonged to Hardeo Glass, Aluminium, Enamel and Silicate Works Ltd. Respondent No.2 as proprietor of respondent No. 1 a business/commercial enterprise, took lease of the said premises on 14-6-1971 and set up a Salt Refining and Crushing Factory at a cost of several lacs. After liberation of Bangladesh, management of the said three holding was taken over by the Ministry of Industry and Commerce. Subsequently, the Ministry of Industry and Commerce sold the disputed holdings to the appellant, Bangladesh Muktijoddah Kallyan Trust by a Registered Deed dated 10-8-1982 at a token price of Taka 1.00 (one) only. Respondent No.1 attorned as the tenant of the appellant at a monthly rent of Taka 10,000.00. 
 
2. Having learnt about the decision of the appellant to sell the suit holdings, respondent No.2 by a letter dated 24-12-1985 informed the appellant that he was willing to purchase the property at the highest market price as the respondents were running a big industry on the suit land and requested the appellant to determine the highest market price. After long negotiation by a letter dated 31-5-1986 the appellant requested respondent No.2 only to submit his offer quoting the highest market price along with 2% earnest money by 3-6-86. Accordingly respondent No.2 determined the highest market price of Taka 1,00,000.00 per Katha and a sum of Taka 5,00,000.00 for the structures making the total amount at Taka 66,15,000.00 which was the highest price at the relevant time. A Bank draft for Taka 1,33,500.00 being 2% of the total consideration amount was sent with the offer made by letter dated 3-6-86. 
 
3. The appellant received the offer and encashed the Bank draft on 5-6-1986. Subsequently, verbal assurance was given to respondent No.2 to execute and register the sale deed as early as possible. Respondent No.1 being in possession of the suit property had to wait because of such verbal assurance of the officials of the appellant. 
 
4. For reasons not known to the respondents the appellant illegally evicted the respondents from the suit property on 29-6-1990 by force with the help of police causing huge damage to the respondents. But subsequently they were restored to possession of the Suit property by an order of the High Court Division passed in Writ Petition No. 742 of 1990. Since then the respondents have been running their industry as before. 

5. On 31-7-1990 the appellant invited tenders in daily Ittefaq for selling the suit property. The respondents served notice upon the appellant on 9-8-1990 reminding it about the earlier sale of the suit property to respondent Nos. 1 and 2 stating further that the same cannot be sold again to any other person. By the same letter request was made to the appellant to execute and register the sale deed by 12-8-90 upon receiving the balance of the consideration money. Getting no response the respondents served another notice dated 2-10-1990 for the same purpose and having failed to get any reply from the appellant, filed the aforesaid Title Suit against the appellant for specific performance of contract. 
 
6. The defendant appellant contested the suit by filing written statement contending, inter alia that the plaintiffs’ proposal to purchase the property was never accepted by the appellant, that it did not enter into any agreement with the plaintiffs for sale of the disputed property nor accepted any money on account of such agreement and that the money deposited by the plaintiffs with their proposal cannot be termed or equated with earnest (baina) money and the same was not used or utilised by the appellant. The suit was therefore liable to be dismissed. 
 
7. Plaintiffs examined two witnesses, plaintiff No. 2 figuring as PW 1. Defendant examined its Manager (Administration) as the only DW. Several correspondences were proved which are undisputed. 
 
8. The learned Subordinate Judge in decreeing the suit held in his judgment dated 20-11-91 that the defendant had invited a solitary proposal from the plaintiffs and received the earnest money sent by the plaintiffs by encashing the bank draft and thus accepted the proposal of the plaintiffs making it a concluded contract enforceable in law. 
 
9. In the appeal taken by the defendant, the High Court Division in the impugned judgment dated 12 January, 1995 observed, inter alia, that: 
 
“In view of the facts and circumstances of the case and the evidence on record of both the parties and in view of the submission of the learned counsel for the appellant it is abundantly clear that the defendant admits the agreement for sale of the suit property and his only contention is that the contract was not final. By encashing the bank draft the defendant has accepted part payment of consideration money and it is akin to completeness and finality of the contract.”  
 
10. The appeal was accordingly dismissed. 
 
11. Amirul Islam, learned Counsel for the appellant, mainly contended that the High Court Division upon a complete misconception of the case of the respective parties and ignoring the law wrongly held that there was a concluded contract for sale of the disputed property which was amenable to enforcement under the law. He referred to the plaintiffs own documents, particularly Exts. 8(ka) and 11, and submitted that the plaintiffs own case is that their offer remained pending and no decision was taken by the appellant regarding the said offer. Mr. Islam argued that it was wrongly held that by encashing the Bank draft the appellant had accepted part payment of consideration money and the contract became final over looking that the offer of the plaintiffs having not been accepted, there was no question of any promise even, not to speak of consideration which follows promise. Mr Islam also argued that the trial Court wrongly held that by encashing the Bank draft, the appellant had accepted the proposal. The plaintiffs asked for a decision with regard to their offer but that decision, even according to the plaintiffs, never came; encashment of the Bank draft could not be equated in the facts and circumstances of the case with a proper acceptance under the law, Mr. Islam argued. Finally, he submitted that the law on the subject of acceptance of an offer making it an agreement enforceable by law was not properly understood by both the courts resulting in an erroneous decision and so the law may be clarified.
 
12. Syed Ishtiaq Ahmed learned Counsel for the plaintiff respondents, supporting the impugned judgment and decree argued that although the defendant did not expressly notify its acceptance but the encashment of the Bank draft by the defendant amounted to acceptance by conduct which is legally valid. Therefore, the view taken by the trial Court and the High Court Division was justified and correct. Mr. Ahmed in support of his argument cited Bishun Padre vs. Chandi Prasad & Co AIR 1919 (Allahabad) 7 and Hindusthan Co-op. Insur, Society vs. Shyam Sunder AIR 1952 (Cal) 691.
 
13. Before entering into the question whether the plaintiffs’ offer to purchase the disputed property was accepted or not, it may be considered what is the nature of the earnest money (2% of the value of the offer made by the plaintiffs) which the defendant is said to have accepted by encashing the Bank draft (for Taka 1,33,500.00) Both the Courts have held that by encashing the Bank draft the defendant has accepted part payment of consideration money and so the contract was complete and final. The question is, did the earnest money sent by the plaintiffs represent part of the consideration money in the instant case, particularly when the plaintiffs’ own case is that their offer was subject to discussion and decision by the defendant?
 
14. ‘Earnest’ or ‘earnest money’ which in common parlance is called ‘Baina’ is that amount which is given at the time when the contract is concluded. It is something which is given to bind the contract, as an earnest or token of good faith and as a guarantee that the giver will fulfill his contact. In the case of HC Mills vs. Tata Air Craft, AIR 1970 (SC) 1986, the principles regarding ‘earnest’ were found as:
 
(1) It must be given at the moment at which the contract is concluded.
(2) It represents a guarantee that the contract will be fulfilled or, in other words, “earnest” is given to bind the contract.
(3) It is part of the purchase price when the transaction is carried out.
(4)……………………
(5)………………….... 
 
The Privy Council in the case of (Kunwar) Chiranjit Singh vs Har Swarup, AIR 1926 PC I observed that earnest money is part of the purchase price when the transaction goes forward; it is forfeited when the transaction falls through, by reason of the fault or failure of the vendee.
 
15. Earnest money to bind a contract must follow and not precede the same. If there is no meeting of minds of the parties, consensus ad idem, there cannot be any question of earnest money. In the present case, the earnest of 2% sent by the plaintiffs was an earnest for their proposal as asked for by the defendant and not an earnest as consideration in part for any agreement. It was demanded as a token of the bonafides of the proposal of the plaintiffs which they complied with. Therefore, it is clear that encashment of the bank draft by the defendant, whether it was legal/proper or not, cannot be construed as acceptance of an earnest money forming part of consideration for the agreement. Both the trial Court and the High Court Division upon a misconception of fact and law wrongly held that the defendant had accepted earnest money as part payment of consideration and the contract was complete.
 
16. Now, let us look at the more important question whether the defendant at all accepted the proposal or offer of the plaintiffs. It is not disputed that a proposal when accepted becomes a promise. To refer to the law on the subject of acceptance, Section 7 of the Contract Act, 1872(Act IX of 1872 provides) -
 
Section 7.- In order to convert a proposal into a promise, the acceptance must-
(1) be absolute and unqualified;
(2) be expressed in some usual and reasonable manner in which it is to be accepted. If the proposal prescribes a manner in which it is to be accepted, and the acceptance is not made in such manner, the proposer may, within a reasonable time after the acceptance is communicated to him, insist that his proposal shall be accepted in the prescribed manner, and not otherwise; but if he fails to do so, he accepts the acceptance. 
 
17. An acceptance must be expressed in some usual and reasonable manner, unless the proposal prescribes the manner in which it is to be accepted. In the present case the manner of acceptance has been clearly indicated by the plaintiffs in their letter dated 3-6-86 (Ext.8) bearing their offer. It says: 
We would request you to kindly accept our offer which is quite reasonable and intimate your decision at the earliest. (emphasis added). 
 
18. Admittedly that decision was never made or taken, not to speak of notifying the plaintiffs about the same. Syed Ishtiaq Ahmed does not dispute that silence or even long silence on the part of the promisor or even formation of intention to accept cannot be regarded as acceptance in law. 
 
19. The law on this point does not differ from the English law. In Anson’s Law of Contract it has been stated that Acceptance means in general communicated acceptance. The learned Author says at page 44:
 
“We have seen that the acceptance of an offer requires more than a tacit formation of intention. There must be some overt act or speech to give evidence of that intention. But English law stipulates in addition that acceptance is not complete unless and until it is communicated to the offeror. In the words of Lindley LJ: ‘Unquestionably, as a general proposition when an offer is made, it is necessary in order to make a binding contract,  not only that it should be accepted, but that the acceptance should be notified. Since, however, notification is for the benefit of the offeror, he may expressly or impliedly waive this requirement and agree that an uncommunicated acceptance will suffice. Thus, acceptance may in circumstances be held to have been made even though it has not yet come to the notice of the offeror. In such a case, two things are necessary. There must be an express or implied intimation from the offeror that a particular mode of acceptance will suffice. And some overt act must be done by the offeree which is evidence of an intention to accept, and which conforms to the mode of acceptance indicated by the offeror. 
These requirements may be summed up in the proposition that an offer is accepted when acceptance is made in a manner prescribed or indicated by the offeror.”  
 
20. For the purpose of acceptance in this case a decision by the defendant was necessary; notifying or communicating the plaintiffs would come later. Mr Amirul Islam in this connection referred to Articles 5(2) (h), 6 and 7 of the Bangladesh (Freedom Fighters) Welfare Trust Order, 1972 (President’s Order No.94 of 1972) as amended by the Bangladesh (Freedom Fighters) Welfare Trust (Amendment) Act 1993 and contended that the Board of Directors of the defendant only could decide about disposal of any property and there being no decision by the Board, there was no question of acceptance of the plaintiffs’ offer.
 
21. Mr. Ahmed submits that, yes, there was no decision taken but by conduct, that is, by encashing the bank draft (2% earnest money) the proposal was accepted. It is not always necessary that a formal communicated acceptance is to be made. It may be enough in a particular case to infer acceptance even if no overt communication is made.
 
22. Clearly Mr. Ahmed wants to bring his case within the second part of the proposition as quoted above from Anson which reads:  

 
“Thus acceptance may in certain circumstances be held to have been made even though it has not yet come to the notice of the offeror. This is what Lindley LJ said in Carlill vs Carbolic Ball Co [1893] QB 256 (262).”  
 
23. But Mr. Ahmed can hardly take advantage of the proposition relied upon by him because it has got a rider which, to quote from that English case again, says:  
 
“In such a case two things are necessary. There must be an express or implied intimation from the offeror that a particular mode of acceptance will suffice. And some overt act must be done by the offeree which is evidence of an intention to accept, and which conforms to the mode of acceptance indicated by the offeror.” 
 
24. Here the plaintiffs have asked for a decision by the defendant indicating further that if the defendant wanted, they were ready to discuss ‘whenever you want us to do so’. There is nothing to indicate that the plaintiffs have waived the requirement of decision even by implication or that the plaintiffs would consider it sufficient acceptance if the earnest money was encashed. Nor can it be said that the encashment of the bank draft conformed to the mode of acceptance indicated by the plaintiffs. Thus it is clear that the principle of implied acceptance without notifying the offeror is not at all attracted in the facts of the present case.
 
25. The two cases relied upon by Mr. Ahmed do not help him as the facts in those cases are different. In the Allahabad case (AIR 1919 Allahabad 7) plaintiff, a firm of chemists in Moradabad in order to buy Cocaine from defendant, a similar firm in Benares, sent money to the defendant with a note that the defendant should set aside for them a certain amount of Cocaine the price of which was sent. Money was received by the defendant but later on the defendant wanted to return the money because the price of Cocaine had gone up and so they would not supply the Cocaine. In the suit for breach of contract, Lindsay J, held in repelling the defence of no contract for want of acceptance of the plaintiffs’ offer:   
 
In these circumstances, I think, it was open to the court below to find that there was an acceptance of the plaintiffs’ proposal. The acceptance of a proposal must be absolute and unqualified, but it is also well established that an acceptance may be made without express communication. Here it seems to me the Judge of the Court below could reasonably find that the conduct of the defendants in receiving this sum of money and crediting it to their account amounted to a definite acceptance of the plaintiffs’ proposal.   
 
26. The Calcutta case (AIR 1952 Calcutta 691) was relating to an Insurance policy. The question arose whether in the facts of that case, the Insurance company can be said to have accepted the Insurance proposal of the deceased. Facts are that at the request of an organiser of the company the deceased verbally agreed to insure his life on an endowment policy. The deceased was medically examined by doctor employed by the company. After the medical examination, the organiser told the deceased that the doctor had found his life to be first class, and that if he submitted the proposal form and deposited the half-yearly premium without delay, the company would accept his life for insurance and I would issue a policy promptly. The proposal form was filled in, was signed by the deceased and made over to the organiser with a cheque for Rs. 295-10-0, drawn on the Central Bank of India in favour of the company, being the sum payable for the half-yearly premium. All papers, namely, the proposal, the medical reports and the friends’ reports were completed and sent to the Insurance Company and thereafter, with the knowledge of the completion of the papers, the Insurance Company cashed the cheque. The Company knew that the organiser had no authority to receive the cheque as premium and therefore the cheque when it was sent to the company by the organiser had not been sent as premium. It was the company which could take it or not as premium.
 
27. It was held upon those facts that no communication by the company was necessary and there was acceptance of the proposal by crediting the premium sent by the deceased and the company was bound to pay under the policy. It was held:     
 
In other words, the proposer in this case dispensed with express communication of the acceptance and from the nature of the transaction we may somewhat readily infer the officer’s intention to dispense with the communication. The offerer in this case “asked for an act on the condition of the offer becoming a promise”, and that act was done by the company, namely, the cashing of the cheque. We have no doubt, therefore, that the company by cashing the cheque and appropriating the money accepted the proposal. No communication was necessary to be made to the assured to complete the acceptance.    
 
28. There is no doubt that the facts of the present case bear no comparison at all with the facts of the cited cases. In the Allahabad case, the entire price of the goods was paid and accepted and in the Calcutta case, the half-yearly premium was paid and accepted by the company. The assured, it was found, impliedly dispensed with express communication of the acceptance. In those cases receiving of money sent by the proposer was rightly held to be acceptance of the proposal but the same standard can hardly be applied in the facts of the present case. Here the plaintiffs have, first of all, asked for “intimate your decision”. Having regard to the fact that the disputed property belonged to the Trust and it was the Board of Directors which alone could sake a decision, it was absolutely necessary for the proposal to be accepted that a decision was taken by the Board in that behalf and then communicated to the plaintiffs.
 
29. It has been held by the High Court Division and the trial Court that by encashment of the bank draft the defendant has accepted the proposal. The plaintiff knew from endorsement of the bank that the bank draft was encashed within two days of furnishing thereof by the plaintiffs i.e. on 5-6-86. Ever since knowing that, plaintiffs also knew, and, it is their own case, that a decision of the defendant was necessary to make a binding contract. Mr. Amirul Islam referred to their own statement in letter dated 15-8-90 Ext.8 (ka) addressed to the defendant in which they themselves said:      
 
“…...how present tender could be floated by you while our tender is still pending with you and no decision has yet been taken by you on our tender and our earnest money against that tender amounting to Taka 1,33,500.00 is stilt lying with you.”     
 
30. Mr. Ishtiaq Ahmed tried to explain away the above admission by saying that the letter was written by the manager of the plaintiffs who was only a matriculate and therefore not much importance should be given to his statement. Mr. Ahmed said that even if it was an admission, it was not and could not be conclusive because the manager (PW 2) had given an explanation in his deposition saying that it was wrongly written that the plaintiffs’ tender was pending. For support Mr. Ahmed referred to Begum Khodeza vs Hajera Khatun, 37DLR (AD) 212, Tamizul Haque vs Shamsul Haque 45 DLR (AD) 34.
 
31. Mr. Amirul Islam was quick in retorting that the matriculate manager may have wrongly admitted that the plaintiffs’ tender was pending but what about the same statement which was repeated by the plaintiff in their Writ Petition No. 1742 of 1990 which was certainly not drafted by a matriculate. He referred to the judgment in that writ petition Ext. 11 where the writ-petitioner-plaintiffs’ case has been noticed thus: In 1986 the respondent No.1 invited tender for sale of the said premises. The petitioner No. 2 submitted offer along with earnest money of Taka 1,33,500.00 through a Bank Draft. The respondent No.1 has not yet taken any decision in this regard but it is still holding the earnest money of the petitioner. Copy of the writ petition was also produced at the time of hearing which corroborates the above fact.
 
32. Thus it is clear from the above that the plaintiffs themselves believed and gave out as late as in 1990 that their tender was pending and no decision was taken by the defendant about it. The core of a valid contract, namely, Consensus ad idem was thus plainly lacking in the present transaction. To quote Anson again on the subject of acceptance:   
 
“This requirement of acceptance led certain juristic writers, especially those of the nineteenth century, to place great emphasis upon the consensual nature of contractual obligations. The essence of a contract is, it was said, the meeting of the wills of the parties in full and final agreement; there had, in fact, to be consensus ad idem”.  
 
33. The appalling nature of misreading and appreciation of facts by the High Court Division will be evident from its finding that Exts. 8(Ka) and 11 (discussed above) are in favour of the plaintiffs. The misconception of the High Court Division on law is also apparent when it finds:     
 
“it is abundantly clear that the defendant admits the agreement for sale of the suit property and his only contention is that the contract was not final.”    
 
34. The statements made by the plaintiffs in Exts. 8(Ka) and 11 that the defendant was yet to take a decision and the plaintiffs’ tender was pending, which is the case of the defendant, knock the bottom out of the plaintiff’s suit for specific performance of contract, for there was no agreement which was enforceable by law. There was no contract. The findings of the High Court Division are thus clearly misconceived and accordingly unsustainable. 
 
35. In view of the discussion above it is held that both the courts wrongly found that the defendant had accepted the offer of the plaintiffs. The impugned judgment and decree are therefore liable to be set aside. 
 
36. It is not disputed that the plaintiffs paid 2% earnest money amounting Taka 1,33,500.00 on the value of their offer of Taka 61.75 lakh by a Bank draft along with their letter dated 3-6-86 (Ext.8) and it has been found by both the courts that the Bank draft was encashed on 5-6-86 although the defendant denied it. Mr. Amirul Islam submits that that finding cannot be contested now nor does he intend to. He pointed out that the defendant by its letter dated 25-8-90 {Ext.8(Ka)} requested the plaintiffs to take back their earnest money as their tender was already cancelled. This letter, it is found, was sent only after the plaintiffs had objected to the defendant’s tender notice dated 30-7-90 for selling the disputed land. The defendant never intimated the plaintiffs that their tender was not accepted or cancelled for more than four years which, to say the least, was extremely unconscionable. It is true that the plaintiffs offered to purchase the disputed property at the highest market value, made an offer of Taka 61.75 lakh on their own estimation and wanted to discuss the matter “whenever you want us to do so”. It was bad business on the part of the defendant to keep the matter hanging for more than four years and it is on record that the defendant rather evicted the plain in a high handed manner for which the plaintiffs had to file a writ petition in the High Court Division.
 
37. Be that as it may, the plaintiffs are entitled to get back their earnest money with interest. 
 
38. In the result, the appeal is allowed without any order as to cost and the impugned judgment and decree are set aside. The plaintiffs’ Suit is dismissed. The defendant-appellant is directed to refund the plaintiffs’ earnest money, Taka 1,33,500.00 as aforesaid within 30 (thirty) days of drawing up of the decree with interest at the rate of 6% from 5-6-86 till realization; failing which it will be executed as a money decree in the usual course. 
 
Mustafa Kamal J.
 
I have gone through the judgments written by my Lord the Chief Justice and my learned brother Latifur Rahman, J. I concur with the judgment of my Lord the Chief Justice. 
 
Latifur Rahman J.
 
As I find it difficult to set aside the concurrent findings of fact of the courts below which are based on correct evaluation of the oral and documentary evidences on record, I am writing out a separate judgment disagreeing with the view taken My Lord the Chief Justice. 
 
This appeal by leave at the instance of the defendant Bangladesh Moktijoddah Kalyan Trust is against the judgment and decree passed by a Division Bench of the High Court Division on 12-1-95 dismissing First Appeal No. 63 of 1992, after affirming the judgment and decree passed by the Subordinate Judge, Narayanganj in Title Suit No.34 of 1991 on 20-11-91 decreeing the suit of the plaintiff-Kamal Trading Agency for specific performance of contract for sale of immoveable property. 
 
41. The case of the plaintiff-respondents in short is that the disputed property comprising land and buildings as mentioned in Holding Nos. 9 and 10. Old Bank Road now 13/B, B. Das Road, Narayanganj originally belonged to Hardeo glass, Aluminium Enamel and Silicate Works Ltd. Respondent No. 2 took lease of the said premises on 16-6-71 and set up Salt Refinery and Crushing Factory at a cost of 7,00,000.00 ( seven lakh). After liberation of Bangladesh management of the said holdings were taken over by the Ministry of Industries and Commerce. Subsequently, the Ministry sold the disputed holdings to the defendant by a registered deed dated 10-2-92 at a token price of Taka 1.00 only. Respondent No. 1 was attorned at a monthly rent of Taka 10,000.00. Having learnt towards the end of 1985 that the appeallant had given a decision to sell the disputed property respondent No. 2 by a letter dated 24-12-85 informed the appeallant that he was willing to buy the property at the highest market price in the same letter. As per the plaint case through a long and protracted discussions between the relevant officers of the appellant and respondent No. 2 a firm decision was arrived between the parties with regarded to the price of the property. Thereafter Khandaker Fazlul Huq, Managing Director of the defendant by his letter dated 31-5-86 intimated the plaintiff that the authority has taken a decision to sell the property and, as such, after quoting the price of the entire property, 2 % of the earnest money of the said price is to be deposited in a sealed cover within 12-00 noon at 3-6-86. According to the plaint case, the defendant by its letter dated 31-5-86 asked for only one quotation from the plaintiff to sell the suit property. In pursuance of the letter dated 31-5-86, respondent No. 2 quoted Taka 66,75,000.00 as the total price of the land and structures and deposited a bank draft of Taka 1,33,500.00 as earnest money @ 2 % as proposed by the appeallant. In conformity with the market price of Taka one lac per khata, the value of the land was fixed at Taka 61,75,000.00 and the old structures were valued at Taka 5,00,000.00 and the total price was quoted by respondent No. 2 at Taka 66,75,000.00. The price being agreed upon at the request of the appellant, respondent No. 2 sent a letter ( Ext. 8) on 3-6-86 along with a bank draft bearing No. H 080118 for Taka 1,33,500.00 drawn on United Commercial Bank Ltd., Elephant Road, Dhaka. The agreed price being just, proper and adequate the appeallant encashed the bank draft on 5-6-86 and spent it for their favour in due course. There being only one proposal by private negotiation and the bank draft having being encashed within two days of its deposit an enforceable contract for sale came into existence between the parties. The plaintiff having agreed to buy the property at the highest market price, the price was settled between the parties and in pursuance of the oral agreement, letter of the plaintiff dated 31-5-86 were written. Thereafter suddenly the plaintiff without any prior notice evicted the plaintiff from the premises by the help of the police on 29-6-90. After eviction of the plaintiff the defendant in order to sell the suit property to the others published a public notice in the daily Ittefaq on 31-7-90. From this public notice, the plaintiff for the first time came to know that the defendant are trying to sell the suit property elsewhere. Plaintiff No. 2’s Advocate served a legal notice on 9-8-90 asking to execute and register the sale deed. Later on plaintiff No. 2 by his letter dated 15-8-90 requited the defendant to refrain from selling the property by floating public tender when the proposal of sale of the property with the plaintiff No. 2 is pending. In reply to the letter of plaintiff No. 2 dated 15-8-90 the defendants by its letter dated 25-8-90 asked the plaintiff to take back the earnest money as the agreement has already been canceled long back. Respondent No. 2 served a legal notice on 2-10-90 demanding execution and registration of the sale deed within seven days as after lapse of more than four years the agreement for sale of the land cannot be unilaterally cancelled. Hence the suit for specific performance of contract. 
 
42. The case of the defendant is that, the suit for specific performance of contract is not maintainable. According to the defendant, the plaintiff was in occupation of the property as tenant of the defendant. The plaintiff was asked to submit a proposal quoting the purchase price of the property if it was interested or willing to purchase the property vide defendant’s letter dated 31-5-86. The defendant asked the plaintiff to deposit 2% of the quoted purchase price. The plaintiff submitted the proposal to purchase the disputed property at Taka 66,75,000.00 along with a bank draft for Taka 1,33,500.00 as per letter dated 3-6-86. According to the defendant, 2% of the earnest money was not deposited as part price of the property. The plaintiffs aforesaid proposal to purchase the property was never accepted by the defendant. The defendant did not enter into an agreement with the plaintiff for the sale of the disputed property and the money was not accepted on account of any agreement to sell the property. The money was given as a pre-condition of filing of the tender and, as such, it is not a baina money as asserted by the plaintiff. In the written statement it has been clearly averred that the earnest money of Taka 1,33,500.00 was not utilized by the defendant and the same remained with the defendant as the plaintiff never came to take it back from the defendant. The defendant admitted that for the first time by its letter dated 24-8-90 intimated the plaintiff that the agreement has been cancelled. The suit is liable to be dismissed. 
 
43. The trial Court on consideration of the oral and documentary evidences on record decreed the suit of the plaintiff-respondents. A Division Bench of the High Court Division in first appeal also affirmed the judgment of the trial Court and held that in the facts of the present case there was a concluded contract for sale of the disputed property and decreed the suit. 
 
44. The only question for consideration is, whether the trial Court and the learned Judges of the High Court Division correctly held in the facts of the present case that a concluded contract was entered into between the parties and rightly decreed the suit. 
 
45. Leave was granted primarily to consider whether there was a concluded contract for sale of the disputed property between the parties which was amenable to enforcement under the law. Leave was also granted to consider whether the defendant- appellant by encashing the bank draft within two days of submitting of the part price of total consideration of the suit property, a legally enforceable contract has been established between the parties. 
 
46. Mr. Amirul Islam, learned Advocate appearing for the defendant-appellant, submits that mere encashment of the bank draft soon after submitting of the same to the appellant does not show that an enforceable and concluded contract has been established between the parties. He further submits that cancellation of the agreement after long silence is no sufficient proof that the proposal for sale was accepted by the defendant earlier. He also submits that as per the Bangladesh (Freedom Fighters) Welfare Foundation Order, 1972(Presidents Order No. 94 of 1972), the Managing Director or for that matter the General Manager of the Trust had no authority to negotiate and sell the property without the approval of the Board of Directors. 
 
47. Mr. Syed Ishtiaq Ahmed, learned Advocate appearing for the plaintiff-respondents, submits, first, that the question is essentially one of fact whether there was an enforceable agreement between the parties, which justified the respondent’s claim for specific performance. He submits that the trial Court as well as the High Court Division having found in favour of the plaintiff there is little scope for interference by this Division. He next contends that the oral and documentary evidences on record conclusively lead to a concluded contract between the parties and the same being enforceable under the law, the learned Judges of the High Court Division had rightly decreed the suit for specific performance of contract. 
 
48. In this case, apart from the documentary evidences, namely, the correspondences between the parties, oral evidence has also been led by the parties and the same have been considered by the two courts below. The question to be decided being essentially a question of fact, I am to advert to the material evidence on record both oral and documentary to assess the nature of transaction between the parties as has been done by the courts of fact below. 
 
49. I will refer to the oral evidence along with the documentary evidences on record to see whether the concurrent findings of fact arrived at by the courts below are sustainable in law or not. In deciding the case we are to consider both oral and documentary evidence to arrive at a decision in this case. As the parties led oral evidence in respect of a contract for sale we cannot consider the documentary evidences only in isolation without the oral evidence. On a consideration of the entire evidence on record the decision has been given in the present case which I propose to do. 
 
50. In this case, the plaintiff examined two witnesses and the defendant examined one witness. PW 1 Md. Amanullah is plaintiff No. 2 who is the owner of plaintiff No. 1. In his testimony, he stated that as he was a tenant under the defendant, in the middle of 1985, Manager Amin Ahmed and General Manager Fazlul Huq of Bangladesh Mukhtijoddha Kallayan Trust called him at their office and gave proposal to sell the property. This witness. further stated that by Ext. 6 dated 24-12-85 he intimated the Managing Director of the Trust that he is willing to buy the disputed property at the highest market price. As per his deposition, after enquiry by the men of the defendant the price of per katha was decided at one lac and the structures were fixed at five lakh and the total price was fixed at Taka 66,75,000.00. Thereafter the defendant by its letter dated 31-5-86, (Ext.7) intimated the plaintiff to submit a written (dorpotro) and to deposit 2% as baina money. He further stated that after two days the defendant encashed the entire amount of earnest money and there is an endorsement to that effect by the bank manager. He also testified that only quotation of price was taken from him alone as he was a tenant under the defendant. Managing Director and Fazlul Huq, General Manager assured him that after getting the balance consideration money the sale deed would be executed and registered. According to PW 1, the agreement was cancelled for the first time on 25-8-90 and the defendant informed him to take back his earnest money. He also testified that in spite of his willingness to pay the balance consideration money the deed was not executed and registered. Hence he filed the suit.  
 
51. PW 2 Shahjahan, Manager of plaintiff No. 1 testified that for purchasing the suit property there was a negotiation between the officers of Trust and plaintiff No. 2. As a result of discussions we informed the defendant about our willingness to purchase the property by letter dated 24-12-85 (Ext.6). Thereafter Managing Director of the defendant intimated by letter (Ext.7) dated 31-5-86 to plaintiff No. 2 to deposit 2% of baina money of the entire sale price of the tenanted premises by 12.00 noon on 3-6-86. The plaintiff quoted the entire price of the property and deposited a bank a draft of Taka 1,33,500.00 along with a letter (Ext.8). He further testified that the defendant having refused to execute the sale deed the suit has been filed. This witness further stated that the price was fixed orally by negotiation and that is why 2% baina money was deposited. He also deposed that the Managing Director Amin Ahmed of the defendant gave oral proposal for sale and at that time General Manager Fazlul Huq was present. He also denied the defence suggestion that the sale price of the property was unilaterally fixed by the defendant. He also denied the defence suggestion that 2% earnest money is not baina money but only earnest money of the tender. 
 
52. DW 1 Md. Mostafa, Manager (Administration) of the defendant, stated that the plaintiff gave a proposal to buy the property. He further stated that the plaintiff by his letter dated 3-6-86 by depositing 2% earnest money requested them to intimate about the acceptance of the offer. He stated that the defendant never accepted the offer. In his cross-examination he stated that the sale price of the property was not fixed after negotiation. This witness further stated that in 1988 he joined as Manager (Administration) in the office of the defendant. He further stated that the sale price of the property was not fixed after negotiation. This witness further stated that in 1988 he joined as Manager (Administration) in the office of the defendant. He further stated that after Managing Director there is Director, thereafter General Manager and below that Deputy General Manager and General Manager. He is one of the 10 Managers of defendant Trust. He further stated that he had no responsibility to see the estate department. This witness admitted that when Ext. 7 (31-5-86) was issued from the office of the defendant for depositing 2% earnest money he did not join in the service of the defendant. He also admitted that he was not in employment when the discussion of sale of the property took place between plaintiff No. 2 and the Managing Director and General Manager of the defendant. He also stated that he has no personal knowledge as to whether any oral agreement was entered into between the parties. He further stated that the pay order has not been encashed. 
 
53. In the background of this positive oral evidence on record, it appears that PW 2 tenant was interested to purchase the property as he set up a refinery and crushing factory in the premises with huge investment. No public auction was called for nor there was any notice published in the press but only single tender was called for from plaintiff No. 2. As against this oral evidence of PWs 1 and 2 the defendant did not examine the Manager (Estate) who was supposed to know all about the transactions about the disposal of the property by sale. There is no explanation as to why the relevant officers of the defendant at the relevant time were not examined. PW 1 joined in the employment of the defendant much after the negotiation and talk of sale. He had personal knowledge of the correspondences made between the parties. It is also on record that the defendant has not adduced the relevant officers mentioned by PW 1 in his deposition with regard to the definite negotiation and talk of sale. There is also no explanation as to non-examination of General Manager Fazlul Huq and Manager Amin Ahmed with whom PW 1 had definite talk of sale of the suit property. The defendant has also not adduced evidence to show that they were not in employment of the defendant. In law an adverse inference can be drawn against the defendant that if those persons would have been examined they would not have supported the case of the defendant. So from the oral evidence as discussed above it is found that PWs 1 and 2 have been able to make out a definite case of talk of sale in respect of the schedule property and fixation of the price after negotiations between the parties. The defendant brought a person in the witness box who was not in the employment at a time when the talk of sale was held between the parties. As a matter of fact there is no rebuttal oral evidence on record from the side of the defendant. In pursuance of that oral contract the correspondences went on between the parties. Hence, the single proposal given by the plaintiff in the background of the case need careful consideration. Admittedly the proposal was given to the plaintiff alone for sale of the property. Apart from the oral evidence, I will refer herein below the documents in relation to the proposal of sale serially. Exhibit 6(24.12.85) is the letter written by the plaintiff to the Managing Director, Bangladesh Freedom Fighters Welfare Trust. In this letter it has been clearly written that the trust has decided to sell this plot and godown thereon. In this letter, the plaintiff spoke about his willingness to purchase this plot at the highest market price. In his oral testimony PW 1 said that the middle of 1985 he was summoned by the General Manager Fazlul Huq and Manager Amin Ahmed of the trust to their office and a proposal was given purchase of the property wherein they told him to, write a letter intimating his willingness to purchase the property. In pursuance of this discussion letter, Ext.6 was written. Wherein it is written that decision has been taken to sell the property. It is evident that unless there is any prior talk of sale the plaintiff could write that the defendant has taken a decision to sell the plots and godowns therein Thereafter the Managing Director Fazlul Huq by Ext. 7, dated 3 1-5-86 intimated the plaintiff that the authority had taken decision to sell the property and requested the plaintiff to quote the price and to deposit 2% of the price in a sealed cover by 12 noon on 3-6-86. 
 
54. The price of the total land was quoted and the bank draft of 2% earnest money was submitted to the defendant by Ext.8 on 3-6-86. The defendant encashed the bank draft within two days i.e. on 5-6-86. In the written statement the defendant has not denied the encashment of the bank draft, other than asserting that the amount was accepted as the earnest money and not as part consideration price of the property. There is nothing on record to show that before 25-8-90 the defendant took any steps to cancel the agreement of sale of the suit property and requested the plaintiff to take back the earnest money. As the defendant issued a public notice to sell the property by public auction. PW 2 Shahjahan, Manager of the plaintiff No. 1 wrote letter, Ext. 8 (Ka) on 15-8-90 to the defendant intimating that the public tender could not be floated as the tender/proposal of the plaintiff is pending with the defendant and no decision has yet been taken respect of the tender of the plaintiff. Exhibit 8(Ka) is not in fact difficult to explain as because the letter indicates that pending decision of the tender of the plaintiff, floating of fresh tender is uncalled for and illegal. Here by decision I mean decision with regard to the sale of the property as understood in the back ground of the oral evidence. The oral evidence explains the term decision. A letter written to the office normally uses such term and nothing could be imputed for that. Ext. 8(Ka) was written alter more than four years, whereas the initial correspondences as evident from Exts. 6, 7 and 8 are of mid, 1986 and, as such, by mere term, “that no decision has been taken” nothing much will turn. The contract is to be construed in this case from the initial discussions and from the relevant Exts. 6, 7 and 8. 
 
55. There is a very noticeable fact in this case that there were negotiations between the plaintiff and the defendant and in pursuance of that Exhibits 6, 7 and 8 were communicated between the parties. Another important fact is that it is a single tender given by the plaintiff. I agree with the findings of the courts below that the price was fixed and agreed and thereafter earnest money was also deposited with the defendant. It is on record that within two days the earnest money was encashed and after lapse of more than 4 years all on sudden the money that was deposited in respect of sale of the suit property was asked to be taken back and the contract was cancelled. Silence of the defendant for such a long period after encashment of the earnest money itself is a clear indication that the defendant accepted the proposal and encashed the amount. If the proposal would not have been accepted then the defendant could not have encashed the money immediately and remained silent for more than four years. There was no explanation as to why the defendant encashed the bank draft when it did not accept the proposal. It is in evidence of PW 1 that during these five years he went to the office and the officers intimated that alter Board meeting the kabala will be executed. 
 
56. I may be mentioned here that in case of public auction either by the Government or by any autonomous body the earnest money which is submitted along with the tender is never encashed but the same is returned to the tenderer in case the tender is not accepted. In case where the tender is accepted the money is also not encashed and the deposit remains as security money to be adjusted in the final bills. This is the normal practice followed in case of public tender. In case of single private tender the question of encashment does not arise unless the proposal is accepted. The encashment of the earnest money is itself a vital proof in this case that the offer was accepted. In the present case, as evident from Ext. 7 of the defendant, the earnest money is part of the purchase price. The relevant portion of Ext. 7 reads as follows: 
 
Emphasis is given on the word (D‡j­wLZ g~‡j¨i) which means the part consideration money. Public tender is only an invitation of an offer, but it being a private sale of a property on negotiations assumed the character of a concluded contract. 
 
57. In the case of Bishu Pada Halder vs. Chandi Prashed & Co, AIR 1919 Allahabad 7, the main question for decision was whether or not there was a binding contract between the parties. 
 
58. The plaintiff-respondent wrote to the defendant-appellant enquiring as to the price at which the defendant could supply cocaine. The price quoted by defendant was Rs. 20 per ounce. The plaintiff sent by money order Taka 17-8-0 and asked for cocaine at such amount. The defendant, however, intimated to the plaintiff that they are unable to supply cocaine at Rs. 20 per ounce as the price had risen. The defendant returned the money and the plaintiff refused to accept the money as a result this suit for breach of contract. The trial Court took the view that there was a binding contract and treated that the proposal of the plaintiff having been accepted by the defendant by their contract and having kept silent from February 1919 to 4th March 1919 and, as such, it was a breach of contract. The learned Single Judge of the Allahabad High Court found it to be a binding contract as the money along with the proposal was accepted by the defendant. In the present case, money having been received by the defendant and credited in the account of the defendant it is further proof that the plaintiffs proposal has been accepted. In that reported decision it was held that acceptance of a proposal may not be communicated and silence on proposal not necessarily means acceptance but crediting money to buyer’s account sent with offer to purchase amounts to an acceptance. 
 
59. In the present case the contract between the plaintiff and the defendant was validly entered into and the immediate encashment of the part price of the consideration money of the sale of the immovable property was a sufficient indication of the ratification of the contract and, as such, I find that there was no want of mutuality with regard to the agreement made between the parties. 
 
60. In order to convert a proposal into a promise the acceptance must be absolute and unqualified. Until accepted the stage of negotiations has not been passed and no legal obligation is imposed. 
 
61. It is undeniable that acceptance of a proposal must be absolute and unqualified but acceptance may be made either expressly or by positive conduct and by other surrounding circumstances. 
 
62. In case of public auction earnest money is asked for just to see the credibility of the contractor/tenderer to perform the work but this being a sale on private negotiations we are to consider what is the meaning of earnest money as understood in an ordinary contract of sale. The earnest money deposited is not only a part payment, but it also binds the contract and it is paid when the contract is concluded.
 
63. In the case of Hindusthan Co-operative Insurance Society Ltd vs. Shayarn Sunder and others, AIR 1952 Calcutta 619, the only question was in issue was whether by encashing the cheque, the company accepted the proposal. The plaintiff presented the cheque in question for the half-yearly premium with a proposal of Rs. 10,000 with Hindusthan Co-operative Insurance Society Ltd., Calcutta. The cheque was encashed and there was nothing to show that the money was kept in suspense account or not appropriated as premium. In the facts of that case by mere encashing the cheque and appropriating the money acceptance of the proposal was believed. No communication was necessary to be made to the assured to complete the acceptance. The Division Bench of the Calcutta High Court held in paragraphs 20-21 as follows: 
 
“The contract was made at the moment the money was appropriated. It was a completed contract. No subsequent communication by one of the parties could open the matter again. So the letter of 31st January asking for a further report could not unmake the contract which had been made on the 18th by the appropriation of the money. Therefore, the company is liable to pay the insurance money.

This is the only point of law that has been argued in this appeal and no other. On a full consideration of the evidence in the case and the law on the point, we are of the opinion that the learned trial Judge was right. His decree must therefore, be affirmed and the appeal dismissed with costs.” 
 
64. It is for the first time that Mr. Amirul Islam, learned Advocate argued before us that the Managing Director and other relevant officers of the trust had no authority to transfer the property. But surprising enough to say that there is not a word in the written statement that the defendant’s officers had no authority to enter into the agreement for sale and on that score the agreement is not lawfully entered into. This plea has not only been not taken in the written statement, but in the evidence of DWI not a word has been said. This argument was also not advanced before the courts below. There being no assertion of lack of authority to enter into the contract, I find it futile now to argue this point. 
 
65. In the present case there being positive evidence of negotiations for sale and in pursuance of that the letters were written between the parties as discussed above, I am in complete agreement with the findings of fact made by the two courts below that there was a concluded contract binding both the parties.

Hence the appeal is dismissed. 
 
Mohammad Abdur Rouf J.
 
I have had the privilege of going through both the Judgments written by My Lord the Chief Justice and my learned brother Latifur Rahman J. I agree with my Lord the Chief Justice. 
 
Bimalendu Bikash Roy Choudhury J.
 
I have had the advantage of going through the judgments which my Lord the Chief Justice and my learned brother Latifur Rahman, J have delivered in the instant case. I fully agree with the judgment of my Lord the Chief Justice.
 
Order of the Court
 
By a majority decision, the appeal is allowed without any order as to cost and the impugned judgment and decree are set aside. The plaintiffs’ suit is dismissed. The defendant-appellant is directed to refund the plaintiffs’ earnest money, Taka 1,33,500.00, as aforesaid within 30 (thirty) days of drawing up of the decree with interest at the rate of 6% from 5-6-86 till realisation; failing which it will be executed as a money decree in the usual course. 
 
Ed.