B.P Singh, J.— These two appeals by special leave have been preferred by the appellant against the judgment and order of the Gauhati High Court in MA (F) No. 180 of 1996 dated 19-5-2000 and the order passed in Review Petition No. 85 of 2000 dated 28-7-2000. The High Court by its judgment and order impugned dismissed the appeal preferred by the appellant against the order of the Railway Claims Tribunal, Guwahati Bench dated 30-8-1996 in Application No. 915 of 1993. The review petition preferred against the judgment and order of the High Court was also rejected by order dated 28-7-2000.
2. The factual background in which the dispute arose is as follows:
Two consignments of iodised salt were booked in favour of the appellant. The first consignment consisted of 767 bags and the second 744 bags. These consignments were not delivered. The appellant, therefore, lodged two claims dated 26-4-1991 claiming the value of the said goods, namely, Rs 53,264 and Rs 51,686 in respect of the two consignments. By letters dated 7-4-1993 (dispatched in August 1993) the Railways admitted the claims only to an extent of Rs 9111 and Rs 9032 and enclosed two cheques in favour of the appellant for the sum of Rs 9111 and Rs 9032 in respect of the two claims. Both the cheques were dated 27-7-1993. The letters contained the following condition:
“In case the above offer is not acceptable to you, the cheque should be returned forthwith to this office; failing which it will be deemed that you have accepted the offer in full and final satisfaction of your claim.
The retention of this cheque and/or encashment thereof will automatically amount to acceptance in full and final satisfaction of your above claim without reason and you will be estopped from claiming any further relief on the subject.”
3. On receipt of two letters along with the two cheques, the appellant wrote to the Railways two identical letters of 20-8-1993 stating that the claims were placed under protest and could not be accepted and that the balance amount should be remitted within 15 days. We extract below one of the letters dated 20-8-1993:
“We regret to inform you that our abovenoted claim has been settled for Rs 9111 instead of Rs 53,264, the claimed amount. The same is therefore placed under protest and cannot be accepted. Please therefore remit the balance amount to us within a period of 15 days from the date of receipt of this letter, failing which, we shall be compelled to lodge a civil suit against the Railways for recovery of the balance amount. Please treat this as most urgent.”
4. It is not in dispute that the cheques were encashed, though the exact date of encashment is not apparent from the record. It is also not disputed that the balance amount claimed by the appellant was not paid by the Railways. In these circumstances the appellant filed a claim application before the Railway Claims Tribunal, Guwahati Bench for Rs 21,151 and Rs 20,258 (after adjusting the freight payable namely Rs 23,022 and Rs 22,396), in all Rs 41,409 as balance compensation in regard to the two invoices.
5. Before the Railway Claims Tribunal the Railways pleaded full and final settlement since the cheques were not returned and were in fact encashed. The Tribunal took the view that there was no scope for the applicant to treat the amount as part payment by making a protest and if the applicant found the amount to be insufficient he should have returned the cheques because the offer made by the Railways was in very clear terms, namely—that the amount could be accepted only in full and final satisfaction of the claim or else the cheques had to be returned. In this view of the matter the claim application was dismissed by the Railway Claims Tribunal.
6. The appellant preferred an appeal before the High Court which came up for hearing before a learned Single Judge of the High Court who referred the matter for consideration by a Division Bench, since it appeared to the learned Judge that there was a conflict of opinion between two judgments of Single Judges of the Court in Union of India v. Rameshwarlall Bhagchand AIR 1973 Gau 111 and an unreported decision in Assam Bengal Cereals Ltd. v. Union of India Second Appeal No. 77 of 1982 of 11-3-1991. The matter was heard by a Division Bench of the High Court and by judgment and order of 5-5-2000 the appeal preferred by the appellant was dismissed.
7. The moot question that arose for consideration of the High Court was whether the acceptance of the two cheques by the appellant and their encashment by it did not amount to acceptance of the offer contained in the two letters of 7-4-1993. The aforesaid letters of 7-4-1993, as noticed earlier, offered the amounts contained in the two cheques in full and final settlement of appellant's claim and further provided that in case the offer was not acceptable, the cheques should be returned forthwith. It is the case of the Railways that by retaining the cheques and encashing them, the appellant signified its acceptance of the amounts comprised in the two cheques in full and final settlement of its claims. Such acceptance by conduct is recognised by Section 8 of the Contract Act.
8. On the other hand, the appellant contended that it had written a letter rejecting the offer and placing the claims “under protest” and called upon the respondent to pay the balance amount claimed by it. The appellant, therefore, submitted that there was no acceptance by conduct as envisaged by Section 8 of the Contract Act, and that its retention of the cheques must be viewed in the light of the protest made by it in its letters of 20-8-1993. The sole question which, therefore, arises for consideration by us is whether by its conduct, the appellant accepted the offer contained in the letters of the Railways dated 7-4-1993.
9. Section 8 of the Contract Act reads as under:
“8. Acceptance by performing conditions, or receiving consideration.—Performance of the conditions of a proposal, or the acceptance of any consideration for a reciprocal promise which may be offered with a proposal, is an acceptance of the proposal.”
10. The High Court considered Rameshwarlall Bhagchand case AIR 1973 Gau 111 on which reliance was placed by the Railways. In that case the plaintiff-respondent M/s Rameshwarlall Bhagchand had transported 210 bags of groundnut through Railways, but when it took delivery, the consignments were found to be so damaged as not fit for human consumption. It was so certified by the railway officer concerned. The consignee served a notice on the Railway Administration claiming compensation in the sum of Rs 2368.25p The General Manager sent a cheque in the sum of Rs 1173.19p to the consignee on 5-5-1964 along with a letter stating that the cheque was being sent in full and final settlement of the claim. The consignee encashed the cheque but subsequently communicated to the General Manager by its letter dated 29-7-1964 that the cheque received satisfied only a part of the claim and that the balance amount should be remitted. Since the General Manager failed to make payment of the balance amount claimed by the consignee, a suit for recovery of the balance amount was filed. In these facts the High Court took the view that the plaintiff having encashed the cheque without first communicating to the General Manager that it did not agree to the proposal made by him, it must be assumed in terms of Section 8 of the Contract Act to have accepted the proposal by mere acceptance of the cheque. It was held that the fact that it wrote a letter on 29-7-1964 after encashing the cheque, and denying that the amount had fully settled its claim, did not alter the position. If the consignee did not agree to the offer made by the General Manager in his communication dated 5-5-1964, it should have communicated its refusal to accept the offer, before encashing the cheque. Otherwise it would be assumed that the cheque was encashed on the terms offered by the General Manager, and only later the consignee changed its mind after realising the proceeds of the cheque.
11. The judgment of the Gauhati High Court in Assam Bengal Cereals Ltd. Second Appeal No. 77 of 1982 of 11-3-1991 proceeded on a different set of facts. In that case the consignee/claimant had received an offer from the Railways to accept the cheque in full and final settlement of its claim. In response thereto, by letter addressed to the Railways, it informed the Railways that the cheque had been retained and the Railways should give reasons for withholding the balance amount. It was stated in the letter that if no reply was received within 15 days, the acceptance of the cheque would not amount to full and final settlement. In fact, the cheque was not encashed for 15 days after issuance of the letter by the claimant/consignee. In these facts it was held that the principle laid down in Rameshwarlall Bhagchand case AIR 1973 Gau 111 was not applicable to the case since the claimant had responded to the offer of the Railways demanding from them the reasons as to why the entire claim was not admitted, and further provided that unless reasons are assigned within 15 days from the receipt of the letter, the retention of the cheque would not be treated as acceptance of the payment in full and final settlement. In the peculiar facts of the case, therefore, it was held that the encashment of the cheque did not amount to acceptance of the offer made by the Railways.
12. In the impugned judgment and order, the Division Bench of the High Court has agreed with the view in Rameshwarlall Bhagchand case AIR 1973 Gau 111.
13. We may refer to the other decisions cited at the Bar.
14. In Amar Nath Chand Prakash v. Bharat Heavy Electricals Ltd. AIR 1972 All 176, 1972 All LJ 22 the facts were that the respondent gave a contract to the appellant for doing certain construction work which was completed by the first week of March, 1965. The appellant Company prepared a final bill of the work done on 29-3-1965. The appellant signed a no-claim declaration and also gave a receipt in token of accepting the amount found due to the appellant. The appellant thereafter raised a dispute alleging short payment, etc. It invoked the arbitration clause and called upon the respondent to appoint an arbitrator. When the respondent did not respond to the notice issued by the appellant, an application under Section 20 of the Arbitration Act was filed by the appellant. The respondent contested the application contending that the appellant having given a no-claim certificate in final settlement of its claim and having accepted the payment by means of a cheque in full and final settlement of its dues, it amounted to discharge of the contract along with which the arbitration agreement also stood extinguished and, therefore, there was no dispute capable of being referred to arbitration. The High Court considered the material on record and found that though the declaration was signed by the appellant, as also the memorandum of payment, in the final bill there was an endorsement to the effect that the appellant had accepted the payment under protest. This was done on 29-3-1965 whereas the cheque was actually prepared and delivered much later on 14-12-1965. In the absence of any oral evidence, the High Court was required to construe the document in order to ascertain the intention of the contractor in making such an endorsement and of the Company in permitting such an endorsement to be made. In the facts of the case the High Court observed that the endorsement dispelled any intention to remit the performance in regard to the balance of the claim. On the contrary, it clearly evinced that the receipt of the amount was not unconditional so as to effect the discharge of the contract. On the contrary, it safeguarded the position of the contractor and indicated that he was not accepting the payment without any reservation. The appellant specifically stated that he was receiving the money “under protest” which clearly amounted to making a reservation. The reservation could only be that the acceptance of payment was not in discharge of the contract. Consequently, it could not be said that the appellant dispensed with, or remitted the performance of the contract, for the rest of his dues. Reliance was placed on the principle enunciated in Day v. McLea (1889) 22 QBD 610 in which it was observed:
“If a person sends a sum of money on the terms that it is to be taken, if at all, in satisfaction of a larger claim: and if the money is kept it is a question of fact as to the terms upon which it is so kept. Accord and satisfaction imply an agreement to take the money in satisfaction of the claim in respect of which it is sent. If the accord is a question of agreement, there must be either two minds agreeing or one of the two persons acting in such a way as to induce the other to think that the money is taken in satisfaction of the claim, and to cause him to act upon that view. In either case it is a question of fact.”
15. Applying this principle it was held that there was no accord and satisfaction in the sense of bilateral consensus of intention. The appellant made it clear that it was accepting the money “under protest”, that is, conditionally. Under the circumstances it cannot be said that signing the no-claim certificate and the grant of the receipt amounted to discharge of the contract.
16. In Union of India v. Gangaram Bhagwandas AIR 1977 MP 215, 1977 MPLJ 318 the respondent had filed a suit on 6-1-1970 claiming by way of damages a sum of Rs 504.58p on account of goods being damaged due to negligence and misconduct on the part of the Railways and its employees. While the suit was pending a cheque for Rs 283.05 was sent under cover of a letter dated 6-3-1970 which stated that the amount was being sent in full and final settlement of the claim. The respondent encashed the cheque. The High Court on facts found that there was no denying the fact that the plaintiff did not accept the cheque in full satisfaction. It had not passed a receipt in full satisfaction, nor did it send a receipt to the Railways acknowledging receipt of the amount. On the contrary, even after receiving the cheque the respondent prosecuted the suit for the balance of the amount. The Railway had led no evidence to show that the intention of the plaintiff was to accept the cheque in full and final settlement of its claim. On this finding, relying upon the principle laid down in Day v. McLea (1889) 22 QBD 610 it was held that: (AIR p. 216, para 6)
“6. The question was thus primarily one of fact and since the defendant did not choose to lead any evidence on the point nor are there such circumstances brought on the record to lead to the conclusion that the cheque was accepted in discharge of the whole debt, I am unable to come to the conclusion that the acceptance of the cheque amounted to satisfaction of the whole claim.”
17. The decision of this Court in Kapur Chand Godha v. Mir Nawab Himayatalikhan Azamjah (1963) 2 SCR 168, AIR 1963 SC 250 may not be of much assistance as in that case apart from the fact that the appeal was decided with reference to Section 63 of the Contract Act, there was clear evidence on record that the plaintiffs therein had received the sum of Rs 20 lakhs in full satisfaction of their claim and duly discharged the promissory notes by endorsement of “full satisfaction” and received payment in full.
18. Section 8 of the Contract Act provides for acceptance by performing conditions of a proposal. In the instant case, the Railways made an offer to the appellant laying down the condition that if the offer was not acceptable the cheque should be returned forthwith, failing which it would be deemed that the appellant accepted the offer in full and final satisfaction of its claim. This was further clarified by providing that the retention of the cheque and/or encashment thereof will automatically amount to satisfaction in full and final settlement of the claim. Thus, if the appellant accepted the cheques and encashed them without anything more, it would amount to an acceptance of the offer made in the letters of the Railways dated 7-4-1993. The offer prescribed the mode of acceptance, and by conduct the appellant must be held to have accepted the offer and, therefore, could not make a claim later. However, if the appellant had not encashed the cheques and protested to the Railways calling upon them to pay the balance amount, and expressed its inability to accept the cheques remitted to it, the controversy would have acquired a different complexion. In that event, in view of the express non-acceptance of the offer, the appellant could not be presumed to have accepted the offer. What, however, is significant is that the protest and non-acceptance must be conveyed before the cheques are encashed. If the cheques are encashed without protest, then it must be held that the offer stood unequivocally accepted. An “offeree” cannot be permitted to change his mind after the unequivocal acceptance of the offer.
19. It is well settled that an offer may be accepted by conduct. But conduct would only amount to acceptance if it is clear that the offeree did the act with the intention (actual or apparent) of accepting the offer. The decisions which we have noticed above also proceed on this principle. Each case must rest on its own facts. The courts must examine the evidence to find out whether in the facts and circumstances of the case the conduct of the “offeree” was such as amounted to an unequivocal acceptance of the offer made. If the facts of the case disclose that there was no reservation in signifying acceptance by conduct, it must follow that the offer has been accepted by conduct. On the other hand, if the evidence discloses that the “offeree” had reservation in accepting the offer, his conduct may not amount to acceptance of the offer in terms of Section 8 of the Contract Act.
20. Coming to the facts of this case if the appellant, before encashing the cheques, had sent the communication dated 20-8-1993, it could perhaps be argued that by retaining but not encashing the cheques, it did not intend to accept the offer made in the letter of the Railways dated 7-4-1993. At the same time if the evidence disclosed that it encashed the cheques and later sent a protest, it must be held that it had accepted the offer unconditionally by conveying its acceptance by the mode prescribed, namely—by retaining and encashing the cheques, without reservation. Its subsequent change of mind and consequent protest did not matter.
21. In the instant case there is neither pleadings nor evidence on record as to the date on which the cheques were received and the date on which the same were sent for encashment. It is, therefore, not possible to record a categoric finding as to whether the letters of protest were written after encashing the cheques or before encashing the cheques. It was for the appellant to plead and prove that it had not accepted the offer and had called upon the Railways to pay the balance amount. This it must have done before encashing the cheques. If the appellant encashed the cheques and then wrote letters of protest to the Railways, it cannot be held that it had not accepted the offer by conduct, because at the time when it sent the cheques for encashment, it had not conveyed its protest to the offerer. In the absence of any pleading or evidence to establish that the encashment of the cheques was subsequent to the protest letters by the appellant, it is not possible to hold that by encashing the cheques the appellant had not adopted the mode of acceptance prescribed in the letters of the Railways dated 7-4-1993. In the absence of such evidence it must be held that by encashing the cheques received from the Railways, the appellant accepted the offer by adopting the mode of acceptance prescribed in the offer of the Railways.
22. In this view of the matter these appeals must fail. Accordingly, these appeals are dismissed, but without any order as to costs.