plaintiff and the successful bidder, the defendant to
pay 4% of the tender amount to the plaintiff would
indirectly enhance the cost of goods to be supplied
to the extent of 4%. It would really escalate the
amount to be paid under the tender and would be
injurious to the State Government or the authority
under the State Government, the Kerala Water
Authority. Hence, if the case advanced by the
plaintiff is accepted for getting 4% of the tender
amount by way of commission, it would amount to
perpetuating an illegality and would fall under the
mischief of Section 23 of the Contract Act. This has
to be distinguished from a genuine agreement between
the parties to bid or with a third person to exchange
or to sub-contract any work or any part thereof under
the tender and it shall not be a prior understanding
or prior agreement, but should be an independent one,
uninfluenced by any prior act before or at the time
of tender or the liability thereunder either to
reduce or to escalate. Bidding of a tender on a
higher rate influenced by any commission to be
payable to a third person or any of the participant
