SUPERINTENDING ENGINEER SURULIYAR HYDRO ELECTRIC PROJECT MADURAI Vs. GREEN LANDS NEW INDIA CONSTRUCTION COMPANY

JUDGEMENT

(1.) SRINIVASAN, J. Defendants 1 to 4 have preferred this appeal against the judgment and decree in O. S. No. 228 of 1981 on the file of the Subordinate Judge's Court , periyakulam. The parties will be referred to hereinafter in accordance with their rank in the suit.

(2.) THE first plaintiff is a partnership firm carrying on business in engineering jobs and construction works. THE second plaintiff is the managing partner thereof. THE plaintiffs entered into an agreement with the first defendant on 9. 2. 1974 for the execution of Suruliyar Hydro Electric Project highways Dam excavation for foundation from Chainage 55 Metres to end of Dam, i. e. , Chainage 165 metres upto the top of Highways Dam in Suruliyar Upper Cam-Specification No. SMH. 37 Tender dated 17. 8. 1973. THE plaintiffs took over the site on 9. 2. 1974 and started excavation work. THE agreement was engrossed on stamp paper and signed by the parties on 15. 11. 1974, which is marked as Ex. B-1. THE plaintiffs commenced the masonry work on 1. 7. 1976. Since then the excavation as well as masonry work were simultaneously carried out. According to the plaintiffs the work was completed by the end of the year 1978 and the last payment made by defendants 1 to 4 was on 9. 4. 1980.

(3.) THERE is no merit in any of the contentions of learned counsel for defendants 1 to 4. As regards the first contention we must observe even at the outset that the defendants have failed to produce the best evidence before the Court. In Sardar Gurbaksh Singh v. Gurdial Singh, 53 M. L. J. 392, the privy Council has held that ' ' it is the bounden duty of a party, personally knowing the whole circumstances of the case, to give evidence on his own behalf and to submit to cross-examination. His non-appearance as a witness would be the strongest possible circumstance going to discredit the truth of his case. ' ' The plaintiffs have come to Court with a specific case that the second defendant assured them that additional cost involved by transporting sand from newly approved quarries will be calculated and paid to them. The second plaintiff has deposed as P. W. 1 in support of the averments made in the plaint. In chief-examination he has stated that when the defendants directed the plaintiffs to collect sand from quarries in Vaigai river, Govindanagaram, Lakshmipuram and Ambasamudram, he protested on the ground that the distance between the Dam site and the quarries would be much more and the expenses would be more. He has stated expressly that he mentioned the same to the second defendant and the latter agreed to pay the additional cost. He has also stated that the same is found in the instructions given to the Assistant Engineers in Ex. A-5, In the said letter dated 19. 12. 1975written by the second defendant to the first plaintiff it is seen that the following instructions are given to the Assistant Engineers-I and II for necessary action' ' ' The extra lead involved over and above the specific lead in the tenders may be reported and the consequent additional cost of masonry to all the contractors may be reported. ' ' It should be noted that copies of Ex. A-5 were marked also to the first defendant and the Executive Engineer of Erovangalur for the purpose of issuing similar notices to the masonry and turnal contractors of his division. P. W. 1 has also stated that because the second defendant told him personally he collected sand from Boothipuram. In the cross examination P. W. 1 has reiterated the same version and added that even before Ex. A-5 letter was given to him he objected orally to collect sand from a distant place and only thereafter Ex. A-5 was issued. In spite of this categoric evidence by P. W. 1 the second defendant has not been examined on the side of the defendants. The only witness examined by the defendants is an Accountant in the Office of the electricity Board at Madurai. He does not know the material facts. He does not know the distance between various quarry sites and the Dam site. He does not know the rates prescribed for transportation of sand. He does not know anything about G. O. Ms. No. 522, dated 4. 3. 1968, upon which reliance is placed by the plaintiffs. He does not know even the terms of Ex. B-1 agreement between the parties as he deposed that if there is a provision in the agreement for payment of additional cost it shall be paid and if there is no such provision it need not be paid. THERE is no explanation as to why the concerned Executive Engineer has not been examined. Hence, this Court is entitled to draw an adverse inference against the defendants as regards the disputed facts. The evidence of p. W. 1 remains uncontradicted by any acceptable evidence on the side of the defendants.