JUDGMENT Chandrakantha Raj Urs, J. - This is a defendant's appeal directed against the judgment and decree of the First Additional Civil Judge, Bangalore City, in O.S. No. 44 of 1973. In the course of our judgment, we refer to the parties by the rank held by them in the trial court. The undisputed facts giving rise to this appeal may be stated and they are as follows : The plaintiff - State of Mysore invited tenders in Enquiry No. HCEP/SVHEP-70/October, 1964, for supply of Galvanised 220 KV circuit steel towers required for the transmission lines. The defendant submitted its quotation on 31-12-1964. The quotation was approved and order No. PND 49 PSB 66 dated 31-3-1966 was communicated in communication No. 6/10/11/G1/1379-83 dated 16-4-1966. A further order was sent on 24-6-1966. The defendant agreed to supply the towers. In that behalf the parties' entered into a contract on 15-12-1967 (Exhibit P-30). For one or the other reason, as will be narrated hereafter, the defendant was unable to supply the towers. In that circumstance the plaintiff cancelled the order placed. The defendant was put no notice that the required steel towers would be secured from other fabricators and any loss incurred by the State would be on account of the defendant in terms of paragraph 1 of the agreement (Ext. P. 30). The order came to be withdrawn by letter dated 20-9-1969 (Ext. P-16). Thereafter the suit has been filed on 8-2-1973, pleading as follows : That the agreement specified the materials required for the laying of 220 KV Shimoga-Bangalore Double circuit transmission line had to be supplied by the defendant to the plaintiff before 31-7-1968 at the rate of 100 metric tonnes per month. It was further averred in the plaint that time was the essence of the performance of the contract as regards the supply of the materials by the defendant to the plaintiff. It was further stated that the defendant did not supply the material in time and consequently on 22-9-1969, the order L.O. No. 6005 placed with the defendant for supply of the aforesaid 220 K.V. towers was cancelled by the plaintiff. The requirement of the plaintiff was satisfied by indenting 202 steel towers of the agreed specification from another fabricator namely M/s. Kamani Engineering Corporation Ltd. paying a price of Rs. 17,81,319 for the said steel towers. The requirement of the plaintiff was satisfied by indenting 202 steel towers of the agreed specification from another fabricator namely M/s. Kamani Engineering Corporation Ltd. paying a price of Rs. 17,81,319 for the said steel towers. According to the plaint schedule, calculations were made as to the cost payable to the defendant, had it supplied the steel towers as per specification between the agreed dates, namely, 27-9-1967 and 31-7-1968, giving it the benefit of escalation or de-escalation clause contained in the agreement in regard to price. According to that calculation, the defendant would have been paid Rs. 14,97,190 only for 202 steel towers. In that circumstance the plaintiff claimed that the difference in price paid to the Kamani Engineering Corporation Ltd. being Rs. 2,84,329, was liable to be recovered from the defendant as loss sustained in terms of paragraph 1 of the agreement. The plaintiff prayed for a decree in that sum together with current and future interest at 6% per annum from the date of suit till payment. The suit claim was resisted by the defendant. The defendant while not disputing some of the facts stated earlier, nevertheless contended that the starting point of the time schedule for delivery was 15 days from the date of approval by the purchaser, of the tower designs. He therefore contended that the dates specified by the plaintiff for the delivery at the rate of 100 metric tonnes per month between 1967-68 did not make time the essence of the contract. It further alleged that considerable delay was caused after the execution of the agreement (Ext. p. 30) on account of the instructions of the plaintiff to follow the designs of M/s. Pylons (P.) Ltd. M/s. Government Electric Factory and others. Therefore the defendant contended that it was only in July, 1967, the approved designs were sent to M/s. Pylons (P.) Ltd. It further stated that as per letter dated 23-7-1969, written by the Executive Engineer, certain materials required for manufacturing the towers by the defendant, would be supplied by the department on payment and that the defendant paid the amount and procured the material. This essentially was for securing zinc in large quantities, for which plaintiff enabled the defendant to secure the necessary import license. This essentially was for securing zinc in large quantities, for which plaintiff enabled the defendant to secure the necessary import license. It is alleged by the defendant that the manufacture of prototype tower and its testing in accordance with the terms of the agreement was done only late in the year 1968 at the Mettur Dam site in or about November, 1968 and therefore the question of going into the production and supply did not arise till the plaintiff gave the approval of the prototype tower. In any event the approval was given in the early part of the year 1969; but unfortunately, the defendant could not fulfill the order for a number of reasons, the main reason being non-availability of steel from it ? Suppliers, In the meanwhile the plaintiff having pressed for the delivery to commence, invited the representative of the defendant - Company for a talk in the Chambers of the Chief Engineer. At the meeting, on 22-8-1969 the defendant Company requested that the agreement may be cancelled as it was unable to produce and supply the steel towers for which it had contracted. It is as a result of that representation and subsequent correspondence (to which we will refer to a little later) the order came to be cancelled as already stated. Defendant in para 16 of the written statement clearly stated that having regard to cl. (17) of the agreement (Ext. P-30), the price that was paid to Kumani Engineering Corporation Ltd., at a given point of time for the supply of steel towers which commenced in or about December, 1969, (as evidenced by Ext. p-29 series) would be the price that would have been paid had the defendant - Company itself produced the steel towers and supplied the same to the plaintiff and therefore there was no occasion for the difference of price as claimed by the plaintiff. In that circumstance it prayed that the suit may be dismissed with costs. On these pleadings, as many as 7 issues were framed, by the trial court. They are as follows; 1. Whether the plaintiff proves that time was the essence of the contract entered into with the defendant ? 2. Whether the plaintiff proves that there has been a breach of the contract by the defendant ? 3. Whether the plaintiff is entitled to recover the extra cost of Rs. They are as follows; 1. Whether the plaintiff proves that time was the essence of the contract entered into with the defendant ? 2. Whether the plaintiff proves that there has been a breach of the contract by the defendant ? 3. Whether the plaintiff is entitled to recover the extra cost of Rs. 2,84,329 by way of damages from the defendant ? 4. Whether the suit by the present plaintiff is not maintainable for reasons detailed in para2 of the written statement ? 5. Whether the plaint schedule became applicable to the defendant only after the final bill of materials was approved ? 6. Whether the defendant is not liable for the extra cost paid towards the price of towers by issue of cl. 17 of the agreement ? 7. Whether the delay was due to the H.E.C.P. and M/s. Government Electric Factory and hence there is no cause of action against the defendant ? Before considering the arguments advanced on behalf of the defendant in this Court, it would be useful to state at this stage that though the agreement (Exhibit P-30) was entered into be the State of Mysore in the name of Governor, some time after the agreement was cancelled, the Hydro Electric Construction Project (HECP) Department was practically wound up and the entire project was transferred to the Mysore Power Corporation (Now Karnataka Power Corporation). It is in that circumstance that at the time of the filing of the suit, the State of Mysore was required to be represented by the Chief Engineer, Water Resources Development Organization in Bangalore. Mr. S. Nanjundaswamy appearing for the defendant - appellant strenuously urged before us that the suit as brought was not maintainable as the State could not be represented by the Chief Engineer, Water Resources Development Organization. We notice that argument only to reject the same having satisfied ourselves that in accordance with the requirement of O. 27 read with s. 79 CPC, due authorisation has been made to enable the Chief Engineer to represent the State and the Deputy Chief Engineer to sign and verify the plaint. Therefore that contention has to be rejected and the finding recorded by the trial Court on issue No. 4 above must be sustained. Therefore that contention has to be rejected and the finding recorded by the trial Court on issue No. 4 above must be sustained. After having answered the question of maintainability as above we are of the view, having regard to the pleadings and the manner of leading evidence and the contents of the evidence the following questions fall for our determination. They are : (1) Whether with the cancellation of the order of 1966 Exhibit P-16 the suit agreement could independently survive, and if not, whether Section 62 of the Contract is attracted ? (2) Whether the procedure followed by the Trial Court was proper in the facts and circumstances of the case ? (3) Whether the quantification of the damages without and evidence may be sustained by this Court ? Mr. Nanjundaswamy, learned counsel for the appellant, has contended in this court that the suit agreement at Exhibit P-30 was not an independent contract. But the result of the offer and acceptance of the tender as evidenced by Exhibit P-3 the letter of 16-4-1966, by which the tender in response to the enquiry was accepted by the plaintiff and the order placed for supply of the steel towers. If that, order itself was cancelled by the agreement of parties, the contract that was entered pursuant to the placing of the order should also must be deemed to have come to an end by agreement of parties. No doubt the proposition appears attractive as it cannot be disputed that Exhibit P-30 executed in December, 1967 was pursuant to Exhibit P-3, the order placed. The order at Exhibit P-3, itself stipulates certain conditions and may be treated in itself as a contract. But cl. (3) of the letter of intent at Exhibit p-3 provided for the execution of an agreement. It is only pursuant to that clause, Exhibit P-30 was executed. About that, there cannot be any dispute. Equally, a perusal of Exhibit P-16, the letter addressed by the Chief Engineer to the defendant company, the cancellation of the order took place on account of the admitted inability of the defendant - company to supply the steel towers for want of raw material viz., steel. Therefore, the agreement of parties to cancel is evidenced. Equally, a perusal of Exhibit P-16, the letter addressed by the Chief Engineer to the defendant company, the cancellation of the order took place on account of the admitted inability of the defendant - company to supply the steel towers for want of raw material viz., steel. Therefore, the agreement of parties to cancel is evidenced. If that is so, then it is possible to hold that Section 62 of the Contract Act, comes into operation, Section 62 of the Contract is as follows : "62. If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed." The facts of the case tend to attract the later portion of Section 62, i.e., case of rescinding from the contract. If such rescission is established then it is possible to hold that the defendant was not obliged to perform the contract. But we do not intend to hold as such, because there was no specific plea in that behalf in the written statement nor there was any issue raised by the trial Court. In the view, we are going to take in respect of the other questions, which are required to be answered by us we do not propose to state anything more than what we have stated above, in regard to this contention advanced for the defendant - company. In regard to the procedure followed by the trial Court, to which apparently parties acceded to, we are constrained to remark the trial Court as well as the parties were callous and indifferent in regard to the funds of the exchequer involved as is apparent from the order sheet maintained by the trial Court. Documents are marked in both Exhibit-P series and in Exhibit D series by consent and with contents as proved. The order sheet dated 3-8-1974 reads as follows : "By consent the documents are marked as follows. Exhibit P-1 to P-30 are marked as Exhibits for plaintiff as proved documents. Exhibit D-1 to D-20 are marked as Exhibits for defendant as proved documents. Further evidence by 7.9." No oral evidence was adduced for the plaintiff. On behalf of the defendant the Chief Engineer, who terminated the contract or issue the cancellation of the original order passed is examined as DW.1 and the managing Director of defendant company as DW.2. Exhibit D-1 to D-20 are marked as Exhibits for defendant as proved documents. Further evidence by 7.9." No oral evidence was adduced for the plaintiff. On behalf of the defendant the Chief Engineer, who terminated the contract or issue the cancellation of the original order passed is examined as DW.1 and the managing Director of defendant company as DW.2. We feel that the procedure followed in marking the documents as proved neither conforms strictly to the provisions contained in O. 13, r. 2 CPC nor does it satisfy the requirements of s. 58 of the Evidence Act. No doubt the learned II Addl. Government Pleader Mr. Sabhahit, has drawn our attention to a ruling of the Division Bench of this Court in the case of A. Rahiman v. N. Wabber. (1973 (1) Karnataka Law Journal 376) That was an appeal against the order of the Motor Accidents Claims Tribunal. It was contended by the appellant therein that two documents had been admitted in evidence on the basis of the concession made by the counsel on both the sides and such concession would hold good to the extent of showing an observation. Yadast and hand-sketch had been prepared. It was therefore stressed that the contents of those documents could not be held to have been proved correct and reliance placed on the contents of those documents would vitiate the findings. This Court did not agree with that contention. It held that the award passed by the Tribunal and the records showed that the counsel representing the appellants before the Tribunal admitted these documents and conceded that they may be admitted in evidence and marked as Exhibits in the case. Therefore, in the light of the statement made by the learned counsel for the appellants before the Tribunal, it had to be held that the contents of the documents were admitted to be correct and it should be treated as evidence in the case. It may be, on the facts of that case, the view taken by this Court would be correct, but as a general proposition of law we are hesitant to subscribe to that view. Similar is the view, expressed by the High Court of Calcutta in the case of Lioniel Edwards Ltd. v. State. (A.I.R. 1967 Calcutta 191) That was a case of suit for negligence. Similar is the view, expressed by the High Court of Calcutta in the case of Lioniel Edwards Ltd. v. State. (A.I.R. 1967 Calcutta 191) That was a case of suit for negligence. The Division Bench of the Calcutta High Court, had occasion to observe as follows : "With reference to O. 12, rule 1 CPC and sections 58 of the Evidence Act, the documents are either proved by witnesses or marked on admission. When it is marked on admission without reservation the contents are not only evidence, but are taken as admitted, the result being the contents cannot be challenged either by way of cross-examination or otherwise. In respect of documents marked on admission dispensing with formal proof the contents are evidence, although the party admitting does not thereby accept the truth of the contents and is free to challenge the contents by way of cross-examination of otherwise." Certainly the effect of the ruling is more in conformity with the language of Section 58 of the Evidence Act. In the instant case, except the order-sheet maintained by the trial Court, there is no other document forming part of the Court records, which evidences the concession made by the learned counsel against each other for marking these documents. Section 58 of the Evidence Act clearly provides that no fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which before the hearing they agree to admit in writing to be their evidence, or which by any rule of pleadings in force at the time they are deemed to have admitted by their pleadings. The writing evidencing the admission by parties referred to in the section is totally wanting in this case Therefore, it was necessary for the plaintiff to prove certain facts which could not be taken for granted as proof as recorded by the trial Court below. Therefore, whatever may be the ultimate consequence, non-examination of any witness for the plaintiff who was familiar with the facts of the case and could speak to the events, the loss occurred, we must observe so, is due to failure to perform the minimum obligation to assist the Court in coming to the right conclusion and an aspect which can not go unnoticed by this court. We put the blame as much on the parties as on the court. We put the blame as much on the parties as on the court. The court could have directed oral evidence by the plaintiff. It could not have by itself got the documents marked in the manner to which we have already adverted to. We do not propose to say more than this about this aspect of the case. It is not uncommon that public exchequer suffers due to the folly of its own officers. Most of the facts are undisputed. Therefore, the procedure followed in recording evidence may to some extent be condoned. In the pleadings what has been stated by the plaintiff is that, the time was the essence of contract and the supply was to be effected by the defendant company between 27-9-1967 and 31-7-1968. That was supported by Exhibit-B to the plaint which is work-sheet demonstrating what the department would have paid against delivery of the steel towers had they been delivered between those two dates having regard to the price, escalation of the materials required for fabricating the towers together with the sales-tax. The same work-out stated the corresponding amount paid to Kamani Engineering (Industrial) Corporation Ltd., from whom the steel towers were secured subsequent to the cancellation of the order in favour of the defendant in September, 1969. The difference has been claimed as the loss occasioned to the department, which was to be decreed as damages. There is no other basis for the claim. We are satisfied that time was the essence of the contract but not as pleaded by the plaintiff, though we cannot say that the time was not the essence of the contract having regard to the purpose of the contract read as a whole. The correspondence which have been marked in the Exhibit 'D' series as well as in the Exhibit 'P' series indicates several reasons for the prototype steel tower itself to be tested and approved some time in November, 1968 and communication of that approval made only in February, 1969. Therefore the dates 27-9-1967 and 31-7-1968 have no bearing to determine the period of time which was essential to the contract. If at all production would have been commenced by the defendant only after receipt of the communication at Exhibit P-12, the approval given to the prototype. Therefore the dates 27-9-1967 and 31-7-1968 have no bearing to determine the period of time which was essential to the contract. If at all production would have been commenced by the defendant only after receipt of the communication at Exhibit P-12, the approval given to the prototype. It is, in that circumstance, reasonable for this Court to conclude that the plaintiff was not particular about the earlier dates mentioned in the acceptance of the tender. There is other correspondence as per Exhibits D-6, D-7, D-8 and D-9 which clearly indicates that the plaintiff did not seriously stress the delay in regard to supply of the fabricated towers after the prototype had been approved. It was only when the defendant expressed its inability to supply the towers and requested for cancellation, that cancellation took place in the month of September, 1969. Therefore, though the time was the essence of contract in the general sense of such contracts the period cannot be confined to the dates mentioned in the plaint viz., 1967 and 1968. Viewed thus the quantification of the loss as per Exhibit-B, to the plaint proceeded on the false basis that the price that was required to be paid to the defendant was the price based on the costing that prevailed in 67-68 which is the basis for the work out at Exhibit-B to the plaint. On the other hand, the series of the bills accepted as Exhibit P-29 series indicate that Kamani Industrial Corporation Limited was paid for the supplies effected from December, 1969 onwards on the basis of the rates prevalent in 1969 for the raw material. It is in the light of this undisputed fact that Mr. Nanjundaswamy drew the attention of the Court to Paragraph-16 of the written statement, wherein the defendant had taken a specific stand that if the steel structures fabricated had been delivered in or about the end of 1969 by the defendant, the plaintiff would be required to settle those bills at the same rates as was given to Kamani Engineering Corporation, and, therefore, there was no loss occasioned to the State. That assertion we find is true. That assertion we find is true. The relevant pleadings are as follows : "Hence, the theory that there was a price variation between the cost of tower that would have been supplied by the defendant and the price of the towers supplied by M/s. Kamani Engineering Corporation (P.) Ltd., is not correct. The department has not incurred any extra cost for procuring the towers from M/s. Kamani Engineering Corporation and hence there is no cause of action for the suit as stated in para 5 of the plaint." Unfortunately, this denial has gone totally unnoticed by the trial court. Strangely enough, we find from the concluding part of the order that the trial court accepted the quantification of the plaintiff in the following, terms : "The schedule is not challenged by the defendant and it is admitted' to be correct. From the foregoing it is seen that defendant has committed breach of the terms of the agreement and therefore, he is liable to pay the amount claimed in this suit." Though we have not stated anything finally about the position in law in regard to proof of contents of the documents marked by consent, it would be useful to refer to the dictate of the Supreme Court in this regard in the case of S.T. Khirnchand v. Satham, ( AIR 1971 S.C. 1865 ) wherein it is ruled thus : "The plaintiffs wanted to rely on Exhibit A-12 and A-13 the day book and the ledger respectively. Plaintiffs did not prove these books. There is no reference to these books in the judgments. The mere marking an exhibit does not dispense with the proof of documents." It is binding on us in terms of art. 141 of the Constitution. We are satisfied that despite the specific denial in written statement, the trial court has taken that it is admitted and that the plaint schedule was not challenged. Reference to the schedule is reference to Exhibit - B to the plaint That was not required to be specifically challenged in the light of what the defendant stated in paragraph 16 of the written statement. There was nothing to challenge as we shall demonstrate presently. While so many documents were marked by the plaintiff by consent, Exhibits A and B, to the plaint were not marked and therefore could not have been material which can be treated as evidenced. There was nothing to challenge as we shall demonstrate presently. While so many documents were marked by the plaintiff by consent, Exhibits A and B, to the plaint were not marked and therefore could not have been material which can be treated as evidenced. In the absence of that evidence there was no basis for the court to come to the conclusion that there was admission in regard to quantification of the claim of loss. If only it was in evidence, then the defendant could have challenged the same in the cross-examination if there was parole evidence supporting contents of Exhibit - B to the plaint. In the absence of that evidence which was crucial and key evidence for the plaintiff the court could not have decreed the suit. For the reasons we have given above, we are satisfied that the court was totally in error in decreeing the suit. The appeal is liable to be allowed and it is allowed. Judgment and decree of the trial court are set aside. The suit is dismissed with costs in favour of defendant. Parties will bear their respective costs of this appeal. Appeal allowed.