Judgment DESHMUKH D.K., J.: - The plaintiff is a Private Limited Company incorporated under the Companies Act, 1956. The business of the plaintiffs is of construction contractors. The defendant is a company incorporated under the Companies Act. It is a Government of India enterprise and carries on business as Insurers. The plaintiffs have filed this suit for a money decree in the amount of Rs. 12,44,17,147.40 with interest. 2. The facts as disclosed in the plaint are that a contract was entered into between the Socialist Peoples Libyan Areb Jamshiriyah (Secretarist of Agarrian Reclamation and Land Reconstruction) and M/s. Kathmann A.G. Ltd. of Switzerland (for brevity's sake, hereinafter referred to as 'Kathmann') for construction of poultry farms in 42 sites in the State of Libya. The plaintiffs desired to participate in the said contract as sub-contractors of Kathmann. At the relevant time the Reserve Bank of India had set up a Working Group for consideration of proposal for single window clearance. The plaintiffs submitted their proposal to the Working Group consisting of representatives of the RBI, IDBI, the defendants and other banks. The plaintiffs proposal was approved by the Working Group on 22nd September, 1980. The plaintiffs entered into the contract in writing with Kathmann on 9th December, 1980. By that contract, the plaintiffs took over all the liabilities and responsibilities of Kathmann under the contract dated 7th September, 1980 between the Kathmann and the State of Libya in so far as the transport from Central Stores in Libya, Civil Works and Erection works were concerned. The total value of the plaintiffs' contract with Kathmann was Rs. 30,22,35,480/-. According to the plaintiffs, the work of the contract was to commence on 4th March, 1981 and the estimated date of the completion of the work was 4th November, 1982. According to the plaintiffs, in or about June, 1981, the plaintiffs requested the defendants to send them a proposal for policy of insurance covering the said Contract. The defendants forwarded to the plaintiffs a form for issuance of 'Construction work policy'. The plaintiffs submitted the form to the defendants duly filed in. By letter dated 19th August, 1981, the defendants made an offer to insure the plaintiffs against 85% of the amount of any loss that may be sustained by them under the said Contract. They requested the plaintiffs to pay the stipulated premium. The plaintiffs submitted the form to the defendants duly filed in. By letter dated 19th August, 1981, the defendants made an offer to insure the plaintiffs against 85% of the amount of any loss that may be sustained by them under the said Contract. They requested the plaintiffs to pay the stipulated premium. According to the plaintiffs, the plaintiffs accepted the proposal and paid the premium. The date of payment of premium was 29th March, 1982 and the insurance policy was issued by the defendants to the plaintiffs on 12th April, 1982. The Insurance Policy was to indemnify the plaintiffs against the failure of the Kathmann to pay any sum due to the plaintiffs under the contract between Kathmann and plaintiffs. According to the plaintiffs, the plaintiffs proceeded with the work. The said Kathmann, between November, 1981 to May, 1982, paid aggregate amount of Libyan Dinars 1,119,929 out of Libyan Dinars 4,457,206, which was due and payable, but failed and neglected to make payment of the balance amount. According to the plaintiffs, they submitted to the said Kathmann on 4th July, 1982 a detailed statement showing Erection and Civil Works done by them and payments due. As per that statement, balance amount was Libyan Dinars 3,337,277. According to the plaintiffs, the said Kathmann who had received the full payment from the Libyan Government refused to make the payment and terminated the contract by giving false reasons by letter dated 21st July, 1982. It is further submitted by the plaintiffs that the said Kathmann also invoked the bank guarantee of about Rs. 4.14 crores furnished by the Indian Overseas Bank at the instance of the plaintiffs. According to the plaintiffs, thereafter the plaintiffs entered into negotiations with the said Kathmann for arriving at an amicable settlement, but no amicable settlement was arrived at. Ultimately, on 6th October, 1987 the plaintiffs filed an action in the Civil Court at Tripoli against Kathmann. The Court at tripoli, on the application filed by the plaintiffs, directed the "National Centre for Research and Judicial Evaluation" to depute a team of experts to visit the sites and assess and evaluate the works done by the plaintiffs. Accordingly, the experts, after evaluating the work done by the plaintiffs, submitted a report. According to that report, an amount of Libyan Dinars 4,568,575.703 was payable by Kathmann to the plaintiffs under the contract. Accordingly, the experts, after evaluating the work done by the plaintiffs, submitted a report. According to that report, an amount of Libyan Dinars 4,568,575.703 was payable by Kathmann to the plaintiffs under the contract. This report was submitted to the "Accounting Experts". The "Accounting Experts" concluded that a sum of Libyan Dinars 3,488,647.703 was payable by Kathmann to the plaintiffs. These reports, according to the plaintiffs, were submitted to the Court at Tripoli for consideration. The Court at Tripoli by judgment and order dated 9th January, 1984 held that the termination of contract by Kathmann was wrongful. It was also held that the plaintiffs had duly performed their obligations under the contract and it was Kathmann who committed breach of the contract. The Court held that an amount of Libyan Dinars 3,44,86,46.703 was payable by Kathmann to the plaintiffs. The Court also directed the Kathmann to pay a further sum of Libyan Dinars 1.5 million being the bank guarantee money wrongfully received by the Kathmann. The plaintiffs, thereafter, requested the defendants to furnish to them their standard claim form, so that the plaintiffs could lodge their claim with the defendants. The plaintiffs, thereafter, submitted their detailed claim to the defendants along with a copy of the judgment of the Libya Court on 21st May, 1984. The plaintiffs claimed an amount of Rs. 18,01,26,979/- which was the claim decreed by the Libyan Court. The plaintiffs claimed from the defendants under the policy an amount of Rs. 15,31,07,932/-. According to the plaintiffs, there was no response from the defendants, therefore, reminders were sent by the plaintiffs to the defendants. Ultimately by letter dated 17th July, 1987 the defendants rejected the claim made by the plaintiffs. The plaintiffs also state that in 1985 the plaintiffs received a sum of Libyan Dinars 146,686,313 by executing the judgment and decree passed by the Libyan Court against the assets and bank accounts of Kathmann in Libya. However, the plaintiffs had spent an amount of Libyan Dinars 152,255 on legal charges and Court fees. According to the plaintiffs, rejection of their claim by the defendants is not legitimate and the grounds given by the defendants for rejecting their claim are untenable and mala fide. However, the plaintiffs had spent an amount of Libyan Dinars 152,255 on legal charges and Court fees. According to the plaintiffs, rejection of their claim by the defendants is not legitimate and the grounds given by the defendants for rejecting their claim are untenable and mala fide. According to the plaintiffs, the amount that they are claiming from the defendants is the amount found due to them from Kathmann by the Libyan Court and therefore, they are entitled to receive the amount with interest. 3. The claim of the plaintiffs is denied by the defendants which have filed their written statement. According to the defendants, the plaintiffs are not entitled to claim any amount under the policy because of its failure and negligence to disclose all material facts affecting risk insured by them at the time of giving of the policy as well as during the operation of the policy. According to the defendants, in the proposal that was submitted by the plaintiffs to the working group, it was stated that they will submit their bill for payment on first date of every month and 90% of the amount of bill would be paid through letters of credit. The proposal of the plaintiffs was cleared by the working group which contained this condition and on the basis of the clearance of the proposal by the working group the defendants agreed to give the policy. But after the clearance of the working group while entering into the contract with Kathmann this condition was changed and as per the changed condition the payment was to be made by Kathmann to the plaintiffs as and when Kathmann received the payment from the Libyan Government. Thus, the payment to be made by Kathmann to the plaintiffs was not guaranteed by any letter of credit. According to the defendants, it was the duty of the plaintiffs while submitting proposal for insurance to the defendants to disclose to the defendants that a drastic change in this regard has been made in the contract entered into with Kathmann, because of the failure of the plaintiffs to make this disclosure the defendants were mislead that the contract entered into by the plaintiffs with Kathmann is in consonance with the proposal that was submitted before the working group and therefore, the insurance policy was given. According to the defendants, it is because of suppression of this material fact that the defendants agreed to give the policy and therefore, the defendants are not liable to make any payment under the policy to the plaintiffs. It is further contended that the liability of the defendants under the policy was conditional upon the terms and conditions mentioned in Clause 4(ii) of the policy being satisfied. It is further submitted that the proposal of the plaintiffs was approved by the working group on 14th October, 1980. Thereafter, the plaintiffs entered into the contract in December, 1980. The plaintiffs started the work in the month of March, 1981. The proposal for insurance was submitted by the plaintiffs to the defendants in July, 1981. Therefore, by July, 1981 the work was already started by the plaintiffs. The defendants by letter dated 26th August, 1981 communicated to the plaintiffs the amounts of premium and requested them to pay the amount of premium. The plaintiffs did not make payment of the amount of premium immediately and ultimately the payment of premium was made on 29th March, 1982. It is submitted on behalf of the defendants that between March, 1981 when the work was started and March, 1982 when the premium was paid the work was going on for nearly a year, and during this year several difficulties cropped up in doing the work. According to the defendants, the plaintiffs were under a duty to place those facts before the defendants before the policy was issued by the defendants. It is submitted that during this period the relationship between the plaintiffs and the Kathmann had deteriorated. As the payment was not being made on time, the sites which were agreed to be made available were not made available. There were acrimonious correspondence between the plaintiffs and the Kathmann. All these facts were directly relevant to the insurer's risk and therefore the plaintiffs was under a duty to disclose this fact to the defendants, but the plaintiffs chose to suppress those facts from the defendants. It is further submitted that according to the contract between the Libyan Government and the Kathmann, the Kathmann was to submit the bills every month and payment was to be received by the Kathmann from Libyan Government every month. It is further submitted that according to the contract between the Libyan Government and the Kathmann, the Kathmann was to submit the bills every month and payment was to be received by the Kathmann from Libyan Government every month. According to the terms in the contract between Kathmann and the plaintiffs, the plaintiffs were to receive the payment from Kathmann immediately after Kathmann was paid by the Libyan Government. During the period from March, 1981 to March, 1982 it had become clear to the plaintiffs that Kathmann is in no position to submit monthly bills and therefore, they can not receive monthly payments. Consequently, therefore, the plaintiffs were also not in a position to receive monthly payments from Kathmann. Submission of monthly bills and receipt of payments promptly every month was one of the essential condition of the contract. This essential condition had undergone a change during the above referred period, still the plaintiffs while paying the premium and before the defendants issued the policy did not disclose these facts to the defendants. It is further alleged that as per the terms of the contract the 47 sites on which work was to be done were to be made available by Kathmann to the plaintiffs in the month of March, 1981 itself. But only a small number of sites could be made available by the Kathmann to the plaintiffs and at those sites also there were several problems faced by the plaintiffs. This fact had a direct bearing on completion of the work, but this fact was also suppressed by the plaintiffs from the defendants. It is further alleged that in so far as the erection work is concerned, as per the contract between the parties, 50% payment was to be made in advance as soon as the erectors are received. But this condition was changed by the plaintiffs and the plaintiffs agreed to receive the payment on weekly basis in stead of advance payment. This fact was also suppressed by the plaintiffs from the defendants. It is further submitted that one of the aspects on which information was sought in the form that was supplied by the defendants to the plaintiffs was the estimated date of completion of the work. This fact was also suppressed by the plaintiffs from the defendants. It is further submitted that one of the aspects on which information was sought in the form that was supplied by the defendants to the plaintiffs was the estimated date of completion of the work. According to the contract between the Libya Government and the Kathmann and the contract between the Kathmann and the plaintiffs, the work was to be completed within a period of 18 months from the date of handing over of the sites. However, according to the information that was disclosed by the plaintiffs to the defendants, the date of commencement of the work was 4th March, 1981 though admittedly on that date a large number of sites out of 47 sites, where the work was to be done, were not made available to the plaintiffs and the estimated date of completion was disclosed as 4th November, 1982 when admittedly as per the contract that was not the estimated date completion, because as per the contract the date of completion would be 18 months from handing over of each site. According to the defendants, therefore, the plaintiffs have disclosed wrong information to the defendants and for these reasons also the plaintiffs are not entitled to claim any amount from the defendants. It is also claimed by the defendants that apart from the contract entered into between the Kathmann and the plaintiffs in relation to which the insurance policy was taken, there were contracts entered into between the plaintiffs and the Kathmann for carrying out certain extract works. When the plaintiffs made its claim before the Libyan Court, the claim also included the amount due to the plaintiffs from the Kathmann for these extra works. The amount in which the decree has been passed by the Libyan Court also includes the amount of extra work. The plaintiffs are claiming from the defendants the same amount which has been decreed by the Libyan Court. It thus means that the plaintiffs are claiming from the defendants also the amount due to them from Kathmann for the extra work done to which admittedly the insurance policy does not relate. According to the defendants, for this reason also the plaintiffs are not entitled to the decree against the defendants. It is further submitted by the defendants that they had offered to the plaintiffs a construction work (political risk) policy. According to the defendants, for this reason also the plaintiffs are not entitled to the decree against the defendants. It is further submitted by the defendants that they had offered to the plaintiffs a construction work (political risk) policy. The premium was also charged by the defendants from the plaintiffs for the construction work (Political Risk) policy. But a clause being Clause No. 1 is included in the policy by mistake which can not be included in the construction work (political risk) policy and therefore the defendants are also claiming rectification of the insurance policy by deletion of that clause. The defendants also submit that thought the plaintiffs have secured a decree from the Libyan Court, the plaintiffs have not disclosed what steps were taken by them for recovery of that amount from Kathmann pursuant to the decree passed by the Libyan Court and as to why the decree could not be executed by the plaintiffs against Kathmann. It is submitted that the policy was given by the defendants on a condition that the plaintiffs would at the date of giving of the policy disclose all facts in any way effecting the risk insured and that the plaintiffs would at all times during operation of the policy promptly disclose all facts which in any way affected the risk insured. According to the defendants, because the plaintiffs have suppressed relevant facts while submitting the proposal as also while paying the premium as also relevant facts that occurred during the working of the contract, the plaintiffs are not entitled to make any claim against the defendants. According to the defendants, in the absence of full and proper disclosure of the relevant and material full and plaintiffs have failed to perform condition precedent to the validity of the policy. The defendants claim that the suit filed by the plaintiffs is liable to be dismissed. 4. On the basis of these pleadings and the documents produced the Court by order dated 27th June, 1996 has framed the following issues : ISSUES: 1. Whether the Contract of Insurance is void or voidable on the grounds of fraud and/or misrepresentation and/or suppression of facts and/or failure to disclose relevant facts as alleged in paragraphs 1(a) to 1(i) of the written statement? 2. Whether the Contract of Insurance is void or voidable on the grounds of fraud and/or misrepresentation and/or suppression of facts and/or failure to disclose relevant facts as alleged in paragraphs 1(a) to 1(i) of the written statement? 2. Whether there was any suppression and/or deliberate failure by the plaintiffs to disclose facts relevant to the risk undertaken by the defendants, before the issuance of the policy, as alleged in paras 2 and 3 of the written statement? 2(A) Whether the contract between the plaintiffs and M/s. Kathmann A.G. was according to the plaintiff's proposal which was approved by the working group on 22nd September, 1980 as alleged in para 5 of the plaint? 2(B) If Issue No. 2(A) is answered in negative, what is its effect on the maintainability of the suit? 2(C) Whether the suit is within time and is not barred by the law of limitation as alleged in para 18 of the plaint? 2(D) Whether there are conditions precedent to the validity of the policy and whether the plaintiffs have not fulfilled the said conditions precedent as alleged in paras 1(ii) and (iii) and 17 of the written statement ? 2(E) Whether there are conditions precedent for enforcing liability under the insurance policy and whether the plaintiffs have not performed such conditions precedent as alleged in para 1(iv) and 17 of the written statement? 2(F) Whether the policy of insurance is liable to and ought to be rectified for the reasons and on the grounds mentioned in para 4-A to 4-I of the written statement ? 3(a) Whether the plaintiffs have allegedly failed to take steps for recovery of the amount from Kathmann as alleged in para 4 of the written statement ? 3(b) If the answer to 3(a) is in the affirmative, whether that disentitles the plaintiffs from making a claim against the defendants as alleged in para 4 of the written statement ? 4(a) Whether the defendants are liable to pay to the plaintiffs the sum of Rs. 7,84,13,604.40 (being 85% of Libyan Dinars 34,48,646.703 equivalent to Rs. 9,22,51,299.30) as stated in paragraph 17 of the plaint ? 4(b) Whether the defendants are liable to pay to the plaintiffs interest on the aforesaid amount at 18% per annum from 21st May, 1984 as stated in paragraph 17 of the plaint ? 5. 7,84,13,604.40 (being 85% of Libyan Dinars 34,48,646.703 equivalent to Rs. 9,22,51,299.30) as stated in paragraph 17 of the plaint ? 4(b) Whether the defendants are liable to pay to the plaintiffs interest on the aforesaid amount at 18% per annum from 21st May, 1984 as stated in paragraph 17 of the plaint ? 5. Whether the plaintiffs received by way of execution of the judgment and decree of Tripoli Court, the amount as alleged in paragraph 13 of the plaint? 6. Whether the plaintiffs have expended by way of legal charges and Court Fees the amount as alleged in paragraph 13 of the plaint? 7. Whether the plaintiffs are entitled to any reliefs and if so, what reliefs? 8. Generally? 5. The plaintiffs, thereafter, have examined Mr. Harpinder Singh Narula as their witness and the defendants have examined Mr. K. Mukundan, Senior Manager and Mr. Raymond Marshell D'Silva, Manager as their witnesses. Both the parties have also produced documents. 6. Perusal of the pleadings and the issues shows that there is no dispute between the parties that the defendants had issued the insurance policy in favour of the plaintiffs in relation to the contract between the plaintiffs and Kathmann. There also does not appear to be any dispute that amounts are due to the plaintiffs from Kathmann under that contract and it is these amounts which according to the plaintiffs are due under the contract from Kathmann which the plaintiffs are claiming from defendants in this suit. Therefore, in this suit, mainly various defences that have been raised by the defendants to claim that no decree can be passed in this suit against it are to be examined. After hearing rival submissions, I find that the defendants deny its liability on the following principal grounds : 1) While submitting the proposal to the defendants, the plaintiffs did not specifically disclose and inform the defendants that while entering into the contract with Kathmann, it had agreed to the term that there will be no letter of credit to guarantee the payment by Kathmann to the plaintiffs. This was a change effected by the plaintiffs. This term was at variance with the term included in the proposal submitted by the plaintiffs to the working group. This was a change effected by the plaintiffs. This term was at variance with the term included in the proposal submitted by the plaintiffs to the working group. 2) After the work under the contract had commenced and before the plaintiffs paid the premium, it was clear to the plaintiffs that Kathmann is in no position to submit monthly bills for payments to the Libyan Government and therefore, it could not get monthly payments and consequently the plaintiffs were also not in a position to receive monthly payments from Kathmann. This position was not disclosed by the plaintiffs to the defendants while the proposal was submitted by the plaintiffs to the defendants as also when the premium was paid by the plaintiffs. The plaintiffs also agreed to defer payments for erectors though as per the contract between the plaintiffs and Kathmann, the plaintiffs were entitled to advance payments. 3) As per the contract between the plaintiffs and Kathmann, all the 42 sites were to be handed over to Kathmann by the Libyan Government in October, 1980 but in fact, only a small number of sites were handed over in March, 1981 and on those sites also, necessary facilities were not available. There were delays in payments. Because of this, the relationship between Kathmann and the plaintiffs had deteriorated, which is evidenced by acrimonious correspondence between the plaintiffs and Kathmann. These facts were not disclosed by the plaintiffs to the defendants though these facts were relevant for the decision of the defendants to accept the risk. 4) One of the aspects on which information was sought by the defendants in the form was the time required for completion of the work. The plaintiffs were to disclose its estimate of the time that will be required. The plaintiffs submitted wrong information in this regard to the defendants. 5) The insurance policy does not cover payments for extra work undertaken by the plaintiffs, but the decree passed by the Libyan Court also includes the amounts due to the plaintiffs from Kathmann for this extra work. The plaintiffs have not specified as to how much amount is due to it on account of extra work and therefore, the plaintiffs are not entitled to the decree. 6) The defendants also claim that a clause in the insurance policy is to be rectified. The plaintiffs have not specified as to how much amount is due to it on account of extra work and therefore, the plaintiffs are not entitled to the decree. 6) The defendants also claim that a clause in the insurance policy is to be rectified. 7) The learned Counsel appearing for defendants submitted that the plaintiffs had submitted its proposal for clearance to the working group. The defendants had its representative on the working group. The plaintiffs had submitted its proposal for the insurance policy to the defendants on the basis of clearance of its proposal by the Working Group. Before the Working Group, it was represented by the plaintiffs that in the contract that it proposes to enter into with Kathmann, the payments due to the plaintiffs from Kathmann would be guaranteed by a letter of credit. However, the contract that was entered into by the plaintiffs with Kathmann did not have the provision for the payments due to the plaintiffs from Kathmann being guarantees by a letter of credit. This was a clear variation from the proposal that was submitted before the working group. According to the defendants therefore, the plaintiffs were under an obligation to specifically inform the defendants while submitting the proposal for insurance that it had effected this change. According to the learned Counsel, the defendants were under a duty to make such a disclosure because the contract of insurance was uberrimaefidae. They proceeded on the basis that every material fact is disclosed and that the nondisclosure of every material fact entitles the other party to the contract to avoid the contract. The learned Counsel also relies on the judgment of Sind High Court in the case of (Shivkumar Radhakrishindas v. North British and Mercantile Insurance Co. Ltd.)1, reported in A.I.R. 1936 Sind 222. On behalf of the plaintiffs, it is contended that the proposal to the working group submitted by the plaintiffs expressly stated that the plaintiffs did not require any insurance policy. The approval granted by the Working Group also does not make any reference to the grant of any insurance policy to the plaintiffs. Taking of insurance became necessary because the defendants insisted on the plaintiffs to do so to get 90% cover through the Indian Overseas Bank for its export performance guarantee. The approval granted by the Working Group also does not make any reference to the grant of any insurance policy to the plaintiffs. Taking of insurance became necessary because the defendants insisted on the plaintiffs to do so to get 90% cover through the Indian Overseas Bank for its export performance guarantee. Thus, the decision of the plaintiffs to take insurance policy was subsequent to the approval of its proposal by the working group. It is further submitted that the plaintiffs submitted its proposal to the defendants after the contract between the plaintiffs and Kathmann was entered into, a copy of that contract was enclosed with the proposal submitted by the plaintiffs to the defendants and in that contract, there was no clause that the payment to be made by Kathmann to the plaintiffs would be guaranteed by a letter of credit. According to the plaintiffs therefore, the plaintiffs cannot be accused of suppressing the change from the defendants. It is submitted that there was no misrepresentation made by the plaintiffs to the defendants in so far as this aspect of the matter is concerned. It is submitted that for the purpose of working out the premium the defendants had referred to the copy of the contract between plaintiffs and Kathmann which was submitted with the proposal. It clearly means that the defendants were aware that the copy of the contract between plaintiffs and Kathmann has been submitted with the proposal and the term in the contract about payment is clearly referred to in the schedule annexed to the insurance policy. According to the plaintiffs therefore, the defendants are not right in submitting that the plaintiffs had suppressed any material fact in this regard. 8. From the rival submissions and the documents available on record, it is clear that when the plaintiffs submitted proposal to the working group for clearance, the plaintiffs had clearly stated that it does not intend to take any insurance policy. In other words, the plaintiffs had clearly indicated to the working group that it is not seeking its clearance for taking out of any insurance policy. In other words, the plaintiffs had clearly indicated to the working group that it is not seeking its clearance for taking out of any insurance policy. The submission that because a witness examined on behalf of the defendants has stated that the officer of the defendants who had attended the meeting of the working group had orally informed him that representative of the plaintiffs stated before the working group that it will need clearance for insurance policy also, in my opinion, cannot be accepted because the correspondence available on record shows that when the Indian Overseas Bank approached the defendants for 90% cover for its export performance guarantee for the benefit of the plaintiffs, the defendants insisted that the plaintiffs will have to take construction works policy from the defendants and it is because of this insistence that the plaintiffs submitted its proposal for the insurance policy. It is further pertinent to note here that the plaintiffs had enclosed with the proposal a copy of the agreement entered into between the plaintiffs and Kathmann. It is clear that therefore, there was no intention on the part of the plaintiffs to suppress the change incorporated in the contract between plaintiffs and Kathmann in relation to guaranteeing of making payment by Kathmann to plaintiffs by a letter of credit. There is no document produced on record which will show that the plaintiffs represented to the defendants that it is submitting proposal for insurance policy pursuant to the clearance given by the working group. In these circumstances therefore, in my opinion, the defence put up by the defendants that there is suppression of material fact by the plaintiffs from the defendants in this regard cannot be accepted. 9. So far as the second defence put up by the defendants is concerned, the learned Counsel appearing for defendants submits that payments by Kathmann to the plaintiffs were to be made immediately after payment was made by the Libyan Government to Kathmann. As per the contract between Kathmann and Libyan Government, payments were to be made under a letter of credit against presentation of monthly statement of civil work. There were difficulties in so far as the submission of bills and statements on monthly basis by Kathmann to the Libyan Government. As per the contract between Kathmann and Libyan Government, payments were to be made under a letter of credit against presentation of monthly statement of civil work. There were difficulties in so far as the submission of bills and statements on monthly basis by Kathmann to the Libyan Government. With the result, though work had commenced in March, 1981, the first invoice was raised on 9th July, 1981, second invoice was raised on 19th December, 1981 and the third invoice was raised on 27th March, 1982, the fourth invoice was raised on 4th July, 1982. It is further submitted that the contract between the plaintiffs and Kathmann was signed on 9th December, 1980. According to the plaintiffs, the work commended on 4th March, 1981. The plaintiffs submitted their revised proposal for insurance, pursuant to which the policy was given, on 1st July, 1981. Thus, the proposal was submitted after about four months of the commencement of the work under the contract. By letter dated 19th August, 1981, the defendants communicated their offer to issue construction works policy to the plaintiffs and also communicated the amount of premium that is required to be paid. The plaintiffs raised its first running bill on 9th July, 1981. Though the premium was communicated by the defendants to the plaintiffs in August, 1981, the amount of premium was paid only on 29th March, 1982. Thus, the amount of premium was paid one year after the commencement of the work. It is submitted that thus by the time the premium was paid, it was absolutely clear to everybody including the plaintiffs that it is not possible for the Kathmann to submit monthly statement and therefore, it cannot hope to receive monthly payments from Libyan Government and therefore, there was no question of the plaintiffs receiving monthly payment from Kathmann because receipt of payment by plaintiffs from Kathmann was dependant on Kathmann receiving payment from Libyan Government. It is submitted that the plaintiffs was under an obligation to disclose to the defendants all material facts which might influence the defendants in accepting the risk. It is submitted that even the witness examined on behalf of the plaintiffs has accepted that the term about payment was material in relation to the acceptance of the risk by the defendants. It is submitted that the plaintiffs was under an obligation to disclose to the defendants all material facts which might influence the defendants in accepting the risk. It is submitted that even the witness examined on behalf of the plaintiffs has accepted that the term about payment was material in relation to the acceptance of the risk by the defendants. Thus, during the course of working of the contract a change had occurred in so far as the term of payment is concerned. This term of payment even according to the witness of the plaintiffs was a relevant and material term. This change had occurred in any case before the plaintiffs paid the amount of premium in the month of March, 1982, however, this change was suppressed by the plaintiffs from the defendants and therefore, this nondisclosure, according to the learned Counsel, vitiates the insurance policy. On behalf of the plaintiffs, it is submitted that the defendants are not entitled to raise this defence firstly because there are no pleadings in the written statement on this aspect of the matter. It is further submitted that the document at Exh. AA shows that payments were received every month regularly since November, 1981. It is further submitted that as per the contract between plaintiffs and Kathmann, the bills were payable only upon receipt of money by Kathmann from Libyan Government. Thus, the due date of the bill was the receipt of money by Kathmann from Libyan Government. The defendants have not established the date on which the Kathmann received payment from Libyan Government. It is further submitted that in fact Kathmann was not receiving money from Libyan Government and therefore, there was no default on the part of Kathmann in making payment to the plaintiffs. It is further submitted that there is no term in the contract between plaintiffs and Kathmann which requires the bills to be submitted at any particular interval or period or monthly as alleged by the defendants. The contract between plaintiffs and Kathmann merely provides that payment shall be made by Kathmann as per its receipt from the Libyan Government. It contains no further term about when bills are to be submitted. Hence as far as the plaintiffs are concerned, it was under no obligation to submit any monthly bills. The contract between plaintiffs and Kathmann merely provides that payment shall be made by Kathmann as per its receipt from the Libyan Government. It contains no further term about when bills are to be submitted. Hence as far as the plaintiffs are concerned, it was under no obligation to submit any monthly bills. Even if the contract between Kathmann and Libyan Government is looked at, the body of it also does not provide any period within which bills have to be raised. The format of letter of credit annexed to that contract, however, says that monthly statement should be submitted. It does not talk of monthly bills either. Corresponding to this and in order to enable Kathmann to submit monthly statement, there is a provision in the contract between plaintiffs and Kathmann that the plaintiffs will submit monthly progress reports. It is further submitted that even assuming that monthly bills were not submitted, it does not in any case affect the risk of the defendants. Not raising of bills does not increase the risk but diminishes it. It is further submitted that even if it is assumed that in this regard there was a change which was not communicated by the plaintiffs to the defendants, it would not have influenced the decision of the defendants to issue the policy. The defendants have not examined any officer who was competent to take the decision to depose that had this change been communicated by the plaintiffs to the defendants, the defendants would have changed its decision. 10. From the rival submissions on this aspect of the matter, it is clear that in so far as the contract between Kathmann and Libyan Government is concerned, the payment to be made by the Libyan Government to Kathmann was guaranteed by a letter of credit. For the purpose of receiving payment under this letter of credit as per the contract between Kathmann and Libyan Government, Kathmann was to submit a monthly statement and on submission of this monthly statement, the money was to be released to Kathmann under a letter of credit. So far as the contract between plaintiffs and Kathmann is concerned, the plaintiffs were entitled to receive payment from Kathmann as soon as Kathmann receives the payment from the Libyan Government. So far as the contract between plaintiffs and Kathmann is concerned, the plaintiffs were entitled to receive payment from Kathmann as soon as Kathmann receives the payment from the Libyan Government. Thus, so far as the defendants are concerned, as per the information disclosed by the plaintiffs to the defendants, Kathmann under the contract would receive payment on submission of monthly statement and Kathmann in its turn would immediately make payment to the plaintiffs. Admittedly, after commencement of the work in the month of March, 1981, Kathmann did not submit monthly statement. As it was the plaintiffs who were carrying on the work and in order to enable Kathmann to submit monthly statements, it was the plaintiffs who were to prepare the monthly statements but there is ample evidence on record which shows that there were several difficulties in preparation of monthly statements and it was not possible to prepare monthly statement inasmuch as the first statement came to be prepared after four months of the commencement of the work. Really speaking, when the plaintiffs submitted proposal for insurance to the defendants in the month of June, 1981, this fact had become clear to the plaintiffs and therefore, it could have been disclosed by the plaintiffs to the defendants while submitting the proposal itself. But in any case, it had become amply clear from the events occurring during the period from March, 1981 when work commenced to March, 1982 when the plaintiffs paid the premium, that it was not possible that the plaintiffs would get monthly payments because monthly statements cannot be submitted by Kathmann for getting payment under the letter of credit. Perusal of the proposal submitted by the plaintiffs to the defendants shows that it contains following clauses : "5. We have made all enquiries relating to or in respect of all matters covered by or arising out of the contract and are not aware of any circumstances relating to the employer or the contract which might adversely influence your acceptance of the risks on which we are hereby requesting insurance and we undertake to carry on our business with the employer with due regard to the conditions of the contract. 8. 8. We hereby declare and certify that the representations made and facts stated by us are true, and that we have not misrepresented or omitted to disclose any material fact which might influence you in not accepting the risks and we agree that such representations and facts shall form the basis of and be deemed to be incorporated in the policy and that the truth of such representations and facts and due performance of each and every undertaking contained herein or in the policy shall be a condition precedent to any liability of the Corporation thereunder and to the endorsement thereof by us." Reading of these two clauses quoted above together shows that firstly the plaintiffs had undertaken to carry on their business with Kathmann with due regard to the conditions of contract. The term about payment is undoubtedly a condition of contract. When this form was submitted in June, 1981, it was clear to the plaintiffs that the term about payment contained in the contract cannot be adhered to and therefore, before giving this undertaking to carry on business with due regard to the conditions of contract, the plaintiffs were under an obligation to disclose to the defendants that there were difficulties experienced by the parties in carrying on business with due regard to the condition of contract regarding payment. It is further to be seen here that the plaintiffs by these clauses had undertaken to disclose to the defendants circumstances and facts which may be material in relation to the risk to be undertaken by the defendants according to the perception of the plaintiffs and it is for this reason that, in my opinion, the defendants rightly rely on the statements made by the witness examined on behalf of the plaintiffs. The witness for the plaintiffs states thus : "Ques.: - According to you what are the facts factors which would affect the risks insured in a contract like the suit contract? Ans.: - They are all given in the policy issued by the defendants and also in the proposal forms and its annexures submitted by us. Ques.: - Therefore do you agree that some of the factors are the buyer (employer), the nature of services/work, country where services/work is to be rendered/executed, duration, terms of payment? Ans.: - They are all given in the policy issued by the defendants and also in the proposal forms and its annexures submitted by us. Ques.: - Therefore do you agree that some of the factors are the buyer (employer), the nature of services/work, country where services/work is to be rendered/executed, duration, terms of payment? Ans.: - Yes." It is thus clear that according to the plaintiffs, the terms of payment were material for deciding whether the defendants would undertake the risk. In my opinion, therefore, it becomes an admitted position that even according to the plaintiffs, a change in the term of payment would be material for the decision of the defendants for accepting the risk. There is a clear change occurring in relation to the term of payment during the working of the contract, which was clear to the plaintiffs in June, 1981, when the proposal was submitted and it was absolutely clear in March, 1982 when the payment of premium was made. In my opinion, therefore, the plaintiffs were under a duty to disclose these facts to the defendants. It is clear that so far as the disclosure of these aspects to the defendants are concerned, the perception of the plaintiffs as to whether what aspects are material is relevant and not of the defendants. There was an undertaking by the plaintiffs to disclose facts and circumstances which according to the perception of the plaintiffs are material and therefore, in my opinion, the plaintiffs are not right in contending that because the defendants have not examined the officer who was competent to decide, it cannot be said that had this change been communicated to the defendants by the plaintiffs, it would not have affected the decision of the defendants for undertaking the risk. 11. On this aspect of the matter, the learned Counsel appearing for defendants further submitted that the plaintiffs wee not paid 50% advance (DM 4.18 million) upon arrival of the erectors as agreed under the contract. The plaintiffs agreed to proceed with the contract in variance of the said condition of advance payment. By referring to the letter dated 21st May, 1984 at Exh. 4, the learned Counsel submitted that the plaintiffs have themselves claimed that this has resulted in deficiency of approximately Rs. 1.36 crores. 12. The plaintiffs agreed to proceed with the contract in variance of the said condition of advance payment. By referring to the letter dated 21st May, 1984 at Exh. 4, the learned Counsel submitted that the plaintiffs have themselves claimed that this has resulted in deficiency of approximately Rs. 1.36 crores. 12. On behalf of the plaintiffs, it is submitted that this argument cannot be allowed to be advanced by the defendants because this is not pleaded, there is also no evidence on record to support this submission. It is submitted that the contract between plaintiffs and Kathmann provides for its own payment terms. In Clause 3 it provides : "50% DM 41.807.138 shall be paid to D.S.L. corresponding to the payments drawn out of the letter of credit for erection and the letter of credit for civil works for the Deutschemark portion." There is no provision in this clause for payment of any advance or payment of any specific amount by any specified date. All that is mentioned is that the payment would be made corresponding to drawing of money out of letter of credit for erection. There is no evidence on record to show as to whether and when any amount was drawn and received by Kathmann out of letter of credit for erection. It is not at all shown that erection advance was received by Kathmann under the letter of credit and if so when. Therefore, the argument that the advance payments were to be received has no basis. Therefore, the submission of variance in terms of the contract is farfetched one. 13. It is clear from the submission of the defendants that in support of this ground, the defendants rely on a letter of the defendants itself dated 21st May, 1984. It reads as under : "It was provided in Kathmann's Contract with the Secretariat vice sub-para (a) of Annexure 8 that 50% = DM 4187721 of contract erection amount will be given as an advance on presentation of the erector arrival certificate, saying that technicians have arrived. The same provision applied as regards to our Contract with Kathmann. On the arrival of our technicians for erection work, as asked Kathmann to make us payment of DM 4187721. As Kathmann did not do so we again took up this matter with him in our letters dated 24-11-81 (Exh. 41), 28-11-81 (Exh. 42) and 24-6-82 (Exh. 43). The same provision applied as regards to our Contract with Kathmann. On the arrival of our technicians for erection work, as asked Kathmann to make us payment of DM 4187721. As Kathmann did not do so we again took up this matter with him in our letters dated 24-11-81 (Exh. 41), 28-11-81 (Exh. 42) and 24-6-82 (Exh. 43). Kathmann did not even open a letter of credit which he was required to do at the beginning of the contract for this purpose and the payment of DM 4187721 was never made to us. Payment for erection works made to us by Kathmann is LD 374686. Since we would have received only half of this amount i.e. LD 187343 if we had received the advance payment of DM 4187721. Kathmann has been withholding the balance amount of LD 510624 (Rs. 1,36,59,192) which amount is still due to us under the terms of the contract." The relevant clause in the contract between plaintiffs and Kathmann provides thus : "50% DM 41,807.138 shall paid to the D.S.L. for erection and the letter of credit for civil work for the Deutschemark portion." Perusal of the bill at Exh. I dated 9th July, 1981 submitted by the plaintiffs to Kathmann shows that erectors arrival certificate is annexed to this bill. It means that the erectors had arrived before July, 1981 and 50% advance payment as per the terms of contract was to be made before July, 1981 i.e. much before March, 1982 when the premium was paid. As the term of payment as per the witness of the plaintiffs himself was a term relevant for deciding whether the risk is to be undertaken by the defendants or not, in my opinion, it was for the plaintiffs to disclose to the defendants at the time of payment of premium that Kathmann has not abided by a term in the contract of 50% advance payment for the erectors and that the plaintiffs had agreed for deferred payment instead of advance payment. In my opinion, non-disclosure of this aspect of the matter by the plaintiffs to the defendants also was in breach of the undertaking of the plaintiffs to disclose to the defendants all facts and circumstances material for the decision of the defendants to undertake the risk. 14. In my opinion, non-disclosure of this aspect of the matter by the plaintiffs to the defendants also was in breach of the undertaking of the plaintiffs to disclose to the defendants all facts and circumstances material for the decision of the defendants to undertake the risk. 14. The learned Counsel appearing for defendants submits that after the work had commenced in March, 1981, difficulties cropped up in implementation of the project inasmuch as sites were not made available by the plaintiffs to Kathmann for carrying out work as per the terms of the contract. There were difficulties experienced by the plaintiffs in preparation of the bills. The plaintiffs were also not getting payment from Kathmann as per the agreement as a result of which there was strain in the relationship between Kathmann and plaintiffs. There was acrimonious correspondence exchanged between plaintiffs and Kathmann after the month of March, 1981 till March, 1982 and thereafter also. The plaintiffs did not disclose these facts to the defendants either while submitting the proposal in the month of June, 1981 or while making payment of premium in the month of March, 1982. The plaintiffs also did not make these disclosures after the policy was issued in April, 1982 till the contract was terminated by Kathmann. It is submitted that the contract between Kathmann and Libyan Government is dated 7th September, 1980. It provides for handing over all sites by 7th October, 1980. It further provides in its Annexure III that completion of almost all sites will be made within 23 months thereafter and completion of one or two sites within 24 months. The contract between Kathmann and plaintiffs is dated 9th December, 1980 which mentions completion period within 18 months of handing over of each site. Thus, if the contract between Kathmann and Libyan Government and the contract between plaintiffs and Kathmann are read together, it shows that by 9th December, 1980 when the contract was entered into between plaintiffs and Kathmann, all the 42 sites on which the work was to be done by the plaintiffs were to be handed over by Libyan Government to Kathmann and by Kathmann to plaintiffs, this was the picture which was presented by the plaintiffs to the defendants when in June, 1981 it submitted the proposal to the defendants. The ground reality however was that by June, 1981 only a few out of 42 sites were made available by Kathmann to plaintiffs and in relation to those sites also, there were many problems inasmuch as all the facilities necessary for carrying out the work were not made available. In this regard, admittedly there is correspondence between plaintiffs and Kathmann where plaintiffs are making grievance for not handing over all the sites as per the agreement and there being problems with the few sites that have actually been handed over. The learned Counsel further submits that the witness for the plaintiffs has admitted that the nature of services which were to be executed is one of the material circumstance for deciding whether risk is to be undertaken or not. He submits that the correspondence between plaintiffs and Kathmann which has been produced on record reveals that there was apparent lack of faith and trust between plaintiffs and Kathmann, the allegations of breaches and threats of termination of contract were exchanged freely. The learned Counsel further submits that in the proposal which was given to the Working Group, the plaintiffs made a statement to the effect that sites have been carefully surveyed by them and factors like water resources and transport facilities have been taken into consideration. It is further submitted that in the proposal the plaintiffs have made a declaration that they are not aware of any circumstance relating to Kathmann or the contract which might adversely influence the defendants in accepting the risk. They also undertook to carry on the work in due regard to the conditions of contract. He submits that Kathmann's inability to handover all the sites as per the agreement and there being difficulties and problems in the sites which were actually handed over was a circumstance relating to the employer and therefore, by not disclosing that circumstance, the plaintiffs have made a false declaration in their proposal. The learned Counsel relies on the letters dated 4th April, 1981, 8th July, 1981, 22nd August, 1981 and 7th September, 1981 in support of his submission that due to Kathmann not making all the sites available and there being problems in the sites that were actually made available were creating problems in carrying out the work as per the terms of the contract. The learned Counsel further submits that the plaintiffs were also not getting payment as per the contract. Reading the contract between Kathmann and Libyan Government and the contract between Kathmann and plaintiffs, it is clear that the plaintiffs should have received monthly payments, but the plaintiffs were not receiving monthly payments. The learned Counsel for defendants by referring to the letters dated 29th October, 1981, 4th November, 1981, 11th November, 1981, 15th November, 1981 and 21st November, 1981 submits that the plaintiffs were not receiving payments as per the contract and the plaintiffs were in fact threatening to terminate the contract due to Kathmann not being in a position to make payments which were due to the plaintiffs. According to the learned Counsel, this fact was also suppressed by the plaintiffs from the defendants. The learned Counsel for plaintiffs, on the other hand, submits that though it is true that the sites as per the contract were not made available by Kathmann to the plaintiffs, this factor is not relevant to the risk undertaken by the defendants. It is submitted that Kathmann's inability to make all the sites available to the plaintiffs does not in any way increase the risk of the defendants, on the contrary it goes on to diminish the risk. In so far as the aspect of payment is concerned, it submitted that though it is true that the plaintiffs were not receiving monthly payment, the chart at Exh. AA shows that the payments were being received regularly. It is also submitted that the plaintiffs had also received advance payment though against a bank guarantee. Therefore, really speaking, the plaintiffs were not experiencing any problem relating to payment, in the sense, no payment which was due to the plaintiffs was outstanding against Kathmann. It is submitted that the relationship between Kathmann and plaintiffs was cordial despite exchange of correspondence at site level. It is submitted that in March, 1982, the Chairman of Kathmann had gifted a Mercedez car to the Chairman of the plaintiffs. It is submitted that in the correspondence between the parties, strong words were used due to peculiar circumstances in which the parties were placed and different languages that were used by the parties. 15. It is submitted that in March, 1982, the Chairman of Kathmann had gifted a Mercedez car to the Chairman of the plaintiffs. It is submitted that in the correspondence between the parties, strong words were used due to peculiar circumstances in which the parties were placed and different languages that were used by the parties. 15. Now if the record of the case is perused in the light of the rival submissions, it is clear that the contract between plaintiffs and Kathmann was for doing construction work on 42 sites. In the proposal that was submitted to the working group by the plaintiffs, the plaintiffs had stated that they have surveyed all the sites on which work is to be done. In the proforma that was submitted to the defendants by the plaintiffs, the plaintiffs had stated :- "Construction of poultry farms in 42 sites all over Libya and supply of work force." In the proposal, the plaintiffs have also indicated that the date of completion of the work is 4th November, 1982. This proposal was given in the month of June, 1981. Thus, a clear impression was given by the plaintiffs to the defendants that it has been handed over all the sites and estimated date of completion was therefore given as 4th November, 1982. When this proposal was given in the month of June, 1981, it is clear from the correspondence that the plaintiffs had received possession of only a few sites and there was a plethora of problems in relation to those sites also. There was correspondence exchanged between the parties in this regard and it was clear that Kathmann was in no position to handover all the sites to which the contract related. Term No. 1.9 in the contract between Kathmann and plaintiffs, copy of which was admittedly given by the plaintiffs to the defendants reads as under : "1.9 finishing the work within a period of 18 months after taking over of site corresponding to the time schedule stipulated in the contract." It is clear from this term that the work was to be completed latest within a period of 18 months, after taking over all sites. Therefore, when the plaintiffs stated in the proposal that in its estimation, the work would be completed by 4th November, 1982, it clearly implies that all 42 sites were handed over to it 18 months before 4th November, 1982. The contract and the proposal have to be read together. The plaintiffs have undertaken to carry on the work with due regard to the conditions of the contract. The relevant clause is Clause 5 of the proposal which reads as under : "We undertake to carry on our business with employer with due regard to the conditions of the contract." Thus, the plaintiffs had undertaken to carry on the work as per the terms of the contract between the parties. As per those terms, as per the statement of the plaintiffs itself, the work was to be completed by 4th November, 1982 and therefore, an impression was created that all the 42 sites have been made available by Kathmann to the plaintiffs and the plaintiffs proposed to complete the work by 4th November, 1982. This impression which was given was contrary to the facts in existence. This impression was created in the month of June, 1981. The situation in the month of June, 1981 was that only few out of 42 sites were made available and there was a plethora of problems in relation to those sites also. The plaintiffs have also stated in the proposal that they have not omitted to disclose any material fact which might influence the defendants in accepting the risk. The plaintiffs had also stated that they have made all enquiries in relation to all the matters covered by the contract and the circumstances relating to the employer and all those circumstances have been disclosed and have not been omitted. In my opinion, the submission of the plaintiffs that Kathmann was not in a position to handover all 42 sites and there were infrastructural problems in the few sites that were handed over was not material for the decision of the defendants to accept the risk, cannot be accepted. In my opinion, the submission of the plaintiffs that Kathmann was not in a position to handover all 42 sites and there were infrastructural problems in the few sites that were handed over was not material for the decision of the defendants to accept the risk, cannot be accepted. It is plain that the plaintiffs had given an undertaking in the proposal to carry on the work as per the contract when the plaintiffs were fully aware in June, 1981 that it is in no position to carry on the work as per the contract because all the 42 sites have not been made available as agreed to by Kathmann and there were several problems in relation to few sites which had been handed over. In my opinion, infrastructural problems in the few sites that were handed over and inability of Kathmann to handover all the 42 sites as agreed, cannot be termed as immaterial circumstance in so far as the decision of the defendants of accepting the risk is concerned. So far as the aspect of delay in making payment is concerned, I have already observed above that so far as 50% advance payment for erectors is concerned, that condition in the contract was already breached. I have already observed above that reading of the contract between Libyan Government and Kathmann and Kathmann and plaintiffs shows that the plaintiffs were to receive monthly payments, but monthly payments were not forthcoming. The case of the plaintiffs, that though in the correspondence between the parties, harsh words were used for making a complaint against non-payment by Kathmann payments were actually received, in my opinion, cannot be accepted. The fact that huge amounts were found due by the plaintiffs itself from Kathmann for which it was required to approach the Court of law against Kathmann in Libya shows that Kathmann was not making the payment of the bills as per the contract. The plaintiffs had undertaken to inform the defendants in writing about such problems, but admittedly there is no written communication of problems by the plaintiffs to the defendants. The plaintiffs had undertaken to inform the defendants in writing about such problems, but admittedly there is no written communication of problems by the plaintiffs to the defendants. In my opinion, therefore, the defendants are right in submitting that the plaintiffs are guilty of suppressing facts from the defendants, which were material for the decision of the defendants to accept the risk as also of giving an undertaking to carry on the business in accordance with the contract when they were fully aware that it cannot be done. 16. The learned Counsel for defendants submits that one of the aspects on which information was sought in the proposal form was the date of commencement of the work and estimated date of completion. In the proposal form, the plaintiffs disclosed that the date of commencement of work was 4th March, 1981 and estimated date of completion was 4th November, 1982. According to the defendants, this information about the estimated date of completion was wrong information supplied by the plaintiffs to the defendants. It is submitted that in so far as the contract between Kathmann and Libyan Government is concerned, which was signed in September, 1980, it was provided that all the work sites free from any obstacles are to be conveyed to Kathmann by Committee of the Libyan Government within a month from the date of signing of the contract. The next term, which is relevant, reads as under : "If the conveyance of some sites occurs 3 months (or more) later than the date of the credit letter receipt, the implementation period of the works in this sites will begin from the date of their conveyance and not from the date of the credit letter receipt. In this case, the conveyance is to be fulfilled so stated in the implementation programme i.e. the time programme (Annex. 3)." It is Condition No. 1.9 of the contract between Kathmann and plaintiffs which was entered into on 9th December, 1980 quoted above which is relevant. In is submitted that thus as per the terms of contract between plaintiffs and Kathmann, the period for completion of work in relation to the entire contract was not fixed, time was fixed for completion of work sitewise. In is submitted that thus as per the terms of contract between plaintiffs and Kathmann, the period for completion of work in relation to the entire contract was not fixed, time was fixed for completion of work sitewise. If in the light of this term in the contract, proposal submitted by the plaintiffs is seen where the plaintiffs state that the work has been started in March, 1981 and it will be completed by 4th November, 1982, it becomes clear that according to the plaintiffs, all sites have been made available to it on the date on which proposal is submitted and that the work on all sites would be completed by 4th November, 1982. According to the defendants, this is a patently wrong information which has been submitted by the plaintiffs. The learned Counsel appearing for defendants submits that the above referred term in the contract refers to a time schedule which was fixed in relation to each site but the plaintiffs suppressed that time schedule. Ultimately when the plaintiffs were forced to produce the time schedule, it was produced before the Court and the plaintiffs witness was recalled for re-examination and the witness admitted that as per the time schedule given in the contract for each site, period for completion was different and it was 18 months from the date of handing over of each site. The learned Counsel relies on the judgment of Division Bench of this Court in the case of (Sheoshankar v. Life Insurance Corporation of India)2, reported in 43 Company Cases 284 and contends that when wrong information is given by the applicant in the proposal on the aspect on which specifically information is sought, then the policy issued on that basis is vitiated. On behalf of the plaintiffs, it is submitted that this argument has been advanced on behalf of the defendants without there being any pleadings, that when the estimated date of completion of project was asked, it mean that the date had to be given in which all the works under the contract at all the sites should be completed. In other words, the date of completion of the last site would be the date of completion. The suggestion that the plaintiffs ought to have given 42 different estimated dates of completion is ridiculous and meaningless. In other words, the date of completion of the last site would be the date of completion. The suggestion that the plaintiffs ought to have given 42 different estimated dates of completion is ridiculous and meaningless. If that argument was correct, there would be 42 different dates of commencement as well and once that distinction is drawn, one may argue that different dates of completion to be put up would be separately given. In this regard, one should also note that the object behind the enquiry about estimated date of completion is only one viz. to ascertain the duration for which insurance cover is to be granted, it serves no purpose to have 42 different dates of each site as the insurance would be granted upto the last date. In any event, the period of completion mentioned in the insurance proposal has nothing to do with the time limit under the contract or otherwise the proposal form would also have asked for contractual date of completion. The two dates are obviously meant to be different. It is a result of independent calculation by the plaintiffs of its capacity to finish the work, the plaintiffs thereafter refer to contract between plaintiffs and Kathmann and the contract between Kathmann and the Libyan Government and submit that these contracts were available with the defendants at the time of processing of the insurance proposal. According to the plaintiffs, it is thus clear that the plaintiffs carried out its own estimate about when it would be able to complete the works under the project and estimated them to be completed by 4th November, 1982. It is possible that while making this estimate, the plaintiffs did take into account and provide for some delays in handing over sites. According to the plaintiffs therefore, there is nothing on record to suggest that the estimate given by the plaintiffs was not correct. It is submitted that in any case, it is merely an estimate which may turn out to be incorrect. What is required to be considered is whether the person making the estimate has done it on the basis of his bona fide belief. It is further submitted that the submission on behalf of the defendants that because of delays in handing over sites, the estimate should have been revised by the plaintiffs and accordingly, the defendants should have been informed also does not have any substance. It is further submitted that the submission on behalf of the defendants that because of delays in handing over sites, the estimate should have been revised by the plaintiffs and accordingly, the defendants should have been informed also does not have any substance. It is further submitted that the only object for seeking this information was to enable the defendants to ascertain the period for which the risk is covered and has nothing to do with the decision of the defendants to undertake the risk. For considering this aspect of the matter, one has again to refer to the statement of witness of the plaintiffs which has been quoted above. In that statement, the witness clearly states that the factors relevant and material for deciding whether the risk is to be undertaken by the defendants or not is duration of the work and it is therefore that in the proposal the defendants had sought information on that count. The information submitted by the plaintiffs in this regard, in my opinion, has also to be read with the undertaking given by the plaintiffs to carry on the business as per the contract. The declaration made by the plaintiffs in June, 1981 has also to be read in the context of the admitted position that though as per the contract 42 sites were to be handed over to the plaintiffs in March, 1981, till June, 1981 when this information was supplied by the plaintiffs to the defendants, only a few sites were handed over by Kathman to the plaintiffs. Even in the submission of the plaintiffs in this regard that it was merely an estimate given is to be taken as correct, then also it is clear from the material on record that the events that took place from June, 1981 when the proposal was given and March, 1982 when the premium was paid, it was necessary for the plaintiffs to drastically revise the estimate. Admittedly, the plaintiffs have not done so. There is no dispute that the plaintiffs in any case were under an obligation to disclose fully true and correct facts to the defendants at least till the date the premium was paid. Admittedly, the plaintiffs have not done so. There is no dispute that the plaintiffs in any case were under an obligation to disclose fully true and correct facts to the defendants at least till the date the premium was paid. Even if it is assumed that in June, 1981 the plaintiffs submitted in the proposal that the work could be completed by 4th November, 1982 believing that all the sites would be shortly handed over, then also by March, 1982 when the premium was paid, it was clear that the assessment of the plaintiffs that work would be completed by 4th November, 1982 required to be drastically revised and therefore, it was for the plaintiffs to disclose these facts to the defendants. In my opinion, however, 4th November, 1982 as the date of completion of work cannot be said to be realistic considering the situation prevailing in June, 1981. This also has to be considered in the light of the reluctance of the plaintiffs to produce the time schedule agreed to between the parties before the Court. When that time schedule was ultimately produced before the Court, the witness for the plaintiffs clearly admitted that in the time schedule, different dates of completion were given for different sites. It thus becomes clear that even according to the plaintiffs, the information about duration of the work was relevant and material for the decision of the defendants to undertake the risk and the information given by the plaintiffs in the proposal was wrong information. Following observations from the judgment of the Division Bench relied on by the learned Counsel for defendants in the case of Sheoshankar v. Life Insurance Corporation of India referred to above, in my opinion, are relevant :-- "The Sind Judicial Commissioner's Court in Shivkumar Radhakrishindas v. North British and Mercantile Insurance Co. Ltd. has laid down a test which, to our mind, is a correct test that all such facts which would influence a reasonable man either to accept or to decline the risk or to stipulate for a higher premium would be material. The insurance companies have devised several forms. Ltd. has laid down a test which, to our mind, is a correct test that all such facts which would influence a reasonable man either to accept or to decline the risk or to stipulate for a higher premium would be material. The insurance companies have devised several forms. One of them is the proposal form, the other is the personal statement of the proposer which is recorded by a medical examiner on the basis of the answers given by the proposer to questions mentioned in the form and put by the medical examiner to the proposer. It is on the basis of these statements that the insurer considers the proposal and that forms the basis of the contract. In fact, in the forms it has been made specifically clear that the statements made by the proposer would be the basis of the contract. It is, therefore, of utmost importance that these statements made by the proposer must be true and there should not be suppression of any material fact. In the prescribed forms there are several questions which have a material bearing on the matter of acceptance of the proposal. On the basis of the truthfulness of those statements the insurer may be persuaded to accept the proposal of the insured. If, however, the facts were otherwise, the insurer might have declined to accept the proposal or would have agreed to accept the same in a modified form either for a lesser amount or for an extra premium. Some of the statements may not be as important as others. Some statements may have the effect of influencing the judgment of the insurer while accepting the policy; whereas, the other statements may have an important bearing inasmuch as those statements would influence the decision of the insurer one way or the other. It is from this point of view that it has to be seen when the insurer has shown that the insured has made inaccurate or false statements on material matters. If this is established, then it must be further shown that the policyholder must have known at the time of making the statement that it was false. The latter requirement could be inferred from the circumstances brought out on record. If this is established, then it must be further shown that the policyholder must have known at the time of making the statement that it was false. The latter requirement could be inferred from the circumstances brought out on record. Similar would be the case regarding the suppression of facts which it was material to disclose." It is thus clear that when on a specific point information is sought by the insurer and on that point false or incorrect information is given, irrespective of whether wrong information is given deliberately or innocently, the wrong information supplied vitiates the policy. In the present case, the plaintiffs have definitely given wrong information so far as the date of completion of the work is concerned and therefore, in my opinion, this defence of the defendants deserves to be accepted. 17. It is submitted on behalf of the defendants that the plaintiffs in this suit are claiming the amount which was awarded by the Libyan Court. Before the Libyan Court, the plaintiffs had claimed the amount due to plaintiffs from Kathmann under the contract as also for the extra work that was undertaken by the plaintiffs. It is submitted that according to the plaintiffs, claim in the Libyan suit was in respect of (1) work done by the plaintiffs; (2) amount of bank guarantee; (3) damages and (4) value of material and machinery at sites. The Libyan Court had appointed Commissioners (Technical Committee) to verify the works done by the plaintiffs and the sites of the works agreed between plaintiffs and Kathmann. The total amount claimed was LD 4.5 million. Before the Libyan Court, plaintiffs prayed that Kathmann should pay for all the works done. Thus, all the works executed by the plaintiffs on 17 sites are part of the disputes raised before the Libyan Court. The reference to Experts Committee for evaluation of the works done was also in respect of all the works executed by the plaintiffs at 17 sites. Extra items were also executed by the plaintiffs apart from the contractual works. The Technical Committee appointed by the Libyan Court accordingly submitted its report after going through the works that were done by the plaintiffs at the sites. Thereafter, the Accounts Committee went into the matter and submitted its report. On the basis of these two reports, the Libyan Court passed the decree. The Technical Committee appointed by the Libyan Court accordingly submitted its report after going through the works that were done by the plaintiffs at the sites. Thereafter, the Accounts Committee went into the matter and submitted its report. On the basis of these two reports, the Libyan Court passed the decree. It is submitted that the witness examined on behalf of the plaintiffs did not give details of the extra works done but stated that the decree of the Libyan Court does not cover payment for the extra works done. It is submitted that the plaintiffs have deliberately avoided to give any break up or particulars with regard to the extra works done, no evidence has been led by the plaintiffs to show what part of the decretal amount relates to the works under the contract and what part of the decretal amount relates to the works done beyond the contract. Admittedly, there was no insurance for the extra works done. Therefore, according to the defendants, plaintiffs are not entitled to a decree for the amount which has been awarded by the Libyan Court. On behalf of the plaintiffs, it is submitted that the manner in which the Libyan Court ascertained the amount due was that it appointed a Technical Committee. The Technical Committee in the presence of both the parties, inspected the works done, it inspected the sites and carried out detailed measurement and ascertained the extent to which in terms of percentage the works were carried out in respect of each structure in various aspects and value thereof. The percentage that was determined was the percentage of works carried out as compared to the works required to be done as per the contract, the details of its calculation are mentioned in the annexures to its report. The Court then referred the matter to Accounts Committee to ascertain the amount due and payable by Kathmann in respect of works that were carried out. Based on these two reports and accepting, the said two reports, the Court passed the decree. According to the plaintiffs, reading of the reports of the two Committees will show that to arrive at the conclusion, the Committees have not taken into account the extra works done by the plaintiffs but have restricted itself to works required to be done under the contract. According to the plaintiffs, reading of the reports of the two Committees will show that to arrive at the conclusion, the Committees have not taken into account the extra works done by the plaintiffs but have restricted itself to works required to be done under the contract. According to the plaintiffs, the extra works which were undertaken by the plaintiffs were totally different from the works undertaken under the contract. It is submitted that since written documents are available in Court, oral testimony of the witness about contents of the same is irrelevant. The plaintiffs therefore claim that the submission of the defendants that the decretal amount in the decree passed by the Libyan Court includes amounts for extra works, has to be rejected. If in the light of these rival submissions the record of the case is perused, it becomes clear that the plaintiffs, at least in the written submissions filed, do not dispute that there were extra works done by the plaintiffs over and above the contract and that the plaintiffs in the suit filed in the Libyan Court had claimed amounts for these extra works. Now if this stand is to be considered in the light of the deposition of the plaintiffs' witness, the relevant part reads as under : "Ques.: - When you executed the extra items of work, which you did over and above, your obligations under the original contract, did you carry out these works gratuitously or expecting payment for the same ? Ans.: - First of all we would not undertake or execute any work which does not directly flow from the contract in one way or the other and as I deposed earlier both the parties to a contract keep on recording these items for proper looking into at an appropriate date either during the contract or usually at the end of the contract. (Ms. Sancheti repeats his question) Ans.: - We have not done any extra work over and above the contract. Therefore, the question of either receiving any payment or not expecting any payment would not arise. (Witness's attention is drawn to his deposition appearing on page 72 of the notes of evidence. The portion so shown is reproduced below. 'It is true that certain extra items were also executed by us apart from the contracted works. Therefore, the question of either receiving any payment or not expecting any payment would not arise. (Witness's attention is drawn to his deposition appearing on page 72 of the notes of evidence. The portion so shown is reproduced below. 'It is true that certain extra items were also executed by us apart from the contracted works. I cannot offhand given particulars of these extra items, I will endeavour to try to give particulars of these items from my records' and the witness is asked the following question) Ques.: - In view of the above quoted deposition, I put it to you that your reply to the previous question viz. 'We have not done any extra work over and above the contract' is a deliberately false statement. What do you have to say about this? Ans.: - No. The two terms used are 'contracted works' and 'contract'. The contract will include the contracted works and provision for any other eventualities which I have termed as extra items. Ques.: - Therefore, the extra items are over and above the contracted works. Is it correct? Ans.: - These extra items will be over and above the contracted works but within the contract. Ques.: - Therefore, would you be entitled for payment of these extra items or not? Ans.: - Yes. I would be entitled to. Ques.: - Would it be correct to say that seeing the excerpt of the minutes of the meeting dated 10th April, 1981 quoted in Exh. 14, that the items referred in the said except are extra items? Ans.: - The said items if executed would mean extra work. But in this excerpt the reference is to idle sitting labour because of these items not having been provided to us contractually. It is true that levelling road surface is an item of extra work. Ques.: - Is it true that providing water at site is an extra work? Ans.: - Yes. But under the contract. Ques.: - Is it true that 'extra items' referred to in your deposition at page 72 which has been reproduced above would include providing water at site? Ans.: - Providing water at site would be an extra item like any other item we would execute under the contract. Ques.: - Do you mean to say that all the items which you execute under the contract would be extra items? Ans.: - Providing water at site would be an extra item like any other item we would execute under the contract. Ques.: - Do you mean to say that all the items which you execute under the contract would be extra items? Ans.: - No. Ques.: - Can you tell us which work/items executed by you would be extra items and which would not be? Ans.: - It is difficult to answer this question precisely. But as an example, the levelling of sites and providing for water supply which we have been referring to above, would be an extra item under the contract. Adjourned to tomorrow the 9th day of August, 1997 at 11.00 a.m. (Witness's attention is drawn to the answer appearing on page No. 157 of the notes of evidence and the witness is asked the following question) Ques.: - Can by explain the term 'contracted works' used by you in the above mentioned answers? Ans.: - In this context, it refers to items of work to be executed. Ques.: - To be executed by whom? Ans.: - By the plaintiffs. Ques.: - Referring to the same answer on page 157, we want to know how is your understanding of the term 'contracted works' different from your understanding of the term 'contract'? Ans.: - Contract would mean all the terms and conditions and items of work to be executed which are included in the contract. Whereas 'contracted works' would include items of work to be executed by us. (Witness's attention is drawn to his deposition appearing on pages 158 and 159 wherein in his answers he has referred to 'levelling road surface as an item of extra work' and 'levelling of sites and providing for water supplies' as an extra item under the contract and the following question is asked) Ques.: - Would it be correct to say that 'an item of extra work' and 'an extra item under the contract' are one and the same? Ans.: - In the context of the above referred answers, both would be the same." It is thus clear that according to this witness, the extra work which was done was also part of the contracted work. The plaintiffs in its plaint before the Libyan Court had claimed payments for these extra works. The Committee was appointed by the Libyan Court for verification. The plaintiffs in its plaint before the Libyan Court had claimed payments for these extra works. The Committee was appointed by the Libyan Court for verification. Obviously, this Committee also evaluated the extra works inasmuch as there was no complaint on the part of the plaintiffs at any point of time that the Experts Committee excluded from it consideration the amounts due on account of extra works. In my opinion, therefore, the burden was on the plaintiffs to lead evidence to show why the decree passed by the Libyan Court does not relate to any extra works undertaken by the plaintiffs. In the absence of proper explanation by the witness of the plaintiffs therefore, the defence put up by the defendants, that the decree passed by the Libyan Court may include amounts due to the plaintiffs from Kathmann on account of extra works carried out by the plaintiffs outside the contract, has to be accepted. 18. The last aspect which falls for consideration is the request of the defendants for rectification of the contract. So far as this aspect of the matter is concerned, in my opinion, for this purpose, it was necessary for the defendants to prefer a counter claim and claim a decree for rectification of the contract of insurance policy. No such prayer has been made. In any case, such a prayer would be barred by the law of limitation because it is clear from the deposition of the witness of the defendants that this mistake in relation to which rectification is claimed, was discovered by the defendants in the year 1984. The limitation for instituting a suit claiming decree for rectification would be three years from the date of discovery of the mistake. No such suit has been instituted by the defendants and therefore, in my opinion, the claim of the defendants that they are entitled to rectification of the insurance policy by deletion of one of the clauses, in my opinion, cannot be granted. 19. Now, taking up the issues for consideration in the light of what is observed above, as also the material available on record, so far as Issue No. 1 is concerned, it relates to paragraphs 1(a) to 1(i) of the written statement. This mainly relates to the change in the term of the contract between plaintiffs and Kathmann from the terms of the contract which were furnished to the Working Group. This mainly relates to the change in the term of the contract between plaintiffs and Kathmann from the terms of the contract which were furnished to the Working Group. It is clear from the observations made above that it cannot be said that by not highlighting the fact in the proposal submitted to the defendants that there is a change effected in the contract entered into by plaintiffs with Kathmann in this regard, the plaintiffs have not done anything wrong. Therefore, Issue No. 1 is answered in the negative. Issue No. 2 relates to suppression of the fact by the plaintiffs that the execution of the contract had run into difficulties from the inception as also the fact that the plaintiffs were not getting payments from Kathmann as per the terms of the contract as also to the nondisclosure of the acrimonious correspondence between the plaintiffs and Kathmann to the defendants. I have held above that the plaintiffs were under a duty to disclose to the defendants at the time of submitting the proposal in the month of June, 1981 that they have not been able to get monthly payment as stipulated in the contract and that the Kathmann has also not been in a position to deliver the plaintiffs all the sites as agreed. These facts, though relevant and material, were suppressed by the plaintiffs and therefore, Issue No. 2 is answered in the affirmative. As to Issue Nos. 2(A) and 2(B) :---I have already held above that though there was variance between the terms of contract submitted to the Working Group and the terms of contract actually entered into by the plaintiffs with Kathmann, as in the proposal before the Working Group the plaintiffs had specifically stated that they do not need insurance cover, the variance between the terms of the contract submitted to the Working Group and the contract actually entered into by the plaintiffs with Kathmann does not have any impact on the validity of the insurance policy and therefore, the issue is answered accordingly and therefore the suit is maintainable. As to Issue No. 2(C): - As the suit was filed within a period of three years from the date of communication of the decision of the defendants rejecting the claim made by the plaintiffs, the suit is within limitation. Therefore, Issue No. 2(C) is answered accordingly. As to Issue No. 2(C): - As the suit was filed within a period of three years from the date of communication of the decision of the defendants rejecting the claim made by the plaintiffs, the suit is within limitation. Therefore, Issue No. 2(C) is answered accordingly. As to Issue No. 2(D): - This Issue is the same as Issue No. 2. In answer to Issue No. 2, I have already observed that the defendants are guilty of suppression of material facts and therefore, this issue is answered accordingly. As to Issue No. 2(E): - I have already held above that the condition in regard to payment i.e. monthly payment as also condition as regards 50% payment in advance for erectors were changed and this change was not informed by the defendants to the plaintiffs and therefore, this issue is answered accordingly. As to Issue No. 2(F): - I have held above that the claim of the defendants for rectification of the contract of insurance is barred by the law of limitation. Therefore, this issue is answered accordingly. As to Issue Nos. 3(a) and 3(b): - There is a decree passed by the Libyan Court. The plaintiffs have brought material on record that they took steps in accordance with law in force in Libya to execute the decree. They could recover only a fraction of the claim by executing the decree and therefore, these issues are answered accordingly. On these issues oral and documentary evidence is led by the plaintiffs, the defendants have not led any evidence. As to Issue Nos. 4(a) and 4(b):---In view of the finding that the plaintiffs are guilty of suppressing material facts from the defendants while submitting the proposal as also while paying the amount of premium, the suit of the plaintiffs is liable to be dismissed and the plaintiffs are not entitled to any decree against the defendants and therefore the issues are answered accordingly. As to Issue Nos. 5 and 6: - In view of answer to the issues above, these issues do not survive for consideration. Hence, they are not considered. As to Issue Nos. 7 and 8: - The suit filed by the plaintiffs is liable to be dismissed with costs. 20. As to Issue Nos. 5 and 6: - In view of answer to the issues above, these issues do not survive for consideration. Hence, they are not considered. As to Issue Nos. 7 and 8: - The suit filed by the plaintiffs is liable to be dismissed with costs. 20. It is clear from the material that has been brought on record that the plaintiffs submitted their proposal for insurance to the defendants after about six months of entering into the contract. The contract was entered into in December, 1980. The plaintiffs started work on the contract in the month of March, 1981, they submitted the proposal in June, 1981. By that time, it was clear to the plaintiffs that Kathmann is not in a position to get monthly payment and therefore, the plaintiffs cannot get monthly payment from Kathmann. While submitting the proposal, this situation ought to have been disclosed by the plaintiffs to the defendants, they chose not to disclose this. In the proposal form, the defendants were specifically seeking information as to the estimate of the plaintiffs as to how much time the contract is likely to take. The plaintiffs stated that as per their estimate, the work of the contract would be completed by November, 1982. In my opinion, as by June, 1981 when the proposal was submitted, the plaintiffs were fully aware that though agreed to, all the 42 sites have not been handed over by Kathmann to the plaintiffs and even in those, few sites which have been handed over, there are serious infrastructural problems. The estimate given by the plaintiffs in the proposal was clearly unrealistic. The position had become further clear that in no circumstances, the contract can be completed by November, 1982. Therefore, at least when the premium was paid in the month of March, 1982, the plaintiffs ought to have disclosed the facts to the defendants. Handing over only a few of sites and there being serious problems in these sites that have been handed over, had direct bearing on an aspect on which information was sought in the form and clearly wrong information was supplied by the plaintiffs. Handing over only a few of sites and there being serious problems in these sites that have been handed over, had direct bearing on an aspect on which information was sought in the form and clearly wrong information was supplied by the plaintiffs. In my opinion, therefore, in terms of the law laid down by the Division Bench referred to above, even if it is assumed that the suppression or withholding of information was not deliberate or mala fide, it will result in vitiating the contract. The plaintiffs had also undertaken to disclose full material facts in relation to Kathmann and therefore, the plaintiffs were under an obligation to disclose full facts in relation to Kathmann, its inability to handover sites, its inability to meet the infrastructural problems in the sites which were handed over, its inability to submit monthly statement etc. ought to have been disclosed by the plaintiffs to the defendants. In my opinion, the plaintiffs were not at all justified in withholding these facts from the defendants. From he written submissions submitted by the plaintiffs, one aspect which has been raised repeatedly is that the defences that were argued on behalf of the defendants have not been pleaded. Apart from the fact that I find that most of the defences have been pleaded, the arguments were advanced on behalf of the defendants on the basis of the material that was already on record i.e. documents which have been brought on record and the oral evidence. Once this material is on record, in my opinion, the material cannot be excluded from the consideration only because there are no elaborate pleadings. It is clear from the line of cross-examination of the witness of the plaintiffs that the plaintiffs were fully aware of the defences that were raised on behalf of the defendants. The Supreme Court in its judgment in the case of (Kunju Kesavan v. M.M. Philip others)3, reported in A.I.R. 1964 S.C. 164, has considered this aspect of the matter and has held that as both the parties were aware of their respective stands as can be seen from the deposition of the witnesses, it cannot be said that the plaintiffs were taken by surprise. Much emphasis was also put by the learned Counsel appearing for plaintiffs on the fact that the defendants have not examined their officer who was competent to take decision to show that had these facts been disclosed to the defendants, the defendants would not have entered into the contract. In my opinion, there is no substance in this argument because in view of the recitals in the proposal which has been referred to above and the clauses in the policy, it was the perception of the plaintiffs which was relevant and the witness for the plaintiffs has in so many words admitted relevance and materiality of the aspects which were relied on by the defendants. Taking overall view of the matter, therefore, the impression that is gained is that the plaintiffs submitted proposal in June, 1981, the defendants communicated the amount of premium in August, 1981 but the plaintiffs did not pay the amount of premium and it came forward to pay the amount of premium in March, 1982 only after it fully realised that it is not possible to recover the payment from Kathmann. Had all the facts that were relevant about Kathmann been disclosed by the plaintiffs to the defendants, the defendants would not have accepted the amount of premium when it was tendered in the month of March, 1982. In order to persuade the defendants to accept the amount of premium, the plaintiffs did not disclose the facts about working of the contract. In these circumstances, therefore, in my opinion, it would not be in the interest of justice to decree the claim of the plaintiffs. The suit of the plaintiffs is therefore liable to be dismissed. It is accordingly dismissed with costs. Parties, to act on the copy of this order duly authenticated by the Associate/Personal Secretary as true copy. Certified copy expedited. -----