Judgment This Appeal arises out of the Judgment and decree in O.S.No.421/2000 dated 28.08.2003 on the file of Sub-Court, Tiruvarur decreeing Plaintiffs suit claiming a sum of Rs.11,52,000/- towards the work executed by the Plaintiff as power agent onbehalf of the 1st Defendant. For convenience, the parties are referred as per their original array in the suit. .2. The work of widening and strengthening Mannargudi-Muthupet Road KM 18/0 to 19/0 was awarded to the 1st Defendant by the 3rd Defendant. Plaintiff is Class-I contractor of the Highways department and 1st Defendant appointed the Plaintiff as his power of attorney under Ex.A1 deed dated 15.09.1995. In terms of Ex.A1-power deed, Plaintiff did the work incurring all the expenses including wages to the workers personally. By letter dated 211. 1996, 1st Defendant had also confirmed the same. The requirements for widening and strengthening of the road are:- (i) raising road level as specified in the plan and drawing; (ii) strengthening top surface with sand gravel; (iii) carted earth 95% compaction. According to the Plaintiff, contract documents – item No.3 viz., carted .earth 95% compaction costing Rs.8,00,000/- was omitted to be mentioned in schedule A of the agreement though it was shown in other documents and in the calculation sheets. During performance of the work sizable part of the work had been done and for effecting bill payment, it was noticed that item of earth work done for formation of embankment and berms to 95% compaction with power roller at bottom layers had been omitted to be mentioned in schedule A of the contract documents. According to Plaintiff, the work was asked to be continued and measurements taken by the officials. The approximate quantity of earth work done to 95% compaction with power roller was about 9000 Cubic Metres and the same was exclusive of the earth work done in achieving 100% compaction in schedule A. 3. Further case of Plaintiff is that disparity was brought to the notice of the then Chief Engineer and the then Divisional Engineer on 110. 1995 when they visited the work site. During site inspection on 06.07.1996, 3rd Defendant-Superintending Engineer assured that omission was due to inadvertence and oversight and that could be rectified. In Ex.A12, the Divisional Engineer submitted a revised estimate to the Superintending Engineer stating that 95% compaction was omitted to be included. Revised estimate [Ex.A13 dated 112. 1995 when they visited the work site. During site inspection on 06.07.1996, 3rd Defendant-Superintending Engineer assured that omission was due to inadvertence and oversight and that could be rectified. In Ex.A12, the Divisional Engineer submitted a revised estimate to the Superintending Engineer stating that 95% compaction was omitted to be included. Revised estimate [Ex.A13 dated 112. 1996] for Rs.18,00,000/- was sent to the Chief Engineer. 4. The old road was 2.75 Mts. widened to 3.75 Mts. and shoulder extended to 2.625 Mts. on either side totalling to 9 Mts. with side slopes on the river Bamini bank. Work was completed in 1997. Second payment was made on 21. 2007. According to Plaintiff, payment for 100% compaction had not been made in the earlier bills. Further case of Plaintiff is that department wanted the Plaintiff to put up the bottom portion, the work worth Rs.8,00,000/- before laying the top formation under the same contract was done by him to the satisfaction of the department. As power agent of 1st Defendant, Plaintiff requested the 3rd Defendant to make the payment for extra work of Rs.8,00,000/- or to name the Arbitrator with whom legal remedy could be sought. Department has sent Ex.A8-reply that 1st Defendant had received the bill in full settlement and denying the execution of any power deed in Plaintiffs name for the work. Plaintiff issued Sec.80 CPC notice calling upon them to pay to the Plaintiff the value of the work done. Stating that he is entitled to recover the value of the work done, both on facts, law and equity and on the basis of quasi-contract and on the basis of compensating the monetary loss, Plaintiff filed the suit for recovery of Rs.11,52,000/- and subsequent interest at the rate of 24% p.a. on Rs.8,00,000/-. .5. Admitting handing over of the contract and entrusting the work to the Plaintiff, 1st Defendant filed written statement contending that because of his illness, he approached the Plaintiff and asked the Plaintiff to complete the work for and on his behalf. To that effect, 1st Defendant had also executed Ex.A1 [15.09.1995] power of attorney. Based on the power, plaintiff had executed the work widening and strengthening the road as per the contract. According to 1st Defendant, authorities allowed the Plaintiff to put up bottom portion before laying top formation and the work was completed to the satisfaction of the department. To that effect, 1st Defendant had also executed Ex.A1 [15.09.1995] power of attorney. Based on the power, plaintiff had executed the work widening and strengthening the road as per the contract. According to 1st Defendant, authorities allowed the Plaintiff to put up bottom portion before laying top formation and the work was completed to the satisfaction of the department. 1st Defendant further averred that he has already informed the department to recognize the Plaintiff as his power agent and handing over the money to the Plaintiff. 1st Defendant further averred that in July 1998, the officials informed him about the inspection and at that time, department had taken his signature in various Registers and as per the request of higher officials, he signed in the Books and blank papers. 1st Defendant averred that using the said signatures, Department had created certain document which are used against the Plaintiff, 1st Defendant prayed for decreeing of the suit. 6. 3rd Defendant-Superintending Engineer filed written statement contending that the contract is only between the Highways department and 1st Defendant and not with the Plaintiff and Plaintiff is in no way connected with the said contract. According to 3rd Defendant, Plaintiff is third party and there is no privity of contract with the Highways department and the suit filed by the Plaintiff is not maintainable. 3rd Defendant denied the allegations that Plaintiff is the power agent and that he did the work of contract. 3rd Defendant emphatically denied any work done by the Plaintiff. As per the terms and conditions of the contract, 1st Defendant has executed the work and 1st Defendant had received the entire amount in full settlement and if there is any dues from the Highways department, the competent person to claim the amount is only the contractor viz., 1st Defendant and not the Plaintiff. 3rd Defendant also denies that there was any extra work on the assurance of the department to pay additional amount. If any extra work is to be executed, it is done only by way of supplementary contract in addition to the original contract and not on oral directions. The said contract work was done by 1st Defendant in conformity with the provisions contemplated in schedule A and no other extra work was done i.e. 95% compacted earth work by carted earth as stated by the Plaintiff. The said contract work was done by 1st Defendant in conformity with the provisions contemplated in schedule A and no other extra work was done i.e. 95% compacted earth work by carted earth as stated by the Plaintiff. The main defence is that there was no privity of contract between Highways department and the Plaintiff. There is no cause of action to file the suit against the Highways department and the suit is liable to be dismissed. 7. On the above pleadings, four Issues were framed in the trial Court. Plaintiff examined himself as PW1 and one Subbu Rao, retired Zonal Accountant-cum-Manager in the Highways department was examined as PW2. On Plaintiffs side, Exs.A1 to A8 were marked. 1st Defendant-Veerappan was examined as DW1 and one Manoharan who was then working as Assistant Engineer in Mannargudi Highways was examined as DW2. Exs.B1 to B17 were marked. 8. Referring to Exs.A2 to A5, trial Court held that Plaintiff corresponded with the department. As Plaintiff had sent the letter to the department asking for settlement, trial Court held that Plaintiff is entitled to file the suit. Trial Court further held that 3rd Defendant had not proved that the amount was paid to 1st Defendant for the work done. Laying emphasis upon Ex.A12, trial Court held that 95% compaction earth work was done which was not taken into account and that the Divisional Engineer has sent the proposal for the revised estimate and the Plaintiff is entitled to the amount. In reference to Ex.B16 which is to the effect that 1st Defendant has not nominated any person, trial Court held that Ex.B16 is not proved to be written by 1st Defendant and the contents has not proved to be written by 1st Defendant. Finding that since 1st Defendant unwell and he nominated the Plaintiff to do the work on his behalf, trial Court held that Plaintiff did have cause of action to file the suit against the 3rd Defendant and on those findings, decreed the suit directing the 2nd and 3rd Defendants to pay Rs.11,52,000/- and interest as prayed for. Feeling aggrieved by the Judgment, 2nd and 3rd Defendant have preferred this Appeal. .9. Feeling aggrieved by the Judgment, 2nd and 3rd Defendant have preferred this Appeal. .9. Challenging the finding of the trial Court, Mr.Ravi, learned Special Government Pleader submitted that there is no contractual obligation between the Defendants 2 and 3 and Plaintiff and in the .absence of any privity of contract, Plaintiff cannot maintain the suit. It was further argued that payments were already received by the Plaintiff and Plaintiff has to proceed only against his principal [1st Defendant] and not against the Defendants 2 and 3. Learned Special Government Pleader further contended that without obtaining prior permission/consent from the Defendants 2 and 3, Plaintiff cannot maintain the suit. It was also contended that as per the terms of the contract, 1st Defendant only signed in the M Books maintained by the department which are maintained in the official course of business and as per the entries made in the M Book marked as Exs.B12 to B14, the same shall prove that only 1st Defendant has completed the work and not the Plaintiff. 10. Learned counsel for Plaintiff contended that Defendants 2 and 3 once having accepted the work, they are bound to pay the amount and the department was benefitted by the work done. It was further argued that there are overwhelming evidence and materials to show 95% compaction was made and recommendations were made by the Divisional Engineer to the Superintending Engineer who in turn had written to the Chief Engineer. It was further argued that when the 1st Defendant has not done the work and Plaintiff having done the work and Defendants 2 and 3 having been benefited by the work done by the Plaintiff, department is bound to pay the amount for the extra work i.e. 95% compaction done by the Plaintiff. 11. Upon consideration of oral and documentary evidence, Judgment of the trial Court and the rival contentions of Defendants 2 and 3 and the Plaintiff, the following points arise for determination in this Appeal:- 1) Whether the Plaintiff has locus standi to maintain the suit? 2) Whether there is privity of contract between the Plaintiff and Defendants 2 and 3 and whether the Appellants are right in contending that the suit is not maintainable? 3) Whether the Plaintiff is entitled to the relief as power agent of 1st Defendant? 2) Whether there is privity of contract between the Plaintiff and Defendants 2 and 3 and whether the Appellants are right in contending that the suit is not maintainable? 3) Whether the Plaintiff is entitled to the relief as power agent of 1st Defendant? 4) Whether the Plaintiff/1st Respondent is right in contending that he has done the work and the benefit was taken by the Defendants 2 and 3 [department] and Plaintiff is entitled to the suit claim on the basis of extra work done? 5) Whether the decree infavour of Plaintiff is sustainable? 12. Point Nos.1 and 2:- There was contract between Highways department and 1st Defendant to do the work of widening and strengthening Mannargudi-Muthupet Road KM 18/0 to 19/0 as per the Agreement in AGT No.196/95-96 dated 30.05.1995. The contract is between the Highways department and 1st Defendant and not with the Plaintiff. 13. Plaintiff is also Class-I contractor of Highways department in the State of Tamil Nadu. According to Plaintiff, because of ill-health of 1st Defendant, he has appointed the Plaintiff as his Power of Attorney authorising him to act on his behalf in all matters pertaining to the above work as per the contract and execute the same and in that capacity Plaintiff had executed the work for and onbehalf of 1st Defendant. Further case of Plaintiff is that though initially the authority was oral, Ex.A1-Power of Attorney [15.09.1995] was executed by the 1st Defendant. In his evidence, PW1-Ramachandran has stated that 1st Defendant was unwell and 1st Defendant asked him to do the work. PW1 has further stated based upon Ex.A1-Power of Attorney, oral permission was obtained from the department and the department consented for appointing the Plaintiff as power agent of 1st Defendant. 14. The written contract [Ex.B1] entered between the contractor and the Government shall be the foundation of rights and obligations of both parties. As per Ex.B1-Articles of Agreement, the contractor has agreed to execute the contract subject to the conditions set forth in the Preliminary Specification of the Madras Detailed Standard Specifications. The conditions contained in the Preliminary Specification of the Madras Detailed Standard Specifications would form part of the contract. As per Clause 108.10 of Preliminary Specifications to Standard Specifications to Roads and Bridges " ..... The conditions contained in the Preliminary Specification of the Madras Detailed Standard Specifications would form part of the contract. As per Clause 108.10 of Preliminary Specifications to Standard Specifications to Roads and Bridges " ..... from commencement to completion and up to the expiry of observation period, the work shall be under the charge and care of the contractor and the contractor shall take full responsibility for the care thereof". Clause 108.16 deals with admission to the site which reads as follows:-"The Contractor shall take all reasonable steps to ensure that no alion or person or dual nationality shall be admitted to the site of the work, unless the prior permission in writing of the Engineer has been obtained." As per Clause 108.20, the contractor shall not assign, transfer or otherwise dispose of whole or any part of his contract his right etc. Clause 108.20 reads as under:- "........ The contractor shall not assign, transfer, convey, sell or otherwise dispose of the whole or any part of his contract his right, title, or interest therein, or his power to execute such contract, to any person, firm, partnership or corporation without written consent of the Engineer". Clause 108.20 of Preliminary Specifications to Standard Specifications to Roads and Bridges is clear that contractor shall not transfer or assign or ask whole or any part of his contract to any person without written consent of the Engineer. 15. Case of Plaintiff is that 1st Defendant had executed Ex.A1-Power of Attorney 15.09.1995] authorising him to execute the work of widening and strengthening Mannargudi-Muthupet Road KM 18/0 to 19/0. The recitals in Ex.A1-Power of Attorney reads as under:- “TAMIL” 16. The entire recitals in Ex.A1 is in clear contradiction of the Preliminary Specifications to Standard Specifications to Roads and Bridges. Unless the authority of the Plaintiff is shown to be with the consent of department, Plaintiff cannot maintain the suit in his individual capacity. .17. In his evidence, PW1 has stated that Defendants 2 and 3/department had given oral permission to the Plaintiff to execute the work for and on behalf of 1st Defendant. Absolutely, there is nothing to indicate any such oral permission by the department. In his evidence, DW2-Assistant Engineer has stated that only 1st Defendant has executed the work from the beginning till the end. DW2 has denied the execution of any work by the Plaintiff. 18. Absolutely, there is nothing to indicate any such oral permission by the department. In his evidence, DW2-Assistant Engineer has stated that only 1st Defendant has executed the work from the beginning till the end. DW2 has denied the execution of any work by the Plaintiff. 18. Calling upon the department to arrange for intermediate payment on the extra work done, 1st Defendant has sent Ex.A2-notice [13.08.1997]. In Ex.A2-notice, absolutely, there is no indication that the work was entrusted to the Plaintiff and that department has also permitted the same. For the first time, Plaintiff has sent Ex.A4-notice [03.04.1998] calling upon the department to measure and keep the record of work done by the Plaintiff which were omitted to be recorded and also stating that formation was done with necessary compaction to the satisfaction of the Engineers. Only in Ex.A4-notice, Plaintiff had described himself as authorised representative of 1st Defendant-Veerappan. In Ex.A4-notice, there is no mention of Ex.A1 execution of Power of Attorney [15.09.1995] and the permission granted by the department for such authorization of the Plaintiff to execute the work for and onbehalf of the 1st Defendant. 19. On receipt of Ex.A4-notice, department/Superintending Engineer sent Ex.A6-reply [27.04.1998] to the Plaintiff stating that the work was executed only by Veerappan [1st Defendant] and calling upon the Plaintiff to send authorised documents to show that he is the authorised representative of 1st Defendant. After the Plaintiff has sent letter dated 09.05.1998, the Superintending Engineer sent Ex.A7-letter [25. 1998] informing the Plaintiff that power deed executed by 1st Defendant had not been registered in the Sub Registrars Office and therefore, the said power deed executed cannot be considered as valid document. Ex.A7-letter would clearly show that department has not accepted nor recognised the Plaintiff as power agent of 1st Defendant. When the department has not granted any permission to the Plaintiff to be the authorised representative of 1st Defendant nor accepted the same, Plaintiff cannot maintain the suit in his individual capacity. Since there is no privity of contract between the Plaintiff and the department, in the suit filed by the Plaintiff in his individual capacity, Plaintiff is not entitled to any relief. .20. Since there is no privity of contract between the Plaintiff and the department, in the suit filed by the Plaintiff in his individual capacity, Plaintiff is not entitled to any relief. .20. In Ex.A6-letter [27.04.1998], the Superintending Engineer has called upon the Plaintiff to send documents to show that he is the authorised representative of Veerappan [1st Defendant] to enable the office to consider the Plaintiffs claim based on the merits of the case. The relevant portion of Ex.A6-letter reads as under:- "You are therefore requested to send the authorised documents to show that you are the authorised representative of Thiru.V.Veerappan for corresponding such issue to enable this office to consider your claims based on the merits of the case." .Referring to Ex.A6-letter, trial Court circumvented the entire issue by saying that 3rd Defendant had called for the records and by Ex.A6-letter the department has indirectly accepted that Plaintiff is the power agent. Trial Court was not justified in drawing such an inference of consent from Ex.A6-letter and the approach adopted by the trial Court is perverse. Absolutely, there is no evidence or subsequent conduct of parties to show that department has accepted that Plaintiff is the representative of 1st Defendant. .21. As per the recitals in Ex.A1-Power of Attorney, the 1st Defendant is said to have authorised the Plaintiff to sign in the M Books. In Exs.B12 to B14 – M Books, only the 1st Defendant Veerappan has signed. In his evidence, PW1 has stated that for the execution of contract work, he himself had received the cheques from the department. Ex.B12 [M Book No.4679] is the entry for passing a sum of Rs.6,07,998/- by the Divisional Engineer (H&RW), Nagapattinam. From Ex.B12, it is seen that cheque bearing No.847705 dated 211. 1996 was issued to the contractor Veerappan [1st Defendant – CR AST No.196/95-96/30.5.96]. Likewise, Ex.B15 [M Book No.4679] is the entry for passing Rs.1,77,666/- by the Divisional Engineer (H&RW), Tiruvarur. From Ex.B15, it is seen that cheque bearing No.227680 dated 312. 1997 was issued to the contractor Veerappan [1st Defendant – CR AST No.196/95-96/30.5.96]. 22. Trial Court brushed aside Exs.B12 and B15 by saying that 1st Defendant did not sign in Exs.B12 and B15 nor did he sign in it. Trial Court faulted the department for not filing the cheque register to prove that cheque was issued to the 1st Defendant. 1997 was issued to the contractor Veerappan [1st Defendant – CR AST No.196/95-96/30.5.96]. 22. Trial Court brushed aside Exs.B12 and B15 by saying that 1st Defendant did not sign in Exs.B12 and B15 nor did he sign in it. Trial Court faulted the department for not filing the cheque register to prove that cheque was issued to the 1st Defendant. As pointed out earlier, from Exs.B12 and B15, it is seen that cheque issued to the contractor Veerappan [CR AST No.196/95-96/30.5.96]. It is not the case of 1st Defendant that he had not received any amount. 1st Defendant had only averred that under the compulsion of department, he has put his signature in the registers and white paper. In our considered view, trial Court erred in brushing aside the clinching evidence of Exs.B12 and B15 evidencing passing of bill and payment of the amount in the name of contractor/1st Defendant. M Book being maintained in the official course of business, under Sec.114 (e) of Indian Evidence Act, presumption has to be raised as to the correctness of the entries in the records maintained in the official course of business. In the light of the presumption drawn, it is for the Plaintiff to adduce evidence to rebut the presumption. Case of Plaintiff that he received the cheque payable to 1st Defendant-contractor is not supported by any evidence or subsequent conduct of parties. .23. It is relevant to note that in the letter [Ex.B16] addressed to the Superintending Engineer, 1st Defendant has stated that he himself has done the work and denied any power deed given to the Plaintiff. Ex.B16-letter reads as under:- .“TAMIL” 24. As pointed out earlier, in his evidence, DW2-Assistant Engineer has stated that the work was executed only by the 1st Defendant and that only he has signed in the M Books – 4679, 4469 & 4886. When the 1st Defendant was confronted with Ex.B16, the 1st Defendant has admitted his signature in Ex.B16, but denied the contents thereon. It is relevant to note that Ex.B16 is hand written which contains the signature of 1st Defendant and the trial Court brushed aside Ex.B16-letter saying that Defendants 2 and 3 have not adduced any evidence to prove that Ex.B16-letter was written by the 1st Defendant. It is relevant to note that Ex.B16 is hand written which contains the signature of 1st Defendant and the trial Court brushed aside Ex.B16-letter saying that Defendants 2 and 3 have not adduced any evidence to prove that Ex.B16-letter was written by the 1st Defendant. Ex.B16-letter being addressed to the Superintending Engineer and produced from the lawful custody, trial Court was not right in saying that department ought to have adduced independent evidence to prove Ex.B16. .25. It is pertinent to note in the written statement, 1st Defendant has alleged that the officials had taken his signature in certain registers and also in blank papers. When the 1st Defendant has admitted his signature, it is for the 1st Defendant to show under what circumstances his signatures were taken and the steps he had taken thereafter. In our considered view, trial Court erred in throwing the burden upon Defendants 2 and 3 to prove Ex.B16-letter. In the light of the entries [Exs.B13 and B14] in M Books which also contains signatures of 1st Defendant, trial Court was not right in brushing aside Ex.B16. The recitals in Ex.B16 would strike death knell blow to Plaintiffs case. Plaintiff has neither proved the execution of work by him nor proved to be the authorised agent with the consent of the department and Point Nos. 1 and 2 are answered accordingly. .26. Point No.3:- As pointed out earlier, Ex.B1-Articles of Agreement governs the parties. As per the terms of Ex.B1-Articles of Agreement, in case of any dispute between the parties either party may refer the dispute to the Arbitration. The relevant clause reads as under:- "Provided that either party may refer the dispute to the said Arbitration for the claims up to the value of Rs.2.00 lakhs (Rupees two lakhs only) and the claims above the Rs.2.00 lakhs (Rupees two lakhs only) be referred to the Court provided also that in cases which the Executive Engineer has entered into the contract on behalf of the Governor, the dispute or difference shall be referred by the Executive Engineer for the time being and in the other case by any authorised in this behalf by the Government of Tamilnadu". .For the sake of argument, let us assume that original contractor/1st Defendant is making the claim against the department. .For the sake of argument, let us assume that original contractor/1st Defendant is making the claim against the department. In such an event the 1st Defendant cannot maintain the suit against the department and he has to necessarily invoke arbitration clause. Even if we assume that the Plaintiff is an authorised representative of 1st Defendant, without invoking arbitration clause, Plaintiff cannot maintain the suit and the Point No.3 is answered accordingly. 27. Point Nos.4 and 5:-Coming to the actual alleged work done by the Plaintiff, case of Plaintiff is that sizeable work had been done and it was noticed that earth work done for formation of embankment and berms to achieve 95% compaction with power roller at bottom layers has been omitted to be figured in Schedule-A of the contract documents. According to the Plaintiff, approximate quantity of the earth work done to achieve 95% compaction with power roller is 9000 cubic metres. Further case of Plaintiff is that the above quantity is exclusive of earth work to achieve 100% compaction which is included in Schedule-A. In his evidence, PW1 has stated that the quantities shown on the plan and drawings shall govern over those shown in Schedule-A of documents. .28. In his evidence, PW1 has stated that there was no mud portion and that he has to widen the road nine metres i.e. in addition to the existing road half metre on the right side and half metre on the left side. The relevant portion of evidence of PW1 reads as under:- “TAMIL” .In his evidence, PW1 has stated that he has brought 8957 cubic metres earth from outside place and 95% compaction was done to widen the road. PW1 has further stated that in bringing 8957 cubic metres mud from other place and for widening the road by 95% compaction, he has spent more than Rs.8,00,000/- and hence claim for Rs.11,52,000/-. .29. As pointed out earlier, as per the Articles of Agreement, the condition to set forth in the Preliminary Specification of the Madras Detailed Standard Specifications to Roads and Bridges and such conditions contained in the specifications. Clause 105.05 deals with alterations/increase/decrease. As per Clause 105.05 for quantities upto 25% increase or decrease, contractor shall execute the work at the same rate in cases of alterations involved an increase or decrease of more than 25% in the quantity of any item, there shall be a supplemental agreement. Clause 105.05 deals with alterations/increase/decrease. As per Clause 105.05 for quantities upto 25% increase or decrease, contractor shall execute the work at the same rate in cases of alterations involved an increase or decrease of more than 25% in the quantity of any item, there shall be a supplemental agreement. The relevant portion of Clause 105.05 reads as under;-" ......... Such alterations shall be ordered in writing before starting the work on such alterations. No signed drawing shall be taken as in itself as an order for variation, unless accompanied by a covering letter from the Engineer confirming that the drawing is an authority for variation. Alterations as referred to above shall not be considered as a waiver of any condition of contract nor invalidate any of the provisions thereof. The contractor shall execute the work at the same rates as in the agreement for quantities up to 25% increase or decrease of the agreement quantity of the relevant item listed in Schedule A. But a supplemental agreement with the Contractor for the item or items involved will be necessary when the alterations involve an increase or decrease of more than 25% in the quantity of any item listed in the schedule A. Settlement of a new rate and supplemental agreement would arise if only the variation is more than 25% of the agreement quantity of the relevant item listed in Schedule A provided the value involved is not less than Rs.1000.00. In respect of substituted items and new items the rates shall be settled as per article 110.04 of PS to SSRB. The supplemental agreement would cover quantities varying beyond 25% of the quantities for the respective items listed in Schedule-A." .Admittedly, Ex.B1-contract for widening and strengthening the road was for Rs.10,34,000/-. Case of Plaintiff is that he has done extra work for Rs.8,00,000/-. For any such increase in work of Rs.8,00,000/- as per Clause 105.05, supplemental agreement ought to have been executed. In the absence of any supplemental agreement, the Plaintiff cannot maintain the suit claim. 30. Trial Court failed to note that as per Preliminary Specification of the Madras Detailed Standard Specifications to Roads and Bridges Clause 105.05, there is stipulated procedure for considering the additional work without calling for Tender and making the supplemental agreement is mandatory. In the absence of any supplemental agreement, the Plaintiff cannot maintain the suit claim. 30. Trial Court failed to note that as per Preliminary Specification of the Madras Detailed Standard Specifications to Roads and Bridges Clause 105.05, there is stipulated procedure for considering the additional work without calling for Tender and making the supplemental agreement is mandatory. While so, trial Court erred in saying that the extra work could be done either with or without permission of the Officials. In his cross-examination, PW2 has stated that if the contract work is for Rs.10 lakhs, with the oral permission, the contractor can do the extra work for another Rs.10 lakhs. Evidence of PW2 is totally contradictory to the Preliminary Specification of the Madras Detailed Standard Specifications to Roads and Bridges Clause 105.05. We are of the view that trial Court erred in accepting the evidence of PW2 in saying that the extra work could be done with or without the permission of the Officials. The relevant finding of trial Court is as follows:- “TAMIL” Equally, trial Court erred in saying that Assistant Engineer and Additional Divisional Engineer are authorised to permit the extra work even for more than Rs.10 lakhs. The above reasonings of the trial Court totally ignores Preliminary Specification of the Madras Detailed Standard Specifications to Roads and Bridges Clause 105.05 and the procedures stipulated thereon for increase/decrease the work. The above finding being perverse cannot be sustained. 31. Case of Plaintiff is that quantum of extra work and value thereof contained in various documents pertaining to the contract and the same had been omitted to be mentioned in Schedule-A of the contract and Ex.B1-Articles of Agreement is not the full document of contract and the same is only a truncated portion thereof. Further case of Plaintiff is that he had done essential part of the contract and as the further work of 100% compaction could be carried out only if the bottom layer with 95% compaction is completed which was accepted by the department. Learned counsel for Plaintiff contended that the extra work even if not included in Schedule-A of Ex.B1 was done under the supervision of the department [Site Engineer] and department having been benefitted by the extra work are bound to pay for the extra work done. Learned counsel for Plaintiff contended that the extra work even if not included in Schedule-A of Ex.B1 was done under the supervision of the department [Site Engineer] and department having been benefitted by the extra work are bound to pay for the extra work done. It was further argued that even when the extra work was done by the Plaintiff, it could have been prevented and by accepting the extra work by itself gives rise to the lawful relationship. 32. To substantiate the Plaintiffs case that 100% compaction could be carried out only if the bottom layer with 95% compaction is completed, PW2 a retired Accountant-cum-Manager of Highways department was examined. In his evidence, PW2 has stated that only if 95% compaction is done for the bottom layer and further work of 100% compaction could be carried out. In this regard, the evidence of PW2 reads as under:- “TAMIL” In his evidence, PW2 has also stated that if any extra work is done, a revised estimate would be sent and the same would be accepted based upon the plan. With reference to the plan of the work in question, PW2 has further stated that the plan includes 95% compaction. The evidence of DW1/1st Defendant is to the same effect. As such we do not find any plan filed by Defendants 2 and 3. To substantiate his case that Plaintiff has done bottom layer with 95% compaction and the same was not included in Schedule-A of Ex.B1, Plaintiff mainly relies upon Ex.A12-letter dated 012. 1996 written by the Divisional Engineer to the Superintending Engineer wherein the Divisional Engineer has stated that 95% compaction was not taken into account and that the quantity of 8959 cubic metre has been omitted and the said quantity is included in the revised estimate. Ex.A12 letter of Divisional Engineer to the Superintending Engineer dated 012. 1996 read as under:-" ..... While preparing the estimate the 95% compaction which is in the earth work calculation sheet has not been taken into account either in detailed or Abstract estimate (ie) a quantity of 8959 M3 has been omitted. This quantity has been included in this Revised Estimate. ..... The said road runs almost in the Bamini left bank and with deep channel in the left side to the road. This quantity has been included in this Revised Estimate. ..... The said road runs almost in the Bamini left bank and with deep channel in the left side to the road. Consequently, there is no place for side earth work on Right hand side and left hand side of the road. Further the PWD authorities are also objecting during earth work in the bank even in the minimum level. The possibility of side earth work is very negligble and hence it is quite inevitable to do earth work with a lead of Five kilometre. All these warrants 95% and 100% compaction earth work with carted earth only. This aspect was dealt with in detail and items found necessary to do carted earth work according to site condition. ..... also inspected the site in person on 30.096. ....... a revised estimate for the above work for Rs.18 lakhs along with original estimate original agreement etc., for favour of approval of Revised Estimate. ....." 33. Ex.A13 is the letter dated 112. 1996 from Superintending Engineer to the Chief Engineer seeking for sanction of revised estimate for Rs.18 lakhs as against the original estimate of Rs.10 lakhs. Ex.A13-letter reads as under:- " .... the work of widening and strengthening Mannargudi-Muthupet road Km 0/0-34/0 (O.D.H.) was sanctioned for Rs.374.00 Lakhs as per G.O.D.No.464/PN (HP.1) Dept. Dt. 94. The one of the reaches of the road now dealt with under the reference requires revised technical sanction for Rs.18.00 Lakhs against the original technical sanction of Rs.10.00 Lakhs in view of the reasons already explained in the reference cited. ...... that the excess of the revised estimate now submitted for Rs.8.00 Lakhs (18.00-10.00=8.00 Lakhs) can be accommodated within the total amount sanctioned for the widening and strengthening of Mannargudi-Muthupet road Km 0/0-34/0 for Rs.411.40 Lakhs (ie 374.00 Lakhs + 10% = 411.40 Lakhs) without requiring revised administrative sanction of the Government. The excess will be well covered within overall savings available in the whole project of widening and strengthening Mannargudi Muthupet road Km 0/0-34/0 since 55% of the works were completed entirely without any deviation and for the balance 45% of works the works are in progress at various stages without any deviation. ...... The excess will be well covered within overall savings available in the whole project of widening and strengthening Mannargudi Muthupet road Km 0/0-34/0 since 55% of the works were completed entirely without any deviation and for the balance 45% of works the works are in progress at various stages without any deviation. ...... the Revised Estimate for Rs.18.00 Lakhs as against Original estimate of Rs.10.00 Lakhs may please be technically sanctioned and the orders of the competent authorities for the above deviation by way of new item of work may kindly be obtained and communicated early." 34. Ex.A14-letter dated 08.01.1997 is again the letter from the Divisional Engineer to the Chief Engineer referring to Ex.A13-letter and requesting the Chief Engineer to accord sanction for the revised estimate for Rs.18 lakhs admitting the deviation involved in the work. Onbehalf of Plaintiff much emphasis was laid upon Exs.A12 to A14. Case of Plaintiff is that even when the work was in progress, it was noted that the work for formation of embankment and berms to 95% compaction with power roller at bottom layers had been omitted in the contract documents. But however work was asked to be continued and taking note of the deviation and the extra work done by way of 95% compaction, Divisional Engineer has written to the Superintending Engineer [Ex.A12 dated 012. 1996] who in turn had written to the Chief Engineer [Ex.A13 dated 112. 1996] seeking for sanction of the revised estimate. Drawing our attention to the evidence of PW2, it was submitted that if any extra work is done the normal procedure is to send revised estimate. In this case also revised estimate was sent. Laying much emphasis upon Exs.A12 to A14, learned counsel for Plaintiff contended that if the work had not been done the Divisional Engineer/Superintending Engineer would not have so written to the Chief Engineer for sanction of the revised estimate. It was further submitted that the contents of Ex.A12-letter revised estimate admitting deviation involved. .35. Exs.A12 and A13 are dated 012. 1996 and 112. 1996 respectively and Ex.A14 is dated 08.01.1997. It was further submitted that the contents of Ex.A12-letter revised estimate admitting deviation involved. .35. Exs.A12 and A13 are dated 012. 1996 and 112. 1996 respectively and Ex.A14 is dated 08.01.1997. Drawing our attention to Exs.A12 to A14, learned counsel for Plaintiff submitted that even in December 1996 and January 1997, there had been various communication in the department to the effect that 95% compaction which is in the earth work i.e. 8959 cubic metre has been omitted in the detailed or abstract estimate and the said quantity has been included in their revised estimate. In his cross-examination when DW2 was questioned about the contents in Exs.A12 and A13, DW2 has accepted the contents thereof stating that “TAMIL” Plaintiff has taken advantage of the above answers of DW2 as he was only responding to the questions put to him in the cross-examination confronting him with reference to Ex.A13. Even though, DW2 has accepted the contents in Ex.A13, in his evidence DW2 has categorically stated that department asked the said revised proposal to be kept in abeyance. Exs.A12 to A14 are the internal correspondence of the department. It is not known as to how Plaintiff has got the copy of the said correspondence. It is also relevant to note that Exs.A12 to A14 are only xerox copies. In the trial Court, Plaintiff had not taken any steps nor appear to have issued any notice to Defendants 2 and 3 to produce the documents. While so, trial Court erred in faulting the Defendants 2 and 3 for not producing the Documents/File. 36. Under Section 101 of Indian Evidence Act, party seeking for a decree has to adduce best attainable evidence. The burden of proving the fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it. Section 102 of Indian Evidence Act embodies a test for ascertaining on which side the burden of proof lies. It means that when the burden of proof lies on a party, that party must fail if he does not discharge the burden by giving evidence. The burden rests upon the party who would fail if no evidence at all, or no more evidence as the case may be, were adduced by either side. When the Plaintiff seeks for money decree for the work done, the burden of proof squarely lies upon the Plaintiff. The burden rests upon the party who would fail if no evidence at all, or no more evidence as the case may be, were adduced by either side. When the Plaintiff seeks for money decree for the work done, the burden of proof squarely lies upon the Plaintiff. Plaintiff neither adduced evidence nor taken steps calling upon the Defendants 2 and 3 to produce the documents. Trial Court erred in faulting the Defendants 2 and 3 for non-production of the Documents/File. 37. In fact, Defendants 2 and 3 have produced the relevant documents pertaining to the contract in CR AGT No.196/95-96 dated 30.5.1996. Defendants 2 and 3 have produced Ex.B1-Articles of Agreement and also relevant M Books [ Nos.4886, 4469, 4679]. M Book 4469 contains the work done in the initial stages and the measurements checked by the department officials. All the entries in M Book 4469, 1st Defendant has signed below the entries made after the verification of the work done i.e. Ex.B3 dated 23. 1996 [Page 3 of M Book 4469]; Ex.B4 dated 08.04.1996 [Page 18 of M Book 4469]; Ex.B5 dated 17.04.196 [Page 22 of M Book 4469]; Ex.B6 dated 26.04.1996 [Page 30 of M Book 4469]; Ex.B7 dated 06.05.1996 [Page 34 of M Book 4469]; Ex.B8 dated 25.07.1996 [Page 43 of M Book 4469]; Ex.B9 dated 19.08.1996 [Page 73 of M Book 4469] and Ex.B10 dated 09.09.1996 [Page 77 of M Book 4469]. 38. Likewise, M Book 4679 contains details of earth work excavation done and issuance of cheque for Rs.6,07,998/- [Ex.B12 – Page 36 of M Book 4679] and for Rs.1,77,666/- [Ex.B15 – Page 80 of M Book 4679]. Ex.B2 is the M Book No.4886 which contains signatures of 1st Defendant [Ex.B13 dated 20.1.1997 – Page 24 of M Book 4886 and Ex.B14 dated 02. 1997 – Page 36 of M Book 4886]. .39. As pointed out earlier, for the work done and after verification, 1st Defendant has received cheque bearing No.847705 dated 211. 1996 for Rs.6,07,998/- [Ex.B12] and cheque bearing .No.227680 dated 312. 1997 for Rs.1,77,666/- [Ex.B15] respectively. Brushing aside the entire documentary evidence trial Court was not right in accepting the oral evidence of Plaintiff and granting decree. While putting signature in M Book 4886 – Page 36 [Ex.B14 dated 02. 1996 for Rs.6,07,998/- [Ex.B12] and cheque bearing .No.227680 dated 312. 1997 for Rs.1,77,666/- [Ex.B15] respectively. Brushing aside the entire documentary evidence trial Court was not right in accepting the oral evidence of Plaintiff and granting decree. While putting signature in M Book 4886 – Page 36 [Ex.B14 dated 02. 1997], just above the signature of the 1st Defendant, it was written “TAMIL” Later the same was struck off and 1st Defendant written only “TAMIL” 40. Laying emphasis upon the above writings in Ex.B14 [M Book 4886], onbehalf of Plaintif, it was contended that the writings “TAMIL” was struck off at the instance of the department and only the department officials must have scored off such writings in M Book 4886 [Ex.B14] with a view to enrich themselves. Learned counsel for Plaintiff contended that the conjoint writings of Ex.A12 [012. 1996] and Ex.A13 [112. 1996] and Ex.A14 [08.01.1997] and the endorsements in Ex.B14 [08.02.1997] would clearly show that department had accepted 95% compaction work done and having been benefitted, the department is liable to pay the amount to the Plaintiff. It was contended that Ex.A4 is dated 03.04.1998 which would have estranged the relationship between the Plaintiff and the department which made the department to take negative approach against the Plaintiff. Trial Court proceeded under the footing that the writings in Ex.B14 “TAMIL” was struck off only by the department and the trial Court threw the burden upon the Defendants to show under what circumstances it was struck off. M Books are the registers maintained in the official course of business and correctness of the documents thereon cannot be doubted. In his evidence, DW1 has stated that only officials of Defendants 2 and 3 have struck off the writings “TAMIL” This is all the more so when the striking is attested by 1st Defendant. In our considered view, trial Court erred in throwing the burden upon the Defendants 2 and 3 to show under what circumstances it was struck off. 41. Further contention of Plaintiff is that this is a clear case falling under Sec.70 of Indian Contract Act that the Defendants 2 and 3 having been benefitted by the extra work done on equitable principles of restitution and the prevention of unjust enrichment, the department is liable to pay the amount and therefore, trial Court was right in granting the decree. It is the further contention of Plaintiff that Plaintiff is not a interlopper and the Defendants 2 and 3 who had the advantage of the extra work, now cannot deny the liability. 42. Learned counsel for Plaintiff placed reliance upon Section 70 Indian Contract Act. Sec.70 of Contract Act reads as under:- "Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered." 43. Contending that Plaintiff has not intended to do the work gratuitously and Defendants 2 and 3 having accepted the benefit they cannot escape from the liability, learned counsel for the Plaintiff has drawn our attention to number of decisions. Further contention of Plaintiff is that the principles of equity are embodied in Sec.70 of Contract Act and to prevent unjust enrichment or unjust benefit and when Plaintiff has done extra work – 95% compaction is entitled to claim the amount as the work was not intended for gratuitous purpose. 44. Learned counsel for Plaintiff placed reliance upon AIR 1966 SC 1034 [V.R.Subramanyam v. B.Thayappa (deceased) and others] where the Supreme Court held "if a party to a contract has rendered service to the other not intending to do so gratuitously and the other person has obtained some benefit, the former is entitled to compensation for the value of the services rendered by him. In the said case, building contractor made additional constructions to the building which were not done gratuitously and upon an oral agreement claimed compensation at prevailing market rate against owner of the plot and in such facts and circumstances, he was entitled to receive compensation for the work done which was not covered by the contract." 45. In (1980) 3 SCC 469 [Union of India v. M/s.J.K. Gas Plant], unused steel supplied by Government to a company for manufacturing purposes, delivered to another company under Governments direction. Delivery being lawful and the Government having enjoyed full and direct benefit, the Supreme Court held that Section 70 of Contract Act applicable and delivering company entitled to payment of price of the delivered steel from the Government. Delivery being lawful and the Government having enjoyed full and direct benefit, the Supreme Court held that Section 70 of Contract Act applicable and delivering company entitled to payment of price of the delivered steel from the Government. In the said case, Supreme Court referred to AIR 1962 SC 779 [State of W.B. v. B.K.Mondal], wherein it was held as follows:- "The first condition is that a person should lawfully do something for another person or deliver something to him. The second condition is that in doing the said thing or delivering the said thing he must not intend to act gratuitously; and the third is that the other person for whom something is done or to whom something is delivered must enjoy the benefit thereof. When these conditions are satisfied Section 70 imposes upon the latter person, the liability to make compensation to the former in respect of, or to restore, the thing so done or delivered." 46. Learned counsel for Plaintiff has also placed reliance upon 2006 (4) CTC 712 [Sports Development Authority of Tamil Nadu, No.116-A, Periyar E.V.R.High Road, Chennai-600 084, rep. by its Member Secretary v. Tarapore & Co., Engineers and Contractors, 827, Anna Salai, Chennai600 002, rep. by its Partner]. In the said case clause in contract provided that any extra work done by the Plaintiff should be by obtaining written authorisation. Plaintiff pleaded that he has done extra work not contemplated under original contract pursuant to oral instructions issued by subordinate officers of Defendant. Execution of extra work was not disputed and Defendant had certified the bill for the extra work done by the Plaintiff. In such facts and circumstances of the case, Division Bench of this Court held that Defendant had enjoyed benefit of extra work and Plaintiff is entitled to be compensated for such a work in terms of Sec.70 of Contract Act. The ratio of the above decision is not applicable to the case on hand. First of all, Plaintiff was not a contractor nor department has granted any permission to Plaintiff being authorised representative of contractor/1st Defendant. Secondly, in the instant case, extra work was not certified by the department. In such circumstances, the ratio of the above decision cannot be applied to the case on hand. 47. There is no force in the contention advanced invoking Sec.70 of Contract Act. Secondly, in the instant case, extra work was not certified by the department. In such circumstances, the ratio of the above decision cannot be applied to the case on hand. 47. There is no force in the contention advanced invoking Sec.70 of Contract Act. To invoke Sec.70 of Contract Act necessary conditions are that:- .(i) a person should lawfully do something for another person or deliver something to him; .(ii) in doing so, he must not act gratuitously; and (iii) the person for whom it is done must have enjoyed the benefit thereof. Sec.70 of Contract Act enables the Court to do substantial justice where a person lawfully does anything for another person. Sec.70 of the Act is to prevent unjust enrichment or unjust benefit. To invoke Sec.70 of Act, person should have done something lawfully. As discussed earlier, Plaintiffs power was rejected as it was unregistered. Assuming for the argument sake, Plaintiff had done any work, in the absence of any consent/permission, Plaintiff cannot be said to have lawfully done the work to invoke Sec.70 of the Act. 48. M Book No.4679 – Pages 57 to 80 contains earth work done. The particulars of nature of earth work done and the measurements etc. were checked and registered in M Book 4679 in Pages 57 to 80. As against the work done, the total value was calculated and cheque bearing No.227680 dated 312. 1997 for Rs.1,77,666/- was issued. It is relevant to note that cheque for Rs.1,77,666/- dated 312. 1997 [Ex.B15] is after the 1st Defendant issued Ex.A2-notice on 13.08.1997. It was thereafter, Plaintiff issued Ex.A4-notice dated 04. 1998 and thereafter, 1st Defendant is said to have given Ex.B16-letter denying any power being given to Plaintiff. In our considered view for the work done the amount was paid to contractor/1st Defendant. 49. Trial Court adopted erroneous approach and proceed on erroneous footing that Plaintiff was authorised agent as if he had been permitted to do the work. Most part of the Judgment of the trial Court is unnecessary deliberations throwing the burden upon the department to prove the negative. Trial Court also erred in faulting the department to prove that compacting work was not necessary. Trial Court merely placed reliance upon Ex.A12 to hold that department had stated that 95% compaction was omitted to be included in Schedule-A and that mud was brought from the outside for doing 95% compaction. Trial Court also erred in faulting the department to prove that compacting work was not necessary. Trial Court merely placed reliance upon Ex.A12 to hold that department had stated that 95% compaction was omitted to be included in Schedule-A and that mud was brought from the outside for doing 95% compaction. Trial Court did not properly appreciate the evidence of DW2 where he has stated that revised proposal was directed to be kept in abeyance. Trial Court did not analyse the entries in M Books and also issuance of Cheque to 1st Defendant in a proper perspective. 50. Appellate Court ordinarily will not interfere with the findings given by the trial Court. If while giving finding, trial Court ignored certain important piece of evidence and the said piece of evidence which are clearly important and where trial Court is misread and misconstrued the evidence, first Appellate Court is to necessarily reappreciate the evidence and facts. 51. Under Ex.A6-letter merely because Plaintiff was called upon to produce the authorised documents, Trial Court erred in holding that department has accepted that Plaintiff is an authorised agent of 1st Defendant. Trial Court misread Exs.A12 and A13-letters and merely because proposal for revised estimate sent, trial Court erred in holding that 95% extra compaction work was done. Trial Court did not properly appreciate that thereafter 1st Defendant received the cheque [entries in Ex.B15 dated 312. 1997 for Rs.1,77,666/-]. Trial Court ignored the material evidence and did not properly appreciate the evidence in the light of the Preliminary Specification to Standard Specifications to Roads and Bridges. Upon reappreciation of evidence and materials on record, we are of the view that the finding of the trial Court holding that Defendants 2 and 3 are liable to pay Rs.11,52,000/- and subsequent interest cannot be sustained and the Judgment of the trial Court is liable to be set aside and Point Nos.4 and 5 are answered accordingly. 52. Inthe result, Judgment of the trial Court in O.S.No.421 of 2000 dated 28.08.2003 on the file of Subordinate Judge, Thiruvarur is set aside and this Appeal is allowed. Suit O.S.No.421/2000 stands dismissed. Earlier, by the order dated 24.06.2004 in C.M.P.No.10467/2004, this Court directed the Appellants to deposit a sum of Rs.6,00,000/- and Plaintiff-Ramachandran was permitted to withdraw the said Rs.6,00,000/- on furnishing necessary security in the form of immovable property to the satisfaction of Subordinate Judge, Thiruvarur. Suit O.S.No.421/2000 stands dismissed. Earlier, by the order dated 24.06.2004 in C.M.P.No.10467/2004, this Court directed the Appellants to deposit a sum of Rs.6,00,000/- and Plaintiff-Ramachandran was permitted to withdraw the said Rs.6,00,000/- on furnishing necessary security in the form of immovable property to the satisfaction of Subordinate Judge, Thiruvarur. It was stated before us that Plaintiff has withdrawn the amount by producing security. Since the Appeal is allowed, it is open to the Appellants/Defendants 2 and 3 to take appropriate steps for recovery of the amount so withdrawn. In the circumstances of the case, both parties are directed to bear their respective costs.