Adverse inference to be drawn by Court.

Srinivasan, J.

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

2. The first plaintiff is a partnership firm carrying on business in engineering jobs and construction works. The second plaintiff is the managing partner thereof. The plaintiffs entered into an agreement with the first defendant on 2. 1974 for the execution of Suruliyar Hydro Electric Project Highways Dam excavation for foundation from Chainage 55 Metres to end of Dam, i.e., Chainage 165 metres upto the top of Highways Dam in Suruliyar Upper Cam -Specification No. SMH.37 Tender dated 18. 1973. The plaintiffs took over the site on 2. 1974 and started excavation work. The agreement was engrossed on stamp paper and signed by the parties on 111. 1974, which is marked as Ex.B-1. The plaintiffs commenced the masonry work on 7. 1976. Since then the excavation as well as masonry work were simultaneously carried out. According to the plaintiffs the work was completed by the end of the year 1978 and the last payment made by defendants 1 to 4 was on 4. 1980.

3. As per the terms of the agreement the sand required for the work shall be collected by plaintiffs from the approved quarries at Periyar river near Chinnamanur. There is also a clause that the sand collected should be in accordance with the Madras Detailed Standard Specifications known as M.D.S.S. When the plaintiffs brought the sand from Chinnamanur the same was tested by the defendants and rejected by them as not suitable. By letter dated 112. 1975 under Ex.A-5 the second defendant requested the plaintiffs to stop forthwith further collection of sand from Chinnamanur area and to collect the same from the then prevailing sand quarries of Govindanagaram, Lakshmipuram and Ambasamudram areas. Copies of the said letter were marked to the Assistant Engineers, I and II with instructions to report the extra lead involved over and above the specific lead in the tenders and the consequent additional cost of masonry to all the contractors. The second defendant assured the plaintiffs that extra cost would be paid for extra lead. Accordingly the plaintiffs collected sand from the approved quarries in Govindanagaram, Lakshmipuram and Boothipuram. According to the plaintiffs the defendants agreed to pay the extra cost involved by transporting sand from the newly approved quarries. The claim of the plaintiffs is that the additional cost incurred thereby is Rs.92,7229. When the plaintiffs wrote to the defendants for payment of the extra cost they were being informed that the matter was in the Chief Engineer’s office for consideration. They have waited for some time and since there was no response the plaintiffs issued a notice under Sec.80 of the Code of Civil Procedure calling upon the defendants to pay the additional cost, under Ex.A-9, dated 112. 1980. After sending an interim reply under Ex.A-10, dated1 212. 1980 the defendants sent a final reply under Ex.A-11, dated 20.1.1981 stating that the claim of the plaintiffs had been rejected by the Board. The plaintiffs filed the present suit on 9. 1981 for recovery of a sum of Rs.1,00,119-75, inclusive of interest at 12 per cent per annum from 112. 1980 to 38. 1981 on the sum of Rs.92,2722. The plaintiffs have also prayed for subsequent interest from the date of plaint. A calculation memo is attached to the plaint setting out the distance and rates.

4. The defendants have raised the following pleas in the written statement: The entire work was completed on 25. 1978 and not by the end of December, 1978 as alleged in the plaint. The bill for the work was paid on 14. 1980 and not on 11. 1980. As per Clause 11 of the tender specifications, the contractor should inspect the locality and study the topography of the area. He should also inspect the quarries etc. and satisfy themselve