IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.04.2010 CORAM : THE HONOURABLE Mrs.JUSTICE R.BANUMATHI and THE HONOURABLE Mr.JUSTICE M.VENUGOPAL Appeal Suit No.680 of 2004 1. State of Tamil Nadu, rep. by the Secretary, PWD Department. Fort St. George, Chennai-9. 2. The Superintending Engineer, Highways and Rural Works, Trichirapalli. ... Appellants/ Defendants 2 and 3. vs. 1. K.Ramachandran ... Respondents/Plaintiff and 2. Veerappan 1st defendant Prayer: Appeal filed under Section 96 of C.P.C. against the Judgment and Decree dated 28.08.2003 made in O.S.No.421 of 2000 on the file of the Subordinate Judge, Tiruvarur. For Appellants : Mr.V.Ravi, Spl. Government Pleader (AS) For Respondents : Mr.R.Swaminathan – R1 Mr.S.Nagarajan – R2 JUDGMENT (Judgment delivered by Justice R.BANUMATHI) 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 Plaintiff's 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 https://hcservices.ecourts.gov.in/hcservices/ 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 26.11.1996, 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 15.10.1995 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 17.12.1996] 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 27.1.2007. 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 Plaintiff's 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 https://hcservices.ecourts.gov.in/hcservices/ 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. 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 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. https://hcservices.ecourts.gov.in/hcservices/ 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 Plaintiff's 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. 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 https://hcservices.ecourts.gov.in/hcservices/ 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? 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. https://hcservices.ecourts.gov.in/hcservices/ 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 " ..... 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:- @Fwpg;ghf (1) kd;dhh;Fo. Kj;Jg;ngl;il rhiy fpnyh kPl;lh; 18-0 Kjy; 19-0 fp/kP/ tiu mfyg;gLj;jp tYg;gLj;Jk; ntiyia xg;ge;j tpjpfspd;goa[k;. jpl;l gl';fspd; goa[k;. tiu gl';fspd;goa[k; bra;JKof;f ntz;oaJ/ (2) bra;J Koj;j ntiyfSf;fhd mst[g;g[j;jf';fspd; mst[fis rhpghh;j;J rk;kj ifbahg;gk; ,Ljy;/ (3) beL";rhiyj;Jiwapdh; ntiyf;fhf bfhLf;Fk; rhkhd;fs; jhh; cl;gl bgw;W ntiy bra;jy;. mjw;fhd mYtyf urPJfspy; ifbahg;gk; bra;jy;/ (4) ntiyf;F njitahd jFjp cs;s bjhHpyhsh;fis epakdk; bra;J mth;fspd; Cjpaj;ij gl;Lthlh bra;jy;/ https://hcservices.ecourts.gov.in/hcservices/ (5) ntiy bra;tjhy; Vw;gLk; rfy yhg ec;&l';fSf;Fk;. tpah$;$pa';fs;. jhthf;fs; midj;ija[k; Vw;W elj;Jk; rfy bghWg;g[fisa[k; fhhpa!;jnu KG bghWg;ngw;f ntz;Lk;/ (6) ntiy bra;tjw;Fz;lhd gl;oay; fhnrhiyfs; bgw;Wf;bfhs;st[k;. urPJfspy; ifbahg;gk; ,lt[k;. fhnrhiyfis t';fpapy; nghlt[k;. gzj;ij vLf;ft[k; bghWg;ngw;f ntz;Lk;/ (7) ,e;j ntiy rk;ge;jkhd tHf;Ffs; tpah$;$pa';fs; jhthf;fs; Vw;god; mtw;wpw;F vd; bghUl;L rk;ge;jg;gl;l mYtyf';fspy; M$uhfp mitfis Vw;W elj;j KGg;bghWg;g[ Vw;f ntz;Lk;/@ 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 onbehalf 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. 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 [25.5.1998] informing the Plaintiff that power deed executed by 1st Defendant had not been registered in the Sub https://hcservices.ecourts.gov.in/hcservices/ Registrar's 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. 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 Plaintiff's 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 25.11.1996 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 31.12.1997 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 https://hcservices.ecourts.gov.in/hcservices/ 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:- @ehd; kd;dhh;Fo Kj;Jg;ngl;il rhiyapy; fp/kP/18-0?19-0 tiu nkk;ghl;L gzpia 1995?96k; Mz;oy; blz;lh; vLj;J ntiyfs; bra;J Koj;njd;/ Rkhh; Xuhz;ow;F Kd;djhf ntiyia Koj;J ,Wjpg; gl;oay; bgw;Wtpl;nld;/ nkw;go gzpf;fhf Kd; itg;g[j; bjhifahf brYj;jpapUe;j ,e;jputpfh!; gj;jpu';fisa[k; nfhl;lg; bghwpahsh; (be/rp/g) jpUthU:h; mth;fsplkpUe;J jpUk;gg; bgw;Wtpl;nld;/ nkw;go ntiyf;F ehd; vdf;Fg; gjpyhf ntiyia bra;JKof;f gth; gj;jpuk; vGjpf; bfhLf;ftpy;iy/ Mdhy; nf/uhkr;re;jpud; fUg;igah njth; kfd; vz;/22 Fl;ilf;Fsk; mlfiw mwe;jh';fp jhYfh. g[Jf;nfhl;il vd;w xg;ge;jf;fhuh; ,e;j ntiyf;F ehd; 15/9/95 md;W gth; gj;jpuk; mth; bgahpy; vGjpf;bfhLj;jpUg;gjhft[k; mjd;go mth; me;j ntiyia bra;J Koj;jjhft[k;. bra;J Koj;j ntiyapy; kz; ntiyapy; mst[fs; TLjyhf bra;Js;sjhft[k; me;j TLjy; kz; ntiyf;fhd gzk; brl;oy; gz;z ntz;Lk; vd fz;fhzpg;g[ bghwpahsh; (beL";rhiyj;Jiw) mth;fSf;F tf;fPy; nehl;O!; bfhLj;jpUg;gjhf mwpfpnwd;/ nkw;go ntiyf;F jpU/nf/uhkr;re;jpud;. xg;ge;jf;fhuUf;Fk; ve;jtpjkhd rk;ge;jk; ,y;iy vd;gija[k;. ehd; mth; bgaUf;F gth; gj;jpuk; bfhLj;jpUg;gjhf TWtJ rhpay;y vd;gija[k; mth; VjhtJ gth; gj;jpuk; bfhLj;jhnuahdhy; mJ nghypahd gj;jpukhFk; mjpypUg;gJ vd;Dila ifbaGj;J ,y;iy vd;gij ,jd;K:yk; ehd; bjhptpj;Jf;bfhs;fpnwd;/@ 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 https://hcservices.ecourts.gov.in/hcservices/ 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 Plaintiff's 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