IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 20TH FEBRUARY 2009 / 1ST PHALGUNA 1930 SA.No. 927 of 1995() -------------------- AS NO.29/1990 OF SUB COURT, TIRUR O.S.NO.102/1986 OF MUNSIFF-MAGISTRATE COURT, PONANI APPELLANT(S)/APPELLANT/DEFENDANT: -------------- SYED MOHAMMED HAJI'S SON MADATHIL BAVU, NANNAMUKKU AMSOM,. THEKKUMURI DESOM,\ PONANI TALUK. BY ADV. SRI.P.VIJAYA BHANU RESPONDENT(S)/RESPONDENT/PLAINTIFF: --------------- VELIYAMCODE PANCHAYAT, REP. BY THE EXECUTIVE OFFICER ABDURAHIMAN'S SON, ARIKATTAYIL ABDUL KHADER, VELIYAMCODE AMSOM & DESOM, PONANI TALUK. BY ADV. SHRI K.N.NARAYANAPILLAI, SHRI B.JAYASANKAR & SHRI DINESH R. SHENOY THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- S.A.No.927 of 1995 -------------------------------------- Dated this the 20th day of February, 2009. JUDGMENT The substantial questions of law raised for a decision are whether the contracting parties can be said to have been discharged from liability if the performance of the contract became impracticable and useless from the point of view of the object and purpose which the parties had in view and whether, Sec.56 of the Indian Contract Act (for short, “the Act”) can be held to be applicable when the object of the contract became impracticable and useless. 2. These substantial questions of law arise for consideration in a Second Appeal arising from the judgment and decree of the learned Munsiff- Magistrate Court, Ponnani in a suit filed by the respondent - Panchayat for realisation of the amount due as per Exts.A1 and A2, agreements executed between the appellant and the respondent on 22.3.1994. Admittedly, as per the said agreements appellant obtained the right to conduct ferry at two places for the period from 1.4.1984 to 31.3.1985 and to collect cess from the said ferry stations for the amounts mentioned in Exts.A1 and A2. Respondent claimed that the appellant conducted ferry service and collected cess in terms of the said agreements but failed to pay the entire amount due to it. Thereon, respondent sued the appellant for realisation of the balance amount in terms of Exts.A1 and A2 . Contention of the appellant in short is that the contract created by Exts.A1 SA No.927/1995 2 and A2 have become void on account of impossibility of performance since in the meantime, the approach road on either side of the bridge came into existence and people started using the approach road to go across the river and hence, so far as the object of the contract is concerned, the purpose of ferry became impracticable which put him to loss. Trial court rejected that contention. Appellate court confirmed. 3. It is contended by the learned counsel for appellant that the impossibility of performance referred to in Section 56 of the Act is not physical impossibility but takes in impracticability and uselessness from the point of view of the object and purpose for which the contract was entered into. Learned counsel placed reliance on the decision of the Supreme Court in Satyabrata Ghose v. Mugneeram Bangur and Co. and another (AIR 1954 SC 44). In that decision Supreme Court held thus: “...........the word “impossible” has not been used here in the sense of physical or literal impossibility. The performance of an act may not be literally impossible but it may be impracticable and useless from the point of view of the object and purpose which the parties had in view; and if an untoward event or change of circumstances totally upsets the SA No.927/1995 3 very foundation upon which the parties rested their bargain, it can very well be said that the promisor finds it impossible to do the act which he promised to do” The contention of the appellant is that on account of the approach road being constructed on either side of the bridge, people started using that bridge to cross the river, that affected the conduct of ferry and hence performance of the contract became impracticable. In this case, going by the evidence of the appellant as DW1 even at the time Exts.A1 and A2 were executed the concrete work of the bridge was almost over and what was left was only the construction of the approach road to the bridge. If that be so, it is not as if the construction of the bridge and its completion was not within the contemplation of the appellant at the time of contract was entered into, in which case he must be deemed to have been aware of the possibility of people using the bridge to go across the river. Under Section 56 of the Act which the appellant is pressing into service, impossibility or illegality of performance of the contract must be due to a supervening event which was not in the contemplation of the parties at the time of making the contract and which occurred thereafter. That is the principle laid down by the Supreme Court in the decision cited by the learned counsel for the appellant as well. In this case, as I stated above it was well within the knowledge of the appellant at the time he entered into Exts.A1 and A2 agreements that the construction of the bridge and approach road are fast SA No.927/1995 4 progressing. In that case I am unable to hold that the completion of the bridge and approach road was an unexpected event which was not within the contemplation of the parties at the time of execution of Exts.A1 and A2. Exts.A1 and A2 do not also contain any clause which required the respondent to make any remission of the amount agreed to be paid in case of any such eventuality. 4. What is attempted to be made out is only a commercial unviability for the appellant in the matter of discharge of the contract. That does not come within the purview of Section 56 of the Act. As such the claim based on Section 56 of the Act cannot be sustained. No other point is raised for consideration. Appeal fails. It is dismissed. No costs. THOMAS P.JOSEPH, Judge. cks SA No.927/1995 5 Thomas P.Joseph, J. S.A.No.927 of 1995 JUDGMENT 20th February, 2009.