Case: Hanumant Vs. The State Of Madhya Pradesh

(1) This is an appeal by special leave against a decision of the High Court at Allahabad, reversing the decision of the trial Court, in a suit instituted by the appellant to recover damages from the respondent-firm for breach of a contract(2) It appears that between 10th and 18/4/1941, the parties entered into 5 contracts, by which the respondent-firm undertook to supply to the appellant 184 bales of cloth of certain specifications manufactured by the New Victoria Mills, Kanpur and the Raza textile Mills, Rampur. Only 99 bales were taken up and there was a dispute about remaining 85 bales. On 17/10/1941, a settlement was arrived at between parties, and it was agreed that the respondent-firm should deliver to the appellant 61 bales, and that the goods should be delivered by 17/11/1941. The actual text of the agreement (Ex. 4) was as follows:61 bales as noted below are to be given to you by usWe shall continue sending goods as soon as they are prepared to you upto Magsar Badi 15 Sambat 1998. We shall go on supplying goods to you of the Victoria Mills as soon as they are supplied to us by the said Mill(Specifications of cloth given here)We shall go on delivering the goods to you upto Magsar Badi 15 out of the goods noted above which will be prepared by the MillAs the 61 bales were not supplied, the appellant sent a telegraphic notice to the respondent-firm on 20/11/1941 to the following effect : Give delivery of our 61 bales through Bank. Otherwise suing within 3 days. The appellant did not receive any reply to this notice, and so he instituted the suit which has given rise to this appeal, on 23/4/1942, claiming a sum of Rs. 9,808 and odd, which, according to him, represented the loss sustained by him on account of the rise in the market rate of the contracted goods, and he also claimed costs and interest. The respondent-firm resisted the suit on a number of grounds, but their main plea, with which alone we are concerned in this appeal, was that the performance of the contract had been frustrated by circumstances beyond their control and hence the appellants claim must fail. This plea was negatived by the trial Court, but it was upheld by the High Court, and hence this appeal.

Reasoning: (6) We agree with the reasoning of the Privy Council, and it seems to us that the considerations which prevailed with them must govern the construction of the agreement with which we are concerned in this case. The agreement does not seem to us to convey the meaning that the delivery of the goods was made contingent on their being supplied to the respondent-firm by the Victoria Mills. We find it difficult to hold that the parties ever contemplated the possibility of the goods not being supplied at all. The words prepared by the Mill are only a description of the goods to be supplied, and the expressions as soon as they are prepared and as soon as they are supplied to us by the said Mill simply indicate the process of delivery. It should be remembered that what we have to construe is a commercial agreement entered into in a somewhat common form, and, to use the words of Lord Sumner in the case to which reference has been made, there is nothing surprising in a merchants binding himself to procure certain goods at all events, it being a matter of price and of market expectations. Since the true construction of an agreement must depend upon the import of the words used and not upon what the parties choose to say afterwards, it is unnecessary to refer to what the parties have said about itA contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent unlawful, becomes void when the act becomes impossible or unlawfulThe enforcement of the agreement in question was, as we have already pointed out, not contingent on the happening of an uncertain future event, nor does the present case fall within the second paragraph of S. 56, which is the only provision which may be said to have any relevancy to the plea put forward by the respondents. Clearly, the doctrine of frustration cannot avail a defendant, when the non-performance of a contract is attributable to his own default.