Ganga Saran Vs. Ram Charan Ram Gopal
 INSC 51 (1 November 1951)
FAZAL ALI, SAIYID KANIA, HIRALAL J. (CJ)
MAHAJAN, MEHR CHAND
CITATION: 1952 AIR 9 1952 SCR 36
CITATOR INFO :
R 1954 SC 44 (10) R 1959 SC 135 (20) R 1968 SC
Indian Contract Act (1 of 1872), s.
56--Contract for delivery of goods manufactured by particular Mill as soon as
they are supplied --Construction of contract--Non-receipt of goods from Mill
within time--Whether excuses performance--Doctrine of frustration.
The respondents agreed to deliver 61 bales of
cloth to the appellant by the 17th November, 1941. The agreement provided
"we shall continue sending the goods as soon as they are prepared to you
up to 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 Mills
......We shall go on delivering the goods to you ...... out of the goods noted
above which will be prepared by the Mill." In a suit for damages for
non-delivery of the goods the respondents pleaded that as they had not received
the goods from the Victoria Mills before the 17th of November, 1941,
performance of the contract had become impossible by reason of an event which
they could not prevent and the contract had therefore become void under Sec.
56, Indian Contract Act:
Held, (i) that, on a proper construction of
the contract, delivery of the goods was not made contingent on their being
supplied to the respondents by the Victoria Mills. The words "prepared by
the Mills" were 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 indicated the process of
delivery. This was not therefore a case in which the doctrine of frustration of
contract could be invoked. (ii) Even apart from the construction of the
agreement, as the respondents had not shown that they had placed an order for
the goods with the Victoria Mills and yet the Mills had failed to supply, there
was a clear breach of contract to deliver and the appellant was entitled to
Harnandrai v. Pragdas (L. R. 15 I.A. 9) and
British Movietone News v. London Cinemas  2 A.E.R. 617) relied on.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 56 of 1951.
Appeal from a judgment and decree of the High
Court of Allahabad (Malik and Wali Ullah JJ.) dated 14th February 1946, in Appeal No. 240 of 1943 which 37 arose out of a decree dated 19th January, 1943, of the Court of the Civil and Sessions. Judge, Kanpur, in Original Suit No. 34
Achhru Ram (P. S. Safeer, with him) for the
S.P. Sinha (K. N. Aggarwala, with him) for
1951. November 1. The Judgment of the Court
was delivered by FAZL ALI J.--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.
It appears that between the 10th and 18th
April, 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, Ramput.
Only 99 bales were taken up and there was a
dispute about the remaining 85 bales. On the 17th October, 1941, a settlement
was arrived at between the parties, and it was agreed that the respondent-firm
should deliver to the appellant 61 bales, and that the goods should be
delivered by the 17th November, 1941. The actual text of the agreement (exhibit
4) was as follows:--" 61 bales as noted below are to be given to you by
We 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 Mill." 38 As the 61 bales were
not supplied, the appellant sent a telegraphic notice to the respondent-firm on
20th November, 1941, to the following effect "Give delivery of our 61
bales through Bank.
Otherwise suing within a 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 the 23rd April, 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 appellant's
claim must fail. This plea was negatived by the trial court, but it was upheld
by the High Court, and hence this appeal.
The only point which arises in this appeal is
whether the circumstances of the case afford any basis for the application of
the doctrine of frustration of. contract, a doctrine which is embodied, so far
as this country is concerned, in sections 32 and 56 of the Indian Contract Act,
The main grounds of attack against the
judgment of the High Court are :-(1) that it has misread the agreement (exhibit
4) dated the 17th October, 1941, on which both parties rely; and (2) that it
has paid more attention to an abstract legal doctrine than to the facts of the
In our opinion, both these contentions are
The construction placed by the High Court
upon the agreement and its conclusion based thereon, are set out in the
following passage in the leading judgment of Wali Ullah J.
:-"It seems to me that the parties
clearly intended that the defendant was to supply the goods to the 39
plaintiff' if and when--and only in that event--the particular goods were
prepared by the Victoria Mills and were supplied to the defendant between the
17th of October, 1941, and 17th of November, 1941. As the fundamental
assumption on which the contract was made ceased to exist during the time of
performance and consequently it became impossible for the defendant to fulfil
the contract, it must be held that the contract was discharged by supervening impossibility."
The construction suggested by the High Court is precisely the construction
which was attempted to be put on a similar contract by the
defendant-respondents in the case of Harnandrai v. Pragdas (1) but the Privy
Council negatived it.' In that case, the provision as to delivery of goods ran
as follows :-"The said goods are to be taken delivery of as and when the
same may be received from the Mills." The Mills failed to perform their
contract with the defendants as they were engaged in fulfilling certain contracts
with the Government, and consequently the defendants could not supply the goods
to the plaintiffs. The questions raised before the Privy Council were as to the
meaning of the contract and whether its performance had been frustrated, and
the Privy Council disposed of them in these words :-"It was also suggested
that the words 'as and when the same may be received from the Mills' should be
construed, as if they were ' if and when the same may be received from the
Mills.' This is to convert words, which fix the quantities and times for
deliveries by instalments into a condition precedent, to the obligation to
deliver at all, and virtually makes a new contract. The words certainly
regulate the manner of performance, but they do not reduce the fixed quantity
sold to a mere maximum, or limit the sale to such goods, not exceeding 864
bales, as the Mills might deliver to the defendants during the remainder of the
year." Their Lordships then proceeded to observe:-(1) (1888) L.R. 15 I.A.
40 "The Mills, from which the goods were
to come, no doubt were contemplated as continuing to exist, though it does' not
follow that, in a bargain and sale such as this, the closing or even the
destruction of the Mills would affect a contract between third parties, which
is in terms absolute;
but the Mills did continue to exist and did
continue to manufacture the goods in question, only they were made for and
delivered to somebody else." 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 merchant's
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 it.
Even apart from the construction of the
agreement, it seems to us that the plea of the respondents must fail on their
own admissions. The defendant has stated in his evidence that he had not sold
the 61 bales of cloth to any other person at the time he received the
telegraphic notice of the 20th November, 1941, (exhibit 1). On his own admission,
therefore, he was 41 in a position to supply 61 bales of the contracted goods
at the time when the breach of the agreement is alleged to have happened. That
being so, we are unable to hold that the performance of the contract had become
impossible. The matter however does not rest there. Guruprasad, a clerk of the
Mills Company, who is the second witness for the defendants, has made an
important statement to the following effect "The customers all place their
requirements before the sales manager. If the goods required are ready, they
are sold to the customers and if they are not ready and if the customer wants
them to be manufactured they are delivered to the customers after manufacture.
An order book is maintained at the Mills." Such being the practice which
prevailed in the Victoria Mills, it was for the defendants to show that an
order for the manufacture of the contracted goods was placed with the Mills and
yet the Mills failed to supply the goods. No such evidence has however been
offered by the defendants The High Court has surmised that it might not have
been possible to supply the goods within the period mentioned in the agreement,
but there is no material to support that statement.
In these circumstances, this is obviously not
a case in which the doctrine of frustration of contract can be invoked. That
doctrine has been explained in a number of cases, some of which are referred to
in the judgment of the High Court, but the latest pronouncement with regard to
it is to be found in the speech of Viscount Simon in British Moviet one News v.
London Cinemas(1), in which the Lord Chancellor referred with approval to the
following enunciation of the doctrine by Earl Loreburn in a previous case F.A.
Tamplin S.S. Co. Ltd. v. Anglo-Mexican Petroleum Products Co., Ltd(2):"...a
court can and ought to examine the contract and the circumstances in which it
was made, not of course (1)  A.E.L.R. 617. (2)  2 A.C. 403, 404.
6 42 to vary, but only to explain it, in
order to see whether or not from the nature of it the parties must have made
their bargain on the footing that a particular thing or state of things would
continue ,to exist. And if they must have done so, then a term to that effect
will be implied, though it be not expressed in the contract ...... no court has
an absolving power, but it can infer from the nature of the contract and the
surrounding circumstances that a condition which is not expressed was a
foundation on which the parties contracted," It seems necessary for us to
emphasize that so far as the courts in this country are concerned, they must
look primarily to the law as embodied in sections 32 and 56 of the Indian
Contract Act, 1872. These sections run as follows :-"32. Contingent
contracts to do or not to do anything if an uncertain future event happens
cannot be enforced by law unless and until that event has happened.
If the event becomes impossible such
contracts become void." "56. An agreement to do an act impossible in
itself is void.
A 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 unlawful.........
The 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 section 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.
We accordingly allow the appeal, set aside
the judgment of the High Court, and restore the decree of the trial court. The
appellant will be entitled to his costs throughout.
Agent for the appellant: R.S. Narula. Agent
for the respondent: S.S. Sukla.