Subba Rao, J.
1. This second appeal arises out of O. S. No. 601 of 1945, a suit filed by the appellant for recovering from the defendant damages for breach of contract.
2. On 6-10-1944, the defendant and the plaintiff entered into a contract whereunder it was agreed that the defendant should deliver 151 bags of Kannady quality jaggery at Rs. 20 per bag free on railway Karur. The defendant despatched the goods in Karur and they reached Calicut on 22-10-1944. The plaintiff on inspect-tion of the goods discovered that they were not in accordance with the quality agreed to be delivered. It appears that the agent of the defendant who was in Calicut persuaded the plaintiff to take the goods at Rs. 19 per bag with a promise that the defendant would deliver the goods of the requisite quality in accordance with the terms of the contract dated 6-10-1944.
3. Both the Courts found that by reason of the aforesaid agreement the defendant had agreed to deliver the goods under the earlier contract. Unfortunately on 25-10-1944, the Board of Revenue, Madras, issued a Press Note controlling the movement by rail of cane jaggery from any station in Trichinopoly District to Calicut. The effect of this notification was that the defendant could not put the goods on rail at Karur. Then correspondence passed between the parties in regard to the manner of delivery. Exs. D. 4 and D. 5. letters written by the plaintiff to the defendant, show that the plaintiff was not inclined to bear the additional expenditure he might incur in case the goods were delivered by lorry or otherwise. Whatever ambiguity there might be in the letters Exs. D. 4 and D. 5, in a reply to the letter by the defendant to the plaintiff, Ex. D. 6 dated 6-1-1945, wherein the defendant wrote to the plaintiff to come over to Karur and take delivery of the bags, the plaintiff wrote that, he was not willing to do so. As P. W. 1 he admitted in his chief-examination that in the reply notice the defendant said he would deliver the goods at Karur but that he was not prepared for it.
4. On these facts the question is whether the defendant was exonerated from his liability to carry out the terms of the contract. The governing section of the Contract Act is Section 56 which reads:
'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 .. ...'
Learned counsel for the appellant contended that the issue of the notification by the Board of Revenue. Madras, did not make the performance of contract impossible; for he said that the contract could be performed otherwise than by putting the goods on rail at Karur. The judgment of the Judicial Committee in 'Twentsche Overseas Trading Co. Ltd. v. Uganda Sugar Factory Ltd.,' 1945 1 Mad LJ 417 lays down the principle underlying the doctrine of impossibility. Their Lordships said that whether a frustration occurs or not depends upon the nature of the contract and on the events which have occurred. The pointed out that a contract will in law be deemed to be frustrated if the common basis on which both the parties entered into the contract has failed. To put in other words, a contract would be frustrated if there is a failure of what in the contemplation of both the parties would be the essential condition or purpose of the performance. Relying upon the aforesaid principles, learned counsel contended that in the present case the notification only affected the mode of carrying out the contract but did not displace the basis of the contract,
5. In this case it is not necessary to decide whether the contract has become impossible of performance or otherwise frustrated. Assuming that the contract had not become impossible of performance, can it be said, having regard to the circumstances of the case, that the defendant committed a breach of the contract. It is said that the goods could have been sent by some other means. But, as I have already stated, the correspondence and the oral evidence disclose that the plaintiff was not willing to bear the additional expenditure which the change of the mode of transport might entail Both the Courts found that the plaintiff refused to agree to the alternative mode of delivery suggested by the defendant. In the circumstances it cannot be said that the defendant committed breach of the contract. The findings of theDower Courts are correct. The second appealfails and is dismissed with costs.