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Ram Kumar Agarwalla Vs. P.C. Roy and Co. (India) Ltd. - Court Judgment

LegalCrystal Citation
SubjectContract
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 125 of 1949
Judge
Reported inAIR1952Cal397
ActsContract Act, 1872 - Section 56
AppellantRam Kumar Agarwalla
RespondentP.C. Roy and Co. (India) Ltd.
Appellant AdvocateH.N. Sanyal, ;A.C. Mitra and ;P.K. Paul, Advs.
Respondent AdvocateSankar Banerjee and ;S.C. Talukdar, Adv.
DispositionAppeal allowed
Cases ReferredMott & Dickson v. Fraser
Excerpt:
- s.b. sinha, j.1. this is an appeal from a judgment & decree of chatterjee, j. see a i r (39) 1952 cal 335-ed. whereby he dismissed the plff's suit for damages for breach of a contract.2. one hazarimull agarwalla, as karta of a joint hindu family, carried on a business under the name & style of shri jagdish rice & oil mills, at forbesganje in purneah, bihar. he died during the pendency of the suit & is now represented by his son, ramkumar agarwalla. the deft, is a limited company having its registered office in calcutta.3. the plaint alleged that there was a contract between the plff. & the deft, company for sale of rice. the contract was entered into between the plff. & the company by 2 letters & a telegram dated respectively july 12, july 15, and july 17, 1943. the terms of the contract.....
Judgment:

S.B. Sinha, J.

1. This is an appeal from a judgment & decree of Chatterjee, J. See A I R (39) 1952 Cal 335-Ed. whereby he dismissed the plff's suit for damages for breach of a contract.

2. One Hazarimull Agarwalla, as Karta of a joint Hindu family, carried on a business under the name & style of Shri Jagdish Rice & Oil Mills, at Forbesganje in Purneah, Bihar. He died during the pendency of the suit & is now represented by his son, Ramkumar Agarwalla. The deft, is a limited company having its registered office in Calcutta.

3. The plaint alleged that there was a contract between the plff. & the deft, company for sale of rice. The contract was entered into between the plff. & the company by 2 letters & a telegram dated respectively July 12, July 15, and July 17, 1943. The terms of the contract were that the company would pay Rs. 28/- per maund of rice, delivery Ex-Mill & would also pay Rs. 62/- for 100 new Gunny Bags & annas two per maund for cartage & loading. It was further alleged that the deft, postponed taking delivery from time to time & that on 20-9-1943, the plff. called upon the company to take delivery within 15 days. No delivery was taken. The plff. claimed Rs. 32,500/- as damages for breach of contract on the basis of difference between the contract price & the market price ruling on 5-10-1943.

4. The written statement admitted the contract & craved leave to refer to the correspondence & the telegram for ascertainment of the terms thereof. It was alleged that it had been expressly agreed, or it was to be implied from the nature of the agreement, that the rice would have to be despatched by rail from Purneah for export out of the province of Bihar to Bengal; & this was the basis of the contract. Delivery was to be given within a reasonable time. Receipt of the letter dated 20-9-1943 was denied. It was further' alleged that the Company made diligent efforts to obtain wagons, but they were not available & that the plff. failed to apply for the necessary permit to enable him to give delivery. It was also alleged that the company was prevented from obtaining delivery of the goods for exporting them from Bihar by reason of Govt. orders & notifications issued under the Defence of India rules & other provision's of law. It was also alleged that the contract became void & impossible of performance by reason of the Govt. of Bengal fixing a selling price for sale or purchase of rice at a rate lower than the contract rate. It was further alleged that the contract became incapable of performance & void by reason of the fact that the Govt. of Bihar requisitioned 12,500 maunds of rice lying with the Mills which included the rice which was the subject matter of the contract in this suit, & alternatively, that the time for performance or delivery was reasonably extended. The company denied liability & challenged the basis of calculation of damages.

5. The following issues were framed:

'1. What were the terms of the contract between the parties?

2. Was the plff. under any obligation to arrange for wagons or permits?

3. Was the deft, company bound to make diligent efforts to secure wagons? If so, did it do so?

4. Was it intended by the parties that the goods would have to be despatched by rail for export from Purnea to Bengal? Was that the basis of the contract?

5. Is the deft company excused from the performance of the contract or was the contract rendered void or illegal or did it become impossible of performance owing to: (a) Notification issued under the D. I. Rules. (b) Orders of Govt. or District Magistrate, Purnea. (c) Fixation of Ceiling price. (d) Requisition of the stock of the rice. (e) Non-availability of wagons.

6. What sum, if any, is due to the plff?'

6. The learned Judge held that (a) There was a contract to sell rice on the terms mentioned in the letter of 15-7-1943. (b) The plff. was under no duty to arrange for wagons which it was the duty of the deft, to secure. (c) Parties knew that the rice was being purchased for supply to Railways in Bengal & the foundation of the transaction was the availability of transports. It was not a contract for sale of ready goods at the Mills at Forbesgunge. (d) The plff. had the duty to apply for permit for exporting the goods out of Bihar & they did not do so. (e) The Company made diligent efforts to secure wagons &,also applied for permit but failed to secure the same, (f) Having regard to the nature of the transaction & the surrounding circumstances & the commercial or practical purpose of the contract & the subsequent requisition in Novem ber 1943, the contract was frustrated & made impossible of performance.

The letter dated 15-7-1943 which, on the finding of the learned Judge, contains the terms of the, contract is in these terms:

'We are just in receipt of your letter of 12th instant. In accordance to that, we beg to inform you that we can supply you with quality No. 1 at the rate of Rs. 28/- per maund mill delivery. We will no doubt charge annas two per maund as loading & cartage, etc. But for the wagons, you have to arrange for yourselves. As there is a great paucity of empties here, we do not undertake to furnish you with R/Rs., which please note & oblige.

As regards the bags, we agree with you. We have no stock of the second quality. Waiting for your esteemed orders.'

7. It will be observed that the plff. expressly declined by this letter to accept any responsibility for supply of wagons & to undertake responsibility to furnish the company with railway receipts. It was also expressly provided that the delivery was to be given at the Mills. The provision for a charge of -/2/- annas for cartage & loading did not override the express term in the contract that delivery was to be given at the Mills. But assuming that it did, delivery was to be made by loading into wagons at Forbesgunge, to be provided by the company. The place of delivery was in any event Forbesgunge, & it is impossible to deduce from the letter any intention on the part of the plff. to effect delivery at Calcutta or in any place in Bengal, as contended for by learned counsel for the respondent.

8. The learned Judge has held, as I have already stated, that the terms of the contract were contained in the letter of 15-7-1943 & that the plff. was not responsible for arranging for the wagons. He however accepted the argument of learned counsel for the deft, that it was the duty of the plff. to apply for permit. I do not see any justification for this view. The learned Judge apparently accepted the evidence of Roy that the plff. was to apply for permit. There is no mention of permit in the letter of 15-7-1943. Nor did Bose say anything about permit. Roy saw Hazarimull after the contract had been concluded. There is no plea in the written statement that the contract was varied after it had been concluded. The relevant orders & the Press note which came into existence after the contract had been concluded, could not add to or alter the terms of the contract. The contract was to be performed at Forbesgunge & the plff. never accepted or assumed any obligation to apply for permit to export rice to Bihar. If permit became necessary, it was deft's. duty to apply for it.

9. I will now consider the finding of the learned judge that the foundation of the transaction was the availabiility of transports. The terms of the contract are in writing which show that the place of delivery was Forbesgunge & that the seller expressly declined to take any responsibility for arrangement of the wagons or to furnish the deft, with railway receipts. Is there any reason for implying a term that the parties contracted on the footing that if the deft, could not obtain a supply of wagons, the transaction would be off? The only oral evidence relevant on the point is that of Sudhendu Bose. He said that he told Hazarimull that the goods were required in Calcutta for supply to railway & that Hazarimull agreed to receive payment through the Imperial Bank Of India against Railway Receipts & Hazarimull said that he was known to the railway people & they would arrange for wagons. This was denied by Ramkumar who said that Bose had a talk with him and not with Hazarimull who was at the time away in Bikanir. Ramkumar also said that he had no talk with Bose as to why he was taking rice or to whom he would supply the rice or where he was taking the rice. (Q. 16). But he guessed that the goods would be taken over to Calcutta as Bose represented a Calcutta party. The evidence of P. C. Roy is not material, because he had no talk either with Hazarimull . or Ramkumar before the conclusion of the contract.

10. The letter dated 15-7-1943, makes it clear that the plff. stipulated for delivery at the mills & expressly declined to take the responsibility of arranging for wagons to furnish the company with Railway receipts. Assuming however that the pltf. knew that the goods were being purchased by the company for supply to the Railways in Bengal, that by itself would not make the availability of transports the foundation of the transaction. It appears, however that tne contracts with the Railways were not entered into till 21-7-1943. It is difficult to believe that Bose told Hazarimull in the beginning of July 1943 that rice was being purchased for supply to Railways under contracts, which were not then in existence. But even if he did, that would not have the effect of introducing a term into the contract by implication. The contingency of wagons not being available was present to the minds of the parties & the plff. provided against it by an express term in the letter of 15-7-1943. He stipulated for delivery at the Mills & declined to have anything to do with arranging for wagons.

11. The place of performance of the contract, as I have said, was Forbesgunge, whether delivery was to be made at the Mills or into wagons to be provided by the deft. The availability of transports had no relation at all to the performance of the contract. It is difficult to imagine how an event which had nothing to do with the performance of the rights & obligations of the parties under the contract could be the basis of the contract. But even if it could be, there is no evidence at all on which it is possible to say that parties contracted on the footing of the continued availability of wagons in order that deft, might, after performance of the contract at Forbesgunge, transport the goods to Calcutta. It is also to be observed that one of the contracts with the Railways, namely, the contract with the B & A Railway, provided for delivery to the Railway at Forbesgunge. It was, therefore, not impossible for the deft. to take delivery from the plff. in Forbesgunge & supply rice to the Railways at that price. I, therefore, am unable to agree with the finding of the learned Judge that the basis & the foundation of this transaction was the availability of transports.

12. The learned Judge referred to the cases of 'Kunjalal v. Durgaprasad', (24 C W N 703) & 'In re Anglo-Russian Merchant Traders Ltd. v. John Batt Co. (London) Ltd.', (1917) 2 K B 679. But in both those cases, availability of wagons was necessary in order to perform the obligations of the parties under the contract & the Court held that it was necessary to imply a term in order to give such business efficacy to the contract as both parties must have intended.

13. The learned Judge has observed:

'I do not agree that in order to give the contract its business efficacy, it is a necessary implication that the buyers undertook an absolute obligation to pay for & take delivery of the goods whether permits or railway facilities were or were not obtained.'

14. But the expressed terms of the contract impose an absolute obligation on the buyers to take delivery & it is not necessary to imply a term, to impose that obligation. The term has to be implied, if at all, in order to give relief to the buyer against the terms of an absolute contract if circumstances are such as to justify the implication of such a term.

15. In this connection Mr. Sanyal has referred to the case of 'Samuel Fitze Co. v. Standard Cotton & Silk Weaving Co., Calicut AIR (32) 1945 Mad 291. In that case, a contract was entered into between a seller & a buyer for supply of tapestries made according to certain specifications. The buyer informed the seller that he intended to sell the tapestries in Australia. The Australian Govt., however, prohibited the import of these goods except under certain conditions, resulting in the loss of the market to the buyer. At the request of the buyer, the contract was cancelled but the seller claimed damages for loss of profit. It was contended on behalf of the buyer that the foundation of the contract was that the goods should be re-sold in Australia. The cases reported in 'Sannadhi Gundayya v. I. Subbayya', 51 M L J 663 and 24 C W N 703 were cited. The contention was negatived & the learned Judges observed as follows:

'Those cases have no application at all to the case now under consideration; because the contracts were there impossible of performance & Section 56, Contract Act, would directly apply. If the contract, as we are satisfied it was, was merely to send goods to Madras, then that contract could be fulfilled; & the plffs. were at all times ready & willing & able to send the goods there.'

16. The next question is whether the contract has been frustrated. The question of frustration is intimately bound up with the question as to whether the Court can imply a term into the contract to the effect that in the event of non-availability of wagons, the transaction would be off between parties & the deft, would be excused from taking delivery. The implication of such a term would, in my opinion, run counter to the express terms of the contract.

17. As was observed by Bailhanche, J. in 'Re Comptoir Commercial-Anverois & Power Son & Co.', (1920) 1 K B 868 at p, 879,

'The limitation on the right of the Court to imply a term in a contract cannot, I think, be better expressed than in the language of A. T. Lawrence, J. in ' Scottish Navigation Co. v. Souter & Co.', approved by Lord Sumner in 'Bank Line v. Capel & Co. A. T. Lawrence J. puts it thus:

No such condition should be implied when it is possible to hold that reasonable men could have contemplated the circumstances as they exist & yet have entered into the bargain expressed in the document. It is also true that the term to be implied must not be in conflict with any express term in the contract; although it may, & indeed must, if it is to be of any use, add to or vary it.'

18. A term can be implied in a contract only where it is possible to say from the nature of contract & the surrounding circumstances that both the parties must have contracted on a particular basis & that it was necessary to imply a term in order to give such business efficacy to the transaction as both the parties must have intended. The Court must be able to predicate of the parties a common intention & a common purpose.

19. As Lord Wright observed in 'Luxor (Eastbourne) Ltd. v. Cooper', 1941 A C 108 at p. 137:

'There have been several general statements by high authorities on the power of the Court to imply particular terms in contracts. It is agreed on all sides that the presumption is against the adding to contracts of terms which the parties have not expressed. The general presumption is that the parties have expressed every material term which they intended should govern their agreement, whether oral or in writing. But it is well recognised that there may be cases where obviously some term must be implied if the intention of the parties is not to be defeated, some term of which it can be predicated that 'it goes without saying' some term not expressed but necessary to give to the transaction such business efficacy as the parties must have intended. This does not mean that the Court can embark on a reconstruction of the agreement on equitable principles, or on a view of what the parties should, in the opinion of the Court, reasonably have contemplated. The implication must arise inevitably to give effect to the intention of the parties.'

Lord Justice Scruttori said in 'Re Comptoir Commericial Anversois & Power Son & Co.', (1920) 1 K B 868 at p. 899:.

'The Court ought not to imply a term merely because it would be a reasonable term to include if the parties had thought about the matter, or because one party, if he had thought about the matter, would not have made the contract unless the term was included; it must be such a necessary term that both parties must have intended that it should be a term ol the contract, & have only not expressed it because its necessity was so obvious that it was taken for granted.'

This observation has been quoted with approval by the Privy Council in 'Pragdas Mathuradas v. Jeewanlal Ltd.', (1929) 53 C W N 226.

20. On the facts of this, case, it is impossible to say that it was the common intention of the parties that the transaction Would be off, if the deft, did not succeed in securing wagons. As I have already said, to imply such a term would be to go against the express terms of the contract. It is not per missible to imply a term which is not consis-tent with the express terms of the contract. Even if such a term could be implied it must at least be proved that the common intention of both the parties was that in the event of non-availability of wagons, the deft, would be excused from performance of his obligations under the contract. On the evidence it is impossible to hold that such a common intention existed. The object & the purpose of the contract so far as the plff. was concerned, was the delivery of goods & receiving the price thereof at Forbesgunge. The object of the deft, might have been the transport of goods from Bihar to Bengal by Railway. But unless it is possible to say that that also was the object of the plff. in entering into the contract, the basis or the commercial or the practical purpose of the contract could not have been overthrown by the non-availability of wagons or by refusal on the part of the Govt. to grant to the deft, permit for export. The evidence does not establish that, so far as the plff. was concerned, the object of the contract was to export goods out of Bihar into Bengal by wagons. It is therefore impossible on the facts of this case to imply any term into the contract such as has been sought to be done on behalf of the deft.

21. In 'Blackburn Bobbin & Co., Ltd. v. T. W. Allen & Sons Ltd.', (1918) 2 K B 467 at p. 470, the defts. who were Timber merchants in Hull sold to the plffs. 70 standards of Finland Birch Timber to be delivered free on rail at Hull, deliveries to commence in June or July 1914 & to terminate in November, 1914. Before the outbreak of the War in August 1914, the practice was to load timber into vessels at Finnish Ports 'for direct sea carriage to England, but the practice was not known to the plffs. nor did they know that timber merchants did not keep Finland timber in stock. The defts. had not delivered any timber upto the outbreak of the War & then it became impossible to obtain any Finland timber for delivery to plffs.

22. It was contended that the contract had been dissolved by the outbreak of War. The contention was overruled. Pickford L. J. observed as follows:

'I can see no reason for saying - & to free the defts from liability this would have to be said - that the continuance of the normal mode of shipping the timber from Finland was a matter which both parties contemplated as necessary for the fulfilment of the contract. To dissolve the contract the matter relied on must be something which both parties had in their minds when they entered into the contract, such for instance as the existence of the music-hall in 'Taylor v. Caldwell', (1863-3 B & S 826), or the continuance of the vessel in readiness to perform the contract, as in 'Jackson v. Union Marine Insurance Co.', (1874-10 CP 125). Here there is nothing to show that the plffs. contemplated, & there is no reason why they should be deemed to have contemplated, that the sellers should continue to have the ordinary facilities for despatching the timber from Finland. As I have said, that was a matter which to the plffs. was wholly immaterial. It was not a matter forming the basis of the contract they entered into.'

23. If no term can be implied, 'there can be no frustration of the contract. The event which occurred was not inconsistent with the further prosecution of the adventure. In fact, it had nothing to do with it. The adventure was to be closed with delivery at the mills & if wagons were provided by the deft., with the loading into the wagons. The plff. was not concerned with anything else & in order to protect himself, expressly made appropriate stipulations in the contract.

24. The learned Judge has elaborately dealt with the authorities bearing on the question of frustration of contracts. It is not necessary to discuss the cases cited in the judgment because whichever view taken about frustration is correct, the legal consequence is the same.

25. In the 'Constantine Case', (1942) A C 154 at p. 163, Viscount Simon observed that the most satisfactory basis on which the doctrine of frustration can be put is that it depends on an implied term in the contract of the parties.

'It has the advantage of bringing out the distinction that there can be no discharge by supervening impossibility if the express terms of the contract bind the parties to performance notwithstanding the supervening event may occur. Discharge by supervening impossibility, is not a common law rule of general application, like discharge by supervening illegality; whether the contract is terminated or not depends on its terms & the surrounding circumstances in each case. Every case in this branch of the law can be stated as turning on the question whether from the express terms of the particular contract, a further term should be implied which, when its conditions are fulfilled, puts an end to the contract.'

26. Lord Wright however observed; (p. 185)

'In ascertaining the meaning of the contract & its application to the actual occurrences, the Court has to deduce not what the parties actually intended, but what as reasonable men they should have intended. The Court personifies for this purpose the reasonable man. 'The explanation which has been generally accepted in English Law is that impossibility or frustration depends on the Court implying a term or exception & treating that as part of the contract.' 'The essential feature of the rule is that the Court construes the contract having regard both to its language, its nature and the circumstances, as- meaning that it depended for its operation on the existence Or occurrence of a particular object or a state of things, as its basis or foundation. If that is gone, the life of the contract in law goes with it, at least as regards future performance.'

27. In the 'Denny, Mott & Dickson v. Fraser & Co.', (1944) A C 265, Lord Wrighf observed as follows:

'The rule has sometimes been described as an exception, to the general principle that parties must perform their obligations or pay damages for breach of contract. I should prefer to describe it as a substantive & particular rule which the common law has evolved. Where it applies there is no breach of contract What happens is that the contract is held on its true construction not to apply at all from the time when the frustrating circumstances supervene.'

He then goes on

'Though it had been constantly said by high authority, including Lord Sumner, that the explanation of the rule is to be found in the theory that it depends on an implied condition of the contract, that is really no explanation. It only pushes back the problem a further stage. It leaves the question, what is the reason for implying a term? To my mind the theory of the implied condition is not really consistent with the true theory of frustration. It has never been acted on by the Court as a ground of decision but is merely stated as theoretical explanation...........................I must admit that the view I have stated is somewhat heretical; but the general nature of the doctrine of frustration has given rise to many irreconcilable explanations.' 'The event is something which happens in the world of fact & has to be found as a fact by the Judge. Its effect on the term depends on the meaning of the contract which is a matter of law. Whether there, is frustration or not, in any case depends on the view taken of the event & of its relation to the express contract by informed & experienced minds'

28. As I have already said whether the doctrine is based on the doctrine of implied term or supervening impossibility or doing what is just & reasonable as between parties having regard to the actual occurrences, the legal consequence is the same.

29. The real question is whether the event which has occurred is such & whether its relation to the contract is such, that a Judge considering the contract & the surrounding circumstances must hold that it would not be just & reasonable to hold the parties any longer to the terms of the contract.

30. Whether this is done by implying a term or by any other method, does not very much matter so far as the result is concerned. The Court must be able to say that by reason of the occurrence of the frustrating event the parties should be excused from further performance. In order to do that, the Court must find that there was a common intention & a common purpose for entering into the contract & that purpose & intention have been frustrated by occurrence of a subsequent event, the Court cannot reform a contract on equitable principles. The Court cannot hold that a contract is frustrated simply because if the parties acted as reasonable men, they should have provided for a particular event. As Scrutton, L. J. observed:

'The Court ought not to imply a term merely because it would be a reasonable term to include if the parties had thought about the matter or because one party, if he had thought about the matter, would not have made the contract unless the term was included.'

Frustration, in my opinion, cannot depend on the unguided & uncontrolled sense of justice of the Judge deciding the matter.

31. It is impossible, on the facts of this case, to imply a term on the basis of common intention of the parties or to hold that justice of the case demands that the deft, should be excused from further performance as it could not secure wagons for transport of the goods out of Bihar. It would, in my opinion, not be just & reasonable to introduce into the contract a term which is opposed to the express terms of the contract & which is not otherwise supported by the evidence adduced, or to hold that the non-availability of wagons made the performance of the contract impossible.

32. The learned Judge has also held that by reason of the requisition by the Bihar Govt. of 12,500 maunds of rice, which followed the conclusion of the contract, the contract was destroyed & its fulfilment was made imposible. There can be no doubt that a requisition of the subject matter of a contract, made during the period of performance, creates a supervening IMPOSSIBILITY & frustrates the contract, unless the parties by express terms contemplated such-an event & provided against it. In this case, however,- requisition, was not made during the period of performance. It will be remembered that in the contract no time had been fixed for performance & therefore performance had to be completed within a reasonable time. The correspondence shows that the deft, had been postponing taking of delivery from time to time- The time for performance must be held to have been extended. On 20-9-1943, the plff. by his pleader's letter called upon the deft, to take delivery within. 15 days & threatened to sell the goods in the-open market, if this was not done. Prior to-that the defendant had written on 6-9-1943, that till he obtained permit for export of rice from Bihar to Bengal, for which he had applied, nothing could be done regarding the taking of delivery. Having regard to the facts & circumstances 15 days was a reasonable time to fix within which the deft, was to take delivery. The letter of 20-9-1943 was not replied to Fifteen days expired on 5-10-1943. The breach was then complete on the part of the deft. In the plaint, damages were claimed on the basis-of difference between the contract rate & the rate prevailing on 5-10-1943. The deft, denied receipt of the letter dated 20-9-1943. The letter was sent by registered post & its receipt is not now disputed. The rights of the parties therefore crystallised on 5-10-1943, & those rights could be only varied by another agreement. No issue was raised that the time for performance was extended after 5-10-1943, & no evidence was adduced on the point.

33. The only question that was raised was whether the deft, was excused from performance or whether the contract became impossible of performance owing to the requisition of the stock of rice. The requisition was made sometime in November, 1943 after the contract had been broken & the rights of the parties had crystallised. That requisition did not happen during the time of performance-& had no effect onthe rights of the parties. It is true that by the letter of 16-2-1944, the plff. called upon the deft, to take delivery of the-rice within a fortnight. That letter was not replied to. The deft. did not agree to take-delivery within a fortnight. That letter merely contained an offer which was not accepted. It had not the effect of reviving the contract which had already been broken & the rights under which had already accrued. That letter had not the effect of extending the time for performance unless the offer contained in that letter was accepted by the deft. The result was that the rights which had accrued on 5-10-1943, were not affected either by the requisition or by the letter of 16-2-1944. The trial proceeded on the footing that the breach occurred on 5-10-1943. In those circumstances, it was not open to the learned Judge to hold that the time for performance had been extended. The requisition did not therefore make the performance of the contract impossible & did not affect the rights of the parties.

34. Assuming that non-availability of wagons was the basis of the contract, the deft, had to satisfy the Court that it made diligent efforts to secure wagons. Self-induced frustration does not excuse performance. The learned Judge has found that the deft, did its best to secure wagons. The evidence on this point was given by Sudhendu Bose & P. C. Roy. Bose says that he went to Katihar & saw the District Traffic Superintendent 3 or 4 times in August 1943. He tried to get wagons but did not succeed. (Q. 84-91). The deft, company applied for wagons in writing & he had copies of such application (Q. 137-140). No copy was produced. P. C. Roy said that it was not his responsibility to get wagons & he never agreed to supply wagons (Q. 38, 74). He however tried to secure the wagons & saw one Mr. Basu & one Mr. Asrani (Q. 82, 86). He told them that he wanted wagons but no wagons could be supplied. (Q. 91-2). He did not apply to the Regional Controller of Wagons, who was responsible for the allotment. (Q. 146-7). He applied to the Chief Commercial Manager, Transportation, (Q. 150) & submitted to him forms after signing them. No attempt was made to produce those applications. But a letter dated 21-7-1943, written by the Divisional Superintendent Lalmonirhat, to the deft. was produced purporting to be a reply to a letter of the deft. It is impossible to connect this letter with any application by the deft. for wagons.

35. In my opinion, the evidence adduced is absolutely insufficient to prove that the deft. made any serious endeavour for getting wagons. No copy of application made for securing wagons was produced. It is common knowledge that for securing wagons, written applications have to be made. Bose admitted that written applications had been made. Roy also said that written applications were made. No copy was produced. No attempt was made for production of the original applications by the Railways.

36. I am of opinion that deft. has failed to prove that it made diligent attempts to secure wagons.

37. In my opinion, the view of the learned Judge that the contract was frustrated cannot be sustained. In any event, on the evidence adduced, it ought to be held that the deft. did not make any diligent efforts to secure wagons. The frustration, if any, is therefore self-induced.

38. The result is that the appeal should succeed & a decree should be made for Rs. 32,500/-. Learned counsel for the respondent did not dispute the rates prevailing on 5-10-1943. The appellant should get the costs of the suit & of this appeal. Certified for two counsel.

Harries, C.J.

39. I agree.


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