CHAIRMAN S I W T S Vs. ARJUNAN

JUDGEMENT

(1.) THE defendants in O. S. No. 374 of 1968 on the file of the Munsiff's Court, Quilon are the appellants in this Second Appeal. THE above suit was one for damages for breach of a contract. THE appellants contend that the contract was not performed due to vis-major and hence the respondents-plaintiffs are not entitled for damages. Arjunan of Prakkulam the first plaintiff, who is none other than the Secretary of the Boat Passengers' association, Quilon thought that it was only proper that for the marriage of his brother the second plaintiff, the bridegroom's party must be taken from prakkulam to Mangad in the biggest boat belonging to the State Water Transport department. Accordingly on 30121967 be made Ext. P2 application for the same to the Station Master, Quilon in the letter-head of his association itself. THE boat was booked for 2111968. As made clear in Ext. P2 itself the boat was to leave Prakkulam Jetty with the marriage party at 10. 30 A. M. On 1911968 the first plaintiff paid Rs. 100/- as advance and this is evidenced by Ext. P3 receipt issued by the Department. THE Boat passengers' Association Secretary and his 300 invitees reached Prakkulam Jetty in time to board the boat. Everything was ready but the boat did not make its appearance. From 10. 30 A. M. to 12. 30 P. M. for two long hours they were hoping against hopes that the boat will be there the next moment. THE muhurtham was between 1 P. M. and 2 P. M. So they could not wait any further. All taxi cars available in the locality and in the neighbourhood were commissioned and all out attempt was made to take the party by road. THE bridegroom and a few of the invitees were lucky to reach the bride's residence in time while the rest of the party could reach there only after the marriage. Going by the evidence adduced in this case the maximum passenger capacity of a boat belonging to the Water Transport Department is 120 or so. If that be so what would have happened if the boat came in time and the marriage party 300 strong went in that boat from Prakkulam to Mangad. This need only be left to one's own imagination.

(2.) ACCORDING to the plaintiffs a considerable amount had to be spent because of the breach of contract committed by the defendants. Hence this suit was filed for damages and the return of Rs. 100/-paid as advance. The defendants in their written statement contended that the contract could not be performed because of events which could neither be anticipated nor be prevented and hence the defendants could not be made liable for the damages. The arrangement made was that Boat No. 10 which left Alleppey for Quilon at 10. 30 P. M. the previous night was to run the special trip from Prakkulam to mangad also after completing its Alleppey to Quilon service trip. As it developed engine trouble at Bhargavan's Jetty, Boat No. 12 was diverted to quilon with instructions to fun the special trip in question also. It was to reach Quilon by 8. 30 A. M. on 2111968 but it had also a break-down at ayiramthengu. After repairs it could reach Quilon only at 12 noon. There was no spare boat at Quilon also.

(3.) SHRI Thayyil K. Vasudevan, learned counsel for the respondents contends that appellants cannot make a plea of vis-major in a case like this. According to the learned counsel, this is a case where there was no diligence on the part of the appellants. The learned counsel points out that appellants did not even care to inform the respondents that the boat could not be sent. The learned counsel refers to S. 73 of the Contract Act, which reads: 73. When a contract has been broken the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it. Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach. When an obligation resembling those created by contract has been incurred and has not been discharged, any person injured by the failure to discharge it is entitled to receive the same compensation from the party in default as if such person had contracted to discharge it and had broken his contract. Explanation: In estimating the loss or damage arising from a breach of contract, the means which existed of remedying the inconvenience caused by the non-performance of the contract must be taken into account. " According to the learned counsel even if S. 56 of the Act applies it is the 2nd part of the Section which applies and in that case also as there was no reasonable diligence on the part of the appellants they must pay compensation for the loss sustained by the respondents. The learned counsel refers to Turner v. Goldsmith, (1891) 1 Q. B. 544) wherein the court of appeal, dealing with the impossibility of performance of a contract to employ an agent for a certain period due to destruction of the principal's manufactory by fire, said: "the action was maintainable, and that the plaintiff was entitled to substantial damages, for the defendant, having agreed to employ the plaintiff for five years, did not fulfil that agreement unless he sent him reasonable amount of samples to enable him to earn his commission; and that the defendant has not excused from fulfilling his agreement by the destruction of his manufactory by fire". In the above judgment of the court of appeal, the following observations of Blackburn J. in Taylor v. Coldwell, (3 B & S 826, 833) are extracted: "there seems no doubt that where there is a positive contract to do a thing not in itself unlawful, the contractor must perform it or pay damages for not doing it, although in consequence of unforeseen accidents the performance of his contract has become unexpectedly burdensome or even impossible But this rule is only applicable when the contract is positive and absolute, and not subject to any condition either express or implied, and ' there are authorities which we think establish the principle that where from the nature of the contract it appears that the parties must from the beginning have known that it could not be fulfilled, unless when the time for the fulfilment of the contract arrived some particular specified thing continued to exist, so that when entering into the contract they must have contemplated such continuing existence as the foundation of what was to be done, then, in the absence of any express or implied warranty that the thing shall exist, the contract is not to be construed as a positive contract, but as subject to an implied condition that the parties shall be excused in case before breach performance becomes impossible from the perishing of the thing without default of the contractor". The learned counsel then contends that a state of affairs brought into existence by the act of a party cannot be used as an excuse for failure to perform a contractual obligation. In other words, a self induced frustration cannot be a defence. In support of his contention the learned counsel relies on D. R. Mehta v. Tin Plate Dealers Association (AIR. 1965 Mad. 400), wherein the Madras High Court has said: It is settled law that before the court applies the principle that the contract has become impossible of performance, the first duty is to ascertain the facts forming the basis of the contract and see how far the change in the circumstances is such as to remove the very foundation of the contract itself. The court must as a fact determine whether the circumstances did exist and if so whether they are sufficient to bold that the parties are absolved from their obligations under the contract. It is the essence of the doctrine that the event which causes frustration must have occurred without the fault of either party. Therefore, the court ought to see whether it is a case of self-induced frustration in which case there could be no defence at all". The learned counsel also refers to the decision of the house of Lords in Tankiroglou & Co. Ltd. v. Noblee Thorl G. M. B. H. (1961 (2)WLR. 633 ). In this case the question that came up for consideration was whether due to the closure of the Suez Canal, which was the usual route, a contract for shipment was frustrated or not. The House of Lords said: " (1) that a term that shipment should be (a) via suez or (b) by the usual and customary route at the date of the contract, should not be implied into the contract. (2) That since the Suez Canal was unusable during the relevant period the sellers' duty was to ship the goods to the required port by a reasonable and practicable route if available. (3) That although the route via the Cape involved a change in the method of performance of the contract, it was not such a fundamental change from that undertaken under the contract as to entitle the sellers to say that the contract was frustrated. (4) That the shipment was not prevented by war or force injure within the meaning of the contract; placing the goods on board a vessel for the right destination was not prevented".