UNION OF INDIA Vs. RAJ KUMAR PIARELAL JAIN

JUDGEMENT

(1.) THESE are two appeals by the Union of India (Regular First Appeals Nos. 56 and 69 of 1950) against decree for Rs. 5,373/- and Rs. 5,400/-passed by a Court at ambala in favour of the respondent Raj Kumar.

(2.) BOTH the suits were instituted by Raj Kumar on the 1st of October 1948 claiming the above sums as damages for the non-delivery of the two consignments or 46 and 47 ingots of brass respectively, which the plaintiff had booked under separate railway receipts on the 28tb of July 1947 for carriage by the North Western railway from Gujranwala to Jagadhri, the consignee in each case being the plaintiff himself. The fact that the goods never reached their destination is not in dispute. In fact it was admitted in the written statement filed on behalf of the Dominion of india, as it then was, that the goods were still lying at Gujranwala. The defence taken, apart from certain technical pleas regarding notices under Section 77 of the Indian Railways Act and Section 80, Civil Procedure Code, with which we are no longer concerned, was that owing to the actions of the Government of Pakistan it was no longer possible to export the goods in question to India without an export permit, and the contract had becomes impossible of fulfilment by the Government of India in consequence of the failure of the plaintiff to obtain any such export permits. The liability of the Government of India was in any case denied.

(3.) THE lower Court has accepted the position that the goods remained lying at the station of despatch, Gujranwala, from the date of booking, the 28th of July 1947, until after orders in some form or other had been issued by the Pakistan government banning the export of goods including goods of the kind now in suit. Although the Government faded to produce any copies of such orders and could not prove the date on which they were issued, nevertheless the lower Court held the Government of India liable for damages for nondelivery on the ground that even if the ban on the exports was imposed soon after the date or the creation of the two Dominions, the 15th or August 1947 no attempt had been made to explain why the goods had not been despatched from Gujranwala and at least crossed the border into India in the seventeen days which elapsed after the date of booking. It was accordingly held that the plea raised by the Government that t had been prevented from fulfilling the contract by forces outside its control, or in other words a plea of frustration, could not suffice to absolve it from liability.