SANNIDHI GUNDAYYA Vs. ILLOORI SUBBAYYA

JUDGEMENT

(1.) This is an appeal under Section 15 of the Letters Patent against the judgment of Odgers, J., in S.A. No. 121 of 1924.

(2.) The facts of the case are simple and the findings are not disputed. The plaintiffs sued the defendant-appellant for damages for breach of contract to deliver certain bags of rice. The defendant had no license for importing rice but it is admitted that the parties knew that the defendant's friend "Ayyalu" had a license and that he would enable the defendant by his good offices to perform the contract with the plaintiffs. It is not disputed that the contract contemplated delivery by railway waggons. As a war measure the Government had imposed "waggon restrictions" "priority certificates" all over the Presidency, and this interfered with the free and easy transport of rice. The existence of these restrictions was well-known to,all the parties. Owing to the shortage of waggons on account of the enforcement of the rules the defendant was not able to perform his contract. He therefore pleaded impossibility of performance as a defence to the suit. Odgers, ]., held in second appeal that, since the parties knew of the existence of these restrictions, it was not open to the defendant to import into the contract an implied condition that the contract was not to be performed if he was not able to secure the sufficient number of waggons for delivery.

(3.) The defendant-appellant relies on Section 56 of the Indian Contract Act. According to the 2nd para of this section "A contract to do an act which, after the contract is made, becomes impossible,...becomes void, when the act becomes impossible...." "By the Common Law of England a man who promises without qualification is bound by the terms of his promise. If the parties do not mean their agreement to be unconditional, it is for them to qualify it by such condition as they think fit (Pollock and Mulla, page 318). The rigour of this absolute rule has been gradually and very considerably relaxed by the recognition of "the doctrine of the implied term " by which, on the ground of impossibility, parties have been excused from performing their contracts by relying on conditions which may be implied from the nature of the contract and the surrounding circumstances. It does not appear as observed by Sir Frederick Pollock that the law embodied in Section 56 is materially divergent from the English doctrine.