The doctrine of frustration does not apply to a contract that is not subject to the availability of the goods.

Ramratna Singh, J.

1. This appeal under the Letters Patent is by the defendants first party against the decision of a learned Single Judge of this Court, who confirmed the judgment and decree of the Subordinate Judge, Second Court, Chapra in a suit for damages for breach of a contract. Appellants 2 and 3, who have got a firm in the name and style of Rampratap Mahadeo Prasad (defendant-appellant No. 1), were Selling agents during the relevant period of gunny bags manufactured by Messrs. Katihar Jute Mills Ltd., Katihar (defendant second party). On the 30th November, 1950, there was a contract between the defendant-appellants 1 to 3 and the plaintiff respondent for the supply of 40,000 gunny bags. F.O.R. Katihar, at the rate of Rs. 210.00 per hundred bags through their manager, defendant-appellant No. 4. Due to the failure on the part of the appellants to execute this contract, there was some difference between the parties; but ultimately a fresh agreement (Ext. 1) was arrived at on the 9th August, 1951, the relevant term whereof read thus :

"5. That we shall supply to you the balance quantity of 14500A Twill gunny bags of the old Katihar Jute Mills 44" x 261/2" x 2.5/8 lbs. being the unsupplied "balance of the contract dated 30-11-50 in two equal instalment during the months of November and December 1951 positively at the contracted rate of Rs. 210.00 (two hundred and ten) per hundred bags F. O. R. Katihar."

The appellants did not, however, supply any gunny bag in pursuance of this agreement, in spite of repeated demands, on the ground that the Mills were closed during the relevant period. There is no dispute between the parties so far.

2. Then the case of the plaintiff-respondent is that they had to purchase gunny bags of the same quality at the rate of Rs. 263 per hundred bags from Messrs. Katruka and company of Dinapore. Hence, the plaintiff claimed as damages Rs. 7,685/-, being the difference between the rate at which they had purchased the bags and the rate at which the appellants had agreed to supply the same under the aforesaid agreement dated the 9th August, 1951. The defence of the appellants was that they could not supply the gunny bags on account of the stoppage of work in the Katihar Jute Mills, and, therefore, the doctrine of frustration applied. The amount of damages claimed was disputed; and it was asserted that the plaintiff had failed to prove the necessary ingredients for measure of the damages.

3. The learned Subordinate Judge accepted the case of the plaintiff that they had purchased gunny bags at the rate of Rs. 263/- per hundred bags and held that they were entitled to the amount of damages claimed. The plea regarding the doctrine of frustration was rejected by him. Before the learned Single Judge, the only plea pressed was that the plaintiff was entitled to only a nominal damage, inasmuch as they had failed to prove the prevailing market rate; but it was rejected by the learned Single Judge, who upheld the decision of the trial Court.

4. In the present appeal, learned Advocate for the appellants pressed two points. The first point was that, though the doctrine of frustration, as laid down in Sec. 56 of the Indian Contract Act, did not apply to the case, the contract in question, which is a mercantile contract has to be so construed that the supply of gunny bags was to be made subject to the condition of availability of the same. It was submitted that the contract in question did not contain an absolute warranty to deliver the goods, inasmuch as the gunny bags manufactured by the said Katihar Jute Mills only had to be supplied and it had been established that the Mills were not working during the relevant period. There is, however, no substance in this contention. The alleged condition precedent is not entered in the written agreement in question. Further, the evidence on record shows that the stoppage of the Katihar Jute Mills was not an un for seen circumstance at the time the contract in questio