A contract is not frustrated by the non-availability of wagons if the non-availability was not the basis of the contract and the party seeking to rely on the frustration did not make diligent efforts to secure wagons.

( 1 ) THIS is an appeal from a judgment and 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 and style of Shri Jagdish Rice and Oil Mills, at Forbesganje in Purneah, Bihar. He died during the pendency of the suit and 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. and the deft, company for sale of rice. The contract was entered into between the plff. and the company by 2 letters and 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 and would also pay Rs. 62/- for 100 new Gunny Bags and annas two per maund for cartage and loading. It was further alleged that the deft, postponed taking delivery from time to time and 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 and the market price ruling on 5-10-1943.

( 4 ) THE written statement admitted the contract and craved leave to refer to the correspondence and 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; and 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 and 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 and notifications issued under the Defence of India rules and other provision's of law. It was also alleged that the contract became void and 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 and 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, and alternatively, that the time for performance or delivery was reasonably extended. The company denied liability and 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,