A contract does not become impossible of performance merely because it becomes more difficult or expensive to perform. The party claiming impossibility must show that it is practically impossible to perform the contract.

VENKATADRI, J. :- This is a Letters Patent appeal preferred by the plaintiff whose suit for recover of advance and damages was dismissed by Ramakrishnan J. The plaintiff's case is that he entered into a contract on 08-04-1957 with the respondent's company who were carrying on business in Calcutta under the name and style of the Tin Plate Dealers Association (Pte.) Ltd, with its branch offices in Madras and Bombay, for purchase of 30 tons of Electrolytic tin plate Cobbles for shipment during May and June at Rs. 850 per ton C. I. F. Madras and paid an advance of Rs. 1500. It was agreed that the respondent should arrange for the shipment of the goods from the United States of America. In spite of repeated demands the respondent did not deliver the goods. But on 12-7-1957, the respondent asked the plaintiff to take delivery of the goods at the Bombay Office. The Bombay office refused to give delivery. In reply to a further letter of the plaintiff dated 12-10-1957, calling upon the respondent to return the advance and also for payment of damages for failure to deliver the goods, the respondent wrote on 1-11-1957, that they were unable to deliver the goods in view of the ban imposed by the Deputy Iron and Steel Controller of the Central Government.

The plaintiff further alleges that if the goods had been shipped in May and June 1957, as had been agreed upon originally, they would have arrived in July when there was no restriction on the sale. But, as a matter of fact, the respondent received the goods from America, but he sold, them to third parties as the market price, of the goods was much higher than the contract rate entered into with the plaintiff. The plaintiff is entitled to call upon the respondent to pay damages as the respondent deliberately committed breach of contract and also damages by way of loss of profit to the plaintiff at Rs. 115 per ton.

2. But the suit was resisted by the respondent. They contended that when the contract was entered into, they attempted to arrange for the shipment of the goods during May-June 1957 but when it was found that no steamer would be available for Madras Port, during May-June 1957, they duly informed the plaintiff of their inability to perform the contract. They assert that there was no time fixed for the shipment of the goods under the terms of the contract. They also pleaded that there was a variation of the original contract between the parties and the plaintiff then agreed to take delivery of 25 tons of Electrolytic tin plates waste waste from ready stock at Bombay in the place of 30 tons of Electrolytic tin plate cobbles, but neither the plaintiff nor his representative ever called on the Bombay office to take delivery, though the respondent was ready and willing to supply. In the meantime the ban imposed by the Central Government intervened and necessarily the contract for Electrolyte tin plate cobbles had to be cancelled. Subsequently they returned the advance to the plaintiff by means of a cheque and they are in no way liable to pay damages as there was no breach of contract on their part.

3. On these pleadings the parties went to trial, before the learned Judge of the City Civil Court, Madras, who found that there was no variation of the original contract as pleaded by the respondent and he held that the respondent committed a breach of contract in respect of the goods, Electrolytic tin plate cobbles. He also gave a finding that the performance of the contract had not become impossible by reason of the freezing order passed by the Iron and Steel Controller, He declared that the plaintiff was entitled to damages and he fixed the quantum of damages by calculating 7½ per cent on the contract price of Rs. 850 per ton on the assumption that according to the Import Trade Control Policy of the Government the permitted margin of profit was only 7½%. Therefore he decreed the suit for damages at Rs. 1912-8-0 and for refund of Rs. 1500 being the advance paid.

4. The respondent prefe