The court emphasized the importance of complying with the terms of the agreement and distinguished between impossibility and difficulty in performance under the Indian Contract Act.

Rajbir Sehrawat, J.

1. This is the second appeal filed by the defendants in a suit for recovery; having failed before both the Courts concurrently.

2. For convenience the parties herein would be referred to as the plaintiff and the defendants; as they were described in the original suit.

3. The brief facts of this case are that the plaintiff, the Food Corporation of India filed a suit for a recovery of Rs. 1,10,333.76/- paise against the defendants/appellants claiming that the defendants were issued a service work contract for loading and unloading of food grains at Dasuya. As per Clause X of the Schedule agreement, if the defendants failed to supply the requisite number of labourers, scales and trucks/carts, the Senior Regional Manager shall; at his discretion, be at liberty to engage labour, scales, trucks etc. at the risk and cost of the defendants and in that event the latter would be liable to make good the Corporation of the loss incurred by it in doing these works. It was further averred that on 05.08.1985, special loading of wheat was to be done by the defendants; in the railway wagons at Dasuya. The loading work was, however, deferred to 20.08.1985. The defendants failed to perform their legal obligation of loading the wheat in the railway wagons; with the result that the plaintiff Corporation had to pay a sum of Rs. 8,916/-as demurrage besides having forfeited its security amounting to Rs. 16,500/- to the railways. The plaintiff Corporation served a notice on the defendants calling upon them to make good the loss amounting to Rs. 25,416/-, failing which the Corporation would have to initiate the proceedings as per terms of the Schedule agreement. Before this notice, defendants were requested to do the requisite work but they failed to do so. Consequently, the work has been left undone by the defendants. Resultantly, the plaintiff, Corporation had to get work done at the cost and responsibility of the defendants. Thus the Corporation incurred a total loss of Rs. 1,10,333.76/- paise.

4. On being put to notice, defendants contested the suit. Besides taking the preliminary objections, it was averred in the written statement that defendants have not committed any default in performing their contractual obligations. However, it was admitted that the defendants entered into contract with the plaintiff to do the work of loading and unloading as claimed by the plaintiff. For this particular loading, there was only five hours time to complete the work of loading of wheat in railway wagons, but since the wagons were not on the side of the shed, therefore, the needful could only be done by cross-loading which was not possible. The doors of the railway wagons in which loading was to be done were also not in front of the doors of the wagons from which the foodgrains were to be unloaded. It was thus, pleaded that there was no contract of the plaintiff with the defendants for cross-loading the foodgrains in the wagons. Further it was denied that the work remain undone by the defendants which was got completed by the plaintiff.

5. On the basis of the pleadings, the Trial Court framed the following issues:-

“1. Whether the plaintiff is a body corporate created under Section 3 of the Food Corporation of India Act and Distt. Manager is competent to file sign and institute the present suit? OPP.

2. Whether the Distt. Manager is competent to file the suit and whether there is a specific resolution for the same?OPP

3. What were the tersma & conditions of loading and unloading work to be handled by the defendants, at plaintiff's food storage depot at Dasuya? OPP.

4. Whether the defendants have committed breach of the agreement of the contract? OPP.

5. What amount of loss and demurrage was incurred by the plaintiff and whether the security amount stands forfeited to the plaintiff?OPP

6. Whether the plaintiff got done the work upto 5.2.1986 at the risk and cost of the defendants? If so, of what amount and at what extent and with what result?OP