Judgment

Fazl Ali, J. - This is an appeal by special leave against a decision of the High Court at Allahabad, reversing the decision of the trial Court, in a suit instituted by the appellant to recover damages from the respondent-firm for breach of a contract.

2. It appears that between 10th and 18-4-1941, the parties entered into 5 contracts, by which the respondent-firm undertook to supply to the appellant 184 bales of cloth of certain specifications manufactured by the New Victoria Mills, Kanpur and the Raza textile Mills, Rampur. Only 99 bales were taken up and there was a dispute about remaining 85 bales. On 17-10-1941, a settlement was arrived at between parties, and it was agreed that the respondent-firm should deliver to the appellant 61 bales, and that the goods should be delivered by 17-11-1941. The actual text of the agreement (Ex. 4) was as follows:

"61 bales as noted below are to be given to you by us.

We shall continue sending goods as soon as they are prepared to you upto Magsar Badi 15 Sambat 1998. We shall go on supplying goods to you of the Victoria Mills as soon as they are supplied to us by the said Mill.

(Specifications of cloth given here).

We shall go on delivering the goods to you upto Magsar Badi 15 out of the goods noted above which will be prepared by the Mill."

As the 61 bales were not supplied, the appellant sent a telegraphic notice to the respondent-firm on 20-11-1941 to the following effect : "Give delivery of our 61 bales through Bank. Otherwise suing within 3 days." The appellant did not receive any reply to this notice, and so he instituted the suit which has given rise to this appeal, on 23-4-1942, claiming a sum of Rs. 9,808 and odd, which, according to him, represented the loss sustained by him on account of the rise in the market rate of the contracted goods, and he also claimed costs and interest. The respondent-firm resisted the suit on a number of grounds, but their main plea, with which alone we are concerned in this appeal, was that the performance of the contract had been frustrated by circumstances beyond their control and hence the appellant s claim must fail. This plea was negatived by the trial Court, but it was upheld by the High Court, and hence this appeal.

3. The only point which arises in this appeal is whether the circumstances of the case afford any basis for the application of the doctrine of frustration of contract, a doctrine which is embodied, so far as this country is concerned in Ss. 32 and 56, Contract Act, 1872.

4. The main grounds of attack against the judgement of the High Court are; (1) that it has misread the agreement (Ex. 4) dated 17-10-1941, on which both parties rely; and (2) that it has paid more attention to an abstract legal doctrine than to the facts of the case. In our opinion, both these contentions are correct.

5. The construction placed by the High Court upon the agreement and its conclusion based thereon, are set out in the following passage in the leading judgement of Wali Ullah J. : -

"It seems to me that the parties clearly intended that the defendant was to supply the goods to the plaintiff if and when - and only in that event - the particular goods were prepared by the Victoria Mills and were supplied to the defendant between 17-10-1941 and 17-11-1941. As the fundamental assumption on which the contract was made ceased to exist during the time of performance and consequently it became impossible for the defendant to fulfil contract, it must be held that the contract was discharged by supervening impossibility."

The construction suggested by the High Court is precisely the construction which was attempted to be put on a similar contract by the defendant-respondents in the case of Hurnandrai v. Pragdas, 50 Ind. App. 9 but the Privy Council negatived it. In that case, the provision as to delivery of goods ran as follows :

"The said goods are to be taken delivery of as and when the same may be received from the Mills."

The Mills failed to perform their contr