Decided on August 01,1952

P.S.V.IYER Respondents


Venkatarama Aiyar, J. - (1.) This is an appeal by the defendant against the judgment and decree in C. S. No. 118 of 1947 on the file of the Original Side of this court. The appellant is the Managing Director of a company called the Presidency Talkies Ltd., which owns a cinema house called "the Paragon Talkies" The plaintiff is the producer of a film called "Rukmangadan". On 31-8-1946 an agreement was entered into between the parties, (Ex. P. 1) for exhibiting this picture in the Paragon Talkies. The agreement runs as follows: JUDGEMENT_70_TLMAD0_1952Html1.htm The picture was put on board on 23-10-1946 and was running till 5-12-1946. In the beginning of December 1946 there were heavy rains and on the night of 5th December a portion of the rear wall of the talkies collapsed and three persons were killed. On receipt of this information the Police telephoned to Mr. Meeran. Engineer of the Corporation of Madras to inspect the premises and report on their condition. The report which he sent is Ex. P. 2(a). Therein he stated that pending a thorough investigation by him which could not then be carried out owing to rains, "the performance in the Theatre should be suspended". On this, the Commissioner of Police directed the defendant "to suspend shows in the Talkies from today onwards until further orders, as the Engineer of the Corporation of Madras, has certified that the Talkies is unfit to be used for the shows at present" (Exs. P. 2 dated 6-12-1946). By Ex. P. 3 the defendant communicated this to the plaintiff on the same day.
(2.) On 14-12-1946 the premises were again inspected both by the Corporation Engineer and the Commissioner. The Engineer was definitely of the opinion that the building was "unsafe for being used as a Cinema Theatre or for any other public purpose". On this, the Corporation Commissioner wrote to the Commissioner of Police Ex. P. 4 as follows: "In my opinion, the whole building should be pulled down immediately so as to avoid any further mishaps and should be reconstructed as I do not consider the existing structure to be sound......Under the circumstances, I would request you to cancel the licence already issued to the Paragon Talkies and not to renew it until the building is reconstructed and the Chief Engineer to Government certifies it to be sound and safe." This was communicated to the defendant, who thereupon wrote Ex. P. 5 to the plaintiff on 19-12-1946. Therein, after setting out the above facts, the defendant wrote "consequently we regret to inform you that our contract to exhibit your picture 'Rukmangadhan' at the Paragon Talkies has lapsed because of impossibility of performance." A cheque for Rs. 307-15-6 being the amount due to the plaintiff on account of the collections on the 4th and 5th December 1946 was also enclosed along with Ex. P. 5 and was received by the plaintiff without prejudice to his rights under the contract. After a preliminary exchange of notices, Ex. P. 7 and Ex. P. 8, the plaintiff instituted the suit, out of which the present appeal has arisen claiming Rs. 85000 as damages for breach of contract by the defendant. In the plaint, it is alleged that under the agreement between the parties the defendant was under an absolute obligation to exhibit the picture; that he was further negligent in that he did not maintain the Theatre in a proper state of repair; and that, therefore, he was in default and liable for damages. The defendant filed a written statement denying that he was under any absolute liability to exhibit the picture whether the Theatre was in existence or not; he also denied that he was negligent in the maintenance and upkeep of the Theatre. He contended that the contract had in the events which had happened become impossible of performance and frustrated; that he was, therefore, discharged from his liabilities thereunder, and that, in any event, the damages claimed were excessive. The suit was heard by Mr. Mack J. who held that there was in the contract an implied warranty by the defendant "that the Paragon Talkies would be available for the running of this picture throughout the period the parties contemplated"; and that further "the plaintiff had succeeded in proving positively default or neglect on the part of the defendant in addition to establishing the breach of the implied warranty in the suit contract." On the question of damages, he held that there were no data available for determination of the same and awarded a decree for Rs. 25000 in favour of the plaintiff. The defendant appeals.
(3.) On the contentions that have been urged before us three questions arise for determination : (1) Whether the liability undertaken by the defendant under Ex. P. 1 was absolute and whether he is, in consequence, liable for a breach of warranty; or whether there has been frustration of the contract so as to discharge him from his obligations thereunder; (2) Whether the defendant is liable on the contract on the ground that the frustration resulted from his own default or neglect, and (3) to what damages, if any, the plaintiff is entitled.;

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