Chatterjee, J. - (1.) This is a suit for the recovery of Rs. 32,500/- being damages for breach of contract.
(2.) A gentleman by the name of Hazarimull Agarwalla carried on business in' the name & style of Sree Jagadish Rice & Oil Mills at Forbesgunge in the district of Purnea in Bihar. He was the karta & manager of a joint Hindu family which carried on business in that name.
(3.) The case made in the plaint is that it was agreed that Hazarimull Agarwalla would sell & the deft, would purchase 2,500 maunds of rice on inter-alia the following terms & conditions: (a) The deft, would pay the price of rice at 28/-per maund. (b) The deft, would pay also two annas per maund, as expenses for cartages & loading, (c) The deft, would pay Rs. 62/- per hundred new bags, (d) Delivery would be given at the plff's. mill. (2) It is alleged in the plaint that the deft, postponed taking delivery of the goods to which the plff. assented. On 20-9-1943 the plff. called upon the deft, to take delivery of the goods vithin fifteen days but the deft, failed & neglected to take delivery of the goods & this suit has been instituted, for damages being the difference between the value of the goods at the contract rate & the price prevailing on or about 5-10-1943. (3) In its written statement the deft. Co. pleaded that it was implied from the nature of the contract that the 2,500 maunds of rice would have to be despatched by rail from Purnea for export out of the province of Bihar to Bengal. The deft. states that it made diligent efforts to obtains wagons or wagon priorities but the same were not available. The plff. failed & neglected to apply for the necessary permit to enable him to give delivery of the contracted goods. In any event, the deft. Co. was prevented from obtaining delivery of the goods for exporting the same from Bihar by reason of Govt. Orders & Notfns. issued under the Defence of India Rules. By reason of such Orders-& Notifications, the contract was rendered void & the deft. Company was not liable to take delivery of the goods. The Govt. of Bihar requisitioned. 12,500 maunds of rice lying with the Jagadish Rice & Oil Mills which included the rice in question. Therefore the contract became impossible of performance or was rendered void.;