TMI Blog1951 (11) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... ntracts, 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, Ramput. Only 99 bales were taken up and there was a dispute about the remaining 85 bales. On the 17th October, 1941, a settlement was arrived at between the parties, and it was agreed that the respondent-firm should deliver to the appellant 61 bales, and that the goods should be delivered by the 17th November, 1941. The actual text of the agreement (exhibit 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Indian Contract Act, 1872. The main grounds of attack against the judgment of the High Court are :- (1) that it has misread the agreement (exhibit 4) dated the 17th October, 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. 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 judgment 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 V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a condition precedent, to the obligation to deliver at all, and virtually makes a new contract. The words certainly regulate the manner of performance, but they do not reduce the fixed quantity sold to a mere maximum, or limit the sale to such goods, not exceeding 864 bales, as the Mills might deliver to the defendants during the remainder of the year. Their Lordships then proceeded to observe:- The Mills, from which the goods were to come, no doubt were contemplated as continuing to exist, though it does' not follow that, in a bargain and sale such as this, the closing or even the destruction of the Mills would affect a contract between third parties, which is in terms absolute; but the Mills did continue to exist and did continu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the respondents must fail on their own admissions. The defendant has stated in his evidence that he had not sold the 61 bales of cloth to any other person at the time he received the telegraphic notice of the 20th November, 1941, (exhibit 1). On his own admission, therefore, he was in a position to supply 61 bales of the contracted goods at the time when the breach of the agreement is alleged to have happened. That being so, we are unable to hold that the performance of the contract had become impossible. The matter however does not rest there. Guruprasad, a clerk of the Mills Company, who is the second witness for the defendants, has made an important statement to the following effect The customers all place their requirements before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he nature of it the parties must have made their bargain on the footing that a particular thing or state of things would continue ,to exist. And if they must have done so, then a term to that effect will be implied, though it be not expressed in the contract ...... no court has an absolving power, but it can infer from the nature of the contract and the surrounding circumstances that a condition which is not expressed was a foundation on which the parties contracted, It seems necessary for us to emphasize that so far as the courts in this country are concerned, they must look primarily to the law as embodied in sections 32 and 56 of the Indian Contract Act, 1872. These sections run as follows :- 32. Contingent contracts to do or not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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