UNION BEARING (I) LTD. vs Tata Press Ltd.

THIS appeal arises from order dated 5.10.1998 rendered by the learned Consumer Disputes Redressal Forum, Ahmedabad City, dismissing complaint bearing No. 116 of 1996.

FACTS of the present case run into a narrow compass : The complainant No. 1 company hired services of the opponents for printing and publishing advertisement of their business in the Ahmedabad Telephones Directory and Tata Yellow Pages for a period of 5 years 1987 to 1993 and paid Rs. 1,25,000/- by way of consideration in advance to the opponents. As the opponents did not publish the advertisement, the complainants inter alia called upon the opponents to refund the amount as per communication dated 6.4.1994. They having not done so and services having not been rendered as per the contract between the parties, complainant No. 1 along with complainant No. 2, its Managing Director filed aforesaid complaint before the learned Forum for obtaining refund of Rs. 1,25,000/- and compensation in the sum of Rs. 3,00,000/- along with compensation on other heads and cost. Opponents resisted the complaint inter alia on the ground that it became impossible for them to perform the contract on account of concerned authority of the Telecommunication Department at Ahmedabad in not granting permission for publishing the directory in question resulting into filing of suit in Civil Court at Ahmedabad. The learned Forum has referred to Clause 10 of the contract between the parties which would read as under : "10. Force Majeure-The publisher shall not be liable for non-performance hereof it and to the extent caused by occurrences beyond its control, including but not limited to acts of God, decrees or retraints of Governments, strikes, or other labour disturbances, change of law, refusal on the part of the Government, Government Agencies, Bank or other Competent Authority to grant any necessary permit or in the event of any other supervening clause rendering performance of any of the obligations in accordance with the most liberal interpretation of the doctrine of frustration of contracts."

Learned Forum also relied on Section 56 of the Indian Contract Act according to which when a contract becomes impossible of performance by reason of some event which promissor could not prevent becomes void when the Act becomes impossible of being performed. The learned Forum, therefore, proceeded to dismiss the complaint.

We have heard the learned Advocates for the parties. It might be noted that complainants had asked for refund of their money as opponents informed the complainants about the development between the Telecommunication Department and the opponents with regard to granting of permission for publishing the directory with Tata Yellow Pages. It is this part of the requisition made by the complainants which remained unanswered from the side of the opponents and in our considered opinion by the learned Forum. We would like to refer to Section 65 of the Contract Act, which reads as under : "When an agreement is discovered to be void or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it or to make compensation for it to the person from whom he received it."

In our considered opinion, this is a clear case of at least that part of service which the opponents were legally bound to render to the complainants, namely to refund the amount paid by the complainants when the opponents found that it was not possible for them to perform the contract. That having not been done, at least this part of the relief was clearly available in law to the complainants.

IN the result, we pass following order : ORDER Impugned order dated 5.10.1998 rendered by the learned Consumer Disputes Redressal Forum, Ahmedabad City, dismissing complaint bearing No. 116 of 1996 is hereby set aside. The complaint shall stand granted as under : Opponents are directed to pay to the complainants Rs. 1,25,000/- with interest at 9% per annum from the date of complaint till payment within six weeks from the date of receipt of copy of this order, direct service of which is permitted. This appeal is allowed, with no order as to costs throughout. Appeal allowed.