Petitioner challenging reinstatement of balance licence fees after COVID-19 lockdown affected his temple pooja selling business. Court rejected Force Majeure claims, holding contract remains valid until specific impossibility is proven.
Petitioner not entitled to waiver of instalments, enlargement of time, or extension of contract period.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR. JUSTICE K.HARIPAL
FRIDAY, THE 18TH DAY OF DECEMBER 2020 / 27TH AGRAHAYANA, 1942
WP(C).No.27395 OF 2020(Y)
PETITIONER:
G.HARIKUMAR
AGED 49 YEARS
S/O. GOPALAKRISHNA HEGDAN, RESIDING AT THOPPIL HOUSE, ETTUMANOOR P.O., PIN-686631.
BY ADVS.
SRI.K.MANOJ CHANDRAN SRI.R.LAKSHMI NARAYANAN SRI.P.R.AJITHKUMAR SHRI.TONY GEORGE THOMAS
RESPONDENTS:
SRI. G. BIJU, SC, TDB
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-122020, THE COURT ON 18-12-2020 DELIVERED THE FOLLOWING:
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W.P(C).27395/2020
C.R.
JUDGMENT
Haripal, J.
Petitioner is a businessman and also a devotee of Lord Sree Mahadeva of Ettumanoor. He is the successful bidder in the tender floated by the respondents for auctioning the right to sell pooja items at Ettumanoor devaswom in Ettumanoor group, for the financial year 20202021. His tender for Rs.2,34,56,789/- was accepted. Immediately after accepting the bid, he remitted 50% of the amount, i.e. Rs.1,17,28,395/-, on 20.03.2020. According to him, he started procuring oil and such other pooja articles spending huge amount for selling the items. But due to the outbreak of Covid-19, complete lock down was declared on 24.03.2020 which was extended till 31.05.2020. Even though lock down was lifted from 31.05.2020, devotees were not allowed to enter temples till 16.08.2020. As per the tender conditions, he could sell pooja articles with effect from 01.04.2020. Entry of devotees in temples was regulated from 17.08.2020 strictly adhering to Covid-19 protocol. That means, only few
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devotees were allowed to enter the temple. Ettumanoor temple is one of the famous temples of Lord Siva, where 'enna vazhipadu', offering of oil, is very important. In normal days an average 40-50 cans of oil are needed for the offering, but due to the restrictions, only 5-6 cans are sold. As per the tender conditions he had to remit the balance amount in two instalments, on 30.04.2020 and 31.07.2020. Due to the lock down and subsequent regulations he could not commence selling pooja items so that he gave Exts.P2 and P3 representations stating that he is suffering an average loss of Rs.30 lakhs a month. Thus he approached for waiving the tender amount for a month and also sought time for remitting the next instalment. From 01.04.2020 to 16.08.2020 even for a single day he could not do any business. But ignoring the adverse circumstances, through Ext.P4 notice, he has been asked to remit the balance two instalments. The respondents are fully aware that the petitioner could not do any business till 16.08.2020. In the light of the spread of the pandemic and the consequent uncertainties in the society, performance of the contract had become impossible. Due to restricted entry of devotees in the temples, the petitioner is not doing any business as expected and thus
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it has become necessary for him to move the respondents to take a lenient and pragmatic approach. Thus he made Exts.P5 and P6 representations before the respondents requesting to reduce the instalment amounts and also to enlarge time to remit such reduced amounts. He has also sought for extension of the tender period for the next financial year. But it is understood that the respondents are taking hasty steps to proceed against the petitioner and that made him to approach this Court under Article 226 of the Constitution of India, seeking the following reliefs:-
“i. To call for the records leading to Exhibit P4 notice and to quash the same by issuing a writ of certiorari or any other writ, order or direction.
ii. To declare that the petitioner is entitled to have a rework of the terms and conditions of the contract, as seen concluded in Ext.P1, in view of the Covid-19 Pandemic situation, which would amount to a factor of the nature of vis major (act of god), and thus entitled to be considered for waiver/reduction of licence fees, for the period during which the temple in question was not allowed to be opened for the devotees, with rigid restrictions, which includes the period from 01.04.2020 to 16.08.2020 and thereafter, and also for proportionate reduction of the licence fee payable during the period when only restrictive entry was allowed to
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the devotees into the temple, and also for enlargement of the period of licence, to take within its fold, next financial year also.
iii. To declare that the petitioner is entitled for extension of licence period for selling pooja items in Ettumanoor Sree Mahadeva Temple for the next financial year also as the existing licence terms could not be performed fully due to Covid-19 pandemic.
iv. To issue a writ of mandamus or any other appropriate writ, order or direction, commanding the respondents to consider and dispose Exts.P5 and P6 within a time limit, as fixed by this Court and thereby rework the contract, taking into consideration the Covid-19 pandemic situation.
v. To restrain the respondents from all further proceedings pursuant to Ext.P4 notice till orders are passed and communicated in Exhibits P5 and P6 representations filed by the petitioner.”
learned Standing Counsel for the respondents.
India v. M/s.Kamdhenu Cattle Feed Industries (AIR 1993 SC 1601)
the learned counsel pointed out that the Travancore Devaswom Board
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being an instrumentality under Article 12 of the Constitution possesses powers to use them for public good; the respondents are fully aware of the fact situation that the petitioner could not do any business till 16.08.2020 due to the restrictions imposed consequent to the spread of the pandemic. They cannot turn a blind eye to the situation that even after remitting a huge amount of Rs.1,17,28,395/- the petitioner could not do any business. That made him to move the representations which have not been considered. Now they have started demanding payment of the balance instalments, which is highly arbitrary and unjust. Relying on the decision reported in Surya Constructions v. State of Uttar Pradesh and others [(2019) 16 SCC 794] he pointed out that if the State behaves arbitrarily, even in the realm of contract, this Court is justified in interfering under Article 226 of the Constitution. According to the learned counsel, the turn of events has created a Force Majeure situation. Relying on the judgment of the Delhi High Court in O.M.P(I)(COMM.)No.88/2020 & I.As.36963697/2020 (M/s Halliburton Offshore Services Inc. v. Vedanta Limited and another) he argued that independent of the contract sometimes the doctrine of frustration could be invoked by a party as per Section 56 of the
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Indian Contract Act; if an untoward event or change of circumstance totally upsets the very foundation upon which the parties entered their agreement, it can be said that the promiser finds it impossible to do the act which he had promised to do, then the principle of Force Majeure can be invoked. According to the learned counsel, turn of events was beyond the control of the petitioner; the performance of contract had become impossible and that the respondents did not give him a platform to perform the contract. In the first four months he could not open the stall or do business even for a single day. The learned counsel also submitted that the uncontrolled spread of the pandemic and the consequent lock down have been taken as a Force Majeure situation as a natural calamity, for considering appropriate follow-up action by the Ministry of Finance, Department of Expenditure, Procurement Policy Division of the Central Government. He has brought to our notice the Office Memoranda issued by the Ministry in this regard and said that this can be directed to be followed by the respondents also.
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strict ban in the matter of allowing devotees into the temple, that has been lifted by now; devotees are entering the temple, the petitioner is now supplying items, performing the contract. The learned Standing Counsel has also relied on the decision reported in Travancore Devaswom Board
v. Thanath International [(2004) 13 SCC 44] .
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subsequent instalments, enlargement of time or extension of the term of contract for another year. Our answer is in the negative. The Hon'ble Supreme Court has considered this question in Thanath International case (supra) and answered thus:-
“12. The law on the subject is well settled. In the case of Alopi Parshad & Sons Ltd. v. Union of India this Court has held that the Contract Act, 1872 does not enable a party to a contract to ignore the express covenants thereof. It is held that the Contract Act does not permit a party to claim payment of consideration for performance of contract at rates different from the stipulated rates, on some vague plea of equity. It is held that in the performance of a contract, one often faces, in the course of carrying it out, a turn of events which are not anticipated e.g. an abnormal rise or fall in prices, sudden depreciation of currency, an unexpected obstacle to execution or the like. It is held that these do not affect the bargain that has been made. It is held that there is no general liberty reserved to the courts to absolve a party from liability to perform his part of the contract, merely because on account of an uncontemplated turn of events, the performance of the contract has become onerous. It is held that compensation quantum meruit is awarded when the price is not fixed by the contract. It is held that for work done or services rendered pursuant to the terms of
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contract, compensation quantum meruit cannot be awarded.
That means, when such a contract is entered into, it involves certain eventualities and uncertainties. One cannot be heard to say that when an unexpected turn of event occurs in the matter of performance of the contract, if it goes unfavourable to him, he should be compensated. It is a proposition alien to the Contract Act. That is why it is held in unambiguous terms that, merely because performance had become more onerous is not a ground for non performance or for claiming enhancement of price. Application of Section 56 of the Indian Contract Act, therefore, cannot be pressed into service.
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W.P(C).27395/2020
“ 56. Agreement to do impossible act .—An agreement to do an act impossible in itself is void.
Contract to do an act afterwards becoming impossible or unlawful .—A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful.
Compensation for loss through non-performance of act known to be impossible or unlawful .— Where one person has promised to do something which he knew, or, with reasonable diligence, might have known, and which the promisee did not know, to be impossible or unlawful, such promisor must make compensation to such promisee for any loss which such promisee sustains through the non-performance of the promise.”
The first part of Section 56 deals with the contract from the very beginning is impossible to perform. Such a contract is void. The second part of Section 56 deals with a contract to do an act which afterwards become impossible or unlawful. Such a contract also would be void when the act becomes impossible or unlawful.
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contract, subsequent to its formation, in the event of change of circumstances rendering the contract illegal or physically impossible of performance. Impossibilium nulla obligatio est is an accepted Latin Maxim meaning that there is no obligation to do impossible things. Similarly, the scope of application of the doctrine of ' Lex non cogit ad Impossibilia' , that is, the law does not compel a man to do what he cannot possibly perform, the Roman Maxim ' Nemo Tenetur ad Impossibilia ', no one is bound to do an impossibility, have no application in the fact situation. Here no one has a case that the first part of Section 56 has any application. The petitioner wanted to bring his case under the second part, saying that due to supervening reasons, that is, introduction of complete lock-down due to the spread of Covid-19 pandemic, it became impossible for him to perform his part of the contract and thus the contract stands frustrated. We have no doubt that on his own showing, it is brought out by the petitioner that the second part of Section 56 also has no application. It is evident that from 17.08.2020 onwards, he could do business. The term of the contract is upto 31.03.2021. If it was an absolute impossibility, he would not have been able to perform the contract and supply items as
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required under the terms of the contract. Therefore, the petitioner cannot take shelter under Section 56 of the Contract Act. For the very same reason, his argument that he has suffered a huge loss of Rs. 30 lakhs a month also cannot be looked into by the Court.
[AIR 1971 SC 1756] the Hon'ble Supreme Court held that Section 56 of the Contract Act lays down a rule of positive law and does not leave the matter to be determined according to the intention of the parties. The impossibility contemplated by Section 56 of the Contract Act is not confined to something which is not humanly possible. If the performance of a contract becomes impracticable or useless having regard to the object and purpose of the parties had in view then it must be held that the
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performance of the contract has become impossible. But the supervening events should take away the basis of the contract and it should be of such a character that it strikes at the root of the contract (emphasis supplied). As noticed, here even the petitioner has not shown that the supervening events have struck at the root of the contract. In other words, it has not become humanly impossible to perform the contract. Even though for some time in the beginning, it had become more onerous to get returns as expected by him, after lifting the ban in entering of devotees in temple, devotees have resumed visiting the temple and thus the petitioner has started supplying materials as required under the contract. After starting to supply materials, he cannot turn round and say that the contract has become impossible of performance and frustrated. He cannot blow hot and cold at the same time.
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unexpected. But that will not help the petitioner automatically to take shelter under the principle of Vis major (act of god). The general conditions of contract are not available for perusal. We do not know whether such a situation was foreseen by the parties. Moreover, we have already noticed that by his own volition, it is shown that his part of the contract is available for performance from the date temples were opened for devotees and till 31.03.2021, the date on which the period of contract expires, and he has already started supplying items under the contract.
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Similar other individual pleas were also declined by us.
cannot be ignored on a vague plea of equity, that risks associated with a contract have to be borne by the parties. Alteration of circumstances does not lead to frustration of a contract. Courts cannot generally absolve performance of a contract either because it has become onerous or due to an unforeseen turn of events. Doctrine of frustration has to be applied narrowly.
stand in identical circumstances that bidders cannot be permitted to beat a
retreat to their convenience whenever unfavourable turn of events takes
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place. Consistency is the hallmark of justice delivery system. In the oft quoted decision in State of A.P. v. A.P. Jaiswal [(2001) 1 SCC 748]: (AIR 2001 SC 499)] a three-Judge Bench of the Hon'ble Apex Court has observed thus:-
We cannot take a different stand in this situation also.
Resultantly, the petitioner is not entitled to get any relief. The writ petition is dismissed. No costs.
Sd/-
C.T. RAVIKUMAR JUDGE
Sd/-
K.HARIPAL JUDGE
okb/Dcs/15.12.2020
//True copy// P.S. to Judge
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W.P(C).27395/2020
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE RECEIPT EVIDENCING THE PAYMENT OF RS. 1,17,28,395-00 DATED 20/03/2020.
EXHIBIT P2 TRUE COPY OF THE REPRESENTATION DATED 13/04/2020 SUBMITTED BEFORE THE 1ST RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 17/04/2020 SUBMITTED BEFORE THE 4TH RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE NOTICE DATED 02/11/2020.
EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 04/11/2020 SUBMITTED BEFORE THE 1ST RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED 04/11/2020 SUBMITTED BEFORE THE 4TH RESPONDENT.
3 issues framed by the court
Whether the petitioner is entitled to waiver of instalments, enlargement of time, or extension of contract term due to lockdown preventing business for 4½ months.
Whether the doctrine of frustration or Section 56 of the Contract Act applies when performance becomes more onerous but not impossible.
Whether the principle of vis major allows a contractor to claim reduction in fees due to temporary inability to operate during pandemic restrictions.
Colour shows how this judgement treated each authority
Food Corporation of India v. M/s. Kamdhenu Cattle Feed IndustriesReferred¶42
Food Corporation of India v. M/s.Kamdhenu Cattle Feed Industries (AIR 1993 SC 1601) · Who else cites this
Surya Constructions v. State of Uttar PradeshReferred¶44
Surya Constructions v. State of Uttar Pradesh and others [(2019) 16 SCC 794] · Who else cites this
M/s Halliburton Offshore Services Inc. v. Vedanta LimitedReferred¶45
Halliburton Offshore Services Inc. v. Vedanta Limited
Travancore Devaswom Board v. Thanath InternationalFollowed¶51
Travancore Devaswom Board v. Thanath International [(2004) 13 SCC 44] · Who else cites this
Alopi Parshad & Sons Ltd. v. Union of IndiaRelied on¶58
Alopi Parshad & Sons Ltd. v. Union of India
Smt. Sushila Devi and another v. Hari Singh and othersRelied on¶77
Smt. Sushila Devi and another v. Hari Singh and others [AIR 1971 SC 1756] · Who else cites this
State of A.P. v. A.P. JaiswalReferred¶94
State of A.P. v. A.P. Jaiswal [(2001) 1 SCC 748] · Who else cites this
G. Harikumar
The Travancore Devaswom Board
The Devaswom Commissioner
The Deputy Devaswom Commissioner
The Administrative Officer, Sree Mahadeva Temple
C.T. Ravikumar
K. Haripal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
