Judgment :- 1. The defendants in O.S. No. 374 of 1968 on the file of the Munsiff's Court, Quilon are the appellants in this Second Appeal. The above suit was one for damages for breach of a contract. The appellants contend that the contract was not performed due to vis-major and hence the respondents-plaintiffs are not entitled for damages. Arjunan of Prakkulam the first plaintiff, who is none other than the Secretary of the Boat Passengers' Association, Quilon thought that it was only proper that for the marriage of his brother the second plaintiff, the bridegroom's party must be taken from Prakkulam to Mangad in the biggest boat belonging to the State Water Transport Department. Accordingly on 30121967 be made Ext. P2 application for the same to the Station Master, Quilon in the letter-head of his association itself. The boat was booked for 2111968. As made clear in Ext. P2 itself the boat was to leave Prakkulam Jetty with the marriage party at 10.30 A.M. On 1911968 the first plaintiff paid Rs. 100/- as advance and this is evidenced by Ext. P3 receipt issued by the Department. The Boat Passengers' Association Secretary and his 300 invitees reached Prakkulam Jetty in time to board the boat. Everything was ready but the boat did not make its appearance. From 10.30 A.M. to 12.30 P.M. for two long hours they were hoping against hopes that the boat will be there the next moment. The muhurtham was between 1 P.M. and 2 P.M. So they could not wait any further. All taxi cars available in the locality and in the neighbourhood were commissioned and all out attempt was made to take the party by road. The bridegroom and a few of the invitees were lucky to reach the bride's residence in time while the rest of the party could reach there only after the marriage. Going by the evidence adduced in this case the maximum passenger capacity of a boat belonging to the Water Transport Department is 120 or so. If that be so what would have happened if the boat came in time and the marriage party 300 strong went in that boat from Prakkulam to Mangad. This need only be left to one's own imagination. 2. According to the plaintiffs a considerable amount had to be spent because of the breach of contract committed by the defendants. If that be so what would have happened if the boat came in time and the marriage party 300 strong went in that boat from Prakkulam to Mangad. This need only be left to one's own imagination. 2. According to the plaintiffs a considerable amount had to be spent because of the breach of contract committed by the defendants. Hence this suit was filed for damages and the return of Rs. 100/-paid as advance. The defendants in their written statement contended that the contract could not be performed because of events which could neither be anticipated nor be prevented and hence the defendants could not be made liable for the damages. The arrangement made was that Boat No. 10 which left Alleppey for Quilon at 10.30 P. M. the previous night was to run the special trip from Prakkulam to Mangad also after completing its Alleppey to Quilon service trip. As it developed engine trouble at Bhargavan's Jetty, Boat No. 12 was diverted to Quilon with instructions to fun the special trip in question also. It was to reach Quilon by 8.30 A.M. on 2111968 but it had also a break-down at Ayiramthengu. After repairs it could reach Quilon only at 12 noon. There was no spare boat at Quilon also. 3. The trial court came to the conclusion that there was absolutely nothing on record to show that the Department was negligent and hence the defendants could not be made liable for damages. The trial court dismissed the suit with an observation that the plaintiffs will be entitled for the return of the advance paid. The plaintiffs took the matter in appeal before the court below. The court below came to the conclusion that the contract did not become impossible of performance after it was made and that the defendants were not discharged from performance of the contract on account of the fact that the two boats one after the other had a break-down on the way. The court below found the defendants liable for the breach of contract and held that the plaintiffs were entitled to get damages of Rs. 500/-with interest thereon from 21-1-1968 at 6% per annum and also the return of the advance of Rs. 100/-. The judgment and decree of the trial court were set aside and a decree on the above lines was given by the court below. 500/-with interest thereon from 21-1-1968 at 6% per annum and also the return of the advance of Rs. 100/-. The judgment and decree of the trial court were set aside and a decree on the above lines was given by the court below. From the above judgment and decree of the court below the defendants have come up in this Second Appeal. 4. The learned Government Pleader appearing for the appellants contends that the contract was not performed due to vis-major and hence the respondents are not entitled to damages. According to the learned Government Pleader not only that there was no negligence on the part of the appellants, as a matter of fact, they did all that they could do to perform the contract and hence they cannot be held liable for damages. The learned Government Pleader points out that no negligence is also alleged in this case. It is also pointed out that it is the first part of S.56 of the Indian Contract Act, 1872 (for short the Act) which is applicable in this case. S.56 of the Indian Contract Act, 1872 reads: S. 56. "An agreement to do an act impossible in itself is void. A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the the promisor could not prevent, unlawful, becomes void when the act becomes 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". According to the learned Government Pleader the break down of the two boats one after the other was as event which made the contract not possible of performance and because of this the contract became impossible of performance. Under the above circumstances, the appellants cannot be made liable for damages. 5. Shri Thayyil K. Vasudevan, learned counsel for the respondents contends that appellants cannot make a plea of vis-major in a case like this. According to the learned counsel, this is a case where there was no diligence on the part of the appellants. Under the above circumstances, the appellants cannot be made liable for damages. 5. Shri Thayyil K. Vasudevan, learned counsel for the respondents contends that appellants cannot make a plea of vis-major in a case like this. According to the learned counsel, this is a case where there was no diligence on the part of the appellants. The learned counsel points out that appellants did not even care to inform the respondents that the boat could not be sent. The learned counsel refers to S.73 of the Contract Act, which reads: 73. When a contract has been broken the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it. Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach. When an obligation resembling those created by contract has been incurred and has not been discharged, any person injured by the failure to discharge it is entitled to receive the same compensation from the party in default as if such person had contracted to discharge it and had broken his contract. Explanation: In estimating the loss or damage arising from a breach of contract, the means which existed of remedying the inconvenience caused by the non-performance of the contract must be taken into account." According to the learned counsel even if S.56 of the Act applies it is the 2nd part of the Section which applies and in that case also as there was no reasonable diligence on the part of the appellants they must pay compensation for the loss sustained by the respondents. The learned counsel refers to Turner v. Goldsmith, (1891) 1 Q. B. 544) wherein the court of appeal, dealing with the impossibility of performance of a contract to employ an agent for a certain period due to destruction of the principal's manufactory by fire, said: "The action was maintainable, and that the plaintiff was entitled to substantial damages, for the defendant, having agreed to employ the plaintiff for five years, did not fulfil that agreement unless he sent him reasonable amount of samples to enable him to earn his commission; and that the defendant has not excused from fulfilling his agreement by the destruction of his manufactory by fire". In the above judgment of the court of appeal, the following observations of Blackburn J. in Taylor v. Coldwell, (3 B & S 826, 833) are extracted: "There seems no doubt that where there is a positive contract to do a thing not in itself unlawful, the contractor must perform it or pay damages for not doing it, although in consequence of unforeseen accidents the performance of his contract has become unexpectedly burdensome or even impossible But this rule is only applicable when the contract is positive and absolute, and not subject to any condition either express or implied, and ' there are authorities which we think establish the principle that where from the nature of the contract it appears that the parties must from the beginning have known that it could not be fulfilled, unless when the time for the fulfilment of the contract arrived some particular specified thing continued to exist, so that when entering into the contract they must have contemplated such continuing existence as the foundation of what was to be done, then, in the absence of any express or implied warranty that the thing shall exist, the contract is not to be construed as a positive contract, but as subject to an implied condition that the parties shall be excused in case before breach performance becomes impossible from the perishing of the thing without default of the contractor". The learned counsel then contends that a state of affairs brought into existence by the act of a party cannot be used as an excuse for failure to perform a contractual obligation. In other words, a self induced frustration cannot be a defence. The learned counsel then contends that a state of affairs brought into existence by the act of a party cannot be used as an excuse for failure to perform a contractual obligation. In other words, a self induced frustration cannot be a defence. In support of his contention the learned counsel relies on D. R. Mehta v. Tin Plate Dealers Association (AIR. 1965 Mad. 400), wherein the Madras High Court has said: It is settled law that before the court applies the principle that the contract has become impossible of performance, the first duty is to ascertain the facts forming the basis of the contract and see how far the change in the circumstances is such as to remove the very foundation of the contract itself. The court must as a fact determine whether the circumstances did exist and if so whether they are sufficient to bold that the parties are absolved from their obligations under the contract. It is the essence of the doctrine that the event which causes frustration must have occurred without the fault of either party. Therefore, the court ought to see whether it is a case of self-induced frustration in which case there could be no defence at all". The learned counsel also refers to the decision of the House of Lords in Tankiroglou & Co. Ltd. v. Noblee Thorl G.M.B.H. (1961 (2) WLR. 633). In this case the question that came up for consideration was whether due to the closure of the Suez Canal, which was the usual route, a contract for shipment was frustrated or not. The House of Lords said: "(1) that a term that shipment should be (a) via Suez or (b) by the usual and customary route at the date of the contract, should not be implied into the contract. (2) That since the Suez Canal was unusable during the relevant period the sellers' duty was to ship the goods to the required port by a reasonable and practicable route if available. (3) That although the route via the Cape involved a change in the method of performance of the contract, it was not such a fundamental change from that undertaken under the contract as to entitle the sellers to say that the contract was frustrated. (3) That although the route via the Cape involved a change in the method of performance of the contract, it was not such a fundamental change from that undertaken under the contract as to entitle the sellers to say that the contract was frustrated. (4) That the shipment was not prevented by war or force injure within the meaning of the contract; placing the goods on board a vessel for the right destination was not prevented". 6. The learned Government Pleader replying to the contentions of the learned counsel for the respondents points out that due to the break down of the boats the contract became practically impossible of performance and hence the appellants could not be made liable for damages. Reference is made to Sooryaprakasalingam v. Trikamlal, (AIR. 1917 Mad. 509) wherein, the Madras High Court has construed the words 'act impossible in itself' in S.56 of the Act. The court said: "The language of the first part of S.56, Contract Act, referring to an "act impossible in itself suggests that the impossibility which would relieve the promisor from liability must not relate to circumstances which render performance impossible, such as failure to keep to the time or difficulties which may have to be experienced in carrying out the terms, as these contingencies are referred to only in the second part of the section, but practical impossibility will excuse the promisor though the act may be physically possible of performance". The court further said: "In as much as the defendant had failed to make out that it was practically impossible to perform the contract within the specified time, the plaintiff was entitled to damages for breach thereof". Reliance is then made on M/s. Alspi Parshad v. Union of India, (AIR. 1960 S.C. 588), wherein the Supreme Court has said: "A contract is not frustrated merely because the circumstances in which the contract was made, are altered". The Supreme Court further said: "The parties to an executory contract are often faced, in the course of carrying it out, with a turn of events which they did not at all anticipate a wholly abnormal rise or fall in prices, a sudden depreciation of currency, an unexpected obstacle to execution, or the like. Yet this does not in itself affect the bargain they have made. Yet this does not in itself affect the bargain they have made. If, on the other band, a consideration of the terms of the contract, in the light of the circumstances existing when it was made shows that they never agreed to be bound in a fundamentally different situation which has unexpectedly emerged, the contract ceases to bind at that point not because the court in its discretion thinks it just and reasonable to qualify the terms of the contract, but, because, on its true construction it does not apply in that situation". The learned Government Pleader then points out that to get compensation for breach of contract proof of actual loss or damage is essential and relies on Mania Buse v. Union of India, (AIR 1970 S.C.1955) in support of his contention. 7. On a consideration of the contentions of the counsel on both sides and the facts, circumstances and evidence in this case I come to the following conclusions: The contract in question was to run a special trip from Prakkulam Jetty to Mangad. As no boat was sent to Prakkulam Jetty to run the special trip undertaken there was a breach of contract. Under S.73 of the Contract Act the defendants are liable to compensate the plaintiffs for the loss or damage caused due to the breach of contract. But under S.56 of the Act if the act agreed to be performed becomes impossible after the contract was entered into for no fault of the promisor then the contract becomes void. Also when the act becomes unlawful the contract becomes void. In both the above cases as the contract becomes void no question of breach of contract or liability for damages arises. But if the promisor was well aware of both the above contingencies at the time of entering into the contract then the liability for damages will be there. In this case the act promised to be done was not one which was impossible of performance. The breach of contract occurred because of the break-down of the boats. But this will not absolve the appellants of the liability for damages. If the event which made the performance of the contract impossible, happened because of the fault of the promisor then it is a case of self-induced frustration and the promisor will be liable. The breach of contract occurred because of the break-down of the boats. But this will not absolve the appellants of the liability for damages. If the event which made the performance of the contract impossible, happened because of the fault of the promisor then it is a case of self-induced frustration and the promisor will be liable. Because of unforeseen incidents the performance of the contract may become burdensome or even impossible, but even then the promisor will have either to perform the contract or pay the damages. Once the appellants promised to run the special trip it is their duty to carry out that contract. As they did not perform the contract they are liable for the damages of the respondents. The break-down of the boats in the course of the Alleppey Quilon trip cannot be a reason for exonerating the appellants from the liability for damages. It can only be a self-induced frustration. It was the duty of the appellants to keep a boat in good condition ready at Quilon to proceed to Prakkulam to reach there in time for the special trip. This the appellants did not do. So there was lack of diligence on the part of the appellants. For the reasons stated above there is no reason to interfere with the judgment and decree of the court below. The Second Appeal is dismissed with costs. Dismissed.