Force Majeure Frustration Impossibility A Qualitative Empirical Analysis

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FORCE MAJEURE, FRUSTRATION AND

IMPOSSIBILITY
A QUALITATIVE EMPIRICAL ANALYSIS
Smaran Shetty and Pranav Budihal

TABLE OF CONTENTS
ABOUT THE AUTHORS ............................................................................................................................. 3

EXECUTIVE SUMMARY ............................................................................................................................ 4
INTRODUCTION ....................................................................................................................................... 5
PART I – DOCTRINAL STANDARDS........................................................................................................... 6
A. Statutory Framework .................................................................................................................. 6
1. Section 32 of the Indian Contract Act ..................................................................................... 6
2. Section 56 of the Indian Contract Act ..................................................................................... 7
B. Core conceptual issues................................................................................................................ 7
1. Unforeseeability of event ....................................................................................................... 8
2. Purpose of contract must be materially impacted ................................................................. 8
3. Impracticalities, hardship and commercial considerations .................................................... 9
4. Notice requirements ............................................................................................................. 10
C. Allied issues in a force majeure claim ....................................................................................... 11
1. Forum .................................................................................................................................... 11
2. Burden of Proof..................................................................................................................... 12
3. Bank Guarantee and Letter of Credit .................................................................................... 12
4. Interpretation of Force Majeure Clauses .............................................................................. 13
D. Key decisions of the Supreme Court ......................................................................................... 15
E. Key decisions of High Courts ..................................................................................................... 17
PART II – Empirical Analysis .................................................................................................................. 21
A. Overview of Cases ..................................................................................................................... 22
B. Supreme Court .......................................................................................................................... 23
C. Delhi High Court ........................................................................................................................ 24
D. Bombay High Court ................................................................................................................... 24
E. Madras High Court .................................................................................................................... 24
F. Karnataka High Court ................................................................................................................ 25
G. Allahabad High Court ................................................................................................................ 25
H. Calcutta High Court ................................................................................................................... 25
CONCLUSION......................................................................................................................................... 25
APPENDIX A – Overview of Cases ......................................................................................................... 29
APPENDIX B – Supreme Court............................................................................................................... 31
APPENDIX C – Delhi High Court............................................................................................................. 34
APPENDIX D – Bombay High Court ....................................................................................................... 37
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APPENDIX E – Madras High Court ......................................................................................................... 39
APPENDIX F – Karnataka High Court ..................................................................................................... 43
APPENDIX G – Allahabad High Court .................................................................................................... 45
APPENDIX H – Calcutta High Court ....................................................................................................... 48
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ABOUT THE AUTHORS
Smaran Shetty is a Senior Associate at Keystone Partners.

Smaran graduated from the National University of Juridical
Sciences Kolkata (B.A./LLB) and Columbia University (LL.M.). He
is an advocate enrolled with the Bar Council of India and is
awaiting admission to the New York State Bar. Smaran may be
contacted at: smaran.shetty@keystone.law
Pranav Budihal was an Associate at Keystone Partners and is

currently an LL.M. (International Arbitration and Dispute
Resolution) candidate at the National University of Singapore.
Pranav holds a B.B.A.LL.B (Hons) Degree from the National Law
University Odisha, Cuttack. He is an advocate enrolled with the
Bar Council of India. Pranav may be contacted at:
pranav.br@gmail.com
All views expressed here are personal and not representative of the organizations and
institutions to which we are affiliated. While we have made all efforts to ensure the accuracy
of the information contained herein, we apologize for any errors or omissions in this report.
We thank Ms. Neha Mathen, Ms. Aakanksha Saxena, Ms. Pritha Srikumar and Mr. Vikas
Mahendra for their valuable comments on an earlier draft of this report. We also thank Ms.
Varshini Prasad for assisting us in compiling the data set.
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EXECUTIVE SUMMARY
A force majeure claim must demonstrate: (i) An unforeseeable event not within the
contemplation of parties (ii) that has a material impact on the very purpose of the contract
and (iii) is within the scope of the contractual clause, if any. We have surveyed the Supreme
Court and 6 High Courts – Delhi, Bombay, Madras, Karnataka, Allahabad and Calcutta. Our
review of 690 cases lead us to assemble a data set of 177 cases. The details of these cases are
set out in the Appendixes to the present report.
Of the 177 cases, a force majeure claim was allowed in 68 cases – i.e. 38.4% of the cases we
surveyed. Accordingly, a force majeure claim was rejected in the remaining 109 cases – i.e.,
61.5% of the cases we surveyed.
The successful claims fell into 7 categories of force majeure events:
a) Orders by the Government (15 cases i.e. 21.12%),

b) Permission and Regulatory clearance (13 cases, i.e. 18.30%),
c) Change in Law (12 cases, i.e. 16.90%),
d) Court Order (7 cases, i.e. 9.85%),
e) Act of God (6 cases, i.e. 8.45%),
f) Foreign Events (2 cases, i.e. 2.81%) and;
g) the residuary category of Disturbances in Contract (16 cases, i.e. 22.53%).
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INTRODUCTION
In response to the COVID-19 pandemic, the Indian Government declared a national lockdown
which lasted roughly 69 days from 24 March 2020 till 31 May 2020. This was preceded by
State Governments issuing directions of their own and lockdown restrictions continue to be
in place in many parts of the country. This lockdown has had a deeply disruptive impact on
businesses and their contractual arrangements. Given this unprecedented position, it is an
opportune time to analyse core doctrinal issues in force majeure jurisprudence and the
manner in which courts have responded to force majeure claims.
A concluded contract may be rendered incapable of performance for a variety of reasons. The
incapability of performance raises a variety of important legal questions: Is the claim of
incapability acceptable to the counterparty? If not, does the claim meet the standards of force
majeure and/or frustration? Does the contract between the parties address the grounds of
incapability? Whether performance may be excused without the levy of damages?
Towards that end, this report attempts to draw attention to the core issues in making and
resisting a force majeure claim, key decisions of the Supreme Court that have settled the
parameters of force majeure, frustration and impossibility and important advancements
made by the High Courts. We also offer insights into allied issues in making a force majeure
claim that have bearing on the timing, forum and terms on which a force majeure claim may
be made.
This report thereafter proceeds to offer empirical insights of the Supreme Court as well as 6
high courts – Delhi, Bombay, Madras, Karnataka, Allahabad and Calcutta. In presenting this
information, we assemble a qualitative set of cases that have decided and applied the law on
force majeure, frustration, and impossibility. We offer insights into the number of successful
force majeure claims and common force majeure events.
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PART I – DOCTRINAL STANDARDS
A. Statutory Framework
The Indian Contract Act, 1872 treats force majeure claims into two broad heads, i.e. a
contingent contract under Section 32,1 and the doctrine of impossibility or frustration of
contract under Section 56.2 Combined, these sections govern the largest chunk of claims of
force majeure, frustration and impossibility.
1. Section 32 of the Indian Contract Act
Section 32 mandates that where a contract envisages the happening of an uncertain future
event, the contract cannot be enforced until the event actually happens. Where the event
does not occur, the contract is considered void and performance is excused. In context of a
force majeure clause providing for the contingency upon the happening of a force majeure
event, the Supreme Court interpreted the clause to be governed by Section 32 and not Section
56.3 In determining if a force majeure clause can be a contingent contract vis-à-vis the event,
the deciding factor is usually the change in the obligations of the parties contemplated by the
contract upon the occurrence of an event. If there is no such clause, or the event does not
come within the reach or scope of the clause, then Section 56 and the test of ‘impossibility’
would apply.
A force majeure clause is common in many commercial contracts and normally governs the
kinds of events that constitute a force majeure event, whether the party is obliged to give
notice of the alleged event and the impact of the force majeure event on the contract. Some
contracts merely excuse performance for the duration of the event (on the understanding
that performance will resume once the event ceases) while other clauses provide that the
1
Section 32. Enforcement of contracts contingent on an event happening. Contingent contracts to do or not to
do anything if an uncertain future event happens, cannot be enforced by law unless and until that event has
happened. If the event becomes impossible, such contracts become void.
2
Section 56. Agreement to do impossible act. An agreement to do an act impossible in itself is void. Contract to
do 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.
3
National Agricultural Co-Operative Marketing Federation of India v. Alimenta S.A. Civil Appeal 667 of 2012.
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contract will be rendered void if the force majeure event continues beyond a determinate
period of time. Force majeure clauses will naturally have to be interpreted keep in mind its
text, inter-relationship with other provisions of the contract, industry practice and overall
allocation of risk between the parties.
2. Section 56 of the Indian Contract Act
Section 56 directly addresses the issue of force majeure and impossibility. The section
operates if the contract does not have a force majeure clause accounting for the contingency
of an event rendering the contract impossible to perform. It clarifies that an agreement to do
an impossible act is void. Further, where after the conclusion of a contract, performance is
rendered either impossible or illegal, then such a contract is rendered void upon the
happening of such impossibility or illegality. The section requires that the event meet the
threshold of ‘impossibility’. Once the event is shown to have rendered the contract impossible
to perform, the contract stands frustrated / or declared void. Consequently, performance of
the contract is excused without the levy of damages.4
We clarify that this report does not distinguish the claims of force majeure and the claims of
frustration. The report focuses on the threshold for examining the events that qualify as
supervening events for the purposes of the force majeure clause rather than the consequence
of the event.
B. Core conceptual issues
Parties often claim that the performance of their contractual obligations has been rendered
impossible and/or illegal and therefore claim that they are excused from their bargain. As will
be seen hereafter, roughly one third of force majeure claims actually succeed. This is in part
due to the high threshold that courts have set and applied in deciding such claims. The
doctrinal threshold of force majeure, frustration and impossibility is constituted by the
following important considerations that parties should bear in mind.
4
Even where a party is successful in making a force majeure claim, it will not be absolved of any breaches it
committed prior to the said event. Accordingly, damages may sometimes also be levied where a breach precedes
a force majeure event.
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1. Unforeseeability of event
The foremost consideration that Courts examine when deciding a force majeure claim is
whether the event that has rendered performance impossible and/or illegal was
unforeseeable to the parties during their negotiations and execution of the contract. As a
corollary, events that could have been anticipated in the normal conduct of business and
trade – fluctuation in price and disturbances in the execution of a contract – are not
considered unforeseeable and are deemed to be within the contemplation of parties at the
time of contracting.5
The unforseeability of the event is partly adjudged by the unique nature of the event as well
as its consequence on the contract. In making this determination, Courts inquire into what
was within the reasonable commercial contemplation of parties at the time of contracting.
Foreign disturbances,6 change in the law,7 refusal of regulatory permission,8 injunction orders
by Courts9 and natural calamities10 have all been held to be unforeseeable events, thereby
allowing a force majeure claim.
The unforseeability of an event will also be determined by the scope of the relevant force
majeure clause, if any. The categories of events listed therein – can provide guidance as to
the nature of events the parties contemplated as providing a basis for force majeure.
2. Purpose of contract must be materially impacted
In addition to a force majeure event being unforeseeable, it must be of such a character that
it materially impacts the purpose of the contract and thereby excuses performance.11
In determining whether the purpose of the contract has been materially impacted, the Court
distils the contract into the essential obligations of the parties under the contract, analyses
whether the performance of these core obligations has been rendered impossible and
5
Alopi Prashad & Sons v. UOI AIR 1960 SC 588 (‘Alopi Parshad’).
6
Raj Kumar Hem Singh v. Union of India and Ors. 2013 SCCOnline Del 3049.
7
Boothalinga Agencies v. VTC Poriaswanmi AIR 1969 SC 110 (‘Boothalinga Agencies’); Malikarjunappa
Basvalingappa v. Siddalingappa (1973) 3 SCC 180.
8
Parsa Kente Collieries Ltd v. Rajasthan Rajya Vidyut (2019) 7 SCC 236; Food Corporation of India v. ITC Ltd
(2019) 7 SCC 236.
9
HPA International v. Bhagwan Das Fatehchand (2004) 6 SCC 537; V.R. Mohanakrishnan v. Chimanlal Desai
and Co. AIR 1960 Mad 452.
10
Shyam Kumari and Ors. v. Ejaz Ahmad Ansari AIR 1977 All 376.
11
Satyabrata Ghose v. Muneeram Bangur AIR 1954 SC 44 at para 23 (‘Satyabrata Ghose’).
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whether parties should be consequently excused from their performance. In making such a
determination, Courts are faced with a fact sensitive determination and are guided by the
purpose of the contract and the obligations that were assumed by the contracting parties.
Conceptually, it is important to clarify that where an unforeseeable event has occurred, but
has not materially impacted the purpose the contract, such an event would not constitute a
force majeure ground to avoid a contract. This is best highlighted by a close reading of the
decision of the Supreme Court in Satyabrata Ghose v. Muneeram Bangur & Co.12 In
Satyabrata Ghose, the army requisitioned certain lands that were part of a larger residential
development. The developer claimed that the requisition was unforeseeable and rendered
the performance of the contract impossible. The Supreme Court agreed that the requisition
of lands by the Army was unforeseeable but held that it did not materially impact the purpose
the contract. The Court held that the requisition order was limited in duration and other lands
were still available for development which were untouched and unaffected by the requisition.
On an appreciation of these factors, the Court rejected the force majeure claim. Satyabrata
Ghose is instructive, as it clarifies that a person making a force majeure claim must not only
successfully demonstrate that an unforeseeable event has occurred, but also that the said
event materially impacted the purpose of the contract.
Therefore where a party seeks to make a force majeure claim or resist one, it is important to
examine the underlying purpose of the contract and investigate whether this purpose has
actually been altered by the alleged force majeure event. It would be prudent that this
understanding of the purpose of the contract be reflected in the pleadings of the parties.
3. Impracticalities, hardship and commercial considerations
Parties often make a force majeure claim on the alleged ground that the performance of their
contract has been rendered impossible. In reality, many force majeure claims are in effect
claims of hardship and impracticality, masquerading as claims of impossibility. As noted,
events that merely hinder, inconvenience, or burden the performance of a contract, do not
always satisfy the legal test of impossibility, and therefore do not constitute a valid force
12
ibid.
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majeure claim. Needless to state, this is impacted by the text of the relevant force majeure
clause in the contract, if any.
Claims of force majeure are often rejected on the basis that they are merely impracticalities
include price fluctuation,13 disruptions in supply chain14 or disturbances to the normal
functioning of a business.15 Courts assume that parties accept a certain degree of risk when
contracting, and therefore normal disruptions in the performance of a contract rarely rise to
the level of a legitimate force majeure claim, so as to excuse performance.
4. Notice requirements
The general law of force majeure set out in Sections 56 and 32 of the Indian Contract Act,
does not impose an obligation on a party to notify the counter party as soon as a force
majeure event occurs. However, many force majeure clauses in commercial contracts impose
clear and timebound obligations to notify counter parties, either when the force majeure
event arises or when performance has been rendered impossible as a result of such an event.
Courts have rejected a force majeure claim on the basis that the party did not notify the
counter party in a prompt manner when the force majeure event first arose.16 In these
instances, Courts have held that notice of the force majeure event was not given in a
timebound manner or where it was given, it did not detail the nature of the event and how it
impacted performance of contractual obligations.
Implicit in this judicial reasoning is the idea that the genuineness of a force majeure claim can
be tested by how promptly a counterparty is informed about a disruption that materially
impacts the performance of a contract. If a party provides notice contemporaneously with
the event and details the exact manner in which performance has been impacted, it is more
likely that a subsequent force majeure claim is genuine. On the other hand, where a party
does not give notice while a force majeure event is underway, and only notifies a counterparty
much later, there is a threat that a subsequent force majeure claim is disingenuous and is
being made with an attempt to escape contractual liability.
13
Alopi Parshad supra note 5.
14
Energy Watchdog v. CERC (2017) 14 SCC 80 (‘Energy Watchdog’).
15
Markfed Vanaspati & Allied Industries v. UOI (2007) 7 SCC 679.
16
Housing Development and Infra Ltd v. Mumbai Airport Intl Ltd 2013 SCCOnline Bom 1513; Babasaheb v.
Vithal 2009 SCCOnline Bom 1378; BWL Ltd v. Mahanagar Telephone Nigam Ltd 2007 SCCOnline Del 1199.
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The consideration of notice is further complicated by a recent judgement of the Delhi High
Court in MEP Infrastructure Developers Ltd. v. South Delhi Municipal Corporation.17 Here, the
contract with the Municipal Corporation had detailed notice obligations for invoking the force
majeure clause. The Court held that such notice in compliance with the clause was not strictly
necessary, in view of Ministry of Road Transport Notification that identified COVID-19 as a
force majeure event. The observations in in MEP Infrastructure are likely to have limited reach
and may only be applicable in government contracts where the relevant government entity
has already notified COVID-19 as a force majeure event.
One of the first steps that parties must take in preferring a force majeure claim is to examine
whether the contractual clause imposes a notice obligation. It would be prudent for a party
to be in compliance with this notice obligation prior to making a formal force majeure claim.
C. Allied issues in a force majeure claim
In addition to the core conceptual issues discussed previously, parties may also consider the
following allied issues concerning the forum before which a force majeure claim is made, the
form of the claim and the conditions under which a claim may be made.
1. Forum
Ordinarily, a force majeure claim is made before a fact finder tasked with resolving the
contractual disputes. Normally a force majeure claim is made before a Court or an Arbitral
Tribunal before whom contractual claims are bought. However, based on circumstances,
parties often make a force majeure claim in a variety of judicial fora.
Our review of applicable precedent reveals that force majeure claim has been made in writ
proceedings before the High Court18 and Supreme Court as well in execution proceedings of
both judgements and arbitral awards to resist enforcement.19 In these instances, the judicial
forum will ordinarily reject the force majeure claim on the basis that it cannot determine the
17
MEP Infrastructure Developers Ltd. v. South Delhi Municipal Corporation W.P. (C) 2241/2020 order dated 12
June 2020
18
Peerless Drive Ltd. v. Union of India (1994) ILR 2 Cal 385.
19
COSID v. Steel Authority of India Ltd. AIR 1986 Del 8 (‘COSID’); GEA EGI Contracting Co Ltd. v. BHEL 2016
SCCOnline Del 5209; H.E.C. Daruwala and Ors. v. Capital Finance of India Pvt. Ltd. and Ors. (Civil Revision No.
481 of 2008).
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issue without adequate evidence. In some instances, Courts will consider a force majeure
claim without a trial, based on the summary material before it.20
In one case, the counter party resisting a force majeure claim objected to the other party even
filing a claim under the dispute resolution clause and sought injunctive relief in respect of
such proceedings.21 The Court rightly held that even if a force majeure claim were to
ultimately fail, a party is nonetheless entitled under law to prefer such a claim.
2. Burden of Proof
Where a party claims that its performance was rendered impossible or illegal, the burden of
proving such a fact rests on it alone. Importantly, it is not sufficient for a party to merely prove
that an unforeseen act occurred. It must necessarily demonstrate how the unforeseen or
disruptive act actually impacted its performance and materially impacted the purpose of the
contract. Courts have clarified that the mere invocation of a disruptive event – earthquake or
civil unrest, in and of itself, is not sufficient to prove a force majeure claim. Parties must
demonstrate, by a preponderance of probabilities, how the event impacted the contract in
question and resulted in a performance that was either impossible or illegal.22 Accordingly,
the pleadings of parties must be sufficiently specific as to the nature of the force majeure
events, the manner in which it has impacted performance of the contract and proof in support
of such pleading. In the absence of meeting this threshold, a party does not discharge its
burden, and its claim of force majeure is likely to fail.
3. Bank Guarantee and Letter of Credit
It is common practice for commercial contracts to require parties to furnish a bank guarantee
or open a letter of credit to either secure their own performance or guarantee the payment
for goods and services under the contract. The Supreme Court has repeatedly clarified the
nature of a bank guarantee and the limited instances where Courts may interfere and injunct
the invocation or release of amounts due thereunder.23
20
Rashmi Cements Limited v. World Metals and Alloys (FZC) O.M.P. (I) (Comm.) 117 of 2020 order dated 18
June 2020 (‘Rashmi Cements’).
21
KEB v. Bharath Conductors ILR 1997 KAR 2687.
22
National Hydroelectric Power Co v. General Electric Co Ltd 2013 SCCOnline Del 1646.
23
Himadri Chemicals Industries Limited V. Coal Tar Refining Co. AIR 2007 SC 2798.
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Parties often seek an injunction against the release of amounts under a bank guarantee on
force majeure grounds, i.e. performance has been rendered either impossible and/or illegal.
Accordingly, in view of the material impact on the underlying contract, a party may argue that
the bank guarantee should similarly stand vacated. Usually, Courts reject this plea by holding
that a bank guarantee is an independent contract and can only be interfered with on the
limited grounds of fraud or special equities.24 However, in a few instances, Court have
interfered with a bank guarantee on force majeure grounds relating to the underlying
contract.25 Conceptually, it appears that in these instances, Courts subsume the force majeure
grounds within a special equities framework.
An interesting interaction between force majeure claims and a bank guarantee is captured in
Gokaldas Images Pvt. Ltd. v. Union of India.26 The Petitioner approached the High Court
relating to its export business and force majeure disruptions that prevented it from utilizing
its export quota. The Single Judge held that the statutory authority had not accurately
assessed the force majeure claim and directed that the claim be assessed once again.
However, the Court did not offer any protection against the invocation of the bank guarantee
pending the force majeure claim determination. In appeal, the Court held that if the bank
guarantee were allowed to be invoked, it would undermine the efficacy of preferring a force
majeure claim. Accordingly, in order to allow the party to prefer its force majeure claim under
optimal conditions, it injuncted the invocation of the bank guarantee till a final decision was
taken by the Authority. In Gokaldas Images, the Court is not determining whether force
majeure reasons supply a ground for the injunction of a bank guarantee. Instead, it is of the
opinion that if the bank guarantee were to be encashed, the party would be prevented from
preferring its force majeure claim.
4. Interpretation of Force Majeure Clauses
Force majeure clauses can substantially impact the manner in which stakeholders to the
contract view / react to a possible force majeure event. Force majeure clauses act in defining
what the contract considers to be a force majeure event, the impact that the event should
24
GSPL India Gasnet Ltd v. Petroleum & Natural Gas Board 2016 SCCOnline Del 1520.
25
Surya International Pvt. Ltd. v. Union of India and Ors. 2014(4) ALJ 402; Bhushan International Co Pvt. Ltd.
v. Cimmco International and Ors 1981 SCCOnline Del 109.
26
Gokaldas Images Pvt. Ltd. v. Union of India (WA 5673/2011).
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have on the performance / ability to perform the contract by a party and the benefits given
to a party affected by the force majeure event.
A starting point in interpreting a force majeure clause is that these clauses are narrowly and
strictly interpreted.27 In interpreting a contractual clause which typically identifies sample
events and incorporates open textured language, Courts usually adopt the principle of
‘ejusdem generis’, to determine whether an unenumerated event (much like COVID-19) is
akin to the enumerated force majeure categories, thereby triggering the clause.28 In
Dhanrajamal Gobindram v. Shamji Kalidas,29 the Supreme Court was called upon to interpret
a clause that contained the following stipulation: “subject to the usual Force Majeure Clause”.
With no further explanation given, and a claim for frustration being made by a party, the Court
interpreted the clause by having regard to the usual commercial practices in the industry in
which the contracting parties were operating.
Force majeure clauses also usually set different standards of impact on performance / ability
to perform the contract vis-à-vis the event. Once the impact of the event is deemed sufficient
per the standards set by the contract, the benefits of the contract are then made available to
the party invoking the clause. Common standards that can be found in force majeure clauses
are: (i) where the event is simpliciter ‘beyond the control’ of a party; (ii) a party is ‘prevented’
from performing the contract; (iii) a party is ‘hindered’ from performing the contract; (iv)
performance of the contract is ‘disrupted’; or (v) if the event makes the performance
‘impossible’.
Parties may assume that the threshold set by their contract exclusively govern the parameters
of a force majeure event, and on this basis assess whether a claim of non-performance may
be made. At first blush, it appears that words such as ‘hinder’, ‘disrupted’ and ‘prevented’ are
easier to meet, when compared to the more onerous standards under Section 56. The
Supreme Court in Energy Watchdog v. Central Electricity Regulatory Commission and Ors.30
had an opportunity to address this very issue. The Court interpreted the terms “prevented or
hindered” as meaning ‘wholly’ prevented or ‘partially’ hindered. In adopting such an
27
Energy Watchdog supra note 14; Halliburton Offshore Services Inc. v. Vedanta Limited and ors O.M.P (I)
(COMM.) No. 88/2020 (‘Halliburton Offshore Services’).
28
Interore Fertichem Resources SA v. MMTC of India Ltd., 2007 SCC OnLine Del 1400.
29
Dhanrajamal Gobindram v. Shamji Kalidas AIR 1961 SC 1285.
30
Energy Watchdog supra note 14 at para 45.
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interpretation, the Court is clarifying that even where parties use phrases that could
potentially lower the threshold of a force majeure, the Court would nonetheless interpret
these phrases consistent with the higher threshold of Section 56.
Most litigation in cases of force majeure revolve around the ability of a party to prove that a
disruptive event qualifies as a force majeure event per the terms of the contract. It is only
upon proving this that the party can then claim entitlement to the benefit that the clause
confers. Force majeure clauses usually permit parties to either suspend any payment
obligations under the contract, terminate the contract without any damages for the losses
incurred as a result of the force majeure event, or even simpliciter suspend the performance
of the contract for a set period of time. These benefits can be varied and it would be prudent
to parties to actively discuss the benefits keeping in mind the nature of their respective
businesses and the commercial risks involved in the transaction.
D. Key decisions of the Supreme Court
In compiling this report, our starting point were the cases decided by the Supreme Court. We
observed that the following cases were the leading precedents, most often cited by the
Supreme Court and High Courts when deciding cases involving force majeure events.
The Supreme Court’s decision in Satyabrata Ghosh31 is the most historic decision in this
subject as it not only explained the ambit of Section 56 of the Indian Contract Act, 1872 but
also differentiated between the English doctrine of frustration and the Indian law on the
subject. Here, a developer undertook to develop a large tract of land for residential purposes.
The developer divided the land into various plots and sold them to prospective homeowners.
Between 1941 to 1943, the Army requisitioned substantial portions of the land within the
development scheme. The developer informed the purchaser of this and offered to treat the
transaction as cancelled. In the alternative, the developer requested that the purchaser make
full payment for the land and take conveyance immediately upon the developer undertaking
to complete the works when the land was returned by the Army and circumstances permit
such development. The developer then indicated that if neither option was exercised, the
developer would treat the contract as cancelled and any earnest money paid would be
forfeited. The Appellant was not interested in either of the two options and subsequently
31
Satyabrata Ghosh supra note 11.
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filed a suit for performance against the developer. The Supreme Court, at the outset, agreed
that the order by the Government was unforeseeable, but refused to accept that it materially
affected the contract. The Court held that the requisition order was limited in duration and
that other lands were still available for development which were untouched and unaffected
by the requisition. The Court also observed that mere hardship in performance could not be
a ground for holding that the fundamental basis of the contract was affected. The Court also
noted that the “impossibility” in Section 56 would mean ‘impracticability’ and not just literal
physical ‘impossibility’.
Pertinently, the counsel for the Respondent had argued that even if the performance of the
contract was not frustrated, it had become illegal because of the requisition order, as a
violation of the order was a criminal offence. Interestingly, the Supreme Court held that
merely because the temporary prohibition was enforced with penal consequences, the
performance of the contract would not become illegal. This observation of the Supreme Court
may be particularly useful in context of the lockdowns and temporary restrictions imposed by
the Governments as a result of COVID-19.
In Alopi Parshad and Sons Ltd. v. Union of India,32 there was a substantial increase in the price
of ghee due to a war, and the agents, after multiple rounds of renegotiation, claimed
frustration of the contract. The Supreme Court rejected this argument and held that a
contract does not stand frustrated “merely because the circumstances in which the contract
was made, are altered.” A relevant factor here was that the contract was modified after the
war had begun, and parties were presumed to be fully aware of the change in circumstances
when the modification was made. The court noted that a contract cannot be said to be
frustrated merely because it became more onerous to perform. The Alopi Parshad decision
refocuses the interpretation of ‘impossibility’ and ‘impracticability’ to the object of the
contract.
In Boothalinga Agencies v. V.T.C. Poriaswami Nadar,33 the contract was for sale and delivery
of chicory. The import of chicory was lawful at the time the contract was entered into, albeit
for limited use. The seller, who held the license to import, agreed to sell the chicory for a use
32
Alopi Parshad supra note 5.
33
Boothalinga Agencies supra note 7.
Page | 16
beyond the ambit of the license. By the time the chicory arrived in port, sale of chicory was
banned by the Government vide an amendment to the Imports and Exports (Control) Act,
1947. The contract itself was entered into when the import was permitted by law. However,
the law changed by the time the chicory arrived at port. The seller claimed that the contract
stood frustrated. The court held that the contract to sell the chicory was valid as the breach
of the terms of the license was not the same as the breach of a statute. It also held that the
seller could not perform the contract due to the absolute ban due to the change in the law,
and therefore the contract stood frustrated. An important takeaway from this case is the
observation on the inapplicability of Section 56 on a ‘self-induced’ frustration of contract.
The Supreme Court, in the recent decision of Energy Watchdog34 extensively looked at the
doctrine of force majeure as has developed through the decisions of the Supreme Court since
Satyabrata Ghosh. The agreement in question was an energy supply agreement requiring a
private party to procure coal as a raw material for the generation of power. The private party
had decided to procure coal from Indonesia, despite there being no contractual stipulation to
that effect. The case, inter alia, involved a claim of frustration on ground that the there was
a change in law in Indonesia because of which the party claimed that it could no longer source
the required coal for performing the contract. The Court rejected the frustration claim by
observing that the contract did not specify that the coal ought to be sourced only from
Indonesia and only at a particular price. Therefore, the Court held that the contract had
merely become more onerous to perform and was not frustrated.
These Supreme Court decisions set out the broad parameters of force majeure and evidence
a high threshold in making a successful force majeure claim.
E. Key decisions of High Courts
For the purpose of this report we surveyed judgments from 6 High Courts – Delhi, Bombay,
Karnataka, Madras, Allahabad and Calcutta. In our review, we noted a few cases that provided
guidance as to how to apply the law laid down by the Supreme Court and helped further our
understanding of force majeure.
34
Energy Watchdog supra note 14.
Page | 17
The Madras High Court decision of V. L. Narasu v. P.S.V Iyer35 is one of the earliest decisions
on the doctrine of frustration and the interpretation of Section 56. In this case, a movie
producer had entered into an agreement with the owner of theatre to display a movie for a
prescribed duration. During the currency of the contract, a wall of the theatre collapsed due
to heavy rains. Thereafter, the police directed that the theatre suspend all shows until further
orders. The theatre owner was then directed to reconstruct the entire structure. As a result
of this, the theatre owner wrote to the producer and claimed impossibility in the performance
of the contract. Disputes arose and a suit was filed. The Court held “there will be implied in
the contracts a condition that they will cease to be operative if the basis on which they rest
disappears or becomes fundamentally altered” and therefore held that the terms of the
contract could not be enforced when there was an impossibility. The Court also held that the
new theatre that was later built was different from the original theatre and therefore
continued performance could not be sought for. This case is important as the Court not only
looks into the basis of the doctrine of frustration in the contract, but makes a holistic
consideration of factors such as allied obligations, the industry practice, and the ability to
perform the contract after the event has passed.
In Rajamalliah v. State of Karnataka,36 the Karnataka High Court had to decide whether
owners of liquor shops would be entitled to pro-rata reduction of shop rents for the days on
which their shops were closed due to closure orders passed by the local administration. The
local administration had passed closure orders on various grounds, some of which included
law and order issues. The liquor shops complied with these orders and suspended their
operations on these days. Subsequently, they claimed a proportionate reduction in the rent
they had to pay on account of such closure orders – as such orders were unforeseeable and
a force majeure claim. The High Court rejected this claim by reasoning that closure of liquor
shops was foreseeable since it was specifically recognized under the Excise Act – the
enactment under which the lease was executed.
In Katras Jherriah Coal Co Ltd. v. Mercantil Bank,37 the Calcutta High Court had to determine
the effect of a force majeure event on a loan agreement with a bank. Here, by an Act of
Parliament, certain Coal Mines were nationalized which materially impacted the rights of the
35
V. L. Narasu v. P.S.V Iyer AIR 1953 Mad 300.
36
Rajamalliah v. State of Karnataka 1985 ILR KAR1802.
37
Katras Jherriah Coal Co Ltd. v. Mercantil Bank AIR 1981 Cal 418.
Page | 18
petitioner to exploit the said mines. The Petitioner therefore claimed that it was entitled to
be relieved of its obligation to pay interest to its bankers, in view of the force majeure event.
The Court dismissed this plea and held that interest amounts that were due and payable
before the force majeure event occurred would still be repayable and the happening of an
unforeseen event could not completely absolve a party from its obligation to repay amounts
under a loan agreement.
In COSID Inc v. SAIL,38 the Delhi High Court was deciding whether a foreign arbitral award
ought to be enforced in India. The contract was governed under Indian Law. The arbitral
tribunal rejected SAIL’s plea of force majeure and awarded damages against it. The foreign
party sought enforcement of the award in India against SAIL. The Delhi High Court, upon a
review of the reasoning of the tribunal noted that its appreciation of SAIL’s force majeure
claim was incorrect and enforcing the award against it would violate the public policy of India.
The Delhi High Court accordingly refused enforcement.
In Sheetla Prasad Sharma v. State of UP and Ors.,39 the Allahabad High Court examined a claim
of frustration of a contract for development of land, on the basis that the development license
had expired. While rejecting the arguments on frustration under Section 56, the court held
that pleadings such as change in circumstances and financial instability have to be specific and
cannot be vague. Importantly, the court noted that vague pleadings cannot suffice for a court
to render the terms of a contract void under Section 56.
In Jai Prakash Singh v. State of U.P. and Ors.,40 the issue before the Allahabad High Court was
whether a subsisting lease between the Government and a private contractor could be
cancelled on account of a policy decision by the Government. In this case, the Government
entered into a lease deed permitting the contractor to collect toll over a bridge, in accordance
with the Northern Indian Ferries Act, 1878. The Government ordered that the toll not be
collected in the interest of the public. The contractor contested this order and argued that
there was no cancellation in accordance with the terms of the Northern Ferries Act, 1878, and
therefore the Government order would hold not force. The Court observed that the policy
decision was based on a valid notification issued by the Government and was therefore a
38
COSID supra note 19.
39
Sheetla Prasad Sharma v. State of UP and Ors. 2009 4 AWC 4181 All.
40
Jai Prakash Singh v. State of U.P. and Ors. 2017(5) ALJ 704.
Page | 19
force majeure event. The court held that the public interest by way of a legitimate public
policy decision would surmount any private interest. Therefore, the court noted that the
decision would be a force majeure event and that the contract stood cancelled.
The case of Punj Sons Pvt. Ltd. v. Union of India and Ors.,41 decided by the Delhi High Court is
a classic case of frustration of contract as a result of government actions. In this case, the
Petitioner was successful in securing a contract from the Government of India for the supply
of milk containers. To manufacture these containers, the petitioner required tin ingots. As tin
ingots was a canalised item, the petitioner applied to the relevant government departments
to grant permission to purchase these tin ingots. The decision on the permission to purchase
tin ingots was substantially delayed and was ultimately not granted by the relevant
Government authority. The contract was cancelled by the Respondent and arbitration was
initiated by the Respondent for losses on alleged risks taken by the respondent in awarding
the tender. The Respondent had argued that the tender does not require the Respondent to
take any action to ensure that the tin ingots were supplied to the Petitioner. The Court
rejected the contentions of the Respondent and held that the contract was frustrated under
Section 56. The Court noted that the parties knew at the time of entering into the contract
that tin ingots would be a necessary raw material, and that tin ingots was a canalised item.
Therefore, the court implied that it was the Respondent’s obligation to ensure that tin ingots
were supplied and the failure of the Respondent meant that the contract stood frustrated.
In Sharda Mahajan v. Maple Leaf Trading International (P) Ltd.,42 the facts pertained to a
winding up petition filed by an investor into the Respondent company. The Court observed
that the contract with the Petitioner stood frustrated on grounds of supervening events that
rendered the purpose of the contract impossible to perform. Interestingly, the supervening
events considered by the Court in this case are the freezing of bank accounts by the
Enforcement Directorate. The court held that as the Respondent did not have any control
over the freezing of the bank accounts and the injunction, the matter was squarely under
Section 56.
41
Punj Sons Pvt. Ltd. v. Union of India and Ors. AIR 1986 Del 158.
42
Sharda Mahajan v. Maple Leaf Trading International (P) Ltd. 2007 SCCOnline Del 496.
Page | 20
In Easun Engineering Co. Ltd. v. The Fertilisers and Chemicals Travancore Ltd. and Ors. 43 the
Madras High Court takes a different interpretation to the increase in price vis-à-vis force
majeure events. In this case, the raw material prices increased by 400% on account of an
unexpected war and the Madras High Court held this to have frustrated the contract. The
court held that this increase placed the performance of the contract as a “fundamentally
different situation” and that the termination on grounds of ‘impossibility’ under Section 56
was justified.
PART II – Empirical Analysis

The purpose of this report is to assemble a qualitative compilation of cases that have decided
force majeure claims. Before we present our findings, we offer the following methodological
explanation and disclaimer as to the nature of the report, the process adopted in assembling
these cases and the lessons we may glean from this data.
First, we have surveyed the Supreme Court and 6 High Courts – Delhi, Bombay, Madras,
Karnataka, Allahabad and Calcutta. We only surveyed cases from 1950 onwards and did not
include Privy Council and High Court cases prior to 1950. The inclusion of these High Courts is
only to ensure geographical diversity of the High Courts and is not a comment on the High
Courts we were unable to survey for the purpose of this report. We accordingly acknowledge
that the trends uncovered from the empirical data in this report is a preliminary step towards
a wholistic and comprehensive empirical analysis of response of the Indian Courts to force
majeure.
Second, we were interested in assembling a collection of cases that qualitatively discussed

and applied the law on force majeure in a contractual capacity. We also looked at cases which
interpreted the doctrine of frustration in context of specific facts of each case. With this goal
in mind, we excluded many cases which merely recorded contentions of parties and did not
record a finding on the force majeure claim. We also excluded cases that summarily rejected
or upheld a force majeure claim without discussion or analysis. We did not include cases
where appellate courts refused to interfere with the decision of the trial court or the
arbitrator (based on the applicable standard of review for such decisions). Similarly, we did
not include decisions where the actual determination of force majeure was left to the
43
Easun Engineering Co. Ltd. v. The Fertilisers and Chemicals Travancore Ltd. and Ors. AIR 1991 Mad 158.
Page | 21
competent fact finder. We found that these cases did not offer any meaningful guidance as
to how force majeure is applied and therefore excluded them from the purview of our study.
Since we were concerned with cases that discussed force majeure in a contractual capacity,
we excluded cases where a force majeure plea was taken by an assesse against a tax or
revenue authority.
Third, in assembling these cases we relied on research databases such as Manupatra and SCC
Online since it was not feasible to rely on the individual websites of the Supreme Court and
concerned High Courts. We examined a total of 690 before choosing the 177 cases as the data
set for this report. Of the total 690 cases, we examined 45 from the Supreme Court, 412 cases
from the Delhi High Court, 63 cases from the Bombay High Court, 71 cases from the Madras
High Court, 20 cases from the Karnataka High Court, 49 cases from the Allahabad High Court
and 30 cases from the Calcutta High Court.
As we have noted, the data that we present here is only a preliminary picture of how seven
Indian courts have responded to force majeure claims. As will be seen, these courts do not
allow or deny a force majeure claim in a uniform manner or in an exact proportion.
Accordingly, in some courts, a higher number of force majeure claims are allowed as
compared to others. We would caution against reading this difference in the data as implying
that certain courts are pro force majeure claims and certain courts anti-force majeure claims.
The difference in this treatment may be attributed to a whole range of factual differences in
the individual claims brought.
A. Overview of Cases
Our review of the Supreme Court and 6 High Courts lead us to assemble a data set of 177
cases. The details of these cases are set out in the Appendixes to the present report and will
be of value to those examining the law of force majeure in the wake of COVID-19. The 177
cases we assembled was split amongst the Supreme Court and 6 High Courts in the following
manner: Supreme Court (27 cases), Delhi High Court (43 cases), Bombay High Court (20 cases),
Madras High Court (31 cases), Karnataka High Court (9 cases), Allahabad High Court (27 cases)
and Calcutta High Court (20 cases).
Page | 22
Of the 177 cases, a force majeure claim was allowed in 68 cases – i.e. 38.4% of the cases we
surveyed. Accordingly, a force majeure claim was rejected in the remaining 109 cases – i.e.,
61.5% of the cases we surveyed.
To offer further guidance as to the conditions under which a force majeure claim is accepted,
we studied the 68 cases in which such a claim was allowed. From a reading of these cases, we
noticed familiar patterns emerge which assisted parties in making a successful force majeure
claim. For the purpose of our report, we categorized the successful force majeure events into
the following broad categories: Act of God, Change in Law, Court Orders, Order by
Government, Permission and Regulatory Clearance, Contractual Disturbances and Foreign
Events. The categorization of ‘Contractual Disturbances’ is intended to be a functional
category and encompasses a whole range of factual issues – labour disturbances, breakdown
in machinery etc. In some instances, a case contains multiple force majeure events and is
therefore counted under multiple categories.
Of the 7 categories, Orders by the Government was the single most recurring feature of a
successful force majeure claim. Of the cases that allowed force majeure, 15 cases (i.e. 21.12%)
arose in the context of Government Orders. In these cases, the Government or
instrumentalities of the State passed certain orders – such as requisition of certain materials,
embargo on the trading of certain materials, nationalization of resources or entities etc, which
had a material impact on the very purpose of the contract.
The break-up of the other force majeure categories are as follows: Permission and Regulatory
clearance (13 cases, i.e. 18.30%%), Change in Law (12 cases, i.e. 16.90%), Court Order (7 cases,
i.e. 9.85%), Act of God (6 cases, i.e. 8.45%), Foreign Events (2 cases, i.e. 2.81%) and the
residuary category of Disturbances in Contract (16 cases, i.e. 22.53%).
A visual representation of the overview of these cases is set out in Appendix A.
B. Supreme Court
Our report contains 27 cases decided by the Supreme Court. The details of these cases are set
out in Appendix B to this report. Of the 27 cases reviewed, 11 allowed a force majeure claim
(i.e. 40.74%) and 16 cases rejected the force majeure claim (i.e. 59.25%).
Of the cases that allowed the force majeure claim, the break-up of the relevant force majeure
events is as follows: Change in Law (5 cases, i.e. 41.66%), Disturbances in Contract (2 cases,
i.e. 16.66%), Court Orders (2 cases, i.e. 16.66%), Government Orders (1 case, i.e. 8.33%),
Permission and Regulatory Clearance (2 cases, i.e. 16.66%).
C. Delhi High Court
Our report contains 43 cases decided by the Delhi High Court. The details of these cases are
set out in Appendix C to this report. Of the 43 cases reviewed, 22 allowed a force majeure
claim (i.e. 51.16%) and 21 cases rejected a force majeure claim (i.e. 48.83%).
Of the cases that allowed a force majeure claim, the break-up of the relevant force majeure
events is as follows: Orders by the Government (7 Cases, i.e. 31.81%), Permission and
Regulatory Clearance (5 cases, i.e. 22.72%), Disturbances in Contract (4 cases, i.e. 18.18%),
Act of God (3 cases, i.e. 13.63%), Foreign Events (2 cases, i.e. 9.09%) and Change in Law (1
case, i.e. 4.54%).
D. Bombay High Court
Our report contains 20 cases decided by the Bombay High Court. The details of these cases
are set out in Appendix D to this report. Of the 20 cases reviewed, 4 allowed a force majeure
claim (i.e. 20%) and 16 cases rejected a force majeure claim (i.e. 80%).
events is as follows: Permission and Regulatory Clearance (2 cases, i.e. 50%), Act of God (1
case, 25%) and Change in Law (1 case, i.e. 25%).
E. Madras High Court
Our report contains 31 cases decided by the Madras High Court. The details of these cases
are set out in Appendix E to this report. Of the 31 cases reviewed, 11 allowed a force majeure
events is as follows: Orders by the Government (2 Cases, i.e. 15.38%), Permission and
Regulatory Clearance (1 case, i.e. 7.69%), Disturbances in Contract (4 cases, i.e. 30.76%), Court
Order (4 cases, i.e. 30.76%), Act of God (1 case, i.e. 7.69%), and Change in Law (1 case, i.e.
7.69%).
F. Karnataka High Court
Our report contains 9 cases decided by the Karnataka High Court. The details of these cases
are set out in Appendix F to this report. Of the 9 cases reviewed, 5 allowed a force majeure
events is as follows: Change in Law (2 cases, i.e. 40%), Permission and Regulatory Clearance
(1 case, i.e. 20%) and Disturbances in Contract (2 cases, i.e. 40%).
G. Allahabad High Court
Our report contains 27 cases decided by the Allahabad High Court. The details of these cases
are set out in Appendix G to this report. Of the 27 cases reviewed, 10 allowed a force majeure
events is as follows: Orders by the Government (5 Cases, i.e. 50%), Disturbances in Contract
(2 cases, i.e. 20%), Court Order (1 case, i.e. 10%), Act of God (1 case, i.e. 10%) and Change in
Law (1 case, i.e. 10%).
H. Calcutta High Court
Our report contains 20 cases decided by the Calcutta High Court. The details of these cases
are set out in Appendix H to this report. Of the 20 cases reviewed, 5 allowed a force majeure
events is as follows: Permission and Regulatory Clearance (2 cases, i.e. 40%), Disturbances in
Contract (2 cases, i.e. 40%) and Change in Law (1 case, 20%).
CONCLUSION
A survey of the case law has made it clear that a making a force majeure claim is not always
successful. In order for a party to be relieved from the performance of its bargain, without
the levy of damages it must successfully meet a range of considerations. First, the event must
be unforeseeable to the parties and not within their reasonable contemplation at the time of
contracting. Second, the event must have a material impact on the very purpose of the
contract. Third, if the written contract has a force majeure clause, the said stipulation will
have to be examined to determine whether the event in question qualifies as a force majeure
event and if so, what impact it has on the contract. Even if these considerations are met, the
party making a force majeure claim may be required to give timely notice of the event and its
impact on its performance and will have to discharge the requisite burden of proof placed
upon it.
In the wake of the COVID-19 pandemic, we explore a range of possible speculations on the
future development of the law on force majeure.
Given the duration of India’s lockdown measures, many ‘non-essential businesses’ were
forced to close for a long period of time. Even as the economy opens up and works to
rebalance itself, a disruptive effect on business and trade is likely to be felt for some time. In
this context, there is an intuition that the frequency of force majeure claims are likely to
increase as business will eagerly look to renegotiate their contracts and/or seek to be relieved
from their previously concluded contracts. The early cases filed in response to the COVID-19
lockdown support this theory that more businesses will seek to make force majeure claims, if
not already made.44 On the other hand, Government and Regulatory bodies in recognition of
the disruptive nature of COVID-19 have already extended extension in performance timelines,
alleviating the need for private parties to raise a dispute and make a formal force majeure
claim. In view of these steps by the government (aimed at arresting the economic impact of
COVID-19), private parties may not actually need to escalate their force majeure claims in
formal dispute resolution proceedings. On balance, we feel that the frequency of force
majeure claims are likely to increase and Courts will have to deal with these issues more
frequently.
44
Halliburton Offshore Services supra note 27.
Page | 26
As mentioned, the Government and Regulatory Bodies have recognized COVID-19 as a force
majeure event and have accorded relaxations in the relevant contracts in questions.45 These
notifications only apply to government contracts. An open question in this context is whether
private parties may rely on these government circulars for private contracts that do not
involve government entities. Parties have begun to rely on these generic notifications with
the hope that these circulars will help remedy a deficient force majeure clause or assist in
bolstering a force majeure claim. We believe that such reliance on government circulars in a
purely private contract is likely to have modest results. The case law surveyed in our report
has established that it is not sufficient to merely invoke a generic force majeure event.
Instead, parties must show how the event actually had a materially impact on the
performance of their obligations under the contract in question. Similarly, private parties
cannot merely rely on government circulars (which recognize COVID-19 as a force majeure
event) without actually demonstrating how the event had a material impact on the very
purpose of the contract. In the absence of this showing, parties cannot merely rely on these
government circulars (which are to be read in a limited context and having a specific economic
objective) in the hope that they will assist with all force majeure claims.46
We have also seen parties argue that the government orders prohibiting certain specific
commercial activities, under threat of penal consequences, during the lockdown rendered the
object of the agreement void. This argument is most frequently witnessed in the context of
lease deeds and leave and licence agreements. However, this argument would be likely be
rejected by the Courts based on the analysis in Satyabrata Ghosh, wherein the Supreme Court
held that merely because the Government imposes a prohibition backed by penal
45
See illustratively: Office Memorandum No. F.18/4/2020-PPD dated 19 February 2020 by the Government of
India, Ministry of Finance, Department of Expenditure, Procurement Policy Division; Office Memorandum No.
F.18/4/2020-PPD dated 13 May 2020 by the Government of India, Ministry of Finance, Department of
Expenditure, Procurement Policy Division; Communication No. D.O. No. M-11011/08/2020-Media dated 20
March 2020 issued by the Ministry of Labour & Employment, Government of India; Hindustan Times article
“Debts related to Covid-19 to be excluded from default under IBC: FM Sitharaman” available at
https://www.hindustantimes.com/business-news/debts-related-to-covid-19-to-be-excluded-from-default-
under-ibc-fm-sitharaman/story-RNfGUStkMD6AGExGwqEYUI.html (last accessed on 15 June 2020); Bloomberg
Quint article “COVID-19 Economic Package: Real Estate Projects under RERA to get Six-Month Extension”
available at: https://www.bloombergquint.com/coronavirus-outbreak/covid-19-economic-package-real-estate-
projects-under-rera-to-get-six-month-extension (last accessed on 15 June 2020).
46
Rashmi Cements supra note 20.
Page | 27
consequences for a temporary period, does not imply that the object of the underlying
contract between private parties becomes illegal.47
Another important consideration is the commercial impact of the lockdown. As a result of the
nationwide lockdown there had been drastic impact on the movement and access to material,
machinery and labour. As a result of this unprecedented disruption, the commercial
projections of many contracts will have to be re-evaluated. Traditionally, mere increase in
price due to market disturbances has not been an adequate ground for a successful force
majeure ground. However, given the nature of this disruption and the drastic impact on the
commercials of contracts, it is open to speculation as to whether Court’s will be more
receptive to change in price (as a result of the lockdown) as a basis for force majeure claim.
The biggest speculation regarding COVID-19 and the law of force majeure is the impact that
the pandemic will have on the success rate of force majeure claims. Our report revealed that
only 38.4% of the cases we reviewed were successful in their force majeure claim. In the wake
of COVID-19, is this number likely to increase? Are courts likely to lower the threshold limits
of making force majeure claims resulting in more successful claims? Will Courts modify the
manner in which they apply the law of force majeure to be more accommodative of these
claims? Our view is that COVID-19 is likely to assist parties in securing interim relief based on
equitable principles. However, considerations at the stage of granting interim relief, may not
drastically change the way Court’s apply the law of force majeure in their final determination.
This is best highlighted in the recent judgement of the Delhi High Court in Halliburton Offshore
Services Inc. v. Vedanta Limited and ors. At the stage of deciding ad-interim relief, the Court
recognized COVID-19 as a force majeure event and granted an injunction against the
invocation of a bank guarantee.48 However, upon the competition of pleadings and detailed
hearings, it vacated this injunction and noted several considerations that eventually rendered
the force majeure claim unsuccessful.49
COVID-19 has provided fertile ground for the development of the law of force majeure,
impossibility, and frustration. It will be interesting to note the direction in which the law
develops and whether it will be in departure from the law as it currently stands.
47
Satyabrata Ghosh supra note 11.
48
Halliburton Offshore Services supra note 27, Order dated 20.04.2020 (per C Hari Shankar J.).
49
ibid, Order dated 29.05.2020 (per Prathibha M Singh J.).
Page | 28
APPENDIX A – Overview of Cases
Force Majeure Cases
11% 15%
15%
24%
18%
5%
12%
Supreme Court Delhi High Court Karnataka High Court

Bombay High Court Madras High Court Allahabad High Court
Calcutta High Court
Force Majeure Claims
38%
62%
Denied Allowed
Page | 29
Categories of Force Majeure events
3%
8% 17%
18%
23%
21%
10%
Change in Law Disturbances in Contract

Court Orders Government Order
Permissions and Regulatory Clearances Act of God
Foreign Events
Page | 30
APPENDIX B – Supreme Court
41%
59%
Denied Allowed
17%
8% 41%
17%
17%
Change in Law
Disturbances in Contract
Court Orders
Government Orders
Permission and Regulatory Clearance
Page | 31
Details of Force Majeure cases before the Supreme Court
Force Majeure
Sl. No. Name Citation
Claim
Ganga Saran v. Ram Charan Ram
1. AIR 1952 SC 9 Denied
Gopal
Satyabrata Ghose v. Muneeram
Bangur
3. Alopi Prashad & Sons v. UOI AIR 1960 SC 588 Denied
China Cotton Exporters v.
Beharilal Ramcharan
Dhanrajmal Gobindram v. Samji
Kalidas
Raja Dhruv Chand v. Raja
Harmohinder
Naihati Jute Mills v. Khyaliram
Jagannath
Boothalinga Agencies v. VTC
8. AIR 1969 SC 110 Allowed
Poriaswanmi
Furgo Survey India Pvt. Ltd.v.
9. (1971) 2 SCC 288 Allowed
ONGC
Malikarjunappa Basvalingappa v.
10. (1973) 3 SCC 180 Allowed
Siddalingappa
Govindbhai Gordhanbhai Patel v.
11. (1977) 3 SCC 179 Denied
Gulam Abbas
12. Piarey Lal v. Hori Lal AIR 1977 SC 1226 Allowed
Union of India (UOI) and Ors. v. C.
Damani & Co. and Ors.
Raymond Limited and Ors. v.
14. Madhya Pradesh Electricity Board AIR 2001 SC 238 Denied
and Ors.
Smita Conductors Ltd. v. Euro
Alloys Ltd.
Industrial Finance Corp v.
16. (2002) 5 SCC 54 Denied
Cannanore Spinning and weaving
State of U.P. v. Allied
17. (2003)7 SCC 396 Denied
Constructions
State of UP v. Allied
18. (2003) 7 SCC 396 Denied
Constructions
Ganga Retreat & Towers v. State
19. (2003) 12 SCC 91 Denied
of Rajsthan
ONGC LTD v. Assn of Natural Gas
20. (2004) 5 SCC 253 Allowed
Consuming Industries
Page | 32
HPA International v. Bhagwan
21. (2004) 6 SCC 537 Allowed
Das Fatehchand
Army Welfare Housing v.
22. (2004) 9 SCC 619 Allowed
Sumanglal Services
Markfed Vanaspati & Allied
23. (2007) 7 SCC 679 Denied
Industries v. UOI
24. Energy Watchdog v. CERC (2017) 14 SCC 80 Denied
Parsa Kente Collieries Ltd v.
25. (2019) 7 SCC 236 Allowed
Rajasthan Rajya Vidyut
Lanco Hills Technology Park v.
26. 2019 SCC Online 1649 Allowed
Manisha Balkrishna
National Agricultural Co-
27. Operative Marketing Federation 2020 SCC OnLine SC 381 Denied
of India v. Alimenta S.A.
Page | 33
APPENDIX C – Delhi High Court
Force Majeure Claim
49%
51%
Denied Allowed
Categories of Force Majeure Events
10%
19%
14%
24% 33%
Disturbances in Contract Government Orders

Permission and Regulatory Clearance Act of God
Foreign Events
Page | 34
Details of Force Majeure cases before the Delhi High Court
Force Majeure
Claim
Chiranji Lal v. Dwarka Math
1. 1969 SCCOnLine Del 115 Allowed
Mattu
Bhushan International Co Pvt.
2. Ltd. v. Cimmco International and 1981 SCCOnLine Del 109 Allowed
Ors
Punj Sons Pvt. Ltd. v. Union of
3. AIR 1986 Del 158 Allowed
India
COSID v. Steel Authority of India
4. Air 1986 Delhi 8 Allowed
Ltd.
State Bank of India v. Earnest
5. Traders Exporters, Importers & 1997 SCCOnLine Del 109 Allowed
Commission Agents
Goyal MG Gases Ltd. and Ors. v.
6. 1999 (48) DRJ 58 Allowed
Griesheim GmbH
7. HJ Baker and Bros Inc v. MMTC Suit No. 1038-A/96 Denied
Gopi Chand v. DSC Finance Dev
8. 2003 SCCOnLine Del 200 Denied
Corp
Interore Fertichem Resources SA
v. MMTC of India Ltd
BWL Ltd v. Mahanagar Telephone
Nigam Ltd
Sharda Mahajan v. Maple Leaf
Trading International (P) Ltd.
Modi Rubber Ltd. v. Guardian
International Corp
Rajindra Nath Kundu and Sons v.
13. FAO No. 281/2000 Denied
Union of India (UOI)
14. Jyoti Ltd v. EIH Ltd 2009 SCCOnLine Del 754 Denied
Global Syeel Phillippines (SPV-
15. AMC) v. State Trading Corp of 2009 SCCOnLine Del 1356 Denied
India
16. Escorts Communication Ltd v. UoI 2010(2) RCR (C) 60 Denied
Continental Enterprises Ltd.v .
State Tradinf Corp of India Ltd
18. Ghanshyam Dass Seth v. UOI 2011 SCCOnLine Del 3709 Denied
Asman Investment Ltd. v. K.L.
Suneja and ors
MMTC v. Interore Fertichem
20. AIR 2012 Del 123 Denied
Resources SA
Prasar Bharati v. B4U Multimedia
International Ltd.
Page | 35
National Hydroelectric Power Co
v. General Electric Co Ltd
Raj Kumar Hem Singh v. Union of
India and Ors.
24. Hotel Leela Ventures Ltd v. AAI 2016 SCCOnLine Del 5862 Denied
GSPL India Gasnet Ltd v.
Petroleum & Natural Gas Board
GEA EGI Contracting Co Ltd. v.
BHEL
PEC Limited v. ADM Asia Pacific
27. (2016) 235 DLT 207 Denied
Trading Pte Ltd.
Kal Airways Pvt Ltd. v. Spicejet
Ltd and ors
29. GAIL (India) Ltd v. Punj Lloyd Ltd 2017 SCCOnLine Del 8301 Denied
Aranya Hospitality Management
30. Services Pvt. Ltd v. KM 2017 SCCOnLine Del 7645 Denied
Dhoundiyal
31. BSNL v. CMI Ltd 2017 SCCOnLine Del 7223 Allowed
NHAI Ltd v. TGV Projects and
Investments Ltd
Container Corporation of India
Ltd v. Titagarh Wagons Ltd
BHEL v. Ethiopian Electric Power
Corp
35. BHEL v. G+H Schallschutz GMBH 2018 SCCOnLine Del 9798 Allowed
Prasar Bharati v. Comcon
Industries
NTPC Vidyut Vyapar Nigam Ltd. v.
Oswal Woolen Mills Ltd.
The State of Gujarat v. Ashvika
Construction Pvt. Ltd. and Ors.
Coastal Andhra Power Ltd v. AP
39. Central Power Distribution Co 2019 SCCOnLine Del 6499 Denied
Ltd.
General Electric Inv Canada and
40. ors v. National Hydroelectric Co 2019 SCCOnLine Del 7799 Allowed
Ltd
Food Corporation of India v. ITC
Ltd
S. Daya Singh and Ors. v. Som
Datt Builders Pvt. Ltd.
Halliburton Offshore Services Inc. O.M.P (I) (COMM.) No.
43. Denied
v. Vedanta Limited and ors 88/2020
Page | 36
APPENDIX D – Bombay High Court
Force Majeure Claim
20%
80%
Denied Allowed
25% 25%
50%
Change in Law Permission and Regulatory Clearance Act of God
Page | 37
Details of Force Majeure cases before the Bombay High Court
Force Majeure
Claim
Cotton Corp of India v. Chakolas
1. 2008 SCCOnline Bom 1199 Denied
Spinning and Weaving Mills Ltd
2. Bharat Lakhotya v. BSNL 2012 SCCOnline Bom 1843 Denied
In Re: Fairgrowth Financial
3. 1995 SCCOnLine Bom 46 Denied
Services Ltd.
4. Century Textiles v. MSEB AIR 1997 Bom 192 Denied
Bina Manohar Dudani v. Major
5. 2007 (5) Mh.L.J. 224 Denied
Charanjitlal Verma
Maytas Infra Ltd v. Utility
6. Energytech and Engineers Pvt. 2009 SCCOnline Bom 734 Denied
Ltd.
7. Esjay International Pvt. Ltd. v. UoI 2011(6) Mh.L.J. 750 Denied
Nirmal Lifestyle Ltd v. Tulip
Hospitality Services Ltd
Housing Development and Infra
Ltd v. Mumbai Airport Intl Ltd
Furgo Survey India Pvt. Ltd.v.
ONGC
Om Builders v. Anil Chinubhai
Kilachand
Eitzen Bulk AS v. Ashapura
Minechem Ltd.
M/s Trimurti Exports v. Modelma
Exports Ltd
Premier Brands Pvt. Ltd. v. Total
14. Sports & Entertainment India Pvt. 2017 SCCOnline Bom 2405 Denied
Ltd.
Liberty Garden CHS Ltd v. KT
Group
Standard Retail Ltd. v. MS Global
16. Com Arb Pet 404 of 2020 Denied
Corp
17. Atchut VS Velingcar v. Timblo Ltd 1996 AIHC 3412 Allowed
18. Babasaheb v. Vithal 2009 SCCOnline Bom1378 Allowed
C.N. Gandevia v. State Trading
19. 2005 SCC OnLine Bom 992 Allowed
Corporation of India
General Instruments Co. v. Union
20. (2006) 5 AIR Bom R 104 (DB) Allowed
of India (UOI) and Ors.
Page | 38
APPENDIX E – Madras High Court
Force Majeure Cases
35%
65%
Denied Allowed
8% 7%
8%
15% 31%
31%

Court Order Government Order
Permission and Regulatory Clearance Act of God
Page | 39
Details of Force Majeure cases before the Madras High Court
Force Majeure
Claim
1. V L Narasu v. PSV Iyer AIR 1953 Mad 300 Allowed
V.R. Mohanakrishnan v.
2. AIR 1960 Mad 452 Allowed
Chimanlal Desai and Co.
Sri Mahalingaswami
3. Devasthanam, Tiruvadamarudur 1960 SCCOnLine Mad 139 Denied
v. A.T. Sambanda Mudaliar
Sri Amuruvi Perumal
4. Devasthanam v. K.R. Sabapathi AIR 1962 Mad 132 Denied
Pillai and Ors.
Hind Mercantile Corporation Ltd.
[1963] 49 ITR 23(Mad)
5. v. Commissioner of Income Tax, Allowed
Madras
Bansilal Fomra and Ors. v. The
Thadava Co-operative
6. 1974 SCCOnLine Mad 202 Allowed
Agricultural and Industrial Society
Limited
Bank of Madura Limited v. Bank

7. 1986 SCCOnLine Mad 95 Denied
of Baroda
8. Ramani Ammal v. Susilammal AIR 1991 Mad 163 Denied
Easun Engineering Co. Ltd. v. The

9. Fertilisers and Chemicals AIR 1991 Mad 158 Allowed
Travancore Ltd. and Ors.
Madras Refineries Ltd. v.
Southern Petrochemical 1997 SCCOnLine Mad 240
10. Denied
Industries Corporation Ltd. and
Ors.
Bhagwandas Fatechand Daswani
v. H.P.A. International
Universal Cycle Accessories,
2002 SCCOnLine Mad 190
12. Mandaiyur and Ors. v. Tamil Allowed
Nadu Electricity Board and Ors.
Frendi Fashions Pvt. Ltd. v. The
13. Joint Director, Apparel Export W.P. No. 41519 of 2002 Denied
Promotion Council and Ors.
Precision Controls and Ors. v.
14. Tubes Investments of India 2006 SCCOnLine Mad 408 Denied
Limited and Ors.
Page | 40
Ramasamy Athappan v. The
Secretariat of the Court
Madura Coats Pvt. Ltd. and Ors.
16. v. ARKAY Energy (Rameswaram) 2009 SCCOnLine Mad 2087 Denied
Ltd. and Ors.
Arunoday Developers v. Gemini
Arts Private Ltd. and Ors.
C. Chandrasekaran v. R.
Srinivasan
Bhagwandas Metals Ltd. v.
19. C.S. No. 392 of 1998 Allowed
Raghavendra Agencies and Ors.
SPIC SMO, A Division of Southern
Petrochemical Industries
Corporation Ltd. v. Tamil Nadu
Electricity Board
G. Jawahar Enterprises v.
Glencore Grains B.V. and Ors.
The State of Tamil Nadu v. K.R.
22. C.M.A.(MD) No. 494 of 2005 Denied
Mohan and Ors.
C. Nagendran v. The Secretary,
23. W.P.(MD) No. 7836 of 2011 Denied
Home Department and Ors.
Sabari Exim Pvt. Ltd. v. SIMS
24. O.S.A. No. 199 of 2015 Denied
Metal Management Limited
BGR Energy Systems Limited v
25. 2017 SCC OnLine Mad 11542 Denied
ICICI Bank Limited and Ors.
Tungabadra Minerals Private
26. Limited v. The Chennai Port Trust 2017 SCC OnLine Mad 5402 Denied
and Ors.
27. IMC Ltd. v. Tuticorin Port Trust 2017 SCC OnLine Mad 294 Allowed
Green Vistas Property
Development (Private) Ltd. v.
28. 2018 SCC OnLine Mad 2363 Denied
Leatherex Tanning Company and
Ors.
Original Side Appeal Nos. 81,
Galaxy Properties Private Limited
29. 94 of 2018 and C.M.P. No. Denied
v. Puravankara Projects Limited
5997 of 2018
Renaissance RTW Asia (P) Ltd. v. W.A. No. 2449 of 2018, CMP
30. New Tirupur Area Development Nos. 19774 and 19777 of Denied
Corporation Ltd. 2018
Page | 41
Pioneer Distilleries Limited v.
31. Hindustan Petroleum (2019) 3 MLJ 197 Denied
Corporation Ltd. and Ors.
Page | 42
APPENDIX F – Karnataka High Court
44%
56%
Denied Allowed
20%
40%
40%
Change in Law Disturbances in Contract Permission and Regulatory Clearance
Page | 43
Details of Force Majeure cases before the Karnataka High Court
Force Majeure
Claim
1. H V Ranjan v. C V Gopal AIR 1961 Mys 20 Allowed
P Aswathnarayana Rao v. Appu
2. 1980 ILR KAR 305 Allowed
Rao
3. Rajamalliah v. State of Karnataka 1985 ILR KAR1802 Denied
Narayan Ishwar Hegde v.

4. 1985 ILR KAR 1749 Allowed
Vigneshwar Venkataraman Bhat
PV Balakrishna Reddy v. Director

5. 1990 ILR KAR 1858 Denied
of Mines and Geology
Guruvamma v. State of Karnataka
6. 2007(4) Kar. L.J. 26 Denied
and Ors.
Bhagwati Express Pvt. Ltd. v. New
7. ILR 2014 KAR 3977 Denied
India Insurance
CCS Computers Private Limited v.

Writ Petition Nos. 54211-
Union of India, Ministry of
8. 213 of 2018 (GM-RES) Allowed
Finance, Department of Financial
Services and Ors.
Chief Commercial Manager/FM

M.F.A. No. 104431/2017
9. South Western Railway v. Bharat Allowed
Mines and Minerals Ltd. and Ors.
Page | 44
APPENDIX G – Allahabad High Court
Force majeure claims
37%
63%
Denied Allowed
Categories of Force Majeure Events
10% 10%
20%
50% 10%
Court Orders Government Order
Act of God
Page | 45
Details of Force Majeure cases before the Allahabad High Court
Force Majeure
Claim
Ahmad Khan and Ors v.
1. AIR 1973 All 529 Allowed
Shanhanshah Jehan Begum
Firm Laxmi Dutt Roop Chand v.
2. AIR 1972 All 479 Denied
Union of India and Ors.
Flowmore (P.) Ltd., New Delhi v.
U.P. State Industrial
3. 2000 1 AWC 493 All Allowed
Development Corporation Ltd.
and Ors.
Ganga Singh and Ors. v. Santosh
Kumar and Ors.
Ganga Singh and Ors. v. Santosh
Kumar and Ors.
Hazi Mumtaz Husain v. The IIIrd Civil Misc. Writ Petition No.
6. Additional District Judge, Naintal 1763 of 1977 Denied
and Ors.
H.E.C. Daruwala and Ors. v. Civil Revision No. 481 of
7. Capital Finance of India Pvt. Ltd. 2008 Allowed
and Ors.
Horilal and Ors. v. Additional
8. 2012 1 AWC 477All Allowed
District Judge and Ors.
Ilam Chand and Ors. v. Mam
9. 1998 3 AWC 1814All Allowed
Chand
10. Inder Singh and Ors. v. State 1960 Cri LJ 873 Denied
Jai Prakash Singh v. State of U.P.
11. 2017 (5) ALJ 704 Allowed
and Ors.
12. Jwala Prasad v. Jwala Bank Ltd. AIR 1957 All 143 Denied
National Insurance Co. Ltd. v.
13. 2013 (6) ALLMR 16 Denied
Golana and Ors.
Rahim Bux and Ors. v
Mohammad Shafi
Raj Kumar Contractors,
Ghaziabad v. Bareilly
15. 1998 3 AWC 2344 All Denied
Development Authority, Bareilly
and Ors.
Ram Swarup Gaur and Ors. v.
Ratiram
U.P. Cylinders and Containers
17. Pvt. Ltd. and Ors. v. State of U.P. 2019 SCCOnLine All 3994 Denied
and Ors.
Shatrughan Prasad v State of
18. 1992 AWC 731 All Allowed
Uttar Pradesh and Ors.
Sheetla Prasad Sharma v State of
19. 2009 4 AWC 4181All Denied
U.P. and Ors.
Page | 46
Shyam Kumari and Ors. v. Ejaz
Ahmad Ansari
Surya International Pvt. Ltd. v.
21. 2014 (4) ALJ 402 Allowed
Union of India and Ors.
Reliance Power Limited v. State
22. 2019 (5) ADJ 1 Denied
of U.P. and Ors.
Umar Noor Mohammad v. Dayal
Saran Darbari
Shyama Devi and Ors. v. Chanda
24. 2016 (8) ADJ 559 Denied
Devi
25. Nathu Singh v. Jagdish Singh AIR 1992 All 174 Denied
Shyam Biri Works Pvt. Ltd. v. U.P.
Forest Corporation and Ors.
Ved Prakash Gupta v. Shishu Pal
Singh
Page | 47
APPENDIX H – Calcutta High Court
Force Majeurce Claims
18%
82%
Denied Allowed
20%
40%
40%
Change in Law Disturbances in Contract Permission and Regulatory Clearance
Page | 48
Details of force majeure cases decided by the Calcutta High Court
Force Majeure
Claim
Ram Kumar Agarwala v. PC Roy &
1. AIR 1952 Cal 397 Denied
Co (India) Ltd.
2. Durga Devi v. JB Advani & Co 76 CWN 528 Allowed
Sudhir Chandra Manna v. Srish
3. 1967 SCCOnLine Cal 135 Denied
Chandra Dhara
Bisasendu Biswas v. Sakina
Begum and ors
Gopal Khaitan v. Scandinavian Air
5. 1977(2) CLJ108 Denied
Line Systems
Katras Jherriah Coal Co Ltd. v.
Mercantil Bank
Road Machines (India) Pvt. Ltd. v.
Projects and Equip Corp of India
Sovarni Ghose v. Bengal Steel Suit No. 16 of 1984
8. Allowed
Industries Ltd
Peerless Drive Ltd. v. Union of
9. (1994) ILR 2 Cal 385 Allowed
India
ONGC v. Dowell Schlumberger
10. (1997) 1 CALLT 486 Denied
(Wester) SA
11. ONGC v. Dilip Constructions AIR 2000 Cal 140 Denied
Damodar Valley Corporation v.
12. 2013 (2) CLJ(Cal) 52 Denied
Graphite India Ltd
BESCO Ltd (Foundry Division) v.
13. WB State Electricity Distribition AIR 2015 Cal 288 Denied
Co.
Phosphate Company Ltd. v.
14. (2016) 4 CALLT 490 Denied
Emirates Trading Agency LLC
Kalimata Ispat Industries Pvt. Ltd.
15. 2018 SCC OnLine Cal 4010 Allowed
v. Union of India
Long Island Nature Hotel &
16. Resort Pvt. Ltd. v. Andaman & (2018) 5 WBLR(Cal) 517 Denied
Nicbar Corp Ltd
Sonali Money Exchanger Ltd v. W.P. No. 15067 (W) of 2018
17. Allowed
Eastern Railways
Mahadeo Prosad Shaw v.
18. AIR 1961 Cal70 Denied
Calcutta Dyeing and Cleaning Co.
Ram Kumar Agarwalla v. P.C. Roy
and Co. (India) Ltd.
Page | 49
Walamji Lalji v. Anil Charan
Bangal and Ors.
Page | 50

Force Majeure Frustration Impossibility A Qualitative Empirical Analysis

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FORCE MAJEURE, FRUSTRATION AND

Smaran Shetty and Pranav Budihal

ABOUT THE AUTHORS ............................................................................................................................. 3

Smaran Shetty is a Senior Associate at Keystone Partners.

Pranav Budihal was an Associate at Keystone Partners and is

The successful claims fell into 7 categories of force majeure events:

a) Orders by the Government (15 cases i.e. 21.12%),

1. Section 32 of the Indian Contract Act

2. Section 56 of the Indian Contract Act

B. Core conceptual issues

2. Purpose of contract must be materially impacted

3. Impracticalities, hardship and commercial considerations

C. Allied issues in a force majeure claim

3. Bank Guarantee and Letter of Credit

4. Interpretation of Force Majeure Clauses

D. Key decisions of the Supreme Court

E. Key decisions of High Courts

PART II – Empirical Analysis

Second, we were interested in assembling a collection of cases that qualitatively discussed

A visual representation of the overview of these cases is set out in Appendix A.

C. Delhi High Court

D. Bombay High Court

E. Madras High Court

F. Karnataka High Court

G. Allahabad High Court

H. Calcutta High Court

Force Majeure Cases

Supreme Court Delhi High Court Karnataka High Court

Force Majeure Claims

Change in Law Disturbances in Contract

Force Majeure Claims

Categories of Force Majeure events

Force Majeure Claim

Categories of Force Majeure Events

Disturbances in Contract Government Orders

Force Majeure Claim

Categories of Force Majeure events

Change in Law Permission and Regulatory Clearance Act of God

Force Majeure Cases

Categories of Force Majeure events

Change in Law Disturbances in Contract

Bank of Madura Limited v. Bank

8. Ramani Ammal v. Susilammal AIR 1991 Mad 163 Denied

Easun Engineering Co. Ltd. v. The

Force Majeure Claims

Categories of Force Majeure events

Change in Law Disturbances in Contract Permission and Regulatory Clearance

Narayan Ishwar Hegde v.

PV Balakrishna Reddy v. Director

CCS Computers Private Limited v.

Chief Commercial Manager/FM

Force majeure claims

Categories of Force Majeure Events

Change in Law Disturbances in Contract

Court Orders Government Order

Force Majeurce Claims

Categories of Force Majeure events

Change in Law Disturbances in Contract Permission and Regulatory Clearance

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