force majeure clause

Hello,

Flood is considered in force majeure clause. A has taken shelter of that clause and trying to reject the claim of B. However, complete advice cannot given without knowing about the other terms and conditions of contract. 

STATEMENT OF FACTS
1. The petitioner “Polo Club” contracted on 14th July, 2019 (first contract) with the Super
Construction and seating Ltd company to build new car park according to the provisions of “The
Contract Act, 1872”.
2. The petitioner “Polo Club” contracted (second contract) with the Super Construction and
seating Ltd company for replacing of seats of stadium after the start of assigned work on 5th
August, 2019 according to the provisions of “The Contract Act, 1872”.
3. The consideration for first contract was 10 Million rupees in which sum of 3 Million rupees
only was paid in advance by the petitioner on 8th August, 2019.
4. The consideration for second contract was 5 Million rupees. No advance money was paid for
second contract.
5. The remaining consideration amount of rupees 12 Million for both contracts was promised to
be paid by the petitioner after the completion of work. The due date of completion of both
contracts was 8th October 2019 as agreed by the parties.
6. Both the contracts contain “Force Majeure clause” which provides that the petitioner will not
be responsible for any loss caused by floods, fire, force majeure, or act of God to partly
completed work.
7. On 30th September first contract was completed 80% (duly recorded by the engineer incharge),
and the second contract was wholly completed as recorded by the engineer incharge as
mentioned in official measurement book.
8. On 30th September 2019 the second contract was completed but more than 50% seats had been
poorly fitted as recorded by the engineer incharge in Arfa Kareem and Aitzaz Hasan Stadium.
After the receiving report from engineer incharge, the petitioner decided not to file a suit against
the respondent immediately and to wait for the due date.
9. During 1st to 4th October 2019, the city suffered from exceptionally heavy rain. In a result the
work done and the subject matter of the contract was entirely destroyed.
10. The respondent has claimed the remaining consideration amount of rupees 12 millions of
both the contracts as the subject matter was entirely destroyed and the remaing work become
impossible to complete.
11. The petitioner denied the claim of the respondent taking the plea of force majeure clause as
mentioned in their contracts.
12. After that the respondent decided to file a suit against the petitioner for recovery in the court
of senior civil judge of Quarantine. The trail court decided in the favour of respondent.
13. The petitioner filed an appeal before the court of additional session judge, which was
dismissed.
14. The petitioner challenged the findings of two courts in revision petition before High Court.
High Court upheld the decision of both the subordinate courts with minor change. The high court
held that the petitioner was entitled to deduct the payment proptionately as recorded by the
engineer incharge and to pay the remaining amount.
15. Now the petitioner filed an application for leave to appeal before the Supreme Court challenging the decision of the high court. He raised the question of law that force
majeure clause was not properly interpreted.