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Vrinda Engineers Pvt. Ltd. v/s Hindustan Steelworks Construction Limited & Another


Company & Directors' Information:- HINDUSTAN STEELWORKS CONSTRUCTION LTD [Active] CIN = U27310WB1964GOI026118

Company & Directors' Information:- ENGINEERS INDIA LIMITED [Active] CIN = L74899DL1965GOI004352

Company & Directors' Information:- HINDUSTAN CONSTRUCTION COMPANY LIMITED [Active] CIN = L45200MH1926PLC001228

Company & Directors' Information:- B S B K ENGINEERS PRIVATE LIMITED [Amalgamated] CIN = U74210DL1985PTC021596

Company & Directors' Information:- VRINDA ENGINEERS PRIVATE LIMITED [Active] CIN = U70101WB1997PTC085960

Company & Directors' Information:- M M ENGINEERS PRIVATE LIMITED [Active] CIN = U02919TZ1987PTC001936

Company & Directors' Information:- D K D ENGINEERS PRIVATE LIMITED [Active] CIN = U18101TZ1993PTC004673

Company & Directors' Information:- N L ENGINEERS PRIVATE LIMITED [Active] CIN = U27109PB1997PTC020362

Company & Directors' Information:- S AND T ENGINEERS PRIVATE LIMITED [Active] CIN = U51103TZ2009PTC015456

Company & Directors' Information:- V A ENGINEERS PRIVATE LIMITED [Amalgamated] CIN = U29299MH1997PTC215888

Company & Directors' Information:- I & B ENGINEERS PRIVATE LIMITED [Active] CIN = U45309WB2008PTC124644

Company & Directors' Information:- T S CONSTRUCTION ENGINEERS PRIVATE LIMITED [Active] CIN = U45400JK2012PTC003480

Company & Directors' Information:- AT AND T ENGINEERS PRIVATE LIMITED [Active] CIN = U45203DL2012PTC239940

Company & Directors' Information:- N K R ENGINEERS PRIVATE LIMITED [Active] CIN = U29293GJ2004PTC045176

Company & Directors' Information:- C C ENGINEERS PVT LTD [Active] CIN = U30009PN1991PTC063868

Company & Directors' Information:- M AND T ENGINEERS PRIVATE LIMITED [Active] CIN = U74899DL1989PTC036107

Company & Directors' Information:- J G ENGINEERS PVT LTD [Active] CIN = U45402WB1970PTC027713

Company & Directors' Information:- P E ENGINEERS PVT LTD [Active] CIN = U74210TG1981PTC003247

Company & Directors' Information:- M S ENGINEERS INDIA PRIVATE LIMITED [Strike Off] CIN = U45200MH2006PTC159314

Company & Directors' Information:- C K ENGINEERS INDIA PRIVATE LIMITED [Active] CIN = U74200CH1997PTC020744

Company & Directors' Information:- U N F ENGINEERS INDIA PRIVATE LIMITED [Active] CIN = U31102AS2003PTC007198

Company & Directors' Information:- A V ENGINEERS PRIVATE LIMITED [Active] CIN = U29306CH2002PTC024874

Company & Directors' Information:- J AND K ENGINEERS PVT LTD [Converted to LLP and Dissolved] CIN = U29259GJ1982PTC005625

Company & Directors' Information:- T & I ENGINEERS PRIVATE LIMITED [Active] CIN = U29252AS2000PTC006243

Company & Directors' Information:- H B ENGINEERS PRIVATE LIMITED [Active] CIN = U65910GJ1995PTC027208

Company & Directors' Information:- I S F ENGINEERS PRIVATE LIMITED [Active] CIN = U45209DL2021PTC382687

Company & Directors' Information:- B. K. ENGINEERS (INDIA) PRIVATE LIMITED [Active] CIN = U28112MH2011PTC214002

Company & Directors' Information:- K C K ENGINEERS INDIA PRIVATE LIMITED [Strike Off] CIN = U29299DL1993PTC056432

Company & Directors' Information:- I I S C ENGINEERS PRIVATE LIMITED [Strike Off] CIN = U45201TN1986PTC013124

Company & Directors' Information:- J. S. W. ENGINEERS PRIVATE LIMITED [Active] CIN = U29120MH2010PTC288640

Company & Directors' Information:- K A ENGINEERS PRIVATE LIMITED [Active] CIN = U74999DL2003PTC119859

Company & Directors' Information:- K L R ENGINEERS PRIVATE LIMITED [Active] CIN = U74210TG1996PTC024040

Company & Directors' Information:- J B C ENGINEERS PRIVATE LIMITED. [Active] CIN = U31300DL2004PTC125469

Company & Directors' Information:- T R ENGINEERS PRIVATE LIMITED [Active] CIN = U29111DL2004PTC126852

Company & Directors' Information:- D C ENGINEERS PRIVATE LIMITED [Active] CIN = U74210MH1999PTC118382

Company & Directors' Information:- E C ENGINEERS PVT LTD [Active] CIN = U28920MH1981PTC024675

Company & Directors' Information:- B J & P ENGINEERS PRIVATE LIMITED [Active] CIN = U28910TN2008PTC067728

Company & Directors' Information:- K B ENGINEERS PVT LTD [Strike Off] CIN = U27202WB1987PTC041979

Company & Directors' Information:- N B S ENGINEERS (INDIA) PRIVATE LIMITED [Active] CIN = U74999DL1998PTC096033

Company & Directors' Information:- N. C. R. ENGINEERS PRIVATE LIMITED [Active] CIN = U45400UP2008PTC034625

Company & Directors' Information:- V K G ENGINEERS PVT LTD [Strike Off] CIN = U45202PB2006PTC030194

Company & Directors' Information:- J C ENGINEERS PRIVATE LIMITED [Active] CIN = U29248HR1988PTC030208

Company & Directors' Information:- K C ENGINEERS LIMITED [Active] CIN = U74999HR2005PLC035602

Company & Directors' Information:- K C ENGINEERS PRIVATE LIMITED [Active] CIN = U74999HR2005PTC035602

Company & Directors' Information:- H H ENGINEERS PRIVATE LIMITED [Active] CIN = U27109PB1996PTC018479

Company & Directors' Information:- C & L ENGINEERS (INDIA) PVT. LTD. [Strike Off] CIN = U29190DL1998PTC096952

Company & Directors' Information:- G AND M ENGINEERS PVT. LTD. [Strike Off] CIN = U74210MH1986PTC041517

Company & Directors' Information:- H V ENGINEERS PVT LTD [Active] CIN = U45202PB1978PTC003839

Company & Directors' Information:- M K C ENGINEERS PVT LTD [Active] CIN = U30009WB1988PTC045711

Company & Directors' Information:- I T ENGINEERS PRIVATE LIMITED [Active] CIN = U45201DL2005PTC136156

Company & Directors' Information:- E B P ENGINEERS PRIVATE LIMITED [Strike Off] CIN = U52392DL2003PTC118311

Company & Directors' Information:- L S ENGINEERS PRIVATE LIMITED [Active] CIN = U29120MH2000PTC129659

Company & Directors' Information:- H V ENGINEERS P LTD. [Active] CIN = U27106WB1990PTC050281

Company & Directors' Information:- S M R ENGINEERS PRIVATE LIMITED [Strike Off] CIN = U29199TZ2000PTC009464

Company & Directors' Information:- H L E ENGINEERS PRIVATE LIMITED [Amalgamated] CIN = U29199GJ2004PTC044905

Company & Directors' Information:- V V S ENGINEERS PRIVATE LIMITED [Under Process of Striking Off] CIN = U27310AP1985PTC005668

Company & Directors' Information:- A C F ENGINEERS PRIVATE LIMITED [Active] CIN = U15209MH1988PTC049094

Company & Directors' Information:- V B ENGINEERS PRIVATE LIMITED [Active] CIN = U25209MH2009PTC191163

Company & Directors' Information:- D V ENGINEERS PRIVATE LIMITED [Strike Off] CIN = U74899DL1994PTC061013

Company & Directors' Information:- F L B ENGINEERS PRIVATE LIMITED [Active] CIN = U28932MH1985PTC035994

Company & Directors' Information:- S B R ENGINEER'S PRIVATE LIMITED [Strike Off] CIN = U45202WB2000PTC092506

Company & Directors' Information:- J. S. W. ENGINEERS PRIVATE LIMITED [Active] CIN = U29120PN2010PTC136515

Company & Directors' Information:- R K R ENGINEERS (INDIA) PRIVATE LIMITED [Active] CIN = U45206TN2013PTC092795

Company & Directors' Information:- P J B ENGINEERS PRIVATE LIMITED [Active] CIN = U74210KA1999PTC024856

Company & Directors' Information:- H M S ENGINEERS PRIVATE LIMITED [Strike Off] CIN = U29219CH1991PTC011585

Company & Directors' Information:- J L ENGINEERS PRIVATE LIMITED [Strike Off] CIN = U28920MH2000PTC124206

Company & Directors' Information:- P M C ENGINEERS PVT LTD [Strike Off] CIN = U74210KL1981PTC003354

Company & Directors' Information:- J J V ENGINEERS PRIVATE LIMITED [Active] CIN = U74200HR2013PTC048964

Company & Directors' Information:- P T R ENGINEERS PRIVATE LIMITED [Under Liquidation] CIN = U31901TN1979PTC007806

Company & Directors' Information:- S L V ENGINEERS PRIVATE LIMITED [Active] CIN = U72501TZ2000PTC009366

Company & Directors' Information:- C. B. S. ENGINEERS PRIVATE LIMITED [Strike Off] CIN = U74120UP2011PTC045651

Company & Directors' Information:- HINDUSTAN ENGINEERS PRIVATE LIMITED [Active] CIN = U22211UP1948PTC001900

Company & Directors' Information:- M R K ENGINEERS PRIVATE LIMITED [Active] CIN = U21014KA1995PTC018466

Company & Directors' Information:- H R M ENGINEERS PRIVATE LIMITED [Active] CIN = U45200MH1998PTC117606

Company & Directors' Information:- P C ENGINEERS PRIVATE LIMITED [Active] CIN = U34300CH1985PTC006093

Company & Directors' Information:- R H ENGINEERS PVT LTD [Active] CIN = U74200CH1984PTC005944

Company & Directors' Information:- G-4 ENGINEERS PRIVATE LIMITED [Active] CIN = U32204MH2008PTC177646

Company & Directors' Information:- G S ENGINEERS PVT LTD [Active] CIN = U74210PB1994PTC014225

Company & Directors' Information:- H I ENGINEERS PVT LTD [Active] CIN = U74210WB1984PTC037097

Company & Directors' Information:- S A ENGINEERS LTD [Strike Off] CIN = U28932WB1977PLC031202

Company & Directors' Information:- ENGINEERS LTD [Strike Off] CIN = U29100WB1933PLC007579

Company & Directors' Information:- G B ENGINEERS PVT LTD [Strike Off] CIN = U74210WB1982PTC034958

Company & Directors' Information:- R. J. ENGINEERS PRIVATE LIMITED [Active] CIN = U29199TZ1990PTC002690

Company & Directors' Information:- AMP ENGINEERS PVT LTD [Strike Off] CIN = U21011UP1988PTC010091

Company & Directors' Information:- H M N ENGINEERS AND CONSTRUCTION PRIVATE LIMITED [Strike Off] CIN = U07010KA2003PTC032863

Company & Directors' Information:- A R ENGINEERS PVT LTD [Strike Off] CIN = U45203OR1993PTC003413

Company & Directors' Information:- M. Y. ENGINEERS PRIVATE LIMITED [Strike Off] CIN = U28920MH1999PTC119174

Company & Directors' Information:- P & A ENGINEERS PRIVATE LIMITED [Active] CIN = U70101OR2011PTC014428

Company & Directors' Information:- M AND D (ENGINEERS) PRIVATE LIMITED [Active] CIN = U28932MH1975PTC018333

Company & Directors' Information:- Q M ENGINEERS (INDIA) PRIVATE LIMITED [Active] CIN = U31100MH2006PTC159261

Company & Directors' Information:- A G ENGINEERS PRIVATE LIMITED [Active] CIN = U74899DL1986PTC024138

Company & Directors' Information:- Y A ENGINEERS PRIVATE LIMITED [Active] CIN = U74899DL2001PTC110304

Company & Directors' Information:- R. F. ENGINEERS PRIVATE LIMITED [Active] CIN = U32100DL2010PTC199732

Company & Directors' Information:- Y AND N ENGINEERS PRIVATE LIMITED [Strike Off] CIN = U70109DL1989PTC036195

Company & Directors' Information:- A TO Z ENGINEERS (INDIA) PRIVATE LIMITED [Strike Off] CIN = U29299DL1988PTC030239

Company & Directors' Information:- K J S ENGINEERS PRIVATE LIMITED [Strike Off] CIN = U74210DL1998PTC093851

Company & Directors' Information:- A P ENGINEERS PRIVATE LIMITED [Strike Off] CIN = U29269UP1991PTC013866

Company & Directors' Information:- S S ENGINEERS PVT LTD [Strike Off] CIN = U28931TN1987PTC015093

Company & Directors' Information:- A S ENGINEERS PVT LTD [Strike Off] CIN = U74999TG1988PTC008455

Company & Directors' Information:- N R S ENGINEERS PRIVATE LIMITED [Strike Off] CIN = U29269UP1992PTC014881

Company & Directors' Information:- H V A C ENGINEERS PRIVATE LIMITED [Strike Off] CIN = U99999DL1982PTC014542

Company & Directors' Information:- V R V ENGINEERS PRIVATE LIMITED [Strike Off] CIN = U50101TN2006PTC061058

Company & Directors' Information:- S R V ENGINEERS PVT LTD [Strike Off] CIN = U24231UP1988PTC009258

Company & Directors' Information:- V R F ENGINEERS PVT LTD [Active] CIN = U32201GJ1986PTC008400

Company & Directors' Information:- A. B. T. ENGINEERS PVT. LTD. [Strike Off] CIN = U28111OR1993PTC003388

Company & Directors' Information:- B S B ENGINEERS PVT LTD [Strike Off] CIN = U27106WB1971PTC027952

Company & Directors' Information:- A B K ENGINEERS PRIVATE LIMITED [Active] CIN = U29253DL2008PTC178060

Company & Directors' Information:- H J ENGINEERS PRIVATE LTD [Active] CIN = U74899DL1987PTC027668

Company & Directors' Information:- A R ENGINEERS PVT LTD [Not available for efiling] CIN = U71220UP1978PTC004701

Company & Directors' Information:- K K ENGINEERS INDIA PRIVATE LIMITED [Active] CIN = U74200CH1984PTC005826

Company & Directors' Information:- J M J ENGINEERS AND CONSTRUCTION PRIVATE LIMITED [Active] CIN = U45400DL2009PTC196154

Company & Directors' Information:- J M J ENGINEERS AND CONSTRUCTION PRIVATE LIMITED [Active] CIN = U74110DL2009PTC196154

Company & Directors' Information:- D H ENGINEERS PVT LTD [Strike Off] CIN = U51109WB1963PTC025758

Company & Directors' Information:- G F M ENGINEERS PVT LTD [Strike Off] CIN = U45202WB1969PTC027476

Company & Directors' Information:- P R M ENGINEERS PRIVATE LIMITED [Strike Off] CIN = U29120UP1988PTC009249

Company & Directors' Information:- R B ENGINEERS PRIVATE LIMITED [Active] CIN = U24230MH2003PTC141901

Company & Directors' Information:- F S ENGINEERS PRIVATE LIMITED [Active] CIN = U74210TN1973PTC006482

Company & Directors' Information:- U. K. ENGINEERS PRIVATE LIMITED [Active] CIN = U31900PN2008PTC132332

Company & Directors' Information:- J B ENGINEERS PRIVATE LIMITED [Strike Off] CIN = U74900MH2012PTC226187

Company & Directors' Information:- S & E ENGINEERS PRIVATE LIMITED [Active] CIN = U74999PN2010PTC135666

Company & Directors' Information:- P S B ENGINEERS PRIVATE LIMITED [Strike Off] CIN = U74210MH2000PTC128882

Company & Directors' Information:- D B S ENGINEERS PRIVATE LIMITED [Active] CIN = U74210UP2010PTC084195

Company & Directors' Information:- G K V ENGINEERS PRIVATE LIMITED [Active] CIN = U74999TN2010PTC077912

Company & Directors' Information:- G H ENGINEERS PRIVATE LIMITED [Strike Off] CIN = U28939DL2004PTC130703

Company & Directors' Information:- N R ENGINEERS PRIVATE LIMITED [Active] CIN = U29292DL2011PTC221986

Company & Directors' Information:- B N R ENGINEERS PRIVATE LIMITED [Active] CIN = U74899DL1973PTC006709

Company & Directors' Information:- K M ENGINEERS PRIVATE LIMITED [Strike Off] CIN = U45400DL2014PTC272465

Company & Directors' Information:- T J ENGINEERS PRIVATE LIMITED [Strike Off] CIN = U74140DL2009PTC191431

Company & Directors' Information:- L. K. ENGINEERS PRIVATE LIMITED [Active] CIN = U29308PN2020PTC190150

Company & Directors' Information:- D B R ENGINEERS PRIVATE LIMITED [Strike Off] CIN = U74140DL1995PTC066347

Company & Directors' Information:- N K ENGINEERS PRIVATE LIMITED [Strike Off] CIN = U65921UP1954PTC002533

Company & Directors' Information:- H. R. ENGINEERS PVT LTD [Strike Off] CIN = U74999PB1973PTC003316

Company & Directors' Information:- ENGINEERS CORPORATION PVT LTD [Strike Off] CIN = U74300WB1946PTC022035

Company & Directors' Information:- O P M S ENGINEERS PRIVATE LIMITED [Strike Off] CIN = U74899DL1984PTC018969

Company & Directors' Information:- I S C ENGINEERS PRIVATE LIMITED [Strike Off] CIN = U74140DL1983PTC017046

Company & Directors' Information:- G P B ENGINEERS PVT LTD [Strike Off] CIN = U29212RJ1990PTC005595

Company & Directors' Information:- R G M ENGINEERS PRIVATE LIMITED [Strike Off] CIN = U74210DL2008PTC175365

Company & Directors' Information:- THE ENGINEERS PRIVATE LIMITED [Strike Off] CIN = U99999KA1948PTC000551

Company & Directors' Information:- HINDUSTAN CORPORATION PRIVATE LIMITED [Dissolved] CIN = U74900KL1901PTC000424

Company & Directors' Information:- HINDUSTAN LTD. [Active] CIN = U99999MH1917PTC000472

Company & Directors' Information:- HINDUSTAN CORPORATION LIMITED [Dissolved] CIN = U99999MH1949PLC007790

Company & Directors' Information:- M. AND S. (ENGINEERS) LIMITED [Dissolved] CIN = U99999MH1952PLC008956

    General Application No. 1156 of 2019 & Civil Suit No. 226 of 2018

    Decided On, 03 December 2019

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE DEBANGSU BASAK

    For the Appearing Parties: Sukrit Mukherjee, Avirup Mitra, S.R. Kakrania, Tanuj Kakrania, Sanjeeb Seni, Ankita Upadhyay, Chayan Gupta, Prasun Mukherjee, Deepak Agarwal, Advocates.



Judgment Text


1. The application is at the behest of the defendant No. 2 claiming that it is neither a necessary nor a proper party in the suit.

2. Learned Advocate appearing for the defendant No. 2 submitted that, the defendant No. 2 engaged the defendant No. 1 as the principal contractor to render comprehensive project management services for construction of a building. The plaintiff was engaged by the defendant No. 1. There was no privity of contract between the defendant No. 2 and the plaintiff. The claim of the plaintiff was at best against the defendant No. 1. The plaint did not disclose any cause of action against the defendant No. 2. The back to back payment clause which the plaintiff relied upon formed part of the agreement between the plaintiff and the defendant No. 1. The defendant No. 2 was not a party to such agreement. Consequently, the name of the defendant No. 2 should be deleted from the plaint. In support of his contentions, learned Advocate appearing for the defendant No. 2 relied upon (Har Narain Singh v. Kharag Singh and Anr.,1887 9 ILR(All) 448) and (Utkarsh Tubes and Pipes Limited v. Simplex Infrastructure Limited, (2015) 1 CalLJ 27)

3. Learned Advocate appearing for the plaintiff submitted that, the plaintiff was issued a letter of intent by the defendant No. 1 for fabrication, erection, grouting etc. of steel structures for construction of a building on behalf of the defendant No. 2. The plaintiff and the defendant No. 1 entered into a formal agreement dated July 4, 2012. The agreement contained a back to back payment clause. He referred to such clause and submitted that, the plaintiff is entitled to receive payment from the defendant No. 1. He referred to the various correspondence exchanged between the parties as also the minutes of the meeting between the parties and submitted that, the defendant No. 2 claimed that, entire payment was made to the defendant No. 1 and that, the defendant No. 1 was unreasonably withholding the payment to the plaintiff. The plaintiff executed the work not intending to do so gratuitously and therefore by virtue of Section 70 of the Indian Contract Act, 1872, the defendant No. 2 was liable to pay the plaintiff. The defendant No. 2 was the beneficiary of the work done by the plaintiff. He relied upon (State of West Bengal v. B.K. Mondal and Sons, (1962) AIR SC 779) in support of the contention that, the defendant No. 2 was also liable to pay the plaintiff.

4. The suit is for recovery of price of goods sold and delivered and services rendered. There are two defendants in the suit. The case of the plaintiff in the plaint is that, in November 2011, the defendant No. 2 floated a project for construction of a building at Kolkata. The defendant No. 2 engaged the defendant No. 1 as the principal contractor to render comprehensive project management services. The defendant No. 1 invited offers from prospective bidders engaged in construction business. The plaintiff participated in the tender process. The plaintiff became successful in such tender and a letter of intent dated April 20, 2012 was issued by the defendant No. 1 to the plaintiff. The plaintiff and the defendant No. 1 entered into a formal agreement on July 4, 2012. The plaintiff discharged all its obligations under the agreement. The plaintiff raised running account bills upon the defendant No. 1. The plaintiff raised tax invoices on the defendant No. 1. The construction was completed in November 2014. After completion, the plaintiff raised the final bill on the defendant No. 1. The defendant No. 1 accepted the bills of the plaintiff without any demur or protest. The defendant No. 1 from time to time made part payments to the plaintiff. The defendant No. 1 withheld sums receivable by the plaintiff including on account of sales tax and excise duty. A meeting was held between the plaintiff, the defendant No. 1 and 2 where a minutes of the meeting was prepared on May 14, 2013. In such meeting, the defendant No. 2 did not agree to make payment of the excise duty directly to the plaintiff on the ground that, the defendant No. 2 did not have any privity of contract to the plaintiff. A spate of correspondence ensued between the plaintiff and the defendant No. 1. The plaintiff thereafter filed the instant suit, on the defendant No. 1 failing and neglecting to pay the claims of the plaintiff.

5. There is nothing on record to establish existence of privity of contract between the plaintiff and the defendant No. 2. The plaintiff and the defendant No. 1 entered into a formal agreement dated July 4, 2012. The defendant No. 2 is not a party to such formal agreement. By such formal agreement dated July 4, 2012, the defendant No. 1 agreed to pay the running account bills of the plaintiff within reasonable time of receipt of corresponding payment from the defendant No. 2. The plaintiff claims that the defendant No. 2 paid the defendant No. 1.

6. There being no privity of contract between the plaintiff and the defendant No. 2, the plaintiff cannot call upon the defendant No. 2 to pay the plaintiff for the work done. The plaintiff was engaged by the defendant No. 1. It is the liability of the defendant No. 1 to pay the plaintiff. The plaintiff cannot shift the liability of the defendant No. 1 to the defendant No. 2, in absence of any contract.

7. Har Narain Singh (supra) held that, a person can be added as a plaintiff or defendant to a suit when adding such person to the suit will enable the Court to effectually and completely adjudicate upon and settle all questions involved in the suit. It held that, questions involved in the suit means questions between the plaintiff and the defendant and not questions which may arise between co-defendants or between co-plaintiffs inter se. In the present case, the plaintiff sued the defendant No. 2 on the basis of a clause in the formal agreement dated July 4, 2012. The defendant No. 2 is not a party to such formal agreement dated July 4, 2012. The so-called clause of back to back payment appearing in the formal agreement dated July 4, 2012 is not binding upon the defendant No. 2. The plaintiff is seeking to raise a question as to whether the defendant No. 2 paid the defendant No. 1 and whether the defendant No. 1 is liable to pay on the basis of the back to back payment clause in the formal agreement dated July 4, 2012. The question sought to be raised by the plaintiff in relation to the defendant No. 2 is a question between the co-defendants and not between the plaintiff and the defendant No. 2. There is no question between the plaintiff and the defendant No. 2 since, there is no privity of contract between the plaintiff and the defendant No. 2.

8. While considering an application under Section 8 of the Arbitration and Conciliation Act, 1996 Utkarsh Tubes and Pipes Limited (supra) held that, where the real cause of action in the suit is for recovery of price of goods sold and delivered, making the bank as a co-defendant in such suit will not make the arbitration agreement between the plaintiff and the defendant of such suit, not enforceable. It held that, the bank was joined as the defendant No. 2 in such a suit to avoid the arbitration. In the facts of that case, the Court allowed the application under Section 8 of the Arbitration and Conciliation Act, 1996.

9. B.K. Mondal and Sons (supra) considered Section 70 of the Contract Act, 1872. It held as follows :-

"14. It is plain that three conditions must be satisfied before this section can be invoked. The first condition is that a person should lawfully do something for another person or deliver something to him. The second condition is that in doing the said thing or delivering the said thing he must not intend to act gratuitously; and the third is that the other person for whom something is done or to whom something is delivered must enjoy the benefit thereof. When these conditions are satisfied Section 70 imposes upon the latter person, the liability to make compensation to the former in respect of, or to restore, the thing so done or delivered. In appreciating the scope and effect of the provisions of this section it would be useful to illustrate how this section would operate. If a person delivers something to another it would be open to the latter person to refuse to accept the thing or to return it; in that case Section 70 would not come into operation. Similarly, if a person does something for another it would be open to the latter person not to accept what has been done by the former; in that case again Section 70 would not apply. In other words, the person said to be made liable under Section 70 always has the option not to accept the thing or to return it. It is only where he voluntarily accepts the thing or enjoys the work done that the liability under Section 70 arises."

10. Section 70 of the Contract Act, 1872 is as follows:-

"70. Obligation of person enjoying benefit of nongratuitous act.-Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered."

11. In the facts of the present case, as noted above, there was no privity of contract between the plaintiff and the defendant No. 2. The plaintiff claimed that the defendant No. 2 enjoyed the benefits of the work done by the plaintiff. The plaintiff engaged the defendant No. 1. The defendant No. 1 in turn engaged the defendant No. 2 for a portion of the work. The defendant No. 2 paid the defendant No. 1 for the work done. There may be claims made by the plaintiff against the defendant No. 1, as in the present

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case, the plaintiff claims that, the defendant No. 1 is yet to repay the bills and other claims of the plaintiff. The defendant No. 2 cannot be said to have taken anything from plaintiff voluntarily as the defendant No. 2 never asked the plaintiff to do so. The defendant No. 2 paid the defendant No. 1 to provide the goods, services and facilities. It was the obligation of the defendant No. 1 to pay the plaintiffs, if any amount is due and payable. The defendant No. 2 paid the value of the goods and services to person from whom the defendant No. 2 received the same. It did not receive anything from the plaintiff to pay for. Provisions of Section 70 of the Act of 1872 are not attracted between the plaintiff and the defendant No. 2. The defendant No. 2 cannot be said to be liable to the plaintiff. The plaintiff cannot have a cause of action against the defendant No. 2. 12. In such circumstances, the defendant No. 2 is deleted as a defendant in the suit. Old GA No. 1156 of 2019 New GA No. 3 of 2019 in CS No. 226 of 2018 is allowed accordingly without any order as to costs.
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