DEBANGSU BASAK,J. - (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 1887 ILR Volume 9 Allahabad 448 (Har Narain Singh v. Kharag Singh and Anr.) and 2015 Volume 1 Cal LJ 27 (Utkarsh Tubes and Pipes Limited v. Simplex Infrastructure Limited)
(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 All India Reporter 1962 Supreme Court 779 (State of West Bengal v. B.K. Mondal and Sons) in support of the contention that, the defendant No. 2 was also liable to pay the plaintiff.;