S. RAVINDRA BHAT, J.

FACTS:

1. The appellant, engaged in the hospitality business is aggrieved by the dismissal of its application for rejection of the plaint, in the suit (preferred by the first respondent- hereafter “the plaintiff”). The appellant entered into a contract with the second respondent (hereafter “the contractor”) whereby the latter undertook to carry out interior works in two of its (i.e. the appellant’s) hotels. The appellant sought rejection of the plaint in the suit preferred, for recovery of money against it and the contractor, by the plaintiff, alleging that there was no privity of contract between it and the plaintiff.

2. The facts necessary to decide the issue are that in November 2009, the appellant entered into a contract with the second respondent (hereafter “the contractor”) for interior works of two of its hotels in Delhi. The contractor sub-contracted some of the work awarded to the plaintiff. The rates for the said work order and terms and conditions were finalized in terms of the communication between the two respondents by email dated 10.11.2009; work regarding the 40 and 100 rooms at the two sites began to be executed. By e-mail dated 20.03.2010 the contractor issued the work orders.

3. In respect of the transactions/work between the two respondents, an account, for dealings between the two was opened by the plaintiff, in its books of account in the name of the contractor. It is alleged by the plaintiff that the contractor, after seeing its active pace of works and its professionalism, sub-contracted the interior works and other related works to it (i.e. the plaintiff), as regards the Banquet Hall and Pre-Function area, restaurant at Holiday Inn Site, make up room, Holiday Inn retail area and corridors for both the Holiday Inn and the Intercontinental Hotel site, at the agreed rates, by various emails exchanged between them. It is stated that the plaintiff, accordingly generated pro forma invoices for the work/BOQ on the contractor, which were by it on site. It was further agreed that on confirmation of the BOQ at the sites and on its agreement, the plaintiff was to raise the final Tax Invoice for the said work and also that thereupon the accounts would be settled/ reconciled amongst the parties and the final payment whatever is found due and payable would be released by the contractor in terms of the tax invoices so raised by the Explorer within three months, barring 10% of the Tax Invoice which shall be made only after the completion of 12 months of defect liability period/workmanship. The plaintiff also claimed to have executed various additional/extra works under the specific instructions and at the behest of the contractor and the appellant in respect of restaurants, Banquet, pre-function area, 5th and 6th floor guest rooms, 5th and 6th floor corridor of Holiday Inn Site and 5th to 9th floor guest-rooms and corridor in respect of the Intercontinental Hotel, Mayur Vihar for which the rate quotations were provided and agreed from time to time for these items on an ongoing-basis.

4. The plaintiff claims to have finished the entire work (BOQ items as well as additional items) and handed over possession of said sites to the appellant’s Housekeeping Team under the contractor’s instructions in May 2011. Alleging that ever since it was following up telephonically and via email and even had meetings with the representatives of the contractor to clear the bills to the extent of 90% of the total work so carried out leaving the balance 10 % amount to be paid at the expiry of defect liability period of one year the plaintiff filed a suit before this court (CS (COMM) No. 82/2016) for recovery of Rs. 6,20,29,728/- (Rupees six crores twenty lakhs twenty-nine thousand seven hundred twenty-eight only) along with interest @ 18% per annum, against the Appellant and contractor, which is still pending.

5. The plaintiff alleged- in its suit- that out of the total tax invoice amount of Rs. 6,65,03,369/- (Rupee