Manmohan, J.

I.As. 14036/2017 & 14064/2017

1. The present suit has been filed for recovery of Rs. 2,18,58,875/- (Rupees Two Crores Eighteen Lacs Fifty Eight Thousand Eight Hundred and Seventy Five Only) along with interest @ 18% per annum. The prayer clause in the present suit is reproduced hereinbelow:-

“(a) This Hon'ble Court may kindly be pleased to pass a decree for Rs. 2,18,58,875/- (Rupees Two Crore Eighteen Lacs Fifty Eight Thousand Eight Hundred & Seventy Five Only) along with interest @18% p.a. from 15.02.15 till its realization in favour of the plaintiff and against the Defendants;

(b) Cost of the suit be awarded in favour of the plaintiff and against the Defendants;

(c) Any other or further relief which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case may also be granted.”

2. I.A. No. 14036/2017 has been filed by the plaintiff under Order XII Rule 6, Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC') for judgment on admission and I.A. No. 14064/2017 has also been filed by the plaintiff under Order XIII-A of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (hereinafter referred to as 'Commercial Courts Act, 2015') for summary judgment.

FACTS

3. Initially the plaintiff and defendants had entered into an agreement dated 18th September, 2012 (hereinafter referred to as 'First Agreement') under which the plaintiff had to supply a total number of 630 Modular Kitchens' to the defendants, for installation in the defendants' Projects at - Gurgaon under the names “The Edge Towers, The Atrium, The View (Ramprashta City)”.

4. As per the First Agreement, the defendants had to construct the apartments by 31st December, 2012 and the plaintiff was required to install a minimum order of 630 Modular Kitchens' by 31st December, 2013. The relevant portion of the First Agreement is reproduced hereinbelow:-

“3. That “VM” shall install the “Modular Kitchens” upto 31st December 2013 as per the working schedule in Annexure III, “RPC” shall get the apartments ready for installation of “Modular Kitchens” upto 31st December 2012.

xxxx xxxx xxxx xxxx

5. That “RPC” is agreed to confirm minimum order of 630 “Modular Kitchens” “Model Modern & Model Classic” from its clients on behalf of “VM” to be installed in its apartments, which are presently under construction, on or before 31st December 2013 as per Annexure III.

(Emphasis supplied)

5. Since the defendants could not meet their obligation of getting the Apartments ready under the First Agreement, the parties re-negotiated the terms of the agreement.

6. Consequently, another agreement dated 25th April, 2014 (hereinafter referred to as 'Second Agreement') was entered into, for a reduced number of kitchens. Under the Second Agreement, the number of kitchens agreed upon was 133, as against the previous number of 630. The defendants not only gave an advance amount but also paid price escalation and compensation for breach of the First Agreement. The said portion of the Second Agreement is reproduced hereinbelow: -

“WHEREAS under clause 5 of the Previous Agreement RPC was obliged to confirm a minimum order of 630 “Modular Kitchens” from its customers. But RPC due to reasons beyond its control, could not fulfill this obligation and the performance of the Previous Agreement and consequently, the parties hereto have agreed to re-negotiate, cancel the Previous Agreement and enter into the fresh arrangement as embodied in this Agreement.

THAT this specific agreement is entered into between both the parties referred above, and the parties agree to the following terms and conditions:-

1. That “RPC” has given a sum of Rs.1,25,00,000/- (One Crore Twenty Five Lakhs Only) to VM as advance (hereinafter referred to as “1.25 Cr. Advance”) to commence work. Both Parties have agreed that said 1.25 Cr. Advance shall