The main legal point established in the judgment is the application of the twin test for Summary Judgment, which requires the court to consider whether there is a real prospect of succeeding or defending the claim, and whether there are other compelling reasons as to why the claim should not be disposed of before recording of oral evidence.

JUDGMENT

I.A.1529/2022

1. An application under Section XIIIA of Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC') has been filed on behalf of the plaintiff for Summary Judgment.

2. The facts in brief are that in October, 2018 the defendant approached the plaintiff in Delhi for supply of infrastructure and services for 'Pravasi Bhartiya Divas-2019' to be held from 21st January, 2019 to 23rd January, 2019 at Varanasi, Uttar Pradesh. Various correspondences were exchanged for negotiations between October, 2018 to December, 2018 which resulted into an Agreement dated 27th December, 2018 through e-mail which recorded the scope of infrastructure and services to be supplied by the plaintiff and the consideration to be paid by the defendant was decided as ?12,98,00,000/- inclusive of Goods and Service Tax (GST). The payment schedule was agreed as under:

"50% advance with work order latest by tomorrow 25% part-payment on or before 15th January. Balance within 30 days of completion of event"

3. On 29th December, 2018 the Billing Department of the defendant prepared a draft written Agreement describing the agreed scope of infrastructure and services, but proposed the different timing of payment viz:

"50% of service fee at start of work without GST 25% of service fee with our GST after deliverables are confirmed by related government authorities (encompass client (UP Financial corp.) Balance payment after completion of complete project amount to encompass from UPFC."

4. The plaintiff protested to the unilateral variation in the timing of payment by the Billing Department of the defendant as the contract between the parties already stood concluded. Discussions were again held between the plaintiff and the Authorized Representative of the defendant over the telephone on 01stJanuary, 2019 and the payment schedule as agreed on 27th December, 2018 was reaffirmed and reiterated. The defendant consequently withdrew the draft Agreement, and the parties did not sign the said Agreement.

5. The Purchase Order No. DOPO18120145 dated 31st December, 2018 was sent by the Billing Department of the defendant to the plaintiff on 3rd January, 2019 for the purpose of preparing the invoice and payment of GST. Since, this Purchase Order was prepared on 31st December, 2018 i.e. prior to the telephonic conversation between the parties on 01st January, 2019, it contained the payment term as was proposed in the draft Agreement. At this stage it was agreed and understood between the parties that the payment terms as agreed in the e-mail annexed dated 27th December, 2018 and as reiterated and agreed by the parties on 01st January, 2019 shall be binding on the parties. The plaintiff successfully executed his contract and 'Pravasi Bhartiya Divas-2019' was successfully held from 21st January, 2019 to 23rd January, 2019 at Varanasi, Uttar Pradesh. The plaintiff on the request of defendant supplied additional infrastructure and services at the agreed cost of ?57,23,000/- inclusive of GST. The services were duly accepted and utilized by the defendant without any complaint about any deficiency in service or defective goods. However, the defendant has failed to make complete payment and the plaintiff has received only ?7,50,00,000/- till 19th February, 2019. The plaintiff thus, filed a suit for recovery of ?7,11,99,507/- and claimed pendent lite and future interest @ 24% per annum.

6. The plaintiff in its application has asserted that the defendant does not have any real prospect of successfully defending the claim of the plaintiff. It is asserted that whatever may have been the Contract between the defendant and the NRI Department, State of U.P, the same is not binding on the plaintiff, as he was not a party to the same.

7. The plaintiff has filed a communication dated 11thNovember, 2019 from State of Uttar Pradesh informing that defendant has been paid ?19,32,37,231/-. The claim of the plaintiff is only for ?12,98,00,000/- and ?57,23,000/- (for the additional work).