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5 AIR 1998 SC 2216 6 (1999) 1 SCC 1 7 Appeal (Lodging) No. 464 of 2014 8 (1999) 5 SCC 77 app.564.15.doc

7. At the outset, we would like to consider, what was the plaintiffs case? Was the concluded contract sought on the basis of the unsigned MOU (Exhibit `O') purportedly finalized in the Meeting of 1 st February, 2005 or was it based on the correspondence, i.e. exchange of emails between the plaintiffs and the defendant, in particular, emails dated 19th and 20th December, 2014? and whether now, in a suit for specific performance, the plaintiffs can be permitted to fall back and enforce an alleged antecedent contract based on emails, when infact, the prayer is for declaring concluded contract on the basis of the unsigned MOU (Exhibit `O') to the plaint? In order to decide the said controversy, we would like to refer to the prayers in the plaint. The substantive prayers sought by the plaintiffs in the plaint are :

"(a) this Hon'ble Court be pleased to declare that the concluded contract in terms of the unsigned MOU being Exhibit 'O' to the Plaint, arrived at between the plaintiffs and the Defendant is valid and subsisting and binding on the Defendant;

(b) the Defendant be ordered and decreed to specifically perform the said concluded contract contained in terms of the unsigned MOU being Exhibit 'O' to the Plaint and for the said purpose do all acts, deeds and things and execute all necessary documents, papers, applications etc.;

The question before us, is what was intended by the parties? Was the execution of the MOU only meant to formalize the agreement already app.564.15.doc arrived at between the parties, on the basis of the correspondence i.e. exchange of mails, more particularly, emails dated 19 th and 20th December, 2004? Or as contained in the unsigned MOU (Exhibit `O') purportedly finalized in the Meeting of 1st February, 2005? Or whether the parties had agreed to bind themselves only by a signed contract/MOU and all further obligations were to be complied with only after the signing of the said contract/MOU?

2) were present and that the terms of the MOU were discussed in detail. He relied on the evidence of DW 1 and his cross-examination thereon, with respect to the handwritten notations made on the draft MOU by DW 1, at the meeting. Learned Senior Counsel further submitted that DW 1 was attempting to prevaricate, by distancing himself from the finalization of the terms of the MOU arrived at, in the meeting of 1 st February, 2005. He submitted that PW 1 had in his evidence deposed that each of the points app.564.15.doc with respect to the MOU were discussed and finalized at the meeting and that the said evidence has gone unchallenged. He further submitted that based on the discussions, changes were incorporated in the draft MOU, which was forwarded by the Plaintiffs' Solicitor by email dated 8 th February, 2005 to Mr. Sirsalewala and that no communication/email was received from the defendant/DW 1/Mr. Sirsalewala, indicating that they had any objection to any of the clauses. He thus submitted that the documents and evidence on record shows that there was a concluded contract in terms of the unsigned MOU.