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31. Mr.Mudholkar, learned counsel for the society invited my attention to various provisions of the development agreement and also the undated MOU executed by and between the parties. He submits that under both these agreements, the appellant was not a financier as sought to be canvassed by the appellant but had undertaken to carry out construction in respect of various portion of the suit property. In support of this plea, learned counsel also invited my kvm ARA17.15 attention to various paragraphs of the application filed by the appellant under section 9 of the Arbitration Act before the learned Principal District Judge. He submits that the arguments now advanced by the learned senior counsel for the appellant that the appellant was not required to carry out any construction activities in respect of part of the suit plot is concerned is totally contrary to the provisions of the development agreement and the MOU and also contrary to their own pleadings before the learned Principal District Judge in the application filed under section 9 of the Arbitration Act.

62. A perusal of the pleadings filed by the appellant and also the notices invoking arbitration agreement and from the arguments urged by the learned senior counsel for the appellant it is clear that the appellant proposes to seek specific performance not only of the development agreement but also undated MOU. It is also the case of the appellant that the appellant has acted upon the said undated MOU also and has paid various amounts under the said agreement.

64. In my prima facie view, since the appellant had proposed to claim specific performance of the development agreement with the said undated MOU and since the said MOU contemplates execution of various further agreements which were to be executed after negotiations and settlement of various terms, the said MOU is an agreement to enter into various agreements and thus cannot be specifically performed. In my prima facie view, since the original of the said MOU was to be handed over in escrow to an escrow agent till all such agreements contemplates under the said MOU were executed, it indicates that the said MOU was not a concluded and final agreement.