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WHETHER IPLA IS A CONCLUDED CONTRACT OR A DRAFT

102. The learned Arbitrator took notice of the fact that the Claimants (Respondents-herein) had deliberately filed the document titled "Agreed Principles" separate from the IPLA despite the fact that the document titled "Agreed Principles"

referred to the draft IPLA as an enclosure. It was observed that the Appellants-herein had in fact filed the "Agreed Principles" along with the entire bundle of enclosures which included the note(s) of Deloitte Haskins and Sells (DHS) and the IPLA. The conduct of the Claimant (Respondents-herein) was chastised by observing that the apparent reason for suppressing the two attachments to the Agreed Principles was that if they were produced they would support the case of the Appellants-herein that the IPLA was a mere draft which was enclosed along with the document titled 'Agreed Principles' and would militate against the stand of the Claimant (Respondents-herein).

107. It was held that the question was not whether the blank spaces in the agreement and absence of annexures were with reference to material terms or not. In the view of the learned Arbitrator, such facets probabalised the conclusion that the document was a mere draft, especially in light of the fact that the agreed principles described it as a draft IPLA. Jdk/pdp 80 jt-comap-315, 314 & 316 -19.doc

108. With regard to the circumstance that the parties had appended their full signatures on the last page of the disputed document along with their initials, it was observed that the explanation tendered by Mr. Mehra in his evidence that he merely followed the suit and appended his signatures following Dr. Wobben, merited acceptance.

109. The correspondence and conduct of the parties subsequent to the execution of the Agreed Principles on 30.09.2006 were also taken into consideration to fortify the conclusion that the disputed document was a mere draft. The learned Arbitrator referred to an email dated 18.10.2006 sent by Ms. Fritsch Nehring to Mr. Mehra wherein she stated that that the IPLA was in consonance with the Agreed Principles and any amendment of IPLA was not required. It was observed that if the IPLA had been already executed as a concluded contract, there was no requirement for Ms. Fritsch Nehring to persuade Mr. Mehra that the amendments to IPLA in terms of Agreed Principle was Jdk/pdp 81 jt-comap-315, 314 & 316 -19.doc not required.

(emphasis supplied) Jdk/pdp 156 jt-comap-315, 314 & 316 -19.doc ...

124. Mr.Mehra, on the other hand, testified that, it having been decided between himself and Dr.Wobben that "the draft IPLA required amendments", the Agreed Principles were intended to reflect the changes which would have to be made in that document as well as the other agreements yet to be finalised. He denied that he had brought a draft of the Agreed Principles: "maybe I had my points with me, but this document was very clearly typed on the computer in the Bremen Hotel."