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17. On the remaining issues, the learned arbitrator held thus:

18.1 Qua Issue 4 18.1.1 Issue 4 addressed the question of whether the Term Sheet constituted a valid and binding contract. Zostel contended that the Term Sheet was a binding and valid contract, whereas Oravel, relying, inter alia, on the preambular recital in the Term Sheet, submitted that it was not binding and was merely exploratory.

(v) provided the consumer data of Oravel to Zostel.

18.1.3 "Without expressing any opinion or the consequences of the (said) act (which was subject matter of other issues)", the learned Arbitrator observed that, had the Term Sheet not been binding, there was no reason for Oravel to have entertained communications from Zostel, informing it of performance of the above acts. Following this discussion, the learned Arbitrator held that "the parties were acting upon the Term Sheet and the Term Sheet (was) a binding document".

A perusal of the pleadings and evidence placed on record, shows that the Claimant perform part of its obligations under the Term Sheet as instructed by the Respondent. The said obligations were performed in compliance of the Term Sheet which was binding on the parties (as failed in Issue No. 4) and were not gratuitous acts. There is no document on record which shows that the Respondent instructed Claimant No. 1 at any stage, to stop taking steps towards fulfilment of the obligations stipulated under the Term Sheet. In fact, Communications placed on record show that the Respondent was instructing and coordinated with Claimant No. 1 regarding various aspects of the transaction. This Tribunal holds that Claimant No. 1 carry out all facts within its control to consummate or the transactions contemplated in the Term Sheet and fulfil the obligations stipulated under the Term Sheet as instructed by the Respondent. The Claimant cannot be held responsible for the obligations that could not be fulfilled due to lack of instructions on the part of the Respondent or due to complications that arose due to the dispute raised by the Respondents minority shareholder, Venture Nursery."

It is clear that Definitive documents could not be executed because of a problem created by the shareholder of the Respondent (Venture Nursery); the Term Sheet is a binding document and parties were acting on it; some of the pending obligations could not be carried out due to lack of instructions from the Respondent; the Respondent has committed a breach of its obligations under the Term Fee and the Claimant did everything within its control to complete its obligations under the Term Sheet. Thus the Claimant cannot be held responsible for the accident omissions of the Respondent and/or its shareholders by virtue of which sum of the obligations under the Term Fee could not be fulfilled by the Claimant. Hence, the Claimant is entitled to Specific Performance of the Respondents obligations. However, as Definitive Agreements had yet to be executed, the Tribunal holds that the Claimant is entitled to take appropriate proceedings for Specific Performance and execution of the Definitive Agreements as envisaged for itself and its shareholders under the Term Sheet."