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Showing contexts for: MOU Contract in Narinder Kumar Malik vs Surinder Kumar Malik on 4 August, 2009Matching Fragments
20. Appellant, feeling aggrieved and dissatisfied with the aforesaid direction contained herein, has preferred this appeal.
21. Ms. Indu Malhotra, learned senior counsel appearing on behalf of the appellant contended that in the MOU a specific date was fixed for payment of balance consideration by or before 09th July 2005 and respondent having failed to honour his commitment by the said date and time being the essence of the contract, MOU could not have been directed to be implemented by the High Court.
30. The respondent sent the photocopies of three pay orders two of which were for a sum of Rs.1 crore each and the third one for a sum of Rs.1.25 crore. It was neither here nor there as the originals were never tendered to the appellant and only photocopies were sent to make a semblance that respondent has been ready and willing to perform his part of the contract. When MOU had already been arrived at between the parties then mere show of readiness and willingness would not discharge the obligation resting on one of the parties unless it is shown to be real and genuine.
31. From the conduct, behaviour and attitude of the respondent it is clearly made out that he had not been ready and willing to perform his part of the contract as mentioned in the MOU.
32. Ms. Indu Malhotra, learned senior counsel for the appellant has placed reliance on a judgment of this Court in the case of Star Construction and Transport Co. & Ors. v. India Cements Ltd. (2001) 3 SCC 351 and laid emphasis on paragraph 7 thereof which reads thus :
9. Mr Ranjit Kumar, learned Senior Advocate contended that in view of the MOU signed by the parties the original contract stood substituted by the MOU and it is a fit case where Section 62 of the Indian Contract Act can be invoked. We have already said that there was no concluded settlement or novation. Even otherwise, there has been non- compliance with the terms and conditions of the MOU by the respondents and a party in breach can hardly seek to enforce a contract. Therefore, the MOU does not amount to novation of contract as envisaged under Section 62 of the Indian Contract Act. The contention of Mr. Ranjit Kumar is, therefore, legally untenable."