Mr. Navin Chawla, the learned counsel appearing on behalf of the respondent, on the other hand, would contend that the memorandum of understanding dated 25.5.06 would not indicate that by reason thereof, a binding contract had come into being. The learned counsel urged that the subscription agreement merely shows a figure of 5250 being the subscriber base, subject, however, to a joint survey and adjustment from the amount paid by the respondent to the petitioner. It was submitted that the petitioner had failed and/or neglected to examine its officials who had participated in the joint survey. Our attention has further been drawn to the fact that neither the said MoU nor the purported affiliation form constituted an agreement. Mr. Chawla would argue that the conduct of the parties would clearly go to show that the said memorandum of understanding was arrived at subject to a joint survey and subject to adjustment which would be evident from the fact that until August, 2006, the respondent did not make any payment but despite the same the petitioner neither approached this Tribunal nor disconnected the supply of signals of its own. The learned counsel points out that there was absolutely no reason as to why the petitioner would not file the present petition when, until June, 2006, if the respondent had failed to make any payment. The learned counsel would contend that the aforementioned stand by the respondent had not only been raised in various letters being dated 27.1.07 and 26.2.07 but also in its rejoinder to the reply filed by the petitioner herein in the aforementioned petition No. 47(C) of 2006. It was urged that the respondent is entitled to introduce independent evidence despite the said purported memorandum of understanding dated 22.5.06 in terms of Proviso 3 and 4 appended to Section 92 to the Indian Contract Act, 1872. The learned counsel has furthermore drawn our attention to that part of the pleading wherein it had been averred that the respondent, keeping in view the conduct of the petitioner had no other option but to sell its network to M/s Bodhan itself at the instance of the petitioner and parties had arrived at a full and final settlement.
