REVATI MOHITE DERE, J.

1. This appeal is directed against the judgment and order dated 9th June, 2015 passed by the learned Single Judge of this Court in Suit No. 603 of 2005 by which the appellants’ suit came to be dismissed. The two short questions that essentially arise for consideration in the present appeal are:-

(i) Whether or not there was a concluded contract in terms of the correspondence exchanged by emails between the appellants/plaintiffs and the respondent/defendant, in particular, emails dated 19th and 20th December, 2004?

(ii) Whether the unsigned Memorandum of Understanding (MOU) which is at Exhibit ‘O’ to the Plaint could be said to be a concluded contract and as such valid, subsisting and binding on the respondent/defendant?

2. For convenience, hereinafter, the appellants will be referred to as plaintiffs and the respondent as the defendant.

3. Few facts which are necessary to decide the said controversy are as under:-

The plaintiffs were looking to buy a flat at Nepean Sea Road/Malabar Hill area in or around August 2004. Accordingly, the plaintiffs’ broker one Mr. Jayesh Shah informed the plaintiffs that a flat belonging to the defendant was available for sale and that he could arrange for a meeting with the broker/representative of the defendant. Pursuant thereto, a meeting was arranged at Hotel President at Mumbai in or about August 2004, where the Plaintiffs met Mr. Jayesh Shah-the Plaintiffs’ broker, one Mrs. Villoo Kapadia the defendant’s sister and Mr. Salim Merchant-defendant’s broker. At the said meeting, as the plaintiffs expressed their desire to purchase the property being Flat No. C-32, 3rd Floor, Darshan Apartments, Malabar Hill Co-operative Housing Society, Mount Pleasant Road, Mumbai (hereinafter referred to as ‘the suit flat’ for the sake of brevity), the defendant’s sister - Mrs. Villoo Kapadia gave the plaintiffs, the email address of the defendant and her husband, who were residing in Canada at the relevant time. Pursuant thereto, correspondence was exchanged between the plaintiffs and the defendant (through her husband Mr. Jamshed Modi) via emails. Through the emails, the price for purchase of the flat was negotiated and the parties mutually agreed on a price of Rs. 3.33 crores. The plaintiff No. 1 by his email dated 19th December, 2004 (Exhibit ‘P-1’) offered to buy the suit flat for Rs. 3.33 crores and the said email was acknowledged by the defendant through her husband by an email dated 20th December, 2004 (Exhibit ‘P-2’). In the said email, the defendant’s husband expressed his happiness upon having reached an agreement on the price. By the very same email, the defendant also agreed to give possession of the suit flat to the plaintiffs, by the end of February, 2005.

Thereafter, a series of emails were exchanged between the parties i.e. the plaintiffs and the defendant, with respect to the modalities for completing the said transaction. The plaintiffs emailed a draft Memorandum of Understanding (“MOU”) to the defendant in terms of the alleged concluded agreement for sale of the suit flat. The plaintiffs asked the defendant to go through the said MOU and to make track changes in it, if required.

Thereafter, the defendant and her husband flew down from Canada to India. A meeting was held on 1st February, 2005 at the plaintiffs’ residence, which was attended by the defendant, her husband Mr. Jamshed Modi, Mr. Rakesh Sirsalewala (Tax advisor of the defendant and her husband), the Plaintiffs, their family members and their solicitor Mr. Shriraj Dhruv. At this meeting, the defendant and her husband had brought a copy of the draft MOU, sent by the plaintiffs, with certain track changes made in it. All the terms and conditions stipulated in the draft MOU (Exhibit ‘O’) were discussed and finalized between the parties, including that the plaintiffs would pay 10% of the price as earnest money to the defendant, instead of keeping the same in escrow. In the said meeting, the defendant informed th