JUDGMENT :

Harish Tandon, J.

1. Although an application under Section 9 of the Arbitration and Conciliation Act, 1996 filed by the appellant has been dismissed solely on the ground that the Memorandum of Understanding entered into between the parties is not a contract and, therefore, not a legally binding document, the respective Counsels appearing before us have digressed from the said point and argued the other points having a larger impact in relation to dealing with an application under Section 9 of the said Act, before the Commercial Court. The parties restricted the arguments on the nature and construction of the Memorandum of Understanding, in pursuit of understanding whether it is a concluded contract or mere signifying the intention of the parties to enter into further agreement.

2. Before we proceed to decide the points urged before us it would be profitable to adumbrate the salient facts discerned from the respective pleadings of the parties which, in our opinion, are more or less undisputed.

3. The respondent claimed absolute right, title and interest in respect of Flat no. 3702 measuring 5318 square feet on 37th floor in tower 2 along with two car parking space in establishing NRI Complex situated at 783, Urbana NRI Complex, Anandpur, Kolkata. The said flat was in possession of a HUF through its Karta allegedly as a licensee on permission of the respondents for a period of 11 months which has admittedly expired. The said alleged permissive occupant filed Title Suit no. 114 of 2021 against the respondent and obtained an ad-interim order of injunction restraining from creating any disturbance in peaceful possession and from dispossession without due process of law. It is undisputed that the said order of injunction is still operative as the suit is pending. Subsequently, the parties herein entered into a MoU on March 2, 2021 containing a stipulation that the Respondent no. 2 shall sell, transfer and convey the said property in favour of the appellant for the total consideration of Rs. 5 crores. The said MoU obligated the appellant to conduct and take care of the pending litigation between the respondent and the said alleged permissive occupant and all expenses would be treated as a part of the consideration. However, it is also contained in the said agreement that a sum of Rs. 50 lakhs would be paid after vacating the injunction passed in the Title Suit no. 114 of 2021 and a fresh agreement for sale/transfer shall be entered into by and between the parties. The respondent subsequently cancelled the agreement on various allegations including that the appellant has not performed his obligation under the said MoU which raises a dispute and in view of the arbitration clause having incorporated in the said MoU, the appellant invited the respondent to refer the disputes to the arbitration. Pending reference, the approach is made to the Court with an application under Section 9 of the said Act seeking interim measures by way of injunction restraining the respondents from selling, transferring, encumbering, and/or dealing with the property with the 3rd party pending the dispute to be resolved through arbitration.

4. As indicated above, by the impugned order the Trial Court dismissed the application under Section 9 of the Arbitration and Conciliation Act primarily on the ground that the moment one of the terms incorporated in the said Memorandum of Understanding contemplates further agreement for sale to be executed, it is not a concluded contract and, therefore, has no binding efficacy. The respective Counsels urged several points including the point decided in the impugned order pertaining to the nature and the construction of the said Memorandum of Understanding. The Counsels are at variance as to whether the said MoU reduced on a paper without the requisite stamp duty to be levied thereupon can be acted upon by the Court even at the stage of the interim measures contemplated under Section 9 of the said Act. The Counsels are a