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2009 (11) TMI 517 - HIGH COURT OF PUNJAB AND HARYANANovation of contract - suits for recovery - winding up - Held that:- This appeal is liable to be dismissed. The appellant-company has made much hue and cry about novation of contract in pursuance of e-mails exchanged between the parties on 9-5-2006, 10-10-2006, 11-10-2006 and 6-12-2006 (R2 to R4) but the e-mails cannot constitute any concluded contract and could not be accepted as novation of the written loan agreement dated 15-4-2005 and memorandum of understanding dated 31-8-2006 (R3), especially when in the loan agreement dated 15-4-2005, which is accompanied by an agreement of pledge, dated 15-4-2005 (P5) and the deed of guarantee, dated 15-4-2005 (P6), there is a specific clause 12.5, which reads as under:— "12.5 Variation.—No variation of this agreement shall be binding on any party unless such variation is in writing and signed by each party." (emphasis added). In view of the aforesaid prohibition, the appellant-company cannot assign their obligation by substituting the shares of another company for discharge of its liability. Moreover, it is not firstly possible to record a finding that a "concluded contract" had ever come into being because there is no "acceptance of proposal" to substitute the loan in consideration of allotment of shares. No concluded contract by the managing director or the directors of the company could come into being unless resolution of the company on that score was passed. No such resolution having been placed on record, no conclusion could be reached that a concluded contract has come into being. Appeal dismissed.
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