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Then there is a further non-disclosure of the fact that old Yamuna Bridge was closed from 18.01.2013. These important facts should have been disclosed in the Tender documents to enable the bidders to take considered decision before bidding. Even on 27.06.2014 during the cross-examination of Mr. Naveen Mishra, an opportunity was available to the Respondents to explain the reasons for not incorporating the relevant facts in the Contract Agreement but the Project Director of Respondents failed to take the benefit of the said opportunity. These misrepresentations and conscious omissions on the part of Respondent before entering into a Contract dated 07.03.2013 makes the Contract voidable at the option of Claimant. Even otherwise as per rule-3 the Collection of toll was impermissible in view of the fact that the 1.7 Km portion of road was incomplete. The Respondent being a statutory agency is expected to adhere to the same standards of fairness and circumspection as would be expected in Contracts directly entered into by the State or by public Sector Undertakings, especially when there is inequality of bargaining power as in the present case. It is settled law that the instrumentality of State is expected to act in all fairness even in the Contractual matters, it cannot act as the merchant of Venice. Therefore, the principle laid down in the catena of judgements and more particularly in the case of United India Insurance Co. Ltd. v. Manubhai Dharmasinbhai Gajera [(2008) 10 SCC 404] would in my opinion, squarely apply with equal force to the conduct of the Respondent herein, being a statutory agency in the present case, hence, in the light of above, the Issue Nos. 2 and 3 are decided accordingly in favour of the Claimant and against the respondent.‖

20. The above shows that the learned arbitrator has noted a number of facts on the basis of which he has come to the conclusion that the contract was voidable at the option of the respondent. A finding is also recorded that under rule 3 of the National Highways Fee (Determination of Rates and Collection) Rules, 2008, the collection of toll was not permissible in view of the incomplete highway.

21. Regarding the finding recorded that the contract is voidable at the option of the respondent, I may look at the statutory provisions.

(2) any breach of duty which, without an intent to deceive, gains an advantage of the person committing it, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him;

(3) causing, however innocently, a party to an agreement, to make a mistake as to the substance of the thing which is the subject of the agreement.‖ ―19. Voidability of agreements without free consent.--When consent to an agreement is caused by coercion, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused.

Explanation.--A fraud or misrepresentation which did not cause the consent to a contract of the party on whom such fraud was practised, or to whom such misrepresentation was made, does not render a contract voidable."

23. Hence, a fraud takes place where somebody leads a man to suffer damages by willfully or recklessly causing him to believe and act on falsehood. It is a fraud, if a party makes representations which he knows to be false and injury ensues whereon. Reference in this context may be had to the judgment of the Supreme Court in Venture Global Engineering LLC v. Tech Mahindra Ltd. & Anr., (2018) 1 SCC 656.