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(d) If necessary, a declaration that the alleged contract dated the 4th Dec. 1970 is void, or voidable at the option or instance of the plaintiff and the plaintiff has duly avoided the same;

(e) The alleged agreement dated the 4th Dec. 1970 be adjudged void or voidable and be delivered up and cancelled;

(f) A perpetual injunction restraining the defendants and their servants, agents and assigns from making any claim or taking any or any further steps or action for enforcement of the said agreement or any alleged right thereunder as against the plaintiff;

Firstly, it has been argued that there are no averments in the plaint which, if true, would render the contract either void or voidable. According to the defendant petitioners, the misrepresentations alleged are against the respondent No. 5 who is not a party to the agreement. Therefore, it was argued that there might be a claim for damages in tort for the wrongful conduct of the respondent No. 5, It was, then, urged that even if the averments rendered the contract, in question voidable, the dispute whether the circumstances existed to make the said contract voidable was itself arbitrable under thg arbitration clause, referred to hereinbefore. Lastly, it was contended that whether there was fraud or fraudulent misrepresentation which rendered the contract void or voidable, should, if the Court think that there are allegations of facta which rendered the contract in question either void or voidable be decided on evidence, then such evidence may be considered in this application under Section 34 of the Arbitration Act. According to the learned advocate for the petitioners, the averments made in the instant case only make the contract voidable and the plaintiff has alleged that the plaintiff had avoided the contract. It did not, according to the learned advocate for the petitioners, make the contract non est in law and it ceases only from the point of avoidance. In this connection reliance was placed on several material sections of the Contract Act as well as the Specific Relief Act. I would refer to the said sections presently. But reliance mainly had been placed on certain observations of Lord Denning in the case of Mackender v. Feldia A. G. (1966) 3 All ER 847: (1967) 2 QB 596. There a jewellers' block policy insurance was negotiated, signed and issued in England by underwriters. The policy covered stock-in-trade of diamond merchants, who were three foreign companies incorporated severally in Belgium, Switzerland and Italy, against loss of their stock of jewels and precious stones. The policy contained a foreign jurisdiction clause, which provided that the policy should be governed by Belgium Law and that any dispute arising thereunder should be subject exclusively to Belgium jurisdiction. A representative of the diamond merchants had a stock of diamonds and pearls stolen from him in Naples. The underwriters discovered, so they alleged, that the diamond merchants had made a practice of smuggling diamonds into Italy. The underwriters rejected a claim by the diamond merchants for the loss, alleging, among other matters, non disclosure by the diamond merchants of their smuggling activities. The underwriters sought a declaration that the policy was void and applied for leave to serve notice of their writ out of jurisdiction. It was held by the Court that although the terms of the rules of the Supreme Court Order 11, Rule l(f) of England were wide enough to cover the case, as the policy was a contract made within the jurisdiction, and although, if the issueg were whether there had been a contract at all, viz., on a plea of non est factum, the foreign jurisdiction clause might not apply, yet non disclosure would merely make the policy voidable from the time of election to avoid it, not void ab initio, and similarly illegality under the proper law of the contract would merely make the policy unenforceable; accordingly the dispute ag to non disclosure or illegality was a dispute arising under the policy and was within the foreign jurisdiction clause, with the consequence that the leave to serve notice of the writ out of jurisdiction should be refused. Reliance was placed on this decision on the basis that on the analogy of the foreign jurisdiction clause in this case the arbitration clause survived until the contract was avoided and therefore the disputes between the parties in this case would be referable under the arbitration clause. In this connection learned advocate strongly relied on the observations of Lord Denning, M. R. at page 849 of the report to the following effect:

13. In the case of Union of India v. Benode Kumar, it appears that it was held by the Court that by purchase of the passengers' ticket there initially came into existence a contract between the railway administration and the passenger for the carriage of the latter's person. If a "half ticket" was obtained from the railway administration for carriage of an adult person, then that contract was caused by misrepresentation to the financial prejudice of the railway administration. That, however, did not make the contract void from its inception but the contract became voidable at the option of the railway administration. There as the Court found, the misrepresentation was of such a nature which made the contract voidable and as such did not make the contract non-existent or void. After discussing several authorities, the Supreme Court in the case of Union of India v. Kishorilal Gupta summarised the principles applicable to a case like this as follows: