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Explanation.-Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence is, in itself, equivalent to speech.”

41. “Misrepresentation” is separately defined in Section 18 of the Contract Act, as follows:

“18.“Misrepresentation” defined.— “Misrepresentation” means and includes— (1) the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true; (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.”

Nothing in the sub-section shall affect the provisions of section 111 of the Indian Evidence Act, 1872 (1 of 1872).”

44. A perusal of the definition of the word “fraud”, as defined in Section 17 of the Contract Act, would reveal that the concept of fraud is very wide. It includes any suggestion, as a fact, of that which is not true, by a person who does or does not believe it to be true. It may be contrasted with Section 18(1) of the Contract Act which, inter alia, defines “misrepresentation”. It provides that it is misrepresentation if a positive assertion is made by a person of that which is not true in a manner which is not warranted by the information which he has. This is despite the fact that he may believe it to be true. In other words, in fraud, the person who makes an untruthful suggestion, does not himself believe it to be true. He knows it to be not true, yet he makes a suggestion of the fact as if it were true. In misrepresentation, on the other hand, the person making misrepresentation believes it to be true. But the law declares it to be misrepresentation on the basis of information which he had and what he believed to be true was not true. Therefore, the representation made by him becomes a misrepresentation as it is a statement which is found to be untrue. Fraud is committed if a person actively conceals a fact, who either knows about the fact or believes in the existence of the fact. The concealment must be active. It is here that mere silence has been explained in the Exception which would affect the decision of a person who enters into a contract to be not fraud unless the circumstances are such that it becomes his duty to speak. His silence itself may amount to speech. A person may make a promise without having any intention to perform it. It is fraud. The law further declares that any other act fitted to deceive, is fraud. So also, any act or omission, which the law declares to be fraudulent, amounts to fraud. Running as a golden trend however and as a requirement of law through the various limbs of Section 17 of the Contract Act, is the element of deceit. A person who stands accused of fraud be it in a civil or criminal action, must entertain an intention to commit deception. Deception can embrace various forms and it is a matter to be judged on the facts of each case. It is, apparently, on account of these serious circumstances that fraud has on a legal relationship or a purported legal relationship that the particulars and details of fraud is required if pleaded in a civil suit or a proceeding to which the CPC applies.

49. In regard to a case based on acquiescence, the High Court of Madras has also spoken of the need for specific plea [See (1991), Labour and Industrial Cases, Page 40].

50. Applying the principles of law to the facts of our case, we would think that there is no sufficient pleading in regard to fraud. The allegation as to undue influence is totally without any basis in the pleading.

51. The VSS, if availed of by an employee voluntarily, amounts to a contract. This Court, in Bank of India and others v. O.P. Swarnakar and others10, was dealing with the case of voluntary retirement scheme floated by the bank. A question arose as to whether the scheme was an offer or an invitation to treat. After elaborate consideration of the scheme, the Court took the view that having regard to the facts, in particular, the fact that the bank reserved its right to accept or reject the application, the scheme was an invitation to treat. The application made by the employee amounted to an offer and a contract emerged only if the application was accepted by the bank. It was only when the offer of the employee was accepted, it became an enforceable contract, it was held. This aspect assumes significance in the light of the fact that the concept of fraud, undue influence and misrepresentation as defined in the Contract Act, would be apposite in the context of the Scheme giving rise to an enforceable contract. THE EVIDENCE BEFORE THE LABOUR COURT