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On the same day, the Jhansi Office sent a telegram to the Jalna Office in the following terms:

"Yours twentieth. Refer qur wire nineteenth also oar letter one six two nineteenth. Do not debit our account."

A perusal of the telegrams reproduced above shows that on the 12th of June, 1950 the plaintiffs had taken the positive stand that they had been defrauded and on the 17th June, 1950 they definitely wanted their money back on the ground that they had been defrauded. From the statement of Lachhi Ram it is clear that on 13th June, 1950, he was informed by the Jhansi Branch of the Central Bank that payment to Sri Chand had been withheld. Section 19 of the Contract Act does not require that an agreement shall be rescinded in a particular form and all that Section 66 provides for is that the rescission of a voidable contract may be communicated or revoked in the same manner, and subject to the same rules, as apply to the communication or revocation of a proposal. Section 4 of the Contract Act provides that the communication of a revocation is complete as against the person who makes it when it is put into a course of transmission to the person to whom it is made so as to be out of the power of the person who makes it and as against the person to whom it is made, when it comes to his knowledge. In my judgment, the Central Bank was the agent of Sri Chand. The reasons why I have come to that conclusion are set out in a later part of this judgment while dealing with the question of notice under Section 86 of the Indian Trusts Act. Inasmuch as the Central Bank was the Agent of Sri Chand and the former had been informed by the plaintiffs that they had been defrauded and the sum of Rs. 15,000/- should not only be withheld from Sri Chand but should be paid back to them, they had in effect informed the Agent of Sri Chand about rescission of the contract on the 12th, 13th and 17th June, 1950. Consequently, I am unable to hold that the contract had not been rescinded by the plaintiffs before July 27, 1950.

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."

(Underlined (here in ' ' ) by me). As I read the section, it gave the plaintiffs the right either to treat the contract as void or to affirm it if they thought fit to do so. It would be noticed that under this section no rights have been conferred on the person who practises fraud. The rights that have been conferred are upon the person who has been cheated or deceived. All that the 'legislature intended to provide for was that whereas the person defrauding would have no rights under the agreement if rescinded, the person defrauded could either treat the agreement as void or affirm it. An agreement can be affirmed either by the positive act of declaring it as such or by the passive act of not declaring it void and by purporting to act under it. In other words "Whenever one party to a contract has the option of annulling it, the contract is voidable; and when he makes use of that option the agreement becomes void". (See Pollock and Mulla: Indian Contract Act, Edn. 6, p. 365).

29. Under Section 17 of the Contract Act fraud means and includes a promise made without any intention of performing it. Under Section 19 of that Act when consent to an agreement is caused by fraud, as here the agreement is a contract voidable at the option of the party whose consent was so caused. The contract between the plaintiff and Sri Chand was accordingly voidable and not void. Authority is all one way for the view that if a buyer purchases and obtains delivery of goods under pretence of a promise to pay but with a preconceived design of never paying for them, the contract for sale of goods is voidable and not void Ferguson v. Carrington, (1829) B and C 59; Load v. Green, (1846) 15 M. and W. 216;. Clough v. London and North Western Ry. Co., (1871) 7 Ex 26: Donaldson v. Farwell, (1876) 23 Law Ed 993, Tholasiram v. Duraji, 15 Mad LJ 375). And it cannot be otherwise when the victim of farud is the buyer. If a buyer pays some money in exchange of the promise of the seller to deliver goods which he has no intention to perform, the contract would be voidable only. Fraud voids a contract when the mind of the defrauding party and of the defrauded party cannot be said to have met as in a case of impersonation (Cundy v. Lindsay, (1878) 3 AC 459) but the case before us is not of that kind.

32. In my opinion the contract between Sri Chand and the plaintiff is not void but voidable. A voidable contract is binding and efficacious until avoided by the party defrauded either by repudiating it or by obtaining a judicial rescission of it. In view of Sections 66 and 4 of the Contract Act the repudiation to be effective must be communicated to the other party. In this case there is no evidence to show that the plaintiff had repudiated the contract to the knowledge of Sri Chand before July 27, 1950, on which date the application for adjudging him insolvent was made. The contract accordingly stood valid and operative on that date and would pass property in the money to Sri Chand subject of course to what is to be stated later. Oakes v. Turauand and Harding, (1867) 2 HL 325, Reese River Silver Mining Co. Ltd. v. Smith; (1869) 4 HL 64; United Shoe Machinery Co. of Canada v. Brunet, 1909 AC 330.