1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1539 OF 2008 IN SUIT NO. 1683 OF 1984 Kishor Karsandas Tejura ...Plaintiff Vs. Paul Vaz (Since deceased) & Ors. ...Defendants Mr. D.D. Madan, Senior Counsel a/w Mr. Zal Andhyarjuna i/b. Malvi Ranchoddas & Co., for Plaintiff Mr. R. Narula a/w Mr. Basant Trilokani i/b. M. Jhangiani Narula & Ass., for Defendant Nos.2(a) to 2(g) & 3. CORAM: SMT.ROSHAN DALVI, J. DATED: 5TH JUNE, 2008 P.C. 1. The parties agreed by consent to refer the suit to arbitration under Minutes of the Consent Order dated 20th December, 2007. Until then, the Plaintiff was not informed that the Defendants had transferred the suit property to a third party. The Plaintiff agreed to refer the suit to arbitration without knowledge of the transfer of the suit property. The Plaintiff would be required to sue that party in the Suit. The Plaintiff would not be able to sue that party in 2 the Arbitration Proceedings. The Plaintiff' s rights would be severely prejudiced in the Arbitration Proceedings consequent upon the information about the transfer not being furnished to the Plaintiff. 2. The Plaintiff claims that such suppression of material fact amounts to fraud. Consequent upon such fraud, the agreement of the Plaintiff, to refer the suit to Arbitration, becomes voidable at his option. The Plaintiff has sought to avoid such agreement to refer the matter to arbitration. 3. Mr. Narula on behalf of the Defendants, after taking instructions from the Defendants, states that the agreement to refer the suit to arbitration may, to that extent, be rescinded and the parties shall continue the suit. 4. The suit shall, therefore, proceed. The other clauses of the Consent Order dated 26th December, 2007 shall remain. 5. Notice of Motion is disposed of accordingly. (SMT. ROSHAN DALVI, J.)