Govinda Menon, J.- These two appeals arise under the provisions of the Indian Arbitration Act from the orders of the Subordinate Judge of Vizagapatam, allowing O.P. No. 36 of 1946 and dismissing O.P. No. 24 of 1936 on his file. The appellant had entered into three contracts with the contesting respondent for the sale of groundnut and though the contracts themselves have not been exhibited in the court below, the specimens have been admitted by consent of parties in order to know the nature of the agreements. The first contract related to the sale of 500 bags of groundnut and is dated 23rd August, 1945, at the rate of Rs. 20-12-0 per bag with the stipulation that the delivery would take place in December, 1945. Towards the price, a sum of Rs. 2,500 was paid as advance. The second contract dated 26th August, 1945, related to the sale of another 500 bags of groundnut at the rate of Rs. 21 a bag with the stipulation for delivery in December, 1945 itself. As advance towards this transaction a sum of Rs. 2,500 was also paid. The third contract dated 13th November, 1945, related to the sale of 1,000 bags of groundnut at the rate of Rs. 24-12-0 a bag for which the adyance paid was Rs. 5,000 with a similar stipulation that delivery should take place in December, 1945. In all, therefore, a sum of Rs. 10,000 was paid as advance for all the three contracts for the delivery of 2,000 bags of groundnuts. The appellant also supplied 97,7 gunnies for collecting the groundnuts. In the contracts there was an agreement that in case of dispute arising between the parties regarding the performance and fulfilment of the terms of the contracts, they would be subject to the decision of the Vizianagaram Commercial Association (Registered) and such a decision would be binding on all the parties. Presumably, on account of the fact that the price of groundnut rose abnormally, during the intervening period, i.e., between the dates of the signing of the contracts and the date of their fulfilment, the contesting respondent did not act according to the terms and no delivery of groundnut bags was ever made. Presumably, on account of the fact that the price of groundnut rose abnormally, during the intervening period, i.e., between the dates of the signing of the contracts and the date of their fulfilment, the contesting respondent did not act according to the terms and no delivery of groundnut bags was ever made. The appellant therefore referred the matter to the Vizianagaram Commercial Association (Registered) which appointed the arbitrators who enquired into the matter and passed an award which was to the effect that the contesting respondent had to pay a sum of Rs. 27,672-6-4 to the appellant made up of a sum of Rs. 16,375 being the damages due on account of the non-delivery of the groundnut bags, Rs. 10,000 being the advance received by the contesting respondent under the three contracts, Rs. 600 being the cost of 977 empty gunnies which were not returned and Rs. 697-6-4 being the interest on the advance amount and the price of gunnies at 1 per cent. per mensem from 31st December, 1945, till the date of the award, viz., 18th July, 1946. O.P. No. 24 of 1946 was by the Vizianagaram Commercial Association (Registered) who appointed the arbitrators, under section 14 of the Act for filing the award and passing a decree in terms thereof. O.P. No. 36 of 1946 was by the contesting respondent for setting aside the award; and these two were tried together by the learned Subordinate Judge who, as stated above, allowed O.P. No. 36 of 1946 and dismissed O.P. No. 24 of 1946. Hence the two appeals by the aggrieved party. Various points were raised before the learned Judge of which the most important ones were whether the contracts in question were prohibited by the Oil Seeds (Forward Contracts Prohibition) Order, 1943 and if so whether the award is null and void. The lower Court’s finding on this point was against the appellant. In this Court the only serious contest between the parties related to the decision on this controversy. The lower Court’s finding on this point was against the appellant. In this Court the only serious contest between the parties related to the decision on this controversy. Though the respondent feebly attempted to question the correctness of the decision of the learned Judge regarding the validity of an award made by three members of the Vizianagaram Commercial Association (Registered) as being one made by the association itself to whom alone the reference was made, and on which point the learned Judge had found against the respondent’s contention, we do not think that there is any substantial point arising in that dispute. What is urged on behalf of the contesting respondent is that at the time the contracts were entered, into the rules of the association, to which the reference to arbitration has to be made, were to the effect that five members of the association should be appointed as arbitrators. This rule was later on altered on 24th June, 1946, by reducing the number to three. It is therefore urged that the rule which obtained at the time of the contracts should be the guiding principle and not the amended procedure. No authority has been cited before us to jsutify this contention. If, as laid down in Ram Narain Gunga Bissen v. Liladhur Lowjee1, the rules of a body to which the agreement of arbitration is referred to by the parties should be deemed to have been incorporated in the contract by virtue of the agreement of parties, then it has necessarily to be held that on a matter of procedure the relevant factors should be the rules as existing at the time of the reference and not at the genesis of the contract. The substantial argument is based upon the prohibition contained in the Oil Seeds (Forward Contract Prohibition) Order, 1943, which was first promulgated on the 29th May, 1943. Subsequently, there was a notification exempting certain kinds of contracts from the ambit of the prohibition. A forward contract is defined in section 2, sub-clause (2) of the Order as a contract for the delivery of oil seeds at some future date. In the contracts in question there is no doubt that the delivery is not eo instanti the contract itself, but is intended to take place some days or months later. A forward contract is defined in section 2, sub-clause (2) of the Order as a contract for the delivery of oil seeds at some future date. In the contracts in question there is no doubt that the delivery is not eo instanti the contract itself, but is intended to take place some days or months later. There can be no difficulty therefore in acceding to the respondent’s contention that the contracts in question are forward contracts. But the notification dated 31st May, 1943, by which certain kinds of forward contracts are excepted has also to be noticed in this connection. That notification lays down as follows: “Forward contracts for groundnuts, linseed, mustard seed, rapeseed or toriaseed of specified qualities or types and for specific delivery at specified price not transferable to third parties are excluded from the provisions of this Order.” What has therefore to be considered is whether the contracts in question fall within the exemption, namely, that if they are not transferable to third parties then such contracts are not vitiated by the terms of the Oil Seeds (Forward Contract Prohibition) Order. There have been two decisions of this Court on the subject reported in Satyanarayanamurthy v. Sitaramayya2and Seetharamaswami v. Bhagavathi Oil Co.3 Both these related to the exemption clause contained in the Vegetable Oils and Oil Cakes (Forward Contract Prohibition) Order. But the exemption is worded in exactly the same terms and therefore in both these cases the learned Judges held that unless there is a specific recital on the face of the contract itself, that it is not transferable, the contract itself will come within the mischief contemplated by the order prohibiting forward contracts. Unless it is shown that one of the terms of the contract is that a delivery order of a railway receipt or a Bill of Lading relating to it is not transferable, contracts which do not contain any stipulation as regards such documents cannot fall within the exclusion clause of the Notification. In the present case it is undoubted that there is no such clause apparent on the face of the contract or even deducible from its terms. Both the decisions abovementioned are clear in this respect and they refer to an earlier decision in Appeal No. 97 of 1948 as well as to a decision of Desai, J., of the Bombay High Court in Firm Hensraj v. Vasanji4. Both the decisions abovementioned are clear in this respect and they refer to an earlier decision in Appeal No. 97 of 1948 as well as to a decision of Desai, J., of the Bombay High Court in Firm Hensraj v. Vasanji4. It is urged before us by the learned counsel for the appellant that these decisions should not be held to lay down the correct law and that the provision regarding the non-transferability need not appear on the face of the contract but can be established by evidence aliunde. In view of the consensus of opinion oh this topic expressed by three different benches of this Court we do not think we would be justified in adopting a different interpretation. We are prepared to follow them and hold that in this case the contract in question is a forward contract. Even if such a forward contract is illegal under law still the appellant contends that the question of the repayment of the advance money and the return of the gunny bags or their value should be decided according to the terms of the contract and as such it is within the competence of all the parties to refer at least that matter along with the others to the arbitrators who have got authority to adjudicate upon that dispute and pass an award accordingly. This contention raises the question as to how far advance made on an invalid contract can be demanded back since the fulfilment of the contract is impossible under the law. Appellants’ learned counsel invites our attention to section 65 of the Indian Contract Act which is to the effect that when an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it, to the person from whom he received it. There is a dispute between the parties as to whether the contract has become void after it was entered into or whether it was ab initio void and known as such to the parties at the time it was entered into. Reliance was placed upon a number of cases for the proposition that when an agreement becomes void, the benefit arising thereunder which a party has received, must be refunded. Reliance was placed upon a number of cases for the proposition that when an agreement becomes void, the benefit arising thereunder which a party has received, must be refunded. In Auryaprabakara Rau v. Gummudu Sanyasi1, a contract for the sale of Karnam Inam lands after enfranchisement was held to be only a transfer of an expectancy and was invalid under section 6 of the Transfer of Property Act and the fact that the would-be vendor was in physical possession of the property did not make any difference in spes successionis. Therefore, a suit for refund of money advanced must be brought within three years from the date when the pronote was discovered to be void under section 65 of the Contract Act. Here was a case where the contract was discovered to be void. Recently one of us had held that when money was paid to a party regarding the assignment of a Karnam’s office, the contract itself was void from the very beginning and benefits arising under such contracts cannot be restituted. Other cases on which the learned counsel relied are Audesh Singh v. Rajeswari Singh2 where section 65 of the Contract Act had been applied; Ariyaputra Naicken v. Muttu Chetti3, where there was no illegal contract and Venkataramayya v. Pullayya4, where it has been held that in order to prevent a person who has been a party to a fraudulent transaction from pleading his own fraud, the intended fraud must have been effected, or there must have been a substantial part performance of the intention to defraud. The mere fraudulent intention evidenced by the transaction is not sufficient. There is no question of any fraud here as both the parties knew, at the time the contract was entered into, that it was illegal under the Oil Seeds (Forward Contract Prohibition) Order, 1943. Other decisions on which learned counsel relied are Raja Mohan v. Mazoor Ahmed5 and Bhaurao v. Radhabai6. We do not think that any of these cases can be of any help so far as the appellant is concerned. He further contended that since arbitrators are judges both of fact and of law, any erroneous view of law taken by the arbitrators would not vitiate the award. In this case, according to the appellant, the arbitrators, if at all, only erred. He further contended that since arbitrators are judges both of fact and of law, any erroneous view of law taken by the arbitrators would not vitiate the award. In this case, according to the appellant, the arbitrators, if at all, only erred. The rulings in Madepalli Venkataswami v. Madepalli Suranna7 and Ghulam Khan v. Muhammad Hassan8 were relied upon for this argument. In a recent decision in Venkata Rao v. Padmavalli Thayaramma9, the learned Judges held that an award was not impeachable on account of a mistake of fact vitiating the award and since in that particular case the mistake was with regard to the general law and not with regard to any private right, it could not be invoked to obtain the intervention of the Court for setting aside the award. We do not find anything helpful so far as the appellant is concerned in Appavoo Chettiar v. The South Indian Railway Co.10. But the real difficulty in this case arises from the fact that the contract was ab initio void. The leading case on the subject regarding an agreement for arbitration with regard to the contracts which have become incapable of performance, or which are ab initio void is that of the House of Lords reported in Heyman v. Darwins, Ltd.11. The law in England until then was rather fluid, but there is authoritative pronouncement on the subject in the decision above referred to. At page 366 in the speech of Viscount Simon, L.C., the following passage occurs: “If the dispute is whether the contract which contains the clause has ever been entered into at all, that issue cannot go to arbitration under the clause, for the party who denies that he has ever entered into the contract is thereby denying that he has ever joined in the submission. Similarly,. Similarly,. if one party to the alleged contract is contending that it is void ab initio (because, for example, the making of such a contract is Illegal, the arbitration clause cannot operate for on this view the clause itself also is void, But in a situation where the parties are at one in asserting that they entered into a binding contract, but a difference has arisen between them whether there has been a breach by one side or the other, or whether circumstances have arisen which have discharged one or both parties from further performance, such differences should be regarded as differences, which have arisen ‘in respect of or ‘with regard to,‘or ‘under’ the contract, and an arbitration clause which uses these, or similar, expressions could be construed accordingly.” No decision has been brought to our notice which takes a different view. In Redman’s Law of Arbitrations and Awards, Fifth Edition, at page 81, dealing with “claims that benefits forfeited”, the learned author discusses the whole subject in the following manner: “A clause in an insurance policy that all differences ‘arising out of the policy shall be referred.....and the obtaining the award of such arbitrators-shall be a condition precedent to any liability or right of action against the company’, in respect of any matter in difference is a submissicn both as to liability and amount, and it entitles the insurers to raise an issue of fraud which, under the conditions of the policy, will result in a forfeiture of all benefits thereunder, or to test the truth or untruth of statements which are the basis of the contract of insurance although on their untruth being established all benefits will be forfeited in accordance with the terms of the contract. The burden of proving that the statements are untrue lies upon the insurer.” Similarly, other observations are contained in Russel on Arbitration, Fourteenth Edition, at pages 3 and 246. The passage dealing with ‘illegal transactions’ runs as follows:- “Where the subject can be of any binding effect..... The burden of proving that the statements are untrue lies upon the insurer.” Similarly, other observations are contained in Russel on Arbitration, Fourteenth Edition, at pages 3 and 246. The passage dealing with ‘illegal transactions’ runs as follows:- “Where the subject can be of any binding effect..... Thus in Joe Lee, Ltd. v. Lord Dalmeny and others1, where the plaintiffs were book-makers and had engaged in betting transactions with the defendants upon the terms of a set of rules which provided for the settlement of disputes by arbitration, it was held that the rules formed part of the contract between the plaintiffs and the defendants, which was one of gaming and wagering and was unenforceable, and that the plaintiffs were not entitled to have the disputes submitted to the tribunal provided for in the rules. But where mixed questions of law and fact have been submitted to arbitration, and the transactions between the parties have been closed by a general award, good on the face of it, the Court will not, on the suggestion that some illegal matter has been included, enquire into this, or re-open the question, in order to set aside the award upon this ground.” At page 246 it is stated that a submission forming part of a void contract is itself void and cannot be enforced. In Velu v. Sivasooriam2 a Full Bench, to which one of us was a party, considered the question regarding the illegal nature of partnership entered into for the purpose of conducting business in arrack or toddy on a licence granted, or to be granted, to only one of them. It was held such a partnership was ab initio void, whether the contract of the partnership was entered into before the licence was granted or afterwards. Further, the decision was that a suit for the recovery of the balance of money due under a settlement of accounts in respect of such a partnership was not maintainable. There are earlier cases on the subject of other High Courts such as the one reported in Prabhu Mal v. Babu Ram3, where Shadi Lal, G.J. and Zafar Ali, J., held that section 65 of the Contract Act cannot have any application to any agreement which is ab initio void and is known to be such to the parties at the time it was entered into. Following these decisions, we have to hold that since the contract in question is ab initio void, it cannot form the basis of a reference to arbitration. Mr. Azizuddin contends that at least this Court should direct the refund of the advance paid. If there had been a suit for that amount alone in the ordinary way, without a reference to arbitration, and an application for passing a decree in terms of the award, we would have considered that question in a different aspect. But as these appeals arise only out of a refusal to pass a decree in terms of the award, we cannot therefore, in these proceedings, which are only a continuation of the proceedings in the lower Court, grant the appellant a decree for the amount. It may be that as a result of the admission made by the respondent in these proceedings that he has received the money, the cause of action might or might not arise in favour of the appellant for filing a suit. We do not wish to express any opinion on that topic. His rights, if any, will not be affected by this decision. The appeals therefore fail, but in the circumstances we dismiss both of them without any order as to costs whatever. The order of the lower Court, in favour of the respondent, directing the costs to be paid in O.P. No. 36 of 1946 is set aside. The result is, there will be no order as to costs in any of the proceedings either in the lower Court or in this Court. R.M. ----- Appeals dismissed.