Prakash Narain, J. ( 1 ) THIS is an application by the petitioner under Section 31 of the Arbitration Act, 1940. The facts lead- ing up to the filing of this application may briefly be stated. ( 2 ) IN 1965 the respondent was appointed as a Director-in-charge of the petitioner-company under an agreement dated 28-10-1965. The respondent worked as a Director-in-charge till 8-2-1966 and then as General Manager from 8-2-1966 to 4-6-1966 when the association between him and the petitioner-company came to an end. It was alleged by the petitioner-company that during the period that the respondent worked for it he caused loss and damage to the petitioner-company. Accordingly, by a letter dated 13-12-1967 the petitioner-company called upon the respondent to pay to it a sum of Rs. 2,30,000. 00 by way of loss and damage suffered by it. The respondent denied his liability for payment of the amount. The original agreement dated 28-10-1965 bet ween the parties contained an arbitration clause which provided that in the event of any dispute or difference at any time arising between the company and the respondent in respect of that agree ment or the other matters specified in the said agreement or with reference to anything arising out of or incidental thereto such disputes or differences shall be referred to the sole arbitration of Shri R. N. Mohlajee, Advocate, Connaught Circus, New Delhi. As the respondent disputed his liability and denied the claim of the petitioner-company, the petitioner company sought to refer the dispute to the arbitration of Shri R. N. Mohlajee purporting to act under the agreement dated 28-10-1965. Shri R. N. Mohlajee refused to act as an arbitrator and so the petitioner-company filed an application under Section 8 of the Arbitration Act, 1940 after the respondent had refused to agree in the appointment of an arbitrator. This application was registered as Suit No. 91 of 1968 in this court. In reply to the said application the respondent pleaded that there was no subsisting agreement for reference between the parties inasmuch as, inter alia, the agreement dated 28-10-1965 by which, he was appointed Director-in-charge was cancelled w. e. f. 8-2-1966 and a fresh agreement had come into existence between the petitioner company and the respondent whereby the respondent was appointed as the General Manager on fresh terms and conditions as contained in the fresh arrangement arrived at between the parties. The appointment as General Manager had nothing to do with the agreement dated 28-10-1965 which agreement had been superseded by the agreement regarding respondent s appointment as General Manager. Various other pleas were also raised contesting the claim of the petitioner made under section 8 of the Arbitration Act. My brother Prithvi Raj, J. had settled six issues in that matter. During the course of the trial there was an amicable settlement between the parties which was recorded on 20-11-1970 and with the consent of and in accordance with the statement of the parties made and record- ed in court on 20-11-1970 my brother Prithvi Raj, J. passed the following order: "in view of the statement made by the parties I accept the petition and appoint Shri S. B. Capoor. Retired Judge of Punjab and Haryana High Court as Arbitrator to decide the disputes between the parties. I fix the fee of the Arbitrator at Rs. 3000 tentatively. Let the agreement Exh. P/l be forwarded to the Arbitrator and it shall be open to the Respondent to urge his contention whether the agreement Exh. P/l has been superseded or not. Parties shall bear their respective cost of the petition. " ( 3 ) THE reference was, accordingly, made to Shri S. B. Capoor where the petitioner filed its statement of claim. The respondent repudiated the claim of the petitioner and the sole arbitrator settled the following issues on the pleadings of the parties: 1. Whether the statement of claims has been signed and verified by a duly authorised person, if not what is the effect thereof ? 2. Whether the agreement dated 28-10-1965 was entered into by the respondent on account of fraud and misre presentation of Shri B. D. . Ahluwalia ? If so, to what effect ? 3. Whether the agreement dated 28-10-1965 was aban doned and not acted upon ? 4. Whether the agreement dated 28-10-1965 was super seded by a fresh agreement dated 8-2-1966 ? 5. Whether the claim of the company is not covered by the Arbitration clause ? 6. Whether the company has suffered any loss or damage by any acts or omission by the respondent and if so to what amount ? 7. Whether the counter claim is covered by the Arbitra tion clause and can be gone into in these proceedings ? If so. 6. Whether the company has suffered any loss or damage by any acts or omission by the respondent and if so to what amount ? 7. Whether the counter claim is covered by the Arbitra tion clause and can be gone into in these proceedings ? If so. has the respondent suffered any loss or damage at the hand of the claimant company and the amount there of? 8. Relief. ( 4 ) ON 4-3-1971 the petitioner made an application under Order 14 rule 5 read with Section 151 Civil Procedure Code to the sole arbitra tor for striking out issue 2, 3 and 5 above and pleaded that the arbitrator would be acting beyond his jurisdiction in adjudicat ing upon those issues. The learned Arbitrator after hearing the parties passed the following order: ". . . . . . . I have heard arguments of the parties. The issues were framed after long discussions in the presence of the parties. The order of Hon ble Mr. Justice Prithvi Raj, dated the 20th November, 1970, by which, the Arbitrator was appointed did not exclude any contention which may be raised by the respondent in addition to his contention that agreement Exh. P/l has been superseded. So far Issue No. 2 is concerned it has been urged by Mr. S. N. Mehta that since Shri B. D. Ahiuwalia is not a party to this litigation he would have no opportunity of meeting any allegations of fraud and mispresentation , which may be made against him. If this is correct legal position then inasmuch as under this issue the effect of any such fraud and misrepresentation is also to be considered, any evidence led by the claimant in this respect will be ignored. The onus of issues 3 and 5 is on the respon dent. There is thus no force in this application which is rejected. Arbitrator March 4, 1971. S. B. CAPOOR"aggrieved by that order the petitioner has now moved this court under section 31 of the Arbitration Act and has prayed as under: ". . . . . . . . . There is thus no force in this application which is rejected. Arbitrator March 4, 1971. S. B. CAPOOR"aggrieved by that order the petitioner has now moved this court under section 31 of the Arbitration Act and has prayed as under: ". . . . . . . . . IT is, therefore, prayed that the order of reference dated 20-11-1970 requires modification and the issues 2 to 5 which were left open to be decided by the Arbitrator may be decided by the Court and it may be held that there is a valid and subsisting agreement or arbitration dated 28-10-1965 between the parties and the same has not been superseded in any manner as alleged by the respondent. It is further prayed that the order of reference may be suitably amended and modified. " ( 5 ) THIS application has also been resisted by the respondent. After the parties pleadings were placed on record the learned counsel agreed that the present petition be heard and decided on affidavits. ( 6 ) MR. B. N. Nayyar, the learned counsel for the petitioner has urged that issues 2, 3 and 5 settled by the learned sole arbitrator are beyond the scope of his jurisdiction inasmuch as the sole arbitrator cannot adjudicate upon his own jurisdiction. He contends that even if it be assumed that by their statements recorded in court on 20-11-1970 the parties had agreed to have these matters adjudicated upon by Shri S. B. Capoor such agreement merely because it has been recorded by the court does not acquire any special sanctity and if the agreement is such which could not be entered into it would be struck down. In support of this conten tion he has relied upon a Full Bench Decision of the Lahore High Court in L. Prem Parkash v. Pt. Mohan Lal, AIR 1943, Lahore 268 (1 ). The Full Bench had reiterated the well established dictum that there can be no estoppel against statute and if an agreement is found to be in contravention of a statute or against public policy a party cannot be held estopped from pleading or proving facts which would render the agreement void ab initio. The Full Bench had reiterated the well established dictum that there can be no estoppel against statute and if an agreement is found to be in contravention of a statute or against public policy a party cannot be held estopped from pleading or proving facts which would render the agreement void ab initio. That being the settled proposition of law where a decree is passed in consequence of a compromise and is a mere record of the will of the parties, it cannot be regarded to have acquired any greater sanctity than the compromise itself on the ground that it was adopted by the Judge or that the comments of the Judge had been added to it. If the compromise was void ab initio then the decree also suffers from the same infirmity to which the compromise was open or subject to. It has, therefore, to be seen whether the compromise arrived at between the parties on 20-11-1970 was void ab initio or suffered from such a legal infirmity that it could not be entered into in the eyes of law. To my mind none of the disputes covered by issues 2, 3 and 5 settled by the sole arbitrator are such which cannot be referred to arbitration, for under the law of arbitration parties are free to refer questions of fact or questions of law or mixed questions of law and fact to domestic forum of their own choice. ( 7 ) MR. Nayyar has contended that the invalidity lies in the fact that such a reference could not be made in proceedings under Section 8 of the Arbitration Act which are restricted to the appointment of an arbitrator only. According to him in a petition under Section 20 of the Arbitration Act or by a separate reference the impugned matters could be referred to arbitration but the same could not be done when the only prayer in the earlier litigation was to appoint an arbitrator in place of Shri R. N. Mohlajee who had refused to act as such. ( 8 ) REFERENCE to arbitration is made between contracting parties either under Chapter II of the Arbitration Act or by moving an application under Section 20. ( 8 ) REFERENCE to arbitration is made between contracting parties either under Chapter II of the Arbitration Act or by moving an application under Section 20. If an application is moved under Section 20 and the arbitration agreement is ordered to be filed a reference is made either in terms of the arbitration agreement or as agreed between the parties. When a reference is made or sought to be made under Chapter II and the arbitrator refuses to act it is then that the provisions of Section 8 of the Arbitration Act are attracted. At that stage a respondent is entitled to show that he did not or refused to agree in the appointment of anarbitrator for a valid reason. One of such reasons could be that reference under Chapter II of the Arbitration Act is being sought by the other party on the basis of an arbitration agreement which either does not exist or has been superseded or has been exhausted If such an objection is taken the court before appointing an arbitrator or declining to appoint the arbitrator has to come the conclusion whether there is a subsisting or existing arbitration agreement. Similar objections can also be taken in defence to an application under Section 20 of the Arbitration Act and before the agreement can be ordered to be filed the court must come to the conclusion that there is a valid existing and subsisting arbitration agreement which can be ordered to be filed. In this view of the matter the proceedings in court both under Section 8 and Section 20 would have the same field to cover if an objection is raised by the respondent that there is no occasion to appoint an arbitrator or to make a reference because there is no arbitration agreement. The proceedings being analogous there is no bar to the parties in proceedings under section 8 to concur in the appointment of an arbitrator in Court and also to concur in the scope of the arbitration proceedings. This is exactly what has been done in the present case. The parties before Prithvi Raj, agreed that Shri S. B. Capoor be appointed as a sole arbitrator and the field of the reference would be, inter alia, as covered by issues 2, 3 and 5, settled by the learned Arbitrator. This is exactly what has been done in the present case. The parties before Prithvi Raj, agreed that Shri S. B. Capoor be appointed as a sole arbitrator and the field of the reference would be, inter alia, as covered by issues 2, 3 and 5, settled by the learned Arbitrator. What the parties agreed to refer to Shri S. B. Capoor, inter alia, included the plea of the respondent that the contract dated 28-10-1965 had been superseded by a latter contract. This is a dispute which, is referable to arbitration and does not fall within the ambit of the rule that the arbitrator cannot normally adjudicate upon his own jurisdiction. Mr. Nayyar s reliance on the decision of the Supreme Court in Khardah Company Ltd. v. Raymon and Co. (India) Pri vate Ltd. , AIR 1962, Supreme Court 1810 (2), has no relevance in the context of the question that has to be decided in the present petition. It is true that an arbitration clause cannot be enforced when agreement of which it forms an integral part is held to be illegal on the principle that when an agreement is invalid every part of it including the clause as to arbitration contained therein must also be invalid. But then what is alleged by the respondent is not that the contract dated 28-10-1965 or the arbitration clause contained therein was void ab initio. His conten tion is that since the agreement dated 28-10-1965 had been super seded the arbitration clause contained therein also stood super seded. He has also pleaded that the agreement of 28-10-1965 was obtained by fraud and misrepresentation and is thus not binding or that it was never acted upon. These pleas have no bearing on the arbitration clause inasmuch as the arbitrator is not called upon to adjudicate upon the existence or validity of the arbitration clause in the agreement dated 28-10-1965 but only to adjudicate upon the supercession etc. , of the main contract by a subsequent contract vis-a-vis the terms of the employment and the rights and liabilities following therefrom. ( 9 ) IN the case of Waverly Jute Mills Co. Ltd. v Raymon and Co. , of the main contract by a subsequent contract vis-a-vis the terms of the employment and the rights and liabilities following therefrom. ( 9 ) IN the case of Waverly Jute Mills Co. Ltd. v Raymon and Co. (India) Private Ltd. , AIR 1963, Supreme Court 90 (3), it was observed that if a contract is illegal and void an arbitration clause which is one of the terms thereof must also perish along with it and a dispute relating to the validity of the contract is in such cases for the court and not for the arbitrators to decide. It was also held that a dispute as to the validity of a contract would be the subject matter of an agreement of arbitration in the same manner as a dispute relating to the claim made under the contract but such an agreement would be effective and operative only when it is separate from and independent of the contract which is impugned as illegal. Where, however, it is a term of the very contract whose validity is in question, it has no existence apart from the impugned contract and must perish with it. An agreement for arbitration is the very foundation on which the jurisdic tion of the arbitrators to act rests and where that is not in exis tence at the time when they enter on the reference, the proceed ings must be held to be wholly without jurisdiction. But it will make all the difference in the result where the parties have entered into an arbitration agreement as defined in Section 2 (a) of the Arbitration Act or have merely taken steps in the conduct of proceedings assumed or believed to be valid. This rule relied upon by Mr. Nayyar has no applicability in the present case for the enforcibility of the contract as distinguished from the enforcibility of the arbitration clause is no doubt in dispute and the existence of the arbitration clause in the agreement dated 28-10-1965 is not a subject-matter of controversy. The learned arbitrator has not to adjudicate upon his jurisdiction for he gets jurisdiction to adjudicate upon the disputes between the parties by virtue of the agreement recorded in court on 20-11-1970. In effect in supercession of any previous arbitration agreement the parties entered into an arbitration agreement on 20-11-1970 when the same was recorded in court. The learned arbitrator has not to adjudicate upon his jurisdiction for he gets jurisdiction to adjudicate upon the disputes between the parties by virtue of the agreement recorded in court on 20-11-1970. In effect in supercession of any previous arbitration agreement the parties entered into an arbitration agreement on 20-11-1970 when the same was recorded in court. Reference has been made in accordance with that agreement. It follows, therefore, that the parties are bound by the fresh arbitration agreement and the petitioner cannot be heard to say that issues 2, 3 and 5 settled by the learned Arbitrator are beyond the scope of the reference or excess of the jurisdiction of the arbitrator. ( 10 ) WHEN a party challenges the existence or validity of an arbitration agreement or a reference it can come to court under Section 33 of the Arbitration Act to get a declaration to that effect. Section 33, does not interms permit an application to get a declaration affirming an arbitration agreement or a reference. It is, however, settled law that a party affirming the arbitration agreement can move the court under sections 31 and 32 of the Arbitration Act to get a declaration to that effect. The petitioner in the present case seeks to do the same vis-a-vis the arbitration clause contained in the agreement dated 28-10-1965, the intention being that it be held that a reference to Shri S. B. Capoor is under that arbitration clause. The petitioner has a right to move such an application but in the present case, in my view, the applitration is wholly misconceived in view of the agreement entered into between the parties on 20-11-1970 as recorded by the court. the arbitration clause contained in the agreement dated 28-10-1965 even if it is enforceable stands superseded and the present reference is with regard to all the disputes agreed to be referred by the parties including the question about the existence and continuation of the contract dated 28-10-1965 as distinct from the arbitration clause in the agreement dated 1-11-1965. The arbitrator may come to the conclusion that the contract dated 1-11-1965 has been superseded or he may come to the conclusion that it has not been superseded by a subsequent contract. The arbitrator may come to the conclusion that the contract dated 1-11-1965 has been superseded or he may come to the conclusion that it has not been superseded by a subsequent contract. This, however, has no bearing on the enforcibility or existence of an arbitration clause in that contract, in the context of the proceedings now being conducted before the arbitrator. A clear distinction has to be born in mind between the arbitration clause on the one hand and the remaining terms of the contract containing the arbitration clause on the other. The petitioner seems to be mixing up the two distinct aspects of the contract dated 1-11-1965 which he cannot be allowed to do. ( 11 ) I, therefore, dismiss this petition with costs.