JUDGMENT : Lalit Mohan Sharma, J.- The respondent filed an application under section 8 (2) of the Indian Arbitration Act for appointing an Arbitrator in accordance with clause 12 of the Agreement, Annexure 1, between the parties. The appellant-opposite party filed a rejoinder opposing the prayer. By the ORDER :under appeal dated 7.6.1984 the learned Subordinate Judge, Biharsharif, allowed the prayer and directed the petitioner and the opposite party to give-names of appropriate persons so that the Court could appoint an Arbitrator out of them. The present appeal has been filed against this ORDER :. 2. According to the petitioner's (respondent) case in his application, the agreement Annexure 1 was executed between the appellant-opposite party and the petitioner-respondent on 22.10.81, for operating an aerial ropeway chairlift project at Rajgir in the district of Nalanda. The petitioner was to function as the Commission agent and the opposite party was to hand over charge and control of the chairlift with accessories etc. for operating the same. Clause 9 of the Agreement stated that in the event of the closure of the chair lift for 7 days or more for repairs or for any valid reason, the petitioner would extend the period of agreement. Clause 12 reads as follows:- "That in the event of any dispute arising out of the agreement between the parties, the decision of the Arbitrator shall be final. The arbitration fee, if any, will be equally borne by both the parties". The petitioner has asserted in his application that the chairlift could work only for a short period end the operation was suspended for reasons for which the petitioner was entitled under clause 9 of the Agreement to extension of the period, Inspite of a demand by the petitioner, this was not done and the opposite party was accordingly liable to compensate the petitioner fur damages to the tune of over 14 lacs of rupees. The opposite party purported to terminate the agreement by letter dated 12.10.83 and then forcibly took over the operation of the rope-way chair-lift. The violation of the clauses in the agreement on the basis of which it could have been terminated has been denied. It is asserted that since the demand of the petitioner was not being acceded to, a dispute arose within the agreement and, was covered by clause 12, mentioned above, for reference to an Arbitrator. The violation of the clauses in the agreement on the basis of which it could have been terminated has been denied. It is asserted that since the demand of the petitioner was not being acceded to, a dispute arose within the agreement and, was covered by clause 12, mentioned above, for reference to an Arbitrator. The petitioner claims to have made a request in this regard to the opposite party unsuccessfully which necessitated the filing of the application. 3. The opposite party-appellant pleaded that the agreement stood terminated on 12.10.83 and no reference under clause 12, therefore, could have been made. It was further stated that the then District Magistrate of Nalanda Shri S. K. Lal was appointed as the sole Arbitrator for deciding the dispute in February, 1982 with intimation to the petitioner who consented to the same. The allegations in the petition on the basis of which the petitioner asserts that his claim for damages is correct were denied and it was also said that in a meeting held in the Government House, Patna, it was agreed that the operation of the disputed rope-way would be put under the supervision and control of Nalanda District Magistrate along with the Anchal Adhikari, Rajgir and the income received would be handed over to the petitioner after deducting the expenses etc. which was done without protest. It was emphatically asserted that clauses 6 and 7 of the Agreement had been violated and a reference to an arbitration under clause 12 of the Agreement was not available to the petitioner. Both the parties referred to several letters etc. in their pleadings. 4. The petitioner filed a rejoinder petition strongly refuting the allegations made by the opposite party. It was asserted that Nalanda District Magistrate was not appointed as Arbitrator at any point of time nor did he give award as suggested. The claim in the petition under section 8(2) was reiterated. From the ORDER :-sheet of the case and the impugned JUDGMENT :, it appears that the parties did not lead any evidence apart from relying on the documents annexed to their pleadings. 5. The learned subordinate Judge held that the agreement contained a provision for reference to arbitration under clause 12. It was argued before him on behalf of the opposite party that Shri S. K. Lal, District Magistrate, Nalanda, was appointed as the Arbitrator. 5. The learned subordinate Judge held that the agreement contained a provision for reference to arbitration under clause 12. It was argued before him on behalf of the opposite party that Shri S. K. Lal, District Magistrate, Nalanda, was appointed as the Arbitrator. Reliance was placed on two letters, one of them having been sent from the petitioner. The learned Subordinate Judge pointed out that the two letters did not relate to the present claim of the petitioner and further held that there was nothing to suggest that the District Magistrate was actually appointed as the Arbitrator. The tenor of the case of the opposite party is that the matter has been settled by the District Magistrate. If, it is so, he would have submitted an award which has not been done. For the reasons mentioned in paras 6 and 7 of the JUDGMENT : under appeal, the court below recorded a finding that the defence case about the appointment of the District Magistrate as agreed Arbitrator was incorrect. No material was placed before us for showing that this finding is incorrect. 6. Mr. Shanker Prasad the learned counsel for the appellant contended that the agreement having been terminated as per letter dated 12.10.1983, Annexure 5 to the petitioner's application at page 20 of the paperbook, the clause 12 thereof became non-operative and the relief prayed for by the petitioner for a reference under the said clause cannot be entertained. He strenuously argued that the petitioner's case on the merits of the claim is fit to be rejected and it must be held that he was guilty of violation of some of the clauses of the agreement and, therefore, was not entitled to any extension of the period or for damages. The learned counsel suggested that in that view, the finding of the court below recorded in para 7 of the JUDGMENT : that there was no reference by the parties of their dispute for a decision by the District Magistrate is of little consequence. I do not find myself in a position to agree with the learned counsel. The question whether the agreement was validly terminated by the appellant is dependent on evidence and the point cannot be assumed in its favour. I do not find myself in a position to agree with the learned counsel. The question whether the agreement was validly terminated by the appellant is dependent on evidence and the point cannot be assumed in its favour. If the facts relating to the merits of the claim asserted by the petitioner be true, the petitioner may be held to be entitled to press his claim before the Arbitrator and it would be for the Arbitrator to consider the cases of the parties. The discussion by the Supreme Court in paras 9 and 10 of the JUDGMENT : in Union of India vs. Kisbori Lal, A. I. R. 1959 Supreme Court, 1362, are illuminating. The court referred to the observations of Viscount Simon L. C. with approval that if the dispute is as to whether the contract which contain the arbitration 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, 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 is also void. If, however, the parties are one in asserting that they entered into a binding contract, but a difference bas arisen between them as to whether there has been a breach by one side or the other, or as to 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". Summarising the position in para 10 of the JUDGMENT :, different situations were analysed by the Supreme Court and five propositions were laid down. It was thereafter observed that there are many categories of disputes not covered by the earlier categorisation in connection with a contract, such as, question of repudiation, frustration, breach etcetara. In these cases, it is the performance of the contract that has come to an end, but the contract is till in existence for certain purposes in respect of disputes arising under it or in connection with it. In these cases, it is the performance of the contract that has come to an end, but the contract is till in existence for certain purposes in respect of disputes arising under it or in connection with it. As the contract subsists for certain performance, the arbitration clause operates in respect of these performances. The present case is of the last category with respect to which it was held that : "I do not agree that an arbitration clause expressed in such terms as above ceases to have any possible application merely because the contract has "come to an end" as, for example, by frustration. In such case, it is the performance of the contract that has come to an end". I assume that the parties must be appreciating the correct position and, therefore, did not lead evidence before the court below nor pressed the point. I do not find any merit in the argument as addressed before this Court which was not pressed before the court below and if I may say so, rightly. 7. In his rejoijder, the appellant mentioned about the filing of a writ application in this I Court by the petitioner when the dispute as to who should run the rope-way was going on. It has not been argued before us that the ORDER :in the said case is any way relevant in the present appeal. In fact, the case was not referred to during the argument and the paperbook does not contain any document relating, to the same. 8. The ORDER :s of the court below made after the passing of the JUDGMENT : under appeal dated 7.6.1984 have also been included in the paperbook and the ORDER :dated 4.8.1984 indicates that the court appointed Shri D. P. Sinha, a retired Judge of this Court, as the Arbitrator. However, I am not required to deal with this ORDER :or any ORDER :passed after 7.6.1984. 9. For the reasons mentioned above, I do not find any error in the JUDGMENT : of the court below dated 7.6.1984 and the appeal is accordingly dismissed, but in the circumstances without costs. 10. Birendra Prasad Sinha, J. – I agree.