JUDGMENT : Mohammad Rafiq, J. The dispute in the present Arbitration Application and Civil Miscellaneous Appeal is between the same parties and therefore both were clubbed by order of Hon'ble the Chief Justice and are being decided together. 2. Arbitration Application has been filed under Section 11 of the Arbitration and Conciliation Act, 1996 (for short, 'the Arbitration Act') by two applicants, namely, Manish Vyas and Dr. Rajesh Kumar Singh (hereinafter shall be referred to as 'claimants'), inter-alia with prayer that upon setting aside the award dated 08.01.2007 passed by the learned Arbitrator, a new and independent Arbitrator may be appointed for resolving the dispute between the parties. Civil Miscellaneous Appeal has been filed by non applicants (hereinafter shall be referred to as non-claimants), namely, Dr. Sohan Lal Sihag, Manjeet Singh and Dr. Ram Sagar Nagar, challenging the judgment dated 31.03.2010 passed by the Additional District Judge No.3, Jaipur City, Jaipur, in Civil Miscellaneous (Arbitration) Case No.30/2009, who, while allowing the objections filed by non-applicant-claimants Manish Vyas and Dr. Rajesh Kumar Singh, set aside the award dated 08.01.2007. 3. Essential facts giving rise to these matters are that a charitable trust by the name of Nirvana Charitable Trust, Sriganganagar (Rajasthan) was registered under the Rajasthan Public Trust Act, 1959. The trust purchased a land measuring 0.16 hectare at Bagru, District Jaipur on 16.01.2002. The Trust applied to the Government of India as well as the Dental Council of India on 24.09.2002 for establishment of a new dental college, namely, Rajasthan Dental College & Hospital at Bagru Khurd, Jaipur. The Government of India, vide letter dated 30.09.2003, permitted the Trust to establish the college for the academic session 2003-04. The University of Rajasthan, vide communication dated 30.09.2003, conveyed to the JNV University that Trust has been granted fresh affiliation for B.D.S. Course with annual intake of 100 seats. The trust on 23.10.2003 took financial help from the Banks. The UTI Bank sanctioned corporate loan of Rs.650 lacs to the Trust. The Jaipur Development Authority alloted 21,420.23 square meter of land on 26.12.2002 for the college and executed a lease deed in favour of the Trust. A Memorandum of Understanding was executed on 11.02.2003 between the Trust through its trustees Mr. Manjit Singh and three other persons including both the claimants Manish Vyas and Dr. Rajesh Kumar Singh. This MOU was given effect to from 26.09.2001. A Memorandum of Understanding was executed on 11.02.2003 between the Trust through its trustees Mr. Manjit Singh and three other persons including both the claimants Manish Vyas and Dr. Rajesh Kumar Singh. This MOU was given effect to from 26.09.2001. The MOU was executed to run administration and carry out management activities of the Dental College. Four persons were appointed as Directors for management, administration and running of the college. Out of those four persons, two are the claimants and third one was Dr. Sohan Lal and fourth one was Dr. Ram Sagar. While claimant Manish Vyas was given share of 40%, claimant Dr. Rajesh Kumar Singh and non-claimants Dr. Sohan Lal and Dr. Manjeet Singh were given share of 20% each. 4. As per the case of the claimants, a partnership deed was executed between claimants and non-claimants, and partnership firm was constituted for running the college, named, M/s. Rajasthan Dental College & Hospital, which was actually established by the Trust. However, as per the non-claimants, the Trust in its meeting convened on 25.06.2004, took a decision that it has no concern with the partnership firm and claimants, who claimed themselves to be the Directors, were removed. The claimants on 14.09.2004 then filed an application under Section 9 of the Arbitration Act for injunction before the District Judge, Jaipur City, Jaipur, on the basis of MOU and alleged that since 13.09.2004 they were not being allowed to enter the college. The Trust on coming to know about the aforesaid application, filed an application on 01.10.2004, applied for its impleadment as party to the said application on the premise that outcome of the same was likely to directly affect it. The non-claimants filed reply to the said application on 07.10.2004. Learned District Judge dismissed the application vide order dated 28.10.2004. The Trust filed Civil Suit on 03.06.2006 challenging the MOU dated 11.02.2003. The Civil Court restrained the claimants from functioning as Director of the College. The said civil suit is still pending. 5. In these facts, the claimants submitted an application on 11.08.2006 under Section 11 of the Arbitration Act seeking appointment of Arbitrator. This court, by order dated 11.08.2006, appointed Hon'ble Mr. Justice R.S. Verma, a former Judge of this Court, as a sole Arbitrator. The said civil suit is still pending. 5. In these facts, the claimants submitted an application on 11.08.2006 under Section 11 of the Arbitration Act seeking appointment of Arbitrator. This court, by order dated 11.08.2006, appointed Hon'ble Mr. Justice R.S. Verma, a former Judge of this Court, as a sole Arbitrator. The non-claimants filed four applications before the learned Arbitrator on 28.10.2006 raising the objections that since the partnership was not registered, no proceeding could be taken on the basis of the same. Out of four applications, two were rejected vide order dated 19.11.2006 and other two applications were kept pending. Out of latter two applications, one was under Order 7, Rule 11 (d) of the CPC and another was under Section 69 of the Partnership Act read with Order 14, Rule 2 of the CPC. The Arbitrator issued notices of the applications, to which non-claimants filed reply thereto. The non-claimants also raised objection under Section 16 of the Arbitration Act and contended that (1) the MOU was against the public policy because a trust which has been granted permission to establish a dental college, cannot vest the functions of running the dental college and hospital to a firm or any other subsidiary; (2) the alleged partnership firm of which the claimants and non-claimants are said to be partners, was based on a void agreement of partnership; (3) the alleged partnership is formed in contravention of the provisions of the Indian Dental Council Act, 1948, (for short, 'the DC Act') because in the scheme of DC Act, a dental college can be established and run only by an authority, to which permission has been granted under Section 10A of the DC Act; (4) the present partnership is alleged to have been formed with a purpose, which is not permissible and clearly forbidden by Section 10A of the DC Act; (5) the claimants do not stand in fuduciary capacity to the non-claimants. Both the sides were pari-delicito in forming the partnership, which is illegal and was forbidden from establishing a dental college. 6. Learned Arbitrator, vide order dated 08.01.2007, rejected the entire claim holding that the agreement/MOU was against the public policy, and was against the provisions of Section 23 of the Contract Act, being forbidden by law, opposed to public policy and in contravention of the provisions of Section 10 A of the DC Act. 6. Learned Arbitrator, vide order dated 08.01.2007, rejected the entire claim holding that the agreement/MOU was against the public policy, and was against the provisions of Section 23 of the Contract Act, being forbidden by law, opposed to public policy and in contravention of the provisions of Section 10 A of the DC Act. Learned Arbitrator, vide order dated 08.01.2007 thus decided both the applications. The claimants filed objection under Section 34 of the Act before the court below, which ultimately was allowed vide order dated 31.03.2010. It is therefore that while claimants have filed application under Section 11 of the Arbitration Act praying for appointment of a new Arbitrator, the non-claimants have filed appeal challenging the judgment dated 31.03.2010 passed by the Additional District Judge No.3, Jaipur City, Jaipur, on the premise that the partnership firm not being registered, the claim petition was not maintainable in view of Section 69 of the Partnership Act. 7. Mr. Shiv Charan Gupta, learned counsel for claimants, argued that the Arbitrator was wholly unjustified in rejecting the claim of the claimants on the ground that the agreement/MOU was against the provisions of Section 10A and 10B of the DC Act. These Sections speak about establishment of a new Dental College and non-recognition of Dental Qualification, in certain cases. There is no prohibition under the Act, for running of the management/administration of an already established college by a firm. Learned Arbitrator failed to appreciate that MOU/Agreement was not for establishment of the Dental College but it was only for running of its administration/management as per the guidelines of the Dental Council of India which is evident from Clause 4 of the MOU. The ownership of the college would continue to be of the Trust and the college would be a wing of the Trust as specifically stated in Clause 2 and 10 of the MOU. There is no prohibition under the DC Act or the Regulations of the Dental Council of India that the management and administration of the Dental College cannot be run/carried out by a firm through the MOU. Learned Arbitrator neither framed issues nor recorded evidence nor provided opportunity of cross-examination on the relied documents. He did not even give proper hearing on the point that the agreement was forbidden by law or against the provisions of Section 10A of the DC Act. Learned Arbitrator neither framed issues nor recorded evidence nor provided opportunity of cross-examination on the relied documents. He did not even give proper hearing on the point that the agreement was forbidden by law or against the provisions of Section 10A of the DC Act. Learned Arbitrator has wrongly relied on judgment of this court in AIR 1965 Raj. 172 and that of the Punjab and Haryana High Court in AIR 1972 P&H 185 . Both these judgments relate to grant of license where there is a prohibition that no person or firm other than the licensee, would do/carry on the business for which the license was granted. 8. It is submitted that learned Arbitrator was wholly unjustified in turning down the plea of the claimants for refund of the money obtained by the non-claimants. Claimant Manish Vyas had invested two crore rupees and Dr. Rajesh Kumar Singh has invested two-and-a-half crore rupees. Later on, Manish Vyas additionally invested three-and-a-half crore rupees. In addition to this, further amount of rupees five crore was invested by claimant Manish Vyas. Thus a total sum of Rs.16.25 crore was invested by the claimants, which was used for construction of building and purchase of trust property. The argument of non-claimants that the judgment of the court below dated 31.03.2010 is contrary to its own finding as it has held at page 15 of the judgment that the conclusion of the Arbitrator that the College can be established only by Trust as per provisions of Section 10A and 10B of the DC Act, is correct, is misconceived and not sustainable. Thus, it is argued that non-claimants are confused with the word 'Establishment'. It is not disputed that the college could be established only by the Trust but question in the present case whether administration and management of the college already established by the Trust could not be given to the Trust. The award in the present case has not been passed on merits and the claim petition has been rejected on technical ground. Consequent upon setting aside the award by learned Civil Court allowing objections under Section 34 of the Arbitration Act, necessity has arisen for appointment of a new Arbitrator. Learned counsel, in support of his arguments, has relied on the judgment of the Supreme Court in Bharat Engineering Service Technocrats & Co. Consequent upon setting aside the award by learned Civil Court allowing objections under Section 34 of the Arbitration Act, necessity has arisen for appointment of a new Arbitrator. Learned counsel, in support of his arguments, has relied on the judgment of the Supreme Court in Bharat Engineering Service Technocrats & Co. v. Executive Engineer, Kabini Canal Division and Others, (2008) 3 SCC 302 , and that of Delhi High Court in Steel Authority of India Limited v. Indian Council of Arbitration & Others, dated 16.11.2015 of Delhi High Court in W.P.(C) 3013 of 2013, and Ogilvy & Mather Pvt. Ltd. & Anr. v. Union of India, dated 03.07.2012 in O.M.P. 651 of 2007, and that of Kerala High court in Sulaikha Clay Mines v. Alpha Clays, AIR 2005 Ker 3 . 9. Mr. Shiv Charan Gupta, learned counsel for claimants, further argued that validity and legality of the contract/agreement cannot be adjudicated by the Arbitrator. Rather, he has to examine and adjudicate upon the disputes referred to him as per the Arbitration Agreement. The validity of the agreement/contract, as per the provisions of Section 23 of the Contract Act, 1972, can be adjudicated only by court and not by the Arbitrator. The word 'Court' has been used in Section 23 of the Act to see as to whether the object and consideration of the agreement were immoral or against the Public Policy or forbidden by law, as such, were unlawful. In support of this argument, learned counsel for claimants has relied on judgments in Gherulal Parakh v. Mahadeodas Maiya and Others, AIR 1959 SC 781 , Swiss Timing Limited v. Organising Committee, Commonwealth Games 2010, AIR 2014 SC 3723 and Velugubanti Hari Babu v. Parvathini Narasimha Rao and Another, AIR 2016 SC 3285 . 10. Learned counsel argued that if the award is illegal, arbitrary, against the procedure duly prescribed, against the public policy, not justified, against the principles of natural justice or if the inference drawn by Arbitrator is untenable on face of it, which has resulted in miscarriage of justice, then the same can be set aside by the court as the same amounts to being against the public policy and in this case, the award has rightly been set aside. Learned counsel, in support of the argument, has relied on judgments in McDERMOTT International Inc. v. Burn Standard Co. Learned counsel, in support of the argument, has relied on judgments in McDERMOTT International Inc. v. Burn Standard Co. Ltd. And Others, (2006) 11 SCC 181 , Oil and Natural Gas Corporation Ltd. v. SAW Pipes Ltd., (2003) 5 SCC 705 , and Oil and Natural Gas Corporation limited v. Western Geco International Limited, (2014) 9 SCC 263 . 11. Relying on judgment of the Supreme Court in Seth Mohanlal Heeralal v. State of M.P., (2003) 12 SCC 144, learned counsel argued that if the award is inconsistent or the Arbitrator has ignored/misread the material documents, the same can be set aside. In the present case, the MOU has not been correctly read along with Section 10A of the DC Act. The Arbitrator has wrongly read the MOU as if the same was for establishment of the college while it is not so as stated herein above. It is inconsistent because on one hand the objection of the non-claimants under Section 69 of the Partnership Act has been overruled, on the other, the claim has been rejected being barred by law i.e. under Section 10A of the DC Act, on the objection taken by the Arbitrator at its own. Learned counsel, in support of this argument, has relied on judgment of the Supreme Court in Hindustan Zinc Ltd. v. Friends Coal Carbonisation, (2006) 4 SCC 445 . Lastly, learned counsel for the claimants submitted that even if the contract is held to be void, as per the mandate of Section 65 of the Contract Act the benefits, which are received under the said contract, are liable to be refunded. Learned counsel, in support of this argument, has relied on judgment of the Supreme Court in Tarsem Singh v. Sukhminder Singh, AIR 1998 SC 1400 . 12. It is therefore prayed that the appeal filed by the non-claimants be dismissed and the arbitration application filed by the claimants be allowed and new Arbitrator be appointed to resolve the dispute between the parties. 13. Mr. Jai Raj Tantia, learned counsel for non-claimants, argued that it is not even the case of the claimants that permission under Section 10A of the DC Act was taken by the alleged partnership firm. The permission was primarily given in favour of the trust. Therefore, it cannot be transferred in favour of any third party. 13. Mr. Jai Raj Tantia, learned counsel for non-claimants, argued that it is not even the case of the claimants that permission under Section 10A of the DC Act was taken by the alleged partnership firm. The permission was primarily given in favour of the trust. Therefore, it cannot be transferred in favour of any third party. The provisions of the Act and the Regulations framed thereunder, do not envisage any such mechanism where under the permission of management could be entrusted to a third entity, be it a firm or otherwise. Even as per own showing of the claimants, the alleged partnership business was to be run as per the MOU on the basis of permission obtained by the Trust. Therefore, such MOU, clearly contravened the provisions of the relevant statute, is void under Section 23 of the Contract Act. Learned Arbitrator was fully justified in holding that when the Trust has been granted permission to establish a dental college, running of such institution could not be made over to a partnership firm, which has not been granted permission to establish a dental college. This amounted to abdication of its functions by the Trust, and such an abdication of the functions and obligations of the Trust could not be countenanced by law. 14. Mr. Jai Raj Tantia, learned counsel for non-claimants, argued that Nirwan Charitable Trust, Sriganganagar, was created for a pious work of imparting medical education and to provide medical facilities to needy persons. The non-claimants are trustees of that Trust. Dr. Manjeet Singh is its founder Chairman. It is contended that the claimants could have recourse to sub-section (4) of Section 34, which they did not opt. Sub-section (4) of Section 34 provides that on receipt of application under sub-section (1), the Court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of the arbitral tribunal will eliminate the grounds for setting aside the arbitral award. Since the claimants did not make any such request to the court below during the proceedings under Section 34 of the Act, now they have no right to invoke the jurisdiction under Section 11 of the Act for appointment of arbitrator only because the order of arbitrator has been set aside by the court and not the appointment of arbitrator. It is wrong on the part of the claimants to say that arbitrator has become functus officio and award passed by has become liable to be set aside. In the law, second application under Section 11 of the Act is not maintainable. 15. It is contended that MOU dated 11.02.2003 cannot be given colour of a permission issued by the Central Government to Nirwan Charitable Trust to establish a dental college in the name of partnership firm. With regard to financial help, as claimed by the applicants, it is submitted that this was interest free loan to the Trust and when the Trust came to know about the activities of the claimants, it repaid the entire loan. The allegation of mortgaging the property is replied in the terms that the properties have already been released by the Bank to the claimants at the request of the Trust. Once the MOU itself is void for the aforesaid reasons of abdicating, the obligations of the Trust in favour of the partnership firm, thus itself is void. The stipulation in Clause 17 thereof that arbitrator could be appointed "for enforcement of terms and conditions of this deed", would also be not enforceable. For this reason, no arbitrator could be appointed. It is therefore prayed that the arbitration application filed by the claimants be dismissed and the appeal filed by non-claimants be allowed. 16. I have bestowed my earnest consideration to the rival submissions, perused the material on record and studied the cited precedents. 17. Learned Arbitrator, by his order dated 16.09.2006 laid down the procedure of his functioning. Claimants were granted seven days time to submit their statements of claim with advance copy to the non-claimants, who were required to file reply thereto within fifteen days thereafter, with further time of fifteen days being granted to the applicants to submit rejoinder, if any and the matter was fixed for framing of the issues on 28.10.2006. While the claimants submitted their claim on 10.10.2006, the non-claimants filed reply on 23.10.2006. While the claimants submitted their claim on 10.10.2006, the non-claimants filed reply on 23.10.2006. They also additionally filed four applications. Thereafter the Arbitrator fixed the matter on 19.11.2006 for arguments on applications. Two of the applications, including objecting to reference on the basis of unregistered partnership deed, were rejected. Other two were allowed. The claim petition was dismissed by order dated 08.01.2007 holding that MOU was forbidden by law and against the public policy being in breach of Section 23 of the Indian Contract Act. The claim being pari delicto in terms of Section 65 of the Indian Contract Act, 1872, the claimants were not entitled to receive any amount of compensation. 18. Indisputably, the partnership-deed in the shape of Memorandum of Understanding (MOU) was executed between the parties on 11.02.2003, to start and run the dental college at Jaipur. The MOU indicates that the object of the firm was to impart education to students as per the guidelines contained in Dental Council of India Act. The four Directors of the firm were held responsible for the bank loan. On behalf of the Trust, the MOU was signed by the claimants/non-applicants Dr. Manjeet Singh and Dr. Sohanlal Sihag, with non-claimants/applicants Manish Vyas and Dr. Rajesh Kumar Singh, with the approval of all the trustees vide resolution of the Trust dated 26.09.2001. In fact, the MOU was executed on 11.02.2003 pursuant of the Resolution of the Trust dated 26.09.2001 and indicates the extent of the share of the parties in the profit and loss. This makes it obvious that the Trust required the financial help and therefore had to execute a partnership deed involving non-claimants/applicants, who invested their money into this venture. The non-claimants/applicants claim to have invested huge money in the dental college established by the Trust and created mortgage on their property in favour of the UTI Bank, which is evident from the documents on record, where under they gave personal guarantee. 19. Section 65 of the Contract Act provides 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. 19. Section 65 of the Contract Act provides 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. Learned Arbitrator though found both the claimants and non-claimants in pari delicto but he concluded that MOU/partnership deed arrived at between them was apposed to public policy. But in arriving such conclusion he omitted to notice that both the parties knew the nature/object of the contract/agreement and also the fact that such MOU/partnership deed was executed pursuant to resolution of the Trust dated 26.09.2001, which had been granted permission to set up the Dental College. No fault can be therefore found in the judgment of the Additional District Judge in reversing the award, wherein he held that the conclusion of the learned Arbitrator that the claimants were not entitled to receive any amount which they invested or damages or interest etc., was also opposed to the established law of the country, namely, by Section 65 of the Indian Contract Act, 1872. Learned Arbitrator has summarily arrived at that conclusion and he in doing so has not abided by the mandate of Section 19 of the Arbitration Act. Parties were not allowed to produce evidence, documentary and oral, in spite of their respective case. Learned Arbitrator rejected the claim by accepting application filed by the non-claimants. 20. It is settled proposition of law on interpretation of Section 16(1)(b) of the Arbitration Act that a decision by the arbitral tribunal that the contract is null and void shall not ipso jure entail the invalidity of the arbitration clause. Learned Additional District Judge was therefore justified in not approving such decision particularly when the Arbitrator rejected the objection filed by the non-claimants that the arbitration could not be triggered at the instance of the claimants for the reason of partnership firm being unregistered. Learned Additional District Judge was therefore justified in not approving such decision particularly when the Arbitrator rejected the objection filed by the non-claimants that the arbitration could not be triggered at the instance of the claimants for the reason of partnership firm being unregistered. In other words, what the Arbitrator has held, resulted to this that the arbitration can be initiated even against unregistered firm, but then the Arbitrator did not give any opportunity to the claimants to lead their evidence in support of their claim to arrive at the conclusion as regards the effect of the application of Section 65 of the Indian Contract Act, 1872, so as to say that both the claimants and non-claimants, were pari delicto and aware of the implication of their action in arriving at MOU and entering the partnership deed for running and managing the dental college and whether such an MOU could at all be executed when the permission in terms of Section 10A and 10B of the DC Act has been granted by the competent authority in favour of the Trust and not the firm and if so, what would be the effect of the resolution passed by the Trust dated 26.09.2001, which was the basis for execution of the MOU/partnership deed, has to be seen. 21. The Supreme Court in McDermott International Inc., supra, in the context of Section 34 of the Arbitration Act, observed that what would constitute public policy is a matter dependent upon the nature of transaction and nature of statute. For the said purpose, the pleadings of the parties and the materials brought on record would be relevant to enable the court to judge what is in public good or public interest and what would otherwise be injurious to the public good at the relevant point, as contra distinguished from the policy of a particular Government. Obviously, this could be done only if the claimants had got the opportunity to lead their evidence, certainly with opportunity to non-claimants to lead their evidence in rebuttal. It is then that the Arbitrator would be in a better position to pass his award. Obviously, he would have then either rejected the claim or otherwise passed the award in favour of the claimant. It is then that the Arbitrator would be in a better position to pass his award. Obviously, he would have then either rejected the claim or otherwise passed the award in favour of the claimant. If he passed the award either way, the non-claimants would have the opportunity to assail the same on the grounds available in law including on the ground of the award being in conflict with public policy of India referred to in Section 34(2)(b)(ii) of the Arbitration Act. The Supreme Court further held that in the event of award being set aside by the court under Section 34 of the Act, parties can again invoke arbitration clause on the basis of same course of action. 22. The Supreme Court in Gherulal Parakh v. Mahadeodas Maiya and Others, was dealing with the case where partnership deed was constituted to carry on wagering contract with two firms. It was agreed between the partners that the said contracts would be made in the name of the respondents on behalf of the firm and that the profit and loss resulting from the transactions would be borne by them in equal shares. The Supreme Court held that though a wager is void and unenforceable, it is not forbidden by law and therefore the object of a collateral agreement is not unlawful under Section 23 of the Contract Act. Partnership being an agreement within the meaning of Section 23 of the Contract Act, it is not unlawful, though its object is to carry on wagering transactions. Their Lordships held that in the circumstances it is not possible to hold that there is any definite head or principle of public policy evolved by Courts or laid down by precedents which would directly apply to wagering contracts. Even if it is permissible for Courts to evolve a new head of public policy under extraordinary circumstances giving rise to incontestable harm to the society, it cannot be said that wager is one of such instances of exceptional gravity, for it has been recognised for centuries and has been tolerated by the public and the State alike. Wagering contract cannot be said to be immoral, held the Supreme Court. 23. Wagering contract cannot be said to be immoral, held the Supreme Court. 23. In Swiss Timing Limited, supra, in proceedings under Section 11 of the Arbitration Act, the objection raised by the opposite party that main contract is void, therefore reference should not be made, was overruled by the Supreme Court holding that unless it is possible for court to come to conclusion that contract is void without any evidence, the court has to be conscious on issue whether the main contract was void or voidable in reference to arbitration. The Supreme Court in Biharilal Jaiswal and Others v. commissioner of Income Tax and Others, (1996) 1 SCC 443 , while dealing with the case where partnership was entered into for conducting business under a licence granted to an individual for retail sale of country spirit contrary to the prohibition contained in the relevant State Excise enactment, held the partnership to be unlawful and void. However, the Supreme Court further held that such ineligibility would not render it immune from being taxed. 24. The Supreme Court in Enercon (India) Limited and Others v. Enercon GMBH and Another, (2014) 5 SCC 1 , while dealing with question whether reference to arbitration under Section 45 of the Arbitration Act, held that support of the national courts would be required to ensure the success of arbitration, but this would not detract from the legitimacy or independence of the arbitration agreement, even if it is contained in a contract, which is claimed to be void or voidable or unconcluded by one of the parties. The concept of separability of the arbitration clause/agreement from the underlying contract is a necessity to ensure that the intention of the parties to resolve the disputes by arbitration does not evaporate into thin air with every challenge to the legality, validity, finality or breach of the underlying contract. Section 16 of the Arbitration Act accepts the concept that the main contract and the arbitration agreement form two independent contracts. Commercial rights and obligations are contained in the underlying, substantive or the main contract. It is followed by a second contract, which expresses the agreement and the intention of the parties to resolve the disputes relating to the underlying contract, through arbitration. It was held that the Courts play a supportive role in encouraging the arbitration to proceed rather than letting it come to a grinding halt. It is followed by a second contract, which expresses the agreement and the intention of the parties to resolve the disputes relating to the underlying contract, through arbitration. It was held that the Courts play a supportive role in encouraging the arbitration to proceed rather than letting it come to a grinding halt. Another equally important principle recognised in almost all jurisdictions is the least intervention by the Courts. 25. The Supreme Court in Juggilal Kamlapat and Another v. General Fibre Dealers Ltd and Another, AIR 1962 SC 1123 , held that where the award has been set aside but the order of reference has not been superseded, the appointment of a fresh arbitration tribunal and the carrying on of the arbitration further were within the terms of the arbitration agreement. The Supreme Court in Oil & Natural Gas Corporation Ltd. v. SAW Pipes Ltd., supra, has held that if the arbitral tribunal has not followed the mandatory procedure prescribed under the Act, it would mean that it has acted beyond its jurisdiction and thereby the award would be patently illegal which could be set aside under Section 34. If it is held that such award could not be interfered, it would be contrary to basic concept of justice. 26. The kind of order that has been passed by the Arbitrator cannot be described as an award. However, even if it is treated as an award, once it is set aside disputes between them again gets revived thus leaving the field again open to the parties to bargain fresh. In my considered view, the short circuit manner in which the claim has been rejected by the learned Arbitrator has rightly been interfered with by the learned Additional District Judge. 27. In the result, while the appeal filed by the non-claimants is dismissed, the arbitration application filed by claimants is allowed. Hon'ble Mr. Justice N.M. Kasliwal (former Judge of the Supreme Court of India), R/o 20, Kasliwal Path, Mangal vihyar, Gopal Pura by Pass, Tonk Road, Jaipur - 302 018 (Cell No.9414078755), is hereby appointed as an independent sole arbitrator to resolve the disputes between the parties. The cost of arbitration proceedings and the arbitration fees shall be as per the Manual of Procedure for Alternative Dispute Resolution, 2009, of this Court, as amended from time to time. 28. A copy of this order be sent to Hon'ble Mr. The cost of arbitration proceedings and the arbitration fees shall be as per the Manual of Procedure for Alternative Dispute Resolution, 2009, of this Court, as amended from time to time. 28. A copy of this order be sent to Hon'ble Mr. Justice N.M. Kasliwal (former Judge of the Supreme Court of India), R/o 20, Kasliwal Path, Mangal vihyar, Gopal Pura by Pass, Tonk Road, Jaipur - 302 018 (Cell No.9414078755). 29. Office to place a copy of this order in connected file. Appeal dismissed - Application allowed.