Sukumar Chakraborty, J. - (1.) This appeal is directed against the order dated 31st March, 1981 passed by Sri S.N. Banerjee, the learned Judge, 13 Bench, City Civil Court, Calcutta in Title Suit No. 758 of 1978, rejecting the defendant's application under section 34 of the Arbitration Act, 1980.
(2.) Plaintiffs filed the aforesaid title suit against the defendants for dissolution of the partnership firm under the name and style of Mallick & Co. and for accounts together with the further prayer for injunction restraining the defendant from carrying on business of the said firm in the premises as described in the schedule to the plaint and describing either of them as the sale proprietor of the firm, on the allegation in brief that on the basis of the partnership deed dated 22nd November, 1967 the plaintiffs and the defendants as partners of the aforesaid firm were carrying on the business of the firm and that because of some disputes and differences which arose between the partners since September, 1976, the defendants did not render accounts of the business and did not pay the share of the profits in spite of demands made by the plaintiffs and that the defendants wilfully committed breach of the agreement in the partnership deed relating to the affairs of the firm and that the defendants were carrying on the business of the firm describing themselves as the only owners of the business of the firm and that the defendants opened an account of the firm with the bank describing the defendant no. 2 as the sole proprietor of the firm in violation of the terms of the partnership deed and thereby the defendants made it impossible for the plaintiffs to carry on the partnership business with the defendants.
(3.) The defendants entered appearance and before taking any steps in the suit, filed the application under section 34 of the Arbitration Act (hereinafter referred to as the Act) for stay of the proceedings of the suit Defendants' case. In brief in the said application were as follows:- The plaintiffs and the defendants constituted the aforesaid partnership firm by executing a partnership deed and that they carried on the partnership business in accordance with the terms of the partnership deed. The disputes and differences arose between the partners. In January, 1977 and in the month of February, 1977, through the Intervention of the well-wishers of both the partners, the disputes and differences were settled and both the parties arrived at a settlement for dissolution of the partnership firm and accordingly a deed of dissolution of the partnership was approved by both the parties and that approved deed was an annexure to the petition. Non-Judicial stamp was purchased by the plaintiff no. 2 for execution and registration of the deed of dissolution. The accounts of the partnership business were also mutually settled as per the balance sheet of the firm duly signed by both the parties. The plaintiffs were delaying the execution and registration on one pretext and the other in terms of the arbitration clause in the partnership deed, all the disputes and differences of opinion which might arise between the partners would be settled according and subject to the provisions of Arbitration Act. The disputes and differences regarding dissolution of that partnership business end the settlement of accounts were covered by the arbitration clause. The plaintiffs however without referring the disputes and differences to the arbitrator according to the arbitration agreement, filed the suit for the reliefs as already stated. The defendants after their appearance and before taking any steps in the suit, filed the application for stay of the suit on the specific allegation that they were and are ready and willing to do everything necessary for the proper conduct of the arbitration.;