(1) The appellants have preferred this appeal against the order of the learned City Civil Judge, dismissing their application under S. 34 of the Arbitration Act, for stay of all further proceedings in the suit, O. S. No. 3544 of 1962.
(2) The parties entered into an agreement of partnership dated 1-6-1961 for carrying on the business of manufacturing chemicals. Towards the end of 1962, disputes arose between the parties and the notices issued by the plaintiff show that mutual trust and confidence so essential for a smooth and successful carrying on of the partnership business has ceased to exist, and the plaintiff had made several serious charges of fraud and misappropriation and misconduct against the defendants, and that the plaintiff sought a dissolution of the partnership on the ground that it was no longer possible, to carry on the business of partnership save at a loss. The plaintiff issued the notice dated 14-11-1962 to which the defendant sent a replay on 1-12-1962 followed by a rejoinder by the plaintiff dated 6-12-1962. The suit for dissolution was filed on 10-12-1962 and even before filing the written statement, the defendants filed an application under S. 34 of the Arbitration Act, on 18-1-1962, for stay of all further proceedings in the suit.
(3) The learned Judge dismissed the application on two ground: (a) that the defendants have not established that as required under S. 34 of the Arbitration Act they were ready and willing to resort to arbitration proceedings at the commencement of the suit O. S. 3544 of 1962, and continued to be so ready and willing even thereafter; (b) that clause 36 of the partnership deed providing for arbitration would not apply to the particular dispute in question.
(4) At the outset it must be mentioned that in the plaint in addition to leveling charges of fraud, misconduct and misappropriation against the defendants, the plaintiff has sought the relief of dissolution of the firm under Section 44 of the Partnership Act on the ground that the business of the firm cannot be carried on save at a loss. In other words, the plaintiff has asked for the relief of dissolution invoking the court's special jurisdiction and protection on equitable grounds despite the terms by which the rights and obligations of partners may have been regulated. I shall first consider whether defendants have satisfied the requirements of S. 34 of the Arbitration Act, which is substantially on the same terms as S. 4(1) of the English Act of 1950. It runs as follows:
'Section 34. Where any party to an arbitration agreement or any person claiming under him commences any legal proceedings against any other party to the agreement or any person claiming under him in respect of any matter agreed to be referred, any party to such legal proceedings may, at any time before filing a written statement or taking any other steps on the proceedings, apply to the judicial authority before which the proceedings are pending to stay the proceedings; and if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the arbitration agreement and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and willing, to do all things necessary to the proper conduct of the arbitration, such authority, may make an order staying the proceedings.'
(5) In the reply notice dated 1-12-1962 sent by the counsel for the defendants there was no express reference to the arbitration proceedings but it contained only the following statements:
'If on the other hand your client is entitled to any amount, he will be paid the same as already stated and there is no need for any proceedings in court; much less such proceedings in court are not envisaged by the terms of the partnerships.'
If, in spite of this reply your client chooses to take the law into his own hands he will do so at his risk and cost.'
It is obvious that from this statement it cannot be contended that the defendants at all material times were ready and willing to resort to arbitration proceedings and would do everything, in their power for a proper and successful conduct of the arbitration proceedings as required by S. 34 of the Arbitration Act. The statement in the reply notice is dubious and halting and shows that the defendants are merely sitting in the fence without indicating their precise attitude.
(6) The position was no better when the first defendant file the affidavit in support of his application under S. 34. It may be necessary to set out the whole of paragraph 2 of the affidavit above said:
'At the very outset I say that the plaintiff has no right of suit in this court and as per terms of the agreement of partnership to which the plaintiff is a party, this action is wholly misconceived and all further proceedings should be stayed and the matter could only be decided as per the provisions regarding the adjudication of spites touching the agreement in question by arbitration'.
I have no hesitation in holding that the averment extracted above does not satisfy the requirements of S. 34. A party who invokes S. 34 must specifically allege that he was, not only, at the commencement of the suit quite ready and willing to have the dispute resolved by arbitration proceedings, but that he is throughout ready and willing for such arbitration and do everything necessary for the proper and successful conduct of the arbitration proceedings. The readiness and willingness to do everything necessary for the proper conduct of the arbitration proceedings should cover the entire period both before the commencement of the suit and thereafter. The readiness of the defendant should not be a matter of implication but there should be a clear, unambiguous and specific averment to that effect in an affidavit filed by the applicant for the stay of the suit.
It is enough to refer to the following statement of the law in 2 Halsbury Simond's (3rd) Edn. Page 26 para 59:
'The applicant must satisfy the court not only that he is, but also that he was at the commencement of the proceedings, ready and willing to do everything necessary for the proper conduct of the arbitration. He must also file an affidavit to this effect in support of his application for a stay, and unless the court is satisfied on the point the application to stay must be dismissed. A party may be 'ready and willing' within the meaning of this condition notwithstanding his intention to contend before the arbitrator that the time for arbitration limited in the arbitration agreement has expired.'
I may also refer to the decision in Middle East Trading Co. v. New National Mills Ltd., AIR 1960 Bom 292 in which the necessity for the strict compliance of this requirement of the provisions of S. 34 was emphasised. In that case the dispute related to a contract of sale of goods and in the affidavit filed in support of the application under S. 34 the defendant stated as follows--
'I further submit that as the present dispute arose between plaintiffs and the defendants regarding the goods mentioned in the said contract, it was and is incumbent upon the plaintiffs to submit the dispute in suit to the arbitration pursuant to condition 7 (mentioned at the back of the contract). I submit that the plaintiffs have rushed to the court of law without availing themselves of the condition No. 7. The defendants are ready and willing to do all things necessary to the proper conduct of the arbitration in accordance with the terms and conditions of the said contract.'
The learned Judge following the statement of the law in Anderson Wright Ltd. v. Moran and Co. : 1SCR862 , held that such an averment was not sufficient as the defendants has not alleged that they were at the time when the proceedings were commenced ready and willing to do all things necessary for the proper conduct of the arbitration. In the instant case there is no averment at all about the readiness and willingness of the defendants either at the time of the commencement of the proceedings or thereafter. Equally there is no averment that they would do everything necessary for the proper conduct of the arbitration proceedings.
(7) Learned counsel for the appellant, placing reliance upon the Bench decision of this court in Anglo Persian Oil co. v. Panchapakesa Aiyar, ILR 47 Mad 164: AIR 1924 Mad 336, contended that the fact that in the notice the defendants did not aver about or insist upon the arbitration clause but relied on it only in the course of the suit was no ground for reusing stay under S. 34 of the Arbitration Act. The learned Judges, in that case found as a fact that there was no indication that the defendant was not ready and willing to have an arbitration. The decision turned on the peculiar facts of that case, and it does not appear that sufficient importance was attached to the language of S. 19 of the Act of 1899, corresponding to S. 34 of the Act of 1940. In the Supreme Court decision cited above, it has been clearly pointed out that it is also necessary that the applicant for stay should satisfy the court not only that he is but also was at the commencement of the proceedings ready and willing to do everything necessary for the proper conduct of the arbitration. I am therefore of the opinion that on this ground alone this petition for stay is liable to be dismissed.
(8) Coming to the second point clause 36 of the deed of partnership is quite wide enough to embrace the question of dissolution and the onus of showing that the case is not a fir one for arbitration is undoubtedly on the plaintiff, who opposed the application for stay. The court must consider all the circumstances and exercise its discretion according to the varying nature of the different cases arising for decision. Grave charges of fraud and misappropriation are alleged in the plaint and they are all matters too serious to be tried by an arbitrator. Independently of the charges of fraud and unfair conduct alleged against the defendants, the plaintiff is also seeking dissolution under S. 44 clauses (f) and (g) of the Partnership Act of 1932, corresponding to S. 254 of the Indian Contract Act and S. 35 of the English Partnership Act.
Learned counsel for the respondent(plaintiff in the suit) relied upon the judgment of the Privy Council in Rehmatunnissa Begum v. Price, ILR 42 Bom 380: AIR 1917 PC 116 and Venkataswami v. Venkataswami : AIR1954Mad9 , and contended that even though the terms of the partnership provide for a period of ten years for the duration of the partnership, the plaintiff is entitled to a decree for dissolution under Section 44 of the partnership Act, on the ground that the business of the firm cannot be carried on save at a loss or on the ground that the facts of the case render if just and equitable that the firm should be dissolved under Section 44 sub clauses (f) and (g). In the decision of the Privy Council cited above it was held that a partner's claim to a decree for dissolution rested in its origin not only on contract, but on his inherent right in to invoke the court's protection on equitable grounds in spite of the terms on which the rights and obligations of the partners might have been regulated and defined by the contract of partnership. This power of the court to order dissolution is an overriding power to be exercised by the court whenever the justice of the case required. A dissolution on such grounds is solely in the judgment and the discretion of the court, and wholly independent of the contract between the parties.
(9) Learned counsel further urged that whenever a plaintiff seeks dissolution on grounds coming under S. 44(f) and (g) the power of deciding whether the firm should be dissolved is expressly conferred on the court under S. 44 and that such a power cannot be exercised by an arbitrator. This aspect of the matter as to whether an arbitrator can exercise powers analogous to the powers of the court under S. 44 came up for consideration in a recent judgment in England is Olover v. Hillier, 1959-2 All ER 220. It was held that the dissolution of a partnership which involves the exercise of a judicial discretion under S. 35(f) corresponding to S. 44 of the Indian Act) and which may involve the appointment of a receiver and manager, is again a matter which perhaps is more conveniently left in the hands of the court and that when the discretion has been exercised by the trial court against arbitration, such a discretion ought not to be interfered with lightly by the appellate court.
(10) Reference may also be made to the statement of the law in Russell on Arbitration, 17th Ed., page 91:
'However, the court has a discretion to refuse a stay. This discretion must be exercised upon the facts involved, but when a dissolution is claimed, the facts involved are very apt to be such as to call for refusal. This has led to the opinion of the court in Joplin v. Postlethwaite, (1890) 61 LT 629 that a question of dissolution was not a suitable one to be left to arbitrators to decide. Whilst this is not a proposition of law as the cases previously cited show, it may perhaps be regarded as a 'proposition of good sense' and the principle is frequently found persuasive.'
In 28 Halsbury Simond's (3rd) Edn. page 567 the law is stated in these terms:
'Therefore if charges of fraud or dishonesty or of want of good faith are made bona fide by one partner against the other. or if questions of law are likely to arise which are more fit for the court than a lay tribunal or if the action claims dissolution on a ground the power of determining the existence of which is expressly within the discretion of the court, or if the attempted reference is made vexatiously, a stay of the action for dissolution may, and generally will, be refused'.
I am satisfied that the discretion has been properly exercised by the court below in refusing to stay the suit under S. 34 of the Arbitration Act, and no grounds whatsoever have been made out calling for my interference.
(11) The appeal is dismissed with costs.