The court's jurisdiction to order dissolution of partnership under Section 44 of the Indian Partnership Act, 1932, is not ousted by any provisions for arbitration in the partnership agreement. The exercise of such jurisdiction is a matter of judicial discretion in the context of attending circumstances.

( 1 ) THE opposite party instituted a suit in the Third Court of Subordinate Judge, Ali-pore on March 24, 1975 registered as Title Suit No. 59 of 1975 for a decree of dissolution of partnership of the business called "united Syndicate" carried on by the parties and for accounts, for appointment of a Commissioner for accounts and of Receiver for running partnership business, day to day administration thereof and for collection of assets. The allegations were in short that the defaulting partner, who is the defendant in the suit and the petitioner before us, had been committing serious breaches of agreement of partnership which had been set out in the paragraph 9 of the plaint. It was submitted that as by reason of his conduct it had not been practicable for the plaintiff to carry on the partnership business, it was just and equitable that the partnership should be dissolved.

( 2 ) AS the notice of the suit was served on the defendant he filed an application on 7th April, 1975 not verified by affidavit, stating that under the terms of the written partnership agreement all disputes arising out of the partnership should be referred to the Arbitration. Accordingly the Court had no jurisdiction to entertain the suit which should be stayed. Thereafter the petitioner filed another application on April, 18, 1975, which was also not verified by affidavit and it was stated therein that "the defendant was and is ready and willing to go to Arbitration. " On this application the learned trial Judge passed an order on May 7, 1975 allowing the application and stayed the suit and he further directed that the suit be referred to Arbitration of two Chartered Accountants named in the partnership deed.

( 3 ) ON appeal the learned District Judge, Alipore by his order dated July 4, 1975 allowed the appeal and rejected the petitioner's application for stay of the suit under Section 34 of the Arbitration Act. This Rule is against this order.

( 4 ) MR. Saktinath Mukherjee learned Advocate appearing for the defendant petitioner submitted that the Appellate Court was wrong in rejecting the application of the defendant on the ground that it was not verified by affidavit. He submitted that this point was not taken in the Trial Court and if there wag any defect in verification, the Court should have given an opportunity to the defendant to take necessary steps to remove the alleged defect instead of rejecting the same on technical ground.

( 5 ) UNDER Section 34 of the Arbitration Act there must be the following conditions for grant of stay of suit as laid down in Anderson Wright Ltd. v. Moran and Co. , (i) The proceeding must be initiated by a party to arbitration agreement against another party to such agreement. (ii) The legal proceeding sought to be stayed must be in respect of matter to be referred to Arbitration. (iii) The applicant who must not take any step in suit, was at the time of commencement of proceedings and still remains ready and willing to do all things necessary for proper conduct of the Arbitration. (iv) The Court must be satisfied that there is no sufficient reason why the matter should not be referred to arbitration.

( 6 ) OUR attention has been drawn to the decision in Padmanabhan v. Srinivasan, where the Court found that the averment for arbitration was insufficient. In Srivenkateswara Constructions v. Union of India, even though there was absence of averment by the defendant about his readiness and willingness to go to arbitration and the other party's attention was merely drawn to arbitration clause, in the context in which such statement Was made, the Court felt satisfied that the defendant was ready and willing to go to arbitration. In the case before us, the petitioner does not categorically and Unequivocally or even at all say that he was always at the material time ready and willing to do all things for the proper conduct of arbitration and such readiness is not to be inferred by implication. An ins