( 1 ) THIS petition is filed by the petitioner under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the Act") for appointment of arbitrator.

( 2 ) THE case of the petitioner was that he entered into a partnership agreement with the respondent by a deed of partnership dated April 3, 1992 in the name and style of Mukund Brass Industries. Clause 14 of the Partnership Deed provided that in case of any difference or dispute mentioned therein, the same would be settled through arbitration proceedings in accordance with the provisions of the Act, as applicable to such proceedings. According to the petitioner, since dispute had arisen between the parties, he issued a notice on August 4, 1998 to refer the dispute to arbitrator. The respondent, however, failed to refer the matter to arbitrator and hence, the petition. Notice was issued on April 9, 1999 and it was made returnable on May 7, 1999. The matter was thereafter adjourned from time to time. I have heard Mr. J. R. Nanavati with Mr. Mr. A. R. Thakker for the petitioner and Mr. B. P. Munshi for the respondent.

( 3 ) MR. Nanavati submitted that as there was a dispute between the partners, in accordance with Clause 14 of the partnership agreement, the dispute was required to be referred to arbitrator. There was failure on the part of the respondent in referring the matter to arbitrator. The petitioner, therefore, issued notice through advocate which was received by the respondent and even thereafter, several notices were issued but the respondent did not refer the matter to arbitrator and hence, provisions of Section 11 of the Act have been invoked by the petitioner. Relying on various judgments, Mr. Nanavati submitted that Chief Justice may exercise powers under Section 11 of the Act by appointing an arbitrator in accordance with provisions of the Partnership Deed.

( 4 ) IN this connection, Mr. Nanavati drew my attention to the following decisions: (1) M/s Sundaram Finance Ltd. v. M/s. NEPC India Ltd. AIR 1999 SC 565. (2) Rajbir Singh v. Union of India AIR 1999 Delhi 65; (3) Kulbir Singh vs. New Delhi Municipal Council, AIR 1998 Delhi 230 (4) Amati Hymavathi v. Nissankararao Srikrishnamurthy, AIR 1998 A. P. 345 (5) Elizabeth Mathew v. S. K. Narayana AIR 1999 Karnataka 291 (6) Union of India v. M/s S. K. Ahuja and Co. AIR 1988 SC 1172. (7) R. N. Kumar v. R. K. Soral AIR 1988 SC 1205 (8) P. K. Ramaiah v. Chairman and Managing Director National Thermal Power Corporation, (1994) Supp. 3 SCC 126 and (9) Union of India v. Kishori Lal AIR 1959 SC 1362

( 5 ) MR. Nanavati further submitted that all questions on merits raised by the respondent either in reply to the notice or before this Court may be left open and both the parties may be granted liberty to raise all contentions available to them before arbitrator. He, however, contended that the prayer to refer the matter to arbitrator cannot be disputed by the respondent and since there is failure on the part of the respondent in referring the matter to arbitrator, the petitioner was constrained to approach this Court. He, therefore, submitted that appropriate order may be passed referring the matter to arbitrator. Mr. Munshi for the opponent, on the other hand, submitted that the petition is not maintainable and it deserves to be dismissed. According to Mr. Munshi, the petitioner retired from partnership by a deed of retirement dated May 16, 1994 which is produced in the proceedings. In the said deed, it was stated that as per agreement entered into between the parties, which would be effective from April 1, 1994, the petitioner had retired from the partnership on certain terms and conditions as specified in the deed of retirement. He also submitted that accounts were audited and settled. In the deed of retirement, it was specifically provided that liability of the retiring partner would be upto March 31, 1994. After March 31, 1994, the retiring partner would not be liable for any act o