C. K. THAKKAR, J. - This petition is filed by the petitioners for appointment of Shri Otnamal Shamumal as arbitrator and for referring the dispute difference between the parties for adjudication by allowing this petition. Prayer is also made to restrain the respondents from conducting partnership business in the name and style of "Vinayak Cold Storage Company" and from transacting, dealing or transferring the property of Vinayak Cold Storage Company in favour of any other party.

The case of the petitioners was that petitioners and respondents entered into a partnership deed on 30th March, 1996 and started business in the name and style of "Vinayak Cold Storage Company" at Jamnagar. Shares of all the partners were fixed under the said agreement. Clause 4 provides that partnership was "partnership at will". Clause 13 fixed shares of the partners and Clause 21 provided that in case of difference or dispute, the matter shall be settled by arbitrator in accordance with the provisions of the Arbitration and Conciliation Act, 1996. A copy of the partnership deed is at Annexure 'A' to the petition.

It was stated by the petitioners that on 23rd February, 1999, respondent No. 1 issued a notice through his advocate to the remaining partners alleging that though he was working with all sincerity, the other partners were not working with devotion. It was, therefore, not possible to carry on business in the partnership and as the partnership was partnership at will, in accordance with the provisions of Section 43 of the Partnership Act, the partnership shall be deemed to be dissolved with effect from January 31, 1999. By another notice dated 7th March, 1999, respondent No. 1 clarified that there was an error of date in the notice which was issued earlier and in fact, partnership firm would stand dissolved with effect from 31st March, 1999 and not from 31st January, 1999.

The petitioners replied to the above notice on 18th March, 1999 admitting that there was partnership firm of Vinayak Cold Storage Company. But it was alleged that since many years, the petitioners were not allowed to take part in business and administration of the firm. They were not given accounts of the firm and their consent was also not taken in running of business. It was stated that under Clause 21 of the partnership deed disputes were to be settled through arbitrator and it was therefore incumbent on the part of respondent No. 1 to get the dispute referred to arbitrator. The petitioners suggested the name of Otandas Shanumal as their arbitrator. Respondent No. 1 was asked to state as to whether the name given by the petitioners was acceptable to him or he was inclined to suggest any other name as his arbitrator.

On 20th March, 1999, respondent No. 1 sent a communication through his advocate to the petitioners and contended that the partnership was partnership at will and every partner had right to dissolve it. It can be dissolved by any partner at any time and there was no question of getting partnership firm dissolved through arbitrator. It was also stated that there was no balance-sheet of accounts and assets. No dispute or difference could be said to have arisen between the parties which can be settled by arbitrator. By another letter dated 6th July, 1999, respondent No. 1 sent a copy of balance-sheet of 1998-99 with a cheque of Rs. 57,661 stating that old partnership had come to an end and a new partnership had come into existence from 1st April, 1999. Petitioner No. 1 however, returned the said cheque along with a letter dated 15th July, 1999.

The case of the petitioners was that since there was partnership firm as per terms and conditions of the partnership deed, all disputes could be settled only by an arbitrator. It was, therefore, incumbent on respondent No. 1 to either accept the name of arbitrator as suggested by them or to give name who can be appointed as his arbitrator and settle the dispute through such arbitrator. Since it was not done, actio