S. SANKARASUBBAN, J. - The above C.M. Appeal is filed against the order in I.A. No. 3553 of 1997 in O.S. No. 317 of 1997 on the file of the Principal Sub-Court, Noth Parur. Plaintiff is the appellant. The suit was filed by the appellant for a decree of dissolution of partnership, that accounts be taken from the defendants and a decree be passed in favour of the plaintiff for the amounts that may be found due from the defendants to appoint a receiver and for other reliefs.

2. According to the plaintiff, the plaintiff and defendants 1 to 3 have been carrying on business of manufacturing and trading in boat propellers and other allied products under the name and style 'Matha Metal Works' as per an agreement of partnership in writing executed between the parties on 15.10.1993. The partnership has been registered with the Registrar of Firms and the register number is 4738. Under the terms of the agreement, the plaintiff is the Managing Partner and the plaintiff is to contribute an amount of Rs. 1,50,000/- to the capital of the partnership and the plaintiff is entitled to get 62 1/2% of the profits per annum. The plaintiff is also entitled to get a monthly remuneration of Rs. 1,000/-. It is further averred that disputes have arisen between the plaintiff and the defendants as partners whereby it has become impossible to carry on the business in partnership with advantage to each partner. It is further stated that defendants have violated the conditions laid down in the agreement by misappropriating the profits realised from the partnership business and is not showing the accounts and not rendering accounts. Even though the plaintiff many times approached the defendants for rendition of accounts, the defendants refused to do so. Hence, the suit was filed for dissolution of the partnership.

3. Along with the suit, a petition was filed for attachment of movables. Then the defendants filed I.A. No. 3553 of 1997. The above I.A. was filed under Section 34 of the Arbitration Act. In the affidavit filed along with the application, it is stated that as per Clause 14 of the partnership deed, any dispute or difference, which may arise between the partners with regard to the construction, meaning and effect of the deed or any part thereof, or respecting the accounts, profits or losses, of the business, or the rights and liabilities of the partners under the deed or the dissolution or winding up of the business or any other matter relating to the Firm shall be referred to arbitration and such difference shall be decided by the mediators as far as possible. On the basis of this, the defendant stated that the dispute between the parties has to be referred to arbitration and till then the dispute between the parties has to be decided in the suit.

4. A counter affidavit was filed by the plaintiff. It is stated that the petition filed by the defendants do not state that they are ready and willing to have the matter decided by arbitration. Further, it is stated that the suit is for dissolution involving exercise of judicial discretion. Therefore, the matter to be decided by a Court than an Arbitrator and that the petition has to be dismissed. The Court below allowed the application and stayed the proceedings.

5. Learned counsel for the appellant submitted that the application under Section 34 of the Arbitration Act was not maintainable. The application was filed on 28.11.1997 and the suit itself was filed on 21.11.1997. Learned counsel contended that the Arbitration and Conciliation Act, 1996 came into force on 25.1.1996 and with the commencement of 1996 Act, the 1940 Act ceased to have any existence. He further contended that as per 1996 Act, a petition for stay cannot be filed. The only petition that can be filed is a petition under Section 8 of the Arbitration Act, 1996. As per this Act, the application has to be filed referring the dispute to arbitration. He further submitted that there is no provision akin to Section 34 of the 1940 Act an