JUDGMENT

(Prayer: First Appeal filed under Section 96 of C.P.C., r/w. Order XLI Rule 1 of the Code of Civil Procedure, 1908, against the judgment and decree dated 29.04.2016 and made in O.S.No.719 of 2011 on the file of the V-Additional District Judge, Coimbatore.)

R. Subramanian, J.

1. This appeal was originally filed by the defendants 1 to 3 in O.S.No.719 of 2011 on the file of the V-Additional District Judge, Coimbatore, a suit for dissolution of the 1st defendant firm at the instance of one of its partners, the plaintiff.

2. Since the second appellant died pending appeal, his legal representatives were brought on record as appellants 4 to 6. The parties will be referred as per their rank in the Trial Court for the purposes of convenience.

3. The plaintiff sued for dissolution of the 1st defendant firm contending that the defendants 2 and 3, who were in-charge of the affairs of the firm had been keeping her way from the business and have been indulging in acts of mismanagement. According to the plaintiff, the 1st defendant firm was started on 23.01.1974 with the defendants 1 and 2, the plaintiff, one Nanjappan and one Palasseri Prabhakaran Nair as a partners. The capital of the firm was Rs.90,000/-. While the defendants 1 and 2 contributed a sum of Rs.12,500/- each, the plaintiff contributed a sum of Rs.20,000/-. The firm was originally engaged in coir business. Subsequently, one of the partners, Palasseri Prabhakaran retired from the firm. After his retirement, a deed of reconstitution was entered into amongst remaining partners namely, the plaintiff, defendants 1 and 2 and Nanjappan on 01.01.1978. The capital of the firm, was increased to Rs.2,90,000/-. Each of the partners contributing a sum of Rs.72,500/-. The business of the firm was also changed, godowns were constructed in the land belonging to the firm and they were let out to various persons.

4. It was agreed that the profits or losses the business should be shared equally amongst the partners. Subsequently, Nanjappan also retired from the firm leaving the plaintiff and the defendants 1 and 2 as partners. The plaintiff's husband, who was a Lawyer was a good friend of the 2nd defendant and that was the main reason for the plaintiff to join the partnership. The plaintiff's husband passed away and thereafter, the attitude of the 2nd defendant towards the plaintiff was not all that conducive. The 2nd defendant started excluding the plaintiff from the business and also did not account for the income properly thereby, denying the plaintiff's legitimate share in the income from the business. The plaintiff was, therefore forced to seek dissolution. Since the partnership deed contained an Arbitration clause, the plaintiff issued a notice on 20.08.2011 dissolving the partnership from 30.08.2011 and requiring the defendants to nominate any one of the Arbitrators named by the plaintiff. Since no reply was received, the plaintiff issued a re-joinder appointing Mr.Shanmugam, a retired District Judge as Arbitrator on 13.09.2011. The defendants 2 and 3 sent a reply on 27.09.2011 making false and unacceptable allegations. However, the defendants did not accept the said nomination forcing, the plaintiff to sue for dissolution.

5. The suit was resisted by the defendants contending that the suit for dissolution is not maintainable in as much as there is an Arbitration agreement between the parties. While admitting the allegations regarding the partnership, it was claimed that there was no re-constitution on 01.01.1978. It was also the contention of the defendants, the plaintiff cannot seek for dissolution but she can only retire from the firm on the terms set out in the partnership deed. The claim of the plaintiff regarding execution and mismanagement were denied. It was contended that the defendants have been distributing the rental income / profits according to the provisions of the partnership deed. It was also contended that there was no c