Judgment :- S.R.SINGHARAVELU, J. This Application was filed under Order 14Rule 8 of O.S. Rules read with Section 8(1) and (2) of Arbitration and Conciliation Act, 1996, praying to dismiss this suit C. S.No. 847 of 2005 as not maintainable and to direct the plaintiffs to invoke the arbitration clause contained in the instrument of partnership dated 1.4.1997 pertaining to the first defendant firm. 2. The respondents/plaintiffs are the sons of one Manjunath Pai whose brothers are the defendants 2 to 4 in the suit. The 5th and 7th defendants are the respective sons of 2nd and 3rd defendants. 6th and 8th defendants are the respective wives of 5th and 7th defendants. Originally Manjunath Pai and his brothers constituted a partnership firm on 1.4.1972 as amended on 1.4.1976 and 1.4.1996. In the year 1996 Manjunath Pai expired and his sons the respondents/plaintiffs were inducted into partnership firm. Since then there was no amicable relationship between the partners, especially with the respondents/plaintiffs. There was a modified partnership dated 1.4.1997. Even though the respondents/plaintiffs contend that they signed the said partnership agreement dated 1.4.1997 without specifically aware, of the contents thereof, it is stated at the end of para 7 of the plaint that the respondents/plaintiffs are proceeding upon the basis that rights of parties are governed by latest amended partnership dated 1.4.1997. 3. Clauses 11 and 14 of the partnership deed dated 1.4.1997 is as follows: “ 11. The partnership cannot be dissolved either by death or insolvency or for any other reason. In the event of death of any partner, one of the legal heirs of the deceased partner nominated by all the legal heirs of the deceased partner shall be taken in as a partner in the place of the deceased partner. In the event of legal heirs not being able to nominate any such person, the son or daughter or wife or daughter-in-law of the deceased partner shall be admitted as a partner in the place of the deceased partner. 14. In the day-to-day working of the business the decisions of the parties of the first part and second part shall be binding on all the other partners. Any other dispute or differences which may arise between the parties shall be referred to the other partners and the majority decision shall prevail. 14. In the day-to-day working of the business the decisions of the parties of the first part and second part shall be binding on all the other partners. Any other dispute or differences which may arise between the parties shall be referred to the other partners and the majority decision shall prevail. In the event of there being no clear majority in favour of a decision, the dispute or difference shall be referred to an arbitrator and the decision of the arbitrator shall be final and binding on all partners.” 4. Mr.T.R.Mani, learned senior counsel appearing for the respondents/plaintiffs submitted that mutual consent alone is the fulcrum and basis of a partnership and the latter may exist only so long as the former survives; when once mutuality of mind in terms of the running of the partnership firm goes, and when once the confidence reposed upon either of the partners vanishes, the right of dissolution can automatically come into picture, for being exercised by any one of the partner. In other words, there cannot be a clog of dissolution of a partnership firm. In this connection reliance was placed in a case law Rehmatunnissa Begum v. Price and Others Rehmatunnissa Begum v. Price and Others Rehmatunnissa Begum v. Price and Others AIR 1917 PC 116: 35 MLJ 262, in which the following observation was made: “A partners claim to a decree for dissolution rests, in its origin, not on contract, but on his inherent right to invoke the Courts protection on equitable grounds, in spite of the terms in which the rights and obligations of the partners may have been regulated and defined by the partnership contract. It is not, therefore, any contravention of Section 252 (New Section 42) for one of the partners to seek a dissolution or for the Court to decree it under Section 254 (New Section 44) when the partnership is working only at a loss, though the partnership agreement contemplated the continuance of the partnership beyond the date at which the suit was instituted.” 5. Dissenting with the judgment of the Allahabad High Court and falling in line with the proposition made in the above said Privy Council case, this Court in a case law reported in Vali Venkataswami and Others v. Gannabathulla Venkataswami Vali Venkataswami and Others v. Gannabathulla Venkataswami Vali Venkataswami and Others v. Gannabathulla Venkataswami AIR 1954 Madras 9: 1953 (2) MLJ 387 observed as follows: “Section 44 (New Section 54) is not made subject to the contract between the parties and gives a right to the partner to seek the assistance of a Court to have a partnership dissolved on grounds specified in the Section. Section 11 makes the contract between the parties subject to the provisions of the Act, and Section 44 being one of the provisions of the Act, the contract is undoubtedly subject to the right under Section 44.” 6. That was also a case where the confidence between partners which is the fundamental basis of a contract of partnership and for the successful carrying on the business has been lost. In that case the legal position as summarised in Lindley On Partnership at page 69 was culled out therein, which is as follows: “It may, however, be usefully observed here that keeping erroneous accounts and not entering receipts, refusal to meet on matters of business, continued quarrelling, and such a state of animosity as precludes all reasonable hope of reconciliation and friendly co-operation, have been held sufficient to justify a dissolution. It is not necessary, in order to induce the Court to interfere, to show personal rudeness on the part of one partner to the other, or even any gross misconduct as a partner. All that is necessary is to satisfy the Court that it is impossible for the partners to place that confidence in each other who has a right to expect and that such impossibility has not been caused by the person seeking to take advantage of it.” 7. All that is necessary is to satisfy the Court that it is impossible for the partners to place that confidence in each other who has a right to expect and that such impossibility has not been caused by the person seeking to take advantage of it.” 7. Similar to the clause of dissolution as found in Clause 11 of the partnership deed herein, there was also a clause of the partnership agreement mentioned in that case, which is as follows: “if any partner is not willing to continue as partner in the said cinema, he should transfer and sell his share of the amount credited in his account towards capital of the cinema to all other partners or to some of them or to one of them but he has no right to sell the same to outsiders.” 8. It is in this respect a view was expressed by the Allahabad High Court in a case law reported in Smt. Dropadi v. Bankey Lal AIR 1939 All. 548 that unless it has expressly been so stated in the Act, the contract would prevail and if the contract negatives the right of dissolution, a party cannot invoke the aid of Section 44. That view was rightly discountenanced in Vali Venkataswami and Others v. Gannabathulla Venkataswami Vali Venkataswami and Others v. Gannabathulla Venkataswami Vali Venkataswami and Others v. Gannabathulla Venkataswami [supra] in the following lines: “Assuming for a moment that Clause 22 of the partnership deed amounts to a contract to the contrary, the question is whether it is open to the partners to contract out of the right, conferred by Section 44. Section 44, it may be observed, is not made subject to the contract between the parties and gives a right to the partner to seek the assistance of a Court to have a partnership dissolved on grounds specified in the Section. Section 11 makes the contract between the parties subject to the provisions of the Act, and Section 44 being one of the provisions of the Act, the contract is undoubtedly subject to the right under Section 44. Section 11 therefore does not override the provisions of Section 44. In the Act itself, whenever the Legislature intended that the right conferred under a particular Section is to be subject to the contract between the partners, it has expressly stated so, for example, Sections 12 to 17 and Section 42. Section 11 therefore does not override the provisions of Section 44. In the Act itself, whenever the Legislature intended that the right conferred under a particular Section is to be subject to the contract between the partners, it has expressly stated so, for example, Sections 12 to 17 and Section 42. On a plain reading therefore of the provisions of the Act, it seems to me clear that the clause in the partnership deed would not affect in any manner the right of the partner to institute a suit for dissolution provided the grounds enumerated in Section 44 exist.” 9. The above view was taken by relying upon the principle enunciated by the Judicial Committee in the Privy Council case mentioned above. 10. In order to justify the reasoning for the correct view taken in the above said case of our High Court, it is also mentioned therein as follows: “The expression” subject to the provisions of this Act “ did not occur in Section 252, Contract Act. In my opinion therefore when the Legislature enacted Section 11, it must have been aware of the decision in AIR 1917 PC 116 (B) and must have deliberately introduced the expression” subject to the provisions of the Act “ with a view to make it clear that the right under Section 44 cannot be taken away by the contract between the partners. In my opinion, therefore, the contention urged on behalf of the appellants, that the suit is not maintainable by reason of the existence of Clause 22 of the partnership deed cannot be accepted.” 11. From the above said analysis it can be well said that Clause 11 may not dis-entitle the plaintiff from claiming for dissolution. Therefore, the suit is maintainable and there may not be a ground in this respect for non suiting the plaintiff. 12. Coming to Clause 14, what is contained therein is that all the day-to-day affairs of the firm will be governed by the senior partners viz., the second and third defendants; any other dispute in respect of the activities of the firm will be decided by the majority of partners (total number of partners are 9); if there is no clear majority, then the matter will be referred to arbitration. There is ample evidence available in the letter dated 6.7.2005 of the defendants themselves regarding the dissolution of partnership claimed by the respondents/plaintiffs on the basis of non-existence of amicability between the partners, more so against the respondents/plaintiffs themselves with the other partners. There was a meeting of partners in which a decision was arrived at to remove the respondents/plaintiffs from partnership firm and to reconstitute the firm by excluding the respondents/plaintiffs’ firm. This is found in the above letter of defendants in the following lines: “As per the view of the majority of the partners of The Premier Service Station, you are not at all interested in continuing in the said firm and that is the reason why you are making false and derogatory allegation against the firm and its senior partners. It is rather unfortunate that you are relying on a superseded and non-existent partnership deed dated 1.4.1996 and issued the notice under reply without any basis. You have failed to note that as per the amended partnership deed dated 1.4.1997; the following clauses shall prevail from 1.4.1997: • a) “Partnership cannot be dissolved either by death or insolvency or for any other reason ” (vide Clause 11). Hence the question of your dissolving the firm with effect from 1.5.2005 does not arise. • b) “Any other dispute or differences which may arise between the parties shall be referred to the other partners and the majority decision shall prevail. In the event of there being no clear majority in favour of a decision the dispute or difference shall be referred to an arbitrator and the decision of the arbitrator shall be final and binding on all partners. ” (vide Clause 14). Now as the majority partners have decided to settle your account up to 15.7.2005, we request both of you to come and execute necessary deed of retirement from the partnership firm - The Premier Service Station, or otherwise the majority partners will be forced to take a decision to reconstitute the firm by excluding you from the partnership after 15.7.2005 as decided by you by enforcing Clause 14 of the partnership deed dated 1.4.1997.” 13. Thus, as per Clause 14, decision of majority of partners upon any dispute will prevail; and if only there is no clear majority the matter may be referred to the arbitration. Thus, as per Clause 14, decision of majority of partners upon any dispute will prevail; and if only there is no clear majority the matter may be referred to the arbitration. Now that there is clear majority in this issue no need for referring the matter to arbitration. 14. As laid down in a case law reported in P.Anand Gajapathi Raju and Others v. P.V.G.Raju (died) and Others P.Anand Gajapathi Raju and Others v. P.V.G.Raju (died) and Others P.Anand Gajapathi Raju and Others v. P.V.G.Raju (died) and Others AIR 2000 SC 1886 : 2000 (4) SCC 539 in order to apply Section 8(1) and (2): (1) There shall be an arbitration agreement; (2) A party to the agreement brings an action in the Court against other parties; (3) Subject matter of the action shall be the same as the subject matter of the arbitration agreement. 15. Here the subject matter of the arbitration agreement is that in case no clear majority is found upon any dispute it can be referred to the arbitration. But the subject matter of the action is not as if there was no clear majority of the partnership in relation to the dissolution. 16. It was also laid down in a case law reported in Sukanya Holdings Pvt. Ltd. v. Jayesh H. Pandya and Another Sukanya Holdings Pvt. Ltd. v. Jayesh H. Pandya and Another Sukanya Holdings Pvt. Ltd. v. Jayesh H. Pandya and Another AIR 2003 SC 2252 : 2003 (5) SCC 531 and Jain Housing and Estates, Chennai and Another v. C.Kesavanram and others Jain Housing and Estates, Chennai and Another v. C.Kesavanram and others Jain Housing and Estates, Chennai and Another v. C.Kesavanram and others 2005 (4) MLJ 490 that to refer a case for arbitration, issues involved in the suit shall be mutatis mutandis of the subject matter of the arbitration agreement. It is not so here because there was clear majority among partners. The suit is for dissolution; but the arbitrator is to substitute the idea of partners, when there could be no clear majority or consensus. 17. So viewed in any angle, the matter may not be referred to arbitration, for the reasons stated supra and this application is dismissed as without merits.