K. M. MEHTA, J. ( 1 ) RULE. Mr. P. R. Nanavati, learned advocate waives service of rule on behalf of respondents. ( 2 ) HEMENDRA Babulal Shah and others, petitioners-original plaintiffs, have filed this revision Application before this Court under section 115 of the Code of Civil Procedure, against the judgment and order dated 25. 11. 1997 passed by the learned Chamber judge, City Civil Court, Ahmedabad in Civil suit No. 2942 of 1992; Order below Exh. 14. The learned Judge by his impugned judgment and order was pleased to allow the application of defendant filed under Section 34 of the Arbitration Act, 1940, for staying of the suit. ( 3 ) THE facts giving rise to this Revision application are as under:-Originally Hemendra Babulal Shah -plaintiff no. 1 and Smt. Smitaben hemendrakumar Shah - plaintiff no. 2 had filed a Civil Suit No. 2942 of 1992 before the city Civil Court at Ahmedabad. In the said suit, the plaintiffs contended that there is a firm known as "m/s. Siddharth Tyres" which is a registered firm and a partnership deed is executed on 7th August, 1987. The plaintiff- Smt. Smitaben Hemendrakumar Shah and defendant no. l Babulal Shivlal Shah and defendant no. 2 Kailashben Rameshchandra mehta were the partners of the said partnership firm. The main purpose of the partnership firm was trading in tyres, tubes and other accessories. Clause (5) of the said partnership deed provides to carry on business and the duration of the partnership firm is at will. ( 4 ) IN the suit it was contended that the defendants have committed breach of the conditions of partnership deed dated 7. 8. 1987. Now it is not reasonably practicable for plaintiff to continue to carry on business of suit partnership firm. In view of the same it was submitted that a partnership is at will therefore it can be dissolved by any one of the partners. So it was submitted that it is just and equitable to dissolve the partnership firm. It was contended that in these circumstances the plaintiff was constrained to file suit and obtaining the decree of accounts. So ultimately in the prayer clause it was prayed that the Court may be pleased to pass a decree to dissolve the suit partnership firm, namely M/s. Babulal Shivlal shah constituted by partnership deed dated 7. 8. It was contended that in these circumstances the plaintiff was constrained to file suit and obtaining the decree of accounts. So ultimately in the prayer clause it was prayed that the Court may be pleased to pass a decree to dissolve the suit partnership firm, namely M/s. Babulal Shivlal shah constituted by partnership deed dated 7. 8. 1987 and shares of plaintiff and each defendant in the suit partnership firm may please be declared. The said suit was filed on 4. 6. 1992. The Court has issued notice and that is how the defendants were served. ( 5 ) THEREAFTER the defendants filed application on 8. 6. 1992 under Section 34 of the Arbitration Act, 1940 (hereinafter referred to as "the old Act" ). It was submitted that Clause 9 of the Partnership Deed provides if any dispute arises in or in connection with the partnership firm, such dispute has to be resolved by a method of arbitration instead of approaching the court of law. The suit filed by the plaintiffs is clearly contrary to and inconsistent with the said clause, and therefore, they filed this application with a prayer that the Court may stay the present proceedings of the suit. The defendants further prayed that the Court may be pleased to refer the dispute and difference between the plaintiffs and the defendants in connection with the suit partnership firm to arbitration. ( 6 ) THE learned Judge has also considering the fact of the case and having regard to arbitration clause in the partnership deed, parties are under obligation to resolve the dispute through the process of arbitration. The Court held that, as the parties to the proceedings are members of one family and close relatives, it is therefore desirable to resolve the dispute through arbitral proceedings and to exercise discretion and powers conferred under section 34 of the Old Act in favour of the defendant to stay the proceedings. Being aggrieved and dissatisfied by the said order the appellants-original plaintiffs filed this Civil Revision Application before this Court. ( 7 ) THE learned Counsel Mr. M. C. Bhatt has invited my attention to clause (5) of the agreement which provides that partnership is at will. He further submitted that, as regards dissolution of the partnership firm, there is no specific clause. ( 7 ) THE learned Counsel Mr. M. C. Bhatt has invited my attention to clause (5) of the agreement which provides that partnership is at will. He further submitted that, as regards dissolution of the partnership firm, there is no specific clause. He further submitted that, the dissolution of the partnership firm has not been contemplated by agreement to refer to arbitrator and, therefore, even if the Court has passed the order regarding arbitration, the arbitrator cannot decide the dissolution of partnership firm. Therefore, the order of the Court staying the suit and directing the arbitrator to conduct the proceedings is bad in law. ( 8 ) THE learned advocate for the petitioners has relied upon some of the provisions of the Partnership Act, particularly Section 4 which provides definition of partnership , partner , firm , and firm name . Chapter VI provides a dissolution of a firm and in that Chapter vi, Section 39 provides dissolution of a firm, section 40 provides dissolution by agreement . Section 42 provides dissolution of happening of certain contingencies and section 43 provides dissolution by notice of partnership at will . Section 43 reads as follows:"sec. 43 Dissolution by notice of partnership at will - (1) Where the partnership is at will, the firm may be dissolved by any partner giving notice in writing to all the other partners of his intention to dissolve the firm. (2) The firm is dissolved as from the date mentioned in the notice as the date of dissolution or, if no date is so mentioned, as from the date of the communication of the notice. " ( 9 ) THE learned counsel for the petitioners submitted that the learned Judge has not followed the binding decision of this court in the case of MANIBHAI shankerbhai PATEL V/s. SWASHRAY construction CO. AND ORS. , reported IN 23 (1) GLR 312, particularly para 5 at page 314 to 315 which reads as under: (Per: A. M. Ahmadi, J.) (as he was then ). "wo provision is made in the partnership deed fixing the duration of the partnership and, therefore, by virtue of sec. 7 of the Partnership Act, where no such provision is made by contract between the partners, the partnership is a "partnership at will". "wo provision is made in the partnership deed fixing the duration of the partnership and, therefore, by virtue of sec. 7 of the Partnership Act, where no such provision is made by contract between the partners, the partnership is a "partnership at will". Sec. 43 of the Partnership Act next provides that where the partnership is at will, the firm may be dissolved by any partner giving notice in writing to all the other partners of his intention to dissolve the firm. Once such a notice is given, the firm is dissolved as from the date mentioned in the notice as the date of dissolution or, if no date is so mentioned, as from the date of the communication of the notice. It is well-settled that if a suit is instituted for the dissolution of the partnership and for rendition of accounts, the service of the summons along with the copy of the plaint on the other partners is notice of dissolution within the meaning of sec. 43 of the partnership Act. It is, therefore, obvious that if in a partnership at will one of the partners does not desire to carry on business in partnership with the other partners and serves notice of dissolution, the firm stands dissolved from the date of dissolution mentioned in the notice and if no such date is mentioned, from the date of communication of the notice to the other partners. That is the effect of sec. 43 of the partnership Act. It is in the context of this statutory position emerging from a conjoint reading of sec. 7 and sec. 43 of the Partnership act, that one has to determine the scope of clause (16) of the partnership deed. Now, that clause states that if there is any dispute in regard to any matter concerning the firm between the partners, without resorting to the Court of law the partners shall have it determined under the Arbitration Act through an arbitrator and the decision of the arbitrator will be binding on all the partners. If under the provisions of the Partnership act it is open to a partner to dissolve a partnership at will in the manner provided by sec. If under the provisions of the Partnership act it is open to a partner to dissolve a partnership at will in the manner provided by sec. 43 of the Partnership Act, that right conferred on a partner cannot be denied to him on the interpretation that clause (16) of the partnership deed is wide enough to cover any and every dispute between the partners. If a partner does not desire to carry on business with his other partners and has a right to dissolve the firm under sec. 43 of the partnership Act, can it be said on an interpretation of Clause (16) of the partnership deed that that right is taken away and the partner has no remedy but to continue with the partnership assuming the arbitrator holds against him in the proceedings that may be commenced under the Arbitration Act" The answer to this poser must necessarily be in the negative. In a partnership at will it is open to a partner even if there is no dispute between the partners whatsoever to dissolve the firm by virtue of sec. 43 of the Partnership Act. That section does not lay down that there must exist a dispute between the partners for the purpose of dissolving the firm. All that it says is that if the partnership is at will, it is open to any partner to dissolve that firm by giving notice in writing to all the other partners of his intention so to do and on the service of such notice the partnership will stand dissolved from the date mentioned in the notice or from the date of communication of the case may be. Therefore, in a partnership firm at will if a partner desires to dissolve the firm by giving notice as required by sec. 43 of the Partnership Act, his right cannot be taken away by such an arbitration in the partnership deed. If it was the intention of the partners that partnership should not be dissolved till a certain event happens, such a specific provision would have been found in the document and the partnership would not have been a partnership at will. It is, therefore, difficult to understand how a partner who desires to dissolve the firm can be forced to resort to arbitration. It is, therefore, difficult to understand how a partner who desires to dissolve the firm can be forced to resort to arbitration. It, therefore, necessarily follows that Clause (16)of the partnership deed has application only during the subsistence of the partnership and it does not have the effect of taking away the right conferred on a partner by sec. 43 of the Partnership Act to have the partnership dissolved by notice if the partnership is a partnership at will. On this interpretation as regards the scope of Clause (16) of the partnership deed, it must be held that the learned trial Judge was not right in staying further proceedings in the suit order sec. 34 of the Arbitration Act. " ( 10 ) RELYING upon the aforesaid judgment heavily, the learned counsel submitted that, the partner has got a statutory right to get the partnership dissolved, if the partnership is partnership at will, and therefore, this is not a dispute governed by Section 34 of the arbitration Act. The learned counsel further submitted that, the statutory right namely right under the provisions under Partnership act to dissolve the firm can be exercised by a partner at any time and there cannot be any dispute regarding prayer of one of the partners for dissolving the partnership firm if the partnership firm is partnership at will. The learned counsel further submitted that, the learned Judge ought to have held that the respondents were not ready and willing to resort to arbitration proceedings. The learned advocate further submitted that the learned Judge ought to have held that the notice of motion for stay was moved by the respondent with an intention to delay the proceedings, and with ulterior motives. ( 11 ) THE learned counsel for the petitioners has also relied upon the judgment of this Court in the case of rameshchandra V/s. HARIDAS, reported IN 1984 (4) GLH (U. J.)24 where in identical situation, the Court has held as under:"it was urged on behalf of the appellant that clause 20 would stand attracted even when there was a dispute whether the firm should or should not be dissolved. It is difficult to agree with the submission made. Clause 20 very clearly states that any dispute regarding business between the partners shall be referred to the first four partners of the firm and their decision shall be final. It is difficult to agree with the submission made. Clause 20 very clearly states that any dispute regarding business between the partners shall be referred to the first four partners of the firm and their decision shall be final. Secondly, any dispute in respect of the interpretation of the deed or about the conduct of partner or partners shall be referred to arbitrators under the provisions of the Arbitration Act and such and award was binding on all the partners of the firm. Obviously dissolution of the firm is not covered by this clause". ( 12 ) ON the other hand, Mr. P. R. Nanavati, learned advocate for the respondent has supported the reasonings of the learned Trial Judge in this behalf. The learned advocate submitted that it is just and proper that the trial court has passed the order after hearing both the parties. It was further submitted that clause 9 of partnership deed contains the arbitration clause. The learned Chamber Judge has rightly relegated the parties for arbitration and rightly stayed the suit proceedings. He has submitted that the impugned order is just and proper and did not require to be interfered with by this Court. He has also relied upon Sec. 34 of the Arbitration Act, 1940 as well as Sec. 8 of the Arbitration Act, 1996 and submitted that both the sections supports arbitration in the case of dispute between family members when arbitration clause is incorporated and especially when the dispute is between family members. He also relied upon Sec. 89 of the Code of Civil procedure which also reflects the same sentiments. Looking to the above the arbitration is most valuable solution as the parties are belong to one family. Conclusion and Findings: ( 13 ) CHAPTER VI of the Partnership Act provides Dissolution of a firm Section 39 provides that the dissolution of partnership between all the partners of a firm is called the "dissolution of the firm". Section 40 provides dissolution by agreement, namely a firm may be dissolved with the consent of all the partners or in accordance with a contract between the partners. Section 41 provides compulsory dissolution. Section 42 provides dissolution on the happening of certain contingencies and Section 43 provides dissolution by notice of partnership at will. Section 40 provides dissolution by agreement, namely a firm may be dissolved with the consent of all the partners or in accordance with a contract between the partners. Section 41 provides compulsory dissolution. Section 42 provides dissolution on the happening of certain contingencies and Section 43 provides dissolution by notice of partnership at will. ( 14 ) IN view of the judgment of Privy council in the case of RAM SINGH V/s. RAM CHAND REPORTED IN AIR 1924 privy COUNCIL 2 where the Hon ble Court has held that in a partnership at will a partner is entitled to dissolution. It is not an equitable right but it is a legal right, under the Code and under the Contract. ( 15 ) IN view of judgment of Privy council in the case of SATHAPPA CHETTY and OTHERS V/s. S. N. SUBRAHMANYAN chetty AND OTHERS REPORTED IN AIR 1927 PRIVY COUNCIL 70. It has been held that filing plaint in a suit for dissolution by one partner is enough of itself to put an end to a partnership at will. ( 16 ) I also rely upon another judgment of the Hon ble Apex Court in the case of banarsi DAS V/s. KANSHI RAM AND others REPORTED IN AIR 1963 SC 1165 , particularly PARA 12 the Hon ble supreme Court after referring to Order 20 rule 15 has observed like this:"in a partnership at will, if one of the partners seeks its dissolution, what he wants is that the firm should be wound up, that he should be given his individual share in the assets of the firm (or may be that he should be discharged from any liability with respect to the business of the firm apart from what may be found to be due from him after taking accounts) and that the firm should no longer exist. He can call for the dissolution of the firm by giving a notice as provided in sub-s. (l) of S. 43 i. e. , without the intervention of the court, but if he does not choose to do that and wants to go to the court for effecting the dissolution of the firm, he will, no doubt, be bound by the procedure laid down in O. 20, R. 15 of the Code of Civil procedure. " ( 17 ) THEREAFTER in para 14 the hon ble Apex Court has observed like this:". . . It would follow, therefore, that a partnership would be deemed to be dissolved when the summons accompanied by a copy of the plaint is served on the defendant, where there is only one defendant, and on all defendants, when there are several defendants. Since a partnership will be deemed to be dissolved only from one date, the date of dissolution would have to be regarded to be the one on which the last summons was served. " ( 18 ) IN view of the aforesaid decision, when in this case, the partnership is at will, then Section 43 which relates to dissolution of partnership applies. Section 7 of the partnership Act also provides partnership at will or for department thereof, the said partnership can be terminated at will of any one or more of the partners. ( 19 ) IN this case, as partnership was at will and as one of the partners namely hemendra Babulal Shah has made serious allegations and filed a suit with a prayer that the decree for dissolution be given for dissolving the partnership firm which was entered into, so when the suit is filed when no earlier notice has been given but when the suit is filed on 4/6/1992, so in view of the Privy Council judgments in the case of ram Singh (supra), Sathappa Chetty (supra), and judgment of Hon ble Apex Court in banarsi Das (supra) wherein it has been held that filing of the plaint in suit, even service is enough to put and the partnership at will. ( 20 ) THE learned trial Judge has relied upon the judgment of the Hon ble Apex court in the case of SMT. PREMLATA AND another V/s. M/s. ISHAR DASS chaman LAL AND OTHERS, REPORTED in AIR 1995 SC 714 . In that case, the question was that the partner was entered into on 13/12/1965. One of the partner was expired on 6/3/1978, therefore, the partnership dissolved. However, as widow and other persons did not get their share, the sum of the partner involved, clause (16)of the Partnership Act invoke the arbitration clause. Relied upon Section 20 of the Old arbitration Act, the Trial Court negatived the ground that partnership was unregistered. One of the partner was expired on 6/3/1978, therefore, the partnership dissolved. However, as widow and other persons did not get their share, the sum of the partner involved, clause (16)of the Partnership Act invoke the arbitration clause. Relied upon Section 20 of the Old arbitration Act, the Trial Court negatived the ground that partnership was unregistered. However, the High Court has held that, inspite of unregistered firm, section 20 can be applied. In that context, the Hon ble the Supreme Court has held that though partnership was unregistered, the partner can file application for payment of arbitrator under Section 20 of the Arbitration act. Now, the judgment of the Hon ble supreme Court is quite different and the same cannot be applicable in the present case. The learned Judge has not properly appreciated the said decision in this behalf. ( 21 ) THE learned trial Judge has relied upon the case of MADHUKANTABEN nagindas SHETH V/s. M/s. ARVINDLAL kantilal AND CO. AND OTHERS, reported IN (1985) 26 (2) GLR 1169. In that case, there was a partnership firm dated 13/12/1977 and the name of the firm is M/s. Arvind Kantilal and Company. One of the partners Mr. Nagin Kali Sheth who has expired on November 1978 and widow of said partner claimed that she is sole heir of the deceased. As the deceased was entitled for share of profit, the plaintiff widow of the deceased therefore filed a suit after death of her husband and demanded the profit share ultimately she served notice through advocate but the defendant had not paid any heed to her. The plaintiff has, therefore, filed suit for accounts as well as for the appointment of a Receiver of defendant no. 1 firm in respect of which a new deed dated 18/12/1978 had been executed. In that case, the defendants filed application under Section 34 of the Arbitration Act for stay of the suit. ( 22 ) THE Trial Court stayed the proceedings as per the application. That is why the matter came up before this Court. In that context, the learned Judge has relied upon the judgment in the case of Manibhai shankarbhai (supra) which I have referred to. The learned Judge has distinguished the said judgment. In that case, the learned judge has relied upon Old Arbitration Act. That is why the matter came up before this Court. In that context, the learned Judge has relied upon the judgment in the case of Manibhai shankarbhai (supra) which I have referred to. The learned Judge has distinguished the said judgment. In that case, the learned judge has relied upon Old Arbitration Act. Section 6 (1) of the Arbitration Act provides that an arbitration agreement shall not be discharged by the death of any party thereto either as respects the deceased or any other party, but shall in such event be enforceable by or against the legal representatives of the deceased. The learned Judge has also considered the case of Rameshchandra ranchhoddas (supra) which I have referred in this behalf. In that context, the learned judge has dismissed the revision application in this behalf. ( 23 ) IT is no doubt true that the aforesaid decision prima facie appears to help the case of the defendant in this behalf. However, in that case, the question was regarding death of a person and the learned Judge has relied upon Section 6 (1) of the Arbitration Act. In this case, it is concerned that the dissolution of firm by giving notice which pertains to section 43 of the Partnership Act. The learned Judge was dealing with Section 42 of the Partnership Act, and therefore, the observations made by the learned Judge in the case of Madhukantaben (supra) may not help the case of the defendant in this behalf. So, reliance placed by the learned Trial judge in the said decision is also not proper in this behalf. ( 24 ) I have also to consider Sec. 34 of the Old Arbitration Act which provides power to stay legal proceedings where there is an arbitration agreement. The said sec. 34 provides that if an arbitration agreement does not itself take away the jurisdiction of the court, further if the parties have invoked jurisdiction of the court, they cannot seek stay. The power under Sec. 34 is also a discretionary power in this behalf. The requirements of Sec. 34 are as under:-"there must be a valid and subsisting and binding arbitration agreement capable of being enforced. The subject-matter in question in the legal proceedings which is sought to be stayed must be within the scope of the arbitration agreement. The power under Sec. 34 is also a discretionary power in this behalf. The requirements of Sec. 34 are as under:-"there must be a valid and subsisting and binding arbitration agreement capable of being enforced. The subject-matter in question in the legal proceedings which is sought to be stayed must be within the scope of the arbitration agreement. "the application must be made by a party to the arbitration agreement or by some person claiming under him. ( 25 ) THE application must be made at the earliest stage of the proceedings, i. e. , before filing a written statement or taking any other step in the proceedings. The application must be made to the judicial authority before which the proceedings are pending. ( 26 ) THE applicant must satisfy the court not only that he is, but also that he was at the time when the proceedings were commenced, ready and willing to do all things necessary to the proper conduct of the arbitration. ( 27 ) THE court is satisfied that there is no sufficient reason why the matter should not be referred. I have considered the facts of the case, as the case relates to dissolution of partnership firm and dissolution of partnership firm cannot be subject matter of arbitration for which I rely upon the judgment of this Court in the case of manibhai SHANKERBHAI PATEL V/s. SWASHRAY CONSTRUCTION CO. AND others REPORTED IN 1982 (1) GLR 312 . ( 28 ) THE said judgment is squarely applies in this case and, therefore, this Court is of the view that the arbitration agreement does not cover the case of dissolution of partnership firm. So the subject matter in question i. e. , a suit which has been filed for dissolution of the firm which is sought to be stayed by the defendants does not fall within the scope of Arbitration Act. ( 29 ) IN view of the same, the Civil revision Application is allowed and the judgment and order dated 25. 11. 1997 passed by the learned Chamber. Judge, City Civil court, Ahmedabad in Civil Suit No. 2942 of 1992. Order below Exh. 14 wherein the learned Judge was pleased to allow the application of defendant filed under Section 34 of the Arbitration Act, 1940, for staying of the suit is quashed and set aside. 11. 1997 passed by the learned Chamber. Judge, City Civil court, Ahmedabad in Civil Suit No. 2942 of 1992. Order below Exh. 14 wherein the learned Judge was pleased to allow the application of defendant filed under Section 34 of the Arbitration Act, 1940, for staying of the suit is quashed and set aside. The learned trial Judge is requested to proceed further of the suit on the merits of the matter. This Civil Revision Application is accordingly disposed of. Rule is made absolute to the aforesaid extent with no order as to costs.