BEENA MISRA Vs. S K JAIN

JUDGEMENT

(1.) This appeal is directed against the order dated 22nd January, 1996 passed by the Additional District Judge in Civil Suit 563/93 whereby he allowed the application filed by the respondent u/Order 39 Rules 1 & 2, CPC restraining the appellant from selling, disposing of or alienating or releasing the Hindi feature film "DO YAAR".

(2.) Facts leading to this appeal and relevant for its disposal are as under. By an agreement dated 29.4.1982, entered into between the appellant and respondent No. I, the respondent No. 1 acquired sole and exclusive rights, of distribution of the Hindi feature film "DO YAAR" for a period of 5 years for a consideration of Rs. 2,50,000.00 . Pursuant to the agreement dated 29.4.82, the respondent No. 1 paid Rs. l,90,000.00 to the appellant and balance of Rs. 60,000.00 was withheld by the appellant to meet the claim of Globe Films when the said picture was released it was found that prints supplied by the appellant were not in good condition. At request of the respondent No. 1 the appellant assured him to supply new prints of the said film but despite repeated requests, the appellant did not supply the same. In the meantime, the appellant got the matter settled with Globe Films as a result whereof Globe Films withdrew their claim against the appellant. Thereafter, the appellant demanded Rs. 60,000.00 which was withheld by the respondent No. 1. Differences having arisen between the parties, the matter was referred to the respondent Nos. 2 and 3 for arbitration. On 24.7.89, the respondent Nos. 2 & 3 gave the award directing the respondent No. 1 to pay Rs. 60,000.00 together with a sum of Rs. 10,000.00 by way of damages to the appellant within four weeks and on such payment being made, period of the agreement shall get extended for two years commencing from 18.12.89 to 17.12.91. After the said award, the respondent No. 1 came to know that the prints developed from the dupe negative were unfit for screening. He, therefore, requested the respondent No. 2 to review the award, which was declined. On the contrary, the respondent No. 2 threatened to de-register the said film if the amount of Rs. 70,000 .00 is not paid to the appellant. On these pleadings, the respondent No. 1 filed the present suit for a declaration that the award dated 24.7.89 is void and ineffective and for permanent injunction restraining the appellant from alienating, selling or disposing of prints of the said film for screening. Alongwith the plaint, the respondent No. 1 filed an application u/Order 39 Rules 1 & 2, CPC, which was allowed by the Trial Court. Feeling aggrieved, the appellant has preferred the present appeal.

(3.) Learned Counsel for the appellant contended that the learned ADJ had no jurisdiction to grant interim injunction in favour of the respondent No. 1 as the suit itself was barred under Section 32 of the Arbitration Act. It is beyond the pale of controversy that the agreement dated 29.4.1982 was executed between the appellant and the respondent No. 1, whereunder the respondent No. 1 acquired sole and exclusive rights of distribution of the Hindi feature film "DO YAAR" for screening for a consideration of Rs. 2,50,000.00 . It is also undisputed that the said agreement contained an arbitration Clause (Clause No. 9) pursuance to which both the parties referred the dispute for the arbitration of respondent Nos. 2 & 3 and that on 24.7.89, the respondent Nos. 2 & 3 gave an award directing the respondent No. 1 to pay a sum of Rs. 70,000.00 within four weeks and on payment of this amount the appellant herein shall deliver as many prints as in her possession against the cost. It is the grievance of the appellant that instead of complying with the award, the respondent No. I filed the suit and got the interim injunction against her. In my opinion, the suit itself, primafacie, which was instituted by the respondent No. 1, was not maintainable by virtue of the provisions of Section 32 of the Arbitration Act. Section 32 imposes a bar not only against the institution of any suit for a decision upon the existence, effect or validity of an award, but it also imposes a bar against the award being enforced, awarded or set aside or modified except otherwise than as provided in the Arbitration Act. Therefore, whenever any award is made, the question of existence of the arbitration agreement or validity of the award can only be decided under the provisions of the Arbitration Act. The jurisdiction of the Civil Court is ousted because of the clear and unambiguous wording of Section 32 of the Arbitration Act. What the respondent No. 1 had sought in the present suit was to challenge the existence of the arbitration agreement and the validity of the award made by the respondent Nos. 2 & 3. The statutory remedy open to him is one provided under Section 30 or Section 33 of the Arbitration Act. It appears that the learned Additional District Judge is blissfully ignorant about the provisions of Section 32 of the Arbitration Act otherwise he would not have committed such a patent illegality in granting injunction against the appellant. Consequently, the impugned order cannot be allowed to stand. In the result, the appeal is allowed and the impugned order dated 22nd January, 1996 is hereby set aside. Respondent No. 1 shall pay the cost of the appellant and bear his own. Counsel fee is quantified at Rs. 3,000.00 .