MATHUR, J. - (1.) AT the instance of plaintiff appellant this Special Appeal under Section 18 of the Rajasthan High Court Ordinance is directed against the judgment of the learned Single Judge dated 9. 9. 1985 upholding finding of the trial court on the preliminary issue, as to maintainability of suit being barred by the provisions of Section 32 of the Arbitration Act.
(2.) THE material facts relevant for the disposal of this special appeal, briefly stated, are that the defendant M/s. Supra Films had produced the Picture "jyot JALE" and entered into an agreement regarding the said Picture with the plaintiff M/s. Jain Pictures on 12. 9. 1968 for exhibition in Central India. It is averred that there is an association of Indian Motion Pictures Producers. (Shortly known as IMPPA ). THEre is another association named as Central Circle Cine Association of which the Exhibitors and Distributors of the pictures are members. (shortly known as CCCA ). As per the agreement between the parties any dispute between the producers and exhibitors of the films was to be referred to them to resolve it by way of arbitration. THE second defendant Tilak Films Distributors, Ajmer was appointed as Distributor for Rajasthan Centre. A dispute arose between the parties with respect to payment of the certain amount. All the disputes between the M/s. Jain Pictures, M/s. Supra Films and Tilak Films Distributors were referred for arbitration to the Joint Tribunal of CCCA & IMPPA. THE Plaintiff participated in the arbitration. THE Joint Tribunal made an award dated 8. 9. 69. THE Bombay High Court by order dated 3. 4. 70 made the said award rule of the court. THE plaintiff filed same claim before another Tribunal on 23. 04. 1970 which was rejected on 21. 8. 71 on the ground that the plaintiff had not complied with the decree passed by the High Court. THE plaintiff also filed an application before the Bombay High Court for setting aside the decree but the same was dismissed by the High Court. After having failed before the Bombay High Court and both the Joint Tribunals the plaintiff filed a Suit in the court of District Judge, Jodhpur on 16. 9. 71 for a decree in the sum of Rs. 32,632. 60 against the defendant. THE plaintiff also sought a declaration to the effect that decree dated 3. 4. 70 passed by the Bombay High Court in favour of the first defendant and against the plaintiff on the basis of the award dated 8. 9. 69 stands adjusted and there is nothing due against it. THE suit was contested by the defendant on number of grounds. THE defendant raised the plea that the suit was not maintainable being barred by Section 32 of the Arbitration Act. On the material controversy trial court framed as many as 11 issues. THE issue No. 3 was decided as a preliminary issue, which reads as follows:- " Whether the present suit is barred under the provisions of Sec. 32 of the Arbitration Act?" The trial court namely the Additional District Judge NO. 1, Jodhpur by order dated 5. 08. 1972 held that the suit was not barred under Sec. 32 of the Arbitration Act for two reasons; firstly the Arbitrators of the Joint Tribunal at Bombay on 20. 01. 1971 did not sign the award and as such it was a valid award in the eye of law and secondly because in the absence of an agreement for reference the award was invalid. The first defendant preferred a revision against the said order before this Court under Sec. 115 C. P. C. This Court found the fact of award being not signed by all the arbitrators factually incorrect. As regards the second ground, it was found that parties were members of different associations, governed by the rules which provided arbitration clause for such matters by the Joint Tribunal. However, since the matter was not considered by the trial court from that aspect the learned Single Judge vide judgment dated 4. 07. 1977 set aside the order of the trial Court and remitted the matter for fresh decision on issue No. 3. The trial court heard the matter afresh and by judgment and decree dated 17. 08. 1979 decided the issue No. 3 in favour of the defendants and as such dismissed the plaintiff's suit. The plaintiff appellant preferred an appeal before this Court. The learned Single Judge upheld the finding that it was not permissible to challenge the validity of the award by way of a separate suit in view of Sec. 32 of the Arbitration Act. The said finding is based on the decision of the Apex Court in Satish Kumar vs. Surinder Kumar (1),. The learned Single Judge having found no merit in the appeal dismissed the same by judgment and decree dated 9. 9. 85. Assailing the judgment of the learned Single Judge it is contended by Mr. B. L. Purohit learned counsel for the appellant that the learned Single Judge has committed error in not considering the contentions raised on behalf of the appellant with respect to correctness of the order of remand passed in revision simply on the ground that the said contentions were not raised when the revision was heard by the High Court. It is submitted by Mr. Purohit that in view of Section 105 (2) C. P. C. the correctness of an order of remand can be challenged in an appeal from the final decision, in a case where the order of remand is not appealable. Learned Counsel has placed reliance on a decision of the Apex Court in Satyadhyan Ghosal & Ors. vs. Smt. Deorajin Debi & Anr. (2),. He has also placed reliance on Kshitish Chandra Bose vs. Commissioner of Ranchi Another case on which learned counsel has placed reliance is Keshardeo Chamaria vs. Radha Kissen Chamaria & Ors (4) and M/s. Jolly Steel Industries Pvt. Ltd. vs. Union of Indian & Anr. On the other hand Mr. Dinesh Maheshwari learned counsel for the respondents submits that the decisions cited on behalf of the appellant are not the authorities for the proposition that find order passed by this Court in revision could be challenged in first appeal. The learned counsel has read the said authorities before us and tried to satisfy that the said authorities instead of supporting the appellant are clearly against him. It is submitted by the learned counsel that the order passed in revision by this Court remains binding on the parties before this Court. The learned counsel has relied on a decision of this Court in Abdul Rehman vs. Dheri Bai (6), which is in turn based in a decision of the Apex Court in Shanker vs. Krishna (7),. The learned counsel has also placed reliance on the decision of the Apex Court in Smt. Rukmani Bai vs. Collector (8) and decision of this Court in Devendra Singh vs. Kalyan Singh (9), for the proposition that an award cannot be set aside, amended or modified by way of another suit in view of Sec. 32 of the Arbitration Act. It is held in all these cases that non- existence and invalidity of an agreement must be challenged by means of an application under Sec. 33 and not otherwise. In order to consider the point germane to the controversy, it would be appropriate t acquaint with Sec. 30 t Sec. 33 of the Arbitration Act. However, instead of quoting all the aforesaid provisions the purpose would be served if only section 32 is extracted, which reads as follows: " S. 32. Bar to suits contesting arbitration agreement or award: Notwithstanding any law for the time being in force, no suit shall lie on any ground what sever for a decision upon the existence, effect or validity of a arbitration agreement or award, not shall any arbitration agreement or award be enforced, set aside, amended, modified or in an away affected otherwise than as provided in this Act" As per the scheme of the Act, Sec. 30 deals with the grounds for setting aside an award. This provision empowers the Court to set aside the award if a arbitrator or umpire has misconducted himself or in a case where after arbitration agreement has been superseded or an award has been improperly procured or it otherwise invalid. Section 31 starts with non obstinate clause whereby it has been enjoined that all questions regarding the validity, effect or existence of an award or an arbitration agreement between the parties to the agreement or persons claiming under them shall be decided by the Court in which the award under the agreement has been, or may be, filed, and by no other court irrespective of anything contained in other law for the time being in force and save as otherwise provided under this Act. Sub-section (3) of Section 31 lays down that all applications regarding conduct of arbitration proceedings or otherwise arising out of such proceedings shall be made to the Court where the award has been or may be, filed and to no other court. Section 33 provide the mode as to how the arbitration agreement or award is to be contested. It is provided therein that any party to arbitration agreement or any person claiming under him desiring to challenge the existence or validity of an arbitration agreement or an award or to have the effect of either determined shall apply to the Court and the Court shall decide the question of affidavits. Thus, it is evident that challenge to an award can be made only under Sec. 33 of the Arbitration Act by way of an application before the Court where the award is filed and not before any other court that is how Sec. 32 puts a specific bar on challenge of award by separate suit. The first part of Sec. 32 prevents a suit to challenge the existence of arbitration agreement and the second part prevents setting aside of an arbitration or agreement otherwise then as provided by the Act. The object of the legislature in enacting of Section 32 is that all question with regard to arbitration agreements and awards should be dealt with under the Arbitration Act and not by substantive suits.
(3.) THE Apex Court in Smt. Rukmani Bai Gupta vs. Collector, Jabalpur & Ors. (supra) has observed in Para 10 as follows:- " Arbitration Act, 1940, is a self-contained and exhaustive code. It provides for filing arbitration agreement to the jurisdiction of Court, appointment and removal of arbitrator by court, making award a rule of Court, remitting or setting aside an award, etc. Where the arbitrator has made an award it can be questioned under Section 33. Section 32 bars a suit on any ground whatsoever for contesting an award and further provides that no award shall be enforced, set aside, amended, modified or in any way affected otherwise then as provided in the Arbitration Act itself. Thus, Arbitration Act, 1940, is a self-contained exhaustive code. " A learned Single Judge of this Court in Devendra Singh vs. Kalyan Singh (Supra), has observed as follows:- " The preponderance of judicial opinion lies in favour of the view that all objection to an award on the ground of invalidity from any cause whatsoever are to be taken under Section 30 read with section 33 of the Act. " The Bombay High Court in M/s. Delux Silk Traders vs. M/s. Satyanarayan Mahendrakumar & Ors. (10), has held that even in a case where the award is unenforceable but a decree has passed in its turn a suit between the parties on the same cause of action in barred by Section 32 of the Arbitration Act. The view of the trial court as well as the learned Single Judge is based on the decision of the Apex Court in Satish Kumar's case (supra) wherein it is held that award is not a mere waste paper but has some legal effect. It is final and binding on all the parties and it cannot be said to be a waste paper. Thus, once an award has been made rule of the court it being a final adjudication of a court of the parties own choice and until impeached upon sufficient grounds in an appropriate proceedings, an award which is on the face of it regular, is conclusive upon the merits of the controversy submitted. In the instant case the award was made on 8. 9. 69 which was made rule of the court on 3. 04. 1970 by the Bombay High Court. Judge after that on 23. 04. 1970 the plaintiff filed the same claim before another Tribunal. the said claim was rejected by said Tribunal by order dated 20. 01. 1971 on the ground that plaintiff has not complied with a decree passed by the High Court. Now all the contentions which have been raised before the trial Court and before the first appellate court is with respect to the rejection of arbitration on 20. 01. 1971 Once the award had become final having made rule of the court by the Bombay High Court on 3. 04. 1970 the reference before another Tribunal for arbitration was not maintainable and as such it was rightly rejected. The plaintiff has definitely abused the process of the Court in filing the instant suit as a deliberate attempt to over-rule the award made rule of the court by the Bombay High Court on 3. 04. 1970. ;