9911796707
TMI Blog1996 (7) TMI 581X X X X Extracts X X X X X X X X Extracts X X X X ..... e are informed, subsequently increased to over ₹ 93,00,694.00. Therein, the respondent called upon the appellant to refer the dispute to an arbitrator under Section 52 of the Indian Electricity Act, 1910 (for short, the 'Electricity Act') or under Section 76(2) of the Electricity (Supply) Act, 1948 (for short, 'Supply Act'). Calling that notice in question, the appellant filed suit No. 291 of 1985 on the file of the Sub-Judge, I class for declaration and also for permanent injunction restraining the appointment of an arbitrator to adjudicate the dispute raised in the notice. The civil suit was dismissed on March 31, 1989 which was confirmed in appeal. The High Court in the impugned judgment and order dated December 14, 1992 in Second Appeal No. 1993 of 1990 dismissed the appeal finding thus: A perusal of Section 32 shows that no suit is competent on any ground whatsoever for a decision upon the existence, effect or validity of an arbitration agreement… . Furthermore, a perusal of provisions of Section 33 shows that any Party wanting to challenge the existence of an arbitration agreement can do so only through an application under the said provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ub-ordinate Judge had recorded a finding that the dispute is not arbitrable under the provisions of either the Electricity Act or the Supply Act. Consequently, the notice issued by the respondent for arbitration of the dispute is illegal. However, on wrong premise of the arbitrability of the dispute by the arbitrator under Section 33 suit was dismissed. As noted, the High Court recorded that that dispute would be decided only in the arbitration by operation of Section 33 or 32 and that the civil court has no jurisdiction to go into the matter. 6. The Electricity Act deals with grant of licences to the licensee for supply of electrical energy to the consumer and erection of the electrical lines etc. Part II deals with supply of energy. Section 7-A(1) deals with determination of purchase price. Section 8 provides consequences for non-purchase of undertaking and revocation of licence with consent of licensee. Section 9 prohibits licensee from purchasing, or associating himself with, other licensed undertakings or transfer his undertaking. Section 10 deals with general power of Government to vary terms of purchase. 7. Sections 12 to 18 deal with various types of works and Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o two arbitrators, one to be appointed by each party to the dispute. 8. A reading thereof would thereby clearly indicate that where any matter is by or under the Act directed to be determined by arbitration, the matter shall, unless it is otherwise expressly provided in the licence of a licensee, be determined by such person or persons as the State Government may nominate in this behalf on application by either party; and in all other respects, in furtherance of the arbitration, it shall be subject to the provisions of the Arbitration Act. It would, therefore, be clear that with a view to attract the provisions of the Electricity Act, the dispute shall be one of the disputes directed by or under the Act arbitrable by the arbitration under the provisions of the Act. As seen, the Act expressly refers to the relevant provisions extracted hereinbefore where a dispute shall be arbitrable in an arbitration which attracts the provisions of Section 52 of the Electricity Act. Similarly, the Supply Act envisages that if arbitration of any question or matter is required under Sections 19(4) 44(3) 55(3) and 78-A(2) to be referred to arbitration under Section 76(2) of the Supply Act, such qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that other enactment were an arbitration agreement, except in so far as this Act is inconsistent with the other enactment or with any rules made thereunder. 12. Sections 6(1) 7 12 36 and 37 have been expressly excluded from the operation of statutory arbitration. The rest of the provisions per force would get attracted. But the provisions of the appropriate statute or rules should necessarily be consistent with the provisions of the Arbitration Act. In that event, despite absence of and arbitration agreement, rest of the provisions of Arbitration Act would apply (as if there was an arbitration agreement between parties) and the dispute becomes arbitrable under the Arbitration Act, as if there was an arbitration agreement between the parties. If there is any inconsistency, then the provisions of the Arbitration Act do not get attracted. Section 33 expressly gives power to the civil court to decide the existence or validity of the arbitration agreement or the award as such. If this question was to arise, necessarily the civil court would be devoid of jurisdiction to decide the dispute on merits but only in the forum of arbitration. The existence and validity of the arbitration ag ..... X X X X Extracts X X X X X X X X Extracts X X X X
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