ORDER

Leave granted.

2. This case has a chequered history, the entire narration of which is not material to the controversy at hand. Suffice it to State that pursuant to the default committed by the respondent in payment of the dues, the appellant-Board had disconnected the supply of electrical energy on 20.8.1982. For the recovery of the arrears, the appellant had laid the suit. Ultimately, the suit ended in the order passed by this Court in C.A. No. 2767 of 1987 on February 15, 1989 upholding the decree for recovery of the arrears for the disconnection of the supply of electrical energy; the respondent had a notice issued on August 1, 1985 claiming damages in a sum of Rs. 68,25,734/- which, we are informed, subsequently increased to over Rs. 93,00,694.00. Therein, the respondent called upon the appellant to refer the dispute to an arbitration 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 of the Arbitration Act. It appears that no civil suit is competent in respect of matters which can be decided through arbitration and any party challenging the existence of an arbitration agreement can only do so through the summary procedure contemplated under Section 33 of the Act. The remedy of a regular civil suit, thus, appears to have been excluded."

Thus this appeal by special leave.

3. Shri P.P. Rao, learned senior counsel for the appellant, contended that the view taken by the High Court and courts below is clearly unsustainable in law. His primary contention is that the disconnection of supply of electrical energy and the alleged consequential damages claimed by the respondent are not matters arbitrable under the provisions either of Electricity Act or Supply Act. Therefore, the invocation of the provisions in either of the Acts for reference is clearly without authority of law. He has taken us through the relevant provisions under the Acts which we would refer during the course of the judgment. Shri M.S. Gujral, learned senior counsel for the respondent conteded that illegal disconnection of supply of electricity energy to the appellant and resultant damages is a dispute arising under Section 19 of the Electricity Act since due to illegl disconnection, the respondent had suffered damages. As a consequence, the respondent is entitled to compensation for such illegal act done by the appellant. Therefore, it is a dispute arbitrable under the provisions of the Electricity Act and also the Supply Act. He also contended that though there is no agreement entered into between the appellant and the respondent for arbitration as defined under Section 2(a) of the Arbitration Act, 1940, by operation of Section 46 of the Arbitration Act read with Section 33 thereof, it would clearly give power to the civil court to decide whether the matter would be arbitrable under the provisions of the Acts. The High Court accordingly recorded a finding that the civil suit is not maintainable but the arbitrator to decide the arbitrability of the dispute as regards the damages caused to the respond