THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.No. 1108 OF 2001 JUDGMENT: The appeal is filed against the judgment dated 01.05.2000 in O.S.No.94 of 1996 on the file of the II Additional District Judge, Visakhapatnam. The suit was filed by the plaintiff questioning the demand for payment of electricity bill contending that the demand made by the defendants is excessive and the plaintiff is not liable to pay the same. The trial Court after considering the material available on record and the contention of the defendants about the sustainability of the claim, framed necessary issues and after considering the evidence of PW1 on behalf of the plaintiff and the evidence of DWs 1 and 2 on behalf of the defendants passed the decree dismissing the suit of the plaintiff and directing the plaintiff to apply to the defendants to refer the matter to the Arbitrator and the Arbitrator shall decide the excess billing after recording necessary evidence. Till the Arbitrator files the report, the defendants are not entitled to recover 50% of the amount demanded and the plaintiff is directed to pay 50% of the amount. Aggrieved by the said judgment, the present appeal is filed. The point that arises for consideration is whether the judgment of the lower court suffers from any infirmity? The learned counsel for the appellant/plaintiff contends that in paragraph ‘23’ of the judgment of the lower Court, it was found that there appears to be excess billing. When such was the thing, given consequences should have been followed. But, however, the judgment of the lower Court to refer the matter to the Arbitrator is beyond the scope of the decision invited from the Court. The Arbitrator can be appointed only if there is an agreement under Section 8 of the Arbitration and Conciliation Act, 1996 or during the trial, if both parties agree for the matter to be referred to the Arbitrator. But, in this case, there is no statutory provision under the Electricity Act, 2003 like Indian Telegraph Act, 1885 where any dispute can be referred to an Arbitrator. It is not the plea of the defendants also that the matter shall be decided by the Arbitrator. The Court, in the absence of consent of the parties, cannot refer the matter to the Arbitrator. Even by invoking the provisions of Section 89 C.P.C, the reference to arbitrator does not arise when both the parties do not agree or suggest for a reference to the Arbitrator. Evidently, by virtue of the decree of the lower Court till this day no Arbitrator is appointed and the plaintiff has got every opportunity to defer the payment of 50% of amount payable by it. Therefore, the judgment of the lower Court is not sustainable. Accordingly, the judgment of the lower Court is set aside and the matter is remanded to the lower Court to decide afresh after considering the contentions of the plaintiff and the sustainability of the demand for consumption. The manner in which the decree is passed by the lower Court is not in accordance with the pleadings or the law. In the result, the appeal is allowed. The judgment of the lower Court is set aside and the matter is remanded to the lower Court for fresh disposal in accordance with law within a period of four months from the date of receipt of a copy of this order. If necessary, the parties may be given an opportunity to adduce fresh evidence. Each party to bear their own costs in this appeal. N.R.L.NAGESWARA RAO,J Dt. 24.06.2011 lvl THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.No. 1108 OF 2001 Dt. 24.06.2011