JUDGMENT 1. This is an application under Section 11 of the Arbitration and Conciliation Act, 1996, for the purpose of appointment of an Arbitrator through the intervention of the Court. 2. The respondent joint issue therein by saying that the dispute cannot be referred to the Arbitrator under the Arbitration and Conciliation Act, 1996, with the intervention of the Court because the respondent is a Co-operative Housing Society and by virtue of West Bengal Cooperative Societies Act, 1983 read with the rules of the year 1987 prescribes that dispute, if any, by or between a Co-operative Housing Society as to be by an Arbitrator under such act itself. No doubt it is an interesting question before the Court of law. 3. Although several other points are taken by the respondent without prejudice to their rights and contentions as aforesaid but all this questions can be reagitated before the Arbitrator itself, if appointed by the intervention of the Court under this application. Therefore, such question cannot form any material part for the purpose of discussion hereafter. 4. Let me confine to the question as regards to maintainability of the application when one of the party is the Co-operative Society. 5. Since the question of maintainability of the application as agitated by the respondents herein, I called upon there Senior Counsel Mr. Mukul Lahiri to make his submission in this respect, in turn, he has drawn my attention to Section 2(20) of the West Bengal Co-operative Societies Act, 1983 to establish the meaning of the dispute under such section of the Act. Dispute means any matter capable of being subject or civil litigation and includes a claim in respect of any sum payable to or by a Co-operative Society. He has drawn my attention to Sections 95 and 134 of the Act which speak about the referability of the dispute to an appropriate authority under the Act. 6. Section 95 prescribes that four types of dispute are referable to the Registrar concerning the business of a Co-operative Society which are as follows: – (a) A Co-operative Society or its Board or an Officer (past or present), agent, employee or liquidator of a Co-operative Society. (b) A member or a past member or a person claiming through a member or a past member or on behalf of a deceased member of a Co-operative Society or a financing bank of a Co-operative Society. (b) A member or a past member or a person claiming through a member or a past member or on behalf of a deceased member of a Co-operative Society or a financing bank of a Co-operative Society. (c) A surety of a member or past member or deceased member of a Co-operative Society, whether such surety is or is not a member of the Co-operative Society. (d) Any other Co-operative Society or any person including any financing bank having transaction with a Co-operative Society or any liquidator of a Co-operative Society. 7. Out of four disputes, according to be, Clause (d) as above might have been applicable subject to availability of other points to be discussed hereunder. 8. It appears from sub-section (2) under the above section that any dispute mentioned in sub-section (1) other than the dispute relating to recovery of money shall be referred to the Registrar within two months from the date of which the cause of action arises. Then by virtue of Section 96 sub-sections (5) and (6), the dispute will be resolved by the appropriate Arbitrator so appointed under the sections. 9. Section 134 says that so Civil Court or Appellate Court have no jurisdiction in regard to anything done or any action taken or any order passed under the Act or in particular to any dispute required to be referred to the Registrar under Section 95 of the Act. 10. So from the conjoint reading of the aforesaid sections, it is abundantly clear that the disputes as prescribed above can be referred as per the prescription under the law. In support of the contention as above, the respondent relied upon a Division Bench judgment of this Court reported in Jayanti Banerjee vs. Beldanga Co-operative Marketing Societies & other, 87 CWN 638, and stated that the expression concerned Co-operative Society in Clause (d) of sub-section (1) of Section 86 of the West Bengal Co-operative Societies Act, 1973, obviously refers to the Co-operative Society relating to the affairs of which there is a dispute. 11. The word person would include within its recognized meaning when used in statute, there being nothing repugnant in the subject or context. 12. He stated Section 86 of the old Act, i.e., West Bengal Co-operative Societies Act, 1973 is pari materia with the Section 95 of the present Act. 13. 11. The word person would include within its recognized meaning when used in statute, there being nothing repugnant in the subject or context. 12. He stated Section 86 of the old Act, i.e., West Bengal Co-operative Societies Act, 1973 is pari materia with the Section 95 of the present Act. 13. It is to be noted hereunder that the Division Bench judgment was passed on the basis of the facts that the society raised a dispute under the old Act, claiming damages when the matter was referred to the Arbitrator under the Act to found in favour of the said society and awarded a certain sum as damages which is factually different from the present case, since the Chairman of the society has not forwarded the dispute to the Registrar for its disposal in spite of having the notice of demand as far back as on 3rd March, 1998. 14. It appears from the record, that the application was made for appointment of an Arbitrator under the Act of 1996 on 29th January, 1999 which is about after ten months from the date of demand to the Chairman of the Co-operative Society, but all were in vain. 15. Being frustrated thereby, the petitioner has taken the last course by making an application under Section 11 of New Act of 1996. Therefore, the remedy was exhausted to go before erstwhile Arbitrator and being frustrated such application was made under the new Act of Arbitration. 16. Although under the said demand an independent member of the Bar was wanted to refer for the purpose of appointment of the Arbitrator but even thereafter, respondent, the Co-operative Society neither oppose nor refer the matter to the Registrar and to that extent there is no factual difference. 17. 16. Although under the said demand an independent member of the Bar was wanted to refer for the purpose of appointment of the Arbitrator but even thereafter, respondent, the Co-operative Society neither oppose nor refer the matter to the Registrar and to that extent there is no factual difference. 17. He contended, by citing a judgment reported in Anjan Chowdhury vs. Anandameer Co-operative Registered Housing Society & other, 94 CWN 515: AIR 1990 Cal 380 , wherein a special Bench of this High Court was pleased to hold that the dispute is not just concerning or involving a Co-operative Society but concerning the business or relating to the affairs of the society, such business or affairs which the society is authorized to be concerned with or to be involved in order to carry out its objectives under the Act coming into the four corners of the Co-operatives Societies Act, 1983 and cannot be taken cognizance by the Civil Court. 18. The aforesaid judgment was cited to establish that the dispute in between the Co-operative Society and outsider can also be decided by an Arbitrator before a Co-operative Society. 19. Next he submitted on the basis of a judgment reported in Registrar, Co-operative Society, West Bengal vs. Krishna Kumar Singhania & other, 1995 (6) SCC 482 to establish that the West Bengal Co-operative Societies Act, 1983 is a complete Code in deciding the dispute by the Arbitrator or Board of Arbitrators appointed by the Registrar under Sections 95 and 96 of the Act. The conjoint reading of sections as aforesaid and Rules 178 thereunder shows that the Registrar is no power to extend the time to make the award beyond one year. However, his power to deal with the situation is not totally denuded. Rule 178 fills the gap which provides the power and procedure to deal with the situation. The Arbitration proceedings does not abated after the expiry of one year from the date of appointment of the Arbitrator under Section 95. The provisions of the Arbitration Act, 1940 would not be attracted by the deeming fiction under Section 46 thereof. The arbitration agreements signed by the parties is not foundation for reference under the Arbitration Act to an Arbitrator appointed by the Court to decide the dispute arising under the contract as per its terms. The provisions of the Arbitration Act, 1940 would not be attracted by the deeming fiction under Section 46 thereof. The arbitration agreements signed by the parties is not foundation for reference under the Arbitration Act to an Arbitrator appointed by the Court to decide the dispute arising under the contract as per its terms. In case of failure of Arbitration under any other enactment, Section 46 of the Arbitration Act seeks to step in an efficatious Arbitration of the Act referred under the statute. However, it would be subject to provisions of the special law and the exception envisaged in Section 46 itself. 20. Mr. Sunil Mitra, learned Counsel appearing on behalf of the respondent, contended that paras 8, 9 and 10 of the special Bench judgment of this High Court reported in AIR 1990 Calcutta 380 (supra), that the dispute which is concerning the business of or is relating to the affairs of the Co-operative Society. Therefore, the expressions concerning and relating and the expressions business and affairs may unanimous but there not show anything concerning the business of the Co-operative Society is a matter relating to the affairs of the society but everything relating to the affairs of the society may not be concerning the business of the society. 21. In this case, the disputes in between the outsider person and a Co-operative Society is in relation of the affairs of the society but no way concerning with the business of the society which can be decided by the Arbitrator to be appointed under the West Bengal Co-operative Societies Act. Moreover, no step was taken by them for about an extra ordinary period for the purpose of referring the dispute either to a private person or upon refusing the same to an appropriate authority under the Co-operative Societies Act. Under such circumstances, the application should not fell. 22. I have gone to the rival contentions of the parties how much emphasise was given by the respondents by saying that the jurisdiction of the Registrar or the Arbitrator under the West Bengal Co-operative Societies Act, 1983 cannot be curtailed by the intervention of the Civil Court. This is not the case herein. Neither the respondent nor the petitioner is interested about the Civil Court's jurisdiction. This is not the case herein. Neither the respondent nor the petitioner is interested about the Civil Court's jurisdiction. The respondent is interested to take the defence of applicability of the Co-operative Societies Act for the purpose of referring the matter to a person under the Co-operative Societies Act when on the other hand the petitioner want that the matter should be referred to an Arbitrator to be appointed under the Arbitration and Conciliation Act, 1996 with the intervention of the Court. Therefore, discussions as to whether Civil Court will interfere or not, is academic. The issue is who will be the Arbitrator in such peculiar situation. Therefore, Court obviously lives in the factual context which leads to a situation that in spite of an opportunity the respondent, Co-operative Society neither acted on the proposal of the petitioner for appointment of an independent Advocate as Arbitrator nor refer the dispute to get an appointment of an Arbitrator under the West Bengal Co-operative Societies Act. The affair is in between a private person and a Co-operative Society, therefore, it is to be remembered that unless such dispute said to be an affair of the Co-operative Society, Court cannot give a clean chit that the dispute or affair is concerning the business of the Co-operative Society and for the same till today the matter can be referred to the Registrar of the Cooperative Society. 23. Above all when the remedy was exhausted in respect of West Bengal Co-operative Societies Act, 1983 and remedy was sought for under the Arbitration and Conciliation Act, 1996 in respect of the selfsame dispute, the second one would be obviously acceptable by the Court. 24. Thus the application stands allowed on context. All the disputes as referred to Paragraph 6 being Annexure 'D' to the application be referred to the sole Arbitrator to be appointed by this Court. Accordingly, I refer the matter to the Hon'ble the Acting Chief Justice for the purpose of filling up the vacancy of the Arbitrator and if necessary make a time bound programme for the purpose of making and publishing the award by such Arbitrator to be appointed therein. 25. Costs of this application be costs in the arbitration proceedings. This application is thus disposed of. All parties are to act on a signed copy minute of the operative part of this order.