JUDGMENT D.K. Deshmukh, J. - Arbitration Petition No. 236 of 1996 has been filed by the respondent in Arbitration Petition No.5 of 1997 for setting aside the award dated 31st July, 1995 whereas Arbitration Petition No.5 of 1997 has been filed by the claimant before the Arbitrators under Section 28 of the Arbitration Act, 1940 for extension of time in making and filing an award. Therefore, both these petitions can be conveniently disposed of by a common order. 2. The facts that are relevant and material for deciding these petitions are that the claimant is a share broker and a member of the Bombay Stock Exchange. The respondent is carrying on business of financer and trader in Bombay. A reference was made to the Arbitrator under the Bye-laws and Regulations of the Bombay Stock Exchange on the basis of a claim made by the claimant for recovery of an amount of Rs. 13,92,734.15 from the respondent. The reference was made to the Arbitrators on 22nd January, 1993. The last hearing before the Arbitrator was on 4th February, 1995. The award has been made on 21st July, 1995. By that award, the Arbitrators directed the respondent to pay Rs. 12,95,089.15 with 18% interest per annum thereon from the date of filing reference till payment. This award is challenged by the respondent in Arbitration Petition No. 236 of 1996 whereas the claimant has filed Arbitration Petition No. 5 of 1997 invoking the power of the Court to extend time for making of the award and decision thereon. 3. The learned counsel appearing for the respondent for challenging the award, raised following contentions: (1) That the Arbitrators have made the award on 31st July, 1995 which is beyond the time fixed by the Arbitration Act, 1940; (2) That the Arbitrators have committed misconduct inasmuch as the Arbitrators prepared two minutes of the arbitration proceedings date 14th February, 1995, which are totally different from each other; and (3) That the Arbitrators were not at all justified in awarding the claim on the basis of an inference drawn against the respondent. Insofar as Arbitration Petition No. 5 of 1997 is concerned, the learned counsel for the respondent opposed the petition contending that the petition under. Insofar as Arbitration Petition No. 5 of 1997 is concerned, the learned counsel for the respondent opposed the petition contending that the petition under. Section 28 is not tenable because according to the learned counsel, operation of Section 28 of the Act is excluded inasmuch as the provisions of Bye-laws of the Bombay Stock Exchange on view of the provisions of Section 46 have overriding effect. 4. Now, it would be convenient to deal with the first submission made by the learned counsel for the respondent for challenging the award and the preliminary objection to the maintainability of Arbitration Petition No. 5 of 1997 because the submissions are common. The learned counsel for the respondent submits that Section 46 of the Arbitration Act lays down that the provisions of an arbitration agreement have overriding effect in case the provisions in the arbitration agreement are inconsistent with the provisions of the Act except sub-section (1) of Section 6, Sections 7, 12, 36 and 37 of the Act. In the submission of the learned counsel, the provisions of the Bye-laws of the Bombay Stock Exchange are to be treated as arbitration agreement between the parties and as the bye-laws of the Bombay Stock Exchange empower the Board and its Chairman to grant extension of time for making the award without consent of the parties, the power vested in the Board is inconsistent with the power of the Court found in sub-section (1) of Section 28 of the Act and therefore, to the extent of this inconsistency, the provisions of the Bye-laws of the Bombay Stock Exchange shall prevail and therefore, this Court does not have the power to extend the time for making of the award in exercise of its power under sub-section (1) of Section 28 of the Act. The learned counsel submits that as at no point of time, the Bombay Stock Exchange was moved by the claimant for extension of time for making of the award, as the award has been made beyond a period of four months from the date of reference, it is void. The learned counsel submits that as at no point of time, the Bombay Stock Exchange was moved by the claimant for extension of time for making of the award, as the award has been made beyond a period of four months from the date of reference, it is void. He submits that even if continued appearance of the respondent before the Arbitrators after the expiry of period of four months from the date of reference is taken to be his implied consent for extension of time, then also the respondent appeared before the Arbitrators last on 4th February, 1995 and therefore, the award could have been made within a period of four months from 4th February, 1995. As the award has been made beyond that period, in the submission of the learned counsel, the award is void. 5. Insofar as the second objection raised by the learned counsel for the respondent is concerned, he submits that he received, along with the letter dated 31st March 1995, copy of the arbitration notes dated 4th February, 1995, which shows that the Arbitrators have referred to the rival contentions and have recorded their conclusion, however, the operative part of the award is not made. He submits that along with the letter dated 16th October, 1995, he again received minutes of the arbitration proceedings dated 4th February, 1995 which read differently and which show that the Arbitrators have made the award in favour of the claimant. In the submission of the learned Counsel, this was done by the Arbitrators to show that the award has been made on 4th February, 1995 itself so that the question of limitation for making of the award does not come in. According to the learned counsel, this amounts to misconduct on the part of the Arbitrators and therefore, the award is liable to be set aside. 6. Insofar as the last submission on behalf of the respondent is concerned, the learned counsel submits that perusal of the award shows that because the petitioner did not respond to the communication of March 1992, the Arbitrators have drawn an adverse inference against him and have held that lack of response shows his implied consent to the submission of accounts which was submitted to him. In the submission of the learned counsel, by letter dated 9th March, 1992, the respondent was supplied with the statement of accounts and the claimant had promised to send him copies of the bills, however, as he did not receive the copies of the bills it was not necessary for him to respond and therefore, according to the learned counsel, the Arbitrators were not justified in drawing an inference of acceptance of claim by the respondent. 7. The learned counsel appearing for the claimant, on the other hand, insofar as the first submission is concerned, submits that there is no inconsistency between the power of the Court under sub-section (1) of Section 28 to extend time for making of the award and the power of the Board and its Chairman to extend time. He submits that the content of the power of the Court to extend time and the content of power of the Board to do so is different and distinct. He submits that what has been done by the Bye-laws of the Bombay Stock Exchange is that power has been conferred on the Board in addition to Court to extend time. The power of the Court and the power of the Board can exist simultaneously and therefore, there is no question of there being any conflict between these two powers and therefore, it cannot be said that there is inconsistency in the provisions of sub-section (1) of Section 28 and the powers conferred on the Board and its Chairman under the Bye-laws of the Bombay Stock Exchange. The learned counsel also relies on a judgment of this Court in the case of Kishore Jitendra Dalal v. Jaydeep Investments (1996(3) Bom. C.R. 204), The learned counsel relying on the observations of the Supreme Court in its judgment in the case of State of Punjab v. Hardyal ( AIR 1985 SC 920 = 1985 Arb. LR 297), submits that the Court has power to grant extension of time for making of the award at any stage. 8. Insofar as the second submission made by the learned counsel for the respondent is concerned, the learned counsel appearing for the claimant submits that the Arbitrators have not commitment any misconduct. He submits that on 4th February, 1995, the Arbitrators prepared their notes but they did not make the award. 8. Insofar as the second submission made by the learned counsel for the respondent is concerned, the learned counsel appearing for the claimant submits that the Arbitrators have not commitment any misconduct. He submits that on 4th February, 1995, the Arbitrators prepared their notes but they did not make the award. The award was made on 31st July, 1995 and thereafter the operative part of the award was written in the notes dated 4th February, 1995. According to the learned counsel, written of the operative part of the award in the arbitration notes dated 4th February, 1995 may be a mistake of the Arbitrators but it cannot be termed as misconduct because there was no attempt on the part of anybody to show that the award has been made on 4th February, 1995. According to the learned counsel, the date of the award is 31st July, 1995 for all purposes. In the submission of the learned counsel, merely writing of the operative part of the award in the arbitration notes dated 4th February, 1995 does not amount to misconduct on the part of the Arbitrators. Insofar the last submission made by the learned counsel for the respondent is concerned, the learned counsel for the claimant submits that the Arbitrators have not drawn an inference of acceptance merely from lack of response by the respondent to the communication of March, 1992 but there were reminders sent in June, July and September, 1992 by the claimant and there was no response to those reminder from the respondent. The learned counsel for the respondent submits that had it been the case of the petitioner that because the bills were not sent to him, he did not respondent to the communication, then by notice of the lawyer dated 23rd September, 1992 which specifically shows that an amount of Rs. 13,92,734.15 was demanded by the claimant, at that time, the respondent could have pointed out to the claimant that without sending the bills which he had promised to do, how can be demand the amount. In the submission of the learned counsel, the case that the reply was not sent because the bills were not sent is merely a pretext now put forth by the respondent and it was never his case before, it is an after-thought. 9. In the submission of the learned counsel, the case that the reply was not sent because the bills were not sent is merely a pretext now put forth by the respondent and it was never his case before, it is an after-thought. 9. Now, it in the light of these rival submissions the record of the case is perused, it becomes clear that so far as the power of the Court to grant extension of time is concerned, that power is conferred on the Court by sub-section (1) of Section 28 of the Arbitration Act. Perusal of provisions of Section 46 of the Arbitration Act shows that provisions of an arbitration agreement prevail to the extent of there being inconsistency with the provisions of Act except the provisions of sub-section (1) of Section 6, Sections 7, 12, 36 and 37. Therefore, in order to confer overriding effect on the provisions of an arbitration agreement, it has to be shown that inconsistency exists between the provisions of the Act and the provisions in the arbitration agreement. In the present case, we are concerned with the provisions of sub-section (1) of Section 28. Section 28 of the Act reads as under: "28. Power to Court only to enlarge "time for making award." (1) The Court may, if it thinks fit, whether the time for making the award has expired or not and whether the award has been made or not, enlarge from time to time the time for making the award. (2) Any provision of an arbitration agreement whereby the Arbitrators or umpire may, except with consent of all the parties to the agreement, enlarge the time for making the award, shall be void and of no effect." The provisions of Bye-laws of the Bombay, Stock Exchange which are relevant for the purpose of deciding these proceedings are Bye-laws No. 254 and Bye-laws No. 261 which read as under : "254. Award by Arbitrators - The Arbitrators shall make their award within four months after entering on the reference or after having been called upon to act by notice in writing from any party or within such extended time as the Arbitrators may fix with the consent of the parties to the reference or as the Governing Board or the President may allow. 261. 261. Extension of time for making the award - The Government Board or the President may if deemed fit, whether the time for making the award has expired or not and whether the award has been made or not extend from time to time, the time for making the award by a period not exceeding one month at a time the due date or extended due date of the award." It is clear from the provisions of the Bye-laws of the Bombay Stock Exchange quoted above that time for making the award can be extended by the parties by mutual consent and in the absence of mutual consent of the parties, by the Governing Board or the President. The Governing Board or the President can grant extension of time for making of the award even after the award is made. Thus, the Board has been given power to grant ex post-facto sanction to the award which has been made beyond time. However, it is further to be seen here that the Board can extend time for making of the award by a period not exceeding one month at a time from the due date or the extended due date of the award. Perusal of provisions of Section 28 show, that by sub-section (1), power has been conferred on the Court to extend time for making of the award even after the award has been made. Sub-section (2) of Section 28 lays down that any provisions in arbitration agreement which empowers an Arbitrator or an Umpire to extend the time for making of the award without consent of the parties, shall be void. Therefore, it is clear that an arbitration agreement cannot empower an Arbitrator or Umpire to extend time for making of the award without the consent of the parties. In other words, an Umpire or Arbitrator can be authorised or empowered by an arbitration agreement to extend time only with consent of the parties. Therefore, the provisions in the Bye-laws of the Bombay Stock Exchange empowering the Board or its Chairman or President will not be inconsistent with the provisions of sub-section (2) of Section 28 because there is no provision in the Bye-laws of the Bombay Stock Exchange which empowers an Arbitrator or Umpire to extend the time. Therefore, the provisions in the Bye-laws of the Bombay Stock Exchange empowering the Board or its Chairman or President will not be inconsistent with the provisions of sub-section (2) of Section 28 because there is no provision in the Bye-laws of the Bombay Stock Exchange which empowers an Arbitrator or Umpire to extend the time. It is nobody's case before me that the Governing Board or the President of the Stock Exchange can be termed either as Arbitrator or Umpire for the purpose of sub-section (2) of Section 28 of the Act. Thus, in my opinion, there is no inconsistency between the provisions of Section 28(2) of the Act and the provisions of Bye-laws Nos. 254 and 261 of the Bombay Stock Exchange bye-laws. Sub-section (1) of Section 28 of the Act empowers the Court to grant extension of time, the power of the Court to grant extension of time is unlimited whereas reading of the provisions of bye-law No. 261 shows that the power of the Governing Board or the President to grant extension of time is restricted to one month at a time. It is further to be seen here that the power conferred on the Board by sub-section (1) of Section 28 is a judicial power whereas the power of the Board to grant extension of time is essentially an administrative power. It is obvious that while considering the question whether extension of time is to be granted or not, the Board or its President would not be entitled to consider the award on its own merits whereas the Court while exercising its power under sub-section (1) of Section 28 would be entitled to look into the award to find out whether the award is just and proper because the Court in its order under sub-section (1) of Section 28 would be justified in granting extension of time even when the Court finds that there is no sufficient reason disclosed for delay in making the award if the Court finds that the award is otherwise just and proper. However, that consideration cannot be used by the Board for granting extension of time because the Board cannot go into the propriety or otherwise of the award. However, that consideration cannot be used by the Board for granting extension of time because the Board cannot go into the propriety or otherwise of the award. Therefore, the contention that the powers conferred on the Board by Bye-law No. 261 and on the Court by sub-section (1) of Section 28 are different, they operate in different fields and considerations for exercise of those powers are also different. When the powers are conferred on two different authorities and the powers operate in different fields, in my opinion, there is no question of there being any inconsistency and therefore power under sub-section (1) of Section 28 of the Act would be available to the Court. The preliminary objection raised to the tenability of Arbitration Petition No. 5 of 1997 is therefore rejected. 10. Now this takes me to the consideration of Arbitration Petition No. 5 of 1997 on its own merits which is for extension of time for making of the award and its filing. According to the claimant, under the Bye-laws of the Bombay Stock Exchange, the Board has power to grant extension of time. Normally, the Board is moved by the Arbitrator for extension of time. The last time when the parties participated in the proceedings was on 4th February, 1995 and therefore, the claimant was under the impression that when the Arbitrators found that they cannot make the award within four months from 4th February, 1995 they must have moved the Board for grant of extension of time. It is also averred that such extension is granted by the Board as a matter of course. In my opinion, considering that the power is conferred on the Board and its President to grant extension of time, it was really for the Arbitrators when they found that after concluding the proceedings on 4th February, 1995, they were not in a position to pronounce the award within four months from that date to move the Board for grant of extension, no fault can be found with the claimant. In my opinion, the fault lies with the Arbitrators and therefore, the claimant cannot be penalized for that fault of the Arbitrators. In my opinion therefore, Arbitration Petition No. 5 of 1997 deserved to be granted. 11. In my opinion, the fault lies with the Arbitrators and therefore, the claimant cannot be penalized for that fault of the Arbitrators. In my opinion therefore, Arbitration Petition No. 5 of 1997 deserved to be granted. 11. Insofar as the submission of the learned counsel for the respondent about the misconduct of the Arbitrators is concerned, it is clear the from the notice of arbitration dated 4th February, 1995 and the award dated 31st July, 1995 that the date of the award is clearly mentioned as 31st July, 1995 and there was absolutely no attempt on the part of the Arbitrators to ante-date the award. Writing of the operative part of the award in the proceedings of the arbitration dated 4th February, 1995 can be described as a mistake of the Arbitrators. However, in my opinion, this will not vitiate the award itself. The submission thus has no substance. So far as the last submission is concerned, even assuming that by letter dated 9th March, 1992, the claimant had stated that he will be sending the bills to the respondent which he did not send. In my opinion, if the respondent was awaiting for the bills to be submitted to him and it was his case that the claimant cannot demand the amount without submitting the bills, then nothing prevented the respondent from sending a reply to the reminders sent by the claimant especially the lawyer's letter dated 23rd September, 1999 in which a specific amount was demanded. In my opinion therefore, the Arbitrators were perfectly justified in drawing an inference against the respondent due to his silence in relation to the demands of the amount made by the claimant from him. It is further to be seen here there is material on record to indicate that the respondent was liable for the amounts. In this view of the matter therefore, the submission made by the learned counsel for the respondent has no substance. The drawing of inference cannot be termed as error of law apparent on the face of the award. In the result therefore, Arbitration Petition No. 236 of 1996 is dismissed where Arbitration Petition No. 5 of 1997 is granted in terms of prayer Clause (a) excluding the bracketed portion. The drawing of inference cannot be termed as error of law apparent on the face of the award. In the result therefore, Arbitration Petition No. 236 of 1996 is dismissed where Arbitration Petition No. 5 of 1997 is granted in terms of prayer Clause (a) excluding the bracketed portion. In view of the fact that only objection that was raised to Award No. 78 of 1996 was in Arbitration Petition No. 236 of 1996 and as that petition has been dismissed, decree in terms of award No. 78 of 1996 is passed. Order accordingly.