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 31st 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 dated 4th 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.

In so far 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 in 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 peri

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