TMI Blog2018 (9) TMI 337X X X X Extracts X X X X X X X X Extracts X X X X ..... holesale transfer of the proceedings in relation to the subject matter of the enactment has been validated by the Supreme Court in the Madras Bar Association’s case (2010 (5) TMI 393 - SUPREME COURT OF INDIA). True and correct interpretation of Section 434(1)(c) of the 2013 Act - Held that:- The appellants have no case, as the words used in Section 434 (1)(c), preceding the word “including”, are “all proceedings under the Companies Act, 1956”. Hence, the axiomatic conclusion has to be that anything and everything under the Companies Act, 1956 is intended to be included. Reading the words in an exhaustive sense would also lead to an interpretation that proceedings under Sec. 397 to 405 of the 1956 Act would come within the fold of “all proceedings under the Companies Act, 1956” used in Section 434(1)(c) of the 2013 Act. As come to the irrefutable conclusion that “including” in Section 434 (1)(c) is extensive and expansive and not restrictive in nature. Ergo, Section 434(1)(c) of the 2013 Act that states “all proceedings under the Companies Act 2013 including proceedings relating to….” would include all matters, without any exception, pending before the District Courts and High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ray, Advocate For The Respondents : Mr. S. B. Mookherjee, Sr. Advocate, Mr. Jayanta Kumar Mitra, Sr. AdvocateMs. Roopa Mitra, Advocate, Mr. Soumitra Dutta, Advocate, Mr. Joydip Kar, Sr. Advocate, Mr. Sirsanya Bandopadhyay, Advocate, Mr. Joy Saha, Advocate And Mr. Subhojit Saha, Advocate JUDGMENT Shekhar B. Saraf, J. : 1. This is an application arising out of an appeal in connection with a judgment passed by the Learned Single Judge on March 22, 2017 in the matter of Prasanta Kumar Mitra and Ors. v- India Steam Laundry (P) Limited and Ors. (in C.A. 563 of 2013 with C.P. 611 of 1988; C.C 43 of 2014). The company petition above relates to mismanagement and oppression under sections 397 and 398 of the Companies Act, 1956 (hereinafter referred to as the 1956 Act ). By the said order, the Single Judge held that from 15th December, 2016, the High Court had lost jurisdiction to hear and dispose of the above proceedings in the High Court and the same stood transferred to the National Company Law Tribunal (hereinafter referred to as NCLT ). Factual Background 2. The facts leading to this application and appeal are as follows: - a. The Compani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 2013 Act ) were also notified on the date mentioned above. f. On December 7, 2016, Clause (c) of sub-section (1) of Section 434 of the 2013 Act was notified with effect from December 16, 2016. Section 434 of the 2013 Act is provided below: 434. Transfer of certain pending proceedings .-( 1) On such date as may be notified by the Central Government in this behalf,- ( a) all matters, proceedings or cases pending before the Board of Company Law Administration (herein in this section referred to as the Company Law Board) constituted under sub-section (1) of section 10-E of the Companies Act, 1956 (1 of 1956), immediately before such date shall stand transferred to the Tribunal and the Tribunal shall dispose of such matters, proceedings or cases in accordance with the provisions of this Act; ( b) any person aggrieved by any decision or order of the Company Law Board made before such date may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Company Law Board to him on any question of law arising out of such order: Provided that the High Court may if it is satisfied that the appellant was p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall be transferred to the Tribunal: Provided further that- ( i) All proceedings under the Companies Act, 1956 other than the cases relating to winding up of companies that are reserved for orders for allowing or otherwise such proceedings; or ( ii) The proceedings relating to winding up of companies which have not been transferred from the High Courts; Shall be dealt with in accordance with provisions of the Companies Act, 1956 and the Companies (Court) Rules, 1959 . h. The Single Judge held that all the matters should be transferred to NCLT as per the 7th December, 2016 notification under the 2013 Act, holding that Section 434 of the 2013 Act had impliedly repealed the transitional provision brought in by the Amendment Act, 1988. The relevant portion of the order is delineated below: 25. Mr. Sen contended that the Court will be slow to hold that an earlier statute or a provision thereof has been impliedly repealed by a subsequent statute or a provision thereof. In this connection, learned Senior Counsel relied on the Apex Court decisions in Union of India-vs.- Venkateshan S. (supra) and Lal Shah Baba Dargah Trust-vs.- Magnum Devel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the present proceedings, filed prior to the 1988 Amendment Act, to the NCLT is not contemplated by the coming into force of Section 434(1)(c) of the 2013 Act. His arguments were centred around the following issues: a) exclusion of jurisdiction of Civil Court can only be express and not implied. b) use of the words all and including in Section 434(1)(c) of the 2013 Act is restrictive in nature. c) Removal of Difficulty Order cannot be used so as to change the inconsistent provisions and that power cannot be given to the executive authority. d) Section 68 as a transition provision has never been expressly repealed by the 2013 Act and therefore continues to operate. 4. He relied on the judgment in Secretary of State v- Mask Co. [Coram: Lord Thankerton, Sir George Rankin and Mr. Jayakar] reported in AIR 1940 Privy Council 105 to establish that the exclusion of the jurisdiction of the Civil Court is not to be readily inferred but such exclusion must either be explicitly expressed or clearly implied. The same principle was also cited in the case of Magiti Sasamal v- Pandab Bissoi and Others [Coram: B. P. Sinha, C.J., P. B. Gajendragadkar and Rag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AIR 1977 SC 90 , wherein the Apex Court held that the word includes used in Entry 22 (that says that for the purpose of this entry potteries industry includes the manufacture of the nine articles of pottery specified therein) only includes the manufacture of articles of pottery, otherwise it wouldn t have used the word includes to specifically mention that, if the purpose was to enlarge the meaning of potteries industry in any way. The Apex Court held that the legislature had included only a few items of pottery in the Explanation and if they wanted to bring within all possible articles of pottery, then there was hardly any point in mentioning only a few of them by adding an Explanation. In view of the same, the Apex Court had held that the word includes used in the Explanation was used in a restrictive sense. 8. Further, he placed reliance on the judgment of Commissioner of Income Tax (Central)-I, New Delhi v- Vatika Township Private Limited [Coram: R.M. Lodha, C.J. and Jagdish Singh Khehar, Jasti Chelameswar, Dr. A.K. Sikri and Rohinton Fali Nariman, JJ.] reported in (2015) 1 SCC 1 , to argue that Notes on Clauses may be used to determine true intent of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mendment Act, 1988. 11. Mr. Mukherjee submitted that the title of Section 434 of the 2013 Act reads Transfer of certain pending proceedings . According to him the title itself gives a restrictive meaning to the entire section and Section 434(1)(c) needs to be read keeping in mind the above title. 12. Mr. Mukherjee then submitted that the word including as used in Section 434(1)(c) of the Companies Act, 2013 has to be read in a restrictive and exhaustive manner as has been illustrated in several judgments. He discussed Hakim and Co. v- Government of India and Others [Coram: Yogeshwar Dayal, C.J. and Syed Shah Mohammad Quadri, J.] reported in AIR 1991 Andhra Pradesh 249 , wherein it was held that even though the definition of forest produce does not include the words means or includes and means and just mentions includes , the word includes was used not as a word of extension but of limitation and restriction. 13. Mr. Mukherjee thereafter placed the Supreme Court judgment in The South Gujarat Roofing Tiles Manufacturers Association and Another v- The State of Gujarat and Another (supra) in great detail to emphasize that the word includes may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsitional provision is that its operation is expected to be temporary, in the manner that it becomes spent when all the past circumstances with which it is designed to deal with have been dealt with, while the primary legislation continues to deal indefinitely with the new circumstances which arise after its passage. Mr. Mitra, therefore, submitted that Section 68 will eventually be exhausted, although it may take a considerable period of time. 16. Mr. Mitra further submitted that unless the Amendment Act, 1988 is repealed, Section 68 would stand independently and remain operational. He submitted that even after Section 465 of the 2013 Act would become operational (Section 465 deals with repeal of the 1956 Act), Section 68 shall remain as the same had not been specifically inserted into the 1956 Act. Mr. Mitra further submitted that there is no inconsistency between Section 434(1)(c) of the 2013 Act and Section 68 of the Amendment Act, 1988. According to him, all the applications before the Company Law Board with regard to mismanagement and operation would stand transferred to the NCLT with effect from 1st of June, 2016. This would include all the applications filed before the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns cannot co-exist and in case of conflict, later statute abrogates the earlier one. He says that transitional provision is a supporting provision and once the new enactment comes into the statute books, the transitional provision goes via implied repealment. 20. Further, he argued that the Amendment Act, 1988 did not deal with any provision for transfer as the language of the provision stated that after 31st May 1991, no proceedings under Section 397 could be filed in the High Court and had to be filed before the Company Law Board which was established under the Amendment Act, 1988. However, Section 434(1)(c) of the 2013 Act specifically states that all proceedings pending before High Court from such date shall stand transferred to NCLT. 21. Mr. Kar thereafter argued that Section 434(1)(c) of the 2013 Act takes over the transitional provision and there is no need of Section 465 of the 2013 Act to be made operational. The latter provision mentioned herein says that provisions of Companies Act, 1956 will be applicable only till a particular date when operation of Section 434 is given effect to. In the case at hand, 15th December as a date was given and hence it proves that all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce in law. He submitted that a repeal of a previous statute need not always be express and the same can be implied by intendment. He submitted that if a subsequent legislation renders a previous legislation repugnant, then the previous legislation gets repealed impliedly. In support of his contention of implied repeal he relied on State of Kerala and Ors. v- Mar Appraem Kuri Company Limited and Anr. [Coram: S.H. Kapadia, C.J. and D.K. Jain, S.S. Nijjar, Ranjana P. Desai and J.S. Khehar, JJ.] reported in (2012) 7 SCC 106 and Vijay Kumar Sharma and Ors. v- State of Karnataka and Ors. [Coram: Ranganath Misra, P.B. Sawant and K. Ramaswamy, JJ.] reported in (1990) 2 SCC 562. Mr. Saha further submitted that when the subject matter of the later legislation is identical with that of the earlier legislation such that both legislations cannot stand together, the earlier gets repealed by the later enactment. He relied on Zaverbhai Amaidas v- State of Bombay (supra) to underscore the above proposition. 26. Mr. Saha thereafter placed reliance on a very recent judgment of the Supreme Court in Innoventive Industries Ltd. v- ICICI Bank and Anr. [Coram: Rohinton ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xclusion of the Jurisdiction of the Civil Court is not to be readily inferred but such exclusion must either be explicitly expressed or clearly implied are without doubt axiomatic and unimpeachable. One cannot join issue with the ratio in Mask Co. (supra) , Magiti Sasamal (supra) and Nahar Industrial Enterprises Limited (supra) . In the same breath, I must hasten to add that all the three judgments above deal specifically with exclusion of the civil jurisdiction of the Civil Court. None of the above judgments deals with a jurisdiction that has been conferred on the Civil Courts by virtue of a special enactment. In the present case, we see that the jurisdiction of the High Court in relation to company matters was introduced by a special enactment namely, the Companies Act, 1956. This is similar to jurisdictions that have been conferred on the High Court in reference to special enactments such as the Income Tax Act, 1961, the Customs Act, 1908, the Arbitration and Conciliation Act, 1940 and so forth. It has to be noted that this jurisdiction that is conferred on the High Court by way of a special Act can always be taken away by an amendment in the said legislation that co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t while considering the provisions of S. 110-A and 110-F inserted in the Motor Vehicles Act by reason of Act No. 100 of 1956 held: On the plain language of. Ss. 110A and 110F there should be no difficulty in taking the view that the change in law was merely a change of forum i.e., a change of adjectival or procedural law and not of substantive law. It is a well established proposition that such a change of law operates retrospectively and the person has to go to the new forum even if his cause of action or right of action accrued prior to the change of forum. He will have a vested right of action but not a vested right of forum. If by express words the new forum is made available only to causes of action arising after the creation of the forum, then the retrospective operation of the law is taken away. Otherwise the general rule is to make it retrospective. (Underlining is ours for emphasis) 13. Change of forum being a procedural law, thereby no substantive right has been taken away far less any right of life and liberty as enshrined in Article 21 of the Constitution of India. 33. In another recent judgment of the Division Bench of the Delhi High Court in ATV Proj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peals arising from pending cases. But even in the said judgment, the Supreme Court clearly relies upon the observations of the Privy Council that a legislation cannot be held to act retrospectively, unless a clear intention to this effect is manifested. The Supreme Court holds as under:- Such a vested right cannot be taken away except by express enactment or necessary intendment. An intention to interfere with or to impair or imperil such a vested right cannot be presumed unless such intention be clearly manifested by express words or necessary implication. ( emphasis supplied) 19. Thus, if there is a manifest intention in the legislation, the same would have to be given effect to. 20. Similar is the view expressed in Nogendra Nath Bose v. Mon Mohan Singha Roy MANU/WB/0170/1930 : AIR 1931 Cal 100, which also held that a right to appeal cannot be taken away in the absence of a express enactment. Moreover, as held in British Bank of India v. CIT MANU/MH/0726/2003 : [2004] (1) Mah.LJ.297, there is no inherent right of appeal and it has to be specifically conferred by the statute. 21. A Constitution Bench of the Supreme Court in Garikapati Veeraya (su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oad classification which has been made by the Legislature, namely cases in which schemes are sanctioned and those cases in which the schemes or proceedings are still pending. In the latter class of cases, the legislature provides the remedy of approaching the NCLT within a period of 180 days from the date when the Code comes into effect. Such proceedings would then be dealt with in accordance with the provisions of Insolvency and Bankruptcy Act, 2016. 24. During the course of submissions, Mr. Srinivasan repeatedly urged that the petitioner s case, having been dealt with in accordance with the SICA and having reached an extremely advanced stage, to relegate it to the NCLT, to be treated in accordance with the Code, results in severe injustice. The legal position on this issue has been settled by the Supreme Court in State of Rajasthan v. Mangilal Pindwal MANU/SC/0549/1996 : AIR 1996 SC 2181 wherein the Court quoted with approval the following passage on Craies on Statute Law (page 2182): When an Act of Parliament is repealed, said Lord Tenterden in Surtees v. Ellison, it must be considered (except as to transactions past and closed) as if it had never existed. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India v. Delhi High Court Bar Assn. [(2002) 4 SCC 275] and State of Karnataka v. Vishwabharathi House Building Coop. Society [(2003) 2 SCC 412] held that Articles 323-A and 323-B are enabling provisions which enable the setting up of tribunals contemplated therein; and that the said articles, however, cannot be interpreted to mean that they prohibited the legislature from establishing tribunals not covered by those articles, as long as there is legislative competence under the appropriate entry in the Seventh Schedule. 87. The Constitution contemplates judicial power being exercised by both courts and tribunals. Except the powers and jurisdictions vested in superior courts by the Constitution, powers and jurisdiction of courts are controlled and regulated by legislative enactments. The High Courts are vested with the jurisdiction to entertain and hear appeals, revisions and references in pursuance of provisions contained in several specific legislative enactments. If jurisdiction of the High Courts can be created by providing for appeals, revisions and references to be heard by the High Courts, jurisdiction can also be taken away by deleting the provisions for appeals, revisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in a restrictive manner depending on the context and subject in which the word has been used keeping in mind the object of the provisions enacted. In the present case one may examine the present provision once again that reads as follows: Section 434(1)(c): all proceedings under the Companies Act, 1956 (1/1956) including proceedings relating to arbitration, compromise, arrangements and reconstruction and winding up of companies pending immediately before such date before any District Court or High Court .. 38. One has to understand the true intent of the legislature and put a proper construction to the same. I ask myself this question as to why the legislature would qualify the term proceedings with the word all . If the legislature did not intend to include everything under the Companies Act, 1956, there was no need to use the word all before the word proceedings . However, one must keep in mind the words that follow and qualify the above sentence which is including proceedings relating to arbitration, compromise, arrangement and reconstruction and winding up of companies . . The second part of the sentence that follows the first clearly would lead to a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t pp. 105-106 that when the word include is used in interpretation clauses to enlarge the meaning of words or phrases in the statute these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import but also those things which the interpretation clause declares that they shall include. Thus where includes has an extending force, it adds to the word or phrase a meaning which does not naturally belong to it. It is difficult to agree that includes as used in the Explanation to entry 22 has that extending force. The explanation says that for the purpose of entry 22 potteries industry includes the manufacture of the nine articles of pottery specified in the Explanation. If the objects specified are also articles of pottery , then these objects are already comprised in the expression potteries industry. It hardly makes any sense to say that potteries industry includes the manufacture of articles of pottery, if the intention was to enlarge the meaning of potteries industry in any way. 4. We are also unable to agree with Mr. Patel that the articles specified in the Explanation may have been mentioned out of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t suggest a different intention. Pottery is an expression of very wide import, embracing all objects made of clay and hardened by heat. If it had been the legislature s intention to bring within the entry all possible articles of pottery, it was quite unnecessary to add an Explanation. We have found that the Explanation could not possibly have been introduced to extend the meaning of potteries industry or the articles listed therein added ex abundant cautela. It seems to us therefore that the legislature did not intend everything that the potteries industry turns out to be covered by the entry. What then could be the purpose of the Explanation? The Explanation says that, for the purpose of entry 22, potteries industry includes manufacture of the nine articles of pottery named therein. It seems to us that the word includes has been used herein the sense of means ; this is the only construction that the word can bear in the context. In that sense it is not a word of extension, but limitation; it is exhaustive of the meaning which must be given to potteries industry for the purpose of entry 22. The use of the word includes in the restrictive sense is not unknown. The observatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii) Such other produce as may be prescribed (sub-clause (3)). The 1st category mentions various articles including wood, rubber, charcoal, wood-oil, resin, natural varnish, bar, .rousa grass .. In the 2nd category not merely trees but also such leaves, flowers and fruits as may be prescribed and all other parts or produce not hereinbefore mentioned of trees are mentioned. The second part of this category also includes plants which are not trees. Part (III) of sub-clause (2) of S. 2(9) includes wild animals, wild birds, skins, etc., and part (iv) of sub-clause (2) includes even surface soil, rock and minerals, etc. The last category mentions such other produce as may be prescribed. It can thus be noticed that the definition includes not only such produce which is normally referred to as forest produce, but also various products which are not normally referred to as forest produce. Added to that is the power given to the State Government to prescribe such produce by way of rules. Even those articles specified by way of rules can also come under the definition of forest produce . It appears to us that in this context the definition of forest produce though it uses the exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge the meaning of any word or phrase occurring in the body of a statute, or in the normal standard sense, to mean comprises or consists of or means and includes depending on the context. 20. If the words and includes were intended to rope in certain items which would not be part of the meaning, but for the definition, then Rule 62 would have specified only dearness pay as the item to be included but not pay . If pay, dearness allowance and other allowances were already included in emolument with reference to its general or normal meaning, as contended by the appellant, there was no reason to specifically again include pay in rule 62. Inclusion of pay and dearness Pay and non-inclusion of dearness allowance or other allowances in the definition of emolument is significant. The definition in Rule 62 is intended to clarify that only pay and dearness pay would be considered as emolument for purposes of calculating pension. The words and includes have been used in Rule 62, as meaning comprises or consists of . 42. For a proper comprehension of the term includes and including , one should also examine the view taken by courts in different jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... W.2d 310, 257 Mich.App. 22, appeal denied 675 N.W.2d 37, 469 Mich. 1010.-Costs 2. 43. As per Stroud s Judicial Dictionary of Words And Phrases, 4th Edition, Vol 3, 1334, the word including interpreted in English courts has been delineated as follows: INCLUDING. ( 1) Including is generally used to enlarge the meaning of the preceding word (Reynolds v. Income Tax Commissioner for Trinidad and Tobago [1966] 1 W.L.R. 19). ( 2) Rent including rates and taxes : see Bradshaw v. M Mullan [1920] 2 I.R. 412 ( 3) A bequest of my personal effects in my room including pictures, roll-top desk and chiffonier complete with their contents was held to be confined to chattels of the nature of personal effects and not to include securities forming part of the contents of the desk (Joseph v. Phillips [1934] A.C. 348). ( 4) A provision for investment in property including the purchase of freehold property in England or Wales means for the income to be obtained and not for the occupation by the trustee or his nominee ( Re Powers Will Trusts [1947] Ch. 572). ( 5) Including fruit Juices (Purchase Tax Act 1963 (c. 9), Sched. 1, Pt. 1, Group ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vol 4 at paragraph 1369 as follows: 1369. Role of court in interpretation . The court has the function of authoritatively construing legislation, that is, determining its legal meaning so far as is necessary to a case before it, This function is exclusive to the court, and a meaning found by any other person, for example an authorizing agency, an investigation agency, an executing agency, a prosecuting agency, or even parliament itself, except when intending to declare or amend the law, is always subject to the determination of the court. It is usually said that the making of law, as opposed to its interpretation, is a matter for the legislator, not for the courts, but, in so far as parliament does not convey its intention clearly, expressly and completely, it is taken to require the court to spell out that intention where necessary. This may be done either by finding and declaring implications in words used by the legislator, or by regarding the breadth or other obscurity of the express language as conferring a delegated legislative power to elaborate its meaning in accordance with the public policy (including legal policy) and the purpose of legislation. Whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relating to . would include all matters, without any exception, pending before the District Courts and High Court and all such matters would have to be transferred to the NCLT. Fourth Issue 50. The question that finally arises to be answered is whether Section 68 of the Amendment Act, 1988 continues to subsist after coming into force of Section 434 (1)(c) of the 2013 Act. The Supreme Court in Union of India v- Filip Tiago De Gama of Vedem Vasco De Gama [Coram: K. Jagannatha Shetty and A.M. Ahmadi, JJ.] reported in (1990) 1 SCC 277 held that a transitional provision only exists for a specific transition period. The relevant paragraphs of the said judgment are provided below: 15. This in effect is the result of the plain meaning rule of interpreting Section 30(2) of the Amending Act 68 of 1984. But then, it would seem very odd indeed and anomalous too to exclude the present case from the operation of Section 30(2). Section 30(2) is the Transitional Provisions. The purpose of incorporating Transitional Provisions in any Act or amendment is to clarify as to when and how the operative parts of the enactments are to take effect. The Transitional Provisions gener ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aly. If the strict grammatical interpretation gives rise to absurdity or inconsistency, the court could discard such interpretation and adopt an interpretation which will give effect to the purpose of the legislature. That could be done, if necessary even by modification of the language used [See: Mahadeolal Kanodia v. Administrator General of West Bengal [(1960) 3 SCR 578 : AIR 1960 SC 936] ]. The legislators do not always deal with specific controversies which the courts decide. They incorporate general purpose behind the statutory words and it is for the courts to decide specific cases. If a given case is well within the general purpose of the legislature but not within the literal meaning of the statute, then the court must strike the balance. 51. Furthermore, I rely on judgment in Britnell v- Secretary of State for Social Security (supra) , which specifically focuses on the point that transitional provisions are expected to be temporary for the time till the substantive law doesn t come into force. The relevant portions of the judgment which clarifies the court s stance on transitional provisions are delineated below: As Staughton LJ observed in the Court of App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to lay down an exhaustive code in respect of the subject matter covered by the earlier law so as to replace it in its entirety and whether the earlier special statute can be construed as remaining in effect as a qualification of or exception to the later general law, since the new statute is enacted knowing fully well the existence of the earlier law and yet it has not repealed it expressly. The decision further lays down that for examining whether the two statutes cover the same subject matter, what is necessary to examine is the scope and the object of the two enactments, and that has to be done by ascertaining the intention in the usual way and what is meant by the usual way is nothing more or less than the ascertainment of the dominant object of the two legislations. 54. In Zaverbhai Amidas v- State of Bombay (supra) it was held that when the subject matter of the later legislation is identical with that of the earlier then both cannot stand together and the earlier gets repealed by the later enactment. Paragraph 11 of the said judgment is provided below: 11. It is true, as already pointed out, that on a question under Article 254(1) whether an Act of Parliame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both so as to avoid repugnancy-care should be taken to see whether the two do not really operate in different fields qua different subject-matters. 51.5. Repugnancy must exist in fact and not depend upon a mere possibility. 51.6. Repugnancy may be direct in the sense that there is inconsistency in the actual terms of the competing statutes and there is, therefore, a direct conflict between two or more provisions of the competing statutes. In this sense, the inconsistency must be clear and direct and be of such a nature as to bring the two Acts or parts thereof into direct collision with each other, reaching a situation where it is impossible to obey the one without disobeying the other. This happens when two enactments produce different legal results when applied to the same facts. 51.7. Though there may be no direct conflict, a State law may be inoperative because the Parliamentary law is intended to be a complete, exhaustive or exclusive code. In such a case, the State law is inconsistent and repugnant, even though obedience to both laws is possible, because so long as the State law is referable to the same subject-matter as the Parliamentary law to any extent, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an S. And Anr. [Coram: M.B. Shah and D.M. Dharmadhikari, JJ.] reported in ( 2002) 5 SCC 285 wherein the Supreme Court stated that the presumption is against repeal by implication and unless plainly repugnant to each other, courts should not normally favour implied repeal. The above judgment was placed before the Single Judge in this matter and needs to be examined further. The relevant paragraphs are delineated below: 12. Further, if the view taken by the High Court and the contentions raised by learned counsel for the respondent are accepted, it would result in implied repeal of substantial part of Section 3 of the COFEPOSA Act. One of the established principles of interpretation of the statutory provisions is that courts as a rule lean against implied repeal unless the provisions are plainly repugnant to each other. There is also a presumption against repeal by implication; and the reason of this rule is based on the theory that the legislature while enacting a law has complete knowledge of the existing laws on the same subject-matter and, therefore, when it does not provide a repealing provision it gives out an intention not to repeal the existing legislation. In Mun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment operate in the same field. Furthermore, keeping in mind the preamble of the 2013 Act that states an Act to consolidate and amend the law relating to companies as also Section 1, sub-section 4(a) of the 2013 Act that states that the provisions of this Act shall apply to companies incorporated under this Act or under any previous company law leads me to the conclusion that the legislature intended to bring all matters under the gambit of the new enactment. It is also to be noted that Section 434(1)(c) of the 2013 Act, in no unspecific terms, directs transfer of all proceedings of the Companies Act, 1956 to the NCLT. As I have already held that Section 434(1)(c) deals with all proceedings under the 1956 Act, there is a clear inconsistency between the said provision and Section 68 of the Amendment Act, 1988. Following the principles enunciated in the Apex Court judgments discussed above, I am bound to hold that Section 68 has been impliedly repealed. 58. Having answered the four issues, I am of the opinion that the issue raised by Mr. Pal with regard to taking aid of the notes on clauses need not be gone into in great detail as I have already held above that Section 434(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
