Prasanta Kumar Mitra & Ors. vs India Steam Laundry (P) Ltd. & Ors.

Shekhar B. Saraf, J.

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. â€"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 Actâ€). 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

The facts leading to this application and appeal are as follows: -

a. The Companies Act, 1956 came into force on April 1st, 1956.

b. The Companies (Amendment) Act, 1988 (hereinafter referred to as “Amendment Act, 1988â€) came into force on May 31, 1991. From this day

onwards, several matters including matters relating to mismanagement and oppression (Section 397 to 405 of the 1956 Act) were transferred to the

Company Law Board.

c. The Amendment Act, 1988 had a provision being Section 68 that retained matters and proceedings that were pending before the High Court prior to

coming into force of the Amendment Act, 1988. The relevant section is set out below:

“Section 68: (1) Any matter or proceeding which, immediately before the commencement of the Companies (Amendment) Act, 1988 was pending

before any Court shall, notwithstanding that such matter or proceeding would be heard by the Company Law Board after such commencement, be

continued and disposed of by that court after such commencement in accordance with the provisions of the Principal Act as they stood immediately

before such commencement.

(2) Any matter or proceeding which immediately before the commencement of the Companies (Amendment) Act, 1988, was pending before the

Company Law Board by virtue of any notification issued by the Central Government shall, unless such matter or proceeding would be heard by the

Company Law Board after such commencement, be heard and disposed of by the Central Government.â€​

d. The Companies Bill, 2011 was introduced in Parliament on December 2, 2011. The Notes on Clauses to the said bill explained two provisions of the

bill including that of clause 434, which dealt with transfer of proceedings from various forums to the proposed tribunal. The said clause is set out

below:

“Clause 434: This Clause corresponds to sections 10F and 647A of the Companies Act, 1956 and seeks to provide that on foundation of Tribunal,

all matters pending before CLB shall stand transferred to the Tribunal. Similarly, all proceedings relating to compromise, arrangements and

reconstruction and winding up of the companies pending before District Court and High Courts shall be transferred to the Tribunal except winding up

proceedings pending before District Courts or High Courts.â€​

e. On June 1, 2016 the NCLT was notified and came into existence. Further, sub-section 1(a) and 1(b) of Section 434 of the Companies Act, 2013

(hereinafter referred to as “the 2013 Actâ€​) 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 prevented by sufficient cause from filing an appeal within the said period,

allow it to be filed within a further period not exceeding sixty days;

(c) all proceedings under the Companies Act, 1956 (1 of 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, shall stand transferred to

the Tribunal and the Tribunal may proceed to deal with such proceedings from the stage before their transfer.

(d) any appeal preferred to the Appellate Authority for Industrial and Financial Reconstruction or any reference made or inquiry pending to or before

the Board of Industrial and Financial Reconstruction or any proceeding of whatever nature pending before the Appellate Authority for Industrial and

Financial Reconstruction or the Board for Industrial and Financial Reconstruction under the Sick Industrial Companies (Special Provisions) Act, 1985

(1 of 1986) immediately before the commencement of this Act shall stand abated:

Provided that a company in respect of which such appeal or reference or inquiry stands abated under this clause may make a reference to the

Tribunal under this Act within one hundred and eighty days from the commencement of this Act in accordance with the provisions of this Act:

Provided further that no fees shall be payable for making such reference under this Act by a company whose appeal or reference or inquiry stands

abated under this clause.

(2) The Central Government may make rules consistent with the provisions of this Act to ensure timely transfer of all matters, proceedings or cases

pending before the Company Law Board or the Court, to the Tribunal under this section.â€​

g. Further, on 7th December 2016 the Companies (Transfer of Pending Proceedings) Rules, 2016 and the Companies (Removal of Difficulties) Order,

2016 formulated under Section 470 of the 2013 Act were also notified. The said Order is provided below:

“In the Companies Act, 2013, in Section 434, in sub-Section (1), in Clause (c), after the proviso, the following provisos shall be inserted, namely;-

‘Provided further that only such proceedings relating to cases other than winding up, for which orders for allowing or otherwise of the proceedings

are not reserved by the High Courts shall 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’.â€​

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 Developers (supra). As a proposition of law there cannot be any dispute with such contention.

Where a subsequent statute does not expressly repeal a previous statute covering the same field, to the best extent possible, the courts will endeavour

to give effect to both the statutes by resorting to the principle of harmonious construction. However, when the words of the later statute are crystal

clear leaving no scope for confusion and if such words cannot under any circumstances be construed harmoniously with the words of the previous

statute, the earlier statute must be held to have been impliedly repealed. Where the earlier and the later provisions of law cannot stand together, where

the words of the two enactments are absolutely irreconcilable, where the two provisions of law are plainly repugnant to each other, the earlier law

would stand abrogated by the later law. The inconsistency between Section 68 of the Amendment Act, 1988 and Section 434(1)(c) of the 2013 Act is

so glaring and incapable of reconciliation that Section 68 of the 1988 Act must be held to have been overridden and impliedly repealed by Section

434(1)(c) of the Companies Act, 2013. The principles of statutory construction state that the Parliament must be deemed to have been aware of the

earlier statute while enacting the later law. Hence, if the Parliament promulgates a statute which in no way can coexist with an earlier statute covering

the same field, and if the subsequent statute cannot be given effect to without breaching the earlier statute, it has to be held that the earlier law has

been impliedly repealed by the subsequent law. This view of mine would also find support from the two Supreme Court decisions relied on my Mr.

Sen, learned Senior Counsel.

In view of the aforesaid, it is my considered opinion that with effect from 15 December, 2016 this Court lost jurisdiction to hear and dispose of the

present proceeding which stands transferred to the NCLT by operation of law. Accordingly, I direct the Registrar, Original Side, to send the records

of CP 611 of 1988 along with all connected applications excepting the contempt application being CC 43 of 2014 to the Regional Bench of the

National Company Law Tribunal.â€​

Submissions of the Appellants

Mr. S. Pal, Senior Advocate, appearing on behalf of the appellants made submissions to support his claim that transfer 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 “allâ€​ and “includingâ€​ 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.

He relied on the judgment in Secretary of State â€"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 â€"v- Pandab Bissoi and Others [Coram: B. P.

Sinha, C.J., P. B. Gajendragadkar and Raghubar Dayal, JJ.] reported in AIR 1962 SC 547. Relying upon the judgment of Nahar Industrial Enterprises

Limited â€"v- Hong Kong and Shanghai Banking Corporation [Coram: S.B. Sinha and A.K. Ganguly, JJ.] reported in (2009) 8 SCC 646 he supported

his argument that the exclusion of jurisdiction of the Civil Court has to be express and cannot be readily inferred.

Mr. Pal then moved on to the Privy Council Judgment in the matter of The Colonial Sugar Refining Company Limited â€"v- Irving [Coram: Lord

Macnaghten, Lord Davey, Lord Robertson, Lord Lindley, Sir Ford North, and Sir Arthur Wilson] reported in 1905 AC 369, wherein it was established

that abolishing an appeal altogether and transferring the appeal to a new tribunal amounts to the same and results in basically taking away the right to

appeal from individuals.

On the second limb of his argument, he relied on the judgment of Jairam Narayan Raje â€"v- Atmaram Narayan Raje [Coram: Mr. Justice West.]

reported in 4 Bom 482, that the word “all†does not always mean “everything†and must be read in context to the provisions and enactment

where it is used. Mr. Pal further relied on the judgment of the Supreme Court in All India Indian Overseas Bank SC and ST Employees’ Welfare

Association and Others â€"v- Union of India and Others [Coram:

A.M. Ahmadi, C.J. and S.P. Bharucha, J.] reported in (1996) 6 SCC 606, to buttress his argument that the word “all†in several instances has

been interpreted 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. Like in the case mentioned above, the phrase was “The Commission shall have all the powers of the Civil Court trying a suitâ€,

but the words “all the powers of a Civil Court†were held by the Apex Court to be restrictive and accordingly was to be only exercised “while

investigating any matter referred to in sub-clause (a) or inquiring into any complaint referred to in sub-clause (b) of clause 5.â€​

Mr. Pal then moved on to argue on the point of “includes†in Section 434(1)(c) of the Companies Act, 2013. He relied on the judgment of The

South Gujarat Roofing Tiles Manufacturers Association and another â€"v- The State of Gujarat and another [Coram: Y. V. Chandrachud, P. K.

Goswami and A. C. Gupta, JJ.] reported in 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.

Further, he placed reliance on the judgment of Commissioner of Income Tax (Central)-I, New Delhi â€"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 provision that is ambiguous in nature. He submitted that the Notes on

Clauses states “Similarly, all proceedings relating to compromise, arrangements and reconstruction and winding up of the companies pending before

District Court and High Courts shall be transferred to the Tribunalâ€. The same does not use the words ‘including’ and only deals specifically

with compromise, arrangements and reconstruction and winding up. Furthermore, he submitted that all proceedings are not followed by the words

“of the Companies Act, 1956†and therefore, the intent of the legislature was only to transfer the subject matters mentioned in the Notes on

Clauses and nothing more. It was argued that the new section 434(1)(c) creates a confusion by using the words ‘including’ that can only be

sorted out by reading the section without the same. Mr. Pal submitted that the essence of the provision has to be read by referring to the Notes on

Clauses and interpreting the provision in the light of the legislature’s true intent that is self evident from the Notes on Clauses.

He then relied on M/s Jalan Trading Co. Private Ltd. â€"v- Mill Mazdoor Sabha [Coram: K. N. Wanchoo, M. Hidayatullah, J. C. Shah, S. M. Sikri

and V. Ramaswami, JJ.] reported in AIR 1967 SC 691 to submit that the Central Government cannot use Removal of Doubts or Difficulties for giving

effect to the provisions of a statute, and if the same is inconsistent with the purposes of the statute it is not permissible in law. He further submitted

that the power to remove the doubt or difficulty by altering the provisions of the Act would in substance amount to exercise of legislative authority that

cannot be delegated to the executive authority. He also relied on Madeva Upendra Sinai and Others â€"v- Union of India [Coram: A. N. Ray, C.J.

and K. K. Mathew, P. K. Goswami, R. S. Sarkaria and A. Alagiriswami, JJ.] reported in (1975) 3 SCC 765, for the proposition that in no event under

the guise of removing a difficulty, the Central Government can change the schemes and essential provisions of the legislation.

Taking over from Mr. Pal, Mr. S. B. Mukherjee, Senior Advocate advanced further arguments in support of the submissions made by the former

and submitted that the right to have the matter heard and disposed before the High Court has accrued to the appellants by virtue of Section 68 of the

Amendment Act, 1988.

Mr. Mukherjee submitted that the title of Section 434 of the 2013 Act reads “Transfer of certain pending proceedingsâ€. 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.

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. â€"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 “includesâ€,

the word “includesâ€​ was used not as a word of extension but of limitation and restriction.

Mr. Mukherjee thereafter placed the Supreme Court judgment in The South Gujarat Roofing Tiles Manufacturers Association and Another â€"v-

The State of Gujarat and Another (supra) in great detail to emphasize that the word “includes†may be used in several legislations to depict

“meansâ€​ and therefore would be restrictive and not expansive.

He finally relied on the Supreme Court judgment in N.D.P. Namboodripad (Dead) By Lrs. â€"v- Union of India and Others [Coram: H.K. Sema

and R.V. Raveendran, JJ.] reported in (2007) 4 SCC 502, which illustrates that the word “includes†may be used to connote a specific meaning

and may be used to mean “comprises†or “consists ofâ€. He further placed specific portions of the abovementioned judgment that relied on

Justice G.P. Singh’s treatise on Principles of Statutory Interpretation (10th Edn., 2006) which states that “includes†in a definition is prima

facie extensive, but the word “includes†when used while defining a word or expression may also be construed as equivalent to “mean and

includeâ€​ and hence becomes exhaustive in nature.

Mr. Jayanta Mitra, Senior Advocate appearing on behalf of the respondent no. 4 (supporting the appellants) submitted that the Amendment Act,

1988 made several changes to the 1956 Act. He placed various sections of the above Amendment Act, 1988 to indicate that all the amendments were

brought about by way of addition, substitution or insertion in the Principal Act, that is, the 1956 Act. He submitted that Section 68 of the Amendment

Act, 1988 did not make any amendments to the 1956 Act by way of insertion, deletion or substitution and was an independent and stand alone

provision. He submitted that Section 68 was a transitional provision that had not been inserted or added or substituted or deleted any other Section of

the 1956 Act. In view of the above, he submitted that Section 68 would remain as long as the matters contemplated therein are not heard and disposed

of by the High Court and the said Section was transitional in that sense. Relying on Britnell â€"v-Secretary of State for Social Security [Coram: Lord

Keith of Kinkel, Lord Brandon of Oakbrook, Lord Ackner, Lord Oliver of Aylmerton and Lord Jauncey of Tullichettle] reported in (1991) 2 All ER

726, he submitted that the House of Lords had held that the purpose of a transitional provision was to facilitate the change from one statutory regime

to another and it could not properly be regarded as authorizing innovation by widening the ambit of the substantive legislation. The House of Lords

further held that the feature of a transitional 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.

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 Company Law Board from 31st May, 1991 onwards including those under Sections 397 and 398 falling under Part VI,

Chapter VI of the Companies Act, 1956. All applications saved by reason of Section 68 would continue to be heard and dealt by the High Court and

the said transitional provision being temporary would have served its purpose only when all past circumstances with which it was designed to deal with

had been dealt with.

Mr. Mitra thereafter once again accentuated that the word “including†as appearing in Section 434(1)(c) should be read in the context as

“meansâ€. He placed reliance on Karnataka Power Transmission Corporation & Anr. â€"v- Ashok Iron Works Private Limited [Coram:

Markandey Katju and R.M. Lodha, JJ.] reported in (2009) 3 SCC 240 (paragraphs 14 to 17);

South Gujarat Roofing Tiles Manufacturers’ Association â€"v- State of Gujarat (supra) (paragraph 5); Dilworth & Ors. â€"v- Commissioner of

Stamps [Coram: Lord Watson, Lord Hobhouse, and Lord Davey] reported in 1899 Appeal Cases 99 and Dadaji alias Dina â€"v- Sukhdeobabu and

Others. [Coram: V. D. Tulzapurkar and E. S. Venkataramiah, JJ.] reported in (1980) 1 SCC 621 (Paragraphs 11 and 12) to emphasize that in the

present context for a harmonious reading of Section 434(1)(c) and Section 68 the word “includingâ€​ has to be read as “meansâ€​.

Submissions of the Opposing Respondents

Mr. Jaydip Kar, Senior Advocate appearing on behalf of respondents argued mainly on two grounds - firstly on the significance of transitional

provision and secondly on the use of the word “includingâ€​ in Section 434(1)(c).

He placed reliance on Britnell â€"v- Secretary of State for Social Security (supra), wherein it was established that a transitional provision is

expected to be temporary and it becomes spent when all the past circumstances with which it is designed to deal have been dealt with and the primary

legislation continues to deal indefinitely with the new circumstances which arise after the passage. He argued submitting that once a new legislation

comes, transitional provision goes. He placed reliance on the case of Zaverbhai Amaidas â€"v- State of Bombay [Coram: Mehr Chand Mahajan, C.J.

and Bijan Kumar Mukherjea, Vivian Bose, B. Jagannadhadas and T.L. Venkatarama Ayyar, JJ.] reported in AIR 1954 SC 752, which says that two

conflicting provisions 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.

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.

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

the provisions of the 1956 Act are overridden by the 2013 Act. However, this Court notes that Section 465 has not been notified till date.

Mr. Kar also went on to argue on the basis of Revanasiddappa and Another â€"v- Mallikarjun and Others [Coram: G.S. Singhvi and A.K.

Ganguly, JJ.] reported in (2011) 11 SCC 1 that forum is a choice of legislation and not the parties. Hence, there is access to justice provided to the

parties, just not at the desired forum.

Mr. Kar further relied on P. Kasilingam & Ors. â€"v- P.S.G. College of Technology & Ors. [Coram: P.B. Sawant and S.C. Agrawal, JJ.]

reported in 1995 Supp (2) SCC 348, wherein it was established that the word “includes†widens the meaning of a statement - it enlarges the

meaning of the expression defined so as to comprehend not only such things as they signify according to their natural import but also those things

which the clause declares that they shall include. He also placed reliance on the judgment of N.D.P. Namboodripad (Dead) By Lrs. (supra), which

reiterated at paragraphs 18 and 19, that the word “includes†used in a definition of a word or phrase in a statute enlarges the meaning of the word

or phrase and such words or phrase must be construed as comprehending not only such things as they signify according to their natural meaning but

also those things which the interpretation or definition clause declares they shall include. The abovementioned case specifies that the word

“includeâ€​ is synonymous with “compriseâ€​ or “containâ€​.

Mr. Joy Saha, Senior Advocate appearing on behalf of the respondents apart from summarizing all the issues and distinguishing the judgments

cited by the appellants, primarily dealt with the following issues:

(a) The doctrine of implied repeal and repugnancy on the enactment of a subsequent legislation covering the subject matter of a previous legislation;

(b) Choice of forum is a matter for the legislature to decide and it is open to the legislature to create a new forum;

(c) The word “includingâ€​ in Section 434(1)(c) of the 2013 Act expands and enlarges the Section and cannot be read in a restrictive manner.

Mr. Saha, submitted that the argument of the appellants that Section 68 of the Amendment Act, 1988 stands alone, that is, it does not get repealed

with the parent statute, is absurd and has no substance 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. â€"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. â€"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 â€"v-State of Bombay

(supra) to underscore the above proposition.

Mr. Saha thereafter placed reliance on a very recent judgment of the Supreme Court in Innoventive Industries Ltd. â€"v- ICICI Bank and Anr.

[Coram: Rohinton Fali Nariman and Sanjay Kishan Kaul, JJ.] reported in (2018) 1 SCC 407 wherein at paragraph 51 of the judgment, the Supreme

Court laid down the test for repugnancy and implied repeal.

Mr. Saha further submitted that the substantive right of the appellant is not being affected by the coming into force of Section 434(1)(c) of the

2013 Act, and the only change is that of change of forum. He submitted that the legislature has the absolute power to create a new forum for trying

out pending proceedings in the High Court, as is the case in the present litigation. He placed reliance on Union of India â€"v- Madras Bar Association

[Coram: K.G. Balakrishnan, C.J. and R.V. Raveendran, D.K. Jain, P. Sathasivam and J.M. Panchal, JJ.] reported in (2010) 11 SCC 1 in support of

the above contention.

Mr. Saha thereafter distinguished the judgments cited by the appellant with regard to the meaning of the terms “all†and “including†in

Section 434(1)(c) of the 2013 Act.

Analysis and Conclusion

I have heard counsels appearing on behalf of both the parties and have perused the materials on record. At the very outset, I must express my

gratitude to both the sides for having conscientiously researched on the points of law and thereafter having advanced the same by way of eloquent

submissions before this court.

The legal issues that arise for my consideration and require to be answered for a proper adjudication of the present dispute are as follows:

(a) Whether the ouster of the jurisdiction of the High Court in relation to company matters needs to be express or the same may be ousted by

implication?

(b) Whether parties to a lis can insist on continuing their dispute in the forum the same was initiated or have to bow down to the wishes to the

legislature for transfer of the said jurisdiction to another forum?

(c) Whether the term “all†and “including†in Section 434(1)(c) of the 2013 Act are expansive in nature or the same is to be read in a

restrictive manner?

(d) Whether Section 68 of the Amendment Act, 1988 continues to subsist regardless of the coming into force of Section 434(1)(c) of the 2013 Act in

relation to matters that were filed in the High Court prior to coming into force of the Amendment Act, 1988?

First Issue

The judgments cited by Mr. Pal in relation to the proposition 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 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 conferred the jurisdiction. The three judgments cited by Mr. Pal do not come to his rescue on

this aspect. It has to be noted that any amendment or coming into force of a new law in place of the earlier law can always result in ouster of the

jurisdiction that was conferred on the High Court by the earlier law. The jurisdiction of the High Court in company matters not being a jurisdiction of

the civil jurisdiction under the Code of Civil Procedure, 1908, the same can always be ousted by the amendment of the enactment that conferred the

said jurisdiction. Such ouster need not be express as the same is not a civil jurisdiction of the High Court. Accordingly, I hold that the ouster of the

jurisdiction of the High Court in relation to company matters does not need to be express and the same can be implied.

Second Issue

With regard to the second issue, Mr. Pal had placed reliance on the Privy Council judgment in the matter of The Colonial Sugar Refining Company

Limited (Supra) that had held that abolishing an appeal altogether and transferring the same to a new tribunal amounted to taking away the right to

appeal from the individuals. However, one must take note of the judgment in Gajula Rajaiah â€"v- State of A.P. and Others [Coram: S.B. Sinha, C.J.

and S.R. Nayak, J.] reported in AIR 2001 AP 380 wherein S. B. Sinha, C.J. (as he then was) authoring the judgment for the Division Bench stated

that the change of forum is not a choice of parties, but is the choice of the legislature. The relevant paragraphs are provided below:

“9. Does a statutory provision limiting the pecuniary jurisdiction of the Court violates Article 14 or 21 of the Constitution of India. The answer to

the said question must be rendered in negative. Ubi jus ibi remedium is a well known jurisprudential principle. But it is equally well settled that whereas

a litigant has a remedy to ventilate his grievances before a Court of Tribunal if he has any cause of action but he does not have any choice of forum.

The forum for adjudication of the rights of a citizen undoubtedly would be within the legislative competence of the State.

Furthermore, as indicated herein before even the jurisdiction of a Civil Court can be taken away expressly or by necessary implication under a

statute.

In N.I. Insurance Company v. Shanti Misra, AIR 1976 SC 237, the Apex Court 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.â€

(Underlining is ours for emphasis)

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.â€​

In another recent judgment of the Division Bench of the Delhi High Court in ATV Projects (India) Ltd. â€"v- Union of India and Ors. [Coram:

Sanjiv Khanna and Prathiba M. Singh, JJ.] reported in (2017) 205 Comp Cas 643 (Delhi), the Division Bench was confronted with a challenge

regarding the constitutional validity of Section 4(b) of the Sick Industrial Companies (Special Provisions) Repeal Act, 2003. In this case the Repeal

Act was enforced with effect from 1st December, 2017. Due to the said notification, proceedings before the Board for Industrial and Financial

Reconstruction stood abated and the petitioner could only approach the National Company Law Tribunal within a period of 180 days. For a proper

understanding of the ratio of this judgment, paragraphs 17 to 25 are delineated below:

“17. The main plank of the Petitioner’s submissions is that the right to appeal is a vested right and cannot be taken away. The Petitioner relies

on the following authorities to buttress its case.

Hoosein Kasam Dada (India) Ltd. v. State of M.P., MANU/SC/0075/1953 : 1953 SCR 987 (hereinafter ‘Hoosein Kasam Dada’)

Garikapati Veeraya v. N. Subbiah Choudhry, MANU/SC/0008/1957 : 1957 SCR 488 (hereinafter ‘Garikapati Veeraya’)

Shiv Shakti Coop. Housing Society v. Swaraj Developers, MANU/SC/0335/2003 ; (2003) 6 SCC 659 (hereinafter ‘Shiv Shakti Coop. Housing

Society’)

The case law cited by the Petitioner provide the answer to the question raised. In Hoosein Kasam Dada (supra), the Supreme Court was dealing

with a case where the Central Provinces and Berar Sales Tax Act, 1947 was amended to the effect that unless the payment of the tax determined in

the assessment was made, no appeal would be entertained. This was in contradiction to the earlier provisions, wherein the appellant could admit to

what was due and pay only that part of the amount. Thus, by the amendment, the condition of compulsory pre-deposit of the entire amount was

imposed which was not a requirement as per the earlier provision. The Supreme Court, in the said Context held that the appellant cannot be burdened

with higher pre-deposit conditions and that the provision of appeal which applies is the one which was in existence on the date when the proceedings

were initiated and not the date when the appeal was filed. Moreover, in the said case, the amendment did not expressly or by implication intend for the

new amended provision to apply to all new appeals 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.â€​

Thus, if there is a manifest intention in the legislation, the same would have to be given effect to.

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.

A Constitution Bench of the Supreme Court in Garikapati Veeraya (supra) summarized the legal position as under:-

“From the decisions cited above the following principles clearly emerge:

(i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity

and are to be regarded as one legal proceeding.

(ii) The right of appeal is not a mere matter of procedure but is a substantive right.

(iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties there to till the rest of the

carrier of the suit.

(iv) The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the lis

commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at

the date of the institution of the suit of proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.

(v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not

otherwise.â€​

Thus, the clear ratio of all these decisions is that if there is a manifest intention, either by express words or necessary implication, the right of

appeal can be taken away and the right does not remain. The right to appeal is a statutory right and can be expressly or impliedly taken away. These

decisions do not hold that if proceedings are pending, a vested right exists. In this case, we are not concerned with the right or pendency of an appeal,

but repeal of an enactment and its substitution by another, with the express stipulation that proceedings under the repealed enactment would abate.

The Repeal Act and Code expressly and specifically state that the proceedings under SICA would not survive and would abate. This is the explicit

provision incorporated by means of the amendment to Section 4(b). The legislature clearly provides a remedy to all persons/classes of persons whose

proceedings were pending and it is up to them to avail the same in accordance with the prevalent law. In the instant case, a perusal of the Code and

the Repeal Act clearly shows that there is one broad 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.â€​

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. That is the general rule. Tindal C.J. stated the exception more widely. He said : ‘The effect of repealing a statute

is to obliterate it as completely from the records of the Parliament as if it had never been passed; and it must be considered as a law that never existed

except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an existing law.â€​

It is the clear view of this Court that once a law is repealed and a new legislation has been put in its place, it is not open for anyone to contend that

it should be continued to be governed by the old enactment, except where actions under the existing laws had concluded. The applicability of the

repealed legislation is only to the extent as provided in the Savings clause and nothing more.â€​

As seen above, Prathiba M. Singh, J., authoring the judgement for the Division Bench has succinctly held in paragraph 25 that once a law is

repealed and a new legislation has been put in its place, it is not open for anyone to contend that it should be continued to be governed by the old

enactment, except where actions under the existing laws had concluded.

Finally, on the issue of choice of forum, one needs to examine the judgment of the Supreme Court in Union of India â€"v- Madras Bar Association

(supra) that has clearly held that when a Tribunal is constituted under the Companies Act, empowered to deal with disputes arising under the said Act

and the statute substitutes the Tribunal in place of the High Court, necessarily there will be wholesale transfer of company law matters to the Tribunal.

The Apex Court further held that the legislature has the power to create tribunals with reference to said enactment and confer jurisdiction on them to

decide disputes in regard to matters arising from such a special enactment. The Apex Court further observed that it cannot be said that the legislature

has no power to transfer judicial functions traditionally performed by courts to tribunals. The relevant paragraphs of the judgment are delineated

below:

“80. The legislative competence of Parliament to provide for creation of courts and tribunals can be traced to Entries 77, 78, 79 and Entries 43, 44

read with Entry 95 of List I, Entry 11-A read with Entry 46 of List III of the Seventh Schedule. Referring to these articles, this Court in two cases,

namely, Union of 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.

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, revisions or references. It also follows that the legislature has the power to create tribunals with

reference to specific enactments and confer jurisdiction on them to decide disputes in regard to matters arising from such special enactments.

Therefore it cannot be said that legislature has no power to transfer judicial functions traditionally performed by courts to tribunals.

The argument that there cannot be “wholesale transfer of powers†is misconceived. It is nobody's case that the entire functioning of courts in

the country is transferred to tribunals. The competence of Parliament to make a law creating tribunals to deal with disputes arising under or relating to

a particular statute or statutes cannot be disputed. When a Tribunal is constituted under the Companies Act, empowered to deal with disputes arising

under the said Act and the statute substitutes the word “tribunal†in place of “the High Court†necessarily there will be “wholesale

transfer†of company law matters to the tribunals. It is an inevitable consequence of creation of a tribunal for such disputes and will no way affect

the validity of the law creating the tribunal.â€​

In view of the judgments of the High Court in ATV Projects (India) Ltd. (supra) and Gajula Rajaiah (supra) it is absolutely clear that the parties to

a lis cannot insist on continuing the dispute in the forum the same was initiated. If and when there is an amendment to the special statute conferring

the jurisdiction on the High Court, the same can be transferred to a Tribunal. It may be further noted that wholesale 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 (supra).

Third Issue

The third issue that has been argued extensively before this Court is with regard to the true and correct interpretation of Section 434(1)(c) of the

2013 Act. It is the appellant’s case that the term “all†and “including†used in the section have to be given a restrictive meaning. In

furtherance of their arguments with respect to the word “all†they had placed reliance on Jairam Narayan Raje (supra) and All India Indian

Overseas Bank SC and ST Employees’ Welfare Association and Others (supra) wherein the courts had held that in certain situations the word

“all†may be interpreted 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…..â€​

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 “allâ€. 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 “proceedingsâ€. 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….â€. The second part of the sentence that follows the first clearly would lead to a different meaning if the term “including

proceedings†was absent. In such a situation, all proceedings relating to only arbitration, compromise, arrangement and reconstruction and winding up

of companies would have stood transferred. Therefore, what follows suit is that the interpretation of the term “including†in the second sentence

becomes paramount.

In relation to the meaning to be given to the word “includingâ€, the appellants have cited various judgments that need to be examined in greater

detail. In South Gujarat Roofing Tiles Manufacturing Association and Another (supra), the Apex Court examined the explanation to entry 22 to part I

of the Schedule to the Minimum Wages Act, 1948. The explanation to entry 22 stated that for the purpose of this entry potteries industry

“includes†the manufacture of the nine articles of pottery specified therein. The Apex Court on an examination of the said provision held that the

word “include†has been used in the explanation in an exhaustive and restrictive manner. Paragraphs 3 to 5 are delineated below for a proper

understanding:

“3. The question turns on a true construction of the Explanation to entry 22 which says that for the purpose of this entry potteries industry

“includes†the manufacture of the nine “articles of pottery†specified therein. Pottery in a wide sense will take in all objects that are made

from clay and hardened by fire, from crude earthen pots to delicate porcelain. Mr. Patel appearing for the respondent, State of Gujarat, contends that

the explanation indicates that potteries industry in entry 22 is intended to cover all possible articles of pottery including Mangalore pattern roofing tiles.

Referring to the well-known use of the word ‘includes’ in interpretation clauses to extend the meaning of words and phrases occurring in the

body of the statute. Mr. Patel submits that the Explanation, when it says that potteries industry ‘includes’ the nine named objects, what is mean

is that it includes not only these objects but other articles of pottery as well. It is true that ‘includes’ is generally used as a word of extension, but

the meaning of a word or phrase is extended when it is said to include things that would not properly fall within its ordinary connotation. We may refer

to the often-quoted observation of Lord Watson in Dilworth v. Commr. Of Stamps, (1899) AC 99 at 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 potteryâ€, 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.

We are also unable to agree with Mr. Patel that the articles specified in the Explanation may have been mentioned out of abundant caution to

emphasize the comprehensive character of the entry, to indicate that all varieties of pottery are included therein. This argument, though more plausible,

does not also seem acceptable. It is possible that one might have doubts whether things like refractories or electrical or textile accessories would pass

under the description pottery as that word is used in common parlance, but the explanation also mentions crockery and toys regarding which there

could be hardly any doubt. The inclusion in the list of objects which are well-recognised articles of pottery makes it plain that the Explanation was

added to the entry not by way of abundant caution.

The contention of Mr. Tarkunde for the appellants is that the articles mentioned in the Explanation were intended to be exhaustive of the objects

covered by entry 22. According to Mr. Tarkunde if the legislature wanted to bring within the entry all possible articles of pottery, then there was

hardly any point in mentioning only a few of them by way of Explanation. To this Mr. patel’s reply is that it is well-known that where the

legislature wants to exhaust the significance of the term defined, it uses the word ‘means’ or the expression ‘means and includes’ and

that if the intention was to make the list exhaustive, the legislature would not have used the word ‘includes’ only. We do not think there could be

any inflexible rule that the word ‘include’ should be read always as a word of extension without reference to the context. Take for instance

entry 19 in the schedule which also has an Explanation containing the word ‘includes’. Entry 19 is as follows:

“Employment is any tobacco processing establishment, not covered under entry No. 3.

Explanation. â€" For the purpose of this entry the expression “processing†includes packing or unpacking, breaking up, sieving, threshing, mixing,

grading, drying, curing or otherwise treating the tobacco (including tobacco leaves and stems) in any manner.â€​

 Entry 3 to which entry 19 refers reads:

“Employment is any tobacco (including bidi-making) manufactory.†It is clear from the Explanation to Entry 19 that there could be no other way

or manner of “processing†besides what is stated as included in that expression. Though ‘include’ is generally used in interpretation clauses

as a word of enlargement, in some cases the context might 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 observation of Lord Watson in Dilworth v. Commr. Of Stamps, 1899 AC 99 which is

usually referred to on the use of ‘include’ as a word of extension is followed by these lines: “But the word ‘includes’ is susceptible of

another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of

adding to the natural significance of the words or expressions defined. It may be equivalent to ‘mean and include’ and in that case it may afford

an exhaustive explanation of the meaning which for the purpose of the Act, must invariably be attached to these words or expressions.†It must

therefore be held that the manufacture of Mangalore pattern roofing tiles is outside the purview of entry 22.â€​

Next we need to examine the judgment of the Andhra Pradesh High Court in Hakim and Co. (supra) wherein it was held that the definition of

forest produce though uses the term “includesâ€, it is to be read as “means†or “includes and meansâ€. The Andhra Pradesh High Court

held that the expression “includesâ€​ was used in an exhaustive manner. The relevant paragraph is delineated below:

“14. We have already reproduced above the definition of “forest produceâ€. It is true that the definition uses the word “includes†as

opposed to the expression “means†or as opposed to the expression “means and includesâ€. But the submission of the learned counsel for the

appellant is that the expression really is not used as a word of extension and in the context and the reference such expression is used in the sense of

“meansâ€, and in that sense it is not a word of extension but of limitation; it is exhaustive of the meaning which must be given to the expression

“forest produce†used in the aforesaid sub -section i.e., 2(g). In support of this contention the learned counsel relies on a decision of the Supreme

Court in South Gujarat Roofing Tiles Manufacturers Association v. State of Gujarat, AIR 1977 SC 90.

Before we refer to the decision it is useful to analyse the definition with which we are concerned, viz., S. 2(g) of the Act. Though the definition

“forest produceâ€​ refers to the expression “includesâ€​, it is divided into three board categories:-

(i) Whether found in, or brought from a forest or not (sub-clause (1)),

(ii) When found in or brought from a forest (sub-clause (2)), and

(iii) 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 expression “includesâ€, is exhaustive. It is the common

case that the item in dispute is not covered by sub-clause (2) or sub-clause (3) of S. 2(g) of the Act, that is to say, it is not covered by the 2nd and 3rd

categories.â€​

N.D.P. Namboodripad (Dead) By Lrs. (supra) was referred to by both the parties to interpret the meaning of the word “includesâ€. The

proposition of law discussed therein in paragraphs 18 to 20 are delineated below:

“18. The word “includes†has different meanings in different contexts. Standard dictionaries assign more than one meaning to the word

“includeâ€. Webster’s Dictionary defines the word “include†as synonymous with “comprise†or “containâ€. Illustrated Oxford

Dictionary defines the word “include†as: (i) comprise or reckon in as a part of a whole; (ii) treat or regard as so included. Collins Dictionary of

English Language defines the word “includes†as: (i) to have as contents or part of the contents; be made up of or contain; (ii) to add as part of

something else; put in as part of a set, group or a category; (iii) to contain as a secondary or minor ingredient or element. It is no doubt true that

generally when the word “include†is used in a definition clause, -it is used as a word of enlargement, that is to make the definition extensive and

not restrictive. But word “includes†is also used to connote a specific meaning, that is, as “means and includes†or “comprises or

“consists ofâ€​.

Justice G. P. Singh in his treatise Principles of Statutory Interpretation (10th Edn., 2006), has noticed that where a word defined is declared to

“include†such and such, the definition is prima facie extensive, but the word “include†when used while defining a word or expression, may

also be construed as equivalent to “mean and include†in which event, it will afford an exhaustive explanation of the meaning which for the

purposes of the Act must invariably be attached to the word or expression [vide pp. 173 and 175 referring to and relying on the decisions of this Court

in Municipal Council, Raipur v. State of M. P., South Gujarat Roofing Tiles Manufacturers Assn. v. State of Gujarat, Hindustan Aluminium Corpn. v.

State of U. P. and Reserve Bank of India v. peerless General Finance & Investment Co. Ltd. It is, therefore, evident that the word “includesâ€

can be used in interpretation clauses either generally in order to enlarge the meaning of any word or phrase occurring in the body of a statute, or in the

normal standard sense, to mean “comprisesâ€​ or “consists ofâ€​ or “means and includesâ€​ depending on the context.

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 “payâ€. 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

“comprisesâ€​ or “consists of.â€​

For a proper comprehension of the term “includes†and “includingâ€, one should also examine the view taken by courts in different

jurisdictions. In Thompson West’s, Words and Phrases, Permanent Edition, Vol 20A, the different ways the phrase “includes†has been

interpreted by the courts in the United States of America has been provided. Some of the illustrations are provided below:

“Ill. 2007. Pursuant to statutory definition of the words “includes†or “including,†either of these words, when followed by a listing of

items, means that the preceding general term encompasses the listed items, but the list is not exhaustive; the preceding general term is to be construed

as a general description of the listed items and other similar items. S.H.A. 720 ILCS 5/2-10.-People v. Perry, 309 Ill.Dec. 330, 864 N.E.2d 196, 224

Ill.2d 312.-Statut 194, 199.

Ill.App. 2 Dist. 1943. The word “includes†as used in Policemen’s Minimum Wage Act defining policemen to mean any member of a

regularly constituted police department of a city and to “include†the chief of police, assistant chief of police, chief of detectives, and others,

meant “comprises†and the statute manifested as intent to create a fixed class excluding from the definition all those not specifically named.

S.H.A. ch. 24, §§ 860a, 860b; S.H.A. ch. 24, §§ 11-1, 11-2.-Patteson v. City of Peoria, 47 N.E.2d 867, 318 Ill.App. 245, reversed 54 N.E.2d

445, 386 Ill. 460.- Labor & Emp 2242.

La.App. 2 Cir, 1966. Omnibus clause of automobile liability policy by its title and use of the word “includesâ€, denotes extensiveness and

comprehensiveness and its evident intent to refer to any and all persons entitled to protection under the policy. -Commercial Union Ins. Co. of New

York v. Hardcastle, 188 So.2d 698, appeal after remand 197 So.2d 335, writ refused 199 So.2d 916, 250 La. 900.-Insurance 2660.

Mich.App. 2003. Word “includes,†in phrase defining “verdict†in rule assessing mediation sanctions against a party rejecting a mediation

evaluation unless the verdict was more favourable to the rejecting party, was exclusive, rather than leaving to the courts’ future interpretation as

to what would constitute a “verdict,†and thus only the three things listed after such word, a jury verdict, a judgment by the court after a nonjury

trial, and a judgment entered as a result of a ruling on a motion filed after mediation, qualified as verdicts for purposes of the rule. MCR 2,403(O)(2).-

Jerico Const., Inc. V. Quadrants, Inc., 666 N.W.2d 310, 257 Mich.App. 22, appeal denied 675 N.W.2d 37, 469 Mich. 1010.-Costs 2.â€​

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 taxesâ€​: 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 Juicesâ€​ (Purchase Tax Act 1963 (c. 9), Sched. 1, Pt. 1, Group

35 (a)). These words are to be construed in the context of the words preceding them (“manufactured beveragesâ€), and do not include non-

manufactured fruit juice (Customs and Excise Commissioners v. Savoy Hotel [1966] 1 W.L.R. 948).â€​

Finally, one should well remember the potent and vivid words of Justice Oliver Wendell Holmes Jr., in Towne vs. Eisner, 245 U.S. 418: -

“A word is not a crystal, transparent and unchanging, it is the skin of a living thought and may vary greatly in color and content according to the

circumstances and the time in which it is used.â€​

On a careful analysis of the above judgments and the authorities on interpretation of statues, it is clear that where a word defined is declared to

“include†such and such, the definition is prima facie extensive but the word “include†when used while defining a word or expression, may

also be construed as equivalent to “mean and include†in which event it will afford an exhaustive explanation of the meaning. As held in N.D.P.

Namboodripad (Dead) By Lrs. (supra) the term “includesâ€​ in its normal sense is extensive in nature and should be read as such unless the context

otherwise requires the same to be read in an exhaustive manner. In the case of South Gujarat Roofing Tiles (supra) and in the case of Hakim and Co.

(supra) the courts interpreted the word “includes†to be exhaustive as in both cases it was used in a definitional capacity. In the present case the

word “including†has been used in a sentence preceded by the term “all proceedingsâ€. In the event the legislature wanted to only refer to

proceedings relating to arbitration, compromise, arrangement and reconstruction and winding up of companies, there was no need to add the word

“including proceedingsâ€. The very fact that the legislature chose to add these words means that the legislature was aware of the other

proceedings that were pending in the High Court and accordingly intended to transfer even those proceedings to the NCLT.

The contention of the appellant that Section 434(1)(c) should be read by neglecting these two words being “including proceedings†cannot and

must not be done. If I were to do so I would be changing the intention of the legislature. The role of the court in statutory interpretation has been

lucidly discussed in the Halsbury’s Laws of England, 4th Edn., Reissue, 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. Whichever course is adopted, in accordance with the doctrine of precedent the court’s operation influences the future legal of the

enactment by producing what may be called sub-rules, which are implied or expressed in the court’s judgement.â€​

In view of the above, only when the Parliament does not convey its intention clearly, expressly and completely in a statute can the courts embark

on a mission to spell out the intention of the Parliament, and not in any other situation. In the present case, I see no such predicament before me as the

word “including†has been used specifically to connote the meaning it normally does. The fact that the word “including†has not been used to

define a word, leads me to the conclusion that the same has been used in an expansive and extensive manner. Furthermore, as pointed above the very

fact that the legislature added the words “including proceedings†following the words “all proceedings under the Companies Act, 2013†was

to ensure that any other proceedings apart from the one’s mentioned in the provision shall also be transferred to the newly constituted Tribunal.

One may argue, as noticed in the Custom and Excise Commissioner v. Savoy Hotel [1966], W.L.R. 948, that the words following “includingâ€

has to be construed in the context of the words preceding them. In the case above, “including fruit juices†was preceded by “manufactured

beverages†and accordingly a restrictive meaning was assigned by the court as not to include “non-manufactured fruit juicesâ€. Applying this

logic also, the appellants have no case, as the words used in Section 434 (1)(c), preceding the word “includingâ€, are “all proceedings under the

Companies Act, 1956â€. 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, 1956â€​ used in Section 434(1)(c) of the 2013 Act.

In the light of the discussion above, I 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 Court and all such matters would have

to be transferred to the NCLT.

Fourth Issue

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 â€" 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 generally are intended to take care of the events during the period of transition. Mr Francis Bennion in his

book on Statutory Interpretation (14 edn., p. 442) outlines the purpose of such provisions:

“189. Transitional Provisions Where an Act contains substantive, amending or repealing enactments, it commonly also includes transitional

provisions which regulates the coming into operation of those enactments and modify their effect during the period of transition. Where an Act fails to

include such provisions expressly, the court is required to draw such inferences as to the intended transitional arrangements as, in the light of the

interpretative criteria, it considers Parliament to have intended.â€​

The paramount object in statutory interpretation is to discover what the legislature intended. This intention is primarily to be ascertained from the

text of enactment in question. That does not mean the text is to be construed merely as a piece of prose, without reference to its nature or purpose. A

statute is neither a literary text nor a divine revelation. “Words are certainly not crystals, transparent and unchanged†as Mr Justice Holmes has

wisely and properly warned. (Towne v. Eisner [245 US 418, 425 (1918)] ) Learned Hand, J., was equally emphatic when he said: “Statutes should

be construed, not as theorems of Euclid, but with some imagination of the purposes which lie behind them.†(Lenigh Valley Coal Co. v. Yensavage

[218 FR 547, 553])

Section 30(2) provides that amended provisions of Section 23(2) shall apply, and shall be deemed to have applied, also to, and in relation to, any

award made by the Collector or court between April 30, 1982 and September 24, 1984, or to an appellate order therefrom passed by the High Court or

Supreme Court. The purpose of these provisions seems to be that the awards made in that interregnum must get higher solatium inasmuch as to

awards made subsequent to September 24, 1984. Perhaps it was thought that awards made after the commencement of the Amending Act 68 of 1984

would be taken care of by the amended Section 23(2). The case like the present one seems to have escaped attention by innocent lack of due care in

the drafting. The result would be an obvious anomaly as will be indicated presently. If there is obvious anomaly in the application of law the court

could shape the law to remove the anomaly. 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.â€​

Furthermore, I rely on judgment in Britnell â€"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 Appeal, it is not possible to give a definitive description of what constitutes a transitional provision. In

Thorton on Legislative Drafting (3rd edn, 1987) p 319 it is said:

‘The function of a transitional provision is to make special provision for the application of legislation to the circumstances which exist at the time

when that legislation comes into force.’

One feature of a transitional provision is that its operation is expected to be temporary, in that it becomes spent when all the past circumstances with

which it is designed to deal have been dealt with, while the primary legislation continues to deal indefinitely with the new circumstances which arise

after its passage. In the present instance reg 20(2) must eventually become spent, although it may be envisaged that that could take a considerable

period of time.â€​

The ratio that if a subsequent legislation renders a previous legislation repugnant, then the previous legislation gets repealed impliedly was laid

down in State of Kerala and Ors. â€"v- Mar Appraem Kuri Company Limited and Anr. (supra). The relevant paragraph being paragraph 90 is

provided below:

“90. Applying the tests laid down in the above judgments of this Court, when a State law is repealed expressly or by implication by a Union law,

Section 6 of the General Clauses Act, 1897 applies as to things done under the State law which are so repealed, so that transactions under the State

law before the repeal are saved as also any rights and liabilities arising under the State Act, prior to the enactment of the Central Act. Repeal of an

enactment is a matter of substance. It depends on the intention of the legislature. If by reason of the subsequent enactment, the legislature intended to

abrogate or wipe off the former enactment, wholly or in part, then, it would be a case of pro tanto repeal.â€​

Moving ahead, the principle of implied repeal was enunciated in the case of Vijay Kumar Sharma and Ors. â€"v- State of Karnataka and Ors.

(supra). The relevant paragraph being paragraph 46 is provided below:

“46. What is important from our point of view, is the view taken in that case that when repugnancy is alleged between the two statutes, it is

necessary to examine whether the two laws occupy the same field, whether the new or the later statute covers the entire subject matter of the old,

whether legislature intended 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.â€​

In Zaverbhai Amidas â€"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 Parliament prevails against a law of the State, no

question of repeal arises; but the principle on which the rule of implied repeal rests, namely, that if the subject-matter of the later legislation is identical

with that of the earlier, so that they cannot both stand together, then the earlier is repealed by the later enactment, will be equally applicable to a

question under Article 254(2) whether the further legislation by Parliament is in respect of the same matter as that of the State law. We must

accordingly hold that Section 2 of Bombay Act 36 of 1947 cannot prevail as against Section 7 of the Essential Supplies (Temporary Powers) Act 24 of

1946 as amended by Act 52 of 1950.â€​

Finally, one has to examine the principles relating to repugnancy that have been highlighted in Innoventive Industries Ltd. (supra). Paragraph 51 of

the above judgment deals with the test for repugnancy.

The relevant portions are provided below:

“51. The case law referred to above, therefore, yields the following propositions:

51.1. Repugnancy under Article 254 arises only if both the Parliamentary (or existing law) and the State law are referable to List III in the Seventh

Schedule to the Constitution of India.

51.2. In order to determine whether the Parliamentary (or existing law) is referable to the Concurrent List and whether the State law is also referable

to the Concurrent List, the doctrine of pith and substance must be applied in order to find out as to where in pith and substance the competing statutes

as a whole fall. It is only if both fall, as a whole, within the Concurrent List, that repugnancy can be applied to determine as to whether one particular

statute or part thereof has to give way to the other.

51.3. The question is what is the subject-matter of the statutes in question and not as to which entry in List III the competing statutes are traceable, as

the entries in List III are only fields of legislation; also, the language of Article 254 speaks of repugnancy not merely of a statute as a whole but also

“any provisionâ€​ thereof.

51.4. Since there is a presumption in favour of the validity of statutes generally, the onus of showing that a statute is repugnant to another has to be on

the party attacking its validity. It must not be forgotten that that every effort should be made to reconcile the competing statutes and construe them

both so as to avoid repugnancyâ€"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.

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, it must give way. One test of seeing whether the subject-

matter of the Parliamentary law is encroached upon is to find out whether the Parliamentary statute has adopted a plan or scheme which will be

hindered and/or obstructed by giving effect to the State law. It can then be said that the State law trenches upon the Parliamentary statute. Negatively

put, where Parliamentary legislation does not purport to be exhaustive or unqualified, but itself permits or recognises other laws restricting or qualifying

the general provisions made in it, there can be said to be no repugnancy.

51.8. A conflict may arise when Parliamentary law and State law seek to exercise their powers over the same subject-matter. This need not be in the

form of a direct conflict, where one says “do†and the other says “don'tâ€. Laws under this head are repugnant even if the rule of conduct

prescribed by both laws is identical. The test that has been applied in such cases is based on the principle on which the rule of implied repeal rests,

namely, that if the subject-matter of the State legislation or part thereof is identical with that of the Parliamentary legislation, so that they cannot both

stand together, then the State legislation will be said to be repugnant to the Parliamentary legislation. However, if the State legislation or part thereof

deals not with the matters which formed the subject- matter of Parliamentary legislation but with other and distinct matters though of a cognate and

allied nature, there is no repugnancy.

51.9. Repugnant legislation by the State is void only to the extent of the repugnancy. In other words, only that portion of the State's statute which is

found to be repugnant is to be declared void.

51.10. The only exception to the above is when it is found that a State legislation is repugnant to Parliamentary legislation or an existing law if the case

falls within Article 254(2), and Presidential assent is received for State legislation, in which case State legislation prevails over Parliamentary

legislation or an existing law within that State. Here again, the State law must give way to any subsequent Parliamentary law which adds to, amends,

varies or repeals the law made by the Legislature of the State, by virtue of the operation of Article 254(2) proviso.â€​

Furthermore, one may rely upon Union of India and Anr. â€"v-Venkateshan 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

Municipal Council, Palai v. T.J. Joseph [AIR 1963 SC 1561] the Court discussed the principles with regard to the “implied repeal†and held thus:

(AIR p. 1564, para 10)

“10. It must be remembered that at the basis of the doctrine of implied repeal is the presumption that the legislature which must be deemed to

know the existing law did not intend to create any confusion in the law by retaining conflicting provisions on the statute-book and, therefore, when the

court applies this doctrine it does no more than give effect to the intention of the legislature ascertained by it in the usual way, i.e., by examining the

scope and the object of the two enactments, the earlier and the later.â€​

Similarly, in Municipal Corpn. of Delhi v. Shiv Shanker [(1971) 1 SCC 442 : 1971 SCC (Cri) 195] (SCC relevant at p. 446, para 5) this Court

observedâ€

“The courts, therefore, as a rule, lean against implying a repeal unless the two provisions are so plainly repugnant to each other that they cannot

stand together and it is not possible on any reasonable hypothesis to give effect to both at the same time. The repeal must, if not express, flow from

necessary implication as the only intendment.â€​

As is evident from the decisions of the Supreme Court, implied repeal is not to be readily inferred. It is only in cases that satisfy the test of

repugnancy as detailed in Innoventive Industries Ltd. (supra), that a court would apply the principles of implied repeal. The appellants have argued

before us that Section 68 is a transitional provision that shall continue to operate till all the past circumstances with which it is designed to deal with

have been dealt with irrespective of a new enactment dealing with the same subject matter coming into force. I would respectfully have to disagree

with the above proposition. In my view, the moment a new enactment comes into the statutory books, dealing with the same subject matter and

specifically dealing with the same issue, and the transitional provision becomes inconsistent with the new enactment, the transitional provision has to go

due to repugnancy. The principles of implied repeal would come into play instantly the moment the new legislation is operating in the same field dealing

with the same subject matter. In the present case there can be no room for doubt that the transitional provision and the new enactment 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.

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)(c) is absolutely lucid and unambiguous. Furthermore, it is clear that the

removal of doubts or difficulties in the present case does not contradict the main provision in any manner whatsoever. In fact, the Supreme Court

judgment cited by Mr. Pal in M/s Jalan Trading Co. Private Ltd. (supra) and Madeva Upendra Sinai and Others (supra) do not apply in the present

case as the original provision is crystal clear and there is nothing inconsistent that the legislature has done by framing the removal of doubts or

difficulties order.

In summary, the four main issues are answered as follows:

(a) Whether the ouster of the jurisdiction of the High Court in relation to company matters needs to be express or the same may be ousted by

implication?

The jurisdiction of the High Court in company matters being a special jurisdiction conferred by the 1956 Act, and not being a civil jurisdiction under the

Code of Civil Procedure,1908, the same can always be ousted by the amendment of the enactment that conferred the said jurisdiction. Hence, no

express repealing is required and the same can be repealed by implication.

(b) Whether parties to a lis can insist on continuing their dispute in the forum the same was initiated or have to bow down to the wishes to the

legislature for transfer of the said jurisdiction to another forum?

Change of forum is not a choice of parties, but is the choice of the legislature. The parties cannot contend that they have a vested right to continue in

the forum the lis was initiated. The legislature can always change the forum. Forum is a matter of procedure and change of the same does not result

in change of substantive rights of parties.

(c) Whether the term “all†and “including†in Section 434(1)(c) of the 2013 Act are expansive in nature or the same is to be read in a

restrictive manner?

The term ‘including’ in Section 434(1)(c) of the 2013 Act is extensive and expansive and not restrictive in nature. Accordingly, 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 Court and all such matters would have to be transferred to the NCLT.

(d) Whether Section 68 of the Amendment Act, 1988 continues to subsist regardless of the coming into force of Section 434(1)(c) of the 2013 Act in

relation to matters that were filed in the High Court prior to coming into force of the Amendment Act, 1988?

The moment a new enactment comes into the statutory books, dealing with the same subject matter and specifically dealing with the same issue, and

the transitional provision becomes inconsistent with the new enactment, the transitional provision has to go due to repugnancy. As held in (c) above,

Section 434(1)(c) deals with all proceedings under the 1956 Act. Therefore, there is a clear inconsistency between the said provision and Section 68

of the Amendment Act, 1988. Consequentially, since the transitional provision is inconsistent with the new provision, it is impliedly repealed.

In view of the above findings of this Court, I see no reason to interfere with the unexceptional judgment of the Hon’ble Single Judge and

accordingly uphold the same with the additional reasons given herein.

The appeal is disposed of. No order as to costs.

Urgent photostat certified copy of this judgment, if applied for, be given to the parties, on priority basis.

I agree.

(Jyotirmay Bhattacharya, C.J.) (Shekhar B. Saraf, J.)

Later Immediately after the judgment is delivered, Learned Counsel for the appellants prays for stay of operation of the judgment and order passed

today. Such prayer is opposed by the Learned Counsel appearing on behalf of the respondents. We, however, feel that justice would be subserved if

we stay the operation of the judgment and order passed today for two weeks. We, thus, stay the operation of the judgment and order passed today for

a period of two weeks from date.