TaxTMI 
TaxTMI 
2017 (4) TMI 538
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.... Counsel for the parties to address me on this preliminary issue since I was of the opinion that if I take the view that the High Court no more has jurisdiction to hear the said company petition, it would be a futile exercise and waste of time of all concerned to hear the parties on the merits of the case. (2) Mr. S. B. Mookherjee, Learned Sr. Counsel appearing for the petitioners submitted that the High Court retains jurisdiction to hear the said company petition which is essentially in the nature of a proceeding based on alleged mismanagement of the affairs of a company by the name of India Steam Laundry (P) Ltd. and alleged oppression of the petitioner shareholders by the shareholders in control of the affairs of the company. (3) Mr. Mookherjee referred to Sec. 68 of the Companies (Amendment) Act, 1988 (hereinafter referred to as 'the 1988 Amendment Act'). Sec. 68 (1) of the 1988 Act which is relevant for the present purpose, reads as follows:- "S. 68. Transitional provisions.-(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 of proceed....
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....ers and functions as are or may be, conferred on it by or under the 2013 Act. By a notification of the same date bearing No. S.O. 1933(E), the Central Government made the National Company Law Appellate Tribunal functional from 1 June, 2016. (7) Mr. Mookherjee then referred to notification No. S. O. 3677 (E) dated 7 December, 2016 and notification No. 3676 (E) dated 7 December, 2016, both issued by the Ministry of Corporate Affairs. By issuing notification No. S.O. 3677 (E) dated 7 December, 2016 the Central Government appointed 15 December, 2016 as the date on which Sec. 434 (1)(c) of the 2013 Act came into force. I shall revert back to the other notification dated 7 December, 2016 later in this order. (8) Mr. Mookherjee submitted that at no point of time, the exception of pending proceeding carved out by the 1988 Amendment Act was repealed. Hence, Sec. 68(1) of the 1988 Act continues to be in force and proceedings under the Companies Act pending in the High Court as on the date when the 1988 Act came into force, would continue in the High Court. (9) Mr. Mookherjee then placed before me orders dated 15 February, 2016 and 18 April, 2016 passed by an Hon'ble Division Bench o....
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....ding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed." (11) Mr. Sen submitted that it is settled law that ouster of jurisdiction of a Civil Court shall generally not be implied. It should be an express ouster. He submitted that it is one of the established principles of interpretation of statutory provisions that courts as a rule lean against implied repeal of an earlier statute or a provision thereof by a subsequent statute or a provision thereof unless the provisions are plainly repugnant to each other. In this connection he relied on the Apex Court decision in the case of Union of India-Vs.-Venkateshan S., (2002) 5 SCC 285, and in particular paragraphs 12 and 13 thereof which read as follows:- "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 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 p....
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....t provisions have been repealed and reenacted. 31. The implied repeal of an earlier law can be inferred only where there is enactment of a later law which had the power to override the earlier law and is totally inconsistent with the earlier law and the two laws cannot stand together. If the later law is not capable of taking the place of the earlier law, and for some reason cannot be implemented, the earlier law would continue to operate. To such a case, the rule of implied repeal may result in a vacuum which the law making authority may not have intended. 32. The principle of implied repeal was considered by three Judges Bench of this Court in the case of Om Prakash Shukla v. Akhilesh Kumar Shukla, AIR 1986 SC 1043, this Court held thus:- "......An implied repeal of an earlier law can be inferred only where there is the enactment of a later law which had the power to override the earlier law and is totally inconsistent with the earlier law, that is, where the two laws - the earlier law and the later law - cannot stand together. This is a logical necessity because the two inconsistent laws cannot both be valid without contravening the principle of contra....
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.... to the NCLT. Hence, the present company petition along with all interlocutory applications must also be heard by the NCLT. He submitted that the High Court's power to hear any proceeding under the Companies Act, 1956 ceased with the coming into force of Sec. 434(1)(c) of the 2013 Act. (15) As regards Sec. 68 of the 1988 Amendment Act, Mr. Kar submitted that it is only clarificatory of the 1956 Act. It only clarified that the amendments to the 1956 Act would be prospective in operation, retaining the jurisdiction of the High Court to hear proceedings pending before the High Court as on the date of coming into force of the 1988 Amendment Act. He submitted that a provision like Sec. 434 (1)(c) of the 2013 Act was not there in the 1988 Amendment Act. He referred to the statements of objects of the 2013 Act and submitted that the Parliament has constituted the NCLT as a completely different and independent forum for adjudicating all proceedings under the Companies Act. The 1988 Amendment Act did not contemplate transfer. It only provided for ouster of the High Court's jurisdiction prospectively but the 2013 Act expressly directs transfer of all proceedings under the Companies Act, 1....
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....angements and reconstruction and winding up of a company) pending before the commencement of the Companies (Second Amendment) Act, 2002 before any District Court or High Court under the Companies Act, 1956, to the Tribunal excepting that where the winding up of a company had commenced subject to the supervision of the District Court or a High Court before the commencement of the Companies (Second Amendment) Act, 2002, such winding up was to continue to be under the supervision of that court. However, Secs. 10FA and 647A of the Companies Act, 1956 were never brought into force. (18) To further amend and consolidate the law relating to companies, the Parliament enacted the Companies Act, 2013. Section 1(3) of the 2013 Act provided that Sec. 1 of the Act would come into force at once (presumably on 29 August, 2013 when the Act received the Presidential assent) and the remaining provisions of the Act would come into force on such date as the Central Government may by notification in the Official Gazette appoint and different dates may be appointed for different provisions of the Act. (19) Section 434(1)(c) of the 2013 Act reads as follows:- "S. 434. (1) On such date as m....
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....ding 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'." (22) It is clear that with effect from 1 June, 2016, all applications complaining of oppression and mismanagement of a company have to be made before the NCLT. The question is what happens to a proceeding like the present one being an application complaining of oppression and mismanagement under Secs. 397 and 398 of the 1956 Act which was filed in this Court in the year 1988? Mr. Mookherjee and Mr. Sen, learned Senior Counsel, would both contend that because of Sec. 68 of the Amendment Act, 1988 which was never repealed, the present application has to be heard and disposed o....
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....rt decisions in Union of Indiavs.- 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 Sec. 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 an....