TaxTMI 
TaxTMI 
2018 (9) TMI 337
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....red to as "the 1956 Act"). By the said order, the Single Judge held that from 15th December, 2016, the High Court had lost jurisdiction to hear and dispose of the above proceedings in the High Court and the same stood transferred to the National Company Law Tribunal (hereinafter referred to as 'NCLT'). Factual Background 2. The facts leading to this application and appeal are as follows: - a. The Companies Act, 1956 came into force on April 1st, 1956. b. The Companies (Amendment) Act, 1988 (hereinafter referred to as "Amendment Act, 1988") 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 proc....
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....t; (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 Author....
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....w 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 ....
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.... the Civil Court is not to be readily inferred but such exclusion must either be explicitly expressed or clearly implied. The same principle was also cited in the case of Magiti Sasamal -v- Pandab Bissoi and Others [Coram: B. P. Sinha, C.J., P. B. Gajendragadkar and Raghubar Dayal, JJ.] reported in AIR 1962 SC 547. Relying upon the judgment of Nahar Industrial Enterprises Limited -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. 5. Mr. Pal then moved on to the Privy Council Judgment in the matter of The Colonial Sugar Refining Company Limited -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. 6. On the second limb of his argument, he relied on the judgment of Jairam Narayan Raje -v- Atmaram Nara....
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....gdish 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 Tribunal". 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 ....
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....urers Association and Another -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 "means" and therefore would be restrictive and not expansive. 14. He finally relied on the Supreme Court judgment in N.D.P. Namboodripad (Dead) By Lrs. -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 of". 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 include" and hence becomes exhaustive in nature. 15. 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....
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....h 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. 17. Mr. Mitra thereafter once again accentuated that the word "including" as appearing in Section 434(1)(c) should be read in the context as "means". He placed reliance on Karnataka Power Transmission Corporation & Anr. -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 -v- State of Gujarat (supra) (paragraph 5); Dilworth & Ors. -v- Commissioner of Stamps [Coram: Lord Watson, Lord Hobhouse, and Lord Davey] reported in 1899 Appeal Cases 99 and Dadaji alias Dina -v- Sukhdeobabu and Others. [Coram: V. D. Tulzapurkar and E. S. Venkataramiah....
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....ce 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. 22. Mr. Kar also went on to argue on the basis of Revanasiddappa and Another -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. 23. Mr. Kar further relied on P. Kasilingam & Ors. -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 ....
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....8) 1 SCC 407 wherein at paragraph 51 of the judgment, the Supreme Court laid down the test for repugnancy and implied repeal. 27. 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 -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. 28. 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 29. 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 adv....
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....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 32. 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 -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 ....
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....nfronted 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. 1. Hoosein Kasam Dada (India) Ltd. v. State of M.P., MANU/SC/0075/1953 : 1953 SCR 987 (hereinafter 'Hoosein Kasam Dada') 2. Garikapati Veeraya v. N. Subbiah Choudhry, MANU/SC/0008/1957 : 1957 SCR 488 (hereinafter 'Garikapati Veeraya') 3. Shiv Shakti Coop. Housing Society v. Swaraj Developers, MANU/SC/0335/2003 ; (2003) 6 SCC 659 (hereinafter 'Shiv Shakti Coop. Housing Society') 18. The case law cited by the Petitioner provide the answer ....
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....t 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." (Emphasis supplied) 22. 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....
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....ver existed except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an existing law." 25. 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." 34. 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. 35. Finally, on the issue of choice of forum, one needs to examine the judgment of the Supreme Court in Union of India -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 ....
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....ature has no power to transfer judicial functions traditionally performed by courts to tribunals. 88. 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." 36. 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 juri....
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....tence becomes paramount. 39. In relation to the meaning to be given to the word "including", 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 ....
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....ry 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. 5. 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 sc....
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....tural 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." 40. 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 "includes", it is to be read as "means" or "includes and means". The Andhra Pradesh High Court held that the expression "includes" was used in an exhaustive manner. The relevant paragraph is delineated below: "14. We have already reproduced above the definition of "forest produce". It is true that the definition uses the word "includes" as opposed to the expression "means" or as opposed to the expression "means and includes". 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 "m....
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....s 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 "include". Webster's Dictionary defines the word "include" as synonymous with "comprise" or "contain". 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 of". 19. 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" suc....
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....al 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 "includes", 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....
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....may vary greatly in color and content according to the circumstances and the time in which it is used." 45. 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 "includes" 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 proceedings". In the event the legislature wanted to only refer to proceedings relating to arbitration, compromise, arrangement and reconstruction....
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....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. 48. One may argue, as noticed in the Custom and Excise Commissioner v. Savoy Hotel [1966], W.L.R. 948, that the words following "including" 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 juices". Applying this logic also, the appellants have no case, as the words used in Section 434 (1)(c), preceding the word "including", are "all proceedings under the Companies Act, 1956". Hence, the axiomatic conc....
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.... inferences as to the intended transitional arrangements as, in the light of the interpretative criteria, it considers Parliament to have intended." 16. 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]) 17. 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 Hig....
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....mary 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." 52. 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. -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, ....
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....ies (Temporary Powers) Act 24 of 1946 as amended by Act 52 of 1950." 55. 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 n....
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....e 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't". 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 Parlia....
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....rlier and the later." 13. 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 observed- "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." 57. 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 c....
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....ds 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 ....