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TMI Blog2017 (4) TMI 538X X X X Extracts X X X X X X X X Extracts X X X X ..... NCLT. It is an automatic transfer by operation of law. No sanction of the court is required. It is a statutory mandate and has to be followed whether such mandate is wise or not. All that the Court is required to do is to send the records of this Court to the NCLT. In view of the aforesaid, 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, 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. - CA 563 of 2013 With CP 611 of 1988, CC 43 of 2014 - - - Dated:- 22-3-2017 - HON'BLE JUSTICE ARIJIT BANERJEE For the Petitioners : Mr. S. B. Mookherjee, Sr. Adv., Mr. P.C. Sen, Sr. Adv., Mr. Raj Ratan Sen, Adv., Mr. Domigo Gomes, Adv., Mr. Somitra Dutta, Adv., Mrs. Roopa Mitra, Adv. For the respondent. : Mr. Jaydip Kar, Sr. Adv., Mr. Joy Saha, Sr. Adv., Mr. Subhojit Saha, Adv. JUDGMENT Arijit Banerjee, J.:- (1) Company Petition No. 611 of 1998 filed und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o referred to Taxmann s guide to Companies Bill, 2011 in which in the section captioned as notes on clause , with reference to Clause 434 of the Companies Bill 2011, it is stated that the said clause correspondents to Secs. 10FA and 647A of the Companies Act, 1956 and seeks to provide that on formation of the Tribunal, all matters pending before the Company Law Board shall stand transferred to the Tribunal and all proceedings relating to compromise, arrangements and reconstruction and winding up of the companies pending before the District Courts and High Courts shall be transferred to the Tribunal except winding up proceedings pending before the District Courts or High Courts. There is an identical statement with reference to Sec. 434 of the Companies Act 2013 in the Analysis of Companies Act, 2013 published by Corporate Professionals. (5) Mr. Mookherjee then referred to a notification bearing No. S.O. 1934 (E) dated 1 June, 2016 issued by the Ministry of Corporate Affairs in exercise of powers conferred by Sec. 1(3) of the Companies Act, 2013 whereby sub- Sections (1)(a) and (b) of Section 434 of the Companies Act were brought into force with effect from 1 June, 2016. By th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the Single Judge to decide CP 611 of 1988 and connected interlocutory applications as also points raised by the parties in the appeals and cross-objections, it may not be necessary to go into the question of whether or not the High Court retains jurisdiction in the matter. (10) Mr. P.C. Sen, Learned Senior Counsel appearing for one of the respondents supporting the petitioners also submitted that Sec. 68 of the Companies (Amendment) Act, 1988 preserves the jurisdiction of the High Court to hear a matter like the present company petition. He submitted that Sec. 68 of the 1988 Amendment Act was never repealed and is still in force. He referred to Sec. 6 of the General Clauses Act which reads as follows:- S. 6. Effect of repeal._ Where this Act, or any [Central Act] or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not- (a) Revive anything not in force or existing at the time at which the repeal takes effect; or (b) Affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) Affect any rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny 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. 13. Similarly, in Municipal Corporation of Delhi v. Shiv Shanker [(1971) 1 SCC 442], this Court observed The Courts, 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 (12) Mr. Sen also relied on a decision of the Hon ble Apex Court in the case of Lal Shah Baba Dargah Trust-vs.-Magnum Developers, AIR 2016 SC 381, and in particular Mr. Sen relied on paragraphs 30 to 33 of the reported judgment which read as follows:- 30. It is well settled that in case where there is a repealing clause to a particular Act, it is a case of express repeal, but in a case where doctrine of implied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 1947 Rules, it is difficult to hold by the application of the doctrine of implied repeal that the 1950 Rules have ceased to be applicable to the ministerial establishments of the subordinate civil courts. The High Court overlooked this aspect of the case and proceeded to hold that on the mere reintroduction of the new Appendix II into the 1947 Rules, the examinations could be held in accordance with the said Appendix. We do not agree with this view of the High Court. 33. There is a presumption against repeal by implication. The reason for the presumption is that the legislature while enacting a law has complete knowledge of the existing laws on the subject matter and, therefore, when it is not providing a repealing provision, it gives out an intention not to repeal the existing legislation. If by any fair interpretation, both the statutes can stand together, there will be no implied repeal and the court should lean against the implied repeal. Hence, if the two statutes by any fair course of reason are capable of being reconciled, that may not be done and both the statutes be allowed to stand. (13) Mr. Jaydip Kar, Learned Sr. Counsel appearing on behalf of the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d . Thus, from the date the Amendment Act, 1988 came into force, i.e., 31 May, 1991, all applications for relief in cases of oppression and mismanagement were to be made to the CLB. From that date the High Court lost jurisdiction to entertain applications under Secs. 397 and 398 of the Companies Act, 1956. Such loss of jurisdiction was, however, prospective in the sense that the High Court was not required to transfer the pending applications to the CLB. This was made clear by Sec. 68 of the Amendment Act, 1988 which has been extracted above. Sec. 68 of the Amendment Act was captioned as a Transitional provision . Section 68 made it clear that any matter or proceeding pending in a court immediately before the commencement of the Amendment Act, 1988 would be continued in and disposed of by that Court notwithstanding that from the date of commencement of the Amendment Act, CLB had the exclusive jurisdiction in respect of, inter alia, applications under Secs. 397 and 398 of the 1956 Act filed on or after that date. (17) By Act 11 of 2003 the words Company Law Board in Secs. 397 and 398 were substituted by the word Tribunal . However, this amendment, it appears, was never notifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 434 (1)(a) does not concern us as it provides for transfer of proceedings before the CLB to the NCLT. Section 434 (1)(b) also does not concern us as it provides for filing of appeal to the High Court from an order of the CLB made before 1 June, 2016 within six days from the date of communication of the decision to the appellant on any question of law provided that the High Court would have the power to condone delay up to a maximum period of 60 days. By the same notification Secs. 241 and 242 [except Clause (b) of sub-Sec. (1), Clause (c) and (g) of sub-Sec. (2)] were also brought into force with effect from 1 June, 2016. Section 241 of the 2013 Act pertains to reliefs in cases of oppression and mismanagement and provides that in such cases an application has to be made to the NCLT. Section 242 lays down the powers of the NCLT in relation to an application under Sec. 241. By notification No. S.O. 1932 (E) dated 1 June, 2016, the NCLT was made functional and by a notification No. 1933 (E) of the same date the National Company Law Appellate Tribunal was made operational. (21) By notification No. 3676 (E) dated 7 December, 2016, the Central Government made the Companies (Remova ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f coming into operation of that Section in the High Court shall stand transferred to the NCLT. The word all means all. It admits of no exception. The use of the word including in the said sub-Section cannot by any stretch of imagination mean that the words all proceedings under the Companies Act have to be understood as proceedings relating to arbitration, compromise, arrangements and reconstruction and winding up of companies. The word including in that sub-Section is only clarificatory. I have no doubt in my mind that each and all proceedings instituted under the Companies Act, 1956 including the proceedings like the present one, pending in the High Court as on 15 December, 2016 stand transferred to the NCLT. It is an automatic transfer by operation of law. No sanction of the court is required. It is a statutory mandate and has to be followed whether such mandate is wise or not. All that the Court is required to do is to send the records of this Court to the NCLT. (24) Perhaps the only exception that has been carved out is by the Companies (Removal of Difficulties) Fourth Order, 2016 which has been extracted above. The present proceeding is not one where orders have been res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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. (27) The Ld. Registrar, Original Side, shall ensure that no pendency of CP No. 611 of 1988 and applications connected therewith is shown either in the records available with department or in the computer system of this Court after the transmission of records to the Tribunal and the same are to be treated as disposed of in so far as the business of this Court is concerned. (28) Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities. (Arijit Banerjee, J.) Later:- After the judgment is pronounced, Mr. Sen, learned Counsel for the petitioners in the company petition, prays for stay of operation of the judgment and order. Such prayer is opposed by Mr. Bandhopadhyay, learned Counsel appearing on behalf of the respondent nos. 13 and 14 and Mr. Saha, learned Counsel appearing on behalf of the respondent nos. 15, 16 and 17. Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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