Case: Jotun India Private Limited Vs. Psl Limited

omitted by the Companies (Second Amendment) Act, 2002 and evidently the High Court has overlooked this amendment. As a result in our opinion the High Court has no power to transfer the execution petition to the Debts Recovery Tribunal. At any event as held in Allahabad Bank v. Canara Bank, Section 446 has no application once the RDB Act applies because Section 34 expressly gives overriding effect to the provisions of the RDB Act. Also, the RDB Act is a special law and hence will prevail over the general law in the Companies Act as held in Allahabad Bank v. Canara Bank.(c) In the case of ICICI Bank Ltd. vs. SIDCO Leathers Ltd. And ors. [(2006) 10 SCC 452] , the Apex Court in paras 46 and 47 observed as under:46. The provisions of the Companies Act may be a special statute but if the special statute does not contain any specific provision dealing with the contractual and other statutory rights between different kinds of the secured creditors, the specific provisions contained in the general statute shall prevail.47. In Maru Ram v. Union of India this Court distinguished between a specific provision and a special law holding that a specific provision dealing with a particular situation would override even a special law, which is inconsistent therewith.(d) In the case of Gaziabad Zila Sahakari Bank Ltd. vs. Addl. Labour Commissioner and ors. [(2007) 11 SCC 756] , the Apex Court in para 63 observed as under :63. Also if we refer to the general principles of Statutory Interpretation as discussed by G.P.Singh, in his treatise on Principles of Statutory Interpretation, we can observe that, a prior general Act may be affected by a subsequent particular or special Act if the subject-matter of the particular Act prior to its enforcement was being governed by the general provisions of the earlier Act. In such a case the operation of the particular Act may have the effect of partially repealing the general Act, or curtailing its operation, or adding conditions to its operation for the particular cases. The distinction may be important at times for determining the applicability of those provisions of the General Clauses Act, 1897, (Interpretation Act, 1889 of U.K. now Interpretation Act, 1978) which apply only in case of repeals.(e) In the case of Commercial Tax Officer, Rajasthan vs. Binani Cements Limited and anr. [(2014) 8 SCC 319] , the Apex Court observed in paras 31, 34 and 36 as under :31. ...........Thereby implying that though there exists an overlap between the general and special provision, the general provision would also be sustained and the two would co-exist.34. It is well established that when a general law and a special law dealing with some aspect dealt with by the general law are in question, the rule adopted and applied is one of harmonious construction whereby the general law, to the extent dealt with by the special law, is impliedly repealed. This principle finds its origins in the Latin maxim of generalia specialibus non derogant, i.e., general law yields to special law should they operate in the same field on same subject. (Vepa P. Sarathi, Interpretation of Statutes, 5th Ed., Eastern Book Company; N. S. Bindras Interpretation of Statutes, 8th Ed., The Law Book Company; Craies on Statute Law, S.G.G.Edkar, 7th Ed., Sweet & Maxwell; Justice G.P. Singh, Principles of Statutory Interpretation, 13th Ed., LexisNexis; Craies on Legislation, Daniel Greenberg, 9th Ed., Thomson Sweet & Maxwell, Maxwell on Interpretation of Statutes, 12th Ed., Lexis Nexis)36. The maxim generalia specialibus non derogant is dealt with in Volume 44 (1) of the 4th ed. of Halsburys Laws of England at Para 1300 as follows:The principle descends clearly from decisions of the House of Lords in Seward v. Vera Cruz and the Privy Council in Barker v Edger, and has been affirmed and put into effect on many occasions.... If Parliament has considered all the circumstances of, and made special provision for, a particular case, the presumption is that a subsequent enactment of a purely general character would not have been intended to interfere with that provision; and therefore, if such an enactment, although inconsistent in substance, is capable of reasonable and sensible application without extending to the case in question, it is prima facie to be construed as not so extending. The special provision stands as an exceptional proviso upon the general. If, however, it appears from a consideration of the general enactment in the light of admissible circumstances that Parliaments true intention was to establish thereby a rule of universal application, then the special provision must give way to the general.37. We have also perused the report of the Insolvency Law Committee published by the Ministry of Corporate Affairs, Government of India, which was placed before us.38. In view of the afore-stated reasoning and the case laws cited, we are of the considered opinion that the Company Court while dealing with the winding up petitions (saved petitions) shall have no jurisdiction to stay the proceedings before the NCLT in respect of revival or resolution issue. We may further state that in case the forum under the IBC, 2016 i.e. NCLT fails to revive or successfully implement the resolution plan, then the Company Judge seized with the winding up petitions (saved petitions) would deal with the petition in accordance with law. We are of the view that allowing both the forums i.e. Company Court and the NCLT to go ahead with the liquidation proceedings/winding up proceedings simultaneously would not serve any purpose. There is likelihood of creation of confusion and complexity. To harmonize this likely situation, we observe that the Company Judge, in saved petitions, would exercise jurisdiction in case revival efforts by NCLT fails.39. We find that the learned Single Judge approached the issue in its proper perspective and harmoniously considered various provisions of the relevant enactments keeping in view the object behind the special statutes. We do not find any error or perversity in the view adopted by the learned Single Judge.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]29. A comparative analysis of provisions of SICA clearly indicates that under the provisions of Section 22 of SICA once the proceeding was initiated, the other proceedings pending before the different forums were suspended. In fact, there was an injunction operating in case the jurisdiction under SICA was invoked by a concerned party. The learned counsel for the appellant made efforts to persuade us that the provisions of SICA and IBC, 2016 are notlegislations to make it applicable to the saved petitions under the Companies Act. In our considered view, it would not be appropriate to observe that by enacting IBC, 2016 the legislator intended to create two classes of winding up petitions, one pending before the Company Court (saved petitions) and another transferred to the forum i.e. NCLT which would be governed by the provisions of IBC, 2016. Such a distinction would go contrary to the object and purpose of enacting IBC, 2016 by the Parliament. Due regard must be given to the legislators intent and the Rules and Notifications issued from time to time in this behalf. It would not even be appropriate to accept a proposition that Company Judge would have jurisdiction to stay the proceedings before the NCLT in connection with the revival or resolution proceedings while exercising jurisdiction under the saved petitions. In case the forum under the IBC, 2016 fails to revive the company or to successfully complete the resolution plan, then whether the Company Court and the NCLT would go ahead simultaneously in liquidating the company and complete the winding up proceedings. This situation needs to be harmonized and balanced.There could be a situation where there are two special statutes operating in the field or a special statute and statute generally governing the field, which may be referred to as general law. Even if it is considered that in respect of subject matter there are two special statutes operating, one Companies Act and other IBC, 2016, we need to have a purposive approach and harmonious interpretation to the provisions of law. A harmonious and balanced approach is required to be adopted for the purpose of interpreting the IBC, 2016 and the jurisdictional limitations and areas operating in respect of saved petitions before the Company Court.The purpose of the IBC, 2016 and the NCLT hearing petitions is primarily to revive the company by having a resolution method. Whereas in the winding up petition pending before the Company Court, ultimate approach and object is to wound up the company. Even under the IBC, if efforts to revive the company fails, then the liquidation proceedings get initiated under Chapter III of the IBC, 2016. Taking into consideration the statutory scheme of the IBC, 2016, we are of the view that NCLT constitutes a separate and distinct forum and it cannot be attributed to be a subordinate forum to the Company Court as constituted under the Companies Act.34. Section 63 of the IBC, 2016 injuncts a Civil Court or authority to entertain any suit or proceedings in respect of any matter on which NCLT has jurisdiction under the Code. Section 231 refers to bar of jurisdiction. It states that no Civil Court shall have jurisdiction in respect of any matter in which the Adjudicating Authority is empowered under the Code to pass orders and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any orders passed by such Adjudicating Authority under the Code. These provisions are manifestly clear to indicate that a special statute has conferred jurisdiction on the NCLT. One of the basic purpose of the IBC, 2016 is to make a sincere effort to revive the company. Whereas in the winding up petition pending before the Company Court the initiation and ultimate culmination of the proceeding is to wound up the company.35. The general legal principles of interpretation of statute state that the general law should yield to the special law. In the context of the present statute i.e. IBC 2016, we are of the view that the Companies Act 1956 could be treated as general law and IBC, 2016 to be a special statute to the extent of the provisions relating to revival or resolution of the company as per provision under Chapter II of the IBC. Even if the Companies Act and the IBC 2016 are considered as special statutes operating in their respective field, we are of the view that the IBC 2016 being later enactment and in view of the statement and objects and the purpose for which it was enacted, the provisions relating to revival/resolution of the company incorporated under Chapter II will have to be given primacy over the provisions of the winding up proceeding pending before the Company Courts which are referred as saved petitions.In view of thereasoning and the case laws cited, we are of the considered opinion that the Company Court while dealing with the winding up petitions (saved petitions) shall have no jurisdiction to stay the proceedings before the NCLT in respect of revival or resolution issue. We may further state that in case the forum under the IBC, 2016 i.e. NCLT fails to revive or successfully implement the resolution plan, then the Company Judge seized with the winding up petitions (saved petitions) would deal with the petition in accordance with law. We are of the view that allowing both the forums i.e. Company Court and the NCLT to go ahead with the liquidation proceedings/winding up proceedings simultaneously would not serve any purpose. There is likelihood of creation of confusion and complexity. To harmonize this likely situation, we observe that the Company Judge, in saved petitions, would exercise jurisdiction in case revival efforts by NCLT fails.39. We find that the learned Single Judge approached the issue in its proper perspective and harmoniously considered various provisions of the relevant enactments keeping in view the object behind the special statutes. We do not find any error or perversity in the view adopted by the learned Single Judge.