Point of Law: “Effect of repeal” can be gathered from Section 6 of General Clauses Act.

JUDGMENT :

The prime question came up for consideration as to whether there is any retrospective operation of a notification issued under Section 6 of the Commercial Courts Act, 2015 enhancing the pecuniary jurisdiction of Commercial Court to rupees ten lakhs from rupees three lakhs and whether the jurisdiction of the Commercial Court would stand ousted in view of the enhancement of specified value by the subsequent notification pertaining to a matter pending consideration. The objection raised was rejected by the Commercial Court under Ext.P5 order, which is under challenge.

2. Extensive arguments were made by the learned Counsel for the petitioner Sri.Harikumar and relied on the latest decision of the Apex Court in Neena Aneja and Another vs. Jaiprakash Associates Ltd. [(2022) 2 SCC 161]. The Apex Court had elaborately considered the issue by referring to various other decisions on the point i.e. New India Assurance Co.Ltd vs. Shanti Misra [(1975) 2 SCC 840] and Om Prakash Agarwal v. Vishan Dayal Rajpoot [(2019) 14 SCC 526].

3. To resolve the issue, it is necessary to have an understanding with respect to the application of what actually amounts to “repeal” and “saving” and the retrospective application to an amendment or repeal of provision. The expressions “repeal” and “saving”, though sometimes used conjointly to indicate the legislative intention behind a new legislation or a special enactment, both are distinct in its application, but sometimes may have an overlapping effect when read conjointly to gather the legislative intention and its effect on a new legislation or a special enactment in reference to the earlier law on the point either under an old enactment or a mischief, if any, sought to be cured by the new enactment/special enactment or by notification. The “effect of repeal” can be gathered from Section 6 of the General Clauses Act, which is extracted below for reference:

“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(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder ; or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 right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding 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.”

4. The effect of repeal would always stand subject to Section 6 of the General Clauses Act, 1897, which says that unless a contrary intention appears from the new enactment, the repeal shall not revive anything which was not in existence or in force at the time of enactment, the effect of operation of any previous enactment and anything done or suffered thereunder. It will not affect any right, privilege or obligation accrued under the earlier enactment, any penalty, forfeiture or punishment, if any incurred or any investigation, legal proceedings in respect of any right, privilege, obligation, liability etc. or any investigation, legal proceedings or remedy may be instituted and continued or enforced as if the repealing Act or Regulation had not been passed. Necessarily, the mandate of Section 6 of the General Clauses Act is to keep all the pending proceedings unaffected which was commenced under the unrepealed provisions, unless a contrary intention is expressed (Ambalal Sarabhai Ente