The repeal of a statute does not affect pending proceedings unless there is a saving clause to the contrary.

A.N.Bhandari, J.

1. This reference to the Full Bench raises the question whether the repeal of the Indian Companies Act, 1913 , which conferred jurisdiction on District Courts to deal with certain cases has taken away all right to proceed under the repealed statute, even in actions which were pending but undetermined at the time of repeal,

2. The Indian Companies Act, 1956 declared that the High Court alone shall have jurisdiction in respect of companies with a paid-up share capital of Rs. 1,00,000/- or more. A question at once arose whether the winding-up proceedings in respect of such companies which were pending in the Courts of District Judges under the Act of 1913 should continue to be retained and determined by the District Judges concerned or whether they should be transferred to this Court. As this question is likely to arise in a number of cases, a learned Single Judge has directed that it be placed before a larger Bench for decision.

3. It is a well settled rule of common law that when an action is brought under a statute which is afterwards repealed, the Court loses jurisdiction of the suit pending under the repealed Act and is unable to deliver judgment therein. The effect of repealing a statute is to obliterate it as completely from the records of the Parliament as if it had never been passed; and it must foe considered as a law that never existed, except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an existing law: Kay v. Goadwin, (1830) 6 Bing 576 at p. 582 (A). It follows as a corollary that if a statute is unconditionally repealed without a saving clause in favour of pending suits, all actions must stop where the repeal finds them, and if final relief has not been granted before the repeal goes into effect, it cannot be granted afterwards (Merlo v. Johnston City & B. M. Goal and Min. Co. (1913) 258 Illinois 328 (B). A similar principle applies to a law conferring jurisdiction and it has been held repeatedly that the repeal of a statute giving jurisdiction to a Court deprives it of the right to pronounce judgment in a proceeding previously pending. This principle has been stated with admirable clarity in the case of Hunt v. Jennings, (1839) 33 Am. Dec. 465 (C) where Blackford J. expressed the view that whenever a statute from which a Court derives its jurisdiction in particular cases is repealed, the Court has no right to proceed under the repealed statute even in suita pending at the time of the repeal, unless the right is expressly saved by the repealing Act or by a general Act regulating repeals.

4. To mitigate this harsh rule of the common law, the Legislature considers it expedient from time to time to enact saving clauses which expressly provide that whenever a statute shall be repealed, such repeal shall not affect pending actions founded thereon. There are at least two saving clauses which are applicable to the winding-up proceedings which were pending in the Courts of District judges under the Act of 1913. The first saving clause appears in the body of the repealing statute, for Section 647 of the Act of 1956 is in the following terms :-

"647. Where the winding-up of a company has commenced before the commencement of this Act-- (i) .....

(ii) The other provisions with respect to winding up contained in this Act shall not apply, but the company shall be wound up in the same manner and with the same incidents as if this Act had not been passed."

Now, what was the object of this saving clause and what provisions did Parliament intend to protect from the operation of the repealing power? It is possible to contend, as was contended in the present case, that the section has application only to the "manner" and "incidents" of the winding up and has no reference to the jurisdiction of the Court. It does not declare that the winding up proceedings shall not be taken up by the High Court as contemplated by the Act of 1956 or that they would be taken up onl