Insolvency and Bankruptcy Code, 2016; Section 236(1)- Companies Act, 2013; Section 435 -Under Section 236(1) of the Code, reference is “offences under this Code shall be tried by the Special Court established under Chapter XXVIII of the Companies Act, 2013”- Whether the Special Court under the Code would be as provided under Section 435 of the Companies Act as it existed at the time when the Code came into effect, or it would be as provided under Section 435 of the Companies Act after the 2018 Amendment? – The reference is not general but specific. The reference is only to the fact that the offences under the Code shall be tried by the Special Court established under Chapter XXVIII of the Companies Act -The provision of Section 435 of the Companies Act, 2013 with regard to Special Court would become a part of Section 236(1) of the Code as on the date of its enactment. If that be so, any amendment to Section 435 of the Companies Act, 2013, after the date on which the Code came into effect would not have any effect on the provisions of Section 236(1) of the Code. (Para 41-44)
Legislation -Distinction between ‘legislation by reference’ and ‘legislation by incorporation’- The effect of incorporation means the bodily lifting of the provisions of one enactment and making it part of another so much so that the repeal of the former leaves the latter wholly untouched. However, in the case of a reference or a citation of the provisions of one enactment into another without incorporation, the amendment or repeal of the provisions of the said Act referred to in a subsequent Act will also bear the effect of the amendment or repeal of the said provisions- Collector of Customs, Madras vs Nathella Sampathu Chetty (1962) 3 SCR 786. (Para 26-27) – When the reference is specific and not general, it will have to be held that it is a case of ‘legislation by incorporation’ and not a case of ‘legislation by reference’. (Para 43)