CLD 2021 Judgments

The file is currently being updated. Plz try again later. If the link still does not work, report to pakistanlawsite@oratiertechnologies.com

The file is currently being updated. Plz try again later. If the link still does not work, report to pakistanlawsite@oratiertechnologies.com

The file is currently being updated. Plz try again later. If the link still does not work, report to pakistanlawsite@oratiertechnologies.com

The file is currently being updated. Plz try again later. If the link still does not work, report to pakistanlawsite@oratiertechnologies.com

The file is currently being updated. Plz try again later. If the link still does not work, report to pakistanlawsite@oratiertechnologies.com

The file is currently being updated. Plz try again later. If the link still does not work, report to pakistanlawsite@oratiertechnologies.com

The file is currently being updated. Plz try again later. If the link still does not work, report to pakistanlawsite@oratiertechnologies.com

2021 C L D 1204

[Competition Commission of Pakistan]

Before Ms. Shaista Bano and Ms. Bushra Naz Malik, Members

OLX CLASSIFIEDS PAKISTAN AGAINST PAK WHEELS (PVT.) LIMITED: In the matter of

File No. 294/PakWheels/OFT/CCP/2017, decided on 26th January, 2021.

Competition Act (XIX of 2010)---

----S. 10---Deceptive marketing practices---Scope---Complainant alleged that the respondent resorted to deceptive marketing practices by using its web page, listing, photographs and description which amounted to violation of S. 10 of Competition Act, 2010---Complainant claimed exclusive rights in respect of products and services available on its website as its trademark and in addition to that, the complainant also claimed to have copyrights for all advertisements on its websites---Respondent did not dispute existence of complainant's watermarked photographs posted on its website at some point of time, however, contented that sellers might have posted complainant's watermarked photos on its website; that it was not involved in such illegal practice and that it had a robust system of tracking and taking out any content that could be deceptive, misleading or infringing copyright---Technical Committee constituted by the Commission concluded that the respondent was not prima facie involved in copying and reproducing advertisement/listings originally posted on the complainant's website---Validity---Complainant did not act as a liaison between the buyer and seller, it acted as a mere catalyst for connecting the seller and buyer through a classified portal---Respondent also provided a classified portal of similar nature, however, its scope was limited to selling/purchasing of used cars---Respondent's role was only to facilitate platform services instead of uploading advertisement data on its own---If any objectionable data was seen on the platform there was strong likelihood that the data was uploaded either by the seller or the buyer---Any assumption that the objectionable data was uploaded by service provider (the respondent) itself required strong evidence---Respondent, being a service provider, could at the most ensure application of technical system so that no user would violate intellectual property or competition laws, which respondent had already put in place---Case of deceptive marketing practice within the meaning of S. 10 of Competition Act, 2010 against the respondent was not made out---Show cause notice was disposed of accordingly.

Hasan Irfan Khan, Advocate Supreme Court and Ms. Khadija Yasmin Bukhari for Messrs OLX Classifieds Pakistan (Complainant).

Barrister Ahmed Uzair for Messrs Pak Wheels (Pvt.) Ltd. (Respondent).

2021 C L D 1266

[Competition Commission of Pakistan]

Before Ms. Rahat Kaunain Hassan, Chairperson and Ms. Shaista Bano, Member

SHOW CAUSE NOTICE ISSUED TO MESSRS AL HAFEEZ OIL INDUSTRIES MESSRS MUSLIM CORPORATION ON COMPLAINT FILED BY MESSRS NAWABA OIL INDUSTRIES:

In the matter of File No. 342/NAWABA/COMP/OFT/CCP/2019, decided on 16th August, 2021.

(a) Competition Act (XIX of 2010)---

----S. 10---Deceptive marketing practices---Fraudulent use of another's trademark---Scope---Complainant alleged that the respondent was involved in fraudulent use of his trademark, product labeling and packing/trade dress---Respondent contested the allegations levelled against him---Validity---Trademark in question was registered by the complainant with the Intellectual Property Organization of Pakistan in 2004 and the complainant had been active in the relevant market since 2001---Competition Commission observed that on a cursory look from a consumer, the minimal difference in the name and logo of the complainant and respondent was not noticeable---Detailed and critical consideration might enable a consumer to spot the negligible differences, however, the similarity of the colour scheme, packaging, font and design was likely to allow average consumers to conclude that the products were in fact being produced by the same manufacturer---Artistic work of the logo and packaging/trade dress had significant resemblance with that of the complainant and was clearly copied---Conduct of respondent was held to be in violation of section 10(1) read with S. 10(2)(a) & (d) of the Competition Act, 2010---Respondent was imposed upon a penalty and was directed to cease and desist from using the trademark of complainant.

In the matter of violation of trademarks of DHL, 2013 CLD 1014 rel.

(b) Competition Act (XIX of 2010)---

----S. 10---Deceptive marketing practices---Fraudulent use of another's trademark---Consent order---Scope---Complainant alleged that the respondent (other than the one mentioned in earlier paragraph) was involved in fraudulent use of his trademark, product labeling and packing/trade dress---Competition Commission, during the course of hearing, informed the parties that it was inclined towards a compliance-oriented approach and the purpose of S. 10, Competition Act, 2010, aimed at bringing about correction of behaviour rather than imposing penalties---Competition Complainant and respondent voluntarily showed their willingness to resolve the matter on the basis of mutual consent and desired for a consent order---Commission did not look into the merits of the case and disposed of the matter in terms of the consent agreement.

(c) Competition Act (XIX of 2010)---

----S. 10--- Deceptive marketing practices--- Purpose--- Scope---Competition Commission of Pakistan, in deceptive marketing cases, is inclined towards a compliance-oriented approach and the purpose of S. 10 of Competition Act, 2010 aims at bringing about correction of behaviour rather than imposing penalties.

(d) Competition Act (XIX of 2010)---

----S. 10---Deceptive marketing practices---Scope---In the instances of deceptive marketing, overall general impression of the product's packaging, logo, etcetera, has to be taken into account, as the overall impression contributes considerably to the risk of consumer confusion.

(e) Competition Act (XIX of 2010)---

----S. 10--- Deceptive marketing practices--- Scope--- Marketers traditionally focus on designing advertising campaigns and other promotional strategies to promote a particular brand name---However, with evolving consumer preferences and laws, presentation; trade dress have become just as essential for making products and services distinctive and for building brand recall and loyalty---Cultural diversity of the Pakistan market makes a compelling case for the importance of product identification by way of packaging and visual impression, which had resulted in third parties creating lookalikes of popular products with similar packaging in order to grab consumers' attention and generate demand for their own products in the market.

In the matter of violation of trademarks of DHL, 2013 CLD 1014 rel.

Furqan Masood and Saad Nasrullah for Messrs Nawaba Oil Industries.

Arib Hafeez, Sole Proprietor and Muhammad A. Saqib for Messrs Al-Hafeez Oil Mills.

Ramzan Jani, Sole Proprietor for Messrs Muslim Corporation.

The file is currently being updated. Plz try again later. If the link still does not work, report to pakistanlawsite@oratiertechnologies.com

2021 C L D 1147

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, C.J. and Ali Baig, J

SHARE HOLDERS OF KARAKURAM CO-OPERATIVE BANK (KCBL) and others---Petitioners

Versus

KARAKURAM CO-OPERATIVE BANK through Chief Secretary Gilgit-Baltistan as Ex-Officio Chairman KCBL and others---Respondents

Writ Petition No. 305 of 2019 along with Civil Misc. No. 47 of 2020, W.P. No. 204 of 2020 along with Civil Misc. No. 420 of 2020, decided on 8th October, 2020.

Government of Gilgit-Baltistan Order, 2018---

----Art. 86---Writ petition---Scope---Government of Gilgit-Baltistan (Government) initiated correspondence with the State Bank of Pakistan (State Bank) for conversion of the concerned Co-operative Bank into Microfinance Bank---Request of the Government was considered by the State Bank subject to fulfillment of certain legal requirements viz. acquisition of majority share of Co-operative Bank by the Government---Shareholders of Co-operative Bank placed a question mark on the constitution of fresh Board of Directors (BoDs), which as per their contention was constituted against their consent---Clause 24 of the Byelaws of Co-operative Bank provided the manner of election/nomination of BoDs without any obscurity---General Manager in consultation with the Registrar could nominate members of BoDs---Said clause by no means stated that the BoDs would be selected in the Annual General Meeting having participation of shareholders---Another writ petition was filed by officials of the Co-operative Bank seeking direction to the Chairman of the Co-operative Bank and Secretary Finance to expedite the process towards fulfilment of conditions set by the State Bank in the larger public interest---Clause 2(P) of the Byelaws of Co-operative Bank provided that the shareholders could be an individual or government, or any other co-operative society, etc., which meant that there was no legal impediment if the Government acquired majority shares---Writ petition filed by shareholders was dismissed and that filed by officials of Co-operative Bank was accepted with directions to the Chairman and Secretary Finance to accelerate the process regarding fulfilment of all conditions as required by State Bank of Pakistan.

Sher Madad Khan for Petitioners (in Writ Petition No. 305 of 2019).

Basharat Ali for Petitioners (in C.M. No. 414 of 2020?????????? in W.P. No. 305 of 2019).

Manzoor Hussain for Petitioners (in Writ Petition No. 204 of 2020).

Assistant Advocate-General assisted by Khurshid ul Hassan for Respondents (in both Writ Petitions)

2021 C L D 204

[Islamabad]

Before Miangul Hassan Aurangzeb, J

AFTAB AHMED BARLAS---Petitioner

Versus

DIRECTOR GENERAL OF TRADE ORGANIZATION and others---Respondents

Writ Petitions Nos. 4172 and 4321 of 2019, decided on 19th October, 2020.

(a) Trade Organizations Act (II of 2013)---

----S. 10---Trade Organizations Rules, 2013, R. 11---Membership of trade organization---Scope---Petitioners impugned order passed by Director General of Trade Organizations whereby respondent's name was directed to be included in the final voters' list for the Chamber of Commerce and Industry's Elections-2020---Contention of petitioners was that the membership of respondent had seized due to non-payment of renewal fees and that the respondent had not completed one year's membership with the concerned trade organization---Validity---Prescribed subscription was not paid by the respondent, therefore, by operation of R. 11(4) of the Trade Organizations Rules, 2013, its membership with the concerned trade organization had expired, which was restored later on---Conjoint reading of the proviso to S. 10(7) of the Trade Organizations Act, 2013, read with Rr. 11(4) & (5) of the Trade Organizations Rules, 2013 showed that if a member of a trade organization had not paid the prescribed subscription by the deadline of 31st March of any given year, the membership of such member would be discontinued---Membership of such member could be renewed on payment of the prescribed subscription fee after the 31st of March but such member would be ineligible to vote until the completion of one year of the renewal of its membership and the payment of all dues---Constitutional petitions were allowed and the impugned order was set aside.

Haq Nawaz Khan v. Rab Nawaz and others 1992 SCMR 993; Arbab Ali and others v. Noor Bakhsh and others 2003 CLC 1670; Muhammad Shafique Khan v. Saeed Akhtar Khan and others 2003 MLD 951; Mian Arif Mehmood v. Mst. Tanvir Fatima PLD 2004 Lah. 316 and Major (Retd.) Shabbir Ahmad v. Election Tribunal for Rawalpindi, District Attock 2003 YLR 613 ref.

Utility Store Corporation v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447 rel.

(b) Trade Organizations Act (II of 2013)---

----S. 10---Trade Organizations Rules, 2013, R. 20---Membership of trade organization---Organizational structure of the Federation of Pakistan Chambers of Commerce and Industry---Scope---Requirement of R. 20(2)(b) of Trade Organizations Rules, 2013, cannot be read in isolation and most definitely not independently from the requirement in the proviso to S. 10(7) of Trade Organizations Act, 2013.

Malik Ghulam Sabir for Petitioner.

Ali Nawaz Kharal, Rana Rashid Javed, Naeem Ahmed Awan, Muhammad Nadeem Khan Khakwani, Assistant Attorney-General and Arshad Nawaz, Deputy Director, D.G.T.O. for Respondents.

2021 C L D 518

[Islamabad]

Before Miangul Hassan Aurangzeb, J

PAKISTAN REAL ESTATE INVESTMENT AND MANAGEMENT COMPANY (PVT.) LIMITED---Petitioner

Versus

Messrs SKY BLUE BUILDERS and another---Respondents

C.R. No. 225 of 2019, decided on 10th December, 2020.

(a) Contract Act (IX of 1872)---

----Ss. 126 & 128---Civil Procedure Code (V of 1908), O. XXXIX Rr. 1 & 2---Commercial contracts---Contract of performance guarantee, in the form of a Bank guarantee---Grant of injunction / restraining order under O. XXXIX, Rr. 1 & 2, C.P.C. against encashment of an unconditional Bank guarantee---Independence and autonomy of the contract of guarantee---Scope---Petitioner impugned order of Trial Court whereby respondent's application under O. XXXIX, Rr. 1 & 2, C.P.C., seeking to restrain petitioner from encashing Bank guarantee was allowed, until such time Arbitration Tribunal determined whether or not respondent committed default of contract---Contention of petitioner, inter alia, was that such guarantee was made in a commercial contract, and was to be encashed as soon as petitioner made declaration that respondent committed default of contract---Validity---For purposes of making a demand for encashment of guarantee, it was explicitly provided that petitioner shall be "sole and final judge" for deciding whether the respondent had fully performed obligations under the contract or defaulted on same---Court could not rewrite contract of guarantee by making encashment of same contingent upon finding of Arbitration Tribunal and none of the terms of contract of guarantee were absurd, inconsistent or vague---Trial Court therefore made an error by issuing temporary injunction against encashment of guarantee---Impugned order was set aside---Revision was allowed, accordingly.

Shipyard K. Damen International v. Karachi Shipyard and Engineering Works Ltd. PLD 2003 SC 191; Braganza v. BP Shipping Limited 2015 SCMR 742; System Company v. MTU Middle East FZE PLD 2019 Sindh 382; Green Group of Hotels v. Municipal Corporation, Peshawar 2017 MLD 257; Pakistan Industrial Credit and Investment Corporation Ltd. v. Khairpur Sugar Mills Ltd. 2012 CLD 1192; Montage Design Build v. The Republic of Tajikistan PLD 2015 Isl. 13; Standard Construction Company (Pvt.) Limited v. Pakistan through Secretary M/o Communications 2010 SCMR 524; Husein Industries Ltd. v. Sui Southern Gas Company Ltd. PLD 2020 Sindh 551; Atlas Cable (Pvt.) Limited v. Islamabad Electric Supply Company Limited 2016 CLC 1677; Global Energy and Commodity Exchange Group Italy SPA (GECX GROUP) v. Trading Corporation of Pakistan 2013 CLD 681; Mahatma Gandhi Sahakara Sakkare Karkhane v. National Heavy Engg. Coop. Ltd. AIR 2007 SC 2176; Hindustan Steelworks Construction Ltd. v. Tarapore and Co. AIR 1996 SC 2268 and Hindustan Steel Workers Construction Ltd. v. G.S. Atwal & Co. (Engineers) (Pvt.) Ltd. AIR 1996 SC 131 rel.

(b) Specific Relief Act (I of 1877)---

----Ss. 56(f), 21 & 53---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2----Preventive injunctions ---Temporary and preputial injunctions, grant of---Contracts not specifically enforceable---Injunction could not be granted to prevent the breach of a contract the performance of which would not be specifically enforced---Scope---Contract which could not be enforced by a decree for specific performance, could not be negatively enforced by issuance of a temporary injunction.

Lahore Stock Exchange Ltd. v. Hassan Associates 2010 MLD 800; District Council, Gujrat v. Iftikhar Ahmad 1998 MLD 1461; Qasimabad Enterprises v. Province of Sindh 1998 CLC 441; Universal Trading Corporation (Pvt.) Ltd. v. Beechem Group PLC 1994 CLC 726; Hussain Naseer v. Shamim Yaqoob 1989 CLC 2125 and PIA Corporation v. Hazir (Pvt.) Ltd. PLD 1993 Kar. 190 rel.

(c) Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2---Temporary injunction / interim relief, grant of---Essential ingredients---Adjudication of applications for temporary injunction under O.XXXIX, Rr. 1 & 2, C.P.C.---"Irreparable loss" meaning and scope of---Monetary loss could not be termed to be "irreparable loss".

Dewan Petroleum (Pvt.) Ltd. v. Oil and Gas Investment Limited 2019 CLC 1486 rel.

Barrister Ummar Zaiuddin for Petitioner.

Barrister Bilal Akbar Tarar for Respondent No. 1.

Sadaqat Ali Jehangir for Respondent No. 2.

2021 C L D 663

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Chaudhari KHADIM HUSSAIN and another---Petitioners

Versus

SECURITIES AND EXCHANGE COMMISSION OF PAKISTAN and another---Respondents

W.P. No. 4414 of 2019, decided on 29th January, 2021.

Companies Ordinance (XLVII of 1984)---

----S. 439-Companies Act (XIX of 2017), S. 425---Removal of a company from Register of Companies on ground of its failure to submit statutory returns as required under Companies Ordinance, 1984---Power of Registrar to strike defunct company off register---Restoration of company---Scope---Petitioner shareholders of a company impugned order passed under S. 425(9) of Companies Act, 2017 whereby their application for restoration/reactivation of said company was rejected---Contention off respondent Securities and Exchange Commission of Pakistan (SECP), inter alia, was that said company had been rightly struck of under S. 439 of Companies Ordinance, 1984, and its restoration was denied due to change in shareholding of said company---Validity---Section 439(8) of Companies Ordinance, 1984 provided that provisions of S. 439 of said Ordinance would not apply where a company owned assets, and in present case, petitioners had provided documents showing said company owned land---Registrar, in impugned order, appeared to have been satisfied as to factum of said company owning land---In such circumstances, Registrar should have first determined whether said company, which admittedly owned an asset, could have been declared defunct/struck off, under S. 439 of Companies Ordinance, 1984---Under S. 439(9) of Companies Ordinance, 1984 it was not obligatory upon SECP to restore a company merely because Registrar had moved SECP for such restoration, but SECP had to satisfy itself that such restoration would be "just and proper", and therefore lapse on part of petitioners' company in filing statutory returns would become a relevant consideration for SECP---High Court set aside impugned order and remanded matter to Registrar of Companies to decide application for restoration of company after bearing in mind import of S. 439(8) of Companies Ordinance, 1984---Constitutional petition was allowed, accordingly.

Combined Ginners (Pvt.) Limited v. Registrar, Securities and Exchange Commission of Pakistan, Lahore 2007 CLD 1234 rel.

Syed Hamid Ali Shah, Zeeshan Ali Syed and Arooj Zaib Abbasi for Petitioners.

Barrister Minaal Tariq for SECP/Respondents.

2021 C L D 690

[Islamabad]

Before Fiaz Ahmad Anjum Jandran, J

SAIF UR REHMAN KHAN---Petitioner

Versus

BANKING COURT, ISLAMABAD and another---Respondents

Writ Petition No. 3826 of 2020, decided on 19th January, 2021.

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 19, 15 & 10---Constitution of Pakistan, Art. 199---Civil Procedure Code (V of 1908), O. XXI, R. 66---Constitutional jurisdiction of High Court---Procedure of Banking Court---Execution of decree of Banking Court --- Sale of mortgaged property---Adequate remedy of appeal under S. 22 of Financial Institutions (Recovery of Finances) Ordinance, 2001---Scope---Petitioner impugned order of Banking Court whereby his objections to notice of sale of mortgaged property, in execution proceedings of Banking Court, were rejected---Validity-Sections 15(11) & 19(7) of Financial Institutions (Recovery of Finances) Ordinance, 2001 pertained to disposal of disputes by Banking Court relating to sale of mortgaged property, and therefore orders passed under same were final orders which were appealable under S. 22 of said Ordinance---High Court observed that in presence of remedy of appeal, Constitutional petition was not maintainable, and same was disposed of with observation that petitioner may avail remedy of appeal under S. 22 of Financial Institutions (Recovery of Finances) Ordinance, 2001.

Nabeel Rehman and Azeem ul Quder Mirza for Petitioner.

2021 C L D 778

[Islamabad]

Before Miangul Hassan Aurangzeb, J

GULZAR FIROZ---Petitioner

Versus

DIRECTOR GENERAL OF TRADE ORGANIZATIONS and others---Respondents

Writ Petition No. 3881 of 2020, decided on 22nd December, 2020.

Trade Organizations Act (II of 2013)---

----Ss. 14 & 13---Trade Organizations Rules, 2013, Rr. 20, 18, 19 & 11---Powers and functions of the Regulator---Election procedure of a trade organization---Eligibility to contest and vote, determination of---Representation to Election Commission of Trade Organization by aggrieved person---Scope---Petitioner impugned order of Election Commission of respondent trade organization, whereby his objections against nomination of respondent were rejected ---Contention of petitioner, inter alia, was that such nomination was defective for reason that he was not eligible to be a "corporate class" member in terms of Trade Organizations Rules, 2013 as respondent's company, of which he was CEO, was an "associate class" member---Validity---Rule 20(2)(d) of Trade Organizations Rules, 2013 mandated that in case of association, at least one representative so nominated shall be from corporate class and said provision did not put embargo on an association from nominating more than one representative from corporate class---Nomination of respondent did not therefore suffer from any legal infirmity---Right of appeal / representation under Rr. 18(6) & 18(7) Trade Organizations Rules, 2013 could not be given to rank of an outsider but only to a person whose rights were adversely effected, and in the present case, petitioner filed objections in his personal capacity and not via his firm which was a member of the trade organization, therefore same should not have been entertained by Election Commission of respondent Trade Organization---Constitutional petition was dismissed, in circumstances.

Malik Ghulam Sabir for Petitioner.

Ali Nawaz Kharal for Respondent No. 4.

Muhammad Nadeem Khan Khakwani, learned Assistant Attorney-General and Moin Ahmad, Deputy Director, D.G.T.O. for Respondents.

2021 C L D 892

[Islamabad]

Before Ghulam Azam Qambrani, J

MUHAMMAD MULTAZIM RAZA KHAN---Appellant

Versus

MUHAMMAD AYUB KHAN and 2 others---Respondents

F.A.O. No. 57 of 2020, decided on 26th February, 2021.

Intellectual Property Organization of Pakistan Act (XXII of 2012)---

----Ss. 18, 17 & 16---Trade Marks Ordinance (XIX of 2001) Ss. 24, 40, 46, 69 & 117---Jurisdiction of Intellectual Property Tribunal---Infringement of intellectual property laws---Co-ownership of trademark---Infringement of trade mark and action for infringement---Assigning a trademark---Question before High Court was whether a dispute qua infringement of trademark between co-owners of such trademark, who were partners of a partnership firm, could be made before Intellectual Property Tribunal in terms of jurisdiction conferred on same under S. 18 of Intellectual Property Organization of Pakistan Act, 2012---Held, that record revealed that suit was filed upon signing of a franchise agreement between the co-owner and another person regarding the trademark, and stage of use of trademark had not been reached---No physical infringement existed as such, which fell within meaning of S. 40 read with S. 46 of Trade Marks Ordinance 2001---No express provision existed in Trade Marks Ordinance, 2001 which prohibited a co-owner of a trademark to enter into agreement qua the subject trademark with anyone else and nothing existed in said law, which empowered a co-owner of a trademark to file suit against the other co-owner subject to infringement---Any violation of S. 24(5) read with S. 69 of Trade Marks Ordinance, 2001 fell within jurisdiction of District Court and not the Intellectual Property Tribunal---Suit was therefore not maintainable before Intellectual Property Tribunal---Appeal was dismissed, in circumstances.

Misbah ul Mustafa for Appellant.

Sheraz Butt for Respondents Nos. 1 and 3.

Najm-us-Salehean for Respondent No. 2.

2021 C L D 986

[Islamabad]

Before Lubna Saleem Pervez, J

ALI RAZA---Appellant

Versus

MCB BANK LIMITED and another---Respondents

F.A.O. No. 116 of 2020, heard on 25th May, 2021.

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 9, 16 & 22---Civil Procedure Code (V of 1908), O. VII, R. 11---Procedure of Banking Court---Rejection of plaint---Lease of vehicle by customer from Bank---Default in payment---Repossession of vehicle by Bank---Suit for declaration and permanent injunction filed by customer, seeking to restore possession of vehicle and schedule of payment, after vehicle had been repossessed by defendant Bank, was rejected by Banking Court under O. VII, R. 11, C.P.C.---Validity---Suit of plaintiff seeking revival of schedule of payment and mandatory injunction for restoring possession of vehicle was outside the scope of Financial Institutions (Recovery of Finances) Ordinance, 2001---Section 16(3) of the Ordinance only entitled the plaintiff/customer to seek compensation in case a vehicle had been wrongly and unjustifiably possessed by Bank---Banking Court had therefore rightly rejected plaint as plaintiff's suit was not maintainable in its present form in terms of S.9 of the Ordinance--- Appeal was dismissed, in circumstances.

Shaukat Ali v. State Bank of Pakistan 2007 CLD 1352 ref.

Ch. Saeed Tahir v. The Bank Al-Falah Ltd. F.A.O. No. 76/2015 dated 28.01.2020 and Umer Farooq v. Bank Al-Falah R.F.A. No. 25/2016, dated 15.01.2018 rel.

Muhammad Arif for Appellant.

Ms. Javeria Rehman for Respondents.

2021 C L D 1304

[Islamabad]

Before Babar Sattar, J

CRESCENT STAR INSURANCE LIMITED through Official Representative---Petitioner

Versus

SECURITIES AND EXCHANGE COMMISSION OF PAKISTAN and another---Respondents

Writ Petition No. 2 of 2021, decided on 3rd August, 2021.

(a) Insurance Ordinance (XXXIX of 2000)---

----Ss. 11, 62(1)(2) & 63---Commission, powers of---Direction to submit plan---New contract of insurance, bar to---Pre-conditions---Where Commission takes cognizance of contravention of conditions prescribed under S. 11 of Insurance Ordinance, 2000, or apprehends such contravention, as a first step, it requires the insurer to put together a plan or rectify or to prevent an actual or apprehended contravention within a certain period of time and submit an implementation report to that effect---In the event the contravention is such that can jeopardize interests of policy makers, the direction issued under S. 62 of Insurance Ordinance, 2000, should also state that in case that insurer fails to put together a plan and implement it within required period, consequences would be exercised by the Commission of its powers under Ss. 63(1) & (2)(d) of Insurance Ordinance, 2000---Such direction then would constitute a directive referred to in S. 62(3)(d) of Insurance Ordinance, 2000---Upon failure of insurer to comply with such directive, the Commission has authority and discretion under S. 63(1) of Insurance Ordinance, 2000, to take extreme step of barring insurer from entering into new contracts of insurance.

Crescent Star Insurance Limited v. Securities and Exchange Commission of Pakistan and another 2020 CLD 1250 rel.

(b) Insurance Ordinance (XXXIX of 2000)---

----Ss. 11, 62(1)(2) & 63---Notice of hearing---Investigation and directions---Petitioner/insurance company was aggrieved of notice of hearing issued by Commission---Validity---Commission did not issue any directive to petitioner/insurance company to prepare plan to comply with conditions mentioned in S. 11 of Insurance Ordinance, 2000, together with time line to implement the same, failing which the petitioner/insurance company would have attracted penalty under S. 63(1) of Insurance Ordinance, 2000---In the event such direction had already been in place and petitioner/insurance company acted in breach thereof, the Commission could then issue a hearing notice for purposes of S. 63(2)(d) of Insurance Ordinance, 2000, to petitioner/insurance company to show cause as to a direction to cease entering into new contracts should not be issued---Statutory pre-requisites of S. 63(2)(d) of Insurance Ordinance, 2000, were not complied with therefore, notice in question suffered from a jurisdictional defect and was liable to be set aside---High Court set aside notice of hearing issued by the Commission as there was breach of preconditions and pre-requisites prescribed under S. 63 of Insurance Ordinance, 2000 and issuance of such notice was tantamount to colourable exercise of jurisdiction by the Commission---Constitutional petition was allowed in circumstances.

Crescent Star Insurance Company Limited v. Securities and Exchange Commission of Pakistan 2011 CLD 173; Messrs Mubarak Textile Mills Limited v. Director (Enforcement) 2014 CLD 263; Messrs Pakistan Oilfields Limited v. Federation of Pakistan through Ministry of Finance 2020 PTD 110; Chairman, Federal Land Commission v. Mst. Sanam Iqbal and others PLD 2021 Lah. 42; Dr. Sher Afghan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813; Crescent Star Insurance Limited v. Securities and Exchange Commission of Pakistan and another 2020 CLD 1250; Golden Graphics (Pvt.) Ltd. v. Director of Vigilance, Central Excise, Customs and Sales Tax and others 1993 SCMR 1635; Rehmat Khan v. D.G. intelligence and Investigation PLD 2000 Kar; 181; Saeed Ahmed and others v. Chairman, O.G.D.C.L 2020 PLC 27; Khalid Mahmood Ch. and others v. Government of Punjab through Sectary Livestock and Dairy Development 2002 SCMR 805; Sardar Muhammad and another v. Akram and another 2002 SCMR 807; Depilex Smileagain Foundation v. Securities and Exchange Commission of Pakistan 2019 CLD 861; Attock Refinery Ltd. v. Executive Director, Enforcement and Monitory Division, SECP 2010 CLD 774; Diamond Industries Limited v. Appellate Bench of the Securities and Exchange Commission of Pakistan 2002 CLD 1714 and Mian Miraj Din and others v. Brother Steel Mills and others 1996 CLC 516 ref.

PLD 1984 Kar. 462; PLD 1996 SC 246; 1999 SCMR 1881; PLD 2003 Kar. 83; 2003 MLD 279; 2009 SCMR 1279; 2015 PTD 2052; 2020 PTD 808 and P.K.P Exploration Limited v. Federal Board of Revenue through its Chairman and others Writ Petition No. 886 of 2015 rel.

Adam Hassan Malik for Petitioner.

Ibrar Saeed and Husnain Arshad Khokhar, Special Public Prosecutors, SECP for Respondents.

2021 C L D 1

[Sindh]

Before Ahmed Ali M. Shaikh, C.J. and Omar Sial, J

ALI ASLAM MALIK and others---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman and others---Respondents

Constitutional Petitions Nos. D-7437 of 2015 and D-1401 of 2019, decided on 12th June, 2020.

Securities and Exchange Commission of Pakistan Act (XLII of 1997)---

----Ss. 2(pa), 27 & 41-B [as inserted by Securities and Exchange Commission of Pakistan (Amendment) Act (XXXVI of 2016)]---National Accountability Ordinance (XVIII of 1999), S. 18 (g)---Constitution of Pakistan, Art. 199--- Constitutional petition--- Quashing of proceedings--- Regulated activity--- Liability, determination of---Pendency of civil suit---Petitioners were Stock Exchange Brokers and were alleged to have caused loss to State exchequer by selling shares in question at very low price---Petitioners sought quashing of proceedings before National Accountability Bureau (NAB) on the plea that it was a regulated activity and forum to inquire into such matters was Securities and Exchange Commission of Pakistan---Validity---Dispute between parties was one pertaining to rate that shares in question were sold by petitioners---Suit was already pending in High Court for determination of amount at which the shares were to be sold--- Liability of petitioners, if any towards shareholders was disputed between the parties---Many factors and market conditions existed that were to be taken into account before liability of petitioners could be affixed---Such was an ongoing process and was to reach finality when pending suit for determination of liability was decided---Securities and Exchange Commission of Pakistan was best placed to determine in the first instance, whether an offence or fraud had taken place---Securities and Exchange Commission of Pakistan was granted substantial powers under S. 27 of Securities and Exchange Commission of Pakistan Act, 1997, to investigate whether any regulated person was engaged in committing fraud, misfeasance or other misconduct in carrying out a regulated activity, which was the complaint against petitioners---Securities and Exchange Commission of Pakistan for the purpose of investigation could seek assistance of any other investigating agency or bureau under S. 29(4) of Securities and Exchange Commission of Pakistan Act, 1997---Securities and Exchange Commission of Pakistan had extensive powers to investigate the matter and if needed could file a reference with NAB---As no reference was made by Securities and Exchange Commission of Pakistan, proceedings against petitioners were void ab initio and were quashed---Petition was allowed, in circumstances.

Syed Mushahid Shah and others v. Federal Investigating Agency and others 2017 SCMR 1218 ref.

State v. Imam Baksh 2018 SCMR 2039 rel.

Mian Ali Ashfaq and Shazib Masud for Petitioners.

Sattar Muhammad Awan, Special Prosecutor NAB along with Karim Bakhsh, I.O. for Respondents.

Syed Imran Ali Shamsi, Law Officer for SECP.

2021 C L D 48

[Sindh]

Before Muhammad Shafi Siddiqui, J

MUHAMMAD SHAH KAKAR through Attorney---Appellant

Versus

INTELLECTUAL PROPERTY TRIBUNAL AT SINDH AND BALOCHISTAN through Presiding Officer and 4 others---Respondents

Miscellaneous Appeal No. 24 of 2020, decided on 3rd June, 2020.

(a) Trade Marks Ordinance (XIX of 2001)---

----S. 40---Intellectual Property Organization of Pakistan Act (XXII of 2012), S. 13---Customs Act (IV of 1969), Ss. 15 & 16---Infringement of trade mark---Intellectual Property Organization---Scope---Director Intellectual Property Organization is empowered under Ss. 15 & 16 of Customs Act, 1969, to initiate action in respect of goods being exported with reference to allegations of counterfeit / Infringement.

(b) Intellectual Property Organization of Pakistan Act (XXII of 2012)---

----Ss. 13, 15 & 19---Trade Marks Ordinance (XIX of 2001), Ss. 5(2) & 40---Customs Act (IV of 1969), Ss. 3CC, 3 E, 15 & 16---Notification SRO No. 768(I)/2014, dated 12-8-2014---Appeal---Infringement of intellectual property---Goods for export---Intellectual Property Organization---Customs officials---Jurisdiction---Goods of appellant were seized by Customs officials during the process of clearance for export from Pakistan on the allegation of infringement of trade mark---Intellectual Property Tribunal declined to pass any interim order in favour of appellant for infringing trade mark---Validity---In terms of amendment to Ss. 3CC & 3E of Customs Act 1969, carried out under SRO No. 768(I)/2014, dated 12-8-2014, the Customs officials were empowered to take action and they had lawfully exercised their jurisdiction---Intellectual Property Tribunal did not seize the suit where action of officials of Intellectual Property Organization was under challenge and all that was required from the Tribunal was to see whether infringement was practiced by respondent or otherwise and judgment/order would consequently have an effect upon Intellectual Property Organization---Once it was established that appellant was registered proprietor of a trade mark, prima facie balance of inconvenience and irreparable loss leaned in favour of the appellant---Word 'use' was also applicable to goods 'for export only'---Provisions of Ss. 5(2) & 40 of Trade Marks Ordinance, 2001, were to be interpreted accordingly as "use" within territory of Pakistan---High Court set aside order passed by Intellectual Property Tribunal and application for interim injunction before the Tribunal was allowed---Appeal was allowed accordingly.

Fazl-e-Rabbi v. Federation of Pakistan 2020 PTD 281; Beautimatic International Ltd. v. Mitchell International Pharmaceuticals Ltd. Fleet Street Reports [2000]; Section 56 of Trade Marks Act, 1999 (India) and 228 of Australian Trade Mark Law; British Sugar PLC v. James Robertson & Sons Ltd. (1996) R.P.C. 281; Philips Electronics NV v. Remington Consumer Products Ltd. (1999) R.P.C, at page 809; Aktiebolaget Volvo v. Heritage (Leicester) Limited (2000) FSR 253; Origins Natural Resources Inc. v. Origin Clothing Limited [1995] FSR 280 at 284; Pioneer Cement Limited v. Fecto Cement Limited 2012 CLD 201 and Burberry Ltd v. Megastar Shipping Pte Ltd. in Civil Appeals Nos.237 and 238 of 2017 rel.

Mrs. Amna Salman Ahmed along with Saifullah Sachwani and Haroon Khan for Appellant.

Muhammad Khalil Dogar for Respondent No. 3.

M. Nadeem Qureshi along with Khalid Hidayatullah for Respondent No. 4.

Ishrat Zahid Alvi, Assistant Attorney General for Respondent No.5/Federation of Pakistan.

2021 C L D 113

[Sindh]

Before Muhammad Ali Mazhar and Agha Faisal, JJ

Mian EJAZ AHMED and another---Appellants

Versus

MEEZAN BANK LIMITED---Respondent

First Appeal No. 48 of 2018, decided on 13th February, 2019.

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 19 & 22---Civil Procedure Code (V of 1908), O. XXI, R. 1---Interlocutory order---Appeal---Maintainability---Scope---Execution of consent decree---Judgment and decree was result of a compromise application jointly filed by parties and agreed terms were accurately reflected in resulting judgment and decree---Judgment debtor violated terms and conditions of decree and decree holder filed execution proceedings---Validity---Executing Court could not travel beyond the decree itself and there was no infirmity in the order passed by Executing Court which could merit interference---Consideration of appeal against any interlocutory order of Banking Court which had not disposed of entire case was precluded by S. 22(6) of Financial Institutions (Recovery of Finances) Ordinance, 2001---High Court declined to interfere in order passed by Banking Court which was in due consonance with the law---Appeal was dismissed in circumstances.

Abdul Shakoor for Appellants.

Nabeel Kolachi for Respondent.

2021 C L D 134

[Sindh]

Before Muhammad Junaid Ghaffar, J

MUHAMMAD YOUSUF AHMED and 5 others---Petitioners

Versus

ARTISTIC DENIM MILLS LIMITED---Respondent

J.C.M. No. 33 of 2019, decided on 16th April, 2020.

(a) Companies Act (XIX of 2017)---

----Ss. 136, 131, 132 & 133---Meetings and proceedings of company---Statutory meeting of company--- Annual General Meeting----Extraordinary General Meeting---Power of the court to declare the proceedings of a general meeting invalid---Scope---Section 136 of Companies Act, 2017 provided two sets of remedies, first of which related to "material defect or omission" in notice of a meeting---In the present case, petitioner under S. 136 of Companies Act, 2017 ought to approach court as soon as such notice was issued and before such meeting took place, however there existed no bar to impugning such notice subsequent to the meeting being held---Principles.

Pfizer Laboratories Ltd. and another's 2003 CLD 1209; M. Shahid Saigol and 16 others v. Messrs Kohinoor Mills Ltd. and 7 others PLD 1995 Lah. 264; Central Cotton Mills Limited and 2 others v. Naveed Textile Mills Limited and another 1996 MLD 1943; Naveed Textile Mills Ltd. Karachi and 3 others v. Central Cotton Mills Limited, S.I.T.E Kotri, District Dadu and 2 others PLD 1997 Kar. 432; Messrs Kingsway Capital LLP and another v. Murree Brewery Co. Ltd. and 10 others 2017 CLD 587; Parshuram Dattaram Shamdasani and others v. Tata Industrial Bank, Ltd. and others 1925 Bombay 49; National Investment Trust Ltd. and another v. Crescent Textile Mills Ltd. 2010 CLD 1675; Parshuram Detaram Shamdasani and another v. Tata Industrial Bank, Ltd. and others AIR 1928 Privy Council 180 and Dewan Salman Fibre Limited v. Dewan Petroleum (Pvt.) Limited 2016 CLD 1049 ref.

(b) Companies Act (XIX of 2017)---

----Ss. 2(66), 134, 135 & 136---Special Resolution of a company---For passing of a "special resolution", requirement of 75% votes in favour was not to be computed from entire shareholding of a company; but from amongst shareholders present in a particular meeting. [p. 148] B

Kazmia Trust (Regd.) v. Kaz International (Pvt.) Limited 2009 CLD 1713 rel.

(c) Company---

----Corporate governance---Principles---Adjudication by courts on matters of shareholder disputes/corporate governance---Judicial oversight on conduct of company's affairs---Scope---For a court dealing with company matters, if the thing complained before it of was a thing which in substance majority of the company was entitled to do, or if something had been done irregularly which majority of the company was entitled to do regularly, or if something had been done illegally which the majority of the company was entitled to do legally, then there existed no use for litigation about such matter as ultimate end of such matters was only that a meeting had to be called, and then ultimately majority got its wishes---Individual shareholder could not bring an action before courts to complain of an irregularity (as distinct from an illegality) in conduct of the company's internal affairs provided that such irregularity was one which could be cured by a vote of company in a general meeting---Court was to be reluctant to give relief where to do so would provided no concrete result.

Macdougall v Gardiner [1875] 1 Ch.D. 13; Foss v Harbottle (1843) 67 ER 189 and Bentley-Stevens v. Jones [1974] 1 W.L.R. 638 rel.

Kazim Hassan and Shahan Karimi for Petitioners.

Arshad Tayebaly, Waqar Ahmed and Heer Memon for Respondent.

2021 C L D 194

[Sindh]

Before Adnan Iqbal Chaudhry, J

NATIONAL BANK OF PAKISTAN---Plaintiff

Versus

PAKISTAN TEXTILE CITY LIMITED through Chief Executive Officer and

Company Secretary and 3 others---Defendants

Suit No. B-15 of 2017, decided on 22nd April, 2020.

(a) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 10, 9 & 7---Procedure of Banking Court---Suit for recovery---Application for leave to defend, adjudication of---Statutory duty existed on Banking Court to consider application for leave to defend regardless of whether counsel/representative on behalf of defendant was present or not---Order of Banking Court disposing of an application for leave to defend, was to be made with application of mind towards the application for leave to defend and contents thereof.

Ali Khan and Company v. Allied Bank of Pakistan Ltd. PLD 1995 SC 362 and United Bank Ltd. v. Mehmood Ilyas Khan 2012 CLD 1372 rel.

(b) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 9, 10 & 7---Procedure of Banking Court---Suit for recovery---Interpretation of S. 9 of the Financial Institutions (Recovery of Finances) Ordinance of 2001---Statement of Account, filing of---Scope---Omission on part of Bank/Financial Institution in filing statement of account of markup with plaint was non-compliance of S. 9(2) of Financial Institutions (Recovery of Finances) Ordinance, 2001, the effect of which was to be examined by Banking Court independent of defence set up by defendant.

Elbow Room v. MCB Bank Ltd. 2014 CLD 985; Soneri Bank Ltd. v. Classic Denim Mills (Pvt.) Ltd. 2011 CLD 408 and Pakistan Kuwait Investment Company (Pvt.) Ltd. v. Active Apparels International 2012 CLD 1036 rel.

Muhammad Khalid Shaikh and S. Amir Ali for Plaintiff.

Nemo for Defendants Nos. 1, 2 and 4.

Abid Hussain for Defendant No. 3.

2021 C L D 362

[Sindh]

Before Adnan Iqbal Chaudhry, J

JAZAA FOODS (PVT.) LIMITED through Authorized Representative and another---Plaintiffs

Versus

JUNAID JAMSHED (PVT.) LIMITED through Chief Executive Officer and 2 others---Defendants

Suits Nos. 94 and 124 of 2020, decided on 7th April, 2020.

(a) Trade Marks Ordinance (XIX of 2001)---

----Ss. 21 & 42(3)---Registration of trademark subject to disclaimer---Temporary injunction, grant of---Scope---Trademarks of a garment-company and a food-company containing the same name of a celebrity---While registering its trade mark "Junaid J. Jamshed", the garments-company had made a disclaimer under S. 21 of the Trade Marks Ordinance, 2001 that it would not be entitled to the exclusive use of the (celebrity) name "Junaid Jamshed"---Words disclaimed were the name of a celebrity, "Junaid Jamshed", and thus arose the likelihood of its use elsewhere by or on the authority of the said celebrity---Effect of the disclaimer in the trade mark registration of garments-company was that unless the name "Junaid Jamshed" was used by another in substantially the same fashion and get-up as used by the garments-company it could not claim to be aggrieved---Comparison of the trademark of the food-company with the trade mark of the garments-company showed that there was no similarity in the fashion and get-up of the name "Junaid Jamshed" as used in the said two marks, therefore, in view of S. 42(3) of the Trade Marks Ordinance, 2001, the said use by food-company of the name "Junaid Jamshed" would not constitute trade mark infringement---Garments-company did not have a prima facie case for the grant of a temporary injunction to restrain the use of the mark/name in question by the food-company; the balance of convenience was not in its favour, nor would it suffer any irreparable loss if injunction was refused as apparently no action had been taken by it against the use of the mark in question by the food-company since about four years---Conversely, the food-company met the test of the said three ingredients for the grant of a temporary injunction---Food-company had relied upon photographs to show that during his lifetime, the celebrity himself used his name (mark in question) to promote the food-company; that the mark in question was being used by the food-company for about four years without objection; and that the celebrity had given a written authorization to the food-company to use his name---High Court directed that pending the suit the garments-company was restrained from interfering in the use of the mark/name "by Jamshed Junaid" used by the food-company in conjunction with their own registered trademark.

(b) Trade Marks Ordinance (XIX of 2001)---

----S. 21---Registration of trademark subject to disclaimer---Temporary injunction, grant of---Scope---Principle that registration of a trade mark gives rise to a prima facie case, balance of convenience and likelihood of irreparable loss---Said principle would be applicable where the trade mark was registered without a disclaimer, restriction or limitation---However, where a disclaimer, restriction or limitation to the exclusive use of any word/feature/description of a trade mark was imposed pursuant to S. 21 of the Trade Marks Ordinance, 2001, then such disclaimer, restriction or limitation would have to be considered while determining an application for temporary injunction.

Muhammad Ashraf v. Muhammad Akram 2016 MLD 389 ref.

(c) Tort---

----Passing off--- Scope--- "Passing off" and "trademark infringement"---Distinction---Action for passing-off was essentially to protect 'property in goods' based on the reputation of those goods, as distinct from an action to protect a trade mark which was a property in itself.

Tabaq Restaurant v. Tabaq Restaurant 1987 SCMR 1090 ref.

Arshad M. Tayebaly and Omer Memon for Plaintiffs (in Suit No. 94 of 2020).

Mirza Mehmood Baig for Defendants (in Suit No. 94 of 2020).

Mirza Mehmood Baig for Plaintiffs (in Suit No. 124 of 2020).

Arshad M. Tayebaly and Omer Memon for Defendants (in Suit No. 124 of 2020).

2021 C L D 406

[Sindh (Larkana Bench)]

Before Muhammad Junaid Ghaffar and Syed Irshad Ali Shah, JJ

Dr. BHAGWAN DASS and another---Appellants

Versus

HABIB BANK LIMITED---Respondent

Civil Appeal No. D-01 of 2013, decided on 16th September, 2020.

(a) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 2(c) & 9(1)---Banking suit---Locus standi---Decretal amount, assailing of---Filing of fresh suit---Plaintiff settled decretal amount with Bank on behalf of judgment debtor---Subsequently the plaintiff filed a fresh suit for recovery of excess amount received by Bank under the decree passed by Banking Court in earlier suit---Banking Court dismissed the suit filed by plaintiff---Validity---Person who was not a customer of Bank within the meaning of S. 2(c) of Financial Institutions (Recovery of Finances) Ordinance, 2001, such persons had no locus standi to file and maintain its suit---Quantification of amount of default once settled by way of a judgment and decree having attained finality could not be altered in the manner as had been agitated---High Court declined to interfere in the judgment and decree passed by Banking Court and imposed fine upon plaintiff---Appeal was dismissed in circumstances.

Crescent Leasing Corporation Limited v. Sahad Goods Transport Company 2013 CLD 854; Sheikh Saleem v. Ataullah Khan 2014 SCMR 1694; Pakistan General Insurance Company Limited v. Muslim Commercial Bank Limited 2015 CLD 600 and S. M. Yousuf and Bros. v. Mirza Muhammad Mehdi Pooya PLD 1965 SC 15 ref.

Pakistan International Airlines Corporation v. Khalid Brothers PLD 1992 Kar. 78; Haji Dad Muhammad v. Muslim Commercial Bank Limited 2011 CLD 785; Invest Capital Investment Bank Limited v. Messrs House Building Finance Corporation 2015 CLD 1828; Pakistan General Insurance Company Limited v. Muslim Commercial Bank Limited 2015 CLD 600; Intakhab Hussain Shah v. National Bank of Pakistan 2019 CLD 1021; Moiz Abbas v. Mrs. Latifa 2019 SCMR 74; Province of Balochistan v. Murree Brewery Company Limited PLD 2007 SC 386; Sadruddin Shaikh v. Sajjadullah Qureshi PLD 2006 SC 341; Muhammad Rafiq v. Ataullah 1985 SCMR 1226 and S.M. Sohail v. Mst. Sitara Kabir-ud-Din PLD 2009 SC 397 rel.

(b) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 2(a), (d) & 9(1)---Banking suit---Pre-conditions---Even if a person is a customer, he has to fulfill other conditions such as availing of finance from financial institution.

Procter and Gamble Pakistan (Pvt.) Ltd., Karachi v Bank Al-Falah Limited, Karachi 2007 CLD 1532 rel.

Appellant No. 1 in person.

Muneer Ahmad Khokhar for Appellant No. 2.

Ahmed Hussain Khoso for Respondent.

2021 C L D 455

[Sindh]

Before Muhammad Ali Mazhar and Yousuf Ali Sayeed, JJ

Messrs MOIN AND SONS ELECTRONICS through Authorized Attorney---Appellant

Versus

Messrs SME BANK LIMITED and 3 others---Respondents

Ist Appeal No. 1 of 2019, decided on 7th December, 2020.

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 19 & 22---Civil Procedure Code (V of 1908), O. XXI, Rr. 66 & 90---Suit for recovery----Execution of decree of Banking Court---Auction of mortgaged property---Setting aside of auction proceedings---Scope---Objection application filed by judgment-debtor against auction of mortgaged property was dismissed---Contention of judgment-debtor, inter alia, was that no notice under O. XXI, R. 66, C.P.C. was served upon him, and that valuation report of subject-property was incorrect---Validity---Record revealed that judgment-debtor was aware of proceedings before Executing Court as he had himself submitted a statement before the same seeking time to deposit decretal amount---Alleged incorrect entries on valuation report could be at best regarded as an irregularity rather than illegality---Judgment-debtor had acted with mala fide intent for ulterior motive of frustrating proceedings before Executing Court and for thwarting satisfaction of judgment and decree, and therefore his application under O. XXI, R. 66, C.P.C. was rightly dismissed by Executing Court---Appeal was dismissed, in circumstances.

Muhammad Attique v. Jami Limited and others PLD 2010 SC 993; Javed Iqbal v. National Bank of Pakistan through Manager and others 2017 CLD 833; Asif Ali Khan and another v. Standard Chartered Bank Limited and another 2015 CLD 1813; Messrs NIB Bank Limited v. Messrs Apollo Textile Mills Limited and 2 others 2013 CLD 1398; Khursheed Begum and others v. Inam-ur-Rahman Khan and others PLD 2009 Lah. 552; Messrs Ripple Jewellers (Pvt.) Limited through Chief Executive and another v. First Woman Bank through Officers/General Attorneys/Principal Officers and 6 others 2003 CLD 1318; Muhammad Hassan v. Messrs Muslim Commercial Bank Limited through Branch Manager and 3 others 2003 CLD 1693; Mst. Zainab Bibi v. Allied Bank of Pakistan Limited and others 2003 YLR 3274; Mrs. Shahida Saleem and another v. Habib Credit and Exchange Bank Limited and 4 others 2001 CLC 126; Brig. (Retd.) Mazhar-ul-Haq and another v. Messrs Muslim Commercial Bank Limited, Islamabad and another PLD 1993 Lah. 706; Muhammad Khalil v. Messrs Faisal M. B. Corporation and others 2019 SCMR 321; National Bank of Pakistan and 117 others v. SAF Textile Mills Limited and another PLD 2014 SC 283; Captain-PQ Chemical, Industries (Pvt.) Limited v. Messrs A.W. Brothers and others 2004 SCMR 1956 and Samba Bank Limited through Authorized Officer/Attorney v. Messrs Paramount Enterprises and another 2013 CLD 801 distinguished.

Messrs Capital Poultry Feed and Daal Mills through Managing Partner and 5 others v. Atlas Bank Limited through Managing Partner and 3 others 2015 CLD 1149; Nazli Hilal Rizvi v. Bank Alfalah Limited and others 2019 CLD 808 and Messrs Lavin Traders, Karachi v. Presiding Officer, Banking Court No.2, Karachi and others 2013 CLD 1581 rel.

Abdul Qayyum Abbasi for Appellant.

Haris Rashid for Respondent No. 1.

Muhammad Saleem Thepdawala for Respondent No. 4.

2021 C L D 507

[Sindh]

Before Zafar Ahmed Rajput, J

MAHNAZ MIRZA MALIK through Attorney---Plaintiff

Versus

BILAL EMBROIDERY through Owner/Partner and 2 others---Defendants

Suit No. 795 of 2020, decided on 14th December, 2020.

Trade Marks Ordinance (XIX of 2001)---

----Ss. 39, 40 & 46----Civil Procedure Code (V of 1908) O. XXXIX Rr. 1 & 2--- Rights conferred by registration of trademark---Infringement of registered trademark---Ascertaining infringement of trademark by considering phonetic similarity/pronunciation---Domain names likely to cause confusion/deception and infringement of trademarks--- E-commerce--- Scope--- Application for temporary injunction in respect of registered trademark---Plaintiff sought to restrain defendant from using trademark which plaintiff alleged was similar in spelling and pronunciation to plaintiff's registered trademark, and further sought to restrain defendant from using domain name with similar spelling/pronunciation of plaintiff's registered trademark---Validity---Once trademark was registered under Trade Marks Ordinance, 2001, it restricted other parties from using such trademark and registration certificate for trademark was prima facie evidence in all legal proceedings relating to the trademark infringement---In the present case, both trademarks had phonetic similarly and pronunciation of the mark was a determining criterion in ascertaining infringement---Defendant's mark had affinity of sounds with plaintiff's registered trademark in spite of there being no visual resemblance between the two in terms of size and font---Ocular comparison was not always decisive test in determining infringement and resemblance between two marks may also be considered with reference to ear well as eyes, and thus such phonetic similarity constituted an important in index in evaluating that defendant's mark prima facie bore deceptive and misleading similarity to plaintiff's mark---Using of marks similar or identical to others to conduct e-commerce for goods or services was likely to cause confusion among relevant public, and was one of "acts causing harm to other's exclusive right to use a trademark"---Plaintiff therefore had a good prima facie case, and due to similarity between two marks, defendant's intention to infringe was obvious, and therefore balance of convenience also fell to plaintiff---High Court restrained defendant from using trademark of plaintiff---Application under O. XXXIX, R. 1, C.P.C. was allowed, accordingly.

Messrs. Alpha Sewing Machine Company v. Registrar of Trade Marks and another PLD 1990 SC 1074; M. Sikandar Sultan v. Masih Ahmed Shaikh 2003 CLD 26; Bayer A.G. and another v. Macter International Ltd. 2003 CLD 794; Daimier Benz Aktiegesellschaft v. Hybo Hindustan AIR 1994 Delhi 230 and J.N. Nichols (Vimto) PLC A Company Incorporated in the United Kingdom v. Mehran Bottles (Private) Limited Karachi PLD 2000 Kar. 192 ref.

General Biscuit and another v. English Biscuit Manufacturers (Private) Limited through Chief Executive/Director/Manager 2004 CLD 680; English Biscuits Manufactures (Pvt.) Ltd. v. Pakistan Dairy Products (Pvt.) Limited 2016 CLD 847; Dalda Foods (Private) Limited v. Messrs Shield Corporation Limited 2016 CLD 1864; Seven Up Company v. Kohinoor Thread Ball Factory and 3 others PLD 1990 SC 313 and Younus through duly constituted General Attorney Rafique H. Usman and 2 others v. Najmun-Nisa and 21 others 1999 MLD 2805 distinguished.

Seven-up Company v. Kohinoor Thread Ball Factory and 3 others PLD 1990 SC 313; Messrs. Dewan Sugar Mills (Pvt.) Ltd. v. M. B. Abbasi and others 2007 CLD 1613 and Naseem Ahmed v. Messrs Samiuddin Ramzan Khan and 2 others 2004 CLD 315 rel.

Omar Memon for Plaintiff.

Maaz Waheed for Defendants Nos. 1 to 3.

2021 C L D 557

[Sindh]

Before Saadat Khan and Yousuf Ali Sayeed, JJ

Messrs BRECAST INDUSTRIES (PVT.) LIMITED through Director/Chief Executive Officers---Appellant

Versus

HOUSE BUILDING FINANCE CORPORATION through Managing Director---Respondent

Special High Court Appeal No. 77 of 2013, decided on 18th November, 2020.

(a) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----S. 22---Appeal under S. 22 of Financial Institutions (Recovery of Finances) Ordinance, 2001---Scope---Interpretation of, and object behind bar of appeal against interlocutory order of a Banking Court under S. 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001---Scope---Section 22(6) of Financial Institutions (Recovery of Finances) Ordinance, 2001 abridged and took away right of appeal in respect to species of orders specified therein including interlocutory orders---Legislature intended to bar appeals against such interlocutory orders so as to facilitate expeditious trial of cases before Banking Court for their conclusion in short timeframe---Appeals from orders which were of interlocutory nature and did not determine the lis and did not fall within exceptional category of orders susceptible to appeal, were therefore not maintainable under Financial Institutions (Recovery of Finances) Ordinance, 2001.

PLD 2000 SC 716 ref.

Karachi Pipe Mills Limited v. Habib Bank Limited and another 2003 CLD 1487; Nazir Ahmed Vaid and others v. Habib Bank AG Zurich 2005 CLD 1571; Mehr Ashiq Hussain v. Citibank N.A through Chief Manager and another 2006 CLD 167; Messrs Sajid Brothers & Co. v. Manager, Allied Bank Limited and 8 others 2012 CLD 1858; Nadeem Athar and another v. Messrs Dubai Islamic Bank (Pakistan) Ltd 2013 CLD 805; Bank of Punjab through Authorized Attorney v. Messrs AMZ Ventures Limited and another 2013 CLD 2033; Bank Alfalah Limited v. Interglobe Commerce Pakistan (Pvt.) Ltd. and 5 others 2017 CLD 1428; Shehryar Waqas Malik and another v. Muhammad Zafar Ali Khan and another 2018 CLD 1040; Messrs Textileres (Pvt.) Ltd through Authorized Representative and others v. Meezan Bank Limited and others 2019 CLD 853 and Haji Abdul Razzak (Deceased) through legal heirs v. Faysal Bank Limited 2020 CLD 238 rel.

(b) Appeal---

----Right of appeal was creation of a statute and such right could not be claimed as an inherent right where Legislature did not provide for same. [p. 565] C

State Life Insurance Corporation of Pakistan through Chairman and others v. Mst. Sardar Begum and others 2017 CLD 1080 rel.

Khawaja Shams-ul-Islam for Appellant.

Basil Nabi Malik for Respondent No.1.

2021 C L D 578

[Sindh]

Before Muhammad Ali Mazhar and Yousuf Ali Sayeed, JJ

Mrs. FARNAZ AHMED through Special Attorney---Appellant

Versus

FAYSAL BANK LIMITED and others---Respondents

Ist Appeal No. 25 of 2014, decided on 7th December, 2020.

(a) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----S. 22---Appeal to High Court under S. 22, Financial Institutions (Recovery of Finances) Ordinance---Limitation for filing of such appeal---Computation of period of limitation after decree of Banking Court---Scope---Intervening period between estimation of costs for obtaining certified copy of decree and depositing of such costs, would be counted for purpose of computing period of limitation for filing of appeal under S. 22 of Financial Institutions (Recovery of Finances) Ordinance, 2001.

Pak Leather Crafts Limited and others v. Al-Baraka Bank Limited 2019 CLD 659 rel.

(b) Maxim---

----"Allegans contraria non est audiendus"--- Meaning and applicability---Taking divergent stances and raising contradictory pleas offended principle of maxim "allegans contraria non est audiendus" and undermined foundations of defence sought to be raised by a litigant.

Muhammad Haseeb Jamali for Appellant.

Waqar Ahmed for Respondent No. 1.

Muhammad Saleem Thepdawala for Respondent No. 4.

2021 C L D 629

[Sindh]

Before Muhammad Junaid Ghaffar and Agha Faisal, JJ

PAKISTAN MOBILE COMMUNICATION LIMITED (MOBILINK) and others---Petitioners

Versus

PROVINCE OF SINDH through Chief Secretary and others---Respondents

C.Ps. Nos. D-190, D-191, D-192, D-193 and D-194 of 2011, decided on 22nd December, 2020.

(a) Stamp Act (II of 1899)---

----Ss. 29, 2(12) & 3--- Constitution of Pakistan, Art. 199---Constitutional petition---Stamp duty---Instruments chargeable with stamp duty---Duties by whom payable---Contracts / Agreements between cellular companies and their customers---Scope---Petitioners, who were cellular companies, impugned demand of stamp duty imposed on Agreement Forms between petitioners and their customers---Validity---Section 29 of Stamp Act, 1899 stated that in absence of agreement to contrary, expense of providing proper stamp duty should be borne by executant of instrument, however, agreement forms in present case, explicitly stated that taxes, duties and levies which formed a constituent of charges, were payable by customers---Prima facie, in present case, there existed agreement between parties to befall burden of taxes, duties and levies upon customer---Section 29 of Stamp Act, 1899 therefore conferred primacy upon an agreement delineating the person whereupon burden of stamp duty shall lie, and obligation for executant to be responsible for stamp duty was a residual obligation provided there was no agreement to contrary---High Court held that stamp duty therefore could not be recovered from petitioner Companies---Constitutional petitions were allowed, accordingly.

Sindh Revenue Board v. Civil Aviation 2017 SCMR 1344; Muhammad Hussain v. Emperor AIR 1940 Lahore 315; Board of Revenue v. Appalanarasimhulu AIR 1957 Andhra Pardesh 237; P. Appa Rao v. Additional District Magistrate and others AIR 1975 Ori 209; Kunwarpal Sharma v. State of UP AIR 2003 All 7; Ashfaq Ahmed v. Additional Commissioner 2014 SCC Online All 5374; Bharat Sanchar Nigam Ltd v. State of UP 2015 SCC Online All 7020; Chintamani Realty v. State of Maharashtra 2019 SCC Online 8187; Murad v. Manzoor Hussain 1991 CLC 512; Re: Zeenat Textile Mills Limited 1995 CLC 813; Lahore Cables and Engineering Pvt. Ltd v. Government of Punjab PLD 2000 Lah. 433; Muhammad Asif v. Farkhanda Anwar 2003 CLC 394; District Officer (Revenue) Lahore v. Raja Muhammad Yousaf 2016 SCMR 203; Province of Punjab v. Muhammad Zafar Bukhari PLD 1997 SC 351; Gulsnan Ara v. State 2010 SCMR 1162; Star Textile v. Sindh 2002 SCMR 356; Collector of Sales Tax v. Mega Tech (Pvt.) Ltd. 2005 SCMR 1166; Pakistan Television Corporation Ltd v. Commissioner Inland Revenue 2019 SCMR 235; Pakistan Petroleum Ltd v. Commissioner of Income Tax 2009 PTD 662; Don Basco High School v. Assistant Director EOBI PLD 1989 SC 128; Suleman Habiv v. Habib Bank Limited 2003 CLD 1797; Muhammad Mubeen-us-Salam v. Pakistan PLD 2006 SC 602; Punjab Cooperative Board of Liquidation v. Muhammad Ilyas PLD 2014 SC 471; Shirazi Trading Co. (Pvt.) Limited v. Province of Sindh and others C.P. D 2725 of 2009 and Shahid Gul and Partners v. DCIT Peshawar (Civil Appeals 2444-9 of 2016) rel.

(b) Interpretation of statutes---

----Construction of fiscal statutes---Scope---Interpretation of fiscal statutes had to be made strictly, and any doubts arising from such interpretation of a fiscal provision must be resolved in favour of taxpayer.

Pakistan Television v. CIR 2019 SCMR 282; Citibank NA v. Commissioner Inland Revenue 2014 PTD 284 and Oxford University Press v. Commissioner of Income Tax and others 2019 SCMR 235 rel.

Barrister Makhdoom Ali Khan and Khawaja Aizaz Ahsan for Petitioners.

Saifullah, Assistant Advocate-General and Ghulam Abbas Naich, Chief Inspector of Stamps, Board of Revenue, Sindh for Respondents.

2021 C L D 671

[Sindh]

Before Irfan Saadat Khan and Yousuf Ali Sayeed, JJ

Messrs HUSSAINI TEXTILE INDUSTRIES and others---Appellants

Versus

UNITED BANK LIMITED and another---Respondents

Ist Appeal No. 83 of 2019, decided on 11th November, 2020.

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----S. 19---Civil Procedure Code (V of 1908) O. XXI, Rr. 89 & 90---Suit for recovery---Execution of decree of Banking Court---Auction of mortgaged property---Setting aside of auction proceedings---Order XXI, Rr. 89 & 90, C.P.C.---Nature and scope---Order XXI R. 90, C.P.C. allowed setting aside of auction of mortgaged property on ground of fraud or material irregularity, however O. XXI. R. 89, C.P.C. provided judgment-debtor a means for avoiding sale after it had been validly carried out, affording such-judgment debtor a final chance to set aside sale of mortgaged property on payment of decretal amount and compensation to auction-purchaser---Both remedies were mutually exclusive, and after charting course in terms of O. XXI, R. 89, C.P.C., a judgment debtor could not then allege that there was any fraud or irregularity marring the exercise of auction of property---Upon confirmation of sale, a vested right accrued in favour of auction-purchaser, which could not been disturbed.

Khaleeq Ahmed for Appellants.

Adil Khan Abbasi for Respondent No. 1.

Badar Alam for Respondent No. 2.

2021 C L D 692

[Sindh]

Before Irfan Saadat Khan and Yousuf Ali Sayeed, JJ

DUBAI ISLAMIC BANK PAKISTAN LIMITED---Appellant

Versus

MOHAMMAD IBRAHIM and another---Respondents

Ist Appeal No. 69 of 2014, decided on 27th November, 2020.

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 9, 7 & 22---Procedure of Banking Court---Suit for recovery---Computation of decretal amount----Adjudication by Banking Court---Scope---Petitioner Bank impugned order of Banking Court on ground that liability of defendant computed by Banking Court in decree was not in accordance with statement of account furnished by plaintiff and was significantly less than amount of finance payable by defendant to plaintiff Bank---Validity---Perusal of impugned order revealed that treatment of amount adjusted by Banking Court was done in a mechanical fashion without any reasoning for not considering entire claim of plaintiff---High Court set aside impugned order and remanded matter to Banking Court with direction to recalculate decretal amount in accordance with law and after providing parties opportunity of hearing and to make a well-reasoned order---Appeal was allowed, accordingly.

Suleman Hudda for Appellant.

Nemo for Respondents.

2021 C L D 737

[Sindh]

Before Muhammad Ali Mazhar and Yousuf Ali Sayeed, JJ

Qazi NASEER UDDIN---Petitioner

Versus

SHAHAB UDDIN and another---Respondents

Constitutional Petition No. D-3800 of 2020, decided on 17th August, 2020.

Negotiable Instruments Act (XXVI of 1881)---

----S. 118--- Civil Procedure Code (V of 1908), O. XXXVIII, Rr. 3 & 2---Suit for recovery---Summary Procedure on Negotiable Instruments---Application for leave to defend, grant of---Petitioner/defendant impugned order of Trial Court whereby application for leave to defend was allowed subject to furnishing bank guarantee---Validity---Discretion to grant leave to defend, with or without furnishing of security by defendant, vested with Trial Court, and it was axiomatic that such discretion had to be exercised fairly---Impugned order did not suffer from any apparent illegality or irregularity, which brought to doubt such exercise of discretion by Trial Court---Constitutional petition was dismissed, in circumstances.

Khalid Javed and Company v. Javed Oil Industries 1988 CLC 53 and Col. (Retd.) Ashfaq Ahmed and others v. Sh. Muhammad Wasim 1999 SCMR 2832 rel.

Yasin Shahid Bhatti for Petitioner.

Nemo for Respondents.

2021 C L D 756

[Sindh]

Before Muhammad Ali Mazhar and Yousuf Ali Sayeed, JJ

MUHAMMAD HANIF GOHAR---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Commerce and others---Respondents

Constitutional Petition No. D-314 of 2020, decided on 7th December, 2020.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Alternate remedy---Scope---Jurisdiction under Art. 199 of the Constitution is not to be normally exercised where an alternate remedy is provided in law unless such remedy is illusory/inefficacious or the case is one where one otherwise amenable to issuance of a writ has acted in clear absence of authority/jurisdiction or indulged in an excessive exercise.

Collector of Customs, Customs House, Lahore v. Messrs S. M. Ahmad and Company (Pvt.) Limited Islamabad 1999 SCMR 138; Town Committee, Gakhar Mandi v. Authority Under The Payment of Wages Act Gujranwala and 57 others PLD 2002 SC 452 and Gatron (Industries) Limited v. Government of Pakistan and others 1999 SCMR 1072 rel.

(b) Trade Organizations Act (II of 2013)---

----Ss. 20 & 21---Trade Organizations Rules, 2013, Rr. 2(a)(b), 15(1) & 20(1)---Membership, restriction on--- Casting of two votes---Petitioner contested election of Federation of Pakistan Chambers of Commerce and Industry (FPCCI) for the post of Senior Vice President representing different constituent associations of the Chamber---Grievance of petitioner was casting of two votes by respondent who was nominee of two different associations---Validity---If intention of Legislature was to restrict membership of an individual to a single trade organization, in absence of general permission to the contrary from Federal Government the provision was to be specifically worded to unequivocally reflect such intention, which could have been done by wording the same to state "No person shall be a member of more than one trade organization unless Federal Government by notification in official gazette so allows"---Provision of S. 20 of Trade Organizations Act, 2013, did not admit to such a restrictive interpretation---No violation of Articles of Association of FPCCI had arisen as the same only restricted representative of each member body to one vote---Such restriction was adhered to by two associations, both sharing a common nominee / representative---High Court directed Federal Government to take timely steps in the matter so as to firstly examine and determine efficacy of a limit being imposed for purposes of S. 20 of Trade Organizations Act, 2013, and if such step would be considered an appropriate measure for addressing the issue, to then devise and implement requisite change to regulatory framework to the relevant extent--- Constitutional petition was dismissed accordingly.

Messrs Recorder Television Network (Pvt.) Ltd. through Chief Executive Officer v. Federation of Pakistan through Secretary, Ministry of Information and Broadcasting, Islamabad and another 2013 MLD 99; The Tariq Transport Company, Lahore v. (1) The Sargodha-Bhera Bus Service, Sargodha, (2) the Regional Transport Authority, Lahore, and (3) the Provincial Transport Authority, Lahore PLD 1958 SC (Pak.) 437; Messrs A.G. Pesticides (Pvt.) Ltd. and another v. Federation of Pakistan and others PLD 2004 Kar. 620; Messrs Union Cosmic Communications (Pvt.), Limited, Karachi through Authorized Director and 5 others v. Central Board of Revenue through Member Income Tax, Islamabad and another 2006 PTD 1678 distinguished.

Khalid Javed for Petitioner.

Kafeel Ahmed Abbasi, DAG, along with Shahid Ali, Assistant Director, DGTO for Respondents Nos. 1 and 2.

Qazi Umair Ali for Respondent No. 3.

Yasin Azad for Respondents Nos. 4, 4(i), 4(ii) and 4(iii).

Abdul Sattar Pirada for Respondent No. 5.

Nemo Respondent No. 6.

Yasin Azad for Respondent No. 7.

2021 C L D 783

[Sindh]

Before Irfan Saadat Khan and Yousuf Ali Sayeed, JJ

MASHOOQ ALI RAJPAR---Appellant

Versus

Raja ABDUL HAMEED and another---Respondents

Ist Civil Appeal No. 22 of 2018, decided on 4th November, 2020.

Negotiable Instruments Act (XXVI of 1881)---

----S. 118---Civil Procedure Code (V of 1908), O. XXXVII, R. 2---Limitation Act (IX of 1908), Art. 159---Presumption as to negotiable instrument---Summary suits upon bill of exchange---Limitation---Extension in time by court---Scope---Appellant assailed judgment passed by Trial Court whereby respondents' suit filed under O.XXXVII, C.P.C. on the basis of cheque was decreed---Case set up by the respondents was that one of them had advanced certain sum of amount to the appellant for business purposes, upon a dispute having subsequently arisen and time being sought by appellant for repayment of the balance amount, a cheque was issued in favour of the other respondent to secure such obligation but the cheque was dishonoured, following which suit was filed---Contention of appellant was that he was condemned unheard as his application for leave to defend was wrongly dismissed; that he had applied for an adjournment which was granted and the application was filed on that date; that as the Court had granted adjournment, therefore, the appellant ought not to have been penalized on the point of limitation and that he had entered into a contract for purchase of vehicle with the respondent in whose favour the cheque was issued---Validity---Trial Court without any extension had simply put off the matter for another date---Period of 10 days of limitation prescribed in terms of Art. 159 of the Limitation Act, 1908 had already lapsed by the date when the appellant had sought adjournment---High Court while looking to the merits of the defence sought to be raised in terms of the Application for Leave to Defend observed that no date of the so-called transaction was given nor any document in that regard was referred---Plea raised by appellant could not serve to unsettle the presumption to be made in terms of S. 118 of the Negotiable Instruments Act, 1881---Appeal was dismissed.

Syed Amir Ali Shah Jellani for Appellant.

M. Peer Rahman for Respondents.

2021 C L D 794

[Sindh]

Before Muhammad Faisal Kamal Alam, J

RAZAK LATIF and another---Plaintiffs

Versus

ACE SECURITIES (PVT.) LIMITED through Chief Executive---Defendant

Suit No. 1954 of 2010, decided on 20th April, 2020.

(a) Central Depositories Act (XIX of 1997)---

----S. 12---Brokers and Agents Registration Rules, 2001 [since repealed], Rr. 12 & 17---Suit for recovery of loan amount and damages---Pledge of book-entry securities---Agent not to deal with clients in his name---Scope---Plaintiffs filed suit for recovery of different amounts and damages claiming therein that they had opened two different accounts in the defendant company for trading in shares; that the defendant had pledged the shares belonging to plaintiffs and that the plaintiffs had advanced a loan to the defendant which was never paid back---Defendant, despite ample opportunities, did not lead evidence, therefore, the court evaluated the claim of plaintiff on its own merits---Validity---Audit Financial Statement of defendant confirmed that the loan was advanced by one of the plaintiffs, even though it was averred in the written statement that the loan was repaid by the defendant but no contrary evidence was led---Defendant was liable to pay the same to the plaintiffs, but without any mark-up, as the Financial Statement itself stated that the loan did not have interest component---Statement of balance addressed by defendant to one of the plaintiffs confirmed that the shares/securities of different companies existed in the names of plaintiffs---Account Balance Report by Central Depository Company showed that the shares owned by the plaintiffs were pledged---Plaintiffs were held entitled to recover the amount of shares along with 10% mark up from the date of institution of suit till its realization---High Court while considering the conduct of defendant and the illegality committed by it, the effect of which was lasting and was felt till date, awarded a sum of Rupees Two Million as general damages to the plaintiffs---Suit was decreed accordingly.

Abdul Majeed Khan v. Tawseen Abdul Haleem 2012 CLD 6 and Sufi Muhammad Ishaque v. The Metropolitan Corporation, Lahore PLD 1996 SC 737 ref.

(b) Qanun-e-Shahadat (10 of 1984)---

----Art. 30---Civil Procedure Code (V of 1908), O. XII, R. 6---Admission---Judgment on admission---Scope---Pleadings itself cannot be taken as an evidence, but there is an exception to this rule, that when the pleadings, more particularly, a written statement, either wholly or in part, admits a claim of plaintiff or any other adversary, then it falls within the ambit of 'admission' as envisaged in Article 30 of the Qanun-e-Shahadat, 1984---Order XII, R. 6, C.P.C. specifically deals with the above situation where a Court can pronounce a judgment or order upon an application of a party, in view of admission made in the pleadings (including written statement) or by any other permissible manner.

Abbas Ali v. Liaquat Ali and another 2013 SCMR 1600 rel.

(c) Pleadings---

----Pleadings of parties cannot be treated as evidence (subject to certain exceptions(s), including admission), unless a party enters a witness box and lead evidence in support of his claim.

(d) Damages---

----Special damages---Scope---Special damages can only be awarded when plaintiffs prove the same by leading positive evidence. (e) Damages---

----General damages---Scope---Quantum of general damages can be determined by the Court by looking at the facts of a case.

Manzoor Hameed Arain for Plaintiffs.

Nemo for Defendant.

2021 C L D 838

[Sindh]

Before Zafar Ahmed Rajput, J

MASTER MOTORS CORPORATION (PVT.) LIMITED through Attorney/Authorized Officer---Plaintiff

Versus

MASTER ROAD CORPORATION SMC (PVT.) LIMITED through Proprietor/Partners/Managers and others---Defendants

Suit Nos. 596, 880 and J.M. No. 28 of 2019, decided on 22nd September, 2020.

Trade Marks Ordinance (XIX of 2001)---

----Ss. 40 & 46---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Suit for declaration and injunction---Interim injunction, grant of---Infringement of registered trade mark---Plaintiff claimed to be part of "Master Group of Industries" and was indulged in sale of commercial vehicles in the name of "Master Grande" and "Master Line" and also manufacturing and selling buses under brand name of "Master Foton" and "Yotong Master"---Plea raised by plaintiff was that it had protected its rights in the brand 'Master' by obtaining registration of the same in relevant Class 12 of International Classification of Goods and Services pertaining to vehicles, apparatus for locomotion by land, air or water with authorities---Validity---Trademark Registration Certificate was annexed with plaint and such fact was not denied by defendant rather it was admitted by it in its counter affidavit---Plaintiff had made out a prima facie case in its favour for grant of injunctive relief and allowing to use the trade mark "Master" and "Road Master" by defendant would cause inconvenience to plaintiff---Use of such name by defendant would cause deception and confusion in terms of provisions of Trade Marks Ordinance, 2001---Balance of convenience was in favour of plaintiff for the purpose of granting injunction and it was plaintiff that would suffer irreparable loss if injunction as not allowed---Interim injunction was allowed in circumstances.

Sayyed Engineering v. Tristar Industries (Pvt.) Ltd. 2001 CLC 1368; Dewan Sugar Mills (Pvt.) Ltd. v. M.B. Abbasi and others 2007 YLR 2672; Naseem Ahmed v. Messrs Samiuddin Ramzan Khan and 2 others 2004 CLD 315; Popular Food Industries Ltd. v. Maaza International Company LL.C and another 2004 CLD 1509; Tri-Star Industries (Pvt.) Ltd v. Messrs Trisa Bursten Tabrik A. G. and others 1999 YLR 638; Messrs Shield Corporation Ltd. v. Dalda Foods (Pvt.) Ltd 2015 CLD 528; Wrangler Apparel Corporation through Authorized Signatory v. Axfor Garments through Proprietor/ Manager/Partners 2008 CLD 70; Messrs. Excise Pakistan Limited v. Pakistan Accumulators (Pvt.) Ltd. and 2 others 2010 CLD 890; Jubilee Lie Insurance Company Limited through Zahid Barki v. United Insurance Company of Pakistan Ltd. through Dy. Managing Director and others 2016 CLD 1663; Nadeem Ijaz and others v. Malik Ehsan Ullah and others 2006 CLD 234; Hamdard Laboratory (WAQF) Pakistan, through Director v. Muhammad Fahim 2016 CLD 2144; Messrs Neucon Pakistan Ltd.; in the matter of 2019 CLD 37; Roznama Hamdard though Chief Editor v. Hamdard National Foundation Pakistan 2010 SCMR 95; Farooq Ghee and Oil Mills (Pvt.) Ltd. v. Registrar of Trade Mark, Trade Mark Registry and others 2015 SCMR 1230; Mian Muhammad Latif v. Province of West Pakistan PLD 1970 SC 180; SUI Northern Gas Company v. Pakistan Cement Industries PLD 1968 Lah. 876; Haleema Bibi and another v. Saqib Shamim and others PLD 2000 Lah. 195; N.Y Corporation (Pvt.) Ltd. v. Province of Sindh and others 2009 YLR 263; Messrs Master Textile Mills Ltd. through duly Authorized Signatory v. Master Fabrics through Managing Partner and 5 others 2007 CLD 991; Abdul Wasim v. Messrs HAICO through Sole Proprietor/Partner and 2 others 2002 CLD 1623; Formica Corporation v. Pakistan Formica Ltd. 1989 SCMR 361; Messrs Platinum Pharmaceuticals Company (Private) Limited v. Stand Pharm Pakistan (Private) Limited and 3 others 2006 CLD 1109; Soneri Travel and Tours Ltd. through Chief Executive/Director/- Secretary v. Soneri Bank Limited 2011 CLD 193; Messrs Ismail Industries Limited through Authorized Officer v. Mondelez International through Director, Partner, Owner and 2 others 2019 CLD 562; Brands for Less L.L.C. v. Brands 4 Less through Proprietor/Partner/Owner 2019 CLD 146; Dalda Foods (Private) Limited v. Messrs Shield Corporation Limited 2016 CLD 1864; Messrs Hero Motors Ltd. through Authorized Signatory v. Babar Auto Trading and Manufacturing Company through Proprietor 2010 CLD 22; Malik Muhammad Rafiq Awan v. Javad Iqbal and others 2012 CLD 905 and Crescent Pencils Limited v. Indus Pencil Industries Limited and another 1989 CLC 2005 ref.

Mirza Mehmood Baig and Hanya Haroon for Plaintiff (in Suit No.596 of 2019).

Ms. Amna Salman Ahmed for Defendant No. 1 (in Suit No.596 of 2019).

Nemo for Defendants Nos. 2 to 7 (in Suit No.596 of 2019).

Ms. Amna Salman Ahmed for Plaintiff (in Suit No. 880 of 2019).

Mirza Mehmood Baig and Hanya Haroon for Defendant No. 1 (in Suit No. 880 of 2019).

Nemo for Defendants Nos. 2 and 3 (in Suit No. 880 of 2019).

Ms. Amna Salman Ahmed for Plaintiff (in J.M. No. 28 of 2019).

Mirza Mehmood Baig and Hanya Haroon for Respondent No. 1 (in J.M. No. 28 of 2019).

Nemo for Respondent No. 2 (in J.M. No. 28 of 2019).

2021 C L D 885

[Sindh]

Before Nadeem Akhtar, J

Messrs FOCUS ENTERTAINMENT through Authorized Partner---Plaintiff

Versus

Messrs TELEVISION MEDIA NETWORK (PVT.) LTD. through Chief Executive Officer and 5 others---Defendants

Suit No. 192 of 2020, decided on 26th March, 2021.

Civil Procedure Code (V of 1908)---

----S. 89-A & O. X, R. 1B---Alternate dispute resolution---Scope---Plaintiff filed suit for declaration, permanent injunction, infringement of copyright, delivering up, rendition of accounts and damages---Along with the suit, plaintiff filed an application under S. 89-A, C.P.C. praying that the dispute between the parties be referred to mediation in terms of the agreement executed between the parties---Validity---Said application was disposed of and a Mediator was appointed by the Court with consent of the parties---Petition under O. X, R. 1B(vi), C.P.C. was submitted by the Mediator wherein he had stated that the parties executed a settlement agreement, original whereof was attached to the petition---At the foot of the settlement agreement, there was a certificate by the Mediator certifying that the parties had entered into the said agreement voluntarily---Mediator as well as the counsel for the parties requested that as all the disputes had been resolved by the parties through the said agreement, present suit be decreed in terms thereof---Suit was decreed in terms of the settlement agreement arrived at by the parties.

Abdullah Munshi for Plaintiff.

Ebrahim Saifuddin for Defendants.

2021 C L D 951

[Sindh]

Before Shamsuddin Abbasi and Adnan Iqbal Chaudhry, JJ

MUHAMMAD HASEEB FATANI----Petitioner

Versus

FEDERATION OF PAKISTAN, through Secretary, Ministry of Finance, Government of Pakistan, Islamabad and 2 others----Respondent

Constitutional Petition No.D-6339 of 2018, decided on 24th December, 2020.

Per Shamsuddin Abbasi, J.

(a) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001) ---

----S. 20---Exit from Pakistan (Control) Ordinance (XLVI of 1981), Ss. 2 & 3---Exit from Pakistan (Control) Rules, 2010, R.2 (e)---Constitution of Pakistan, Art. 199---Constitutional petition---Exit Control List---Wilful defaulter---Absconder from law---Petitioner was willful defaulter of different financial institutions against whom decrees were passed by Banking Courts and he had also been declared as Proclaimed Offender---Petitioner sought removal of his name from Exit Control List---Validity---Held, there was every likelihood that petitioner would leave the country, if his name was ordered to be removed from Exit Control List, just to save his skin from clutches of law---Fugitive from law and Courts loses some of the normal rights granted by procedural as also substantive law---Petitioner neither joined legal proceedings nor made appearance before relevant Courts and proceedings as provided under Ss. 87 & 88, Cr.P.C. had already been initiated declaring him as proclaimed offender---Judicial discretion could not be exercised in favour of a person who was fugitive from law---Abscondence of petitioner disentitled him to ask for any relief which was discretionary---Constitutional petition was dismissed, in circumstances.

Slackness in the Progress of Pending Enquiries relating to Fake Bank Accounts and others 2019 SCMR 332; Messrs United Bank Ltd. v. Federation of Pakistan and others 2014 SCMR 856; Messrs Zurash Industries (Pvt.) Ltd. v. Federation of Pakistan and others PLD 2011 Kar. 385; Muhammad Sadiq v. Federation of Pakistan and others PLD 2016 Sindh 263; Hassan Raza v. Federation of Pakistan 2012 CLD 92; Mustafa Impex v. Government of Pakistan PLD 2016 SC 808; Mrs.Humaira Khurram Khan v Secretary Ministry of Interior and others 2016 PCr.LJ 1226; S. Akbar Ali Shah v. Federation of Islamic Republic of Pakistan 2011 MLD 1536 and Pakistan Medical and Dental Council v. Muhammad Fahad Malik 2018 SCMR 1956 ref.

Per Adnan Iqbal Chaudhry, J [agreeing with Shamsuddin Abbasi, J

(b) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001) ---

----S. 20---Exit from Pakistan (Control) Ordinance (XLVI of 1981), Ss. 2 & 3---Exit from Pakistan (Control) Rules, 2010, R.2(e)---Criminal Procedure Code (V of 1898), Ss. 87 & 88---Constitution of Pakistan, Art. 199---Constitutional petition---Exit Control List---Wilful defaulter---Absconder from law---Petitioner was willful defaulter of different financial institutions against whom decrees were passed by Banking Courts and he had also been declared as proclaimed offender---Petitioner sought removal of his names from Exit Control List---Validity---Petitioner did not appear before Banking Courts to face criminal complaints against him under S.20 of Financial Institutions (Recovery of Finances) Ordinance, 2001, and was a Proclaimed Offender---High Court declined to come to aid of a person who was a fugitive from law---High Court directed the petitioner to first surrender before Trial Courts and if those Courts decided to exempt his personal appearance, the petitioner would exhaust remedy of review provided by S. 3 of Exit from Pakistan (Control) Ordinance, 1981---Constitutional petition was dismissed, in circumstances.

Chan Shah v. The Crown PLD 1956 FC 43 and Hayat Bakhsh v. The State PLD 1981 SC 265 rel.

Khawaja Shams-ul-Islam and Khawaja Saif-ul-Islam for Petitioners.

Mukesh Kumar Khatri, D.A.G. for Respondents.

Hamid Idrees for Summit Bank Ltd.

Ijaz Hussain Shirazi for Bank Islami Ltd.

Rajendar Kumar for Muslim Commercial Bank Ltd.

2021 C L D 994

[Sindh]

Before Nazar Akbar, J

Mst. MOZAFFAR ISLAM and another---Petitioner/Applicant

Versus

DILKUSHA ENTERPRISES (PVT.) LIMITED through Manager/Secretary and 2 others---Respondents

J.C.M. No. 33 of 2017, decided on 27th May, 2021.

Companies Act (XIX of 2017)---

----Ss. 337, 319, 321, 315, 316, 304 & 301---Winding-up of company---Official liquidator---Powers and duties---Sale/auction of immoveable property of company under liquidation---Highest bidder, obligations of---Discharge of obligations of official liquidator/official assignee---Actions/performance of official liquidator /official assignee not to adversely affect creditors and auction participants---Scope---Time-frame given in auction notice for payment of balance sale consideration by highest bidder had to be applied as law of limitation and there was hardly any chance to condone non-compliance of time-bound conditions of auction---References of official liquidator/official assignee were not to serve as an excuse for highest bidder to unnecessarily extend time to his advantage---Once highest-bidder failed to meet deadline for payment of balance sale consideration, he then loses all rights or claims vis-à-vis the property and such failure of highest bidder automatically created rights in favour of second-highest bidder and other bidders to patriciate in a fresh auction, and their offers could also be increased also in such fresh auction---Actions and performance of the official assignee/liquidator should not adversely affect creditors of a company under liquidation---High Court directed that in all cases of sale of properties by Nazir or official liquidator/official assignee, once highest bid was accepted, official liquidator/official assignee should file reference within 48 hours for confirmation of highest bid and such reference should be accompanied by application for urgent hearing of said reference for order on same day in Chamber of Company Judge of High Court---Such application should always be referred to in conditions of auction notice, as it was part of such notice, whereby highest bidder was supposed to make payment of entire balance amount within 15 days---High Court further observed that any slackness on part of official liquidator/official assignee would be taken judicial notice of, which High Court do on its own or upon complaint by creditors or participants of auction, which may entail serious consequences for official liquidator/official assignee.

Qazi Umair for Petitioner.

Asad Iftikhar for Respondent No. 3

Muhammad Arif Shaikh for Auction Purchaser.

Muhammad Arshad for Auction Purchaser No. 2.

2021 C L D 1008

[Sindh]

Before Muhammad Shafi Siddiqui and Adnan-ul-Karim Memon, JJ

FAMOUS BRANDS (PRIVATE) LTD. through Authorized Signatory---Appellant

Versus

SAMSONITE IP HOLDINGS S.a.r.l. through Attorney and another---Respondents

High Court Appeal No. 284 of 2018, decided on 19th March, 2021.

(a) Civil Procedure Code (V of 1908)---

----O. VII, R. 11---Surrender to jurisdiction---Principle---By moving application under O. VII, R. 11, C.P.C., litigant does not surrender to jurisdiction of that Court.

(b) Sindh Chief Court Rules (O.S.)---

----R. 74---Interlocutory relief---Scope---Only Rule that enables a party to move application for an interlocutory relief is Rule 74 of Sindh Chief Court Rules (O.S.)---Said R. 74 restricts a litigant from moving application for interlocutory relief that contains more than one prayers of contradictory nature---By way of R. 74 of Sindh Chief Court Rules (O.S.), a litigant is permitted to move an application with only one prayer or one series of alternative prayers of the same kind.

(c) Trade Marks Rules---

----Rr. 11, 76, 86 & 88---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Protection of trade mark---Interim injunction---Respondent-plaintiff filed suit for declaration, injunction and recovery of damages for illegal use of its trade mark "Samsonite"---Single Judge of High Court permitted appellant-defendant to sell goods of respondent-plaintiff as the same were not counterfeit products--- Only proposition on the basis of which injunctive order was passed was that appellant-defendant could take benefit from display of respondent-plaintiff's trade mark as "signage"---In an attempt to demonstrate that appellant-defendant was using such signboard, respondent-plaintiff produced various photographs through statement showing that some of the shops of appellant-defendant displayed signboard of "Samsonite" to mislead customers and branding themselves to be an authorized distributor and reseller of the goods---Effect---Substance was to be evaluated for a party presenting prima facie case and balance of inconvenience---Once such discretion was exercised by Trial Court/Single Judge of High Court, which in substance could be ascertained while going through entire order, then discretion exercised by Trial Court/Single Judge of High Court was not to be normally interfered---Appellate Court normally avoid interfering in orders of interlocutory nature involving exercise of discretion, as appellate Court cannot substitute its own discretion unless when the discretion was exercised arbitrarily, capriciously, perversely or where Court ignored certain principles regulating grant or refusal of injunction---Division Bench of High Court declined to reassess material to reach a conclusion different from the one reached by Trial Court/Single Judge of High Court on consideration that another view was possible---If discretion was exercised by Trial Court/Single Judge of High Court reasonably in a judicial manner, same should not be interfered in exercise of appellate jurisdiction---Intra Court Appeal was dismissed, in circumstances.

Roomi Enterprises (Pvt.) Ltd. v. Stafford Miller Ltd. 2005 CLD 1805 rel.

Salman J. Mirza and Saifullah Abbasi for Appellant.

Mayhar Qazi and Shah Bakht Pirzada for Respondents.

2021 C L D 1022

[Sindh]

Before Salahuddin Panhwar, J

SOBIA AAMIR through Attorney---Appellant

Versus

REGISTRAR OF TRADE MARKS and another---Respondents

M.As. Nos. 28 and 29 of 2013, decided on 1st March, 2021.

Trade Marks Ordinance (XIX of 2001)---

----S. 114---Trade Marks Rules, 2004, R. 131---Appeal against the decision of the Registrar of Trade Marks, adjudication of---Territorial jurisdiction of High Court, determination of---Scope--Appeal against order of Registrar under S. 114 of Trade Marks Ordinance, 2001 lay before High Court, but it had not been left to discretion or wishes of parties as to which High Court had jurisdiction to hear said appeal---Use of phrase "High Court having jurisdiction" in said section meant that it shall only be that High Court in whose jurisdiction Registrar, recording impugned order, was functioning---Appeal under S. 114 of Trade Marks Ordinance, 2001 therefore shall lie to the High Court, where matter was subjudice, or under whose jurisdiction District Court was located, if matter was pending before District Court.

PLD 1993 SC 123; PLD 1989 Pesh. 197; Messrs Al-Iblagh Limited, Lahore v. The Copyright Board, Karachi and others 1985 SCMR 758 and Reckitt and Colman (U.K.) PLC v. Sheikh Soap Factory and another PLD 1993 SC 129 rel.

Mirza Mahmood Baig for Appellant.

Saleem Ghulam Hussain for Respondents.

2021 C L D 1034

[Sindh]

Before Salahuddin Panhwar, J

BROTHERS INDUSTRIES through Partner---Appellant

Versus

The CONTROLLER OF PATENTS and another---Respondents

Miscellaneous Appeal No. 5 of 2012, decided on 6th March, 2020.

Patents Ordinance (LXI of 2000)---

----Ss. 23 & 2(e)---Patents Rules, 2003, R. 17---Opposition to the grant of patent---Advertisement of application---Date of advertisement---Limitation---Scope---Appellant challenged the order passed by Controller of Patents wherein the Controller refused the opposition filed by appellant on the ground that the opposition was time barred since it was filed after the expiry of prescribed period of four months commencing from the date of publication of official gazette---Contention of appellant was that the date from which the period of four months commenced was the date on which the gazette was made available at the Patents Office rather than the date on which the gazette was published and that the gazette of Pakistan was delayed at the Printing Corporation of Pakistan---Validity---Normally effective date of the notification was when a notification was published in the gazette and not the one when it was received in the relevant office---Plea of the appellant to the effect that the effective date of filing opposition would be that of making it available at the Patents Office was entirely misconceived---One could not take advantage of his own ignorance from a particular gazette because every gazette was meant to be effective from the date of its publication which, otherwise, was meant for the purpose of taking benefit thereof or to face consequence of any inaction, if required to be taken with reference to such gazette---Appeal was dismissed.

Pakistan Pharmaceutical Manufacturers Associate (PPMA) through Authorized Signatory v. The Controller of Patents and another 2017 CLD 427 rel.

Ms. Sara Shaikh for Appellant.

Abad ul Hasnain for Respondents.

2021 C L D 1142

[Sindh]

Before Salahuddin Panhwar, J

TREND INTERNATIONAL through Proprietor---Appellant

Versus

MUSTAFA REHMAN and another---Respondents

M.A. No. 70 of 2018, decided on 25th November, 2019.

Trade Marks Ordinance (XIX of 2001)---

----S. 49---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Interim injunction---Mandatory injunction---Opportunity of hearing---Scope---Appellant was restrained from marketing its products on the issue of resemblance in packing with that of respondent's---Validity---Appellant was deprived of marketing its products, which was duly registered; without there being any justification in that behalf---Mandatory injunction could not be granted without hearing of other side because it operated against certain legal rights or obligations---Departure could only be made if such right was being used to delay/ frustrate the proceedings or exceptional circumstances so justified which must include irreparable loss---Impugned order was unjustified and void ab initio, as such the same was set aside and the Tribunal was directed to decide the application for injunction afresh.

Cantonment Board, Rawalpindi and another v. Muhammad Yaqoob and 49 others 1994 SCMR 2024 rel.

Sultan Ahmed Sheikh and Salman Ahmed Shaikh for Appellant.

2021 C L D 1195

[Sindh (Sukkur Bench)]

Before Aftab Ahmed Gorrar and Fahim Ahmed Siddiqui, JJ

RINDZ MARI and others---Petitioners

Versus

PROVINCE OF SINDH through Secretary Mines and Mineral Development Department, Karachi and 8 others---Respondents

Constitutional Petition No. D-185 of 2020, decided on 27th May, 2021.

Sindh Environment Protection Act (VII of 2014)--

----Ss. 2(xlii) & 17---Factories Act (XXV of 1934), Ss. 5 & 5-A---Environment protection---Excavation of lime stone---Factory in residential locality---Petitioners were villagers who were aggrieved of dynamite blasting and mining of limestone from a stone quarry by respondent---Validity---Before allocating a site for stone quarry, an Initial Environmental Examination (IEE) and subsequent Environmental Impact Assessment (EIA) should have been done by authorities after public hearing but such practice was never followed---Area allocated to operators of quarries should have been properly demarcated for which revenue authorities were to be involved--- Without "No Objection Certificate" from Board of Revenue no new quarry for surface mineral should be given to prospective operations--- High Court set aside permit/license issued in favour of respondent regarding limestone quarry adjacent to village of petitioners as the same had been established without fulfilling necessary codal formalities---High Court declared that crushing machine / plant functioning at or nearby the quarry was illegal, as the same fell under the definition of "factory" and was also working without proper permission obtained according to Ss. 5 & 5-A of Factories Act, 1934---High Court directed the authorities to remove crushing machine / plant on the expenses of respondent, in case he failed to remove it in specified period--- Constitutional petition was allowed accordingly.

Ali Raza Baloch for Petitioners.

Qurban Ali Malano for Respondent No. 9.

Ahmed Ali Shahani, Assistant Advocate-General, Sindh along with Sajjad Ahmed Mahesar, Assistant Director Mines and Mineral Department, Khairpur.

2021 C L D 1252

[Sindh]

Before Mohammed Karim Khan Agha and Zulfiqar Ali Sangi, JJ

MUHAMMAD ARSHAD LATIF and another---Appellants/Petitioners

Versus

The STATE through Chairman, National Accountability Bureau and another---Respondents

Criminal Accountability Appeals Nos. 17 and 18 of 2019 along with C.Ps. Nos. D-2433 and 2432 of 2019, decided on 8th October, 2020.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(viii) & 31-D--- Wilful default---Appreciation of evidence---Notice, non-reply of---Address, change of---Effect---Accused persons alleged to have committed wilful default in repayment of bank loan---Trial Court convicted accused persons and sentenced them to imprisonment for five years along with payment of fine---Validity---Notices were duly served on address of defaulting company as per records of bank provided by defaulting company---Prosecution exhibited courier receipts to show that Bank notices were received at the address of company given by accused persons at the time of taking out the loan---If accused persons changed their address then it was their duty to inform change of address to Bank but they failed to do so---Not the job of Bank to trace out whereabouts of loan defaulters before serving notices on them---Bank was only obliged to serve notice to defaulters on address last provided by them to bank--- Accused persons did not put any plausible reason as to why they failed to repay loan and did not even join investigation of NAB to justify their position despite they were sent call up notices---Accused persons did not even make one loan instalment repayment and deliberately avoided all notices from their bank and State Bank of Pakistan regarding treating their loan as wilful default---Defaulted amount was wilful---Division Bench of High Court declined to interfere in judgment passed by Trial Court as accused persons failed to point out any error in the same either as a matter of law or fact---All ingredients required to make out a case of wilful default were proved through cogent, reliable and trustworthy oral and documentary evidence---Prosecution proved its case beyond reasonable doubt---Appeal was dismissed in circumstances.

Khan Asfand Yar Wali and others v. Federation of Pakistan and others PLD 2001 SC 607; Islamuddin Shaikh v. Federation of Pakistan and others PLD 2001 Kar. 419; Kaloodi International (Pvt.) Ltd. v. Federation of Pakistan PLD 2001 Kar. 311; Irfan Nawab through Attorney v. Soneri Bank Limited 2013 CLD 1922 and Intikhab A. Syed v. Chairman NAB 2019 MLD 127 ref.

Mian Munir Ahmed v. State 2004 PCr.LJ 2012 rel.

Nabeel Kolachi for Appellants/Petitioners (in Criminal Accountability Appeals Nos. 17 and 18 of 2019 along with C.Ps. Nos. D-2433 and 2432 of 2019).

R.D. Kalhoro, Special Prosecutor NAB for the State (in Criminal Accountability Appeal No. 18 of 2019 along with C.P. No. D-2432 of 2019).

2021 C L D 1334

[Sindh]

Before Irfan Saadat Khan and Muhammad Faisal Kamal Khan, JJ

EFU GENERAL INSURANCE LTD.---Appellant

Versus

JAHANGIR MUGHUL---Respondent

Miscellaneous Appeal No. 8 of 2016, decided on 9th February, 2021.

(a) Insurance Ordinance (XXXIX of 2000)---

----S. 162---Civil Procedure Code (V of 1908), O. VII, R. 11--Qanun-e-Shahadat (10 of 1984), Arts. 92 & 129(e)---Previous sanction of Securities and Exchange Commission of Pakistan (SECP) for institution of proceedings under Insurance Ordinance, 2000---Sanction letter, exhibition in evidence of---Scope---Question before High Court was whether suit under Insurance Ordinance, 2000 was maintainable when requisite sanction letter under S. 162 of Insurance Ordinance, 2000 was not exhibited in evidence---Held, that authenticity of sanction letter was not disputed and it was admittedly an official document issued by a Competent Authority and therefore same bore presumption of genuineness in terms of Arts. 92 & 129(e) of Qanun-e-Shahadat, 1984---While such sanction letter should have been exhibited in evidence, but omission of non-exhibition could not be fatal to the case of a plaintiff, and thus on such basis, suit could not be rejected under O. VII, R. 11, C.P.C.

State Life Insurance Corporation of Pakistan and another v. Javaid Iqbal 2011 SCMR 1013 distinguished.

(b) Insurance Ordinance (XXXIX of 2000)---

----Ss. 121, 118, 79, 75 & 124---Insurance Rules, 2002, R. 22---Motor Vehicle Insurance---Theft of parts and accessories of vehicles---Surveyor report, examination of---Rejection of claim by insurance company---Liquidated damages on late settlement of claim for motor vehicle insurance---Scope---Insurance Company impugned order of Insurance Tribunal whereby claimant's insurance claim for theft of parts and accessories of insured vehicle was allowed, along with liquidated damages---Contention of insurance company, inter alia, was that material aspects of the matter were ignored by Insurance Tribunal in impugned order and same was liable to be set aside---Validity---Main reason for rejecting claimant's insurance claim by insurance company was the surveyor report, and duty of surveyor was to assess loss---In the present case, surveyor report did not mention a single line about alleged loss which had occurred and only mentioned minor contradictions in claim of claimant and furthermore did not contain any assessment regarding the main facts which were in dispute, therefore surveyor did not make any independent assessment of losses claimed---Surveyor report could not be said to have been made to a professional standard and with due diligence as envisaged by R. 22 of Insurance Rules, 2002 and thus same could not be considered---Insurance company did not contend that claimant had made any misrepresentation or failed to comply with duty of disclosure at time of entering into insurance contract and no good reason existed for rejecting claim of claimant ---Insurance Tribunal had therefore rightly passed impugned order and also rightly applied S. 118 of Insurance Ordinance, 2000 to compute liquidated damages as claim was to be settled within period of 90 days by insurance company, which was not done---Appeal was dismissed, in circumstances.

Alpha Insurance Co. Ltd. through Authorized Representative v. Messrs Poly Foils (Pvt.) Ltd. through Owner and another 2017 CLD 1091 distinguished.

S. Tanveer Ashraf for Appellant.

Ms. Shumaila Saghir for Respondent.

2021 C L D 1404

[Sindh]

Before Aqeel Ahmed Abbasi and Mahmood A. Khan, JJ

NAZIR AHMED---Appellant

Versus

NATIONAL BANK OF PAKISTAN and others---Respondents

First Appeal No. 20 of 2020, decided on 30th April, 2021.

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 19 & 22---Civil Procedure Code (V of 1908) O. XXI, Rr. 69, 66, & S. 151----Suit for recovery---Execution of decree of Banking court--- Auction of mortgaged property---Setting aside of auction proceedings---Exercise of right to redemption by judgment-debtor before confirmation of bid---Scope---Judgment-debtor impugned confirmation of auction in favour of auction-purchaser by Executing Court, inter alia, on ground that judgment-debtor had exercised his right of redemption by paying decretal amount to decree-holder, and his application under O. XXI, R. 69, C.P.C. was not disposed of by Executing Court before passing impugned order in which Executing Court confirmed bid in favour of auction-purchaser---Validity---Without passing order of confirmation of bid, the clog on equity/right of redemption was not available as bid remained an offer before it was confirmed---In present case, record revealed that impugned order for confirmation of bid was passed without disposal of application of judgment-debtor under O. XXI, R. 69 read with S. 151 of C.P.C.; and element of payment having been made by judgment-debtor to decree holder had not been discussed in impugned order---Judgment-debtor had cleared the liability of decree-holder before impugned confirmation of bid was passed by Executing Court and thus impugned order was not justified and was liable to be set aside---Appeal was allowed, accordingly.

Muhammad Jawad v. First Women Bank Limited Civil Petition No. 686-K of 2019 distinguished.

Hudaybia Textile Mills Ltd. v. Allied Bank of Pakistan, PLD 1987 SC 512; Mst. Anwar Sultana v. Bank Al-Falah Ltd., 2014 SCMR 1222; Muhammad Attique v. Jami Limited, PLD 2010 SC 993; Navalkha and Sons v. Ramanya Das (1969) 3 SCC 537 and Union Bank of India v. Official Liquidator, (2000) 5 SCC 274 rel.

Khaleeq Ahmed for Appellant.

Ms. Naheed A. Shahid for Respondent No. 1.

Ms. Naila Kausar Shaikh for Respondents Nos. 2(i) and (ii).

2021 C L D 1425

[Sindh (Sukkur Bench)]

Before Muhammad Junaid Ghaffar and Zulfiqar Ali Sangi, JJ

Messrs ZARAI TARAQIATI BANK LIMITED---Appellant

Versus

INAM and 2 others---Respondents

Ist Appeal No. D-35 of 2020, decided on 6th October, 2021.

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 24, 4 & 22---Limitation Act (IX of 1908), Ss. 19, 5 & Arts. 66 & 132---Procedure of Banking Court---Suit for recovery---Limitation period for filing of a suit for recovery by Financial Institution---Limitation, computation of---Scope---Plaintiff Bank impugned order of Banking Court whereby its suit for recovery was dismissed on ground of limitation---Contention of plaintiff Bank, inter alia, was that limitation began to run from date of last payment by defendants and on such basis, suit was within time---Validity---Limitation in a banking suit normally did not run from date of disbursement of loan but from date of last payment or default, however same was only true when such last payment had been otherwise made within applicable limitation period---In the present case, certificate of charge for finance was created in year 1991 and thus limitation period under Limitation Act, 1908 would be 12 years from date when payment became due and even if such period of 12 years is applied, admittedly date of disbursement of loan was made year 1991 and no action was taken by the plaintiff Bank and it only filed present suit after a certain amount was deposited by defendants in the year 2019---Such amount was admittedly deposited after expiry of period of 12 years limitation---Acknowledgement, if any, in terms of S. 19 of Limitation Act, 1908 could be relied upon only if same was made within prescribed period of limitation and not otherwise---Payment made by defendants in year 2019 therefore would not extend period of limitation---Record also reflected that no application for seeking discretionary relief by plaintiff Bank was filed in Banking Court to satisfy it that there was sufficient cause for not filing suit within time---No illegality existed in impugned order --- Appeal was dismissed, in circumstances.

Shaheen Enterprises v Allied Bank Limited 2019 CLD 55; State Life Insurance Corporation of Pakistan v. Arjan Ram PLD 2003 Kar. 523 and S.M.E Leasing Limited v. Messrs Umar Knitting 2011 CLD 1144 ref.

International Business Centre v Habib Credit and Exchange Bank Limited 2004 CLD 1552 and Pakistan Industrial Credit and Investment Corporation Ltd., v. Arif Noor 2009 CLD 1428 rel.

Faheem Majeed Memon for Appellant.

Nemo for Respondents Nos. 1 and 2.

2021 C L D 7

[Lahore]

Before Jawad Hassan, J

NADEEM KIANI---Petitioner

Versus

Messrs AMERICAN LYCETUFF (PVT.) LIMITED and others---Respondents

Civil Original No. 229608 of 2018, decided on 3rd December, 2020.

(a) Companies Act (XIX of 2017)---

----Ss. 286(1) & 286(2)---Companies Ordinance (XLVII of 1984), Ss. 290(1) & 290(2) [since repealed]---Application to High Court---Section 286 of the Companies Act, 2017 ('the Act') had substituted earlier S. 290 of the Companies Ordinance, 1984 ('the Ordinance') [since repealed]---Sections 286(1) & (2) of the Act were similar to earlier S. 290(1) & (2) of the Ordinance, which both laid down the requirements for filing petition to avail remedy from the High Court---Differences between S. 286 of the Act and S. 290 of the Ordinance highlighted.

Following are the three differences between section 286 of the Companies Act, 2017 ('the Act') and section 290 of the Companies Ordinance, 1984 ('the Ordinance') [since repealed]:

(i) Section 290 of the Ordinance required a member or creditor to hold not less than twenty percent (20%) shares or capital before making such an application before the Court; whereas section 286 of the Act reduced the required criteria to 10%;

(ii) Section 286(1) of the Act also empowered the Commission to make such application before the Court; and

(iii) The word 'unfairly' had been added in section 286 of the Act before the word 'prejudicial', which was a requirement to be shown/established by the party complaining.

(b) Companies Act (XIX of 2017)---

----S. 286---Application to Court---True intent and spirit of S. 286 of the Companies Act, 2017.

Section 286 of the Companies Act, 2017 ('the Act') was an alternative to the winding up of a company and had been incorporated in the law to safeguard the minority shareholders from oppression and mismanagement of majority shareholders and to ensure that the affairs of the company must be conducted in a lawful manner and strictly in accordance with the Memorandum and the Articles.

Dr. Muhammad Imran Qureshi and 2 others v. Muhammad Asif and others 2020 CLD 1060; Malik Aziz ul Haq and 14 others v. Messrs Crystal Line Chemical Industries (Pvt.) Ltd. through Chief Executive and 5 others 2016 CLD 970; Muhammad Ujaz Tahir v. Federation of Pakistan and others 2014 CLD 1683; Muhammad Fikree and 3 others v. Fikree Development Corporation Ltd. and 8 others 1992 MLD 668 and Najamuddin Zia and others v. Mst. Asma Qamar and others 2013 CLD 1263 ref.

To make an order under section 286 of the Act, Court had to be satisfied that the company's affairs were being conducted in a manner warranting exercise of such jurisdiction and winding up order would unfairly prejudice the members or the creditors. The Court had to be satisfied from the facts that the affairs of the company were being conducted, or were likely to be conducted, in (i) an unlawful manner, or (ii) fraudulent manner, or (iii) a manner not provided for in its memorandum, or (iv) a manner oppressive to any of the member(s) or creditor(s), or (v) a manner that was unfairly prejudicial to the public interest.

Mere allegation of certain irregularities committed by the company did not provide sufficient grounds or give rise to the justification of exercising powers under section 286 because those were in domain of the Securities and Exchange Commission to exercise its powers vested under the law in such regard.

In the present case, the petitioner and the respondent were only shareholders of the company with each one holding fifty percent (50%) shares equally. Therefore, even if it was presumed that the petitioner was well within his competence to make an application in accordance with section 286 of the Act because the petitioner held more than ten percent (10%) issued share capital of the company even then the petitioner had to fulfil the second and most important condition that the affairs of the company were being run and conducted in a manner which was not only unfair and illegal but also in contravention to the Memorandum and Articles of Association of the company and thus sufficient grounds existed requiring interference by the High Court. There was, however, nothing to materialize allegations and to substantiate concerns of the petitioner, and to establish that the respondent was conducting the business of the company in (i) an unlawful manner, or (ii) fraudulent manner, or (iii) a manner not provided for in its memorandum, or (iv) a manner oppressive to any of the member(s) or creditor(s), or (v) a manner that was unfairly prejudicial to the public interest.

The only set of grounds taken by the petitioner in present petition were with regard to deadlock, non-convening of board meeting, inactions of the respondent, excluding the petitioner from management of the company; which co-jointly did not form substantial and necessary grounds justifying and necessitating interference by the High Court within the domain of section 286 of the Act. Constitutional petition filed by the petitioner was dismissed.

(c) Companies Act (XIX of 2017)---

----S. 286---Copyright Ordinance (XXXIV of 1962), Preamble---Application to Court---Scope---While dealing with an application under S. 286 of the Companies Act, 2017, the Court could not look into dispute inter se the parties---Section 286 could not be invoked for settlement of disputes in respect of intellectual property rights between the parties in which other forums were available under the relevant laws.

(d) Companies Act (XIX of 2017)---

----S. 286--- Companies Act, 2006 [United Kingdom], S. 994---Application to Court---Oppression and mismanagement by majority shareholders---Statutory law and principles in UK in relation to protection of members/minority shareholders from such oppression and mismanagement.

O'Neill and another v. Phillips and others citations [1997] 1 WLR 1092 = [1999] UKHC 24 ref.

(e) Companies Act (XIX of 2017)---

----S. 286--- Application to Court--- Oppression by majority shareholders---Word 'oppression'---Definition---In context of a company or corporation the word "oppression" was defined as unfair treatment to minority shareholders by those who controlled the corporation or the company.

Jermyn Street Turkish Baths Ltd [(1971) 3 All ER 184] ref.

(f) Companies Act (XIX of 2017)---

----S. 286---Companies Act, 2013 [India], S. 241---Application to Court---Oppression and mismanagement by majority shareholders---Statutory law and principles in India in relation to protection of members/minority shareholders from such oppression and mismanagement.

Needle Industries (India) Ltd. and others v. Needle Industries Newey (India) Holding Ltd. and others (1981) 3 Supreme Court Cases 333 ref.

(g) Companies Act (XIX of 2017)---

----S. 286---Companies Ordinance (XLVII of 1984), S. 290 [since repealed]---Application under S. 286 of the Companies Act, 2017 filed by Chief Executive Officer of the company---Maintainability---Section 290 of the Companies Ordinance, 1984 (now section 286 of the Companies Act, 2017) did not provide any statutory right to any Director, Board of Directors, Chief Executive Officer or any person in management responsible for running management and administrative affairs of the company, to file an application before the High Court under the said provisions.

Deng Xiao Bin Director Pak China Sost Port Company (Pvt.) Limited v. Registrar Joint Stock Companies, Gilgit-Baltistan, Gilgit 2016 GBLR 266 ref.

Muhammad Saqlain Arshad for Petitioner.

Barrister Umair Khan Niazi, Additional Advocate General, Ms. Sadia Malik, Assistant Attorney General, Barrister Mian Sultan Tanvir Ahmad, Advocate Supreme Court for the Respondent No.2 assisted by Usman Ali Cheema, Muazzam Akram and Hafiz Mubashar Ullah, Advocates for Respondents.

Hafiz Muhammad Talha, Advocate/Legal Advisor for SECP.

2021 C L D 33

[Lahore]

Before Jawad Hassan, J

Dr. NADEEM KIANI---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No. 9629 of 2019, decided on 11th November, 2020.

(a) Copyright Ordinance (XXXIV of 1962)---

----S. 45---Constitution of Pakistan, Art. 37---Petitioner sought direction to the Federal Government to constitute Copyright Board as required under S. 45 of the Copyright Ordinance, 1962 in order to safeguard his right of appeal against the order passed by Registrar of Copyrights---Validity---Right of appeal, when provided under the law, was a substantive right and denial of such substantive right was against the dictates of Art. 37(d) of the Constitution which mandated that the State would ensure provision of inexpensive and expeditious justice to the people---Appeal was not merely a formality but a substantive tool of re-examination of a higher pedestal to either rectify and correct any probable error or application of law in the orders passed by the lower forum or to endorse the same being right and thus further enhance its credibility---High Court directed the Federal Government to take up the matter regarding appointment of the Chairman of the Copyright Board on priority basis---Constitutional petition was disposed of accordingly.

Presson-Descon International (Private) Limited and others v. Joint Registrar of Companies PLD 2020 Lah. 869 = 2020 CLD 1128 ref.

Ghulam Qadir and others v. Sh. Abdul Wadood and others PLD 2016 SC 712 and Ovex Technologies (Private) Limited v. PCM PK (Private) Limited and others PLD 2020 Isl. 52 rel.

(b) Constitution of Pakistan---

----Art. 4--- Right of individuals to be dealt with in accordance with law---Scope---Every citizen of the country has a right of access to justice and dispensation of justice in a timely fashion---Every citizen had an inalienable right to enjoy protection of law and to be treated in accordance with law and no action detrimental to the life, liberty, body reputation or property of any person shall be taken except in accordance with law.

Watan Party and another v. Federation of Pakistan and others PLD 2011 SC 997 rel.

(c) Constitution of Pakistan---

----Art. 5---Loyalty to State and obedience to Constitution and law---Scope---Obedience to the Constitution and law is inviolable and it is the duty of the State to obey the laws.

Muhammad Saqlain Arshad assisted by Syed Faisal G. Meeran for Petitioner.

Ms. Sadia Malik, Assistant Attorney General along with Ali Nawaz Channa, Deputy Director, Ministry of Commerce, Islamabad, Dr. Rizwan Basharat, Incharge, IPO, Regional Office, Lahore and Tajammul Haider, Assistant Registrar, Trade Mark, IPO, Lahore for Federation of Pakistan.

2021 C L D 107

[Lahore]

Before Amin-ud-Din Khan, J

FAMOUS BRANDS (PRIVATE) LIMITED---Appellant

Versus

SAMSONITE IP HOLDINGS S.a.r.l. and others---Respondents

F.A. O. No. 17802 of 2019, decided on 28th March, 2019.

Trade Marks Ordinance (XIX of 2001)---

----S. 86---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Use of trademark---Interim injunction, sought to restrain use and advertisement of trademarks---Appellant/plaintiff assailed the dismissal of its application for grant of temporary injunction by the Presiding Officer, Intellectual Property Tribunal---Held, that the Appellant did not deny that the trade mark in question was the brand of respondents---Appellant could contest and press all its rights before the High Court where the suit filed by respondent against the present appellant was pending adjudication---Appellant had failed to make out a case for grant of temporary injunction while showing the necessary ingredients i.e. prima facie arguable case, balance of convenience and irreparable loss in its favour---No reason existed to disagree with the findings recorded by the Presiding Officer, Intellectual Property Tribunal---Appeal was dismissed.

Italfarmaco S.P.A. v. Himont Pharmaceuticals (Pvt.) Ltd. and another 2017 CLD 1382; Nawaman Ahmed v. Adjudicating Officer and 2 others 2012 CLD 1893; Messrs Shaukat Soap and Ghee Industries (Pvt.) Ltd. v. Messrs Shaukat Brothers Soap Manufacturers (Pvt.) Ltd. 2016 CLD 1036; Kamran Taj v. Muhammad Shahzad Jamil and 2 others 2015 CLD 2015; Pioneer Cement Limited through Company Secretary v. FECTO Cement Limited through Chief Executive Officer and 3 others 2013 CLD 201 and Messrs H&B General Trading Company through Director v. Messrs International Marketing Company through Proprietor and 2 others 2009 CLD 1028 ref.

Muhammad Shahzad Shaukat and Ali Mohsin Qazalbash for Appellant.

2021 C L D 120

[Lahore]

Before Shams Mehmood Mirza and Ch. Muhammad Masood Jahangir, JJ

Messrs The UNIVERSAL INSURANCE COMPANY LIMITED through Managing Director---Appellant

Versus

Messrs SHAD AND COMPANY through Chairman---Respondent

Insurance Appeal No. 238969 of 2018, heard on 17th September, 2020.

Insurance Ordinance (XXXIX of 2000)---

----Ss. 85, 118 & 124---Insurance Rules, 2002, R. 22---Total loss claim---Determination---Second survey report---Appellant company got vehicle of respondent insured which vehicle met an accident---Insurance Tribunal relied upon second report prepared by independent surveyor appointed by Securities and Exchange Commission of Pakistan (SECP) and accepted the claim of insurer---Plea raised by insurance company was that second survey was conducted after a number of years and was not reliable for ascertaining the exact loss---Validity---Such plea of insurance company was not acceptable as second report was by an independent surveyor and it carried more weight with the Court---Independent surveyor got the vehicle examined from the motor manufacturer company and according to its expert opinion the vehicle even after extensive repairs could not become road worthy---Report coupled with indisputable facts that the vehicle was carrying huge amount of diesel which was burnt led to the conclusion that it was a total loss---First report was a wrong and erroneous survey report, on which no reliance could be placed---High Court declined to interfere in findings of Insurance Tribunal and maintained the order passed in favour of insurer---Appeal was dismissed, in circumstances.

Rana Muhammad Arshad Khan for Appellant.

Khawaja Muhammad Ajmal for Respondent.

2021 C L D 130

[Lahore]

Before Ayesha A. Malik and Jawad Hassan, JJ

DECENT BUILDERS AND DEVELOPERS and others---Appellants

Versus

STANDARD CHARTERED BANK (PAKISTAN) LIMITED---Respondent

R.F.A. No. 1233 of 2013, decided on 27th June, 2019.

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 10 & 9---Leave to defend---Failure to produce statement of account---Effect---Appellants assailed the dismissal of their application for leave to appear and defend the suit and consequent judgment and decree passed by the Banking Court---Validity---Bank was under obligation to produce/annex complete and duly certified statement of account with the plaint but it had initially annexed "deposit statement" with the plaint which was not regarding the amount paid to the appellants---Bank in its rejoinder filed the "statement of account"---Filing of subsequent statement of account, which was not earlier annexed with the plaint itself suggested that leave should have been granted to the appellants as Bank had failed to satisfy its burden under S. 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, because the entries firstly relied upon did not provide sufficient data to show that the disbursement and utilization of the finance had been made by the appellants---Appeal was allowed, judgment and decree were set aside and the matter was remanded to the Banking Court for grant of leave to defend and then decide the case afresh after recording evidence of both sides.

Malik Muhammad Imran for Appellants.

2021 C L D 153

[Lahore (Multan Bench)]

Before Asim Hafeez and Muzamil Akhtar Shabir, JJ

Messrs RAFI COTTON INDUSTRIES (PVT.) LTD. through Director and others---Appellants

Versus

ALLIED BANK LTD. through Manager and others---Respondents

R.F.A. No. 36 of 2017, heard on 8th October, 2020.

Financial Institutions (Recovery of Finances) Ordinance,(XLVI of 2001)---

----Ss. 10, 9 & 22---Suit for recovery---Leave to defend, application for---Adjudication by Banking Court upon application for leave to defend---Substantial questions of law and facts---Scope---Application for leave to defend was rejected, and suit was decreed in favour of plaintiff Bank---Contention of the defendants, inter alia, was that in their application for leave to defend, they had objected to charging of markup on period when finance facility was temporarily extended and also raised issue of unauthorized debits from their account, and both such material questions were not considered by Banking Court when their leave to defend was rejected---Validity---Perusal of record revealed that temporary extensions were governed and regulated in accordance with conditions of finance facility in terms of offer letter and markup was charged accordingly, and defendants having benefited from such extension/financial accommodation, could not avoid obligations incurred under the same--- Objection regarding unauthorized debits was not supported by record and was merely an afterthought---High Court observed that no substantial questions of law and fact were raised in application for leave to defend, and therefore same was rightly rejected by Banking Court---Appeal was dismissed, in circumstances.

Muhammad Manzoor-ul-Haq for Appellants.

Muhammad Saleem Iqbal, Malik Sajjad Haider Maitla, Syed Hasan Mustafa, Rana Shehzad Khalid and Ch. Abdul Majid for Respondents.

2021 C L D 182

[Lahore]

Before Jawad Hassan, J

Messrs FAZAL CLOTH MILLS LIMITED---Petitioner

Versus

Messrs FAZAL WEAVING MILLS LIMITED---Respondent

C.O. No. 5668 of 2019, decided on 21st October, 2019.

Companies Act (XIX of 2017)---

----Ss. 279, 280, 281 & 282--- Competition (Merger Control) Regulations, 2016, Regln. 5--- Powers of Securities and Exchange Commission of Pakistan (SECP) to facilitate reconstruction or amalgamation of companies--- Transactions exempted---Scope---Petitioner sought sanction of the court to a Scheme of Arrangement and for merger/amalgamation between transferee company and transferor company---Validity---Transferor company was wholly owned subsidiary of the transferee company, therefore under the Scheme of Arrangement, the petitioners were exempt from pre-merger notification as provided under Regln. 5(1)(ii) of the Competition (Merger Control) Regulations, 2016---Secured creditors had given their NOCs to the Scheme of Merger---All the shareholders of the transferee company had unanimously approved the Scheme and there was no reason to interfere with their business decision---No impediment existed in grant and sanction of the Scheme of Merger of the transferor company into transferee company---Petition was allowed and the Scheme of Merger was sanctioned.

Dewan Salman Fiber v. DHAN Fibers Limited PLD 2001 Lah. 230 rel.

Raza Imtiaz Siddiqui and Barrister Sheharyar Kasuri for Petitioner.

Adil Bandial for SNGPL.

Hafiz Muhammad Talha, Advocate/Legal Advisor for SECP.

2021 C L D 214

[Lahore]

Before Ayesha A. Malik, Muhammad Sajid Mehmood Sethi and Shahid Jamil Khan, JJ

LPG ASSOCIATION OF PAKISTAN through Chairman---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Petroleum and Natural Resources, Islamabad and others---Respondents

W.P. No. 9518 of 2009, decided on 26th October, 2020.

Per Ayesha A. Malik, J; Shahid Jamil Khan and Muhammad Sajid Mehmood Sethi, JJ. concurring on the issues of "Appellate jurisdiction of Supreme Court" and "Validation clause in the Competition Act, 2010" but disagreeing with the findings on "Federal and Provincial competence to legislate on Competition laws" and "the nature of Competition Appellate Tribunal"

(a) Constitution of Pakistan---

----Art. 142, Pt. II, Chapt. 1 & Fourth Sched.---Federation/ Parliament---Legislative competence---Scope----Legislative competence for Parliament came from several sources; firstly the Federal Legislative List ('the FLL') of the Constitution; secondly express provisions of the Constitution; and finally on subjects which related to the Federation---Legislative competence could not be restricted to just the entries in the FLL, because the entries in the FLL were not sources of power, rather a list of subject matters on which Parliament could legislate---Federation was not absolved of its duty to enforce fundamental rights notwithstanding the 18th Amendment to the Constitution or the fact that the subject was not listed in the FLL, as enforcement of fundamental rights was the duty of the State, which included the Federal Government.

Lahore Development Authority through D.G. and others v. Ms. Imrana Tiwana and others 2015 SCMR 1739; Sindh Revenue Board through Chairman, Government of Sindh and another v. The Civil Aviation Authority of Pakistan through Airport Manager 2017 SCMR 1344; Pakistan Flour Mills Association and another v. Government of Sindh and others 2003 SCMR 162; Fiaqat Hussain and others v. Federation of Pakistan through Secretary, Planning and Development Division, Islamabad and others PLD 2012 SC 224; Government of Sindh through Secretary Health Department and others v. Dr. Nadeem Rizvi and others 2020 SCMR 1 and Sui Southern Gas Company Ltd. and others v. Federation of Pakistan and others 2018 SCMR 802 ref.

(b) Constitution of Pakistan---

----Fourth Sched.---Federal Legislative List ('the FLL")---Entries in the FLL---Interpretation---Entries in the FLL should be given the widest of meaning and should be liberally construed as the Constitution was a living document and should be interpreted with the widest possible meaning to ensure continuity and balance amongst the organs of the state---So an Entry in the FLL should be given the widest possible meaning and include all ancillary and subsidiary matters so as to give meaning to the legislative power and the fact that there may be an overlap would not preclude the Federation from having legal competence.

Pir Rashid-ud-Daula and 3 others v. The Chief Administrator of Auqaf, West Pakistan PLD 1971 SC 401; Fauji Foundation and another v. Shamimur Rehman PLD 1983 SC 457; Allah Ditta and 2 others v. The State 1997 SCMR 891; Messrs Elahi Cotton Mills Ltd and others v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and 6 others PLD 1997 SC 582 and Sui Southern Gas Company Ltd. and others v. Federation of Pakistan and others 2018 SCMR 802 ref.

(c) Competition Act (XIX of 2010)---

----Preamble---Competition Ordinance (XVI of 2010) [since repealed], Preamble---Competition Ordinance (XLVI of 2009) [since repealed], Preamble---Competition Ordinance (LII of 2007) [since repealed], Preamble---Constitution of Pakistan, Arts. 18, 141, 142, 151 & Fourth Sched. Pt. 1, Entries Nos. 3, 27, 32, 58 & 59---Federation/Parliament and Provinces---Legislative competence to enact competition laws---Scope---Competition Act, 2010, the Competition Ordinance, 2010, the Competition Ordinance, 2009, and the Competition Ordinance, 2007, vires of---[Per Ayesha A. Malik, J: On the basis of Art. 18 of the Constitution regulating competition was a constitutional command to the Federal Government---Article 18 read with Art. 151 and Entry 58 of the Federal Legislative List ('the FLL") of the Constitution gave Parliament the authority to legislate on the class of economic activities which fell under trade, commerce, industry and intercourse for the benefit of the national economy---As per the constitutional mandate, the subject of trade, commerce, industry and intercourse between Provinces was related to the Federation---Article 151(1) & (2) of the Constitution, which propounded the constitutional mandate of a national economy and a free market, was not limited to interprovincial trade and commerce as stated in Entry 27 of the Federal Legislative List ('the FLL") as its application was beyond interprovincial acts, transaction and conducts within the ambit of trade, commerce and intercourse---Competition Act, 2010 ('the 2010 Act') by its very nature was federal in character because it was not confined to any territorial limits---Purpose of the 2010 Act was federal and its enforcement was related to the Federation as the said Act was promulgated for the benefit of the national economy---Since requirement of maintaining free competition throughout the country was beyond the territorial limits of the Province, the subject matter of 'competition' fell within the federal domain---Consequently Parliament/Federation was competent to legislate on the subject of competition as the very purpose of the said subject related to the Federation since it impacted and benefited the national economy and consumers at large---Furthermore Entries 3 and 32 of the FLL, which dealt with implementing international treaties, conventions and agreements, created an obligation on the Federation to make laws on the subject of competition as Pakistan was a signatory to several international agreements on ensuring free and fair competition within its borders]---[Per Shahid Jameel Khan, J with whom Muhammad Sajid Mehmood Sethi, J concurs reaching the same conclusion but with his own reasons: Joint reading of Arts. 18 & 151(2) of the Constitution with Entries 27 and 59 of the Federal Legislative List ('the FLL'), made it clear that the Parliament/Federation had the power to legislate on competition laws---However the Constitution did not suggest, in FLL or elsewhere, that "trade and commerce" was exclusively a Federal subject---If any anticompetitive behaviour did not affect the trade and commerce of another Province, it did not come within the phrase 'interprovincial trade and commerce', as used in Entry 27 of the FLL and discernible in Art. 151 of the Constitution---Conversely, if any act or omission, causing anticompetitive behaviour, was committed within geographical boundaries of a Province, but had its effect beyond such territorial limits, it would be subject of a Federal legislation and within its executive competence---Entries 3 and 32 of Part I of the FLL which dealt with implementing treaties, agreements and conventions, could not take away legislative competence of a Provincial Assembly (to enact competition laws), unless the subject matter related to an inter provincial matter or foreign affairs---Parliament had the power to legislate for ensuring "free competition" through the Competition Act 2010 ("the 2010 Act") but only to the extent of 'Inter Provincial Trade and Commerce'---While the Provinces had legislative power to ensure free competition within their territorial limits, either through provisions in existing general laws or through special legislation]---Competition Act, 2010, the Competition Ordinance, 2010, the Competition Ordinance, 2009, and the Competition Ordinance, 2007 were not ultra vires the Constitution for want of legislative competence---Constitutional petition were allowed with relevant directions.

Per Ayesha A. Malik, J.

Article 18 of the Constitution imposed a duty on the Federation to enforce the fundamental rights and consequently required Parliament to regulate trade, commerce and industry to ensure free competition. Hence regulating competition became a matter related to the Federation which fells under Entry 58 of the Federal Legislative List ('the FLL"). This in itself was an independent source of legislative competence as the subject matter related to the Federation. On the basis of Article 18 of the Constitution regulating competition was a constitutional command to the Federal Government.

Sub-clause (1) of Article 151 of the Constitution prescribes a constitutional command that subject to clause (2), trade, commerce and intercourse throughout Pakistan shall be free. Sub-clause (2) authorized Parliament to impose restrictions on the freedom of trade, commerce or intercourse between one Province and another or within any part of Pakistan, in the public interest. This constitutional command was to Parliament because Article 151(1) required trade, commerce and intercourse throughout Pakistan to be free and Article 141 of the Constitution gave Parliament the authority to make law for the whole of Pakistan. Essentially Article 151(1) of the Constitution was a command to remove all barriers to free trade, commerce and intercourse throughout Pakistan and prevented the Provinces from creating any hurdle in the way of trade, commerce and intercourse throughout Pakistan. While Article 151 of the Constitution cast a duty on the Federal Government to ensure that trade, commerce and intercourse throughout Pakistan was free, it also prohibited legislative or executive actions by the Province which may prevent free exchange and free movement of articles of trade and commerce throughout Pakistan. Any constraints on these subjects by the Province would be in derogation to the constitutional guarantee of free trade, commerce and intercourse throughout Pakistan. The emphasis on the term 'intercourse throughout Pakistan' in Article 151(1) of the Constitution was also significant as it entailed a broad spectrum of commercial activities throughout Pakistan and not just between Provinces.

Article 151(1) and (2) of the Constitution balanced the power between the Federation and the Provinces giving the Federation control over a set of economic activities which had a direct nexus or effect on the national economy, in the public interest.

Furthermore, Article 151(1) of the Constitution declared that trade, commerce and intercourse must be free throughout Pakistan which meant that the command was not limited to any territorial boundaries, but must be effective throughout the country. Therefore, Article 151(1) and (2) of the Constitution was not limited to inter provincial trade and commerce as stated in Entry 27 of the FLL as its application was beyond inter provincial acts, transaction and conducts within the ambit of trade, commerce and intercourse.

The requirement that the specified class of economic activity be free, essentially means free from all barriers, structural and behaviour, free from any interference and restraints and includes free exchange and movement of goods, persons and things (tangible or intangible). Article 151(2) of the Constitution provides that if at all any restrictions are to be imposed on the declared freedom, it can only be by Parliament. Hence the Constitution gave Parliament the authority to restrict the freedoms declared in Article 151(1), but only in the public interest. The word 'restrictions' relates directly to the declared freedom meaning thereby that Parliament can impose limitations or prohibitions on the freedom, if required.

Where any behaviour was seen as being anti-competitive, it would be seen in the context of the relevant market, be it product or geographic. In this context the application of the Competition Act, 2010 ('the 2010 Act') was not limited to inter-provincial disputes but disputes where anti-competitive behaviour would impact the relevant market. One of the key features of competition law was market integration by protecting market structures and economic freedom. Hence the 2010 Act could not be restricted in its application to inter-provincial issues as the 2010 Act applied to the whole of Pakistan.

The 2010 Act aimed to promote free competition between undertakings and to remedy structural and behavioural problems and it advanced an economic policy aimed at protecting consumer interests. This in turn meant that the behaviour sought to be controlled and its effects were not contained in any one territory as the impact was based on the market and the market players had presence based on the market they served. Consequently, the structures and behaviour sought to be regulated had its nexus with trade, commerce, industry and intercourse throughout Pakistan. Therefore, the 2010 Act by its very nature was federal in character because it was not confined to any territorial limits since it regulated the market, which could be geographic or based on the product. The 2010 Act also ensured that trade, commerce and intercourse were free as required under Article 151(1) of the Constitution and allowed the freedom under Article 18 of the Constitution to be effectively enforced. Competition as a subject could not be effectively regulated if it was confined to territorial boundaries. Therefore the purpose of the 2010 Act was federal and its enforcement was related to the Federation as the 2010 Act was promulgated for the benefit of the national economy.

Parliament was competent to legislate on the subject of competition as the very purpose of the said subject related to the Federation since it impacted and benefited the national economy and consumers at large. Not only was this in furtherance of the fundamental right under Article 18 of the Constitution, it was also in furtherance of Article 151 of the Constitution that is to ensure that trade, commerce and intercourse throughout Pakistan was free. This mandate travelled beyond the territorial limits of the Provinces and was a specific command to the Federation. Since the requirement of maintaining free competition throughout Pakistan was beyond the territorial limits of the Province, the subject matter of 'competition' fell within the federal domain.

Entry 3 and Entry 32 of the FLL also created an obligation on the Federation to make law on the subject of competition. Entry 3 related to external affairs which included implementing treaties and agreements and Entry 32 was the subject of international treaties, conventions and agreements as well as international arbitration. Pakistan had signed several international agreements in which it had committed to ensure free and fair competition within its borders. Therefore, the Federation is obligated to fulfill its commitments under international treaties and agreements and since the subject of competition is the subject matter of international agreements and treaties, Parliament can make law on the subject of competition.

Per Shahid Jameel Khan, J.

Though Article 151(2) of the Constitution itself gave legislative power to the Parliament for imposing restriction, to regulate or ensure 'freedom of trade, commerce and intercourse throughout Pakistan', yet if it was read with Entry 27 of Part I of the Federal Legislative List ('the FLL'), the legislative power of the Parliament over 'inter-provincial trade and commerce' becames absolute. Entry 59 of Part I of the FLL and Article 18 of the Constitution, if read together, would enhance the scope of Parliament's legislative power over inter-provincial trade and commerce, for ensuring free competition. To conduct a lawful trade and business was a fundamental right guaranteed in Article 18, along with lawful profession or occupation. This right was eclipsed through "regulation of trade, commerce and industry in the interest of free competition" i.e., this fundamental right could be restricted if it was tainted with any anticompetitive behaviour under the law. Free competition was, in a way, a 'fundamental right in contrast' to safeguard the consumers and small business entities from anticompetitive behaviour, therefore, it was to be read in or along with the phrase 'trade and commerce' being ancillary or incidental, if mandate of Entry 59 was invoked. Consequently Parliament/Federation had the power to legislate on competition laws.

Entry 27 of Part 1 of the FLL empowered the Parliament to legislate over "inter-provincial trade and commerce", along with 'import and export', 'trade and commerce with foreign countries' and 'standard of quality of goods to be exported'. Similar subject was found in Article 151 of the Constitution, which ensured 'freedom of trade, commerce and intercourse throughout Pakistan', which necessarily included inter provincial trade and commerce, but did not include 'intra provincial trade and commerce' by any stretch of interpretation. The Constitution did not suggest, in FLL or elsewhere, that "trade and commerce" was exclusively a Federal subject.

Though Article 151 of the Constitution envisioned one national economy by ensuring free trade, commerce and intercourse, yet it did not obliterate existence of regional or local economies. Trade and commerce could be limited; within territory of a local government which may not necessarily affect a comparatively bigger economy. Such trade and commerce at its lowest level had to be governed and controlled by the local government, by imposing licence fee, local taxes or fine etc. Any anticompetitive behaviour within local government's limit had to be restricted by it. However, trade and commerce having regional effect, beyond territorial limits of a local government, would become a provincial subject. Any administrative object or subject, effect of which spilled over the local government's geographical limits shall be within legislative and executive authority of the Province.

Lahore Development Authority through D.G and others v. Ms. Imrana Tiwana and others 2015 SCMR 1739 ref.

If an anticompetitive behaviour did not affect the trade and commerce of another Province, it did not come within the phrase 'inter provincial trade and commerce', as used in Entry 27 of the FLL and discernible in Article 151 of the Constitution. Conversely, if any act or omission, causing anticompetitive behaviour, was committed within geographical boundaries of a Province, but had its effect beyond such territorial limits, it would be subject of a Federal legislation and within its executive competence.

Sui Southern Gas Company Ltd. and others v. Federation of Pakistan and others 2018 SCMR 802 ref.

Entries 3 and 32 of Part I of the FLL which dealt with implementing treaties, agreements and conventions, could not be used to take away legislative competence of a Provincial Assembly, unless the subject matter related to an interprovincial matter or foreign affairs. For legislation on competition law in the light of an international treaty, distribution of legislative powers between the Federation and Provinces could not be compromised.

Parliament had the power to legislate for ensuring "free competition" through the Competition Act 2010 ("the 2010 Act") but only to the extent of 'Inter Provincial Trade and Commerce' [Entry 27 of Part I of the FLL]. Any anticompetitive behaviour, within the territory of the country, affecting national trade and commerce beyond territorial limits of a Province, shall be cognizable by the Competition Commission of Pakistan under provisions of the 2010 Act. Provinces had legislative power to ensure free competition within the territorial limits of the Province, either through provisions in existing general laws or through a special legislation. If such law was enacted or existed, the executive authority shall not be exercised by a Province on a matter, cognizance of which was taken by the Competition Commission under the 2010 Act and if cognizance was taken by both, Provincial and Federal authorities, the proceedings initiated by Federal authorities shall prevail, unless it was established that the anticompetitive behaviour did not have the spillover effect. High Court directed that every notice under the 2010 Act should contain the reasons disclosing that effect of the anticompetitive behaviour was spilling over territorial limits of respective Province, and that for the notices that were already issued, and were under challenge, the proceedings shall continue, however, the issue of jurisdiction shall be decided at first instance.

The Competition Act, 2010, the Competition Ordinance, 2010, the Competition Ordinance, 2009, and the Competition Ordinance, 2007 were not ultra vires the Constitution for want of legislative competence.

Per Ayesha A. Malik, J.

(d) Constitution of Pakistan---

----Fourth Sched.---Federal Legislative List ('the FLL")---While interpreting the Constitution, its application and meaning could not be limited on account of an Entry in the FLL. I

(e) Competition Act (XIX of 2010)---

----Ss. 11, 12, 28, 29, 31, 38, 41 & Chapt. II---Constitution of Pakistan, Art. 175---Competition Commission of Pakistan ('the Commission')---Whether the Commission and its Appellate Bench performed judicial functions and were a court in terms of Art. 175 of the Constitution---[Per Ayesha A. Malik, J; Shahid Jameel Khan and Muhammad Sajid Mehmood Sethi, JJ. agreeing (Majority view): Commission was a regulatory authority, with a regulatory objective and its purpose was not to exercise judicial power---Commission did not perform judicial functions akin to a 'court'; it was a regulatory authority with administrative functions which included giving advice, creating awareness, impart training, review of policy frameworks to foster competition as well as decision making to enforce the regulatory policy---While exercising its functions under the 2010 Act the Commission did discharge quasi-judicial functions with the sole objective to regulate anti-competitive behavior, but it was not a 'court' under Art. 175 of the Constitution]---[Per Shahid Jameel Khan, J (Majority view): Commission and its Appellate Bench performed administrative functions, therefore, they were not covered under Art. 175(3) of the Constitution]

Per Ayesha A. Malik, J.

Purpose of the Competition Commission of Pakistan ('the Commission')was to ensure that fair competition was maintained by regulating the prohibitions set out in Chapter-II of the Competition Act, 2010 ('the 2010 Act'). Therefore, the 2010 Act had a regulatory objective, to promote free competition and prevent anti-competitive behaviour and prescribe enforcement mechanisms to ensure compliance. The Commission's legal framework was such that it involved some decision making process when behaviour became anti-competitive, that is behaviour was against the provisions of the 2010 Act. Therefore, the Commission was a regulatory authority, with a regulatory objective and its purpose was not to exercise judicial power.

Nature of the orders which the Commission could issue under section 31 of the 2010 Act established that its scope was limited to being preventive and restorative. The Commission sought compliance of the prohibitions and where there was a violation, it sought to restore competition and ensure that the prohibited behaviour was not repeated. Even for mergers the Commission was concerned with the effect of the merger on competition as to whether it would lessen competition by creating or strengthening a dominant position in the relevant market. This showed that the nature of the orders were not judicial per se rather it involved a more technical understanding of the market, economics, commerce and finance, amongst others. By its very nature the Commission did not perform judicial functions akin to a 'court'. It was a regulatory authority with administrative functions which included giving advice, creating awareness, impart training, review of policy frameworks to foster competition as well as decision making to enforce the regulatory policy.

The Commission was not established as part of the judicial hierarchy of courts nor were its function to exercise judicial power. It was established to carry out the administrative function of the executive to ensure economic efficiency and promote consumer welfare and in doing so it discharged quasi-judicial functions with the sole objective to regulate anti-competitive behaviour. Although the process followed by the Commission while hearing cases must follow due process, they were not bound by the formal laws of evidence and procedure. Furthermore, the members of the Commission were not necessarily trained in law, as they required expertise in economic, commerce, finance and industry. The Commission was established under the 2010 Act, with the intent to ensure free competition and economic efficiency, so the function of hearing and deciding issues only occurred where the prohibitions had been violated, that to with the intent to restore competition in the relevant market. Hence while exercising its functions under the 2010 Act the Commission was not a 'court' under Article 175 of the Constitution.

Sh. Riaz-ul-Haq and another v. Federation of Pakistan through Ministry of Law and others PLD 2013 SC 501 ref.

Per Shahid Jameel Khan, J.

Competition Commission of Pakistan ('the Commission') and Appellate Bench of the Commission performed administrative functions, therefore, they were not covered under Article 175(3) of the Constitution.

Per Ayesha A. Malik, J.

(f) Competition Act (XIX of 2010)---

----Ss. 43 & 44---Constitution of Pakistan, Arts. 18, 142, 175(2), 184(3), 185, 212 & Fourth Sched. Pt. I, Entry No. 55---Competition Appellate Tribunal ('the Tribunal')---Function and scope---Appeal against order of Tribunal to be filed directly before the Supreme Court---Constitutionality---Sections 43 & 44 of the Competition Act, 2010, vires of---Whether the Tribunal performed judicial functions and was a court or tribunal in terms of Art. 175 or 212 of the Constitution---[Per Ayesha A. Malik, J (Minority view) Competition Appellate Tribunal ('the Tribunal') exercised quasi-judicial functions but it was neither a 'court' as contemplated under Art. 175 of the Constitution nor a tribunal as provided under Art. 212 of the Constitution---Subject of enlargement of jurisdiction of the Supreme Court under the Federal Legislative List ('the FLL'), was a subject which exclusively fell within Parliament's domain, so Parliament could confer jurisdiction on the Supreme Court, by law, if the Constitution permitted it---If Parliament could make a law on the subject of competition to regulate trade, commerce and industry, it could also confer appellate jurisdiction on the Supreme Court on the said subject---Joint reading of Arts. 175(2) & 184(3) of the Constitution with Entry 55 of Part I of the FLL, showed that Ss. 43 & 44 of the 2010 Act were not ultra vires the Constitution---Federal Government should take all necessary steps to issue the required rules as per S. 43(3) of the 2010 Act with respect to the terms and conditions of service of the members of Tribunal]---[Per Shahid Jameel Khan, J; Muhammad Sajid Mehmood Sethi, J agreeing (Majority view): Jurisdiction of Competition Appellate Tribunal ('the Tribunal') was to determine disputes relating to rights and liabilities, recognized by the Constitution and law, by discovering the relevant facts in light of the evidence produced by the parties in their presence, therefore, it was a judicial tribunal, and its separation and independence from the Executive was mandatory under the constitutional command---Provisions of S. 43 of the Competition Act, 2010, to the extent of appointment of Chairperson, Members and financial control by the Executive, were ultra vires the Constitution.

Per Ayesha A. Malik, J (Minority view)

As the nature of the orders passed by the Competition Commission of Pakistan were preventive and corrective, aimed at restoring competition, the nature of the order remained the same in the appellate process. Consequently, the Competition Appellate Tribunal ('the Tribunal') was not a 'court' established under the law as contemplated under Article 175 of the Constitution.

Article 212 of the Constitution established administrative courts or tribunals to exercise jurisdiction in respect of matters enumerated under the said Article. The Competition Appellate Tribunal ('the Tribunal') was not an Administrative Tribunal as contemplated under Article 212 of the Constitution as it did not decide upon any of the stated matters in the said Article. Hence it did not fall under the mandate of Article 212 of the Constitution.

Army Welfare Trust (Nizampur Cement Project), Rawalpindi and another v. Collector of Sales Tax (Now Commissioner Inland Revenue), Peshawar 2017 SCMR 9 ref.

The Competition Appellate Tribunal ('the Tribunal') was established under the 2010 Act in furtherance of the regulatory objective. As it was a specialized area of law which called for corrective and restorative action, the appellate forum i.e. the Tribunal heard appeals in the same context as the Commission, meaning thereby that it too exercised quasi-judicial functions.

When Articles 175(2) and 142 of the Constitution were read with Entry 55 of the First Part of the Federal Legislative List ('the FLL'), it was clear that the Parliament was competent to make law enlarging the jurisdiction of the Supreme Court and conferring supplemental powers, where it was provided by or under the Constitution meaning that the constitutional jurisdiction of the Supreme Court could not be taken away but where the Constitution authorized Parliament on jurisdiction it could be enlarged. Subject of enlargement of jurisdiction of the Supreme Court under the FLL was a subject which exclusively fell within Parliament's domain, so Parliament could confer jurisdiction on the Supreme Court, by law, if the Constitution permitted it.

The Province of Punjab and another v. National Industrial Cooperative Credit Corporation and another 2000 SCMR 567 ref.

Where the Constitution declared Parliament competent to make law which regulated jurisdiction, Parliament could confer jurisdiction on the Supreme Court through a law as per Entry 55 of the FLL.

Parliament was competent to make law to regulate trade, commerce or industry in the interest of free competition under Article 18 of the Constitution. The power to regulate the fundamental rights included the jurisdiction of the court because the Supreme Court had jurisdiction to ensure the enforcement of fundamental rights in the public interest under Article 184(3) of the Constitution. So, if Parliament could make a law on the subject of competition to regulate trade, commerce and industry, it could confer appellate jurisdiction on the Supreme Court, as the Supreme Court was already vested with the jurisdiction to enforce any of the fundamental rights mentioned in the Constitution.

Baz Muhammad Kakar and others v. Federation of Pakistan through Ministry of Law and Justice and others PLD 2012 SC 923 ref.

Hence based on a joint reading of Articles 175(2) and 184(3) of the Constitution with Entry 55 of Part I of the FLL, sections 43 and 44 of the 2010 Act were not ultra vires the Constitution.

Her Ladyship directed that in terms of section 43(3) of the 2010 Act, the Federal Government was required to make rules with respect to the terms and conditions of service of the members of Tribunal, which rules had still not been made; that in order to ensure that the process of consultation with the Chief Justice of the Supreme Court was undertaken before appointing the Chairperson and Members of the Tribunal and that the terms and conditions were provided for, the Federal Government shall take all necessary steps to issue the required rules as per section 43(3) of the 2010 Act within six months which should provide for consultation with the Chief Justice of the Supreme Court in the appointment of the judicial members of Tribunal and should require the selection process of the technical members to be done through a selection committee.

Per Shahid Jameel Khan, J (Majority view)

Any tribunal, performing judicial functions had to be independent and separated from the influence of Executive. Control of the Competition Appellate Tribunal ('the Tribunal') i.e., appointments of its Chairperson and members and their financial dependency laid with the Executive (Ministry of Law) and not the authorities under the statute i.e the Competition Act, 2010. Said Tribunal was a judicial tribunal hence it had to be separated from Executive influence. Tribunal's jurisdiction was to determine disputes relating to rights and liabilities, recognized by the Constitution and law, by discovering the relevant facts in light of the evidence produced by the parties in their presence, therefore, it was a judicial tribunal, and its separation and independence from the Executive was mandatory under the constitutional command. High Court declared the provisions of section 43 of the Competition Act, 2010, to the extent of appointment of Chairperson, Members and financial control by the Executive, as ultra vires the Constitution and directed that if the relevant directions contained in the case of Sh. Riaz-ul-Haq and another v. Federation of Pakistan through Ministry of Law and others (PLD 2013 SC 501) were not complied with in 60 days from the date of present judgment, the Tribunal shall cease to have effect along with Executive actions thereunder.

Sh. Riaz-ul-Haq and another v. Federation of Pakistan through Ministry of Law and others PLD 2013 SC 501 ref.

Per Ayesha A. Malik, J

(g) Constitution of Pakistan---

----Arts. 175 & 212---Courts and Tribunals----Judicial and quasi-judicial functions---Scope---Forum was a 'court' under Art. 175 of the Constitution if it had been established as part of the judicial hierarchy, to adjudicate upon disputes as per the law---However there could be other forums which exercised quasi-judicial functions, which were not 'courts' under Art. 175 of the Constitution and were not tribunals under Art. 212 of the Constitution but may perform functions similar to judicial functions---Specifically a regulatory authority, created under a statute, to carry out its objectives could exercise quasi-judicial functions---In such regard, the ultimate authority was with Parliament which could establish a regulatory authority to achieve its administrative objectives.

Dr. Zahid Javed v. Dr. Tahir Riaz Chaudhary and others PLD 2016 SC 637 and Shafaatullah Qureshi v. Federation of Pakistan PLD 2001 SC 142 ref.

(h) Constitution of Pakistan---

----Arts. 175, 212, 225 & Fourth Sched., Pt. I, Entry No. 14---Administrative courts and tribunals established by Parliament under Entry 14 of Part I of the Federal Legislative List ('the FLL')---Scope---[Per Ayesha A. Malik, J; Shahid Jameel Khan and Muhammad Sajid Mehmood Sethi, JJ. agreeing (Majority view): Establishment of administrative courts and tribunals for federal subjects was provided for in Entry 14 of Part I of the FLL of the Constitution which authorized Parliament to establish administrative courts and tribunals in relation to federal subjects---Tribunals established pursuant to Entry 14 of Part I of the FLL were distinct from 'courts' under Art. 175 of the Constitution---Consequently administrative tribunals could be established for any other purpose other than Art. 212 of the Constitution---[Per Shahid Jameel Khan, J (Majority view): Legislature had the authority to establish Administrative Courts and Tribunals for federal subjects [Entry 14 of the FLL], other than tribunals under Arts. 212 & 225 of the Constitution.

(i) Competition Act (XIX of 2010)---

----Ss. 61 & 62---Competition Ordinance (XVI of 2010) [since repealed], Ss. 1(3), 59 & 60---Competition Ordinance (XLVI of 2009) [since repealed], Preamble---Competition Ordinance (LII of 2007) [since repealed], S. 59---Constitution of Pakistan---Time gaps between the promulgation of Competition Ordinances of 2007, 2009 and 2010 and the Competition Act, 2010 without any savings or continuance or revival clause---Whether S. 62 of the Competition Act, 2010 ('the 2010 Act') which was a validation clause effectively covered the time gaps or saved the proceedings under the Competition Ordinances of 2007, 2009 and 2010---[Per Ayesha A. Malik, J; Shahid Jamil Khan and Muhammad Sajid Mehmood Sethi, JJ agreeing (Majority view): Continuity remained with the repeated promulgation of the Competition Ordinances of 2007, 2009 and 2010, but there was a gap of 50 days between the lapse of Competition Ordinance, 2010 ('the 2010 Ordinance') and the promulgation of the Competition Act, 2010 ('the 2010 Act')---However validation section of the 2010 Act was S. 62 which deemed to validate everything from 02.10.2007, which was the date of promulgation of the Competition Ordinance, 2007---Section 62 supported the intent of Parliament by deeming everything to be validly done as of 2.10.2007 and by declaring that the 2010 Act shall have, and shall be deemed always to have had effect accordingly---Legislature by way of a deeming provision had declared that actions, proceedings orders etc. which were not saved due to the defect caused by the gaps and lack of a saving clause, would deem to exist by way of legal fiction.

The Competition Ordinance, 2007 ('the 2007 Ordinance') was promulgated on 2.10.2007 and lapsed on 02.02.2008. However, in terms of the judgment reported as Sindh High Court Bar Association through Secretary and another v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others (PLD 2009 SC 879) ("Sindh High Court Bar Case"), the time was extended with effect from 31.07.2009 for 120 days, until 30.11.2009. The 2007 Ordinance was initially covered under the Provisional Constitution Order 2007 as a saved Ordinance and the judgment in Tika Iqbal Muhammad Khan v. General Pervez Musharaf and others (PLD 2008 SC 178) and then the 'Sindh High Court Bar Case'. The 'Sindh High Court Bar Case' extended the time to place the 2007 Ordinance before Parliament and gave legal cover for the extended period. The 2007 Ordinance was not placed before Parliament, rather was re-promulgated as the Competition Ordinance, 2009 ('the 2009 Ordinance') on 26.11.2009. The 2009 Ordinance was made applicable with effect from 02.10.2007, hence covered the gap period including the period covered under the 'Sindh High Court Bar Case' with retrospective effect. This meant that proceedings, orders and actions under the 2007 Ordinance continued under the 2009 Ordinance till its lapse on 25.03.2010. The Competition Ordinance, 2010 ('the 2010 Ordinance') was promulgated on 20.04.2010 and lapsed on 18.08.2010. As per the Repeals and Savings section of all three Ordinances of 2007, 2009 and 2010, all suits and other legal proceedings instituted by or against the Monopoly Control Authority before the commencement of the Ordinances were deemed to be suits and proceedings by or against the Competition Commission of Pakistan ('the Commission'), as the case may be, and may proceed and be dealt with accordingly. Section 60 of the 2010 Ordinance validated all actions taken, orders passed and proceedings initiated on or after 02.10.2007 and section 1(3) of the 2010 Ordinance provided that it shall be deemed to take effect from 26.03.2010. Hence section 1(3) of the 2010 Ordinance gave retrospective effect to the 2010 Ordinance from the date of lapse of the 2009 Ordinance. The gap period was therefore covered by the deeming provision of section 1(3) of the 2010 Ordinance. Hence the claim of continuity remained with the repeated promulgation of the 2007, 2009 and 2010 Ordinances.

The Competition Act, 2010 ('the 2010 Act') was promulgated on 06.10.2010 and came into force at once. The 2010 Ordinance lapsed on 18.08.2010, hence there was a gap of 50 days between the lapse of 2010 Ordinance and the promulgation of the 2010 Act. There was no savings section or continuation of earlier proceedings, actions and orders under the Repeals and Savings Section of the 2010 Act. The validation section of the 2010 Act was section 62 which deemed to validate everything from 02.10.2007, which was the date of promulgation of the 2007 Ordinance.

Section 62 of the 2010 Act gave the clear intent of Parliament to give continuity and permanence to the actions, proceedings and orders, amongst others of the Commission under the 2007, 2009 and 2010 Ordinances which suggested that the intent was there to give continuity to the exercise of power by the Commission. Section 62 supported the intent of Parliament by deeming everything to be validly done as of 02.10.2007 and by declaring that the 2010 Act shall have, and shall be deemed always to have had effect accordingly. So the legislature by way of a deeming provision had declared that actions, proceedings, orders, show cause notices etc. which were not saved due to the defect caused by the gaps and lack of a saving clause, would deem to exist by way of legal fiction.

Federation of Pakistan and others v. M. Nawaz Khokhar and others PLD 2000 SC 26; Mehreen Zaibun Nisa v. Land Commissioner, Multan PLD 1975 SC 397; East End Dwelling Company Ltd. v. Finsbury Borough Council (1952) AC 109; Begum B.H. Syed v. Mst. Afzal Jahan Begum and another PLD 1970 SC 29; Molasses Trading and Export (Pvt.) Limited v. Federation of Pakistan and others 1993 SCMR 1905; Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602; Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others PLD 2009 SC 644; All Pakistan Newspapers Society and others v. Federation of Pakistan and others PLD 2012 SC 1; The Central Bank of India and others v. Their Workmen and others AIR 1960 SC 12; M. Venugopal v. Divisional Manager, Life Insurance Corporation of India, Machilipatnam, A.P. and another 1994 2 SCC 323; Commissioner of Income-Tax, Bombay Presidency v. Bombay Trust Corporation, Ltd AIR 1930 PC 54; Consolidated Coffee Ltd and another v. Coffee Board Bangalore (1980) 3 SCC 358 and State of Maharashtra v. Laljit Rajshi Shah (2000) 2 SCC 699 ref.

(j) Interpretation of statutes---

----Statute, vires of---Maxim "ut res magis valeat quam pereat"---Meaning and scope---While looking at the vires of a statute all effort must be made to protect the statute and preserve the intent of the legislature---Statute always had a presumption of its constitutionality and a more liberal interpretation could be given in order to uphold the vires of the statute---Statute must be construed to preserve its intent, "ut res magis quam pereat"---Said legal maxim required courts to make legislation operative, given reasonable intendment and construction---Meaning of said maxim that a deed should never be avoided where the words may be applied to make it good, required that every effort be made by the court to find a meaning capable of interpretation to uphold the vires of the law because it was better for a law to have effect than be void---Said maxim was a rule of construction which required the Court to give effect to the law and not destroy it, so if two constructions were possible, the court should always adopt that construction which would uphold the law and not the one which would render the law a nullity.

Sardar Farooq Ahmad Khan Leghari and others v. Federation of Pakistan and others PLD 1999 SC 57 and Lahore Development Authority through D.G and others v. Ms. Imrana Tiwana and others 2015 SCMR 1739 ref.

Per Shahid Jamil Khan, J; Muhammad Sajid Mehmood Sethi, J agreeing [Majority view]

(k) Constitution of Pakistan---

----Arts. 7, 141, Pt. II, Chapt. 1 & Fourth Sched.---Federation/ Parliament---Legislative competence---Scope---Federation could always legislate for enforcement of constitutionally recognized Fundamental Rights, even in absence of any Entry in the Federal Legislative List ('the FLL') or competence in the Constitution, if Province lacked competence to enforce it due to geographical limit on its legislative power---Such interpretation was in conformity with basic rule of legislative competence under Art. 141 of the Constitution---Where other components of State [as provided under Art. 7 of the Constitution] lacked legislative competence, the Federation had legislative power to enforce fundamental rights.

Uzair Karamat Bhandari, Mian Muhammad Kashif, Imran Iqbal, Ali Sibtain Fazli, Hasham Ahmad Khan, Abad ur Rehman, Eisa Jalil, Salman Akram Raja, Tariq Bashir, Arslan Riaz, Imtiaz Rashid Siddiqui, Shehryar Kasuri, Jamshaid Alam, Raza Imtiaz Siddiqui, Ijaz Ahmad Awan, Shahzad Ahmad Cheema, Barrister Muhammad Umer Riaz, Muhammad Waqas Umar, Barrister Ahmed Pervaiz, Javed Ahmed Tarar, Syed Hassan Ali Raza, Asad Javed, Sikandar Abbas Jajja, Omer Tariq Gill, Abad ur Rehman, Mansoor Usman Awan, Mohsin Mumtaz, Ms. Shazeen Abdullah, Mohammad Azhar Siddique, Mian Shabir Ismail, Mian Asghar Ali, Ms. Salma Riaz, Muhammad Raza Qureshi, Asad Hussain, Qadeer Ahmad Kalyar, Zaki ur Rehman, Zaheer A. Cheema, Muhammad Jawwad Khan Lodhi, Asad Raza, Muhammad Yasin Hatif, Ms. Seemab Aslam, Raja Muhammad Bashir, Sardar Shahbaz Ali Khan Khosa, Rai Mudassir Iqbal, Sikandar Bashir Mahmand, Afnan Karim Kundi, Tariq Kamal Qazi, Ali Raza Kabir, Fahad Malik, Mujtaba Jamal, Mian Hamid Ullah Khan, Syed Shahid Hussain, Haseeb Zafar, Muhammad Haroon Mumtaz, Ghulam Mujtaba, Ahmad Raza, Asad Ahmad Ghani, Asad Abbas Butt and Muhammad Azam Jan Leghari for Petitioner.

Barrister Khalid Jawed Khan, Attorney General for Pakistan, assisted by Ms. Amber Lakhani, Ch. Ishtiaq Ahmad Khan, Additional Attorney General for Pakistan, Asad Ali Bajwa, DAG, Ms. Ambreen Moeen, DAG, Azmat Hayat Khan Lodhi, Assistant AGP, Monim Sultan, Assistant AGP, Ms. Zarish Fatima, Assistant AGP and Zahid Sikandar, Assistant AGP for the Federation.

Akhtar Javed, Additional Advocate General, Punjab for the Province of Punjab.

Azid Nafees, Barrister Waqqas Ahmad Mir, Muqtedir Akhtar Shabir; Dr. Azeem Raja, Muhammad Ahmad Qayyum, Rizwan Mushtaq, Ashfaq Qayyum Cheema; Morris Nadeem, Salman Mansoor, Ahmad Hassan Anwari, Babur Suhail, Imran Muhammad Sarwar, Ahmed Hassan Khan, Mehr Muhammad Iqbal; Imran Khan Klair, Nasir Mahmood Qureshi, Amjed Hameed Ghauri, Sultan Qamar Afzal Ms. Shaista Bano, Chairperson, CCP, Ms. Bushra Naz Malik, Member CCP and Noman Amir Farooqi, Legal Advisor for Respondent CCP for the Competition Commission of Pakistan.

Mrs. Samia Khalid, Haroon Duggal and Muhammad Akram Khawaja for OGRA.

Asim Akram Khan for PTA.

Aurangzeb Mirza for GEPCO.

Hasan Irfan Khan and Ms. Khadija Yasmin Bokhari for Applicant (in C.Ms. Nos.7339 and 3/2015 in W.P. No.24863/2015).

2021 C L D 340

[Lahore]

Before Ayesha A. Malik, J

The BANK OF KHYBER through Authorized Attorneys---Petitioner

Versus

MUNICIPAL CORPORATION GUJRAT through Mayor Nasir Mehmood and 2 others---Respondents

Writ Petition No. 129536 of 2018 along with connected petitions, heard on 17th November, 2020.

(a) Companies Act (XIX of 2017)---

----S. 22---Punjab Local Government Act (XIII of 2019), S. 156---Punjab Local Government Act (XVIII of 2013), Ss. 115 & 87---Local Government Taxes, Fees, Rates and Tolls---Authority of a local government to levy taxes etc.---Statutory requirement of publication of name by a company by way of conspicuous display outside every place of business of such company---Levy of local government taxes/fee(s) on such display/ signage---Scope---Question before High Court was whether Provincial Local Government could levy fee on petitioner Banking Companies for display of signboards at their places of business, when such display was made in compliance of requirement of S. 22 of Companies Act, 2017 read with applicable State Bank of Pakistan Circulars---Held, that petitioner Banks and other corporate entities were required under Federal Law to affix their signboards on their premises, regardless of whether such premises were in their ownership or rented, and thus they should be exempt from any fee to such extent, as Provincial Law could not override provisions of Federal Law---High Court held that any fee that was charged by Provincial Local Government under S.156 of Punjab Local Government Act, 2019 would be cognizant of provisions of Federal Statutes requiring Banks and corporate entities to install signboards outside their premises as per the Companies Act, 2017 and State Bank of Pakistan Circulars---Constitutional petitions were allowed, accordingly.

Bank Alfalah Limited v. Messrs Callmate Telips Telecom Ltd. and 5 others 2016 CLD 1202 ref.

Soneri Bank Limited v. Province of Punjab and others PLJ 2020 Lah. 239 rel.

(b) Cantonments Act (II of 1924)---

----Ss. 200 & 282--- Cantonment Board, powers of--- Power of Cantonment Board to make bye-laws---Levy of advertisement fee by Cantonment Board in respect of display/signage outside business premises--- Scope--- Petitioners impugned bye-laws issued by Cantonment Board regarding pasting of billboards and advertisements and levy of advertisement fee on petitioners' display outside their premises, on ground that under Cantonments Act, 1924, no such power was available to Cantonment Board---Validity---Power to make byelaws under S.282 of Cantonments Act, 1924 was subject to provisions of said Act, and such power was dependent upon statutory power given to Cantonment Board--- Section 200 of Cantonments Act, 1924 authorized Cantonment Board to levy fee in a limited manner, and Cantonment Board could not enlarge scope of said section to include fee on advertisements---Cantonment Board therefore had no authority to levy fee in relation to boards installed by petitioners at their offices/premises--- Constitutional petition was allowed, accordingly.

Hyderabad Cantonment Board v. Raj Kumar and others 2015 SCMR 1385; Allied Bank Limited v. Province of Punjab and others (I.C.A. No.62 of 2015); Habib Bank Limited Islamabad v. Federation of Pakistan through Secretary Ministry of Defence, Islamabad and others (Civil Appeal No.796 of 2015) and Messrs Haidri Beverages (Pvt.) Ltd. v. City District Government, Rawalpindi through D.C.O. and others (I.C.A. No.50 of 2015) rel.

(c) Companies Act (XIX of 2017)---

----S.22---Statutory requirement of publication of name by a company by way of conspicuous display outside every place of business of a company/corporate entity---Levy of Local Government, Housing Authorities, Parks and Horticulture Authority, National Highway Authority charges/fee(s) on such display/signage---Scope---Banks and corporate entities were entitled to install signboard/signage in compliance with Companies Act, 2017 and State Bank of Pakistan Policy without charge of fee subject to any rules or regulations on size and shape; provided same did not contain any advertisement material.

Malik Muhammad Umar Awan, Raza Imtiaz Siddiqui, Jamshed Alam, Qadeer Kalyar, Syed Ali Zafar, Mubashir Aslam Zar, Muhammad Asif Ismail, Mansoor Usman Awan, Ms. Shazeen Abdullah, Mohsin Mumtaz, Ali Sibtain Fazli, Hasham Ahmad Khan, Abad ur Rehman, Esa Jalil, Mustafa Ramday, Khalid Ishaq; Syeda Fatima Tanveer, Ashar Elahi, Adnan Kazmi, Chaudhary Muhammad Arshad, Usman Nawaz, Zafar Iqbal Kalanauri, Waseem Ahmad Malik, Muhammad Asif Butt, Sheikh Anwaar ul Haq, Hafiz Muhammad Kalim Ullah, Faizan Munir Joyia, Ahmad Kamal Khan, Salman Akram Raja, Malik Ahsan, Ms. Atira Akram, Arslan Riaz, Zeeshan Nadeem, Adil Aftab Kashmiri, Bilal Kashmiri, Kashif Hussain, Shahzad Ahmad Cheema, Asif ur Rehman, Abdul Hameed Chohan, Chaudhary Sohail Khurshid, A.W. Butt, Imran Mushtaq, Abid Hussain, Dr. Zia Ullah Ranjha, Chaudhary Muhammad Shakeel, Afrasiab Mohal, Muhammad Adeel Chaudhary, Muhammad Azam Zia, Yasir Islam Chaudhary, Imran Aziz Khan, Ch. Abdul Rab, Umer Abdullah, Kashif Ali Chaudhary, Ms. Shazia Ashraf Khan, Faisal Hanif, Faizan ul Haq Dar, Syed Sajid Ali Bukhari, Abdul Latif, Tahir Farooq, Arslan Munir Joiya, Waqar A. Khan, Imran Mustafa, Hafiz Mudassar Hassan Kamran and Mian Asghar Ali for Petitioners.

Ms. Ambreen Moeen, Deputy Attorney General for Pakistan along with Azmat Hayat Khan Lodhi, Assistant Attorney General for Pakistan for the Federation of Pakistan.

Waqar Saeed Khan, Assistant Advocate General, Punjab for the Province of Punjab.

Khalid Jamil, Muhammad Rafique Chaudhry, Sardar Naeem Akbar Khan, Chaudhary Asif Shahzad Sahi, Barrister Chaudhary Saeed H. Nangra, Zafar Iqbal Bhatti and Ms. Samra Malik for Local Government and Community Development Department (Municipal Corporations).

Barrister Muhammad Umer Riaz, Haroon Rashid, Waqas Umer Sial, Barrister Bushra Saqib, Sardar Balakh Sher Khan Khosa, Naveed Akhtar Chaudhary, Rana Nasr Ullah Khan, Muhammad Imran Haider Bhatti, Muhammad Ali Sherazi, Mian Haseeb ul Hassan, Salman Ahmad, Mrs. Samia Khalid, Zarak Zaman Khan, Sheikh Nadeem Arshad, Muhammad Anwar Chaudhary, Chaudhary Muhammad Atiq, Chaudhary Muhammad Umar, Mufi Ahtesham Uddin Haider, Malik Khurram Shahzad, Zulqarnain Hammad and Muhammad Arif Thothaal for Cantonment Boards.

Waqar A. Sheikh, Ms. Humaira Afzal, Faisal G. Miran, Abdur Rauf Sindhu, Rana Muhammad Afzal Razzaq Khan, Sardar M.S. Tahir, Mian Abdul Qadoos, Rao Aurangzeb Rashid and Muhammad Rafiq Shah for Parks and Horticulture Authority.

Malik Muhammad Jhenagir Aslam for National Highway Authority.

Altaf ur Rehman Khan and Ishfaq Amir Hussain for Defence Housing Authority.

Mubeen Uddin Qazi, Advocate for private Respondent No.5 (in W.P. No. 222831 of 2018).

Muhammad Khalid Chaudhary, Advocate for private Respondent No.9 (in W.P. No. 203795 of 2018).

2021 C L D 361

[Lahore (Multan Bench)]

Before Shams Mehmood Mirza and Shahid Karim, JJ

MCB BANK LIMITED through Manager---Appellant

Versus

SHARIF CORPORATION, MULTAN through Partners and 3 others---Respondents

R.F.A. No. 159 of 2014, decided on 13th September, 2018.\

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 9, 7 & 22---Procedure of Banking Court---Suit for recovery---Decree of Banking Court---Computation of decretal amount---Plaintiff Bank impugned order and decree of Banking Court on the ground that "reversal entries" in statement of account had been treated as payments made by defendants, thereby suit was decreed for lesser amount than sought by plaintiff Bank---Validity---Record showed that after expiry of finance facility, defendants had continued making deposits from time to time and same was reflected in statement of account, and after adjusting the same, Banking Court had rightly arrived at correct decretal amount, to which no exception could be taken---Appeal was dismissed, in circumstances.

Mian Khurram Hashmi for Appellant.

2021 C L D 383

[Lahore]

Before Muhammad Qasim Khan, J

NAUMAN ALMAS---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 1869-B of 2019, decided on 12th March, 2019.

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 7 & 20---Criminal Procedure Code (V of 1898), S. 498---Penal Code (XLV of 1860), S. 380---Theft in dwelling house---Pre-arrest bail, grant of---Jurisdiction of Banking Court---Scope---Complainant, a company deputed by Bank to safeguard pledged stock, got lodged an FIR against the accused under S. 380, P.P.C., for stealing the stock pledged with the Bank---Validity---Provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001 had an overriding effect on anything inconsistent contained in any other law for the time being in force, including Cr.P.C. read with P.P.C., and whenever an offence was committed by a customer, it could only be tried by the Banking Court constituted thereunder and no other forum or the ordinary criminal court had jurisdiction in the matter---Action of filing a complaint and getting registered a criminal case against the accused despite availability of remedy before the Banking Court was a clear indicator of mala fide on the part of prosecution---Petition for grant of pre-arrest bail was allowed.

Muhammad Asif Nawaz v. ASJ and others 2014 PCr.LJ 1 = 2014 CLD 45 ref.

Syed Mushahid Shah and others v. Federal Investigation Agency and others 2017 SCMR 1218 and Alamdar Hussain v. National Accountability Bureau through Chairman and others 2017 CLD 1101 rel.

Shahid Ikram Siddiqui for Petitioner.

Ms. Saba Saeed Sheikh for the Complainant.

2021 C L D 396

[Lahore]

Before Atir Mahmood, J

SHAHZAD RAFIQUE----Appellant

Versus

NAJAF IQBAL----Respondent

R.F.A. No.209 of 2010, heard on 5th March, 2020.

(a) Negotiable Instruments Act (XXVI of 1881)---

----S. 118---Qanun-e-Shahadat (10 of 1984), Art. 84---Civil Procedure Code (V of 1908), O. XXXVII, Rr. 1 & 2---Recovery of money---"Negotiable instrument"---Presumption---Signature, comparison of---Plaintiff sought recovery of money on the basis of Bank cheque which was dishonoured on presentation due to insufficient funds but the suit was dismissed by Trial Court---Validity---Material contradictions existed between the stance taken by defendant in his evidence as well as in written statement---Evidence of defendant was so contradictory and sketchy that the same could not be used for declaring stance of defendant as correct---Defendant denied his signatures on the cheque however he did not make effort for its comparison which was necessary in order to ascertain actual position---Defendant was supposed to file application for comparison of signature, if he deemed that such stance was correct---Even Trial Court also did not make any effort in such regard as Trial Court had exclusive jurisdiction to send the matter to Handwriting Expert under Art. 84 of Qanun-e-Shahadat, 1984 for comparison of signatures---Initial presumption under S. 118 of Negotiable Instruments Act, 1881, was that a negotiable instrument/cheque was made, drawn, accepted or endorsed for consideration---Although such presumption was rebuttable yet onus was on the person denying consideration to allege and prove the same--- Where execution of negotiable instrument was admitted, under S. 118 of Negotiable Instruments Act, 1881, the burden of proof of non-payment of consideration was upon the executant, and the same was lacking---High Court set aside judgment and decree passed by Trial Court and decreed the suit filed by plaintiff---Appeal was allowed, in circumstances.

Muhammad Arshad and another v. Citibank N.A., Lahore 2006 SCMR 1347 and Muhammad Azizur Rehman v. Liaqat Ali 2007 SCMR 1820 rel.

(b) Pleadings---

----Parties cannot go beyond their pleadings--- Particulars of evidence need not to be mentioned in plaint and it can be produced during recording of evidence.

Muhammad Siddique v. MBR/CSC, Punjab and others 2017 MLD 770 and The State v. Anwar Saif Ullah Khan PLD 2016 SC 730 rel.

Imran Muhammad Sarwar and Rao Qasim Ali Khan for Appellants.

Jahangir Akhtar Jojha for Respondent.

2021 C L D 422

[Lahore]

Before Ch. Mushtaq Ahmad, J

M. JAVED SHAFI and 7 others---Petitioners

Versus

STATION HOUSE OFFICER, POLICE STATION SHORKOT CITY and 2 others---Respondents

Writ Petition No. 40320 of 2019, decided on 10th December, 2019.

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 7 & 20---Penal Code (XLV of 1860), S. 406---Constitutional petition---Quashing of FIR---Criminal breach of trust---Jurisdiction of Banking Court---Scope---Petitioners sought quashing of FIR registered against them under S. 406, P.P.C.---Sugar bags were allegedly removed by petitioners lying in the godown of sugar mills of which they were directors---Said sugar bags were in the control of the Bank as the same were pledged against loan taken by petitioner's mills---Complainant's company was deputed by Bank for security of sugar bags through an agreement---Registration of FIR by police was unwarranted and uncalled for as the alleged offence could only be tried by the Banking Court constituted under the provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001---Action could only be taken by an Investigating Agency nominated by Federal Government on a complaint in writing moved by authorised officer of a financial institution--- Local police had no authority to register a criminal case in the matters between a Bank and its customers---Constitutional petition was allowed, in circumstances.

Muhammad Asif Nawaz v. Learned Additional Sessions Judge/Justice of Peace Multan and 2 others 2014 PCr.LJ 1 = 2014 CLD 45; Murshid Ali and 4 others v. Station House Officer, Police Station Saddar, Khanewal and another 2011 CLD 1539 and The State through Prosecutor General Punjab Lahore v. Karam Dad Bhatti 2019 PCr.LJ 902 ref.

Syed Mushahid Shah v. Federal Investigation Agency and others 2017 SCMR 1218 rel.

M. Imran Malik, Aakif Majeed Batt and Asim Tufail Farooq for Petitioners.

Zaman Khan Vardag, Additional Advocate General with M. Afzal, SI for the State.

2021 C L D 434

[Lahore (Bahawalpur Bench)]

Before Jawad Hassan and Muzamil Akhtar Shabir, JJ

Messrs BAHAWALPUR COTTON COMPANY---Appellant

Versus

UNITED BANK LIMITED---Respondent

R.F.A. No. 113-2017/BWP, heard on 26th September, 2018.\

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 9 & 22----Suit for recovery---Procedure of Banking Court----Persons authorized to file suits for recovery on behalf of Financial Institution---Requirements in terms of S. 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001---General power of attorney, validity of---Scope---Contention of defendant, inter alia, was that power of attorneys in favour of persons filing suit against defendants, were executed on date prior to sanction of finance facilities, and therefore same could not be used to file said suits---Held, that perusal of power of attorneys in the present case revealed that powers vested in attorneys authorized them generally to prosecute/file recovery suits and legal proceedings on behalf of plaintiff Bank and they had also been authorized to perform other acts on behalf of Bank including filing of present suit---Suit therefore had been filed competently.

Mian Muhammad Mujahid for Appellant.

Mahmood Ahmad Bhatti for Respondent.

2021 C L D 479

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

STATE LIFE INSURANCE CORPORATION and others---Appellants

Versus

Mst. Syeda MUZHARA FATIMA---Respondent

Regular First Appeal No. 3953 of 2020, heard on 27th January, 2021.

(a) Insurance Ordinance (XXXIX of 2000)---

----Ss. 79, 118 & 124---Life insurance---Payment of liquidated damages on late settlement of claims---Remedies for non-disclosure or misrepresentation---Repudiation of claim---Onus on Insurance Company---Scope---Appellant Insurance Company impugned order of Insurance Tribunal whereby claim of respondent claimant for payment of life insurance amount along with liquidated damages by virtue of insurance policy of deceased husband was allowed---Contention of Insurance Company inter alia was that the insured had provided such information on proposal form which amounted to fraud and misrepresentation, and therefore claim had been rightly repudiated by Insurance Company---Validity---To seek benefit of S. 79 of Insurance Ordinance, 2000, onus probandi rested upon Insurance Company to prove either that the insured failed to comply with duty of disclosure or made fraudulent misrepresentation before contract was finalized, however no such evidence was presented by Insurance Company---Claimant had provided unrebutted evidence that deceased had been examined by approved specialist of Insurance company and was found to be fit and healthy, and only then insurance contract was finalized---High Court observed that repudiation of claim of claimant was therefore illegal and thus impugned order could not be interfered with---Appeal was dismissed, in circumstances.

(b) Insurance Ordinance (XXXIX of 2000)---

----S. 118---Limitation Act (IX of 1908), Art. 86(a) of Part IV of First Sched.---Computation of period of limitation for filing of claim/application before Insurance Tribunal under S. 118 of the Insurance Ordinance 2000---Scope---Whenever a demand for disbursement of insurance claim was denied, a fresh cause of action accrued to claimant to approach Insurance Tribunal within three years of such denial---Act of an insurance company which was illegal, without jurisdiction, unfounded and based on mala fide had no pedestal to be perpetuated even behind shield of limitation.

Messrs Pakistan Agro Forestry Corporation Ltd. v. T.C. PAF Pakistan (Pvt.) Ltd. and others PLD 2003 Kar. 284 rel.

Ibrar Ahmad for Appellants.

Liaqat Ali Butt, Azhar Siddique, Anwaar Hussain Janjua and Humera Bashir for Respondent.

2021 C L D 536

[Lahore]

Before Muzamil Akhtar Shabir, J

MUHAMMAD SAEE KHAN---Petitioner

Versus

JUDGE BANKING COURT and 3 others---Respondents

W.P. No. 374 of 2021, decided on 7th January, 2021.

(a) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 9, 10 & 7---Civil Procedure Code (V of 1908), O. VII, R. 11---Procedure of Banking Court---Application for leave to defend---Adjudication by Banking Court in suit for recovery---Rejection of plaint by Banking Court---Inherent powers of Banking Court---Scope---Plaint, in terms of S. 9 of Financial Institutions (Recovery of Finances) Ordinance, 2001 was required to disclose cause of action and failure to do so may lead to rejection of plaint on basis of averments of plaint, irrespective of whether leave to defend had been obtained by defendant or not---Plaint, if sought to be rejected on grounds other than averments in plaint, for example, on ground of defence of defendant, then such defendant was required to obtain leave to defend before his plea for rejection of plaint, such as on ground of res judicata or limitation, was considered by Banking Court---Application for rejection of plaint was a special kind of application, different from other interlocutory applications for reason that Banking Court itself was vested with suo motu powers to reject plaint at any stage---Grounds taken in an application for rejection of plaint may also be treated as grounds for grant of application for leave to defend, which had to be considered on its own merits and if circumstances of case so required, leave may be granted on said grounds---Dismissal of application for leave to defend did not mean that suit was to be decreed in all cases and Banking Court retained power to reject plaint in a suit or dismiss the same even after rejection of application for leave to defend, if plaintiff failed to make out a case for passing decree.

MCB Bank Limited v. Muhammad Saeed 2019 CLD 63; Shaukat Ali v. Agricultural Development Bank of Pakistan Limited through Chairman and 2 others 2006 CLD 59; The Bank of Punjab through Principal Officer/Constituted Attorney v. Rab Nawaz and 2 others 2016 CLD 760; Anees-ur-Rehman v. Faysal Bank Limited through Manager 2019 CLD 1031; National Bank of Pakistan v. Messrs. Ark Garments Industry (Pvt.) Ltd. through Managing Director and 2 others 2015 CLD 179; Gulistan Textile Mills Ltd. v. Askari Bank Ltd. and others 2013 CLD 2005 and Imran Hussain v. Banker's Equity Limited through Authorized Representative of the Official Liquidator and 13 others 2019 CLD 272 rel.

(b) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 9, 10 & 7---Powers and procedures of Banking Court---Adjudication of a suit for recovery---Application for leave to defend---Applications for interlocutory/interim orders during pendency of application for leave to defend---Scope---Bar on entertaining interlocutory applications during pendency of application for leave to defend was not absolute as in exceptional circumstances need may arise for filing such applications, which Banking Court may entertain and pass necessary orders thereupon----Plaintiff, in suit for recovery, was not required to wait for decision of an application for leave to defend before filing interlocutory applications, which include and were not limited to, application for interim injunctions, etc. and defendant in ordinary circumstances was generally barred from filing interlocutory applications before decision of application for leave to defend---Such bar on defendant though strict was not absolute and Banking Court had inherent jurisdiction to entertain such applications in exceptional circumstances, which may, inter alia, include but were not restricted to, an application for restoration of an application for leave to defend dismissed for non-prosecution, or an application for rejection of plaint.

Messrs Qadoos Brothers Poultry Farms through Abdul Qadoos v. Judge Banking Court No.1 Gujranwala and others 2018 CLD 88 and Gulistan Textile Mills Ltd and another v. Soneri Bank Ltd. and another PLD 2018 SC 322 rel.

Sahibzada Saeed ul Hassan Khan Sabri for Petitioner.

Adeel Ahmad Kamran and Zahid Sikandar Sheikh, Assistant Attorney Generals.

2021 C L D 570

[Lahore]

Before Shahid Karim, J

Messrs FIZZA DEVELOPERS (PVT.) LTD. through Authorized Representative---Petitioner

Versus

Messrs ESSEM HOTELS LIMITED through C.E.O. and others---Respondents

C.O. No. 11137 of 2019, heard on 17th November, 2020.

Companies Act (XIX of 2017)---

----Ss. 301, 302, 5 & 6---Winding up of company by court---Company when deemed unable to pay its debts---Jurisdiction, powers and procedure of courts under Companies Act, 2017---Determination as to a company's inability to pay debts---Scope---Petitioner sought winding up of the company, inter alia, on ground of an arbitration award in favour of petitioner, which amount was a debt that the company was unable to pay---Validity---Winding up petition could be based on an arbitration award which had special significance, however Company Court did not enforce such award, but merely went into question as to whether a debt was presently payable and whether a dispute was raised which was prima facie bona fide or not---Award was to be relied upon by way of an additional piece of evidence of debt due to a party---Decree in favour of an another creditor of the company had been passed, coupled with other suits for recovery pending against said company along with passing of arbitration award, enough proof existed to satisfy court regarding contingent and prospective liabilities of company and its inability to pay debts---Company, had not filed its financial statements or annual returns and thus per S. 301(d) of Companies Act, 2017, it was also liable to be wound up on such default---On basis of record, and fact that company's business operations had remained suspended over the last decade, circumstances in S. 301 of Companies Act, 2017 were triggered and it was just and equitable that company be wound up---High Court directed that the company be wound up in accordance with provisions of Company Act, 2017---Petition was allowed, accordingly.

Messrs United Ethanol Industries Ltd. v. Messrs JDW Sugar Mills Ltd. through Chief Executive and another 2020 CLD) 945; Dalhousie Jute Co. Ltd. v. Mulchand Lakshmi Chand 1983 53 CompCas 607 Cal. and Hafiz Muhammad Abdullah and 5 others v. Hafiz Muhammad Adnan and 3 others 2018 CLC 827 rel.

Hassan Nawaz Sheikh and Syed Shehzad for Petitioner.

Muhammad Imran Malik for Respondents Nos. 1 to 9.

Malik Muhammad Ummer Awan for Bank of Khyber.

Shakeel A. Awan and Zulfiqar Ali Jahangir for HBL.

Ruman Bilal for SECP.

2021 C L D 586

[Lahore (Bahawalpur Bench)]

Before Jawad Hassan and Muhammad Sajid Mehmood Sethi, JJ

MUHAMMAD ISMAIL---Appellant

Versus

MUHAMMAD ADIL---Respondent

E.F.A. No. 1 of 2018/BWP, decided on 19th January, 2021.

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 9, 2(c), 2(d) & 2(e)---Specific Relief Act (I of 1877), Ss. 54, 55 & 52---Civil Procedure Code (V of 1908), S. 47---Procedure in Banking Court---Suit for permanent and mandatory injunction---"Customer"---"Finance"---"Obligation"---Questions to be determined by the Executing Court---Scope---Appellant filed suit for permanent and mandatory injunction against the private respondent and a Bank before the Banking Court in respect of transfer of motor vehicle on the basis of agreement to sell executed between him and private respondent---Suit was decreed, however, the execution petition was dismissed on the ground that there existed no relationship of customer and financial institution and that the decree was passed without jurisdiction---Contention of appellant was that the Executing Court could not go beyond the decree---Validity---Issues in respect of finance between the customers and the financial institutions could only be solved under the Financial Institutions (Recovery of Finances) Ordinance, 2001---Appellant was not the customer of the Bank---Executing Court while exercising jurisdiction under S. 47, C.P.C. could question the executability of a decree if it was satisfied that the decree was a nullity in the eye of law or it was passed by a Court having no jurisdiction or the execution of the decree would not infringe the legal rights of the decree-holder if refused to be executed or the decree had been passed in violation of any provision of law---Appeal, being devoid of merit, was dismissed.

Messrs Capital Farms, Islamabad v. National Development Finance Corporation PLD 1996 Lah. 99; Muhammad Hussain and another v. Muhammad Shafi and others 2004 SCMR 1947; Mst. Khair-un-Nisa Channa v. Federation of Pakistan and others 2004 SCMR 1714; Sardar Ahmed Yar Khan Jogezai and 2 others v. Province of Balochistan through Secretary, C&W Department 2002 SCMR 122; Mst. Naseem Akhtar and 4 others v. Shalimar General Insurance Company Limited and 2 others 1994 SCMR 22; Abdul Salam v. Sharif Ahmad and another 1971 SCMR 596; Muhammad Sharif v. Jalaluddin 1971 SCMR 594; Hafiz Muhammad Ashiq Hussain v. Mst. Abida Begum 1996 MLD 588; Land Acquisition Collector (PWD), B&R Central Region, Lahore and others 1989 MLD 1850; Yousuf Ali v. Ali Gohar 2007 CLC 1741; Executive Vice-President and another v. Brig. (R) Mian Hameed-ud-Din 2010 CLD 823 and Habib Bank Ltd. and another v. Wasim Enterprises and others 2007 CLD 473 distinguished.

Habib Bank Limited v. Mst. Parveen Qasim Jan and others 2014 SCMR 322 fol.

Marhaba Pakistan International and others v. Habib Bank Limited and another 2017 CLD 995 rel.

Muhammad Tayyab Zameer Khan for Appellant.

2021 C L D 639

[Lahore (Multan Bench)]

Before Jawad Hassan, J

M.C.R. (PVT.) LTD. FRANCHISEE OF PIZZA HUT---Petitioner

Versus

MULTAN DEVELOPMENT AUTHORITY and others---Respondents

Writ Petition No. 2761 of 2021, heard on 8th March, 2021.

(a) Constitution of Pakistan---

----Art. 199--- Constitutional jurisdiction--- Availability/alternate remedy---Scope---Even in presence of alternate remedy, a Constitutional petition can be entertained upon the touchstone of in-adequacy of available remedy before prescribed forum---Such extra ordinary jurisdiction can only be used in exceptional circumstances where violation of some statutory duty on the part of statutory authority is apparently established or impugned action or order reflects glaring illegality or is tainted with obvious malice or is identifiably passed as coram-non-judice---Such jurisdiction can be exercised to defeat legislative intent concerning designated and defined judicial forum to entertain and decide about a particular category of cases and furthermore it cannot be used to encroach upon defined jurisdiction of other Courts and tribunals established under command of law as the same amounts to bypassing intent and wisdom of legislature.

Mian Muhammad Yousaf and another v. Lahore Development Authority through Director-General, L.D.A. Plaza, Lahore and 5 others PLD 2001 SC 393; Haji Muhammad Ashraf v. The District Magistrate, Quetta and 3 others 2000 SCMR 238; Muhammad Waris Ali v. Deputy Commissioner, Sheikhupura and others 1999 SCMR 2380; Ali Gohar v. Province of Sindh and others 2018 CLC 1999; Abdur Rahman and 5 others v. Rifatullah and 8 others 2016 CLC Note 35; Mst. Azra Bibi v. Chief Settlement Commissioner, Punjab, Lahore and 7 others 2010 YLR 2159; Sher Samad Khan v. M.D.A. and others 2009 YLR 1504; Malik Zahoor Ahmed v. Divisional Canal Officer, Division Bahawalpur and others 2007 MLD 1309; Asad Shuja Siddiqui through General Attorney v. Lahore Development Authority, Lahore through Director General and 6 others 2006 YLR 79; Sh. Naveed Yaqoob and another v. Federal Government through Secretary of Defence, Islamabad and 4 others 2003 YLR 1268; Muhammad Khalid Javed and others v. Lahore Development Authority and others PLD 2021 Lah. 211; Syed Dost Ali v. Federation of Pakistan through Secretary Defence and 2 others 2016 CLC 367; Muhammad Raza and others v. Jammu and Kashmir Co-operative Housing Society, and others PLD 2013 Isl. 49 and Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd., Tokht Bhai and 10 others PLD 1975 SC 244 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Alternate and efficacious remedy--- Scope--- If question of adequacy and efficaciousness of relief sought is involved and Civil Court/Court of first instance lacks jurisdictional competence to grant the same and such failure on the part of that Court tantamount to infringement of fundamental rights---High Court in such exceptional and extra-ordinary circumstances can interfere in the matter under Art. 199 of the Constitution.

(c) Constitution of Pakistan---

----Arts. 18 & 199--- World Bank Report on Doing Business---Constitutional petition---Trade and business, freedom of---Doing Business indicators---Contractual commitments---Petitioner was an international food chain running its business on the land leased out by respondent-Authority---Respondent-Authority during pendency of lease period issued notice to auction the piece of land in possession of petitioner---Matter was pending before Commercial Court, when petitioner also invoked Constitutional jurisdiction of High Court---Validity---World Bank's Report on Doing Business (DB Report) ranked economies across the World annually on the basis of its procedural easiness in approaching and getting through with process in ten comprehensive areas that covered life cycle of a business: (i) Starting a Business, (ii) Dealing with Construction Permits, (iii) Getting Electricity, (iv) Registering Property, (v) Getting Credit, (vi) Protecting Minority Investors, (vii) Paying Taxes, (viii) Trading across Borders, (ix) Enforcing Contracts, and (x) Resolving Insolvency--- Higher ranking in ease of Doing Business indicator meant that regulatory environment of that country was more conducive for all stages of business and trade activities---Since launch of DB Report, for first time in year 2020, Pakistan reached at number 108 in overall ranking in Contract enforcement indicator, on which it was holding 156th position previously---With each passing day, the World was becoming more global and more inter-connected, particularly in the affairs of trade and commerce---Volume of foreign investment and number of such business initiatives were taken as one of the determining traits for measuring economic growth of a country and it had a direct bearing upon financial prosperity of the citizens of a country---One of the basic purpose behind provision of fundamental right under Art. 18 of the Constitution is to advance culture of socio-economic progress and to protect business and trade activities and at the same time to encourage simplification of process of establishing and carrying out new business ventures throughout the country because activities of business and trade create opportunities for masses around and provide job options, financial stability and progress in the area---Petitioner was an international chain and entered into lease agreement with respondent Authority--- It was duty of Courts in Pakistan to see rights of parties and to protect their interest in order to build confidence of investors of Pakistan and at the same time interest of government functionaries was also to be examined regarding financial interest of government--- High Court directed Civil/Commercial Court to decide case expeditiously--- Constitutional petition was dismissed in circumstances.

Atar Ali v. Abed Ali and others PLD 1954 Dacca 158; Muhammad Shah and others v. L.D.A. and others 1993 CLC 2482; Mahmood-ul-Hassan v. Munir Ahmad and 3 others 2018 MLD 771; Khadim Hussain v. Abid Russian and others PLD 2009 SC 419 and Eastern Testing Services (Pvt.) Ltd. v. SECP and others 2016 CLD 581 ref.

Messrs Shaheen Air International Ltd. (SAI) and others v. Messrs Voyage De Air" 2006 SCMR 1684 and Messrs Sports World and others v. LA TEES Fabrics and others 1995 MLD 1707 rel.

(d) Administration of justice---

----Constitutional and legal rights---Effect---Constitution is grundnorm of a country and law is the command of sovereign body, which is established and mandated under the Constitution to promulgate and enact laws either in the form of primary legislation i.e. Acts and Ordinance etc. or in the form of delegated legislation.

Barrister Husnain Ali Ramzan, Usama Malik, Shameer Ubaid, Mehwish, Shafqat Hussain Thaheem and Saif-ul-Hassan for Petitioner.

Mehar Zameer Hussain Sundhal, Deputy Attorney General, Azhar Saleem Kamlana and Muhammad Shahid Riaz, Assistant Advocates General with Rana Shahid Manzoor, Senior Law Officer, Commissioner Office, Multan, Muhammad Ameen Malik, Advocate Supreme Court and Bilal Ameen, Advocate/Legal Advisors Multan Development Authority with Mushtaq Khan, Deputy Managing Director, WASA, Multan, Saad Ullah, Muhammad Akram Rao, Special Prosecutor, NAB, Shafqat Abbas Mighiana and Hamid ur Rehman Nasir, Civil Judges/Research Officers (LHCRC) for Respondents.

Date of hearing: 8th March, 2021.

2021 C L D 659

[Lahore]

Before Shams Mehmood Mirza and Ch. Muhammad Masood Jahangir, JJ

LASANIA OIL MILLS---Appellant

Versus

SILVER STAR INSURANCE COMPANY LIMITED and others---Respondents

Insurance Appeal No. 932 of 2015, decided on 13th October, 2020.

Insurance Ordinance (XXXIX of 2000)---

----Ss. 118 & 124---Insurance Claim---Building/Godown Fire Cover Insurance---Insurance Policy exclusionary clauses, enforcement of---Repudiation of Insurance Claim by Insurance Company---Surveyor report, significance of---Scope---Appellant / claimant impugned order of Insurance Tribunal whereby claim of liquidated damages on account of claim of Fire Insurance was dismissed---Insurance Tribunal, in impugned order, dismissed claim of claimant on ground that Insurance Policy stipulated that power supply must have been switched off when building/godown was closed, which in the present case was not done---Contention of claimant, inter alia, was that after Temporary Fire Insurance Cover, which did not contain said clause, subsequent Insurance Policy containing said exclusionary clause regarding switching off electricity supply, was never delivered to claimant, and hence he was not aware of the same, and that report of surveyor was not taken into account by Insurance Tribunal---Validity---Stance of claimant that he was not aware of offending clause of Insurance Policy could not be accepted as said stance was not taken by him during his examination-in-chief and he failed to prove that said Insurance Policy Document was not delivered to him---Claimant in his examination-in-chief had also admitted that power/electricity supply to his building/ godown was not switched off, therefore his claim was rightly repudiated by Insurance Company---High Court observed that report of surveyor, no doubt was a vital piece of evidence, but same was not binding, and no illegality existed in impugned order of Insurance Tribunal---Appeal was dismissed, in circumstances.

Liaqat Ali Butt for Appellant.

Muhammad Mustafa Khalid for Respondent No. 1.

2021 C L D 679

[Lahore (Multan Bench)]

Before Shahid Bilal Hassan and Masud Abid Naqvi, JJ

MCB BANK LIMITED through Manager---Appellant

Versus

AZHAR HUSSAIN and another---Respondents

F.A.O. No. 41 of 2015, decided on 23rd June, 2016.\

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 10, 9(5) & 7---Suit for recovery---Procedure of Banking Court---Application for leave to defend---Filing of application for leave to defend within period of statutory limitation---Effective service in terms of S. 9(5) of Financial Institutions (Recovery of Finances) Ordinance, 2001---Scope---Application for leave to defend was dismissed on account of being barred by time---Contention of defendant, inter alia, was that impugned order did not take into account fact that said application was filed within 30 days from date of knowledge of defendant with regard to proceedings before Banking Court---Validity---Defendant had not mentioned such date of knowledge of proceedings in application for leave to defend and therefore same could only be regarded as an afterthought to remove legal lucana and even otherwise, defendant did not mention mode/source of such knowledge about pending proceedings, and did not make any allegation with regard to postal address on which effective service was made--- No illegality therefore existed in impugned order---Appeal was dismissed, in circumstances.

Mian Khurram Hashmi for Appellant.

2021 C L D 686

[Lahore]

Before Muhammad Ameer Bhatti and Atir Mahmood, JJ

STATE LIFE INSURANCE CORPORATION OF PAKISTAN through Chairman/

Zonal Head/Attorney and 2 others---Appellants

Versus

Mst. Begum RASHIDA JAMIL---Respondent

E.F.A. No. 33380 of 2017, heard on 27th October, 2020.

Insurance Ordinance (XXXIX of 2000)---

----S. 118---Insurance Claim---Payment of liquidated damages on late settlement of claims, calculation of---Computation of liquidated damages without compounding liquidated damages from one month to the next---Scope---For calculation of liquidated damages, base rate to be applied must be calculated for each monthly rest separately and applied accordingly---Method of calculation by compounding amount of liquidated damages to the next monthly rest was not allowed, and claimants could not claim settlement of claim of liquidated damages in such terms.

Messrs State Life Insurance Corporation of Pakistan v. Mst. Anwar Gulzar 2012 CLD 1014 and E.F.A. No. 178155 of 2018 rel.

Ibrar Ahmad and Sh. Shahzad Ahmed Pasha for Appellants.

Liaqat Ali Butt and Nisar Ahmad Khan for Respondent.

2021 C L D 695

[Lahore]

Before Shams Mehmood Mirza and Ch. Muhammad Masood Jahangir, JJ

STATE LIFE INSURANCE CORPORATION OF PAKISTAN through Zonal Head/Attorney---Appellant

Versus

Mst. RIFFAT ASGHAR---Respondent

Insurance Appeal No. 67395 of 2017, decided on 13th October, 2020.

Insurance Ordinance (XXXIX of 2000)---

----Ss. 122, 115, 170 & 124---Civil Procedure Code (V of 1908), S. 144 & O. VII R. 10---Filing of insurance claim (application) before the Insurance Tribunal created under the Insurance Ordinance, 2000---Jurisdiction of Insurance Tribunal---Scope---Insurance Tribunal could not assume jurisdiction over claims that arose out of insurance policies issued prior to date of commencement of Insurance Ordinance, 2000 i.e., 19-8-2000---Claims hit by such exclusion---Restitution of amount received by claimant to Insurance Companies on claims erroneously executed by Insurance Tribunal---Powers of Insurance Tribunal to adjudicate upon application for restitution under S. 144, C.P.C.----Scope---Appellant Insurance Company impugned order of Insurance Tribunal whereby its application under S. 144, C.P.C. seeking return of amounts received by claimants on ground that insurance claim could not have been adjudicated and executed under Insurance Ordinance, 2000; was returned under O. VII, R. 10, C.P.C., with direction to file same before Civil Court---Contention of appellant, Insurance Company, inter alia, was that Insurance Tribunal had jurisdiction to adjudicate upon application under S. 144, C.P.C. seeking restoration/restitution in regard to amounts unlawfully received by claimant---Validity---By virtue of S. 122 of Insurance Ordinance, 2000, Insurance Tribunal was vested with all powers that a civil court had under C.P.C. including power to order for restitution in terms of S. 144, C.P.C.---Insurance Tribunal, therefore in the present case, had necessary jurisdiction to pass an order upon application filed by Insurance Company---Impugned order was set aside and matter was remanded to Insurance Tribunal to adjudicate upon and pass an order on Insurance Company's application under S. 144, C.P.C.---Appeal was allowed, accordingly.

Mst. Robina Bibi v. State Life Insurance Corporation of Pakistan 2013 CLD 477; State Life Insurance Corporation v. Mst. Sadaqat Bano 2008 CLD 1069 and Abdul Bari v. Muhammad Rasheed Khan and 7 others 1995 SCMR ­851 rel.

Ibrar Ahmad for Appellant.

2021 C L D 732

[Lahore (Bahawalpur Bench)]

Before Muhammad Sajid Mehmood Sethi and Jawad Hassan, JJ

GHULAM MUHAMMAD and others---Appellants

Versus

NATIONAL BANK OF PAKISTAN and others---Respondents

Regular First Appeal No. 101 of 2016/BWP, heard on 8th February, 2021.

(a) Financial Institutions (Recovery of Finances) Ordinance (XLIX of 2001)---

----S. 9---Procedure of Banking Court---Scope---Application for leave to defend suit---Appellants assailed judgment and decree passed by Banking Court whereby it decreed the suit of the Bank---Contention of appellants was that the Banking Court had not consolidated their suit for cancellation of mortgage deed (originally filed before Civil Court) with Banks' suit despite the fact that the High Court had ordered it to do so---Validity---Order passed by High Court had no relevance to the proceedings before the Banking Court and non-consolidation of suits had not caused any prejudice to the appellants as they had availed opportunity to put forth their stance by filing application for leave to defend---Appellants had generally denied all the allegations without cogent reasons and had also denied relationship with the Bank---Bank, through production of substantial documents, had established on record that finance facility was availed---Banking Court had taken into consideration all the grounds mentioned by the appellants in their application for leave to defend---No illegality or perversity was found in the impugned judgment--- Appeal was dismissed, in circumstances.

(b) Financial Institutions (Recovery of Finances) Ordinance (XLIX of 2001)---

----S. 10---Application for leave to defend---Scope---Section 10(3) of Financial Institutions (Recovery of Finances) Ordinance, 2001, provides that leave to defend shall also be in such form which contain a summary of the substantial questions of law as well as fact in respect of which evidence needs to be recorded, which should be filed according to S. 10(4) of the Financial Institutions (Recovery of Finances) Ordinance, 2001.

Bilal Ahmad Qazi, Advocate Supreme Court for Appellants.

Syed Waseem Ahmad for Respondents-Bank.

Sheikh Zaheer-ud-Din Babar for Respondents Nos. 2 to 7.

Nemo for Respondent No. 8.

2021 C L D 744

[Lahore (Multan Bench)]

Before Ch. Muhammad Iqbal and Jawad Hassan, JJ

MOHAMMAD WAJID MURSHID and another---Appellants

Versus

SILK BANK LIMITED---Respondent

Execution First Appeal No. 11 of 2019, heard on 8th March, 2021.

(a) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----S. 19---Civil Procedure Code (V of 1908), S. 36 & O. XXI, R. 1---Execution---Connotation---Execution is enforcement of a decree by a judicial process which enables decree holder to realize fruits of decree and judgment passed by competent Court in his favour.

Tax Law Dictionary by LexisNexis 2016 Edition page 314 and Black's Law Dictionary, Tenth Edition page. 689 rel.

(b) Civil Procedure Code (V of 1908)---

----S. 2(2)---"Decree"---Scope---Execution of decree---Scope---Decree of Court is a mere declaration of right unless through process of execution such determination is transformed into actual realization---Without execution, a decree is an expression of recognition of rights of relief---When decree gets executed through process of law, it then culminates into attainment of dispensation of justice in actual and palpable terms---When decree is executed successfully, it is called satisfaction of decree.

(c) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 19 & 22---Execution of decree---Mortgaged properties---Judgment debtor resisted execution of decree by contending that mortgaged properties were not mentioned in Memorandum of Deposit of Title Deeds therefore, the properties could not be mortgaged---Validity---At the time of availing finance facilities, three properties were mortgaged by judgment debtors out of which one property was redeemed by Bank upon payment by judgment debtors through an undertaking on stamp paper while to the extent of remaining two properties, Banking Court proceeded to execute judgment and decree---Judgment debtors could not raise such matter which had already attained finality--- Banking Court rightly held that there was no need to correct order for which application was filed by judgment debtors---High Court declined to interfere in the order passed by Banking Court as the same was neither illegal nor perverse and was passed in accordance with law--- Appeal was dismissed in circumstances.

Muhammad Attique v. Jamil Limited and others 2015 SCMR 148; Mst. Nadia Malik v. Messrs Makki Chemical Industries Pvt. Ltd. through Chief Executive and others 2011 CLD 1517; Muhammad Attique v. Jami Limited and others PLD 2010 SC 993; Muhammad Baran Khan v. Judge Banking Court No. III, Multan and another 2015 CLD 2000; Tax Law Dictionary by Lexis Nexis 2016 Edition page 302; CORPUS JURIS SECUNDUM Volume 59, page 32 and National Bank of Pakistan through Attorney and another v. Paradise Trading Company and others 2015 SCMR 319 ref.

Muhammad Suleman Bhatti for Appellants.

Sajid Ali Ch. for Respondent.

2021 C L D 776

[Lahore (Multan Bench)]

Before Shams Mehmood Mirza and Shahid Karim, JJ

ABDUL KHALIQ and 3 others---Appellants

Versus

MCB BANK LIMITED through Manager---Respondent

R.F.A. No. 122 of 2011, decided on 15th April, 2015.

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 9, 7 & 22---Procedure of Banking Court---Suit for recovery---Plaint of Financial Institution seeking recovery---Mandatory requirement of filing of proper statement of account---Scope---Suit for recovery was decreed by Banking Court---Contention of defendant, inter alia, was that an incomplete statement of account was appended by plaintiff Bank, therefore impugned decree could not have been made---Validity---Record revealed that statement of account appended by plaintiff Bank did not cover entire period of finance facility and in terms of S. 9 of Financial Institutions (Recovery of Finances) Ordinance, 2001, it was obligatory upon plaintiff Bank to provide complete statement of account and such statement of account should be a self-contained document reflecting period for which markup had been debited and also amount repaid by customer, if any---Impugned order was set aside, and matter was remanded to Banking Court with direction to plaintiff bank to file complete statement of account and for defendants to file leave to defend---Appeal was allowed, accordingly.

Muhammad Ramzan Khalid Joya for Appellants.

2021 C L D 789

[Lahore (Multan Bench)]

Before Shams Mehmood Mirza and Shahid Karim, JJ

MCB BANK LIMITED through Manager---Appellant

Versus

NASEEM AKHTAR and 3 others---Respondents

E.F.A. No. 8 of 2013, decided on 31st March, 2015.

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 19 & 22---Suit for recovery---Execution of decree of Banking Court---Auction of mortgaged property----Setting aside of auction proceedings---Scope---Objection application filed by objector who claimed to be bona fide buyer of subject property was allowed by Banking Court on ground that said property was not actually mortgaged and objector had validly bought the same before filing of suit for recovery---Validity---Appellant Bank could not show any document on which Bank's lien was marked in record of Excise and Taxation Department and therefore Banking Court in impugned order had rightly concluded that property was not mortgaged with plaintiff Bank and thus auction process could not continue---Appeal was dismissed, in circumstances.

2021 C L D 823

[Lahore (Multan Bench)]

Before Ch. Muhammad Iqbal and Jawad Hassan, JJ

BANK AL-FALAH LIMITED---Appellant

Versus

SHAHID RIAZ and another---Respondents

F.A.O. No. 18 of 2021, decided on 15th February, 2021.

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----S. 9---Suit for declaration---Return of vehicle---Interim injunction, grant of---Scope---Bank assailed order passed by Banking Court whereby it was directed to hand over the vehicle to the respondent---Validity---Impugned order had three parts; in the first part, Banking Court, keeping in view the payment of due installments, had allowed the request for return of vehicle; in the second part, condition for deposit of next installment was also imposed which too was subject to deposit of re-possession and warehouse charges in the bank and in the third part, condition to furnish surety bond before the Banking Court was also imposed---Relief granted to respondent was conditional one---Appellant could raise all objections by filing leave to defend in terms of S. 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001---Banking Court had rightly passed the impugned order---Appeal was dismissed.

2021 C L D 874

[Lahore (Multan Bench)]

Before Muzamil Akhtar Shabir and Asim Hafeez, JJ

Messrs BISMILLAH AGRO INDUSTRIES (PVT.) LIMITED through Directors and 2 others---Appellants

Versus

SONERI BANK LIMITED through Principal Officers/ General Attorney---Respondent

F.A.O. No. 35 of 2019, decided on 2nd December, 2020.

(a) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 9(5), 10(2) proviso & 12---Ex-parte decree, setting aside of---Service through publication in newspaper---Effect---Appellants-defendants were aggrieved of ex-parte judgment and decree passed against them for not filing application for leave to defend the suit within time---Validity---Valid and effective service to appellants-defendants was only effected through publication and effective service through other modes remained obscured and unsubstantiated, therefore, proviso to S. 10(2) Financial Institutions (Recovery of Finances) Ordinance, 2001, was attracted---Right had accrued to appellants-defendants, which right could not be denied by attributing error on the part of Court---Even if it was termed as 'inadvertent error', it should not prejudice appellants-defendants as an act of Court---High Court set aside ex-parte judgment and decree and extended time to appellants-defendants in terms of proviso to S. 10(2) of Financial Institutions (Recovery of Finances) Ordinance, 2001, for filing of application for leave to defend as the application was validly filed---Appeal was allowed, in circumstances.

Ikramullah v. Said Jamal 1980 SCMR 375 and Muhammad Yar through Legal Heirs v. Muhammad 2003 SCMR 1772 rel.

(b) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

---- S. 10--- Limitation Act (IX of 1908), S. 4---Application for leave to defend the suit---Limitation---Summer vacations of Court---Application filed on first working day after summer vacations was validly filed in accordance with the mandate of S. 4 of Limitation Act, 1908.

Muhammad Suleman Bhatti and Majid Iftikhar for Appellants.

2021 C L D 906

[Lahore]

Before Shahid Karim, J

MISBAH UD DIN ZAIGHAM and 3 others---Petitioners

Versus

FEDERAL INVESTIGATION AGENCY through Assistant Director (FIA/CBC/LHR) and anther---Respondents

W.P. No. 68772 of 2019, decided on 16th April, 2021.

(a) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 2(g) & 20(7)---Financial facility from financial institutions---Wilful default---Determination---Pendency of appeal---Effect---Petitioners were aggrieved of notices issued by Federal Investigation Agency on the ground of committing willful default of their financial facilities availed by them from financial institutions, though proceedings to determine default were pending before Appellate Court---Validity---One right of appeal is fundamental and basic right--- When a person's civil liability hinges upon determination, it is not only to be made by Court of original jurisdiction but also by at least one appellate Court--- Offence of wilful default under S. 2(g)(i) of Financial Institutions (Recovery of Finances) Ordinance, 2001, could only arise once not only the proceedings before Court of original jurisdiction but also before Appellate Court in any appeal filed under Financial Institutions (Recovery of Finances) Ordinance, 2001 were concluded---High Court struck down the notices issued by Federal Investigation Agency, as the same were ultra vires---Constitutional petition was allowed accordingly.

Mian Ayaz Anwar and others v. State Bank of Pakistan and others 2019 CLD 375; 2021 SCMR 440; F.A. Khan v. The Government of Pakistan PLD 1964 SC 520 and Sahabzadi Maharunisa and another v. Mst. Ghulam Sughran and another PLD 2016 SC 358 rel.

(b) Appeal---

----Procedure---Merger---Scope---Appeal is continuation of original proceedings and upon its filing, the entire case is reopened for examination, both on question of fact as well as on error of law---Once an appeal is considered and decided by appellate forum, the concept of merger applies.

(c) Constitution of Pakistan---

----Part-I, Chapter 1 [Arts. 9 to 28]---Fundamental rights--- Constitutional Criminal Procedure---Of the fundamental rights guaranteed by Arts. 9 to 28 of the Constitution, almost 16 Articles belong to Criminal Procedure--- Such Articles may be described as a mini-code of criminal procedure.

(d) Constitution of Pakistan---

----Arts. 9 & 24---Life, liberty and property---Protection---Whenever someone faces a criminal charge what is at stake is his life or liberty or property---Protection against deprivation and loss of life and liberty has been provided under Art. 9 of the Constitution---Protection against deprivation and loss of property has been provided in Art. 24(1) of the Constitution.

Mehram Ali v. Federation PLD 1998 SC 1445 and Liaqat Hussain v. Federation PLD 1999 SC 504, 632 rel.

(e) Constitution of Pakistan---

----Art. 10---Arrest---Pre-condition---Implied right guaranteed by Art. 10 of the Constitution is that grounds of arrest must exist before arrest takes place.

Christie v Leachinsky (1947) 1 All ER 567 and Government of East Pakistan v. Rowshan Bijaya PLD 1966 SC 286 rel.

(f) Constitution of Pakistan---

----Art. 14---Human dignity and privacy of home---Scope---Dignity of man and privacy of home are inviolable and run with each other---Human dignity under Art. 14 of the Constitution has been guaranteed in absolute terms.

Benazir Bhutto v. President of Pakistan PLD 1998 SC 388, 621 rel.

Muhammad Imran Malik, Hassan Ismail, Akif Majeed, Mian Asghar Ali, Sadnan Saad Sindhu and Muhammad Faizan Saleem for Petitioners.

Salman Aslam Butt, Shoaib Rashid, Shezada Mazhar, Furqan Naveed, Ahmad Raza Khalid, Ghulam Mujtaba, Jawad Ashraf and Fahad Ikram for Respondents.

Zahid Sikandar, Assistant Attorney General.

2021 C L D 931

[Lahore (Rawalpindi Bench)]

Before Jawad Hassan, J

The ADDITIONAL REGISTRAR COMPANY---Petitioner

Versus

AL-QAIM TEXTILE MILLS LIMITED---Respondent

Civil Original No. 1 of 2011, heard on 3rd June, 2021.

(a) Companies Ordinance (XLVII of 1984)-

--S. 305-Companies Act (XIX of 2017), S. 301---Winding-up of company---Default in holding statutory meeting/two consecutive annual general meetings---Discretionary powers of Court---Scope---Court would not generally make the order of winding up in first instance but would desire such Company to file statutory report or to hold statutory meeting or to hold annual general meeting and would extend time---If Company had failed to comply with the order then Court would windup Company and the Directors in that case would be deemed to be personally liable for costs---In winding-up cases, utmost endeavour was to be made for survival of corporate sector rather than to dismantle it---For winding-up a Company the Court had to consider whether the substratum of the Company was gone, the object for which it was incorporated had substantially failed; and whether it was impossible to carry on the business except at loss, and no reasonable hope that the object of trading at profit could be attained and the existing or probable assets were insufficient to meet the liabilities---High Court observed that the Company was ready to comply with the statutory requirements and had already filed civil miscellaneous application for placing of documents and the application addressed to the Securities and Exchange Commission of Pakistan (SECP), an affidavit of the Chief Executive/Director of the Company seeking extension in period for holding annual general meetings had also been presented---Securities and Exchange Commission of Pakistan (SECP) was directed to decide the application within a period of one month from the receipt of certified copy of present order---Petition was disposed of accordingly.

In re: Alliance Motors (Pvt.) Ltd. 1997 MLD 1966 and Muhammad Ashraf Tiwana v. Pakistan and others 2013 SCMR 1159 rel.

Messrs Ali Woollen Mills Ltd. v. Industrial Development Bank of Pakistan PLD 1990 SC 763 ref.

(b) Companies Ordinance (XLVII of 1984)-

----S. 305---The Companies Act (XIX of 2017), S. 301---Winding-up of company---Discretion of Court---Default in holding statutory meeting/two consecutive annual general meetings---Scope---Making of a winding up order was discretionary because S. 305 uses the word "may" in relation to all the grounds given therein, and not "shall"---Discretionary powers conferred on the Court ought generally to be exercised consistently with, and was certainly to be informed by, equitable principles---Hallmark of equity jurisdiction was the flexibility inherent in the discretionary nature thereof---Flexibility and discretion, that is, to decide the case after taking into consideration all relevant matters that tend towards the justice or injustice of granting the remedy that was sought.

(c) Interpretation of statutes---

----Preamble---Scope---Preamble to a statute was though not an operational part of the enactment yet it was a gateway, which opens the purpose and intent of the legislature, which necessitated the legislation on the subject and also shed clear light on the goals which the legislator aimed to secure through the introduction of such law---Preamble therefore, holds a pivotal role for the purposes of interpretation in order to dissect the true purpose and intent of the law---Preamble though not a substantive and enforceable part of the enactment yet it provides primary guidelines about the object and scope of the legislation being its usher.

(d) Companies Act (XIX of 2017)---

----Preamble---Companies Ordinance (XLVII of 1984), Preamble---Distinction between the two statutes---No preamble was given with Companies Ordinance, 1984, but Preamble of the Companies Act, 2017, clearly demonstrates to reform company law with the objective of facilitating corporatization and promoting development of corporate sector, regulating corporate entities for protecting interests of shareholders, creditors, other stakeholders and general public, inculcating principles of good governance and safeguarding minority interests in corporate entities---Preamble of the Companies Act, 2017 plainly demonstrates for the establishment of the Securities and Exchange Commission of Pakistan for the beneficial regulation of the capital markets, superintendence and control of corporate entities---Preamble of the Act laid strong emphasis to control the matters relating to corporate entities which includes promoting development of corporate sector.

Abwa Knowledge Pvt. Ltd. and another v. Federation of Pakistan and another PLD 2021 Lah. 436 ref.

Salaar Khan, Zainab Junjua, Sana Taha Gondal and Asfandyar Khan Pasha for Petitioner.

Hassan Raza Pasha, Advocate Supreme Court, Kashif Ali Malik, Advocate Supreme Court for Respondent.

Barrister Sardar Umar Aslam, Advocate Supreme Court for HBL.

Barrister Dr. Waseem Ahmad Qureshi, Advocate Supreme Court for Respondent.

2021 C L D 967

[Lahore]

Before Jawad Hassan, J

Mst. ZAHIDA PARVEEN---Petitioner

Versus

LAMREY CERAMICS (PVT.) LIMITED and others---Respondents

Civil Original No. 58 of 2006, heard on 29th April, 2021.

(a) Companies Ordinance (XLVII of 1984) [since repealed]---

----Ss. 9 & 152---Power of Court to rectify register of members---Scope---Jurisdiction of High Court under S. 152 of Companies Ordinance, 1984 stated.

Section 152 of the Companies Ordinance, 1984 ('the Ordinance') gave wide powers to the High Court to rectify the register of members, yet, the jurisdiction of the High Court was summary in nature. Intention of the legislature was to introduce new provision in the Ordinance to provide a very expeditious and summary procedure. Section 152 of the Ordinance empowered the Court to decide any question relating to "rectification" of the register including a question of law. For any question raised within the peripheral field of rectification, it was the High Court under section 152 alone which had the exclusive jurisdiction. However in case any claim was based on some seriously disputed civil rights or title, denial of any transaction or any other basic facts which may be the foundation to claim a right to be a member, and if the Court felt such claim did not constitute rectification but instead required adjudication of a basic pillar or facts falling outside the rectification, it had the discretion to send a party to seek its relief before Civil Court first for the adjudication of such facts. In case, allegation of fraud and fabrication or intricate question of law was involved requiring recording of evidence, the High Court could advise the party to approach the Civil Court of competent jurisdiction to get the issue determined and in case of favourable judgment, the litigant could always approach the High Court again under section 152 of the Ordinance.

Manzoor Ahmad Bhatti v. Haji Noval Khan 1986 CLC 2560; Syed Shafqat Hussain v. Registrar, Joint Stock Companies Lahore PLD 2001 Lah. 523; Zakir Latif Ansari v. Pakistan Industrial Promoters Ltd. 1988 CLC 154 and Lahore Race Club v. Raja Khushbakht-ur-Rehman PLD 2008 SC 707 ref.

(b) Companies Ordinance (XLVII of 1984) [since repealed] ---

----S. 152---Power of Court to rectify register of members---Rectification---Connotation---"Rectification" itself connoted some error, which had crept in requiring correction---Error would only mean that everything as required under the law had been done yet by some mistake a name was either omitted or wrongly recorded in register of the company.

Lahore Race Club v. Raja Khushbakht-ur-Rehman PLD 2008 SC 707 ref.

(c) Companies Ordinance (XLVII of 1984) [since repealed] ---

----S. 152---Limitation Act (IX of 1908), Art. 120---Application/petition under S. 152 of the Companies Ordinance, 1984 for rectification of register of members---Limitation---Principles---Law of limitation was fully applicable to a petition filed under S. 152 of the Companies Ordinance, 1984 ('the Ordinance')---Summary proceedings under S. 152 of the Ordinance could not be resorted to when the suit for seeking same relief had become barred by time under the Limitation Act, 1908---Limitation period for seeking same relief in a civil suit would also be deemed limitation period for the purposes of application under S. 152 of the Ordinance---Civil suit for a relief under S. 152 of the Ordinance would entail the limitation period prescribed in Art. 120 of Limitation Act, 1908, therefore, said Article shall also be applicable to a petition filed under S. 152 of the Ordinance and period mentioned in the said Article should be taken as a reasonable standard by which delay was to be measured. [pp. 976, 977] D, E & F

Khurshid Ahmad Khan v. Pak Cycle Manufacturing Company Ltd. PLD 1987 Lah. 1; Mian Waheed-ud-Din v. Messrs Royal Rice Millers 2015 CLD 1978 and Mrs. Saeeda Mahmood v. Anas Munir 2007 CLD 637 ref.

(d) Companies Ordinance (XLVII of 1984) [since repealed]---

----S. 152---Civil Procedure Code (V of 1908), O.IX, Rr. 3, 4, 8 & 9---Limitation Act (IX of 1908), S. 5 & Art. 163--- Petition under S.152 of the Companies Ordinance, 1984 dismissed due to default/non-prosecution--- Application seeking restoration of petition---Limitation for filing such application---Condonation of delay---If an application was dismissed due to default as provided under O.IX, R. 3 or R. 8, C.P.C., it could be restored in accordance with O.IX, Rr.4 & 9 of C.P.C., provided that such restoration was sought within the limitation period of thirty days as specifically provided under Art. 163 of Limitation Act, 1908---Therefore the time limitation for filing an application for restoration of a petition under S. 152 of the Ordinance was thirty days from the date of its dismissal---Although S. 5 of Limitation Act, 1908 was made applicable to such an application for restoration, however, the petitioner was bound to establish sufficient cause, which prevented him/her to approach the Court within the period of limitation.

(e) Limitation Act (IX of 1908) ---

----S. 5---'Pardanasheen lady'---Cause of action barred by time---Condonation of delay---Principles relating to justification for condonation of delay in cases involving Pardanasheen lady---"Pardanasheen lady" was not a term of art; it has legal purport, impact and significance, which encapsulated certain defences in favour of a woman taking and establishing such plea, which were not available to other persons under the law; it was a bulwark, which offered legal immunity from certain ordinary binding legal principles especially a valid legal justification to substantiate the plea for condonation of delay on the touchstone of being unaware or uninformed; it offered a legitimate defence to agitate a cause of action which was otherwise barred by flux of time under the applicable limitation criteria---Valid excuse of being a pardanasheen lady therefore offered a strong ground and a reasonable consideration for exercising discretion in favour of a time barred application, as it could be taken as a sufficient cause within the contemplation of S. 5 of the Limitation Act, 1908 to condone the delay.

(f) Limitation Act (IX of 1908)---

----S. 5---'Pardanasheen lady'---Petition barred by time---Application seeking restoration of petition not filed within time---Condonation of delay---Perusal of available record revealed that the petitioner-lady had been appearing personally before Courts in two different cities in suits filed by the respondents which were decided in year 2003 while the petition was dismissed on 27-12-2002---Petitioner (lady) on the one hand had been appearing before the Courts personally and also by engaging counsel independently and on the other hand, she was taking the plea of being a Pardanasheen lady, which was contrary to her conduct---When the petitioner was performing such like professional activities personally, the principle of pardanasheen lady and presumption and immunities attached with it under the law, did not apply in her favour---Petition was dismissed.

Muhammad Shujaat Khan v. Nawab Mashkoor Ahmed Khan 2000 SCMR 953 ref.

(g) Companies Ordinance (XLVII of 1984) [since repealed]---

----S. 76---Transfer of shares and debentures---Requirements under S.76 of the Companies Ordinance, 1984 for transfer of shares and debentures---Such requirements were mandatory in nature and in the absence of such compliance no transfer of shares in law stood effected.

Muhammad Imran Sarwar, Advocate Supreme Court and Saad Ullah for Petitioner.

Hafiz Muhammad Talha, Legal Advisor for SECP.

Zaka-ur-Rehman, Advocate Supreme Court and Sheraz Zaka for Respondent No.11.

2021 C L D 992

[Lahore (Multan Bench)]

Before Shams Mehmood Mirza and Shahid Karim, JJ

MUHAMMAD ALTAF AZIZ---Appellant

Versus

MCB BANK LIMITED through Manager---Respondent

R.F.A. No. 121 of 2012, decided on 5th May, 2015.\

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 10, 9 & 7---Procedure of Banking Court---Suit for recovery---Application for leave to defend, adjudication of---Failure to comply with mandatory requirements of S. 10 of Financial Institutions (Recovery of Finances) Ordinance, 2001---Effect---Application for leave to defend was dismissed by Banking Court---Contention of defendant, inter alia, was that application for leave to defend ought to have been granted as precious rights of defendant were involved---Validity---Application for leave to defend, in present case, contained no meaningful ground challenging liability set up in plaint and same did not comply with mandatory requirements of S. 10(4) of Financial Institutions (Recovery of Finances) Ordinance, 2001---Failure to meet such mandatory requirements, it was incumbent on Banking Court to reject such application for leave to defend in terms of S. 10(6) of Financial Institutions (Recovery of Finances) Ordinance, 2001, and pass decree forthwith---No illegality therefore existed in impugned order---Appeal was dismissed, in circumstances.

Appollo Textile Mills Limited v. Soneri Bank Limited 2012 CLD 337 rel.

Muhammad Jan Khan Babar for Appellant.

2021 C L D 1002

[Lahore]

Before Jawad Hassan and Sultan Tanvir Ahmad, JJ

MUHAMMAD SHAFEEQ---Petitioner

Versus

UNITED BANK LIMITED---Respondent

Execution First Appeal No. 30756 of 2021, heard on 21st June, 2021.

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 19 & 22---Civil Procedure Code (V of 1908) S. 51 & O. XXI, Rr. 66 & 37----Constitution of Pakistan, Art. 10A---Suit for recovery---Execution of decree of Banking Court---Detention of judgment-debtor---Power of court to enforce execution under S. 51, C.P.C.---Nature and exercise of power of Executing Court to pass order for arrest/detention of judgment-debtor---Scope---Appellant impugned order of Banking Court whereby provisions of O. XII, R. 37, C.P.C. read with S. 51, C.P.C. were invoked to arrest / detain judgment-debtor for satisfaction of decretal amount---Validity---Before passing of any order for arrest/detention of judgment-debtor, finding was required to be recorded by Executing Court that it was satisfied that decree could not be executed by delivery of any property, or by attachment and sale of property/assets---Adopting such coercive measures without due course of law would violate Art. 10A of the Constitution---No mechanical order for detention could be passed and precondition for invoking such powers for arrest were that court should be satisfied that judgment-debtor was likely to leave territorial limits of court to frustrate decree or that he had dishonestly transferred property to avoid decree or that he had means to pay for decree but was neglecting to do so and said preconditions must be reflected on record before adopting such measures, which was not done in the present case----Impugned order was set aside and Banking Court was directed to execute decree through auction of mortgaged property and / or sale of assets of judgment-debtor, with observation that Banking Court could pass fresh order under S. 51, C.P.C. in accordance with law and procedure---Appeal was allowed, accordingly.

Messrs Azhar & Co. and others v. National Bank of Pakistan 2018 CLD 830; Dr. Rauf Ahmad Azhar v. Banking Court No.II, Lahore and 6 others 2007 CLD 964; Muhammad Ashraf v. Mst. Safia Bibi 2008 CLC 1583; Muhammad Mobeen v. A.B.N. Amro Bank Limited through Manager 2015 CLD 1904; Muhammad Shahbaz Sharif v. Meezan Bank Limited and others 2019 CLD 729; Bashir Ahmad v. Judge Banking Court-I, Gujranwala Division Gujranwala and another 2005 CLD 1728; Habib Ahmad v. Haji Munir Ahmad 2004 YLR 1540; Mehboob Alam v. Federation of Pakistan through Secretary Finance and 2 others 2003 CLD 1705; Mst. Munawar Khanum v. Messrs. Habib Bank Ltd. and 3 others 2006 CLD 1508; Major (Retd.) Mahmood Hussain v. Habib Bank Limited and another 2001 CLC 2016; Ghulam Nabi v. Banking Court No.II, Gujranwala and others 2001 YLR 625; Aftab Saleem Choudhary and another v. Soneri Bank Limited through Attorneys 2005 CLD 401 and Abdul Qayyum Arif v. Agha Gul and 2 others 2002 YLR 2541 rel.

Balochistan Trading Company (Pvt.) Ltd and others v. National Bank of Pakistan and another 1998 SCMR 1899 distinguished.

Mubashar Ali Jaffari for Petitioner.

Ashfaq Usman Ahmad for Respondent.

2021 C L D 1019

[Lahore]

Before Abid Aziz Sheikh and Muhammad Shan Gul, JJ

OBAID ASSOCIATES through Proprietor and another---Appellants

Versus

UNITED BANK LIMITED---Respondent

Regular First Appeal No. 1673 of 2014, heard on 20th May, 2021.

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----S. 10---Leave to defend---Failure to append statement of account---Scope---Appellants assailed judgment passed by Banking Court whereby although unconditional leave was granted in respect of Letter of Credit facility and amount of markup in the suit, however, interim decree was passed regarding principal amount under the Cash Finance Facility---Contention of appellants was that Cash Finance Facility was not a renewal of any existing finance facility, rather same being a fresh facility, the Bank was bound to show its disbursement---Plea of Bank was that Cash Finance Facility was merely renewed through Sanction Advise Letter, hence there was no question of any fresh disbursement---Validity---No statement of account of Cash Finance Facility was appended with the plaint to show that Sanction Advise Letter was in respect of renewal of existing Cash Finance Facility and was not in respect of sanctioning of any fresh finance facility---Bank, in terms of Ss. 9 & 10 of Financial Institutions (Recovery of Finances) Ordinance, 2001, was required to put across its best case before the court to prove that no substantial questions of law or fact were in issue between the parties in respect of which evidence needed to be recorded---Interim decree was set aside---Appellants were granted unconditional leave in respect of principal amount of Cash Finance Facility as well---Appeal was allowed.

Bank of Punjab v. International Ceramics Ltd. and others 2013 CLD 1472; Decent Builders and Developers and others v. Standard Chartered Bank (Pakistan) Limited 2021 CLD 130; Nusrat Textile Mills Ltd. and 8 others v. United Bank Ltd. through Attorney 2005 CLD 1421; Soaeri Bank Limited v. Classic Denim Mills (Private.) Limited and others 2011 CLD 408 and Saudi Pak Commercial Bank Ltd. through Attorney v. Nazimuddin and another 2009 CLD 1195 ref.

Ms. Hina Bandealy for Appellants.

Syed Fazal Mahmood for Respondent.

2021 C L D 1027

[Lahore]

Before Jawad Hassan and Sultan Tanvir Ahmad, JJ

ORIX LEASING PAKISTAN LTD.through Attorney---Appellant

Versus

Messrs MUHAMMAD NOOR DAIRIES through Proprietor and 3 others---Respondents

Regular First Appeal No. 1849 of 2014, heard on 15th June, 2021.

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 3(2), 7, 9 & 22---Contract Act (IX of 1872), S. 73---Procedure of Banking Court---Suit for recovery---Lease finance for equipment---Default in monthly rental payments to Financial Institution by customer---Recovery of additional lease rental on overdue payments---Scope---Plaintiff Financial Institution impugned order of Banking Court whereby its claim on additional lease payments for overdue payments, as provided for in lease agreement, was disallowed---Validity---When cost of suit and cost of funds had been awarded by Banking Court in harmony with S. 3(2) of the Ordinance, then the same adequately protected interest of Financial Institution by reimbursing and compensating it for obstruction of funds---Any additional compensation such as additional lease rentals for overdue payments would amount to penalizing costumers and a default in lease finance contract could not have consequences of overpayment by customers and undue fiscal gain for Financial Institution---Allowing such payments would be contrary to S. 73 or Contract Act, 1872 as sufferer of breach could recover compensation only for loss or damage which naturally arose in usual course of things from such breach---No illegality therefore existed in impugned order---Appeal was dismissed, in circumstances.

Muhammad Farooq Azam v. Bank Al-Falah Limited and others 2015 CLD 1439; Habib Bank Ltd. v. Karachi Pipe Mills Ltd. 2006 CLD 842; Messrs United Bank Ltd. through Authorized attorneys v. M. Mubeen Khan 2012 CLD 1995; Emirates Global Islamic Bank Ltd. v. Muhammad Abdul Salam Khan 2013 CLD 1291; Dr. Faiz Rasool and others v. The Askari Bank Limited through Branch Manager/Authorized Authority 2015 CLD 1710; Khurram Farooq v. Bank Al-Falah Limited and another 2018 CLD 1417; Apollo Textile Mills Ltd. and others v. Soneri Bank Ltd. 2012 CLD 337 and Passco v. Omer Bilal Traders (Pvt.) Limited 2007 CLD 492 rel.

Muhammad Wasee, Ahmed for Appellant.

Nemo for Respondents.

2021 C L D 1037

[Lahore]

Before Muhammad Sajid Mehmood Sethi and Abid Hussain Chattha, JJ

BANK OF PUNJAB through Attorney---Appellant

Versus

MANZOOR QADIR and another---Respondents

Regular First Appeal No. 300 of 2016, heard on 10th June, 2021.

(a) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 10, 9, 7 & 22---Procedure of Banking Court---Suit for recovery---Application for leave to defend, adjudication of --- Question before High Court was whether Banking Court could dismiss suit without first accepting or rejecting application for leave to defend filed by defendant---Held, that Banking Court was empowered to examine the plaint to determine breach of obligation by a financial institution or a borrower before it fixed a date of hearing to decide application for leave to defend and Banking Court could reject or return a plaint by invoking any provision under the C.P.C. before summoning the defendant under S. 9(5) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (Ordinance) or before fixing a specific date of hearing for application for leave to defend---Banking Court, however, once it examined plaint, and was satisfied that same was in order as per the requirements of the Ordinance, and had issued summons to defendant pursuant to which defendant filed application for leave to defend, and a date of hearing of same had been fixed, then Banking Court ought to cease taking any further step under the provisions of C.P.C. without first deciding application for leave to defend in accordance with S. 10 of the Ordinance---Banking Court, in such a case, was therefore duty bound to either grant or reject application for leave to defend in terms of S. 10 of the Ordinance before taking any other step towards progression and continuation of the suit.

Anees-Ur-Rehman v. Faysal Bank Limited through Manager, 2019 CLD 1031; Amanullah Khan v. Habib Bank Limited 2014 CLD 1181; Sh. Nazir Ahmed v. House Building Finance Corporation, 2002 CLD 1634; Waheed Corporation v. Allied Bank Limited, 2003 CLD 245; Sheikh Muhammad Kashif v. Askari Leasing Ltd., 2004 CLD 1645; Habib Bank Limited v. The English Engineering Co. and others 2005 CLD 292; Falcon Ventures (Pvt.) Ltd. v. Punjab Banking Court-II 2004 CLD 726; Passco v. Omer Bilal Traders (Pvt.) Limited 2007 CLD 492; National Bank of Pakistan through Zonal Head And Constituted Attorney v. Messrs Suraj Ghee Industries Limited through Executive Director and 5 others 2005 CLD 1201; Gulistan Textile Mills Ltd. v. Askari Bank Ltd. and others 2013 C L D 2005; Muhammad Hussain v. SME Bank Limited and another 2005 CLD 323; Messrs Malik Israr Salim and Brothers through Proprietor v. Allied Bank of Pakistan Ltd. and 2 others 2005 CLD 1083; Muhammad Azwar Siddiqui v. Chief Executive Union Leasing Ltd. and 21 others 2006 CLD 946; Messrs Sui Northern Gas Pipelines Ltd. through Deputy Chief (Legal) v. Muslim Commercial Bank Ltd., Avari Hotel Branch, Lahore through Manager and another 2006 CLD 816 and Tharparkar Sugar Mills v. Masood Aziz Chaudhary 2010 MLD 198 rel.

(b) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 3(3), 17, 7 & 9---Procedure of Banking Court---Suit for recovery--- Decree of Banking Court---Costs of funds, grant of---Scope---Where no amount was payable by borrower / customer or even excess amount had been paid by borrower to bank / financial institution, then Banking Court could pass decree regarding cost of funds subject to offsetting excess amount, if any, which could be determined at stage of execution of such decree. [p. 1049] B

Habib Bank AG Zurich through Manager v. Mustafa Shamsuddin Ghatilla and 2 others 2003 CLD 658 distinguished.

Ch. Muhammad Aslam for Appellant.

Imtiaz Ahmad Warraich for Respondents.

2021 C L D 1112

[Lahore]

Before Jawad Hassan, J

NATIONAL BANK OF PAKISTAN---Plaintiff

Versus

Messrs KOHINOOR SPINNING MILLS and others---Defendants

Civil Original Suit No. 103757 of 2017, heard on 29th April, 2021.

(a) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 9 & 10---Suit for recovery of Bank loan---Leave to defend---Scope---Plaintiff Bank filed suit for recovery of certain amount along with mark-up, cost of funds, charges and costs of suit from the defendant company and its directors, guarantors and mortgagors---Validity---Plaintiff's suit was based on the statements of accounts attached with the plaint duly certified under the Bankers' Books Evidence Act, 1891 and the same was not rebutted by the defendants with cogent reasons either through oral evidence or through documentary evidence---Defendant company had not denied availing finance facilities nor had it denied the documentation hence had admitted the availing of finance facilities and its documents---Plaintiff, however, had alleged default in re-payment thereof--- Grievances of defendants revolved around the 'multiple allegations' and 'claims' mentioned in the Petition for Leave to Appeal (PLA)---First objection of the defendants was with respect to the incompetent institution of the suit by an unauthorized person but perusal of record revealed that suit was filed by the plaintiff through duly authorized attorneys, as their duly signed power of attorney was available on the record and therefore it was well within the requirements encapsulated under S. 9(1) of the Ordinance---Defendants had also challenged the veracity of the documents produced by the plaintiff but was just a bald allegation without any substance or proof---Defendants could not produce anything to support their stance taken in the PLA---Regarding the entries of Statement of Accounts, there was nothing untoward seen as some of the alleged disputed entries pertained to disbursement of finance facility to the defendants---Adjustment of markup was made in accordance with law and no markup over markup was charged by the plaintiff---Application of defendants for leave to defend lacked fulfilment of mandatory requirements---Defence set up in defendants' application for leave to defend was evasive, improbable and no substantial questions of law or fact were raised in the leave application and as such it was liable to be rejected---Defendants had failed to establish any ground for grant of leave to defend---Suit was decreed, in circumstances.

Muhammad Ramzan v. Agricultural Development Bank of Pakistan 2004 CLD 1376 ref.

Messrs Al-Madan Coal Company (Pvt.) Ltd. and others v. Regional Development Finance Corporation 2009 CLD 645 rel.

(b) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 5 & 7---Establishment of Banking Court---Powers of Banking Court---Scope---Financial Institutions (Recovery of Finances) Ordinance, 2001 is promulgated with an aim to streamline and expedite financial disputes between a financial institution and its customers---Separate independent forum of Banking Court is established under the Ordinance to achieve the goal of speedy decisions and a mechanism was devised wherein traditional extensive course of litigation was curtailed to a composite summary procedure to ensure adjudication in expeditious manner but at the same time safeguarding and securing rights of the parties and that is why Banking Court defined under S. 2(b) and established under S. 5 of the Ordinance is simultaneously vested with powers of a Civil Court under the Code of Civil Procedure, 1908 and powers of a Court of Session under the Code of Criminal Procedure, 1898 as per S. 7 of the Ordinance.

(c) Words and phrases---

----Default---Meanings.

Stroud's Judicial Dictionary of Words and Phrases, Eighth Edition, Volume 1 Page 711 and Advance Law Lexicon, 4th Edition, Volume-2, Page-1307 rel.

(d) Words and phrases---

----Fulfilment---Meanings.

Advanced Law Lexicon 4th Edition, Volume 2, Page 1996 and Black's Law Dictionary, Ninth Edition, Page-480 rel.

(e) Words and phrases---

----Obligation---Meanings.

Black's Law Dictionary, Ninth Edition, page 1179 and Advanced Law Lexicon, 4th Edition, Volume 3, Page- 3319-20 rel.

(f) Words and phrases---

----"Obligation" and "duty"---Meanings.

Advanced Law Lexicon, 4th Edition, Volume 3, Page- 3319-20 rel.

(g) Words and phrases---

----"Financial obligation"---Meanings.

Advanced Law Lexicon, 4th Edition, Volume 2, Page- 1886 rel.

(h) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 9 & 2(g)---Suit for recovery of loan amount---Default in re-payment---Scope---Term "willful default" is though defined under S. 2(g) of the Ordinance, which means deliberate and intentional failure of the customer to repay financial assistance secured from a financial institution yet the requirement under S. 9 is "default" simipliciter.

(i) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----S. 9---Suit for recovery of loan amount---"Default"---Scope---"Default" means failure to fulfill the conditions of a contract to pay the loan, either whole or installments and includes an unfulfilled obligation.

(j) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 9 & 10---Suit for recovery of finance facility---Leave to defend---Procedure---Scope---Ordinance provides a summary procedure for disposal of suits---When a suit is filed under the Ordinance, the defendant, as provided by S. 10(1) of the Ordinance, shall not appear or defend the suit unless he obtains leave from the Court for this purpose---If the defendant does not apply within the period provided for filing an application for leave to defend, the allegations in the plaint shall be deemed to have been admitted and a decree shall follow---In the case of a suit for recovery instituted by a financial institution the application for leave to defend shall, under S. 10(4) of the Ordinance, also specifically state: (a) the amount of finance availed by the defendant from the financial institution; the amounts paid by the defendant to the financial institution and the dates of payments; (b) the amount of finance and other amounts relating to the finance payable by the defendant to the financial institution upto the date of institution of the suit; (c) the amount if any which the defendant disputes as payable to the financial institution and facts---Under S. 10(8) of the Ordinance, the Court is empowered to grant the defendant leave to defend the suit, if on consideration of the contents of the plaint, the application for leave to defend and the reply thereto Court is of the view that substantial questions of law or fact have been raised in respect of which evidence needs to be recorded---Court, while granting leave, may impose conditions as it may deem appropriate in the circumstances of the case, including conditions as to deposit of cash or furnishing of security by virtue of S. 10(9) of the Ordinance.

(k) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----S. 10---Leave to defend---Scope---Grant of leave to defend a suit filed under the Ordinance is not a matter of right---In order to become entitled for such benefit the defendants will have to show some substantial questions of law or fact in respect of which evidence needs to be recorded---Such necessarily implies that granting of permission to defend the suit or refusal thereof shall be dependent on the attending circumstances of each case and as such no hard and fast rule can be laid down for the purpose.

(l) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 9 & 10---Suit for recovery of loan amount---Leave to defend---Statements of Account---Scope---Banking suit is normally a suit on accounts which are duly ledgered and maintained compulsorily in the books of accounts under the prescribed principles/standards of accounting in terms of the laws, rules and banking practices---As such instead of leaving it to the option of the parties to make general assertions on accounts, the Ordinance binds both the sides to be absolutely specific on accounts.

(m) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----S. 10---Leave to defend---Discretionary jurisdiction---Scope---Discretion vests with the Banking Court to allow the defendant to defend the suit, or reject his application.

(n) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 9 & 10---Suit for recovery of loan---Leave to defend---Scope---Defendant, in order to succeed, shall have to show that the Petition for Leave to Appeal (PLA) is compliant of all the mandatory requirements of S. 10 of the Ordinance; and, likewise the plaintiff shall have to show, even if PLA is refused to the defendant, that his plaint is compliant of all the mandatory requirements of S. 9 of the Ordinance, and the suit is not barred by any law.

Habib Metropolitan Bank Limited v. Century 21 Textile and Sportswear (Pvt.) Limited 2014 CLD 729 ref.

(o) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----S. 10---Principles for determining the controversy regarding grant or refusal of leave to defend, enunciated.

Following are the principles for determining the controversy regarding grant or refusal of leave to defend the suit under the Financial Institutions (Recovery of Finances) Ordinance, 2001:

(a) Leave shall be refused if no defence worth appreciation made out on facts or in law in the application for leave to defend, (b) leave shall also be refused if the defence disclosed in PLA is sham or colurable or illusory/imaginary and may not give rise to triable issues.

Needless to add that in both the above events, a decree shall follow in the suit, (c) if a defence is disclosed in PLA which may warrant putting the plaintiff to prove consideration, leave shall be granted, (d) where the defendant discloses in his PLA a case which may constitute a plausible defence or shows that there is some substantial question of fact or law which needs to be tried or investigated into, then also the defendant shall be entitled to leave to defend.

The permission to appear and defend a suit in any of the cases falling under sub-paras (c) and (d) above may be unconditional or subject to such conditions terms as may be imposed by the Court.

(e) If the defence set up is found to be vague or unsatisfactory or ingenuine on cursory perusal, leave may not be refused altogether, and if it be felt that there may be prima facie triable issues arising out of the defence disclosed, leave may be granted but on terms as may be considered necessary by the Court.

Kodak v. Alpha Film Corporation (1930) 2 K B 340; Pow Szchny Bank Zwia Zkowy W. Poisce v. Paros (1932) 2 K B 353 and "Millard v. Baddeley 1884 W N 96 ref.

(p) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 9 & 10---Suit for recovery of loan amount---Leave to defend---Statement of accounts, production of---Scope---Both plaintiff and defendant have similar responsibility to plead and state in unambiguous terms the finances availed by the defendants, repayments made by them with the dates and the amounts of finance repayable by such defendants who are also under obligation to specify the amounts disputed by them.

Apollo Textile Mills Ltd. v. Soneri Bank Ltd. PLD 2012 SC 268 rel.

(q) Constitution of Pakistan---

----Arts. 10-A & 4---Right to fair trial---Right of individuals to be dealt within accordance with law---Scope---Article 10-A of the Constitution is always to be read with Art. 4 of the Constitution since different constitutional provisions supplement each other and these are always to be read together and taken conjointly and not in isolation.

(r) Administration of justice---

----When the law laid down a qualifying yardstick to secure a certain right and provide judicable conditions to meet with the requirements and devise a neutral judicial forum to entertain the pre-qualification process and regulate the same without any curtailment of opportunity, then the party ought to meet with the conditions and requirements provided by law and to establish its right to secure the qualifying criteria before claiming right to ultimate relief and failure on its part will disentitle it under the law.

(s) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----S. 10(5)---Leave to defend---Scope---Provisions of S. 10(5) of Ordinance are mandatory in nature as their non-compliance entails penal consequences, as provided under S. 10(6) of the Ordinance.

Syed Moazzam Ali Shah, Advocate Supreme Court assisted by Rana Asif, Rana Aziz Ahmad and Ms. Tamara M. K. Saleem for Plaintiff.

Muhammad Imran Malik, Advocate Supreme Court with Hassan Ismail and Akif Majeed for Defendants.

2021 C L D 1144

[Lahore]

Before Ayesha A. Malik and Jawad Hassan, JJ

MUHAMMAD SAJJAD AHMAD KHAN and others---Appellants/Petitioners

Versus

SOUTH CHEMICALS (PVT.) LIMITED and others---Respondents

Environmental Appeals Nos. 1441 and 1436 of 2014 and Writ Petition No. 1998 of 2015, decided on 12th April, 2021.

Punjab Environmental Protection Act (XXXIV of 1997)---

----S. 23--- Appeals from order of the Environmental Tribunal---Scope---Respondent established a chemical plant in an agricultural area to produce sulphuric acid with the approval of the Environmental Protection Agency (EPA) for construction as well as operation of the plant---EPA, later on, carried out a site inspection and found that the plant was violating the terms of its approval, hence issued a show cause notice after which it cancelled its approval---Orders were challenged before the Punjab Environmental Tribunal whereby the Tribunal set aside the show cause notice as well as the cancellation order---Held; approvals granted by the EPA had expired, both the appeals had become infructuous---Separate Constitutional petitions filed by residents of the area were disposed of by the High Court with the observation that the EPA would take up the prayer in the Constitutional petition if and when the process for issuance of permission to commence the operations of the plant started---EPA was also directed by the High Court to set proper standards for sulphuric acid plants and acid mist gases emitted to ensure that international standards were followed to protect the environment---Appeals and Constitutional petition were disposed of accordingly.

Muhammad Umar Riaz for Appellants and for Petitioners (in W.P. No. 1998 of 2015).

Ms. Aliya Ijaz, A.A.G. on behalf of the Appellant (in E.A. No.1436 of 2014 along with Nabila Khalid, AD Legal EPA).

2021 C L D 1158

[Lahore]

Before Shams Mehmood Mirza, J

ADDITIONAL REGISTRAR OF COMPANIES---Petitioner

Versus

M.G. REALTORS (PVT.) LIMITED and 9 others---Respondents

C.O. No. 48 of 2006, heard on 22nd May, 2018.\

(a) Companies Ordinance (XLVII of 1984)---

----Ss. 305 & 465---Winding up of company---Pre-conditions---Non-functional companies---Loss of substratum---Contract after appointment of provisional manager---Civil litigation, status of---Two companies under winding up were non-functional for over a decade and entire project as taken over by provisional managers under the orders of Court, who had made substantial progress in locating and retrieving land of the companies---Effect---Substratum of two companies vanished and gone at the time of presenting winding up petition---Main object of companies substantially failed and substratum of companies was gone---Petitioners established grounds for winding up of companies---Ex-management of two companies went ahead and executed agreements dealing with land of project, which agreements had no legal validity and no right had come to vestin third party over land in question by its terms---Position of third party was merely that of an unpaid seller, and it was only a claimant of the amounts that it was found entitled to receiver after due scrutiny---Litigation that ensued between ex-management of two companies and third parties could not have been continued by virtue of S. 316 of Companies Ordinance, 1984---After appointment of provisional managers no litigation could have continued without leave of the High Court---High Court appointed provisional managers as official liquidators and wound up the companies--- Petition was allowed in circumstances.

In re: Synthetic Chemicals Co. Ltd. Karachi's case PLD 1985 Kar. 193; Ashutosh Sikdar v. Behari Lal Kirtania (1908) ILR 35 Cal. 61, (1907) 6 C.L.J. 320 and Baldeo Narain v. United Bank Ltd. AIR 1916 Pat. 47 ref.

(b) Companies Ordinance (XLVII of 1984)---

----Ss. 316, 325 & 330---Provisional manager---Object, purpose and scope---Custodia legis---Once provisional manager is appointed by Court, property of company and its affairs together with all actionable claims stand transferred to and vests in provisional manager appointed by Court and are treated in the eyes of law as property of custodia legis---Position of provisional manager is that of a receiver appointed for the purpose of acquiring and retaining possession of property and assets of company---Provisional manager is to act subject to and in accordance with directions of the High Court given to him from time to time.

Munawar us Salam and Shoaib Rashid for Petitioner/SECP.

Tafazal H. Rizvi for Respondents Nos. 1 and 10.

Atif Amin for Respondents Nos. 2 to 4 (Ex-management).

Safdar Magssi for SLIC for Respondent No. 7..

Muhammad Ahsan Bhoon, Muhammad Akhtar Padda and Malik Dilawar Hussain for Respondents Nos. 11 and 12/Asif Enterprises and .Maqsood and Brothers.

Awais Touseef Rana and Ahmad Arslan, Additional Provisional Manager.

Abid Hussain for NHA.

Syed Mehmood ul Hassan Gillani for FGEHF.

Sheheryar Fareed, Riaz Sheikh and Miss Nida Aftab for IBECH.

2021 C L D 1212

[Lahore]

Before Jawad Hassan and Abid Hussain Chattha, JJ

Messrs COLONY TEXTILE MILLS LIMITED and another---Appellants

Versus

FIRST PUNJAB MODARABA---Respondent

Regular First Appeal No. 214624 of 2018, heard on 20th May, 2021.

(a) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 9(3), 10(4), 10(5) & 22(3)---Civil Procedure Code (V of 1908), O. XLI, R. 11---Judgment and decree of Banking Court---Appeal against---Memorandum of appeal consisting of twenty five pages containing presumptive, superficial, hypothetical and imaginary grounds that could be conceivable under the law---Dismissal of appeal under doctrine of limine control---Held, that almost anything and everything had been stated in the Memorandum of appeal except any substantive ground that may require determination/adjudication, ignoring that the determination of the amount due, was in essence, the true purpose, intent and reason for the enactment of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the Ordinance) as capsulated in Ss. 9(3) & 10(4) of the Ordinance---On account of such deliberate and persistent misuse of right conferred under the Ordinance and blatant abuse of the process of the law and Court, S. 10(5) was inserted in the Ordinance---In the present case, the grounds of appeal were unsubstantiated, general, vague and bald accusations not supported with any cogent prima facie evidence or material, which may require issuance of notice to the decree-holder/respondent or summoning entire record or admit present appeal in whole or in part --- Retaining present appeal on the docket of the Court shall only burden the Court, postpone a writing on the wall and bring misery for the contesting parties, at least, for the decree holder---Speedy and efficacious justice was a fundamental pillar of the rule of law---Applying the doctrine of limine control, present appeal was dismissed in limine under S. 22(3) of the Ordinance read with O.XLI, R. 11, C.P.C.

Asif Saleem v. Chairman Bog University of Lahore and others PLD 2019 Lah. 407 ref.

(b) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 10(4) & 10(5)---Petition for leave to appear and defend the suit ("PLA")---Practice of presenting voluminous PLA, raising all kinds of settled and conceivable grounds alien to record of the suit---High Court deprecated such practice and observed that purpose of such PLA was to burden the Courts with the only objective to gain time and choke the system of administration of justice based on fair play and equity; that such trend ought to be discouraged because in the presence of such perception, the customers with bona fide disputes also suffered and generally the system of administration of justice failed to deliver its true and real objective---Appeal was dismissed.

Muhammad Imran Malik for Appellants.

2021 C L D 1220

[Lahore]

Before Abid Aziz Sheikh, J

The BANK OF KHYBER through Branch Manager---Plaintiff

Versus

Messrs KASHMIR SUGAR MILLS LIMITED through Chief Executive and others---Defendants

C.O.S. No. 35402 of 2019, heard on 23rd June, 2021.

(a) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 9 & 7---Suit for recovery---Procedure of Banking Court---Persons authorized to file suit on behalf of financial institution/Bank --Scope---Branch Manager of a Bank was authorized under S. 9(1) of Financial Institutions (Recovery of Finances) Ordinance, 2001 to institute suit on behalf of a plaintiff Bank.

Messrs Ravi Medical Supplies and others v. Messrs First Women Bank Limited through Branch Manager 2016 CLD 1726 rel.

(b) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 10, 9 & 7---Suit for recovery---Procedure of Banking Court---Application for leave to defend, adjudication of---Replication filed by plaintiff bank in reply to application for leave to defend---Scope---Argument that mere filing of documents by plaintiff Bank along with reply to application for leave to defend, would give rise to grant of application for leave to defend was misconceived---Plaintiff Bank had right to file replication, purpose of which was to provide plaintiff opportunity to rebut averments made by defendant in application for leave to defend---Plaintiff could only file this documents along with replication which were either to be filed by defendant with application to leave to defend, or ancillary documents to rebut averments contained in an application for leave to defend.

Messrs Muzamil Brothers and others v. Saudi-Pak Commercial Bank Limited 2006 CLD 1546; Bank of Punjab v. International Ceramics Ltd, and others 2013 CLD 1472; Decent Builders and Developers and other v. Standard Chartered Bank 2021 CLD 130 and dated 20.5.2021 in R.F.A. No.1673/2014 distinguished.

Muhammad Ahmed Khan v. The Bank of Punjab and others 2015 CLD 158; The Bank of Punjab through Branch/Chief Manager v. Messrs Khan Unique Developers and others 2016 CLD 29 and Silk Bank Limited v. Al-Khan Constructions Company and others 2017 CLD 496 rel.

Abdul Hameed Chohan and Shakeel Ahmad for Plaintiff.

Muhammad Imran Malik for Defendants.

2021 C L D 1229

[Lahore]

Before Jawad Hassan, J

Mst. ZAHIDA PARVEEN---Petitioner

Versus

LAMREY CERAMICS (PVT.) LIMITED and others---Respondents

Civil Original No. 58 of 2006, heard on 29th April, 2021.

(a) Companies Ordinance (XLVII of 1984) [since repealed]---

----Ss. 9 & 152---Power of Court to rectify register of members---Scope---Jurisdiction of High Court under S.152 of Companies Ordinance, 1984 stated.

Section 152 of the Companies Ordinance, 1984 ('the Ordinance') gave wide powers to the High Court to rectify the register of members, yet, the jurisdiction of the High Court was summary in nature. Intention of the legislature was to introduce new provision in the Ordinance to provide a very expeditious and summary procedure. Section 152 of the Ordinance empowered the Court to decide any question relating to "rectification" of the register including a question of law. For any question raised within the peripheral field of rectification, it was the High Court under section 152 alone which had the exclusive jurisdiction. However in case any claim was based on some seriously disputed civil rights or title, denial of any transaction or any other basic facts which may be the foundation to claim a right to be a member, and if the Court felt such claim did not constitute rectification but instead required adjudication of a basic pillar or facts falling outside the rectification, it had the discretion to send a party to seek its relief before Civil Court first for the adjudication of such facts. In case, allegation of fraud and fabrication or intricate question of law was involved requiring recording of evidence, the High Court could advise the party to approach the Civil Court of competent jurisdiction to get the issue determined and in case of favourable judgment, the litigant could always approach the High Court again under section 152 of the Ordinance.

Manzoor Ahmad Bhatti v. Haji Noval Khan 1986 CLC 2560; Syed Shafqat Hussain v. Registrar, Joint Stock Companies Lahore PLD 2001 Lah. 523; Zakir Latif Ansari v. Pakistan Industrial Promoters Ltd. 1988 CLC 154 and Lahore Race Club v. Raja Khushbakht-ur-Rehman PLD 2008 SC 707 ref.

(b) Companies Ordinance (XLVII of 1984) [since repealed]---

----S. 152---Power of Court to rectify register of members---Rectification---Connotation---"Rectification" itself connoted some error, which had crept in requiring correction---Error would only mean that everything as required under the law had been done yet by some mistake a name was either omitted or wrongly recorded in register of the company.

Lahore Race Club v. Raja Khushbakht-ur-Rehman PLD 2008 SC 707 ref.

(c) Limitation Act (IX of 1908)---

----Art. 120---Companies Ordinance (XLVII of 1984) [since repealed], S. 152---Application/petition under S.152 of the Companies Ordinance, 1984 for rectification of register of members---Limitation---Principles---Law of limitation was fully applicable to a petition filed under S.152 of the Companies Ordinance, 1984 ('the Ordinance')---Summary proceedings under S.152 of the Ordinance could not be resorted to when the suit for seeking same relief had become barred by time under the Limitation Act, 1908---Limitation period for seeking same relief in a civil suit would also be deemed limitation period for the purposes of application under S.152 of the Ordinance---Civil suit for a relief under S.152 of the Ordinance would entail the limitation period prescribed in Art. 120 of Limitation Act, 1908, therefore, said Article shall also be applicable to a petition filed under S.152 of the Ordinance and period mentioned in the said Article should be taken as a reasonable standard by which delay was to be measured.

Khurshid Ahmad Khan v. Pak Cycle Manufacturing Company Ltd. PLD 1987 Lah. 1; Mian Waheed-ud-Din v. Messrs Royal Rice Millers 2015 CLD 1978 and Mrs. Saeeda Mahmood v. Anas Munir 2007 CLD 637 ref.

(d) Limitation Act (IX of 1908)---

----S. 5 & Art. 163---Civil Procedure Code (V of 1908), O.IX, Rr. 3, 4, 8 & 9---Companies Ordinance (XLVII of 1984) [since repealed], S. 152---Petition under S.152 of the Companies Ordinance, 1984 dismissed due to default/non-prosecution--- Application seeking restoration of petition---Limitation for filing such application---Condonation of delay---If an application was dismissed due to default as provided under O.IX, R. 3 or R. 8, C.P.C. it could be restored in accordance with O.IX, Rr.4 & 9 of C.P.C. provided that such restoration was sought within the limitation period of thirty days as specifically provided under Art. 163 of Limitation Act, 1908---Therefore the time limitation for filing an application for restoration of a petition under S.152 of the Ordinance was thirty days from the date of its dismissal---Although S. 5 of Limitation Act, 1908 was made applicable to such an application for restoration, however, the petitioner was bound to establish sufficient cause, which prevented him/her to approach the Court within the period of limitation.

(e) Limitation Act (IX of 1908)---

----S. 5---'Pardanasheen lady'---Cause of action barred by time---Condonation of delay---Principles relating to justification for condonation of delay in cases involving Pardanasheen lady---"Pardanasheen lady" was not a term of art; it has legal purport, impact and significance, which encapsulated certain defences in favour of a woman taking and establishing such plea, which were not available to other persons under the law; it was a bulwark, which offered legal immunity from certain ordinary binding legal principles especially a valid legal justification to substantiate the plea for condonation of delay on the touchstone of being unaware or uninformed; it offered a legitimate defence to agitate a cause of action which was otherwise barred by flux of time under the applicable limitation criteria---Valid excuse of being a pardanasheen lady therefore offered a strong ground and a reasonable consideration for exercising discretion in favour of a time barred application, as it could be taken as a sufficient cause within the contemplation of S.5 of the Limitation Act, 1908 to condone the delay.

(f) Limitation Act (IX of 1908)---

----S. 5---'Pardanasheen lady'---Petition barred by time---Application seeking restoration of petition not filed within time---Condonation of delay---Perusal of available record revealed that the petitioner-lady had been appearing personally before Courts in two different cities in suits filed by the respondents which were decided in year 2003 while the petition was dismissed on 27-12-2002---Petitioner (lady) on the one hand had been appearing before the Courts personally and also by engaging counsel independently and on the other hand, she was taking the plea of being a Pardanasheen lady, which was contrary to her conduct---When the petitioner was performing such like professional activities personally, the principle of pardanasheen lady and presumption and immunities attached with it under the law, did not apply in her favour---Petition was dismissed.

Muhammad Shujaat Khan v. Nawab Mashkoor Ahmed Khan 2000 SCMR 953 ref.

(g) Companies Ordinance (XLVII of 1984) [since repealed]---

----S. 76---Transfer of shares and debentures---Requirements under S.76 of the Companies Ordinance, 1984 for transfer of shares and debentures---Such requirements were mandatory in nature and in the absence of such compliance no transfer of shares in law stood effected.

Muhammad Imran Sarwar, Advocate Supreme Court and Saad Ullah for Petitioner.

Hafiz Muhammad Talha, Legal Advisor for SECP.

Zaka-ur-Rehman, Advocate Supreme Court and Sheraz Zaka for Respondent No.11.

2021 C L D 1279

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh, J

DILAWAR KHAN---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION FIA/CC, MULTAN and 3 others---Respondents

Writ Petitions Nos. 3102 and 6749 of 2020, decided on 4th May, 2021.

(a) Intellectual Property Organization of Pakistan Act (XXII of 2012)---

----Ss. 13 (xviii) (xix) (xx) & 39---Copy Right Ordinance (XXXIV of 1962), Ss. 60, 60-A & 67-C---Federal Investigation Agency Act, 1974 (VIII of 1975), S.3---Penal Code (XLV of 1860), Ss. 420, 468 & 471---Constitution of Pakistan, Art. 199---Constitutional petition---Quashing of FIR--- Intellectual property right, infringement of---Jurisdiction of investigation---Petitioner was facing investigation with Federal Investigation Agency for infringing registered copyright of complainant---Validity---Under S. 13(xix) read with S. 39 of Intellectual Property Organization of Pakistan Act, 2012, had conferred exclusive jurisdiction on Intellectual Property Organization to initiate and conduct inquiries, investigations and proceedings related to offences under the laws specified in Schedule--- Complainant alleging infringement of his copyright was to approach the Organization---Complaint was then to referred under S. 13(xx) of Intellectual Property Organization of Pakistan Act, 2012, by the Organization to concerned law enforcement agency or authority--- Federal Investigation Agency could not entertain any complaint directly and register FIR---Such has a purpose and the Organization was a bulwark against frivolous complaints and undue harassment---Organization was a specialized body which had expertise and requisite data to verify whether there was actually a case of infringement of intellectual property rights under applicable law---Intellectual Property Organization of Pakistan Act, 2012 had ordained under S. 13(xviii) of Intellectual Property Organization of Pakistan Act, 2012, to initiate and monitor enforcement and protection of intellectual property rights through designated law enforcement agencies of Federal or Provincial Government---Inclusion of Copyright Ordinance, 1962 in Sched. of Federal Investigation Agency Act, 1974, had effect of designating Federal Investigation Agency for enforcement in terms of S. 13(xviii) of Intellectual Property Organization of Pakistan Act, 2012---Such could not left to officer of the Organization to choose between two agencies i.e. Federal Investigation Agency and local police---Absence of reasonable classification and prescribed parameters impinged on fundamental right guaranteed under Art. 25 of the Constitution---High Court quashed FIR in question as the same was without lawful authority and complainant could proceed against petitioner afresh in accordance with law---Constitutional petition was allowed accordingly.

Director General, FIA, and others v. Kamran Iqbal and others 2016 SCMR 447; Syed Mushahid Shah and others v. Federal Investigating Agency and others 2017 SCMR 1218; The State through Deputy Attorney-General v. Muhammad Amin Haroon and 14 others 2010 PCr.LJ 518 and Dr. Syed Iqbal Raza v. Justice of Peace and others 2019 CLD 881 ref.

Messrs Farooq Ghee and Oils Mills (Pvt.) Ltd. v. Registrar of Trade Marks, Trade Mark Registry and others 2015 SCMR 1230; Orissa State Prevention and Control of Pollution Board v. Messrs Orient Paper Mills and another AIR 2003 SC 1966; Jantia Hill Truck Owners Association v. Shailang Area Coal Dealer and Truck Owner Association and others (2009) 8 SCC 492; Black's Law Dictionary (Sixth Edition); R. Dalmia v. The Commissioner of Income Tax New Delhi AIR 1977 SC 988; Shah Muhammad Khan v. The Federation of Pakistan and 2 others PLD 1958 (W.P.) Lahore 137; Asif Saigol and 2 others v. Federation of Pakistan through the Interior Secretary, Pakistan Secretariat, Islamabad and 2 others PLD 2002 Lah. 416; Javed Iqbal and 2 others v. Federal Investigation Agency and 3 others PLD 1986 Lah. 424; Asif Saigol and 2 others v. Federation of Pakistan through the Interior Secretary, Pakistan Secretariat, Islamabad and 2 others PLD 1998 Lah. 287; Shahbaz-ud-Din Chaudhry and 3 others v. The Director, FIA, C.B.C., Lahore and 2 others 1999 YLR 678; Zafar Iqbal and 3 others v. Ghulam Abid and 2 others 1995 MLD 1285; Mian Hamza Shahbaz Sharif v. Federation of Pakistan and others 1999 PCr.LJ 1584; Federal Employees Cooperative Housing Society through President v. Director General, Federal Investigation Agency, Islamabad and others 2019 PCr.LJ 594; Vita Pakistan Limited through Chief Executive v. Director-General, FIA and 3 others PLD 2011 Lah. 181; Iftikhar Hussain and others v. Government of Pakistan and others 2001 PCr.LJ 146; Manzoor Ahmad Akhtar v. The Special Judge, Central, Lahore and another PLD 1995 Lah. 1; Mrs. Surayya Farman v. The State 1998 PCr.LJ 958; Malik Ghulam Yaseen and another v. The Deputy Director, FIA, Lahore and another 1990 PCr.LJ 1834; Ch. Alla-ud-Din v. S.S.P., District Sargodha and 2 others 1999 PCr.LJ 1909; Rafi Ahmed and another v. Special Judge Central, Lahore and another PLD 2010 Lah. 692; Dr. Syed Iqbal Raza and others v. Justice of Peace, Islamabad and others 2019 CLD 642; 2019 PCr.LJ 1059; State through Deputy Attorney General v. Ikramullah PLD 2021 Bal. 1; 2020 CLD 1203; District Bar Association, Rawalpindi and others v. Federation of Pakistan and others PLD 2015 SC 401; Dewan Salman Fiber Ltd. and others v. Federation of Pakistan through Secretary Ministry of Finance and others 2015 PTD 2304; Ch. Basharat Ali v. Federation of Pakistan through Secretary Labour and Manpower Division Islamabad and 4 others 2012 PLC 219; Engro Fertilizers Limited v. Islamic Republic of Pakistan and Federation of Pakistan, Islamabad and others PLD 2012 Sindh 50 and National Bank of Pakistan v. Iftikhar Rasool Anjum and others 2017 PLC (C.S) 453 rel.

(b) Interpretation of statutes---

----Preamble---Scope---Preamble is part of a statute though not its operative part---Useful guide is provided by preamble to find out legislative intent---Sometimes purpose of statute is not discernable from preamble; in such situation Court must look at the whole of it to find out legislative intent.

Mst. Ummatullah through Attorney v. Province of Sindh through Secretary Ministry of Housing and Town Planning, Karachi and 6 others PLD 2010 Kar. 236; Kamil Khan Mumtaz and others v. Province of Punjab through Chief Secretary, Government of Punjab, Lahore and others PLD 2016 Lah. 699; Doe v. Branding, (1828) 7 B & C 643; Attorney-General v. H.R.H. Prince Ernest Augustus of Hanover, 1957 AC 436; Mst. Zainab Bibi and others v. Mst. Bilqis Bibi and others PLD 1981 SC 56 and Pakistan Railway v. Abdul Haqique and others 1991 SCMR 657 rel.

(c) Federal Investigation Agency Act, 1974 (VIII of 1975)---

----S. 3 & Sched.---Federal Investigation Agency---Jurisdiction---Dispute between private parties---Scope---Federal Investigation Agency does not have jurisdiction in matters between private individuals and that there must be some nexus between offences complained of and Federal Government.

Province of West Pakistan and another v. Mahboob Ali and another PLD 1976 SC 483 and Director General, FIA and others v. Kamran Iqbal and others 2016 SCMR 447 rel.

(d) Interpretation of statutes---

----Purposive construction---Scope---Purposive construction is one of the important ways to give effect to legislative intent.

Adnderson v. Ryan, (1985) 2 All ER 355; Muhammad Shafi v. Deputy Superintendent of Police (Malik Gul Nawaz), Narowal and 5 others PLD 1992 Lah. 178; Speech of Lord Diplock "Courts and Legislators", Birmingham (1965) and Judicial Review of Public Actions, Second Edition, p. 625 rel.

(e) Federal Investigation Agency Act, 1974 (VIII of 1975)---

----S.O. 3 & Sched.---Federal Investigation Agency---Jurisdiction---Pre-conditions---Jurisdiction of Federal Investigation Agency is attracted if two conditions are satisfied: first, the offence is included in schedule of Federal Investigation Agency Act, 1974 and secondly, the offence must be in connection with matters concerning Federal Government.

Mian Ahmad Mahmood, assisted by Muhammad Afzal Bhatti for Petitioner.

Malik Muhammad Siddiq, Assistant Attorney General for Pakistan, with Zahid Iqbal/SI, Junaid Hassan/SI for Respondents Nos. 1 and 2.

Mian Babur Saleem for Respondent No. 3.

Amjad Ali Ansari, Assistant Advocate General, with Zakir Hussain/ASI for Respondent No. 4.

Sher Hassan Pervez and Shafqat Abbas, Research Officers, Lahore High Court Research Centre for Research assistance.

2021 C L D 1317

[Lahore]

Before Jawad Hassan, J

DILSONS (PRIVATE) LIMITED and others---Petitioners

Versus

SECURITIES AND EXCHANGE COMMISSION OF PAKISTAN and another---Respondents

C. O. No. 62794 of 2020, heard on 25th August, 2021.

(a) Competition Act (XIX of 2010)---

----S. 11---Approval of merger---Scope---Competition laws ensure that businesses compete fairly and robustly with each other to improve overall economic efficiency and welfare---Such is generally done through ex post facto enforcement actions targeting violations of competition rules by business entities---Only exception to this is merger control where competition agencies determine the competition effects of a business merger prior to its consummation so as to ensure sufficient competition in the market---Mergers and acquisitions are generally important for the economy as they can herald in efficiency, synergy and investment---Mergers may help the companies to improve management, resources, research, development and technology, similarly, they may also assist the companies to work quickly and smoothly, minimize disruptions, increase market share, innovate and adapt to emergent trends---Some transactions can potentially lead to substantial lessoning of competition in the market thereby leading to uncompetitive pricing, fewer choices, drop in quality, or more barriers to entry in the market, etc.---Such is particularly true in relatively uncontested markets (with less number of competitors) or where one or more merging parties hold dominance in the market, this underscores the importance of merger control as the analysis of competition issues invariably require an assessment of market power, and such an assessment cannot be conducted without an understanding of the economic concepts involved---Same is true of types of behaviour, for example, cartelization, predatory pricing, discrimination, mergers with which competition law is concerned.

Competition Law written by Richard Whish and David Bailey, Oxford University Press, Seventh Edition, p-810, Chapter 20 - Mergers and United States v. Topco Assocs., Inc., 405 U.S. 596 (1972) rel.

(b) Companies Act (XIX of 2017)---

----Ss. 279, 280, 281, 282, 283 & 285---Competition Act (XIX of 2010), S. 11---Competition (Merger Control) Regulations, Regln. 6---SRO No. 840(I)/2017 dated: 17-08-2017---Compromise with creditors and members---Power of Commission to enforce compromises and arrangements---Information as to compromises or arrangements with creditors and members---Powers of Commission to facilitate reconstruction or amalgamation of companies---Power to acquire shares of members dissenting from scheme or contract---Approval of mergers---Scope---Mergers and acquisitions are primarily governed by the Companies Act, 2017, the Competition Act, 2010 and the Competition (Merger Control) Regulations, 2016---Sections 279 to 283 & 285 of the Companies Act, 2017, govern the procedure for merger in Pakistan---Section 279 of the Companies Act, 2017, empowers Securities and Exchange Commission of Pakistan (SECP) to order a meeting of the creditors or members of the company where a "compromise" or "arrangement" is proposed between a company or its creditors or between the company and its members---If three-fourth creditors or members agree to such compromise or arrangement and if it is sanctioned by SECP, such compromise or arrangement becomes binding on the company, its creditors, its members and the contributories---Section 280 of the Companies Act, 2017, empowers SECP to give directions in regard to any matter or make modifications in the compromise or arrangement for its proper working---SRO No.840(I)/2017 dated: 17-08-2017 has notified that the powers of SECP conferred by Ss. 279 to 283 & 285 of the Companies Act, 2017, in respect of the public interest companies, large sized companies and medium sized companies classified under the Third Schedule to the Companies Act, 2017, shall be exercised by the Company Bench of the High Court having jurisdiction under the Act.

(c) Competition Act (XIX of 2010)---

----Ss. 11 & 12---Approval of mergers---Establishment of Competition Commission of Pakistan---Purpose---Scope---Competition Commission of Pakistan (CCP) is established under S. 12 of the Competition Act, 2010, with intent to ensure free competition and economic efficiency and to carry out the administrative function of the executive to promote consumer welfare with the sole objective to regulate anti-competitive behaviour---Purpose of CCP is to ensure fair competition by regulating the prohibitions set out in Chapter II of the Competition Act, 2010---CCP has a regulatory objective to promote free competition and prevent anti-competitive behaviour and prescribe enforcement mechanisms to ensure compliance---Even for mergers, the CCP is concerned with the effect of the merger on competition as to whether it would lessen competition by creating or strengthening a dominant position in the relevant market---Competition Commission of Pakistan (CCP) is a regulatory authority with administrative functions which include granting advice, creating awareness, imparting training, reviewing policy frameworks to foster competition as well as decision making to enforce the regulatory policy.

(d) Competition Act (XIX of 2010)---

----S. 11---Approval of mergers---Scope---Section 11 of the Competition Act, 2010 contains detailed provisions concerning the approval of mergers by the Competition Commission of Pakistan (CCP)---Under S. 11(1) of the Competition Act, 2010, no undertaking can enter into a merger which substantially lessens competition by creating or strengthening a dominant position in the relevant market---Under S. 11(2) of the Competition Act, 2010, where undertakings intend to merge whole or part of their business and meet the pre-merger notification thresholds stipulated in the Competition (Merger Control) Regulations, 2016, such undertakings are required to apply for clearance from CCP of the intended merger---Under S. 11(3) of the Competition Act, 2010, the undertakings are required to submit a pre-merger application to the CCP as soon as they agree in principle or sign a non-binding letter of intent to proceed with the merger---Under S. 11(4) of the Competition Act, 2010, the undertakings cannot proceed with the merger until they have received clearance from CCP---Under S. 11(5) of the Competition Act, 2010, the CCP is required to decide on whether the intended merger meets the threshold and presumption of dominance and is also required to make such order within thirty (30) days of receipt of the application.

(e) Companies Act (XIX of 2017)---

----Ss. 279 to 283---Competition Act (XIX of 2010), S. 11---Approval of merger---Duty of Court---Scope---Where the scheme is found to be reasonable and fair, at that moment in time it is not the sense of duty or province of the Court to supplement or substitute its judgment against collective wisdom and intellect of the shareholders of the companies involved---Nevertheless, it is the duty of the Court to find out and perceive whether all provisions of law and directions of the Court have been complied with and when the Scheme seems like in the interest of the company as well as in that of its creditors, it should be given effect to---Court has to satisfy and reassure the accomplishment of some foremost and rudimentary stipulations that is to say, the meeting as appropriately called together and conducted; the compromise was a real compromise; it was accepted by a competent majority; the majority was acting in good faith and for common advantage of the whole class; what they did was reasonable, prudent and proper; the Court should also satisfy itself as to whether the provisions of the statutes have been complied with; whether the scheme is reasonable and practical or whether there is any reasonable objection to it; whether the creditors acted honestly and in good faith and had sufficient information; and whether the Court ought in the public interest to override the decision of the creditors and shareholders.

Dewan Salman Fiber v. Dhan Fibers Limited PLD 2001 Lah. 230; in the matter of "International Complex Projects Limited and another" 2017 CLD 1468 and Volume 2 of the Guide to the Companies Act by A. Ramaiya (1 8th Edition) rel.

(f) Companies Act (XIX of 2017)---

----Ss. 279 to 283---Competition Act (XIX of 2010), S. 11---Approval of merger---Duty of Court---Scope---Object of amalgamation or reconstruction is to enable companies to come out of difficulties and to re-establish their business---No restriction existed as regards the kind of company with which alone there can be amalgamation---If the shareholders resolve to amalgamate with a company, whether having same or different objects, the Court will not sit in judgment over the wisdom or otherwise of the resolution.

(g) Companies Act (XIX of 2017)---

----Ss. 279 to 283---Competition Act (XIX of 2010), S. 11---Approval of merger---Duty of Court---Effect and purpose of sanction of Court---Scope---One of the effects of the sanction of the Court is that it becomes binding upon the company and its members including those who voted against the scheme---Once the scheme of compromise and arrangement is approved by statutory majority, it binds the dissenting minority and the company---Court has the power to give effect to all the incidental and ancillary questions in the effort to satisfy itself whether the scheme has the approval of the requisite majority---Such is not the function of the Court to examine whether there is a scope for better scheme, however, where the Court finds that scheme is patently fraudulent, it may not respond or function as mere rubber stamp or post office but reject the Scheme of Arrangement.

Presson Descon International Pvt Limited and others v. Joint Registrar of Companies PLD 2020 Lah. 869 = 2020 CLD 1128 rel.

(h) Companies Act (XIX of 2017)---

----Ss. 279 to 283---Competition Act (XIX of 2010), S. 11---Approval of merger---Duty of Court---Scope---Court acts like an umpire in a game of cricket who has to see that both the teams play their game according to the rules and do not overstep the limits---Propriety and the merits of the compromise or arrangement have to be judged by the parties as sui juris with their open eyes who were fully informed about the pros and cons of the scheme, had arrived at their own reasoned judgment and had agreed to be bound by such compromise or arrangement.

Dawood Hercules Chemicals and others 2012 CLD 582 and Messrs Fazal Cloth Mills Limited v. Fazal Weaving Mills Limited 2021 CLD 182 rel.

(i) Companies Act (XIX of 2017)---

----Ss. 279 to 283---Competition Act (XIX of 2010), S. 11---Approval of merger---Duty of Court---Valuation of shares---Scope---Court while scrutinizing the Scheme placed for its sanction leaves the issue of valuation of shares to the consideration of experts in the field of accountancy as it is a technical and complex problem.

Gadoon Textile Mills and other's case 2015 CLD 2010 rel.

Ahsan Ahmed Munir and Ramsha Shahid for Petitioners.

Hafiz Muhammad Talha, Advocate/Legal Advisor for SECP and Ruman Bilal for Respondents.

Asghar Leghari for Competition Commission of Pakistan.

Waqar Saeed Khan, Assistant Advocate-General.

Date of hearing: 25th August, 2021.

2021 C L D 1351

[Lahore]

Before Shahid Karim, J

SUMMIT BANK LIMITED---Petitioner

Versus

TANVEER COTTON MILLS (PVT.) LTD.---Respondent

Civil Original No. 28 of 2013, decided on 17th June, 2021.

(a) Companies Act (XIX of 2017)---

----S. 302---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S. 9(1)---Winding up of company---Unwillingness/ inability to pay debts---Distinction---Unwillingness to pay debts is not to be equated with inability to pay debts---Inability to pay debts is an independent cause of action and must be predicated on the material brought on record which would show that the company is commercially insolvent and its future financial viability is in serious doubt---Unwillingness to pay debt takes the case in the realm of bona fide dispute which the company sought to be liquidated has raised on substantial grounds---If a company puts forth a good faith defence and disputes the amount to be due on substantial questions of law and fact, a winding up petition cannot be used as tool for recovery of an amount for which a normal remedy available to petitioner would be filing of a suit for recovery and provisions of Companies Act, 2017 cannot be used as an engine of coercive measures to extract an amount regarding which a dispute is shown to exist---Object of winding up petition is to gauge factors regarding solvency or otherwise of a company and not to settle claims of creditors.

(b) Companies Act (XIX of 2017)---

----S. 302--- Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S. 9---Winding up of company---Decree by Banking Court---Effect---Law presumes that in order for Court to deem that a company is unable to pay its debts it must await the result of a process issued on an execution for the satisfaction of a decretal debt---Mere fact that decree has been passed by a Court of original jurisdiction cannot compel High Court to wind up the companies.

(c) Companies Act (XIX of 2017)---

----Ss. 302 & 320---Winding up of company---Inability to pay debts---Determination---Petitioners were banking companies who on the basis of Auditors' reports as well as on the basis of decrees passed by Banking Court, sought winding up of respondent companies---Validity--Negative equity which continued to rise led to the ineluctable conclusion that substratum of respondent companies had lost---Auditors reports over the years had shown that current liabilities of the companies exceeded current assets---Such circumstance was sufficient to make out a strong case that it was just and equitable that the companies be wound up---Respondent companies had sufficient time on their hands to resuscitate their fortunes in order to compel the Court to believe in their future prospects as also to have trust in good faith of the sponsors/directors to continue to revive the companies into profitable undertakings---Nothing of such kind was demonstrated to High Court and it was evident that continuance of operation of respondent companies in the management of existing managers would be potentially disastrous---High Court ordered to wind up respondent companies---Petition was allowed accordingly.

Messrs United Ethanol Industries Ltd. v. Messrs JDW Sugar Mills Ltd. 2020 CLD 945; Saudi Pak Ltd. v. Chenab (C.O No.43 of 2011) and Hala Spinning Mills v. International Finance Corporation and others 2002 CLD 1487 rel.

Shazib Masud, Abu Zar Salman Khan Niazi, Faiz Ullah Khan, Rafiah Farrukh Rashid, Zeeshan Mazari, Amna Ali, Zain Sheikh and M. Asad Butter for Petitioners.

Shahid Ikram Siddiqui, Akif Majeed and Hassan Ismail for Respondent.

Ruman Bilal, Advocate for SECP.

2021 C L D 1372

[Lahore]

Before Abid Aziz Sheikh and Muhammad Sajid Mehmood Sethi, JJ

JAMAL TUBE (PVT.) LTD., LAHORE through Chief Executive Officer and others---Appellants

Versus

FIRST PUNJAB MODARBA, LAHORE through Authorized Officer and another---Respondents

R.F.A. No. 901 of 2016, heard on 20th September, 2021.

(a) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 10, 9, 7 & 22---Constitution of Pakistan, Arts. 199, 10A & 4---Suit for recovery---Application for leave to defend---Failure of plaintiff Bank to append certified statement of account and documents relating to disbursement of finance---Fundamental right of fair trial and due process---Scope---Defendant impugned order of Banking Court whereby its application for leave to defend was rejected---Contention of defendant inter alia, was that plaintiff bank had not annexed proper statement of account and disbursement of finance as claimed by plaintiff Bank was not made, and therefore impugned order was liable to be set aside---Validity---Record revealed that plaintiff bank had not appended documents showing disbursement of amounts to defendant and such failure of plaintiff Bank to append certified statement of account along with other documents relating to grant of finance was non-compliance of S. 9 of Financial Institutions (Recovery of Finances) Ordinance, 2001---Effect of such non-compliance entailed grant of leave to defend suit to defendant---Defect in non-filing of complete and accurate statement of account with plaint could not be cured subsequently by filing same with replication or with application seeking submission of additional documents ---- Application for leave to defend if dismissed while relying on a statement of account not filed with plaint or replication, then same would tantamount to infringement of Fundamental Right to Fair Trial and Due Process guaranteed under Arts. 4 & 10A of Constitution---Since mandatory requirement of filing statement of account with plaint was not fulfilled and disbursement of finance facility was not established through any valid document, therefore substantial questions of law and fact arose, and thus application for leave to defend ought to have been granted by Banking Court---Impugned order was set aside, application for leave to defend of defendant was allowed and matter was remanded to Banking Court---Appeal was allowed, accordingly.

Pakistan Kuwait Investment Company (Pvt.) Limited through Authorized Representative v. Messrs Active Apparels International and 6 others 2012 CLD 1036; Bank of Punjab v. International Cremacis Ltd. and others 2013 CLD 1472; Pak Oman Investment Company Limited v. Chenab Limited and 9 others 2016 CLD 1903; National Bank of Pakistan v. Messrs Amna Export (Private) Limited and 2 others 2020 CLD 1243; Decent Builders and Developers and others v. Standard Chartered Bank (Pakistan) Limited 2021 CLD 130; Abdul Khaliq and 3 others v. MCB Bank Limited through Manager 2021 CLD 776; Soneri Bank Limited v. Classic Denim Mills (Pvt.) Limited and 3 others 2011 CLD 408; Sheikh Murshid Ali and others v. United Bank Limited 2016 CLD 1471 and Abdul Sattar v. Muslim Commercial Bank Limited through Manager/ Attorney and 2 others 2019 CLD 1254 rel.

(b) Words and phrases---

----"Substantial question of law", meaning of----Substantial question of law was one which had substance, was essential, real and of sound worth and importance, and was in contradistinction with one which was technical, of no substance or consequences or which was merely academic.

Boodireddy Chandraiah and others v. Arigela Laxmi and another AIR 2007 (SCW) 7062; Kashmir Singh v. Harnam Singh and another 2008 (2) R.C.R. (Civil) 688 and G. Basavaraj v. H.M. Shivappa Patel 2011 (19) R.C.R. (Civil) 701 rel.

Salman Mansoor for Appellants.

Bilal Ahmad Kashmiri for Respondent/Bank.

Barrister Ameer Abbas Ali Khan, Assistant Advocate General on Court's call.

Research by:

Ahmad Zia Ch., Civil Judge/Research Officer, LHCRC and Muhammad Imran Sh., Additional District Judge/Senior Research Officer, LHCRC.

2021 C L D 1388

[Lahore]

Before Ch. Muhammad Iqbal and Safdar Saleem Shahid, JJ

Mst. ZAKIA ILYAS RAJA---Applicant

Versus

STATE LIFE INSURANCE CORPORATION OF PAKISTAN and others---Respondents

Insurance Appeal No. 8608 of 2019, heard on 7th June, 2021.

Insurance Ordinance (XXXIX of 2000)---

----Ss. 118 & 124---Life insurance---Payment of liquidated damages on late settlement of claims---Repudiation of claim---Non-payment of profit/liquidated damages on late settlement of claims---Scope---Claimant impugned order of Insurance Tribunal whereby her claim for liquidated damages on payment of life insurance claim was denied, inter alia, on ground that claimant had made the claim late and had not annexed required documents with her claim, hence the delay was not attributable to respondent insurance company---Validity---Record revealed that neither inquiry report regarding authenticity of policy was brought on record by respondent insurance company, nor person who allegedly led inquiry and produced report on behalf of respondent insurance company was produced as witness which prima facie negated version of the respondent insurance company that policy was obtained by deceased via concealment of facts---No evidence existed to show that claimant had filed claim late or that she had not provided correct information / documents and it was established that the policy-holder deceased had paid the premium of said policy on time---Respondent insurance company made payment to claimant to extent of insured amount but with considerable delay and failed in its obligation to make payment within period of 90 days as mandated by S. 118 of Insurance Ordinance, 2000---Impugned order was set aside and it was held that claimant was entitled to liquidated damages along with profit as per Bank rates as required under S. 118 of Insurance Ordinance, 2000--- Appeal was allowed, accordingly.

Mst. Nusrat Malik Saleem v. Federations of Pakistan through Secretary Ministry of law, Justice and Human Rights Division, Islamabad and 3-others 2006 CLD 874; Jaffar Hussain vs Federations of Pakistan through Secretary Ministry of law, Justice and Human Rights Division, Islamabad and 3 others 2004 CLC 947; Mst. Nusrat Malik Saleem v. State Life Insurance Corporation of Pakistan through Chairman and another 2010 CLD 870; Messrs Adamjee Insurance Company Ltd. through authorized Representative v Zi Ullah and another 2019 CLD 526 and Universal Insurance Company Limited v. Hamayun Khan 2019 CLD 1216 ref.

Shafaatullah Qureshi v. Federation of Pakistan PLD 2001 SC 142; Dr. Syed Sibtain Raza Naqvi v Hydrocarbon Development and others 2012 SCMR 377; Wapda through Authorized Attorney and 4 others v. Messrs Crescent Group of Services through Authorized Person and others PLD 2013 Lah. 221 and Haji Muhammad Hanif v. State Life Insurance Corporation-of Pakistan through Chairman 2007 CLD 490 distinguished.

Ghulum Raza Sajid v. State Life Insurance Corporation of Pakistan and another 2010 CLD 792 rel.

Muhammad Rafique Shad, Nadia Iffat and Raja Khurram Shahzad for Applicant.

Waqar Hussain Naqvi for Respondents.

2021 C L D 1400

[Lahore]

Before Ayesha A. Malik and Shams Mehmood Mirza, JJ

DAVID DIWAN MASIH and another---Appellants

Versus

NATIONAL BANK OF PAKISTAN and another---Respondents

E.F.A. No. 1017 of 2014, decided on 7th October, 2021.

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 19, 15, 9 & 22---Civil Procedure Code (V of 1908) S. 47, O. XXI, Rr. 89 & 90---Procedure of Banking Court---Execution of decree of Banking Court---Auction/sale of mortgaged property --- Objections against auction/sale of mortgaged property, adjudication of---Scope---Appellants impugned order of Banking Court whereby appellants' application objecting to sale of mortgaged property on basis of appellant being bona fide owner of a portion of said property was dismissed by Banking Court---Validity---Banking Court had held that decree-holder Bank had every right to get said property auctioned for realization of decretal amount but also paradoxically stated appellant should avail civil remedy at proper forum against judgment-debtor---Impugned order relied solely on report of a Tehsildar who never appeared as witness and failed to consider that decree-holder Bank failed to tender any evidence, oral or documentary, to rebut evidence of appellant---Issues were wrongly framed by Banking Court as allegation of appellant was that his portion of said property did not form part of the mortgage and such issue was not framed---Banking Court also wrongly concluded that appellant was to approach civil court for determination of his objections as Executing Court under S. 47, C.P.C. had all powers to adjudicate questions necessary for execution and satisfaction of a decree---Impugned order was set aside, and matter was remanded to Banking Court with direction to decide the matter after considering all evidence and recasting issue with regard to objections of appellants---Appeal was allowed, accordingly.

Tariq Masood and Hassan Tariq for Appellants.

2021 C L D 1408

[Lahore]

Before Abid Aziz Sheikh, J

MUHAMMAD ZAHEER---Petitioner

Versus

ABDUL MAJEED---Respondent

Civil Revision No. 33725 of 2019, decided on 8th September, 2021.

(a) Civil Procedure Code (V of 1908)---

----O. XXXVII, R. 2, & O. VII, R. 10---Promissory note---Additional security of mortgage deed---Jurisdiction---Scope---Document showed that respondent unconditionally undertook to pay Rs.4,02,000/- to the petitioner along with Rs.24,000/- per month as profit/rent---Said document was duly signed by the respondent---Such document fulfilled the essentials of promissory note---Petitioner sought money decree on the basis of pro-note and not for recovery of amount by selling the mortgage property on the basis of mortgage deed---Mere fact that mortgage deed had been executed in addition to a promissory-note as an additional security in respect of the same loan amount would not exclude the summary jurisdiction of Court under O. XXXVII, R. 2, C.P.C. for the enforcement of promissory note---Such fact would not render the suit liable to be returned under O. VII, R. 10, C.P.C.---Civil revision was allowed accordingly.

Hatimbhai v. Karimbhai 1993 MLD 988 and Sindh Engineering and Bangle Works Hyderabad and others v. Habab Bank Ltd. PLD 1993 Kar. 38 rel.

(b) Negotiable Instruments Act (XXVI of 1881)---

----S. 4---Promissory note---Essentials---Document would be regarded as promissory note if it fulfilled the requirements to the effect that (i) an unconditional undertaking to pay, (ii) the sum should be a sum of money and should be certain, (iii) the payment should be to or to the order of a person who is certain, or to the bearer, of the instrument, (iv) and the maker should sign it.

(c) Civil Procedure Code (V of 1908)---

----O. XXXVII, R. 2--- Promissory note--- Additional security of mortgage deed--- Jurisdiction--- Scope--- Reliance on additional supporting documentary material other than the promissory note would not take the suit out of the jurisdiction of Court under O. XXXVII of C.P.C.

Messrs Nagina Cotton Industries and others v. Cotton Export Corporation of Pakistan 1994 CLC 2281 ref.

Abdul Waheed Zaman Qureshi for Petitioner.

2021 C L D 1416

[Lahore]

Before Jawad Hassan and Sultan Tanvir Ahmad, JJ

HOUSE BUILDING FINANCE COMPANY LIMITED through Authorized Officer---Appellant

Versus

MUHAMMAD IQBAL and another---Respondents

Regular First Appeal No. 165158 of 2018, decided on 15th June, 2021.

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 3(2), 7, 9 & 22---Procedure of Banking Court---Suit for recovery---Decree of banking court---Quantum of decree amount recoverable by Bank/financial institution---Recovery of appreciation charges, termination charges and penalty by Bank/financial institution---Scope---Any charges which were penal in consequence, could not be claimed as a result of civil default of breach of finance agreement.

Muhammad Farooq Azam v. Bank Al-Falah Limited and others 2015 CLD 1439; Habib Bank Ltd. v. Karachi Pipe Mills Ltd. 2006 CLD 842; Messrs United Bank Ltd. through Authorized Attorneys v. M. Mubeen Khan 2012 CLD 1995; Emirates Global Islamic Bank Ltd. v. Muhammad Abdul Salam Khan 2013 CLD 1291; Dr. Faiz Rasool and others v. The Askari Bank Limited through Branch Manager/Authorized Authority 2015 CLD 1710; Khurram Farooq v. Bank Al-Falah Limited and another 2018 CLD 1417 and Passco v. Omer Bilal Traders (Pvt.) Limited 2007 CLD 492 rel.

Kh. Muhammad Ajmal for Appellant.

Ch. Wasim Ahmed for Respondents.

2021 C L D 1422

[Lahore]

Before Shahid Karim and Muhammad Sajid Mehmood Sethi, JJ

FIRST PAKISTAN SECURITIES LIMITED and another---Appellants

Versus

BANK ISLAMI PAKISTAN LIMITED---Respondent

R.F.A. No. 274 of 2016, heard on 26th November, 2020.

(a) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 10, 9 & 22---Contract Act (IX of 1872) S. 176---Suit for recovery---Application for leave to defend, rejection of---Sale of pledged shares by plaintiff Bank---Notice to be given by Bank to pledger of goods prior to sale, essentials of---Defendant impugned order of Banking Court whereby its application for leave to defend was rejected and suit filed by plaintiff Bank was decreed---Suit was filed by Bank after failure of defendant to adhere to terms of a compromise arrived at between parties after Bank withdrew previous suit with permission to file fresh suit---Contention of defendant was that plaintiff Bank had sold pledged shares without permission of defendant, which was violation of terms of said compromise and such substantial questions of law and fact were raised in application for leave to defend, which was rejected by Banking Court---Validity---Record showed that plaintiff Bank issued notice to defendants seeking repayment and mentioned clause of compromise agreement showing Bank's implied intention to sell pledged shares and another letter was issued by plaintiff Bank after sale of pledged shares---When pledgee elects to exercise power of sale under S. 176 of Contract Act, 1897, then sale of such shares could be made after giving reasonable notice to the pledger and it would depend on facts of each case to determine whether such notice was reasonable---For such notice to be reasonable, it was not necessary that same must contain actual date of sale or time and required only that pledger should be given reasonable time to redeem property pledged and it was not necessary for pledgee to serve notice at time of actual sale---No illegality existed in impugned order --- Appeal was dismissed, in circumstances.

Usrnan Malik v. The Bank of Behawalpur Ltd. PLD 1959 (W.P.) Kar. 725; A. Habib Ahmad v. The Hong Kong Shanghai Banking Corporation and 2 others 1987 CLC 1919; Habib Ahmad v. Meezan Bank Limited and 5 others 2016 CLD 527; Messrs Muhammad Siddique Muhammad Umar v. The Australasia Bank Limited PLD 1966 SC 684 and Siddique Wollen Mills and others v. Allied Bank of Pakistan 2003 CLD 1033 rel.

(b) Contract Act (IX of 1872)---

----S. 176---Pledged stocks/pledged good---Goods pledged as a collateral security---Sale of such goods or stocks by pledgee---Reasonable notice to pledger of such goods---Scope---No hard and fast rule could be laid down in respect of what constituted "reasonable notice" and same depended on each particular case to determine whether notice given to pledger was reasonable within meaning of S. 176 of Contract Act, 1872 and it was not necessary for such notice to contain actual date and time of sale---Only requirement was that vide such notice, pledger should be given reasonable time to redeem property pledged and furthermore pledgee was not required to serve notice at the time of the actual sale.

Usman Malik v. The Bank of Behawalpur Ltd. PLD 1959 (W.P.) Karachi 725; A. Habib Ahmad v. The Hong Kong Shanghai Banking Corporation and 2 others 1987 CLC 1919 and Habib Ahmad v. Meezan Bank Limited and 5 others 2016 CLD 527 rel.

Ijaz Mahmood Chaudhry for Appellants.

Asim Nazir for Respondent.

2021 C L D 1430

[Lahore]

Before Jawad Hassan and Muzamil Akhtar Shabir, JJ

TRUST INVESTMENT BANK LIMITED---Appellant

Versus

The BANK OF PUNJAB---Respondent

Regular First Appeal No. 1403 of 2013, decided on 16th September, 2021

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 10, 9 & 22---Banker's Books Evidence Act (XVIII of 1891) Ss. 2(8) & 4---Procedure of Banking Court---Suit for recovery---Application for leave to defend, adjudication of---Statement of account, certification of---Restructuring of finance facility---Scope--- Defendant, public limited company, impugned order of Banking Court, whereby its application for leave to defend was rejected, and suit was decreed in favour of plaintiff Bank---Contention of defendant, inter alia, was that a number of questions of law and fact were involved, which could not be resolved without recording of evidence, and in particular that statement of account was not duly certified as required by law---Validity---Statement of account submitted by plaintiff Bank carried a note at the end of it, which duly certified said statement, and each page of such statement was duly stamped and initialized by concerned officer of plaintiff bank, which met requirements of S. 2(8) of Banker's Books Evidence, 1891---In the present case, renewal and restructuring of finance facility was done, which was normally a concession upon admission of liability on part of customer, and settlement agreement was duly executed between the parties, and in such circumstances, plaintiff Bank was not obliged to bring on record statement of accounts prior to agreement through which restructuring / settlement was made---Defendant had challenged veracity of documents brought on record by plaintiff bank only verbally and without only documentary proof---Defendant had thus not complied with mandatory requirements of S. 10 of Financial Institutions (Recovery of Finances) Ordinance, 2001 and therefore impugned order rejecting leave to defend of defendant was rightly passed---Appeal was dismissed, in circumstances.

Khair-Ul-Nisa v. Mohd Ishaque PLD 1972 SC 25; National Bank of Pakistan v. K.D.A. PLD 1999 Kar. 260 and Nazir Ahmad Khan v. Muhammad Ashraf Khan PLD 1975 Kar. 598 ref.

Muhammad Saleem Khan v. MCB Bank Limited 2020 CLD 737 and Syed Abbas Ali v. Bank of Punjab through Manager and others 2015 CLD 1409 rel.

Shahid Ikram Siddiqui, Advocate Supreme Court assisted by Muhammad Imran Malik, Advocate Supreme Court and Rao Akhtar Ikhlaq for Appellant.

Shoaib Rashid, Advocate Supreme Court, Furqan Naveed, Muhammad Raza Khalid and Ms. Minahil Khan for Respondent.

2021 C L D 1441

[Lahore]

Before Ali Baqar Najafi, J

The UNIVERSAL INSURANCE COMPANY through Managing Director---Petitioner

Versus

RANA BASIT RICE MILLS (PVT.) LTD. through Chief Executive and 2 others---Respondents

Writ Petition No. 44222 of 2021, decided on 6th July, 2021.

Insurance Act (IV of 1938)---

----Ss. 2(6) & 46---Civil Procedure Code (V of 1908), Ss. 15 & 20---Claim relatable to a contract for insurance---Correct Court/forum for suing under the provisions of the Insurance Act, 1938 [since repealed]--Scope---All claims, whether directly arising from or relatable to a contract of insurance were covered under the provisions of section 46 of the Insurance Act, 1938 and all such suits may be instituted under S. 15 of C.P.C.

State Life Insurance Corporation of Pakistan through Chairman and others v. Mst. Sardar Begum and others 2017 SCMR 999 rel.

Mst. Robina Bibi v. State Life Insurance and others 2013 CLD 477 ref.

Rana Muhammad Arshad Khan for Petitioner.

2021 C L D 1444

[Lahore]

Before Shahid Waheed and Ch. Muhammad Iqbal, JJ

STATE LIFE INSURANCE CORPORATION through Chairman/Attorney and another---Appellants

Versus

Mst. NUSRAT AMJAD and others--Respondents

Insurance Appeal No. 21666 of 2020, heard on 27 April, 2021.

Insurance Ordinance (XXXIX of 2000)---

----Ss. 118 & 124--- Insurance appeal--- Liquidated damages---Principle---Appellant-insurance company was aggrieved of awarding liquidated damages to respondents who were legal heirs of decreased insurer---Validity---Respondents through oral as well as documentary evidence successfully proved that they complied with all requirements of appellant-company for grant of insurance policy---Appellant-company failed to make payment of policy within prescribed period of 90 days without any convincing and just explanation---High Court declined to interfere in the judgment passed by Insurance Tribunal granting liquidated damages to respondents, as the judgment was without any jurisdictional defect--- Appeal was dismissed in circumstances.

Ibrar Ahmed for Appellants.

Liaqat Ali Butt for Respondents.

2021 C L D 1224

[Peshawar]

Before Qaiser Rashid Khan and Muhammad Ayub Khan, JJ

Haji ABDUR RASHID ARIF---Appellant

Versus

BANK OF KHYBER through Bank Manager and 7 others---Respondents

F.A.B. No. 20 of 2011, decided on 20th October, 2016.\

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 7, 9 & 22---Civil Procedure Code (V of 1908) O. VII R. 11---Procedure of Banking Court---Suit for recovery---Rejection of plaint by Banking Court---Estoppel---Scope---Plaintiff customer's suit against defendant Bank was rejected by Banking Court under provisions of O. VII, R. 11, C.P.C.---Validity---Through said suit, plaintiff only attempted to reopen a previous case, where suit for recovery had been filed by Bank against the present plaintiff, in which he actively participated and which culminated in issuance of sales certificate for mortgaged property in his name, and such order of Banking Court was never challenged by plaintiff in appeal---Plaintiff, therefore was estopped by his conduct from instituting a recovery suit against defendant Bank and plaint was therefore rightly rejected by Banking Court under O. VII, R. 11, C.P.C.---Appeal was dismissed, in circumstances.

Akhunzada Syed Pervez for Appellant.

Qazi Jawad Ehsanullah for Respondents.

2021 C L D 1248

[Peshawar]

Before Qaiser Rashid Khan and Muhammad Ayub Khan, JJ

NATIONAL BANK OF PAKISTAN CITY BRANCH, PESHAWAR through Manager---Appellant

Versus

HAROON QAYYUM---Respondent

F.A.B. No. 1-P of 2016 with C.M. No. 3 of 2016, decided on 28th March, 2018.\

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 27, 9 & 22---Suit for recovery---Decree of Banking Court---Finality of order---Correction of decretal amount by Banking Court---Scope---Plaintiff Bank impugned order of Banking Court whereby, after ex parte decree, upon application of defendant for correction of decretal amount, the decretal amount was modified ---Contention of plaintiff Bank, inter alia, was that such order was made without jurisdiction in terms of S. 27 of Financial Institutions (Recovery of Finances) Ordinance, 2001---Validity---Per proviso to said S. 27 of the Ordinance, Banking Court could, either on its own accord or upon application of any party and after notice to the opposite side, could correct clerical or typographical mistake in a decree---In the present case, Banking Court, through impugned order rectified its own mistake through correction of decretal amount and same could not be termed to be a review of the ex parte judgment and decree passed by it---No illegality existed in impugned order---Appeal was dismissed, in circumstances.

Nazir Ullah Qazi for Appellant.

Aimal Khan Barkandi for Respondent.

2021 C L D 1301

[Peshawar]

Before Qaiser Rashid Khan and Muhammad Younis Thaheem, JJ

RABNAWAZ---Petitioner

Versus

Z.T.B.L. KATLANG BRANCH MARDAN through Branch Manater---Respondent

F.A.B. No. 10-P of 2012 with C.M. No. 100-P of 2012, decided on 24th October, 2017.\

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 9, 7 & 22---Banker's Books Evidence Act (XVIII of 1891), S. 4---Procedure of Banking Court---Suit for recovery---Ex parte decree, setting aside of---Statement of accounts, effect of non-certification of---Scope---Defendant sought setting aside of ex parte decree of Banking Court---Validity---Record revealed that statement of account furnished by plaintiff Bank had not been certified per S. 4 of Banker's Books Evidence, 1891, which tantamount to non-compliance with mandate of S. 9 of Financial Institutions (Recovery of Finances) Ordinance, 200 ---While Banking Court could pass ex parte decree after valid service had been effected, however a heavy duty was cast on Banking Court to have looked at the documents annexed by plaintiff Bank, and statement of account not certified per Banker's Books Evidence, 1891 lost is evidentiary value---High Court set aside ex parte decree of Banking Court and remanded matter to Banking Court---Appeal was allowed, accordingly.

Muhammad Ishaq Shah for Petitioner.

Nazirullah Qazi for Respondent No.1.

Respondent No.2 in person.

2021 C L D 1345

[Peshawar]

Before Qaiser Rashid Khan and Ijaz Anwar, JJ

IRFANULLAH---Appellant

Versus

STANDARD CHARTERED BANK OF PAKISTAN through CEO/Executive Director and another---Respondents

F.A.B. No. 2-P of 2019 with C.M. No. 114-P of 2019, decided on 4th March, 2020.

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 9 & 22---Bankers' Books Evidence Act (XVIII of 1891), S. 4---Limitation Act (IX of 1908), Art. 132--- Suit for recovery of finances---Limitation---House building loan---Mortgage property---Manager of Financial Institution, personal capacity of---Computer generated statement of accounts---Appellant/borrower was aggrieved of judgment and decree passed by Banking Court in favour of respondent/Bank---Validity---Recovery suit could be filed under S. 9 of Financial Institutions (Recovery of Finances) Ordinance, 2001 against a borrower by Manager in his personal capacity as well and the same could not necessarily be accompanied by any power of attorney executed in his favour by Bank---Statement of accounts was system generated document and it was not to bear signature of attorneys of Bank---Such was a clear practice when such statements of accounts were prepared manually---Statement of accounts annexed with plaint was certified within the meaning of S. 4 of Bankers' Books Evidence Act, 1891, and was an authentic and valid document---Home loan was advanced to appellant/borrower and was secured through a memorandum of deposit of title deeds---For enforcing a suit of equitable mortgage, the time of limitation was 12 years from the time when a money sued for became due---Such was Art. 132 of Limitation Act, 1908 and recovery suit was filed well within time---High Court declined to interfere in judgment and decree passed by Banking Court, as there was no illegality, misreading or non-reading of record and evidence---Appeal was dismissed in circumstances.

Naveed Maqsood Sethi for Appellant.

Ms. Alia Zarin Abbasi for Respondents.

2021 C L D 1367

[Peshawar]

Before Qaiser Rashid Khan and Muhammad Ayub Khan, JJ

HAQ NAWAZ and another---Appellants

Versus

HABIB BANK LIMITED through Manager, PAF Branch, Peshawar and 5 others---Respondents

F.A.B. No. 81-P of 2009, decided on 14th March, 2018.\

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 10, 9 & 22---Suit for recovery---Procedure of Banking Court---Application for leave to defend, adjudication of---Statement of account---Brought-Forward Entries in statement of accounts---Scope---Defendants impugned order of Banking Court whereby application for leave to defend of defendants was rejected and suit was decreed---Contention of defendants, inter alia, was that statement of account annexed by plaintiff Bank showed a "brought forward entry" of an amount, which was unaccounted for in documents annexed by Bank, and as such matter ought to have been adjudicated after allowing application to leave to defend---Validity---Record showed mortgage deeds pertaining to past years showing business relations between defendants and banks and during such business relations, certain credit facilities can be safely switched over when fresh sanction of finance was issued while specifying terms and conditions---In such circumstances, said "brought forward entry" was incorporated in statement of accounts by plaintiff Bank and Sanction Advice issued by plaintiff Bank was acknowledged by defendants---Defendants could not now question the very entries in statement of account to which they were beneficiaries, and such statement of account was free of ambiguities---Application for leave to defend was therefore rightly rejected by Banking Court---Appeal was dismissed, accordingly.

Shumail Ahmad Butt for Appellants.

Qazi Jawad Ehsanullah for Respondent No. 1.

Nemo for rest of Respondents,

2021 C L D 1377

[Peshawar (Mingora Bench)]

Before Ishtiaq Ibrahim and Wiqar Ahmad, JJ

MEHBOOB ALI KHAN, MANAGING DIRECTOR SPINGHAR SILK MILLS PVT. LIMITED CHARBAGH, DISTRICT SWAT---Petitioner

Versus

STATE BANK OF PAKISTAN through Governor and others---Respondents

Writ Petition No. 114-M with Interim Relief, decided on 13th October, 2020.

Constitution of Pakistan---

----Arts. 25 & 199---State Bank of Pakistan Circular No. I of 2011---Constitutional petition---Discrimination---Package of Fiscal Relief to Rehabilitate Economic Life in Khyber Pakhtunkhwa, FATA and PATA---Applicability---Petitioner sought relief advanced by Federal Government under Package of Fiscal Relief to Rehabilitate Economic Life in Khyber Pakhtunkhwa, FATA and PATA---Validity---Government of Pakistan announced the Package with an aim and purpose of rehabilitating economic life in an area devastated by conflict, militancy and terrorism---Petitioner could not be treated with a different yardstick as similar relief was extended to a large number of people in the locality---Petitioner could not be differentiated and given a different treatment---High Court directed Small and Medium Enterprise Bank to treat petitioner accordingly and extend him benefit of Circular No. 1 of 2011 issued by State Bank of Pakistan--- Constitutional petition was allowed in circumstances.

Haroon Bacha and others v. State Bank of Pakistan and others Writ Petition No. 934/11; Saddaqat Ali Khan through LRs and others v. Collector Land Acquisition and others PLD 2010 SC 878; Umar Baz Khan through L.Hrs v. Syed Jehanzeb and others PLD 2013 SC 268; Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185 and Government of Punjab, through Secretary Education, Civil Secretariat, Lahore and others v. Sameena Parveen and others 2009 SCMR 1 rel.

Mian Kausar Hussain for Petitioner.

Akhtar Munir Khan for Respondents Nos. 4 to 7.

2021 C L D 1396

[Peshawar]

Before Qaiser Rashid Khan and Abdul Shakoor, JJ

MUHAMMAD KARIM and others---Appellants

Versus

UNITED BANK LIMITED and others---Respondents

F.A.B. No. 120-P of 2009, decided on 18th December, 2019.

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 10, 9, & 22---Procedure of Banking Court--- Suit for recovery---Application for leave to defend, adjudication of---Substantial questions of law and fact---Scope---Defendants impugned order of Banking Court whereby their application for leave to defend were rejected---Contention of defendants', inter alia, was that substantial questions regarding factum of death of one of the defendants, and forged signatures on mortgage deed, were raised in said applications, which ought to have been adjudicated upon---Validity---Contention regarding death of a defendant was not tenable as no death certificate or other document had been brought on record by defendants to confirm factum of such death of defendant---Registered mortgage deed had been duly executed and objection of defendants denying signatures on the same were perfunctory in nature and did not lead to substantial questions of law and fact in terms of S. 10(2) of Financial Institutions (Recovery of Finances) Ordinance, 2001---Impugned order was therefore rightly passed by Banking Court---Appeal was dismissed, in circumstances.

Abdur Rahim Jadoon for Appellants.

Alamzeb Khan for Respondent-Bank.

2021 C L D 1413

[Peshawar]

Before Qaiser Rashid Khan and Ishtiaq Ibrahim, JJ

HUSSAIN KHAN and another---Appellants

Versus

HABIB BANK LIMITED through Manager---Respondent

F.A.B. No. 10 of 2011 with C.Ms. Nos. 28 of 2011 and 93 of 2017, decided on 25th September, 2018.\

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 10,9 & 22---Procedure of Banking Court --- Suit for recovery---Application for leave to defend--Statement of accounts---Debit Entries in statement of account after expiry of finance facility---Modification of decretal amount---Scope-Defendant impugned order of Banking Court whereby his application for leave to defend was rejected and suit was decreed - Contention of defendant, inter alia, was that statement of account annexed by plaintiff Bank was defective and therefore impugned order was wrongly passed---Validity--- Defendant could not point out any specific entry in statement of account which had been either wrongly entered therein or any markup which had been excessively charged and said statement of account was duly certified also---High Court observed that while suit was rightly decreed by Banking Court however, three specific debit entries in statement of account, which were charged by plaintiff Bank after expiry of finance, ought to have been deleted from decretal amount as same were made in disregard to standard banking practice and procedure---High Court modified the decree to extent of said entries---Appeal was partially allowed, accordingly.

Naqeeb Ahmad Takkar for Appellants.

Alamzeb Khan along with Ms. Maryam Asghar, Litigation Officer, HBL for Respondent.

2021 C L D 1418

[Peshawar]

Before Qaiser Rashid Khan, ACJ and Muhammad Nasir Mehfooz, J

MUHAMMAD AMIR SAFDAR---Appellant

Versus

The BANK ALFALAH LIMITED through Manager and 2 others---Respondents

F.A.B. No. 73-P with C.M. No. 358-P of 2011, decided on 25th November, 2020.

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 9(5), 10 & 22--- Procedure of Banking Court--- Suit for recovery---Effective service upon defendants---Ex parte decree, setting aside of---Defendants impugned order of Banking Court whereby suit filed by plaintiff Bank was decreed ex parte---Contention of defendants, inter alia, was that no valid and effective service in terms of the Financial Institutions (Recovery of Finances) Ordinance, 2001 had been made, and they had been unaware of proceedings before Banking Court also on account of being forcibly dispossessed from their property, due to which they had to settle in another city---Validity---Per S. 9(5) of the said Ordinance, even if service was effected in any one of the modes given therein, same would be deemed valid service, which was done in the present case - Contention of defendants that they had been forcibly dispossessed was not tenable as it was as bounden duty of borrower to furnish information regarding change of his / her abode to the concerned Bank, which obligation the defendants did not fulfil---Suit was therefore validly decreed, ex parte by Banking Court---Appeal was dismissed, in circumstances.

Ghulam Mohy-ud-Din Malik for Appellant.

Ghulam Shoaib Jally and Muhammad Ali for Respondents.

2021 C L D 1438

[Peshawar]

Before Qaiser Rashid Khan and Abdul Shakoor, JJ

MALIK LIGHTING through Proprietor and another---Appellants

Versus

UNITED BANK LIMITED through Chief Executive/ President and 2 others---Respondents

F.A.B. No. 36-P with C.M. No. 370 of 2010, decided on 3rd September, 2019.\

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 10, 9 & 22---Procedure of Banking Court---Suit for recovery---Application for leave to defend---Statement of accounts---Scope-Defendant impugned order of Banking Court whereby its application for leave to defend was rejected and suit was decreed in favour of plaintiff Bank---Contention of defendant, inter alia, was that statement of account annexed by plaintiff Bank had various defects, which were pointed out in application for leave to defend, therefore the same ought to have been adjudicated upon---Validity---Statement of account furnished by plaintiff Bank had been properly bifurcated in two parts, showing withdrawals by defendant from time of first sanction of finance, and with some deposits as well and entries therein showed markup that had been charged from time to time, and recovery of the same had been made regular intervals---Such statement of account was prepared in accordance with banking practice and procedure, and certified per S. 4 of Bankers' Books Evidence Act, 1891---Challenge to such statement of account by defendant was merely perfunctory in nature and therefore leave to defend had rightly been rejected by Banking Court---Appeal was dismissed, in circumstances.

Qazi Jawad Ehsanullah for Appellants.

Alamzeb Khan for Respondents.

2021 C L D 25

[Balochistan (Sibi Bench)]

Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ

Messrs AMIR JAN OIL MILL through Proprietor and another---Appellants

Versus

NATIONAL BANK OF PAKISTAN through Manager---Respondent

High Court Appeal No. (s) 9 of 2017, decided on 24th November, 2020.

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 10, 9 & 7---Procedure of Banking court---Suit for recovery---Application for leave to defend, adjudication of---Failure to comply with mandatory requirements of S. 10 of Financial Institutions (Recovery of Finances) Ordinance, 2001, effect of---Application for leave to defend was dismissed by Banking Court---Contention of defendant, inter alia, was that application for leave to defend ought to have been allowed---Validity---Defendants had failed to make compliance with required parameters of S. 10(4) of Financial Institutions (Recovery of Finances) Ordinance, 2001 and therefore S. 10(6) of said Ordinance would come into play and their application for leave to defend was necessarily liable to be rejected---No illegality in impugned order of Banking Court---Appeal was dismissed, in circumstances.

Hasnain Iqbal Minhas for Appellants.

Abdul Hakeem representative of NBP for Respondent.

2021 C L D 468

[Balochistan (Sibi Bench)]

Before Nazeer Ahmed Langove and Rozi Khan Barrech, JJ

DANISH ALI and 2 others---Appellants

Versus

NATIONAL BANK OF PAKISTAN through Manager and another---Respondents

High Court Appeal No. (s) 14 of 2018, decided on 10th February, 2021.

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----S. 22---Limitation Act (IX of 1908) S. 5---Appeal---Limitation---Application of S. 5 of the Limitation Act, 1908 for condonation of delay in filing of appeal under S. 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001---Scope---Provisions of S. 5 of Limitation Act, 1908 were not applicable to appeal filed under S. 22 of Financial Institutions (Recovery of Finances) Ordinance, 2001, which was a special law and itself prescribed period of limitation for filing of appeal.

Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286 rel.

Rizwan Ali Soomro for Appellants.

Nemo for Respondent No. 1.

Ahsan Rafique Rana for Respondent No. 2.

2021 C L D 553

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ

MUHAMMAD AMIN---Appellant

Versus

NATIONAL BANK OF PAKISTAN through Manager---Respondent

High Court Appeal No. 14 of 2017, decided on 21st December, 2020.

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 9(5), 10, 9 & 22---Constitution of Pakistan, Arts. 4 & 10A---Procedure of Banking Court---Service of notices on defendants---Effective service in terms of S. 9(5) of Financial Institutions (Recovery of Finances) Ordinance, 2001 (the Ordinance)---Principles of natural justice---Applicability---Suit for recovery was decreed ex parte against defendant---Contention of defendant, inter alia, was that service was not effected on defendant, and therefore ex parte decree was liable to be set aside---Validity---Provisions with regard to service on defendant under Ss. 9(5) & 10(2) of the Ordinance were not to be read disjunctively from rule of natural justice "audi alterm partem", which was to be read into every statute, along with Arts. 10A & 4 of the Constitution---In the present case, Banking Court held service as valid on defendant via publication in two newspapers and summonses were not served on defendant through any other prescribed modes, which was erroneous and thus ex parte decree was passed without proof of effective service---High Court set aside ex parte decree of Banking Court and remanded matter to Banking Court---Appeal was allowed, accordingly.

Raheb Khan Buledi for Appellant.

Muhammad Ayaz Khan, Litigation Manager, National Bank of Pakistan for Respondent.

2021 C L D 675

[Balochistan]

Before Muhammad Hashim Khan Kakar and Abdul Hameed Baloch, JJ

Messrs KHAIR BUKSH RICE MILL and others---Appellants

Versus

NATIONAL BANK OF PAKISTAN through Branch Manager---Respondent

High Court Appeal No. (s) 04 of 2017, decided on 26th November, 2020.

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 10, 9 & 7---Procedure of Banking Court---Suit for recovery---Application for leave to defend, adjudication of---Mandatory nature of requirements of S. 10 Financial Institutions (Recovery of Finances) Ordinance, 2001---Rejection of application for leave to defend on ground of non-compliance with mandatory statutory requirements---Scope---Section 10 of Financial Institutions (Recovery of Finances) Ordinance, 2001 required strict compliance with mandatory requirements for application for leave to defend stated therein, and non-compliance of same would result in rejection of application for leave to defend.

Apollot Textile Mills Ltd. v. Sonery Bank 2012 CLD 337 rel.

Nemo for Appellants.

Nemo for Respondent.

2021 C L D 752

[Balochistan (Sibi Bench)]

Before Muhammad Hashim Khan Kakar and Abdul Hameed Baloch, JJ

Messrs DILI JAN OIL MILL through Chief Executive/ Proprietor and others---Appellants

Versus

NATIONAL BANK OF PAKISTAN through Manager---Respondent

High Court Appeal No. (s) 01 of 2017, decided on 26th November, 2020.

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 9, 10 & 7----Procedure of Banking Court---Suit for recovery---Service of notices/summons on defendant---Effective service in terms of S. 9(5) of Financial Institutions (Recovery of Finances) Ordinance, 2001---Obligation upon defendant to file application for leave to defend within statutorily prescribed time-period---Scope---Words used in Ss. 9(5) & 10(2) of Financial Institutions (Recovery of Finances) Ordinance, 2001 had to be read in their ordinary meaning, and therefore it was obligatory upon defendant to file application for leave to defend within thirty days of valid service in terms of S. 9(5) of the Ordinance--- Application for leave to defend filed after passage of thirty days from time of valid service would be liable to be rejected.

Nemo for Appellants.

Nemo for Respondent.

2021 C L D 791

[Balochistan (Sibi Bench)]

Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ

TAJ MUHAMMAD---Appellant

Versus

NATIONAL BANK OF PAKISTAN through Manager---Respondent

High Court Appeal No. (s) 13 of 2018, decided on 24th November, 2020.

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----S. 22---Limitation Act (IX of 1908), S. 5---Appeal---Limitation---Application under S. 5 of the Limitation Act, 1908 for condonation of delay in filing of appeal under S. 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001---Maintainability---Provisions of S. 5 of Limitation Act, 1908 were not applicable to appeal filed under S. 22 of Financial Institutions (Recovery of Finances) Ordinance, 2001, which was a special law and itself prescribed period of limitation for filing of appeal.

Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286 rel.

Rahib Khan Buledi for Appellant.

2021 C L D 1049

[Balochistan]

Before Naeem Akhtar Afghan, J

Messrs A&B PETROL URUNLERI PAZARLAMA through Authorized Attorney---Plaintiff

Versus

MV NAZLICAN and others---Defendants

Admiralty Suit No. 2 of 2020, decided on 4th January, 2021.

Admiralty Jurisdiction of High Courts Ordinance (XLII of 1980)---

----Ss.3 & 4---Suit for recovery of money---Maintainability---Action in "rem" and "personam"---Scope---Beneficial ownership---Proof---Plaintiff sought recovery of liability of outstanding price of fuel/bunker services provided by it to defendant company for ships--- When the suit was filed defendants had already sold the ships which were in the process of breaking---Validity---Admiralty jurisdiction of High Court under S. 3(2)(l) of Admiralty Jurisdiction of High Courts Ordinance, 1980, could be invoked to determine any cause / claim in respect of necessaries supplied to a ship including fuel / bunker service--- According to S. 4(4) of Admiralty Jurisdiction of High Courts Ordinance, 1980, if a claim under S. 3(2)(l) of Admiralty Jurisdiction of High Courts Ordinance, 1980, arising in connection with a ship, claim could give rise to a maritime lien on the ship only when Admiralty jurisdiction of High Court could be invoked by an action in rem against the ship, if at the time when the action was brought, that ship was beneficially owned in respect of majority shares therein by that person who was liable to the claim in an action in personam--- Suit filed by plaintiff was not maintainable under Admiralty jurisdiction of High Court---Suit was dismissed, in circumstances.

Messrs. International Bunkering Middle East DMCC v. M. T. Tridonawati 2012 CLD 1611; Atlantic Steamer's Supply Company v. m. v. Titisee and others PLD 1993 SC 88 and of Hong Leong Finance Limited v. Asian Queen PLD 1991 SC 1021 rel.

Yousuf Kazi v. s.s Phoenix PLD 1978 Kar. 1052; Sajid Plastic Factory v. MSC Bahamas PLD 2020 Sindh 568; Khadija Edible Oil Refinery (Pvt.) Ltd. v. M.T "Galaxy" 2011 CLD 709; Ahmed Investment Ltd. v. M.V. "Sunrise IV" PLD 1980 Kar. 229; Yukong Ltd. South Korean Company. v. M.T. Eastern Navigator PLD 2000 SC 57; Diamond Engineering Mechanical, Electrical and Marine Engineering Contractors v. M.V LUCTOR-I PLD 1978 Kar. 837 and MSC Textiles (Private) Limited v. Asian Pollux, 2007 CLD 1465 distinguished.

A. Nawaz Osmani and Nusrat Baloch for Plaintiff.

Aga Zafar Ahmed for Defendants Nos. 1, 2, 6 and 8.

2021 C L D 1180

[Balochistan]

Before Muhammad Ejaz Swati and Zaheer-ud-Din Kakar, JJ

EDUARD BILYAYEV through Attorney and 4 others---Appellants

Versus

M.V. "FIGARO" (EX-FREE GODDESS) through Messrs Commercial Metal---Respondent

Admiralty Appeals Nos. 1 and 2 of 2018, decided on 23rd November, 2020.

Admiralty Jurisdiction of High Court Ordinance (XLII of 1980)---

----Ss. 3, 4 & 7---Civil Procedure Code (V of 1908), O.VII, R.11---Action in rem---Scope---Rejection of plaint---Sale of ship---Appellants/ plaintiffs sought recovery of outstanding wages from respondent/defendant company on the plea that it was beneficial owner of ship in question---Trial Court rejected plaint filed by appellants/ plaintiffs for the reason that the ship had already been sold---Validity---Action in rem could be invoked against ship or property against which maritime lien was claimed by plaintiff---Maritime lien was a privileged claim which could be exercised over res (ship)---Such claim occurred the moment cause of action had arisen and traveled with the res (ship) secretly and unconditionally and could be enforced by an action in rem---Such right only extinguished when ship was demolished--- Action in rem against ship or her sister ship arose subject to condition enumerated in S. 4(4) of Admiralty Jurisdiction of High Courts Ordinance, 1980---Purchaser/vendee of ship filed application under O. VII, R. 11, C.P.C. along with bill of sale, whereby ship in question was owned/purchased through a leasing company free from all encumbrances---Sale document was not denied specifically by appellants/plaintiffs at the time when suit was filed--- Beneficial title in ship in question was passed on to new owner and condition laid down by S. 4(4) of Admiralty Jurisdiction of High Courts Ordinance, 1980, was not satisfied---High Court declined to invoke action in rem against the ship, particularly when the ship had been demolished---Appeal was dismissed in circumstances.

PLD 1986 Quetta 107; 2005 YLR 2838; PLD 2006 SC 214; PLD 2000 Kar. 258; PLD 1996 Kar. 365; PLD 2000 Kar. 691; 2003 CLC 1602; 2013 MLD 1132; PLD 1990 SC 859;; 1995 SCMR 584 and AIR 1922 P.C. 269 ref.

PLD 1993 SC 88; 1989 CLC 2168; PLD 1991 SC 102; Mst. Yamin and 2 others v. Muhammad Yamin and 2 others PLD 2006 SC 214; Hong Leong Finance Limited v. m.v. Asian Queen through Nazir High Court PLD 1991 SC 1021; Atlantic Steamer's Supply v. m.v. Titisee and others PLD 1993 SC 88; Inham Refrigeration B.V. v. The owners of "F.T. Parivash and Transocen Holdings Ltd. PLD 1989 Kar. 65; Messrs Maratos and Co. v. Rice Traker and 2 others PLD 1989 Kar. 94; Semco Salvage Pte Limited v. m.v. Kaptan Yusuf Kalkavan Turkish and 2 others 1995 MLD 706; Azhar Ahmad Khan and others v. M.V. and 3 others PLD 1985 Quetta 278; Metal Construction of Greece S.A (Mekta S.A), Athens through Attorney v. Owners of the Vessel m.v. Lady Rea 2013 CLD 1829; Jaffer Brothers (Pvt.) Limited v. m.v. 'Eurobulker II' presently Brethed at Moorings in Karachi Port to be served through Master 2002 CLD 926; Messrs Khadija Edible Oil Refinery (Pvt.) Ltd. v. m.v. "Glaxy" and 4 others 2011 CLD 709 and Messrs Sun Line Agencies Ltd. v. Vessel M.V. "Psilorities" and 2 others 1984 CLC 1553 rel.

Muhammad Riaz Ahmed and Dr. Adeel Abid for Appellants (in Admiralty Appeals Nos. 1 and 2 of 2018).

Mujeeb Ahmed Hashmi for Respondent (in Admiralty Appeals Nos. 1 and 2 of 2018).

2021 C L D 28

[Securities and Exchange Commission of Pakistan]

Before Farrukh Hamid Sabzwari, Commissioner (AML) and Shaukat Hussain, Commissioner (Insurance)

AZEE SECURITIES (PVT.) LIMITED---Appellant

Versus

COMMISSIONER, (SMD), SECP, ISLAMABAD---Respondent

Appeal No. 20 of 2019, decided on 22nd November, 2019.

(a) Securities and Exchange Commission of Pakistan Act (XLII of 1997)---

----S. 40A---Securities and Exchange Commission of Pakistan (Anti Money Laundering and Counter Financing of Terrorism) Regulations, 2018, Reglns. 3, 4, 6, 13 & 14---Securities Brokers (Licensing and Operations) Regulations, 2016, Reglns. 16(5), 16(9)(e) & 16(12)(i)---Penalty for violations of rules, regulations, directives and notifications---Scope---Appellant was imposed upon a penalty for non-maintenance of consolidated list of its clients risk categorization; non-establishment of internal audit function; not conducting customer due diligence (CDD) of its clients; not obtaining evidence of source of funds of its clients; not establishing beneficial ownership of its clients; non-development of ongoing mechanism to ensure that the transactions were consistent with its knowledge of the customers and its failure to report cash transaction of Rs.2 million and above to the Financial Monitoring Unit (FMU)---Appellant's contention was that the inspection was carried out before issuance of the Securities and Exchange Commission of Pakistan (Anti Money Laundering and Counter Financing of Terrorism) Regulations, 2018 (Regulations), therefore, sufficient time was not provided to understand it and comply with its requirements---Validity---Appellant had admitted that the requirements of clients risk assessment; internal audit function and ongoing mechanism for monitoring CDD were not met after enactment of the Regulations---Earlier regulatory framework was not materially different in terms of its requirements with the Regulations---Establishment of internal audit department was part of the licensing requirement of the appellant---Penalty for failure to report currency transaction could not have been imposed on the appellant as the cash was received and deposited in the Bank account and the Bank was required to report it---Appellate Bench reduced the penalty of fine and the appeal was disposed of accordingly.

(b) Securities and Exchange Commission of Pakistan Act (XLII of 1997)---

----S. 40A---Penalty for violations of rules, regulations, directives and notifications---Non-mentioning of specific provisions while providing opportunity of hearing--- Effect--- Appellant had violated the requirements of Reglns. 3, 4, 6, 13 & 14 of the Securities and Exchange Commission of Pakistan (Anti Money Laundering and Counter Financing of Terrorism) Regulations, 2018, though the Commissioner of Commission had not specifically mentioned the aforesaid provisions in the impugned order---Validity---Held; violated provisions should have been mentioned in the impugned order, however, non-mentioning of specific provisions did not vitiate the proceedings when, otherwise violations were duly mentioned and established.

Ghazi Naseem, Manager Compliance for Appellant.

Ms. Amina Aziz, Director (SMD), SECP and Ms. Mehwish Naveed, Management Executive (SMD), SECP for Respondent.

2021 C L D 127

[Securities and Exchange Commission of Pakistan]

Before Farrukh Hamid Sabzwari, Commissioner (SCD, AML) and Shaukat Hussain, Commissioner (CLD-C&CD), Insurance

FORTUNE SECURITIES LIMITED---Appellant

Versus

COMMISSIONER (SMD), SECP, ISLAMABAD---Respondent

Appeal No. 38 of 2019, decided on 1st January, 2020.

Securities and Exchange Commission of Pakistan Act (XLII of 1997)---

----S. 40A---Securities and Exchange Commission of Pakistan (Anti Money Laundering and Counter Financing of Terrorism) Regulations, 2018, Reglns. 6 & 7---Penalty for violations of rules, regulations, directives and notifications---Customer due diligence---Beneficial ownership of legal persons and legal arrangements---Scope---Appellant was imposed upon a penalty for not establishing beneficial ownership of its corporate clients and for its failure to perform Customer Due Diligence, (CDD) of some of its clients by not obtaining basic information including source of funds prior to opening of the account---Validity---Previous regulatory framework was not materially different in terms of its requirements with the Regulations---Appellant was required to have customer identification, CDD and beneficial ownership under the previous regulatory legal framework but the appellant had failed to comply with the applicable requirements---Appellant had never operated the trading account of the corporate client due to non-submission of certain documents and signature of only two clients were missing from KYC Know Your Customer/CDD forms---Appellate Bench, while maintaining the verdict of the impugned order, reduced the penalty---Appeal was disposed of accordingly.

Abdul Wahab, Compliance Officer, Anis-ur-Rehman, CEO and Fazal Mehmood Malik, COO for Appellant.

Ms. Amina Aziz, Director (SMD), SECP and Ms. Mehwish Naveed, Management Executive (SMD), SECP for Respondent.

2021 C L D 187

[Securities and Exchange Commission of Pakistan]

Before Farrukh Hamid Sabzwari, Commissioner (AML) and Shaukat Hussain, Commissioner (Insurance)

MRA SECURITIES LIMITED---Appellant

Versus

COMMISSIONER (SMD), SECP, ISLAMABAD---Respondent

Appeal No. 17 of 2019, decided on 1st January, 2020.

(a) Securities and Exchange Commission of Pakistan Act (XLII of 1997)---

----S. 40A---Securities and Exchange Commission of Pakistan (Anti-Money Laundering and Counter Financing of Terrorism) Regulations, 2018, Reglns. 3, 4, 6, 7 & 13---Securities Brokers (Licensing and Operations) Regulations, 2016, Reglns. 16(5), 16(9)(e) & 16(12)(i)---Penalty for violations of Rules, Regulations, Directives and Notifications---Scope---Appellant was imposed upon a penalty for assigning incorrect risk rating to its clients; its failure to establish internal audit function; opening a trading account of the immediate family member of the Chief Executive of another brokerage house; its failure to obtain evidence relating to the source of income of nineteen clients; its failure to establish beneficial ownership of six clients and its failure to develop a mechanism to ensure ongoing monitoring of its clients---Appellant's contention was that the inspection was carried out before issuance of the Securities and Exchange Commission of Pakistan (Anti Money Laundering and Counter Financing of Terrorism) Regulations, 2018 (Regulations), therefore, sufficient time was not provided to understand it and comply with its requirements---Validity---Held; earlier regulatory framework was not materially different in terms of its requirements with the Regulations---Contrary to the assertion of respondent, appellant had established an internal audit department under the Securities Brokers (Licensing and Operations) Regulations, 2016---Appellant's Chief Executive or his family had not traded through another securities broker rather it was the family member of another securities broker who had traded through the appellant---Memorandum of appeal, reply of the show cause notice and inspection observations were sufficient to establish that the appellant had failed to comply with the mandatory regulatory requirements of the Regulations---Appellate Bench declined to interfere in the penalty imposed through the impugned order--- Appeal was dismissed.

(b) Securities and Exchange Commission of Pakistan Act (XLII of 1997)---

----S. 40A---Penalty for violations of Rules, Regulations, Directives and Notifications---Non-mentioning of specific provisions while providing opportunity of hearing---Effect---Appellant had violated the requirements of Reglns. 3, 4, 6, 7 & 13 of the Securities and Exchange Commission of Pakistan (Anti-Money Laundering and Counter Financing of Terrorism) Regulations, 2018 though respondent had not specifically mentioned the aforesaid provisions in the impugned order---Validity---Held; violated provisions should have been mentioned in the impugned order, however, non-mentioning of specific provisions did not vitiate the proceedings when, violations were duly mentioned and established.

Salman Iqbal Bawaney, Ms. Samina Fazal, Muhammad Farhan, CEO and Muhammad Zubair, Compliance Officer for Appellant.

Ms. Amina Aziz, Director (SMD), SECP and Ms. Mehwish Naveed, Management Executive (SMD), SECP for Respondent.

2021 C L D 336

[Securities and Exchange Commission of Pakistan]

Before Farrukh H. Sabzwari, Commissioner (SCD, AML) and Shaukat Hussain, Commissioner (CCD, Insurance)

Messrs AKD ANALYTICS (PRIVATE) LIMITED---Appellant

Versus

COMMISSIONER (SECURITIES MARKET DIVISION), SECURITIES AND EXCHANGE COMMISSION OF PAKISTAN---Respondent

Appeal No. 60 of 2017, decided on 28th February, 2020.

Securities Act (III of 2015)---

----Ss. 150, 177 & 178---Disciplinary action in respect of licensed person---Transitional provisions---Repeal and savings---Scope---Appellant was imposed upon a penalty for not filing the quarterly financial data, Bank account details, half yearly and annual accounts---Contention of appellant was that it was not required to file quarterly financial data and submit accounts, since its registration as securities broker had expired on 26-08-2016---Commission contended that the appellant was always deemed to be licensed under Ss. 177(3) & 178(2)(e) of the Securities Act, 2015---Validity---Appellant was not a deemed licence holder at the time of issuance of show cause notice on 20-03-2017 as its licence had expired on 26-08-2016 nor had it applied for renewal of licence---Appellant had to meet the regulatory requirements of filing the quarterly financial return for the quarter ended 30-06-2016 and hard copy of annual returns for the period it held a valid licence, however, after the expiry of licence it was not under any obligation to file details of its bank accounts and returns for the period 30-09-2016 and half yearly accounts for the period 31.12.2016---Appellant had filed returns for the period 30-06-2016 on 05.12.2019 through electronic filing but still hard copy was not filed---Bench reduced the penalty imposed on the appellant and directed the appellant to file the hard copy---Appeal was disposed of accordingly.

Intezar Ahmed, Company Secretary, AKD Analytics Limited and Asghar Ali Anjum, Coordinator, AKD Analytics Limited for Appellant.

Osman Syed, Joint Director (Adjudication-I), Sabeel Ahmed, Assistant Director (Securities Market Division) and Ms. Mehwish Naveed, Management Executive (Adjudication-III) for Respondents.

2021 C L D 377

[Securities and Exchange Commission of Pakistan]

Before Farrukh H. Sabzwari, Commissioner (SCD, AML) and Shaukat Hussain, Commissioner (CCD, Insurance)

CHAKWAL SPINNING MILLS LIMITED---Appellant

Versus

EXECUTIVE DIRECTOR, CORPORATE AND SUPERVISION DEPARTMENT, SECP---Respondent

Appeal No. 11 of 2019, decided on 28th February, 2020.

Companies Act (XIX of 2017)---

----S. 83---Companies (Further Issue of Shares) Regulations, 2018, Reglns. 5 & 17---Further issue of capital---Conditions for issue of shares other than right---General conditions---Scope---Commission approved issuance of further 81,576,000 shares of appellant subject to certain conditions including that the Directors would not divest their shareholding for a period of three years---Appellant sought permission for waiving off restriction on divestment of shareholding, which was declined---Validity---Appellant had accepted the conditions under which approval was granted by the Commission for issue of further shares and had also issued the shares, therefore, it was unfair on the part of appellant to ask for relaxation from any of those conditions---Restriction imposed on divestment of shares was to protect the shareholders and the Commission could not impose conditions on utilization of funds generated from sale of shares---Impugned order was upheld and the appeal was disposed of accordingly.

Abdul Hye, CFO and Nadeem Anwar, Company Secretary for Appellant.

Amir M. Khan Afridi, Director (CSD) for Respondent.

2021 C L D 655

[Securities and Exchange Commission of Pakistan]

Before Farrukh H. Sabzwari, Commissioner (SCD, AML) and Shaukat Hussain, Commissioner (CCD, Insurance)

ROYAL SECURITIES (PVT.) LTD.---Appellant

Versus

COMMISSIONER (SECURITIES MARKET DIVISION), SECP---Respondent

Appeal No. 111 of 2017, decided on 8th May, 2020.

Securities Act (III of 2015)---

----Ss. 150, 133, 134 & 167---Securities Brokers (Licensing and Operations) Regulations, 2016, Reglns. 16(1)(i) & 16(1)(m)---Disciplinary action in respect of licensed person---Duties and obligations of a securities broker---Market manipulation---Fraudulently inducing trading in securities---Liability of licensed person for the acts of representative---Scope---Appellant Company was imposed upon a penalty of Rs. 5,00,000/- for market manipulation, fraudulently inducing trading in securities and its failure to establish the internal code of practice---Validity---Appellant Company had failed to establish an internal code of practice which resulted in abnormal trading in the shares of a Modraba Company by the sponsors of the Company who made a gain of Rs. 2.4 million and its employees had encouraged investment in the same Modraba Company through their Facebook page---Company's employees, even if not regular, were acting for the Company, therefore, the Company was liable for their actions---Appellate Bench held that the penalty was rightly imposed upon the Company--- Impugned order was upheld.

Imran Khan, CFO Royal Securities for Appellant.

Muhammad Farooq Bhatti, Additional Director (SMD), Osman Syed, Joint Director (Adjudication-1), Muhammad Faisal, Management Executive (Adjudication-1) and Ms. Mehwish Naveed, Management Executive (Adjudication-1) for Respondent.

2021 C L D 682

[Securities and Exchange Commission of Pakistan]

Before Aamir Ali Khan, Chairman/Commissioner (CLD-CSD) and Farrukh Hamid Sabzwari, Commissioner (SCD-AML)

SHAHEED ZULFIKAR ALI BHUTTO FOUNDATION---Appellant

Versus

The DIRECTOR (CLD-CCD), SECP---Respondent

Appeal No. 88 of 2019, decided on 24th March, 2020.

Companies Ordinance (XLVII of 1984)---

----S. 42---Power to dispense with "Limited" in the name of charitable and other companies---Scope---Appellant assailed an order passed by Director (CLD-CCD) whereby competent authority had, on failure of appellant to apply for renewal of licence, revoked appellant's licence---Validity---Appellant, for the last twenty five years, had failed to file audited annual financial statements and statutory returns---Appellate Bench, in the interest of appellant to revive its licence and the Director's inclination to provide said privilege, directed the appellant to file past twenty five years audited financial statements, annual statutory returns, forms related to directors' election and other required forms and documents with the Commission within a period of six months---Appellant was further directed to pay late/delayed filing fees to rectify its previous non-compliances---Director was directed to consider appellant's restoration/renewal application in accordance with law, if previous defaults were removed within allowed time---Appeal was disposed of accordingly.

Ejaz Hussain Rathore, ECA for Appellant.

Ms. Maheen Fatima, Director Ajudication-II, SECP/ Respondent.

2021 C L D 740

[Securities and Exchange Commission of Pakistan]

Before Farrukh Hamid Sabzwari, Commisioner (SCD, AML) and Shaukat Hussain, Commissioner (C&CD, Insurance)

Messrs FAIR EDGE SECURITIES (PVT.) LIMITED---Appellant

Versus

COMMISSIONER (SMD), SECURITIES AND EXCHANGE COMMISSION OF PAKISTAN, ISLAMABAD---Respondent

Appeal No. 99 of 2017, decided on 8th May, 2020.

Securities Act (III of 2015)---

----Ss. 150 & 79---Securities and Exchange Rules, 1971, Rr. 4 & 8---Securities Brokers (Licensing and Operations) Regulations, 2016, Regln. 21---Disciplinary action in respect of licensed person---Accounts and records to be kept---Contract notes---Manner of transaction of member's business---Reduction in penalty---Scope---Appellant was imposed upon a penalty for issuing trade confirmation without mentioning the date on which the order was executed; name and number of the securities; nature of transaction; price; commission, if the member is acting as a broker, and whether the order was executed for the member's own account or from the market and for its failure to maintain proper books of accounts---Validity---Securities and Exchange Commission of Pakistan Bench reviewed the clients' trade confirmation reports provided by the appellant and the respondent, which revealed that all applicable requirements, except "nature of transaction" were mentioned in all reports---Bench also reviewed the current clients' trade confirmation reports and observed that all the required conditions were met---Appellant had failed to comply with applicable regulatory requirements, therefore, the Bench did not exonerate it from the allegations established through the impugned order, however, Appellate Bench reduced the penalty and directed the appellant to comply with the regulatory and statutory requirements in letter and spirit to avoid strict penal action in future---Appeal was disposed of accordingly.

Mumtaz A. Chaudhary for Appellant.

Tahir Mahmood Kiani, Joint Director (SMD), SECP, Osman Syed, Joint Director (Adjudication-I), SECP, Muhammad Ali, BCD, CRO-SECP, Lahore, Muhammad Faisal, Management Executive (Adjudication-I), SECP and Ms. Mehwish Naveed, Management Executive (Adjudication-III), SECP for Respondent.

2021 C L D 775

[Securities and Exchange Commission of Pakistan]

Before Farrukh Hamid Sabzwari, Commissioner (SCD, AML) and Shaukat Hussain, Commissioner (CCD, Insurance)

MUHAMMAD IRFAN, CEO MIKON SECURITIES (PVT.) LTD.---Appellant

Versus

COMMISSIONER (SECURITIES MARKET\ DIVISION), SECP---Respondent

Appeal No. 1 of 2018, decided on 8th May, 2020.

Securities and Exchange Commission of Pakistan Act (XLII of 1997)---

----S. 33---Appeal to the Appellate Bench of the Commission---Dismissal of appeal for non-prosecution---Scope---Appellant assailed order passed by Commissioner, Securities Market Division under S. 152 of the Securities Act, 2015, read with Regln. 11 of the Securities Brokers (Licensing And Operations) Regulations, 2016---Validity---Appeal, on the first date of hearing, was adjourned on the request of appellant and the matter was re-fixed for hearing---Case was called on the said date and time; the department's representatives were present, however, the appellant failed to appear before the Bench nor any request for adjournment was received on his behalf---Hearing notice clearly stated that in case of non-appearance of either appellant or respondent before the Bench, the case could be decided in their absence---Appeal was dismissed for non-prosecution.

Nemo for Appellant.

Osman Syed, Joint Director (Adjudication-1), Muhammad Faisal, Management Executive (Adjudication-1), Nasir Askar, Director (SMD), Muhammad Ali, Joint Director (SMD) and Asad Ullah Gondal, Deputy Director (SMD) for Respondent.

2021 C L D 855

[Securities and Exchange Commission of Pakistan]

Before Farrukh H. Sabzwari, Commissioner (SCD, AML) and Shaukat Hussain, Commissioner (CCD, Insurance)

AMPLE SECURITIES (PVT.) LTD.---Appellant

Versus

COMMISSIONER (SECURITIES MARKET DIVISION), SECP---Respondent

Appeal No. 94 of 2017, decided on 28th February, 2020.

Securities Act (III of 2015)---

----S. 150---Securities (Leveraged Markets and Pledging) Rules, 2011, R. 34---Pakistan Stock Exchange Limited Regulations, Reglns. 4.18.1 & 19.5---National Clearing Company of Pakistan Limited Regulations, 2015, Regln. 12.9.3--- Disciplinary action in respect of licensed person---Segregation of clients' assets by the brokers---Obligation of brokers to collect margins from their clients---Scope---Appellant was warned by the Commission to comply with the regulatory framework for financing clients despite non-availability of sufficient funds in its clients' accounts, for making payment to clients who had debit balance, for its failure to recovery mark to market (MtM) losses in the form of cash and for its failure to collect margins from the clients for the trades executed in the ready market---Validity---Appellant had violated R. 34 of Securities (Leveraged Markets and Pledging) Rules, 2011 by extending unlawful financing to clients and executing trades in their accounts despite non-availability of sufficient funds as well as by making payments to clients despite existence of debit balance---Continued debit balances were also in contravention of Regln. 4.18.1(c) of Pakistan Stock Exchange Limited Regulations which required the appellant to maintain a collateral account under its participant account in the Central Depository System which was to be used where outstanding payment had not been received from clients in respect of securities purchased on their behalf and relevant purchase obligations had to be settled---Appellant had failed to recover MtM losses from its clients and also did not collect margins in contravention of Regln. 19.5 of the Pakistan Stock Exchange Limited Regulations read with Regln. 12.9.3 of the National Clearing Company of Pakistan Limited Regulations, 2015---Appellant had not come with any cogent reasons or given any satisfactory explanation as to why said violations took place---Impugned order was upheld and the appeal was disposed of accordingly.

M. Hussain, CEO Ample Securities (Pvt.) Ltd. for Appellant.

Osman Syed, Joint Director (Adjudication-I), Sabeel Ahmed, Assistant Director (SMD) and Ms. Mehwish Naveed, Management Executive (Adjudication-1) for Respondents.

2021 C L D 879

[Securities and Exchange Commission of Pakistan]

Before Farrukh H. Sabzwari, Commissioner (SCD, AML) and Shaukat Hussain, Commissioner (CCD, Insurance)

SWITCH SECURITIES (PVT.) LTD.---Appellant

Versus

COMMISSIONER (SECURITIES MARKET DIVISION), SECP---Respondent

Appeal No. 104 of 2017, decided on 8th May, 2020.

Securities Act (III of 2015)---

----Ss. 64 & 65---Securities Brokers (Licensing and Operations) Regulations, 2016, Regln. 16---Pakistan Stock Exchange Limited Regulations, Regln. 4.4.6---Circular No. 20 of 2017---Licensing requirement---Eligibility for licensing---Unauthorized deposit taking by securities brokers---Scope---Appellant was imposed upon a penalty and its license as a securities broker was suspended for accepting money from its customers and individuals with a pre-determined rate of return---Held; appellant could not indulge in any activity which its license did not permit in terms of Ss. 64(2) & 65(2) of Securities Act, 2015 and Regln. 4.4.6 of Pakistan Stock Exchange Limited Regulations---Regulation 16(2)(k) of the Securities Brokers (Licensing and Operations) Regulations, 2016, provided that the securities broker would not accept any money from a customer on a promise of pre-determined or guaranteed return---Appellant's argument that the Circular No. 20 of 2017 had given brokers a time period of 60 days to comply with the regulations and that the Regulations only had a prospective effect had no merit---Circular No. 20 of 2017 was only issued to warn brokers from further unauthorized deposit taking activity---Even before issuance of Circular No. 20 of 2017, the appellant was under an obligation to ensure that no unauthorized deposit was accepted---Appellant had given assurances that it would fully comply with the law and return the loans from customers but it failed to do so---No reason existed to interfere with the impugned order and the same was upheld---Appeal was disposed of accordingly.

Ijaz Mahmood Chaudhary (Legal Counsel) for Appellant.

Osman Syed, Joint Director (Adjudication- I) and M. Akram, Assistant Director (Adjudication-I) for Respondent.

2021 C L D 920

[Securities and Exchange Commission of Pakistan]

Before Farrukh Hamid Sabzwari, Commissioner (SCD, AML) and Shaukat Hussain, Commissioner (Insurance, C&CD)

MSD CAPITAL EQUITIES (PVT.) LIMITED---Appellant

Versus

The COMMISSIONER (SMD), SECP, ISLAMABAD---Respondent

Appeal No. 82 of 2017, decided on 28th February, 2020.

(a) Securities Act (III of 2015)---

----S. 150---Disciplinary action in respect of licensed person---Imposition of penalty---Scope---Appellant was imposed upon a penalty for its failure to file quarterly financial return, to send details of all of its Bank accounts and to provide hard copy of its half yearly accounts---Validity---Appellant had persistently violated the requirements of Financial Reporting System (FRS)---Contention of appellant that there was an error in the FRS was not acceptable because appellant had not provided any written evidence regarding agitation of matter before relevant department---Appellant had neither provided Bank details nor submitted half-yearly accounts to the Commission---Appellant's argument about imposition of penalty not greater than the gain earned or loss avoided, did not hold merit because under S. 150(2)(a) of the Securities Act, 2015, Commissioner (SMD) was empowered to impose penalty up to fifty million rupees---Appeal was dismissed.

(b) Securities Act (III of 2015)---

----S. 150---Disciplinary action in respect of licensed person---Wilful default---Scope---Section 150 of Securities Act, 2015 does not require establishment of willful default prior to imposition of penalty.

(c) Securities and Exchange Commission of Pakistan Act (XLII of 1997)---

----S. 33---Appeal---Condonation of delay---Application before wrong forum---Scope---Appellant is required to explain each and every movement to justify delay in filing appeal---Delay caused due to filing of application before wrong forum cannot be considered as a valid reason to condone the delay.

United Bank Limited v. Muhammad Afzal Solangi 2018 PLC 287; Muhammad Amir v. Muhammad Sarfraz 2019 CLD 523 and Furqan Habib v. Government of Pakistan 2006 SCMR 460 rel.

Ghulam Farid-Ud-Din, Advocate High Court for Appellant.

Osman Syed, Joint Director (Adjudication-I), SECP, Sabeel Ahmed, Assistant Director (SMD), SECP and Ms. Mehwish Naveed, Management Executive (Adjudication-III), SECP for Respondent.

2021 C L D 39

[Supreme Court of Pakistan]

Present: Faisal Arab and Sajjad Ali Shah, JJ

MUHAMMAD JAWED---Petitioner

Versus

FIRST WOMEN BANK LTD. and others---Respondents

Civil Petition No. 686-K of 2019, decided on 8th September, 2020.

(Against the judgment dated 5.12.2019 of the High Court of Sindh, Karachi passed in First Appeal No. 109 of 2019)

Civil Procedure Code (V of 1908)---

----O. XXI, Rr. 84, 85, 89, 90, 91 & 92---Mortgaged immoveable property---Court auction proceedings---Highest bidder---Vested right---Judgment debtor depositing entire decretal amount, cost of funds and cost of suit in court before acceptance of highest bidder's bid by the court---Question as to whether after having been declared the highest bidder any vested right in the subject property was created in his favour extinguishing the judgment debtor's right of redemption---Held, that nature of a bid made in court auctions involving immoveable property, notwithstanding whether it was the highest or the lowest, was that of an offer which did not by itself give rise to any rights, as the same was always subject to acceptance by the Court after proper application of its judicial mind followed by the deposit of full purchase-money under O. XXI, R. 85, C.P.C.---Bid made at an auction was in the nature of an offer which did not mature into a contract/sale till its acceptance by the court---Sale of property factually took place when the bid was accepted by the court---Court always held the power to reject any or all the bids without assigning any reason which itself reflected that the declaration by the auctioneer as the highest bidder was not a "sale"---Since a bid, being an offer, standing alone did not create any legal relationship, and neither did the deposit by the highest bidder, it logically followed that no rights could be said to arise out of the same---Vested/third party rights accrued in favour of a bidder when the auction sale became complete, i.e. when a bid was accepted by the Court and thereafter the full purchase-money was deposited in terms of O. XXI, R. 85, C.P.C.---However, such vested right again was defeatable and would not take away the right of the mortgagor/ judgment debtor to redeem his/her property if he/she brought his/her case within the parameters of O. XXI, Rr. 89, 90, or R. 91, C.P.C.---If, however, no application under said provisions was made within the time limit prescribed by law or the same was rejected, the Court mandatorily confirmed the qualified sale and made it absolute under O. XXI, R. 92, C.P.C., transferring the title of the property in the name of the successful bidder/purchaser, unless a delayed application to set aside the sale was entertained---Supreme Court observed that once the auction was conducted successfully the auctioneer's report must be taken up in Court for orders at the earliest, if not on the next day, accepting or rejecting the sale; that to prolong the proceedings or to keep the auctioneer report pending for months altogether not only discouraged the public in general to participate in Court sale but affected the sanctity of the proceedings and also caused loss to financial institutions and recovery of public money---Petition for leave to appeal was dismissed and leave was refused.

Muhammad Attique v. Jami Limited PLD 2010 SC 993; Navalkha and Sons v. Ramanya Das (1969) 3 SCC 537; Union Bank of India v. Official Liquidator (2000) 5 SCC 274; FCS Software Solutions LTD v. LA Medical Devices LTD (2008) 10 SCC 440; Hudaybia Textile Mills Ltd. v. Allied Bank of Pakistan Ltd. PLD 1987 SC 512 and Muhammad Khalil v. Messrs Faisal M.B. Corporation 2019 SCMR 321 ref.

Khawaja Shamsul Islam, Advocate Supreme Court for Petitioner.

Syed Kazim, Legal Advisor, FWB for Respondent No. 2.

Abrar Hussain, Senior Advocate Supreme Court for Respondent No.4.

2021 C L D 157

[Supreme Court of Pakistan]

Before Umar Ata Bandial, Sajjad Ali Shah and Yahya Afridi, JJ

Messrs SAZCO (PVT.) LTD.---Appellant

Versus

ASKARI COMMERCIAL BANK LIMITED---Respondent

Civil Appeals Nos. 870 and 871 of 2012, decided on 19th October, 2020.

(On appeal against the judgment dated 17.01.2011 of the Peshawar High Court, Peshawar in F.A.B. Nos. 50 and 51 of 2009)

(a) Uniform Customs and Practice for Documentary Credits 500 (1993 Revision)---

----Art. 2---Letter of credit---Meaning and scope.

Modern documentary credits, in particular Letters of credit, were essentially a mode of prompt payment to a contracting supplier of goods in another country. The payment under the said facility was assured to the party selling the goods, even before the consignment reached the agreed destination under the underlying contract. The opening of a letter of credit constituted a contract, inter alia, between the Bank and the seller of the goods and imposed upon the Bank an absolute obligation to pay the seller.

Hamzeh Malas and Sons v. British Imex Industries Ltd. 1958 (2) Q.B. 127; Abdul Kadir Jangda v. My Bank Ltd. 2007 CLD 349; Bank Solvency and Guaranty Letters of Credit, Stanford Law Review V. 25 (1972 at p. 719); R D Harbottle Limited v. National Westminster Bank (1977) 2 All ER 862 and Halsbury's Laws of England Vol. 34, Paragraph 319 at page 185 ref.

(b) Uniform Customs and Practice for Documentary Credits 500 (1993 Revision)---

----Arts. 2, 3, 4, 13 & 14(b)---"Letter of credit"---Salient features---"Independence-autonomy principle" and "strict performance principle"---Meaning and scope.

Documentary credit was separate and independent from the underlying sales contract or other transaction between the commercially contracting parties. This "autonomy" of the credit had been expressly addressed in various provisions of Uniform Customs and Practice for Documentary Credits 500 (1993 Revision) ["UCP 500"], and in particular in Articles 3 and 4 of the UCP 500.

Hamzeh Malas v. British Imex Industries Limited (1958) 2QB 127; Ward Petroleum Corp. v. Federal Deposit Ins. Corp. 903 F.2d 1297 and OGDCL v. Excel Techno Solutions FZE, U.A.E. 2017 CLD 1274 ref.

Reading of Articles 3 and 4 of UCP 500 highlighted the intent of its drafters; to insulate the compliance of the terms of credit by the paying Bank from any provision of the underlying contract between the applicant/buyer and beneficiary/seller. The paying Bank was only to deal with the documents 'alone'. More importantly, the paying Bank was to ensure that as long as the documents tendered by or on behalf of the seller were, on the face of it, in accordance with the terms of credit, it was under an obligation to make the payment regardless of any dispute between the seller and the buyer, may it be the quality of the goods or otherwise. One must appreciate that while reviewing documents under credits, the Banks were to deal with documents and not goods

Hamzeh Malas and Sons v. British Imex Industries Ltd. 1958 (2) Q.B. 127; United City Merchants (Investments) Ltd. v. Royal Bank of Canda [1983] 1 AC 168; S. A. Hameed v. Allied Bank of Pakistan Limited 2004 CLD 1620; Haral Textiles Limited v. Banque Indosuez Belgium, S.A. 1999 SCMR 591; Power Curber International Ltd. v. National Bank of Kuwait (1981) 3 All ELR 607; Haroon Rashid Chaudhri v. Muslim Commercial Bank 2006 CLD 1140; Blonder & Co. v. Citibank N.A. 28 A.D.3d 180 and Allied Plastic Industries (Pvt.) Limited v. ICC Chemical Corporation 2020 CLD 720 ref.

Above mentioned principle of 'autonomy' was however not absolute. It had an exception, i.e. when fraud was alleged and established.

Ulster Bank v. Synnott (1871), I.R. 5 Eq. 595; Woods v. Thiedemann (1862), I.H. & C.478; Basse and Selve v. Bank of Australasia (1904), 90 L.T. 618; Guaranty Trust Co. of New York v. Hannay & Co., (1918) 2 K.B. 623, C.A.; Re Salomon & Co. and Naudszus (1899), 81 L.T. 325; Robinson v. Reynolds (1841), 2 Q.B. 196; Thiedemann v. Goldschmidt (1859), 1 De G. F. & J. 4; Halsbury's Law of England Third Edition, Volume 2, Pages 220-221; Sztejn v. J Henry Schroder Banking Copn. 1941 31 NYS 2d 631; Blonder & Co. v. Citibank, N.A. 28 A.D.3d 180; Hamzeh Malas and Sons v. British Imex Industries Ltd. 1958 (2) QBD 127; R.D. Harbottle (Mercantile) Ltd. and another v. National Westminister Bank Ltd. 1977 (2) All ER 862; Edward Owen Engineering Ltd. v. Barclays Bank International Ltd. 1978 (1) All ER 976; UCM (Investment) v. Royal Bank of India 1982 (2) All ER 720; Gian Singh & Co Ltd. v. Banque de I'Indochine [1974] 2 All ER 754; Bolivinter Oil SA v. Chase Manhattan Bank (1984) 1 All ER 351; United Trading Corpn. SA v Allied Arab Bank Ltd [1985] 2 Lloyd's Rep 554; Turkiye Is Bankasi AS v. Bank of China [1998] 1 Lloyd's Rep 250; Himadri Chemicals Industries Ltd. v. Coal Tar Refining Company AIR 2007 SC 2798; U.P. State Sugar Corporation v. Sumac International Ltd. AIR 1997 SC 1644; U.P. Coop. Federation Ltd. v. Singh Consultants and Engineers (P) Ltd. [1988] 1 SCR 1124; Svenska Handelsbanken v. Indian Charge Chrome AIR 1994 SC 626 and U.P. Coop. Federation Ltd. v. Singh Consultants and Engineers (P) Ltd. [1988] 1 SCR 1124 ref.

The other principle governing documentary credit - doctrine of strict compliance, posited the Bank to stringently follow the terms of credit, while examining the documents tendered by the seller thereunder. The paying Bank, while examining the documents under the credit, was only obliged to examine, whether the same appeared to conform to the language of the terms of the credit. The Bank was not under a duty to carry out an enquiry during the said scrutiny. More so, the actions or inaction of the Bank during the examination of documents under the credit should not be seen to suggest an attempt to either accept discrepant or reject conforming documents. However, over time, there has been a judicial realisation that in certain cases, the principle of strict performance should not be followed in a literal and robotic manner.

Equitable Trust Co of New York v. Dawson Partners Ltd (1926) 27 L1 L Rep 49 at 52; English, Scottish and Australian Bank Ltd v. Bank of South Africa (1922) 13 L1 L Rep 21 at 24; Equitable Trust Co of New York v Dawson Partners Ltd (1927) 27 LI L Rep 49, at 52; J H. Rayner & Co Ltd v Hambro's Bank Ltd. [1943] KB 37; Gian Singh & Co Ltd v Banque de I'Indochine [1974] 2 All ER 754; Bankers Trust Co v. State Bank of India [1991] 2 Lloyd's Rep 443; Seaconsar Far East Ltd v. Bank Markazi Jomhouri Islami Iran [1993] 1 Lloyd's Rep 236; Beyene v Irving Trust Co. 762 Fed 4 (US Ct of Apps (2nd Cir) (1985) and International Standard Banking Practice for the examination of documents under documentary credit (2003) ref.

Joint reading of Articles 13 and 14(b) of the UCP 500 highlighted that that the strict obligation of the Bank to make the payment under the credit was made conditional upon the supplier or any person on its behalf tendering to the paying Bank all the documents stated in the credit, which were to conform to the terms of the credit. In case, the documents so tendered by the seller/beneficiary failed to conform with the terms of the credit, the payment by the Bank to the beneficiary/seller was to be refused.

OGDCL v. Excel Techno Solutions FZE, U.A.E. 2017 CLD 1274 ref.

(c) Uniform Customs and Practice for Documentary Credits 500 (1993 Revision)---

----Arts. 2, 3, 4, 13 & 14(b)---"Letter of credit"---Principles---Scope of 'independence-autonomy principle', 'strict performance principle' and other general principles in relation to documentary credits, stated.

(i) All documents stipulated in the credit were to be tendered by or on behalf of the seller/beneficiary to the Bank for seeking payment under the credit;

(ii) When the requisite documents were presented by or on behalf of the seller, the same were to be examined by the Bank "with reasonable care", to ascertain whether or not, the documents so tendered, on the face of it, complied with the terms and conditions of credit;

(iii) The doctrine of strict performance of the terms of the credit was to be observed and construed with such rigidity, so as to preserve the legitimacy of documentary credits subject to the facts and circumstances of each case;

(iv) The rule of autonomy mandated Bank to make the payment on the tender of conforming documents, irrespective of any dispute between the parties in respect of the underlying contract.

(v) The rule of autonomy was, however, not absolute. It had an exception, when there was a clear fraud, of which the paying Bank had notice before the payment was made to the seller/beneficiary, and the evidence of the fraud was clear and convincing.

(d) Uniform Customs and Practice for Documentary Credits 500 (1993 Revision)---

----Arts. 2, 3, 4, 13 & 14(b)---Contract Act (IX of 1872), S. 182---International sale transaction---"Letter of credit"---Principal-agent relationship between Bank issuing credit (issuing Bank) and nominated Bank---Claim against issuing Bank on grounds of fraud---Jurisdictional maintainability---Contractual relationship existed between the applicant of a credit with the Bank issuing the credit (issuing Bank), and also with the nominated Bank, which was to make the payment under the credit on presentation of the documents---Nominated Bank, which was to make the payment under the credit, acted as an agent of the issuing Bank---Issuing Bank would be bound and responsible for the actions or inactions of its agent carried out under the said agency---Thus, an applicant of credit registered in Pakistan would have a valid cause of action against an issuing Bank in Pakistan on two counts; first as a principal, for the actions or inactions of its agent/nominated-Bank in a foreign country; and secondly, as an issuing Bank, on receipt of (fraudulent) documents transmitted by the nominated Bank---Rationale behind the recognition of these legal relationships, which were established with the opening of documentary credit, was to bring certainty in the performance of obligations and payment of consideration of international sales transactions across the globe.

(e) Words and phrases---

----"Bill of lading"---Meaning.

Black's Law Dictionary, 8th Edn. and Carver on Bills of Lading, (Fourth Edition 2017), Sir Guenter Treitel and F.M.B Reynolds ref.

(f) Uniform Customs and Practice for Documentary Credits 500 (1993 Revision)---

----Arts. 2, 3, 4, 13 & 14(b)---"Letter of credit"---Bills of Lading---Allegation of forgery---Dispute between appellant-company and respondent-Bank over irrevocable Letters of Credit ("L.Cs.") availed by the former from the latter to finance a transaction with an international supplier---Both appellant-company and respondent-Bank filed recovery suits against each other---Banking Court decreed suit of respondent-Bank and dismissed that of the appellant-company---Plea of appellant-company that courts below had not appreciated the fraud committed by the supplier which tendered forged Bills of Lading to the nominated Bank in the foreign country; that the Bills of Lading presented by the supplier were discrepant to the terms of the L.Cs. and thus violated the Uniform Customs and Practice for Documentary Credits 500 (1993 Revision) ("UCP 500"); and thus the respondent-Bank was not entitled to any payment from the appellant-company under the L.Cs. and the amount so received from the appellant-company was to be reimbursed to it---Held, that perusal of the Bills of Lading showed that the goods described therein were in accord with the terms of the L.Cs.---Also, there were express markings thereon, stating: "Third-Party Bills of Lading"; the freight of the consignments had been "Prepaid"; and that the goods "shipped"---Bills of Lading provided complete particulars relating to the transportation of the goods: name of the shipper, the assignee (the respondent-Bank) and the applicant (appellant-company), the date on which the goods were shipped, the period of loading and its destination---Thus, the Bills of Lading were "clean", as all the terms of the transportation were stated therein, and it did not refer to the same by reference to another document---Bills of Lading mentioned the shipping and forwarding services company, which was marked as the agent of the carrier---Such fact was also brought to the notice of the issuing Bank (respondent-Bank) by the nominated Bank---Respondent Bank had to set up a prima facie case based on what appeared on the face of the documents tendered to be in accord with the underlying credit before making payment to the seller, which it had before the Banking Court---Appellant-company had to establish fraud by the seller relating to the documents so presented, and that too, before the payment was made to the seller, which it failed to do before the Banking Court---Mere bald unsubstantiated allegation would not legally suffice for the paying Bank to deny the payment to the seller under the credit---Essential legal requirements required to assert fraud had not been met by the appellant-company, as in the plaint of the appellant-company, neither had the fraudster been named in the memo, nor had he been impleaded as a party to the suit---Appellant-company failed to discharge its onus under the law to prove its claim regarding the tendered Bills of Lading being forged, or that the documents so produced were discrepant to the terms of the L.Cs., and thus violated the provisions of UCP 500---Appeals were dismissed, in circumstances.

(g) Fraud---

----Proof and scope---Fraud vitiated the most solemn of transactions, but proving fraud required strict proof---Onus to prove fraud remained on the asserter---Moreover, not only was the fraudster to be named and impleaded as a party to the suit, but the particulars of the fraud were also to be pleaded with clarity and certainty.

Ghulam Rasul v. Muhammad Akram 1988 SCMR 1080; Muhammad Ishfaq v. Chouhdri Muhammad Nawaz 2008 SCMR 1095; Haji Abdul Ghafoor through legal heirs v. Ghulam Sadiq through legal heirs PLD 2007 SC 43 and Muhammad Saleem v. Muhammad Tariq 2009 CLC 1295 ref.

Sahzib Masud, Advocate Supreme Court for Appellant (in both cases).

Iqbal Javed, Advocate Supreme Court for Respondent (in both cases).

2021 C L D 370

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Yahya Afridi and Sayyed Mazahar Ali Akbar Naqvi, JJ

NATIONAL SAVING CENTRAL DIRECTORATE, ISLAMABAD through D.G. and another---Petitioners

Versus

MUHAMMAD FAROOQ RAJA---Respondent

Civil Petition No. 405 of 2020, decided on 2nd November, 2020.

(Against judgment dated 9.12.2019 passed by Lahore High Court (Rawalpindi Bench) in Writ Petition No. 275 of 2018).

(a) Bahbood Savings Certificates Rules, 2003---

----Rr. 5 & 8---General Clauses Act (X of 1897), S. 24-A---Locus poenitentiae, principle of---"Bahbood Saving Certificate Scheme" ('the Scheme') introduced by the National Saving Centre ('the petitioner-Authority')---Dual national holding nationality of Pakistan and a foreign country---Whether a dual national (respondent) was eligible to avail the Scheme---Held, that respondent under the impression that he was eligible to purchase bonds under the Scheme applied for the same, in response to the acceptance shown by the petitioner-Authority---Respondent invested in the Scheme as a bona fide claimant---Incentive arising out of the said Scheme was extended in favour of the respondent in accordance with the rules framed under Bahbood Saving Certificates Rules, 2003---Petitioner-Authority was under an incumbent duty to scrutinize the status of the respondent prior to issuing acceptance which had accrued a right in favour of respondent---Any slackness on the part of the petitioner-Authority at belated stage could not be burdened to the respondent and the same was hit by principle of locus poenitentiae----Otherwise the case of the respondent was also covered by S. 24-A of General Clauses Act, 1897, which clearly reflected that once a right under the Scheme was accrued, the same could not be withdrawn unless and until it was established that the Scheme was availed by practicing fraud or misrepresentation---Besides respondent was a dual national, holding nationality of foreign country Denmark, which was one of the countries, whose nationality could be kept alongside nationality of Pakistan without deprivation of any legal rights under the law of the land---High Court had rightly found the respondent to be eligible for availing benefit of the Scheme---Petition for leave to appeal was dismissed and leave was declined.

The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207 ref.

(b) Estoppel---

----Promissory estoppel---Government functionaries---Where Government controlled functionaries made a promise which ensued a right to anyone who believed in it and acted under the same, then such functionaries were precluded from acting detrimental to the rights of such person/citizen.

Molvi Ijaz ul Haq, D.A.G. and Saghir Ahsan Farooqi, Joint Director (CDNS) for Petitioners

Fareed Nasir, Law Officer, National Savings.

Zafar Mehmood Mughal, Advocate Supreme Court for Respondent.

2021 C L D 381

[Supreme Court of Pakistan]

Present: Manzoor Ahmad Malik, Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ

SECURITIES AND EXCHANGE COMMISSION OF PAKISTAN---Appellant

Versus

NADEEM H. SHAIKH and others---Respondents

Criminal Appeal No. 518 of 2010, decided on 27th October, 2020.

(Against the order dated 26.01.2009 passed by the Islamabad High Court Islamabad in Criminal Original No. 73 of 2008)

Companies Ordinance (XLVII of 1984)---

----S. 282-K [since repealed]---Constitution of Pakistan, Art. 185--- Appeal pending before the Supreme Court---Appellant (Securities and Exchange Commission of Pakistan) failing to provide addresses of respondents for service purposes despite repeated directions and opportunities generously granted by the Supreme Court from time to time---Held, that law assisted the vigilant even in causes most valid and justiciable---Similarly, fixation of cases before Benches entailed public expense and time, that must not be incurred more than once in the absence of a reason most genuine and compelling---Supreme Court observed that delay caused by the appellant in doing the needful was exasperating, and the Court did not feel persuaded to allow such long drawn inaptitude to further encumber pendency of the Court--Appeal was dismissed, in circumstances.

Syed Hamid Ali Shah, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record for Appellant.

Tanvir-ul-Islam, Advocate Supreme Court for Respondents Nos. 5, 6, 9, 14 and 16.

Naeem Bukhari, Advocate Supreme Court for Respondents Nos.18 and 19.

Nayab Gardezi, Advocate Supreme Court for Respondent No.3.

2021 C L D 428

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Umar Ata Bandial, Ijaz ul Ahsan, Mazhar Alam Khan Miankhel and Munib Akhtar, JJ

HUMAN RIGHTS CASE NO. 318 OF 1993: In the matter of

Human Rights Case No. 318 of 1993, C.M.As. Nos. 7645, 5895, 5896, 5897, 5898 of 2018, C.M.As. Nos. 2370, 2416, 2417, 2606 of 2020 in C.R.P. Nil of 2020, C.M.As. Nos. 3267, 3275, 3908, 3943, 3957 and 3958 of 2020 in H.R.C. No. 318 of 1993, decided on 14th December, 2020.

(a) Pakistan Environmental Protection Act (XXXIV of 1997)---

----Preamble---Constitution of Pakistan, Arts. 18 & 184(3)---Human rights case---Limestone excavation and stone crushing--- Environmental pollution and destruction of landscape---Limestone crushers (applicants), who held valid mining leases, were aggrieved of the orders passed by the Supreme Court by virtue of which crushing operations in the entirety of Margalla Hills had been stopped---Applicants contended that pursuant to the orders passed by the Supreme Court, the Government had taken steps to prevent them from conducting their lawful business despite the fact that they were in possession of valid mining leases; that the prohibition against stone crushing and Iimestone mining was limited to the areas of Margalla Hills National Park and buffer zones/prohibited area around it, whereas the applicants were operating their business beyond said areas; that the applicants had invested heavily at the site and employed a large number of workers with the legitimate expectation that they would continue with their activities till expiry of the term of their leases, and that preventing the applicants from conducting their business was violative of their legal rights---Validity---Impugned order of the Supreme Court was in line with a chain of orders passed by the Court in the interest of environmental protection and to protect Margalla Hills ('the Hills') from indiscriminate misuse by breaking the Hills and converting them into (stone) crush which not only created environmental pollution but also destroyed the landscape and natural beauty of the Hills irreparably and on permanent basis---After due consideration of all the said factors and to preserve and protect a gift of nature that had been bestowed upon the residents of the city, further operation of crushing and mining activities in Margalla Hills were directed to be stopped---No reason was found to recall, alter or modify the said order---Application was dismissed with the directions that unless there was any other legal impediment, the concerned authorities shall under their direct supervision and ensuring that no further damage was done to the area and the Margalla Hills allow removal of the machinery and equipment from the area owned by the applicants.

(b) Pakistan Environmental Protection Act (XXXIV of 1997)---

----Preamble---Constitution of Pakistan, Art. 184(3)---Human rights case---Preservation of mountain ecosystems---Applicants sought issuance of directions to the Federal Government to promulgate appropriate legislation at the national level to provide for all affairs relating to mountain delimitation, mountain development, mountain protection, preservation of mountain ecosystem of the country including but not limited to Margalla Hills in the interest of public at large---Held, that as far as the legislation was concerned, the applicants could take up the matter with the concerned authorities directly who may take appropriate steps in such regard in accordance with law, keeping in view the protection and preservation of mountain areas---Supreme Court observed that the applicants may also brief the office of Attorney General who shall use his office for the purpose of providing the requisite information, know how and data to the concerned agencies with the assistance of the applicants---Application was accordingly disposed of.

Sajid Ilyas Bhatti, Additional A.G.P. and M. Ramzan, A.D. Legal, EPA for the Federation.

Niaz Ullah Niazi, A.G., Islamabad, Azam Khan, Acting Mayor, Syeda Shafaq Hashmi, Chief Officer MCI and M. Tariq Latif, Dir. Revenue CDA/MCI for ICT.

Aamir Ali Ahmed, Acting Chairman, CDA and Ch. Riasat Ali Gondal, Advocate Supreme Court for CDA.

Ch. Faisal Fareed, Additional A.G. Punjab, Shahzad Mehboob, A.C. Texila and Ijaz Hadayat, Dy. Dir. Mines, RWP for the Government of Punjab.

Barrister Qasim Wadood, Additional A.G. Khyber Pakhtunkhwa for the Government of Khyber Pakhtunkhwa.

Nasir Mehmood Mughal, Special Prosecutor for NAB.

Ch. Aitzaz Ahsan, Senior Advocate Supreme Court for Applicant (in C.M.As. Nos. 7258 and 3908 for 2020).

Ahmed Hassam Rana, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Applicant (in C.M.As. Nos. 2370 and 4699 of 2020).

Ms. Shireen Imran, Advocate Supreme Court for Applicant (in C.M.A. No. 2416 of 2020).

Syed Qalb-e-Hassan, Advocate Supreme Court for Applicant (in C.M.A. No. 2417 of 2020).

Tanveer Iqbal, Advocate Supreme Court for Applicant (in C.M.A. No. 2606 of 2020).

Barrister Umer Aslam, Advocate Supreme Court for Applicant (in C.M.A. No. 3943 of 2020).

Malik Qamar Afzal, Advocate Supreme Court for Applicant (in C.M.As. Nos. 3957 and 3958 of 2020).

Applicant in person (in C.M.As. Nos. 5895 and 5897 of 2018).

2021 C L D 472

[Supreme Court of Pakistan]

Present: Mushir Alam, Sardar Tariq Masood and Sayyed Mazahar Ali Akbar Naqvi, JJ

The STATE through Director General FIA, Islamabad---Petitioner

Versus

ALIF REHMAN---Respondent

Criminal Petition No. 994 of 2020, decided on 15th January, 2021.

(On appeal against judgment dated 29.11.2019 passed by the Peshawar High Court, Peshawar in Criminal Revision No. 244-P of 2019)

(a) Foreign Exchange Regulation Act (VII of 1947)---

----Ss. 3A, 3AA, 4 & 23---Dealing in foreign exchange without permission of concerned authorities---Reappraisal of evidence---Confiscation of local and foreign currency by the Federal Investigation Agency (FIA)/petitioner-department during raid proceedings---During trial the respondent-accused moved an application before the Trial Court for superdari of his confiscated currency, which was allowed to the extent of local currency only---However, the High Court ordered the petitioner-department to return both local and foreign currency to the accused---Legality---Any person who was citizen of Pakistan was authorized to establish business of foreign currency notes subject to moving an application to the State Bank of Pakistan on a prescribed form after payment of a prescribed fee seeking permission/ authorization---Method for the same was duly mentioned in S. 3A of the Foreign Exchange Regulation Act, 1947 ('the 1947 Act')---Similarly exchange companies could be formed by following the procedure provided in S. 3AA of the 1947 Act---However, in the present case the respondent neither sought any permission nor produced any document during raid or during investigation---Report in terms of S. 173, Cr.P.C. had already been submitted before the Court of competent jurisdiction and trial of the case was likely to be commenced in near future---High Court had extended artificial reasoning while passing the impugned judgment and the same was not supported by the law---Prima facie the local currency was being used by the accused as an exchange currency for the foreign currency, otherwise, there seemed no reason for him to keep a huge amount of local currency in the shop---Impugned judgment of the High Court and order of the Trial Court were set-aside, and the Supreme Court directed that the application of the respondent for superdari to the extent of local currency, already handed over to the respondent, shall be deemed to be pending before the Trial Court and shall be decided afresh by a judicious order after affording an opportunity of hearing to both the parties strictly in the spirit of the law---Petition for leave to appeal was converted into appeal and allowed accordingly.

(b) Constitution of Pakistan---

----Art. 187(1)---Power of the Supreme Court to issue such directions, orders or decrees as may be necessary for doing complete justice---Scope---Framers of the Constitution while inserting Art. 187 of the Constitution had assigned unfettered powers (to the Supreme Court) for a purpose which squarely came within the ambit of complete justice stricto sensu---Supreme Court in exercise of its inherent jurisdiction under Art. 187(1) of the Constitution was required to do complete justice, without being handicapped by any technicality or a rule of practice---Power of the Supreme Court to exercise its jurisdiction under Art. 187 of the Constitution was not dependent upon an application of a party.

Khalid Iqbal v. Mirza Khan PLD 2015 SC 50; Muhammad Zahid v. Muhammad Ali PLD 2014 SC 488 and Martin Dow Marker Ltd, Quetta v. Asadullah Khan 2020 SCMR 2147 ref.

Sajid Ilyas Bhatti, Additional Attorney General, Ch. Akhtar Ali, Advocate-on-Record and Syed Kashif Ali, Inspector FIA, Peshawar for Petitioner.

Arshad Hussain Yousafzai, Advocate Supreme Court for Respondent.

Awais in person on Court's Notice.

2021 C L D 547

[Supreme Court of Pakistan]

Present: Gulzar Ahmed, C.J., Umar Ata Bandial, Ijaz ul Ahsan, Mazhar Alam Khan Miankhel and Munib Akhtar, JJ

HUMAN RIGHTS CASE NO. 318 OF 1993: In the matter of

Human Rights Case No. 318 of 1993, C.M.As. Nos. 7645, 5895, 5896, 5897, 5898 of 2018, C.M.As. Nos. 2370, 2416, 2417, 2606 of 2020 in C.R.P. Nil of 2020, C.M.As. Nos. 3267, 3275, 3908, 3957 and 3958 of 2020 in H.R.C. No. 318 of 1993 and C.M.A. No. 3943 of 2020 in C.M.A. No. 7645 of 2018, decided on 14th December, 2020.

(a) Constitution of Pakistan---

----Arts. 18 & 184(3)---Pakistan Environmental Protection Act (XXXIV of 1997), Preamble---Human rights case---Limestone excavation and stone crushing--- Environmental pollution and destruction of landscape---Limestone crushers (applicants), who held valid mining leases, were aggrieved of the orders passed by the Supreme Court by virtue of which crushing operations in the entirety of Margalla Hills had been stopped---Applicants contended that pursuant to the orders passed by the Supreme Court, the Government had taken steps to prevent them from conducting their lawful business despite the fact that they were in possession of valid mining leases; that the prohibition against stone crushing and Iimestone mining was limited to the areas of Margalla Hills National Park and buffer zones/prohibited area around it, whereas the applicants were operating their business beyond said areas; that the applicants had invested heavily at the site and employed a large number of workers with the legitimate expectation that they would continue with their activities till expiry of the term of their leases, and that preventing the applicants from conducting their business was violative of their legal rights---Validity---Impugned order of the Supreme Court was in line with a chain of orders passed by the Court in the interest of environmental protection and to protect Margalla Hills ('the Hills') from indiscriminate misuse by breaking the Hills and converting them into (stone) crush which not only created environmental pollution but also destroyed the landscape and natural beauty of the Hills irreparably and on permanent basis---After due consideration of all the said factors and to preserve and protect a gift of nature that had been bestowed upon the residents of the city, further operation of crushing and mining activities in Margalla Hills were directed to be stopped---No reason was found to recall, alter or modify the said order---Application was dismissed with the directions that unless there was any other legal impediment, the concerned authorities shall under their direct supervision and ensuring that no further damage was done to the area and the Margalla Hills allow removal of the machinery and equipment from the area owned by the applicants.

(b) Pakistan Environmental Protection Act (XXXIV of 1997)---

----Preamble---Constitution of Pakistan, Art. 184(3)---Human rights case---Preservation of mountain ecosystems---Applicants sought issuance of directions to the Federal Government to promulgate appropriate legislation at the national level to provide for all affairs relating to mountain delimitation, mountain development, mountain protection, preservation of mountain ecosystem of the country including but not limited to Margalla Hills in the interest of public at large---Held, that as far as the legislation was concerned, the applicants could take up the matter with the concerned authorities directly who may take appropriate steps in such regard in accordance with law, keeping in view the protection and preservation of mountain areas---Supreme Court observed that the applicants may also brief the office of Attorney General who shall use his office for the purpose of providing the requisite information, know how and data to the concerned agencies with the assistance of the applicants---Application was accordingly disposed of.

Sajid Ilyas Bhatti, Additional A.G.P. and M. Ramzan, A.D. Legal, EPA for the Federation.

Niaz Ullah Niazi, A.G., Islamabad, Azam Khan, Acting Mayor, Syeda Shafaq Hashmi, Chief Officer MCI and M. Tariq Latif, Dir. Revenue CDA/MCI for ICT.

Aamir Ali Ahmed, Acting Chairman, CDA and Ch. Riasat Ali Gondal, Advocate Supreme Court for CDA.

Ch. Faisal Fareed, Additional A.G. Punjab, Shahzad Mehboob, A.C. Texila and Ijaz Hadayat, Dy. Dir. Mines, RWP for the Government of Punjab.

Barrister Qasim Wadood, Additional A.G. Khyber Pakhtunkhwa for the Government of Khyber Pakhtunkhwa.

Nasir Mehmood Mughal, Special Prosecutor for NAB.

Ch. Aitzaz Ahsan, Senior Advocate Supreme Court for Applicant (in C.M.As. Nos. 7258 and 3908 for 2020).

Ahmed Hassam Rana, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Applicants (in C.M.As. Nos. 2370 and 4699 of 2020).

Ms. Shireen Imran, Advocate Supreme Court for Applicant (in C.M.A. No. 2416 of 2020).

Syed Qalb-e-Hassan, Advocate Supreme Court for Applicant (in C.M.A. No. 2417 of 2020).

Tanveer Iqbal, Advocate Supreme Court for Applicant (in C.M.A. No. 2606 of 2020).

Barrister Umer Aslam, Advocate Supreme Court for Applicant (in C.M.A. No. 3943 of 2020).

Malik Qamar Afzal, Advocate Supreme Court for Applicant (in C.M.As. Nos. 3957 and 3958 of 2020).

Applicants in person (in C.M.As. Nos. 5895 and 5897 of 2018).

2021 C L D 863

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, C.J., Gulzar Ahmed and Dost Muhammad Khan, JJ

ENGLISH BISCUITS MANUFACTURERS PRIVATE LIMITED (EBM), KORANGI INDUSTRIAL AREAS, KARACHI and 6 others---Appellants

Versus

ASSOCIATED BISCUITS INTERNATIONAL LIMITED (ABIL) through Attorney---Respondent

Civil Appeal No. 506 of 2011, decided on 11th November, 2014.

(On appeal against the judgment dated 07.05.2004 passed by the High Court of Sindh, Karachi, in H.C.A. No. 59 of 2003)

Companies Ordinance (XLVII of 1984) [since repealed]---

----Ss. 86, 92(3) & 290---Dispute regarding valuation of shares---Fiduciary duties of directors---Scope---Respondent-company had a 40% shareholding in appellant-company---Company "C" was subsidiary of appellant-company, in which it held 51% shares, while the remaining 49% shares in company "C" were held by Directors of appellant-company---When a conflict of interest arose between the appellant-company and respondent-company, it was decided that appellant-company would buy/acquire the 49% shares in company "C" held by the shareholders/Directors of appellant-company---To finance such purchase it was decided to increase the paid-up capital of appellant-company through a right issue of shares, and the respondent-company was offered to subscribe to the right Issue to the extent of its entitlement---Dispute arose between the appellant and respondent companies with respect to valuation of right shares---Held, that the right shares which the Board of Directors of appellant-company had decided to issue by increasing its paid-up capital were basically meant for acquiring 49% shares of company "C" belonging to the same shareholders/Directors of appellant-company and primarily held by the family of two of the Directors---Thus, the valuation of shares of company "C" was of prime importance vis-a-vis issuing of right shares of appellant-company and the factor that had(rightly) influenced the courts below was that there should not be any element of self-enrichment by shareholders/Directors of appellant-company in purchasing their own 49% shareholding in company "C" to the detriment of the respondent-company, which had to acquire the right shares by making payment---Consequence of not acquiring the right shares by the respondent-company would have relegated it from a position of holding 40% shares in the appellant-company to that of mere 13%, therefore, the court below in considering the issue of right shares of appellant-company had directly related the same to the valuation of shares of company "C"---Appellant-company and its shareholders/Directors themselves gave in on the issue of valuation of shares of company "C", which amounted to an admission from their side that there was no fair and transparent valuation of the shares and the decision of Board of Directors of fixing the value of shares of company "C" was also not a fair one---Conduct of appellants during whole of the proceedings had been that of not supporting the valuation of shares of company "C" given by the auditors and they conceded to its revaluation---Directors of the company exercised fiduciary powers and were required to exercise such powers bona fide and in the interest and benefit of the company and its members without causing oppression---Such fiduciary powers in the facts and circumstances of the present case as per record were not exercised bona fide by the Directors of appellant-company, inasmuch as they themselves did not support the valuation of shares of company "C"---Once such fact stood established, there was hardly any reason or justification for the appellants to argue that respondent-company had forfeited its right to acquire right shares or that the right shares had been disposed of by the Directors and their property stood transferred---Appeal was dismissed in circumstances.

Anwar Manzoor Khan, Senior Advocate Supreme Court for Appellant No. 1.

Aziz A. Munshi, Senior Advocate Supreme Court and Hamid Khan, Senior Advocate Supreme Court for Appellants Nos. 2, 4 - 5.

Shaiq Usmani, Senior Advocate Supreme Court for Appellants Nos.3, 6 - 7.

Munir A. Malik, Senior Advocate Supreme Court and Zahid F. Ebrahim, Advocate Supreme Court for Respondents.

2021 C L D 898

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Sajjad Ali Shah and Munib Akhtar, JJ

STATE LIFE INSURANCE CORPORATION OF PAKISTAN---Appellant

Versus

ATTA UR REHMAN---Respondent

Civil Appeal No.350 of 2020, decided on 25th June, 2021.

(On appeal from the judgment dated 09.05.2018 of the Peshawar High Court, Peshawar passed in F.A.O. No.49-P of 2014)

Insurance Ordinance (XXXIX of 2000)---

----S. 75---Life insurance policy---Duty of utmost good faith on part of insured---Scope---Insured mentioning in his insurance application that he never had heart disease, when in fact he had undergone heart surgery prior to signing up for the policy---Whether it was a deliberate concealment of a material fact known to the insured and, hence, breach of the duty of utmost good faith, which allowed the insurance-company to avoid the contract---Held, that insurance company did not merely rely on the answers given by the insured in his Personal Statement of Health---Insured was also thoroughly medically examined by a doctor of the insurance company's own choice, and said report gave the insured a clean chit by stating that his coronary state was perfectly normal---Insurance company was induced to issue the life insurance policy not on account of the statements made by the insured, rather, it was the examination by the insurance company's own medical examiner and his report that was clearly the most important factor, and instrumental in inducing the insurance company to go forward in the matter---Furthermore, the industry custom and practice uniformly followed was that insurers in the life insurance business did not issue policies without a thorough medical examination of the person proposed to be insured, and unless the resultant medical report was found satisfactory or acceptable---If therefore the medical examiner chosen by the insurer was negligent or the Standard Operating Procedures (SOPs) established for the examination (again, by the insurer) were so lax as to fail to result in a properly thorough examination, the burden of that fault laid on the insurer---In such a situation the insured could not be held to account for any non-disclosure such as would enable the insurer to escape liability on the policy unless there was fraud or a fraudulent misrepresentation---Nothing was available on record to show that the non-disclosure by the insured (i.e., his answer to having history of heart disease) was fraudulent---Fora below had righty decreed the claim of the legal heirs of insured to the extent of the insured amount---Appeal filed by insurance company was dismissed.

Jubilee Insurance Co. Ltd. v. Ravi Steel Company PLD 2020 SC 324 distinguished.

MacGillivray on Insurance Law (14th ed., 2018) and State Life Insurance Corporation of Pakistan and another v. Shazia Mir Arshad 2019 CLD 1263 ref.

Muhammad Faisal and another v. State Life Insurance Corporation and others 2008 SCMR 456 not to be regarded as good law.

Sana Ullah Zahid, Advocate Supreme Court for Appellant.

Respondent ex-parte.

2021 C L D 925

[Supreme Court of Pakistan]

Present: Mushir Alam, Yahya Afridi and Qazi Muhammad Amin Ahmed, JJ

PERFORMANCE AUTOMOTIVE (PVT.) LTD.---Petitioner

Versus

AKBAR ADAMJEE and others---Respondents

Civil Petition No. 593 of 2020, decided on 16th April, 2021.

(Against the judgment dated 30.1.2020 passed by High Court of Sindh at Karachi in H.C.A. No. 252 of 2019)

Sale of Goods Act (III of 1930)---

----Ss. 2(14) & 58---Specific Relief Act (I of 1877), S. 12---Specific performance in respect of a "specific or ascertained goods"---Scope---Breach of contract to deliver an imported customized vehicle---Vehicle import company not having option of retaining the vehicle and asking customer to collect his refund---Petitioner-company contended that it was an agent of dealer for the subject vehicle and on account of some impending/issues with the Customs authority, the clearance of the vehicle from the port could not be affected; that consequently, the vehicle order agreement was cancelled and the customer/ respondent was requested to collect his refund, and that since agreement stood terminated and cancelled, therefore, specific performance could not be granted in favour of customer---Held, that perusal of S. 58 of the Sale of Goods Act, 1930 showed that specific performance could be ordered in respect of "a specific or ascertained goods"---In case breach of contract to deliver specific or ascertained goods occurred, the court may, if it thought fit, direct that the contract shall be performed specifically without giving the defendant option of retaining the goods on payment of damages---In the present case the vehicle ordered by the customer was customized and made to order; it could be classified as a "specific and ascertained goods"---Given that the vehicle ordered was one of the leading luxury brands with particular exterior and interior specifications and colour mentioned in the vehicle order agreement, left no doubt that it was a "specified or ascertained goods" within the contemplation of S. 58 of the Sale of Goods Act, 1930---Once the customer had successfully demonstrated that he had fulfilled all the terms and conditions of the agreement, S. 58 of the Sales of Goods Act, 1930 would apply to his case---Petition for leave to appeal was dismissed and leave was refused.

Messrs Petrocommodities (Pvt.) Ltd v. Rice Export Corporation of Pakistan PLD 1998 Kar. 1 and Agha Saifuddin Khan v. Pak Suzuki Motors Company Limited and others 1997 CLC 302 ref.

Muhammad Umar Lakhani, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Petitioner.

Kh. Shams-ul-Islam, Advocate Supreme Court for Respondent No.1 (via video link, Karachi).

Nisar A. Mujahid, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondents Nos. 2 - 3.

2021 C L D 946

[Supreme Court of Pakistan]

Present: Mazhar Alam Khan Miankhel and Amin-ud-Din Khan, JJ

ATIF MEHMOOD KIYANI and another---Petitioners

Versus

Messrs SUKH CHAYN PRIVATE LIMITED, ROYAL PLAZA, BLUE AREA, ISLAMABAD and another---Respondents

Civil Petitions Nos. 3209 and 3359 of 2020, decided on 16th February, 2021.

(Against the judgment dated 22.10.2020 passed by the Islamabad High Court in FAO No. 7 of 2020 and C.R. No. 402 of 2019)

(a) Contract Act (IX of 1872) ---

----S. 126---Contract of guarantee---Bank/insurance guarantee---Encashment---Scope---Bank or insurance guarantee that contained a categorical undertaking and imposed absolute obligation on the guarantor, i.e., the Bank or the insurance company, to pay the guaranteed amount, irrespective of any dispute which may arise between the parties regarding breach of the contract, for which performance one of the parties furnished the guarantee to the other, was an independent contract; therefore, the guarantor must discharge its obligations under the contract of guarantee as per the terms thereof, independent of the dispute as to performance of the primary contract between the parties.

National Construction Ltd. v. Awan-e-Iqbal Authority PLD 1994 SC 311 and Shipyard K. Damen v. Karachi Shipyard PLD 2003 SC 191 ref.

(b) Civil Procedure Code (V of 1908)---

----Ss. 10 & 151---Stay of suit---Scope---For attracting the application of the provisions of S. 10 of the Code of Civil Procedure 1980 ("C.P.C."), the matter in issue or all the matters in issue, if there were more than one, must be directly and substantially the same---Where some of the matters in issue in the subsequent suits were same and some were not, then proceedings of that (subsequent) suit could not be stayed under S. 10, C.P.C.; however, in order to avoid any conflicting finding on the issues that were common in both the suits, the proceedings of both the suits may be consolidated by the court in exercise of its inherent power under S. 151, C.P.C., for securing ends of justice and preventing abuse of the process of the court.

Muhammad Yaqoob v. Behram Khan 2006 SCMR 1262 ref.

Syed Mujtaba Haider Sherazi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners.

Muhammad Mansoor Usman, Advocate Supreme Court and Ahmad Nawaz, Advocate-on-Record for Respondents.

2021 C L D 960

[Supreme Court of Pakistan]

Present: Mushir Alam,Qazi Faez Isa and Sajjad Ali Shah, JJ

RANA BASIT RICE MILLS PRIVATE LIMITED---Appellant

Versus

SHAHEEN INSURANCE COMPANY and another---Respondents

Civil Appeal No. 45-L of 2018, decided on 24th June, 2021.

(Against the Judgment dated 10.04.2018 passed by the Lahore High Court in Insurance Appeal No. 18 of 2017)

Insurance Ordinance (XXXIX of 2000)---

----S. 122---Civil Procedure Code (V of 1908), O. XXIX, R. 1---Insurance petition, filing of---Authorized person---Scope---No Board Resolution presented before the court authorizing the Chief Executive of the company to file and contest the insurance petition---Curable defect---Lack of a board resolution authorizing the attorney does not invalidate the institution of the suit/petition so long as the Articles of Association confer upon the person/persons to institute the suit on the company's behalf---Even otherwise such a defect could always be cured by placing on record a Board Resolution issued even at a subsequent date, which would put the matter to rest---Appeal was allowed.

Muhammad Siddiq Muhammad Umar and another v. Australasia Bank Ltd. PLD 1966 SC 685; Central Bank of India Ltd. v. Taj ud Din Abdur Rauf 1992 SCMR 846; Pak Turk v. Turkish Airlines Inc. 2015 CLC 1; Rahat and Company, through Syed Naveed Hussain Shah v. Trading Corporation of Pakistan Statutory Corporation 2020 CLD 872= PLD 2020 SC 366; Presentaciones Musicales SA v. Secunda and another [1994] 2 All ER 737 and Al-Noor Sugar Mills Ltd. v. Federation of Pakistan and others 2018 SCMR 1792 ref.

Liaqat Ali Butt, Advocate Supreme Court for Appellant.

Ch. Amjad Pervaiz, Advocate Supreme Court for Respondents.

2021 C L D 1069

[Supreme Court of Pakistan]

Present: Mushir Alam, Qazi Faez Isa and Sajjad Ali Shah, JJ

ORIENT POWER COMPANY (PRIVATE) LIMITED through Authorized Officer---Petitioner

Versus

SUI NORTHERN GAS PIPELINES LIMITED through Managing Director---Respondent

Civil Appeal No.1547 of 2019, decided on 17th August, 2021.

(On Appeal from the judgment dated 01.08.2019 of the Lahore High Court, Lahore passed in I.C.A. 210640 of 2018)

(a) Contract---

----Inter-connected, inter-dependent, or multiple contracts forming an 'indivisible whole contract'---Scope---Gas Supply Agreement ('GSA') between a power generation facility and distributor of natural gas---Dispute over payment for gas---After determination by an expert ('expert determination') a separate "Payment Agreement" was executed between parties for payment of disputed amount---Question as to whether the GSA and the Payment Agreement were comprised of interconnected or inter-dependent contracts to be treated as "indivisible whole contract" or whether they were separate and independent from each other---Held, that the both the agreements i.e GSA and the Payment Agreement were by and between the same parties--- Obligations undertaken under the Payment Agreement were for the accomplishment of a single goal i.e. the fulfillment of the terms of the GSA---Both the contracts were economically interdependent and had a common origin.

Terms of the Payment Agreement established that the parties intended to remain within the confines of the Gas Supply Agreement ('GSA') as the purpose of the Payment Agreement was to give effect to the expert's determination. The expert determination itself was a result of a dispute arising out of the obligations of the GSA. Furthermore, the intention of the parties to give effect to the obligations under GSA was evident by the Recitals to the Payment Agreement, which made explicit mention of the GSA and the dispute arising under it. Moreover, Clause 1 of the Payment Agreement stated explicitly that the definitions set forth in the GSA would carry the same meanings under the Payment Agreement, and Clause 4 stated that after resolution of the issues under the Payment Agreement, the provisions of the GSA shall apply and prevail. Therefore, this was illustrative of the intention of the parties to, not only be bound by the GSA, but also to remain within its confines --- Such continuous reference to the GSA meant that the Payment Agreement was ultimately guided by, and dependent on the GSA for its existence; it was, undoubtedly a "part of an indivisible whole" and the transaction thus must be looked at in its entirety --- Appeal was dismissed.

Philippe Leboulanger 'Multi-Contract Arbitration' (1996) 13 (4) J In't Arb 43, 47 ref.

(b) Arbitration---

----Contract--- Inter-connected or inter-dependent contracts---Arbitration clause in one agreement deemed to be incorporated into another agreement---Scope---Gas Supply Agreement ('GSA') between a power generation facility and distributor of natural gas---Dispute over payment for gas---After determination by an expert ('expert determination') a separate "Payment Agreement" was executed between parties for payment of disputed amount---Plea of power generation facility that had the arbitration clause in the GSA did not cover the Payment Agreement, and thus the Sole Arbitrator exceeded his jurisdiction by deciding the issues arising out of the Payment Agreement---Held, that the arbitration clause in the GSA covered disputes, disagreements or default of the seller and buyer "in connection with or arising out of" the GSA---Dispute under the Payment Agreement was inarguably a dispute connected to the GSA, and also arose out of the obligations under the GSA---Controversy arising out of Payment Agreement was a progeny of the GSA and could not be divorced from the parent GSA---Arbitration clause contained in the GSA would therefore be the "centre of gravity" and would be deemed to be anchored in the Payment Agreement which itself was merely an implementation of the GSA---Disputes "arising out of" the GSA were thus wide enough to cover the Payment Agreement --- Neither was it commercially sensible nor realistic to hold that both the agreements were to be decided by separate forums--- Had this been the case, the parties, as rational businessmen, would have been prudent in expressly excluding the arbitration clause from the Payment Agreement---Appeal was dismissed.

Fiona Trust and Holding Corporation v. Privalov [2007] UKHL 40; AmTrust Europe Ltd v. Trust Risk Group SpA [2015] EWCA Civ 437; French Supreme Court on 14 May 1996 1st Civ. Chamber, 14 May 1996, 1997 Rev. Arb. 535; French Supreme Court decided on 5 March 1991 Commercial Ch., 1992 Rev. Arb. 66 and note by L. Aynès and Tjong Very Sumito and others v. Antig Investments Pte. Ltd; the Singapore Supreme Court [2009] 4 S.L.R.(R) 732, [2009] S.G.C.A. 41 ref.

(c) Arbitration---

----Arbitral tribunal---Jurisdiction---Doctrine of Kompetenz-kompetenz (competence-competence)---Scope---No legal impediment in the way of a court or tribunal to decide its own jurisdiction---Doctrine of Kompetenz-kompetenz essentially allowed the arbitral tribunal to determine its own jurisdiction.

Government of Punjab v. Sanosh Sultan PLD 1995 SC 541; Raunaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236 and SBP& Co. v. Patel Engineering Ltd. 8 SCC 618 = AIR 2006 SC 450 ref.

(d) Arbitration---

----Contract--- Inter-connected or inter-dependent contracts---Incorporation of an arbitration clause from one contract into another in international commercial arbitration---Survey of case law from the United Kingdom, Singapore, Hong Kong, India and Pakistan. [pp. 1089, 1090, 1091, 1092, 1093, 1094, 1095] G, H, I, J, K, L, M, N, O, P, Q, R, S, T & V

TW Thomas & Co. Ltd v. Portsea Steamship Co Ltd. [1912] A.C 1 HL; Aughton Limited v MF Kent Services Ltd. [1991] 57 B.L.R 1; Habaş Sinai ve Tibbi Gazlar Isthisal Endustri A.Ş. v. Sometal S.A.L. [2010] EWHC 29 (Comm); Trade Maritime Corp. v. Hellenic Mutual War Risks Association (Bermuda) [2006] 2 C.L.C 710; International Research Corp v. Lufthansa Systems Asia Pacific Pte Ltd. [2012] SGHC 226; R1 International Pte Ltd v. Lonstroff [2015] 1 S.L.R 521; Astel Peiniger Joint Venture v. Argos Engineering [1994] 3 HKC 328; Gay Constructions Pty v. Caledonian Techmore (Building) Ltd. [1995] 2 HKLR 35; Alimenta SA v. National Agriculture Co-op Marketing Federation of India (1987) 1 SCC 615; Dwarkadas & Co. v. Daluram Gaganmull AIR 1951 Cal 10; Atlas Export Industries v. Kotak Company (1999) 7 SCC 61; M.R. Engineers and Contractors (P) Ltd v. Som Datt Builders Ltd. (2009) 7 SCC 696 and Messrs MacDonald Layton v. Associated Electrical Enterprises PLD 1982 Karachi 786 ref.

(e) United Nations Commission on International Trade Law on International Commercial Arbitration ("UNCITRAL Model Law")---

----Art. 7(2)---Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act (XVII of 2011), Preamble---Arbitration Act (X of 1940), Preamble---Arbitration agreements---Incorporation of an arbitration clause by reference---Scope---Article 7(2) of the United Nations Commission on International Trade Law on International Commercial Arbitration ("UNCITRAL Model Law"), in furtherance of its pro arbitration aims, explicitly allowed for incorporation of arbitration clauses by reference---Supreme Court observed that in a commercially fast paced world, where the world was essentially a global village, it was regrettable that Pakistan, although a signatory to 'UNCITRAL Model Law', had till date not incorporated its provisions into its domestic law and the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 made no mention of incorporation of arbitration clauses by reference.

(f) Contract---

----Take or pay clause---Scope and significance.

Take or Pay provisions/clauses were a very familiar feature in gas and liquefied natural gas (LNG) sales contracts, power purchase contracts and many other common energy industry contracts, and provided an option for the buyer to take supply of gas, LNG or power, or to pay for it even if it did not take the commodity.

Take or pay clause tested in English Courts I.E.L.R. 2008, 3, 60-62 ref.

Take or Pay clauses were also widely utilized in the petroleum industry in Pakistan. Therefore, it could be seen that Take or Pay clauses were a common occurrence in energy contracts, and their significance in maintaining a regular income stream for the seller and a regular supply stream for the buyer was paramount.

There were two separate obligations in most take or pay contracts. First, there was the obligation on the seller to make the commodity available to the buyer. Secondly, there was the obligation on the buyer to pay for the commodity that had been made available (either as well as, or instead of, taking up the commodity). Furthermore, take or pay payments had been widely understood to be an amount due to the seller or transportation company as a debt for having made the commodity or transportation services available, and not as damages for failure on the other party to take the commodity. The rule of penalties in this case was not held to apply generally, because the seller or the transportation company was providing the service of making the commodity or transportation services available to the other party, in accordance with the Commodity Sale/Supply Agreement or the Commodity Transportation Agreement which created a debt owing to the seller or the transportation company for that service.

B. Holland 'Enforceability of take-or-pay provisions in English law contracts-resolved' 2016 Journal of Energy & Natural Law Resources; Amoco v. Teeside Gas [2001] 1 All ER (Comm) 865; Associated British Ports v. Ferryways and Another [2008] EWHC 1265 (Comm) and M & J Polymers Ltd v. Imerys Minerals Ltd. [2008] EWHC 344 (Comm) ref.

Take or pay payment should be viewed as being due on the performance of the seller's "specified obligation" in making the commodity available. There would not be any parallel breach by the buyer's failure to take the commodity as the buyer would have an option to take the commodity.

Cavendish Square Holdings BV v. Talal El Makdessi [2015] UKSC 67 ref.

(g) Interpretation of statutes---

----Words 'shall' and 'may'---Scope---Words "may" and "shall" in legal phraseology were interchangeable, depending on the context in which they were used, and were not to be interpreted with the rigidity which was attributed to them in ordinary parlance.

Muhammad Saleh v. Tim Chief Settlement Commissioner PLD 1972 SC 326 ref.

(h) Contract Act (IX of 1872)---

----S. 74---Compensation for breach of contract where penalty stipulated for---Reasonable compensation---Scope---In working out the amount for reasonable compensation, it would be relevant to consider whether any loss had or had not accrued to the party, which had suffered on account of the breach, and the extent of that loss---Award of compensation by the court under section 74 of the Contract Act, 1872 would depend upon a case by case factual and circumstantial analysis as to what would be reasonable compensation in each case subject to the limit of the amount mentioned in the contract.

Syed Sibte Raza v. Habib Bank Limited PLD 1971 SC 743 and Province of West Pakistan v Messrs Mistri Patel & Co. PLD 1969 SC 80 ref.

(i) Unjust enrichment---

----Scope---For a claim of unjust enrichment to succeed, there must be enrichment at the expense of the plaintiff and this enrichment must be unjust in such a way that there should be no lawful justification for the same.

Fecto Belarus Tractor Ltd v. Government of Pakistan PLD 2005 SC 605 at 636; Arabian Sea Enterprises v. Abid Amin Bhatti PLD 2013 Sindh 290; Sui Northern Gas Pipelines v. DCIR 2014 PTD 1939 and Garland v. Consumers' Gas Co. [2004] 1 S.C.R. 629 ref.

(j) Arbitration---

----Award---Unjust enrichment---'Juristic reason' for enrichment---Scope---Gas Supply Agreement ('GSA') between a power generation facility ('power company') and distributor of natural gas ('SNGPL')---Dispute over payment for gas after power company refused to take up gas from SNGPL---Question as to whether the award rendered by the Arbitrator in favour of SNGPL amounted to unjust enrichment---Held, that although SNGPL was receiving payment for the same amount of gas twice, it needed to be clarified that this was upon failure of the power company to take up the gas, and further, the SNGPL, in any case, was not recovering the same amount, due to the fact that it was redirecting transmission to its domestic consumers, which paid a lower tariff than Independent Power Producers (IPP) like the power company---Furthermore, to allow the power company's claim would mean overlooking the fact that SNGPL was still under an obligation to supply the Make-Up Gas to the power company at any time within the duration stipulated under the GSA, therefore, there was a 'juristic reason' for the enrichment---Further, the power company had failed to prove its deprivation as it was entitled to Make-Up Gas at a later date, which it failed to avail within the stipulated time frame---Furthermore the Arbitrator while dismissing the claim of unjust enrichment raised by the power company correctly explained that SNGPL expanded monies to construct the infrastructure to deliver gas to the power company; that SNGPL remained liable to its upstream suppliers even if the power company chose not to take the Take or Pay Quantity but opted to pay instead and to Make Up Gas later; that SNGPL had to bear the responsibility of cutting its losses and find an alternative buyer (even at a lower price) for the Gas not taken by the power company and the likely additional costs of its transmission, distribution and unaccounted for gas---Power company (appellant) had failed to make out a claim for unjust enrichment, and the award rendered by the Arbitrator was not disproportionate to the losses suffered by SNGPL---Appeal was dismissed.

(k) Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (the "New York Convention")---

----Art. V(2)(b)--- Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act (XVII of 2011), S. 6 & Preamble---International commercial arbitration---Arbitral award---Recognition and enforcement of arbitral award may be refused if the award would be contrary to "public policy" of that country" --- Public policy exception---Scope---Public policy exception acted as a safeguard of fundamental notions of morality and justice, such that the enforcement of a foreign award may offend these fundamentals---Public policy exception was never meant to be given a wide scope of application---Most courts world over favoured a restrictive approach to public policy in international commercial arbitration---Public policy exception should not become a back door to review the merits of a foreign arbitral award or to create grounds which were not available under Art. V of the New York Convention as this would negate the obligation to recognize and enforce foreign arbitral awards---Such kind of interference would essentially nullify the need for arbitration clauses as parties would be encouraged to challenge foreign awards on the public policy ground knowing that there was room to have the Court set aside the award---Public policy defense was an exceptional one, which demanded heightened standards of proof that courts would normally require in order to refuse recognition and enforcement of a foreign arbitral award---Such heightened standard of proof was compatible with the exceptional nature of the public policy defense as well as with the fact that Art. V(2)(b) of the New York Convention provided a mere facility to the courts and not an obligation.

Parsons & Whittemore Overseas Inc. v. RAKTA 508 F.2d 969 (1974); Betamax Ltd (Appellant) v. State Trading Corporation (Respondent) (Mauritius) [2021] UKPC 14; Nan Fung Textiles Limited v. Sadiq Traders Limited PLD 1982 Kar. 619; Haji Abdul Karim and others v. Sh. Ali Muhammad PLD 1959 SC 167; Sardar Muhammad Yasin v. Raja Feroze Khan PLD 1972 AJ&K 46; Higher Regional Court of Frankfurt (Oberlandesgericht Frankfurt) in Oberlandesgericht [OLG] Frankfurt, Germany 26 Sch 13/08, 16 October 2008; Oberlandesgericht [OLG] Celle, Germany 8 Sch 06/05, 6 October 2005 and Renusagar Power Co. Ltd v. General Electric Co. 1994 SCC Supl. (1) 644 ref.

Salman Akram Raja, Advocate Supreme Court for Petitioner.

Kh. Ahmad Hosain, Advocate Supreme Court for Respondent.

2021 C L D 1189

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah and Munib Akhtar, JJ

UNIVERSAL INSURANCE COMPANY and another---Appellants

Versus

KARIM GUL and another---Respondents

Civil Appeal No. 1280 of 2019, decided on 24th August, 2021.

(On appeal from the judgment dated 25.03.2019 of the Peshawar High Court, Peshawar passed in Civil Revision No. 129-P of 2013).

(a) Contract---

----Terms of contract---Interpretation---Reasonable person standard---Scope---Contract had to be interpreted objectively and not as per the subjective views of the parties---Terms of the contract were to bear that meaning as they would have for, or convey to, a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.

The Interpretation of Contracts by Kim Lewison 5th ed., 2007, pg. 1 ref.

(b) Sale of Goods Act (III of 1930)---

----S. 2(7)---Goods subject matter of the contract between the parties---Scope---Suit for recovery---Wreckage of an accidental vehicle sold by appellant-insurance company to the respondent as 'total loss'---"Total loss"---Interpretation---Respondent expended a substantial sum to repair the vehicle and bring it into usable condition, however, when he went to have its registration with the motor vehicle authority transferred to his name he was informed that there was already another vehicle registered with the same number and that the documents produced by him were not genuine---Respondent filed suit in the civil court claiming damages in the sum of Rs. 10,00,000/- (of which Rs. 600,000/- was the total of the sums expended by him and the balance was by way of compensation)---Question as to whether the subject matter of the contract between the parties, was a 'motor vehicle' in howsoever badly damaged a condition it may have been, making the appellant (Insurance Company) liable to the respondent, or was it only a 'wreck' which was not a motor vehicle in any meaningful sense, and absolutely no regard had to be given to what the respondent intended to, or could, or actually did with it---Held, that in the insurance business the thing insured could be declared to be a "total loss" in two different senses---One was of it being an "actual total loss"; here, the sense was that the insured property had been destroyed or damaged to such an extent that it could be neither recovered nor repaired for further use---In this sense the insured property was reduced to just wreckage and nothing more---Other sense in which total loss was used was "constructive total loss"; this was the situation where the repair cost of the damaged insured property exceeded its market value if the repairs were undertaken, meaning it was not worthwhile to pay for the repairs or have them undertaken---In the present case the words 'total loss' had been used in the contract---Since the contract was created by the appellant, hence following the contra proferentem rule, any ambiguity in its meaning had to be resolved against the appellant---Words "total loss" used in the contract ought to be construed to have the meaning of "constructive total loss" i.e. the vehicle in question retained its character as such, and did not cease to be a thing of the kind that had been insured---Wreckage sold to the respondent was not mere wreckage, rather it was a vehicle, howsoever badly damaged it may have been and notwithstanding that the cost of the repairs may have exceeded the market value of the vehicle when repaired---Since what was sold was a vehicle, the respondent had an enforceable expectation that he would be able to use it as such in a lawful manner, i.e., to have it registered in his own name, but as he was unable to do so and clearly suffered loss, the burden of that loss must fall on the appellant---Suit of respondent had been rightly decreed by the Trial Court and the High Court---Appeal was dismissed.

(c) Contract---

----Terms---Interpretation---Contra proferentem rule---Scope---When there was a doubt about the meaning of a contract, the words would be construed against the person who put them forward---Said rule was a principle not only of law but of justice.

Association of British Travel Agents Ltd. v. British Airways Plc (2000) 2 All ER (Comm) 24, (2000) 2 Lloyd's LR 209 and Co-operators Life Insurance Co. v. Gibbons (2009) 3 SCR 605, 2009 SCC 59 ref.

Rana Muhammad Arshad Khan, Advocate Supreme Court for Appellants.

Abdul Sattar Khan, Advocate Supreme Court for Respondent No.1.

2021 C L D 1217

[Supreme Court of Pakistan]

Present: Syed Mansoor Ali Shah and Amin-ud-Din Khan, JJ

Mrs. SAMINA MEHR-UN-NISA MAZARI---Appellant

Versus

PUBLIC AT LARGE and others---Respondents

C.A. No. 184-L of 2010, decided on 3rd August, 2021.

(Against the order dated 02.04.2007 passed by the Lahore High Court, in C. R. No.716 of 2007).

(a) Provincial Insolvency Act (V of 1920)---

----S. 7 & Preamble---Provincial Insolvency Act, 1920 (the 1920 Act)---Scope and application---Said Act dealt with the insolvency of an individual, while corporate insolvency was dealt with separately under the company law---Therefore, insolvent companies were not amenable to the law of insolvency but underwent a separate process known as liquidation, or winding up, administered under separate law.

(b) Provincial Insolvency Act (V of 1920)---

----Ss. 7 & 8---Insolvency petition---Exemption of corporation, etc., from insolvency proceedings---Scope---Appellant-lady filed an insolvency petition under S.7 of the Provincial Insolvency Act, 1920 ("the 1920 Act") to be declared insolvent; she arrayed all her institutional creditors as respondents in the petition---Petition was dismissed by the Trial Court on the basis of S.8 of the 1920 Act holding that no insolvency petition could be filed against any corporation or association or company registered under any enactment for the time being in force---Question as to whether S.8 of the 1920 Act barred an insolvency petition to be filed by the debtor seeking his own insolvency by arraying corporate banks as creditors to the petition---Held, that S.8 of the 1920 Act exempted corporations and companies from any insolvency proceedings against them, however, in the present case the insolvency petition filed by the appellant was not an insolvency petition filed against any corporate person but instead, was filed by the debtor (the appellant) to get herself adjudged as an insolvent---Arraying the creditor banks (corporations or companies) as respondents in the insolvency petition did not mean that an insolvency petition had been filed against corporate persons to seek their insolvency---Exemption contained in S.8 of the 1920 Act had no application to the present case---Orders of courts below were set-aside and Supreme Court directed that insolvency petition would be deemed to be pending before the Trial Court, which shall decide the same in accordance with law---Appeal was allowed.

Kazim Ali Shah v. United Bank Limited 1988 CLC 913 ref.

Muhammad Azeem Malik, Advocate Supreme Court for Appellant.

M. Naveed Sheikh, Advocate Supreme Court for Respondent No.2.

Ashar Elahi, Advocate Supreme Court for Respondent No.3.

Mian Azhar Saleem, AHC for Respondent No.7.

Shahnawaz Khan and Umer Qureshi Bank representatives for Respondent No.6.

Nemo for Respondents Nos. 4 and 8.

2021 C L D 1261

[Supreme Court of Pakistan]

Present: Umar Ata Bandial and Sayyed Mazahar Ali Akbar Naqvi, JJ

RAB NAWAZ KHAN---Appellant

Versus

JAVED KHAN SWATI---Respondent

Civil Appeal No. 889 of 2014, decided on 12th November, 2020.

(On appeal from the judgment/order dated 06.12.2013 of the High Court of Peshawar Abbottabad Bench passed in R.F.A. No. 72 of 2006)

Negotiable Instruments Act (XXVI of 1881)---

---- Ss. 6, 22 & 118---Civil Procedure Code (V of 1908), O. XXXVII---Summary suit--- Cheque, issuance of---Whether cheque was issued by respondent for consideration or merely as an acknowledgment/receipt for investment made by him---Held, that it was a well-established principle that a cheque was intended to be for immediate payment---In ordinary circumstances cheques were exchanged between the parties for the purpose of immediate payment---Cheque was not even entitled to days of grace, as in the case of promissory notes and bills of exchange---Presumption that every negotiable instrument was made/drawn for consideration was however rebuttable---Burden to rebut said presumption laid upon the party arguing that the negotiable instrument had not been made/drawn for consideration---Such presumption was not rebutted by a bare denial of the passing of the consideration----To disprove the presumption the defendant (person who had issued the cheque/negotiable instrument) had to bring on record such facts and circumstances, upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist---In the present case the respondent (who had issued the cheque) provided a bare denial as his defence, and produced no independent evidence to support his plea that cheque was issued by him merely as a receipt---Furthermore no protest was lodged by the respondent when the appellant presented the cheque for encashment to a bank, which returned the cheque with the remark 'refer to drawer'---Respondent re-validated the cheque but it was again declined by the bank with the same remark---If respondent's plea that cheque was issued merely as a receipt was accepted, then question was as to what was the purpose behind revalidating the cheque---Only reasonable explanation for this was that cheque was issued and revalidated by the respondent so that appellant could recover his amount owed to him by the respondent---Appeal was allowed and summary suit filed by appellant for recovery of his amount was decreed.

Haji Karim v. Zikar Abdullah 1973 SCMR 100; Bharat Barrel and Drum Manufacturing Company v. Amin Chand Payrelal [1999] 1 SCR 704 and Col. (Retd.) Ashfaq Ahmed and others v. Sh. Muhammad Wasim 1999 SCMR 2832 ref.

Ch. Akhtar Ali, Advocate-on-Record for Appellant and Appellant in person.

Riaz Hanif Rahi, Advocate Supreme Court, Syed Rifqat Hussain Shah, Advocate-on-Record, Asif Ali, Advocate Supreme Court and Qari Rasheed, Advocate Supreme Court for Respondent.