2000 PLP 950 (SCMR)
through Project Manager — Petitioner Versus K.A. CONSTRUCTION CO. through Attorney — Respondent
| Citation | 2000 PLP 950 (SCMR) |
| Forum / Court | Supreme Court of Pakistan |
| Bench Members | Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ |
| Parties | through Project Manager — Petitioner Versus K.A. CONSTRUCTION CO. through Attorney — Respondent |
| Primary Law | Companies Ordinance (XLVII of 1984) |
Q1: What are the key laws and sections cited in 2000 PLP 950 (SCMR)?
This judgment primarily cites: Companies Ordinance (XLVII of 1984) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2000 PLP 950 (SCMR)?
The case was heard and decided by the Supreme Court of Pakistan bench comprising: Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2000 PLP 950 (SCMR) (through Project Manager — Petitioner Versus K.A. CONSTRUCTION CO. through Attorney — Respondent). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Bilal A. Khawaja, Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Petitioner.
- Nemo for Respondent.
- Date of hearing: 10th November, 1999.
- It would be appropriate to first of all attend to the objection, concerning, non-maintainability of petitions, put forth by Mr. Farooq Rashid, Advocate. There is no cavil with the legal position that a suit (petition) on behalf of the Company, would not be competent, unless the person signing the same, has not been authorised by the Resolution passed by the Company's Board of Directors, in their meeting, as held in the judgment cited by learned counsel reported in Khan Iftikhar Hussain Khan of Memdot represented by 6 heirs) v. Messrs Ghulam Nabi Corporation Ltd., Lahore (PLD 1971 SC 550), but it is also to be borne in mind that such technical objection, ought to have been raised at the initial stage of proceedings, as it has been held in the case of Messrs Dawood Yamaha Ltd. v. Government of Balochistan and 3 others (PLD 1986 Quetta 148). In the cited judgment, identical objection was raised at the time of the arguments. His Lordship Mr. Justice Ajmal Mian, Actg. C.J. of this Court, as then he was, while dictating Judgment on behalf of Division Bench, held, that there lies a vast difference between the suit and a Constitutional petition, inasmuch as, the provisions of the Code of Civil Procedure are strictly applicable to a suit, whereas they are not strictly applicable to Constitutional petitions, though some of the provisions thereof are pressed into service to regulate the conduct of the petitions in the absence of any rule on a particular topic framed by the High Court for regulating the Constitutional petitions.'
- 2. Mr. Bilal A. Khawaja, learned Advocate Supreme Court appearing in support of these petitions, has contended that the learned Members of the Division Bench of the High Court dismissed the RFAs only when an oral objection was taken which was mala fide in that such objection was neither taken by the respondent-K.A, Construction Co.,,at the time of service of the P' appeals on them nor even prior to the appellant furnishing bank guarantee No.K-951 of 1999, dated 28-6-1999 for Rs.13,852,053 representing the entire decretal amount in RFA No.2. It was also argued that the power of attorney in favour of the signatory on behalf of the petitioner-Corporation together with the Resolution in support thereof as also the copies of the Memorandum and Articles of Association, did constitute due and sufficient compliance with the requirement of law as held, by this Court in Messrs Muhammad Siddiq Muhammad Umar and another v. The Australasia Bank Ltd. (PLD 1966 SC 684). He also referred to Part XIV namely sections 450 to 460 of the Companies Ordinance (No.XLVII of) 1984, hereinafter referred to as the Ordinance, to contend that the same were not attracted/applicable in the case of petitioner-Corporation, which had not established any place of business in Pakistan and was executing an international contract awarded by Pakistan Water and Power Development Authority (WAPDA) pursuant to an invitation to tender. He also relied upon Khan Iftikhar Hussain Khan of Mamdot (represented by 6 heirs) v. Messrs Ghulam Nabi Corporation Ltd., Lahore (PLD 1959 SC (Pak.) 550) to contend that the effect of the documents on the record should have been determined after providing an opportunity to produce and prove the same, by way of additional evidence.
Headnotes / Summary
(On appeal from the judgment, dated 2-11-1999 passed by the High Court of Balochistan, Quetta in R.F.As. Nos.2 and 3 of 1998).
Part XIV [Ss. 450 to 460]
Constitution of Pakistan (1973), Art. 185(3)
Leave to appeal was granted by Supreme Court to examine the contentions -that High Court dismissed the appeal, only when an oral objection was taken which was mala fide in that such objection was neither taken by the respondent at the time of service of the appeals on them nor even prior to the appellant furnishing Bank guarantee representing the entire decretal amount; that power of attorney in favour of the signatory on behalf of the Corporation together with the resolution in support thereof as also the copies of the Memorandum and Articles of Association, did constitute due and sufficient compliance with the requirement of law; that Ss. 450 to 460 of the Companies Ordinance, 1984 were not attracted/applicable in the case of Corporation, which had not established any place of business in Pakistan and was executing an international contract awarded pursuant to an Invitation of Tender and that the effect of the documents on record should have been determined after providing an opportunity to produce and prove the same, by way of additional evidence. Messrs Muhammad Siddiq Muhammad Umar and another v. The Australasia Bank Ltd. PLD 1966 SC 684 and Khan Iftikhar Hussain Khan of Mamdot (represented by 6 heirs) v. Messrs Ghulam Nabi Corporation Ltd., Lahore PLD 1959 SC (Pak.) 550 ref.
Judgment & Decree
CH. MUHAMMAD ARIF, J.
By this common order we intend to dispose, of the above petitions which have arisen out of the judgment, dated 2-11-1999 passed by Balochistan High Court, Quetta in Regular First Appeals Nos.2 and 3 of 1999 with, inter alia, the following observations:-- "For the above discussion, safely, it can be concluded that the Power of Attorney, dated 20th February, 1993, does not confer authority upon Mr. Duan Songlin, to institute instant appeals, because under Article 4.20 of the Memorandum, the President of the Corporation, is not authorised by the Execution Committee, to confer upon him, and authority to launch legal proceedings. Consequently, it is held that memo. of appeals, have not been duly signed by duly Authorized Person, therefore, both being incompetent deserve to be dismissed without entering into the merits of case. In arriving at such conclusion, we are fortified from the judgment reported in 1998 CLC 1767. Relevant para. therefrom, is reproduced herein below:-- It would be appropriate to first of all attend to the objection, concerning, non-maintainability of petitions, put forth by Mr. Farooq Rashid, Advocate. There is no cavil with the legal position that a suit (petition) on behalf of the Company, would not be competent, unless the person signing the same, has not been authorised by the Resolution passed by the Company's Board of Directors, in their meeting, as held in the judgment cited by learned counsel reported in Khan Iftikhar Hussain Khan of Memdot represented by 6 heirs) v. Messrs Ghulam Nabi Corporation Ltd., Lahore (PLD 1971 SC 550), but it is also to be borne in mind that such technical objection, ought to have been raised at the initial stage of proceedings, as it has been held in the case of Messrs Dawood Yamaha Ltd. v. Government of Balochistan and 3 others (PLD 1986 Quetta 148). In the cited judgment, identical objection was raised at the time of the arguments. His Lordship Mr. Justice Ajmal Mian, Actg. C.J. of this Court, as then he was, while dictating Judgment on behalf of Division Bench, held, that there lies a vast difference between the suit and a Constitutional petition, inasmuch as, the provisions of the Code of Civil Procedure are strictly applicable to a suit, whereas they are not strictly applicable to Constitutional petitions, though some of the provisions thereof are pressed into service to regulate the conduct of the petitions in the absence of any rule on a particular topic framed by the High Court for regulating the Constitutional petitions.' As a result; both the Appeals are dismissed, in view of the Legal Objections, discussed hereinabove."
2. Mr. Bilal A. Khawaja, learned Advocate Supreme Court appearing in support of these petitions, has contended that the learned Members of the Division Bench of the High Court dismissed the RFAs only when an oral objection was taken which was mala fide in that such objection was neither taken by the respondent-K.A, Construction Co.,,at the time of service of the P' appeals on them nor even prior to the appellant furnishing bank guarantee No.K-951 of 1999, dated 28-6-1999 for Rs.13,852,053 representing the entire decretal amount in RFA No.2. It was also argued that the power of attorney in favour of the signatory on behalf of the petitioner-Corporation together with the Resolution in support thereof as also the copies of the Memorandum and Articles of Association, did constitute due and sufficient compliance with the requirement of law as held, by this Court in Messrs Muhammad Siddiq Muhammad Umar and another v. The Australasia Bank Ltd. (PLD 1966 SC 684). He also referred to Part XIV namely sections 450 to 460 of the Companies Ordinance (No.XLVII of) 1984, hereinafter referred to as the Ordinance, to contend that the same were not attracted/applicable in the case of petitioner-Corporation, which had not established any place of business in Pakistan and was executing an international contract awarded by Pakistan Water and Power Development Authority (WAPDA) pursuant to an invitation to tender. He also relied upon Khan Iftikhar Hussain Khan of Mamdot (represented by 6 heirs) v. Messrs Ghulam Nabi Corporation Ltd., Lahore (PLD 1959 SC (Pak.) 550) to contend that the effect of the documents on the record should have been determined after providing an opportunity to produce and prove the same, by way of additional evidence.
3. Leave to appeal is granted to consider the above questions raised on behalf .of the petitioner-Corporation and it is directed that Bank Guarantee No.K-951 of 1999, dated 26-6-1999 for Rs.13,88,563 issued by the Bank Al-Falah, Karachi for the due performance of the decree under appeal, shall be extended for another year i.e. up to 31-12-2000. M.B.A./C-2/S Leave granted.