2022 PLP 169 (CLD)

ABDULLAH BALOCH, J.

The instant Civil Suit filed under section 7 of Companies Ordinance, 1984, carries the following prayer: "It is accordingly respectfully prayed in view of submissions made herein above, may kindly pass order with the following effects as below: a. To declare that issued incorporation Certificate under section 42 of Companies Ordinance, 1984 dated 28.10.2013 through CUIN No.0085600 at Quetta (CRO) by titled name as "CHAMBER OF SMALL TRADERS AND SMALL INDUSTRIES QUETTA" shall be cancel (sic.) which is illegal and against law of Companies Ordinance 1984. b. To declare that cancellation of registration under section 7 of Trade Organization Act, 2013 to License No. 171 dated 16 May, 2013 which was support (sic.) by the political influential people. Which is illegal and unlawful. c. Any other relief as deemed fit and proper by this Hon'ble High Court in the circumstances of the case may kindly be awarded, in the interest of justice fairplay and equity."

2. Brief facts arising from the instant Civil Suit are that the petitioner is Deputy General Secretary, Markazi Anjuman-e-Tajiran, Balochistan, Muhammadi and Company, he applied to Companies Registration Office, Quetta for availability of the name i.e. QUETTA CHAMBER OF SMALL TRADERS AND SMALL INDUSTRIES: whereby the respondent No.2 after considering the name of availability reserved the above said name for 90 days, vide letter No.E-1702164-2-1562 dated 12th February 2013, but due to some reasons the application was extended again through letter dated 16th May 2013 and finally it was third time again extended with fee of Rs.500/-, vide letter dated 20th August 2013 and again reserved the available name for 90 days and the same was to be expired on 17th November 2013.

3. It is further averred in the petition that the respondent No.2 issued incorporation certificate under section 42 of Companies Ordinance, 1984 dated 28th October, 2013 through CUIN No.0085600 at Quetta (CRO) by titled name as "CHAMBER OF SMALL TRADERS AND SMALL INDUSTRIES QUETTA" to the respondent No.1 during the reserved period of 90 days, which was illegal and unlawful. Being aggrieved, the petitioner approached the respondent No.2 for issuance of illegal incorporation certificate to the respondent No.1, but the respondent No.2 failed to reply. Thereafter the respondent No.1 approached Trade Organization Office, Islamabad through unreliable sources of political Influential persons, who are trying to obtain the license of Chamber of Small Traders and Small Industries against the rules and regulations applicable in the matter of Trade Organization Act, 2013. The respondent ignored and crossed the provisions of the Trade Organization Act, 2013 and he has issued Trade Organization License No.171 dated 16th May 2013 by the counter signature of respondent No.3, which is illegal and unlawful. The petitioner filed a complaint against illegally issuance of Trade License No.171 dated 16th May 2013 in favour of respondent No.1 before the Director General, Trade Organization of Pakistan, Islamabad, but the Deputy Director of Trade Organization of Pakistan refused to redress the grievance of the petitioner, vide impugned letter dated 17th September 2013. Whereafter the petitioner filed the instant suit.

4. Heard the learned counsel for the parties and perused the record minutely, which reveals that the petitioner being Deputy General Secretary, Markazi Anjurnan-e-Tajiran, Balochistan Muhammadi and Company, Barma Hotel, Sariab Road, Quetta applied to Companies Registration, Security Exchange Commission of Pakistan Office, Quetta for availability of name i.e. QUETTA CHAMBER OF SMALL TRADERS AND SMALL INDUSTRIES on 11th February 2013 for considering the name of availability of the company in response to the application of petitioner the Assistant Registrar, SECEP (respondent No.2) issued letter No.E-1702164-2-1562 dated 12th February 2013; whereby reserved the above mentioned title/name for 90 days. Prior to expiry of said date the same was further extended by the respondent No.2 for another 90 days, vide letter dated 16th May 2013 and 20th August 2013 for another period of 90 days which was valid up to 19th November 2013, in all such letter it is categorically mentioned that after expiry period the respondent shall not take any responsibility, if the name does not retain available for registration. However, the record further reflects that during course of the pendency of application of petitioner before the respondent No.2 for grant of license of trade organization an application was filed by respondent No.1 to the respondent No.3 i.e. Regulator of Trade Organization of Pakistan on prescribed forum (schedule R 4(1) along with required documents and bank draft for Rs.30000/- dated 18th April 2013, on receiving the application of respondent No.1, advertisement was made on 25th and 30th April 2013 in two daily newspapers i.e. daily independent and the Daily Pakistan Islamabad; wherein it was categorically mentioned that the Chamber of Small Traders and Industries Quetta having its office in District Headquarter propose to register trade organization under the Trade Organizations Act, 2013 to represent the small traders and industries of District Quetta. Accordingly application was submitted to the Regulator Trade Organizations, Ministry of Commerce Islamabad. After fulfilling all codal formalities the respondent No.3 granted license No.171 to the respondent No.1 on 16th May 2013, which was valid for a period of five years from the date of issuance. Thereafter the respondent No.1 filed an application to the respondent No.2 for availability of the name along with required fee deposited in MCB Quetta dated 18th September 2013, the application was processed, vide letter dated 19th September 2013; whereby the said name was reserved for 90 days and thereafter the certificate of incorporation in the name and style of CHAMBER of SMALL TRADERS and SMALL INDUSTRIES QUETTA on 28th October 2013 was issued by respondent No.2 and in this regard the required fee was also deposited by the respondent No.1 pursuance whereof the Federation of Pakistan Chamber of Commerce and Industries issued certificate for registration to respondent No.1 on 20th November 2013.

5. The petitioner in its petition sought two types of reliefs, which are reproduced as under: a. To declare that issued incorporation Certificate under section 42 of Companies Ordinance, 1984 dated 28.10.2013 through CUIN No.0085600 at Quetta (CRO) by titled name as "CHAMBER OF SMALL TRADERS AND SMALL INDUSTRIES QUETTA" shall be cancel (sic.) which is illegal and against law of Companies Ordinance, 1984. b. To declare that cancellation of registration under section 7 of Trade Organization Act, 2013 to License No.171 dated 16 May, 2013 which was support (sic.) by the political influential people. Which is illegal and unlawful. To resolve these issues, it would be appropriate to dilate upon the relevant laws, as two different authorities/forums i.e. SECP and Trade Organizations of Pakistan issued two different certificates to the respondent No.1. As far as, the claim of petitioner is with regard to relief (a) i.e. issuance of incorporation certificate under section 42 of Companies Ordinance dated 28th October 2013 issued illegally to the respondent No.1 is concerned, for convenience the provisions of section 42 of Companies Ordinance, 1984 is reproduced as under: "

42. Power of dispense with "Limited" in the name of charitable and other companies,- (1) Where it is proved to the satisfaction of the Authority that an association capable of being formed as a limited company has been or is about to be formed for promoting commerce, and, science, religion, sports, social services, charity or any other useful objects, and applies or intends to apply its profits. If any, or other income in promoting its objects, and to prohibit the payment of any dividend to its members, the Authority may grant a license and direct that the association be registered as a company with limited liability, without the addition of the words "Limited", "(Private) Limited" or "(Guarantee) Limited", as the case may be, to its name and the association may be registered accordingly. (2) A license under subsection (1) may be granted on such conditions and subject to such regulations as the Authority thinks fit and those conditions and regulations shall be binding on the associations and shall, if the Authority so directs, be inserted in the memorandum and articles, or in one of those documents. (3) The associations shall on registration enjoy all the privileges of a limited company and be subject to all its obligations, except those of using the word or words "Limited", "(Private) Limited" or "(Guarantee) Limited", as the case may be, as part of its name. (4) A license under this section may at any time be revoked by the [commission] and upon its revocation the registrar shall enter the word or words "Limited", "(Private) Limited" or "(Guarantee) Limited", as the case may be, at the end of the name of the association upon the register, and the association shall cease to enjoy the exemptions and privileges granted by the preceding subsections: Provided that, before a license is so revoked, the [Commission] shall give to the association notice in writing of its intention, and shall afford the association an opportunity of submitting a representation in opposition to the revocation."

6. The petitioner has failed to point out any violation or contravention of the above quoted section being made by the respondents rather the petitioner mainly relied on the basis of violation of previous guidelines issued the by the SECP, which are covered under statutory provisions of section 37 of Companies Ordinance, even otherwise, under chapter-5 of the said guidelines relied upon by the petitioner, there is a remedy in case of an application for availability of proposed company name is refused by the concerned Registrar for any reason, the applicant feel aggrieved by his decision, the party should file a review of the said decision with the Registration Department for redressal of his grievance, for convenience Chapter 5 of guidelines is reproduced as under: "Chapter-5 Application against Refusal of a name If applications for the availability of a proposed company name is refused by the concerned registrar for any reason and the applicant feel aggrieved by his decision, he can file an application for review of the said decision with the Registration Department. The application for review must be supported by reasons for review of the decision and should be accompanied by the following documents". Deposited Bank Challan for application fee of rupees 500/- Copy of decision letter by concerned registrar. Affidavit."

7. While, confronted with the above provisions of guidelines to the learned counsel for petitioner, whether any review application was filed against the said decision with the Registration Department for redressal of his grievance, he has failed to show any review application filed under the Chapter-5 of guidelines. However, the record reflects that a simple application dated 13th November 2013 filed by the petitioner to the Assistant Registrar, SECP for issuance of copy of letter dated 20th August 2013 in Urdu version, which is reproduced as under: Thereafter what happened the record is silent, meaning thereby the petitioner has failed to adopt the proper procedure for redressal of his grievance. As far as 2nd relief of petitioner is concerned with regard to issuance of license to the respondent No.1 by the respondent No.3 (Trade Organization of Pakistan) in the Trade Organizations Act, 2013 is concerned this issue was concerned with respondent No.3 and in this regard the respondent No.3 filed its rejoinder along with annexures of all quoted documents; wherein submitted as under: "Denied. The fact of the matter is that Mr. Jumma Khan a trader from Quetta applied for grant of licence to Chamber of Small Traders and Small Industry, Quetta on 18-04-2013. The application was processed/scrutinized and upon fulfillment of the requirements of Schedule "A" of Trade Organizations Rules, 2013 (Annex-I) licence was finally issued on 16-05-2013 as Chamber of Small Traders and Small Industry. It is further submitted that after issuance of licence on 16-05-2013. The petitioner sent a letter dated 12-09-2013 to the Respondent No.3 with request to cancel the licence referred above on the pretext that as he was having availability of name hence, only he was entitled to apply and get the licence as Chamber of Small Traders and Small Industry, Quetta. The petitioner was informed vide this Office letter No.08(11)/2013-TO dated 24-12-2013 that licence to Chamber of Small Traders and Small Industry, Quetta was issued in accordance with the law and rules. The petitioner was further informed that neither in Trade Organizations Act, 2013 nor in availability of name from Securities and Exchange Commission of Pakistan is a pre-requisite for obtaining a licence of Trade Organizations (Annex -II").

8. Plain reading of above comments of respondent No.3 clearly indicates that petitioner was timely informed by the authority that the respondent No.1 duly applied for issuance of license under the provisions of Trade Organizations Act and Rules, 2013 on 18th April 2013, the application was properly processed, publication was made and after observing all codal formalities and deposit of requisite fee the license was duly issued to the respondent No.1 in accordance with law and rules: wherein neither in Trade Organizations Act, 2013 nor in Trade Organizations Rules, 2013 availability of name from Securities and Exchange Commission of Pakistan is a pre-requisite for obtaining license of trade organizations. Besides the Trade Organizations Act, 2013 provided a remedy to the aggrieved person for redressal of his grievance, but the record reflects that the petitioner has failed to avail 1st available remedy for redressal of his grievance in accordance with law. Thus, in view of the above, the petitioner has failed to make out a prima facie case for interference by this Court in accordance with law and the petition being devoid of merits is dismissed with no order as to cost. MH/162/Bal. Petition dismissed.