1989 PLP 4288 (MLD)

The case of the petitioner as set out in the petition is that on coming to know through press and otherwise that the firm was suspected of doing banking business illegally in contravention of section 27 (1) of the Ordinance, directive No. BID. (INSP)/579/004-A-87 dated 6-4-1987 under section 43-A of the Ordinance was served upon the firm. The firm's registered office was inspected by the officers of the petitioner and copies of certain documents were taken into custody by the officers of the petitioner. These documents, inter alia, consist of photostat copies of agreements entered into between the firm and the partners (depositors) evidencing acceptance of deposits and photostat copy of lists of investors evidencing acceptance of investment deposits to the tune of Rs.7,05,000 30-6-1987 and refund of investment of Rs.10,000 to one Masood Akhtar Javed, balance sheet as on 30-6-1987 evidencing an investment of Rs.5,50,000 in Tiger Group of Industries, profit and loss account as on 30th June 1987 indicating, inter alia, share of profit on the investment made with Tiger Group of Industries, copy of agreement dated 4-1-1987 entered into between the firm and Tiger Group of Industries for financing the business of the latter. It is the case of the petitioner that since the aforesaid documents prima facie called for action under section 43-B (1) of the Ordinance, a show-cause notice dated 28-5-1988 along with the annexures was sent to the firm at its registered office through pre-paid registered post with acknowledgement due as required by law. The copy of show-cause notice is annexed to the petition as Annexure `D'. By notice the firm was notified that .the petitioner was prima facie of the opinion that it was doing banking business in contravention of section 27 (1 of the Ordinance and the petitioner proposed to make a declaration to the effect under section 43-B (1) of the Ordnance and that before doing so, the firm was given an opportunity of showing cause against the proposed declaration within seven days from the date of receipt of the notice. failing which an ex parte decision would be made. It is stated in the petition that nether the said notice was returned undelivered nor the postal acknowledgement was received. The firm sent its reply vide its letter dated 1-6-1988 wherein it contented that the firm is not hit by the provisions of the Ordinance and it is not indulging in illegal business which contravenes Section 27 (1) of the Ordinance nor it is doing any illegal banking business. It is the case of the petitioner that apart from the above, it did not aver anything in its defence with regard to the documents annexed to the show-cause notice evidencing lending/investment of funds collected by it from public. It is the further case of the petitioner that the firm hay not brought on record any documentary evidence to contradict the variety of the documents relied upon by the petitioner. The cop of the reply is annexed to the petition as Annexure `G', The case of the petitioner is that as the reply of the firm to the show- cause notice was not satisfactory and it could not and did not controvert the evidence of acceptance of deposits from the public, the withdrawal of investment. the investment/lending of such deposits to enterprises other than its own, the petitioner Bank was/is of the opinion that the firm was/is transacting banking business in contravention of section 27 (1) of the Ordinance and therefore petitioner made a declaration to that effect on 13-7-1988 under section 43-B (1) of the Ordinance and got it published in the Daily `Dawn' dated 19-7-1988 as required under section 43-B (2) of the Ordinance. The copy of the declaration and the publication of the declaration in the Daily newspaper `Dawn' dated 19-7-1988 are annexed to the petition as Annexures `I' and `J'. The consequence of which according to section 43-C of the Ordinance is that the firm ceased to function or to transact business and any transaction with the firm or with any person acting or purporting to act for and on behalf of the firm on or after the publication of the said declaration shall be void. I would turn to section 43-F. It reads as follows:- "43 F. Consequential provisions for winding up _etc, (I) Where the declaration made under subsection (1) of section 43-B is in respect of a person other than an industrial or a company, such person shall irrespective of the number of members of which it consists, be deemed to he an unregistered company which may be wound up under Part IX of the Companies Act 1913 (VII of 1913). (2) Where the person m respect of which a declaration has been `made under subsection (1) of section 43-B is a company or an unregistered company, the High Court shall, upon an application made by Bank within seven days of the publication of the declaration in pursuance y of sub-section (2) of section 43 B, or within such further time as the Federal Government may allow, make an order for the winding up of the Company or the unregistered company. (3) The provisions of Part III other than those of sections 45 to 49 and 59, and Part IV shall, insofar as they relate to winding up of a banking company, apply to an application made under sub-section (2) and to the winding up proceedings following such application. (4) Notwithstanding anything contained- in the Provincial Insolvency Act, 1920 (V of 1920), and the Insolvency (Karachi Division) Act (III of 1909); made under sub-section (l) of section 43-B- in respect of an individual shall' constitute: an' effective,' ground'' for adjudging the individual ail insolvent and the Court competent to adjudge him as insolvent shall, upon an application made by the State Bank within seven days of the publication of the declaration in pursuance of sub-section (2) of section 43-B, or such further time as the Federal Government may allow, pass an order of adjudication against such individual without further proof and follow thereafter the provisions of the Provincial Insolvency Act, 19213. (V of 1920) or, as the case may be, the Insolvency (Karachi Division; Act (III o1909), for the administration and distribution of the property of the insolvent: Provided that the Court shall not have the power .to subsequently annul the adjudication or accept any composition or scheme or arrangement." Section 91-A of the above Ordinance provides that the provisions of Part II A of the Ordinance shall have effect notwithstanding any other -law, contract, agreement. Award etc. Accordingly, the petitioner presented the above petition on 21-7-1988,1 i.e. within seven days of the publication of the aforesaid declaration for the compulsory winding up of the firm as an unregistered company. In the instant case, the petitioner after complying with all the requirements of the Ordinance issued declaration to the effect that the firm in question has contravened the provisions of section 27 (1) of the Ordinance. Such a declaration was duly published in terms of sub-section (2) of section 43-B of the Ordinance in the issue dated 19-7-1988 in Daily `Dawn' Karachi. In the present case the declaration was duly published on 19-7-1988 and the petition was presented as stated earlier hereinabove on 21-7-1988. The case has not been contested by the firm and order winding up of Aim International as an unregistered company. I appoint Mr. S. Asad Ali Bilgrami, Advocate as official liquidator. The costs of the petition hall be paid out of the assets of the, unregistered company. M.A.K./A-552/K Compulsory winding up, ordered.