2007 PLP 1234 (CLD)

NASIM SIKANDAR, J.

The petitioner Messrs Combined Ginners (Pvt.) Limited was incorporated as a Private Limited Company at Lahore on 14-2-1991. The memorandum of association inter alia, contemplated establishment of a ginning factory and running other ginning business. In furtherance thereof the company purchased an area measuring 65-Kanals and 10-Marlas in Chak 417-EB, Tehsil Burewala, District Vehari through a sale deed dated 9-3-1991. The registered sale deed was subsequently reflected in the revenue record. It is stated that for certain reasons the construction of factory was delayed though the company had regularly been filling Form-A and Form-29 with the respondent/Local Registration Office of the Securities and Exchange Commission of Pakistan. It is alleged that during the months of August and September 2006 the company applied for copies of the aforesaid forms whereupon it transpired that the name of the company had been struck off the Register of Companies under section 439 of the Companies Ordinance, 1984 (for short the Ordinance) vide official gazette published on 8-2-2006.

2. Through this application under section 439(6) of the Ordinance the petitioner seeks restoration of its name on the Company Register.

3. The respondent/Registrar, Securities and Exchange Commission of Pakistan, Lahore in its reply has not controverted the factual submissions made in the petition. However, it is stated that. since the petitioner company had failed to submit statutory returns as required under the Ordinance since the date of incorporation its name was struck off the Register after complying with the provisions of sub-sections (1, 2, 3 and 5) of 'section 439 of the Ordinance. According to the respondent, the Gazette notification dated 8-2-2006 having already been issued the company stands struck off the Register. It is also stated that it was only on 10-8-2006 that the petitioner company for the first time submitted the statutory returns for the years 1991 to 2005. The submission qua lack of statutory notices is also denied. Lastly however, it is stated that this court may consider the request for restoration in accordance with the said provisions of, the Ordinance.

4. Heard the learned counsel for the petitioner. Leaving aside the factual submissions as regards lack of service of statutory notices I will readily agree with him that the bar contained in subsection (8) of section 439 of the Ordinance was attracted in the case in hand. Subsection (8) provides that "The provisions of this section shall not apply to a company which has any known assets and liabilities, and such company shall be proceeded against for winding up". The copy of the aforesaid sale deed dated 9-3-1991 unequivocally supports the claim of the petitioner company that since the date of its incorporation it held the aforesaid piece of land as a known asset. Therefore, in view of the provisions of subsection (8) of section 439 the Registrar could not held the company as a defunct company and struck off its name from the "Register of Companies". Instead, only a winding up petition could be filed against the company if any one or more circumstances including the failure of the company to file statutory reports as contemplated in section 305 of the Ordinance were answered.

5. As observed earlier, the company being in possession of known assets in the form of said immovable property the said provisions of section 439 enabling the Registrar to struck off the name of the company from the Register were not applicable. In the presence and availability of substantial immovable assets it is otherwise just and proper that the name of the company be restored to the Register.

6. Therefore, this application is allowed. The name of the petitioner company shall immediately stand restored to the Company Register with all incidental and consequential implications and results. M.B.A./C-18/L Application allowed.