1. NADEEM AZHAR SIDDIQI, J.- The petitioner has filed this petition Under Section 439(6) of the Companies Ordinance 1984 for restoration of company which was struck off by the Registrar of Companies.
2. The learned counsel for the petitioner mainly submits that the name of the petitioner-company was struck off from the Registrar without service of statutory notices and without hearing the petitioner.
3. The Additional Registrar of companies has filed his comments, In his comments the Addl. Registrar states that the company was not filing the statutory returns since 1988 for which demand notices were issued U/s. 439 and the notice U/s. 439(5) was issued on 23.5.2006 and the same was published in official Gazette on 3.1.2007. He further submits that the company filed the statutory returns on 30.11.2006, after issuance of final notice.
4. To resolve the controversy regarding the issuance of notice, vide order dated 21.8.2007 Deputy Registrar was directed to appear in person alongwith the record, due to his absence show-cause notice was ordered on 18.9.2007. Today Mr. Shaukat Ali Zai, Assistant Registrar SECP, is present and tendered unconditional apology and submits that Additional Registrar was busy in official assignment and, therefore, could not attend the Court. The apology is accepted and the notice is discharged.
5. In compliance of the order dated 18.9.2007, the officer has produced the record of M/s. Zahooria Builder Private Limited. As per the record produced by the officer notice Under Section 439(1) of the Companies Ordinance was issued on 30.5.2001 and the notice under Section 439(2) was issued on 27.7.2001 and notice under Section 439(3) was issued on 21.11.2001 for the purpose of publication, the copies of the notices are placed on record but no postal receipt or courier receipt is available and it is' not known whether these notices were issued/posted or not. The copy of notice U/s. 439(5) dated 23.5.2006 is also not available on record that it is not known whether the same was in fact served upon the petitioner or not. The officer states that normally the postal receipts or courier receipts are placed in other file and not along with these letters. These are the statutory notices and the postal receipts or courier receipts have to be preserved along with the copies of notices.
6. The explanation given by the officer can not be accepted in presence of specific plea that no notice was served.
7. The learned counsel for the petitioner submits that the petitioner has not received any notice as claimed by the officer and before issuance of the final notice Under Section 439(5) of the Companies Ordinance the petitioner was not heard. He further submits that the required statutory returns were filed on 30.11.2006 which fact was not disputed by the officer present in Court.
8. I have heard the learned counsel for the petitioner and the officer present in Court.
9. Section 439 of Companies Ordinance 1984 provides that the Registrar will serve statutory notices upon the company through post. The officer fails to produce the postal receipts and in absence of postal receipts it can not be said that statutory notices have been served upon the petitioner, without service of statutory notices upon the petitioner the order for striking of the name of the petitioner is bad in law and cannot be sustained, It is now well-settled law that no adverse action can be taken without affording proper opportunity of hearing. This case is not based on right of given by statute. The petitioner further claims that all the returns have been filed and the company is properly functioning. Section 439(6) of the Companies Ordinance provides that the Court on the application of the company or the creditor made before expiry of three: years from the publication in the official Gazette, if satisfied that the company was at the time of striking off carrying a business or in operation or otherwise it is just that the company be restored to the registrars order the name of the company to be restored to the register.
10. I am satisfied that name of company was struck off without service of statutory notice upon the company and that the petitioner has been filed within three years from the date of publication of notice in the official gazette and it is just to restore the company to the Registrars.
11. In view of the above this petition is allowed. The name of the Company is restored to the register subject to filing of a! Pending returns within four weeks from today.
12. The parties are left to bear this own costs.