This matter before us arises from an appeal filed by the counsels mentioned above on behalf of the Appellants against the order dated July 31, 2001 (the "Impugned Order") passed by the Executive Director (Enforcement & Monitoring). The memo of appeal does not mention the relevant section or the law under which the appeal has been preferred, however the counsels clarified that it has been filed under section 33 of the Securities & Exchange Commission of Pakistan Act, 1997 ('Act'). The Appellants have also filed an application for condonation of delay.
1. The brief facts of the case are that Prudential Investment Bank Limited ('Company') failed to file its half yearly accounts for the period ended December 31, 2000 within the time prescribed in section 245 of the Companies Ordinance, 1984. A notice dated May 30, 2001 ('Show Cause Notice') was issued by the Commission to the Chief Executive Officer and directors of the Company to show cause as to why penalty as provided under Sub-section (3) of Section 245 of the Ordinance may not be imposed on them. No response to the show cause notice was received from the Chief Executive or the Directors, however the Company filed the half yearly accounts on June 18, 2001 with a delay of 111 days.
2. A date of hearing in the matter was fixed on 02 July 2001 in order to provide an opportunity of personal hearing to the Chief Executive and the Directors of the Company. However, no one appeared before the Executive Director (Enforcement & Monitoring) on the day fixed for hearing in the matter. The Executive Director consequently imposed a penalty of Rs.50,000 /- (Rupees Fifty thousand) on each of the directors including the Chief Executive under sub-section (3) of section 245 read with section 476 of the Ordinance vide the Impugned Order.
3. The present appeal has been filed on behalf of the Appellants mentioned above with a delay of nearly 21 months. The appeal came up for hearing before the Appellate Bench on July 23, 2003 when the counsels mentioned above appeared on behalf of the Appellants. At the outset of the hearing, the Bench asked the counsels to present their arguments on the application for condonation of delay. Mr. Khokhar stated that the reason for not filing the appeal within the 30-day period prescribed under section 33 of the SECP Act was that the Appellants were not aware of the Impugned Order. He stated that the Appellants only found out when the recovery proceeding were initiated by the Revenue department. He contended that the Show Cause Notice, the hearing notice dated June 26, 2001 ('Hearing Notice') and the Impugned Order were all sent to the old address of the Company. He stated that these should have either been sent to the residential addresses of the Appellants or the Company's new address.
4. Mr. Mubasher Saeed, Joint Director appearing on behalf of the Executive Director (Enforcement & Monitoring) contended that the Show Cause Notice, the Hearing Notice and the Impugned Order were all sent to the registered address of the Company. He stated that the Company had intimated the change of its registered address vide letter dated January 03, 2002, which was 5 months after passing of the Impugned Order. He further contended that vide letter dated August 15, 2001 the Company had acknowledged and replied to a letter dated August 08, 2001 sent by the Commission to the same registered address. He argued that in light of these facts, it was wrong for the Appellants to contend that the address of the Company had been changed and they had not received the notices and the Impugned Order. Mr. Mubasher presented copies of these letters to the Appellate Bench.
5. We have heard the parties and examined the documents on record and are unable to agree with the contention of the Appellants that the notices as well as the Impugned Order was not properly served. The Appellants have themselves stated in their application for condonation of delay that the notices and the Impugned Order should have been sent to the registered address of the Company if not to the private addresses of the Appellants. The intimation regarding the change of registered address of the Company was sent by the Company on January 03, 2002, which was 5 months after passing of the Impugned Order. It is therefore not right for the Appellants to argue that the Commission should have sent the notices and the Impugned Order to the new address. Moreover, even the letter dated January 03, 2002 intimating the change of address shows the old address as the registered address on the letterhead. The letter dated August 15, 2001 written by the Company in response to the letter dated August 08, 2001 also shows the old address as the registered address on the letterhead. Moreover the Company was receiving and responding to the letters sent to its old address subsequent to the Show Cause Notice, the Hearing Notice and the Impugned Order. If there had indeed been a change of address prior to July 2001 and the letters were being sent by the Commission to the wrong address, then it is only reasonable to expect the Company to raise this issue in the letters written in August 2001. It is therefore wrong for the Appellants to argue that the said notices and the Impugned Order were not received because they were sent to the old address of the Company. We are hence unable to accept the contention of the Appellants that the delay in filing the appeal was because the notices and the Impugned Order had not been properly served.
6. In any case, notwithstanding the above, the Appellants have accepted in their application for condonation of delay in Para 3 that they had come to know of the Impugned Order on October 23, 2002 whereas they filed the present appeal on May 26, 2003. The Appellants have not given any reason or justification for this delay of 7 months in filing the appeal.
In light of the aforesaid, the request of the Appellant for condonation of delay in filing the appeal is hereby rejected. The present appeal is dismissed without going into the merits as being barred by limitation.
Date of Impugned Order July 31, 2001 Date of Appeal May- 26-2003