' NISAR HUSSAIN KHAN, J.---Instant Company Petition has been filed under Sections 160-A and 179 of the Companies Ordinance, 1984, for declaring the proceedings of extraordinary general meeting of Kohat Cement Company Ltd. Held on 27th June, 2016 as invalid and consequently declare the elections of the Board of Directors of respondent No,1 as illegal, unlawful and void. Petitioners have also filed C.M. No,12-P/2016 along with main petition, seeking interim relief of suspension of decision and actions taken by illegally elected Board of Directors, pursuant to illegally convened extraordinary meeting of respondent No,1 held on 27.6.2016, also suspending the illegally elected Director Muhammad Atta Tanseer, restraining the Board of Directors from taking any decision, steps and actions without permission of the court and as a consequence thereof, directing the SECP, to appoint Inspector to look after the affairs of the Company instead of illegally appointed Board of Directors.
2. The case was posted for 5th August, 2016 when counsel for respondent No,1 put up his appearance and accepted notice when the case was adjourned by issuing notice to rest of other respondents. On 7.10.2016 arguments on C.M. No,12-P/2016 for grant of interim relief were heard when learned counsel for respondent No,1 raised a preliminary objection on maintainability of the instant petition in the light of section 179 of the Companies Ordinance, 1984.
3. Learned counsel for petitioners vehemently argued that petitioner No,1 is largest share holder of the Company which factum is undisputed. He maintained that earlier stay order was issued by the Company Judge in C.C. No,5/2012 pending disposal between the same parties which was later on confirmed to the extent of prayers-H & I. He contended that before election, respondents filed suit before the Civil Judge, Lahore, in which petitioners were debarred from participating in the election process, casting votes and contesting the elections, through temporary injunctive order, which though was later vacated on 15.7.2016 but the election of the Board of Directors of the Company, by then, was already held and concluded on 27.6.2016. He maintained that petitioners were restrained by the respondents by obtaining a stay order from the civil court in a frivolous suit, hence in terms of Section 160-A of the Companies Ordinance, 1984, proceedings of general meeting, wherein election of Board of Directors was held, be declared as invalid and respondents be restrained from acting as Directors during the pendency of petition and the SECP be directed to appoint Inspector to look after the affairs of the Company, instead of illegally appointed Board of Directors.
4. Conversely, learned counsel for respondent No,1 vehemently opposed the submissions of learned counsel for petitioners and contended that instant petition, by virtue of section 179 of the Companies Ordinance, 1984, is not maintainable because petitioners do not hold 20% voting power in the company which is basic requirement of section 179 of the Companies Ordinance, 1984, for declaration of election of Directors invalid on account of any material irregularity in holding of the elections. He maintained that section 160-A of the Companies Ordinance, 1984 would not be applicable to the instant case which relates to General Meeting while Special provision of section 179 of the Companies Ordinance, 1984 has been enacted for the purpose, instant petition has been filed. Hence instant petition is liable to be dismissed.
5. I have gone through the record and the law applicable thereto in the light of arguments addressed at the bar.
6. Main controversy between the parties relates to extraordinary general meeting of 27th June, 2016 of members/share holders of the company, wherein elections of the Board of Directors were held.
Petitioners challenged the said meeting because Petitioner No,1 intended to contest the election of Director of the Company, for which notices were issued to the members as well as published in the Daily Business Recorder Lahore and Daily Nawa-e-Waqt Lahore, dated 17.6.2016. Names of petitioners Nos.1 and 3 are also appearing in the publication notices in both the papers amongst others, who intended to contest the elections of Board of Directors. It appears from the record that petitioners had issued notices of intention for contesting the election in terms of section 178(3) of the Companies Ordinance, 1984. Elections were held on the scheduled date and petitioner No,1 could not participate nor elected as Director which according to her, was because of stay order issued by the Civil Court at Lahore, in a suit which was later on dismissed. Main emphasis of the learned counsel for petitioners was the suit which according to him, was maliciously filed by the respondents to restrain her from election process and thereby deprived her from her valuable rights.
7. Before considering this aspect of the case, it would be appropriate to address preliminary objection raised by respondent No,1 as to the maintainability of the instant petition.
8. Learned counsel for petitioners laid emphasis on Section 160-A of the Companies Ordinance, 1984 and contended that the meeting be declared as invalid and consequential election of the Directors be declared as null and void. It would be apt to reproduce the ibid section which runs as follows:- "160-A. Circumstances in which proceedings of a General Meeting may be declared invalid. The Court may, on a petition, by members having not less than ten per cent of the voting power in the company, that the proceedings of a general meeting be declared invalid by reason of a material defect or omission in the notice or irregularity in the proceedings of the meeting, which prevented members from using effectively their rights, declare such proceedings or part thereof invalid and direct holding of a fresh general meeting.
' Provided that the petition shall be made within thirty days of the impugned meeting."
9. Pursuant to the provision of the ibid section, proceeding of general meeting of the Company may be declared invalid on petition of a member holding not less than 10% voting power, on account of material defect or omission in the notice or irregularity in the proceedings of the meeting provided petition is made within 30 days of the impugned meeting. This section relates to any general meeting in which any irregularity, defect or omission has been found. On the other hand, section 179 of the Companies Ordinance, 1984 specifically relates to declaration of election of Directors as invalid which, for purpose of clarity is reproduced as follows:- "179. Circumstances in which election of directors may be declared invalid. - The Court may, on the application of members holding not less than twenty percent of the voting power in the company, made within thirty days of the date of election, declare election of all directors or any one or more of them invalid if it is satisfied that there has been material irregularity in the holding of the elections and matters incidental or relating thereto."
10. The above section manifestly suggests that it has specially been enacted to cater a special circumstance relating to election of Directors which may be declared as invalid if any material irregularity in the holding of election and matters incidental or relating thereto have been found on the face of it, provided the petition has been filed by a member holding not less than 20% voting power in the Company. Respondent No,1 specifically alleged in the reply that petitioners do not hold 20% voting power which factum has been conceded by the learned counsel for petitioners at the bar by stating that they are holding 16.74% voting power. Section 160-A of the Ordinance relates to general meeting in which rest of the matters of the Company are transacted. While for declaration of elections of Directors as invalid, special provision has been enacted, for taking aid of which, one has to fulfill the pre-condition embodied in it. The invocation of court power for declaration of electio n of Directors as invalid, one has to qualify the threshold of 20% voting power, which is a sine qua non. When a special provision has been enacted by the Legislature to cater a particular purpose, general provision has to make way, and special provision would prevail and accordingly applied.
11. It is fundamental rule of construction of statute and it's any provision, that every word employed is of significance, and is required to be given due effect. While interpreting a provision of law, it is to be read in totality, in conjunction with its conditionality's. If there is any condition referred in the provision, it cannot be ignored nor can be torn out of context. When provision is plain and simple and tenor of language is couched in clear words, not susceptible to any two interpretation, it cannot be made subject matter of labor of misconceived interpretation.
12. In Golden Graphics (Pvt.) Ltd. And 12 others v. Director of Vigilance, Central Excise, Customs and Sales Tax and others (1993 SCM R 1635), the question for determination was that whether general provision impliedly exempting the diaries from levy of tax vis-a-vis special provision may be considered for exemption. The honorable Supreme Court resolved that in view of settled rule of Construction of legal instruments that when a special provision has been enacted for a particular subject and there is also general provision relating to the same subject matter, presumption would be that the general provision is not intended to interfere with the operation of the special provision and the case has to be dealt with under the latter one.
13. Similarly, in the case of Federal Bank for Cooperatives, Islamabad v. Ehsan Muhammad (2004 SCM R 130), the august Supreme Court while examining Regulation No,9 for the purpose of Pensioner Benefits to employees, on retirement by opting Golden Shake Hand, observed that it is basic and fundamental principle of interpretation of Statute that where a situation is specifically dealt with by a provision of law, then any general provision relating to the same subject would not be attracted in cases specially catered for. Likewise, in the case titled The State v. Zia ur Rehman (PLD 1973 Supreme Court 49), the august Supreme Court on the basis of maxim: "generally specialists non derogate", reiterated the same principle that it is well established rule of interpretation that where in a statute, there are both general as well as special provision, for meeting a particular situation, then it is the special provision to tackle with the subject case, instead of general provision. In J.K. Cotton Spinning and Weaving Mills Co. Ltd v. State of Uttar Pradesh and others (AIR 1961 Supreme Court 1170), the Indian Supreme Court dealing with similar situation of interpretation of two clauses, followed the same rule by holding that well known rule of Construction of Statute is that general provision yield to special provision and accordingly resolved the controversy of application of two clauses, general and special, in relation to Industrial dispute between employer and the workmen.
14. In the light of general rule of construction of the Statute, elaborately discussed and reiterated in the above referred judgments of Pakistan and Indian jurisdiction, it can safely be concluded that section 179 of the Companies Ordinance, 1984 would apply to the issue in hand with full vigor and force, being special provision and section 160-A of the Ordinance would be inapplicable being general in nature. It is an admitted fact that petitioners do not hold the required 20% voting power in the Company, which is a sine qua non for invoking the provision of section 179 of the Companies Ordinance, 1984. Hence in view of this legal position, the elections of the Directors cannot be declared invalid because of petitioners' own deficiency. So interim relief asked for cannot be allowed.
15. Next question would be that whether court should proceed with the main petition. When prayers of the main petition in C.C. No,3-P/2016 and C.M. No,12-P/2016 are juxtaposed, it explicitly manifests that relief asked for, in both is identical and the same, because primary prayer of declaring the election of Directors as invalid is based on section 160-A of the Companies Ordinance, 1984, which is inapplicable in the case in hand, as observed herein above. When such is the position, it would be a futile exercise to keep the main petition pending, wherein no such order can be passed for lack of petitioner's 20% voting strength and ultimate fate of petition would be the same.
16. Procedure for the court has been supplied in Section 9 of the Companies Ordinance, 1984 which for convenience is reproduced as follows:- "9. Procedure of the Court.---(1) Notwithstanding anything contained in any other law, all matters coming before the Court under this Ordinance shall be disposed of, and the judgment pronounced, as expeditiously as possible but not later than ninety days from the date of presentation of the petition or application to the Court and, except in extraordinary circumstances and on grounds to be recorded, the Court shall hear the case from day-to-day.
' Explanation: In this subsection, "judgment" means a final judgment recorded in writing.
(2) The hearing of the matters referred to in subsection (1) shall not be adjourned except for sufficient cause to be recorded, or for more than fourteen days at any one time or for more than thirty days in all.
(3) In the exercise of its jurisdiction as aforesaid, the Court shall, in all matters before it, follow the summary procedure."
17. The section in unequivocal terms provides that the court while deciding the matter before it, as expeditiously as possible, would follow the summary procedure. It manifests that procedure under the Code of Civil Procedure i,e, framing of issues and recording of evidence is not to be followed.
Rather court is to decide the case in the light of available record.
18. Thus in view of above, instant petition along with C.M., both being not maintainable in terms of section 179 of the Companies Ordinance, 1984, stand dismissed.