JAWAD HASSAN, J.--- The Petitioner/Al-Arabia Sugar Mills Ltd (the "Company ") approached the Respondents for registration of the charge of any other financial institution and security documents under sections 100, 105 and 448 of the Companies Act, 2017 (the "Act") read with Regulations 4 and 18 of the Companies (General Provisions and Forms) Regulations, 2018 (the "Regulations ") but the Respondent No.2/Assistant Registrar , Company Registration Officer, SECP , Lahore, vide e-mail dated 26.09.2019, informed the Petitioner-Company that its request has been placed on hold because some information is required from the National Accountability Bureau under sections 19/23 of the National Accountability Bureau Ordinance, 1999 (the "NAB Ordinance "). That due to the inaction on part of the Respondents, the Petitioner is unable to obtain finance from Bank Alfalah Limited before the start of crushing season.
2. On 30.10.2019, learned Legal Advisor for the Respondent/ Securities and Exchange Commission of Pakistan (the "SECP ") objected qua the maintainability of this Petition on the ground that the National Accountability Bureau
(NAB) issued letter dated 17.07.2019, under section 23 the NAB Ordinance, whereby the SECP has been directed to mark caution on the transfer of properties and shareholdings of the Petitioner/Co mpany . Mr. Arshad Qayyum, Special Prosecutor , NAB with Aamir Javed, Assistant Director , NAB affirmed that the NAB intimated the SECP on 17.07.2019 to mark caution on the transfer of properties and shareholdings of the Petitioner/Company , therefore, the SECP was unable to register the charge of any financial institution. He also informed that the Petitioner/Company itself has requested to the NAB authorities to issue NOC.
3. This Court after hearing the preliminary arguments of learned counsel for the Parties at length, on 30.10.2019, framed the following Constitutional moot points:
1. Whether Criminal Proceedings or inquiry against the Directors/Shareholders of the Company can put any embargo upon the rights of the Shareholders?
2. Whether after issuance of caution by NAB authorities under section 23 of the NAB Ordinance availing financing facility for , working capital by way of charge upon the properties of company amou nts to transfer of shareholdings of company?
3. What amounts to a caution marked on the transfer of shares, if the Assets are charged to the 3rd party Bank?
Will it contravene the section 23 of the NAB Ordinance?
4. Whether during inquiry against the Directors of the Company , its affairs can be interfered by the NAB Authorities under the garb of section 23 of the NAB Ordinance.
5. Whether provisions of section 41-b of the SECP Act, has overriding effect over all other laws including the NAB Ordinance?
6. Whether this writ Petition is maintainable when there is no written order by the SECP and the Petitioner has the remedy before the SECP?
7. Whether this writ Petition is hit by doctrine of election as the Petitioner has already availed the remedy by filing representation before the NAB authorities for issuance of NOC.
8. Whether this Court can refer the matter to the Statutory Authorities as they already given their mind or the Court can exercise its powers in the interest of justice?
4. Today , Mr. Arshad Qayyum, Special Prosecutor , NAB with Aamir Javed, Assistant Director , NAB produced photocopy of letter No.1(61)HQ/974/IW -II/NAB-L, dated 07.11.2019 issued by the NAB, Lahore to the Chairman, SECP , Islamabad, which is taken on record as "Annex-F" . Copy of this letter was handed over to learned counsel for the Petitioner .
5. Learned counsel for the Petitioner-Company after pursing the aforesaid letter stated that the Petitioner-Company would be satisfied and have no objection if this Petition is disposed of with the direction to the Respondent No.2/Assistant Registrar , Companies Registration Office, SECP , Lahore for registration of the charge of any other financial institution and security documents under Sections 100, 105 and 448 of the Act read with Regulations 4 and 18 of the Regulations and in the light of Paragraph No.3 of the aforesaid letter .
6. In view of above, with the concurrence of learned counsel for the Parties, by issuing the writ of mandamus under Article 199(1)(a)(i) of the Constitution, the Respondent No.2/Assistant Registrar , Companies Registration Office, SECP , Lahore is directed to do what he is required by law to do and register the charge of any other financial institution and security documents of the Petitioner-Company under sections 100, 105 and 448 of the Act read with Regulations 4 and 18 of the Regulations, in the light of Paragraph No. 3 of letter No.1(61)HQ/ B 974/1W - II/NAB-L, dated 07.1 1.2019, which reads as follows: "3. In this regard, it is intimated that Competent Authority has allowed the creation/registration of Charge in the matter as mentioned in SECP is referred letter and its enclosures dated 11.10.2019. Furthermore, it is also advised that permission may be sought from this Bureau for such future transaction(s) i-e registration / modification / vacation of mortgage/charge documents of Messrs Al-Arabia Sugar Mills Limited."
7. Disposed of accordingly . The Respondent No.2/Assistant Registrar , Companies Registration Office, SECP , Lahore shall conclude the matter within one (01) week after receipt of certified' copy of this order beca use crushing season of sugarcane has already been started from 04.1 1.2019.