C.M. No. 8 of 2019 JAWAD HASSAN, J.---Pursuant to the order dated 26.11.2019, the Petitioner-Company wants to place on record the undertaking through Nadeem Qader , Company Secretary Pakistan Gas Port Limited that the Petitioner Company unconditionally guarantees and undertakes that the shares of Hussain Lawai shall not be.- transferred/alienated to any third party without prior approval of NAB. Allowed . The Board Resolution of the Company dated 28.1 1.2019 and the Undertaking (in original) are taken on record as Mark-A and B.
Main Case
2. The Petitioner-PGP Consortium Limited (the "Company") has filed this writ Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution") with the averments that Petitioner is a "Company" established under the Companies Ordinance, 1984 (the "Ordinance") now the Companies Act, 2017 (the "Act"), who approached the Respondent No 1/Securities and Exchange Commission of Pakistan, functions under the Securities and Exchange Commission of Pakistan Act, 1997 (the "SECP Act"), for registration of charge on their assets, for which they have also electronically filled Form-10, under sections 100, 105 and 448 of the Act read with Regulations 4 and 18 of the Companies (General Provisions and Forms) Regulations, 2018 (the "Regulations"): The Respondent No. 2, vide e-mail dated 24.07.2019, informed the Petitioner Company that its request has been placed on hold due to caution marked by the National Accountability-Bureau (NAB) under sections 19/23 of the National Accountability Bureau Ordinance, 1999 (the "NAB Ordinance"). Further maintained that there is no proceeding pending against the Petitioner-Company with the NAB authorities and the Respondents are deliberately delaying the matter in violation of section 41(b)(sic.) of the SECP Act, and due to the inaction on part of the Respondents, the Petitioner-Company is unable to obtain finance from Bank(s).
3. The Respondents/Securities and Exchange Commission of Pakistan (the "SECP") by filing the report and parawise comments objected qua the maintainability of this Petition on the ground that the National Accountability Bureau (NAB) issued letter dated 11.07.2019, under section 23 the NAB Ordinance, whereby the SECP has been directed to mark caution on the transfer of properties and shareholdings of certain persons including Hussain Lawai. They add that the Hussain Lawai is only shareholder of 1.5 million ordinary shares (0.367%) of total shareholding of the Petitioner-Company and he is not even on the Board of the Company .
4. Mr. Muhammad Wasiq Malik, Senior Prosecutor , NAB with Malik Uzair Rehan, Assistant Director , NAB, affirmed that the SECP has been directed by NAB vide letter dated 11.07.2019 to mark caution on the transfer of properties and shareholdings of certain persons including Hussain Lawai (accused before the NAB). It is stated in the report that as per record forwarded by the SECP , the direct shareholding of Hussain Lawai is 1.5 million shares (0.367%) in Messrs Pakistan Gas Port Limited, therefore, the SECP is unable to register the charge of any financial institution.
5. After hearing the preliminary arguments of learned counsel for the Parties at length, the following Constitutional moot points were framed on 1 1.11.2019:
1. Whether Criminal Proceedings or inquiry against the 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 charg e upon the properties of Company amounts 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 shareholders 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 6y 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?
6. On 26.11.2019, learned counsel for the NAB filed report by raising certain preliminary objections to the maintainability of this Petition including jurisdiction of this Court. However states that the NAB has only reservation regarding the alienation of shares of Hussain Lawai. Learned counsel for the Petitioner sought some time to submit undertaking regarding non-transfer of the shares of Russian Lawai.
7. Today learned counsel for the Petitioner by filing the Application (C.M. No.08 of 2019) placed on record certain documents including the Board Resolution of the Company dated 28.11.2019, Banker's Cheque along with undertaking wherein it is stated that in compliance of order dated 26.11.2019, the Petitioner Company will deposit Pay Order (Banker's Cheque) equal to the 0.367% shares of Hussain Lawai, amounting to Rs.15,000,000/- (Rupees Fifteen Million Only) with the Deputy Registrar (Judicial) of this Court as security . Learned counsel further states that the Petitioner Company unco nditionally guarantees and undertakes that the shares of Hussain Lawai shall not be transferred/alienated to any third party without prior approval of NAB. He adds that the NAB has not marked caution on the Petitioner-Company , therefore, Section 23 of the NAB Ordinance with reference to charge on property , is not applicable in this case, nevertheless the Petitioner-Company undertakes to deposit the aforesaid amount equal to the share of Hussain Lawai (accused before the NAB) in order to secure and protect the interest of the NAB.
8. In response thereof, Mr. Muhammad Wasiq Malik, Senior Prosecutor , NAB with Malik Uzair Rehan, Assistant Director , NAB, under instructions submit, that the NAB had only reservation regarding the alienation of the share of Hussian Lawai. Further the property/assets/shares of Hussian Lawai (accused before the NAB), cautioned by the NAB, will be secured by depositing Rs.15,000,000/- (Rupees Fifteen Million Only) with the Deputy Registrar (Judicial) of this Court by the Company , with the undertaking, the NAB has no Objection, if an appropriate order is passed by this Court.
9. Learned counsel for the Petitioner-Company has made available copy of the order dated 11.11.2019 passed in identical case i.e. W.P. No. No.57647 of 2019 titled as "Al-Arabia Sugar Mills Ltd. v. SECP , and others " and stated that the Petitioner- Company would be satisfied if this Petition is disposed of with the direction to the Respondent No.2/Registrar , Companies Registration Office, SECP , Lahore for registration of the charge of any other financial institution and registration of security documents under Sections 100, 105 and 448 of the Act read with Regulations 4 and 18.
10. In view of above, the Petitioner-Company is directed to deposit Rs. 15,000,000/- (Rupees Fifteen Million Only) with the Deputy Registrar (Judicial) of this Court till 05.12.2019, which can be withdrawn by the NAB as per outcome of the case, by filing application to this Court, in accordance with law. 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/Registrar , Companies Registration Office, SECP , Lahore is directed to do what he is required by law to do and register the charge of financial institution(s) 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.
11. Disposed of accordingly . The Respondent No.2/Registrar , Companies Registration Office, SECP , Lahore shall conclude the matter within one (01) week after receipt of certified copy of this order .