The petitioner, Phoenix Security Services (Pvt.) Limited, has filed the instant application under the Companies Ordinance, 1984 against the respondents i,e, Messers Emerald Mining Co. (Pvt.) Ltd., respondent No,1, praying therein for winding up of the Company. According to the petition, the petitioner formed for the purpose of operating security system and offering related security services. Respondent No,1, which is also a private limited Company and registered under the Companies Laws and which entered into a mining lease agreement dated 22-12-1996 with respondent No,5 for the development and operation of Mingora Emerald Mines in Swat. The petitioner has also entered into an agreement with respondent No,1 for operation and maintenance of security services at the premises owned by respondent No,1 at Swat vide agreement dated 3-10-1996. The petitioner-Company in accordance with terms of the said agreement commenced the operation and maintenance of security services at the premises of respondent No,1 with effect from 16-11-1996. The respondent No,1 Company started defaulting in their payments for the services provided by the petitioner-Company and in which respect notices were served upon it but of no consequence, hence the present petition has been filed for winding up of the respondent-Company on the ground that the respondent-Company has failed and unable to pay its debt. Notices were issued to the respondents, in response to which the.
Representation was made by the respondents.
2. At the very outset the learned counsel for the respondents has taken a preliminary objection with regard to the (i) competency of petition under the provision of the Companies Ordinance, 1984 and
(ii) jurisdiction of this Court to entertain application on the ground that the respondent-Company is having its registered office at Mingora Swat, PATA to which area the Companies Ordinance, 1984 has not been extended. In this respect reference was made to Article 247(2) of the Constitution of the Islamic Republic of Pakistan, 1973. The law is not extended and applied to the said area unless that has been so extended or made applicable by the President in case of Federal law or in case of Provincial law when such a Notification has been made by the Governor with the approval of the President. While no such notification has been issued qua the extending/application of the Companies Ordinance, 1984. In this respect reliance was placed on 1999 MLD 1145 (Muhammad Ihsan v. Government of Pakistan and others) PLD 1995 Pesh. 14 (Sadbar Khan v. Amir Hussain and another) 1997 PTD (Trib.) 283 and 1997 PTD 849 (Ghilaf Gul v. Commissioner of Income Tax/Wealth Tax, Zone-B, Peshawar and 4 others).
3. The learned counsel for the respondents has not controverted the factual aspect of non- extending of the 1984 Ordinance through any specific Notification as envisaged under Article 247(2) of the Constitution of the Islamic Republic of Pakistan. However, he has contended that previously the Companies Act, 1913 has been extended, vide the Tribal Area (Application of Acts)
Regulation, 1965, while the repealing provisions of the Companies Ordinance by virtue of section 508 vide which the Companies Act, 1913 has been repealed, are not applicable as the Companies Ordinance, 1984 has not been extended, resultantly the repealing provisions have also not been extended/made applicable. In this respect reliance was placed on 1996 SCMR 886 (Tilla Gul v.
Deputy Collector of Central Excise and Land Customs, Peshawar and 2 others), whereby an alike question has arisen with regard to the application of the effect of repeal of Sea Customs Act, 1878 in the Tribal Area and the application of the Customs Act, 1969, under the analogous provisions of Constitution of Pakistan, 1962, it was observed:-- "It is worthy to note that clause (2) of Article 223 of the Constitution of Pakistan, 1962 gave unbridled powers to the President of Pakistan to legislate for the Tribal Areas through Regulations with respect to any matter within legislative competence of the Central Legislature. This power could be exercised by the President notwithstanding fact that there was no Act passed by the Parliament of Pakistan on the subject covered by the President's Regulation for the Tribal Areas. Hence one can visualize a law existing in the Tribal Areas but not in the settled areas of Pakistan. While the provisions contained in Sea Customs Act were made applicable to the Tribal Areas by virtue of Article 223(1) of the Constitution of Pakistan, 1962, it was not an act of legislation by the President and such 'legislation was independent of applicability of the said Act in settled areas of Pakistan.
Conversely disappearance of such legislation from settled areas of Pakistan, would not affect duly legislated law applicable to Tribal Areas. President had general powers of legislation for the Tribal Areas with respect to any matter within legislative competence of the Central Legislature vide Article 223(2) of the Constitution of Pakistan, 1962. Hence repeal of Sea Customs Act in the Tribal Areas cannot be assumed, due to its repeal in Pakistan by an Act not yet made applicable under Article 247(3) of the Constitution of Pakistan, 1973 to the Tribal Areas. As mentioned under Chapter XIV of the Construction of Statutes by Earl T. Crawford the power to repeal is a legislative function or attribute. Consequently the contentions raised on behalf of the petitioners have no force." On the strength of this authority it is held that Companies Act, 1913 qua Tribal Area has neither been repealed nor its application has been withdrawn and is applicable to the Tribal Area.
4. The other limb of the objection raised by the learned counsel for the respondent is over the jurisdiction of this Court by submitting that as the registered office is situated in Swat, PATA where the Ordinance has not been extended and this Court has been constituted under the Ordinance shall have no jurisdiction in the instant matter. The Court has been defined by section 2(11) of the Company Ordinance, 1984, the Court means the Court having jurisdiction under this Ordinance and according to section 7(1), the Court having jurisdiction under this Ordinance shall be the High Court having jurisdiction in the place at which registered office of the Company is situated. According to Section 8 of the Ordinance there shall in each High Court be one or more Benches, each to be known as the company bench to be constituted by the Chief Justice of the High Court to exercise the jurisdiction vested in the High Court under section 7. The Hon'ble Chief Justice while exercising powers under section 8 of the Ordinance has issued a Notification on 30-6-1997 with regard to the constitution of company bench comprising of the undersigned for disposal of matters of N.-W.F.P.
Except Abbottabad and D.I. Khan coming under the said Ordinance. According to Article 1 of the Constitution of Islamic Republic of Pakistan, 1973, the Province of N.-W.F.P. Is part of Pakistan and according to Article 4(2) of the President Order 1 of 1.970 read with Schedule thereto the territories of N.-W.F.P. Include Malakand Division and former States of Dir, Swat and Chitral and the Malakand protected area and which Article of the Order came into force on the 1st July of 1970 through a gazetted notification dated 16-6-1970. It is now quite clear that this Court, the Company Judge, is having the jurisdiction in the place where the jurisdiction of the Peshawar High Court, Peshawar has been extended. According to Article 247(7) of the Constitution of Islamic Republic of Pakistan, 1973, neither the Supreme Court nor the High Court shall exercise any jurisdiction under the Constitution in relation to Tribal Area unless Parliament by law otherwise provides. The jurisdiction of the Peshawar High Court and of the Supreme Court has been extended by Act No,XXVII of 1973 of the Parliament which is reproduced:-- "2. Extension of Jurisdiction of Supreme Court.--The Supreme Court of Pakistan shall have, in relation to the Provincially Administered Tribal Areas of Chitral, Dir, Kalat, Swat and Malakand Protected Area, the same jurisdiction as it has in relation to the other areas of the North-West Frontier Province.
3. Extension of Jurisdiction of High Court.--The Peshawar High Court shall have, in relation to the Tribal Areas specified in section 2, the same jurisdiction as it has in relation to the other areas of the North-West Frontier Province." Now it is quite evident that the jurisdiction of the Peshawar High Court, Peshawar has been extended to PATA including Swat where the registered office of the respondent is situated and resultantly this Court which is a Bench of the Peshawar High Court, Peshawar is having jurisdiction in the case of the respondent-Company as its registered office is situated at Swat.
5. The Companies Act, 1913 and the Companies Ordinance, 1984 are having analogous provisions with regard to the winding up as section 162 of the Companies Act corresponds to section 305 of the Companies Ordinance and similarly provisions relating to the application for winding up under section 166 of the Companies Act relates to section 309 of the Companies Ordinance. Section 508 (proviso) to subsection (1) have saved the incorporation of any company registered under any law which was repealed by the Ordinance and similarly any offence has been committed under the old law, the proceedings may be taken under this Ordinance and similarly under subsection (2) of section 6 of the General Clauses Act, 1897 has been made applicable and similarly under section 510 of the Ordinance all the actions, investigation, proceedings, orders initiated under the repealed laws have been saved, in other words this Court has the jurisdiction to adjudicate upon the proceedings under the Companies Act, 1913 as held in 1986 CLC 2933(c), then proceedings can be initiated under the Companies Act, 1913 in this Court if otherwise it has got jurisdiction under Companies Ordinance, 1984 and thus the proceedings can be initiated and shall continue before this Court initiated or taken under the repealed laws i,e, Companies Act, 1913 that this Court having the jurisdiction to deal with the matters under the repealed laws.
5. The jurisdictional point of this Court can further be strengthened when through Regulation, 1986 the registration authority at Peshawar was given power to have a jurisdiction with regard to the registration of a registered office of a Company at PATA, the relevant portion of which is reproduced below:- In exercise of the powers conferred by subsection (2) of section 486 of the Companies Ordinance, 1984 (XLVII of 1984), read with the Finance Division Notification No,S.R.O. 698 (1)/86, dated the 2nd July, 1986, the Corporate Authority hereby makes the following regulations, namely:-- .......................................................................................................................................................... ......................................
3.--(1) For registration of companies and performing other duties under the Ordinance, the organisation for registration of companies shall, besides the office of the Registrar of Companies, Pakistan, have Company registration offices in the following towns with jurisdiction extending to companies, not being companies to which section 5 applies, having registered offices in the territories mentioned against each... ... ... Peshawar. The Province of the North-West Frontier, the Federally Administered Tribal Areas and the Provincially Administered Tribal Areas to which the executive authority of the Province of the North-West Frontier extends."
Hence while holding that this Court has got the jurisdiction to adjudicate upon the cases brought under the Companies Act, this application may be treated as application under the Companies Act, 1913 and now the case will proceed on merits. To come up for further proceedings on 24-4- 2000.