S. GHULAM DASTGIR AND SONS vs UNION INSURANCE COMPANY OF PAKISTAN

ORDER

1. ' This is a petition for winding up of the respondent-company filed under section 53 of the Insurance Act, 1938 read with section 305 of the Companies Ordinance, 1984.

2. The Company sought to be wound up is an Insurance Company having its registered office at 3rd floor, Alflah, Lahore. The first question which arises for consideration is that whether this petition is maintainable in this Court. Provision for winding up of an insurance company is made in section 53 of the Insurance Act, subsection (1) whereof provides that "The Court may order the winding up in accordance with the Companies Act, 1913, of any insurance company and the provisions of that Act shall, subject to the provisions of this Act apply accordingly". Subsection (2) of section 53 need not be referred to as it only specifies the additional grounds for winding up of the insurance company. The expression 'Court' used in section 53(1) is defined in section 2 (6) of the Insurance Act which reads as follows:-- "Court means the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction."

2. It is clear from this definition that the Court referred to in section 53(1) of the Insurance Act is either the principal Civil Court of original jurisdiction in a district or the High Court which is possessed of ordinary original civil jurisdiction. The High Court which does not have the ordinary original civil jurisdiction is not covered by the definition. Needless to observe that under the Companies Ordinance, no distinction is made between a High Court which has got ordinary original civil jurisdiction and the one which does not have any such jurisdiction. It is thus manifest that the Court competent to order the winding up of an Insurance Company is either the principal Civil Court of original jurisdiction in the district i,e,, the District Court or the High Court which has got ordinary original civil jurisdiction.

3. ' The definition of 'Court' quoted hereinabove appears to be based upon the concept of territorial jurisdiction and in a case from Indian Jurisdiction reported as All India Motor Transport Mutual Insurance Co. Ltd. v. Rapheel George of Bombay Indian Inhabitant (MR 1963 Bombay 7) it was held "If the principal place of business of an insurance company is situated within a district which has no High Court, then the Court which would have jurisdiction under section 53 of the Insurance Act would be the principal Court of original civil jurisdiction in that district, that is, the District Court. But where such place is situated in a district in which the High Court of the State is situate and such High Court has ordinary original civil jurisdiction, then the order for winding up of the insurance company under section 53 Of the Act shall be made by such High Court. If, on the other hand, such High Court has no such jurisdiction, the District Court for the district in which it is situated would be the principal Civil Court of original jurisdiction. For example, in Allahabad the High Court has no original civil jurisdiction; nevertheless, there is a District Court in the district of Allahabad which would for purposes of this Act be the principal Civil Court of original jurisdiction, and if any insurance company, whose principal place of business is situate within the district of Allahabad is to be wound up, it would be the District Court in Allahabad and not the High Court which would have jurisdiction under section 53 of the Insurance Act to order the winding up thereof. Accordingly, we are of the view that there is a clear inconsistency between the Court having jurisdiction for the purposes of winding up of a company under the Companies Act and the Court having jurisdiction under the Insurance Act for the same purpose, and that the special provision made in the Insurance Act with regard to the Court which would have jurisdiction to order winding up of an insurance company should prevail over the general provisions made under the Companies Act in that behalf.

4. ' It is an admitted position' that this Court does not have ordinary original civil jurisdiction. That being so, in view of the legal position aforestated, this Court has no jurisdiction to entertain this petition which lies before the District Court, Lahore. It is accordingly directed that the petition be returned to the petitioner for presenting it before the Court of competent jurisdiction.