CHINA ANNENG CONSTRUCTION CORPORATION through Project Manager vs K.A. CONSTRUCTION CO. through Attorney
This matter arises from a judgment of the Balochistan High Court dismissing Regular First Appeals filed by the petitioner-corporation on the ground that the power of attorney did not confer proper authority upon the signatory to institute the appeals and that the memo of appeals was not signed by a duly authorized person. Before the Supreme Court, the petitioner contended that the objection as to maintainability was raised belatedly and mala fide after furnishing a bank guarantee for the decretal amount, that sufficient compliance was made regarding the power of attorney and supporting resolution, that the provisions of the Companies Ordinance 1984 were inapplicable to a foreign corporation executing an international contract without an established place of business in Pakistan, and that an opportunity ought to have been granted to produce additional evidence to prove the documents. The Supreme Court granted leave to appeal to consider these contentions and directed the extension of the bank guarantee.
- Whether an appeal can be dismissed on the ground of defective authorization of the signatory without providing an opportunity to produce additional evidence to prove the documents?
- Whether the provisions of Part XIV of the Companies Ordinance 1984 are applicable to a corporation that has not established a place of business in Pakistan but is executing an international contract?
- Whether an objection regarding the competence of a person signing an appeal can be raised at a belated stage after the furnishing of a bank guarantee for the decretal amount?
- Section 450 to 460, Companies Ordinance 1984
ORDER
' CH. MUHAMMAD ARIF, J.---By this common order we intend to dispose of the above petitions which have arisen out of the judgment, dated 2-11-1999 passed by Balochistan High Court, Quetta in Regular First Appeals Nos.2 and 3 of 1999 with, inter alia, the following observations:-- "For the above discussion, safely, it can be concluded that the Power of Attorney, dated 20th February, 1993, does not confer authority upon Mr. Duan Songlin, to institute instant appeals, because under Article 4.20 of the Memorandum, the President of the Corporation, is not authorised by the Execution Committee, to confer upon him, and authority to launch legal proceedings.
' Consequently, it is held that memo. Of appeals, have not been duly signed by duly Authorized Person, therefore, both being incompetent deserve to be dismissed without entering into the merits of case. In arriving at such conclusion, we are fortified from the judgment reported in 1998 CLC 1767.
Relevant para. Therefrom, is reproduced here in a below:-- ' It would be appropriate to first of all attend to the objection, concerning, non-maintainability of petitions, put forth by Mr Farooq Rashid, Advocate. There is no cavil with the legal position that a suit (petition) on behalf of the Company, would not be competent, unless the person signing the same, has not been authorised by the Resolution passed by the Company's Board of Directors, in their meeting, as held in the judgment cited by learned counsel reported in Khan Iftikhar Hussain Khan of Memdot represented by 6 heirs) v. Messrs Ghulam Nabi Corporation Ltd., Lahore (PLD 1971 SC 550), but it is also to be borne in mind that such technical objection, ought to have been raised at the initial stage of proceedings, as it has been held in the case of Messrs Dawood Yamaha Ltd. v, Government of Balochistan and 3 others (PLD 1986 Quetta 148). In the cited judgment, identical objection was raised at the time of the arguments. His Lordship Mr. Justice Ajmal Mian, Actg, C.J. Of this Court, as then he was, while dictating Judgment on behalf of Division Bench, held, that there lies a vast difference between the suit and a Constitutional petition, inasmuch as, the provisions of the Code of Civil Procedure are strictly applicable to a suit, whereas they are not strictly applicable to Constitutional petitions, though some of the provisions thereof are pressed into service to regulate the conduct of the petitions in the absence of any rule on a particular topic framed by the High Court for regulating the Constitutional petitions.'
' As a result; both the Appeals are dismissed, in view of the Legal Objections, discussed here in above."
2. Mr. Bilal A. Khawaja, learned Advocate Supreme Court appearing in support of these petitions, has contended that the learned Members of the ' Division Bench of the High Court dismissed the RFAs only when an oral objection was taken which was mala fide in that such objection was neither taken by the respondent-K.A. Construction Co., at the time of service of the appeals on them nor even prior to the appellant furnishing bank guarantee No,K-951 of 1999, dated 28-6-1999 for Rs,13,852,053 representing the entire decretal amount in RFA No,2. It was also argued that the power of attorney in favour of the signatory on behalf of the petitioner-Corporation together with the Resolution in support thereof as also the copies of the Memorandum and Articles of Association, did constitute due and sufficient compliance with the requirement of law as held_ by this Court in Messrs Muhammad Siddiq Muhammad Umar and another v. The Australasia Bank Ltd. (PLD 1966 SC 684). He also referred to Part XIV namely sections 450 to 460 of the Companies Ordinance (No,XLVII of) 1984, hereinafter referred to as the Ordinance, to contend that the same were not attracted/ applicable in the case of petitioner-Corporation, which had not established any place of business in Pakistan and was executing an international contract awarded by Pakistan Water and Power Development Authority (WAPDA) pursuant to an invitation to tender. He also relied upon Khan Iftikhar Hussain Khan of Mamdot (represented by 6 heirs) v. Messrs Ghulam Nabi Corporation Ltd., Lahore (PLD 1959 SC (Pak.) 550) to contend that the effect of the documents on the record should have been determined after providing an opportunity to produce and prove the same, by way of additional evidence.
3. Leave to appeal is granted to consider the above questions raised on behalf of the petitioner- Corporation and it is directed that Bank Guarantee No,K-951 of 1999, dated 26-6-1999 for Rs,13,88,563 issued by the Bank AhFalah, Karachi for the due performance of the decree under appeal, shall be extended for another year i,e, up to 31-12-2000 .