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Constitutional Petition No.D-341 and Miscellaneous Application No.818 of 1987, decided on 26th August, 1987.

---Art.199--Banking Companies Ordinance (LVII of 1962),S.27(1) & 43-A--Constitutional petition--Petitioner Corporation got published an advertisement on basis of which it could be said that provisions of S.43-A of Banking Companies Ordinance, 1962 were prima facie attracted--Respondent only issuing notice to petitioner to furnish information and. to allow their representative to enter registered office of petitioner and examine record--Constitutional petition, held, was premature dismissed in circumstances.

Maroof Ali Khan for Petitioner.

Muhammad Shibli for Respondent No.2.

Imam Ali Kazi, Deputy Attorney-General.

--By this petition under Article 199 of the Constitution, the petitioners have questioned the notice dated 6-4-1987, whereby, they were required to furnish certain informations and to allow the authorised representatives to enter their registered office and examine the record. If may be convenient if the entire notice is reproduced hereinbelow, which reads as follows:-

"Whereas it appears that you are transacting banking business or are associated in any way with such business in contravention of subsection (1) of Section 27 of the Banking Companies Ordinance, 1962, as amended upto date, hereinafter referred to as the Ordinance, so State Bank by virtue of its powers conferred by Section 43-A of the Ordinance direct you through this requisition to comply with as under:-

(1) Furnish or let furnish to State Bank of Pakistan or its authorised representatives (whose name/ designation and specimen signatures are appended below) within two days from the receipt of this requisition all record/ Information or any record specified by the State Bank of Pakistan representative in respect of the alleged illegal banking business which is either under your custody/possession/control or within your knowledge.

(2) Let the authorised representatives as aforesaid enter your registered office or any premises under your control to search/ seize books, accounts, documents or other records in respect of the banking business carried exclusively by you or with the association of any other person and take copies of such books, accounts, documents or other records.

(3) Let the authorised representatives examine/inspect or cause to be examined /inspected by the representatives your company/ officials of the company, its agents or any other person, who has at any time been dealing, doing business or associated with your company or such other person.

(4) Let the authorised representatives exercise all the powers conferred on State Bank of Pakistan, by subsections (1) , (2) , (4) and (5) of Section 40 of the Ordinance.'

Mr.Maroof Ali Khan, learned counsel for the petitioners submits that the petitioners are not doing any banking business as defined in Section 5(b) of the Banking Companies Ordinance, 1962, but he states that his case is covered by the explanation to that subsection.

On the other hand, Mr. Shibli, learned counsel for the respondent submitted that this petition is premature as the State Bank of Pakistan has not passed any final order to the prejudice of the petitioners and has only required them to furnish information and to allow the authorised representatives to enter their registered office and examine the record and this power is exercisable under section 43-A of the Banking, Companies Ordinance, 1962, which reads as follows: -

"43-A. Power to call for certain information etc.--Where it appears to the State Bank that a company or any other person is transacting in any manner or form whatsoever the business of banking in contravention of subsection. (1) of section 27, the State Bank may-

(a) direct the company or such other person, or any person who is, or has at any time been, dealing, doing business or associated in any manner with the company or such other person, to give or furnish to the State Bank, within such time' as the State Bank may specify in its requisition, such information, documents or records respecting any business carried on by the company or such other person as may be within its or his knowledge or in or under its or his possession, custody or control;

(b) authorise any person to enter and search any premises and seize books, accounts or other documents or records respecting any business carried on by the company or such other person as may be in or under the possession, custody or control of the company or such other person or a person who is, or has at any time been, dealing; doing business or associated in any manner with the company or such other person; or any officer or employee of the company or such other person or of the person dealing, doing business or associated with the company or such other person;

(c) inspect or examine, or cause to be inspected or examined, the company or such other person, or a person who is, or has at any time been, dealing, doing business or associated with it or him as aforesaid or any office or employee of the company or such other person or of the person dealing, doing business or associated with the company or such other person, and any of its or his books, accounts or other documents or records referred in clause (b); and

(d) exercise as far as may be applicable, in relation to the company or such other person, or any person who is, or has at any time been, dealing, doing business or associated with it or him as aforesaid, the powers conferred on the State Bank by subsections (1)(2),(4) and (5) of section 40."

To exercise its power, it should appear to the State Bank that a company or any other person is transacting in any manner or form whatsoever the business of banking in contravention of subsection (1) of section 27 of the Banking Companies Ordinance, 1962.

It is pointed out that the petitioners issued an advertisement in the Daily Jang dated 6-4-1987, a photostat copy whereof is annexed to the petition by the petitioners themselves as Annexure 'C' and it is available at page 71 of the record of the petition, which reads as follows : -

On the basis of advertisement, we cannot say that the provisions of Section 43-A of the Banking Companies Ordinance, 1962, are not prima facie attracted. We, therefore, find that this petition is filed prematurely and accordingly dismiss it in limine.

M.Y.H./G-45/K Petition dismissed.

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