[As Amended Up-to-Date Till 2012]
The Gazette of Pakistan
EXTRAORDINARY
PUBLISHED BY AUTHORITY
ISLAMABAD,
THURSDAY, JUNE 26, 1980
PART I
MINISTRY OF LAW AND PARLIAMENTARY AFFAIRS (Law Division)
ORDINANCE XXXI OF 1980
GOVERNMENT OF PAKISTAN
Islamabad, the 26th June, 1980.
No. F. 17(1)/80-Pub.-The following Ordinances made by the
President on the 26th June, 1980 are hereby published for general information:-
AN
ORDINANCE
to provide for matters relating to registration of modaraba
companies and the floatation, management and regulation of modarabas.
WHEREAS it is
expedient to provide for matters relating to registration of modaraba companies
and the floatation, management and regulation of modarabas and for matters
connected therewith or ancillary thereto:
AND WHEREAS the
President is satisfied that circumstances exist which render it necessary to
take immediate action;
Now, THEREFORE,
in pursuance of the Proclamation of the fifth day of July, 1977, read with the
Laws (Continuance in Force) Order, 1977 (C.M.L.A. Order No. 1 of 1977), and in
exercise of all powers enabling him in that behalf, the President is pleased to
make and promulgate the following Ordinance:-
PART 1
PRELIMINARY
1. Short title,
extent and commencement.-(1) This Ordinance shall be called the Modaraba
Companies and Modaraba (Floatation and Control) Ordinance, 1980.
(2) It
extends to the whole of Pakistan.
(3) It
shall come into force at once.
2. Definition.-(1)
In this Ordinance, unless there is anything repugnant in the subject or
context,-
[(a) "Commission" means the Commission
as defined in the Securities and Exchange Commission of Pakistan Act, 1997
(XLII of 1997);][1]
[(ab)
“Modaraba” means a business in which a person participates with his money and
another with his efforts or skill or both his efforts and skill and shall
include Unit Trusts and Mutual Funds by whatever name called;][2]
(b)
"Modaraba Certificate" means a certificate of
definite denomination issued to the subscriber of the Modaraba acknowledging
receipt of money subscribed by him;
(c)
"modaraba company" means a company engaged in
the business of floating and managing modaraba;
(d)
“Modaraba Fund" means a fund raised through
floatation of modaraba;
(e)
"Prescribed" means prescribed by rules;
(f)
"Registrar" means the Registrar appointed
under section 3;
(g)
"rules" means rules made under this
Ordinance; and
(h)
"Tribunal" means a Tribunal constituted under
section 24.
(2) All terms and expressions used but not defined in this
Ordinance shall have the same meaning as in Companies Act, 1913 (VII of 1913).
3. Appointment of
Registrar.- The Federal Government may, by notification in the official
gazette, appoint a person to be the Registrar for the purpose of this
Ordinance.
PART II
REGISTRATION OF MODARABA COMPANIES
4.
No company to
operate without registration.- No modaraba company shall operate without
registration with the Registrar.
5.
Eligibility for
registration.- (1) A company shall be eligible for registration as a
modaraba company if it fulfills the following conditions, namely:-
(a)
that it is registered under the Companies Act, 1913
(VII of 1913), or is a body corporate formed under any law in force and owned
or controlled, whether directly or through a company or corporation, by the
Federal Government or a Provincial Government;
(b) that,
being a company solely engaged in the flotation and management of modaraba, it
has a paid up capital of not less than [two and a half million rupees][3];
(c)
that none of its directors, officers or employees has
been convicted of fraud or breach of trust or of an offence involving moral
turpitude;
(d) that
none of its directors, officers or employees has been adjudged an insolvent or
has suspended payment or has compounded with his creditors;
(e)
that its promoters are, in the opinion of the
Registrar, persons of means and integrity and have knowledge of matters which
the company may have to deal with as a modaraba company; and
(f)
that, being a company also engaged in business other
than floatation and management of modaraba, it has a paid up capital of such
amount and of such nature as may be prescribed.
6.
Application for
registration.- (1) A company which is eligible for registration as a
modaraba company may make an application for registration to the Registrar in
such form and with such documents as may be prescribed.
(2)
The Registrar, if he is satisfied after such enquiry
and after obtaining such further information as he may consider necessary that
the applicant is eligible for registration and that it is in the public
interest so to do, may grant registration to such company on such conditions as
he may deem fit.
(3)
In particular and without prejudice to the generality
of the powers conferred by subsection (2), such conditions may include:- (i)
investments to be made;
(ii)
information and returns to be furnished to the
Registrar;
(iii)
business to be undertaken; and
(iv)
restriction on transfer of shares by promoters,
sponsors or persons holding controlling interest.
PART III
PROVISIONS APPLICABLE TO MODARABAS
7. Types of modaraba.- (1) Modaraba may be
of two descriptions:-
(i)
Multipurpose Modaraba.-That is to say a modaraba having
more than one specific purpose or objective.
(ii)
Specific purpose Modaraba.-That is to say a modaraba
having one specific purpose or objective.
(2) A modaraba may be either for a fixed
period or for an indefinite period.
8. Creation and
maintenance of modaraba.- (1) A modaraba company registered under section 4
shall apply to the Registrar, in such form and with such documents as may be
prescribed, for permission to float modaraba.
(2)
An application for floatation of modaraba shall be
accompanied by a prospectus which shall contain, inter alia, the following information, namely;
(i)
the name and type of the modaraba;
(ii)
the conditions and amounts of the modaraba to be
floated and the division thereof into Modaraba Certificates of fixed amount;
(iii)
the business scheme, prospectus and mode of
distribution of profit;
(iv)
the amount to be subscribed by the modaraba company to
the modaraba in its own name supported by evidence about its ability to meet
the commitment;
(v)
the form of the Modaraba Certificate; and
(vi)
such other matters as may be prescribed.
(3)
The application, the prospectus and the documents filed
therewith shall be authenticated by all the directors of the company.
9.
Religious
Board.- The Federal Government shall, for the purpose of this Ordinance,
constitute a Religious Board which shall consist of such members and shall have
such functions, terms and conditions as may be prescribed.
10.
Business of
modaraba.- No modaraba shall be a business which is opposed to the
injunctions of Islam and the Registrar shall not permit the floatation of a
modaraba unless the Religious Board has certified in writing that the modaraba
is not a business opposed to the injunctions of Islam.
11.
Authorization.-The
Registrar may, after obtaining from the Religious Board a certificate to the
effect mentioned in section 10 and on being satisfied that it is in the public
interest so to do, grant a certificate in the prescribed form authorising the
floatation of modaraba on such conditions as he may deem fit, including
conditions as to the business to be undertaken, expenses relating to the
management of the Modaraba Fund, preservation of assets and other matters
relating to the mode of management and distribution of profits:
Provided that, before issuing the certificate
of authorization, the Registrar may require the modaraba company to make such
modifications, additions or omissions in the prospectus as the Religious Board
may have indicated or as he may deem fit.
12.
Modaraba to be a
legal person.- (1) A modaraba shall sue and be sued in its own name through
the modaraba company.
(2) The assets and liabilities of each modaraba shall be
separate and distinct from those of another modaraba as also from those of the
modaraba company.
13. Conditions
applicable to Modaraba.-(1) No allotment of Modaraba Certificates shall be
made unless a prospectus approved by the Registrar has been issued and the
minimum amount stated in the prospectus to be the amount which must be raised
in order to provide for the business operations and expenses has been
subscribed.
(2)
All moneys received from the applicants for Modaraba
Certificates for a modaraba shall be deposited and kept in a separate account
in a scheduled bank as defined in the State Bank of Pakistan Act, 1956 (XXXIII
of 1956), until they are refunded in accordance with the provisions of
subsection (3) or until it is certified by the Registrar that Modaraba
Certificates have been allotted in an amount not less than the minimum amount
referred to in sub-section (1).
(3)
If the subscription referred to in sub-section (1) has
not been received by the date specified in the prospectus, all moneys received
from the applicants shall be refunded to them within fifteen days of the said
date and the modaraba company and the directors thereof shall be jointly and
severally liable to repay the money which is not so refunded.
(4)
The modaraba company shall issue Modaraba Certificates
within thirty days from the date of allotment.
(5)
The modaraba company shall maintain a register of
holders of Modaraba Certificates in such form and in such manner as may be
prescribed.
(6)
The modaraba company shall maintain separate bank
account, funds, assets and liabilities of each modaraba.
(7)
No modaraba shall be liable for the liabilities, or be
entitled to benefit from the assets, of any other modaraba or of the modaraba
company.
(8)
A Modaraba Certificate shall be transferable in the
manner provided for in the prospectus of the modaraba.
14. Preparation and
circulation of annual accounts, reports, etc.- (1) The modaraba company
shall, within six months from the close of the accounting year of the modaraba,
prepare and circulate to the holders of modaraba certificates:-
(i)
annual balance sheet and profit and loss account in
such form and manner as may be prescribed;
(ii)
a report of the auditor on the balance sheet and profit
and loss account;
(iii)
a report by the modaraba company on the state of
affairs, activities and business prospects of the modaraba and the amount of
profits to be distributed to the certificate holders.
(2)
In addition to the documents referred to in sub-section
(1) the modaraba company shall furnish to the Registrar and to the holders of
Modaraba Certificates such reports, accounts and information as may be
prescribed or as the Registrar may, at any time by an order in writing,
require.
(3)
The modaraba company shall submit five copies of the
accounts, statements and reports referred to in sub-sections (1) and (2) to the
Registrar simultaneously with the circulation of these documents to the holders
of Modaraba Certificates.
15. Audit of
accounts. - (1)The accounts of a modaraba shall be audited by an auditor
who is a Chartered Accountant within the meaning of the Chartered Accountants
Ordinance, 1961 (X of 1961), appointed by the modaraba company with the
approval of the Registrar and such auditor shall have the same powers, duties
and liabilities as an auditor of a company has under the Companies Act, 1913
(VII of 1913), and such other powers, duties and liabilities as are, or may be,
provided in this Ordinance and the rules.
(2) In addition to other matters, the auditors shall also
state in his report whether in his opinion the business conducted investments
made and expenditure incurred by the modaraba are in accordance with the
objects, terms and conditions of the modaraba.
16.
Prohibition of
false statement, etc.- No modaraba company, director, officer, employee or
agent or auditor thereof shall, in any document, prospectus, report, return,
accounts, information or explanation required to be furnished in pursuance of
this Ordinance or the rules or in any application made under this Ordinance or
the rules, make any statement or give any information which he knows or has
reasonable cause to believe to be false or incorrect or omit any material fact
therefrom.
17.
Conditions
applicable to modaraba company.- (1) No modaraba company shall engage in
any business which is of the same nature and competes with the business carried
on by a modaraba floated or controlled by it.
(2)
No modaraba company or any of its directors or officers
or their relatives shall obtain loan, advance or credit from the funds of the
modaraba or on the security of the assets of the modaraba.
Explanation.-In
this sub-section, "relative", in relation to a director or officer,
means the spouse, brother or sister or any of the lineal ascendants or
descendants of the director or officer.
(3)
A modaraba company shall subscribe in each modaraba
floated by it not less than ten per cent of the total amount of Modaraba
Certificates offered for subscription.
18. Remuneration of
modaraba company.- The remuneration of a modaraba company in respect of a
modaraba floated by it shall be a fixed percentage of the net annual profits of
the modaraba and shall not exceed ten per cent of such net annual profits
computed in the manner to be prescribed.
[18A. Power to issue
directions.- (1) Notwithstanding anything contained in any other provision
of this Ordinance, where the Registrar is satisfied that it is necessary and
expedient so to do –
(a)
in the public interest; or
(b)
to prevent the affairs of any modaraba from being
conducted in a manner detrimental to the interest of holders of Modaraba
Certificates; or
(c)
to secure the proper management of any modaraba
generally;
he may issue such directions to a modaraba company or the
modaraba companies generally, as he may deem fit, to remove and rectify the
irregularities and the modaraba company and its management shall be bound to
comply with such directions.
(2) The Registrar
may, on a representation made to him or on his own motion, modify or cancel any
direction issued under sub-section (1), and in so modifying or canceling any
direction may impose such conditions as he thinks fit.][4]
19. Cancellation of registration.-
(1) Where the Registrar is of the opinion that a modaraba company has
contravened or has failed to comply with any provision of this Ordinance or the
rules or with any direction made or given thereunder, he may, if he considers
necessary in the public interest so to do, by order in writing:-
(a)
cancel the registration of the modaraba company; and
(b)
remove the modaraba company from the management of the
modaraba floated by it:
Provided that no
such order shall be made without giving the modaraba company an opportunity of
being heard.
(2)
The modaraba company removed from the management of a
modaraba under clause (b) of sub-section (1) shall not be entitled to or be
paid any compensation or damages for loss or termination of office.
(3)
A modaraba company removed from the management of a
modaraba under clause (b) of sub-section (1) shall not be entitled to float any
modaraba.
(4)
A modaraba company aggrieved by an order of the Registrar
under sub-section (1) may prefer an appeal to the [Commission][5] within
thirty days of the date of the order.
[(5) An appeal preferred under sub-section (4) shall be
disposed off by the 6[Commission] [6]
after giving the appellant an opportunity of being heard.][7]
20. Appointment of Administrator.- (1) If-
(a)
the Registrar, has reason to believe that a modaraba
company has been conducting the affairs of a modaraba in a manner prejudicial
to the interest of the modaraba or the holders of Modaraba Certificates or in a
fraudulent or unlawful manner or has committed a default in complying with the
provisions of this Ordinance or the rules or with any direction made or given
thereunder or any condition of the modaraba;
(b) the
registration of a modaraba company has been cancelled; or
(c)
any other modaraba under the management of the modaraba
company has been ordered to be wound up by the Tribunal, the Registrar, after
affording the modaraba company an opportunity of being heard, may, without
prejudice to any other action under the law, by order in writing:-
(i)
appoint an administrator to take over and manage the
modaraba in place of the modaraba company for such period as the Registrar may
specify; or
(ii)
require the modaraba company to carry out such changes
in the management and procedure as may be specified; or
(iii)
remove the modaraba company and appoint another
modaraba company in its place to manage the modaraba.
(2) The Registrar
shall not make an order under sub-section (1) without the approval of the
[Commission] [8].
21. Enquiries.- (1)
The Registrar may, on his own motion or on an application made by the holders
of Modaraba Certificates the value of which is not less than ten per cent of
the total subscribed amount of the modaraba, by an order in writing cause on
enquiry to be made by a person appointed by him in this behalf into the affairs
of a modaraba company or the modaraba or any business transaction thereof.
(2)
Where an enquiry under sub-section (1) has been
ordered, every director, manager or other officer of the modaraba company to
which the enquiry relates and every other person who has had any dealing with
such modaraba company or director or officer shall furnish such information or
document in his custody or power or within his knowledge relating to or having
a bearing on the subject matter of the enquiry as the person conducting the
enquiry may by notice in writing require.
(3)
The person conducting an enquiry under sub-section (1)
may for the purpose of such enquiry enter into any premises belonging to or in
occupation of the modaraba company or of the person to whom the enquiry relates
and may call for, inspect and seize books of accounts and documents in
possession of any such modaraba company, director, manager or any other officer
or employee thereof.
(4)
The person holding an enquiry under sub-section (1)
shall, for the purpose of such enquiry, have the same powers as are vested in a
court under the Code of Civil Procedure, 1908 (Act V of 1908), when trying a
suit in respect of the following matter, namely:-
(a)
enforcing the attendance of a person and examining him
on oath or affirmation;
(b)
compelling the discovery and production of documents;
and
(c)
issuing commissions for the examination of witnesses.
(5)
On receipt of the report of the person conducting the
enquiry, the Registrar shall take such action as he may consider necessary on
the basis of the report.
WINDING UP
22. Circumstances in
which modaraba may be wound up voluntarily.- (1) A modaraba floated for a
fixed period or for a specific purpose shall be wound up by the modaraba
company itself on the expiry of the period fixed for the modaraba or the
accomplishment of the purpose of the modaraba, as the case may be, provided the
following conditions are fulfilled, namely:-
(a)
all the directors of the modaraba company shall make a
declaration verified by an affidavit to the effect that they have made a full
enquiry about the affairs of the modaraba and, having done so, have formed the
opinion that the modaraba will be able to discharge its liabilities, pay the
amount subscribed by the holders of Modaraba Certificates and all their other
dues in full within a period of twelve months from the date of expiry of the
period fixed for the modaraba or the accomplishment of the purpose of the
modaraba, as the case may be;
(b)
the declaration referred to in clause (a) shall be
supported by a report of the auditor of the modaraba on the affairs of the
modaraba and shall have no effect unless it is filed with and approved by the
Registrar within ninety days of the date of expiry of the period fixed for the
modaraba or the accomplishment of the purpose of the modaraba, as the case may
be.
(2) Any person aggrieved by the decision of the Registrar
under clause (b) of sub-section (1) may prefer an appeal to the 8[Commission]
[9] within
thirty days of the day on which the decision is given.
[(3) An appeal preferred under sub-section (2) shall be
disposed of by the 10[Commission] [10]
after giving the appellant an opportunity of being heard.][11]
23. Circumstances
in which modaraba may be wound up by the Tribunal.- (1) A
modaraba shall be wound up by the Tribunal on an application
made by the Registrar if-
(i)
in the case of a modaraba for a fixed period on the
expiry of that period or, in the case of a modaraba for a specific purpose on
the accomplishment of its purpose, the declaration referred to in section 22
has not been filed with the Registrar within the period specified in that
section;
(ii)
in the case of any modaraba, the Registrar has declared
that:-
(a)
the modaraba is unable to discharge its liabilities;
(b)
the accumulated losses of the modaraba exceed fifty per
cent of the total amount subscribed by the holders of the Modaraba
Certificates; or
(c)
the business of the modaraba is being or has been,
conducted for a fraudulent purpose or with intent to defraud the holders of the
Modaraba Certificates, or its creditors or any other person;
(iii)
the Tribunal is of opinion that it is just and
equitable that the modaraba should be wound up.
(2)
The Registrar may make an application to the Tribunal
for the winding up of a modaraba on receipt of an application under sub-section
(1) of section 21 or of the report of an enquiry under that section relating to
the modaraba.
(3)
No application shall be made by the Registrar under
sub-section (1) or (2) without giving the modaraba company an opportunity of
being heard.
24. Constitution of
Tribunal.- (1) The Federal Government may, by notification, in the official
Gazette, constitute one or more Tribunals for the purpose of this Ordinance
and, where it constitutes more than one Tribunal, shall specify in the
notification the area within which, or the class of cases in respect of which,
each such Tribunal shall exercise jurisdiction under this Ordinance.
(2) A Tribunal shall consist of a person who is, or has
been, or is qualified to be a judge of a High Court.
25. Powers of a Tribunal.- (1) A Tribunal
shall-
(a)
in the exercise of its Civil jurisdiction, have in
respect of a claim filed by a holder of Modaraba Certificates against the
modaraba company or by a modaraba company against any other party with whom it
has entered into business transactions relating to Modaraba Fund, or in respect
of an application by the Registrar for the winding up of a modaraba company,
all the powers vested in a civil court under the Code of Civil Procedure, 1908
(Act V of 1908);
(b) in
the exercise of its criminal jurisdiction, try the offences punishable under
this Ordinance and shall, for that purpose, have the same powers as are vested
in the Court of a Sessions Judge under the Code of Criminal Procedure, 1898
(Act V of 1898):
Provided that a
Tribunal shall not take cognizance of any offence punishable under this
Ordinance except on a complaint in writing made by the Registrar or an officer
authorized by him in writing; and
(c)
exercise and perform such other powers and functions as
are, or may be, conferred upon or assigned to it by or under this Ordinance.
(2)
All proceedings before a Tribunal shall be deemed to be
judicial proceedings within the meaning of sections 193 and 228 of the Pakistan
Penal Code (Act XLV of 1860), and the Tribunal shall be deemed to be a court
for the purposes of sections 480 and 482 of the Code of Criminal Procedure,
1898 (Act V of 1898).
(3)
No court other than the Tribunal shall have or exercise
any jurisdiction with respect to any matter to which the jurisdiction of the
Tribunal extends under this Ordinance.
26. Procedure of the
Tribunal.- (1) Matters before the Tribunal shall come up for regular
hearing as expeditiously as possible and, except in extraordinary circumstances
and on grounds to be recorded, the Tribunal shall hear the cases from day to
day.
(2) In the exercise of its civil jurisdiction, the Tribunal
shall, in all suits before it, including suits for recovery of money, follow
the summary procedure Provided for in Order XXXVII of the First Schedule to the
Code of Civil Procedure, 1908 (Act V of 1908).
27. Powers of
Tribunal on hearing application for winding up of modaraba.- (1) If, after
hearing the application for winding up of a modaraba, the Tribunal decides to
wind up the same it shall appoint a liquidator in consultation with the
Registrar and approve a general scheme of winding up.
(2)
After a winding up order has been passed by the
Tribunal, the modaraba company shall forthwith hand over charge of the modaraba
to the liquidator and furnish him with such statements, documents, records,
information and other material as may be required by him.
(3)
The liquidator shall conduct the winding up proceedings
in the prescribed manner under the control and directions of the Tribunal.
(4)
The winding up proceedings shall be completed within a
period of one year from the date of appointment of the liquidator, unless the
Tribunal, for special reasons to be recorded in writing, extends the period.
(5)
During the winding up proceedings, the Tribunal may
allow the administrator appointed by the Registrar under section 20, if any, to
continue to function or may appoint an administrator to manage the modaraba
till the disposal of the proceedings.
28.
Judgement and
decree.- (1) A Tribunal shall, after the case has been heard, pronounce
judgement as early as practicable and on such judgement a decree shall follow
forthwith. (2) The Tribunal shall, on the application of the decree-holder,
forthwith order execution of the decree:
Provided that,
if the decree is for money, the recovery in execution thereof shall be made as
arrears of land revenue.
29.
Finality of
orders.- Subject to the provisions for appeal as provided in section 30, no
court or other authority shall call or permit to be called in question any
order, judgement or sentence of the Tribunal or the legality or propriety of
anything done or intended to be done by the Tribunal under this Ordinance.
30.
Appeals. - (1)
Any person aggrieved by any order, judgement, decree or sentence of the
Tribunal may, within thirty days of such order, judgement, decree or sentence,
prefer an appeal to the High Court within whose jurisdiction the order,
judgement, decree or sentence is passed:
Provided that no
appeal shall lie from an interlocutory order which does not dispose of the
entire case before the Tribunal.
(2)
An appeal under sub-section(1) shall be heard by a
Bench of two judges of the High Court and shall lie on any one of the following
grounds, namely:-
(a)
the decision being contrary to law or to some usage
having the force of law; or
(b)
the decision having failed to determine a material
issue of law or usage having the force of law; or
(c)
a substantial error apparent in the procedure provided
by or under this Ordinance, which may possibly have led to an error in the
decision.
(3)
An appeal may be preferred under this section from a
decision made ex-parte.
31. Punishment.- (1)
Whoever contravenes the provisions of section 4, 10, 13, 14, 16 or 17 shall be
punishable with imprisonment of either description for a term which may extend
to three years and with fine which may extend to five hundred thousand rupees.
(2) Where, the
contravention referred to in sub-section (1) has caused loss to the modaraba or
any other person, a further fine to the extent of the loss shall be imposed.
(a)
refuses or fails to furnish any document, return or
information which he is required to furnish by or under this Ordinance; or
(b) refuses
or fails to comply with any condition imposed or made by the Federal Government
or direction made or given under this Ordinance or the rules; or
(c)
contravenes or otherwise fails to comply with any
provision of this Ordinance or the rules other than those referred to in
sub-section (1) of section 31, the Registrar, may, if he is satisfied, after
giving the person an opportunity of being heard, that the refusal, failure or
contravention was willful, by order, direct that such person shall pay to the Federal
Government by way of penalty such sum not exceeding one hundred thousand rupees
as may be specified in the order and, in the case of a continuing default, a
further sum calculated at a rate not exceeding one thousand rupees for every
day after the issue of such order during which the refusal, failure or
contravention continues.
[(2) Any person aggrieved by an order passed under
sub-section (1) may, within sixty days of such order, prefer an appeal to the
Commission.] [13]
33.
Liability of
director, manager or officer of a company.- (1) Where the person guilty of an offence
referred to in sub-section (1) of section 31 or in section 32 is a company or
other body corporate, every director, manager, or other officer responsible for
the conduct of its affairs shall, unless he proves that the offence was
committed without his knowledge, or that he exercised all diligence to prevent
its commission, be deemed to be guilty of the offence.
(2)
Any sum directed to be paid under section 32 shall be
recoverable as an arrear of land revenue.
(3)
No prosecution for an offence against this Ordinance or
the rules shall be instituted in respect of the same facts on which a penalty
has been imposed under section 32.
34.
Powers of the
Registrar in relation to certain Proceedings.- In any proceedings under section
32, the Registrar shall have the same powers as are vested in a court under the
Code of Civil Procedure, 1908 (Act V of 1908), when trying a suit in respect of
the following matters, namely:-
(a)
enforcing attendance of a person and examining him on
oath or affirmation; and
(b)
compelling the discovery and production of documents.
35.
Application of
fine.- The Tribunal imposing any
fine under this Ordinance may direct that the whole or any part thereof shall
be applied in or towards-
(i)
payment of costs of the proceedings;
(ii)
payment to an aggrieved party of compensation for any
loss caused by the offence;
(iii)
payment of compensation for any loss mentioned in
sub-section (2) of section 31.
36.
Enforcement of
provisions of the Ordinance, etc.- (1) If a modaraba company makes default
in complying with any provisions of this Ordinance or a direction made or given
under this Ordinance and fails to make good the default within thirty days of
the service of a notice to the modaraba company requiring it to do so, the
Tribunal may, on an application made to the Tribunal by the Registrar, make an
order directing the modaraba company and any director or officer thereof to
make good the default within such period as may be specified in the order.
(2) Nothing in this section shall be deemed to prejudice the
operation of any provision of this Ordinance providing for the imposition of
penalties on the modaraba company or its directors and officers in respect of
any such default as aforesaid.
37.
Exemption from
tax.- The income of a modaraba shall be exempt from tax under the Income
Tax Ordinance, 1979 (XXXI of 1979), if not less than ninety per cent of its
profits in a year is distributed to the holders of the Modaraba Certificates.
38.
Power of Federal
Government to exempt, etc.- The Federal Government may, by notification in
the official Gazette, exempt from the requirements of sub-sections (1) and (3)
of section 17 a company or a body corporate formed under any law and owned or
controlled by the Federal Government or a Provincial Government, whether
directly or through a company or corporation set up by such Government.
39.
Delegation of
Powers.- The Registrar may, by notification in the official Gazette,
delegate, subject to such limitations, restrictions or conditions, if any, as
he may, from time to time specify, such of his powers and functions under this
Ordinance as he may deem fit to any officer subordinate to him.
40.
Indemnity.- No
suit, prosecution or other legal proceeding shall lie against the Federal
Government or the Registrar or any other officer for anything which is in good
faith done or intended to be done under this Ordinance or any rules.
41.
Power to make
rules. -(1) The Federal Government may, by notification in the official
Gazette, make rules for carrying out the purpose of this Ordinance.
(2) In particular and without prejudice to the generality of
the foregoing power, such rules may include-
(i)
the duties and functions of the Registrar;
(ii)
terms and conditions of a Tribunal;
(iii)
procedure relating to a Tribunal;
(iv)
composition, terms and conditions of the Religious
Board;
(v)
procedure relating to the Religious Board;
(vi)
form, contents and other requirements of a prospectus;
(vii)
issue and allotment of Modaraba Certificates;
(viii)
maintenance of modaraba accounts and funds;
(ix)
form of balance sheet and profit and loss account;
(x)
audit and auditor's certificate;
(xi)
annual and periodical accounts and reports;
(xii)
inspection of record and supply of copies of documents;
(xiii)
matters relating to winding up;
(xiv)
matters and procedure relating to enquiries;
(xv)
charging and determination of fees payable under this
Ordinance; and
(xvi)
such other matters as are to be or may be prescribed.
[41A. Power to make regulations.-
(1) The Commission may, by notification in the official Gazette, make such
regulations as may be necessary to carry out the purposes of this Ordinance:
Provided that the power to
make regulations conferred by this section shall be subject to the condition of
previous publication and before making any regulations the draft thereof shall
be published in the manner considered most appropriate by the Commission for
eliciting public opinion thereon within a period of not less than fourteen days
from the date of publication.
(2) Any regulation made under
sub-section (1) may provide that a contravention thereof shall be punishable
with a fine which may extend to one hundred thousand rupees and, where the
contravention is a continuing one, with a further fine which may extend to one
thousand rupees for every day after the first during which such contravention
continues.
41B. Power to issue directives, circulars, guidelines, etc.—The
Commission may issue such directives, circulars, codes, guidelines or
notifications as are necessary to carry out the purposes of this Ordinance and
the rules and regulations made thereunder.][14]
42.
Act to override
other laws. -The provisions of this Ordinance shall have effect
notwithstanding anything contained in the Companies Act, 1913 (VII of 1913), or
any other law for the time being in force.
43.
Removal of
difficulties. -If any difficulty arises in giving effect to any provision
of this Ordinance, the Federal Government may make such order, not inconsistent
with the provisions of this Ordinance, as may appear to it to be necessary for
the purpose of removing the difficulty.
General,
M.
ZIA-UL-HAQ,
President
[1]
Clause (a) inserted through Finance Act, 1999.
[3]
Substituted for “five million” through Modarba Companies and Modarba
(Floatation and Control) (Second Amendment) Act, 1985.
[4] Inserted through The
Modaraba Companies and Modaraba (Floatation and Control) (Amendment) Act, 2012
[5]
Substituted for “Federal Government” through Finance Act, 1999.
[6]
Substituted for “Federal Government” through Finance Act, 1999.
[7]
Sub-section (5) inserted through Modarba Companies and Modarba (Floatation and
Control) (Amendment) Act, 1985.
[9] Substituted for “Federal
Government” through Finance Act, 1999.
[10]
Substituted for “Federal Government” through Finance Act, 1999.
[11]
Sub-section (3) inserted through Modarba Companies and Modarba (Floatation and
Control) (Amendment) Act, 1985.
[12]
Section 32 re-numbered as sub-section (1) through Finance Act, 1999.
[14]
Inserted through The Modaraba Companies and Modaraba (Floatation and Control)
(Amendment) Act, 2012
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