IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(STATUTORY ORIGINAL JURISDICTION)

COMPANY MATTER NO.

OF 2015

IN THE MATTER OF:

An application under

Section 81(2) read with

Section 85(3) of the

Companies Act, 1994 for

condonation of delay and

extension of time for

holding 7th Annual General

Meeting of United Power

Generation and Distribution

Company Limited.

AND

IN THE MATTER OF:

Mr. Moinuddin Hasan Rashid,

Managing Director of United

Power and Distribution

Company Limited, member

share-holder of United

Power Generation and

Distribution Company

Limited.

----------

Petitioner

VERSUS

1. The Registrar,

Joint Stock Companies &

Firms, TCB Bhaban (6th

Floor), 1 Karwan Bazar,

Dhaka – 1215;

2. United Power Generation

and Distribution

Company Limited, House

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No. NW(J)-6, Road No.

51, Gulshan-2, Dhaka,

Bangladesh

-------

Respondents

To,

Mr. Justice Surendra Kumar Sinha, the Hon'ble

Chief Justice of Bangladesh and his companion

Judges of the Supreme Court of Bangladesh.

The humble petition of the

petitioner above-named most

respectfully -

S H E W E T H:

1. That the Petitioner is the Managing Director

and a member shareholder of the Respondent

No. 2, United Power Generation and

Distribution Company Ltd. (the "Company").

The Petitioner satisfies the condition laid

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down in Section 81(2) of the Companies Act

1994 and is eligible to make this

application.

2. That the Petitioner has authorized its

officer, Mr.Md. Mahfuzul Haque,FCMA to file

this Application and swear Affidavit before

this Honourable Court.

The photocopy of the Letter of

Authority is annexed herewith

and marked as Annexure-"A".

3. That the Company was initially incorporated

as a private limited company under the name

of Malancha Holdings Ltd. on 15 January

2007, bearing Incorporation No. C-

65291(2783)/07. The name of the Company was

then changed from Malancha Holdings Ltd. to

its present name on 01 October 2009, after

complying with all formalities of the

Registrar of Joint Stock Companies & Firms

(the "RJSC") and after taking necessary

approval from the board of directors.

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The photocopy of the Name

Change Certificate from the

RJSC dated 01 October 2009 is

annexed herewith and marked as

Annexure-"B".

4. The Company was later converted to a public

company limited by shares on 22 December

2010 under the Companies Act, 1994, after

complying with all formalities of the RJSC.

The certified copy of special

resolution of EGM from the RJSC

dated 22 December 2010 is

annexed herewith and marked as

Annexure-"C".

5. That the objectives for which the Company is

established are, inter alia, the following:

i) To construct, own and manage any

infrastructure projects and/or service

oriented industry in Bangladesh or

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abroad (Clause 49 of the Memorandum of

Association).

ii) To carry on all or any of the business

of Generation, transmission,

distribution, buy and sell of power and

electricity. (Clause 51 of the

Memorandum of Association)

Photocopy of the Memorandum and

Articles of Association of the

Company, certified by the RJSC,

are annexed hereto and marked

as ANNEXURE-"D".

6. That as per Section 81(1) of the Companies

Act 1994, the Annual General Meeting of any

company should be held in each year of the

Gregorian calendar and that the time for

holding the Annual General Meeting should

not be more than 15 (fifteen) months between

the holding of the Annual General Meetings.

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7. That as per the Companies Act 1994, the 6th

Annual General Meeting of the Company was

duly held on 28 February 2013.

Photocopy of the Notice of the

6th Annual General Meeting and

Minutes of the same are annexed

hereto and marked as

ANNEXURE-"E" and "E-1".

8. That, as per Section 81(1) of the Companies

Act 1994, the 7th Annual General Meeting for

year 2014 needed to be held by 28 February

2014 and in any case not later than 28 May

2014, i.e, not more than 15 (fifteen) months

from 28 February 2013. However, the Company

could not hold the same within the said time

because it was impracticable for it to do so

in the circumstances.

9. That the Company is, currently, in the

process of an Initial Public Offering (IPO)

under book building method and getting

listed in the Dhaka Stock Exchange and the

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Chittagong Stock Exchange. As a result, the

Company was engaged in the process of

preparing and finalizing the book-building

process in order to determine the share

price at which the Company's shares will be

released in the stock market. The book-

building process, which is the process to

determine the price of a company's shares,

is a lengthy and extensive process and

requires the participation of the Company

and its officers at all stages.

10. That the book-building process in relation

to the Company is set out below:

10.1 After sending invitation to the

Institutional Investors (the

"Investors"), along with the

Information Memorandum ("IM"), on 17

April 2013, the Company conducted a

road show for price discovery under

the book-building method.

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Photocopy of the Invitation

Letter for the Road Show is

annexed hereto and marked as

ANNEXURE-"F".

10.2 At this event, an indicative price by

the Investors were fixed on the basis

of information provided up to

31.12.2013 in the IM. Accordingly, the

Company, on 29 April 2013, made an

application along with a draft

prospectus to the Bangladesh

Securities and Exchange Commission

(the "Commission") for IPO under the

book-building method.

Photocopy of the Letter to the

Commission for IPO from the

Company is annexed hereto and

marked as ANNEXURE-"G".

10.3 On 08 September 2013, after reviewing

the draft prospectus along with all

supporting documents, the Commission

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issued the first Deficiency Letter to

the Company asking it to take certain

steps as highlighted therein and also

requested further information from the

Company. These steps needed to be

taken before the Company could go for

the IPO.

Photocopy of the Deficiency

Letter dated 08 September 2013

from the Commission to the

Company is annexed hereto and

marked as ANNEXURE-"H".

10.4 On 06 October 2013, the Company

replied to and fulfilled the

deficiencies/requirements raised by

the Commission.

Photocopy of the Letter from

the Company dated 06 October

2013 is annexed hereto and

marked as ANNEXURE-"I".

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10.5 Finally, on 16 February 2014, the

Commission gave its consent based on

the all relevant documents submitted

by the Company to commence electronic

bidding by the eligible Investors for

price discovery of the ordinary shares

of the Company.

Photocopy of the Consent Letter

by the Commission dated 16

February 2014 is annexed hereto

and marked as ANNEXURE-"J".

10.6 On 18 February 2014, the Company

requested to Dhaka Stock Exchange

(DSE) to fix the date of electronic

bidding and, accordingly, DSE arranged

and fixed the date for electronic

bidding on 18 May 2014 to 20 May 2014.

Photocopy of the Letter from

the Company dated 18 February

2014 to DSE is annexed hereto

and marked as ANNEXURE-"K".

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10.7 On 26 May 2014, the Company was

pleased to inform the Commission that

40% of the IPO offer had been

subscribed by the Eligible

Institutional Investors (EIIs) and as

such the price discovery process of

shares of the Company through uniform

and integrated book-building system

had been successfully completed.

Accordingly, the Company sought a

final approval of the Prospectus from

the Commission to offload remaining

60% of IPO issue being the public

offer.

Photocopy of the Letter from

the Company dated 26 May 2014

to the Commission is annexed

hereto and marked as

ANNEXURE-"L".

10.8 On 08 July 2014, to the surprise of

the Company, the Commission further

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reviewed the draft Prospectus and

issued a second Deficiency Letter to

the Company.

Photocopy of the Deficiency

Letter dated 08 July 2014 from

the Commission to the Company

is annexed hereto and marked as

ANNEXURE-"M".

10.9 On 06 August 2014, the Company replied

to and fulfilled the

deficiencies/requirements raised by

the Commission.

Photocopy of the Letter from

the Company dated 06 August

2014 is annexed hereto and

marked as ANNEXURE-"N".

10.10 Finally, on 09 December 2014, the

Commission gave its consent to the

Company for raising capital through

the IPO.

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Photocopy of the Consent Letter

dated 09 December 2014 for

raising of capital through IPO

is annexed hereto and marked as

ANNEXURE-"O".

10.11 As per clause 30 of Part-A of the

said consent letter the Company is

restricted to declared any

benefit/dividend based on the Financial

Statements for the year December 31, 2013

before listing of its securities with

stock exchange(s).

10.12 As per the said consent letter of

the Commission and the timelines set

therein, the Company started collecting

the subscription money from the Investors

in January 2015 and the Company is likely

to go for IPO soon thereafter.

11. That it is clear from the above that there

were no latches or wilful negligence on part

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of the Company in holding the 7th Annual

General Meeting of the Company and that any

delay was totally unintentional and

unavoidable in the circumstances.

12. That it was impracticable to hold the 7th

Annual General Meeting of the Company within

29 May 2014 as the Company was engrossed in

the book-building process as highlighted

above. In the case of Jalaluddin Jafar Ali Husein v.

Tahmid Ahmed 6 MLR (HC) 2001, it was held:

"14. It is clear from the provisions of sections 81(2) and

85(3) that this court is not only competent to direct

calling of annual general meetings of a company

which could not have been held in the past for some

faults of the company or due to some impracticability

to call such meetings by condoning the delay, but can

also issue such ancillary or consequential directions

which it thinks expedient in relation to the calling,

holding and conducting such meetings. It is needless

to mention that if it is made to appear to this Court

that the annual general meeting or meetings were not

held in accordance with the directions made by this

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Court under sections 81(2) and 85(3) this Court shall

have competence to order for holding such meeting or

meetings afresh." (Emphasis added)

13. That it is submitted that this Hon'ble Court

has wide discretion to condone the delay in

holding the Annual General Meeting if the

same has not been held due to some fault of

the Company or due to some impracticability.

14. That, furthermore, it is submitted, that

impracticability of calling a meeting may

not be equated with impossibility of calling

such a meeting. In the case of Bangladesh Bank

v Sk. Abul Hossain & others 12 MLR (AD) 2007, it

was held by the Appellate Division that:

"4. … in the case of Ghyasuddin Ahmed vs. Faruque 38

DLR (AD) 296 it has been held that the powers

conferred under sections 79(3) read with section 76(3)

of the Companies Act 1913, which correspond to

sections 85(3) and 81(2) of the Companies Act, 1994,

the powers to call such a meeting are exercisable by

the High Court Division when the court is of the view

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that it is impracticable to call a meeting and that

impracticability of calling a meeting may not be

equated with impossibility of calling such a meeting …

and in that view of the matter “impracticability” relates

to the internal mechanism of the Company and not to

any external influence brought about by legally

sanctioned conditions imposed by regulatory body

constituted under the law …." (Emphasis added)

15. That the shareholders of the Company are

ready to hold the 7th Annual General Meeting

of the Company within the stipulated time

fixed by this Hon'ble Court.

16. That the Company is ready and willing to

hold the 7th Annual General Meeting. But

unless the delay caused is condoned and the

Company is directed to call the 7th Annual

General Meeting within such time as may be

fixed by the Hon'ble Court, the Company

shall suffer grave prejudice.

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17. That it is respectfully submitted that it

would be convenient for the Company and its

shareholders to hold the 7th Annual General

Meeting within 4 (four) months from the date

of drawing up of the order of this Hon'ble

Court.

18. That it is further respectfully submitted

that, for ends of justice and proper

functioning of the Company, the Company may

be allowed to hold its 7th Annual General

Meeting which was scheduled to be held

within 29 May 2014.

19. That this application is bonafide and that

none shall suffer any loss or prejudice if

the delay caused in holding the 7th Annual

General Meeting of the Company is condoned

and the Company is directed to hold the 7th

Annual General Meeting at any day or any

time fixed by this Hon'ble Court.

20. That it is submitted that without the

condonation of delay and extension of time

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by this Hon'ble Court, the Company cannot

hold the 7th Annual General Meeting for the

year 2014.

21. That it is submitted that Company will

suffer irreparable loss and damage unless

the delay for holding the 7th Annual General

Meeting is condoned by this Hon'ble Court

and, for the ends of justice, it is prayed

that this Hon'ble Court condones the delay

for holding the 7th Annual General Meeting.

22. That the Petitioner seeks permission from

this Honourable Court to swear affidavit by

the authorised person along with photocopies

of annexures.

Wherefore it is most humbly prayed

that your Lordships may graciously

be pleased to:

A. Admit this Petition for

hearing;

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B. Condone the delay to hold

the 7th Annual General

Meeting of the Company

within 4 (four) months of

the date of drawing up of

the Order;

C. Costs of this petition to

come out of the assets of

the Company;

D. And/or pass such other or

further order or orders as

your Lordships may deem fit

and proper in the facts and

circumstances of the case.

And for this act of kindness the Petitioner as in

duty bound shall ever pray.

AFFIDAVIT

I, _________________, Father's Name

__________________, Mother's Name

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__________________, Designation _____________,

House No. 10, Road No. 55, Gulshan-2, Dhaka, aged

about ______ years, by faith _________, by

occupation private service, by nationality

Bangladeshi by birth, National ID No.

_____________ do hereby solemnly affirm and say

as follows:

1. That I am the authorised person to represent

the Petitioner in this Company Matter. I am

fully conversant with the facts and

circumstances of this Company Matter and am

authorised to swear this Affidavit.

2. That the Petitioner earlier did not make any

such application to the court to the same

effect or with same object or with similar

object

3. That the factual statements made herein are

true to my knowledge and belief and the rest

are submissions of the learned advocate.

Prepared in my office

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(Mamun Chowdhury)

Advocate

Solemnly affirmed by

the said deponent on

this the … day of

February, 2015 at the

Supreme Court

Building premises,

Dhaka at

……….a.m./p.m.

Before me.

(_________________

___)

Deponent

The deponent is

known to me and

identified by me

before the

Commissioner of

Affidavit.

(Mamun Chowdhury)

Advoc

ate

COMMISSIONER OF AFFIDAVIT

SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

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IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

COMPANY MATTER NO.

OF 2015

IN THE MATTER OF:

An application under

Section 81(2) read with

Section 85(3) of the

Companies Act, 1994 for

condonation of delay and

extension of time for

holding the 7th Annual

General Meetings of United

Power Generation &

Distribution Ltd.

AND

IN THE MATTER OF:

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Mr. Moinuddin Hasan Rashid

----------

Petitioner

VERSUS

The Registrar of Joint

Stock Companies & Firms and

others

-------

Respondents

Through:

1. Mr. Md. Sameer Sattar,

Advocate

2. Mamun Chowdhury, Advocate

Advocates for the Petitioner

Sattar&Co.

Unit: A3, House: 14, Road: 13C,

Banani, Dhaka-1213

Phone: 8836629

Email: ssattar@sattarandco.com

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