1999 PLP 1847 (SCMR)

CH.. MUHAMMAD ARIV, J.

Challenge in this Petition under Article 185 of the Constitution of Islamic Republic of. Pakistan, 1973 has been made by the petitioners to order dated 17-9-1998 whereby a learned Judge in Chambers of the Lahore High Court, Rawalpindi Bench dismissed Petitioners' C, M. No. 1466/C of 1998 in Civil Revision No. 356/1) of 1998. CM. No. 995/C of 1998 was filed by the petitioners alongside Civil Revision No.356/D/1998. The revision was admitted to regular hearing on 24-7-1998 and, on the same date, execution of the impugned decrees was suspended in C.M. No.995/C-98 subject to notice to the other side for 13-8-1998 and subject to the petitioners depositing the outstanding amount of compensation for the use of house on the basis of agreed rate of rental i.e. Rs. 17,000 per month by or before 10-8-1998. The matter, in relation to C.M. No.995/C of 1998, came up for hearing on 13-8-1998 and the same was directed to be placed before "any other available Bench during the next week." This happened on account of",.. aggressive address of the learned counsel for the respondents." Although such directions were preceded by an observation that the learned Judge, hearing the matter on that day was inclined to modify the order of deposit of cash amount into .furnishing security in lieu thereof with the direction for fixation of the main revision petition in the third week of September, 1998 C.M. No.995/C of 1998 was dismissed on 28-8-1998.

2. C.M. No.1466/C of 1998, seeking modification of the order dated 28-8-1998, was taken up by the High Court and after observing that the direction issued by the High Court to the petitioners to deposit the decretal amount was not complied with and that otherside argued for dismissal of petitioners' main Civil Revision also for the said reason, it was observed that on account of non-deposit of decretal amount by the petitioners, after obtaining extension of time to do the needful, before the Additional Registrar of the High Court.within a period of 30 days, they are not entitled to any indulgence. Towards the end of para.3 of the impugned judgment, the learned Judge in Chambers made the following observations: ......Keeping in view the contumacious conduct of the applicants, they are not entitled to any indulgence. No legal justification has been shown to modify the order earlier passed directing them to deposit the decretal amount with the Additional Registrar of this Court. The applicants are in occupation of the valuable property belonging to the respondents, making use of the same but are not prepared to pay the rent therefor. There is, thus, hardly any justification for showing them any indulgence."

3. Hence, this petition.

4. Mr. Maqbool Elahi Malik, Senior Advocate Supreme Court has simply objected to the impugned order dated 17-9-1998 and contended that the petitioner are willing to comply with the directions of the High Court as also by this Court in the matter (Chamber order dated 29-9-1998). He was repeatedly asked to come out with the requisite information regarding tender or deposit of the monthly rent calculated on the basis of averments in para.4 of the written statement of petitioners' predecessors-in-title/original tenants but he had no information to convey to the Court, in that regard.

5. Mr. S. Asghar Hussain Sabazwari, Advocate Supreme Court appearing on behalf of the respondents/Caveators, produced for perusal photo copy of order dated 28-8-1998 made by the High Court in the main case as also in C.M. No.995-C of 1998, to contend that the petitioners having failed to comply with even the order in C.M. No.995-C of 1998 are not at all entitled to any indulgence by this Court. The following excerpt from this order is to the point:

Learned counsel for the petitioners on instructions from his clients submits that if 30 days time is granted to the petitioners to deposit the decretal amount in the Court, they shall comply with the order and deposit the decretal amount with the Additional Registrar of this Court. He submits that the amount so deposited with the Additional Registrar of this Court should not be withdrawn by the respondents. It is accordingly made clear that in the event of this civil Revision succeeding, the amount shall be withdrawn by the petitioners and on the contrary, if the Civil Revision is dismissed, the respondents shall be entitled to withdraw the said amount. This C.M. is disposed of. The instant Civil Revision is adjourned to be relisted on 30-9-1998." It appears that the petitioners obtained 30 days to deposit the decretal amount in the Court. This amount was further directed not to be withdrawn by the respondents until the hearing of the Civil Revision and even the final result of the revision petition was to be kept in view for withdrawal of the disputed amount by either party, in the event of its success in the case. We are of the view that the petitioners failed to avail of any one of the chances, coming their was intermittently, to deposit the decretal amount in the High Court. They are themselves to blame for the predicament in which they find themselves today. Moreover, main case is still pending before the High Court and if the petitioners are minded to comply with the directions of the High Court in the matter of deposit of the decretal amount, they may obtain permission of the Court in that regard to save themselves from the adverse effects of their failure, to comply with the directions to make deposit as above, on the result of the main case.

6. Before parting with this order, we may observe that the parties, are one on the question that the rate of rental in this litigation is Rs. 17,000 per month.

7. With the above observations, the instant petition is dismissed and leave refused. H.B.T./F-33/S Petition dismissed. versus Messrs INVESTMENT CORPORATION OF PAKISTAN (ICP) and 5 others

Respondents Civil Appeal No. 1545 of 1996, decided on 15th October, 1998 (On appeal from the judgment dated 9-9-1996 of the High, Court of Sindh, Karachi in J. M. No. 155/95).

Ss,305, 306, 309 & 10

Supreme Court Rules, 1980, O. XII, R. 2

Appeal to Supreme Court

Winding up of company

Company (appellant) had not paid the outstanding amount to Investment Corporation (respondents) to discharge its liability despite respondents' repeated demands and issuance of legal notices to company--,-High Court had rightly held, in circumstances, that -appellant Company had no defence to make against winding-up petition filed by Investment Corporation

Appeal against judgment of High Court ordering winding-up of appellant Company was dismissed subject to observation that in case Company agreed to pay full due amount to respondent (Investment ,Corporation), it would be open to Company to apply for review of judgment of Supreme Court within specified period. Abdur Rahim Kazi, Advocate Supreme Court and Ali Akbar, Advocate -on-Record (absent) for Appellant. Fazle Ghani Khan, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Respondent No. I Date of hearing: 15th October, 1998. JUDGMENT AJMAL MIAN, C.J.

This is an appeal under section 10 of the Companies Ordinance, 1984 (hereinafter referred to as the Ordinance) read with Order XII, Rule 2 of the Supreme court Rules, 1980 (hereinafter referred to as the Rules) against an order dated 9-9-1996 of the learned Company Judge, High Court of Sindh, Karachi passed in J - M. No. 155 of 1995 filed by the respondents under sections 305 and 309 of the Ordinance for winding up of the appellant Company on the ground that despite repeated demands made by the respondents from time to time the appellant had failed and/or neglected to pay the instalments on due dates and, as such, on 14-9-1994 the respondents served a legal notice oft the appellant under section 306 of the Ordinance at its registered address calling upon it to pay to the respondents the outstanding amount as on 14.9-1994 within 30 days from the receipt of the notice, which was allowed by the impugned order. The appellant has, therefore, filed the above appeal under the above provision of the, Ordinance read with relevant rules. In support of the above appeal Mr. Abdur Rahim Kazi, learned counsel for the appellant has vehemently contended that the appellant was not given fair opportunity to defend the aforesaid petition under sections 304 and 309 of the Ordinance. The leaned Company Judge has recorded the following finding against the appellant: "A public notice in respect of institution of this petition was published and a notice 'was issued to the respondent as Well as Joint Registrar, Joint Stock. Companies. While no creditor has come forward to explain his point of view, respondent company's Resident Director Appeared before the Court on 26-3-1996. On his request three adjournments were 'granted in order to engage a counsel and to submit a parawise reply but none has been filed. On his part, Joint Registrar of Companies Karachi has filed his comments stating that their organization has nothing to urge except that the interests of the shareholders and creditors be protected. According to the Joint Registrar, mortgages/charges on account of' Industrial Development Bank of Pakistan, Karachi and Investment Corporation of Pakistan, Karachi have been registered in favour of the creditors to the tune of Rs.56,200,000 and Rs.53,250,662 respectively. We inquired from the learned counsel for the appellant, as to whether the appellant would be ready to deposit the due amount. He was unable to give reply to the above query on, account of want of instruction. However, it may be pointed out that it is an admitted position that the appellant had' not paid any amount whatsoever, towards its liability mentioned in the impugned order till today. The learned Company Judge has rightly pointed out, that the appellant had no defence to the above winding up petition. It is also evident that a public notice was published and the required notice was served on the appellant as well as on the Joint Registrar, Joint Stock Companies. No creditor has responded to the above: notice. However, the appellant's Resident Director appeared before the Court on 26-3-1996 and, thereafter, obtained three adjournments. We do hot find any merit in the above appeal and the same is dismissed, subject to the observation 'that in case 'the appellant agrees to pay the full duel amount to the respondents, it will be open to it to apply for the review of this judgment within a period of four weeks. H.B.T./G-24/S Appeal dismissed.