1999 PLP 3260 (MLD)

(ii) Industrial Development Bank of Pakistan v. Modern Poultry Farm Limited (1990 C L C 1030). (iii) P I C I C v. M/s. Indus Steel Pipe Ltd. (1993 M L D 94) (iv) Messrs Habib Bank Limited v. Messrs Central Cotton Mills Ltd., (1998 C L C 474) (v) Investment Corporation of Pakistan v. Messrs Glorex Textile Limited (1998 C L C 731)

5. In order to defeat the above winding-up petition, Mr. Arshad Ali has raised the following objections:

(a) The petitioner has no authority to file and prosecute the instant proceedings for winding-up. (b) Petition is misconceived as it has been filed against a private company when in fact respondent is public limited company. (c) That the proceedings are barred by laches as the same was filed after a lapse of 12 years. (d) That the claim is time-barred (e) 'That the claim of petitioner is doubtful and is not bona fide Learned counsel for the respondent has placed reliance on the following cases:-.- (1) Skantilal Khushaldas & Bros. (Pvt.) Ltd. v. Sint. Chandanbala and another (1993) 77 Comp. Cas. 253). (II) Diwan Chand Kapoor v. New Rialto Cinema (P.) Ltd. (1986) 60 Comp. Cas. 276). (III) G. Loganayaki v. Moolangudi Chit Funds (Private) Ltd. (1979) 49 Comp. Cas. 644). (IV) Industrial Development Bank of Pakistan v. Sattar & Sons Ltd. (1969 C. L. C 596). (V) In re: Rishi Enterprises (1992) 73 Comp. Cas. 271). (VI) P. Satyarazu v. Guntur Cotton Jute and Paper Mills Co., Ltd; (A. I. R 1925 Madras 199). (VII) P.R. Doraiswami Ayyar v. Coimbatore Easwara Sahaya Nidhi A. I. R 1929 Madras 265). (VIII) In re: Sulekha Works Ltd. (A.I.R 1965 Calcutta 98)

6. First, I would like to deal with the last objection of Mr. Arshad Tayyab Ali that the claim of the petitioner is neither admitted nor a bona fide due claim as this question goes to the root of the controversy involved in this winding-up proceedings. It is settled law that a Creditor, who wants winding up of a company indebted to it, is required to show that a certain amount of money is presently due and payable against such company and that such company is unable to pay its debts only then the burden shifts upon the company who is defending winding-up petition to raise legitimate and bona fide issue disputing .the liability to pay. Such winding-up action which lacks bona fides and is intended to pressurize the company to pay the debt cannot succeed. If any reference is needed see Pakistan v. Standard Insurance Company Ltd; (1986 Mi-D 2762) Mullah Abdullah Bhai and 9 others v. Saria Rope Mills Ltd., (PLD 1971 Karachi 597) Trade and Industry Publication Ltd., (supra) Messrs Adage Advertisements Lahore v. Messrs Sheezan. International Limited. (1970 SCMR 184); Hashmi Can Company Limited v. K. K. & Company Private Limited (1992 SCMR 1006). With this view in mind, I would like to discuss the claim of the petitioner. It is an admitted fact that B C C I (SA) is at present under Liquidation and that the B C C I (Overseas Limited) which has its branches at Karachi stood guarantee on behalf of the Respondent. This B C C I SA (O.S) was amalgamated with the Habib Credit & Exchange Bank Limited, as a result of amalgamation policy framed under section 47 of the Banking Companies Ordinance, 1962. The petitioner was not able to file the original Bank Guarantee bearing No. 388 of 1982 dated 4th July, 1982 in order to show what was the liability of the Respondent/D. F. S, and the B C C I (O. S). Working of all the three banks and other subsidiary of B C C I was considered in detail by me in the case Asrar Hassan v. Habib Bank Limited and 4 others (PLD 1998 Karachi 167) where on the working of B C C I it was observed as follows:-- "However, the factual position that Mr. S. A Sarwana asserts is not so clear from the material that has so far come on record. The liquidation of B C C I (OS) and B C C I (SA) was ordered by the competent Courts on findings that their conduct was not overboard. Even in the present case, if it is true as Mr. S. A. Sarwana contends that the plaintiff was serving abroad, then the fact that the loans made to the plaintiff were disbursed through B C C I (Pakistan). at Karachi and the title documents were retained by B C C I (Pakistan) calls for detailed enquiry as it may well be that the activities of all the B C C I entities were so intertwined that the doctrine of piercing the corporate veil may be attracted. (For reference see the case of Union Council, Ali Wahan, Sukkur v. Associated Cement (Pvt) Ltd. (1993 SCMR 468).

7. From the documents filed by the petitioner, the respondent does not appear to be indebted to any other company. Statement of accounts shows that the respondents was earning profit during the period ended on 30th June, 1997. On 21-4-1998, the Official Assignee was appointed Commissioner to inspect the warehouse and show room of the respondent D. F. S. who has filed his report which indicates that on 29-4-1998 when the' Official Assignee visited the warehouse/show room the Bank Balance of the respondent with the different Banks was US $ 4,22,415.45 and rupees 2,92,95,180.43. In addition to that it was disclosed to the Official Assignee that the Respondent Company has two immovable properties at Islamabad measuring 7200 square yards. Details of goods alongwith its value have also been filed. According to these inventories the value of goods lying at the Display Centre at Karachi was assessed Rs. 1,29,25,449.01. The goods lying at delivery centre as per Annexure-B to the report were valued at Rs. 1,19,64,329.54. Official Assignee has also filed statement of Bank balances of the respondent/D. F. S. None of these seven Bar, as mentioned in the said statement have any account of respondent's company running in debit. All banks have shown credit outstanding. It is admitted by the Petitioner that the credit facility was extended in the year 1985; but when the last transaction took place, the entire petition is silent on this point. Again, it is admitted that there was w transaction between the petitioner and respondent after 1991, when the Bank was put under liquidation. B C C I (O.S) (now Habib Credit & Exchange Bank Limited) had also executed guarantee on behalf of the Respondent/D. F. S, but no action has been initiated by the petitioner for recovery of any claim, perhaps, due to the fact that there was a detailed agreement between the Liquidators on the one hand and the officials of the State Bank of Pakistan, which had resulted in merger of B C C I Karachi into Habih Credit & Exchange Bank. Mr. Arshad Tayyab Ali has referred to the contents of counter-affidavit where B C C I (SA) through its Liquidators have agreed for the full and final settlement of its claim with the B C C I (O.S). The transaction pertaining to the respondent/D. F. S was never made part of such agreement The petitioner is not aware of the exact amount outstanding against the respondent: its claim is based on the figures as incorporated in the statement of the account of the Respondent. They neither filed the original copies of these each and every transaction which created liability to pay on the D. F. S nor the original or the Bank guarantees. All these facts does not make it a good case for winding up the respondent/D. F. S as the amount claimed by the petitioner cannot be termed "amount due". The petitioner may have a good case for bringing a civil suit for recovery of money, but while seeking winding up of respondent/D. F. S on the above claim, it will not be justified when in their own (Annexure-A) it is admitted that the respondent company comprises of valuable organizations namely the Pakistan International Airlines having of shares; Central Board of Revenue (Custom Welfare Fund) having 22-1 /2 shares. while Overseas Workers Foundation have a total of 22-1/2% Shares. In such background, it cannot be said that respondent /D. F. S is likely to go bankrupt and is unable to pay its debts, In my considered view, the objection raised by the respondent shows that there exists bona fide dispute as to the claim and its quantum.

8. As a result of above discussion, it is not necessary to consider the other legal objection, such as Power of Attorney or question of Limitation to the claim of petitioner, since I am satisfied that for the present proceedings, the claim of the petitioner is not bona fide. This petition merits dismissal Messrs. Metito Arabia Industries Limited v. Messrs Gammon (Pakistan) Limited (1997 C L C 230), Pakistan Industries Credit & Investment Corporation Limited v. Bawani Industries Limited (PLD 1998 Karachi 45) and Investment Corporation of Pakistan v. Messrs Noor Silk Mills Limited (1998 C L C 543). In my considered view, it would neither be just, nor fair and equitable to direct winding up of the respondent/D. F. S. Accordingly, this petition stands dismissed. Consequently, Official Assignee's Report is taken on record and C. M. A. 523 of 1998 stands dismissed in view of the above order. Q.M.H./M.AK/B-38/K Petition dismissed.