2005 PLP 747 (CLD)

Decided by his Lordship Nasim Sikandar, J. On 25th May, 2001. In this case the petitioner claimed that his shares were transferred through forged documents and in a clandestine manner and he was shown to have resigned from the directorship of the company. The respondent argued that since the petition contains intricate questions of law and fact, which could not be resolved without recording evidence from both sides, it was not possible to resolve this issue it, summary proceedings under section 9 of the Companies Ordinance. His Lordship referred to a number of decisions relied upon by the respondent including the following:- Khurshid Ahmed Khan v. Pak Cycle Manufacturing Co. Ltd. PLD 1987 Lahore 1: powers vested in Court under section 152 has to be exercised in cases where legal title in the applicant was clear, and in a complicated or doubtful case, summary jurisdiction ought not to be exercised. In re: Salauddin Khan v. Al-Mansoor Ltd. and 2 others PLD 1987 Lahore 569: petitioner having claimed fraud, the application could not be entertained under section

152. In re: Akbar Ali Sharif v. Syed Jamaluddin 1991 MLD 203: if a case is one of difficulty and complication, it should more appropriately be decided in a regular trial; summary procedures are not intended for settling controversies under several heads necessitating a regular trial. And at page 527 in paragraphs 11 and 12 concluded as follows:--

11. It will be noted that the case of the present petitioner is not free from some difficulties. He seeks the restoration of his name in the register of members of the company after resolution of his claim that a fraud was played upon him. As said above, such-like controversy can only be resolved after hearing the parties and permitting them to adduce evidence.

12. The allegations of commission of fraud and fabrication of documents made in the petition cannot be resolved without framing of a issue and recording evidence. That exercise is not germane to summary proceedings under section 9 of the Companies Ordinance, 1984. The petitioner is advised to approach a Civil Court of competent jurisdiction to get the issues determined. Thereafter in case of favourable judgment he can always approach the High Court again under section 152 of the Ordinance with a similar prayer for rectification of the register of the company. (d) 1991 MLD 203 (Karachi) [at page 207] Akbar Ali Sharif v. Syed Jamaluddin and 2 others. Decided by his Lordship Syed Haider Ali Pirzada, J. on 12 August, 1990. In this case the petitioner sought rectification of the register under section 152 of the Companies Ordinance and the respondent alleged that the petitioner had sold the shares in question and had received full consideration for such shares. The respondent also argued that the petition was not maintainable as the summary procedure could only be followed in non-controversial matters. At page, 207 the Court held:-- It is settled legal position that when serious disputes are involved, proper forum for their adjudication is a Civil Court. The superior Courts have expressed the view that the summary remedy under section 152 of the Ordinance is not available to the litigant as of right without the Court having direction to refuse it. The superior Courts have also expressed the view that if the case be one of difficultly and complication, it should more appropriately be decided at a regular trial and that this provision is not intended for settling controversies under several refuse it The superior Courts have also expressed the view that if the case be one of difficulty and complication, it should more appropriately be decided at a regular trial and that this provision is not intended for settling controversies under several heads necessitating a regular investigation. Having regard to the nature W the controversy and comparatively simpler facts of this case, it is a case which can be suitably disposed of by this Court under section 152 of the Ordinance. In determining whether judicial discretion be expressed by the Court for the purposes of directing or refusing rectification register of members, depends on the facts of each particular case. I do not find any similarity between the comparatively simple matters in controversy in this case and these cases where serious disputes are involved. I do not find this to be a case in which I should have abstained from proceeding under section 152 of the Ordinance. The contention of Mr. Iqbal Ebrahim as to the non-maintainability of these proceedings is devoid of force and this contention is, therefore, rejected. The Court concluded that the allegation of sale and transfer of shares made by the respondent was not supported by the documents submitted by the respondent and that in fact the respondent had failed to produce the share transfer deeds through which the alleged transfer of shares took place. At page 209 his Lordship concluded that:-- I entertain no doubt in my mind that this relief contemplated by section 152 of the Ordinance is eminently suitable in the facts of this case; when the name of a person who is a member of the company has been struck off, the effect is the same as if his name had never been entered. Striking out of his name from the register thus causes his name to be omitted from it, and against such an omission the section provides a remedy. There is ample authority for the proposition that a colourable transaction, whereby shares of a genuine owner are transferred in consequence of a fraud or forgery cannot be allowed to stand. (e) 1988 CLC 1541 (Karachi) [at pages 1542, 1544, 1545, 1546) Zakir Latif Ansari and another v. Pakistan Industrial Promoters Ltd. Decided by his Lordship Saeeduzzaman Siddiqui, J. on 28th April, 1988. In this case the petition was filed by two share holders of the company with the prayer that the respondents may be directed to rectify the share register of respondent No.1 by incorporating 1,45,210 shares therein allegedly held. The ratio decidendi laid down in above-cited cases seems to be that the jurisdiction of the Company Judge in proceedings for rectification of share register, being in the nature of a summary jurisdiction, it should be exercised only in cases which do not involve disputed and complicated question of title between the parties. It is further laid down in these cases that where such disputed and complicated questions arise in rectification proceedings, the parties may be directed to seek decision on such disputed points in a Civil Court. His Lordship after referring to provisions of section 152 of the Companies Ordinance, held at pages 1545 and 1546 as follows:-- No doubt subsection (3) of section 152 of the Companies Ordinance, 1984 confers discretion on the Company Court to decide any question relating to the title of any person who is party to -the application to have his name entered or omitted from the register whether the question arises between members or debenture-holders or alleged members or debenture-holders or between members or alleged members or debenture-holders or alleged debenture-holders, on the one hand and the company on the other hand, and also decide generally any other question which is necessary and expedient for decision of rectification of the register. There is, however, a long line of decisions both pre partition and post-partition wherein the Courts both in India and Pakistan consistently took the view that the proceedings for rectification of share register is in the nature of a summary procedure and, therefore, such jurisdiction will be exercised by the Company Judge in a case where facts are simple and undisputed and did not involve decision on intricate and disputed question of title between the parties in which case the parties may be left to settle their dispute in appropriate civil proceedings. It is also significant that under the new Companies Ordinance, 1984, section 9 is introduced for the first time. No such provision either existed in the old Companies Act, 1913 or in the Indian or English law applicable in this regard. A careful examination of section 9 of the Companies Ordinance, 1984 will show that the intention of the legislature in introducing this new provision in the Ordinance is to provide a very expeditious and summary disposal of petition/application filed under the provisions of the Ordinance. This leads further support to the conclusion that intricate and complicated questions of title between the parties could not appropriately be subject-matter of decision in a petition under section 152 of the Companies Ordinance I think that the contention of the learned counsel for the respondent No.3 appears to be correct as keeping of the proceedings for rectification alive while directing the parties to have recourse to a Civil Court to determine the question of title first, may in certain cases produce detrimental result on the working of a company. I accordingly dismiss the petition under section 152 of the Companies Ordinance, 1984 but leave it open to the parties to approach appropriate Civil Court for determination of their respective rights in this regard as claimed by them. The dismissal of this petition will be no bar to the filing of another petition under section 152 of the Companies Act after the decision of the dispute finally by the Civil Court. (f) Salahuddin Khan v. Al-Mansoor Limited PLD 1987 Lahore 569 [at pages 570, 572 and 5731. Decided by his Lordship Khalil -ur-Rehman Khan, J. on 21st July, 1987. After referring to the various proceedings filed by the petitioner and the present status of those proceedings, his Lordship concluded at pages 572 and 573 in paragraphs 8 and 9 as follows:-- Thus the questions whether the letter dated 1-4-1985 was issued and signed by Syed Jamat Ali Shah respondent and if so, whether he was authorized by the respondent-Company to issue the same, require to be determined. This will necessarily entail holding of detailed inquiry and recording of evidence in respect of the disputed factual assertions including the one that due to persuasion of common friends and relatives the respondent has promised to restore to the petitioner the disputed shares as well as the office of directorship. These questions cannot be gone into by this Court as the power vesting under section 152 of the Companies Ordinance, 1984 is not to be allowed to be invoked where the resolution of the questions raised require holding of detailed inquiry and going into complex questions of law and fact ..The aforesaid view is to be applied more particularly now in view of the provisions contained in section 9 of the Companies Ordinance, 1984 as subsection (3) of section 9 provides that the Court, in exercise of its jurisdiction shall in all matters before it follow the summary procedure. The proceedings under section 152 of the Companies Ordinance are to be restricted to the correction of error or removal of defects or imperfections of the kind mentioned in the section. Again, if the case be one of difficulties, complexities and complications it should more appropriately be left to be decided at a regular trial as this power is not intended for settling the controversies under several heads necessitating a regular investigation. It may be added that whether judicial discretion should be exercised by the Court for the purpose of directing or refusing the rectification of register or members depends on the facts of each particular case. I am clear in my mind that the instant case does not fall within the ambit of the provisions of section 152 of the Companies Ordinance as for all intends and purposes, specific performance is being sought of the promise made in the letter dated 1-4-1985. (g) Mushtaq Ahmed v. Shaukat Soap Factory 1987 CLC 2079 (Lahore) [at pages 2080, 2081 and 2084) Decided by his Lordship Khalil-ur-Rehman Khan, J. on 6th April 1987. In this case the petitioner sought directions for the issuance of share certificates and rectification of the register by restoring thereto the name of the petitioner. The petitioner also sought an order restraining the respondents from interfering in the performance of his duties and functions as a director of the company. In addition to documentary evidence oral evidence was also led in this case regarding the matter in controversy. His Lordship then concluded at page 2084, paragraph 9, as follows:-- It is apparent that serious questions of law and fact require to be determined in the case. Obviousl3 without holding a detailed inquiry, it will not be appropriate to determine these disputed questions. It has been consistently held by superior Courts that though, power to rectify the Register of Members is very wide yet this jurisdiction being summary is not to be allowed to be invoked for resolution of disputes of complicated nature necessitating a regular trial. It is equally well established that these proceedings are not intended to be used for deciding disputes requiring investigation. In such a situation the parties should be left to have the controversy resolved through a regular suit. In this petition in view of the allegations made it is necessary to decide as to when the petitioners became aware of the transfer of the shares from their names to the contesting respondents. The question of transfer of shares and of limitation requires to be determined in a regular suit. It would not be proper for this Court to decide this question in summary proceedings under section 152 of the Companies Ordinance, 1984. The petitioners' if so advised, may establish their claim in a regular suit before the Civil Court where the parties will be entitled to raise all the pleas available to them under law. (h) Khurshid Ahmad Khan v. Pak Cycle Manufacturing Company Limited PLD 1987 Lahore 1 [at page 4). Decided by his Lordship Khalil- ur-Rehman Khan, J. on 23rd September, 1986. In this case it was held at page 4, paragraph 7 as follows:-- "The power vested in Court under section 152, is to be exercised in cases where legal title in the applicant is clear, as in a complicated or doubtful case, summary jurisdiction ought not to be exercised. This was so held as early as the year 1877 in the matter of the Diamond Rock Boring Company Ltd. (1877) 2 Q.B.D.

463. It is true that this section gives the Judge wide discretion in deciding matters relating to the rectification of Register of Members but that would mean that each and every controversy raised respecting the shares or, rights claimed with regard thereto can be considered and determined by the Court. In a case where sale of shares is not complete, remedy under general law is to be availed of by instituting proper proceedings in the Civil Courts of plenary jurisdiction. The summary proceedings under section 152, Companies Ordinance, 1984, cannot be resorted to when the suit for seeking same relief has become barred by time under the Limitation Act. Again the discretion vesting in the Court will not be exercised in favour of the party guilty of laches. The delay in a given case may give rise to equitable considerations and disentitle a party from seeking a particular relief. In the instant case, sale of shares was not complete. Learned counsel for the petitioners was not in a position to urge that suit for specific performance if now filed, will not be liable to be dismissed as barred by time. The petitioners in the circumstances noted above are not entitled to invoke jurisdiction vesting in this Court under section 152, Companies Ordinances. For the reasons given above, there is no alternative but to dismiss this petition. (xxi) Thus, it will be observed that the Courts in Pakistan have generally adopted the view that where complicated or serious questions of facts or law are involved, the Courts have been inclined to exercise their discretion and have refused the application for rectification of the register under section 152 of the Ordinance. There is only one case, Akbar Ali Sharif v. Syed Jamaluddin 1991 MLD 203, where the Court concluded that the allegations made by the respondent were not substantial and were in fact fraudulent and that as such the case of the petitioner was established and the register was ordered to be rectified. However, at the same time the Court will not exercise its discretionary jurisdiction under section 152 of the Ordinance where the petitioner is in effect attempting to secure some other relief, such as, specific performance of a contract. Such a matter ought to be decided by the Civil Courts. (xxii) However, in Industrial Development Bank of Pakistan v. Sarela Cement Limited Company 1993 CLC 1540 (Quetta) his Lordship Iftikhar Muhammad Chaudhary, J., in a winding up petition has concluded that the summary procedure does not bar the recordal of evidence and the careful consideration of facts while exercising jurisdiction under the Companies Ordinance 1984. In this regard his Lordship, at page 1543 "A", held as follows:-- Under section 9(3) of the Ordinance the Court seized with the matter, has been empowered to follow the summary procedure. No doubt by adopting summary proceedings a lengthy procedure provided under the Civil Procedure Code can only be curtailed. However, to effectively decide the matter Courts are under obligation to carefully apply their judicial mind, so the cases are disposed of by an intelligent judicial act and if need be the point for determination be also noted down in the pecuniar circumstances of the case, evidence be also recorded and thereafter on the basis of material produced in support of contentions the dispute should be resolved. (xxiii) There is no provision in the Indian Act which requires the Company Judge to follow the summary procedure. In regard to the jurisdiction and power to order rectification of registers, the Courts in India have held as follows:-- (a) Ammonia Supplies Corporation Private Ltd. v. Modern Plastic Containers (Pvt.) Ltd. and others (1994) 79 Comp Cases 163 (Delhi FB) [at pages 165, 176, 177 and 1781 Decided by their Lordships Y.K. Sabharwal, R.L. Gupta and J.K. Mehra, JJ. On 11th October, 1993. At page 165 of their Lordships set out the question in issue as follows:-- The short point for determination in this matter is the nature of jurisdiction the company Court exercises under section 155 of the Companies Act, 1956, (for short "the Act"), while dealing with petitions seeking rectification of the register of members. Whether the jurisdiction is of summary nature and can the Company Court decline to entertain a petition which involves complicated and disputed questions of facts requiring extensive evidence, is the main question that is required to be answered by us in this reference. The other question is whether the jurisdiction of the Civil Court to entertain disputes relating to title to shares is barred. Their Lordships after referring to Krishna Sugar Mills AIR 1966 Punj 44; Public Passenger Service Ltd. v. M. A. Khadar (1966) 36 Comp Cas; Harnam Singh v. Bhagwan Singh (1992) 74 Comp Cas 726 (Delhi); Punjab Distilling Industries Ltd. (1973) 43 Comp Cas 189 (Delhi); Public Trustee v. Rajeshwar Tyagi (1973) 43 Comp Cas 371 (Delhi), held at pages 176 and 177 as follows:-- The object of section 155, in our view, is to provide remedy in non-controversial matters or in matters where a quick decision is necessary and can be rendered in order to obviate irreparable injury to a party. Section 155 is ordinarily not intended for settling controversies necessitating a regular investigation and in such cases the Company Court can decline to entertain petitions in exercise of its discretionary power and say that since serious disputes are involved, the proper forum for their adjudication is a civil Court. Section 155(3) only shows that questions relating to title can also be examined by the Company Court but that is also not possible without detailed examination of complicated questions of fact and law, requiring extensive oral and documentary evidence and it cannot be inferred from section 155(3) that the remedy is not summary. It would depend on the facts of each case. It is not necessary in every case where questions relating to title may be involved that there has to be a detailed examination and determination of oral and documentary evidence. The question is not whether the Company Court has no jurisdiction but is can the Court in its discretion decline to exercise it where disputed and complicated questions are involved requiring examination. of extensive oral and documentary evidence. We do not think that a respondent would be able to oust the jurisdiction of the Company Court by a mere assertion in the reply about fraud or forgery or want of consideration. In such a case, the Company Court can and certainly would examine whether the said assertion is being made only with a view to oust the jurisdiction of the Company Court or the assertions are such which would require detailed examination of evidence. In the former case the Company Court would proceed with the adjudication of a petition under section

155. In the latter case, the Company Court would be justified in exercise of its discretion to reject the petition and relegate the parties to a regular civil suit. It has to be borne in mind that the power to rectify the register of members is discretionary and so the power to decide questions relating to title as is apparent from a' bare reading of subsection (3) of section 155 of the Act. We do not agree with the contention that the jurisdiction of wide amplitude would be rendered fruitless and nugatory and the purpose behind introducing section 155 would be defeated, if it is held that the Company Court exercises summary jurisdiction under section 155 of the Act A long line of decision has clinched the issue and in our view the matter is no more res integra and is covered by the decision of the Supreme Court in the case of Public Passenger Service Ltd. (1966) 36 Comp Cas 1 holding that the Court may refuse relief under section 155 in exercise of its discretionary jurisdiction and relegate the parties to a suit where by reason of its complexity or otherwise the matter can be more conveniently decided in a suit. We may also notice two other judgments cited by learned counsel for the petitioner; one of the Kerala High Court in Mathew Michael v. Teekoy Rubbers (India) Ltd. (1983) 54 Com Cas 88 and the other of the Madras High Court in Mrs. E.V. Swaminathan v. K.M.M. A. Industries and Roadways (Pvt.) Ltd. (1993) 76 Comp Cas

1. As both the decisions are primarily based on the judgment of the Gujarat High Court, which has been discussed by us hereinbefore, it is not necessary to again separately deal with these cited decisions. In our view the law has been correctly laid down by this Court in the case of Punjab Distilling Industries Ltd. (1973) 43 Comp Cas 189 (Delhi). The contrary view expressed in Harnam Singh (1992) 74 Comp Cas 726 (Delhi) is not correct. It was thus concluded by their Lordships at page 178:-- (1) The jurisdiction exercised by the Company Court under section 155 of the Act is discretionary and summary in nature. (2) In exercise of discretionary and summary jurisdiction, the Company Court can decline to entertain petitions involving disputed and complicated questions requiring examination of extensive oral and documentary evidence. (3) The remedy of suit for adjudication of disputes relating to title to shares is not- barred. (b) Mrs. E.V. Swaminathan v. K. M. M. A. Industries and Roadways Private Limited and others (1993) 76 Company Cases 1 (at pages 8, 9, 10, 11, 13, 14 and 17). Decided by his Lordship Lakshmanan, J. on February 27, 1992. In this case the petitioner had filed a petition under section 155 of the Indian Act with a prayer to rectify the register of members and to enter the petitioner's name in the register of members. The issued and subscribed capital of the respondent-Company was divided into 1,275 shares out of which the petitioner holds 775 equity shares. The remaining 500 shares were held by the respondents. Since the books were kept by the respondent's husband it was alleged that the shares of the petitioner have been transferred to the son of the respondent and no board meeting was held in order to approve any such transfer. It was argued that the proceedings under section 155 of the Indian Act being summary in nature the Court ought to exercise its discretion and dismiss the petition and that the Court ought not to delve deep into the facts of the case. Oral and documentary evidence was submitted by both parties. In considering the scope and ambit of proceedings under section 155 of the Indian Act his Lordship referred to several cases of the Courts in India as follows (pages 8 to 11):-- In India Chemical Products Ltd. v. State of Orissa (1966) 36 Comp Cas 592, it has been held by the Supreme Court as follows (page 597):-- "The jurisdiction created by section 38 is very beneficial and should be liberally exercised." In Public Passenger Service Ltd. v. M.A. Khadar (1966) 1 Comp LJ 1 (SC), it was held that if, by reason-of complexity or otherwise, the matter can more conveniently be decided in a suit, the Court may refuse the relief under section 155 in exercise of its discretionary jurisdiction and relegate the parties to a suit. It is necessary to observe that the Supreme Court has not stated that if the dispute involves questions of law and fact, the Company Court should have no jurisdiction. The Supreme Court has only stated that it would be open to the company Court to refuse the relief under section 155 of the Act if the matter could be more conveniently tried in a suit. In Shri Gulabrat Kalidas Naik v. Laxmidas Lallubhai Patel of Baroda (1978) 48 Comp Cas 438, one of the questions before the Judge was whether the Company Court would entertain a petition for relief under section 155 of the Companies Act if it involved disputes on questions of Act. The head note reads as follows:-- "There is nothing in the language of section 155 which even remotely suggests that the jurisdiction conferred on the Court is of a summary nature and that it precludes a full inquiry in respect of the title to shares. On the other hand, subsection (3) of section 155 gives discretion to the Court, 'to decide any question which it is necessary or expedient to decide in connection with the application for rectification'. This expression is wider in amplitude than the well-known expression 'questions which are ancillary or incidental to the main question'. The jurisdiction conferred by section 155(3) is a comprehensive jurisdiction which enables the Court in an application under section 155 to examine all questions, complex, intricate or otherwise, relating to the title to shares, and further enlarges the jurisdiction of the Court set up under the Companies Act to decide all those questions which the Court considers necessary or expedient to decide in connection with the application for rectification. In other words, when an application for rectification of the register of shareholders is made, it would be open to the Court, while considering the main relief, to decide all questions that may arise in such an application on rival contentions. To illustrate, if a petitioner asserts his title to the shares and the respondent contends that the title was acquired by a forged document, forgery would be put in issue and it would be necessary to decide the issue of forgery before the main prayer for rectification of register can be granted. Section 155(3) is in pari materia with section 116(3) of the U.K. Companies Act 1948. But, in England, under relevant rules under section 116, an application for rectification of the share register has to be made by originating summons or originating petition, while in India it has to be made by way of petition. A petition is more or less analogous to a suit. This procedural distinction must be borne in mind while examining English decisions. Under the Indian Companies Act, 1913, power was conferred on various High Courts to make their own rules for regulating the practice and procedure in matter arising under that Act .This has to be taken into consideration that the ratio of some of the decisions of the Bombay High Court which held that jurisdiction under section 155 is of a summary nature." The learned Judge, Desai, J. (as he was then) has arrived at the conclusion which he did do on a lucid analysis, after careful study, ..of the relevant sections and rules under the English Companies Act, 1948 and the Companies Act, 1956, and the relevant decisions on the question. Desai, J. has also considered the decision of the Supreme Court in Public Passenger Service Ltd. v. M.A. Khadar (1966) 1 Comp LJ 1 (SC), and held that the question of jurisdiction of the Court under section 155 of the Act was not canvassed before the Supreme Court and that the Supreme Court did not decide that when complicated questions of fact and law are to be raised under section 155, the Court would become functus officio. The learned Judge further observed as follows (page 456 of 48 Comp Cas):-- "Therefore, both on principle and on authority, it becomes crystal clear that a petition under section 155 cannot straightaway be disposed of by merely saying that as complex and complicated questions of title are raised, the matter ought to be decided by way of a suit and the party ought to be relegated to a suit. At best, it can be said that the question is addressed to the discretion of the Court' and, if the Court exercises discretion one way, namely to undertake to hear the petitions, its decision cannot said to be one without jurisdiction. The Companies Act, 1956 is a very comprehensive statute. It is possibly one of the lengthiest statutes. There are as many as 658 sections. It has created certain rights. It creates a special machinery for enforcement of these rights and resolution of disputes arising in respect of rights under the Act. Membership of a company confers right and right is created by the Companies Act. To exercise the right, evidence of membership is necessary and the Act casts an obligation to maintain a register of members. These provisions comprehend a possible dispute. The Act creates a machinery and forum for resolution of disputes. If such be the comprehensive legislation and if the dispute involves interpretation of some of the provisions of the Companies Act, when a right to shares is asserted and denied, it would be rather inappropriate to say that a Civil Judge who is ordinarily not called upon in his work aday life to deal with the provisions of the Companies Act to deal with and decide it. Therefore, in my opinion, even complex and complicated questions of title can be appropriately examined in a petition for rectification made under section 155 of the Companies Act." In Mathew Michael v. Teekoy Rubbers (India) Ltd. (1983) 54 Comp Cas 88, the Kerala High Court has held as follows (head note):-- "Though the Company Court in India is empowered under section 155 of the Companies Act, 1956, to decide 'any question which it is necessary or expedient to decide in connection with the application for rectification' and the jurisdiction conferred is wide and comprehensive not being a summary one, Courts have been reluctant to interfere with the decision of the directors in matter of registering transfers, where the articles of association confer on them an absolute direction, which is always presumed to have been exercised bona fide." After referring to the above cases his Lordship held as follows: At page 11:-- The above pronouncements lend full support to my view that even complicated and complex questions of title can be appropriately examined in a petition for rectification made under section 155 of the Act. In my considered view, there is no limitation on the powers of this Court in regard to the manner in which the power has to be exercised under section 155(3) of the Act. At pages 13 and 14:-- There is nothing in section 155 (3) or under the rules to suggest that, if complicated questions of fact or law require to be decided, the Company Court should throw up its hands in despair and direct the parties to resort to ordinary Civil Courts Hence, in my view, the Legislature has not fettered the powers of the Court under section 155 and it being a beneficial provision, the power of the Court should be liberally exercised. At page 17:-- Even assuming that the jurisdiction under section 155 is discretionary, such discretion should be exercised in favour of the petitioner, because of the fact that parties have, on trial, elaborately let in voluminous evidence. The matter has been pending in Court for more than a decade. The parties are closely related. Hence, on the facts of this case and in the interest of justice and the issues involved, this Court has to exercise its discretion in favour of the petitioner without driving the parties to the agony of continuing the litigation before some other forum. The contentions that the petitioner is guilty of delay has been raised only at the Bar and not in the pleadings. (c) Muniyamma and others v. Arathi Cine Enterprises (Pvt.) Ltd. (1993) 2 Comp Li 327 (Karnataka) [at pages 332, 333, 334, 335 and 3451. Decided by their Lordships K.A. Swami and D. R Vithal Rao, JJ. on 7th January, 1992. This was an appeal against the decision of the Company Judge exercising his discretion and dismissing the petition for rectification of the register under section 155 after having recorded evidence in regard to the various allegations made by the parties. The conclusion of the Company Judge was described in the following terms at page 332 paragraph 8:-- The learned Company Judge first considered the scope of section 155 of the Act and held that the proceeding under section 155 was a summary proceeding and if a finding could be arrived at summarily, the exercise of power under section 155 would be arbitrary; that the jurisdiction is discretionary; that equitable principles governed the exercise of jurisdiction; that if the conduct of the parties complained of was unfair and unjust in relation to the subject-matter of the litigation and the equity sued for would be very relevant for exercise of jurisdiction. The aforesaid propositions were derived from the decision of the Supreme Court in Public Passenger Service Ltd. v. M.A. Khadar (1966) 1 Comp LJ 1 (SC): (1986) 36 Comp Cas I (SC); AIR 1996 SC

489. At page 333 paragraph 8:-- The learned Company Judge considered it safe to fall back on the ground that the jurisdiction was discretionary, summary and was also concerned with equities. He was also of the view that no injustice would be caused to the parties if the Court declined to exercise the jurisdiction under section 155 of the Act. Accordingly, the learned Company Judge dismissed the petition keeping it open to the petitioners to establish their right, if any, by resorting to any other remedy. Their Lordships then at page 333, paragraph 11, stated the points which arose for consideration in the appeal as follows:-- We have been taken through the oral and documentary evidence and also the judgment of the learned Company Judge. In the light of the contentions urged on both sides, the following points arise for consideration: (1) Whether respondents Nos.3 to 6 have proved that he petitioners sold and transferred their shares to them for valuable consideration? (2) Whether the transfer of shares of the petitioners was effected in accordance with law? If not whether it is valid in law? (3) Whether it is just and proper to go into the transfer of shares of other members of the company who are not before the Court and grant rectification of the register of the members of the first respondent -Company relating to those shareholders? (4) Whether the order under appeal is sustainable in law and on facts? (5) To what reliefs the petitioners/ appellants are entitled? With regard to point (3) above, their Lordships referred to certain cases of the Courts in India as follows (pages 344 to 345, paragraphs 47-A to 52):-- The Supreme Court in Public Passenger Service Ltd. v. M.A. Khadar (1966) 1 Comp LJ 1 (SC): (1966) 36 Comp Cas 1; AIR 1966 SC 489 has held that (headnote of AIR):

"Where by reason of its complexity or otherwise, the matter can more conveniently be decided in a suit, the Court may refuse relief under section 155 in exercise of the discretionary jurisdiction and relegate the parties to a suit." In that case, it was held that as the case did not involve complicated question, there was no necessity to drive the parties to a suit. It was also pointed out that the rectification of the share register should be allowed if the name of the person after having been entered in the register was without sufficient cause omitted from it. There was no sufficient cause for the omission of the name of the share-holder from the register, and the omission was due to invalid forfeiture. In that view of the matter, it was held that the forfeiture was invalid. Therefore, it was necessary to grant relief to restore the names of the shareholders. In Indian Chemical Products Ltd. v. State of Orissa (1966) 2 Comp LJ 63 (SC); (1966) 36 Comp Cas 592: AIR 1967 SC 253, the provisions of section 38 of the Act were considered. The provisions contained in section 38 of the Indian Companies Act, 1913, were similar to section 155 of the Act (Companies Act, 1956). In that case, the State of Orissa claimed that by reason of successive Constitutional changes, the shares held by the Maharaja Mayurbhanj became vested in the State of Orissa, therefore, it be entered in the register of members of the company. The Board of Directors refused to register the State of Orissa as successor to the shares held by the Maharaja. Therefore, a petition under section 38 of the Indian Companies Act, 1913, was filed in the High Court of Orissa and the same was allowed. In the appeal, the Supreme Court confirmed the order of the High Court and held as follows (at page 596):-- "Though the State of Orissa had acquired title to the shares by operation of law, by way of abundant caution, it obtained a deed of transfer and lodged it with the company together with the share scrip. The transfer deed was duly stamped and complied with all the formalities required by law. The claim of the State of Orissa based upon the transfer deed was within the purview of Article

11. Even with regard to this claim, the Courts below concurrently held that the Board of Directors acted mala fide in refusing to register the transfer. This finding is amply supported by the materials on the record." Ultimately, in para 11 of the judgment, the Supreme Court held as follows (at page 597):-- "The Maharaja of Mayurbhanj has ceased to be the owner of the shares. The State of Orissa is now their owner and has the legal right to be a member of the company, and is entitled to say that the company should recognize its membership and make an entry on the register of the fact of its becoming a member and its predecessor-in-title having ceased to be a member. The name of the State of Orissa has without sufficient reason been omitted from the register, and there is default in not entering on the register, the fact of the Maharaja having ceased to be a member. The Court's jurisdiction under section 38 is, therefore, attracted. The High Court rightly ordered the rectification in the exercise of its summary powers under section

38. The jurisdiction created by section 38 is very beneficial and should be liberally exercised. We see no reason why the Court should deny the applicant relief under section

38. The Directors of the applicant company on the most frivolous of objections have prevented the State of Orissa from becoming a member for the last 16 years. It is a matter of regret that justice has been obstructed so long. There is no merit in this appeal." Therefore, it is clear from the aforesaid decision that even a complicated question as to whether the Board of Directors acted mala fide in refusing to register the State of Orissa as a member of the company was gone into in a petition filed under section 38 of the Indian Companies Act, 1913, and it was approved by the Supreme. Court. It was also specifically observed that the jurisdiction created by section 38 was very beneficial, and should be liberally exercised. The learned Company Judge has also noticed this decision. The High Court of Gujarat in Gulabrai Kalidas Naik v. Laxmidas Lalludbhai Patel of Baroda (1978) 48 Comp Cas 438, has taken a view that in a proceeding under section 155 of the Companies Act, even if the relief sought for involves complicated questions, they can be gone into, and if a case is made out, the relief can be granted. The same is the view expressed by the High Court of Kerala in K.P. Anthony v. Thandlyode Plantations (P.) Ltd. (1987) 3 Comp LJ 154 (Ker): (1987) 62 Comp Cas

553. After referring to the above cases their Lordships, at page 345, paragraph 53, concluded as follows:-- Thus, the conspectus of these decisions lead us to a conclusion that even though the proceeding under section 155 is a summary proceeding, as it is a relief provided under the statute, in a proper and appropriate case, it is open to the Court to grant relief even though it may involve complicated questions of law and facts. Whether in a particular case, relief should be granted or not, because the jurisdiction is discretionary as the word used is "may" in section 155 of the Act, would depend upon the facts and circumstances of the case, but the exercise of jurisdiction cannot be refused on the ground that it involves complicated questions of law and facts. Of course, the propriety of the petitioners and their conduct having a bearing on the subject -matter of the petition would be relevant to the decision as to whether the discretion should or should not be exercised. In the instant case, in the light of findings recorded, it is not possible to agree with the view of the learned Company Judge that the petitioners are not entitled to the discretionary relief. In a case like this, declining td exercise the jurisdiction would amount to failure to exercise the jurisdiction. (d) K.P. Anthony v. Thandiyode Plantations (P.) Ltd. and others (1987) 67 Comp Cases 553 (Kerala) [at pages 558, 559 and 5611. Decided by their Lordships V. Sivaraman Nair and K. John Mathew, JJ. On 29th July, 1986. This was an appeal from the decision of the Company Judge declining to exercise jurisdiction under section 155 of the Indian Act on the grounds that there was no instrument of transfer (as required by section 108) and that no details of the shareholders had been described. The Company Judge also held that it would not be desirable to pronounce on this question of title until the scope of the agreement in dispute was settled. At page 558 their Lordships compared section 38 of 1913 Act and section 155 of the Indian Act as follows:-- It may be noticed that the present section omits the first part of the proviso contained in section 38 of the Indian Companies Act, 1913, to the effect -that the "Court may direct any issue to be tried in which any question of law may be raised' and refers in subsection (4) only to "the Court on the application or on any issue raised therein and tried separately". From this, it would appear that the order passed by the Court is not based on any summary decision. Clause (a) of subsection (3) of section 155 empowers the Court to decide "any question relating to the title of any person who is a party to the application". Clause (b) of subsection (3) empowers the Court to decide "any question which it is necessary or expedient to decide in connection with the application for rectification". Under subsection (1) of section 2, jurisdiction to decide questions under the Companies Act is the exclusive jurisdiction of the Court as defined in that subsection, namely, in an application under section 155, the High Court having jurisdiction in relation to the place at which the registered office of the company concerned is situate. Their Lordships then referred to certain cases of the Courts in India as follows (at page 559):

In Madras-Bangalore Transport Co. (P.) Ltd. v. K. A. Sebastian (1975) KLT 655, this Court relied upon a large number of decisions from Mohideen Pichai Taraganar v. Tinnevelly Mills Co. Ltd.; AIR 1928 Mad 571, to Public Passenger Service Ltd. v. M. A. Khadar (1966) 36 Comp Cas 1 (SC), to hold that where by reason of its complexity or otherwise, the matter can more conveniently be decided in a suit, the Court may refuse relief under section 155 and relegate the parties to a suit ..In Mathew Michael and others v. Teekoy Rubbers (India) Ltd. (1983) 54 Comp Cases 88 the Court considered the scope of section 155 of the Companies Act and held as follows:-- "There appears to have been some controversy regarding the nature of the company Court's jurisdiction in proceedings for rectification. As pointed out in Shri Gulabrai Kalidas Naik v. Laxmidas Lallubhai Patel of Baroda (1978) 48 Comp Cas 438.; the English Courts were always taking the view that the jurisdiction was summary in nature. That was because under the Rules framed, an application for rectification had to be made by originating summons. But in India the Company Court is approached under section 155 with a `petition', which is more or less analogous to a suit. Some of the earlier Bombay decisions were rendered under Rules framed by the High Court, These decisions cannot apply to petitions under section 155 where the Court empowered to decide `any question which it is necessary or expedient to decide in connection with the application for rectification'. The jurisdiction conferred by section 155 (3) is wide and comprehensive and the Judge is in agreement with the view taken in Gulabrai's case that it is not summary." Their Lordships concluded at page 561 as follows:-- On a consideration of the rulings of different Courts, the Judges are of the view that the reason of the Gujarat High Court in Shri Gulabrai Kalidas Naik v. Laxmidas Lallubhai Patel of Baroda (1978) 48 Comp Cas 438, which is accepted in Mathew Michael and others v. Teekoy Rubbers (India) Ltd. (1983) 54 Comp Cases 88 is to be preferred to the other decisions as far as the scope of section 155 of the Companies Act is concerned. Mathew Michael and others v. Teekoy Rubbers (India) Ltd. Palai and another (1983) 54 Comp Cases 88 (Calcutta) [at page 92). Decided his Lordship M.P. Menon J. on 30th March, 1981. In this case the petitioner acquired shares of a company but the company refused to register the shares exercising the discretion granted to the Directors by its articles of association to refuse without assigning any reason for transfer of shares. The petitioner sought rectification of the share register. As regards the power of the Court to order rectification of the register under section 155 of the Indian Act, his Lordship held as follows (at page 92):-- There appears to have been some controversy regarding the nature of the Company Court's jurisdiction in proceedings for rectification. As pointed out in Shri Gulabrai Kalidas Naik v. Laxmidas Lallubhai Patel of Baroda (1978) 48 Comp Cas 438, the English Courts were always taking the view that the jurisdiction was summary in nature. That was because under the Rules framed, an application for rectification had to be made originating summons. But in India the Court is approached under section 155 with a `petition', which is more or less analogous to a suit. Some of the earlier Bombay decisions were rendered under Rules framed by the High Court. These decisions cannot apply to petitions under section 155 where the Court is empowered to decide 'any question which it is necessary or expedient to decide in connection with the application for rectification'. The jurisdiction conferred by section 155(3) is wide and comprehensive and the Judge is in agreement with the view taken in Gulabrat's case that it is not summary.

12. Mr. Vellani argued that while accepting the view that the jurisdiction under section 155 of the Indian Act and section 38 of the 1913 Act is summary in nature the Courts differ on whether the discretion granted by that section should not be exercised where complicated or serious questions of fact arise. The decisions under section 38 of the 1913 Act hold that in complicated cases this discretion should not be exercised and the parties should be left to have their dispute resolved in a Civil Court. The cases quoted above under section 155 of the Indian Act suggest that it is a matter for the Company Judge to decide whether or not on the material before him he is able to determine the respective rights of the parties and that neither the section nor the summary nature of the proceedings bars the Company Judge from undertaking an inquiry as regards the respective rights and, titles of the parties.

13. Mr. Vellani further argued that if under the summary procedure the Company Judge was not required to consider and decide on complicated questions of law or fact and was in such cases required to refer the matter to the Civil Courts, then the only jurisdiction effectively left to the company Judge under section 152 of the Ordinance (Or under any of the other provisions of the Ordinance, such as, section 290 oppressive management, and section 305 -winding up of a company), would be to endorse the decision of the Civil Court. This, Mr. Vellani argued, could not have been the legislative intent. For example, section 152 of the Ordinance empowers the Company judge to determine entries and omissions from the register of members which are fraudulent or have been made or omitted without sufficient cause and to decide all questions relating to the title; section 290 of the Ordinance empowers the Company Judge to pass such orders as he may think fit to bring to an end the matter complained of and to regulate the conduct of the company's affairs where it is alleged that the affairs of the company are being conducted in an unlawful or fraudulent manner or in a manner oppressive to the members or creditors; section 305 of the Ordinance grants to the Company Judge extensive powers to order the winding up of a company and for this purposes to determine whether the company has engaged in fraudulent activities or is carrying on its business in a manner oppressive to its members or whether it would be just and equitable to wind up the company. Each of these sections requires the Company Judge to undertake an enquiry with respect to serious issues of fraud, oppression, unlawful actions and misconduct, before coming to any conclusion. In any given case it may not be possible to determine such serious questions without recording evidence or making a detailed enquiry. Surely, it could not have been the legislative intent that in all such cases the Company Judge should refuse to exercise jurisdiction on account of the provisions of section 9(3) of the Ordinance and to refer the matter to the Civil Court. The High Court in exercise of its company jurisdiction has all the powers of the Civil Court. In this regard Mr. Vellani referred to rule 7 of the Companies (Court) Rules, 1997 which provides that "save as provided by the Ordinance or by these Rules, the practice and procedure of the Court and the provisions of the Code (Civil Procedure Code, 1908) as far as applicable shall apply to all proceedings under the Ordinance and these Rules."

14. Mr. Vellani while concluding his submissions argued, on the basis of the cases referred to above and the provisions of sections 9(3) and 152 of the Companies Ordinance 1984, that:-- (a) The Court may under section 152 of the Companies Ordinance, 1984 order rectification of the register of members where the entry of a person's name in or the omission of his name from the register is fraudulent or otherwise without sufficient cause. (b) In the process of determining whether or not to order the rectification of a register of members the Court may consider and deal with and determine all questions relating to title and all such questions as may be necessary or expedient to decide whether or not rectification of the register should be ordered. (c) The Court has a discretion whether or not to order rectification of the register of members. (d) In the past, the Courts in Pakistan, while exercising this discretion in cases where they have been of the view that complicated questions of facts and law are involved, have refused to order the rectification of the register of members. However, the exercise of this discretion in this manner has been based on an assumption that since the process required to be followed under the Companies Ordinance 1984 (and previously under section 38 of the 1913 Act) is a summary procedure, complicated questions of fact and law cannot be considered in such proceedings. (e) However, there is nothing in the Companies Ordinance, 1984 which prevents the Court from entering into an enquiry, requiring the filing of evidence by way of affidavits and, if and to the extent considered necessary or required, recording oral evidence. This view is supported by Industrial Development Bank of Pakistan v. Messrs Sarela Cement Limited Company 1993 CLC 1540 (Quetta) and the cases of the Courts in India referred to above. (f) In exercising the discretionary power vested in the Court under section 152 of the Companies Ordinance, 1984, the Courts have been reluctant to allow such process to be used to enforce contractual rights, such as, seeking specific performance of a contract. (g) All proceedings under the Companies Ordinance, 1984 are summary proceedings, that is, an enquiry is required to be made and the Court has to consider and determine the issues raised by the parties and thereafter deliver its judgment, in a simple and expeditious manner. This, however, does not mean that the Court cannot record evidence and make all such inquiries as it considers necessary m the circumstances. (h) The summary procedure does not exclude the consideration by the Court of controversial facts and does not bar the Court from adjudicating on such facts, and if required recording evidence in regard to such facts. Court need not direct the parties to have their dispute decided in a civil suit.

15. Mr. Motiani agreed with the contentions of Mr. Vellani and submitted that in his cases the Court may frame the questions for determination and thereafter record the evidence to come to the right conclusion. He further submitted that if the contention of the respondent is accepted that would mean an exercise in futility for his client as by the time he obtains a decree from the civil proceedings most likely neither his client will survive nor the company.

16. Mr. Bawany and Mr. Rauf Buksh Qadri though agreed with the proposition that this Court has jurisdiction to embark upon a detailed enquiry, even by framing the points for determination and recording evidence, to finally adjudicate the matter without referring it to the Civil Court; Mr. Bawany, however, submitted that his case does not require any evidence as he is in possession of original shares and the company is bound to register the name of his clients in the Register of Members of the company.

17. Mr. Arfeen contended that a factual inquiry cannot be conducted by this Court and it has to be decided through the Civil Court. He further contended that the controversy as to the shares in custody of Mr. Bawany's client as well as the claim of Mr. Qadri as to the number of shares owned by him could only be decided after recording evidence and making a full-fledged inquiry through a civil suit and not in the summary proceedings before this Court.

18. Mr. Razvi and Mr. Khan also supported Mr. Arfeen and submitted that the proceedings under the Ordinance being summary in nature no detailed investigation /inquiry could be made and the jurisdiction to declare the title only rested with the Civil Court under section 42 of Specific Relief Act. The case of Khairuddin and others v. Settlement Commissioner and others 1998 SCMR 988 was referred. This was an appeal by leave of the Court before the Honourable Supreme Court of Pakistan against a judgment passed in the writ jurisdiction by the High Court of Lahore. The Honourable Supreme Court was pleased to observe that the disputed question of fact cannot be determined in the Constitutional jurisdiction which is summary in its character.

19. I considered the submission of the counsel. Learned amicus in his submissions placed almost all the decided cases pertaining to the questions under consideration. The relevant portions of the judgments/orders have been reproduced above.

20. With utmost respect to my learned brother Judges who have held that the disputed and controverted question can only be decided by a Civil Court and not by the Company Judge, it is observed that to substantiate their view, no legal basis or provision of Law has ever been quoted; all relevant judgments were based on the proposition that the proceedings under the Company Law are summary in nature and that the Courts always subscribed to this view. It is further observed that the Courts while, ousting their own jurisdiction in matters where disputed questions of fact were involved, have omitted to take into consideration certain directions of the various provisions of the Ordinance whereby the Court is empowered to decide even complicated questions which are discussed hereinafter.

21. At this point I would like to refer to some of the relevant provisions of the Ordinance. The sub-clause (a) of subsection (1) of section 152 provides that if the name of any person is substituted fraudulently or without sufficient cause entered .in or omitted, the Court may order for the rectification of register of members (ROM). In subsection (3) ibid the Court is empowered to decide any question relating to the title of any person when an application is made under subsection (1). Under section 290 of the Ordinance the Court is to first satisfy itself that the applicant is a member and not holding less than twenty percent shares. In the same section the Court is empowered to pass any fit order in case it is found that the affairs of the company are being conducted or are likely to be conducted in an unlawful or fraudulent manner or a manner not provided for in its memorandum or in a manner oppressive to the members or any of the members, etc. Section 305, while empowering the Court to wind-up the Company, the conditions for which are enumerated in clauses (a) to (h), its sub-clause (f) ibid and its sub-clauses, state that the Court is required to be satisfied I before ordering the winding-up.

22. From the preamble of the Ordinance, it is apparent that the purpose of the Ordinance is to consolidate and amend the law relating to the companies and certain other associations for the purpose of the healthy growth of the corporate enterprises, protection of investors and creditors, promotion of investment and development of economy and matters arising out of 'or connected therewith. The purpose of the Ordinance obviously is to adjudicate all matters falling under the Ordinance finally to achieve the results for which the Ordinance has been enforced.

23. The question arises that how the Court can, without entering into a detailed inquiry pertaining to the provisions of sections 152, 290 and 305, referred above, satisfy itself, and adjudicate the matter finally resolving the disputes between the parties? Can the Court without entering into in-depth investigation by recording evidence, give any finding as to 'fraudulent' action or 'sufficient' cause as provided under section 152(1)(a)? Can the Court under section 152(3) decide the question of title of any person D without determining the points to that effect and recording the necessary evidence? Where, under section 290(1) the applicant can claim himself to be the member holding not less than 20% shares and the same is denied by the other side, can the Court give any finding in affirmative or negative without entering into a detailed investigation which will again require evidence? Whether the Court, without entering into the investigation and recording evidence, can opine under subsection (2) of section 290 that the company's affairs are being conducted in an unlawful and fraudulent manner or in the manner not provided for in its memorandum or in a manner oppressive to the members etc. as provided under subsection (1) of section

290. Similarly under section 305 without in-depth inquiry including the recording of evidence, can the Court be satisfied for winding-up the company if the case falls, amongst others, under sub-clauses (ii), (iii) and (iv) of clause (f) ibid.

24. Therefore, the obvious answer to the above questions would be in the negative. Final adjudication of the controversies indicated hereinabove can only be done after framing the points for determination and recording the evidence where serious disputes as to the documents etc. arise between the parties. It is, however, correct that in all cases the investigation may not be in-depth but can be conducted by looking into the documents and evidence filed along with the pleadings.

25. My learned brother, Abdul Qadeer Chaudhry, J., as he then was very aptly in the case of Kabiruddin v. Syed Sibtain Ahmad 1987 CLC 604-07 Karachi, while dealing with a case under the Sindh Rented Premises Ordinance, 1979, observed that "The intention of the law is to shorten the litigation and not to involve the parties in multiple litigation". As mentioned before the proposition which has been followed by most of the Courts is that where the intricate or complex questions of fact are involved the parties are directed to get the matter settled in a civil suit before the Civil Court. The natural consequence of the above is that the Court pulls its hands away from the case before it and the parties are left to go through the rigors of a complicated and complex procedure of the civil suit which goes on for decades. With due respect to the learned Judges deciding those cases, in my humble opinion this can never be the intention of the legislature while directing the Courts to adopt summary procedure under section 9 ibid. Obviously, the Court is not to follow the same complicated procedure as in a civil suit and its technicalities but is required to adjudicate the same expeditiously in a manner it deems fit and appropriate in the circumstances of each case.

26. The sum-up of the dictionary meanings of 'summary proceedings' referred above is that the case is to be disposed of promptly in simple manner out of the regular course of the common law. Nowhere is there a restriction on the forum in recording the evidence for final conclusion. If the matter can be decided by apparent perusal of the pleadings, it may be done so and if the Court deems necessary to frame point of determination and record evidence, the Court must not hesitate to do the needful on the ground that intricate and complex questions of facts are involved. The decisions of the Indian jurisdiction appear to have considered this aspect in the larger interest of the parties and encouraged the Courts to exercise the power conferred upon them liberally. See (1993) 76 Company Cases

1. I am of the considered view that there is no limitation on the powers of the Court in regard to the manner in which the power has to be exercised under the Ordinance; and that the power should be liberally exercised without driving the parties to agony by ordering the litigation to be carried out before some other forum.

27. The upshot of the above is as follows:-- (a) The summary procedure appearing in section 9 of the Ordinance does not exclude the consideration by the Court of controversial facts nor does it restrict it from deciding such controversies. (b) There is no legal impediment in the Ordinance for the Courts entering into any inquiry, framing the points of determination, requiring oral evidence or evidence through affidavits.

28. The cases in hand, in my opinion, are covered by the Ordinance and the factual controversies raised therein are to be adjudicated by this Court. The controversies, however, are of the nature, which cannot be decided without an investigation/inquiry or by recording evidence. I, therefore, find it necessary to first determine the disputed points and thereafter call for evidence.

29. All these matters are adjourned and on the next date of hearing, this Court will determine the controversial points involved in the matters.

30. The Petition No.1 of 2002 which is under section 305 for winding up of the company be heard after the decision in the Petition and C.M.A. No.1587 of 2003 filed by Mohsin Butt.

31. I am grateful to Mr. Badaruddin F. Vellani, Advocate, learned amicus curaie and appreciated for rendering beneficial assistance for coming to the above conclusion. I also record appreciation for the able assistance provided by Mr. Mansoorul Arfeen, Mr. Iqbal Bawany, Mr. Rasheed A. Razvi, Mr. Anwar Mansoor Khan, Mr. Naraindas Motiani and Rauf Buksh Qadri (in person). M.B.A./R-36/K Order accordingly.