1979 PLP 150 (SCMR)

MUHAMMAD AKRAM, J.‑This is a petition for special leave to appeal from an order dated 5th of July 1978 passed by a learned Judge of the Lahore High Court at Lahore whereby he dismissed the Civil Miscellaneous No. 66‑L of 1978 in Civil Original No. 35 of 1978 filed by the petitioners herein under section 151 of the Code of Civil Procedure. The relevant facts in brief are that in October 1976, the Eastern Company (Private) Limited was duly incorporated with four persons, namely Malik Sarfraz Khan (deceased)' his wife Mst. Gul Begum respondent No. 1, Sheikh Kausar Salam and Mrs. Kausar Malik petitioners Nos. 2 and 3 as the promoters‑cum‑Directors of the Company. Malik Sarfraz Khan died on the 7th of December 1977 leaving behind the respondent and petitioner No. 3 as his legal heirs. After his death differences and disputes appear to have arisen between the parties concerning the business of the Company. The respondents then filed the application (Civil Original No. 35 of 1978) under section 162 of the Companies Act in the High Court of Lahore for winding up of the Company on a number of grounds taken by them. The petitioners in their written statement raised a preliminary objection and also filed a separate application (C. Misc. No. 66‑L of 1978) under section 151 of the Code of civil Procedure to the effect that the respondents had no locus standi to file the petition for the winding up of the Company which was incompetent. The learned Judge in Chambers dismissed the application and overruled the preliminary objection by his order dated 5th of July 1978. Hence this petition for special leave to appeal against it. We have heard the learned counsel for the petitioners. It appears that the application for winding up of the Company is based on the allegations that the petitioners therein are the shareholders, contributories and creditors of the Company Respondent No. 1 laid her claim as a Director as well as shareholder of the Company holding 500 shares in her own right. Shy along with the other heirs of Malik Sarfraz Khan deceased succeeded to another 500 shares forming part of the estate of the deceased for which the respondent No. 5 had already obtained a succession certificate. It was pointed out that respondent No. 1 had not only paid her share money, but also paid lakhs of rupees to the Company for its business at the initial stage. It was also contended that all the respondents were the contributaries of the Company within the meanings of sections 158 and 160 of the Companies Act. Lastly it was argued before the High Court that as shareholders or contributaries and, also as creditors of the Company the present respondents had the locus standi to sue for the winding up of the Company. In reply to these contentions it was argued before the High Court that from the present respondents so far as Mst. Gul Begum respondent No. 1 is concerned she did not subscribe in cash to the share‑money and according to a resolution passed by the Board of Directors the shares allotted to her had been forfeited. It was next submitted that respondent No. 5 had at first obtained a succession certificate about the shares held by Malik Sarfraz Khan deceased but the certificate was afterwards suspended on an application made by petitioner No. 3 and respondent No.

4. In repelling the contentions advanced on behalf of the present petitioners, the learned Judge in Chambers observed that all the respondents are the heirs of late Malik Sarfraz Khan who admittedly held 500 shares in the Company. The inheritance and devolution of these shares in his heirs took effect with his death and was not dependent on the grant of succession certificate or its alleged suspension afterwards. As such they are undoubtedly the contributaries of the Company. Moreover, admittedly Mst. Gul Begum respondent No. 1 was a subscriber to the Memorandum and Articles of the Company. She was recorded there as a shareholder as well as a Director of the Company and was throughout acting as such ever since the incorporation of the Company at least upto 6th of April 1978 when she was informed by Annexure K‑11 that she had ceased to be a Director of the Company. In this connection, in the opinion of the learned Judge some of the documents placed on the record could not be relied upon at that stage. He even doubted the genuineness of one of them (K‑7) and held that it was not safe to rely upon it. In conclusion the Court repelled the preliminary objection and held that the objection against the maintainability of winding up petition was without force. In this Court before us the learned counsel did not seriously challenge the conclusion recorded by the High Court to the effect that there was no force in the preliminary objection against the maintainability of winding up petition. He, however, expressed a great anxiety before us to submit that some of the observations made by the learned Judge in Chambers in the High Court in his impugned order are likely to be construed so as to foreclose these issues on the merits in the absence of any evidence adduced by the parties in support of their respective contentions. If at all the petitioners are themselves to be blamed in raising and pressing for the preliminary objection at the initial stage. Betthat as it may, we are inclined to hold that the observations recorded by the learned Judge in Chambers in disposing of the preliminary objections were tentative only. That this is so is also evident from reading the order as a whole. In para. 10 of the order he has himself observed : "The averment in para. 2 of the petition has been clearly made in order to justify the position of the petitioners as creditors of the Company. In view of this allegation also the petition cannot be thrown out at this stage. No doubt the question whether the petitioners are creditors or not, can be decided only after the trial of the case and the recording of evidence." This conclusion also seems to flow from para. 12 of the order in that the Court proceeded to repel the preliminary objection in the light of the allegations in the winding‑up petition. With these remarks, we find that this petition for special leave has no force and is hereby dismissed. Petition dismissed.