1986 PLP 2560 (CLC)

Judicial Miscellaneous Application No. 8 of 1984, decided on 24th March, 1986. ‑‑‑S. 38‑‑Civil Procedure Code (V of 1908),

0. XXX'X R. 4 Rectification of register of company‑‑Application for‑‑Questions of fact‑‑ Determination of‑‑Question of fact requiring detailed inquiry by appropriate civil proceedings, held, could not be determined under summary procedure available under Companies Act, 1913‑‑High Court stayed the proceedings of application till parties obtained decision from civil Court on disputed question of fact raised on application proceedings I . H . Zaidi for Applicants. Khalid M . Ishaq for Respondents. Date of hearing: 24th March, 1986. This petition under section 38 of the Companies Act is filed by Manzoor Ahmad Bhatti, Zahoor Ahmad Bhatti, Haji Muhammad Yousuf, Shamim Akhtar and Mst. Zeenat Begum for rectification of the register of the Company, and ordering for inclusion of their names as the Directors of the Company on the allegation that their names have been fraudulently removed from the register of the Company. The application is opposed by the respondents, who have contended that, by a resolution of the Company, dated 3‑9‑1983, the names of these respondents were removed as a result of their resignation from the directorship of the Company, pursuant to an agreement, which was entered into between the respondents and the petitioners on 3‑9‑1983. It is also alleged that, in pursuance of the agreement, dated 3‑9‑1983, certain amounts, were paid to the petitioners and balance was agreed to be paid in instalments. It is also alleged that, after execution of the agreement, elated 3 9‑‑?.983, by the petitioners, the share certificates were transferred from their name, to the names of the respondents and others, and that a Return was also filed with .the Registrar of the firms, showing the resignation of the petitioners, and transferring their shares in the Company in favour of others. The respondents have also submitted, alongwith their application under Order XXXIX, Rule 4, C.P.C. documents (Exhs. 1/A to 1/29), and it is alleged by them that these documents were duly executed by the petitioners from time to time. These allegations are not admitted by the petitioners, who have filed a counter‑affidavit to the application under Order XXXIX, Rule 4, C.P.C. denying these allegations, to which a rejoinder has been filed by the respondents. As the petitioners did not admit their signatures on various documents, which were annexed to the application under Order XXXIX, Rule 4, C.P.C. I called petitioners 1 and 2 in Court in order to satisfy if they had signed these documents. Both the petitioners were shown the original of documents (Exh. 1/A to 1/24), and, after seeing, the petitioner No. 1 admitted his signatures only on documents Exhs. A/I and A/3, and denied his signatures on the, other documents. However, with regard to document Exh. A / 2, he stated that he was not sure if this document was signed by him, or, not. Petitioner No. 2, similarly, after seeing the originals of Exh.. A/1 to Exh. A/24, admitted his signatures on Exh. A/1 and Exh. A/6, but denied his signatures on the other documents. I had also taken specimen signatures of both the petitioners in Court for the purposes of comparison, but I have not adopted the course of comparing their signatures with the disputed signatures, as I feel that the questions raised in this. Petition involve such questions of fact, which require detailed enquiry by an appropriate civil proceeding. Apart from the fact that large number of documents submitted by the respondents in support of their case are denied by the two petitioners, there are other petitioners, who are ladies, and about them also it is. alleged that they not only executed documents, transferring their shares and relinquishing the directorship of the Company, but it is also alleged by them that certain amounts were paid to them, which were acknowledged by them under a valid receipt. All the above questions, in addition to several other allegations and counter‑allegations in the petition and the affidavits filed' by the parties in the case need elaborate enquiry in a properly constituted civil proceeding. I, therefore, do not find the present application a fit one to be tried under the summary procedure available under the Companies Act, and direct the petitioners to have recourse to a proper civil proceeding to determine the question of execution of the documents and several other allegations made in their petition against the respondents. I accordingly stay the proceedings of this application until such time the parties are able to obtain decision from the civil Court on the disputed questions raised in these proceedings. It is, however, clarified that an interim order was passed by the Court in this regard which was modified on 26‑3‑1984, and this order will remain in force until further orders. H . B . T . Order accordingly.