JUDGMENT ALI NAWAZ CHOWHAN, J.- This is a petition under Section 305 read with Section 306 of the Companies Ordinance, 1984 asking for winding-up of the respondent company. Mr. Alamgir Elahi was a Director of the Company alongwith his other family members who were Share-holders in several companies.
2. The past history is that the dispute had arisen inter se the parties on multiple issues, and briefly stating, three persons were appointed from their brotherhood to settle the dispute who gave their Award which has been placed on the file and is dated the 8th of July, 2000. As a sequal to the said verdict, an agreement also came about in the month of July, 2000. There is no specific date given with respect to that. There is yet another agreement, dated 21st of July, 2001 but this relates specifically to the alienation made by the petitioner of what belonged to him.
3. Yesterday, when this petition case came up for hearing an appraisement of fact was made in the presence of the counsel and all what transpired was recorded, which is reproduced below:-- "The objection from the respondent's side is that this petition is not maintainable because a family settlement through the aegis of the mediators has taken place on 8th of July, 2000, and all issues between the parties have been dealt with by them and their verdict also distributes the properties reflected therein and as such there is no dispute with respect to the alleged loan left to be made a ground for winding- up of the company.
In their reply, in support of what is said the respondent's side has placed on record a copy of a document showing the appointment of Arbitrators to resolve business and family disputes inter se the parties and at page 42 the operative part of the settlement appears to be reflected.
According to the learned counsel appearing on behalf of the petitioner's side, the persons settling the dispute inter se the parties were in fact Arbitrators and not Mediators and that whatever they have stated was not in fact made the rule of the Court and award remained an incomplete action.
Whereas, according to the respondent's counsel, the verdict of the Mediators (he chooses to call them as such) has been implemented in the documents of the Company in reality and the liabilities of the creditors have been settled and thus the guarantees of the petitioner released.
Now in view of the denial coming-from the petitioner's side on what has been stated by the learned counsel for the respondent's side, the respondent's side shall be furnishing a proof with respect to the action taken on the basis of the decision in the family settlement. The best proof would be in producing the Chartered Accountant of the Company, who should appear with an affidavit giving us the factual position in the matter.
According to the learned counsel for the petitioner, divisions of assets took place as is reflected in the verdict pursuant to the agreement undated of July, 2001.
It may be mentioned that as a sequal to the document of 8th July, 2000, afore-mentioned, there had been two other agreements inter se the parties and these are dated 21st July, 2001, and another is undated of July, 2001, as well.
Learned counsel vehemently stated that this agreement although written has not been given a practical shape. Pointing out to the agreement of 21 st July, 2001, the learned counsel states that this agreement is of a separate nature because this pertains to some alienations made by the petitioner of his shares in the property to different persons and is reflective of the fact that these alienations were made of a joint property which was not separated and thus it supports his view of inaction appellant family agreements.
An appraisement of the facts laid bare before this Court by the learned counsel from both sides, does give the impression that the parties have already on papers settled their dispute and have agreed to take over properties as are reflected in these agreements. The question, therefore, is now Whether their such desire only remains a desire or has been given effect to practically.
The best person to answer this question is the Chartered Accountant of the Company (M/s. Zahid Jamil & Co.), who should appear in this Court with an affidavit giving us the factual position with respect to the distribution of the assets pursuant to the agreements afore-mentioned. The Company is directed to produce the Chartered Accountant tomorrow morning with all necessary papers required for further appraisement for purposes of the decision whether the agreements have been acted upon or not."
4. The Chief Financial Officer of the Company and a Chartered Accountant of M/s. Zahid Jamil and Company were produced before this Court today, who on solemn affirmation made the following statement- statement of Mr. Yasir Sajjad, Chartered Accountant of Zahid Jamil & Co., on oath: "I deal with the accounts of the respondent-company. I have seen the agreements, about which mention has been made yesterday. We were not required to prepare financial statements as auditors. We were only required to scrutinize the statements prepared by the Management, whose representative is also before this Court. As an Auditor, therefore, I am not aware whether what may have happened in reality, but in papers and Account Books the two agreements (not the agreement of 21st July, 2001) about which reference is made, appear to have been implemented."
5. Whereas the statement of Mr. Aamir Mushtaq Butt, the Chief Financial Officer of the Company was as follows:- Statement of Mr. Aamir Mushtaq Butt, Chief Financial Officer of the Company, on oath: "As a Chief Financial Officer of the Company, I am conversant with the accounts and Account Books and about factual positions relating to the financial statements. I can say unequivocally that the statement dated 8th July, 2000, and agreement which is undated and was signed in July, 2000, have been given effect both in papers and otherwise and the assets distribution has taken place accordingly inter se the share-holders/Directors of the Company. I may once again add, what I am stating is true and nothing has been suppressed."
6. Therefore, according to the statements of the Chartered Accountant and the Chief Financial Officer, the assets as shown distributed by the afore-mentioned two documents had, in fact, been distributed and as is evident from their statements the petitioner received what was due to him on the basis of the afore-mentioned two documents.
7. Learned counsel appearing on behalf of the petitioner's side stated that after the petitioner had sold his assets he asked for the return of the loan which he had given to the Company.
8. Learned counsel appearing on behalf of the Company stated that there was no loan outside the ambit of the settlement, dated the 8th of July, 2000 and that the loan stands settled completely, In this connection, he made reference to the affidavit of Mian Muhammad Khurshid Mannoo who was one of the signatories to the deed of the 8th of July, 2000 and according to whom the settlement covered everything, including any loan which may have been given by the petitioner. Reference has also been made to an affidavit of Mian Jehangir Mannoo who it is said was an elder of the family.
9. Learned counsel for the petitioner even after hearing all this insists that his loan remained un- paid. If what he was saying, is correct then this calls for a detailed and elaborate factual inquiry through production of evidence in the usual way which may controvert what has been stated before this Court.
10. Because obviously, the parties did enter into a settlement. When there has been a subsequent agreement in which senior members of the family participated for resolution of the dispute then it no longer remains a matter simpliciter under the provisions of Section 305(e) of the Companies Ordinance, 1984.
11. Whereas under the jurisdiction of the Companies Ordinance, 1984, we are governed by Section 9 which reads as follows:- "9. Procedure of the Court. -- (1) Notwithstanding anything contained in any other law, all matters coming before the Court under this Ordinance shall be disposed of, and the judgment pronounced, as expeditiously as possible but not later than ninety days from the date of presentation of the petition or application to the Court and, except in extra-ordinary circumstances and on grounds to be recorded, the Court shall hear the case from day to day.
Explanation. - In this sub-section, "judgment means a final judgment recorded in writing".
(2) The hearing of the matters referred to in sub-section (1) shall not be adjourned except for sufficient cause to be recorded or for more than fourteen days at anyone time or for more than thirty days in all.
(3) In the exercise of its jurisdiction as aforesaid, the Court shall, in all matter before it, follow the summary procedure."
12. Learned counsel for the respondent has placed his reliance on the following case-laws:- Abdur Rasheed. v. Messrs Nippon Robbin Company (Pakistan) Ltd. And 6 others (PLD 1982 Lah. 103)
Hashmi Can Company Limited v. K.K. & Co. (Private) Limited (1992 SGMR 1006)
Messrs Adage Advertising, Lahore v. Messrs Shezan International Ltd., Lahore (1970 SCMR 184)
Habib Bank Ltd. v. Hamza Board Mills and others (PLD 1996 Lah. 633).
13. Consequently, so far as the petition under the Companies jurisdiction is concerned, on the basis of what Was prayed in the relief part of the petition cannot proceed any further. However, for pressing his relief the learned counsel may have to find the remedy under the general law.
14. Under the circumstances, in view of the dispute inter se the same family, there is no order as to costs.