1. This is an application under Order XXXIX, rule 10 read with section 151, C.P.C. Filed on behalf of the plaintiff praying therein that until the disposal of the suit the defendant be directed to deposit in Court all registers, documents and correspondence, including but not limited to correspondence addressed by and to the Company Registration Office, Karachi in respect of the plaintiff, related to such of the plaintiff's records as are required by the Companies Ordinance, 1984 to be maintained at the registered office of a company, and kept by the defendant from 7th December, 1995 to 5th April, 2001 in its capacity as the custodian of the plaintiff's statutory records and, once the same have been deposited, to permit the plaintiff to make photocopies of the same.
2. ' This application is supported by an affidavit filed by Ms. Samina, Siddiqui who claims to be duly appointed attorney for the plaintiff which is a public (unlisted) company and was incorporated on 7th December, 1995 as a project company for the sole purpose of setting up a 288 MW barge- mounted power plant at Karachi for the manufacture and sale of electricity to the Karachi Electric Supply Corporation Limited. It is stated in the affidavit that plaintiff is wholly owned by Sabah Shipyard. Sdn Bhd (Special Administrators Appointed), a company established and operating under the laws of Malaysia; whereas the defendant is a registered partnership firm carrying on the business of chartered accountants and assisted the plaintiff's foreign sponsors in incorporating the plaintiff. From 7th December, 1995 to 5th April, 2001 the plaintiff maintained its registered office at the address of the defendant. In addition to acting as the custodian of the plaintiff's statutory books, the defendant also acted as the secretary and statutory auditor of the plaintiff since its incorporation and was lastly re-appointed in that capacity on 6th June, 1997. It is further stated that on 6th March, 1996, the plaintiff entered into an implementation agreement with the Government of Pakistan and a Power Purchase Agreement with K.E.S.C. On 7th March, 1996.
3. However, due to certain dispute between the plaintiff and the Government of Pakistan and K.E.S.C.
4. The agreements were terminated by the Government of Pakistan and K.E.S.C. The skeleton staff in Pakistan maintained by the plaintiff was allowed to go back by the plaintiff in the year 2000. At present the plaintiff has no Directors, Officers or other personnel in Karachi or elsewhere in Pakistan nor it has maintained its office in Pakistan and the affairs have been looked after by its management from Malaysia.
5. ' It is further stated that due to termination of the aforesaid agreement, the plaintiff commenced separate arbitration proceedings against the Government of Pakistan and K.E.S.C. In accordance with the relevant provision contained in the respective agreements. It gave rise to further proceedings/litigation between the plaintiff and the Government of Pakistan and K.E.S.C. And eight
(8) proceedings are pending in various jurisdictions. Plaintiff instituted a case against the K.E.S.C.
6. And its guarantor Government of Pakistan. The Government of Pakistan in its defence has also taken a plea that the proceedings in England have not been validly instituted, hence the same be dismissed, inter alia, on the ground that the proceedings were instituted without a specific resolution of the Board under Article 80 of the plaintiff's Articles of Association. The plaintiff stated in these.Proceedings that the management of plaintiff is not in possession of any of its record including the minutes of the Board meetings and share-holder meetings that were, or should have been held prior to 5th April, 2001 as the record is lying at Karachi in possession of the defendant though the same are to be maintained at the registered office of the plaintiff. Plaintiff through a letter sought a confirmation from the defendant regarding availability of record in its possession and in a telephonic conversation between Mr. Gohar Manzoor (one of the defendants' partners) and the plaintiff's counsel, made on 7th March, 2004 the latter confirmed the availability of record but refused to release it until the issue of defendant's outstanding invoice in the sum of U.S. $ 343,126 for work said to have been performed for the plaintiff had been settled. Copies of letters exchanged between the plaintiff and defendant have been filed. The plaintiff has disputed the claim of the defendant and stated that even if the above amount was indeed due to the defendant, its refusal to hand over documents/records that are required by law to be kept at the registered office of the plaintiff and made available for public inspection is illegal because any lien that an accountant or an auditor may have, cannot extend to such documents/records. At one hand such documents could not be released/ returned by the defendant on the other hand the plaintiff has become unable to produce the said documents in the English Proceedings where an application has been filed by Government of Pakistan compelling the plaintiff to produce the said documents in those proceedings. On 25-6-2004 that Court passed a consent order pursuant to which the plaintiff is required to employ "reasonable and proper endeavours" to secure the disclosure of the record/documents in the possession of the defendant. Urgency of securing disclosure has been expressed by that. Court in the note of judgment dated 25-6-2004.
7. ' It is under these circumstances the plaintiff filed this application in a suit for recovery of wrongfully detained property. The prayer made in the suit is reproduced hereinafter:- "Pass judgment and decree against the defendant to deliver to the plaintiff all registers, documents and correspondence, including but not limited to correspondence addressed by and to the Company Registration Office, Karachi in respect of the plaintiff, related to such of the plaintiff's records as are required by the Companies Ordinance, 2004 to be maintained at the registered office of a company, and kept by the defendant from 7 December, 1995 to 5 April, 2001 in its capacity as the custodian of the plaintiff's statutory records.
8. ' Grant costs of the suit to the plaintiff; and ' Grant any other relief(s) that this Honourable Court deems fit and proper in the circumstances of the case."
9. ' Counter-affidavit has been filed on behalf of the defendant by Gohar Manzoor one of the partners of the defendant firm questioning the maintainability of the suit as formalities as required under Order XXIX, rule 2, C.P.C. Have not been complied with as the suit has been filed without proper authorization under a resolution of the Board of the plaintiff. It has been further stated that plaintiff has no business address in Pakistan and that in fact the plaintiff had a contract with Messrs Riaz Ahmed Management Consultants (Pvt.) Ltd. Whereas suit has been filed against the present defendant which is a different entity. In this context reference has been made to the Consultant's letter, dated 13-12-1995 addressed to the plaintiff and letters of the plaintiff dated 22-12-1995, 26-7- 1996 and 5-10-2000 filed with counter-affidavit as Annexures "R", "R-1" to "R-3". It has also been stated that plaintiff has no cause of action and the plaint is liable to be rejected under Order VII, rule 11, C.P.C. It has been further stated that the plaintiff has concealed material facts. Right of the consultants to have a lien and right over the documents mentioned in the plaint under sections 170 and 171 of the Contract act read with section 39 of the said Act has also been pleaded and taken as defence to retain any such documents. It has been further stated that Messrs Riaz Ahmed Management Consultants (Pvt.) Ltd. Till date have been acting as consultants and no termination notice have been served upon them. They had informed the plaintiff's counsel that as on September. 2003 the plaintiff was liable to them in the sum of US $ 343,126 towards professional fee which have been admitted by the learned counsel, for the plaintiff in his letter, dated 4th March, 2004 addressed to the plaintiff with copy to Gohar Manzoor (Annexure "D" to the plaint). It has also been stated that there is no privity of the contract between the plaintiff and the defendant. Merely the fact that one of the Directors of the defendant is also a Director of Messrs Riaz Ahmed Management Consultants (Pvt.) Ltd. Will not make the defendant liable for any claim made by the plaintiff.
10. ' In rejoinder the facts stated in the counter-affidavit have been controverted and it has been stated that defendant is a partnership firm and not a corporation as admitted by Gohar Manzoor in his counter-affidavit itself. Certified copy of the extract from the Register of Firms maintained in that office showing the particulars of the firm has been attached as Annexure "P-1". It is denied that suit has not been properly instituted as Chief Executive of the plaintiff under Article 80 of its Articles of Association has power and authority to authorize anybody to sue on behalf of the plaintiff. The right of lien as pleaded on behalf of the defendant is stated to be misconceived. Allegation of concealment of facts has also been denied. Liability of the plaintiff to the defendant in the sum of US $ 343,126 has also been denied. Conversation between the plaintiff's counsel and Gohar Manzoor on telephone on 2nd March, 2004 has also been denied. It is also denied that Messrs Riaz Ahmed Management Consultants (Pvt.) Ltd. Have rendered any service to the plaintiff as alleged, and that the defendant has no right to hold the plaintiff's property as hostage on a fake plea of lien.
11. ' I have heard Mr. Salman Talibuddin learned counsel for the plaintiff, and Mr. M. Akram Zuberi learned counsel for the defendant and perused the material placed on record as well as case-law cited at bar.
12. ' In support of this application Mr. Salman Talibuddin learned counsel for the plaintiff has urged that the documents in question are in possession of the defendant who is legally bound to produce the same before the Court. Learned counsel has produced copy of the judgment of the High Court of Justice, Queen's Bench Division, Commercial Court dated 25-6-2004 to show the pendency of the dispute between the plaintiff and the Government of Pakistan where access to the statutory book of account has been found to be essential in order to determine the dispute between the parties.
13. Mr. Salman Talibuddin has also referred to a power of attorney executed by Tuan Haji Muhammad Zaki Bin Hamzah in favour of Kairas N. Kabraji, Advocate, Zormina Dastur, Advocate and Samina Siddiqui, Advocate of Messrs Kubraji and Talibuddin, a firm of Advocates practising at Karachi, under Article 80 of the Memorandum and Articles of Association of the plaintiff's company on the basis of which document/authority this suit has been filed, which has been brought on record as Annexure "G" and shows that the Chief Executive of the Company subject to any resolution or decision of the Board of Directors is fully authorized to institute, conduct, defend, compound or abandon any legal proceedings by or against the Company, hence the suit has been legally and validly filed by Ms. Samina Siddiqui on behalf of the plaintiff and the objection taken by Mr. M.
14. Akram Zuberi learned counsel for the defendant is without any substance.
15. ' In support of his contention that when the Articles of Association themselves authorize the Managing Director or Chief Executive to institute legal proceedings by and on behalf of the company, and the legal proceedings are instituted by the Managing Director or Chief Executive in exercise of the power, there is no further or additional requirement of a Board's Resolution, learned counsel has referred to the case reported as Abdul Rahim and 2 others v. Messrs United Bank Ltd.
16. Of Pakistan PLD 1997 Kar. 62, (2) Cementation Intrafor and others v. Indus Valley 1989 M LD 4906, (3)
17. Messrs Taurus Securities Limited v. Arif Saigol and others 2002 CLD 1665, (4) All India Reporter Ltd.
18. And another v. Ramchandra Dhondo Datar AIR 1961 Bom. 292, (5) Messrs Muhammad Siddiq Muhammad Umar and another v. The Australasia Bank Ltd. PLD 1966 SC 684, (6) The Central Bank of India Ltd. v. Messrs Taj-ud-Din Abdur Rauf and others 1992 SCM R 846, (7) Khan Iftikhar Hussain Khan of Mamdot v. Messrs Ghulam Nabi Corporation Ltd. PLD 1959 SC (Pak.) 258 and (8) H.M.
19. Ebrahim Sait v. South India Industrials Ltd. AIR 1938 Mad.
20. 962.
21. ' So far the powers of the Court to order a party to deposit in Court the money or some other thing which is subject-matter of the suit, learned counsel has referred to Order XXXIX, rule 10, C.P.C. Is very clear on the point. For ready reference it is reproduced hereinafter:-- "10. Deposit of money, etc., in Court.--- Where the subject-matter of the suit is money or some other thing capable of delivery, and any party thereto admits that he holds such money or other thing as a trustee for another party, or that it belongs or is due to another party, the Court may order the same to be deposited in Court or delivered to such last named party, with or without security, subject to the further direction of the Court."
22. ' Finally it has been argued that the defendant has not denied withholding of the said documents and the only plea to justify such act as taken by the defendant is their right of lien to retain the same unless their remuneration is paid. The claim for such remuneration has been denied by the plaintiff and according to the learned counsel it will require evidence at the trial stage. However, it has come on record that the documents in question are required to be produced by the plaintiff before a Court in England where the proceedings between the plaintiff and the Government of Pakistan (as a guarantor for K.E.S.C.) are pending, hence the plaintiff is entitled for the relief sought.
23. ' Mr. Muhammad Akram Zuberi learned counsel for the defendant has argued on the same points as raised in the counter-affidavit filed by Gohar Manzoor particularly with reference to noncompliance of order XXIX, rule 2, C.P.C. And the lien over the documents in question. He has placed reliance on the cases reported as Messrs V.N. Lakhani & Co., Karachi v. Government of Pakistan and 2 others PLD 1975 Kar. 781, Adamjee Paper and Board Mills Ltd. v. Maritime Agencies Ltd. 1984 CLC 440 and Devendrakumar v. Gulabsingh AIR 1946 Nag.
24. 114.
25. ' I find force in the contentions of Mr. M. Akram Zuberi learned counsel for the defendant so far the objection regarding maintainability of the suit is concerned. Indeed, this suit has been filed on the basis of a power of attorney executed by a Director of the plaintiff-Company in favour of Ms. Samina Siddiqui and other Advocates in exercise of the powers conferred upon him under Article 80 of the Memorandum and Articles of Association of the plaintiff's company, but the fact remains that there is no resolution which appears to be necessary even under Article 80, which has been referred by the learned counsel for the plaintiff. Opening words of Article 80 show that the powers to be exercised under the said Article are "subject to any resolution of the Board". Thus, it appears that a resolution of the Board is sine qua non before exercise of the powers under Article 80 of the Memorandum and Articles of Association of the plaintiff by its Chief Executive. The case-law referred by the learned counsel for the plaintiff thus, appears to be distinguishable as in the cited cases no such condition appeared in the Memorandum and Articles of the said Association.
26. Resultantly this suit as filed appears to be barred under the law, hence the plaint is rejected under Order VII, rule 11, C.P.C. Since the plaint has been rejected, hence the other contention of the learned counsel for the defendant claiming the right of lien, does not require any finding by this Court.
27. Consequently, C. M. A. No,1517 of 2004 is also dismissed having become infructuous. There will be no order as to costs.