This petition is made under section 439(6) of the Companies Ordinance, 1984 ("Ordinance") for the restoration of respondent No.1 company ("Company") to the Register of Companies maintained by respondent No.5 Joint Registrar of Companies ("Registrar"). Pursuant to the provision of section 439 of the Ordinance the Registrar notified the general public through the official Gazette inviting objections, within a period of three months from the date of notice dated 6-5-2002, to the dissolution of, inter alia, the Company under section 439 of the Ordinance on the ground that it is not carrying on any business and lacks both assets and liabilities. As no objection to the proposed action was received, the said Registrar struck off the name of the Company from the Register of Companies ("Register") maintained by him.
2. Learned counsel for the petitioner has contended that the Company was incorporated as a family company by three sponsor share-holders and Directors, namely, the petitioner and his two brothers, respondents Nos.2 and 3, each holding 500 shares. The business of the Company was to trade in items of children's use and play. That differences developed between the brothers. The petitioner was ousted from the management in the year 1995 by his two brothers, the respondents Nos.2 and 3, who jointly held majority share holding in the Company.
The petition narrates several wrongs by the management including the failure to declare dividends and by implication to maintain proper accounts; and to hold any annual general meeting apart from other meetings of the members of the Company.
3. This situation is stated to have continued until January, 2004 when the petitioner discovered that on the basis of a bogus Board Resolution allegedly passed unanimously on 15-4-2002 the said respondent sponsors/Directors had applied to the Registrar under the 'Companies Easy Exit Scheme' for striking off the name of Company from the Register. Learned counsel submits that the petitioner was not a party to the proceedings of the Board and the description of its resolution as being unanimous in the application dated 30-4-2002 for seeking the dissolution of the company was utterly fraudulent, baseless and liable to be set aside.
4. Attention of the learned counsel was drawn to the provisions of section 439(6) of the Ordinance whereby this Court is to interfere with the order of striking off a company's name from the Register if the Court is "satisfied that the company was, at the time of striking off, carrying on business or in operation or otherwise that it is just that the company be restored to the Register, order the name of the company to be restored to the Register". Learned counsel for the petitioner admits that the Company is not engaged in any business but maintains that it has assets which were being accounted in the records of a firm that respondents Nos.2 and 3 are running, in the name and style of Sun Colour Garments.
5. On the other hand, learned counsel for the respondent has placed on record the certificate of national tax number of the Company issued on 4-9-2000 as well as a similar certificate for the sole proprietorship, Sun Colour Garments dated 15-3-1996 issued in the name of respondent No.2 as its proprietor. He has also attached assessment order of the company for the assessment year 1993- 94 when it was doing business and had paid tax in the amount of Rs.6,274. The assessment order shows that the Company derived its income from renting out property. Another assessment order of the Company for the assessm ent year 2000-2001 shows the payment by it of income tax in the amount of Rs.15,848. Again the assessed income is stated to have accrued to the Company as rental income. The aforesaid record shows that contrary to the assertion made in the petition, the Company was not engaged in business of trading in children's items but in renting out properties.
Even that business had ceased to exist.
6. Learned counsel for the respondents has also drawn attention to the report of a local commission appointed by this Court. The report records the assets at the premises where the Company did its business and states that there was no sign of business being conducted at such premises, all rooms were empty and most of them locked. Finally, it is apparent from the report that the petitioner had sought to include the premises of shop bearing the name, Sun Colour Garments, within the ambit of the inventory task by a local commissioner. That was, however, not done due to resistance by the respondents who produced evidence of tax registration and payment showing that the respondent No.2 was owner of the shop and the Company had nothing to do with it. The petitioner did not file any objection to any comment made or default committed by the Local Commissioner. Nor did the petitioner cite any evidence showing that the assets of and business being conducted (by respondents Nos.2 and 3 in the shop actually belonged to or were connected with the business of the Company.
7. In order to grant relief prayed, the Court must, under the applicable legal provisions, be satisfied that the company whose name has been struck off had been doing business and therefore, deserves to be revived. The petitioner has not been able to establish an ongoing business of the Company nor to show the existence of any assets of the Company because the learned counsel accepts that the rented properties dealt by the Company actually belong to its sponsors. It may be pointed out that the petitioner has not brought on record any audited accounts of the Company nor any document showing either its ownership of any assets or its outstanding financial liability owed to creditors. More significantly, the petitioner has failed to explain his own default for the 9 years after his ouster from the management and affairs of the Company, to assert his personal rights as share-holder, sponsor or Director of the Company or to seek relief for protection and promotion of the business of the Company.
8. From the petition it appears that the petitioner has been perturbed by the attribution of his consent in the allegedly "unanimous" resolution of the Board of the Directors seeking dissolution of the Company. It is prima facie evident that the said resolution does make a false claim of unanimity. But the fact of the matter is that even if there was no resolution the Registrar still had authority under section 439(1) of the Ordinance to strike off the name of the Company from the Register where he had reasonable cause to believe that the Company was not carrying on business or was not in operation. The written statement by the Registrar reports that the management of the Company had not filed any statutory return including Form-A and Form-29 from 1991 onward. Accordingly, the Registrar got published notices in the Gazette inviting objections to the striking off the Company name. Such notices were published twice in the official Gazette.
Once under section 439(3) of the Ordinance and again on 16-8-2002 under section 439(5) thereof whereafter the Company stood dissolved. The petitioner may not have received personal notice from the Registrar but he is deemed to have been served with notice by publication. He never disputed the dissolution of respondent company at that time nor has he shown any ground to justify the conditions necessary for an order of restoration of the name of the company to be passed. In these circumstances, there is no merit in the present petition for the relief prayed in terms of section 439(6) of the Ordinance. This petition is accordingly dismissed with no order as to costs.