Muhammad Nawaz Abbasi, J.--These direct appeals have been preferred against the judgment dated 8.8.2005 passed by a learned Single Judge of the High Court of Sindh at Karachi in a matter arising out of proceedings under Sections 305, 309 & 311 of Companies Ordinance, 1984. The order passed by the learned Company Judge in the High Court, was challenged before this Court in C.P.
No, 319-K of 2005 which was converted into an appeal and case was remanded to the High Court for fresh decision of the References Nos, 2 & 3 of 2005 alongwith the objections and miscellaneous applications of the parties. The learned Judge in the High Court in post-remand proceeding vide order dated 11.7.2005, directed for holding fresh bid and this order was also assailed before this Court in Civil Appeal No, 781 of 2005 but pending disposal of the appeal, fresh bid was received, therefore, the appeal was dismissed as not pressed because References in question were still pending for final disposal. The learned Company Judge in the High Court, however, accepted the bid of Rs, 46.20 crore of Memon Abdul Qadir, respondent herein (subsequent bidder) as against bid of Rs, 46.15 crore offered by Ibrahim Shamsi (appellant) and directed him to pay the earnest money within 15 days but he failed to deposit the amount. The grievance of the appellant in the present appeal is that learned Judge in the High Court without deciding the references on merits, in terms of the judgment dated 22.6.2005 passed by this Court in CA No, 652 of 2005, could not accept the bid offered by Memon Abdul Qadir.
2. The learned counsel for the appellant however, without agitating the matter on merits, has submitted that the case may be sent back to the learned Company Judge for decision of the references in accordance with the direction contained in the judgment of this Court. The learned counsel for Abdul Qadir Memon and National Bank of Pakistan, respondent in CA 1871 of 2005 have no objection for the remand of the case whereas learned counsel for the appellant in connected appeal Bearing No, 1325 of 2005, has submitted that the learned Judge without considering the grievance of appellant in this appeal relating to the inclusion of his property in the auction which was not subject-matter of liquidation, decided the references. The operative part of the judgment dated 28.6.2005 passed in Civil Appeal No, 652 of 2005 is reproduced hereunder:-- "Consequently, the petition after conversion into appeal is accepted, the impugned order dated 18.4.2005 is set aside and the case is remanded to the learned Company Bench of the Sindh High Court with direction to decide Reference No, 2 of 2005 and Reference No, 3 of 2005 alongwith all the objections and applications of the parties, after hearing all the parties concerned keeping in view, the larger interest, in accordance with law, of the company under liquidation as well as the creditors. The Court shall decide the matter within 15 days from the receipt of this order."
3. The learned Company Judge in the past-remand proceedings disposed of the matter as under;- - "I have failed to see how Reference No, 3/2005 can be termed as a Reference in violation of any order of the Court. The Official Liquidator was specifically directed to sell the assets of the Company and in compliance of such directions sealed bids were invited by him. A bidder does not acquire any right or interest in the property to be sold merely because he had given highest bid till the time sale is made absolute under Order XXI Rule 92, CPC in his favour. However, after receiving the bids by the Court in case any bid is received more than the bid offered by the highest bidder, then it is advisable that the highest bidder be called and give him an opportunity to meet the same, which opportunity in the instant case has been given to him, but he expressed his inability to match the highest bid given by Memon Abdul Qadir. The learned official Liquidator stated that huge amount is outstanding against the liquidated company apart from dues of the labour, who are running from pillar to post for their long outstanding dues. Official Liquidator was directed to call fresh bids for sale of the assets of the company through publication of advertisement in newspapers vide order dated 11.7.2005. The Official Liquidator got notice published in compliance of the Court order, however, he received only one bid of Rs, 2.5 corer. I would like to mention here that Official Liquidator has received claim from nine creditors totaling to Rs, 91,24,51,653.27 apart from outstanding dues of employees of the company.
As the auction purchase, Memon Abdul Qadir, offered to purchase the property on "as is where is" basis and have a notice of objection taken by Mr. Faisal Kamal on behalf of KEPZ, the offer given by him for the sum of Rs, 46.20 crore, being the highest bid, is accepted. The auction purchaser is directed to deposit the balance amount within 15 days from the date of this order. It made clear that no letter for the renewal of lease in respect of land in question will be issued by the Official Liquidator as properties were sold on "as is where is" basis.
The References Nos, 2, 3, 4 & 5 stand disposed in terms above."
3. We, having heard the learned counsel for the petitioners and gone through the record with their assistance, have found that learned Judge in chamber in the High Court instead of deciding the dispute arising out of References Nos, 2 & 3 of 2005 in terms of the judgment of this Court, confirmed the auction in favour of Memon Abdul Qadir, who entered in the competition at a later stage and offered matching bid with a nominal margin. Be that as it may, we with consent of learned counsel for the parties, send the case to the High Court for decision of the references, alongwith the objections and miscellaneous applications, afresh in the light of the observations contained in the judgment dated 28.6.2005 of this Court within a period of two months. These appeals are allowed in the above terms with no order as to cost.