1. C.M.A. No, 1254 of 2005 ' KHILJI ARIF HUSSAIN, J.---The brief facts of case for the purpose of deciding the application under section 3 of the Limitation Act, 1908 filed on behalf of the respondents are that the petitioner filed an application under section 152 of the Companies Ordinance, 1984 for the rectification of Register of Members alleging that the petitioner is the shareholder/member of the company and remained director up to 31-12-1992 when under duress and coercion was forced to sign pre-drafted resignation letter from the directorship of the company and that he had never applied for the transfer of his shares to respondent No,2. It is alleged that the letter, dated 31-12-1992 was not put in the Board Meeting of the Company. The petitioner stated that after signing the resignation letter, which was though signed by force, the petitioner stopped working as a Director of the company, however, the petitioner was entitled to receive the dividend and all other profits according to the shareholding of the petitioner in the company. By a letter, dated 29-12-1996 addressed to Joint Registrar Companies he informed that he is still holding share of the company and requested to protect his shareholding. Along with the petition the petitioner, placed on record transfer deed dated 20-12-1992, on the basis of which petitioner's shares were transferred in favour of respondent No,2, and her name was duly recorded in the register maintained by respondent No,1. The petitioner by this petit ion seeks declaration that the name of the petitioner was fraudulently and without sufficient cause omitted from the register of members and name of respondent No,2 is fraudulently entered in the register of members of the company. The petitioner further prayed for rectification of the register on payment by the respondent a sum of Rs,5 million to the petitioner as damages.
2. ' Heard Mr.Aga Faquir Muhammad learned Adv.. I ate for the petitioner, and Mr. Riazuddin learned Advocate for the respondents.
3. ' Mr. Riazuddim, learned counsel for the respondents, argued that the application under section 152 of the Companies Ordinance, 1984 was filed on 17-5-2004 calling in question transfer of the shares and for the rectification of the register which was affected in the year 1992 on the face of it barred by time. Learned Advocate argued that in terms of Article 120 of the Limitation Act period for filing an application under section 152 of the Companies Ordinance is six years as period for filing such application has not been specifically provided by any Article of the Limitation Act, which expired on 20-12-1998 and listed application is hopelessly bared by time liable to be dismissed. In support of his contention, learned counsel relied upon the case of the Jawahar Mills Ltd. Salem v. Shah Mulchand and Co. Ltd. AIR 1951 Mad. 572 and Syed Shafqat Hussain v. Registrar, Joint Stock Companies, Lahore PLD 2001 Lahore 523. Mr. Riazuddin, learned counsel for the respondent, further argued that due to complicated question of law and facts in the matter, which cannot be answered in summary jurisdiction under section 152 of the Companies Ordinance, the application is liable to be dismissed and the applicant can approach to Civil Court for the relief asked for.
4. ' On the other hand, Mr. Aga Faquir Muhammad, learned counsel for the petitioner, argued that Article 120 of the Limitation Act is not applicable as said Article is applicable only to the suit for which no period of limitation is provided and such suit can be filed within six years when the right to sue accrues, whereas an application under section 152 of the Companies Ordinance, 1984 is neither a suit nor an application covered under section 3 of the Limitation Act. In support of his contention learned Advocate relied on the case of The New Jhelum Transport Co. Ltd. (in Liaquidation), Jhelum v. Malik Nazir Ahmed PLD 1977 Lahore 217.
5. ' I have taken into consideration respective arguments advanced by the learned Advocates for the parties, perused the record. From the perusal of the record it appears that petitioner was holding 440 Ordinary Shares in the respondent company and vide letter, dated 31-12-1992 he resigned from the directorship of the Company and such fact of his voluntary retirement from the directorship has been admitted by him in his letter, dated 29-12-1996. The petitioner not only questioned the transfer of the share by way of fraud, but also questioned resignation letter from the directorship as the same was obtained under coercion. The shares in question were transferred in the name of respondent No,2 sometime in the year 1992 and from 1992 till filing of the petition on 17-5-2004, the petitioner has not questioned such transfer. It is the case of the respondent that the petitioner transferred his 440 shares and tendered resignation from the directorship/chairman/chief executive of the Company and on 31-12-1993 Board of Directors of the Company accepted the resignation and he did not question about transfer of his shareholding or resignation from directorship in the company up to 29-12-1996 when for the first time he addressed a letter to Registrar, Joint Stock Companies that his shares are still intact. It appears from the record that from 1992 till 1996 petitioner has not questioned that he has been forcibly removed from the directorship of the company and or that he is not receiving dividend upon his share or called in question transfer of his shares from his name to the name of respondent No,2. In 1996 for the first time he alleged, while accepting that he had resigned from the directorship, that he still holds the shares but again from 1996 till filing of this application on 17-5-2004 he had not taken any action for getting his share transferred in his name.
6. ' From the facts stated hereinabove it appears that although in the petition under section 152 of the Companies Ordinance, 1984 the petitioner has alleged that under duress and coercion he was forced to sign the pre-drafted resignation letter from the directorship of the company on 31-12- 1992, but the had produced another letter, dated 29-12-1996 addressed by him to the Registrar Joint Stock of the Companies wherein he himself stated that due to unavoidable and unhealthy environment he submitted his resignation from the directorship of the company w,e,f, 31-12-1992 and same being accepted by the Chairman of the Company. In his letter he stated that he is still holding shares of the company. The petitioner has not disputed that his name had not appeared as member/ shareholder of the company in the annual return filed by the company for the year ending on 31-12-1993. It also appears that in the year 1994 the number of directors of the company was reduced from four to two. The respondent No,1 company filed Rent Case No, 102 of 1999 in respect of the premises in possession of the petitioner and even at that point of time the petitioner had not questioned the transfer of the shares from his name to respondent No,2. Now by th is petition which was filed after about eleven years of transfer of shares from his name in the name of respondent No,2 the petitioner has questioned the transfer.
7. ' There are divergence of views amongst the various Courts, some Courts while dealing with an application under section 152 of the Companies Ordinance, 1984, held that while dealing with an application under section 152, Court in exercise of its summary jurisdiction is not bound to decide the complicated question of title and appropriate course in such case is to approach to the Civil Court Rohail Hashmi v. Nabeel and others 2003 CLD 201, Syed Shafqat Hussain v. Registrar, Joint Stock Companies PLD 2001 Lahore 523, Akbar Ali Sharif v. Syed Jamaluddin 1991 MLD 203, Zakir Latif Ansari and others v. Pakistan Industrial Promoters (Ltd.) 1988 CLC 1541. Other view is that although section 152 of the Companies Ordinance, 1984 conferred summary jurisdiction upon Court aggrieved party need not re-litigate to a suit but company Court could itself by complicated question and decided the same Muhammad Mohsin Butt v. Muhammad Inayat Butt 2005 CLD 747.
8. With all humiliation at my command, in my view in a petition under section 152 of the Companies Ordinance 1984, the Court has to make all efforts to decide all the questions arising in the petition to give finding whether the transfer of the shares from the name of the petitioner was fraudulent or not, instead of asking the aggrieved party to get the same decided by a Civil Court instead by the High Court in exercise of its Company Jurisdiction as question involved is intricate question of law and fact. The legislature intended to rectify register of the company if the name of any person is fraudulently or without sufficient cause entered in or omitted from the register of members and Court while dealing with the application has to decide the question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register.
9. The question "whether name of any person is fraudulently or without sufficient cause entered in or omitted from the register?" is a question which can normally be answered on the basis of evidence and such evidence can be recorded in the form of affidavit or otherwise, dependent upon the nature of each case, but merely because matter required recording of evidence, the parties can be deprived from their rights which otherwise can be granted to him to redress his grievance in summary manner under the Companies Jurisdiction and to ask him to go under a lengthy civil litigation.
10. ' Coming to the question whether the petitioner is entitled for the relief asked for as I have observed hereinabove that the petitioner has taken contradictory stand in his petition and in the first instant he said that he was forced to resign from the directorship of the company on 31-12-1992 whereas in the letter, dated 29-12-1996 addressed by him to the Joint Registrar Companies, he said that due to unavoidable and unhealthy working environments he submitted his resignation from the directorship of the company. Be that as it may, the facts remained that from 1992 till filing of the petition, the petitioner has not questioned transfer of the share from his name to the name of respondent No,2 by filing civil suit seeking declaration about his title in the said shares or by filing an application under section 152 of the Companies Ordinance, 1984. On receiving complaints in the year 1996 from the petitioner about his shares respondent No,4 called comments from respondent No,1, who vide his letter, dated 4-3-1997 stated that the shares were duly transferred from the name of the petitioner in the name of the respondent No,2. Again the learned Advocate of the petitioner served notice in the year 2000 which was replied by respondent No,1 that the shares were duly transferred from the name of the petitioner to the name of respondent No,2.
11. A party, who called in question title of the shares and of omitting his name fraudulently from the register of Company, has two remedies i,e, by filing a suit for declaration before the civil Court and/or by filing an application under section 152 of the Companies Ordinance, 1984 but such remedies ought to have been invoked within the period of limitation provided and if no period is specifically provided then within reasonable period of time. Without going into the question.
12. Whether Article 120 of the Limitation Act and/or Article 181 of the Limitation Act is applicable to the petition under section 152 Companies Ordinance, 1984 or not as such petition is neither a suit nor an application under section 3 of the Limitation Act, the petitioner cannot be allowed to call in question transfer of shares at his own sweet-will. Once a remedy of Civil Suit has become barred by time then only in exceptional circumstances a party can be allowed to avail other remedy if available in law. Since the petitioner has failed to give any reason what to say cogent reason for not questioning the transfer of shares from his name for 11 long years the petitioner is not entitled to discretionary relief under section 152 of the Companies Ordinance, 1984, the petition is, therefore, dismissed.
13. ' In view of the above order, the main application in under section 152 of Companies Ordinance and other pending application are also dismissed.