Messrs Awana Commercial Finance Limited was ordered to be wound up on 7-7-1980 and in the course of the winding up proceedings, the property bearing No.372, Kashmir Block, Allama Iqbal Town, Lahore was sold in the year 1988, through inviting open bids. Successful bidder according to terms of bid made the payment of Rs.275,000, as being auction price. The appellant challenged the sale by moving an application (C.M. No.286-L of 1988), which was dismissed on 20-6-1993. The order of dismissal of application was assailed through Civil Petition for leave to Appeal No.444-L of 1993. The petition also met the fate of dismissal due to non-prosecution, by the Honourable Supreme Court of Pakistan, on 19-11-1997. The apex Court declined to accede to the request of the appellant for the restoration of the petition, dismissed for non-prosecution. Through filing another application i.e. C.M. No.774-L of 2002 (application in hand) the appellant prayed for a similar relief, which has earlier been denied to him. Learned Single Judge in Chamber vide order dated 29-1-2002 dismissed the application of the appellant, hence this appeal.
2. The order impugned in this appeal is of the Company Judge, passed after the winding up order, as such is appealable before the Honourable Supreme of Pakistan. Learned counsel when confronted, has submitted that the order impugned is by the learned Company Judge in his original jurisdiction and an appeal against such order lies to a Division Bench of this Court, within the contemplation of subsection (2) of section 10 of the Companies Ordinance, 1984 read with section 3 of the Law Reforms Ordinance, 1972.
3. Learned counsel for the appellant addressed arguments on the maintainability of the appeal as well as on merits. We proceed to decide the appeal on the ground of its maintainability and are not inclined to touch the merits of the case, therefore, there is no need to note 'down the submissions on merits. Learned counsel for the respondent has fully supported the impugned order.
4. Heard learned counsel for the parties and perused the record.
5. An appeal arising out of an order passed by the Company Judge, under the provisions of Companies Ordinance, 1984 has been provided in section 10 of the Ordinance (ibid), which reads as under:-- "10. Appeals against Court orders.---(1) Notwithstanding anything contained in any other law, an appeal against any order, decision or judgment of the Court under this Ordinance shall in to the Supreme Court where the company ordered to be wound up has a paid up share capital of not less than one million rupees: and, where the company ordered to be would up has a paid up capital of less than one million rupees, or has no share capital, such appeal shall lie only if the Supreme Court grants leave to appeal.
(2) Save as provided in subsection (1), an appeal from any order made or decision given by the Court shall lie in the same manner in which and subject to the same conditions under which appeals he from any order or decision of the Court.
(3) An appeal preferred under subsection (2) shall be finally disposed of by the Court -hearing the appeal within ninety days of the submission of the appeal."
6. The interpretation and scope of section 10 came up for consideration before the various Courts from time to time and we feel it necessary to go through the view taken by the Courts in this respect:---
(i) The apex Court in case of Ibrahim Shamsi and 21 others v. Bashir Ahmad Memon/Official Liquidator and another PLD 2006 SC 584 = 2005 SCMR 1450 has observed that section 10(1) does not pertain to the order of winding up alone, because the legislature has not used singular term i.e. Of winding up, to the effect that any judgment whereby the company is ordered to wound up shall be appealable to Supreme Court. Contrary to use of single term the use of Multiples like 'order'. 'decision' or judgment' certainly covers wider ambit and point to scenario when different orders, not necessarily of winding up, might be challenged in appeal. Learned Court further analyzed that phrase "ordered to be wound up" has been, used instead of "sought to be wound up" . The scope of appeal was restricted to the extent of .a winding up order the latter phrase would have been used.
(ii) Honourable Supreme Court in the case of S. Muhammad Din & Sons and another v. Allied Bank of Pakistan and 5 others 1992 SCMR 1795 has held that an appeal against the order of Company Judge is only competent before Supreme Court when an order or decision has been made in the proceedings when the company has already been ordered to be wound up.
(iii) A winding up order passed under sections 162 and 166 of the repealed Companies Act, 1913, was assailed in appeal before Division Bench of Sindh High Court, in the case of Mahboob Industries Ltd. v. PICIC 1998 CLC 806 it was held that order is appealable before the Supreme Court, in terms of provisions of section 10 of the Companies Ordinance.
(iv) It was held in the case of Messrs Aeroflot Russian Industrial Airline v. Garry's International (Pvt.)
Ltd. 2003 CLC 211 that where company has not been ordered to be wound up but the petition for winding up was dismissed, thus appeal before a Division Bench was competently filed.
(v) It was laid down in the case of Brother Steels Mills Ltd. And others v. Mian Ilyas Miraj and 14 others PLD 1996 SC 543 that if no winding up of the company has been passed, section 10(1) will not be attracted.
(vi) According to view taken in the case of Muhammad Farooq v. Messrs T.J. Ibrahim & Co. And Alliance Motors (Pvt.) Ltd. PLD 1999 Karachi 246, the provisions of section 10(1) could not be restricted only to the validity of winding up order, but same apply to the orders passed thereafter.
(vii) It has been held by a Division Bench of this Court in the case of Ch. Jamil Ahmad v. Nippon Bobbin Company (Pakistan) Ltd. PLD 1991 Lahore 467 that the word "any" as it appear in section 10(1) has a significant meaning, it has a sweeping connotation to cover all order, decision or judgment of the Court issued under Ordinance, when the winding up order has already been made.
(viii) In the case of Messrs Sunrise Textile Ltd. v. Mashreq Bank PLD 1976 Lahore 1, the provisions of section 10(1) thoroughly examined and various jurisdictions of the. High Court were considered. It was observed by the Court that the legislature has designated the Supreme Court as appellate forum against the decision of Company Judge when the Company has been wound up.
7. The above survey of law brings us to the conclusion that use of word 'any' enlarges the scope and brings within its purview any order of Company Judge after the winding up, in addition to that use of multiples like 'order', 'decision' or judgment' against singular i.e. 'order' connotes that appeal provided in section 10(1) is not restricted to only to an order passed for winding up. Further the intent of Legislature becomes apparent when a specific phrase 'ordering the winding up of company' as against 'company sought to be wound up' has been used, to enlarge the scope of appeal to every decision made, after the winding up of a company is ordered. Use of aforementioned word and phrase is meaningful to bring into the purview of appeal, all orders/decisions/judgment passed by the Company Judge subsequent to winding up order including the order for winding up.
8. The order impugned before us, is in the course of winding up and appeal against such order does not lie before a Division Bench of this Court. The appeal is not maintainable and is accordingly dismissed.