SH. AZMAT SAEED, J.---This petition under section 152 of the Companies Ordinance No.XLVII of 1984 seeks rectification of the register of share-holders of respondent No.1 company. It is contended through this petition that petitioner Nos.1 and 2 are the only daughters while respondent No.2 is the son of the late Mr. Ghulam Ullah Chaudhary, who was allegedly the founding Director and share- holder of respondent No.1 company and managed its affairs till his death in January, 1999. It is further contended that Mst. Rafiqua Begum, mother of the petitioners and respondent No.2, was also a share-holder of respondent No.1 company who retained such status till her death and she pre-deceased her husband.
2. It is the case of the petitioners that they were also shareholders of respondent No.1 company, the factum whereof was duly reflected in the Form-A, filed by respondent No.1 company. In 1997, suddenly and without any legal or factual basis their names were removed from the return, filed by the Company on 17-4-1997. It is further contended that Mr. Ghulam Ullah Chaudhary and Mst.
Rafiqua Begum had admittedly passed away and their shares by operation of law have devolved upon their legal heirs i.e. The petitioners and respondent No.2 with half of the share vesting equally in petitioners and the balance half vesting in the respondent No.2. .However, in the Form-A filed by respondent No.1 company such devolution of shares by inheritance in favour of the petitioners is not reflected and the same appears to have been transferred to the respondents Nos.3 to 7, who are the wife and the sons of respondent No.2. In the above circumstances, rectification of the register of members has been prayed for so as to reflect the true shareholding of the petitioners in respondent No.1 company.
3. The respondents filed their reply controverting the contentions raised on behalf of the petitioners.
The primary objection taken is that the instant petition under section 152 of the Companies Ordinance No.XLVII of 1984 is barred by limitation and has been filed with an inordinate delay, as the transaction challenged pertains to the year 1997. It is further contended that the, dispute pertains to inheritance, which cannot be adjudicated upon by this Court while exercising its summary jurisdiction under section 152 of the Companies Ordinance No.XLVII of 1984 and the petitioners must necessarily invoke the jurisdiction of the Civil Courts. With regard to the factual controversy pertaining to the original shareholding of the petitioners it has been contended as follows:- "4. That para. Is correct only to the extent that the petitioners were the share-holders of the respondent No.1 till April, 1997. The petitioner No.1 was Holding 3,092 shares and petitioner No.2 was holding 4,993 shares of the respondent No.1 Copy of the Return of 1996 is annexed herewith as annexure 'A'. However, both the petitioners sold their shares to respondent No.2. Therefore, as they held no share in the respondent No.1 in the year 1997 therefore, their names were omitted from the return under section 156 of the Companies Ordinance 1984."
4. With reference to the shares vesting in late Mr. Ghulam Ullah Chaudhary and late Mst. Rafiqua Begum, the parents of the petitioners and respondent No.2 it has been contended on behalf of the respondents which is as follows:-
7. That the para. Is absolutely vague, misleading and incorrect hence denied. However, on the death of the mother of the petitioners their father inherited her shares which he showed in Column 8-B of his wealth statement dated 30-9-1996 and 30-6-1997. Then he sold those shares to respondent No.2, which were transferred in the name of the respondent No.2 under Clause 8 of the Articles of Association of the respondent No.1 and the fact is evident from the Return of 1998. This fact is further endorsed from the wealth statement of Mr. Ghulam Ullah Chaudhary (the father of the petitioners and respondent No.2) for the year 1997-1998 where he did not mention the shares of respondent No.1 in. Column 8-B of the Wealth Statement. It is further stated that upon the death of the father of the petitioners and respondent No.2 in the year 1999 the petitioners again sold their respective inheritance to the respondent No.2. Therefore, since 1997 the petitioners were not holding even a single share' of respondent No.1 therefore, the returns prepared in due course did not bear their names. Copies of the Wealth Statement of Mr. Ghularn Ullah Chaudhary for the year 1996 to 1998 are annexed herewith as annexure Al, A2 and A3. And Return of respondent No.1 for the year 1997 to 1998 are annexed herewith as Annexures B1 and B2."
5. Learned counsel for the parties have been heard and the record appended with petition has also been perused.
6. It is the case of the petitioners that they were admittedly share-holders of the respondent No. 1/company and were entitled to further share through inheritance which are not reflected in the register of members. It is further contended that the petitioners have not transferred their shares to the respondents; and even otherwise the respondents have neither produced any transfer deed duly stamped and executed by the petitioners; nor the original shares scripts. Consequently, register of members is liable to be rectified. It is further contended that the petitioners were denied access to the record of the company, hence, till the filing of the petition they were unaware of the acts and omissions of the respondents regarding the unauthorized changes in the register of members. Even otherwise, it is contended that no limitation is provided for filing of a petition under section 152 of the Companies Ordinance No.XLVII of 1984, especially, where the right of inheritance is claimed. In support of his contentions, learned counsel for the petitioner has placed reliance upon the judgments reported as Juma Khan v. Mst. Bibi Zenaba PLD 2003 SC 823, Muhammad Zubair and others v. Muhammad Sharif 2005 SCMR 1217, Muhammad Iqbal and 5 others v. Allah Bachaya and 18 others 2005 SCMR 1447, Mst. Kaneezan Bibi and others v. Muhammad Ramzan 2005 SCMR 1534, S. Bikram Singh v. Patiala Banaspati and Allied Products Co. Ltd. And others 1956 PEPSU 98 AIR V. 43 C.32 Dee and Sha Mulchand and Co. Ltd. v. Jawahar Mills. Ltd., Salem AIR 1953 Sup. Court 1998 (Vol. 40, C.N. 27).
7. Learned counsel for the respondents has controverted the contentions raised on behalf of the petitioners and has further contended that no explanation for the inordinate delay has been spelt out in the petition under reference; or, any miscellaneous application in this behalf has been appended thereto. Adds that complicated questions of law and facts are involved, which cannot be determined by this Court in the summary jurisdiction invoked by the petitioners. In support of his contentions, the learned counsel has placed reliance on the judgments reported as Khurshid Ahmad Khan and another v. Pak Cycle Manufacturing Company Ltd., Shandara and 4 others PLD 1978 Lahore 1, Syed Shafqat Hussain v. Registrar, Joint Stock Companies, Lahore and others PLD 2001 Lahore 523, Syed Akbar All v. Mamun All Bumasuk (Pvt.) Ltd. And others 2006 CLD 960, Haji Gulshan v. Abdul Qayoom and 4 others PLD 1991 Pesh. 85, Sher Muhammad Jan and another v. Mst. Shahzadi Mafia Sultan and another PLD 1955 Lahore 593 and Bostan and 5 others v. Mst. Sattar Bibi and 11 others PLD 1993. SC (AJ&K) 24.
8. Reverting first to the preliminary objection taken by the respondents that the instant petition is barred by limitation or otherwise barred by flux of time. The objection of limitation as raised has come for adjudication before this Court in the context of the petition under section 152 of the Companies Ordinance No.XLVII of 1984. This Court in the judgment reported as Talib Hussain v.
Babu Muhammad Shafi and 12 others PLD 1987 Lahore 1 has held that:-- "7. This plea is misconceived. The power vesting in Court under section 152, is to be exercised in cases where legal title of the applicant clear, as in a complicated or doubtful case, summary jurisdiction ought not to be exercised. This was so held as early as the year 1877 in the matter of the Diamond Rock Boring Company Ltd. (1877) 2 Q.B.D.
463. It is true that this section gives the Judge wide discretion in deciding matters relating to the rectification of Register of Members but that would mean that each and every controversy raised respecting the shares or right claimed with regard thereto can be considered and determined by the Court. In a case where sale of shares is not complete, remedy under general law is to be availed of by instituting proper proceedings in the civil Courts of plenary jurisdiction. The summary proceedings under section 152 Companies Ordinance, 1984, cannot be resorted to when the suit for seeking same relief has become barred by time under the Limitation Act. Again the discretion vesting in the Court will not be exercised in favour of a party guilty of ladies. The delay in a given case may give rise to equitable considerations and disentitle a party from seeking a particular relief. In the instant case sale of shares was admittedly not complete. Learned counsel for the petitioners was not in a position to urge that suit for specific performance if now filed, will not be liable to be dismissed as barred by time. The petitioners in the circumstances noted above are not entitled to invoke jurisdiction vesting in this Court under section 152, Companies Ordinance. For the reasons given above, there is no alternative but to dismiss this petition."
The matter also came up for consideration before the Honourable Sindh High Court in the case reported as Syed Akbar All v. Manum Ali Bumasuk (Pvt.) Ltd. And others 2006 CLD 960, wherein it has been held as under:- "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 whether Article 120 of the Limitation Act and/or Article 481 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 arr 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 exce .Tional circumstances a art 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."
9. In the case reported as PLD 2002 Lahore 443, an objection was taken that an application under section 152 of the Companies Ordinance No.XLVII of 1984 was barred by limitation having been filed beyond the period prescribed under Article 120 of the Limitation Act 1908. The said objection was noted but no definitive opinion was expressed by the Court and the petition under section 152 of the Companies Ordinance No.XLVII of 1984 was dismissed on the ground that allegations made therein could not be resolved without recording of detailed evidence, which exercise was not germane to the summary proceedings under the Companies Ordinance, therefore, the petitioner must seek his remedy before the Civil Court first. In the said case, the objection had been raised relying upon the judgment of the Indian Supreme Court reported as Sha Mulchand and Co., Ltd. v.
Jawahar Mills Ltd. Salem AIR 1953 SC 98 at 104, wherein the Honourable Supreme Court of India while dealing with the matter held as follows:-- " We need not, however, on- this occasion, pursue the matter further, for we are of the opinion that even if Article 181 does apply to the present application it may still be said to be within time. The period of limitation prescribed by that Article is three years from the time "when the right to apply accrues". It is true that no further notice after the shares are forfeited, is not necessary to complete the forfeiture of the shares: See-'Knight's case (1867) 2 Ch 321, but it is difficult to see how a person whose share is forfeited and whose name is struck out from the register can apply for rectification of the register until he comes to know of the forfeiture. The same 'terminus a quo' is also prescribed in Article 120, Limitation. Act. In -O.R.M.O.M.S.P. (Firm) v. Nagappa Chettiar' ILR 1941 Mad 175 (PC) which was a suit to recover trust property from a person who had taken it, with notice of the trust, by a transaction which was a breach of trust, the Privy Council approved and applied the principles of the earlier Indian decisions referred to therein to the case before them and held that the time began to run under Art. 120 after the plaintiff came to know of the transaction, which gave him the right to sue..................... Therefore, the Company must be deemed to have come to know of its cause of action after it came to life again and the present application was certainly made well within three years after that event happened on 16-2-1945. If Article 181 does not apply then the only Article can apply by analogy is Art. 120 and the application is also within time. In either view this application cannot be thrown out as barred by limitation."
10. In subsequent decisions in the Indian jurisdiction, it has however been observed that a petition seeking rectification of the register of members falls within the ambit of residual Article of the Limitation Act for the filing of applications with the prescribed limitation of three years. In this behalf reference may be made to the judgment Delhi High Court reported as Anil Gupta v. Delhi Cloth and General Mills Co. Ltd. 1983 (54) Companies Ordinance Cases 301.
11. An over view of the judgment cited at the bar referred to above reveals time available for filing a petition under section 152 of the Companies Ordinance, 1984 is not open ended where a suit based in a same cause of action seeking substantially the same relief as prayed for under section 152 of the Companies Ordinance No.XLVII of 1984 has become barred by limitation, the application of this under section 152 of the Ordinance would ordinarily be liable' to be dismissed. Time of the knowledge of the facts and circumstances giving rise to the cause of action would be relevant. In our jurisdiction there appears to be no definitive precedent to the effect that the provision of Limitation Act applies to a petition under section 152 of the Companies Ordinance or whether the same is covered under Article 120 or Article 181 thereof however in the Indian Jurisdiction such an application is treated to be covered by the residual Article pertaining to filing of application (i. e. In para materia to Article 181 of the Limitation Act 1908). However, this aspect of the matter need not to be adjudicated upon for the purpose of deciding the lis in hand as in the instant case, the petitioners have categorically stated that they were excluded from the management of the company and had no direct nexus therewith. And in Para-9 of the petition with reference to the date of knowledge it has been categorically stated that recently on coming to know about the alleged intention of the respondents to dispose of all the assets of the company, they approached the Registrar Joint Stock' Companies and discovered that their names have been excluded from the register of members as was evident from the Form-A B submitted on behalf of the company. In response to Para-9 of the petition rather in reply thereto the respondents have merely written "This para is absolutely incorrect hence denied." Denial simpliciter without specifically alleging knowledge of the petitioners of the transactions in dispute is neither sufficient nor inspire confidence. It has also been noted that nowhere in the reply the date of the transfers of the shares has been specified. Close relationship between the parties can also be ignored. Furthermore, a part of the claim of the petitioners pertains to inheritance of the shares owned by the late Mst. Rafiqua Begum and late Mr. Ghulam Ullah Chaudhary and it is a settled law that no limitation applies in respect of claims of C inheritance as has been held by the Honourable Supreme Court in the judgments reported as Muhammad Iqbal and 5 others v. Allah Bachaya and 18 others 2005 SCMR 1447 and Mst. Kaneezan Bibi and others v. Muhammad Ramzan and others 2005 SCMR 1534.
12. With reference to the laches suffice it to say that the same is a sub-specie of estoppel and there can be no question of estoppel in the absence of knowledge of relevant facts.
13. In view of the facts and circumstances of the case, this Court is not persuaded to dismiss this petition on the preliminary objection that it is barred by limitation.
14. It is an admitted fact between the parties that the petitioners were at one point of time shareholders in the company with the petitioner No.1 holding 3099 shares and petitioner No.2 4993 shares. Such shares only could have been transferred in accordance with the section 76 Companies Ordinance No.XLVII of 1984 requiring a duly stamped transfer deed executed by the petitioners along with the original share stamps be lodged with the copy. It has not been pleaded in the reply to this petition that any such transfer deeds were ever executed, duly stamped or delivered to the company along with the original scripts. No such transfer deeds or any original scripts of copies thereof have been filed with this reply at any later stage. Similarly, it is also an admitted fact that the shares also vested in the name of Mr. Ghulam Ullah Chaudhary and Mst.
Rafiqua Begum. It is also an admitted fact that the F petitioners in view of the law of inheritance applicable to the parties, the petitioners are also the legal heirs entitled to inherited 25% of the shares each with the balance of 50% going to respondent No.1-. The respondents have claimed transfer of such Share unto themselves, however, neither they claim that any transfer deeds were ever executed by the late Mr. Ghulam Ullah Chaudhary and Mst. Rafiqua Begum nor such transfer deeds duly executed and stamped along with the scripts were ever delivered to the respondent No.1 company. No such transfer deeds purported to have been executed by Mr. Ghulam Ullah Chaudhary and Mst. Rafiqua Begum duly stamped and scripts of shares or copies thereof were appended with the reply nor copies thereof filed in this Court. In view of the above, it i,s clear and obvious that requirements of section 76 of the Companies Ordinance No.XLVII of 1984 have not been complied with which are mandatory in nature. In the absence of such compliance no transfer of shares in law stand effected and the register of G members therefore, is liable to be rectified as has been held in the judgments reported as Siddique Muhammad Malik and 4 others v. Immad Iftikhar Malik (2000 CLC 477) and Nisar Ahmad Chaudhry v. Suleman Spinning Mills Ltd. And 2 others (PLJ 1998 Lahore 1017).
15. In the above circumstances, this petition is accepted. The respondents are directed to rectify their register of members so as to reflect petitioner No.1 holding 3092 shares plus 25% of the shares originally held by Mr. Ghualm Ullah Chaudhary and Mst. Rafiqua Begum; and petitioner No.2 holding 4993 shares plus 25% of the shares accumulatively held by Mr. Ghulam Ullah Chaudhary, and Mst. Rafiqua Begum.
This petition is accepted in the above terms.