' SYED HAMID ALI SHAH, J.---Respondent No,1 is a private limited company by shares, which was being run and managed by the petitioner till 31-12-2001. Petitioner, along with other shareholders of the company, entered into a sale agreement dated 17-2-1999, whereby the shares of respondent No,1 were sold and transferred to respondent No,2. It was agreed between the parties that an amount of Rs,14 million, shall be paid as consideration of the shares, which the buyer shall pay to the tune of Rs,4 million to the outgoing shareholders, Rs,6.4 million to IDBP towards realization of debt and Rs,3.58 million to the other creditors. Besides, the above payment, buyer/transferee undertook to get the personal guarantees of the petitioner rdleased from IDBP.
2. Learned counsel has contended that the petitioner conceived the idea of incorporating respondent No,1 and for setting up a going concern, the company applied for "locally manufactured machinery loan" of Rs, 10 million, which was unreasonably delayed by the lender
(IDBP) and despite, elapse of considerable time, only Rs,8 million were sanctioned and disbursed.
Due to non-availability of working capital, the project was closed in 1991. The equity/shareholding in the company, was transferred to respondent No,2 to run the project and to pay all the liabilities.
Respondent No,2, instead of paying the liabilities, took additional loan of Rs,6 million. Respondent No,2 is managing the affairs of the company in an illegal, unlawful and fraudulent manner. He has committed acts of malfeasance, in relation to the company. Various letters, on different dates, were addressed to respondent No,2, but he failed to respond to the letters. Petitioner approached IDBP, conveyed orally that loan is misutilized. The lender was also informed on telephone about illegal and fraudulent attitude of respondent No,2, in managing the affairs of the company.
Respondent No,2 took advantage of the blank cheques, issued by the petitioner, during his absence. Respondent No,2 withdrew various amounts, when he was attending his ailing mother in Rawalpindi. Respondent No,1 has shown in the corporate record that the petitioner had resigned.
Mediation was effected through Aftab Arshad and to settle the matter amicably, the petitioner delivered shares scripts to Badar-ud-Din, who, presented these scripts in the course of settlement/mediation. Mr. Aftab Arshad, through misrepresentation on the pretext of scrutiny, took scripts and never returned the same to the petitioner or Badar-ud-Din. Petitioner seeks rectification of the shares on the ground that consideration has not been paid, personal guarantees having not been released, false F.I.R. Against the petitioner was lodged for theft and the shares were snatched and transferred by respondent No,2 to his name, illegally and unlawfully. Petitioner has never resigned as Chief Executive but has shown in the corporate record of the company having retired on 30-12-2002.
3. Learned counsel further contended that forged and fraudulent transfer is nullity in the eye of law and person deprived of his right can compel for his reinstatement, on the register of shareholder.
Learned counsel has contended at the end, that delay in seeking rectification of register of shareholders is not fatal and supported his contention by referring to the case "Smt. Mohadevi v.
Motiram Roshan La! Coal Co." AIR 1939 Patna 603.
4.
4. While, on the other hand, respondents have filed separate written statements/replies. It is contended by learned counsel for the respondents that respondent No,2, has made the payment of the entire consideration according to the terms of agreement dated 17-2-1999 to the transferors/vendors, private creditors and to IDBP. The loan amount of IDBP is being paid, according to the schedule of payment and there is no default. Respondent No,2 has forwarded a request for replacement of the personal guarantee, which is under consideration with IDBP. It was contended that 50% shares were transferred in the name of respondent No,2 on 26-5-1999. Remaining 50 % shares were transferred in the name of respondent No,2 on 20-11-2000 and 25-10 -2001 respectively. Learned counsel emphasized that transfer deeds, were never procured through misrepresentation by the Mediators, on the pretext of settlement. Learned counsel has submitted that the corporate record of the company reflects that the shares were transferred long before the alleged date of settlement. It was contended that respondent No,2 has performed his part of performance under agreement dated 17-2-1993 and the petitioner now has, no link or relationship with the company, as he was retired from the Directorship on 31-12-2000 and all his shares stood transferred to respondent No,2. Learned counsel has submitted that the loan of IDBP was re- structured and outstanding amount is being paid, according to the settlement, by respondent No,2 to the Bank. Learned counsel has submitted that the petitioner has already filed a suit and in view of the pendency of the suit, instant petition is not competent.
5. Heard learned counsel for the parties and record perused.
6. The grievance of the petitioner relates to the nonperformance of the agreement dated 17-2-1999.
The petitioner has asserted that consideration, according to the terms of the agreement, has not been paid, while respondent claims that the entire consideration has been paid. Corporate record of the company reflects that Board of Directors, comprising of three Directors before the change in the management occurred, namely Nasir Rafique, Aamir Rafique and Ashiq Hussain. These Directors had resigned, during the period, when the petitioner himself was the Chief Executive of the company. 50 % of the transfer deeds were handed over to respondent No,2 in November/December, 2000 against a receipt dated 10-12-2000. The shares were transferred in the name of respondent No,2 on 20-11-2000 and 25-10-2001 respectively, which fact is apparent from Form A filed and submitted to SECP. The corporate record of the company and return sent to SECP transpires that the shares stood transferred to respondent No,2 as far as back in 2001.
7. Petitioner has agitated the matter through instant petition after about 6 (six) years. The controversy relates to the performance of agreement. The agreement contains the arbitration clause for settlement of dispute, in connection with agreement dated 17-2-1999. The dispute arising under the agreement and non-performance of any of its agreed terms, requires determination through arbitration, which course has not been adopted by the petitioner.
8. The petitioner seeks rectification of register o shareholders on the ground that name of the petitioner was A fraudulently removed from the register. The respondents on the other hand, denied this fact and stated that shares were validly transferred to respondent No,2 and the petitioner has received the consideration of the shares. Strong unimpeachable evidence is needed to rebut this fact, which can be undertaken by recording of evidence after framing relevant issues.
The proceedings before this Court under section 152 of Ordinance, 1984, are summary in nature.
Complicated and intricate factual controversy falls outside the ambit of summary proceedings, therefore, this Court has no jurisdiction to entertain and adjudicate upon the claim of the petitioner.
9. For the foregoing, the case of the petitioner does riot fall A within the purview of section 152, additionally, it involves a factual controversy, therefore, I am not inclined to entertain this petition.
This petition has no merit and is accordingly dismissed.