1. ' MUHAMMAD ALI MAZHAR, J.---By this order, I will dispose of aforesaid reference submitted by the learned Official Assignee. The brief facts of the case are that the petitioner Pima Foods (Pvt.) Ltd.
2. Filed this petition under section 305 read with section 309 of the Companies Ordinance, 1984 for winding up. In the petition it was inter alia contended that the petitioner is a public limited company incorporated in the year, 2002 as joint venture between Messrs International Laboratories (Pvt.) Ltd. (Rangoonwala Group) and Pakistan Industrial Development Corporation (Pvt.) Ltd., pursuant to a joint venture agreement. The primary objective of the company was to carry on the business of storage, handling, processing and export of fruits and vegetables. The equity participation of the parties to joint venture agreement was as under:--
(a) Rangoonwala Group 60%
(b) Pakistan Industrial Development Corporation (Pvt.) Ltd.40% ' It was further contended in the petition that the company commenced its business in the year, 2002 and both the contracting parties of the joint venture agreement were equally responsible for running the company. It was further alleged that the company started suffering losses, therefore, it was prayed in the petition that Pima Foods may be wound up. The main petition was fixed for hearing in this court on 10-1-2007 and the winding up was opposed by the PIDC. After hearing the arguments of the parties, this court was of the view that since company's assets have already been disposed of and company is not in business for last couple of years, therefore, the winding up of the company was ordered and Official Assignee was appointed Official Liquidator without prejudice to the Suit No,544 of 2005 filed by the PIDC for damages. The copy of the Suit No,544 of 2005 is available on record, which shows that PIDC has filed suit for damages against Messrs International Laboratories (Pvt.) Ltd. And Pima Foods Ltd. In this suit, PIDC has claimed the damages in the sum of Rs,1,40,00,000 on the alleged violation of joint venture agreement by the joint venture partner. The Official Assignee has filed the reference in which it is inter alia contended that after his appointment, he invited the claim from the creditors through publication and in response, only PIDC and Messrs International Laboratories (Pvt.) Ltd. Appeared through their Advocates. PIDC filed the claim and the claim lodged by Messrs International Laboratories (Pvt.) Ltd. Was objected by the PIDC on the ground that audited accounts for the year 2006 and 2007 are imaginary and fabricated. The distribution of assets may be made after adjudication of claim of Messrs PIDC by this court in Suit No,544 of 2005. In the concluding paragraph the learned Official Assignee simply intimated this court that suit of PIDC is pending for damages and PIDC has vehemently objected to the claim of Messrs International Laboratories (Pvt.) Ltd., hence in the present circumstances,, the Official Assignee is not in a position to determine the claim of both the claimants, therefore, he has prayed to this court to pass any order regarding the claims lodged by both the parties.
3. ' Heard the learned counsel and learned Official Assignee. Mr. Amir Bukhari, learned counsel for Messrs International Laboratories (Pvt.) Ltd. Argued that PIDC has no lawful authority or right to lodge any claim or objections before the Official Assignee. They have failed to file any proof of their claim whether PIDC was contributory or creditor or extended any finance facility to the petitioner, therefore, PIDC has no right to raise any objection on the sale proceed of the assets lying with the Official Assignee. PIDC has already filed the suit which is pending adjudication and let it be decided on its own merits, however, at present PIDC has no right to raise any objections against the claim of Messrs International Laboratories (Pvt.) Ltd. The learned counsel also invited the attention of this court to the financial statement of Pima Foods Ltd. For the year ended on 30th June, 2006, Note.11 of the Financial Statement pertains to the Short Term Advance and it shows the interest free advance payable by Pima Foods on prior notice of 45 days to Messrs International Laboratories (Pvt.) Ltd.
4. Finally, he prayed for necessary directions against the Official Assignee to honour the claim of Messrs International Laboratories (Pvt.) Ltd.
5. ' In rebuttal, Mr. Akhtar Ali Mehmood, learned counsel for the PIDC argued that since the suit filed by the PIDC is pending adjudication in this court, the defendant No,2 has already wound up and if the claim of Messrs International Laboratories (Pvt.) Ltd. Is entertained, PIDC will be seriously prejudiced and not be able to recover the amount of damages, if any granted by this court at the time of final adjudication of the suit. He further argued that the audited accounts for the year 2006 and 2007 produced by Messrs International Laboratories (Pvt.) Ltd. Are imaginary and fabricated. The Chartered Accounts Report dated 2-10-2006 was not submitted in this court at the time of submitting the voluntary liquidation of the company. He further argued that in the petitioner's company, the share holding of the PIDC was 40%. He also invited my attention to the objections submitted in this court against the winding up petition. The winding up order was passed on 10-1- 2007 without prejudice to the suit filed by the PIDC. He further argued that the Official Assignee has simply filed the reference in this court for necessary orders while under the Sindh Chief Court Rules
(OS) it was his responsibility to investigate the debts or claims sent to him but without expressing his opinion whether the claim of Messrs International Laboratories (Pvt.) Ltd. Or PIDC is just and proper, he has simply referred to the matter to this court for orders without any opinion or finding which shows that the Official Assignee has not investigated the claims properly and not fulfilled his responsibilities. He finally concluded that the claim of Messrs International Laboratories may be deferred till the final decision of PIDC suit pending in this court.
6. ' The learned Official Assignee simply relied upon his Reference and argued that both the parties lodged their claims which he simply referred to this court for passing necessary orders and shown his inability to determine the claim of both the claimants.
7. ' The Official Liquidator is official of the court having definite powers conferred upon him under the Companies Ordinance, 1984. The Official Liquidator representing a company is in so different position from anyone else against whom a stranger or third party makes a claim. His only duty is to consider and if he thinks fit as an admissible claim to admit and if he thinks it inadmissible claim to reject it. At this juncture, I would like to quote a judgment reported in United Bank Limited v. Pakistan Industrial Credit and Investment Corporation PLD 2002 SC 1100, the honourable Supreme Court held that the Official Liquidator has got ample powers to take steps for the efficient winding up of the company so as to create a balance among the interest of the parties according to law and the rules. In a winding up the liquidator acts not merely for creditor but for contributories and for the company also. A liquidator is an agent employed for the purpose of winding up of the. Company. In some respects he is a trustee but he is not a trustee for each individual creditor see Knowles v.
8. Scott (1891)1 Ch.717 at P.723. His principal duties are to take possession of assets, to make out the requisite lists of contributories and creditors, to have disputed cases adjudicated upon, to realize the assets subject to the control of the court in certain matters and to apply the proceeds in payment of the company debts and liabilities in due course of administration, and having done that, to divide the surplus amongst the contributories and to adjust their rights. Any proceedings necessary for the protection of the property are taken by the liquidator in the name of the company, unless the court has made a vesting order, in which case he can sue in his official name in respect of property vested in him by the order. He can institute or defend any suit with the sanction of the court and he can take any other legal proceedings, civil or criminal, also with such sanction.
9. ' The powers of official liquidator are provided under section 333 of the Companies Ordinance, 1984 with the sanction either of the court or of the committee of inspection including powers to institute or defend any suit, action, prosecution or other legal proceeding, civil or criminal in the name and on behalf of the company; to carry on the business of the company so far as may be necessary for the beneficial winding up thereof and to pay any classes of creditors in full. However, at the same time, Rule 863 of Sindh Chief Court Rules (OS) cannot be lost sight which pertains to the list of debts.
10. Rule 863 of Sindh Chief Court Rules (OS)
11. "The official liquidator shall investigate the debts or claims sent to him and shall, prior to the time appointed for adjudication, make out and file in court a list supported by an affidavit in Form No,212 in Appendix A of all the debts and claims sent to him, distinguishing which of the debts and claims or parts of debts and claims so claimed are in his opinion justly due and proper to be allowed without further evidence and which of them in his opinion ought to be proved by the creditors".
12. The aforesaid rule clearly provides that it is the responsibility of the official liquidator to investigate the debts or claims sent to him and prior to the time appointed for adjudication filed in court a list supported by an affidavit of all debts and claims and distinguish which of the claim in his opinion justly due and proper to be allowed without further evidence and which of them in his opinion ought to be proved by the creditors. After appointment of official liquidator under the Companies Ordinance, 1984 certain responsibilities and obligations are conferred upon the official liquidator and this is a reason to provide Rule 863 of the Sindh Chief Court Rules (OS) along with "Form No,212 (Appendix-A), (Affidavit of Official Liquidator as to debts and claims)". In Form 212, specimen of an affidavit is provided which is in fact an undertaking on the part of Official Liquidator in performance of his duties:- Affidavit of. Official Liquidator as to debts and claims "I, Official Liquidator of the above-named company make oath and say (or solemnly affirm) as follows:--
(1) I have, in paper writing now produced.....................
(2) I have investigated the said debts and claims and examined, the same with the books and documents of the said company, in order to ascertain so far as I am able, which of such debts and claims are justly due from the said company and I have, in the first part of the said list, set forth such of the debts and claims or parts thereof as in my opinion are justly due from the said company, and proper to be allowed without further evidence, and I have, in the sixth column of the said first part of the said list set forth the amount proper to be allowed in respect of such debts and claims and I believe that such amounts, respectively, are justly due and proper to be allowed and I have, in the seventh column of the said first part of the said list, stated my reason for such belief.
(3) I, have in the second part of the said list, set forth such of the said debts and claims as in my opinion ought to be proved by the respective creditors.
13. ' Sworn (solemnly affirmed), etc."
14. After examining the Reference of the learned Official Assignee, I have reached to the conclusion that the Reference has not been submitted in accordance with Rule 863 of Sindh Chief Court Rules (OS). Neither the Reference shows that -any effort was made by the Official Assignee to investigate the claim nor he has expressed his opinion whether the amount claimed by the Messrs International Laboratories is justly due and proper to be allowed without further evidence and which of claim in his opinion ought to be proved by the creditors. The learned Official Assignee has not complied with the necessary rule. The honourable Supreme Court has already held supra that the liquidator is an agent employed for the purpose of winding up of a company in some respect he is the trustee. His principal duties are to take possession of assets, to make out requisite lists of contributories and or creditors to have disputed the cases adjudicated ' upon, to realize the assets subject to the control of the court in certain matters and to comply the proceeds in payment of the company debts and liability in due course of administration. Since the claim of both the parties have not been adjudicated upon properly, the learned Official Assignee is directed to call both the parties and ,investigate the claim properly and submit his report in accordance with rule 863 of Sindh Chief Court Rules (OS) for further orders of this court. The Official Assignee's Reference is disposed of in the above terms.