' SYED HASAN AZHAR RIZVI, J. ---Th is order will dftose of the above mentioned two C.M.As. Which have been filed by the respondent in this case. C.M.A. No,186 of 2011 listed at Serial No,1 is for suspension of the operation of the impugned order till final disposal of the application and C.M.A.
No,187 of 2011 listed at Serial No,2 is for setting aside the order dated 13-5-2011 passed ex parte against the respondent as the summonses were not duly served upon the respondent and its two Directors who had no knowledge of the captioned petition to appear before this Court and answer the claim and allow the respondent and its two directors to file objections/written statement in the captioned matter. Both these applications are duly supported by affidavits of the Sheikh Kashif Imtiaz.
2. Mr. Khalid Mehmood Siddiqui, learned counsel for the respondent contended that the entire shares of the respondent company were paid for by Late Sheikh Imtiaz Hussain in 1978/81. He contended that due to love and affection the deceased had purchased some shares of the respondent company in the name of his brother and his family though the consideration thereof had been paid exclusively by the deceased as the petitioners had no means to pay for the said shares. He further contended that the deceased had been managing the affairs of the company as Director/Chief Executive and during his life time on 4-12-1995 he appointed his wife MRs, Nasreen Imtiaz the Director/Chief Executive of the company with the consent and approval of all shareholders including the petitioneRs, He urged that as per the understanding and agreement among the directors/share holders, the deceased regularly paid monthly salary to the petitioner No,1 and his family during his life time though they were residing at Lahore and had never performed any services for the company. He urged that even after the death of Late Sheikh Imtiaz Hussain his wife kept the tradition of her late husband alive and continued to pay regular monthly salary to the petitioner No,1 and his family even from her personal funds as the company was running its main business of cinema in loss though they were residing at Lahore.
3. Learned counsel for the respondent also contended that on 28-5-2011 the Chief Executive of the company and her son, who is also director in the respondent company have received notices on their residential addresses from the Official Assignee of Karachi intimating that this Court vide order dated 23-5-2011 has appointed Official Assignee as Official Liquidator of Messrs Bambino (Pvt.) Limited. He contended that the entire petition and the impugned order relate to the grievance of the petitioners with the directors Kashif Imtiaz and MRs, Nasreen Imtiaz personally, however, none of the two directors was a party in the petition and even the addresses are no where available in the entire case file and the notices by the Official Assignee have been mysteriously issued on their residential addresses at the behest of the petitioneRs, He also urged that the petitioners have obtained the winding up order ex parte at the back of the respondent company and its two directors through concealment of facts and misrepresentation. He has referred the bailiffs report dated 21-12-2010, which reflects that notices in the captioned matter were served upon the respondent company through Mr. Ayaz Sajjad on 20-12-2010. He submitted that no person with the name of Ayaz Sajjad is working or has even worked with the respondent company. He also submitted that one Sajjad Ahmed is working as an assistant in the respondent company whereas there is another person namely Ayazuddin Ahmed working as Contractor with the respondent company. He further submitted that no seal of the Company has been affixed on the said notice. He submitted that Sajjad Ahmed and Ayazuddin Ahmed have sworn their affidavit disowning their signatures on the said notice.
4. Learned counsel further submitted that the entire petition is based upon misrepresentations and twisted facts and the truth of the matter can only be exposed once the respondent company and its defendant directors are given a fair chance to defend the case on merits. He submitted that the order of winding up is violative of the principle of audi alterm partem as the respondent company and its two directors have been condemned unheard. He also submitted that under the law notice of this petition should have been served on the Company Secretary or any other Principle Officer or Director of the company, which has not been done before passing of the order of winding up.
5. Learned counsel in support of his submissions has placed reliance on the cases of MUHAMMAD SWALEH AND ANOTHER v. MESSRS UNITED GRAIN AND FODDER AGENCIES (PLD 1964 SC 97), MALIK MUHAMMAD NAZIR v. MIAN ABDUR RAHIM AND ANOTHER (PLD 1968 Lahore 792), MAJ. PERVEZ SHAKOOR AND 4 OTHERS v. MUHAMMAD USMAN (1991 MLD 536), STATE LIFE INSURANCE CORPORATION OF PAKISTAN v. NASIM-E-SAHAR (1992 CLC 563), FEROZ KHAN v. MUHAMMAD SHUAIB (1994 CLC 1462), NOORUL AMIN AND ANOTHER v. MUHAMMAD HASHIM AND 27 OTHERS (1992 SCMR 1744) and MANSOOR TEXTILE MILLS LIMITED SHORKOT v. JAMAIL AKHTAR NASEEB, TEXTILE CONSULTANT, FAISALABAD (2001 CLC 1065).
6. On the other hand, Mr. Ejaz Ahmed learned counsel for the petitioners vehemently opposed the listed applications and argued that the applications are not maintainable on the ground that the same have been filed by an unauthorized person as company has been wound up on 23-5-2011 and board resolution dated 28-5-2011 cannot be a valid authorization in favour of Sheikh Kashif Imtiaz. He also argued that the alleged meeting of 28-5-2011 was never held nor any notice was given to the petitioners Nos.1 and 2 who admittedly the directors of the respondent company on the date of its winding-up. He submitted that Order IX, Rule 13, C.P.C. Provides the remedy against the ex parte judgment and decree passed by the Court and not against the winding up order of the Court. He submitted that the only remedy available against the winding up order is to file an appeal in accordance with section 10 of the Companies Ordinance, 1984. He urged that notice was properly served upon the respondent and the respondent avoided to appear before this Court just to linger on the proceedings and gain maximum time. He referred to the bailiff report which clearly shows that the notice was received by Mr. Ayaz in presence of Mr. Sajjad and the affidavits filed by them by the respondent with the application clearly show that these two persons are working with the respondent. He also urged that apart from service through bailiff, the notice was published in daily 'News' and 'Jang' Karachi and also published in the official Gazette, therefore, the respondent cannot take plea that notice was not served upon them. Learned counsel supported the impugned order and submitted that the order was passed after adopting all legal formalities and prayed for dismissal of listed applications.
7. In rebuttal, Mr. Khalid Mehmood Siddiqui learned counsel for the respondent submitted that Order IX, Rule 13, C.P.C. Will squarely apply for an application to set aside ex parte orders passed under the Companies Ordinance, 1984, as neither the Companies Ordinance, 1984 nor the Companies Court Rules provide for any remedy against ex parte winding up order. He submitted that whenever any special jurisdiction is created, then in the absence of any provision to the contrary, the provisions of the Code will apply to such proceedings. He also made reference to section 141 of the Civil Procedure Code. In support of his contention, he has placed reliance on the cases reported in PLD 1986 SC 14, PLD 1976 SC 572, PLD 1976 Lahore 611 and PLD 1987 SC 512.
8. I have heard the learned counsel for the parties, perused the material available on record and the case-law cited at the bar.
9. The main thrust of the arguments of the learned counsel for the respondent is that no notice of this petition was served upon the respondent company and the petitioner intentionally and deliberately has not arrayed the major shareholders of the company as party to these proceedings. Perusal of impugned order reveals that notices were ordered and issued to the respondent through bailiff, courier, publication and official Gazette. The bailiff report shows that notice was served upon the respondent on 20-12-2010, which was received by Mr. Ayaz, Accountant and Mr. Sajjad, Manager. Even if it is assumed that notice has not been served through bailiff, but the notice was published in daily 'The News' and 'Jang' Karachi as well as in the official Gazette, therefore the plea of the respondent that they are not aware of the present proceedings is not tenable. The plea as regards impleading the major shareholders as party to these proceedings, it may be observed that under the Companies Ordinance there is no necessity to implead every director or shareholder as party and the impleadment of company is sufficient as it covers the all directors or shareholdeRs,
10. As regards the maintainability of application under Order IX, Rule 13, C.P.C. Is concerned, I am convinced with the arguments of learned counsel for the petitioner that the Code of Civil Procedure has no applicability in the Companies matters as it is a special jurisdiction and only Companies Ordinance is applicable. Section 10 of the Companies Ordinance is relevant on the point, which is reproduced hereunder:-- "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 lie to the Supreme Court where the company ordered to be would up has a paid-up share capital of not less than one million rupees; and, where the company ordered to be wound 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."
11. For the foregoing reasons, the listed applications are dismissed with no order as to costs.
However, the respondents are at liberty to avail the remedy available under the law, if they so advised.