1. SYED HASSAN AZHAR RIZVI, J. - This is a petition for winding up of a private limited company under the name and style of "A.M. Industrial Corporation", which was incorporated/>n 12.06.1964 (hereinafter referred to as the Company), under Section 309 of the Companies Ordinance, 1984 r/w Proviso to Section 439(5) of the Companies Ordinance, 1984 with the following prayers:- "(i) That "A.M. Industrial Corporation Ltd." (Struck off) being a private limited company and a family concern be wound up by the Court under the provisions/ of the, Companies Ordinance, f9&4, arid its only assets of immovable property (hot No. WS/A/4, Block 18, measuring 398.33 square yards, Scheme No. 16, F. B. Area, Karachi) be transferred in the name of its existing members/directors in proportion to their shares in the Company along with the right to recover possession and arrears of rent in respect of the said property from the tenant;
(ii) Any other order as may be deemed proper in the facts and circumstances of the case."
2. Before proceeding further, it is necessary to discuss the brief background of the case. Earlier a petition for winding up of the petitioner company bearing J. Misc. No. 12/1997 was filed by the present petitioner under Section 247 of the then Companies Act, 1913. According to the petitioner initially there were three directors of the petitioner company namely Saeeduddin Siddiqui, Aminuddin Siddiqui and Najma Siddique. The first two gentlemen resigned and three new Directors namely Mrs. Azra Siddiqui, Mumtazuddin Siddiqui and Ferozuddin Siddiqui were appointed in their place and on 17.4.1967 Rashiduddin Siddiqui was also inducted as a Director. Later on, Najma Siddiqui vide her letter dated 2.12.1967 addressed to the Assistant Registrar Joint Stock Companies three of the existing Directors i.e. Ferozuddin Siddiqi, Mumtazuddin Siddiqui and Azra Siddiqui retired w.e.f. 01.12.1967. According to the petitioner the company was functioning with, two directors namely Najma Siddiqui and Rashiduddin Siddiqui till the former expired leaving the latter as only director, contrary to requirements of law. This fact itself rendered the company liable to wind-up. However, it is an admitted position that the property in question is the property of the company. The above J.M.
2. No. 12/1997 was dismissed on 30.9.1998 with the following observations:- "13. Though prima facie the vesting of property of a company in the state through a mere notification appears somewhat so harsh, it has to consider in its proper context. A genuine credit or a member could always apply to the Court under Section 247(6) of the 1913 Act and under Section 439(6) of the present Ordinance, to have the striking off revoked and upon an order of the Court the company would stand restored to its original position. He could thereafter apply for winding up if circumstances so warranted. This, however, does not appear to heave been done by those having a lawful claim against the company. The petitioner, who admittedly never entered into an agreement for purchase of property with the company, could not even be treated as a prospective creditor.
14. In the circumstances, without finally deciding the question of ownership of the property occupied by the petitioner, which ought to be decided in appropriate proceedings after hearing all interested parties, and without commenting on the consequences of proceedings apparently initiated by an unauthorized person. I am constrained to dismiss this application as not maintainable."
3. The said property of the company viz. Plot No. WS/A/4, Block 18, measuring 398.33 square yards, Scheme No. 16, F. B. Area, Karachi was rented out to one Aijaz Mahmud, who doing business in the name and style of Galaxy Corporation vide tenancy agreement dated 01.10.1971 initially for a period of 11 months at the monthly rent of Rs. 650/- per month. The said property even now continues to be in physical possession of the said tenant. The directors as well as the company have remained in litigation with the said tenant for a period of over 30 years.
4. This petition was presented on 23.01.2010. Notice in the first instance was ordered and issued to the respondent and Securities & Exchange Commission of Pakistan through bailiff. Notices were also published in daily 'Jang', daily 'Dawn' dated 26.10.2010 and Official Gazette of Pakistan dated 03.11.2011. The record shows that the respondent was served through bailiff on 01.9.2010. Despite service, there is no response, reply or rebuttal on behalf of the respondent.
5. Mr. Muhammad Mustafa Hussain, learned counsel for the petitioner submitted that after dismissal of earlier petition, the petitioner Company applied for restoration vide application dated 30.6.2003 under Section 439(9) of the Companies Ordinance, 1984, which was dismissed by the Registrar of Companies by order dated 06.10.2004. The company filed another application on 29.10.2004 to the Securities & Exchange Commission of Pakistan for restoration of the company. The SECP in exercise of its powers under Section 439(9) of the Companies Ordinance, 1984 ordered the name of the company to be restored to the register of Companies vide order dated 19.10.2005, however, the company was directed to comply with the provisions of the Ordinance and the Rules made thereunder, including filing of overdue returns and other documents on payment of filing fee including additional filing fee. Learned counsel further submitted that as the company had absolutely no resources and its directors were barely surviving, the company was unable to file the overdue returns, to pay filing fee or additional filing fee, or to take any other step to revive the company. He submitted that the company through its advocate sent a letter dated 07.2.2009 furnished the required information regarding the status of previous litigation and the SECP vide letter dated 20.2.2009 informed the petitioner company as to grounds for which the company has been dissolved again on 03.1.2007, and that the company may apply for restoration under Section 439(6)(9) of the Companies Ordinance, 1984. He, however, submitted that since company has no business the directors of the company have unanimously resolved by resolution dated 23.7.2009 to wind up the company instead of applying for its restoration and have authorized one of the directors namely Rasheeduddin Siddiqui to do all such acts and deeds which is necessary for winding up of the company. He submitted that since 1979 no business has been done, no books of accounts audited or unaudited can be produced.
6. In their comments, S.E.C.P. Had confirmed and verified the contents of the petition as true and correct. It was further mentioned by SECP that as per Form XII, dated 17.4.1967 the present petitioner Rashiduddin Siddiqui was also as a director of the petitioner company. The SECP also confirmed that the petitioner company was vide order dated 19.10.2005 which was communicated to petitioner and counsel for the petitioner on the same date with advise to obtain a certified copy of the order in terms of the provisions of the Companies Ordinance, 1984. The SECP further confirmed that the mandatory provisions of the Ordinance were not fulfilled by the petitioner company, hence it was again dissolved under the relevant provisions of the Ordinance, which was published in the Gazette of Pakistan on 03.1.2007.
7. It is well-settled principle of law that the respondent despite service of notice having not come forward and no rebuttal having been filed in shape of objections, affidavits or counter-affidavits, the contents of the petitioner be deemed to be true and correct and acceptable. To fortify this view reference can be made to the cases of JEHAN KHAN v. PROVINCE OF SINDH & OTHERS (PLD 2003 Karachi 691) and MEHMOOD-UL-HASSAN & ANOTHER v. BAIG INDUSTRIES (PVT.) LTD. & OTHERS (1997 CLC 1577), wherein this Court has held that the statement of facts and law made in a winding up petition having not been rebutted or denied, a case for winding up was fully made out.
8. In the above facts and circumstances and the fact that despite service the respondent has not come forward to dispute or deny the statement, as made in the petition and looking into the precedents, this Court is left with no option but to order winding up of the respondent which would be just and equitable. The Official Assignee of Karachi is appointed as Official Liquidator of the respondent with powers to him under the Ordinance, 1984 to deal with the respondent and take further action according to law.