AZIZ-UR-REHMAN, J.---By means of this High Court Appeal filed on 07.04.2017, under section 15 of the Code of Civil Procedure (Amendment Ordinance) read with section 3 of Law Reforms Ordinance, 1972 [Muhammad Akbar v. Masood Tariq Baghpati and others], the appellant, has challenged the impugned judgment dated 01.03.2017 and decree dated 16.03.2017, passed by the learned Single Judge of this Court in Suit No.306 of 2009 [Muhammad Akbar v. Masood Tariq Baghpati and others], whereby, the learned Single Judge was pleased to dismiss the suit filed by the appellant, however, with no order as to cost(s). The prayers sought in the instant High Court Appeal read as follows:- "this Honourable Court may be pleased to call for the record and proceedings of the Suit No.203/2009, and after satisfying itself as to the correctness and proprietary of the judgment/decree passed, set aside the same, allow the suit of the plaintiff/appellant".
2. The relevant facts of the case, in brief are that the appellant [plaintiff in Suit No.306/2009], stated to be in the employment of M/s. Tristar Shipping Lines Limited, a shipping company incorporated in Pakistan as a BOSAN in the years, 1985-1986, and had worked at 'KOSUCHINE' on a salary of Rs.22,000/- per month. Per assertions, M/s. Tristar Shipping Lines Ltd. sometime, in the month of January 1998, returned back to Karachi, however, without paying the dues, salaries, allowances, funds, etc. to the appellant viz. Muhammad Akbar.
3. On account of such failure of M/s. Tristar Shipping Lines Ltd. the appellant thus constrained to file a Petition under section 12 of the Shops and Establishment Order, 1969, before the Commissioner Workman Compensation at Karachi, for recovery of the outstanding amount/dues against [i]. M/s. Tristar Shipping Lines Ltd. and [ii]. M/s. The Shipping Master Shipping Office, for recovery of Rs.1,25,639.79 [Rupees One Lac Twenty Five Thousand, Six Hundred Thirty Nine and Paisas Seventy Nine only].
4. The aforesaid Petition under section 12 of the Shops and Establishment Order, 1969, filed before the Court of Commissioner Workmen Compensation at Karachi, for the recovery of the outstanding dues against the M/s. Tristar Shipping Lines Ltd and another was allowed vide order dated 10.07.2000 whereby, M/s. Tristar Shipping Lines Ltd., was directed to deposit an amount of Rs.1,25,639/- within 30 days from the date of the order i.e. 10.07.2000.
5. Per version of the appellant, M/s. Tristar Shipping Lines Ltd. however, failed and/or avoided to deposit the said amount of Rs.1,25,639.79, within the stipulated period of 30 days w.e.f. 10.7.2000, consequently, the appellant herein, filed some legal proceedings before this Court but anyhow, the Petitioner remained unsucceeded, though the Management of M/s. Tristar Shipping Lines Ltd. in terms of Order dated 10.07.2000, was under obligation to comply with the aforesaid directions. The Appellant, it appears, did not pursue the matter in legal manner or otherwise, remained un- successful in recovery of Rs.1,25,639.79 [Rupees One Lac Twenty Five Thousand, Six Hundred Thirty Nine and Paisas Seventy Nine only].
6. The Appellant thereafter, issued Notices to Respondents/Ex-Directors of M/s. Tristar Shipping Lines Ltd. for complying with Order dated 10.07.2000, passed by Commissioner Workman Compensation at Karachi and for to deposit the said amount, as per directions dated 10.07.2000.
The Respondents [Defendants in Suit No.306 of 2009], thereafter, in consequence of settlement paid Rs.51,000/- [Rupees Fifty One Thousand only], through Pay order No.0103963 dated 23.06.2008, to the Appellant and this position is quite evident from paras 10 and 11 of the Plaint, in Suit No.306 of 2009.
7. Per Petitioner's stand, the Appellant remained without any employment since, 1999, as M/s. Tristar Shipping Lines Ltd. did not issue Clearance Certificate/No Objection Certificate to the Appellant, as such, the Appellant having been suffered, the Financial losses @ Rs.20,000/- per monthly, hence, Suit No.306 of 1999, [Muhammad Akber v. Masood Tariq Baghpati and others], was filed on 17.01.2009, for RECOVERY OF COMPENSATION, DAMAGES AND LOSSES amounting to Rs.70,00,000/- [Rupees Seventy Lacs only], before this Court with the following prayers:- "A). Decree for an amount of Rs. SEVENTY LACS (Rs.70,00000/- in favour of the plaintiff against defendants being compensation for damages and losses which the defendants have caused the plaintiff unemployed while keeping his original documents in their custody and also not issued the "Clearance Certificate"/"No Objection" Certificates to ..the plaintiff directing the defendants to pay, the aforesaid amount to the plaintiff. [Emphasis supplied] B). Cost of the suit.
C). Any other relief or relieves as this Hon'ble Court may deem fit and proper in view of the circumstances of the case."
8. From perusal of record, it reveals that [i] Major Khalid Baghpati [Defendant No.4], [ii] Mashkoor Ahmed Chishti [Defendant No.7] and [iii]. Captain Zeeshan Ali [Defendant No.8], though were served through publication in Daily Jang dated 24.08.2009, as well as registered post, courier service and pasting but they remained absent, as such, vide order dated 25.01.2010, the Plaintiffs [Appellant's] Suit No.306 of 2009 [Muhammad Akber v. Masood Tariq Baghpati and others], was ordered to proceed EX-PARTE, against Defendants Nos.4, 7 and 8 [Respondents Nos.4, 7 and 8 herein], respectively.
9. As far as, the other Defendants/Directors are concerned, on service, Respondents Nos. 1, 2, 3, 5 and 6 herein [Defendants Nos.1, 2, 3, 5 and 6], filed, their common WRITTEN STATEMENT, on 19.11.2009, wherein, they not only denied the averments/assertions vis-a-vis losses and damages, etc. but also raised some preliminary objections with regard to maintainability of the suit filed by the Appellant. The preliminary objections, raised by the said contesting Defendants [Respondents], read as follows:-
(i) That the above suit is misconceive, mischievous, vexatious, false fictitious, untenable, incompetent and mala fide, which even otherwise, does not disclose any cause of action against the said defendants and therefore, the above suit is liable to be dismissed with exemplary cost.
(ii) That the plaintiff has filed this suit with mala fide intention and ulterior motives to pressurize and blackmail the Ex-Directors of the defunct company without any legal or rational jurisdiction which proves that the plaintiff has not come to this Hon'ble Court with clean hands.
(iii) That the above suit has been filed on the basis of is conceived, false, baseless and concocted story having no substance and truth. It is submitted that the mala fide intention and ulterior motives on part of the plaintiffs are evident from their conduct which has been concealed in the above suit. It is submitted that the plaintiff after receipt of all his lawful dues and claims against the defunct company has turned up through this suit for baseless and concocted damages against unconcerned persons because the plaintiff was the employee of the defunct company, having no privity of contract with any of the defendants.
(iv) That the Hon'ble High Court of Sindh at Karachi, vide its order dated 21-05-2007, passed in J.M.
No.58/2002, upon the application of the plaintiff has also dismissed/rejected all the claims of the plaintiff' being devoid of merit and therefore, the above suit is not maintainable under the law is liable to be dismissed with exemplary cost.
(v) That the above suit is also hit by Order VII, Rule 11, C.P. C. due to lack of cause of action against the defendants as well as time barred under the relevant provisions of law and barred under the Companies Ordinance 1984, hence in the interest of justice and equity the said suit is liable to buried at the nib of its bud." [Emphasis supplied].
10. Later on, keeping in view the divergent pleas raised by the parties in their pleadings, by consent, on 14.12.2010, the following issues were framed:- i. Whether the suit is maintainable under the law? ii. Whether the removal of plaintiff is in violation of service rules and law? iii. Whether the plaintiff is entitled to for the damages claimed in the suit? iv. What should the decree be?
11. Upon framing of the aforesaid issues, subsequently, on 30.05.2011 Mr. Dilawar Hussain, Advocate, was appointed as commissioner to record the evidence of the plaintiff only [Appellant herein], in the first instance. For ready reference. Order dated 30.05.2011, is reproduced herein-below:-
1. For order on C.M.A. No. 2548/11 (151, C.P.C.).
30.05.2011 Plaintiff in person.
Through this C.M.A. plaintiff who is appearing in person, seeks recording of evidence of the parties at an early date before this Court. The courts are already over-burdened and invariably in all evidence cases Commissioner are appointed to release such burden. Under the circumstances, evidence of the parties cannot be recorded earlier before this Court. Therefore, this C.M.A. is dismissed. However, since the plaintiff is anxious to proceed with the matter and seeks disposal of the case expeditiously and the fact that the courts are already over-burdened, Mr. Dilawar Hussain Advocate is appointed Commissioner to record evidence of the plaintiff in the first instance only after notice to the parties, who would be paid Rs.7,000/- per witness for such purpose. The Commissioner may conclude evidence of the plaintiff within 30 days from today and file compliance report in such respect." [Emphasis supplied].
12. As far as, the Defendants' [Respondents'] evidence is concerned, from perusal of Order dated 23.04.2012, it appears, that upon payment of the Commissioner's fee for recording evidence of the Defendants by the plaintiff [Appellant herein], learned commissioner, was given, further four [4] months' time w.e.f. 23.04.2014, for recording the evidence of contesting Defendants [Respondents Nos.1, 2, 3, 5 and 6 herein]. On conclusion/recording of evidence, the Report dated 15.10.2012, submitted by the learned commissioner, was finally taken on record vide order dated 22.10.2012.
13. The commissioner's report dated 15.10.2012, for ready reference is reproduced herein below:- In compliance of the order dated 30.05.2011 the undersigned advocate was appointed as Commissioner to record the evidence and thereafter the undersigned issued notice to all the parties in the above suit.
After serving the notice to the parties, the affidavit-in-evidence was filed on the side of the plaintiff namely Muhammad Akbar son of Muhammad Ishaque and copy whereof, the same was supplied to the other side.
That on 10.04.2012, the Examination Chief of the plaintiff above named was recorded in person and during the evidence he produced the exhibit P/1, Article '0/1' to '0/33'. He was duly cross- examined by Mr. Khadim Hussain Metlo Advocate for the Defendant. After closing the side of the plaintiff the Affidavit-in-evidence of the defendant namely Masood Tariq Baghpati son of Late S.M. Shafi Baghpati was filed, Affidavit-in-evidence and copy whereof was supplied to other side.
That on 15.09.2012 the Examination Chief of one Mr. Masood Tariq Baghpati was recorded by Mr. Khadim Hussain Metlo Advocate for the Defendants Nos. 1, 2, 3, 4 and 6 and produced the exhibit D/1 and he was duly cross-examined the plaintiff in person Muhammad Akbar. [Underlining is ours] After carrying out the above exercise the tasks assigned by the Hon'ble Court has now been fully completed and entire record/documents entrusted to the undersigned commissioner in the above suit along with the affidavit in evidence of the plaintiff and so also the defendant above named with exhibits are being submitted in the concerned branch with the report of the undersigned today.
In view of the above, it is quite requested that the report of the undersigned commissioner be placed in Court for passing the appropriate orders. Dilawar Hussain Advocate/Commissioner For Recording Evidence Karachi, Dated 15th October, 2012"
14. Finally, on 01.03.2017, when the above suit came-up for arguments before the learned Single Judge of this Court then, after hearing of arguments, the plaintiffs suit for Damages and Losses in the sum of Rs.70,00,000/- was dismissed obviously, in the light of evidence, however, with no order as to cost. The operative part of the 'impugned Judgment' dated 01.03.2017 i.e. paras 7 and 8 read as follows:
7. In view of hereinabove facts and circumstances of the case, I am of the view that the plaintiff has failed to make out any case, whereas, even otherwise, the suit appears to be not maintainable against the present defendants and is also apparently time barred. In the circumstances, the Issues are answered as follows:- ISSUE No. 1:...In Negative ISSUE No. 2:...Not proved.
ISSUE No. 3:...In Negative ISSUE No. 4:...Suit Dismissed.
8. Accordingly suit stands dismissed, however, with no order as to cost(s).
15. The Appellant [Plaintiff in Suit No.306 of 2009], feeling aggrieved and dissatisfied with the judgment dated 1st March, 2017 and decree dated 16th March, 2017, thus constrained to file the above High Court Appeal [In short HCA] inter alia with a prayer for setting aside the 'impugned judgment' dated 1st March, 2017 and 'decree' dated 16th March, 2017, passed by a learned Single Judge of this Court.
16. Lastly, after service, on 07.02.2018, when the above HCA came-up before us then, we heard the Appellant viz. Muhammad Akber in person and Mr. Khadim Ali Metlo, learned counsel for contesting Respondents Nos.1, 2, 3, 5 and 6 and also gone through the available record minutely.
17. The Appellant viz. Muhammad Akber forcefully, contended that the impugned judgment and decree dated 01.03.2017 and 16.03.2017 respectively, passed in Civil Suit No.306/2009 [Muhammad Akbar v. Masood Tariq Baghpati and others], by the learned Single Judge of this Court, beside, being arbitrary, perverse, are bad in the eyes of law, as such, the same are liable to be set aside.
Per the appellant's version, the learned Single Judge of this Court, in fact, has failed to properly appreciate the evidence and other materials available on record in its true perspective. According to appellant's stand, the Appellant's Suit No.306/2009 for the recovery of compensation and damages, against the Respondents besides competent in law was deserved to be decreed as prayed.
18. The appellant next urged that the learned Single Judge besides, ignoring the evidence led by the parties, has also failed to see the merits of the case, in the light of documents available on record. Per Appellant's version, there was no any delay in filing of the suit. The Appellant further contended that on the part of the Appellant/Plaintiff, there was no delay as has been observed in the impugned judgment dated 01.03.2017. The Respondent No.1, per Appellant's version, has not only, availed loan from Saudi Pak Bank for clearance the liability of the employees, but otherwise, has also sufficient assets and securities to pay the liability of the Appellant/Plaintiff.
19. The Appellant appearing in person strenuously argued that the learned Single Judge of this Court has failed to consider that the appellant has not only been taken into service by M/s. Tristar Shipping Lines Ltd. in the year, 1995-1996 but had also worked with said company as BOSAN at the rate of Rs.22,000/- per month. The said M/s. Tristar Shipping Lines Ltd. in the year, 2003, however, failed to continue their business and went into liquidation under the Court's order dated 25.02.2003, passed in J.M. No.58/2002, by this Court. The appellant next urged that the learned Single Judge of this Court has failed to consider that the Appellant [Plaintiff] was kept in service, by the Management of M/s. Tristar Shipping Lines Ltd., as such, the Respondents as being Directors of the said Company are liable to make payment of all the salaries, funds and dues, etc. to the appellant, as they at relevant time were Directors of M/s. Tristar Shipping Lines Ltd. Per appellant's version, if the instant High Court Appeal is not allowed then, the Appellant [Plaintiff in Suit No.306 of 2009], shall be seriously prejudiced.
20. Against the above, Mr. Khadim Ali Metlo, learned counsel for the Respondents Nos.1, 2, 3, 5 and 6 [Defendants Nos.1, 2, 3, 5 and 6], vehemently contended that the Appellant's suit besides, bad in law, was not maintainable. The Appellant [Plaintiff in Suit No.306 of 2009],inter alia, has failed to disclose any 'cause of action' against the Defendants' Directors [Respondents herein]. The suit filed by the Appellant [Plaintiff], apart from being bogus, was meant to unnecessarily pressurize and blackmail, the Ex-Directors of the defunct company viz. M/s. Tristar Shipping, Lines Ltd. and that too without any legal or rational justification.
21. Per Mr. Khadim Ali Metlo, learned counsel for the Respondents Nos.1, 2, 3, 5 and 6 [Defendant Nos.1, 2, 3, 5 and 6], the suit as framed and filed was/is tainted with mala fide intention, otherwise, the plaintiff [Appellant herein], knowingly has/had no cause of action against the Directors to file the said suit for recovery of the so-called outstanding of Rs.70,00,000/- and, that too after receipt of the dues against the defunct company. According to the Respondent's stand, the Appellant was admittedly an employee of the company under liquidation, as such, there is/was no privity of contract between the Appellant and Respondents' Directors [Defendants in Suit No.306 of 2009 [Muhammad Akbar v. Masood Tariq Baghpati and others].
22. Mr. Khadim Ali Metlo next argued that the Appellant's alleged claim of recovery against the Respondents herein [Defendants in Suit No.306/2009], has already been rejected by the Court vide order dated 21.05.2007, passed in J.M. No.58/2002. For and in view of this position, the plaintiffs Suit No.306/2009, as urged, has/had rightly been dismissed by the learned Single Judge of this Court, as Plaintiffs suit out of which, the instant appeal is arising besides, in-competent in law, was also devoid of any merits.
23. Moreover, the appellant' s allegation regarding. the so-called documents besides, being afterthought, is/was without any foundation, as the Appellant [Plaintiff] at no stage, till the filing of Suit No.306/2009 [Muhammad Akbar v. Masood Tariq Baghpati and others], has ever claimed or otherwise, taken any step for so-called return of the unspecified alleged original documents i.e. either from the defunct company or from the Defendants/Respondents herein. As far as, doing of job, by the Appellant is concerned, 'ex-facie' the Appellant during existence/before passing of the winding-up order on 20.02.2003 of the employer company viz. M/s. Tristar Shipping Lines in J.M.
No.58/2002, by this Court, has/had never ever raised any demand with regard to the alleged documents. Inter alia, on this ground as well, the Plaintiffs suit filed, in the, year, 2009, besides being without any cause of action was/is hopelessly, time barred, as such, the same was rightly dismissed by the learned Single Judge of this Court.
24. According to Mr. Khadim Ali Metlo, since, the appellant's suit was bogus, time barred, without any cause and/or foundation, as such, the same was rightly dismissed by the learned Single Judge of this Court. Mr. Khadim Ali Metlo, while, concluding his arguments, prayed for dismissal of the instant High Court Appeal with costs, otherwise, the Respondents/Ex-Directors [Defendants], shall be seriously prejudiced.
25. Heard and perused the record.
26. The Appellant [Plaintiff], it is admitted position was in the employment of M/s. Tristar Shipping Lines Limited, at Rs.22,000/- [Rupees Twenty Two Thousand only] since, the year 1997. The said company, it is needless to say, as per appellant's own version, has already been gone into liquidation in J.M. No.58 of 2002 vide the order dated 25.02.2003, passed by this Court. The appellant, however, has not explained as to why, he did not take any steps regarding his removal from service, when, the company viz. M/s. Tristar Shipping Lines Limited, was functioning. As far as, the alleged outstanding of Rs.1,25,639.79 [Rupees One lac twenty five thousand, six hundred thirty nine and seventy nine paisas only], is concerned, from perusal of Article '0/5' produced by the plaintiff [Appellant herein], in his evidence, it is quite clear that Plaintiff [Appellant herein], on filing of a Petition under section 12 of the Shops and Establishment Ordinance, 1969, before the Court of Commissioner Workmen's Compensation (South) Karachi against M/s. Tristar Shipping Lines Ltd. and another, has already been succeeded in obtaining an ex parte order dated 10.07.2000, whereby, M/s. Tristar Shipping Lines Ltd., was directed to deposit the awarded amount in the sum of Rs.1,25,639.79 in Court within 30 days w.e.f. 10.07.2000.
27. Being relevant order dated 10.10.2000, passed by the Court of Commissioner Workmen's Compensation South Division, Karachi, which order is self-explanatory, is reproduced herein below:- IN THE COURT OF COMMISSIONER WORKMEN'S COMPENSATION SOUTH DIVISION, KARACHI Under section 12 of the Shops * Establishments Ordinance, 1969.
Muhammad Akbar.....................Applicant VERSUS
1. M/S. TRI-STAR SHIPPING LINES LIMITED.
2. M/S. THE SHIPPING MASTER SHIPPING OFFICE Respondents
Applicant Muhammad Akbar made an application under section 12 of the Shops and Establishment Ordinance, 1969, for recovery of his unpaid wages, overtime and other allowances totaling Rs.1,25,639.79/- from M/s. Tristar Shipping Lines and Shipping Master Notices were issued to the Respondents through clerk of the Court and through registered post but the Respondents chosen to remain absent and never attended Court on any hearing with the result that the ex parte proceedings were ordered.
The learned advocate for applicant was asked to submit ex parte proof regarding his claim. He requested time which was allowed however on the next date of hearing applicant attended and explained that since the applicant side had already submitted ex parte proof further proof affidavit cannot required. Perusal of the file revealed that the applicant has submitted affidavit in ex parte proof on 04-11-1999. Since contents of affidavit have not been denied by the Respondents, I have no reason to disbelieve its contents, the amount of Rs. 1,25,639.79 claimed in the original application and supported by the affidavit is accordingly awarded. The amount so claimed from July, 1998 onwards can only be considered when made in the proper manner.
The Respondent No.1 is thus directed to deposit the awarded amount o Rs.1 25,639.79 in the Court within 30 days from the date of this order. [Underlining is ours] Copy of this order may be sent to the Respondent No.1 by registered post for deposit of the said amount in Court.
Announced in open Court on the day of 10-7-2000 under my hand and seal.
Sd/- (DR. ZAHID GULZAR SHEIKH)
COMMISSIONER WORKMEN'S COMPENSATION AND AUTHORITY UNDER PAYMENT OF WAGES ACT, SOUTH DIVISION, KARACHI.
28. The Appellant despite passing of the aforesaid order dated 10.07.2000, seemingly either failed and/or avoided to pursue his remedy in accordance with law. Rather, it appears, he voluntarily signed and executed an 'INDEMNITY BOND' dated 25.06.2008, produced in evidence and marked as Article '0/18' whereby, the Appellant has agreed to accept Rs.51.000/- [Rupees Fifty One Thousand only], as a full and final settlement of Appellant's claim regarding wages. Being important and relevant, the said INDEMNITY BOND dated 25.06.2008, is reproduced herein-below:- Article '0/18'
"INDEMNITY BOND We Mohammad Akbar son of Mohammad Ishaque Muslim adult resident of H. No.L-1600 Sector 11- E Muslim Town Karachi holding NIC NO.42101-1496530-5 (2) Naveed Hussain son of Ghulam Rasool, Muslim adult resident of H. No.Z-6 Chanesar Goth Mehmoodabad Karachi holding NIC. No. 37301- 2278697-7 do hereby indemnify the Hon'ble D.D.O. Jamshed Town Karachi as under:-
1. That I Mohammad Akbar son of Mohammad Ishaque agree and accept Rs. 51000/- (Rs. Fifty One Thousand only) through P.O. No.0103963 dated 23.6.2008 drawn on Faisal Bank Ltd. 0143-M.A.C.
H.S. Branch Karachi as full and final settlement for recovery of wages as claim of my wages hence I withdraw my complaint Case No.16/98 for recovery of wages and further confirm that I have no claim/complaint of any nature against Ex-Manager/Ex-Incharge/Ex-Owner and or Ex-Director of Tri Star Shipping Line Ltd Karachi. [Underlining is ours]
2. That we do hereby undertake and indemnify the Deputy District Officer Revenue and Audit District Magistrate will not be responsible for and against all losses and damages on the decision settlement of the above mentioned case No.16/98 in favour of claimant Mohammad Akbar.
Whatever stated above is true and correct to the best of my knowledge and belief.
Sd/- Mohammad Akbar Sd/- Naveed Hussain Karachi Dated 25-06-2008"
29. Despite receiving the amount of Rs.51,000/- [Rupees Fifty One Thousand only] towards' full and final settlement of the Appellant's claim [see Article '0/18' reproduced hereinabove], the Appellant in his own wisdom once again is agitating/filed/preferred his claim of Rs.51.642.79, before the learned Official Assignee/Official Liquidator i.e. after passing the winding-up Order dated 25.02.2003 and pursuant to the inviting of claims by the Official Assignee/Official Liquidator in compliance with Order dated 11.04.2004, passed in the winding-up Petition bearing J.M. No.58 of 2002. This factum/position is quite evident from the 'REFERENCE' of Official Assignee/Official Liquidator dated 20.12.2004. The relevant part of the said REFERENCE dated 20.12.2004, reads as follows:
4. That in compliance with said order dated 11.04.2004 claims from the creditors of the company were invited through daily Jang Urdu and Dawn English Karachi. In response to the said advertisement, two claims of Rs.4,85,233.40 from Pakistan Telecommunication Corporation Limited and Rs. 51,642.79 from one Muhammad Akbar were received which were examined and were placed before the Hon'ble Court under Reference dated 23.06.2004. The Hon'ble Court approved the claims on 22.11.2004. The sum of Rs.33,924/- is available with Official Assignee/Official Liquidator which amount has been recovered from the Banks and the same will be distributed between said both the claimants on pro rata basis after deduction fee of Official Assignee/Official Liquidator. Notice for declaring dividend has also been got published.
5. The Official Assignee/Official Liquidator respectfully submits the above facts and seeks permission of the Hon'ble Court as under:-
(i) Permission may be accorded to pay Rs.2000/- to Mr. Muhammad Akbar Ex-Employee of the Company being the preferential amount and Rs.2,036.74 as unsecured.
(ii) Permission may be accorded to pay Rs.19,887.76 to Pakistan Telecommunication Company Limited. [Underlining is ours]
(iii) That the amount of Rs.10,000/- may be sanctioned as fee of Official Assignee/Official Liquidator subject to administrative approval of the Hon'ble Chief Justice.
Sd/- OFFICIAL ASSIGNEE OF KARACHI OFFICIAL LIQUIDATOR
20. 12 .2004
30. The above Reference dated 20.12.2004, was approved by Court vide order dated 28.02.2005, passed in winding-up Petition No.58 of 2002 in the sum of Rs.2000/- [Preferential] and Rs.2036/- [un-secured] in favour of the Appellant viz. Muhammad Akber. Apart from the aforesaid amount[s], Rs.19,887.76 were also paid to PTCL and Rs.10,000/- to the Official Assignee/Official Liquidator of M/s. Tristar Shipping Limited towards' his fees. Needless to say, the total amount collected by the Official Assignee/Official Liquidator from the Banks is detailed as under:- 1.Allied Bank of Pakistan Ltd. Adam Arcade Branch, Bahadurabad, KarachiRs.3,725.00 2.Union Bank Ltd. Sheraton Hotel Branch Rs.9,077.80 3.MCB Bank Ltd. Shahra-e-Faisal Corporate Branch, Karachi Rs. 1 5,767.00 4.Prudential Commercial Bank. Nil 5.Allied Bank of Pakistan Ltd. Napier Road Branch, Karachi No balance 6.Amount available for misc. expenses Rs.5,355.00 Total =Rs.33,924.80 31.Earlier, it appears, a 'STATEMENT OF AFFAIRS', as required under section 328 of the then Companies Ordinance, 1984, was filed by Mr. Masood T. Baghpati, Ex-Chief Executive and Director of M/s. Tristar Shipping Lines Limited, showing therein, the assets of the company as 'Nil' and liability of the company in the sum of Rs.24,97,57,849. There were no other assets of the company under liquidation except an amount of Rs.33924/80 recovered by the Official Assignee/Official Liquidator from the Banks named hereinabove. The said amount was, later on ordered to be paid to [i] Muhammad Akber [Appellant herein], [ii] Pakistan Telecommunication Corporation and [iii] Official Assignee/Official Liquidator as per Court's Order dated 28.02.2005.
32.Since, thereafter, nothing was left to be done by the Official Assignee/Official Liquidator, as such, the Official Assignee/Official Liquidator, upon completion of all the requisite formalities, opted to file an Application under section 350 of the Companies Ordinance, 1984, for dissolution of the company viz. M/s. Tristar Shipping Lines Ltd., which was earlier wound-up vide Order dated 20.02.2003, passed in J.M. No.58 of 2002. Para 9 of the said Application under section 350 of the Companies Ordinance, 1984, bearing C.M.A. No.100 of 2006, filed the Official Assignee/Official Liquidator reads as follows:-
9. The Official Assignee/Official Liquidator prays that nothing remains to be done by the Official Assignee/Official Liquidator in winding up proceedings of the Company and affairs of the Company have completely been wound-up. It is therefore prayed that the Hon'ble Court may be pleased to pass order under section 350 of the Companies Ordinance, 1984 for dissolution of the company. [Underlining is ours] Sd/- 27.12.2005 OFFICIAL ASSIGNEE OF KARACHI OFFICIAL LIQUIDATOR 33.On 13.02.2006 when the aforesaid Application under section 350 of the Companies Ordinance, 1984, came-up before the Court then, the same was accepted as Reference. Order dated 13.02.2006, being relevant for ready reference is reproduced herein below:- For orders on C.M.A. No.100/2006.
ORDER.
13.02.2006.
Mr. Abrar Ahmed Adv. holding brief for Mr. Mansoorul Arfeen, Adv, for the plaintiff.
This Reference has been filed by the Official Liquidator who was appointed to wind up the affairs of the Company under liquidation. The Official Liquidator has reported that the affairs of the company have been completely wound up, therefore, necessary orders for dissolution of the company may be passed. The petitioner has no objection to the acceptance of the Reference of the Official liquidator which is accepted accordingly. [Underlining is ours] Sd/- Sajjad Ali Shah Judge 34.Even, after 'DISSOLUTION' of the company vide order dated 13.02.2006, the Appellant [Plaintiff in Suit No.306 of 2009], kept himself busy in litigation and filed, thereafter, C.M.A. No.144 of 2007 in J.M.
No.58 of 2002. On 21.05.2007 , when the aforesaid Application came-up before the. Hon'ble Company Judge then, it was also found without any substance/merits and consequently, was dismissed. Order dated 21.05.2002, passed in J.M. No.58 of 2002, for ready reference, is reproduced herein below:-
1. For hearing of C.M.A. No.144/2007.
2. For hearing of C.M.A. No.359/2007.
21.5.2007 Applicant Muhammad Akbar, present in person.
Mr. Saleem Thepdawala, advocate for respondents.
Mr. Shah Murad for Official Assignee.
1. Through this application, applicant Muhammad Akbar seeks an order directing a payment of Rs.
123,639.79 to the applicant. The applicant submits that although the assets a meager amount of Rs.2000/= only against his claim of Rs.123,639.79 and therefore he has refused to accept the amount.
It is an admitted position that the assets and properties of the respondents company have been sold in pursuance of the order passed by this Court in the present proceedings and the applicant who was offered an amount out of the sale proceed of the properties and assets on pro-rata basis. The applicant submits that major assets of the company in the shape of vessels have in fact been sold at much less than their real value in execution proceeding initiated in foreign jurisdiction in respect of some foreign parties. Such forced sale took place during the period between 1998 to 2001 and no objection against such sale was brought before this Court in the present or any other proceedings.
In the first place if the vessels were in fact sold at an inadequate price and such sale was also as a result of some collusion and maneuvering still the same cannot be looked into by this Court in the present proceedings, however, as submitted by Mr. Thepdewala the sale had in fact taken place under the orders of some foreign courts and towards satisfaction of the claims of various foreign parties and therefore any collusion between the banks officers in respect of such sale seems impossible. I find no merits in the application. The application is accordingly dismissed."
[Underlining is ours]
35. The Appellant [Plaintiff], in his own wisdom, thereafter, opted to file Suit No.306 of 2009 [Muhammad Akbar v. Masood Tariq Baghpati and others], on 17.01.2009 before this Court for alleged recovery of compensation, damages and losses in the sum of Rs.70.00.000/- [Rupees Seventy Lacs only], against the Ex-Directors of the WOUND-UP and DISSOLVED company viz. M/s. Tristar Shipping Lines Limited, as the said wound-up/dissolved company, as alleged, had failed to make payment of the alleged funds, salaries, etc. In Paras 7, 10 and 11 of the Plaint, the Appellant [Plaintiff], has, asserted as follows:-
7. that the above MIs. Tristar Shipping Lines have failed to make the payment of all of the dues, funds salaries etc. of the plaintiff due to which the plaintiff has filed petition under section 12 of the Shops and Establishment Order 1969 before the Court of Commissioner Workmen's Compensation at Karachi for the recovery of his outstanding dues against the M/s. Tristar Shipping Lines Ltd., the said petition was allowed vide order dated 10-7-2006 whereby the said M/s. Tristar Shipping Lines Ltd., were directed to deposit an amount of Rs.1,25,639/- within 30 days from the date of this order. [Underlining is ours]
10. The defendants have made their attempt for the settlement of the matter with the plaintiff offered an amount of Rs.51,000/- to the plaintiff against his claim which was awarded in his favour.
11. That the defendants have paid an amount of Rs.51,000/- through pay order No.0103963 dated 23-06-2008 to the plaintiff out of Rs.1,25,639/-. [Underlining is ours]
36. From the record, it appears that much after the passing of Winding-up Order dated 25.02.2003 and, Dissolution Order dated 13.02.2006 of M/s. Tristar Shipping Lines Ltd., the Appellant herein, again filed two applications bearing C.M.A. No.264 of 2013 and C.M.A. No.17 of 2014 in J.M. No.58 of 2002. On 20.06.2014, when the aforesaid Applications came-up before the Court then, the Company Judge was pleased to dismiss the said Applications. For ready reference, paras 7 and 8 of order dated 20.06.2014 are reproduced hereinbelow: "7. As noted, the applicant has already had two chances before the Court. On both occasions he did not succeed. He cannot therefore be allowed to pursue the claim for a third time. The applicant may feel that this conclusion is harsh and may even regard it as contrary to justice. But he must realize that courts of law do justice according to law. The law provides a framework for winding up proceedings. Within that framework, the necessary action has been taken. Indeed, the company has already been ordered to be dissolved. An order of dissolution has certain legal consequences, all of which are essentially adverse to the present applications. However; since the applicant appears in person and is obviously a layperson, I do not wish to press this aspect of the matter further. It suffices to note that the applicant has already been given sufficient opportunity to put his case before the Court.
8. In view of what is stated above, I conclude that these applications have no chance of success.
They are therefore dismissed. In view of the past history of the case, and since the company has been ordered to he dissolved, I am further constrained to direct the office to consign this file to record and not to entertain any fresh application by the applicant in this matter." [Emphasis supplied] 37.It is significant to note, that the Appellant [Plaintiff], claiming to be was an employee of M/s. Tristar Shipping Lines Limited, however, during the existence/life time of the said wound-up and dissolved company, has either failed and/or avoided, otherwise, to file any suit for recovery of the so-called dues, salary, etc. except a Petition under section 12 of the Shops Establishment Ordinance, 1969, before the Court of Commissioner Workmen's Compensation South Division Karachi. The said Petition under section 12 of Shops Establishment Ordinance, 1969, was allowed on 10.07.2000 with direction to M/s. Tristar Shipping Lines Limited to deposit Rs.1,25,639.79 within 30 days. The Appellant, however, in the year, 2009, alleges that the said dissolved company M/s. Tristar Shipping Lines Limited, had failed and/or avoided to deposit the said amount before the Court of Commissioner Workman's Compensation, South Division, Karachi as such, now the Ex- Directors of the said dissolved company, can be made liable for such amount.
38. From the 'INDEMNITY BOND' dated 25.06.2008 signed and executed by the Plaintiff [Appellant herein] and marked as 'Article 0/18', produced by the Appellant [Plaintiff] with his 'affidavit-in- evidence' shows that Appellant [Plaintiff] at the time of signing and execution of the 'INDEMNITY BOND' dated 25.06.2008 while, accepting Rs.51,000/- [Rupees Fifty One Thousand only] towards full and final settlement of Appellant's/Plaintiff's claim, Appellant herein [Plaintiff] had/has also waived/given up his further claim against Ex-directors of M/s. Tristar Shipping Lines Limited i.e. Respondents herein [Defendants in Suit No.306 of 2009].
39. It is needless to say, a company, under law, is a separate juristic person/legal entity and obviously distinct from it's Directors. A company, is not a mere alias for its shareholders nor merely an agent for them. The interest of a company and it's status, under law, is quite different from that of it's shareholders and Directors. No shareholder/or Director of a company, can be said as owner of any piece of a property in which the company itself, has an interest. This distinction, no doubt, A is to be observed between the company as a legal entity and it's rights and that of the shareholders and their rights. The property, like-wise, owned by a wife and sons/daughters of Judgment-debtor, cannot be sold as the property of Judgment-debtor. In the case in hand, ex- facie there exists no privity of contract between Appellant [Plaintiff] and Respondents/Ex-Directors [Defendants], which, under law, can be enforced specifically.
40. In this regard reliance can be placed on the case of Anjum Rashid and others v. Shehzad and others [2007 CLD 1210 DB-SHC], wherein, it was observed as.follows:- 18...."it would suffice to say that the respondent No.4 company is a separate entity distinct from its Director and no shareholders/or Director of a company can be said to be the owner of any particular piece of a property in which the company has an interest. Such distinction has to he clearly observed between the company as a legal entity and its rights on the one hand and individually share holders and their right on the other, as such, it cannot be said that the property in question is owned by its share holders or Directors. Even otherwise, the property owned by a wife and sons of a judgment debtor, or for that matter of any person cannot be said to be a property of such person. Following cases may be referred to in this regard: [Emphasis supplied].
Mohan Singh Oberoi v. Rai Bahadur Jodha Omal Kuthalla PLD 1961 SC 6; The Eastern Federal Union Insurance Company v. State Life Insurance Corporation of Pakistan 1987 CLC 1408 and EBM Company Ltd. v. Domanion Bank AIR 1937 PC 279."
41.Moreover, merely claiming damages and losses cannot be granted, in absence of any positive evidence. The Appellant [Plaintiff], in the case in hand, has badly failed to prove his claims of damages and/or compensation against the Respondents /Ex-Directors [Defendants]. Any party who claims damages on account of a breach of contract is required, under law to establish the contract, the breach thereof, and extent of the damages put forward/claimed in a suit for damages. On this aspect of the matter reliance can be placed on the case of Syed Ahmad Saeed Kirmani v. Messrs Muslim Commercial Bank Ltd. Islamabad [1993 SCMR 441], wherein, it was held/observed as follows:- "A party claiming damages suffered due to breach of contract must establish the contract, the breach thereof and the extent of damages. The onus is on the plaintiff and without discharging it he cannot succeed. Section 73 of the Contract Act prescribes the rule for assessing the damages suffered due to breach of contract.' Only such damages can be recovered which naturally arise in the usual course of things from such breach or the parties at the time of making the contract knew that loss or damage in likely to result from the breach. Another principle which is to be kept in mind while assessing damages is that whether the plaintiff was in a position to mitigate the damages and has neglected to avail of it...." [Emphasis supplied].
42. The Respondents herein being natural persons and Ex-Directors of M/s. Tristar Shipping Lines Limited, in no event, can be treated as same person[s] like a company. A legal person, though discharges its' functions through its' Directors, Managers, Agents, Representatives but still the two are distinct and never get merged into each other, rather both remain to continue and retain their respective independent identities and separate personalities. For this reason, as well, the filing of the Suit C No.306 of 2009 against Respondents/Ex-Directors [Defendants], was not only misconceived but also mis-leading. In the case in hand, it is also worth to note, that the Respondents/Ex-Directors/Ex-Directors [Defendants], upon passing of the winding-up order dated 25.02.2003 have ceased to be directors/divested of all powers to act on behalf of a company under liquidation. In this regard section 402 of the Companies Ordinance, 1984, being relevant is reproduced herein-below:- "402. Status of companies being wound up, etc. ---A company being wound up shall continue to be a company for all purposes till its final dissolution in accordance with the provisions of this Ordinance and, unless otherwise specified, all provisions and requirements of this Ordinance relating to companies shall continue to apply mutatis mutandis in the case of companies being wound up: Provided that from the date of commencement of the winding-up of a company, the official liquidator or the liquidator shall be deemed to have taken the place of the directors, chief executive and managing agents of the company, as the case may be." [Emphasis supplied]: 43.Moreover, on aforesaid aspect of the matter reference can be made to the case of National Development Finance Corporation, Karachi v. Messrs Sindh Glass Industries (Pvt.) Ltd. [PLD 1994 Karachi 186], wherein, it was observed as follows: "The object of appointing a liquidator and his functions, including carrying on the business of the company, is to take steps to wind up the company with a view to .its eventual dissolution. That object con be achieved by the liquidator, as such, exercising the powers of the directors. It, therefore, does not appear that the legislature intended that the liquidator should "succeed" the directors in the sense of assuming or sustaining the office of directors. However, it is not necessary to decide that question for the purpose of the present application because it is clear that, on either view, the directors are, upon an order for winding up being made, divested of all powers to act on behalf of the company." [Emphasis supplied] 44.From the record, it appears that as far as the assets of M/s. Tristar Shipping Lines Limited, in foreign country[ies], are concerned, it is worth to mention herein, that the Appellant [Plaintiff] herein, was not a Decree-holder before the foreign Court[s], as were the other creditors/claimants, as such, the Appellant [Plaintiff], could not rely or otherwise, get benefit of the transactions taken place in the foreign courts. As far as, the Appellant's [Plaintiff's]; claim against the Respondents/Ex- Directors is concerned, the same, besides, being without any foundation, 'cause of action' is misconceived in view of the admitted position that Appellant [Plaintiff], was an employee of the defunct company viz. M/s. Tristar Shipping Lines Ltd., which under law, was a separate legal entity.
The Ex-Directors, under law, thus could not be held liable for the liability of a company. The Appellant [Plaintiff] while, admitting this position in his 'cross-examination' has stated as follows:-
6. ... "It is correct I was employee of the Tri Star Shipping Company Ltd. and I was not personally employee of the defendant. It is correct that Tri Star Shipping Company Ltd. has been wounded up as per the order dated 21.05.2007 in J.M. No.58/2000[2002]. It is correct that the claim filed by me in J.M. No.58/2002 was dismissed by the. Hon'ble High Court. It is correct that I filed the claim before the Official Liquidator and the Official Liquidator paid the amount as per order of the Hon'ble High Court. It is correct that the entire record of Tri Star Shipping Company Ltd. was taken over by the Official Liquidator in J.M. No.22/98".... [Underlining is ours] 45.Moreover, as evident from Article '0/18' brought on record by the Plaintiff [Appellant] in Suit No.306 of 2009, and reproduced hereinabove, the Plaintiff [Appellant herein], has actually, waived/given up, his claim against Ex-Directors amongst others, upon receipt of Rs.51,000/- [Rupees Fifty One Thousand only], as full and final settlement of his claim. The Respondents who are the Ex-Directors of the wound-up/dissolved company, in no manner, can be held liable to the Appellant [Plaintiff] for any amount whatsoever; if any, owed by the said wound-up/dissolved company viz. M/s. Tristar Shipping Lines Ltd. Even otherwise, the Appellant [Plaintiff] has failed to prove damages/ compensation by way of cogent and sufficient evidence. Merely, on the basis of so-called alleged documents and/or none-issuance of No Objection Certificate/Clearance Certificate, by the defunct company and that too without proofs. Moreover, the Appellant [Plaintiff], has failed to explain as to why the Plaintiff [Appellant herein], did not agitate/raise such pleas when the employer company was functioning/in existence. In view of this position, as well, the plaintiff's suit was rightly found time barred and not maintainable against the Respondents/Ex- Directors.
46.In view of the above discussion/reasons, we are of the considered opinion and fully satisfied that the impugned judgment dated 01.03.2017 and decree dated 16.03.2017, respectively, beside being correct and in accordance with law, do not call for any interference.
47. Resultantly, this High Court Appeal having been found without any substance and merits, is hereby dismissed along with all pending application[s], however, with no order as to costs.