IRFAN SAADA T KHAN, J.---These three High Court Appeals arise out of the order passed by the learned Single Judge in J.M. No.31 of 2007, decided on 05.07.2012. The learned Single Judge after hearing the case at considerable length, through an elaborate and erudite order , allowed the said J.M. by observing as under: Accordingly , this petition is allowed and disposed of f in terms of the following orders and directions:
(a) In this para, the "Shah group" means Mr. Nazeer and the petitioner or any of them (and no other person), and the "Khan group means the respondents Nos. 2 to 4 or any of them (and no other person).
(b) Within 10 days from the date of announcement of this .Judgment ("announcement date"), the Official Assignee shall appoint a date and time (being a date not earlier than three weeks from the announcement date, nor later than six weeks from that date) for the holding of an EOGM for the election of a fresh board of directors of the Company ("election date"). The Official Assignee shall communicate the election date to the Company , but it shall be the responsibility of the Shah and Khan groups themselves to ascertain the election date from the Official Assignee.
(c) The EOGM shall be held at the registered office of the Company and shall be presided and supervised by the Official Assignee.
(d) The elections shall be held only on the basis of the undisputed shareholding, i.e., 44% for the Shah group and 26% for the Khan group. The shareholders shall elect four directors of whom two must be from the Shah group and two from the Khan group. Each of the Shah and Khan groups may, by decla ration submitted to the Official Assignee not later than seven days before the election date (which may be submitted only once and shall be irrevocable), alter the shareholding inter se the group. and the Official Assignee shall hold the election on the basis of such declaration and the persons listed in the declaration shall be deemed to be shareholders of the Company in terms of the shareholding therein stated. If no such declaration is filed, then the petitioner No.1 shall be deemed to hold 26% shares, the petitioner No.2, 18% and the respondent No.3, 26%. However , each of the respondents Nos.
2 and 4 shall be deemed to hold one qualifying share in the Company . Only shareholders of the Company shall be eligible to stand for election. Only such members of the Shah and Khan groups as are shareholders shall be entitled to attend and participate in the EOGM and may appear and vote at the EOGM by proxy (which, however , may be given only to a member of the group) and which may be delivered to the Official Assignee at any time up to the holding of the EOGM Any proxy so delivered shall form part of the report to be prepared by the Official Assignee.
(e) Once the EOGM has been held and the directors elected, the Official Assigne e shall declare the result, close the meeting and immediately supervise the first meeting of the newly elected board. The only agenda for the first meeting shall be to elect a chairman who must be from the Shah group and appoint a chief executive who must be from the Khan group and one of the persons elected to the board. In case there are any differences or disputes that cannot be resolved, the Official Assignee shall, in his discretion, appoint the chairman or chief executive (as the case may be) and such appointment shall be final and binding. At the meeting, the Khan group shall hand over to the Official Assignee the original share certificates in relation to the 30% shares registered in the name of respondent No.2 (including the certificate regarding the qualifying share of respondent No.4) who shall keep the same in safe custody pending further disposal in terms of these directions or as otherwise ordered by the Court.
The first meeting of the board shall then stand concluded.
(f) The Company , the Shah group and the Khan group and any and all servants, employees or agents of each of them shall provide all such assistance to the official Assignee as he may require or deem fit, including providing any information or record that he may call for, whether on, before or after the election date for purposes of or related to anything contained in this para. Without prejudice to the generality of the foregoing, the Company shall promptly satisfy the Official Assignee that it has made all corporate entries and filings to reflect (i) any change in the shareholding as permitted under clause (d), and (ii) the election of directors and appointment of chief executive in terms of clause (e) above.
(g) The Official Assignee shall prepare a report in respect of the foregoing matters and place the same on the record. The fee of the Official Assignee is Rs.100,000/- payable by the Company , but the fee may be paid at any time by either of the Shah or Khan groups who shall be suitably reimbursed by the Company . The Official Assignee shall not be bound to take any action in terms as provided in this para, save and except as in clause (b) above, unless his fee has been paid in full.
(h) The term of office of the board of directors elected, and chief executive appointed, in terms as above shall be one year from the election date, and thereafter a new board of directors shall be elected and chief executive appointed in terms as provided in The Companies Ordinance. At any meeting of the board elected in terms of clause (e) above, the chairman shall at all times have a second or casting vote.
(i) Any director of the Company , whether elected in terms of clause (e) above or any time thereafter , shall have immediate, full and unimpeded access to all books of accounts and papers of the Company (howsoever stored) and its advisers and to all its properties and assets (subject to third party rights ) and neither the Company , the Shah group or the Khan group nor any of their servants, employees or agents shall at any time by act or omission prevent, hinder or impede any director's access as aforesaid, but the right hereby confirmed shall only be exercisable by the director in person and not through any attorney or agent.
(j) At no time shall any person exercise any voting or other rights in respect of the 30% shares save and except as herein permitted or provided and any dividends declared by the Company shall, in relation thereto, be promptly deposited with the Nazir of this Court, who shall invest them in some profit bearing scheme.
(k) If by or before the end of the one year period specified in clause (h) above, the Shah and Khan groups have come to some understanding or arrangement with regard to the transfer of the 30% shares (or any portion thereof) to the person(s) identified for this purpose in the Main Agreement, the same shall be affirmed and recorded by the board of directors and a certified copy of the relevant resolution shall be provided to the Official Assignee. He shall thereupon hand over a suitable number of share certificates to the Company for transfer to the person(s) concerned and also issue a certificate in relation thereto to the Nazir who shall release the relevant portion of any dividends deposited to the person(s) concerned upon confirmation by the Company that the shares have been transferred in his name.
(l) If by or before the end of the one year period specified in clause (h) above, the Shah and Khan groups have not been able to come to any understanding or arrangement in terms as stated in clause (j) above, then the Official Assignee shall, after making such inquiries with the Company as he deems appropriate, release the relevant share certificates to the Company for transfer of the shares to the Shah group and the last part of clause (1) shall apply mutatis mutandis. However , the shares (and share certificates) in relation to the portion transferable to the respondent No.5 (10%) and the respond ent No.8 (6%) shall continue to be retained by the Official Assignee and their disposal shall depend on the outcome and fate of the civil suits filed by each of these respondents or as may otherwise be ordered by the Court.
(m) The Second Agreement and those provisions of the Main Agreement as relate to Tower II are unenforceable and shall not be given any effect by the Company or the Shah group or the Khan group.
(n) The affairs of the Company and the rights of its shareholders shall, for a period of one year from the election date, be regulated and governed by company law and the provisions of parts (D) to (l) of the Main Agreement (but subject. always to this para). After the expiry of the aforesaid period of one year, but subject to the terms of this para, the affairs of the Company and the rights of its shareholders shall be regulated and governed strictly by and in accordance with company law. Howeve r, as long as the Khan group continues to hold at least the same number of shares as held in the name of respondent No.3 as on the announcement date, the Khan group shall be entitled to elect two directors and the total numbe r of directors of the Company shall not five. If the Company is converted into a public company then, subject to the foregoing condition, the Khan group shall be entitled to elect three directors and the total number of directors of the Company shall not exceed seven.
(o) The civil suits, filed by the responden ts Nos. 5 and 8 respectively that stand transferred to this Court shall be registered as suits on the original side and be fixed for further proceedings and, unless the Court otherwise directs, shall be listed together .
(p) The Official Assignee, Company , Shah group, Khan group or the Nazir (as the case may be) may at any time apply to the Court for such directions and/or clarifications as the Court may deem , fit and appropriate to give or make in order to give effect to anything stated or contained in this para.
(q) The Shah group or the Khan group may place a certified copy of this judgment before the Official Assignee and/or Nazir in order to ensure compliance, but the office shall in any case forwa rd a copy hereof to the Official Assignee.
(r) Nothing in this para shall prevent the Shah group and the Khan group from, at any time, coming to a settlement or compromise with regard to any or all of the matters herein contained (save and except in relation to the shares claimed by the respondents Nos.5 and 8 in the civil suits filed by them), and any or all such matters may be altered, modified or superseded by any such settlement or compromise, but no such settlement or compromise shall have any effect unless it is (i) placed before the Court by appropriate application, and (ii) the Court accepts and endorses the same, whether with or without amendment.
The petition stands disposed off in the above terms. All pending applications have become infructuous and stand disposed off accordingly .
2. Briefly stated, the facts of the case are that the Company , namely , Of space Private Limited (hereinafter referred to as "the Company") the appellant in H.C.A. No.109 of 2012 was incorporated on 17.12.1997. Among other objects of the Company , as duly mentioned in its Articles of Association, the main object of the Company was to conduct the business of construction of office spaces, buildings and properties of all kinds, whether residential or commercial, and generally to act as contractor . The other objects of the Company include to purchase and sell the land, buildings, warehouses, showrooms, factories, bungalows, flats, multistoried buildings, etc. The authorized capital of the Company is Rs.10,00,00,00 40/- (Rupees ten crore), whereas the paid-up capital is Rs.25,00,000/- (Rupees twenty five lac) divided into 25,000 shares. The Company acquired two office Towers on plot No.ST -8, Commercial Area, opposite Aisha Bawani School, main Shahrah-e-Faisal, Karachi, admeasuring 1306 square yards (hereinafter referred to as "the property") vide sale agreement dated 07.01.1998 and sale deed dated 21.01.1998. The Company thereafter constructed two Towers, with the aim to lease/let out the same, (for convenience these towers are referred to as "Tower-I " and "Tower-II "). The construction of these Towers was completed in 2001. Tower-1 comprises of 1000 square yards, whereas Tower-2 comprises of 306 square yards, respectively . The Company is earning its income from lease of these Towers. The purchase of the said building and construction made thereupon was funded by IBM.
3. That a lease agreement was entered between the Company and IBM on 26.12.1997, whereby IBM agreed to take on lease Tower-I or substantial portion thereof It is the claim of the attorney of the appellants, who filed the JM, namely , Nazeer Hussain Shah (hereinafter referred to as "Mr. Shah ") that the Company was incorporated by him and all initial funding etc. was also made by him. It was the claim of Mr. Shah that Mr. Sher Asfandyar Khan (hereinafter referred to as "Mr. Khan ") was his old friend and since Mr. Khan was facing some financial hard time so he brought him to the Company as Chief Executive to look after its affairs but it is the claim of Mr. Shah that not a single penny was contributed by Mr. Khan either with regard to financing of the Company , the project or with regard to the initial set up of the Company . Mr. Shah also claimed that Mr. Khan has no contribution so far as the capital or the projects are concerned, in respect of the Company . In order to run the affairs of the Company smoothly and efficiently shareholders agreement dated 14.01.1998 was made wherein it was mentioned that Mr. Shah along with his wife, namely , Mrs. Neelofar Shah and son Reza A. Shah would hold 44% shares of the Company , whereas 26% shares were to be held by Mst. Sajida Naeem, who is the sister of Mr. Khan, whereas the rest of the 30% shares initially were held by Alamgir Khan, who is the brother of Mr. Khan, for a limited period and purpose and subsequently the same would be transferred to the persons mentioned in the agreement dated 14.01.1998. Since Mr. Shah was suffering with certain ailments and had to undergo medical treatment, he went to United States of America in 1999 and finally returned back in 2006, though admittedly during this period he intermittingly visited Pakistan.
4. Upon the final arrival of Mr. Shah in Pakistan in 2006, he started investigation about the affairs of the Company and came to know that in his absence huge manipulation with the accounts and shares of the Company have been made by Mr. Khan. A number of correspo ndences then took place between the parties, however , when Mr. Shah realized that Mr. Khan has shattered his confidence and has betrayed him and by playing fraud with him has become a major shareholder of the Company , by violating the terms of the agreement dated 14.01.1998, thereafter he filed the present J.M. under sections 290/291 of the Companies Ordinance, 1984 (hereinafter referred to as "the Ordinance ") on the ground that he has discovered "oppression" and thus a declaration was required that Mr. Khan had conducted the affairs of the Company in violation of the Company laws as well as has acted in a derogatory manner against Mrs. Neelofar Shah and Reza A. Shah and other shareholders of the Company , except Mst. Sajida Naeem and Alamgir Khan, who are the wife and brother of Mr. Khan respectively . The J.M. was heard at length by the learned Single Judge and thereafter judgment dated 05.07.2012 was passed. It is against this order that Mr. Sher Asfandyar Khan filed H.C.A. No.107 of 2012 through Messrs Munir A. Malik, Messrs Ofspace (Pvt.) Ltd. filed appeal through Mr. Shakeel Hassan bearing High Court Appeal No.109 of 2012, duly represented by Messrs Rasheed A. Razvi, Mst. Sajida Naeem and Mr. Alamgir Khan filed High Court Appeal bearing No.114 of 2012 duly represented by Mr . Kashif Paracha Advocate.
5. Messrs Munir A. Malik and Ch. Atif Rafiq, Advocates have appeared on behalf of the appellant (Mr. Khan) in H.C.A. No.107 of 2012 and for the respon dent No.3 in H.C.As. Nos.109 and 114 of 2012. They submitted that the order of the learned Single Judge is not in accordance with law as he has ignored a number of factors going to the roots of the case, therefore, the instant appeal may be allowed or in the alternative the matter may be remanded to the learned Single Judge for passing a fresh order by considering the following facts. They stated that the learned Single Judge has failed to consider the aspect that when the appellant and the respondent No.1 had denied the very execution of the main agreement and the second agreement and the signatures appended thereupon, there was no justification available with the learned Single Judge to place reliance on these two agreements. They further stated that these two agreements were never produced in original by Mr. Shah before the learned Single Judge. They stated that the learned Single Judge has himself examined the signatures of the appellant and the respondent No.10 rather than seeking opinion of some expert in this behalf. They in this regard have laid emphasis on the blow-up signatures of these two persons by submitting that there are material differences in the usual signatures of these two persons and their signatures appended on these documents.
6. The learned counsel, while elaborating their viewpoint, submitted that since the very agreements i.e. main agreement and second agreement were fabricated and forged, therefore, the observation of the learned Single Judge that the respondent No.10 held the shares of the Company in trust was not correct and the only grievance of the respondent No.1 arose when these 30% shares were transferred to the appellant and the Khan group (comprising of Mr. Sher Asfandyar Khan, Mst. Sajida Naeem and Mr. Alamgir Khan) became the majority shareholders. According to M/s. Munir A. Malik and Ch. Atif Rafiq when Mr. Shah left the country the affairs of the Company were being run by Mr. Khan and it is an admitted position that the Company was running into huge profits and when he returned back in order have a major shareholding in the Company , a dispute arose between Mr. Khan and Mr. Shah and when Mr. Shah came to the conclusion that his group (Shah group comprising of Mr. Nazeer Hussain Shah, Mst. Neelofar Shah and Mr. Reza A. Shah) fell into minority shareholding thereafter application under sections 290/291 of the Ordinance was moved with mala fide intention. They stated that the transfer of 30% shares (7499) was done in accordance with law and all the necessary documents in this behalf were duly furnished to the SECP which, according to them, have supported the stance of the appellant but the learned Single Judge by totally ignoring this aspect has decided the matter in favour of the respondent No.l.
7. The learned counsel also stated that the learned Single Judge has failed to appreciate the true connotation of sections 290/291 of the Ordinance. They then read out the provisions of the said Sections and stated in the instant matter this provision does not attract, as no breach with regard to the affairs of the Company has occasioned so as to entail the applicability of these Sections. They further stated that the transfer of the shares to the Shah group took place by fulfilling all the legal norms and conducting the board meetings and duly informing the SECP in this behalf and the learned Single Judge has erred in not accepting the fact that eithe r no proper meetings took place on 15.01.1999 or these meetings were coram non-judice with regard to transfer of shares or that the legal formalities in this behalf have not been fulfilled, hence, observation of the learned Single Judge that the transfer of the shares to Mr. Shah was dubious or not in accordance with law is an incorrect observation and the same may be vacated. In the alternative, Messrs Munir A. Malik and Ch. Atif Rafiq submitted that even if for arguments' sake it is accepted that the main agreement and the second agreement are genuine even the same are not liable to be considered, since there is a disparity between various clauses of the agreements and the Articles of Association of -the Company , which has rendered the clauses of the agreement impractical to be acted upon due to these being violative of the Companies Ordinance. They then read out various clauses of the agreements to prove their stance.
8. Messrs Munir A. Malik and Ch. Atif Rafiq have also submitted that the very proceedings initiated by the learned Single Judge were ab initio void and illegal, as according to them, company matter proceedings are always summary in nature. They submitted that when the learned Single Judge did not proceed in a summary manner rather dealt with the matter in a usual manner then issues were to be framed and evidence has to be recorded, which aspect has totally been ignored by the learned Single Judge, as according to them the matter has been decided without recording of evidence and framing of the issues, hence, the order of the learned Single Judge suffers with this grave illegality and irregularity and needs to be vacated. They in this regard have placed reliance on the following decisions: i) Mian Javed Amir v . United Foam Industries (Pvt.) Ltd. (2016 SCMR 213 ) ii) Baz Muhammad Kakar and others v. Federation of Pakistan through Ministry of Law and Justice, Islamabad and others (PLD 2012 SC 870 )
9. Messrs Munir A. Malik and Ch. Atif Rafiq have stated that when the learned Single Judge came to the conclusion that he would proceed with the matter as a normal case, which he was not obliged to since the instant matter should have been proceeded in a summary manner , however the learned Single Judge has failed to proceed with the matter as if it were a normal case by not framing the issues, recording the evidence and proceeding accordingly . In support of their above submissions, they have relied upon a number of decisions, summary of which is given as under: A. Case-laws on comparison of signatures: i) Rehmat Ali Ismailia v . Khalid Mehmood (2004 SCMR 361 ) ii) . Muhammad Kabiruddin v . Muhammad Munirruddin (1993 CLC 747 ) iii) Muhammad Nurul Haq Mia v . The State (PLD 1958 Dacca 341 ) iv) Muhammad Ali Hemani v . Altai Fatima (1987 CLC 282 )
B. Decisions on non-giving of the effect to the provisions of agreement, if not incorporated into Articles of Association: i) V. B. Rangaraj v . V. B. Gopalakrishnan (AIR 1992 SC 201) ii) Crompton Greaves v . Sky Cell Communication Ltd. [115 Company Cases 832 (Madras)] iii) IL and FS T rust Co. Ltd v . Birla Perucchini Ltd. [AIR (2004) Company Cases (Bombay 335)] C. Decision on jurisdiction and interpretation of section 290 of the Ordinance: i) Elder v . Elder and W atson (1952 SC 49) ii) Re H.R. Harmer Ltd. [1959 (1 WLR 62)] iii) Re Unisoft Group Ltd. (No.2) [1994 BCC 766] iv) Re Legal Costs Negotiators Ltd. (1999 BCC 547) v) Muhammad Fikree v . Fikree Development Corporation Ltd. (1992 MLD 668 ) vi) Shaheen Foundation v . Capital F .M. (Pvt.) Ltd. (2002 CLD 188 ) vii) R v. Board of T rade (1964 2 All E.R 561) viii) Re Leeds United Holdings plc. (1997 BCC 131) ix) Rajahmundry Electric Supply Corporation v . Nageshwara Rao (AIR 1956 SC 213) x) Registrar of Companies v . Pakistan Industrial and Commercial Leasing Ltd. (2005 CLD 463 ) xi) Scottish Co. Operative Wholesale Society Ltd v . Meyer (1959 A. C. 324) xii) Shahbazud Din Chaudhry v . Services Industries T extiles Ltd. (PLD 1988 Lahore 1 ) xiii) Associated Biscuits International Ltd. v . English Biscuits Manufacturers (Pvt.) Ltd. (2003 CLD 815 )
10. Messrs Rasheed A. Razvi, Tahmasp R. Razvi and Mr. Waleed Rehan Khanzada, Advocates, have appeared as counsel for the appellant in H.C.A. No.109 of 2012 and as counsel for the respo ndent No.8 in H.C.A. No.107 of 2012 and as counsel for the respondent No.9 in H.C.A. No.114 of 2012. They have adopted and supported the arguments of Messrs Munir A. Malik and Ch. Atif Rafiq. They have stated that the J.M. No.31 of 2007 filed under sections 290, 291 and 292 of the Ordinance was barred by time under Article 181 of the Limitation Act, 1908 (hereinafter referred to as "the Act") which aspect, according to them, has totally been ignored by the learned Single Judge. They further stated that even otherwise since the cause of action arose from the date of the execution of the two agreements dated 14.01.1998 hence Articles 120 and 113 of the Act are also applicable in the instant proceedings. In support of their arguments they have placed reliance on the following decisions: i) Khurshid Ahmad Khan and another v. Pak Cycle Manufacturing Company Ltd., Shandara and others (PLD 1987 Lahore 1 ) ii) Syed Akbar Ali v. Mamun Ali Bumasuk (Pvt.) Ltd. and others (2006 CLD 960 ) iii) Mrs. 'Saeeda Mahmood and another v. Anas Munir (Pvt.) Ltd. through. Chief Executive and others (2007 CLD 637 ) iv) Agha Bashir Ahmed v . Nippon Bobins (Pvt.) Ltd. (1997 CLC 1205 ) v) Allah Dino and another v . Muhammad Shah and others (2001 SCMR 286 ) vi) The Kerala State Electricity Board v . P. Kunhaliumma (AIR 1977 SC 282) vii) Faridabad Cold Storage v . Official Liquidator (AIR 1978 Delhi 158) viii) Messrs R.C. Abrol Company v . Messrs A.R. Chadha and Company (AIR 1978 Delhi 167) ix) Anil Gupta v . Delhi Cloth and General Mills Co. Ltd . [(1983) 54 Comp. Ord. Cases 301 1 x) Trustees of the Port of Karachi v . Organization of Karachi Port T rust W orkers (2013 SCMR 238 ) xi) Muhammad Fikree and others v . Fikree Development Corporation Ltd and others (1992 MLD 668 ) xii) Tahir Mahmood Khan and others v . Azad Government and others [2008 CLC 1662 (SC(AJ&K))] xiii) Ali Muhammad and another v . Fazal Hussain and others (1983 SCMR 1239 ) xiv) Haji Muhammad Ashraf v . The State and 13 others (1999 MLD 330 ) xv) Town Municipal Council v . The Presiding Of ficer Labour Court (AIR 1969 SC 1335)
11. They further supported the submissions of Messrs Munir A. Malik and Ch. Atif Rafiq that the terms and conditions, as mentioned in the two agreements, are in conflict and in violation of Articles 11, 12 and 15 of the Articles of Association of the Company , hence, the two agreements could not be relied and implemented upon.
They in this behalf placed reliance on the decision given in the case of United Liner Agencies of Pakistan (Pvt.) and others v. Miss Mahenau Agha and others (2003 SCMR 132). They further stated that it is interesting to note that the shareholders agreement though was executed on 14.01.1998 but the same was between the persons who were neither shareholders nor Directors of the Company , hence could not be acted or implemented upon. In support of their contention, they placed reliance on the decision in the case of Pakistan Milk Food Manufacturers Ltd. v . Joint Registrar of Companies (PLD 1989 Lah. 539 ).
12. They further supported the contention of Messrs Munir A. Malik and Ch. Atif Rafiq on the ground that neither issues were framed nor evidence was recorded by the learned Single Judge, while disposing of the matter and in this regard placed reliance on the decision in the case of Mian Javed Amir v. United Foam Industries (Pvt.) Ltd.
(2016 SCMR 213). They further stated that the learned Single Judge has misinterpreted the term "oppression" as, according to them, in the event of unproved allegation of fraud and forgery the provisions of Section 290 of Ordinance are not applicable since, according to them, there was no "oppression" as to entail the justification for initiating the proceedings under section 290 of the Ordinance. They further stated that had the appellants not complied with the provisions of the Ordinance, SECP definitely would have taken action against the Company but, according to them, the SECP has supported the stance that the shares transferred to Mr. Khan by his brother Alamgir Khan were in accordance with law and as per the provisions of the Ordinance. According to them since the allegation of negligence or omission has not been established, hence there was no justification available with the learned Single Judge to allow the JM. In support of their contention, they placed reliance on the following decisions: 1) Re Jermyn Street T urkish Baths Ltd . [(1971) 3 All ER 184] ii) Shahamatullah Qureshi v . Hi-tech Construction (Pvt.) Ltd . (2004 CLD 640 )
13. They further submitted that when the matter had become highly disputed, the learned Single Judge ought to have decided the same after framing of issues, recording the evidence and after cross-examination of the parties, which has not been done and hence the order of the learned Single Judge suffers with these grave legal infirmities and thus the order is liable to be vacated or in the alternative the case may be remanded for fresh decision in accordance with law .
14. Mr. Kashif Sarwar Paracha Advocate has appeared on behalf of the appellants in H.C.A. No.114 of 2012 and as a counsel for the respondents Nos.9 and 10 in H.C.A. No.107 of 2012 and as a counsel for the respondents Nos.4 and 5 in H.C.A. No.109 of 2012. He adopted and supported the arguments as advanced by Messrs Munir A. Malik and Ch. Atif and Messrs Rasheed A. Razvi, Tahmasp R. Razvi and Mr. Waleed Rehan Khanzada, Advocates. He stated that the order of the learned Single Judge is not in accordance with law as, according to him, contradictory observations have been made by the learned Single Judge. He thereafter read out paras 15 and 23 of the judgment. He further stated that the respondents have not filed reply or cross-objections to the memo of appeal as required under Order XLI, Rule 22 of the Code of Civil Procedure (hereinafter referred to as "the C.P.C."). He further stated the learned Single Judge has failed to match the original signatures of the appellant Alamgir Khan, as available on his vakalatnama and counter affidavit as filed in JM. He stated that the learned Single Judge in spite of the fact that the appellant Alamgir Khan has denied his signatures on the Articles of Association has considered the same as authentic and genuine. He further submitted that the said action of the learned Single Judge is violative of Articles 74 and 84 of the Qanun-e-Shahadat Order , 1984 (hereinafter referred as "the Order-1984"). In support of his submissions the learned counsel placed reliance on the following decisions: i) Sana Ullah and another v . Muhammad Manzoor and another (PLD 1996 Supreme Court 256) ii) Mst. Nusrat Khanum v . Liaqat Ali (PLD 1994 Karachi 252 ) iii) Miss Parveen Kassimali Popatiya v. Nizari Cooperative Housing Society Limited, Karachi and 5 others (PLD 1994 Karachi 348 )
15. All the above learned counsel after concluding their arguments in the end submitted that since the order of the learned Single Judge suffers with a number of illegalities, irregularities and deficiencies, hence, the same may be vacated /set-aside or in the alternative the matter may be remanded to the learned Single Judge for passing a fresh decision in accordance with law , after considering the various aspects arising in the instant matter .
16. Mr. Masood Khan Advocate has appeared on behalf of the respondent No.1 in H.C.A. No.107 of 2012 and for the respondents Nos.1 and 2 in H.C.A. No.114 of 2012 and has opposed the instant appeals and has supported the order of the learned Single Judge. He stated that the process of incorporation and formation of the Company was done exclusively by Mr. Shah and none of the respondents in the JM have contributed either in finance and capital or participated in the formation of the Company . He stated that it was when Mr. Shah came to the conclusion that the affairs of the Company were not being run in a proper manne r and that Mr. Khan by adopting illegal methods and manner has become the majority shareholder to oust the pioneers of the 'Company with mala fide intention thereafter quite rightly filed application under sections 290 and 291 of the Ordinance before the learned Single Judge which, according to him, was rightly allowed. He stated that though the order of the learned Single Judge was not in its entirety as per the prayer , as made in the said JM, but has redressed the grievance of Mr. Shah to a certain extent and that is why no appeal was preferred by Mr. Shah or his family member against the order of the learned Single Judge.
17. The learned counsel stated that the affairs of the Company were not being run in a proper manner which prompted the learned Single Judge to allow JM which aspects have elaborately been discussed in the order of the learned Single Judge. Mr. Masood then read out a number of paragraphs of the order passed by the learned Single Judge to support his submissions. He stated that initially Messrs Of space was a business concern of Shah family and later on it was converted into a Private Limited Company as a business concern of the Shah family alone and Mr. Khan was only brought in on compassionate grounds who subsequently turned out to be a usurper causing serious prejudice to the Company and bringing bad names to the Company . He stated that contrary views have been stressed by the learned counsel for the appellants which, according to him, could be seen by reading para-9 of the counter affidavit filed in the JM. He further stated that though it has been averred that when the learned Single Judge came to the conclusion that he will not decide the case in a summary manner but would deal with the matter by examining the same indepthly hence recording of evidence has become imperative whereas suffice to say that when the matter has been dealt with meticulously by the learned Single Judge in his judgment comprising of as many as 35 pages clearly depicting that the matter has been extensively and elaborately , on every nook and corner , has been discussed and dealt with by the learned Single Judge, it was only then the learned Single Judge after hearing the parties at considerable length on a number of dates through an erudite order did not deem it necessary to record the evidence or to frame formal issues as every issue raised before him was duly covered in his judgment, hence it could not be said that the order suffers from any legal infirmity so as to whittle it down either by setting it aside or by vacating it or remanding the matter .
18. The learned counsel pointed out towards a number of paras and observations of the learned Single Judge to support his viewpoint. He stated that the learned Single Judge has exercised the jurisdiction under section 290 of the Ordinance in a legal and lawful manner and these appeals merit dismissal with heavy cost. The learned counsel then read out sections 290 and 291 of the Ordinance and stated that nowh ere in the said provisions of law it is mandatory upon a Company Judge to record the evidence. According to him, it is the discretion of the Company Judge that if he feels necessary then he could record the evidence or frame formal issues and in the instant matter after discussing the controversies extensively the learned Single Judge did not deem it necessary to record evidence or to frame formal issues, hence, as per the learned counsel, there is no lacuna in the order of the learned Single Judge. In support of his above contention the learned counsel placed reliance on the case of Mian Javed Amir v. United Foam Industries (Pvt.) Ltd. (2016 SCMR 213). (Interestingly also relied upon by Messrs Rasheed A. Razvi, Tahmasp R. Razvi and W aleed Rehan Khanzada).
19. The learned counsel submitted that so far as the issue of comparison of signatures is concerned and that blow- up of the signatures of the appellants have been produced and much emphasis has been laid down on these blow- ups, he stated that this aspect has elaborately been discussed by the learned Single Judge in para-23 of the impugned judgment. According to him Article 84 of the Order-1984 duly empow ers the Judge to deal with the matter , hence, it could not be said that by comparing the signatures himself by the learned Single Judge an illegality has been committed by him, therefore, on this score these appeals are not maintainable and are liable to be dismissed as all the decisions relied upon by the learned counsel for the appellants in this behalf are distinguishable on the facts obtaining in the instant matter . In support of his contention the learn, I counsel has relied upon the following decisions: i) A. Cutubuddin Khan v . CHEC Millwala Dredging Co. (Pvt.) Limited (2014 CLD 824 ) ii) Messrs W aqas Enterprises and others v . Allied Bank of Pakistan and 2 others (1999 SCMR 85 ) iii) Ghulam. Rasool and others v . Sardar-ul-Hassan and another (1997 SCMR 976 ) iv) Haji Muhammad Khan and 2 others v . Islamic Republic of Pakistan and 2 others (1992 SCMR 2439 ) v) Syed Ghulam Shabbir v . Ahmad (2006 YLR 2304 ) vi) Zafar Yasin and 2 others v . Abdur Rashid Khan througly Legal Heirs and 5 others (2003 YLR 2478 ) vii) Abdul Ghaf far v. Muhammad Sharif (1993 CLC 1779 ) viii) Muhammad Boota v . Basharat Ali (2014 CLD 63 )
20. The learned counsel further stated that the learned counsel for the appellants have furnished that there is a legal disparity in the various clauses of agreements and the Articles of Association of the Company . In this regard he stated that this submission is not based upon a proper appreciation of the facts of the matter , as firstly this issue has been dealt with in various paragraphs of the judgment by the learned Single Judge and secondly the learned counsel for the appellants have failed to pinpoint the exact clauses of the agree ments which are in conflict with particular Article of the Association as according to him a cursory submission has been made in this behalf by the learned counsel for the appellants without denoting the actual contradictions amongst the two. The learned counsel further submitted that so far as the issue of laches is concerned, the principle of laches is not a rule of universal application and according to him the learned Single Judge has elaborately discussed abou. the laches in paragraphs 27 to 40 of the impugned judgment and the learned counsel for the appellants have failed to dislodge the observations of the learned Single Judge made in this behalf. In support of his submissions, he has placed reliance on the following decisions: i) Pakistan Post Of fice v . Settlement Commissioner and others (1987 SCMR 1 119) ii) Umer Baz Khan through LHrs v . Syed Jehanzeb and others (PLD 2013 SC 268 ) iii) Ahmed All v. Tehsil Nazim, T ehsil Municipal Administration, T ehsil Ghazi, District (2019 CLC 298 )
21. The learned counsel further stated that the respondent No.10 Alamgir Khan, who is the appellant in H.C.A.
No.114 of 2012, was entrusted to keep the 30% shares of the Company till such time any decision for transfer is made by Mr. Shah but the said Alamgir Khan in connivance with Mr. Khan illegally transferred the said 30% shares to Mr. Khan resulting that the Shah group became minority shareholder , whereas the group of Mr. Khan became majority shareholder causing serious prejudice to the Shah group. He stated that this issue also has been dealt with elaborately in paragraphs 40 to 52 of the impugned judgment and in view of the elaborate discussion made in the order no interference may be made. He stated that the manner and method in which meeting was held on 15.01.1999 clearly shows that the said meeting was invalid and illegal. To support his submission, the learned counsel has placed reliance on the following decisions: i) Adamjee Insurance Company Limited and others v. Muslim Commercial Bank Limited and others (2005 SCMR 318 ) ii) Naveed Textile Mills Ltd., Karachi and 3 others v. Central Cotton Mills Limited, SITE, Kotri, District Dadu and 2 others (PLD 1997 Karachi 432 )
22. According to the learned counsel when Mr. Shah came to know about the illegal transfer of shares by the Khan group, he immediately contacted Mr. Khan, which is evident from the various correspondences, and tried to restrain him from running the affairs of the Company in an illegal manner but when no heed was paid by Mr. Khan thereafter the instant JM was filed and since the cause of action was continuous therefore no question of limitation would come in the way of Mr. Shah, as rightly observed by the learned Single Judge. He stated that the procedure adopted in transferring shares held in trust by Mr. Alamgir Khan was illegal and the notices of the meetings, holding of the meetings, passing of the resolution and intimating the same to various quarters all were unlawful, as rightly observed by the learned Single Judge. He stated that even the SECP has disapp roved the said transfer and has invited our attention to certain orders of the SECP in this behalf. In support of his above contentions the learned counsel relied upon the following decisions: i) Inam Ullah Khan v . Aksa Solutions Development Services (Pvt.) Ltd. and others (2019 CLD 355 ) ii) Messrs Kingsway Capital UP and another v . Murree Brewery Co. Ltd. (2017 CLD 587 ) iii) In re: Messrs K.S.B. Pumps Co. Ltd., Lahore (PLD 1974 Lahore 362 ) iv) Ahmed Ali v. Tehsil Nazim, Tehsil Municipal Administration, Tehsil Ghazi, District, Haripur and 7 others (2019 CLC 298 ) v) Umar Baz Khan through L.hrs. v . Syed Jehanzeb and others (PLD 2013 SC 268 ) vi) Mian Javed Amir and others v . United Foam Industries (Pvt.) Ltd. (2016 SCMR 213 ) vii) Re Jermyn Street T urkish Baths Ltd. (1971 3 All ER 184) viii) Mohammad Mohsin Butt and others v . Mohammad Inayat Butt and others (2005 CLD 747 )
He in the end stated that these three appeals filed,. being bereft of any merit, are liable to be dismissed.
23. Mr. Khalid Javed Khan Advocate has appeared on behalf of the respondent No.2 in H.C.A. No.107 of 2012. He adopted the arguments of Mr. Masood Khan and in addition to those submissions stated that Khan group had no role in procuring the project from IBM, which is the core and corpus of the Comp any's business and Khan group had made no monetary contribution eithe r in the set up or formation of the Comp any. According to him Mr. Khan joined the Company as CEO to look after the affairs of the Company or as a supervisor only with no ownership rights in the Company however he subsequently , by playing fraud became the majority shareholder by ousting the real owners of the Company , which prompted Mr. Shah to file the application under sections 290 and 291 of the Ordinance. According to the learned counsel, Mr. Khan was on payroll of Mr. Shah, working as an employee, subordinate or servant but subsequently through illegal means became the major ity shareholder of the Company .
He read out various clauses of the main agreement to substantiate that these clauses convey a planning and strategy with regard to shareholding of the Company . He stated that Mr. Khan was never brought by Mr. Shah to own the Company but to guard the interest of the Company as an executive only but Mr. Khan tarnished the confidence reposed upon him by usurping the shares of the Company in an illegal and unlawful manner .
24. The learned counsel stated that complete mechanism of dealing with the manner and matters of the Company has been prescribed in the Companies Ordinance. He stated that when Mr. Shah came to the conclusion that due to his absence from the Company for health reasons Mr. Khan by taking adva ntage of the situation and his absence had managed to illegally acquire 30% shares kept as Amanat with his brother Alamgir Khan thereby becoming a majority shareholder by ousting Mr. Shah's family , that is why the J.M was filed by Mr. Shah. He further stated that the learned Single Judge is fully empowered to examine the documents so as to arrive to a just and fair conclusion. According to him, after examining the documents, the learned Single Judge quite rightly came to the conclusion that Mr. Khan has acted dishonestly with the affairs of the Company and thus quite correctly allowed the application filed by Mr. Shah under Sections 290 and 291 of the Ordinance. According to him the order of the learned Single Judge is based upon sound conclusions arrived at after elaborate ly discussing the matter , hence, there was no occasion to record the evidence or to frame the issues, as the matter has been discussed at length by the learned Single Judge and, according to him, there would have been no difference had the evidences been recorded or issues been framed, which in the present case according to him is nothing but a hyper technical ground raised by the learned counsel for the appellants, when in fact the learned Single 'Judge has discussed the various clauses of the agreements, Articles and Memorandum of Association and all other aspects agitated and argued before him, either on factual or legal aspects. He further stated that if the corporate veil is lifted, it would be the Shah group which would emerge and not the Khan group. In support of his contention, the learned counsel placed reliance on the decision in the case of Nagina Films Ltd. v . Usman Hussain (1987 CLC 2263 ).
25. The learned counsel stated that the learned Single Judge has rightly observed with regard to wrongful transfer of 30% shares to Mr. Khan and ordered the election of Board of Directors in accordance with undisputed shareholdings of the Company . According to him, the appellants should not have felt aggrieved against the said order of the learned Single Judge, which is in accordance with law, and should have let the elections of the Board of Directors be held with regard to disputed shareholdings as everything would have become crystal clear if the said procedure is allowed to take place. He stated that just to withhold those elections and to linger on the matter for illegal gains the instant appeals have been filed and stay orders have been obtained and thus, in view of this background, these three High Court Appe als are liable to be dismissed with cost. With regard to the submissions of the learned counsel for the appellants that disputed questions of facts warrant recording of evidence and framing of issues and that signatures are disputed on the main agreement, he stated that proper examination of photocopies of the documents produced was done by the learned Single Judge and no violation of Articles 72 to 77 of the Order , 1984 has either been made or pointed out.
26. The learned counsel stressed that in fact no photocopy was produced or admitted in evidence and the learned Single Judge has compared the signatures of the appellant on the main agreement with the documents produced before him and thereafter came to the conclusion that there was no material difference in the signatures appearing on the main agreement and those documents, therefore, this authority was rightly exercised by the learned Single Judge under Article 84 of the Order , 1984. He further stated that the question of disbelieving of the agreements would have occasioned only when some other agreements were produced by the appellants and since this is not the case of the appellants hence the agreements produced and relied upon by the respondents have to be considered as true and correct in absence of any other agreement. In support of his contention, he relied upon the following decisions: i) S.M. Zahir v . Pirzada Syed Fazal All Ajmeri (1974 SCMR 490 ) ii) Mst. Ummatul W aheed and others v . Mst. Nasira Kausar and others (1985 SCMR 214 ) iii) Haji Fazal Shah and 2 others v . Shahbaz Khan and 5 others (1995 SCMR 85 ) iv) United Bank Limited v. Pakistan Industrial Credit and Investment Corporation Ltd. and another (PLD 2002 Supreme Court 1100) v) Owaisco v . Federation of Pakistan and others (PLD 1999 Karachi 472 )
27. In the last, the learned counsel stated that the learned Single Judge has inhere nt powers to pass such order to ensure that ends of justice are not defeate d. To support his contention he placed reliance on the decision, authored by one of us, namely , Irfan Saadat Khan J., in the case of Light Metal and Rubber Industries (Private) Limited and others v . Sarfraz Qaudri (2011 CLD 1485 ).
28. Messrs Muhammad Yaseen Azad and Mukesh Kumar G. Karara Advocates have appeared on behalf of the respondents Nos.1 and 2 in H.C.A. No.109 of 2012 and have adopted the arguments as advanced by the counsel for other respondents Messrs Masood Khan and Khalid Javed Khan and in addition to the arguments submitted that Mr. Shah has acted as Chairman of Board of Directors of the Company and it was Mr. Shah who opened the account of the Company and was a cosig natory of the bank account maintained by the Company . They stated that the assertion of the learned counsel for the appellants that Mr. Shah is a stranger is totally incorrect as the Company in fact was the brainchild of Mr. Shah. They stated that 30% shares though initially were in the name of Mr. Alamgir Khan but he was Benami of Mr. Shah and was only entrusted with the 30% shares with an understanding that at appropriate time these shares would be transferred to the Shah group but in an illegal and unlawful manner the shares held in trust by Mr. Alamgir Khan were transferred in the name of Mr. Khan through manipulation. They stated that the meetings were conducted in violation of section 76 of the Ordinance and signatures of transferee i.e. Alamgir Khan are missing on the transfer documents, dates of notices and place of issue do not match with each other and signatures of all the participants in respect of the meeting held on 15.01.1999 were missing, with the result that the transaction which took place on 15.01.1999 was highly dubious in nature and the observations given by the learned Single Judge in this behalf are thus not open to any exception.
They further stated that even these fake transactions were never submitted to the SECP , meaning thereby these transfer deeds were fake and bogus and not to be relied upon.
29. The learned counsel further submitted that vide two agreements dated 14.01.1998 the whole future planning of the Company was described and the only objection taken by the appellants was non-production of the original agreements, whereas they themselves have relied upon the said agreements durin g the course of their arguments which has rendered their arguments with regard to non-submission/ production of the original agreements, as an argument which needs no consideration. They stated that during the pendency of the matter the appellants violated a number of stay orders passed by this Court as well as learned Single Judge. He stated that due to the illegal action of Mr. Khan the Company and the respondents have suffered irreparable financial losses. They further stated that H.C.A. No.109 of 2012 has not been filed by a competent person as, according to him, Mr. Shakeel Hassan is neither a shareholder nor a director of the Company hence, he has no authority to file the appeal, therefore, at the very outset, this High Court Appeal is liable to be dismissed on this score alone and in support thereof relied upon the decision given by the Hon'ble Supreme Court of Pakistan in the case of Telecard Limited v. Pakistan Telecommunication bearing Civil Appeal No.1612 of 2013, decided on 13.02.2014. They also placed reliance on the decision, authored by one of us, namely , Irfan Saadat Khan J., in the case of Messrs Abdullah Ltd. v. Muhammad Irfan Azad and others bearing High Court Appeal No.236 of 2005. They , in the end, submitted that all these three appeals merit dismissal, as the same have been filed with mala fide intention, just to usurp the shareholding of the respondents and to deprive the legal owners of the Company from their legal and lawful rights.
30. Mr. Taimoor Ali Mirza Advocate has appeared on behalf of the respondent No.4 in H.C.A. No.107 of 2012 and as a counsel for the respondent No.7 in H.C.A. No.109 of 2012 and for the respondent No.5 in H.C.A. No.114 of 2012. He stated that the said Architects were hired by Mr. Nazeer Hussain Shah. He supported the contentions raised by the counsel for the respondents and also supported the order passed by the learned Single Judge.
31. Mr. Jawad A. Qureshi Advocate has appeared on behalf of the respondents No.3 in HCA No".107 of 2012, for the respondent No.6 in H.C.A. No.109 of 2012 and for the respondent No.4 in H.C.A. No.114 of 2012. He has adopted the arguments as advanced by other counsel for the respondents.
32. Mr. Sajjad Abbas Advocate has appeared on behalf of the respondent No.6 in H.C.A. No.107 of 2012, the respondent No.9 in H.C.A. No.109 and the respondent No.6 in H.C.A. No.114 of 2012. He also has supported and adopted the arguments of the counsel appearing for the respondents.
33. Mr. Naveed-ul-Haque Advocate has appeared on behalf of the respondent No.7 in H.C.A. No.107 of 2012, respondent No.10 in H.C.A. No.109 of 2012 and respondent No.8 in H.C.A. No.114 of 2012 and submitted that the reply filed by them is already available at page 1223 in H.C.A. No.107 of 2012 and stated that apart from this submission he has nothing more to add and whatever orders are passed by this Court would be complied with in letter and spirit.
34. Nobody has appeared on behalf of the respondent No.5 in H.C.A. No.107 of 2012, respondent No.8 in H.C.A.
No.109 of 2012 and respondent No.7 in H.C.A. No.1 14 of 2012.
35. Messrs Munir A. Malik and Ch. Atif Rafiq Advocates while exercising their right of rebuttal laid emphasis that agreements cannot override the Articles of Association and stated that the decisions cited by them are complete answer in this behalf. They further stated that section 290 of the Ordinance only comes into picture when there is some "oppression" with regard to the affairs of the Company and not with regard to the dispute inter se amongst the shareholders. They stated that the dispute is only with regard to the sharehold ing of the Company as both the Groups i.e. Shah Group and Khan Group wants to have majority shareholdings in the Company which, according to them, do not fall under the purview of section 290 of the Ordinance. They further stated that the learned Single Judge has not given a proper finding with regard to the oppression found by him as to entail the applicability of section 290 of the Ordinance. They repeated their arguments with regard to non-production of original agreements.
They denied the allegation of the learned counsel for the respondents with regard to capital investment by Mr. Shah as, according to them, the negotiation between the Company and the IBM was made by Mr. Khan and not by Mr. Shah. They further stated that since the Company was incorporated by a Chartered Accountant on the instructions of Mr. Shah hence the registered office of the Company is same as provided to the Chartered Accountant by Mr. Shah.
36. The learned counsel stated that the matter before the Company Judge involved intricate, complicated and disputed questions of fact hence it was imperative upon the learned Single Judge to have recorded the evidence and framed the issues, which aspect has altogether been ignored. They further stated that a number of documents filed along with C.M.A. No.27 of 2018 were never produced before the learned Single Judge hence may not be considered, as their authenticity is highly doubtful. They reiterated their submission with regard to Article 84 of the Order ,-1984 and stated that the said Article is to be read with Articles 72 to 78 of the said Order , 1984 and not in isolation. They stated that the meetings. took place on 15.01.1999 were in accordance with law and there was no violation of sections 50, 157, 160, 164, 172 and 174 of the Ordinance. They further stated that the learned Single Judge has totally missed the aspect that though Board meetings took place on 15.01.1999 but the transfer of shares already took place on 22.01.1998 and the respondents have managed to obtain fake signatures of Mst.
Neelofar Shah. They further added that there is no violation in transferring the shares by Mr. Alamgir Khan to Mr. Khan as he was the person holding the same and no breach of trust etc. as alleged by the learned counsel for the respondents took place. They further stated that the argument raised by the learned counsel for the respondents with regard to lifting of corporate veil is also misplaced, since the Company is a separate legal entity from its shareholders hence the said doctrine is not applicable in the instant matter . They in this regard referred to the decision given in the case of The President v. Mr. Justice Shaukat Ali (PLD 1971 SC 585) and Halsbury's Laws of England, Volume 14. They further stated that the transfer of shares by Mr. Alam gir Khan to Mr. Khan was never objected to by the SECP and hence objection now raised is an afterthought and is liable to be ignored. In the end they submitted that these three High Court Appeals, in view of above facts, may be allowed or in the alternative remanded to the learned Single Judge for passing a fresh order , keeping in view the facts obtaining in the instant matter .
37. We have heard all the learned counsel at considerable length and have also perused the record, the law and the various decisions relied upon by them.
38. Before proceeding any further , we would like to reproduce below the law on which much emphasis has been laid by the learned counsel for the parties.
THE COMP ANIES ORDINANCE 1984.
SO. Service of notice on members, etc.---(1) A notice may be given by a company to any member either personally or by sending it by post to him to his registered address or, if he has no registered address in Pakistan to the address. if any , within Pakistan supplied by him to the company for the giving of notices to him.
(2) Where a notice is sent by post, service of the notice shall be deemed to be effected by properly addressing, prepaying' and posting a letter containing the notice and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
(3) If a member has no registered address in PakiStan, and has not supplied to the company an address within Pakistan for the giving of notices to him, a notice addressed to him or to the shareholder generally and advertised in a newspaper circulating in the Province or the part of Pakistan not forming part of a province in which the registered office of the company is situate shall be deemed to be duly given to him on the day on which the advertisement appears: Provided that in the case of a listed company such notice shall in addition to its being published as aforesaid be also published at least in one issue each of a daily newspaper in English language and a daily newspaper in a Urdu language having circulation in the Province in which the stock exchange on which the company is listed is situate.
(4) A notice may be given by the company to the joint-holders of a share by giving the notice to the joint-holder named first in the register in respect of the share.
(5) A notice may be given by the company to the person entitled to a share in consequence of the death or insolvency of a member by sending it through the post in a prepaid letter addressed to them by name, or by the title or representatives of the deceased, or assignees of the insolvent, or by any like description, at the address, if any, in Pakistan supplied for the purpose by the person claiming to be so entitled, or until such an address has been so supplied by giving the notice in any manner in which the same might have been given if the death or insolvency had not occurred.
(6) In addition to any other mode provided by this Ordinance for notice of any general meeting, notice of every general meeting shall be given in some manner hereinbefore authorised to--
(a) every member of the company except those members who, having no registered address within Pakistan, have not supplied to the company an address within Pakistan for the giving of notices to them;
(b) every person entitled to a share in consequence of the death or insolvency of a member who, but for his death or insolvency , would be entitled to receive, notice of the meeting; and
(c) the auditors of the company .
76. Transfer of shares and debentures .- (1) An application for registration of the transfer of shares and debentures in a company may be made either by the transferor or the transferee, and subject to the provisions of this section, the company shall enter in its register of members the name of the transferee in the same manner and subject to the same conditions as if the application was made by the transferee: Provided that the company shall not register a transfer of shares or debentures unless proper instrument of transfer duly stamped and executed by the transferor and the transferee has been delivered to the company along with the scrip.
(2) Where a transfer deed is lost, destroyed or mutilated before its lodgment, the company may on an application made by the transferee and bearing the stamp required by an instrument of transfer , register the transfer of shares or debentures if the transferee proves to the satisfaction of the directors of the company that the transfer deed duly executed has been lost, destroyed or mutilated: Provided that before registering the transfer of shares or debentures the company may demand such indemnity as it may think fit.
(3) All references to the shares or debentures in this section, shall in case of a company not having share capital, be deemed to be references to interest of the members in the company .
(4) Every company shall maintain at its registered office a register of transfers of shares and debentures made from time to time and such register shall be open to inspection by the members and supply of copy thereof in the manner stated in section 150.
(5) Nothing in subsection (1) shall prevent a company from registering as shareholder or debenture-holder a person to whom the right to any share or debenture of the company has been transmitted by operation of law .
(6) In the case of a public company , a financial institution duly approved by the Commission may be appointed as the transfer agent on behalf of the company .
(7) If a company makes default in comply ing with any of the provisions of subsectio ns (1) to (4), it shall be liable to a fine not exceeding five thousand rupees and every officer of the company who is knowingly or willfully a party to such default shall be liable to a like penalty .
157. Statutory meeting of company .---(1) Every company limited by shares and every company limited by guarantee and having a share capital shall, within a period of not less than three months, nor more than six months, from the date at which the company is entitled to commence business, hold a general meeting of the members of the company , which shall be called the statutory meeting"
(2) The directors shall, at least twenty-one days before the date on which the meeting is held, forward a report, in this Ordinance referred as "the statutory report", to every member .
(3) The statutory report shall be certified by not less than three directors, one of whom shall be the chief executive of the company , and shall state--
(a) the total number of shares allotted, distinguishing shares allotted otherwise than in cash, and stating the consideration for which they have been allotted;
(b) the total amount of cash received by the company in respect of all the shares allotted;
(c) an abstract of the receipts of the company and of the payments made thereout up to a date within seven days of the date of the report, exhibiting under distinctive headings the receipts of the company from shares and debentures and other sources the payments made thereout, and particulars concerning the balance remaining in hand, and an account or estimate of the preliminary expenses of the company showing separately any commission or discount paid or to be paid on the issue or sale of shares or debentures;
(d) the names, addresses and occupation s of the directors, chief executive, secretary , auditors and legal advisers of the company and the changes, if any , which have occurred since the date of the incorporation;
(e) the particulars of any contract the modification of which is to be submitted to the meeting for its approval, together with the particulars of the modification or proposed modification;
(f) the extent to. which underwriting contracts, if any, have been carried out and the extent to which such contracts have not been carried out, together with the reasons for their not having been carried out; and
(g) the particulars of any commission or brokerage paid or to be paid in connection with the issue or sale of shares to any director , chief executive, secretary or officer or to a private company of which he is a director .
(4) The statutory report shall also contain a brief account of the state of the company's affairs since its incorporation and the business plan, including any change or proposed change affecting the interest of shareholders and business prospects of the company .
(5) The statutory report shall, so far as it relates to the shares allotted by the company , the cash received in respect of such shares and to the receipts and payments of the company , be accompanied by a certificate of the auditors of the company as to the correctness of such allotment, receipts of cash, receipts and payments.
(6) The directors shall cause at least five copies of the statutory report, certified as aforesaid, to be delivered to the registrar for registration forthwith after sending the report to the members of the company .
(7) The directors shall cause a list showing the names, occupations, nationality and addresses of the members of the company , and the number of shares held by them respectively , to be produce d at the commencement of the meeting and to remain open and accessible to any member of the company during the continuance of the meeting.
(8) The members of the company present at the meeting shall be at liberty to discuss any matter relating to the formation of the company or arising out of the statutory report, whether previous notice has been given or not, but no resolution of which notice has not been given in accordance with the articles may be passed.
(9) The meeting may adjourn from time to time, and at any adjourned meeting any resolution of which notice has been given in accordance with the articles, either before or after the original meeting, may 'be passed, and an adjourned meeting shall have the same powers as an original meeting.
(10) If a petition is presented to the Court in manner provided by Part XI for winding up the company on the ground of default in filing the statutory report or in holding the statutory meeting, the Court may, instead of directing that the company be wound up, give directions for the statutory report to be filed or a meeting to be held, or make such other order as may be just.
(11) In the event of any default in complying with the provisions of any of the preceding subsections, the company and every officer of the company who knowingly and willfully authorises or permits such default shall be liable,--
(a) if the default relates to a listed company , to a fine not less than ten thousand rupees and not exceeding twenty thousand rupees and in the case of a continuing default to a further fine not exceeding two thousand rupees for every day after the first during which the default continues; and
(b) if the default relates to any other company , to a fine not exceeding five thousand rupees and in the case of a continuing default to a further fine not exceeding two hundred rupees for every day, after the first during which the default continues.
(12) This section shall not apply to a private company but if any such private company is converted into a company of either of the classes mentioned in subsection (1), this section shall become applicable thereto and a reference in that subsection to the date of commencement of business shall be construed as a reference to the date of such conversion.
[(13) The provisions of this section shall not apply to a public company which converts itself from a private company after one year of incorporation.]
160. Provisions as to meetings and votes .---(1) The following provisions shall apply to the general meetings of a company or meetings of a class of members of the company , namely:-
(a) notice of the meeting specifying the place and the day and hour of the meeting along with a statement of the business to be transacted at the meeting shall be given --
(i) to every member of the company;
(ii) to any person entitled to a share in consequence of death of a member if the interest of such person is known to the company; and
(iii) to the auditor or auditors of the company; in the manner in which notices are required to be served by section 50, but the accidental omission to give notice to, or the non-receipt of notice by , any member shall not invalidate the proceedings at any meeting;
(b) where any special business, that is to say business other than consideration of the accounts, balance-sheets and the reports of the directors and auditors, the declaration of a dividend, the appointment and fixation of remuneration of auditors, and the electio n or appointment of directors, is to be transacted at a general meeting, there shall be annexed to the notice of the meeting a statement setting out all material facts concerning such business, including, in particular , the nature and extent of the interest, if any, therein of even, director , whether directly or indirectly , and, where any item of business consists of the according of an approval to any document by the meeting, the time when and the place where the document may be inspected shall be specified in the statement;
(c) subject to the provisions of this Ordina nce so far as they relate to the election and appointment of directors, the provisions of clause (b) shall apply mutatis mutandis to a meeting where ordinary business, being business other than special business, is to be transacted;
(d) all the members may participate in the meeting either personally or through proxy .
(2) The quorum of a general meeting shall be--
(a) in the case of a public ([listed] company , unless the articles provide for a larger number , not less than ten members present personally , who represent not less than twenty-five per cent. of the total voting power , either of their own account or as proxies;
(b) in the case of 3[any other company], unless the articles provide for a larger number , two members present personally who represent not less than twenty-five per cent of the total voting power , either of their own account or as proxies; and [(c) In the case of a single member company , single member present in person or by proxy .] Provided that, if within half an hour from the time appointed for the meeting a quorum is not present, the meeting, if called upon the requisition of members, shall be dissolved; in any other case, it shall stand adjourned to the same day in the next week at the same time and place, and, if at the adjourned meeting a quorum is not present within half an hour from the time appointed for the meeting, the members present, being not less than two, shall be a quorum, unless the articles provide otherwise.
(3) The chairman of the board of direct ors, if any, shall preside as chairman at every general meeting of the company , but if there is no such chairman, or if at any meeting he is not present within fifteen minutes after the time appointed for holding the meeting, or is unwilling to act as chairman, any one of the directors present may be elected to be chairman, and if none of the directors is present or is unwilling to act as chairman the members present shall choose one of their member to be the chairman.
(4) In the case of a company having a share capital, every member shall have votes proportionate to the paid-up value of the shares or other securities carrying voting rights held by him according to the entitlement of the class of such shares or securities, as the case may be: Provided that, at the time of voting, fractional votes shall not be taken into account.
(5) No member holding shares or other securities carrying voting rights shall be debarred from casting his vote, nor shall anything contained in the articles have the effect of so debarring him.
(6) In the case of a company limited by guarantee and having no share capital, every member thereof shall have one vote.
(7) On a poll, votes may be given either personally or by proxy .
(8) Every officer of the company who knowingly or willfully fails to comply with any of the provisions of this section shall be liable,--
(a) if the default relates to a listed company , to a fine which may extend to [fifty] thousand rupees and in the case of a continuing default to a further fine which may extend to two thousand rupees for every day after the first during which the default continues; and
(b) if the default relates to any other company , to a fine not exceeding [ten] thousand rupees and in the case of a continuing default to a further fine which may extend to two hundred rupees for every day after the first during which the default continues.
164. Notice of resolution.---( 1) With the notice for a meeting, the company shall send to the members copies of draft resolutions, other than routine or procedural resolutions, which are proposed for consideration in the meeting.
(2) The members having not less than ten per cent voting power in the company may give notice of a resolution and such resolution together with the supporting statement, if any, which they propose to be considered at the meeting, shall be forwarded so as to reach the company , -
(a) in the case of a meeting requisitioned by the members, together with the requisition for the meeting;
(b) in any other case, at least fifteen days before the meeting; and the company shall forthwith circulate such resolution to all the members.
(3) In the event of any default in complying with any of the provisions of this section, the company and every officer of the company who is knowingly or willfu lly a party to such default shall be liable to a fine which may extend to five thousand rupees if the default relates to a listed company and to a fine which may extend to two thousand rupees if the default relate to any other company .
172. Filing of resolution, etc.---( 1) A printed or typed copy of every special resolution shall, within fifteen days from the passing thereof, be filed with the registrar duly authenticated by the chief executive or secretary of the company .
(2) Where articles have been registered , a copy of every special resolution for the time being in force shall be embodied in or annexed to every copy of the articles issued after the date of the resolution.
(3) A copy of every special resolution shall be forwarded to any member at his request on payment of such fee not exceeding the prescribed amount as the company may determine.
(4) In the event of any default in complying with the provisions of subsection (1), the company and every officer who is knowingly and wilfully in default shall be liable to a fine which may extend to one hundred rupees for every day during which the default continues.
(5) In the event of any default in complying with the provisions of subsection (2) or (3), the company and every officer who is knowingly and wilfully in default shall be liable to a fine which may extend to one thousand rupees for each default.
[174. Minimum number of directors.---( 1) Notwithstanding anything contained in any other law for the time being in force,-
(a) every single member company shall have at least one director;
(b) every other private company shall have not less than two directors; and
(c) every public company other than a listed company shall have not less than three directors, appointed and elected in the manner provided in this Ordinance.
(2) Every listed company shall have not less than seven directors to be elected in a general meeting in the manner provided in this Ordinance.)
290. Application to Court.---( 1) If any member or members holding not less than twenty per cent of the issued share capital of a company , or a creditor or creditors having interest equivalent in amount to not less than twenty per cent of the paid up capital of the company , complains, or complain, or the registrar is of the opinion, that the affairs of the company are being conducted, or are likely to be conducted, in an unlawful or fraudulent manner , or in a manner not provided for' in its memoran dum, or in a manner oppressive to the members or any of the members or the creditors or any of the creditors or are being conducted in a manner prejudicial to the public interest, such member or members or, the creditor or creditors, as the case may be, the registrar may make an application to the Court by petition for an order under this section.
(2) If, on any such petition, the Court is of opinion-
(a) that the company's affairs are being conducted, or are likely to be conducted, as aflresaid; and
(b) that to wind-up the company would unfairly prejudice the members or creditors; the Court may, with a view to bringing to an end the matters complained of, make such order as it think fit, whether for regulating the conduct of the company's affairs in future, or for the purchase of the shares of any members of the company by other members of the company or by the company and, in the case of purchase by the company , for, the reduction accordingly of the company's capital, or otherwise.
(3) Where an order under this section makes any alteration in, or addition to, a company's memorandum or articles, then, notwithstanding anything in any other provision of this Ordinance, the company shall not have power without the leave of the Court to make any further alteration in or addition to the memorandum or articles inconsistent with the provisions of the order; and the altera tions or additions made by the order shall be of the same effect as if duly made by resolution of the company and the provisions of this Ordinance shall apply to the memorandum or articles as so modified accordingly .
(4) A copy of any order under this section altering or adding to, or giving leave to alter or add to, a company's memorandum or articles shall, within fourteen days 'after the making thereof, be delivered by the company to the registrar for registration; and if the company makes default in complying with this subsection, the company and every officer of the company who is know ingly and wilfully in default shall be liable to fine which may extend to five thousand rupees and to a further fine not exceeding one hundred rupees for every day after the first during which the default continues.
(5) The provisions of this section shall not prejudice the right of any person to any other remedy or action.
291. Powers of court under section 290.---W ithout prejudice to the generality of the powers of the Court under section 290, an order under that section may provide for--
(a) the termination, setting aside or modification of any agreement, however arrived at between the company and any director , including the chief executive, managing agent or other officer , upon such terms and conditions as may, in the opinion of the Court, be just and equitable in all the circumstances;
(b) setting aside of any transfer , delivery of goods, payment, execution or other transactions not relating to property made or done by or against the company within three months before the date of the application which would, if made or done by or against an individual, be deemed in his insolvency to be a fraudulent preference; and
(c) any other matter , including a change in management, for which in the opinion of the Court it is just and equitable that provision should be made.
292. Interim order .---Pending the making by it of a final order under section 290 the Court may, on the application of any party to the proceedings, make such interim order as it thinks fit for regulatin g the conduct of the company's affairs, upon such terms and conditions as appear to it to be just and equitable.
THE LIMIT ATION ACT, 1908 Description of suit Period of limitationTime from which period begins to run 1 2 3
113. For specific performance of a contract.[Three years]The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused Description of suit Period of limitationTime from which period begins to run 1 2 3
120. Suit for which no [Six years] When the accrues.righttosue period of limitation is provided elsewhere in this schedule.
Description of suit Period of limitationTime from which period begins to run 1 2 3
181. Application for which no period of limitation is provided elsewhere in this schedule or by section 48 of the Code of Civil Procedure, 1908Three yearsWhen the right to apply accrues THE QANUN-E-SHAHADA T ORDER, 1984 "72. Proof of contents of documents : The contents of documents may be proved either by primary or by secondary evidence.
73. Primary evidence: "Primary evidence" means the document itself produced for the inspection of the Court.
Explanation 1: Where a document is executed in several parts, each part is primary evidence of the document.
Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, counterpart is primary evidence as against the parties executing it.
Explanation 2: Where a number of documents are all made by one uniform process, as in the case of printing, Lithography or photography , each is prima ry evidence of the contents of the rest; but where they are all copies of a common original they are not primary evidence of the contents of the original.
Explanation 3: A printed or other form of output of an automated information syste m shall not be denied the status of primary evidence solely for the reasons that it was generated, sent, received or stored in electronic form if the automated information system was in working order at all material times and, for the purpose hereof, in the absence of evidence to the contrary , it shall be presumed that the automated information system was in working order at all material times.
Explanation 4: A print out or other form of reproduction of an electronic Document, other than a Document mentioned in Explanation 3 above; first generated, sent, received or stored in electronic form shall be treated as primary evidence where a security procedure was applied thereto at the time it was generated, sent, received or stored.
Illustrations A person is shown to have been in possession of a number of placards, all printed at one time from one original.
Any one of the placards is primary eviden ce of the contents of any other , but no one of them is primary evidence of the contents of the original.
74. Secondary evidence: "Secondary evidence" means and includes--
(1) certified copies given under the provisions hereinafter contained;
(2) copies made from the original by mech anical process which is themselves insure 'the accuracy of the copy, and copies compared with such copies;
(3) copies made from or compared with the original;
(4) counterparts of documents as against the parties who did not execute them;
(5) oral accounts of the contents of a document given by some person who has himself seen it.
Illustrations
(a) A photograph of an original is seconda ry evidence of its contents though the two have not been compared if it is proved that the thing photographed was the original.
(b) A copy, compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter , if it is shown that the copy made by the copying machine was made from the original.
(c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.
(d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine- copy of the original, is secondary evidence of the original.
75. Proof of documents by primary evidence : Documents must be proved by primary evidence except in the cases hereinafter mentioned.
76. Cases in which secondary evidence relating to documents may be given: Secondary evidence may be given of the existence, condition or contents of a document in the following cases:--
(a) when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of or not subject to, the process of the Court, or of any person legally bound to produce 4, and when after the notice mentioned in Article 77 such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative-in-interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when, due to the volume or bulk of the original, copies thereof have been made by means of microfilming or other modern devices;
(e) when the original is of such a nature as not to be easily movable;
(f) when the original is public document within the meaning of Article 85;
(g) when the original is a document of which a certified copy is permitted by this Order , or by any other law in force in Pakistan, to be given in evidence;
(h) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection;
(i) when an original document forming part of a judicial record is not available and only a certified copy thereof is available, certified copy of that certified copy shall also be admissible as a secondary evidence.
In cases (a), (c), (d) and (e), any secondary evidence of the contents of the document is admissible.
In case (b), the written admission is admissible.
In case (f) or (g), certified copy of the document, but no other kind of secondary evidence, is admissible.
In case (h), evidence may be given as to the general result of the documents by any person who has examined them and who is skilled in the examination of such documents.
77. Rules as to notice to produce:. Secondary evidence of the contents of the. documents referred to in Article 76, paragraph (a), shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession' or power the document is, or to his advocate, such notice" to produce it as is prescribed by Law and, if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case: Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:--
(1) when the document to be proved is itself a notice;
(2) when, from the nature of the case, the adverse party must know that he will be required to produce it;
(3) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force;
(4) when the adverse party or his agent has the original in Court;
(5) when the adverse party or his agent has admitted the loss of the document;
(6) when the person in possession of the document is out of reach of, or not subject to, the process of the Court.
78. Proof of signature and handwriting of person alleged to have signed or written document produced: If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting.
84. Comparison of signature, writing or seal with others admitted or proved : (1) In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made any signature writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.
(2) The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.
(3) This Article applies also, with any necessary modifications, to finger -impressions.
THE CODE OF CIVIL PROCEDURE, 1908 ORDER XLI, RULE 22, C.P .C.: "22. Upon hearing, respondent may object to decree as if he had preferred separate appeal. (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below , but take any cross-Objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow .
(2) Form of objection and provisions applicable thereto . Such cross-objection shall be in the form of a memorandum, and the provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.
(3) Unless the respondent files with the objection at written acknowledgment form the party who may be affected by such objection or his pleader of having received a copy thereof, the Appellate Court shall cause a copy to be served, as soon as may be after the filing of the objection, on such party ,or his pleader at the expense of the respondent.
(4) Where, in any case in which any respondent has under this rule filed a memor andum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may neverth eless be hearil and determined after such notice to the other parties as the Court thinks fit.
(5) The provisions relating to pauper appeals shall, so far as they can be made applicable, apply to an objection under the rule."
39. The arguments advanced by the learned counsel for the appellants could be summarized as under: i) original agreements were never produced ; ii) learned Single Judge was not justified in comparing the signatures himself and relying upon those signatures which are fake and forged ; iii) the shares were rightly transferred by Mr . Alamgir Khan to Mr . Khan ; iv) the meetings held on 15.01.1999 were in accordance with law; v) no oppression. as mentioned under sections 290 and 291 of the Ordinance, has been established; vi) Difference in the various clauses of the agreements and Articles of Association was not considered; - vii) the matter has been decided without recording of the evidence and framing of issues ; viii) the JM filed under Sections 290, 291 and 292 of the Ordinance was barred under Article 181 of the Act ; ix) the two agreements were between the persons who were neither shareholders nor the directors ; x) no objection was raised by the SECP either with regard to the meetings or transfer of shares ; xi) no reply/cross-objections have been filed by the respondents in respect of the memo of appeal.
40. With regard to the objection raised on behalf of the learned counsel for the appellants regarding non-production of original agreements, it is noted that nowhere it has been stated that the agreements, which were placed on record by the respondents in the JM, were not the photocopy of the original agreements. The filing of photocopy is a permissible proof of furnishing of documents and Article 74 of the Order , 1984 duly considers the same as secondary evidence, which includes copies made from the original by mechanical process. It is seen that the definition of word "secondary evidence", as reproduced supra, is an inclusive definition which allows furnishing of copy made by a copying machine from the original. It is a common factor to accept the secondary evidence i.e. certified copy or an accurately compared copy of the original document, which is also considered to be as good as an original document. Hence, even if originals were not produced before the learned Single Judge, the same would not be considered to be a detriment to the case of the present respondents since it was within the discretionary power of the learned Single Judge to call for the original, if so desired, which in the present case since was not required by the learned Single Judge considering the said photocopy of the agreements i.e. secondary evidence to be an accurately compared copy /certified copy of the original documents, which was considered to be as good as the original document by the learned Single Judge, therefore, no interference in this behalf is required.
41. So far as the objection of the learned counsel for the appellants that the learne d Single Judge was not justified in comparing the signatures of Alamgir Khan is concerned, here again we tend to disagree with the submissions made by the learned counsel for the appellants, as Article 84 of the Order-19 84, as reproduced above, duly authorizes the Court itself for reaching to a fair and just conclusion. In para-23 the learned Single Judge has categorically discussed this issue that he has compared the signatures of Mr. Alamgir Khan as appended on the Memorandum and Articles of Association, taking from the official record as maintained by the SECP , with his signatures as available in the main agreement as witness and as subscriber to the Memorandum and Articles of Association and no material difference was found. So far as the blow-up of the signatures is concerned, it is to be seen that since a discretion has been exercised by the learned Single Judge for reaching to a fair and just conclusion, this aspect of now presentin g the blow-up of the signatures would become hyper-technical for this Court to decide since even in the case of two admitted signatures of a person a minor up and down is inevitable depending upon the flow of pen, roughness of a paper , the position of the person sighing the paper and other factors. The spirit of Article 84 no doubt is with regard to comparison of the signatures and it is not always necessary to refer the matter to any handwriting expert or any other person, as the Court is fully authorized under the given facts and circumstances to make the comparison of the signatures itself. In the instant case it is noted that the learned Single Judge has compared the disputed signatures with the record, as furnished by the respondents, taken from the official record of the SECP , which by no stretch of imagination could be considered either non-authentic or that could not be relied upon hence in our view the objectio n raised by the learned counsel for the appellants with regard to material difference in signatures do not hold good when the learned Judge categorically observed that no material dif ference was found by him, as per the record presented to him.
42. It is noted that at no point of time it was pleaded by the learned counsel for the appellants that the signatures appended on the official record maintained by the SECP , certified copies of which furnished by the respondents, were dubious or doubtful so as to justify their claim with regard to material difference in the signatures as alleged by them. The said Article, as stated above, duly authorizes and empowers the Court to ascertain' the veracity of a signature which was duly done by the learned Single Judge; who found nottnaterial difference. Here a question would arise whether the record furnished by the respondents taken from the official record of the SECP , which was not denied by the SECP , to be the extract of the official record, not containing the proved signatures of Mr. Alamgir Khan. Answer to this question would definitely be in an emphatic "Yes" as the signatures appearing on the said record were to be considered as his proved signatures. Thus his proved signatures were quite rightly compared with his signatures appended 'on the main agreement as witness to the said agreement. Moreover under the provisions of Article 84 of the Order-1984, in our view,the Court enjoys plenary powers to compare the signatures itself along with the relevant record to come to a fair and just conclusion, which in the instant case has been made by the learned Single Judge, therefore, no interference, in our view , is warranted in this behalf.
43. We will now deal with the various decisions relied upon by the learned couns el for the appellants as well as respondents in this regard. In the case of Rehmat Ali Ismailia the Hon'ble Supreme Court has observed that the provisions of Article 84 do empower the Court to make the comparison of words and figures, which in the instant case has been done by the learned Single Judge. In the case of Muhammad Kabiruddin a Division Bench of this Court has observed that though the Court is empowered to compare the disputed and admitted signature but that has to be adopted with caution and sparingly . In the instant case, the respondents, as noted above, produced the official record of the SECP , which was not disowned by the SECP to be the extract of their official record, and thereafter the learned Single Judge has compared the signatures hence, care and caution has duly been made by the learned Single Judge. The case of Muhammad Nurul Haq Mian is a criminal case in which it was observed that it is dangerous to rely on comparison without aid of an expert and a precaution in this regard has to be adopted by the learned Judge. In the instant case, as mentioned above, precaution was taken and adopted by the learned Single Judge since the official record maintained by the SECP was examined and thereafter comparison was made in this behalf. The facts of Muhammad Ali Hemani's case are totally different from the facts obtaining in the instant matter , as in that case it was observed that when person undertaking such comparison was not conversant with the subject and the same was done without guidance, whereas in the instant case, as noted above, the signatures were duly compared. So far as the case of Sana Ullah is concerned this talks about calling of the person with regard to proving of signature is concerned, suffice to say that under the given circumstances when the learned Single Judge has compared the signatur e of Alamgir Khan, as appended on the main agreement with that of the official record of the SECP , hence he did not deem it necessary to call Mr. Alamgir Khan, therefore this case has no bearing with the facts obtaining in the instant matter . The case of Mst. Nusrat Khanum deals with the power of the Court with regard to comparing disputed as well as admitted signatures, which has been done by the learned Single Judge, hence, this case is of no help to the learned counsel for the appell ants. The case of Miss Parveen Kassimali Popatiya talks about the method of comparing the admitted signature with the disputed signature and hence the same is not found to be of any help to the learned counsel for the appell ants. The facts of A. Qutubuddin Khan are found to be totally distinguishable from the facts obtaining in -the instant matter .
44. It was held in the case of Messrs Waqas Enterprises by the Hon'ble apex Court that the Court in certain eventualities was enjoined with powers to itself compare signatures along with other relevant material to effectively resolve the controversy .
45. According to the decision in the case of Ghulam Rasool it is very much within the power of a Court to compare disputed signature with the admitted signature and to form its opinion and not referring the matter to handwriting expert would not render the judgment as legally infirm so as to warrant interference.
46. It is a settled proposition of law that when the Court is satisfied about the genuineness or otherwise of a documents the said finding of a Judge usually is not to be interfered with as the Court is required to D satisfy itself about the correctness or genuineness of the documents. Reliance in this behalf may be made to the decision in the case of Haji Muhammad Khan , noted supra.
47. In the case of Syed Ghulam Shabbi r a Single Judge of Lahore High Court, while examining the case, has carefully compared the signature and thereafter formed an opinion, without referri ng the matter to the handwriting expert. In the case of Zafar Yasin it was observed that Article 84 of the Order-1984 is an enabling provision of law and the Court is only required to satisfy itself with regard to the genuineness of the signature, which power is clearly vested in a Judge under the said. Article. In the case of Abdul Ghaf far, decided by a Single Judge of this Court, somewhat similar view was taken. In the case of Muhammad Boota also the signatures were compared by exercising the power under Article 84 in which it was clearly held by a Division Bench of the Lahore High Court that in certain eventualities the Court enjoys the power to compare itself the signature along with the other relevant material to ef fectively resolve the controversy .
48. In the case of S.M. Zaheer it was held that if the signatures resemble with each other there is no need to call for expert examination. In the case of Ummatul Waheed ft was observed by the Hon'ble apex Court that the Court is entitled to compare the handwriting even if there is an opinion of the expert on the subject and examination by an expert in every case is not the requirement of the law .
49. Now if all the above decisions and the facts narrated above are compared in juxtaposition, it would' reveal that the learned Single Judge has compared the disputed signatures with undisputed signatures and thereafter came to the conclusion that there was no material difference, hence, no legal infirmity or illegality was found to have been committed by the learned Single Judge so far as this aspect of the matter is concerned and the submissions made by the learned counsel for the appellants in this behalf are not found to be tenable and no interference in this behalf is warranted.
50. We will now deal with the third aspect of the case that whether the shares were rightly transferred by Mr. Alamgir Khan to Mr. Khan. Before proceeding any further it would be beneficial if the terms of the agreement dated 14.01.1998 are first thrashed out and discussed. Perusal of the agreement clearly reveals that the said agreement was entered between Shah group and Khan group specifically denoting Shah group as majority shareholder and mentioning Mr. Shah as Principal Sponsor and Khan group as minority shareholder . It is mentioned that minority shareholder includes various professiona ls, who were friends of Mr. Shah and his family members, and due to this reason they were being offered shareholding in the project over and above their normal professional fees, remuneration and benefits so as to ensure speedy and successful completion of the project. In the said agreement the role of Mr. Khan has been mentioned as that of Chief Executive and the job of Mr. Khan was to liaison between various professional groups for the smooth running of the project as Mr. Shah and his family planned to travel abroad for necessary medical treatment of Mr. Shah and for that purpose Mr. Khan has been compensated with 26% shareholding in. Tower-I, which has been acknowledged by Khan group.
51. From the record it is evident that the project was the brainchild of Mr. Shah and all the initial funding, including preoperational costs etc., were borne by Mr. Shah. It has categorically been mentioned that minority shareholders would never be asked to participate in various risks; costs etc. involved in the project and that would be the responsibility of Mr. Shah. The role of Mr. Alamgir Khan, one of the initial Directors, since the very formation of the Company .was substituted and replaced with the nominees of Mr. Khan upon his request. It has specifically been mentioned in the agreement that 30% shares shall be kept in "safe custody" of Alamgir Khan for further distribution and transfer to the persons in the following manner: 1) Saghir A. Qureshi (Consultant) 10% 2) Shuja Rahim Associates (Architect) 4% 3) Zubair Ahmed (Facilitator) 5% 4) Syed Khalid Shah (Facilitator) 6% 5) Reserved 5%
52. It could be observed that it has clearly been mentioned in the agreement that in case the above shares are not transferred in the manner designated, the same shall revert back to the majority shareholders, It is to be noted that only the persons having more than 10% shares would be eligible for the election of the Board of Directors. Shares could not be sold/transferred without the prior approval of the Chairman and the Board of Directors. The said agreements were duly signed by Mr. Shah, Mr. Khan, Reza A. Shah, Alamgir Khan, Saghir A. Qureshi and Shafqat M. Khokhar . It is being claimed by the learned counsel for the respondents that the shares held by Mr. Alamgir Khan in trust were illegally transferred to Mr. Khan, whereas it is the claim of the appellants that the same were transferred in a legal and lawful manner . It is the claim of the appellants that by calling the meeting on 15.01.1999 shares were transferred in the name of Mr. Khan, which meeting has been claim ed to be not in accordance with law by the learned counsel for the respon dents. The record reveals that the transfer of the shares from Mr. Alamgir Khan to Mr. Khan took place on 15.01.19 99 on which date two meetings of the Board of Directors were held one after another within a short span of time. As one meeting was held at 11:00 a.m. and other at 12:30 noon. Though notice of the first meeting was issued on 10.01.1999 but the notice of the second meeting, which took place on the same date i.e. 15.01.1999 was issued on the very date i.e. 15.01.1999 from Karachi for a meeting to be held in Islamabad.
53. It is further noted that the signatures on the minutes of the meetings and the issuance of the shares in response to the said meetings were duly agitated by the learned counsel for the respondents. It is strange to note that apart from Mr. Khan no other person, who has attended the meeting, has signed the relevant documents, which has rendered the meetings and their outcome and decisions highly dubious in nature and it is for this reason that the learned Single Judge has issued certain directions vide sub-paras (b) to (t) of para-55. The learned Single Judge vide his paras 47 and 48 has categorically noted material irregularities and discrepancies so far as documents furnished with regard to the said meetings and the SECP also has shown apprehension with regard to the transfer deeds regarding transfer of shares from Mr. Alamgir Khan to Mr. Khan, which has been discussed at length vide para-49 by the learned Single Judge. In our view in these circumstances the learned Single Judge was quite justified in directing to call EOGM under the supervision of Official Assignee for ascertainment of the matter with regard to the transfer of shares, which hardly requires any interference. Needless to state that while conducting a meeting provisions of section 160(1)(b) of the Ordinance have to be adhered to, which clearly provides that notice of meeting clearly stating the object and purpose of the meeting has to be given. Here a question arise as to where is the notice of the second meeting held on 15.01.1999? The answer to this questio n is obvious there was infact no proper notice of the said meeting. As second meeting was conducted on the very date i.e. 15.01.1999 and notice for such meeting was also issued on the same date which by no stretch of imagination could be considered to be in accordance with law and the Ordinance. Even from the record it is an admitted position, which has been endorsed by the SECP , that the relevant documents furnished either before the learned Single Judge or with the SECP lack proper following of the procedure duly mentioned under the Ordinance. The shareholders should know what is meeting about so that business of the Company could be properly transacted and conducted. Thus the meeting which was not held as, per the provisions of Section 160 cannot be considered to be validly constituted and the Courts are empowered to declare these types of meetings to be invalid, in case these are found to be coram non- judice .
54. From the order of the learned Single Judge it is also evident that he has serious aspersions with regard to holding of the meeting which, in our view, had remained uncontroverted and thus could not be interfered with.
Hence the manner and method in which the shares have been transferred by Mr. Alamgir Khan to Mr. Khan since have become dubious, therefore, the learned Single Judge has quite rightly observed that the same could only be resolved if elections are held on the basis of undisputed shareholding so that the issue of disputed shareholding could be resolved, under the supervision of the Official Assignee, so that the matter between the two groups claiming themselves to be the majority shareholding could be laid at rest once and for all. Therefore the observations made by the learned Single Judge, in our view, under the facts and circumstances of the case on this aspect, appear to be fair , reasonable and just and no interference in this regard is warranted.
55. The fourth aspect of the matter is covered by our above observations.
56. Before we deal with the issue with regard to the application filed under sections 290, 291 and 292 of the Ordinance by Mr. Shah acting as an attorney for the respondents Nos.1 and 2 with the prayer that since the affairs of the Company were conducted by Mr. Khan in a manner oppressive to its members and in violation of shareholders, agreement dated 14.01.19 98 hence declaration to that effect may be given under the provisions of the Ordinance, some facts are necessary to be highlighted first. The record reveals that the entire capital contribution amounting to Rs.27,25,0000/ - was made by Mr. Shah, which is an undisputed fact, and it was Mr. Shah who brought in Mr. Khan as CEO of the Company to look after its affairs. Howe ver, subsequently the scenario changed and somehow or the other the Khan group became the majority shareholder . The record further reveals that Mr. Shah since was suffering with a number of ailments, as evident from his medical summary , duly mentioned at page No.405 of the file 'of H.C.A. No.107 of 2012, he proceeded to USA for treatment in the year 1999, which aspect has duly been mentioned in the shareholder agreement dated 14.01.1998. He finally came back in the year 2006. Though in the intervening period he visited Pakistan but it is not clear whether Mr. Shah was ever apprised in detail about the affairs of the Company . Mr. Shah after coming to Pakistan enquired from Mr. Khan about the affairs of the Company and a detailed correspondence in this behalf is available from pages Nos.491 to 557 of the file of H.C.A. No.107 of 2012.
57. From the perusal of these correspondences it is evident that Mr. Shah was not satisfied and comfortable with the manner and method in which the affairs of the Company were being run by Mr. Khan, what to speak of the transfer of 30% shares by Mr. Alamgir Khan to Mr. Khan. Not only this, even the SECP through its various correspondences available from page Nos.559 to 567 of the rile of H.C.A. No.207 of 2012 has observed a number of non-observance of mandatory requirements of the provisions of the Ordinance, which include non-mentioning of transfer of 7499 shares on Form "A", non-submission of transfer deed and minutes, non-compliance of the various notices issued by the SECP to the Company from time to time. Though some unhappy events also took place but the same are not the subject matter of the instant High Court Appeals. It is thus evident that it is in this backdrop that when Mr. Shah came to the conclus ion that Mr. Khan with the connivance of Mr. Alamgir Khan has usurped 30% shareholding of the Company , by putting the members of the Shah group in minority and that due to this flagrant violation of the shareholder agreement, an application under sections 290 and 291 of the Ordinance was filed. The learned Single Judge has minutely discussed this issue that whether he has the jurisdiction or the Civil Court has the jurisdiction to deal with the instant matter and thereafter passed the order accordingly and in this regard elaborate discussion has been made vide paras 17 to 35 and again in paras 52 to 54 of the order .
58. It is noted that the learned Single Judge has extensively dealt with the matter whereby the term "oppression" has elaborately been discussed. The term "oppression" has also been defined under Black's Law Dictionary Tenth Edition at page 1267 as "The act or an instance of unjustly exercising authority or power so that one or more people are unfairly or cruelly prevented from enjoying the same right that other people have ". Now if this definition is considered in the light of the present case, coupled with the various correspond ences between the parties and the non-compliances observed by the SECP, does this case not become a case of oppression? In our view, it does and when this case has become a case of oppression, as rightly observed by the learned Single Judge, the provisions of section 290 of the Ordinance do 'come in operation. The provisions of section 290 are reproduced above and from the reading it is evident that the purpose with which this provision was introduced was to provide a security to a shareholder or a Director to move an application to the Company Judge in case he comes to a conclusion that his interest is being usurped by other shareholders or majority shareholders. The prerequisite for invocation of that section falls upon the person filing that application to prove mismanagement and oppression and the' Court is fully authorized in this behalf to pass any order as it thinks fit with regard to regulating the conduct of the Company's af fairs or for other aspects as mentioned in the said provision of the law .
59. In the instant matter it is seen that the learned Single Judge quite rightly observ ed that since the Company was running in profits hence it would be quite unfair to order its winding up rather devised a method to settle the dispute between the parties by giving directions to the Official Assignee, as given vide sub-paras (b) to (0 of para 55.
Section 290 could be resorted to when a shareholder comes to the conclusion that the affairs of the Company are not being run in a proper manner , however it is to be noted that to safeguard the interest of the Company , which should be the paramount consideration, by filing an application to the Company Judge in this behalf. While dealing with this Section it is for the Court to decide the matter , as vast powers have been given by the legislature, to deal with such like situation and pass such order as the Court deems fit and necessary . In the instant case, as noted above, the learned Single Judge after making an extensive and lengthy discussion found "oppression" so as to invoke the provisions of section 290 of the Ordinance however not in its entirety but by directing the parties to proceed as per the directions contained therein through EOGM, which was to be held under the supervision of the Official Assignee, which in our view definitely falls under the category of regulating the conduct of the affairs of the Company , as duly mentioned under section 290 of the Ordinance.
60. We will now discuss the various decisions relied upon by, the learned counsel. The case of Elder v. Elder is found to be totally different from the facts obtaining in the instant case as in that case the position of shareholders was unaffected, whereas in the instant matter due to the alleged transfer of shares held in trust by Mr. Alamgir Khan to Mr. Khan the situation has totally changed and the majority shareholders have become minority shareholders. In the case of H.R Harmer Ltd. the appeal was allowed after finding the conduct of the founder member as oppressive. In the instant case the learned Judge has found that this is a case of oppression due to the transfer of shares by Mr. Alamgir Khan to Mr. Khan. In the case of Unisoft Group Ltd. it was observed, that the course of conduct of some members was not found to be a conduct with regard to Company's affairs to cause prejudice to a member . Surely the facts of that case are different from the facts obtaining in the instant matter . In the case of Legal Costs Negotiators Ltd. the Court of appeal dismissed the appeal after finding that the complaint was not about the affairs of the Company but with regard to the individual act. In the case of Muhammad Fikree it was held that the object behind section 290 appears to be that affairs of the Company must be conducted in a lawful manner and strictly in accordance with the Memorandum and Articles of Association of the Company . Here in the instant case an application under section 290 of the Ordinance was moved when Mr. Shah came to the conclusion that the Company's affairs were tot being run in a lawful manner rather the shares belonging to a proper person have illegally been usurped by violating the provisions of the Ordinance. In the case of R v. Board of Trade the term of "affairs" has been defined which includes its goodwill, profits and losses, contracts and assets, including investments in other property , in the instant case since it has been averred that the profits /assets of the Company are being manipulated by Mr . Khan which definitely falls within the ambit of the af fairs of the Company .
61. In the case of Leeds United Holdings the question was with regard to implementation of preemption rights which surely is not the case before us. The case of Rajamundry Electric Suppl y Corporation is with regard to grounds for winding up the Company , which surely is not the case before us. In the case of Scottish Cooperative Wholesale Society Ltd. the conduct of the majority shareholders with regard to the affairs of the Company was found to be an inaction which amounted to breach of their duties. The case of Shahbazud Din Chaudhry deals with removing of a Director from the Company , which clearly is not the case in hand. So far as the case of Shaheen Foundation is concerned, the learned Single Judge found out that the petitioner has failed to bring on record the material to form an opinion that the affairs of the Company were being mismanaged or were in oppression to the minority shareholders, whereas in the instant case the oppression with regard to minority shareholders was duly found by the learned Single Judge hence this case is of no help to the learned counsel for the appellants. The case of Associated Biscuits International Ltd. is with regard to issuance of further shares, which is not the case in hand, hence not applicable. In the case of Registrar of Companies the Single Judge of this Court found the petition to be maintainable which was with regard to the imposition of certain fines, penalties etc. which is not the case in hand.
62. In the case of Inamullah Khan the Single Judge of Islamabad High Court has clearly defined that in case of breach of fiduciary duty by any director the same constitute oppression and in such situation the provisions of section 290 are attracted. In the instant case also Mr. Shah has proved that there was oppression on the part of Mr. Khan in respect of which an application was rightly moved by him. It is interesting to note that in the said decision the Judge of Islamabad High Court has taken into consideration the present judgment by the learned Single Judge in the instant JM and has also considered the cases of Elder v. Elder and Scottish Cooperative Wholesale Society and other judgments cited before him. A detailed discussion has been made by the learned Single Judge so far as the cases of Jermyn Street Turkish Baths Ltd. and Shahamatullah Qureshi are concerned hence we need not repeat the same except by observing that anything done unfair to minority shareholders fall within the definition of the term "oppression". In the instant matter also, after making an extensive discussion, the learned Single Judge came to the conclusion that there has been oppression with regard to the shareholdings of the Shah group by the Khan group.
63. The upshot of the above discussion is that the manner and method in which the shares were transferred by Mr. Alamgir Khan to Mr. Khan has become highly doubtful, especially if seen in the context that the persons to whom these 30% shares were intended to be transferred, who were either Architect, Chartered Accountant or facilitator have themselves filed certain suits with regard to enforcement of the terms of the agreement, hence on the face of the record it appears that the shares transferred by Mr. Alamgir Khan to Mr. Khan was without taking into confidence other shareholders, who were intended to be given 30% shares, by whatever name called either by way of compensation or to boost the project, without fulfilling the legal formalities, as discussed above, which also has been endorsed by the SECP . Therefore, in our view, the mechanism devised by the learned Single Judge duly, mentioned under sub-paras (b) to (f) of para-55 of the order does not call for any interference.
64. The next issue agitated by the learne d counsel for the appellant is with regard to difference in various clauses of the agreements and Articles of Association. The learned Single Judge has discussed this issue vide paragraphs 24 onwards wherein he has categorically observed that the shareholding of the Company fully accord with the main agreement, meaning thereby there was no violation of the Memorandum and Articles of Association so far as the terms of the main agreement are concerned. It has been averred that the provision s in the agreement between the shareholders of a Company cannot be given effect unless those provisions have been incorporated in the Articles of Association. This contention is found to be without any substance as firstly the agreement was made in the year 1998 whereas the Company was incorporated in the year 1997 hence there was hardly a question of incorporation of the terms of the agreement in the Articles of Association. Moreover not a single term of the agreement, which is stated to be in violation of the Articles of Association specially 11, 12 and 15, has been found out either by the learned Single Judge or by us since these Articles provide a complete mechanism with regard to transfer of shares which in the instant matter has been found to be not in accordance with law by Mr. Alamgir Khan to Mr. Khan. The terms of the agreement and the Articles of Association have been compared by us which clearly show that the share agreement has been made by keeping in view the initial share capital distrib ution of Reza Shah and Alamgir Khan and from these Articles of Association it is evident that due to the subsequent health condition of Mr. Shah, duly mentioned in the agreement, some arrangement was made by taking into confidence the other shareholders and the said agreement duly bears the signatures of a number of persons including Mr. Khan and Mr. Alamgir Khan hence on this account also no illegality or infirmity and misreading or non-reading has been found in the order of the learned Single Judge and this point agitated by the learned counsel for the appellants also stands repelled.
65. So far as the decisions cited by M/s. Munir A. Malik and Ch. Atif Rafiq are concerned, in the case of V.B.
Rangaraj it was held by the Supreme Court of India that the Articles of Association regulates the transfer of shares and if the terms of agreement impose restrictions, the same are not binding on Company or members. In the present case the matter concerning transfer of the shares through the agreement has duly been endorsed by some of the members and since the same was made due to the peculiar facts and circumstances of the matter , no difference either in the terms of the agreement or with regard to the Articles of Association have been found hence this case is of no help to the learned counsel for the appellant. In the case of Crompton Greaves certain directors were appointed, who were not entitled to become director , by way of an illegal meeting and it was held in the said case that the decision taken in an illegal meeting is not binding upon the Company . This case also is found to be of no help to the appellants. In the case of IL and FS Trust Co. Ltd. it was held that the acts of directors not validly appointed not to be affected unless their invalidity is brought to the notice of the Company . This case also is found to have no bearing with the case in hand.
66. The next issue agitated by the learned counsel was with regard to non-recor ding of evidence and framing of issues by the learned Single Judge. The answer to this question, in our view, has already been given by the Hon'ble Supreme Court of Pakistan in the case of Mian Javed Amir wherein the Hon'ble apex Court has observed that the Court having the jurisdiction under the Ordinance has ample power to record the evidence "in case it deems fit". In the instant case it is noted that the learned Single Judge while dealing with the issue in hand has extensively and minutely gone through the entire record produced before him and thereafter came to the conclusion that the application under section 290 filed by the respondent No.1 was maintainable. The learned Single Judge categorically deliberated upon this issue vide paras 15 to 22 and after discussing various cases of different Courts has come to the conclusion that he has the jurisdiction to deal with such like situation and on the basis of the decision given by the Hon'ble Supreme Court the learned Single Judge opined that to deal with such like situation either by a Civil Court or in a JM there is a concurrent jurisdiction and has categorically observed that the petitioner availing the statutory remed y under Section 290 could not be turned away by saying that there is a factual dispute between the parties. It is a settled principle of law that the Court has to jealously guard its jurisdiction and if the Court comes to the conclusion that it has the jurisdiction to deal with the /is before it; the Court could proceed with the matter in accordance with law. In the instant case it is noted that the learned Single Judge after elaborately discussing the matter and after going through the various judgme nts cited before him and the law came to the conclusion that on the basis of the material and the pleadings of the parties he can decide the matter in accordance with law without following the procedure as required by a Civil Court. Hence on this score also no interference is warranted.
67. So far as the issue of laches is concerned, we are of the view that though Mr. Shah from the year 1999 to 2006 had visited Pakistan at different intervals of time but it was only when he has perm anently come to Pakistan after treatment in 2006 that he enquired from Mr. Khan about the affairs of the Company . Various correspondences took place between the parties during the period prior to the filing of the JM, which clearly proves that Mr. Shah was in continuous contact with the Company and Mr. Khan after his arrival in Pakistan with regard to the affairs of the Company and it is only when he came to the conclusion that the affairs of the Company were not conducted and run in a legal and lawful manner thereafter the JM was filed. Since there is a continuation of the correspondences and the proceedings, as available on the record from pages 491 to 557, 971 to 977 and 1109 to 1111 of the file of H.C.A. No.107 of 2012, between Mr. Shah and Mr. Khan, meaning thereby that Mr. Shah was pursuing the matter and the misconduct of Mr. Khan with regard to affairs of the Company hence a continuous effort could be seen in the matter , hence the question of limitation, as vehemently agitated by M/s. Rasheed A. Razvi, Tahmasp R. Razvi and Waleed Rehan Khanzada, in our view, would not come in the way either in filing the J.M or deciding the same either with regard to Article 181 or other Articles of the Limitation Act, as mentioned and pointed out by the learned counsel for the appellants.
68. We will now discuss the various decisions cited by the learned counsel in this behalf. In the case of Khurshid Ahmad Khan and another it was held that a discretion vested in a Court will not be exercised in favour of the party guilty of laches. Here in the instant case the record reveals that after coming back of Mr. Shah to Pakistan he was continuously in contact and in touch with Mr. Khan with regard to the affairs of the Company , hence he cannot be considered to be either sitting idle or indolent of his rights or the rights of his family members, of whom he was the attorney . In the case of Syed Akbar Ali the person has challenged the transfer of shares after eleven long years, which delay was not condoned by the Court. The facts of that case are surely different from the facts obtaining in the instant matter . The facts of Agha Bashir Ahmed are found to be totally different from the facts obtaining in the present matter . In the case of Allah Dino and another the Hon'ble Supreme Court affirmed the order of the High Court, which found the matter time barred and delay wag not condoned, which facts are different from the present case. The facts of the case of Ali Muhammad and another are found to be totally different from the facts obtaining in the instant matter . In the case of Haji Muhammad Ashraf a Single Judge of this Court observed that delay of each day has to be explained, which is a general proposition of law. In the case of The Kerala State Electricity Board the Indian Supreme Court observe d that the Lamination Act would apply to India Telegraph Act. This case revolves around its own facts. In the case of Town Municipal Council it was observed by the Supreme Court of India that the provisions of Limitation Act do not apply to section 33(c)(2) of the Industrial Dispute Act, 1947. The facts of this case also are found to be different from the facts obtaining in the instant matter . In the case of Faridabad Cold Storage it was observed that the period of limitation is three years from the right to apply accrues as per the provisions of Companies Act 1956 of India. Here in the instant case it is an admitted position that the JM was filed in the year 2007 and in the whole year of 2006 Mr. Shah was enquiring from Mr. Khan about the affairs of the Company . In the case of R.C. Abrol Company the Dehli High Court on the given facts found the decision given by the Company Judge, considering the claim to be time barred, to be in accordance with law. In the case of Anil Gupta again the Dehli High Court did not entertain a petition after three years, which is not the case in hand. In the case of Trustees of the Port of Karachi the Hon'ble apex Court, while dealing with the matter , has observed that though the provisions of Limitation Act could not be stricto sensu made applicable to the claims set forth in the constitutional jurisdiction of the High Court but if the claim on the face of it was barred, the law of limitation in relation to the suit, then the relief should be refused. Surely the facts of this case are different from the facts before us. The case of Muhammad Fikree has already been discussed by us supra. In the case of Tahir Mahmood Khan and 13 others the Supreme Court of AJ&K observed that laches could only be resorted to where in estimation of the Court it would be unjust to allow the remedy . This is exactly what the learned Single Judge has done. In the instant case the learned Single has thoroughly discussed the matter with regard to laches, as evident from paras 27 to 40 of his judgment, wherein the issue of laches has extensively been discussed and thereafter it was found that Mr. Shah has approached the Court within the limitation period and then allowed the said JM. In the case of Umer Baz Khan it was observed by the Hon'ble Supreme Court of Pakistan that no Court could dismiss a lis on the ground of laches, if it defeats the cause of justice and thereby perpetuates an injustice. The learned Single Judge after discussing the matter at great length came to the conclusion that a miscar riage of justice since has taken place with regard to the claim of the respondents hence entertained the JM and passed the order accordingly . In the case of Pakistan Post Office also the Hon'ble Supreme Court observed that no hard and fast rules have been laid down with regard to the limitation and without examining the dictates of justice so far as the claim of each party in addition to examination of law and jurisdictional points involved in the case a matter cannot be dismissed on account of laches alone. In the case of Ahmed Ali the KPK High Court observed that the bar of laches is neither absolute nor equal to bar of limitation under the Limitation Act, 1908.
69. Hence on the point of laches also we are of the view that when admittedly after the arrival of Mr. Shah in Pakistan in 2006 he has been pursuing the matter with Mr. Khan with regard to the various anomalies noted by him about the affairs of the Company hence the issue of laches as agitated by the learned counsel for the appellants does not arise and the arguments of the learned counsel for the appellants on this account are hereby repelled. It would not be out of place to mention that a number of decisions cited before us were also cited before the learned Single Judge which have not only duly been considered by him but discussion on those judgments have also been made by the learned Single Judge, as apparent from the reading of various paragraphs of the decision. No interference in this regard thus is warranted and the order of the learned Single Judge on the issue of Article 181 or other Articles of Limitation Act as agitated by the learned counsel of the appellan ts is found to be in accordance with law
70. The next point agitated by the learned counsel for the appellants being that the agreements were between the persons who were neither shareholders nor the directors of the Company . This ground too is not found to be correct. Though the main signatories of the agreements were Mr. Shah and Mr. Khan but the others signatories of the agreements include Mr. Reza A. Shah and Mr. Alamgir Khan, who surely were the shareholders of the Company . Needless to state that the perusal of the Memorandum and Articles of Association clearly envisages that in fact Mr. Reza A. Shah and Mr. Alamgir Khan were the initial shareholders of the Company , whose signatures were appended on the two agreements and whether these agreements were fake and forged has already been discussed in the above paragraphs of this decision. Hence, on this point also we do not agree with the contention of the learned counsel for the appellants.
71. The next point agitated was with regard to the fact that no objection was raised by the SECP either with regard to the meetings or the transfer of shares. This observation again is not found to be in accordance with law as from pages Nos.559 to 561 of the file of H.C.A. No.107 of 2012 non-observance of certain mandatory provisions of the Ordinance has duly been recorded and confronted by the SECP to the appellants, which aspect had remained unrebutted.
72. So far as the objection that no reply /cross-objections have been filed by the respondents in respect of the memo of appeal, firstly this argument is hyper-technical in nature and secondly since the matter has extensively been argued by the learned counsel for the respondents at length, hence even if they have not filed any reply /cross-objections that would not put any dent to their case.
73. It may be noted that observations on most of the cases, as relied upon by the learned counsel for the appellants and the respondents, have been recorded in the above paragraphs of this order , however , so far as other judgments are concerned, they were considered and found to be distinguishable from the facts obtaining in the instant matter and hence not discussed.
74. The objection raised by Mr. Muhammad Yaseen Azad that the appeal filed by Mr. Shakeel Hassan is not maintainable is not being considered, since the matter has been decided at length on other aspects of the matter , therefore, this point has not been deliberated upon by us.
75. Mr. Khalid Javed Khan has also raised the issue with regard to lifting of the corporate veil. There is no cavil to the proposition that Mr. Shah was the Principal Sponsor of the Company and that it was Mr. Shah who contributed with regard to the initial expenses incurred for the formation of the Company but since the learned Single Judge has categorically observed with regard to the holding of EOGM, as mentioned in sub-paras (b) to (f) of para-55 of his order , hence no deliberation on this issue also is being made.
76. We, therefore, in view of what has been stated above, do not find any merit in all the three High Court Appeals and dismiss the same along with all the listed and pending applications filed in the instant matters with no order as to cost. Needless to state that all the parameters, as mentioned by the learned Single Judge in paragraph-55 of his order , have to be adhered to in their letter and spirit. The Official Assignee is directed to proceed with the instructions already issued to him vide para-55 of the order by the learned Single Judge with regard to holding of EOGM for elections of fresh Board of Directors of the Company , within 10 days from the announcement of the present judgment and the other aspects as duly mentioned in sub-paras (b) to (r) of para-55, as these would automatically follow as an outcome of the decision.
77. Before parting with this judgment, we would like to record our appreciation for the able assistance provided to us by all the learned counsel appearing either on behalf of the appellants or the respondents in the instant matters.