1. SYED HASAN AZHAR RIZVI, J. By this order I intend to dispose of two applications bearing C.M.As.
2. Nos. 25 and 26 of 2009 filed by the applicants/objectors Messrs Chawla Shoes Industries under sections 61 and 63(9) of the Banking Companies Ordinance, 1962 read with section 391 of the Companies Ordinance, 1984, seeking to suspend the operation of the order dated 19.04.1999 passed in Reference No.04/2006 and order dated 13.11.2008 for issuance of notice to the occupants to vacate and handover the possession, so also to set-aside the attachment/advertisement for sale order in respect of the applicants joint suit properties bearing Plots Nos.137-M and 137-A(M) admeasuring 9.75 Kanals each (total 19-1/2 Kanals), Quaid-e-Azam Industrial Estate, Quaid-e- Azam Town, Lahore, along with constructed area of over 52947 sq. feet godowns, sheds. 630 K.V. transformer, fixtures/fittings thereon/utility connections and de-list the same from the list of assets and properties in the instant case.
3. The Official Liquidator has filed his report in which it has been stated that the applicants/objectors is simply a tress passers and its assertion that it is a bona fide purchaser/owner of the subject industrial plots along with construction, fixtures and fittings thereon is incorrect and unsustainable.
4. It is the case of the applicants/objectors that it is a bona fide purchaser of Plots Nos.137-M and 137- A(M) admeasuring 9.75 KanaIs each by virtue of sale deed executed between the previous owner and applicants, the applicants acquired the ownership of the subject land/ plots. Learned counsel for the applicant has argued that as per available record only Messrs Big Make Ltd. was the sole and absolute owner of the sold property so transferred to the applicants on payment of valuable consideration. He has argued that the applicants prior to purchase of the subject property has taken all possible due diligence from the office of SECP, concerned Sub-Registrar and Quaid-e- Azam Industrial Estate, Lahore, so also the publication in the leading newspaper of the country, but no objection was ever received from any person including, petitioner/ respondent Official Liquidator. Therefore, Official Liquidator is estopped from raising any claim for the attachment/sale of the property, which has lawfully been purchased by the present applicants after fulfillment of all codal formalities.
5. Learned counsel has further argued that the Official Liquidator had neither applied for restraining of sale of such property nor the said property was on ban list of the registrar of properties. He has vehemently argued that it is a settled principle of law that the agreement of sale does not confer any right or title upon the property. He has submitted that in the case in hand the Official Liquidator claims to have acquired the right and title in the applicants' property without support of any lease/sale deed. He has also argued that the Official Liquidator had never filed any suit for specific performance of the contract and against the previous owner of applicants property in order to make the balance sale consideration and acquire the ownership of the property.
6. Learned counsel for the applicants has next argued that at one hand the Official Liquidator has stated that they were in occupation of the subject factory and on the other that the then President was approached by the company under liquidation to take over the factory/ assets of Messrs Big Mak Ltd. whereby admitted that the possession was never taken over by the liquidating company.
7. It has been argued that Messrs Big Mak. Food Ltd. filed a declaratory Civil Suit bearing No.327/1 of 1989 against Messrs Pioneer Alliance before the Hon'ble Lahore High Court and despite knowledge and alleged interest in the subject property the Official Liquidator did not deem it necessary to apply and he impleaded as party in the suit, which was decreed as admitted by the Official Liquidator. He has, therefore, argued that if the Official Liquidator had any interest in Messrs Big Mak Foods Ltd., or its assets including the subject property, they could not have filed an application to become a party in the said civil suit. It has also been argued by the learned counsel for the applicants that neither any application under section 12(2), C.P.C. was filed in case the decree was allegedly obtained through fraud nor the same was challenged either prior to or even after it had attained finality. He has pointed out that the report of the Official Liquidator substantiate the averments of the applicants that the seller was in occupation of the subject property as owner and no proceedings were pending against Messrs Big Mak Food Ltd. or any of its Directors.
8. Learned counsel for the applicants has also argued that the as per settled law the assets of another company cannot form part of the assets of liquidated company, as both are two separate distinct legal entities. He has further argued that in the case in hand the objectors are not even the sister concern but altogether a different and independent legal entity. In this regard he made reference to J.M. No.34/1998 wherein the Official Liquidator prayer to attach assets of sister concern was dismissed and the order was upheld by the High Court as well as before the Hon'ble Supreme Court in C.P. No.370-K of 1999, which was referred to in the order dated 29.4.2005 in the instant J.M.
9. He has, therefore, prayed to order for the cancellation of the attachment order dated 19.4.1999 and order the delisting/release of the subject property along with its fittings and fixtures thereon as mentioned in Reference No.06/1998 and additional Reference No.04/2006.
10. Learned Official Liquidator has argued that on 30th August, 1987 an agreement was executed between Khalifa Syed Saifullah, Managing Director of Messrs Big Mak Food Limited and Messrs Pioneer Alliance (Pvt.) Ltd., company under liquidation in respect of sale of total interest of the company including possession of the plant with its fittings and fixtures and the landed property for a total sale consideration of Rs.55,26,7674/-. He has argued that Messrs Pioneer Company was illegally carrying on the business of Banking and was accepting deposits from the public amounting to more than 198 millions at lucrative rates of interest. He has further argued that the company has paid the whole project cost but on the instructions of the State Bank of Pakistan, the government and commercial banks have refused to transfer the agreement of these projects on the name of Pioneer Alliance. The previous owner inspite of the fact that they have received the full payment remain in possession of the project. All the investors will be made share holders of the company and their investment will becokne safe and profitable. However, State Bank of Pakistan prosecuted the Company under the Banking Companies Ordinance, 1962 and also filed winding up proceeding against it in the High Court of Balochistan at Quetta. The Company was ordered to be wound up by the Court vide its order dated 08.08.1988. He has contended that FIA investigated the affairs of the company under liquidation and during investigation it was discovered that Pioneer Company had illegally made utilization of investors money in various projects, outright purchase of businesses and plants and factories. He has urged that Messrs Big Mak Foods Ltd., Lahore was one of such projects. The investigation further revealed that about Rs.50 millions of the investors' money had been invested in the outright purchase of land, building, fittings, fixtures, plant machinery and generators of the above said company situated on Plot N6.137/137/ A admeasuring about 20 Kanals, Industrial Estate Kot Lakhpat, Lahore. He has further argued that the then Official Liquidator has submitted his report dated 11.4.1990 and stated that the statement of affairs submitted by Messrs Pioneer Alliance had invested Rs.50 million in Messrs Big Mak Food Ltd., Lahore, which too was admitted by Messes; Big Mak Food in its statement of affairs that Messrs Pioneer Alliance had made the payment of Rs.2,15,00,000/- and on such part payment the possession of the company/undertaking was handed over to Messrs Pioneer Alliance but thereafter it appeared that previous owner Messrs Big Mak Food took advantage of the arrest of the Official Liquidator and illegally regained possession of the company on the alleged ground that since Pioneer Alliance had failed to pay the remaining amount of Rs.1,47,38,000/-, therefore, they were not bound by the contract. He has also argued that Messrs Big Mak Food have also filed a civil suit in the Court of Civil Judge Lahore claiming declaration that despite payment of Rs.2,15,00,000/- they are owners of the property and have also sought injunction against Pioneer Alliance and their directors. He has vehemently urged that their statement to the official liquidator clearly demonstrated that Syed Javed Hassan and others were fully aware of the winding up of the Pioneer Alliance, arrest of its directors/shareholders and subsequent happening thereafter. He has also urged that Messrs Big Mak Food knowingly and deliberately did not implead the then official liquidator to their collusive suit fearing that it might upset their malicious plan. Thus, they succeeded in procuring an ex-parte decree in 1995 in their favour to legalize their ill-gotton gains and possession. He has further urged that in the collusive suit a mala fide attempt was also made to change the shareholders and their status in the management by dropping some members and inducting new ones in their place modified names of the then existing shareholders and in this process two old shareholders were retained in the list of plaintiffs and two as defendants including Khalifa. Saifullah who was previously described as the Managing Director of Big Mak in the Sale Agreement. As such, the ex parte judgment and decree so procured was without jurisdiction, nullity in law was not sustainable, so also it was in contravention of the provisions of the Banking Companies Ordinance and was void against the liquidator. He has prayed for cancellation of alleged sale deed and dismissal of objections filed by the applicant/objector.
11. I have given due consideration to the arguments advanced by the learned counsel for the applicants/objectors, Official Liquidator and perused the material available on record, which goes to show that the applicants/objectors had purchased the subject property in consideration of substantial amount and after having invited objections through widely circulated newspapers, from banks, organizations, government offices having interest in the sale/transfer of the property in the name of present owners, who are now peacefully running their business after obtaining vacant physical possession of the subject property. The applicants/ objectors are law abiding persons who were never ever involved in any scam or any fraudulent transaction. It is worth mentioning that if the petitioner/Official Liquidator had any interest in Messrs Big Mak Foods Ltd. or its assets including the subject property, they could have filed an application to become a party in the said Civil Suit bearing No.327/1 of 1989 then pending before the Civil Court at Lahore. Record shows that at the relevant time the Official Liquidator did not deem it fit to become a party. Additionally, neither any application under section 12(2), C.P.C. was filed in case the decree was allegedly obtained through fraud nor the same was challenged either prior to or even after it had attained finality. Even the report of the Official Liquidator substantiates the averments of the applicants that the seller was in occupation of the subject property as owner and no proceedings were pending against Messrs Big Mak Foods Limited or any of this Director. Therefore, it is clearly established that the applicants/objectors are bona fide purchasers of the subject property from its previous lawful owner i.e. Messrs Big Mak Foods Ltd., which the applicants purchased after due diligence and fulfillment of all codal formalities. All documents enclosed with the applications are also fully supported the claim of the applicants/ objectors. Accordingly, both applications are allowed as prayed for.