' SAAD SAOOD JAN, J.--This order will dispose of two Intra-Court Appeals registered at Nos.15 and 17 both of 1982. These have been taken together as they arise out of the same order made by the learned Company Judge on 17-11-1982.
2. The Shahpur Textile Mills Limited, Jauharabad is a public limited company. It obtained fairly large loans from the Pakistan Industrial Credit and Investment Corporation, briefly referred to as PICIC, and other financial institutions and set up a Textile Mill in Jauharabad. The mill stopped working in September, 1975. In April, 1976 two applications, one by PICIC and the other by Messrs Ibrahim Agencies, were moved for the winding-up of the company on the ground that it was not in a position to pay back the loans taken by it. On 4-11-1976, the learned Company Judge appointed Mr. S.M. Hussain, Advocate and PICIC as joint provisional liquidators with the direction that efforts be made for keeping the mill running. The provisional liquidators contacted a number of persons to take over the running of the mill but without any success. It was then decided to sell the mill. For this purpose apart from inviting tenders from the public, private negotiations with different parties were also initiated.
Ultimately through the efforts of PICIC, the Pakistan Kuwait Investment Company Limited, a joint venture of the Government of Pakistan and the Kuwait Foreign Trading Contracting and Investment Company, was persuaded to purchase the mill for a sum of Rs,50 millions (rupees fifty millions). The creditors, the share-holders and the joint liquidators unanimously suggested to the Court to accept the bid made by the Pakistan Kuwait Investment Company Limited to purchase the mill. By an order the learned Company Judge acted upon their advice and accepted the bid.
3. In January, 1980, before the winding-up order could be made Mr. S.M. Hussain, joint provisional liquidator, died. In his place on 9-3-1980, Mr. Maqbool Sadiq and Mr. Ali Ahmad Awan, Advocates, were appointed as joint provisional liquidators. After, the winding-up order they together with PICIC were appointed as joint official liquidators. It may be mentioned that on behalf of PICIC Mr. Wahab-udDin Shah was performing the duties of the joint liquidator.
4. These present appeals have arisen out of the order, dated 17-11-1982 whereby the learned Company Judge fixed remunerations of the three liquidators, namely, Mr.S.M. Hussain, Mr. Maqbool Sadiq and Mr. Ali Ahmad Awan. By the impugned order the learned Company Judge has directed: "(1) That commission at the rate of 7-1/2% be paid to the heirs of Mr. S.M. Hussain and the official liquidators, that is Mr. Maqbool Sadiq and Mr.Ali Ahmad Awan, in the ratio 2 : 1; calculated at the amount of Rs,50 millions (rupees fifty millions) which is being realized for the sale of the mill, the amount of commission will work out to be Rs,37,50,000;
(2) a sum of Rs,15,000 be paid to the heirs of Mr. S.M.
Hussain by way of salaries of stenographer, clerk, etc. And another sum of Rs,5,000 be paid by way of stationery and postal expenses;
(3) fees at the rate of Rs,12,500 per case in respect of civil suits pending before the Banking Judge and the civil Judge at Sargodha, (nine in all); at the rate of Rs,10,000 per case in respect of the civil suits pending before the Civil Court at Lahore, (three in number; and of Rs,5,000 in respect of an F.A.O. Pending in the High Court be paid to the heirs of Mr.S.M. Hussain;
(4) an amount of Rs,7,200 be paid to the heirs of Mr. S.M. Hussain on account of travelling and daily allowances."
5. From the order of the learned Company Judge two of the shareholders of the company under liquidation and PICIC have filed separate appeals on the ground that the amount of compensations on all the four counts as determined by the learned Company Judge are highly excessive and entirely incommensurate with the work involved and done by the late Mr.S.M. Hussain and his successor liquidators.
6. On behalf of the official liquidators a preliminary objection has been taken with regard to the competency of these appeals. The objection is two-fold. First, it is contended that no appeal lies to this Court from the order of the Company Judge, and, second, the order made by the learned Company Judge being entirely of an administrative nature is not appealable.
7. So far as the first part of the objection is concerned, it is based on the language of section 202 of the Companies Act. This section reads as follows: -- "The re-hearings of and appeals from, any order or decision made or given in the matter of the winding up of a company by the Court may be had in the same manner and subject to the same conditions in and subject to which appeals may be had from any order or decision of the same Court in cases within its ordinary jurisdiction."
' The argument on behalf of the official liquidators centres around the construction of the word 'ordinary jurisdiction'. It is contended that the. Lahore High Court does not possess any ordinary jurisdiction and for that reason no appeal as envisaged under section 202 would lie in this Court from the decision of a Single Judge.
One of us had an occasion to consider this argument in the case Saleem-ud-Din v. Pak Wheat Products Ltd. (I.-C.A. No,6 of 1979). In that case the argument was repelled with the following observation-- "There is no merit in the objection raised on behalf of the respondents. A perusal of section 202, ibid, would show that it is in two parts. The first part creates a right to appeal from an order or decision made or given in the matter of the winding-up of a company and the second part fixes the forum where an appeal may be preferred.
For the purpose of determining the appellate forum it states that the appeal may be taken to the Court where an appeal would normally lie from a decision recorded in its ordinary jurisdiction. It is significant to note that an appeal from the decision of a Single Judge under the Companies Act does not he by virtue of the provisions of section 3(1) of the Law Reforms Ordinance but that it is a creation of section 202 of the Companies Act. Now, to find out the forum we have to see what is the nature of the proceedings under the Companies Act. The words 'ordinary jurisdiction' as occurring in section 202 have not been defined in the Companies Act; they obviously refer to civil jurisdiction for under the Companies Act the jurisdiction exercised by the High Court may it be called special or statutory is essentially of a civil nature. Therefore, the appeal provided by section 202 would lie before the forum where appeals ordinarily lie in matters decided by a Single Judge in exercise of the civil jurisdiction of the High Court. It is not in dispute that under section 3(1) of the Law Reforms Ordinance an appeal lies before the Bench of two or more Judges of the High Court from a decree or final order passed by a Single Judge in the exercise of its original civil jurisdiction. We should, therefore, think under section 202, too, an appeal from a decision of a Single Judge would lie to a Bench of two or more Judges of the High Court. In the view which we take we are fortified by two decisions of this Court reported as Eastern Company (Private) Limited v. Gul Begum PLD 1980 Lah. 69 and Munawar Ahmad v. Official Liquidator PLD 1980 Lah.
86. We would accordingly hold that the present appeal has been validly filed before this Court."
' We see no reason to differ from this view. In fact if the argument of the official liquidators is accepted an aggrieved party would be deprived of exercising a right which the Statute confers upon him. We' would, therefore, repel the first part of the objection.
8. As regards the second part of the objection the contention on behalf of the official liquidators is that the impugned order made by the learned Company Judge is entirely of an administrative nature and orders of administrative nature are not appealable. In support of this contention reliance has been placed upon two cases reported as Ghansham Das v. Hindustan Bank Ltd. AIR 1920 Lah. 433 and Tilok Chand v. Sind Hindu Provident Fund Society AIR 1943 Sind 82. Both these cases related to the remunerations payable to the employees of an official liquidator and it was held that orders of ministerial nature were not subject to appeal under section 202 of the Companies Act.
9. During the course of the winding-up of company the Court has to make many types of orders such as judicial, non-judicial, administrative, procedural, interlocutory, etc. The question as to which of these orders are appealable under section 202 of the Companies Act has been considered in a large number of cases by the various High Courts of the sub-continent. Thus, in the Lahore High Court this question was taken up by a Full Bench in Sansar Chand v. Punjab Industrial Bank A 1 R 1929 Lah. 707 and the test laid down was stated as follows: - "The language of section 202 is wide enough to cover appeals against all orders made in the matter of the winding-up of a company, provided such an order finally decides a dispute between the parties or deprives the appellant of a substantial and important right and is not a mere formal or interlocutory order."
' In Bachha Raj Factories v. Hirjee Mills AIR 1955 Bom. 355 Division Bench of the Bombay High Court was dealing with an appeal from an order of a Single Judge who had postponed the hearing of an application for winding up to enable some Share-holders to file a civil suit to challenge the validity of certain debentures. The case of the appellants was that the postponement of the hearing was likely to affect them adversely. An objection to the competency of the appeal was taken and it was contended that the order granting postponement was not a judgment. This objection was overruled by the Division . Bench and Chagla, C.J., observed: "In our opinion the right conferred is not only a substantia right but a very valuable right and the Court must be anxious not in any way to cut down or impair that right. It is true that under section 202 right of appeal is not provided against any procedural order or decision which in no way affects the rights or liabilities of a party. The order or decision given by the Court in its winding up must be such as would in any way deprive or affect the right of a party which would make the party aggrieved by the order and which would make him desire to come to a higher Court for getting the order passed by the trial Court rectified." '
' It may be mentioned that the above view is in consonance with the test laid down by the Full Bench of the Lahore High Court as Chagla, C.J., himself pionted out later in his judgment. With respect, we consider that these two decisions furnish a satisfactory basis for distinguishing between appealable and non-appealable orders under section 202 of the Companies Act.
10. Ordinarily, an order with regard to the appointment of an official liquidator and fixation of his remunerations would appear to be one entirely of administrative nature and not within the contemplation of section 202 of the Companies Act. But there can be exceptional cases. For example, if an order is made that after paying all the creditors the remainder of the assets of' a company under liquidation should be paid to the liquidator by way of his remuneration can it be then seriously contended that as fixation of remunerations of the liquidator is an entirely administrative matter the contributories will have no right of appeal against such an order. It is to be noticed that after an order for the winding-up of a company has been made the Court becomes custodian of all its assets and properties. A duty is then cast upon it to administer the assets and the properties in a way best suited to the interests of the contributories and the creditors. Any order which constitutes an unusually large and unjustified depletion of the properties and assets of the company seriously affects the rights of the creditors and the contributories for it is they who ultimately stand to suffer. In the appeals before us, this is precisely the grievance of one of the creditors and two of the contributories. We do not think that section 202 of the Companies Act can be construed in a manner which would deprive the appellants of the opportunity of agitating their grievant in the appellate Torun. Accordingly we would reject the second part of the objection also.
11. It was then contended by Mr. Mehmood Ali Kasuri, who appeared on behalf of the heirs of Mr. S.M. Hussain, that under section 202 0 the Companies Act the learned Single Judge was competent to review his earlier order and that if the appellants were dissatisfied with the amount of remunerations awarded to the liquidators they should hay filed an application before the learned Company Judge for reconsidering his earlier decision and not come in appeal before a larger Bench. In support of the contention that the learned Company Judge could reconsider his order he referred to the word 'rehearings' as occurring? C in section 202, ibid. This contention cannot be accepted for two reasons. In the first instance it is doubtful whether the learned Company Judg was empowered to review his earlier order and in this context we would refer to Abdul Ghafoor v. Registrar, Joint Stock Companies PL 1976 Kar. 85; Hindustan Bank Ltd. v. Mehraj Din AIR 1920 Lah. 51 and parvati Shankar v. Lshvar Das Jagjivan Das I L R 1 Bom. 20 wherein the view taken was a rehearing before the Appellate Court.
Apart from that, if two remedies are open to an aggrieved party it cannot be faulted just because it had exercised its option in favour of one.
12. Now taking the appeals on merits, the learned Company Judge has allowed commission to the liquidators including the heirs of Mr. S.M. Hussain at the rate of 71%. As already mentioned the Mill has been sold for a sum of Rs,5,00,00,000 (five crores). The amount of commission will, therefore, come to Rs,37,50,000. Out of this amount, in accordance with the ratio fixed by the learned Company Judge, Rs,25,00,000 will go to the ratio fixed by the learned Company Judge, Rs,25,00,000 will go to the heirs of Mr. S.M. Hussain while Rs,6,25,000 will be paid to Mr. Maqbool Sadiq and Mr. All Ahmad Awan, each. The question for consideration is whether the amount of commission being paid to the liquidators is commensurate with the amount of work and responsibility involved in liquidation or is it far too excessive and constitutes an unjustified depletion of the assets and properties of the company under liquidation so as to substantially affect the rights of the creditors and the contributories.
13. In this context the first contention on behalf of the appellants was that by way of remunerations a liquidator was either entitled to a salary or commission on the sale price of the property and assets of the company under liquidation. Since the present case the liquidators including Mr. S.M. Hussain were receiving monthly remunerations they were not entitled to any commission on the sale proceeds of the mill. In support of this contention reference was made to Rules 35 and 36 of Chapter I, Volume 2, of the Rules and Orders of the Lahore High Court. These rules read as follows:-- "35. The Official Liquidator shall be allowed in his account or otherwise paid such amount by way of salary or remuneration as the Judge may direct and such remuneration may be fixed either at the time of his appointment or thereafter and may be altered. Such remuneration may be fixed or altered to cover or exclude the employment of assitants or clerks, office rent and incidental expenses. No money shall be appropriated to such remuneration, save upon the passing of an account or upon an application by the Official Liquidator for the purpose on notice to such person (if any) and supported by such evidence as the Judge may direct, provided, nevertheless, that the Judge may, from time to time, allow an Official Liquidator to appropriate such sum as he may think fit on account of remuneration to be thereafter fixed.
36. The remuneration of an Official Liquidator, as far as possible, shall be fixed in the nature of a commission or percentage of which one part shall be payable on the amount realized after deducting the sum (if any) paid to secured creditors (other than debenture-holders), out of the proceeds of their securities and the other part on the amount distributed in dividends."
It is difficult to subscribe to the contention of the learned counsel. Section 176 (3) states that there shall be paid to the official liquidator such salary or remuneration by way of percentage or otherwise as the Court may direct.
Quite clearly the objection of the subsection as well as the rules quoted above is to compensate the official liquidator for the work performed by him. These compensations have to be fixed in proportion to the amount of the work performed and the nature of the burden placed on his shoulders. These provisions as they are worded leave the matter entirely to the discretion of the Court. It is difficult to construe the provision as tying down the hands of the Court in this regard and it cannot be said that the Court is not competent to award commission on the sale proceeds when it has directed payment of monthly remunerations to the official liquidator. In fact in suitable cases the, Court may grant both monthly remunerations as well as commission on the the sale proceeds to him. All that the Court has to see is who would constitute reasonable amount of compensations.
14. As already stated the heirs of Mr.S.M. Hussain have been awarded compensations under four heads:--
(i) A part of the commission on the sale proceeds of the mill; their share comes to Rs,25,00,000.
(ii) Pay of the clerical establishment and expenses on account of stationery and postal stamps; this amount comes to Rs,20,000.
(iii) Fee for legal cases pending before the High Court, Banking Judge and Civil Judges at Sargodha and Lahore; this amount comes to Rs,1,47,500.
(iv) T.A. And D.A. At the rate of Rs,200 per month; this amount comes to Rs,7,200.
' Now, Mr. S.M. Hussain was appointed as joint provisional liquidator together with PICIC on 4-11-76 and he continued to hold this office till his death on 2-1-1980. While appointing Mr. S.M. Hussain as joint provisional liquidator the learned Company Judge observed: "However, as the role of Mr. S.M. Hussain would be as joint provisional Liquidator, I consider it just and proper to fix the monthly remuneration at Rs,1,000 p.m. For the time being. In addition, he would be entitled to expenses and daily allowance if and when he visits an outstation. If at any, stage Mr. S.M. Hussain finds that remuneration as not commensurate with the duties which he will have to perform, he will be at liberty to move the Court in this behalf."
Mr. S.M. Hussain continued receiving remunerations at above rate till 27-1-1979 when he made an application before the Company Judge for an increase. As a justification for the enhancement he stated in the application: -- " Since the appointment, the petitioner has been doing a lot of, work in connection with the affairs of the liquidation proceedings. The mills premises are situated in Jauharabad at a distance of 40 miles from Sargodha city. The petitioner since his appointment had been visiting the mills with a view to prepare what is called the trial balance of the accounts of company. It is a huge mill consisting of 25,000 spindles. The petitioner alongwith the staff of the PICIC spent several days in making inventory of the contents of the mill premises and the spare parts. The books of accounts were taken into possession which helped to prepare inventory. Unfortunately, during the pendency of the liquidation proceedings, a theft of the machine parts took place and the petitioner in this connection had to go to see different authorities such as the D.I.-G. Sargodha, I.-G. Police Punjab, the Deputy Martial Law Administrator, Sargodha and Martial Law Administrator Lt.-General Sowar Khan for the recovery of the stolen property. It was a huge theft approximately amounting to Rs,25 lacs out of which recovery of Rs,23 lacs had taken place. Under the instructions of the then learned Companies Judge Mr. Justice M.A.
Zullah, various reports in connection with the efforts of the petitioner to unearth the stolen property have already been submitted. The last report has been submitted in this Honourable Court. The work connected with the liquidation proceedings of the present mill is colossal one and the petitioner has to spend lot of time in this connection. I humbly submit that I feel that the remuneration is quite disproportionate to the work being done and the assets of the mill which are at the moment worth about 8 crores. The then Company Judge who was seized of the matter kindly suggested in the open Court the remuneration be increased but the matter was adjourned till the next date. The case however, was entrusted to Mr. Justice Aftab Hussain who returned the file to this Honourable Court for ,adjudication. I, therefore, respectfully pray that in view of the voluminous work involved, the remuneration of the petitioner may be-suitably increased. At present, the petitioner is receiving Rs,1,000 per month."
This application came up before the learned Company Judge (Mushtaq Hussain, C.J.) on 29-1-1979. He increased the rate of compensation to Rs,2,000 per month. The relevant para. Of this order reads as follows:- "The Provisional Liquidator Mr. S.M. Hussain is getting Rs,1,000 per month for the performance of his duties.
He has applied for enhancement in this amount. Learned counsel for the parties support this request. The fees are raised to Rs,2,000 per month plus other benefits which he is getting. This shall be effective from the date when he applied for enhancement."
' It will be noticed that while raising the amount of compensations the learned Company Judge had taken into account the quantum of work which Mr. S.M. Hussain had been called upon to perform in discharge of his duties as a provisional liquidator. However, that may be, on 19-11-1979 the learned Company Judge (Mushtaq Hussain, C.J.) made another order further enhancing the remunerations of Mr. S.M. Hussain to Rs,4,000 per month. He observed in the order: " Mr. S.M. Hussain one of the Provisional Liquidators, who is shouldering the responsibility of the liquidation proceedings, had to put in extreme hard work in connection with the negotiations for the sale or letting out of the Mills as well as looking after the assets of the Company. The amount of remuneration being paid to him at the moment is not at all commensurate with the work that he has to do and all the learned counsel appearing before me quite agree that the amount should be substantially raised and they have no objection to the figure of Rs,4,000 per month which he shall receive from the 1st of November, 1979."
' Apparently Mr. S.M. Hussain was unable to get the enhanced remunerations for so long as he died on 2-1- 1980.
'
15. On 9-3-1980 the learned Company Judge took notice of the death of Mr. S.M. Hussain and made the following order: "Mr. S.M. Hussain, the Court Liquidator, has died. Most of the negotiations have gone on through his good offices, and his wife would, therefore, be entitled to share in the fees that be ultimately fixed."
' It is this order that prompted the widow of Mr. S.M. Hussain to move three applications on 26-5-1981, 5-12- 1981 and November, 1982 for further remunerations for the work done by her late husband. In the application of 26-5-1981 she stated that Mr. S.M. Hussain developed serious heart disease during the period he was working as joint official liquidator and that on 28-12-1979 he was compelled by the other joint liquidator to visit Jauharabad where the Mill of the company was situated despite his cardiac condition. As a result, when he returned back he suffered another heart attack which proved fatal. She then referred to the order of 9-3-1980 and stated that under that order she had become entitled to a share in the commission on the sale proceeds of assets of the company. She prayed for the implementation of the said order and by way of interim payment asked for a sum of at least Rs,50,000. The application of 5-12-1981 was much more detailed. In this application she listed the various tasks performed by Mr. S.M. Hussain and then stated:-!
"The work done by Mr. S.M. Hussain is apparent from the High Court record. He did not claim the extra expenses and other amounts on the understanding that he will get a commission on the sale proceeds of the assets of the company. After his death the applicant was consoled by an order of the Court that despite his death I will get his share of lawful commission in recognition of the valuable services actually rendered by him.
The substantial spade-work done by the deceased has now brought fruits in the shape of immediate finalization of the sale to the new purchasers."
' She asserted that she had a right to claim the amount due to Mr. S.M. Hussain and that during the course of hearing in June 1981 all counsel appearing on behalf of the parties, including the liquidators, had agreed to the payment of at least Rs,50,000 to her. In the application of November, 1982 she reiterated the assertions made in the earlier applications and prayed for the determination of the total remunerations of the liquidators and her share out of the same. It may be mentioned that on 19-1271981 under the order of the Company Judge (Munawar Elahee Rana, J.) she was made an interim payment of Rs,25,000. The order of the learned Judge reads as follows: "It is conceded by the learned counsel for the petitioner and the Joint Official Liquidator as well as Mr. Mohsin Ansari, Advocate, for one of the creditors, namely, Habib Bank Limited that the matter about the additional payment of remuneration to late S.M. Hussain, who had acted as a Joint Provisional Liquidator, was taken up earlier, but feral decision could not be recorded. At that time the parties had agreed to pay to the widow of S.M.
Hussain a sum of Rs,25,000 which was not then acceptable to the lady. The parties have now again offered this amount as an interim payment, and the lady is presently willing to accept and prays for more. She may be paid a sum of Rs,25,000 subject to the final adjustment, if any."
' It is to be noticed that Mr. S.M. Hussain died before the order for the winding-up of the company was made. No doubt he did contact some parties, first, for making the mill operative and then for selling the mill but all his efforts were unsuccessful. Apart from that, in all his essays in this regard he was actively assisted by the other joint liquidator, namely, Mr. Wahab-ud-Din Shah, who represented PICIC. The offer to purchase mill which was ultimately accepted by the learned Company Judge was made after his death. He did not participate in the negotiations with the purchaser, namely, the Pakistan Kuwait Investment Company Limited, nor were his services available when the drafts of agreement to sell and the sale-deed were being prepared. The record does not show that at any stage he was given any understanding that apart from the monthly remunerations he would also be entitled to commission on the sale proceeds of the assets and property of the company. It is, therefore, difficult to support the claim of his widow in this regard. Her assertion that by the order, dated 9-3- 1980, she was declared to be so entitled is not strictly correct, for all that the order stated was that she would be entitled to a share in the fees that may be ultimately fixed. It made no mention whatsoever of the commission on the sale proceeds. To our mind, the fee referred to in this orde was intended to be reasonable compensation for the work done by Mr. S.M. Hussain before his death and not any fancy amount not bearin any proportion to the work actually performed.
16. As already mentioned, in her application of 5-12-1981 the widow of Mr. S.M. Hussain gave details of the work done by her late husband. The details mainly referred to preparing inventory of the property and assets of the company; tracing the books of accounts, records, offices and share-holders of the company; supervising the preparation of accounts; supplying data to the auditors; making efforts for the running and, later, sale of the mill; establishing contacts with and meetting industrialists; disposing of the cotton waste; actively pursuing and prosecuting a case relating to the theft of the property of the company at different levels; prosecuting the culprits and recovering the stolen property. But then these are the normal functions which any liquidator is expected to perform; further, in performing the abovementione functions Mr. S.M. Hussain had the assistance of the other joint liquidator and the staff of PICIC. It is also to be noticed that in his application of 27-1-1979 for seeking increase in the remunerations Mr. S.M. Hussain had listed the nature of his duties and it was after considering the same that the learned Company Judge had first raised the rate of remunerations to Rs,2,000 and then to Rs,4,000 per month. Thus, for the work to which the widow has referred in her application of 5-12-1981 Mr. S.M.
Hussain already stood compensated by an increase in the rate of remunerations. It is true that he was unable to enjoy the benefit of the increased remunerations for long and perhaps. It was for this reason that the learned Chief Justice directed that his widow would be also entitled to a share in the fees that may be ultimately fixed but then she has already been paid Rs,25,000 in pursuance of an order dated 19-12-1981. We are of the opinion that this payment is a sufficiently liberal reward for all the work done by Mr. S.M. Hussain. Any further payment will be entirely uncalled for and constitute unjustifiable depletion of the assets and property of the company unde liquidation and give a legitimate cause of grievance to the contributories and creditors.
Accordingly, we set aside the order of the learned Company Judge whereby he has held the widow entitled to a share in the commission on sale proceeds of the mill which after deduction o the above mentioned amount of Rs,25,000 comes to Rs,24,75,000.
17. As regards the second head under which the widow of Mr. S.M. Hussain has been allowed a sum of Rs,15,000 by way of the salaries of the establishment consisting of a stenographer and a clerk and a further sum of Rs,5,000 on account of expenses incurred on stationery and postal stamps, it is to be noticed that she has not supplied the particulars Of the establishment maintained by Mr. S.M. Hussain for the performance of his functions as provisional liquidator, the periods for which different members of the establishment were employed and the rates at which they were paid. She has not given the details of the stationery and postal stamps which her husband had to purchase. On the other hand the case of the appellants is that Mr. S.M. Hussain was provided with an office by PICIC at Lahore and given the secretarial assistance; further, whenever he incurred miscellaneous expenses in connection with his duties he submitted a bill to PICIC which was promptly settle In support of this assertion a number of cliams made by Mr. S. Hussain as well as the receipts signed by him have been placed on the appellate record. Some of the claims and receipts relate to miscellaneous expenses. We are of the view that a claim under this head was one essentially of reimbursement. In the absence of any details an' particulars of the expenditure incurred in respect of the establishment, stationery and postal stamps the claim of the widow could not hay been allowed by the learned Company Judge. We would, therefore, set aside his order in this regard. However, to be fair to the widow, we do not wish to close the matter, for if she is able to furnish details of the expenses incurred by Mr. S.M. Hussain in respect of the establishment, 'stationery and postal stamps, it will be open to the learned Company Judge to reimburse her after, of course, deducting the amounts already received by him in this regard from PICIC.
18. From the order of the learned Company Judge it appears that Mr. S.M. Hussain had apeared on behalf of the company under liquidation in the following 13 Cases:- {{TABLE}}
(1) 153/79 Grindlays Bank v. Malik Wazir Hayat, etc.
(2) 121/79 U.B.L. v. Eateh Hayat Tiwana, etc.
(3) 157/79 Habib Bank Ltd. v. Shahpur Textile Mills.
(4) 37/79 M.C.B. v. Shahpur Textile Mills.
(5) 157/79 Habib Bank Ltd. v. Shahpur Textile Mills.
(6) 1.C.P. v. Shahpur Textile Mills.
Civil Courts Sargodha
(7) Malik Majeed Tiwana v. Shahpur Textile Mills.
(8) Ghulam Hassan v. Shahpur Textile Mills.
(9) WAPDA v. Malik Nazar Hayat, etc. High Court
(10) F.A.O. Shahpur Textile Mills v. Ghulam Hassan, etc. Civil Courts Lahore
(11) I.C.P. v. Shahpur Textile Mills.
(12) United Textile v. Shahpur Textile Mills.
(13) United Bank Ltd. v. Shahpur Textile Mills Ltd.
(14) {{TABLE}} ' The learned Company Judge has allowed fees to Mr. S.M. Hussain at the rate of Rs,12,500 for each banking case, Rs,10,000 for each case pending in the civil Courts at Lahore, Rs,1,2,500 for each case pending in the civil Courts at Sargodha and Rs,5,000 for the F.A.O. Filed in the High Court. He fixed these fees on the advice of Mr. Hussain's successor liquidators and counsel appearing for some of the unsecured creditors. The appellants are aggrieved by the rates at which the fees have been assessed. It is contended that not only the rates are exorbitant and incommensurate with the work done by Mr. S.M. Hussain but that Mr. S.M. Hussain had received separate fees from PICIC for appearing in the above cases. The record of some out of the above mentioned cases has been shown to us and if that record be an indication of the legal work done on behalf of the company under liquidation by Mr. S.M. Hussain in the various cases the grievance of the appellants would appear to be not without substance. Thus, in the two suits field by Habib Bank Mr. S.M. Hussain appeared as counsel both for the company under liquidation and the PICIC. In both suits he filed brief written statements on behalf of the company under liquidation wherein he just accepted the liability. Similarly, in the suit filed by the Muslim Commercial Bank even no written statement had been filed when Mr. S.M. Hussain died. To pay a fee of Rs,12,500 per banking case, too, would seem to be without any justification and inconsistent with the principle of quantum meruit which of course has to be the guiding factor with the Court when administering property on behalf of others.
In the circumstances, we would set aside the order of the learned Company Judge and suggest that he may reconsider the fees to which Mr. S.M. Hussain was entitled after taking into account the work acutally performed by him in each of the cases filed against the company under Liquidation.
19. During the course of his duties as joint provisional Liquidator Mr. S.M. Hussain had to occasionally visit Jauharabad where the mill was located. The learned Company Judge has allowed to Mr. S.M. Hussain travelling allowance for ten visits and daily allowance for 18 days. The amount of travelling allowance comes to Rs,5,400 and the amount of daily allowance comes to Rs,1,800. The case of the appellants is that during, his visits to Jauharabad PICIC used to provide transport, boarding and lodging at its own expenses to Mr. S.M. Hussain.
After giving some consideration to the matter we do not think that any case for interference with the order of the learned Company Judge in this regard has been made out. Irrespective of the fact that transport was provided by PICIC, Mr. S.M. Hussain had to undergo the rigours of the journey and suspend his work at Lahore which was the place where he practised. This being so, the payment of travelling and daily allowances to the widow on account of the journey performed by her husband is neither unreasonable nor on the extravegant side. We would therefore decline to interfere with the order of the learned Company Judge with regard to the payment of the travelling and daily allowances' to Mr. S.M. Hussain.
20. Now we take up the case of Mr. Maqbool Sadiq and Mr. Ali Ahmad Awan. It has already been mentioned that their share in the commission would come to Rs,6,25,000 each. They were both appointed as joint provisional Liquidators in the place of Mr. S.M. Hussain on 9-3-1980. The order by, which they were so appointed did not mention the rate or rates of their remunerations. The order winding up the company was made on 21-3-1981.
By the same order they were both appointed as joint official liquidators together with PICIC. The relevant excerpt from the order reads as follows: "The present Provisional Liquidators shall become the Joint Official Liquidators on the same terms and conditions i.e. On payment of Rs,2,000 each p.m. However, they shall submit monthly progress reports to the Court and shall be paid their remuneration only if any substantial work in done is any month."
' On 27-4-1981 the above order was modified and the rates of remuneration were re-fixed so that Mr. Maqbool Sadiq was to get Rs,2,500 per month and Mr. Ali Ahmad Awan was to be paid Rs,1,500 per month. The learned Company Judge distributed the functions of the three Joint Official Liquidators, that is, Mr. Maqbool Sadiq, Mr. Ali Ahmad A wan and Mr. Wahab-ud-Din Shah (who represented PICIC) as follows. {{TABLE}}
(1) Verification of claim:
(i) of the Financial Institutions )
(ii) of the individuals. Messrs Wahab-ud-Din and
(2) Arranging the making up and Maqbool Sadiq completion of Books of Accounts ) of the Company.
(3) Maintaining the record book of ) the minutes of proceedings.
Arranging meetings and other ) miscellaneous matters.
Settling the list of contributories) Messrs Maqbool Sadiq and Preparation of reports for the ) Ali Ahmad Awan.
Court.
Prosecuting the criminal cases. ) Mr. Ali Ahmad Awan.
Prosecuting civil cases. ) Mr. Maqbool Sadiq. {{TABLE}} ' It is to be noticed that in none of the three orders, that is, orders of 9-3-1980, 21-3-1981 and 22-4-1981, any understanding was given to Mr. Maqbool Sadiq or Mr. Ali Ahmad Awan that in addition to the remunerations which had been fixed for them they would also get a commission on the sale proceeds of the assets and property of the company under liquidation. The contention of Mr. Maqbool Sadiq is he had entertained an expectation that he would get commission in accordance with the practice of this Court and it was this expectation that influenced him in accepting the position of joint liquidator. We have already mentioned that there is no invariable practice in this regard. As already pointed out there is nothing in the order of the Court that at the time of his appointment or at any subsequent stage he was encouraged to entertain any such expectation. It is, therefore, difficult to allow him commission merely to satisfy his expectation. All that he and Mr. Ali Ahmad Awan are entitled to are a reasonable compensation for the work done..By them.
21. While allowing commission in the amount of Rs,6,25,000 to Mr. Maqbool Sadiq and Mr. All Ahmad Awan each the learned Compan Judge has not taken into account the work performed by them. So far their work is not over, it is, therefore, difficult for us to assess at this stage how much more labour they will have to put in to discharg their functions. In the circumstances, we would set aside the order o payment of commission and leave the matter of their remunerations to the learned Company Judge to reconsider after taking into account the monthly remunerations received by them till now, the amount of work already performed and that which they will be required to perform in connection with the winding-up of the affairs of the company under liquidation.
' Two appeals are disposed of accordingly. There will be no order as to costs.