By this order, I intend to dispose of objections raised by Ch. Jamil Ahmad one of the creditors of respondent Company against the verification of claims of Habib Bank Ltd. And Allied Bank Ltd. By the Official Liquidator.
2. The Habib Bank another creditor of respondent company filed a suit for recovery of the loan obtained by the respondent company from it and a decree for an amount of Rs.8,99,471.73 was passed in its favour by the Civil Court on 12-2-1979. On 2-5-1984, Habib Bank filed a petition for execution of the said decree before the learned District Judge, Multan in which it was stated that an amount of Rs.4,43,282.94 having already been paid, therefore, the decree should be executed for the recovery of the remaining amount of Rs.5,41,191.79. Since in the meantime, due to change in law the Banking Court was vested with the exclusive jurisdiction to entertain the suits and execute decrees, therefore, learned District Judge, Multan transmitted the said execution petition to the Banking Court. The Banking Court returned the same to the learned District Judge, Multan on the ground that the said Court instead of transmitting the said petition officially should have returned the same to the decree holder for presentation before the proper Court i.e. The Baning Court. On this the learned District Judge, Multan passed an order for the return of the Execution Petition to the decreeholder i.e. The Habib Bank for presentation before the Banking Court which according to Sh.
Zia Ullah, Advocate, learned counsel for obejctor was never subsequently filed before the Banking Court.
3. Learned counsel for objector argued that under Section 48, C.P.C. The maximum time prescribed for making subsequent Execution Petition being six years, therefore, the remedy of Habib Bank for making fresh Execution Petition having become barred by time due to lapse of maximum period, therefore, the claim filed by it before the Official Liquidator could not have been entertained and verified. He referred to a number of reported judgments in aid of his argument in which it was held that no creditor whose remedy for recovery of loan had become barred by time could maintain the winding up petition in respect of such loan and such a creditor could not get any benefit from winding up proceedings pending under the Companies Ordinance. He particularly relied upon judgment reported as Ashfaq-ur-Rahman v. Chaudhry Muhammad Afzal (PLD 1968 SC 230) to contend that in collateral proceedings no order can be passed, for recovery of a particular sum regarding which remedy under the ordinary law to seek recovery of the same had become barred by time.
4. The argument though appears to be ingenious but is not applicable to the facts of this case. The petition for winding up of respondent company was filed on 6-11-1984, therefore, by virtue of Section 311 of the Companies Ordinance, 1984 the winding up of the company by the Court is to be deemed to commence from this date. The decree in favour of Habib Bank was passed by the A Civil Court on 12-2-1979, therefore, the maximum period of six years for making fresh application was to expire after 11-2-1985. This being so the date on which the petition for winding up was filed i.e. 6-I1-1984 from which date the winding up of company is deemed to have commenced. The remedy of the said Bank for execution of decree by presenting subsequent application had not become barred by time.
5.The next question which arises is as to whether after commencement of winding up and subsequently an order for winding up of respondent company having been passed, the decree holder was bound to seek execution of decree from the Banking Court by making fresh execution application or could join the winding up proceedings as one of the creditors of the company and get his claim verified and paid by the official liquidator from the assets of the company. According to Section 318 of the Companies Ordinance, once an order for winding up of a company is made the same has to operate in favour of all the creditors and of all the contributories of the company as if made on the joint petition of a creditor of a company, therefore, the winding up petition when made on 6-11-1984 shall be deemed to have been made not only by the original petitioner but the other creditors also. I have already observed that on 6-11-1984 the time for making fresh application as envisaged by Section 48 of the C.P.C. On which reliance has been placed by learned counsel for the objector had yet expired, therefore, the claim of Habib Bank could be made before .The Official Liquidator and verified and he was not bound to recover the same by making application for execution in the Banking Court. In the case of .Ashfaq-ur-Rahman supra); it was held that in an ejectment petition an order for deposit of arrears of rent could be made only for rent of that much period preceding the date of institution of the ejectment petition regarding which the remedy of filing suit for the recovery of the same had not become barred by time. In this case also as a matter of principle it was settled that while determining whether remedy for the recovery of rent for any period had become barred by time if the suit had been filed. The relevant date for determination is the date of institution of the ejectment petition and not the date on which the Rent Controller is to make an order for the deposit of rent. Applying this principle to this case it can safely be held that the question as to whether the remedy of a creditor to recover its loan from the company through suit in the ordinary Court became barred by time to debar him from seeking recovery of the same in winding up petition, the relevant date is the date of which petition for winding up was made i.e. 6-11-1984. I, therefore, hold that if on the date of institution of winding up petition, the remedy of any creditor to recover its loan under the law before the 8 ordinary Court had not become barred by time the said creditor could recover by lodging claim before the Official Liquidator and get it verified no matter if order for winding up of company was made at any time after the expiry of period of limitation for recovery of such loan before the ordinary Court. Habib Bank therefore, could justifiably submit its claim before the Official Liquidator who was vested with the power to verify the same and payment can be made of such verified amount to the Bank.
6. Learned counsel for the objector submitted that the Official Liquidator has verified the claim as regards full decretal amount of Rs.8,99,471.73 whereas according to Bank itself as disclosed in the first execution petition only an amount of Rs.5,41,191.79 was payable because an amount of Rs.4,43,282.94 had already been paid and decree stood satisfied to the extent.
7. The Official Liquidator shall take up the matter of verification of claim of Habib Bank afresh and submit his report regarding thereto on the next date of hearing.
8. The objector has also objected to the verification and acceptance of claim of Allied Bank Ltd. By the O.L. The objection against the said claim was that during the pendency of the suit before the Banking Court filed by the Allied Bank Ltd. An order for winding up of the company was made and Official Liquidator appointed. The Allied Bank Ltd. Obtained leave from this Court to continue with the prosecution of the said suit against the company as required by Section 316(1) of the Companies Ordinance, 1984 but in spite of the fact that the Official Liquidator appointed by the Court had replaced the previous management of the company and was to be deemed to be the Chief Executive of the company, but no steps were taken by the Allied Bank Ltd., for impediment of Official Liquidator to defend the company, therefore, the decree obtained by it was void and could not be made the basis for submission of claim for verification by the Official Liquidator and the decretal amount could not be paid to the said bank.
9. The argument has 'not impressed me. Under Section 333 of the Companies Ordinance, 1984, the Liquidator is vested with the power, with the sanction either of the Court or of the Committee of inspection to institute or defend any suit, action, prosecution or other legal proceeding, civil or criminal in the name and on behalf of the company, The objection if any against the continuation of proceedings in the said suit filed by the Allied Bank Ltd. Could be raised either by the previous management or the Official Liquidator and not one of the creditors like the objector in this case.
The decree in such suit even without impleadment of the Official Liquidator was not void and the same at the most could be held to be voidable at the instance of the Official Liquidator. Had Official Liquidator approached the Court which passed the decree in favour of Allied Bank Ltd. Seeking its annulment or for setting it aside under Order 9, Rule 13, C.P.C it would have faced with the objection that in spite of having knowledge that the said suit was pending in which the company was the defendant he did not obtain leave of the Court under Section 333 of the Companies Ordinance, 1984, to defend the same himself instead of previous management and having knowledge of the pendency of the said suit it could not -claim setting aside of the decree merely on account of defect in the service of notice. This aspect of the .Case has been taken into account because Official Liquidator in his report No. 18 made before this Court admitted that the said suit was pending. Since neither the ex-Management nor the Official Liquidator had raised any objection against the verification of claim of Allied Bank Ltd. Based on the decree therefore the objection raised by the objector being one of the creditors is not maintainable. Apart from this it may be mentioned here that even if Allied Bank not filed a suit, it could directly file claim before the Official Liquidator as one of the creditors which under the law was to be processed and verified. As observed above the winding up shall be deemed to have also been filed by this Bank jointly with the petitioner by virtue of Section 318 of the Companies Ordinance. The case of such a creditor who had obtained a decree by establishing his claim before the Court of law could not be regarded inferior to that creditor who without obtaining such decree can approach the Official Liquidator and submit his claim.
10. For the foregoing reasons, the objections filed by Ch. Jamil Ahmad, one of the creditors against the claims of the Habib Bank and Allied Bank are hereby rejected.
11. The bjector made an offer in writing to the Zonal Chief Allied Bank of Pakistan Ltd. For settlement of the claim the terms of which was as under:--"The amount in suit with interest upto the liquidation i.e. 10-7-1985 alongwith the legal charges as per company law and Company Ordinance may please be accepted as full and final settlement of your claim. "
12. This offer was accepted by the Allied Bank Ltd. As also the ex--Management of the company.
This has brought into being a compromise which is a lawful agreement within the meaning of Order 23, Rule 3, C.P.C. In terms of which the claim of Allied Bank can be considered by the Official Liquidator p instead of in terms of the dec:ee itself.
13. The Official Liquidator is directed to consider the claim of Allied Bank Ltd., in terms of the said compromise and make fresh report as to how much amount would be payable to Allied Bank.
14. To come up on 30-5-1995.