' SABIHUDDIN AHMED, J.---This appeal is directed against an order of the learned Company Judge dated 24-12-1999 whereby an earlier order dated 25-10-1995 accepting the bid of the appellant for purchase of the assets of Messrs Ruby Rice Engineering Mills Limited (Company in Liquidation) was recalled, the amount deposited by him was forfeited and the Official Liquidator was directed to readvertise the sale of the property. Without adverting to the merits of the impugned order, it might suffice to mention that an order for winding-up of the Company was passed on 15-9-1993 upon an application submitted by six banks and financial institution including the respondent No,3. The impugned interlocutory order has been called in question by the appellant/auction bidder. The learned Official Liquidator as well as the respondent No,3 questioned the maintainability of this appeal contending that all appeals against order passed after the company had been ordered to be wound-up could be preferred only before the Hon'ble Supreme Court either as of right or by way of special leave in terms of section 10(1) of the Companies Ordinance, 1984. Reliance was placed on a Division Bench Judgement of this Court in Muhammad Farooq v. T.J. Ebrahim and Company and Alliance Motors PLD 1999 Karachi 246 which indeed supports the respondents point of view.
Nevertheless learned counsel for the appellant referred to an earlier Division Bench judgment in Mehboob Industries v. PICIC 1988 CLC 866, where certain observations appear to support the view that this appeal is maintainable. Noticing the above difference of opinion the Division Bench hearing this appeal requested the Hon'ble Chief Justice to constitute a larger Bench in accordance with the principle laid down by the Hon'ble Supreme Court in Multiline Associate v. Ardeshir Cowasjee 1995 SCMR 362 whereupon this Full Bench was constituted.
2. To appreciate the respective contentions of the parties, it may be appropriate to reproduce section 10 or the Companies Ordinance, 1984 which reads as under:--
10. Appeal against Court orders.---(1) Notwithstanding anything contained in any other law, an appeal against any order, decision or judgment of the Court under this Ordinance shall lie to the Supreme Court where the company ordered to be wound-up has a paid up share capital of not less than one million rupees: ' and where the company, ordered to be wound up has a paid-up capital of less than one million rupees or has no share capital, such appeal shall lie only if the Supreme Court grants leave to appeal.
(2) Save as provided in subsection (1), an appeal from any order made or decision given by the Court shall lie in the manner in which and subject to the same conditions under which appeals lie from any order or decision of the Court.
(3) An appeal preferred under subsection (2) shall be finally disposed of by the Court hearing the appeal within ninety days of the submission of the appeal.
3. Mr. Rashid Akhtar Qureshi learned counsel for the appellant argued that only an order directing the winding-up of a company was appealable to the Hon'ble Supreme Court in terms of section 10(1) and where the paid-up capital company did not exceed Rs,1 million such appeal could be preferred by leave of the Supreme Court but where such capital exceeded Rs,1 million an appeal would lie as of right. He emphasized that the word 'company ordered to be wound-up' occurring in section 10(1) made it explicit that only those orders whereby the Company Judge had ordered the company to be wound-up could be called in question before the Hon'ble Supreme Court. He placed strong reliance upon the observations of Ajmal Mian, J. (as his Lordship then was) in Mehboob Industries v. PICIC 1998 CLC 866 to the following effect:-- ' It is, therefore, evident that the intention of the law-makers is that an appeal against an order, decision ar judgment of winding up of a company notwithstanding anything contained in any other law shall lie to the Supreme Court and not to High Court but an appeal in respect of any other order, decision or judgment other than relating to the winding up shall lie to the High Court.
4. On the other hand, the learned Official Liquidator relying upon the subsequent pronouncement of this Court in Muhammad Farooq v. T.J. Ebrahim and Company PLD 1999 Karachi 246 emphasized on the word any order occurring in section 10(1) and argued that once the company was ordered to be wound-up an appeal against any order, decision or judgment of the Company Judge whether final or interlocutory would only lie to the Supreme Court. He contended that Scheme of 1984 Ordinance stipulated early disposal of proceedings under the Ordinance and the object of legislation was to curtail litigation by dispensing with the right to file appeals before the same Court in a large category of cases.
5. Mr. Asim Mansoor Khan, learned counsel for the regpondent No,4 also supported the view point of the Official Liquidator and in a well prepared address drew our attention to a number of reported cases i,e, Ch.Jamil Ahmad v. Nippon Bobbin Co: (Pak.) Limited PLD 1991 Lahore 467, Muhammad Din and Sons (Pvt.) Limited v. Allied Bank of Pakistan 1993 SCMR 80; IDBP v. Kamal Enterprises Limited PLD 1995 Quetta 41; Brother Steel Mills Limited v. Mian Ilyas Miraj PLD 1996 SC 543 and M. Suleman and Co. v. Joint Official Liquidator 1997 CLC Lahore 260.
6. We have carefully gone through all these judgments and found that the view taken in the two Division Bench judgments of the Lahore High Court in Ch. Jameel Ahmad v. Nippon Bobbin Company (Pakistan) Limited PLD 1991 Lahore 467 and M. Suleman and Company v. Chief Officer Liquidator 1997 CLC 260 squarely supports the respondent's contention. In the first case Mahboob Ahmad, C.J. (as his Lordship then was) observed that section 10(1) has sweeping connotations and covered all orders made after the winding up order has been passed and section 10(2) was applicable only upto the stage when winding up order had not yet been passed. Nevertheless the remaining cases cited appeared to be of little assistance to the learned counsel. In Muhammad Din and Sons v. Allied Bank of Pakistan 1993 SCMR 80 an order relating to reconstruction/reorganisation of the company passed by the learned Company Judge was called in question directly before the Hon'ble Supreme Court. However, there is no observation to the effect that an interlocutory order passed after the winding up order was. Appealable before the Supreme Court. Their Lordship held and rightly so (if we may say so with respects) that no winding ug order having been passed a direct appeal to the Supreme Court did not lie in terms of section 10(1) of the Ordinance. In IBDP v. Kamal Enterprises Limited PLD 1995 Quetta 41 an appeal against an order of the learned Company Judge refusing to wind up a Company was preferred before a Division Bench of the High Court. Their Lordships acknowledged that no winding up order having been passed, section 10(1) of the Ordinance was not applicable. Nevertheless, they proceed to hold that the appeal was not maintainable under section 10(2) on the premises that an intra Court appeal to a Division Bench against Order of a Single Judge would lie only if such order was passed in the exercise of ordinary Civil Jurisdiction and the jurisdiction conferred on the High Court by the Companies Ordinance was only special statutory jurisdiction.
7. With profound respect I deem it necessary to point out that the above view taken by the Balochistan High Court which was supported by some earlier precedent from the Lahore High Court was clearly disapproved by the Hon'ble Supreme Court in Brother Steel v. Mian Ilyas Meraj PLD 1996 SC 543 cited by Mr. Asim Mansoor Khan himself. In a well considered judgment a five-member Bench of the Hon'ble Supreme Court proceeded to hold that an order passed by a Company Judge, to which section 10(1) did not apply, ought to be treated as one having been passed under the Original Civil Jurisdiction of the High Court and was thus appealable before a Division Bench in terms of section 15 of Ordinance X of 1980. It is, therefore, clear that the position in respect of orders to which section 10(2) applies has been authoritatively settled by the Hon'ble Supreme Court. The present controversy is only confined to the question whether the provisions of section 10(1) are applicable only to orders whereby a Company is wound up or to all interlocutory orders passed thereafter.
' Having carefully considered the respective contentions advanced before us it appears that language used in section 10(1) of the Companies Ordinance, does present some ambiguity. Prima facie the contention of Mr. Asim Mansoor Khan duly supported by precedents to the effect that the words any order, decision or judgment appear to be of very wide import is not altogether unfounded. Nevertheless, at the same time it cannot be overlooked, as argued by Mr. Rashid Akhtar Qureshi, that these words are qualified by the expression where the company ordered to be wound up has a paid up capital of Rs,1 million restricts the operation of the provision to specific types of orders i,e, orders of the Company Judge directing that a Company be wound up. In the circumstances it appears necessary to discover the true legislative intent by reading the Ordinance as an organic whole.
8. In the first instance it needs to be kept in view that once a winding up order is passed under section 314 of the Ordinance and an Official Liquidator is appointed, the liquidator performs his duties subject to the directions of the Court and the Court retains the power to pass interlocutory orders of several kinds till the process is completed and the company is finally dissolved. Moreover sections 396 to 401 stipulate that even in cases where voluntary winding up is commenced the Court either on its own motion or on the application of any person entitled to apply for winding up can order that such process shall continue subject to the supervision of the Court. Therefore, even in such cases the Court acquires the jurisdiction to pass orders of various nature during the winding up process. The question which has agitated us is as to whether the legislature intended that all such interlocutory order some of which may be quite innocuous should be made directly appealable before the Hon'ble Supreme Court and particularly when the paid up share capital of the company exceeded Rs,1 million the appellant may not even be required to obtain leave to appeal but prefer such appeal as of right. I have found that the same question came up for consideration before the Hon'ble Supreme Court in Muhammad Bux v. Pakistan Industrial Credit Investment Corporation Limited 1999 SCMR 25 and persuaded their Lordships to grant leave to examine it. However, I have been informed by the Registrar Supreme Court that no final judgment has been pronounced so far. It may be pertinent to quote the following observations from the leave granting order:-- ' The question which, however, arises for determination is whether the words "where the company ordered to be wound up" occurring in subsection (1) of section 10 of the Companies Ordinance have reference only to the order relating to winding up of the company or they would refer to any order that is passed by the Court after the company has been ordered to be wound up. If such wide connotation is given to the said words, then any interlocutory order passed by the High Court after a company has been ordered to be wound up would become appealable to this Court by virtue of section 10(1). The judgment of the High Court has also been assailed on merits."
10. We agree with the Official Liquidator to the extent that the Scheme of 1984 Ordinance stipulated early disposal of proceedings under the Ordinance and certain provision which did not exist in its predecessor statute i,e, the Companies Act, 1913 clearly point in this direction. Section 9 provides that petitions and applications under the Ordinance should be disposed of expeditiously but no later than 90 days from the presentation thereof. It also provides that except for an unusual circumstances cases should be on a day to day basis. Section 10(3) requires that appeals filed under section 10(2) should be disposed of within 90 days. These provisions may indeed be directory but their significance as to the manifestation of the legislative will cannot be under- mined.
11. Nevertheless the assertions that interlocutory orders passed during the winding up process were made appealable only to the Hon'ble Supreme Court in view of the above context appears misconceived. It needs to be emphasized that whereas appeals under section 10(2) are required to be decided within 90 days there is no such binding in respect of appeals under section 10(1).
Moreover it appears highly incongruous to assume that on one hand the legislature sought to provide a mechanism for early disposal of cases under the Ordinance and at the same time conferred an unfettered right upon a litigating party aggrieved even by a slightly harmful interlocutory order of the Company Judge to insist that his appeal be heard by the Hon'ble Supreme Court after notice to all parties and after fulfilment of all prerequisites for hearing of a regular appeal. It does not stand to reason that where appeal to the Supreme Court as of right has been provided by the Constitution against final orders of a High Court in a very limited number of cases, such right should be made available against interlocutory order in a category of cases which the legislature intended to be disposed of expeditiously. We constrained to observe that such interpretation of section 10(1) would defeat the very intent of the legislation.
12. Indeed there is justification for granting a right to appeal to the Supreme Court against an order of winding up of a Company because of the importance of such matter in the economic life of the country and in view of the well settled principle that the Courts should make all possible efforts to save a company rather than allowing it to die. The same principle however, could not be extended to interlocutory orders. We would therefore, respectfully endorse the observations of Ajmal Mian, J.
(as his Lordship then was) in the case of Mahboob Industries 1998 CLC 866 and disagree with the view taken in the cases of Muhammad Farooq v. T.J. Ibrahim and Company PLD 1999 Karachi 246 and by the Lahore High Court in the cases of Ch. Jameel Ahmed PLD 1991 Lahore 467 and Muhammad Suleman 1997 CLC 867. The objection as to the maintainability of the appeal is therefore, rejected and it may be placed before a Division Bench for appropriate orders.