The petitioner in this application under section 152 of the Companies Ordinance, 1984 claims to be one of the five Promotor-Directors of a private limited Company incorporated on 24-5-1989 at Faisalabad under the name and style of Pak Pharmaceutical Package (Private) Limited. He states that by way of a calendestine and dubious transaction he was shown to have resigned from Directorship and his three thousand shares of Rs,100 each transferred to another Director Isharat Hussain through forged and fabricated transfer deeds. It is further claimed that while recording the impugned transfer of shares the provisions of the Companies Ordinance, 1984 were not complied with and that the return filed with the sub-office of the Registrar of Companies evidencing change in pattern of shareholding was a result of fraud.
2. The respondents in their reply controverted the factual submissions. It was stated that the petitioner on transfer of his three thousand shares in the Company resigned from the Directorship in accordance with law. The transfer of shares was also claimed to be for consideration duly evidenced by documents. The transfer deeds dated 3-1-1990 as also the letter dated 8-1-1990 whereby the petitioner disassociated himself from the business of the company were relied upon to controvert the factual submissions made in the petition. On legal plane the respondents have taken exception to the maintainability of the petition under section 152. It is claimed that the petition contains intricate questions of law and fact which cannot possibly be resolved without recording of evidence from both sides. According to the respondents that is not possible in summary proceedings under section 9 of the Companies Ordinance, 1984 under which the petitioner has approached this Court.
3. After hearing both the parties, I am inclined to allow the objection. Subsection (3) of that section provides that in exercise of jurisdiction under the Companies Ordinance, 1984 this Court shall follow summary procedure.
4. As noted earlier the petitioner has challenged the transfer deeds as also the letter/receipt/settlement dated 8-1-1990. The letter dated 8-1-1990 is a receipt/settlement between Ghulam Hussain, Chief Executive of the Company, Fazal Hussain Shah another Director and Syed Shafqat Hussain Shah, the present petitioner. It is, not denied that since the year, 1990 his shares stand transferred to another person. Also that he was not being cited and treated as a Director of the Company. In fact that was not possible under the provisions of the Ordinance inasmuch as the petitioner is admittedly absent from the country for the last almost a decade.
5. Learned counsel for the petitioner is not correct in claiming that passport of the petitioner showing his absence from the country during the period in which the aforesaid documents evidencing transfer of shares were allegedly executed had been admitted by the respondents.
There is nothing on record to show that the respondents ever admitted the absence of the petitioner from Pakistan during the aforesaid period. Accordingly the entries in the passport are again a piece of evidence and these cannot be admitted in evidence without their proper proof.
6. Learned counsel for the respondents has relied upon a number of judgments to support the contention that the kind of inquiry involved in this case is not germane to proceedings under section 9 of the Companies Ordinance, 1984. In the first case re: Khurshid Ahmed Khan v. Pak Cycle Manufacturing Company Ltd. PLD 1987 Lahore 1 it was inter alia found that the powers vested in this Court under section 152 of the Companies Ordinance, 1984 was to be exercised in cases where legal title in the applicant was clear. Further, that in a complicated or doubtful case, summary jurisdiction ought not to be exercised. Learned counsel also relies upon re: Salauddin Khan v. Al- Mansoor Ltd. And 2 others PLD 1987 Lah.
569. In that case Muhammad Afzal Lone, J. Learned Company Judge refused to entertain a petition under section 152 of the Ordinance where the petitioner had admitted signing of certain papers but claimed that his signatures on blank transfer had been obtained through fraud and forgery.
7. Learned counsel for the respondents has further stated and I will agree that the petitioner has purposely avoided in making a clear statement as to date of his knowledge and occasion which resulted in unearthing the alleged fraud. Admittedly the parties are closely related to each other and it is simply unbelievable that the petitioner since the year, 1990 did not know that he was no more a Director of the Company.
8. Learned counsel for the respondents has further submitted that an application under section 152 is otherwise not maintainable after expiry of period given in the residual Article 120 of the Limitation Act, 1908. In support of submissions he has relied upon two judgments from the Indian jurisdiction.
First judgment is cited as re: Sha Mulchand v. Jawahar Mills Ltd. AIR 1953 SC 98. The second judgment from Madras High Court is reported as re: Jawahar Mills v. Sha Mulchand AIR 1951 Mad.
572. Another judgment from Indian jurisdiction reported in the matter of Bengal Silk Mills AIR (29)
1942 Cal. 461 lays down that a blank transfer deed duly signed by the transferor/shareholder can always be filled in for the purpose of effecting transfer.
9. In re: Akbar Ali Sharif and 2 others v. Syed Jamaluddin and 2 others 1991 M LD 203 a Company Bench of the Karachi High Court expressed the view that if the case be one of the difficulty and complication, it should more appropriately be decided in a regular trial and that summary provisions are not intended for settling controversies under several heads necessitating a regular trial.
10. In re: Manzoor Ahmed Bhatti and 4 others v. Haji Noval Khan and 5 others 1986 CLC 2560 another Company Bench of the Karachi High Court after considering the questions of fact raised in the petition under section 38 of the late Companies Act, 1913 stayed the proceedings and required the parties to approach a Civil Court for resolution of disputed questions of fact raised in the petition.
11. It will be noted that the case of the present petitioner is not free from some difficulties. He seeks the restoration of his name in the register of members of the company after resolution of his claim that a fraud was played upon him. As said above, such-likq controversy can only be resolved after hearing the parties and permitting them to adduce evidence.
12. The allegations of commission of fraud and fabrication of documents made in the petition cannot be resolved without framing of issues and recording of evidence. That exercise is not germane to summary proceedings under section 9 of the Companies Ordinance, 1984. The petitioner is advised to approach a Civil Court of competent jurisdiction to get the issues determined. Obviously in case of a favourable judgment he can always approach this Court again under section 152 of the Ordinance with a similar prayer for rectification of the register of the Company.