ADDITIONAL REGISTRAR OF COMPANIES vs Messrs NOORIE TEXTILE MILLS

ORDER

1. ' QAMMER-UD-DIN BHORA, J.---By this order this Court intend to dispose of C.M.A, No,1027 of 2006.

2. ' Heard Mr. S.M. Naqvi, Advocate for the petitioner and Mr. Raghib Baqi, learned counsel for the respondent.

3. The learned counsel for the respondent argued that he was engaged on 13-12-2006 and when he reached the Court at about 9-30 a.m. And came to know that order was passed for A winding up of the Company of the respondent. He further contended that in reaching the Court late due to heavy rush of traffic, which was beyond his control. He further contended that the very application for winding up of the company is frivolous as the respondent is running business under the rules. He further contended that the ex parte order dated 13-12-2006 may kindly be set aside. He also referred page No,17 of the documents, attached with his objections, which was in respect of direction under section 170 of the Companies Ordinance, 1984, which is dated 27th June, 2006. He also referred page No,403, which is a possession Memo. And it is dated 21-6-2006. By referring the above he contended that he received the possession of assets of Messrs Noorie Textile Mills, (Company of the respondent) on 21-6-2006. Whereas the petition for winding up of the company was moved on 26-5-2006 and malafidely they secured ex parte order for winding up of the company.

4. ' The learned, counsel in support of his contention relied on decision reported in 1980 Delhi page 122; 2000 CLC page 1643; PLD 1984 Kar. Page 541 and further contended that the petitioner relied upon'

5. SCMR 2005 page 450 is not applicable to the facts of the present case.

6. ' Whereas on the other hand Mr. S.M. Naqvi learned counsel for the petitioner contended that the ex parte order was not obtained, the respondent's company was having very much knowledge of the petition. He referred the annexure 'C' to the petition, which is a sanction order dated October 17, 2005 and contended that it is not correct that the respondent-Company was not aware of the proceedings and the ex parte order has been obtained and he lastly contended that as the order for winding up of the company is passed and that order can only be challengeable under section 10(1) of the Companies Ordinance, 1984 before Supreme Court of Pakistan and relied on the (2005 SCMR Page 1450).

7. In the light of the above contention let see the order dated 13-12-2006, perusal of the same shows that the said order was passed in absence of the respondent and on the same day the application in hand was moved by the respondent-Company for the suspension of the ex parte order dated 13-12-2006. The record shows that vide order dated 21-12-2006 the operation of the order dated 13- 12-2006 was suspended.

8. ' The main objection of the petitioner is that as by the order dated 13-12-2006 the company was wound up and the official liquidator has been appointed, therefore, the application for setting aside the ex parte order is not maintainable under section 10(1) of the Companies Ordinance, 1984 and has placed reliance on the Supreme Court as cited above. The section 10 of the Companies Ordinance, 1984 in respect of the appeal against the Court order but it does not debar to move application before the Company Judge to set aside the order of ex parte for winding up the company.

9. ' As far as the Supreme Court's Judgment quoted in the matter is concerned is not applicable in the instant case, as it does not debar to make any application for setting aside an ex parte order of winding up of the company. The verdict of the Honourable Supreme Court pertains, to the provision for appeal under section 10(1) of the Ordinance but nowhere in the judgment it is mentioned that the ex parte order cannot be challenged. The judgment relied by the respondent, which is reported in 1980 (50) Corn cases 122 (Delhi) the ex parte order of the winding up of the company was set aside, having regard to the provision of rule 6 of the Companies (Court Rules).

10. ' Apart from the above the learned counsel for the respondent contended that even the applicant's own petition for winding up was dismissed twice but petitioner did not file any appeal. He also referred a notice issued in this petition, it is clearly mentioned in the serial No,2, which reads as under:-- "Any person, other than Official assignee, may kindly be appointed as an Official Liquidator since he is already the Official Liquidator in about 100 companies and after the recent amendment in section 321 of the Ordinance, 1984, no person can be appointed as an Official Liquidator in more than three (3) companies."

11. Moreover, this Court enquired from the petitioner's Advocate if the ex parte order was set aside, what prejudice cost to him to which he replied that no prejudice caused to him except that public will suffer at large. The decision reported in 2000 CLC 1643, wherein held that:-- "All efforts should be made to decide case on merits instead of knocking out parties on technical grounds."

12. ' In the light of the above, the ex parte order dated 13-12-2006 stands set aside and let the petition proceed on merits. Accordingly the C.M.A. No,1027 of 2006 stands disposed of. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.