Messrs KAMRAN INDUSTRIES (Pvt.) Ltd. Versus Mian AHSAN ILAHI
1. MAMOON KAZI, J.‑ ‑The deceased petitioner, namely Mst. Fatima Begum widow of H. Munawaruddin had filed a petition under section 162 of the Companies Act, 1913 before the learned Company Judge of this Court for winding up of the company namely, Kamran Industries Ltd. impleading all the shareholders of the company as respondents. The ground on which the petition was filed was that allocation of 39,200 shares of the company alleged to have been made on 11‑8‑1969 had been illegally annulled in the general body meeting of the company held on 12‑9‑1972 and also that the subsequent re‑allocation of the aforesaid shares in a subsequent general body meeting held on 4‑12‑1972 was illegal.
2. During the pendency of the aforesaid petition Mst. Fatima Begum died on 4‑7‑1977 leaving behind six sons and three daughters as her legal heirs. Thereafter an application was filed for impleading the legal heirs of the deceased a party to the petition and the same was allowed vide order, dated 28‑4‑1981 and six of the legal heirs of the deceased petitioner were impleaded in the case as petitioners Nos. 1 to 6.
3. Thereafter, it appears that some further developments took place and on 5‑9‑1982 it was resolved to transfer 1,100 shares of the Company standing in the name of the deceased petitioner to her legal heirs. A compromise later appears to have been arrived at between petitioners Nos. 1 to 6 and the respondent No. 9 and the Directors of the Company and the company itself were appointed agents for sale of the shares of petitioners Nos. 2 to 6 in accordance with Article 52 of the Company's Articles of Association. It is then alleged that thereafter the shares of the aforesaid petitioners Nos. 1 to 6 and Mrs. Gulshad Begum wife of Mian Haji Naseeruddin (Respondent No. 9) were sold to Mr. Abdul Naseer and Mr. Abdul Tahir by an agreement executed at Karachi on 28‑8‑1982 and the shares were accordingly transferred in the name of the aforesaid purchasers. Consequent upon this the petitioners Nos. 2 to 5 withdrew from the proceedings and their names were struck off from the list of the petitioners. It has also been alleged that after the above developments the company transferred its 6,547 shares to the aforesaid Mr. Abdul Naser and Mr. Abdul Tahir. The matter then once again came up before the learned Company Judge on 22‑12‑1983 and while disposing of an application for interim orders the learned Company Judge passed an order Ss follows:‑‑
4. "22‑12‑1983
5. After I heard the learned counsel for the petitioner and the respondents at some length they agreed to the disposal of the present interim application by following consent order:‑
6. "That the proposed action of the company to issue 50,000 ordinary shares pursuant to the Resolution of Board of Directors dated 30th November, 1983 shall be entirely at the risk of present management and will not affect, prejudice or alter the status of the present petitioner in any manner vis‑a‑vis the present winding up petition is concerned. It is also agreed that the shares offered to the petitioner under letter dated 7‑12‑1983 shall be kept available to them until disposal of the main petition and the petitioner will have the option to purchase the same in the end if the main petition is disposed of in favour of the company. However, if at that stage the petitioner declined to accept the same the company will be free to dispose of the same in accordance with the Articles of Association of Company."
7. Thereafter it appears that the main petition came up for final hearing before the learned Company Judge who after declining to grant the prayer for winding up of the company disposed of the petition in terms of the above consent order. The operative portion of the order is as follows :-
8. "The petitioner No. 1 and respondent No. 2 will therefore be entitled to purchase the shares offered to them vide letter dated 7‑12‑1983 provided they exercise their option and pay the same within 14 days of this order. It is an admitted position that respondents Nos. 5 and 6 and‑‑others during the pendency of this petition through negotiation/settlement' purchased the shareholdings of other shareholders in the Company. Article 56 of the Memoranda and Articles of Association of the Company makes the following provisions with regard to the transfer of such shares:‑‑
9. "56. The shares specified in any transfer notice as aforesaid shall be offered by the Company in the first place to the members in proportion to the existing shares held by them respectively and the offer shall in each case limit the time within which the same if not accepted will be deemed to be declined and may notify to the member that any member who desires an allotment of shares in excess of his proportion should ill his reply state how many excess shares he desires to have and if all the members do not claim their proportions the unclaimed shares shall be used for satisfying the claims in excess. If any shares shall not be capable, without fractions, of being offered the members in proportion of their existing holdings the same shall be offered in such proportions and in such manner as may be determined, by lot to be drawn under the direction of the Directors. If and so far as any share is not taken by the members as aforesaid it may be offered by the company to be sold to any person selected by the Directors as to whom it is desirable in the interest of the Company to admit to membership subject to Article 68 hereof.
10. The petitioner No. 1 and respondent No. 2 are, therefore, also entitled to an offer for purchase of proportion shares out of the transferred shares. The respondent company is accordingly directed to comply with the provision in the Articles of Association with regard to these shares which were sold during the pendency of this petition. Subject to above observations the petition is dismissed but there will be no‑order as to costs:"
11. The grievance of the appellant company which is being represented in this case by Mr. Abdul Rauf Shaikh, its Chef Executive, is that, the learned Company Judge by the impugned order has directed the appellant company to offer its shares for sale in terms of Article 56 of the Company's Articles of Association but the shares have already been sold during the pendency of the petition.
12. We are afraid that the appellant company in the‑first instance, has no locus standi to file the present application as the dispute in the proceedings before the learned Company Judge was between the shareholders of the company but the company itself was not a party to the proceedings. None of the share holders who were parties to these proceedings have filed appeal against the order of the learned Company Judge.. It is also evident from the impugned judgment that the petition has been finally disposed of in terms of the consent order which was passed in presence of the parties concerned on 22‑12‑1983. In the aforesaid order it was agreed by the parties that the shares offered to the petitioners under letter dated 7‑12‑1983 would be kept available to them until the A disposal of the main petition and that the petitioners would thereafter have an option to purchase the same. Under the aforesaid circumstances we do not find the impugned order to be open to exception. In our opinion, the appellant company has only to comply with the directions given in the impugned judgment. The fact that the shares were sold during the pendency of the main petition, has already been taken into consideration by the learned Company Judge and we find no reason to interfere with the judgment.
13. For the aforesaid reasons, this appeal was dismissed in limine by a short order dated 11‑11‑1987.
14. AA./K‑86/K
15. Appeal dismissed.