Bhai AZIZUR REHMAN and 5 others vs Messrs GHAFUR TEXTILE MILLS LTD., KARACHI and 19 others

1. ' At the hearing of this petition, Mr.Mansoorul Arfin, learned counsel for respondents Nos. 8 to 19, raised a preliminary objection with regard to the maintainability of this Petition. It is urged by the learned Counsel that the petition is filed under sections 235 to 237 of The Companies Act, 1913, while neither any petitioner for winding-up of the company is presently pending nor any prayer is made by the petitioner in this petition for an order of winding-up against the company. It is an admitted position that no winding up petition in respect of the company has so far been presented and there is no prayer in this petition, for an order of winding up of the company. In these circumstances the learned counsel for the respondents rightly urged that sections 235 to 237 of old Companies Act are not attracted in the present case. Mr. I.H. Zaidi, the learned counsel for the petitioner, however, during the course of the arguments made an oral request that this petition may be treated as an application under section 290 of the New Companies Ordinance (47) of 1984.

2. I was inclined to grant this prayer made by the learned counsel for the petitioner but I find that a prerequisite qualification for maintaining a petition under section 290 of the Companies Act is that the petitioner must hold 20% of the issued share capital of the company. I have read the petition alongwith the learned counsel for the petitioner and I find that no such allegation has been made in the present petition. Mr. L.H. Zaidi, was unable to make a categorical statement in this behalf as he stated that for making such a statement he will have to seek instructions from his client. It may be mentioned here that the objection regarding maintainability of the petition has not been raised for the first time today by the learned Counsel for the respondents. This objection was raised on several earlier dates when this petition came up for hearing but in spite of that the petitioner made no attempt to amend the petition. In these circumstances, it is not possible to treat this petition as one under section 290 of the present Companies Ordinance. Mr. Zaidi, contended that this petition may be treated as a pending complaint under section 493 of the new Companies Ordinance. I have carefully read section 493 of the new Companies Ordinance and am of the view that this section prima facie has no application to the present petition in its present form. Firstly, for the reason that the proceedings contemplated under section 493 are akin to Criminal proceedings, while the frame of the present petition is quite different as it was filed under sections 235 to 237 of the old Companies Act. Apart from it, only such proceedings could be saved and tried under section 493 of the new Ordinance which are pending under the old Act on the date of enforcement of the new Ordinance. It is not disputed that no such proceedings were pending and the present petition could not be treated as pending proceedings. I, therefore, hold that the present petition is not maintainable and is dismissed as such. It is, however, clarified that dismissal of this petition will not in any way bar the remedy, if any, available to the petitioner under the provisions of the new Ordinance.