LAHORE DEVELOPMENT AUTHORITY, LAHORE through its Director General, L.D.A. and anothers vs INVESTMENT CORPORATION OF PAKISTAN, KARACHI and others

ORDER

' MIAN HAMID FAROOQ, J.---Lahore Development Authority etc., through the filing of the present appeal, have called in question order dated 6-12-2001, whereby the learned Company Judge of this Court directed the appellants to revive the allotment of plot in favour of Messrs Leatherite (respondent No,7) and thereafter as and when the official liquidators execute the sale-deed, effect shall be given to the same in the L.D.A. Record by way of entry of transfer in favour of the purchaser.

2. Precisely stated the facts, relevant for the decision of the present appeal, are that respondents Nos,2 to 6 filed a winding-up petition (C.O. No,2 of 1990), against respondent No,7, invoking the companies jurisdiction of this Court and thereupon the learned Company Judge, vide judgment dated 12-3-1998, passed a winding-up order and two joint official liquidators were appointed.

During the subsequent proceedings, the official liquidators disposed of the factory premises of the Company, situated at Township Industrial Area, Kot Lakhpat, Lahore, for a sum of Rs,20.500 million, which bid was approved by the learned Company Judge, vide order dated 3-5-2001. The said total consideration price was paid to the official liquidators, the possession of the factory was delivered to, the purchaser and the official liquidators were directed to execute the sale-deed in favour of the purchaser. It transpired, later on, that the appellants' bid cancelled the afore-noted Industrial plot from the name of Messrs Leatherite, which necessitated the filing of an application (C.M. No,676-L of 2001) by the auction-purchaser before the- learned Company Judge, which was disposed of, vide order dated 6-12-2001, with the afore-noted directions to the appellants, which promoted them to assail the said order through the filing of the present appeal.

3. Learned counsel for respondent No,8 has raised preliminary objection regarding the maintainability of the present appeal on the ground that since the impugned order was passed by the learned Company Judge, after the passing of the winding-up order, therefore, the appeal was competent before the august Supreme Court of Pakistan and the appeal before this Court is untenable. In this regard, reliance was placed on unreported judgments passed by this Court in I.C.A. No,14-L of 2001 and by the august Supreme Court of Pakistan in C.P.L.A. No,765-L of 2002.

Conversely, learned counsel for the appellants, while placing reliance on Agha Fakhruddin Khan v.

Messrs Ruby Rice and General Mills Ltd. And others 2001 YLR 1797, has contended that the appeal is maintainable before this Court.

4. The question now involved in the present case is as to whether after the passing of the winding- up order, an appeal against the subsequent order passed by the learned Company Judge, will lie to the Honourable Supreme Court or before the Division Bench of this Court. Section 10(1) of the Companies Ordinance, 1984 provides, that 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 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". Division Bench of this Court in the appeal I.C.A. No, 14-L of 2001 Nilon Nylon Mills Ltd. v. PICIC, etc. While relying upon M.

Suleman & Co. Through Managing Partner v. Joint Official Liquidators and another 1997 CLC 260 (Lah.) and Brother Steel Mills Ltd. And others Mian Ilyas Miraj and 14 others PLD 1996 SC 543 has held that in view of section 10(1) of the Companies Ordinance, where a winding-up order has been passed, an appeal against any subsequent order will lie to the Supreme Court and not before Division Bench of this Court. In this judgment, the case of Agha Fakhruddin Khan (ibid) cited by the learned counsel for the appellants was also considered by the Division Bench and it has been held as under:- "We have considered the case-law cited by learned counsel for the parties. With due respect to the learned Full Bench of the Sindh High Court, in our humble opinion, the interpretation placed on section 10(1) of the Companies Ordinance in the two cases cited by learned counsel for the respondents is more consistent with the principles applicable to interpretation of statutes. In this view of the matter we find that this appeal is not maintainable. It is, therefore, dismissed."

' The afore-noted judgment was challenged before the Supreme Court of Pakistan in a petition (C.P.L. No,765 of 2002) Nilon Nylon Mills Ltd. v. PICIC but the afore-noted view taken by the Division Bench was upheld by the Supreme Court of Pakistan. While dilating upon the maintainability of the appeal in such-like cases, the Honourable Supreme Court of Pakistan, in case of Nilon Nylon Mills Ltd., ibid has held as under:- "Under section 10(1) of the Ordinance after. The winding-up order which is under challenge before this Court, the other order passed subsequently by the Company Judge would not be maintainable before the High Court. It would certainly create an anomalous situation if the interim order passed by the Company Judge subsequent to the passing of winding-up order is maintained, before a Division Bench of the High Court when the winding-up order is already under challenge before this Court."

5. Now coming to the present case, as noted above, the winding-up order was passed as far back as on 12-3-1998 and during the subsequent proceedings, the impugned order was passed on 6-12- 2001. Being guided by the aforenoted case-law, we are of the firm view .That as the impugned order was passed by the learned Company Judge, after the passing of the winding-up order, therefore, as per the dictum laid down in the aforenoted cases, the present appeal is not competent before this Court in view of section 10(1) of the Companies Ordinance, 1984. The objection raised by the learned counsel for respondent No,8 is upheld and the appeal is found to be untenable under the law.

6. Upshot of the above discussion is that the present appeal is incompetent and not maintainable, thus, the same is dismissed with no order as to costs.