IN THE HIGH COURT OF SINDH AT KARACHI
BEFORE:
Mr. Justice Mohammad Shafi Siddiqui
J.C.M No.23 of 2011
United Bank Limited
Versus
Pak Rock Oil Trading Corporation (Pvt.) Limited
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Date of Hearing: |
04.05.2016 |
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Petitioner: |
Through Mr. Kazim Hasan Advocate. |
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Respondent: |
Nemo. |
a) This Hon’ble Court may be graciously pleased to order and direct that the respondent be wound up.
b) This Hon’ble Court may be pleased to appoint an official liquidator to take charge of the assets and properties, accounts and management of the respondent with full powers under the Companies Ordinance, 1984, to liquidate the respondent.
c) This Hon’ble Court may be graciously pleased to direct the Chief Financial Officer and the Chief Accountant of the respondent to submit all records of the respondent to the Nazir of this Hon’ble Court.
d) This Hon’ble Court may be graciously pleased to take action against the directors, Syed Anis Hassan and Syed Amaar Yasir Zaidi under sections 412, 413 and 414 of the Companies Ordinance, 1984.
e) This Hon’ble Court may be graciously pleased to pierce the corporate veil to determine the ownership of Prowess Trading (Private) Limited and Petro Products (Private) Limited.
f) Further and other reliefs.
g) Costs.
2. The petitioner in these proceedings has claimed winding up of the respondent company on the ground of it being unable to pay its debts. It is claimed that the respondent company obtained financial facility i.e. Non-Interest Cash Finance) to the tune of Rs.241,000,000/- with agreed markup of Rs.35,574,888/- from the petitioner out of which agreed markup in the sum of Rs.18,549,572/- was paid leaving a total sum of Rs.262,415,808/- (principal plus balance markup) as outstanding, which it (respondent) failed to pay. To substantiate such claim, the petitioner has annexed certain documents along with the petition which were also referred to during the course of arguments by the counsel for the petitioner. Such documents include sanction letter dated 19.09.2008, Agreement for financing on markup basis along with demand promissory note both dated 18.10.2008, Letter of Hypothecation for Stocks and Receivables dated 29.11.12008, Certificate of registration of charges under section 127 of Companies Ordinance, 1984 dated 01.01.2009 issued by Securities & Exchange Commission of Pakistan.
3. On failure of the respondent to clear the outstanding amount, the petitioner has also pursued the matter with the respondent company and in that process it also issued Notice of Demand dated 18.12.2009 followed by legal notice/notice under section 306 of Companies Ordinance dated 30.12.2009 but in vain. Consequently, petitioner filed suit for recovery bearing No.B-18 of 2010 before this Court which was decreed in terms of compromise on 14.04.2010 followed by execution proceedings however nothing was recovered by the petitioner as the mortgaged documents were found to be of doubtful validity. Copies of the suit proceedings are also annexed with the petition, which speak for itself.
4. The above facts clearly indicate that the respondent had failed to clear its admitted debt rather has no means/resources for such payment. Even otherwise, the respondent company failed to come forward to rebut the claim of the petitioner despite the fact that several time notices were issued to it. Even issuance/publication of notices of the main petition in terms of Rule 76 read with Rule 19 of the Company (Court) Rules, 1997 in Daily Jang and Daily Dawn in its issue of 30.09.2011 and 20.09.2011 respectively did not budge the respondent company. Thus, the averment of the petition and/or claim of the petitioner has gone un-rebutted and unchallenged. The SECP however has come forward by filing the comments in which it has admitted the claim of the petitioner to the effect that the respondent company had a charge of outstanding amount which it failed to clear. Hence, in view of above facts the respondent company is liable to be wound up.
5. As regards the prayer clause (d) to the effect that the action be taken against the directors of the respondent company under section 412, 413 and 414 of the Companies Ordinance, 1984, learned counsel for the petitioner has not forcefully argued on the subject; nor the provisions of Section 305, 306 provides any relief of such nature as mentioned in Para ‘d’ of the prayer clause. Perusal of the ibid sections would reveal that such an action can be taken by the Court only on an application of the Official Liquidator in the course/process of winding up of the company, which process is yet to commence and such recourse would still be available for petitioner.
6. Similarly petitioner has failed to substantiate its claim in respect of prayer clause (e) as nothing tangible has been placed on record to show that the two companies i.e. Prowess Trading (Private) Limited and Petro Products (Private) Limited are sister concern of the respondent company. The SECP did mention in its comments M/s Prowess Trading (Pvt.) Limited to be formerly Pak Rock Trading (Pvt.) Limited and Petro Products (Pvt.) Limited but it too has not produced any document to this effect. The directors of the two companies appear to be different from that of respondent company. Hence, are different entities. The present proceedings are not appropriate to lift the corporate veil.
7. In view of the above, it is abundantly clear that the respondent company is unable to pay its debt and hence liable to be wound up in terms of the law laid down by the superior Courts and hence this JCM is allowed to the extent of prayer clause (a) to (c) and Official Assignee of this Court is appointed as Official Liquidator who shall assume the charge of the company and proceed with the winding up of the respondent company. The petitioner is directed to deposit a sum of Rs.100,000/- with the Official Liquidator to enable him to take steps for the liquidation of the company.
Dated: Judge