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Judicial Miscellaneous No. 15 of 1983, heard on 12th November, 1986.

‑‑‑Ss. 235 to 237‑‑Malpractice, misfeasance and breach of trust of delinquent Directors of Company‑‑Application against‑‑Maintainability of‑‑Petition against malpractice, misfeasance and breach of trust of delinquent Directors of Company filed by petitioners under Ss. 235 to 237 of Companies Act, 1913, held, would not be maintainable where neither any petition for winding‑up of company was already pending nor any prayer was made by petitioners for order of winding‑up of company.

‑‑‑S. 290‑‑Companies Act (VII of 1913) , Ss. 235 to 237‑‑Petition filed under Companies Act, 1913‑‑Competency‑‑Prerequisite qualification for making petition under 5.290 of Companies Ordinance, 1984 against mismanagement and malpractice in Company is that petitioner must hold 20 of issued share capital of such Company‑‑In absence of any proof of such prescribed share capital, petition filed by petitioner under Ss.235 to 237 of old Companies Act, 1913, held, could not be treated under 5.290 of Companies Ordinance, 1984.

‑‑‑S, 493‑‑Companies Act (VII of 1913), Ss.235 to 237‑‑Petition filed under Companies Act, 1913‑‑Competency under new Companies Ordinance of 1984‑‑Proceedings contemplated under S.493, Companies Ordinance, 1984 being akin to criminal proceedings and only such proceedings could be saved and tried under that section which were pending under old Act on date of enforcement of new Ordinance‑‑Petition filed under Ss.235 to 237 of Companies Act, 1913, being quite different, held, could not be treated as pending complaint under S. 493 of Companies Ordinance of 1984.

I . H . Zaidi for Petitioners.

Mansoorul Arfin for Respondents.

Date of hearing: 12th November, 1986.

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 cinder section 290 of the New Companies Ordinance (47) of 1984. 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. I . 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 B 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 Ordinance.

H. B.T./5130/K Petition dismissed

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