Case Summary & Legal Holding

This judicial decision was delivered by the Supreme Court of Pakistan on 2022-04-28. The matter involves proceedings between Mrs. Naila Naeem Younus, etc and M/s Indus Services Limited through its Chief Executive, etc, officially reported as 2012 PLD 123. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.

Full Judgment Text & Judicial Ruling

Court Name: Supreme Court of Pakistan Judge(s): Qazi Faez Isa, Yahya Afridi Title:Mrs. Naila Naeem Younus, etc vs M/s Indus Services Limited through its

Chief Executive, etc Case No.: Civil Petition No. 4296/2019 Date of Judgment:2022-04-28 Reported As:2022 SCP 106, 2022 SCMR 1171, 2022 PCTLR 869, PLJ 2022 SC 362, 2022 PSC 1158, 2022 CLD 656 Result: Petition Allowed Judgment ORDER Qazi Faez Isa, J. This petition challenges order dated 1 October 2019, passed by the learned Company Judge of the Lahore High Court, Lahore whereby the petitioners' application for correction of the register of members of Indus Services (Pvt) Limited, bearing Registration Number 1961-1962/0001328, ('the Company') was dismissed. 2. The petitioners had invoked the company jurisdiction of the High Court under section 152 of the Companies Ordinance, 1984 ('the Ordinance') and contended that petitioner 1 (Naila Naeem Younus) held 2,050 shares in the Company , petitioner 2 (Muhammad Nadeem Younus) held 4,050 shares in the Company and petitioner 3 (Nadia Younus) held 2,050 shares in the Company; their total shareholding in the Company was 8,150 shares ('the said shares' or 'the said shareholding'), out of a total of 48,832 shares of one hundred rupees each issued by the Company . The shareholding of the petitioners was reflected in the records of the Company and in the Annual Returns of the Company (Form-A) till dated 31 October 2005, which were filed with respondent 4, the Securities and Exchange Commission of Pakistan ('the SECP') . However , in the Annual Returns (Form-As) subsequently filed with the SECP their names were removed from the register of members, and it was shown that petitioner 1 had transferred her 2,050 shares to respondent 3 (Muhammad Naeem Younus) on 1 May 2006, petitioner 2 had transferred his 4,050 shares to respondent 3 on 31 October 2006 and petitioner 3 had transferred her 2,050 shares to respondent 3 on 31 October 2006. 3. The petitioners denied having transferred the said shares to respondent 3, and alleged that their said shares were fraudulently transferred or omitted without sufficient cause and that their names were also fraudulently removed or omitted without sufficient caus e from the register of members of the Company . Therefore, on 24 August 2015, they filed an application under section 152 of the Ordinance for rectification of the Company' s register ('the1

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application'). The application was dismissed by the learned Company Judge on the ground that it had been belatedly filed; beyond a period of three years as prescribed under Article 181 of the First Schedule to the Limitation Act, 1908 ('the Limitation Act') , and in applying this provision reliance was placed on a judgment delivered by the same learned High Court Judge in the case of United Foam Industries (Pvt.) Ltd. v Joy Foam (Pvt.) Ltd. and on a judgment of the Supreme Court in the case of M. Imam-ud-Din Janjua v Thal Development Authority . 4. Mr. Khurram Raza, learned counsel representing the petitioners, was heard, his contentions were recorded (in orders dated 21 January 2020 and 17 February 2022) and notices were issued to the respondents. The learned Mr. Muhammad Khalid Chaudhry entered appearance on behalf of respondents 1, 2 and 3 ('the contesting respondents') . The SECP was represented by its Assistant Director (Litigation), Ms. Minal Tariq. The order dated 17 February 2022 had also directed the Company and respondent 3 (the purported transferee of the said shares), 'to file concise statement regarding the transfer of the said shares and if either of them have in its/his possession the transfer deeds to file photocopies thereof and bring the originals on the next date of hearing. ' Concise statement (CMA No. 2522/2022) was filed by respondents 1 and 3 wherein it was admitted that the petitioners held the said shares, and that these were not transferred pursuant to an instrument of transfer (transfer deeds). Instead, it was alleged that the said shares were transferred because fifty thousand pounds sterling was paid into a London bank account by respondent 3 on the request of petitioner 2, which amount was 'never given back' . Therefore, the said amount was adjusted, 'in lieu of their share holding in the Company .' Reference was also made to an annual general meeting of the Company held on 25 April 2006 in which the said shares were, 'forfeited by the Company and are distributed through a resolution and approval by the Directors.' 5. The learned Mr. Khurram Raza, representing the petitioners, submits that the questions which require determination are: (a) whether rectification of the Company' s register could be sought after three years, and (b) whether the purported transfer of the said shares was legal. Attending to the first question the learned counsel submits that the Ordinance did not prescribe any particular period within which rectification of a company' s register of members could be sought. The Ordinance was repealed and substituted by the Companies Act, 2017, which also does not prescribe any period within which such an application can be submitted. The learned counsel also relies upon the decision in the case of Naeem Finance Ltd. v Bashir Ahmad Rafiqui wherein, with regard to an application under the Insurance Act, 1938 , it was held that such an application need not be filed within three years as Article 181 of the First Schedule of the Limitation Act was not applicable, and that the same rationale for decision (ratio decidendi) is equally applicable to an application under the Ordinance. He further submits that the judgment of the Supreme Court in the case of M. Imam-ud-Din Janjua (relied upon in the impugned order) does not contradict the court' s earlier decision in the case of Naeem Finance Ltd; the subsequent decision in M. Imam-ud- Din Janjua was in a case under the Arbitration Act, 1940, which attracted the Limitation Act, and was also specifically attended to in Articles 158 and 178 thereof. However , none of the 29 sections of the Limitation Act, nor any of the articles of its First Schedule , mention applications for rectification of the register of members of companies. Therefore, these two decisions of the Supreme Court are reconcil able, submits learned counsel. However , if it be assumed that they are at variance, then the decision of the larger bench, in the case of Naeem Finance Ltd., will prevail. 6. With regard to the second question (b), the learned counsel submits that the contesting respondents admit the petitioners' ownership of the said shares. Therefore, the burden to establish that the same were legally transferred lay upon them, and in particular on respondent 3 to whom the same were transferred, but the legal transfer of the said shares was not established. He further states that, admittedly the said shares were not transferred through an instrument/s of transfer (transfer deed/s), as prescribed by section 76 of the Ordinance. Therefore, the petitioners cannot be deprived of the said shares, and the same should be restored to them by reinserting their names and the said shares against their respective names in the Company' s register . 7. The SECP was asked to submit its concise statement which it did (CMA No. 2678/2022). The Assistant Director (Litigation) of SECP was asked whether the manner in which the said shares were transferred from the petitioners to the respondent 3 accorded with the law and she stated that it did not, and added that what was done was in2 3 4 5 6 7

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contravention of section 76 of the Ordinance. As regards the contention (of the contesting respondents) that the said shares were forfeited, the Assistant Director states that such a concept is alien to company law. With regard to question (a), whether Article 181 of the First Schedule to the Limitation Act is applicable to an application submitted for rectification of a company' s register , the Assistant Director stated that it was not by referring to section 152 of the Ordinance, which did not mention any particular period within which an application to rectify the company' s register could be submitted. She reinforced her contention by referring to section 153 of the Ordinance which stipulates that fraudulent or illegal entries or omissions made in the said register constitute a criminal offence, and with regard to the prosecution/punishment of a crime there is no limitation period. Reference was also made to the Securities and Exchange Commission of Pakistan Act, 1997 and its Part X, titled Cognizance and Prosecution of Offences , where under cognizance of offences can be taken by the SECP , which the Assistant Director said is usually done after the register rectification dispute has been adjudicated and determined by a Company Judge, and that the said provision also does not prescribe any time period within which criminal action can be initiated. Ms. Tariq drew attention to a new provision added to the Companies Act, 2017, that is section 126(4), which has empowered the Court rectifying the regis ter to 'send a reference for adjudication for such offence' , and adds, that here too no period within which criminal action can be initiated is prescribed. In conclusion Ms. Tariq, SECP' s Assistant Director , stated that a compan y's register not only records the names of the members but also their shareholding, and that the register of members and debenture-holders is an important record of rights and must not be tampered with. In response to our further queries SECP filed concise statements (CMAs No. 2733 and 2734 of 2022). 8. The learned Mr. Muhammad Khalid Chaudhry submits that the impugned order is well reasoned and had correctly applied Article 181 of the First Schedule to the Limitation Act, and the said precedents of the High Court and Supreme Court. He states that the rationale of the decision in the case of M. Imam-ud-Din Janjua cannot be restricted to arbitration disputes or matter s which arise out of the Arbitration Act, 1940. He further states that since the decision in the case of M. Imam-ud-Din Janjua is later in time it will prevail over the decision in the case of Naeem Finance Ltd. The learned counsel also placed reliance upon the concise statement (CMA 2522/2022) filed on behalf of respondents 1 and 3, and reiterated the contentions mentioned therein. 9. We have heard the learned counsel for the contesting parties and the representative of the SECP . The contesting respondents do not dispute that the petitioners had held the said shares in the Company but state that they were transferred, or forfeited, in favour of respondent 3. The contentio ns/pleadings of the contesting respondents are that on account of the deposit of fifty thousand pounds in some account (without disclosure of name of account-holder and proof of such deposit), done to enable petitioner 2 to get a promotion in his Bank job, but without supporting such assertion with any proof, did not justify the transfer of the petitioners' property (the said shares) to respondent 3. Nor is the said transfer justified on the equally vague, and lacking in material particulars, of the purported forfeiture of the said shares, and subsequent trans fer to the name of respondent 3. The contesting respondents had utterly failed to support, let alone establish, that the purported transfer , or forfeiture, was in accordance with law. They have also not produced a single instrument of transfer with regard to the transfer of the said shares. The contesting respondents primarily relied on the purported belated filing of the application, which had sought the rectification of the register of members, and contend that such an application has to be filed within three years in terms of Article 181 of the First Schedule of the Limitation Act. 10. Before considering the impugned order it would be appropriate to examine what constitutes the register of members and debenture-holders and its significance. Sections 147 to 156 of the Ordinance attend to the Register of Members and Debenture-Holders . The law requires every company to keep a register of its members and debenture-holders and to keep this register at the registered office of the company and to make it available for inspection. Every company is also required to file every year 'a return containing the particulars specifie d in Form A of the Third Schedule' , which includes a list of members of the company and to show the number of shares held by each member . Therefore, the register is not just a register of members but also a register of the shareholding of each member . The register of members lists the owners of a compa ny and records their proprietary rights, that is, their shareholding of the company . Consequently , the integrity of the register of members is of utmost8 9 10 11 12

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importance and must be maintained. If the 'name of any person is fraudulently or without sufficient cause entered in or omitted from the register of members ' the register needs to rectified. 11. The only mention of a company in the Limitation Act is in the Explanation to section 3, which mentions 'a company which is being wound up by the Court' and the only article in the First Schedule of the Limitation Act, which mentions a company , is article 112, 'For a call by a company registered under any Statute or Act' and which prescribes a limitation period of three years. And, in the Ordinance the only mention of the Limitation Act is in section 425, which states that, 'Notwithstanding anything contained in the Limitation Act, 1908 (IX of 1908), in computing the time within which a liquidator may file a suit for the recovery of any debt due to the company , the period which elapses between the maki ng of the petition for liquidation and the assumption of charge by the liquidator , or a period of one year, which ever be greater , shall be excluded.' Neither the Limitation Act nor the Ordinance mentions an application for the rectification of the company' s register of members or denture-holders nor prescribes a particular period within which such an application is to be filed. Article 181 of the First Schedule to the Limitation is in respect of, 'Applications for which no period of limitation is provided elsewhere in this schedu le or by section 48 of the Code of Civil Procedure, 1908 (V of 1908)' , and for such applications prescribes a three years period. Therefore, the question to be considered is whether Article 181 also applies to an application for the rectification of the register of a company . 12. The Ordinance (substituted by the Companies Act, 2017) is a self-contained law and attends to all matters pertaining to companies, including the maintenance of the register of members and debenture-holders and provides the mechanism to rectify if a fraud is committed or omission made therein. The Ordinance does not prescribe any period within which an application for rectification may be submitted. Therefore, it would not be appropriate to do so on account of a tenuous connection with Article 181 of the Limitation Act. Section 152 of the Ordinance does not distinguish between rectification necessitated on account of a fraud having been committed and rectification required to correct an omission in the register of members. Fraudulent changes made to the register and omissions therefrom are both categorized as offences. There is no limitation period in Pakistan to prosecute and punish a crime; unlike some countries where there are statutes of criminal limitations . A fraudster , who had illegally transferred shares of another into his own name commits a crime and could be convicted for this offence. However , if the impugned order is upheld, the one defrauded could not get back his/her shares, if the application to rectify the company' s register was filed after a period of three years. But this irreconcilable contradiction does not arise if Article 181 is held not to apply to an application to rectify the company' s register . SECP is quite correct to state that when section 152 of the Ordinance is read with the section following it (section 153) it removes all doubts, if there were any, that the legislative intent was not to prescribe a period of limitation in filing a rectification application, or to make it subject to Article 181, or to any other provision of the Limitation Act. 13. The abovementioned two judgments of the Supreme Court, respectively relied upon by the opposing counsel, do not specifically attend to the matter of a rectification application filed under the company law. The decision in the case of M. Imam-ud-Din Janjua was relied upon by the learned single Judge, therefore, it would be appropriate to attend to it first, and then to the decision in the case of Naeem Finance Ltd. The M. Imam-ud-Din Janjua case pertained to a dispute arising out of two contracts between the Thal Development Authority and its contractor , namely , M. Imam-ud-Din Janjua. The contractor had submitted an application under section 20 of the Arbitration Act, 1940, which was contested. The Supreme Court noted that, 'The first question, therefore, that arises for consideration is as to whether Article 181 of the First Schedule to the Limitation Act of 1908 applies to such proceedings.' Hamoodur Rahman, CJ (who authored the judgment) observed 'that, after the incorporation of Articles 158 and 178 in the Third Division of the First Schedule to the Limitation Act, the view that has consistently prevailed is that the provisions of the Article [181] are no longer confined to applications under the Code of Civil Procedure' is no longer applicable. His lordship then proceeded to survey the case law , and concluded, that: 'Having examined these decisions with care, we, too, have come to the conclusion that, after the incorporation of Articles 158 and 178 in the First Schedule to the Limitation Act, which make specific provision for applications under the Arbitration Act, 1940, it is no longer possible to say that the Articles contained in the Third Division of the First Schedule to the Limitation Act apply only to applications under the Code of Civil Procedure, because, all the13 14 15 16 17 18 19 20

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other Articles contained in this Division apply to such applications. With the incorporation of Articles 158 and 178, that reason no longer holds good, and therefore, the scope of Articles 181, which is in the nature of a residuary Article, must necessarily be extended to all kinds of applications for which no specific period of limitation has been provided for either in the First Schedule to the Limitation Act or in any other Statute. To hold otherwise would lead to the anomalous result that for applications which have not been expressly provided for in the Third Division of the First Schedule to the Limitation Act there will be no period of Limitation at all. This could not have been the intention of the Legislature.' Incidentally , all the decisions which were surveyed by his lordship were in arbitration cases. 14. The decision in the M. Imam-ud-Din Janjua case did not refer to the earlier decision of the Supreme Court in the case of Naeem Finance Ltd., despite the fact that Hamoodur Rahman, CJ, had himself presided over the three-Member Bench which had decided it. It would be audacious to assume that the Court had so soon forgotten its own earlier decision. It is more reaso nable to presume that their lordships in the latter case (M. Imam-ud-Din Janjua) took for granted that the issue in that case had only determined the applicability of Article 181 with regard to its application to arbitration cases. If our understanding is correct than there is no conflict between these two decisions. But, if our understanding is not correct, and it be assumed for arguments sake, that the two decisions express contradictory opinions then the view of the larger three-member Bench (Naeem Finance Ltd.) will prevail over the smaller two-member Bench (M. Imam-ud-Din Janjua) . In Naeem Finance Ltd. it was held that, since an application under the Insurance Act, 1938 was not mentioned in any of the articles of the First Schedule to the Limitation Act, therefore, its Article 181 would not apply to such applications: 'It is, therefore, for consideration whether any period of limitation is prescribed for enforcement of the liabilities arising under the said provisions of law? It will be noticed that under section 106 of the Insurance Act, no suit is instituted but only an application is moved. Therefore, the period provided in Schedule I of the Limitation Act in respect of suits cannot be applied to proceedings arising under the above provision. The only Article which applies to applications is Article 181 of the Limitation Act, but there is consensus of opinion that this Article only applies to applications under Code of Civil Procedure. Thus under Schedule I of the Limitation Act no period of limitation has been provided for an application moved under the above provision of law .' These two judgments of this Court had considered whether the Limitation Act is restricted to suits alone. The decision in Naeem Finance Ltd. held that it was, whereas the decision in the latter case of M. Imam-ud-Din Janjua extended its scope to cases under the Arbitration Act, 1940. 15. In our opinion the matter may also be approached from another perspective. Companies are governed by their own self-contained law, which special law should not be overridden, or its scope curtailed, unless the legislative intent to do so is evident. And, such legislative intent, must be unambiguously clear when adversely affecting proprietary rights. Every company is also required to file Form-A (under section 156 of the Ordinance) and this is a public document which shows the members respective shareholding in the company . If shareholders do not diligently , and periodically , examine the company' s register of members (or Form-A filings) and resultantly do not seek their remedy within three years, to hold that they stood deprived of their shares would, in our opinion, be brutally unjust. 16. We must also pay heed to the other provisions of the Ordinance, particularly when they assist to better understand and interpret the law. The importance of a company' s register is underlined by the fact that to tamper with it constitutes a criminal offence. Section 153 of the Ordinance stipulates that, 'Anyone who fraudulently or without sufficient cause enters in, or omits from the register of members or the register of debenture-holders the name or other particulars of any person shall be punishable with imprisonment for a term which may extend to one years, or with fine which may extend to ten thousand rupees, or with both' . Under the Companies Act, 2017 the punishment for the same offence has been increased to 'imprisonment for a term which may extend to three years or with fine which may extend to one million rupees, or with both' . 17. In a number of precedents this Court has also held that there is no limitation period in respect of inheritance claims, which would include the right to shares owned by someone who has died. It would be anomalous if a21 22 23 24 25 26 27

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shareholder could not seek rectification of the register of members to assert his/her ownership to shares after three years, but after his death his/her heirs could do so. 18. Significantly , Article 181 of the Limitation Act does not state that it also applies to applications filed under the company law. Article 181 is a saving clause, and states, in general terms, that it applies to - applications for which no period of limitation is provided elsewhere . To extinguish proprietary rights without a clear and definite provision mandating this, by applying a general clause/provision of the Limitation Act, would be unconscionable. In this regard it would be appropriate to reproduce the following extract from a reputed judgment: 'It is true that provisions of the statutes of limitation must be applied without regard to equitable considerations. Those provisions are founded on the policy of law which, in the interests of the community as a whole, requires that there should be some point after which old and ancient disputes should not be agitated. The periods of limitation prescribed in pursuance of such a policy must necessarily , at least in some cases, be artificial and arbitrary and must be applied regardless of hardship in individual cases. These considerations, however , cannot apply to a case where a particular provision in a statute of limitation is not clear and definite. In construing such provisions considerations of justice and equity cannot be ignored. When more than one interpretation is fairly and reasonably possible, that which leads to manifest absurdity or injustice must be avoided. It would be a lamentable and intolerable state of law if it were not so The…

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