| Citation(s) |
|---|
| 1999 SLG 644 1999 SLD 644 1999 PLD 1 1999 PTCL 436 |
Supreme Court of Pakistan
Civil Appeal No.576 of 1997, decision dated: 3rd November,1998. (On appeal from the judgment dated 25-4-1997 of theHigh Court of Sindh, Karachi in J. M. No. 124 of 1994)
AJMAL MIAN, C.J.MUNAWAR AHMED MIRZA AND CH. MUHAMMAD ARIF, JJ
Fazal-e-Ghani Khan, Advocate Supreme Court and M.A.Zaidi, Advocate-on-Record for Appellant.Aftab Ahmed Khan, Advocate Supreme Court and Ejaz M. Khan, Advocate-on-Record.
Civil Appeal No.576 of 1997, decision dated: 3rd November,1998. (On appeal from the judgment dated 25-4-1997 of theHigh Court of Sindh, Karachi in J. M. No. 124 of 1994)
AJMAL MIAN, C.J.MUNAWAR AHMED MIRZA AND CH. MUHAMMAD ARIF, JJ
Fazal-e-Ghani Khan, Advocate Supreme Court and M.A.Zaidi, Advocate-on-Record for Appellant.Aftab Ahmed Khan, Advocate Supreme Court and Ejaz M. Khan, Advocate-on-Record.
Messrs PLATINUM INSURANCE COMPANY LIMITED, KARACHI through Managing DirectorvsDAEWOO CORPORATION, SHAIKHUPURA through Director Administration and Finance
Law:
Section:
(a) Contract------- Building/construction contract---"Mobilisation advance" and "performance bond" --Objects and distinction between the two.In building/construction contracts it is common practice that an employer pays certain amount as mobilisation advance to the contractor upon the execution of the contract document against an unconditional Bank guarantee or an Insurance Company Guarantee, in order to enable the contractor to commence execution of the work by bringing at the site the equipment and material. Whereas a performance bond is executed on behalf of a contractor in order to ensure that the contract work is completed and in case of failure. the surety who executed the performance bond has to indemnify- the employer. If one was to compare the language used in the Mobilisation Advance Guarantee and the language employed in the Performance Bond. it becomes evident that the former is unconditional, whereas the latter is conditional. (b) Companies Ordinance (XLVII of 1984)--- ----S. 306---Winding up of company by Court---Circumstances/events from which it can be inferred that a company is deemed to be unable to pay its debts for the purpose of winding up, enumerated---Demand referred to in S.306(1)(a) of the Companies Ordinance, 1984 shall be deemed to have been duly given under the hand of the creditor if same is signed by an agent or legal adviser duly authorised on his behalf, or in the case of a firm if that is signed by such agent or legal adviser or by any member of the firm on behalf of the firm. Subsection (1) of section 306 of the Companies Ordinance, 1984 indicates that it provides, by fiction of law, three events/circumstances from which it can be inferred that a company is deemed to be unable to pay its debts for the purpose of a winding up petition, namely, (i) if a creditor, by assignment or otherwise, to whom the company is indebted in a sum exceeding one per cent. of its paid-up capital or fifty thousand rupees, whichever is less, than due, has served on the company, by causing the same to be delivered by registered post or otherwise, at its. registered office, a demand under his hand requiring the company to pay the sum so due and the…
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