Law: Companies Ordinance, 1984

Section: 305

Companies Ordinance (XLVII of 1984)--Ss. 306 & 305---Petitions for winding up of a company by a Banking Company filed through its attorney---Competence of person filing such petition---Determining factors-Burden to prove that person filing the petition was authorised in that behalf ---Scope---Petition for winding up of company filed by Bank (Banking Company) against a company which had availed syndicate finance but failed to pay back the loan---Contention of the company was that petition for winding up was filed by unauthorized person as no resolution passed by the Board of Directors of the Bank (filing the petition) had been placed on record and objected to the filing of the resolution and the power of attorney at hearing stage-Validity-Held, objection regarding competence to institute the proceedings could only be decided after reference to the Articles of Association of the Company (Bank) front where it had to be seen as to whether the person delegating the power was competent to delegate such powers to the persons instituting the proceedings---Company (Bank) had to act in accordance with the Articles of Association and it was the provisions of Articles of Association which told as to which person had the power to institute legal proceedings---When a company was instituting legal proceedings it had to establish that proceedings had been instituted competently and authorisedly---Even in case of persons instituting the proceedings having power of attorneys in their favour had to prove that they were duly authorsied to institute the proceedings and this could only be done by referring to the Articles of Association-Reference to Articles of Association was necessary to determine whether the powers were conferred on real person or artificial person or body---Burden to show that the petition for winding up of the company was filed by the authorized attorney was upon the Banc which it failed to discharge---Where there was any defect in the institution of the winding up proceedings i.e. same having been instituted unauthorisedly and incompetently, the said defect was incurable---Neither any resolution passed by the Board of Directors of the Bank had been…

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