Mst. BANO HASHAM ALLIBHAI vs NEW JUBILEE INSURANCE COMPANY LIMITED Ss

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Mst. BANO HASHAM ALLIBHAI VS NEW JUBILEE INSURANCE COMPANY LIMITED Ss. 3, 5, 6 & 8---Companies Act (XIX of 2017), S.17---Companies Ordinance (XLVII of 1984) [Since repealed], S. 31---Companies Act (VII of 1913) [Since repealed], S. 21---Suit for recovery of money---Unpaid dividends---Memorandum and Articles---Trust---Creation and subject---Unjust enrichment, principle of---Applicability---Plaintiff sought recovery of markup and profit on unpaid dividends retained by defendant company---Validity---Where author of trust makes a clear written declaration of trust, no actual transfer of movable trust property or trust money is necessary, and where author of trust is himself the trustee such declaration need not be registered---There was no declaration of trust by defendant Company in favor of plaintiff---Three certainties to form a trust based on judgments and provisions of law were also missing---Three missing requirements, include, (1) Defendant company intended to constitute a trust for unpaid dividends; (2) Defendant company intended to bind definite property (profit on unclaimed shares) by the trust; and (3) defendant company intended to benefit a definite person (plaintiff) in a definite way---Defendant Company was not acting as a trustee---Plaintiff voluntarily and willingly remitted funds to purchase shares that defendant company never registered, and used dividends from disputed shares for almost 37.5 years---Defendant company was bound to compensate plaintiff for unjust enrichment it had enjoyed for 37.5 years based on the orders of High Court passed in appellate jurisdiction read in the light of relevant articles of the Articles of Association of 1953, 1986 and 2007---Plaintiff was entitled to profit/interest on unpaid dividends on the basis of equity and/or unjust enrichment---Plaintiff established his claim against defendant company who was liable to compensate plaintiff in the sum of Rs.154,110,753 (net of taxes) as the equalizer profit on the dividend income retained and utilized by defendant company based on principles of equity and in the alternative, unjust enrichment---Defendant company retained plaintiff's funds arising out of the shares eventually registered in the name of plaintiff by way of Court's Order under relevant articles of the Articles of Association of 1953, 1986 and 2007 which provided an exception under the Articles of Association of defendant company that members could claim no interest---Such equalizer profit of Rs.154,110,753 was calculated based on simple interest of 5% p.a. of aggregate of unpaid dividend income of Rs.82,192,402 (net of taxes) spread over 37.5 years from 01-01-1970 to 30-06-2007 and such equalizer assumed that defendant company made annual profit of Rs.4,109,620 per year on unpaid dividends---Suit was decreed accordingly. Citation Name: 2024 CLD 781 KARACHI-HIGH-COURT-SINDH Mst. BANO HASHAM ALLIBHAI VS NEW JUBILEE INSURANCE COMPANY LIMITED S.17---Companies Ordinance (XLVII of 1984) [Since repealed], S.31---Companies Act (VII of 1913) [Since repealed], S. 21---Memorandum and Articles---Object, purpose and scope---Articles of Association always regulate relationship between a Company and its member as its shareholder---Such relationship between shareholder and Company is governed by the Articles of Association. Citation Name: 2024 CLD 781 KARACHI-HIGH-COURT-SINDH Mst. BANO HASHAM ALLIBHAI VS NEW JUBILEE INSURANCE COMPANY LIMITED S. 34---Interest on investment---Principle---Plaintiff sought imposing of interest at the rate of 14% per annum on the amount to be recovered from defendant company---Validity---Plaintiff had produced no evidence in support of and/or to justify a rate of interest/markup of 14% p.a. and failed to prove his claim for award of mark-up at the rate of 14% per annum---High Court declined plaintiff's claim for mark-up at 14% p.a. but in exercising its discretion under S. 34, C.P.C., read with the judgment of Supreme Court reported as Raja Muhammad Sadiq and 9 others v. WAPDA through Chairman, WAPDA House, Lahore and 3 others (PLD 2003 SC 290), awarded the plaintiff simple markup of 5% on Rs. 82,192,402/ from the date of filing of the suit, i.e. 03-07-2007, till the date of the decree----Mark up was allowed accordingly.

Mst. BANO HASHAM ALLIBHAI vs NEW JUBILEE INSURANCE COMPANY LIMITED Ss — 2024 CLD 781 KARACHI-HIGH-COURT-SINDH

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