In this Originating Summons the plaintiff has sued the defendant company praying for several declarations to the effect that he is the righful owner of 195 shares relating to some 90 shares in the company issued to him and some 210 shares issued jointly to him and his mother on 28.6.1986 which were withdrawn by company's Board of Directors on 23.2.1986 and for consequential orders. The Originating Summons was filed on 10.6.1991.

In 1986 in Civil Suit No. 22-44-86 the plaintiff, his mother and one other had sued the defendant company and four others, and this is not disputed, in respect of the same matter. On 7.4.1991 there was a consent order entered into by the parties to the suit and the order reads thus -

"IN THE HIGH COURT IN MALAYA AT ALOR SETAR

CIVIL SUIT NO. 22-44-86

Between

Gulzar Mohamed bin Saudagar Din

Ali Mohd. bin Buuta

Fatimah Bibi binti Chatra ... Plaintiffs [2]

And

Saudagar Din Brothers Limited

Najar Din Al-Haj b. Chattra

Sar Dar Mohd. bin S.Din

Najjah Naimtey bt. Sher Mohd.

Hasimati Bibi bt. Sudar Mohd. ... Defendants

Order

Before The Honourable Mr. Justice

Mohd. Ariff bin Dato' Othman,

Judge, High Court Malaya,

This 7th day of April, 1991 In Open Court.

Upon This Suit coming up for continued hearing this day in the presence of Mr. Francis V. Nathar of Counsel for the Plaintiffs and of Mr. SP. Annamalai of Counsel for the 1st Defendants and in the presence of the 1st defendant and of the 2nd Defendant and of the (2) two Directors of the 1st Defendants AND UPON HEARING Both Counsel aforesaid AND BY CONSENT IT IS ORDERED that the Plaintiffs abovenamed do hereby withdraw and discontinue these proceedings forthwith subject to the following viz:-

(a) that the 1st Defendant Company abovenamed be wound-up voluntarily by a resolution to be tabled at its next Annual General Meeting which shall be convened within (2) two months from date hereof and that the Petition for such voluntary winding-up shall be presented to the Honourable Court within (4) four months from date hereof and upon the 1st Defendant's undertaking not to dissipate or deal with their assets (except where necessary for the normal running of the 1st Defendant Company) until the appointment of a Provisional Liquidator in such winding-up;

(b) that the 2nd Plaintiff and the 3rd Plaintiff (who has since died and to whose estate and effects the 2nd Plaintiff has applied for Letters of Administration) shall be at liberty to file legal proceedings separately and within (2) two months from date hereof against the 1st Defendant Company for determination of [3] their claims to the total 300 shares previously held by them in the 1st Defendant Company; and

(c) that all parties to these proceedings shall bear their own prespective solicitors costs in respect of these proceedings.

GIVEN under my hand and seal this 22nd day of May, 1991.

Sgd.

SENIOR ASSISTANT REGISTRAR"

Two technical grounds have been raised on which the defendant company says the proceedings should be dismissed -

Firstly, that the defendant company had commenced winding up on 2.6.1991 under s 254 of the Companies Act 1965 (the Act) and the plaintiff had not had leave of the court under s 226(3) of the Act to commence these proceedings;

Secondly, that the plaintiff had agreed in and was required by the consent order dated 7.4.1991 to file the proceedings against the defendant company within two months of 7.4.1991, i.e by 7.6.1991, but the proceedings were not filed until 10.6.1991.

As to the first ground raised, it is not disputed that on 2.6.1991 the members of the Defendant company at an extraordinary general meeting resolved that the company be wound up under s 254(1)(b) of the Companies Act 1965 and by ordinary resolution on the same date resolved that Haji Najar Din bin Chatra, Sardar Mohamed [4] bin Saudagar Din, Habibah Bibi bte C.Bahadar Khan and Hashimati Bibi d/o Sudar Mohamed be appointed as liquidators of the company.

Section 226(3) of the Act reads,

"When a winding up order has b