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2011 (3) TMI 1457 - HC - Companies LawWinding up - petitioner-company executed a Stock Purchase and Sale Agreement with M/s. Newco Prague, s.r.o. (‘Purchaser’) for sale of 100 per cent equity interest - respondent, a company incorporated under the Indian Companies Act, 1956 and registered with the Registrar of Companies, Delhi executed a Guaranty Declaration dated 15-3-2007, whereunder it assumed the duty to pay to petitioner the unpaid instalments in accordance with the Agreement in the event of default by the Purchaser - However, purchaser did not make payment and petitioner sent demand notice to guarantor, i.e., respondent - Subsequently, petitioner filed winding up petition against respondent – Held that:- liabilities of the surety is discharged because of the ‘consideration given’ by the firm to the mills in the sense of the postponement of action by the firm against the mills. According to the petitioner, the financial position of the mills is none too good and it will be impossible for them to proceed against the mills. There can be no doubt that the firm is entitled to ignore the principal debtor and seek payment from the surety and it is not open to the surety to ask the firm to first exhaust his remedy against the firm and then come to him. respondent owes a debt to the petitioner which it has defaulted in paying. Moreover, the defence set up by respondent is a moonshine and a sham. petitioner’s application allowed
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