TMI Blog2000 (9) TMI 927X X X X Extracts X X X X X X X X Extracts X X X X ..... hout first getting permission from BIFR. The suit by the Plaintiff is to restrain Defendant No. 5 from encashing the Bank Guarantee given by Defendant No. 5 to Defendant No. 1 at the instance of the Plaintiffs. The suit was filed in 1997. 3. On 4-11-1999 the Plaintiffs moved B.I.F.R. under the provisions of Sick Industrial Companies (Special Provisions) Act, 1985. BIFR on 31-3-2000 has declared the Company as a Sick Company. It is subsequent to these events that the present Motion. 4. It is the case of the Plaintiffs that once a Company is declared as a Sick Company by virtue of section 22, proceedings against the Company cannot be proceeded with further, except with the consent of the Board or as the case may be the appellate autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to under section 17 is under preparation or consideration or a sanctioned scheme is under implementation or where an appeal under section 25 relating to an industrial company is pending, then, notwithstanding anything contained in the Companies Act, 1956 (1 of 1956) or any other law or the memorandum and articles of association of the Industrial Company or any other instrument having effect under the said Act or other law, no proceedings for the winding up of the industrial company or for execution, distress or the like against any of the properties of the industrial company or for the appointment of a receiver in respect thereof and no suit for the recovery of money or for the enforcement of any security against the industrial co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court that alone have jurisdiction and further that Swiss law would be applicable. 8. Secondly can mere invocation of guarantee be said to be proceedings to hold section 22 would be applicable. The judgment in so far as Maharashtra Tubes Ltd. s case ( supra ) is concerned, relates to the first part and not to the amendment brought about by the Amendment Act of 1993. By the Amendment Act all that is stated is that a suit for recovery of money or for the enforcement of any security against the Industrial Company or of any guarantee in respect of any loans or advance granted cannot be or be proceeded with. It does not speak of any other proceedings. Therefore, only suits will not be or can be proceeded with. It does not include other p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 5 is not invoking the provisions of section 22, assuming it could invoke, the question of the Court granting any relief at the instance of the Plaintiff would not arise. 9. Even otherwise, if the Plaintiff has any grievance the plaintiffs would and if at all have to pursue the remedy according to law under section 22(3) against Defendant No. 5. Section 22 (3) reads as follows: "(3) Where an inquiry under section 16 is pending or any scheme referred to in section 17 is under preparation or during the period of consideration of any scheme under section 18 or where any such scheme is sanctioned thereunder, for due implementation of the scheme, the Board may by order declare with respect to the sick industrial company concerned that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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