Kalyan Jyoti Sengupta, J. - (1.) This is an application for stay of execution of a money decree passed against both the judgment debtors. The ground of stay of the execution is that a reference case has been taken to BIFR for making an enquiry. Such case has been admitted and received by the aforesaid authority. Therefore, the provision of section 22 of the Sick Industrial Company (Special Provision) Act, 1985 is applicable. Mr. Talukdar, learned lawyer led by Mr. Panja, Senior Advocate appearing for both the judgment debtor submit that in view of the statutory protection given, the execution cannot be proceeded with. He also draws my attention, to section 22 of the said Act, Mr. Chatterjee, learned Senior Advocate does not dispute the applicability of section 22 as against the judgment debtor No. 1. Mr. Chatterjee, however, submits that the action taken by the company is wholly mala fide and, for defeating the decretal dues this action has been taken. He argues that for this purpose, he reserves his right to place his case before the BIFR.
(2.) Mr. Chatterjee further argues that this statutory protection shall not be extended to the judgment debtor No. 2. This statutory protection has been given only to the company and the words mentioned in that section, "any guarantee in respect of any loans or advance granted to the industrial company" relates to and means the company only and not any individual guarantor. In support of his submission he relies on a decision of the Bombay High Court reported in AIR 1998 Bom 247. The expression of the aforesaid words has been made clear. Mr. Talukdar cites in support his case a decision of the Supreme Court reported in AIR 1998 SC 2064.
(3.) Mr Talukdar says that this protection should also be made applicable to the judgment debtor No. 2 since he is a guarantor and the , decree has been passed on the basis of such guarantee arising out of the loan transaction.;