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TMI Blog2001 (8) TMI 1234X X X X Extracts X X X X X X X X Extracts X X X X ..... fendant. JUDGMENT LA. No. 6868 of 2000 in S. No. 2558 of 1999 1. This is an application under section 442 of the Companies Act, 1956 on behalf of Defendant No. 1 for the stay of the suit on the ground that winding up petition being CP No. 79 of 1995 was admitted by the Company Judge of the Gujarat High Court on 15-2-2000 and subsequent thereto BIFR exercising the powers under the Sic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arantor could be absolute third parties or directors of an industrial company. However, in both cases it would be the guarantors, whether third parties or directors, who would be affected personally; and we see no reason to interpret the section in such a manner that apart from the properties of the industrial company, the Legislature intended to protect the personal interest of the guarantors as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust give effect to them as they stand and cannot demur on the ground that the Legislature must have intended otherwise. The Supreme Court further held that respondent's suit for the enforcement of the guarantees in respect of the loans granted to the company cannot be proceeded with unless consent as required by section 22 is obtained. Since the aforesaid position of law as to the stay of procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with clean hands. Latin axiom suppressio veri suggestio falsi and dolus malus has been a guiding factor since ages. Had defendants disclosed these proceedings to the plaintiff, the plaintiff would have never advanced loan to it. Only a naive or fool would advance a loan to not only a drowing company but the company that has already sunk deep. The defendants procured this loan by either hoodwink ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o protection under section 22 as the Supreme Court has also held in Official Liquidator v. Dharti Dhan (P.) Ltd. [1977] 47 Comp. Cas. 420 their stay under section 442 of the Companies Act should not be ordered mechanically but must be made judicially upon an examination of all the facts and circumstances. 6. In view of the foregoing reasons, I am not inclined to allow the application and d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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