The provisions of Section 22 (1) of the Sick Industrial Companies (Special Provisions) Act, 1985 bar the execution proceedings against a sick industrial company during the pendency of an enquiry before the Board for Industrial and Financial Reconstruction (BIFR).

SAMARESH BANERJEE, J.

( 1 ) THIS is an application under Art. 227 of the Constitution challenging the order No. 63 dated April 28, 1997 passed by the learned Judge, Second Court, City Civil Court, Calcutta, in Commercial Execution Case No. 24 of 1989 issuing prohibitory order upon garnishee.

( 2 ) THE opposite party No. 1 obtained a decree for money in Commercial Suit No. 8 of 1984 on 19th of Sept. 1985 against Inchek Tyres Limited and National Rubber Manufacturers Limited and thereafter in that execution case the present petitioner Tyre Corporation of India Limited was 9 added as (sic) present Corporation after nationalisation of the aforesaid Inchek Tyre and National Rubber Manufacturers Limited is the successor of the aforesaid two companies. in the aforesaid Execution case, being Commercial Case No. 8 of 1984, the present petitioner made an application on 15th of March, 1995 for suspension of the Execution case, inter alia, on the ground that the petitioner company had been declared sick unit within the meaning of Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred to as the 'said Act') and has been referred to the Board for Industrial and Financial Reconstruction (hereinafter referred to as 'the BIFR') and as an enquiry before the said Board is pending under Section 16 of the said Act, under the provisions of Section 22 (1) of the said Act the proceedings for an execution cannot continue. It appears that the said application was rejected by the learned Judge by an order passed on 18th of Feb. 1997 when none appeared on behalf of the judgment debtor/present petitioner. It appears from a copy of the order dated 18th Feb. 1997 passed by the learned Judge, produced before this Court that the said application was rejected on the ground that the present petitioner is no more interested in the said application. Thereafter by the impugned order being No. 63 dated April 28, 1997 the learned Judge has issued a prohibitory order of attachment of the Bank Account of the present petitioner lyingwith the Allahabad Bank, Chowringhee Road Branch and the said order was once again reissued on 10th June, 1997.

( 3 ) THE learned Counsel appearing on behalf of the petitioner has assailed the aforesaid order contending, inter alia, that since enquiry against the present petitioner company is pending before the BIFR and under the provisions of Section 22 (1) of the said Act neither the execution proceedings can go on nor the Court could have granted any such prohibitory order against the present petitioner, particularly when, the decree-holder did not obtain any consent from the Board.

( 4 ) MR. Bhaduri, appearing on behalf of the petitioner, in this connection, has RELIED ON the decisions of the Supreme Court in the case of Maharashtra Tubes Limited v. State Industrial and Investment Corporation of Maharashtra Ltd. reported in (1993) 2 SCC 144 : (1993 AIR SCW 991) wherein it was held, inter alia, the Supreme Court that where an enquiry is pending under Section 16 or 17 against a company, there should be cessation of coercive activities and the type mentioned in Section 22 (1) of the Act against the sic company. Reliance has also been placed on a Division Bench judgment of this Court in the case of Burn Standard Co. Ltd. v. Mc. Dermott International Inc. reported in (1997) 2 Cal LJ 1. It has been submitted by Mr. Bhaduri relying on the aforesaid decision that in view of the specific bar laid down in the aforesaid provisions under Section 22 (1) of the said Act, the learned Judge certainly could not reissue such a prohibitory order of attachment of the Bank A/c. of the petitioner company inasmuch as the same is very much in the nature of a proceeding for distress against the property of the petitioner company, namely, the aforesaid Bank A/c. and therefore, the entire action of the executing court was without jurisdiction.

( 5 ) MR. Mrinal Kanti Roy, learned Counsel appearing on behalf of the petitioner has not disp

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