"IN THE NATIONAL COMPANY LAW TRIBUNAL DIVISION BENCH, COURT NO. II KOLKATA Company Petition CP (IB) No. 102/KB/2023 An Application under Section 7 of the Insolvency and Bankruptcy Code, 2016, read with Rule 4 of the Insolvency and Bankruptcy (Application to the Adjudicating Authority) Rules, 2016. IN THE MATTER OF: INDIAN BANK [PAN: AAACI1607G] … Financial Creditor/ Applicant. Verses ATIBIR INDUSTRIES COMPANY Limited [CIN: U003312B2000PLC118392] … Corporate Debtor/ Respondent. Date of Pronouncement: January 01,2024. Coram: SMT. BIDISHA BANERJEE, MEMBER (JUDICIAL) SHRI. D.ARVIND, MEMBER (TECHNICAL) Appearance: For the Financial Creditor: 1. Mr. Santosh Kumar Ray, Advocate 2. Ms. Rituparna Sanyal, Advocate For Corporate Debtor: 1. Mr. Ranjan Bachawat, Senior Advocate 2. Mr. Arijit Bardhan, Advocate 3. Mr. Soumyajit Mishra, Advocate 4. Mr. S. Dasgupta. Advocate ORDER PER Bidisha Banerjee, Member (Judicial): 1. This Court is congregated through hybrid mode. 2. Heard the Learned Counsels for both parties. Factual matrix: 3. This instant application is filed under Section 7 of the Insolvency and Bankruptcy Code, for brevity I&B Code, read with Rule 4 of the Insolvency and Bankruptcy (Application to the Adjudicating Authority) Rules, 2016, by “INDIAN BANK”, hereinafter referred to as “Financial Creditor” (“Applicant”/ “FC”) against “M/S. ATIBIR INDUSTRIES CO.LIMITED”, hereinafter referred to as IN THE NATIONAL COMPANY LAW TRIBUNAL DIVISION BENCH, COURT NO. II KOLKATA Indian Bank v. M/s. Atibir Industries Co. Limited Company Petition CP (IB) No. 102/KB/2023 Page 2 of 5 “Corporate Debtor” (“Respondent”/ “CD”) seeking direction to initiate Corporate Insolvency Resolution Process (for brevity “CIRP”) in respect of the Corporate Debtor. 4. The Corporate Debtor was incorporated on February 12, 1996, having the Authorized Share Capital of Rs. 40,09,80,000/- only and the Paid-up Capital of Rs. 31,80,59,340/- only (MCA Master Data of the Corporate Debtor is annexed at Page 51-54 as Annexure “A” to the Application). 5. It is claimed that the Total Amount of Debt default and due is of Rs. 90,19,99,970.36/- as on 31.01.2023. 6. Submissions of the Ld. Counsel for the Applicant: 6.1. Ld. Counsel for the applicant submits that the instant application under section 7 of IBC 2016 has been filed in 2023 within 3 years, hence it has been filed within the period of limitation as prescribed under the relevant provisions of the limitation Act as well as IBC, 2016. 6.2. Ld. Counsel for the applicant submits that the Financial Creditor has not taken any coercive steps against the Corporate Debtor till 25.03.2022 when the first recall notice was issued by the Financial Creditor and demand notice issued on 07.07.2022 and guarantee was invoked on 07.07.2022 and guarantee was invoked on 17.07.2022 which is not coming under the preview of Section 10A of the Insolvency and Bankruptcy Code, 2016 which came into effect on 05.06.2020. 6.3. However, the total amount claimed to be in default is Rs. 90,19,99,970.36 as on 31.01.2023. 6.4. Ld. Counsel for the applicant Financial Creditor would place the particulars about the financial debt as in part IV of the petition. 6.5. Ld. Counsel for the applicant would submit that the loan amount of the Corporate Debtor became irregular initially on 06.11.2019 which was continued till 05.12.2019 and again the said loan account become irregular / IN THE NATIONAL COMPANY LAW TRIBUNAL DIVISION BENCH, COURT NO. II KOLKATA Indian Bank v. M/s. Atibir Industries Co. Limited Company Petition CP (IB) No. 102/KB/2023 Page 3 of 5 overdrawn from 11.06.2020 and accordingly loan account become default on 30.09.2020 as per the prudential norms of RBI. 6.6. The Loan Account classified as NPA on 27.12.2020 as per RBI Guidelines, in terms of the COVID-19 Regulatory Package announced by the RBI vide Cir No. RBI/2019-20/186/DOR. No.BP. BC.47/ 21.04.048/ 2019-20 dated 27.03.2020 the borrower was granted a moratorium of 3 months on payment of installments (principal and interest). Further the RBI vide its Cir No. RBI/2019-20 DATED 17.04.2020 advised to exclude the moratorium / deferment period from the number of days past due for the purpose of asset classification under the IRAC norms in respect of all facilities classified as standard including SMA. 6.7. Ld. Counsel for the applicant would submit that the RBI issued further guidelines vide CIR No. RBI/2019-20/244. D.O.R No. BP.BC.71/21.04.048/2019-20 dated 23.05.2020 and the said account is still continuing under the category of Non Performing Account (NPA) and the Corporate Debtors has admitted their liabilities under the said loan account and acknowledged the debts from time to time. 7. Submissions of the Ld. Counsel for the Respondents, per contra: 7.1. At hearing, the Ld. Counsel for the respondents would allege that the applicant has categorically admitted in its application itself at Page 43 that the default occurred on 30.09.2020 and the account become NPA on 27.12.2020 and both the dates is hit by Sec 10A of the I&B Code. Therefore, the petition is not maintainable. 7.2. Ld. Counsel for the respondents would bring to our notice the decision of the Hon’ble High Court at Calcutta in WPO/1440/2023 in the matter of Atibir Industries Co. Ltd vs. Indian Bank. The High Court in the said matter had passed the following order as under: IN THE NATIONAL COMPANY LAW TRIBUNAL DIVISION BENCH, COURT NO. II KOLKATA Indian Bank v. M/s. Atibir Industries Co. Limited Company Petition CP (IB) No. 102/KB/2023 Page 4 of 5 “The expression “overdue” which is a pre-requisite for classifying an account as NPA, cannot commence till the last date of repayment of the loan. As the Masters Circulars of the RBI extended the last date for repayment of the loan till November 30, 2020, it would be absurd to argue that the period of 90 days for treating an account as NPA, would commencement from prior to the said last date of repayment. Since the borrower was at liberty, by virtue of the Circulars, to repay the loan till November 30, 2020, the first commencement date possible for the 90 days required to label an account NPA (for a loan which fell due during the Covid period) has to start from November 30, 2020. In so far as the bank having granted the moratorium to the petitioner, the same is , in the least, an arguable issue, even if a stray sentence was spared by the bank in its application under Section 19 filed before the Tribunal , which has been referred to in paragraph 17 of the present writ petition and a copy whereof has been handed over to Court on behalf of the petitioner. Thus, such arguable question can only be decided conclusively, upon exchange of affidavits, at the final hearing of the writ petition, and not at this stage. Thus, the petitioner has made out sufficient prima facie case for a full - fledged hearing of the writ petition on the issues as indicated above. Hence, since the writ petition might, is allowed to be held, the writ petitioners are entitled to an interim order as prayed for in the writ petition. Accordingly, the respondents are restrained by an order of injunction from proceeding on the premise of, or giving any effect to, the impugned proposal for sale of NPAs to ARCs/NBFCs/FIs/Other Banks, annexed as annexure P-6 at page 50 of the present writ petition, till September 30, 2023, or until further order, whichever is earlier.” IN THE NATIONAL COMPANY LAW TRIBUNAL DIVISION BENCH, COURT NO. II KOLKATA Indian Bank v. M/s. Atibir Industries Co. Limited Company Petition CP (IB) No. 102/KB/2023 Page 5 of 5 8. We have duly considered the argument advanced by the Learned Counsels for both the parties and perused the documents along with the order passed by Hon’ble High Court in Atibir Industries Co. Ltd. v. Indian Bank in in WPO/1440/2023. It is evident from at page 9 of the said order of the Hon’ble Court at Calcutta, has restrained the Indian Bank as under: “the respondents are restrained by an order of injunction from proceeding on the premise of , or giving any effect to, the impugned proposal for sale of NPAs to ARCs/NBFCs/FIs/Other Banks, annexed as annexure P-6 at page 50 of the present writ petition , till September 30, 2023 , or until further order, whichever is earlier”. 9. It is further evident that the same matter has been listed for hearing in the monthly list of January 2024, as reflected in order dated 29.11.2023 of the Hon’ble High Court at Calcutta and is yet to be disposed of. 10. In view of above and having considered the fact that the claim is hit by the provisions of Section 10A of the I&B Code as explained above, the present petition stand dismissed. 11. No Costs. 12. Certified Copy of the order, if applied for with the Registry of this Adjudicating Authority, may be supplied for with necessary compliances as required for. D. Arvind Bidisha Banerjee Member (Technical) Member (Judicial) This Order is signed on 1st Day of January 2024. Tiwari. V. [LRA] "