IN THE NATIONAL COMPANY LAW TRIBUNAL

KOLKATA BENCH-I

KOLKATA

I.A. (IB) No. 986/KB/2019

and

CP (IB) No. 1101/KB/2019

In the matter of:

A petition under section 7 of the Insolvency and Bankruptcy Code, 2016.

In the matter of:

Punjab National Bank

[formerly United Bank of India]

…Financial Creditor

Versus

Cosy (India) Ltd.

[CIN: U29299WB1982PLC035274]

…Corporate Debtor

Order reserved on: 28 April, 2022

Order pronounced on: 29 April, 2022

Coram:

Shri Rajasekhar V.K.

:

Member (Judicial)

Shri Balraj Joshi

:

Member (Technical)

Appearances (through video conferencing):

For the Financial Creditor

: Ms Urmila Chakraborty, Advocate

Mr. Debashish Chakraborti, Advocate

For the Corporate Debtor

:, Mr. Shovan Ghosh, Advocate

COMMON ORDER

[I.A. (IB) No. 965/KB/2019 and C.P. (IB) No. 1101/KB/2019]

Rajasekhar V.K., Member (Judicial)

1. This Court convened through videoconferencing.

IN THE NATIONAL COMPANY LAW TRIBUNAL

KOLKATA BENCH-I

PNB v. Cosy (India) Ltd.

I.A. (IB) No. 965/KB/2019 and

CP (IB) No. 1101/KB/2019

Page 2 of 9

I.A. (IB) No. 986/KB/2019

2. The present I.A. has been filed by Cosy (India) Ltd., the Corporate

Debtor praying for dismissal of C.P. (IB) No. 1101/KB/2019 as not

maintainable.

Submissions of Mr. Shovan Ghosh, learned Counsel apperaing for

the Applicant

3. The Applicant/Corporate Debtor submits that with the promulgation

of the Companies Act, 2013, section 185 of the Companies Act, 2013,

a Company is prohibited from furnishing any Corporate Guarantee or

security towards credit-cum-exposure to any other subsidiary or

related company. Hence, the deed of guarantee dated 09 November

2004 and 21 June 2007 are void, in view of section 185 of the

Companies Act, 2013.

4. The Corporate Debtor was not a party to the tripartite agreement dated

21 June 2007 and the first repayment date of the principal borrower

was due on 31 January 2009 but as per the report submitted before the

learned Debt Recovery Tribunal, Kolkata, the date of declaration of

Non-Performing Asset (“NPA”) on 30 September 2008.

5. The date of NPA varies from their own records of the Financial

Creditor. The Financial Creditor has already taken steps in C.P. (IB)

No. 1042/KB/2019 against the principal borrower and the principal

borrower was admitted into Corporate Insolvency Resolution Process

(“CIRP”) on 01 January 2019.

6. The Company Petition is hit by Article 137 of the Limitation Act,

1963 and therefore it is barred by limitation.

IN THE NATIONAL COMPANY LAW TRIBUNAL

KOLKATA BENCH-I

PNB v. Cosy (India) Ltd.

I.A. (IB) No. 965/KB/2019 and

CP (IB) No. 1101/KB/2019

Page 3 of 9

Submissions of Ms. Urmila Chakraborty, learned Counsel appearing

for the Respondent

7. The learned Counsel submitted that section 185 of the Companies

Act, 2013 is not applicable to the Corporate Debtor as the guarantee

was given in the year 2004 and 2007.

8. Section 18 of the Limitation Act, 1963 shall apply to the proceedings

initiated under the Insolvency and Bankruptcy Code, 2016 as held by

the Hon’ble Supreme Court in Jignesh Shah & Anr. v. Union of

India & Anr.

9. The principal borrower defaulted in payment on 31 January 2009 as

per the tripartite agreement. The date of default has been mentioned as

31 December 2005 and the Financial Creditor has not changed its

stand.

CP (IB) No. 1101/KB/2019

10. This is a Company Petition filed under section 7 of the insolvency and

Bankruptcy Code, 2016 by Punjab National Bank [formerly United

Bank of India], constituted under the Banking Companies

(Acquisition and Transfer Undertaking) Act, 1970, represented by Mr.

Nitai Chandra Jana, Chief Manager, authorized by a letter of

Authority, seeking to initiate Corporate Insolvency Resolution

Process

(“CIRP”)

against

Cosy

(India)

Limited

[CIN:

U29299WB1982PLC035274] (“Corporate Debtor”).

11. The Corporate Debtor is a company limited by shares and was

incorporated