Atibir Industries Co. Ltd vs State Bank Of India
- Court
- Supreme Court
REPORTABLE
2026 INSC 1156
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos. OF 2026
@ SLP (C) Nos. 21029-30 OF 2024
ATIBIR INDUSTRIES CO. LTD. …APPELLANT
VERSUS
STATE BANK OF INDIA & ANR. …RESPONDENTS
J U D G M E N T
V. MOHANA, J.
1. Leave Granted.
2. The present Appeals arise out of a common judgment and order dated
25.07.2024 passed by the Division Bench of the Calcutta High Court in APO
No.180 of 2023 and APOT No.393 of 2023 filed by the Respondents herein.
3. The Appellant, a borrower of the consortium of banks led by the
Respondent No.1, had challenged the classification of its loan account as a
Non-Performing Asset and its subsequent assignment by Respondent No.1 in
Signature Not Verified
Digitally signed by
ARJUN BISHT favour of the Respondent No.2 which is an asset reconstruction company.
Date: 2026.10.26
16:02:05 IST
Reason:
Page 1 of 31
4. The Appellant is engaged in the business of manufacturing sponge iron,
pig iron and allied products. It availed various credit facilities including cash
credit, term loans and letters of credit from a consortium of banks led by
Respondent No.1. The credit facilities were secured by hypothecation of the
Appellant’s current assets, ranking pari passu with the other consortium banks
and of its plant and machinery ; by equitable mortgages, also ranking pari passu
over its factory land and buildings and over leasehold factory land and
commercial plots owned by two group companies ; and by the personal
guarantees of five of its promoters and the corporate guarantees of those two
companies.
5. The Respondent No.1, by letters dated 18.01.2019 and 17.03.2020,
informed the Appellant of the devolvement of bills under foreign and domestic
letters of credit and requested the debtor to regularise its loan account and
submit a cash budget covering at least until June, 2020. By letter dated
17.01.2020, the Appellant informed the Respondent No.1 of its inability to pay
the dues and undertook to regularise the account by 22.01.2020. Thereafter,
the Appellant submitted resolution plans to the Respondent No.1 including the
revised plan dated 11.06.2020 in which it acknowledged that as against a
sanctioned limit of Rs.155 crores, the outstanding cash credit was Rs.278.56
crores as on 31.03.2020 and which became Rs.302 crores as on 06.06.2020.
The Appellant attributed its default to several factors including the COVID-19
Page 2 of 31
pandemic, and relied upon three circulars dated 27.03.2020, 17.04.2020 and
23.05.2020 issued by the Reserve Bank of India (for short the “RBI”) under
which the RBI extended the moratorium on repayment up to 31.08.2020. By a
letter dated 15.09.2020, the Respondent No.1 revised the term loan repayment
schedule, fixing the first instalment on 30.09.2020. The Appellant, thereafter,
paid Rs.21,07,157/- on 01.11.2020 and Rs.80 lakhs on 11.12.2020.
6. By a letter dated 05.04.2021, Respondent No.1 informed the Appellant
that its account had been irregular since 17.01.2020 ; that the Supreme Court
vide judgment dated 23.03.2021 in Small Scale Industrial Manufacturers
1
Association v. Union of India had lifted the blanket ban on classification of
accounts as NPA ; and that the account of the Appellant had been classified as
NPA on 31.03.2021 with effect from 16.10.2020. The letter also sets out the
dues of the Appellant as Rs.310.46 crores in the cash credit account and seven
working capital loan accounts, Rs.16 crores in the term loan account and
Rs.27.05 crores in four funded interest term loan accounts. The Respondent
No.1 demanded that the Appellant should clear the overdues or submit a
comprehensive resolution plan.
1
(2021) 8 SCC 511
Page 3 of 31
7. On 17.01.2022, the Respondent No.1 issued a recall notice demanding
Rs.341 crores by way of principal along with accrued interest and other charges
from the Appellant. The Respondent No.1 also approached the Debts Recovery
Tribunal-I, Kolkata, by instituting OA No.260 of 2022 under Section 19 of the
Recovery of Debts and Bankruptcy Act, 1993 to recover a sum of
Rs.396,36,17,844.
8. In the meantime, the Respondent No.1 also filed a petition under Section
7 of the Insolvency and Bankruptcy Code, 2016 (for short the “IBC”) before
the National Company Law Tribunal, Kolkata (for short the “NCLT”) seeking
initiation of corporate insolvency resolution process against the Appellant (for
short the “NCLT Proceedings”).
9. The Appellant proposed one-time settlement to the Respondent No.1
through its letters dated 25.01.2022, 27.01.2022, 28.02.2022 and 23.05.2022.
The offer was increased from Rs.227 crores to Rs.237 crores, none of which
was accepted by the Respondent No.1. The final offer was revised to Rs.238
crores on 07.02.2023. The Appellant paid about Rs.25 crores to the Respondent
No.1 from time to time between 06.02.2021 and 25.01.2023.
10. On 08.07.2022, the Respondent No.1 issued a notice under Section 13(2)
of the Securitisation and Reconstruction of Financial Assets and Enforcement
of Security Interest Act, 2002 (for short the “SARFAESI Act”) recording the
default and the classification of the Appellant’s account as a Non-Performing
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Asset as on 16.10.2020, and directed the Appellant to pay Rs.410,26,78,340/-
along with further interest, incidental expenses and costs. The Appellant did
not respond to the above notice. On 28.10.2022, the Respondent No.1 issued a
notice under Section 13(4) of the SARFAESI Act which was recalled by a
subsequent notice dated 04.11.2022.
11. After withdrawing the notice under Section 13(4) of the SARFAESI Act,
the Respondent No.1 issued a web notice dated 10.02.2023 classifying the loan
account of the Appellant as a stressed loan exposure and placing it for transfer
to eligible asset reconstruction companies, banks and financial institutions
through e-auction. The Appellant challenged the said notice dated 10.02.2023
before the High Court by filing WPO No.428 of 2023 in which the learned
Single Judge granted an interim order dated 06.03.2023 directing the deferment
of the e-auction. Subsequently, the writ petition was withdrawn by the
Appellant on 21.03.2023 with liberty to file a fresh writ petition. On
23.03.2023, the Respondent No.1 issued a corrigendum advancing the e-
auction process of the stressed loan exposure to 24.03.2023. The Appellant on
24.03.2023 filed WPO No.722 of 2023 seeking cancellation of the web notice
dated 10.02.2023, corrigendum dated 23.03.2023 and challenging the
classification of its account as a Non-Performing Asset. It contended that the
classification was contrary to the master circular on asset classification and the
COVID-19 relief circular issued by the RBI.
Page 5 of 31
PROCEEDINGS BEFORE THE HIGH COURT: -
12. During the pendency of the writ, Respondent No.1 assigned the loan to
Respondent No.2 under an assignment agreement (for short the “Assignment
Agreement”) on 24.03.2023 for a consideration of Rs.250 crores.
13. Before the learned Single Judge, the Petitioners challenged that the
classification of the Petitioner’s account as NPA was palpably de hors the
relevant circular issued by the RBI during the pandemic period. It was
submitted that in terms of several RBI circulars extending the benefit of
moratorium to all debtors during the COVID-19 period, the Petitioner was
exonerated from paying any amount to the Respondent No.1 till 30.11.2023 ;
that the circulars dated 27.03.2020, 17.04.2020 and 23.05.2020 extended the
moratorium till 31.08.2020 ; that the cumulative effect would be that the
Appellant was exempted from paying the installments of the term loans till
30.11.2020, therefore, the default would have commenced only from
01.12.2020 and, hence the account of the Appellant could not have been
classified as NPA on 16.10.2020.
14. It was submitted that even otherwise the revised repayment schedule
dated 15.09.2020 exonerated the Appellant from paying any amount to the
Respondent No.1 till 30.09.2020 when the Appellant was required to pay an
amount of Rs.80 lakhs only. It was contended that the account could be
classified as NPA only if interest and/or installment of the principal remains
Page 6 of 31
overdue for a period of more than 90 days in respect of a term loan. Even
assuming for the sake of argument, the account was running irregular from
January, as per IRAC norms, 90 days of default was required to classify an
account as NPA. The Appellant further contended that the loan could not have
been branded as a stressed loan exposure and, therefore, it could not have been
placed for transfer to an asset loan reconstruction company. It was further
contended that the OTS proposals offered by the Appellant were not considered
and it was dealt with in a perfunctory manner. The Respondent No.1 contended
that the asset was declared as NPA and no steps were taken by the Appellant to
challenge the classification and that the bank can transfer even when loans are
not in default and not stressed loans. The Respondent No.2 submitted before
the High Court that a bank decides to assign its stressed loan exposure in
accordance with the decision taken by the banks as per their commercial
wisdom and that restructuring of stressed loans and management of Non-
Performing Asset are commercial matters which should be left to the expertise
of large nationalised bank like the State Bank of India and that a defaulting
borrower has no locus to undo an assignment in favour of the asset
reconstruction company while in default of more than Rs.342 crores. The
learned Single Judge, while examining all the issues, came to the conclusion
that the Appellant was justified in arguing that the due date of repayment was
shifted across the board till after 31.08.2020. The learned Single Judge held
that in view of the moratorium having been extended till 31.08.2020, the due
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date for the purpose of marking the account overdue was shifted till 01.09.2020
and, therefore, to classify an account as NPA, the bank had to wait for 90 days
thereafter, in terms of the 2015 circular. Hence, it was held that the
classification of the account of the Appellant as NPA with effect from
16.10.2020 was premature and clearly in contravention of the RBI Master
Circular dated 01.07.2015 read with the pandemic circular issued by the RBI
and, therefore, the declaration that the account was NPA was set aside. As a
consequence, the Single Judge set aside the assignment of the debt to the
Respondent No.2 since the account is not a stressed loan which could be
transferred to an asset reconstruction company and allowed the Writ Petition
WPO No.722 of 2023 setting aside the classification of the Appellant’s term
loan account with the Respondent No.1 as NPA with effect from 16.10.2020
and consequentially the web notice dated 10.02.2023 issued by the Respondent
No.1 for e-auction of the loan account of the Appellant as also the corrigenda
issued by the Respondent No.1. All actions taken in pursuance of the same
were quashed and reversed.
15. Aggrieved by the judgment of the learned Single Judge, two Appeals
were filed before the Division Bench of High Court by the Respondent Nos.1
and 2 herein respectively. The Division Bench by its impugned judgment dated
25.07.2024 allowed both the Appeals. The Division Bench held that the
classification of any of the credit facilities as NPA would affect the borrower
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across the spectrum of credit facilities enjoyed, as the asset classification must
be borrower-wise and not account-wise. Though this argument was not taken
by the Respondents before the learned Single Judge, the Division Bench took
the above submissions of the Respondents and held that since the account of
the Appellant had become stressed asset because of default in the cash credit
account, his term loan account can also be classified as NPA though it may not
have been NPA. The Division Bench held that assuming that the
borrower/Appellant may claim the benefit of doubt concerning the
classification of the term loan account as NPA, even then, the account of the
Appellant so far as the cash credit facilities are concerned turn NPA and,
therefore, the account was correctly classified as NPA by the Respondent No.1.
It further held that the Respondent No.1 could proceed under Section 5 of the
SARFAESI Act and sell the financial asset upon such financial asset becoming
NPA or Special Mention Account (for short the “SMA”) before the date of sale.
Though, under the SARFAESI Act the bank had issued a notice under Section
13(2) and there was a mechanism subsequently which had to be followed under
Section 13(3A) of the SARFAESI Act, if the borrower fails to discharge the
liability, the Respondent No.1, in this case, had chosen to sell its financial assets
under Section 5 of the SARFAESI Act and, therefore, it is not a measure
contemplated under Section 13(4) of the SARFAESI Act. The Division Bench
held that the date on which the account should be considered as NPA or not for
a sale under Section 5 of the SARFAESI Act, in the facts of the case, would be
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the date of publication of the web notice and it need not be pinned to the date
of NPA mentioned in the notice under Section 13(2). Hence, the Division
Bench held that the act of assignment or the process to assign the financial asset
does not violate any right of the borrower. On the issue of whether the cash
credit account having becoming NPA could be taken to declare the entire credit
facility as NPA, the Division Bench held that such an issue, though not raised
before the learned Single Judge, can be permitted to be raised for the first time
in the Appeal. The Division Bench held that the Respondent No.1-bank has
proceeded under Section 5 of the SARFAESI Act and not under Section 13(4)
thereof and in any event the Appellant-borrower has failed to discharge the
burden of rebutting the presumption that the account became NPA on the date
of the web notice which is 10.02.2023 and held that the Respondent No.1 has
acted in the manner recognized by law and, hence, allowed the Appeals filed
by the Respondent Nos.1 and 2 and dismissed the WPO No.722 of 2023.
Hence, the Appeals by the Appellant.
PROCEEDINGS BEFORE THIS COURT: -
16. When the matter was first taken up by this Court on 17.09.2024, the
Appellant was granted the short time to get instructions regarding the discharge
of the substantial part of the loan liability within a short time. Subsequent to
that, by an order dated 20.09.2024 a proposal was placed by the Appellant
before this Court to discharge the liability of Rs.250 crores in a time bound
Page 10 of 31
manner. The relevant portion of order dated 20.09.2024 of this Court reads
thus:-
“2. In compliance with the order dated 17.09.2024, the learned Senior
Counsel for the petitioner has placed on record the following proposal:
“(i) Upfront payment on or before September 25, 2024 :- Rs 25
Crores
(ii) On or before October 31, 2024 : - Rs. 50 Crores
(iii) On or before November 30, 2024 : - Rs. 50 Crores
(iv) On or before December 31, 2024 : - Rs. 50 Crores
(v) On or before January 31, 2025 : - Rs. 50 Crores
(vi) On or before February 28, 2025 : - Rs. 25 Crores”
3. As there this is a dispute concerning the total liability of the petitioner-
Company, we find that except the offer of total amount of Rs.250 crores
by the petitioner, the rest of the proposal, being just and fair, can be
accepted to save the running industry. Regarding the total liability of the
petitioner, the same can be determined by a judicial/quasi-judicial forum,
subject to further intervention by this Court. S/Shri Dr. Abhishek Mani
Singhvi and Shyam Divan, learned Senior Counsel for respondent No.2
seek one week to obtain instructions in this regard.
4. Post these matters for further consideration on 27.09.2024.
5. The petitioner shall bring a cheque of Rs.25 crores on the date fixed.
6. The parties shall maintain status quo, as it exists today, till the next
date of hearing.”
17. This Court, after considering the schedule, passed an order whereby the
offer of this total amount of Rs.25 crores and the rest of the proposal being just
and fair, in order to save the running industry of the Appellant suggested a
proposal that a quasi-judicial forum or the judicial forum can be directed to
quantify the further liability and, therefore, directed the parties to seek
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instructions in that regard. During the subsequent hearings dated 27.09.2024,
04.11.2024 and 14.10.2024, certain amounts have been paid in terms of the
undertaking by the Appellant to the Respondent No.2. On 09.12.2024, this
Court passed the following order:-
“1. Vide paragraph 2 of the order dated 20.09.2024, a schedule for
payment of Rs.250 crores by the petitioner-Company to the respondent
was laid down. As there was some dispute with regard to the total liability
of the petitioner-Company over and above Rs. 250 crores, it was
suggested that let such liability, if any, of the petitioner-Company be
determined by a judicial or quasi-judicial forum, of course, subject to
final approval by this Court.
2. Learned senior counsel for the parties jointly state that the third
installment of Rs.50 crores, which was payable by 30.11.2024 has also
been paid by the petitioner-Company.
3. Adverting to the suggestion given by Dr. Abhishek Manu Singhvi,
learned senior counsel and in deference to paragraph 3 of the above-
mentioned order dated 20.09.2024, we resolve to appoint Hon’ble Mr.
Justice Anil R. Dave, former Judge of this Court, to adjudicate the claim
for interest and/or any other liability over and above Rs. 250 crores.
4. We request Hon’ble Mr. Justice Anil R. Dave to permit the parties to
submit their claims in writing in this regard and thereafter accord one
opportunity of oral submissions to them.
5. Having regard to the facts and circumstances of this case, we request
Hon’ble Mr. Justice Anil R. Dave to give his report at the earliest, subject
to His Lordship’s convenience.
6. We are consciously not illustrating the issues that may be determined
by Hon’ble Mr. Justice Anil R. Dave, as we leave it to the parties to raise
all such issues for determination.
7. We request Hon’ble Mr. Justice Anil R. Dave to determine his own
fee, which shall be payable by the petitioner-Company.
8. Learned counsel for the parties may approach Hon’ble Mr. Justice Anil
R. Dave along with copy of this order.”
18. On 27.01.2025, this Court perused the proceedings held before Hon’ble
Mr. Justice Anil R. Dave on 02.01.2025 and found that he had not been able to
Page 12 of 31
proceed with the hearings owing to the delay on the part of the Respondent
No.2 in filing its claim. On the undertaking that the Respondent No.2 would
extend full cooperation, this Court requested Hon’ble Mr. Justice Anil R. Dave
to take up the matter on priority basis and to submit the report at the earliest.
This Court also took note of the failure of the Appellant in adhering to the
payment schedule and recorded that the instalments at serial Nos.1, 2 and 3 of
the order dated 20.09.2024 have been paid but there has been a default in
respect of serial No.4, and instalment at serial No.5 had fallen due. The Court
recorded the fact that the Appellant had handed over cheques for Rs.10 crores
to the Respondent No.2 which was accepted without prejudice to the rights of
the parties to seek further payment as per the schedule. By subsequent orders
dated 28.02.2025, 21.03.2025 and 16.05.2025 further payments were recorded
and on 15.07.2025, and it was noted that Hon’ble Mr. Justice Anil R. Dave had
submitted his report. This Court recorded the fact that the amount of Rs.250
crores have been received from the Appellant by the Respondent No.2. On
13.01.2026, this Court granted time to the parties to submit suggestions, if any,
to the report dated 09.07.2025 by Justice Anil R. Dave.
19. Both the Appellant and the Respondent Nos.2 have submitted their
suggestions to the report filed by Justice Anil R. Dave. On 07.10.2026, the
parties made elaborate submissions and on 09.10.2026, both parties filed their
written submissions and additional written submissions before this Court.
Page 13 of 31
20. Though the parties had advanced elaborate submissions before the High
Court in respect of various issues with regard to classification of the debt as
NPA and challenged the validity of the assignment in favour of the Respondent
No.2, before this Court, submissions were predominantly confined to the report
filed by Justice Anil R. Dave and as to the issue whether any sum is payable to
the assignee of the debt, namely, Respondent No.2 by the Appellant over and
above the sum of Rs.250 crores.
21. It is a fact that the issue as to classification of the asset as a Non-
Performing Asset was done with effect from 16.10.2020 retrospectively by a
letter dated 31.03.2021 by the Respondent No.1. It is also not disputed that the
classification of term loan as NPA had been done irrespective of the fact that
there was a COVID-19 circular operating by the RBI by which the moratorium
period was extended up to 31.08.2020. The Respondent No.1 had revised the
term loan repayment schedule fixing the first instalment as 30.09.2020 and
subsequently monies have been received by the Respondent No.1 on
01.11.2020 and 11.12.2020.
22. It is relevant to point out that the Respondent No.1 after issuing a recall
notice of the loan on 17.01.2022, and after filing an application for recovery
before the DRT-I, Kolkata, also filed a petition under Section 7 of the IBC
before the NCLT seeking initiation of the CIRP against the Appellant. The said
application is still pending in the NCLT.
Page 14 of 31
23. Subsequently, the Respondent No.1 also issued a notice dated
08.07.2022 under Section 13(2) of the SARFAESI Act, recording the default
of the Appellant’s account as NPA as on 16.10.2020 and demanded the
Appellant to pay a sum of Rs.410,26,78,340/- along with further interest,
incidental expenses and costs. On 28.10.2022, the Respondent No.1 issued a
notice under Section 13(4) of the SARFAESI Act, however, this was recalled
by a further notice dated 04.11.2022.
24. It is clear from the above that the Respondent No.1 has been initiating
proceedings in the DRT, NCLT and started the proceedings under the
SARFAESI Act, all simultaneously. Though this Court in the case of
2
Transcore v. Union of India and Another has held that the remedy under the
SARFAESI Act is treated as an additional remedy along with that contemplated
under the DRT Act and, therefore, withdrawal of an original application
pending before the DRT under the DRT Act is not a pre-condition for taking
recourse to the SARFAESI Act and it is for the bank or the financial institution
to exercise its discretion as to cases in which it may apply for leave and in cases
where it may not apply for leave to withdraw the DRT application before
proceeding under the SARFAESI Act.
2
(2008) 1 SCC 125
Page 15 of 31
25. This Court is also conscious of the judgment in ICICI Bank Limited v.
3
Official Liquidator of APS Star Industries Limited and Others , wherein it
has been held:-
“46. As stated above, an outstanding in the account of a borrower(s)
(customer) is a debt due and payable by the borrower(s) to the bank.
Secondly, the bank is the owner of such debt. Such debt is an asset in the
hands of the bank as a secured creditor or mortgagee or hypothecatee.
The bank can always transfer its asset. Such transfer in no manner affects
any right or interest of the borrower(s) (customer). Further, there is no
prohibition in the BR Act, 1949 in the bank transferring its assets inter
se. Even in the matter of assigning debts, it cannot be said that the banks
are trading in debts, as held by the High Court(s). The assignor Bank has
never purchased the debt(s). It has advanced loans against security as part
of its banking business. The account of a client in the books of the bank
becomes non-performing asset when the client fails to repay. In assigning
the debts with underlying security, the bank is only transferring its asset
and is not acquiring any rights of its client(s). The bank transfers its asset
for a particular agreed price and is no longer entitled to recover anything
from the borrower(s). The moment ICICI Bank Ltd. transfers the debt
with underlying security, the borrower(s) ceases to be the borrower(s) of
the ICICI Bank Ltd. and becomes the borrower(s) of Kotak Mahindra
Bank Ltd. (assignee).”
26. The Respondent No.2 has also relied upon a judgment of this Court in
Bijnor Urban Cooperative Bank Limited, Bijnor And Others v. Meenal
4
Aggarwal and Others wherein it was held that no writ of mandamus could be
issued by High Court under Article 226 directing a bank or a financial
institution to positively grant benefit of OTS to a borrower and it is always
3
(2010) 10 SCC 1
4
(2023) 2 SCC 805
Page 16 of 31
subject to eligibility criteria mentioned under the OTS scheme and guidelines
issued from time to time.
27. Be that as it may, the conduct of the Respondent No.1-bank in initiating
proceedings before the DRT and the NCLT and subsequently classifying the
assets as NPA with retrospective effect and issuing a notice under Section 13(2)
of the SARFAESI Act despite there being several communications between the
Appellant and Respondent No.1 regarding a proposed one time settlement and
the subsequent issue of notice under Section 13(4) of the SARFAESI Act which
was withdrawn by a further notice dated 04.11.2022 subsequent to which an
OTS was proposed for a sum of Rs.238 crores on 07.02.2023. In fact, towards
this OTS the Appellant had paid about Rs.25 crores during the period of OTS
talks. Because of this the e-auction notice dated 10.02.2023 issued by the
Respondent No.1 placing the loan account for transfer to eligible asset
reconstruction companies, banks and financial institutions came as a bolt out of
the blue for the Appellant. The Appellant had challenged this notice dated
10.02.2023 by filing a WPO No.428 of 2023 before the High Court and by an
interim order dated 06.03.2023, the High Court deferred the e-auction. Since
there were talks between the parties, it appears that this writ petition was
withdrawn on 21.03.2023. However, on 23.03.2023 the Respondent No.1
issued a corrigendum advancing the e-auction process of the stressed loan
exposure to 24.03.2023. The Appellant immediately preferred WPO No.722
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of 2023 seeking cancellation of the web notice dated 10.02.2023, corrigendum
dated 23.03.2023 and also challenging the classification of its account as a Non-
Performing Asset. The Appellant contended before the High Court that the
classification was contrary to the RBI’s master circular on asset classification
and the COVID-19 relief circulars. Any default would have commenced only
from 01.12.2020 and without a valid classification, the loan could not have been
transferred as a stressed loan. While the Single Judge had allowed the writ
petition, the Division Bench, by the impugned judgment, has reversed the same.
PROCEEDINGS BEFORE HON’BLE MR. JUSTICE ANIL R. DAVE: -
28. Pursuant to this Court’s order dated 09.12.2024, Hon’ble Mr. Justice
Anil R. Dave, former Judge of this Court, issued notices to the parties on
25.12.2024 and held a preliminary meeting on 02.01.2025. Respondent No.1
did not take part and abstained during the course of the proceedings.
29. The hearing took place on 11.02.2025. The Appellant stated that it was
ready and willing to pay Rs. 250 crores, along with reasonable interest from the
date the Respondent No.2 had paid that amount to Respondent No.1.
Respondent No.2 disagreed, on the ground that Respondent No.1 had assigned
its rights to it and that it was entitled to act in pursuance of those rights. The
hearing before Hon’ble Mr. Justice Anil R. Dave concluded on 06.03.2025, and
the parties were directed to place on record their short submissions.
Page 18 of 31
30. The Appellant inter alia submitted that the sum of Rs. 250 crores paid
by Respondent No.2 to Respondent No.1 was not its own money, but
Respondent No.2 was funded by CFMARC Vinimay Private Limited, which
was controlled by the Patwari Family. The Patwari family also held substantial
shares in Rashmi Metalics Limited, a competitor of the Appellant in the same
business. According to the Appellant, the Patwari Family orchestrated the
entire episode to take over its running business.
31. On the other hand, Respondent No.2 submitted that, as an assignee, it
was entitled to recover whatever amount the Appellant owed to Respondent
No.1, including interest and the penal interest. It further submitted that the 7.5%
offer was unreasonable, as the Appellant's dues already exceeded Rs. 250
Crores and therefore there is no question of the Appellant making payment of
Rs. 250 Crores to Respondent No 2. It was further submitted that, as on the date
of assignment of the debt by Respondent No. 1 in favour of Respondent No. 2,
Rs. 342 Crores was payable towards the principal amount, and interest thereon
was Rs. 112 Crores. The Appellant is therefore liable to pay the said amount,
to Respondent No.2 along with interest thereon, from the date on which the
debt was assigned to Respondent No. 2. It was also submitted that the manner
in which it funded the sum of Rs. 250 Crores was irrelevant to the Appellant's
liability. The relevant portions of the Report read as under: -
“ 28. On the other hand, the learned counsel for the Company submitted
that the Company has a right, as an assignee, to recover whatever amount,
the Petitioner had to pay to the Bank. Upon the assignment, all rights
Page 19 of 31
which the Bank had against the Petitioner, had been assigned to the
Company, and therefore the Company has to recover whatever amount
the Petitioner had to pay to the Bank, the principal amount and interest,
including the penal interest thereon.
30. According to him, the principal amount payable by the Petitioner to
the Bank as on 24 March 2023, as per the Assignment Agreement was
₹3,41,57,84,535/-. He submitted that the said amount being the principal
amount as on that date, the Petitioner is bound to pay interest thereon also.
In view of the said fact, the Company has rightly claimed a sum of ₹341
crores from the Petitioner. As a matter of fact, according to the learned
counsel, the Petitioner would be paying much less than what it was bound
to pay to the Bank, even if the Petitioner pays a sum of ₹341, crores to
the Company.
37. As the facts and circumstances of the case have already been narrated
in brief here in above, I need not repeat the same. Suffice is to state that
after hearing both sides and looking at the facts of the case, I have to
decide the amount which the Petitioner is liable to pay by way of interest
and/or any other amount over and above ₹250 crores to the Company.
39. Subsequently, perhaps some negotiations had taken place between the
Petitioner and the creditor Bank and a proposal was given by the
Petitioner to the Bank to pay a sum of ₹227 crores by way of One Time
th
Settlement on 27 January, 2022. The said offer had not been accepted
by the Bank and therefore the said offer was revised by the Petitioner on
th
15 July, 2022, whereby the Petitioner had offered ₹228 crores to the
Bank by way of One Time Settlement. Even that offer was not accepted
by the Bank and thereupon another offer was given by the Petitioner to
nd
the Bank on 22 November, 2022, which was of ₹237 crores. Even the
said offer was not accepted.
th
40. Finally, the debt was assigned on 24 March, 2023 by the Bank in
favour of the Company and as on that day, the total amount payable by
way of debt by the Petitioner to the Bank, which was assigned to the
Company, was approximately ₹453.83 crores. Out of the said amount,
₹341.95 crores approximately were towards principal amount and
approximately ₹111.88 crores were towards interest. Thus, the above
stated debt payable by the Petitioner to the Bank was assigned in favour
of the Company for a total sum of ₹250 crores. Thus, the amount paid by
the Company or the investment made by the Company was to the tune of
₹250 crores.”
Page 20 of 31
32. Hon’ble Mr. Justice Anil R. Dave held that, since Respondent No. 1 had
already assigned its right to recover the amount from the Appellant in favour
of Respondent No. 2, the pre-assignment dues of Rs. 453.83 crores were not to
be considered in satisfying Respondent No. 2. Respondent No. 2’s investment
was the sum of Rs. 250 crores paid on 24.03.2023, and it was entitled to a
reasonable return on that amount. He did not accept the 7.5% interest rate
proposed by the Appellant as the assignment was a business transaction in
which Respondent No. 2 was entitled earn a profit, and the Appellant itself had
been paying 9.9% and 13.9% to Respondent No. 1. He also noted that it appears
Respondent No. 2 had to borrow some amount to pay Respondent No. 1, but
the rate at which the amount was borrowed was not available to him. The
relevant portions of the Report read as under:-
42. If one looks at the liability of the Petitioner towards the Bank,
“
forgetting everything about the assignment in favour of the Company, the
th
total amount due and payable by the Petitioner to the Bank as on 24
March, 2023 was ₹453.83 crores. However, in my opinion, as the Bank
has already assigned its right to recover the amount from the Petitioner in
favour of the Company, there is no question of making any payment by
the Petitioner to the Bank and, therefore, the abovestated amount may not
be considered for the purpose of satisfying the Company, in whose favour
the debt has been assigned for a consideration of ₹250 crores.
43. As seen above, the Company has invested a sum of ₹250 crores on
th
24 March, 2023. That is the investment of the Company for getting the
debt of the Petitioner assigned in its favour. If the Petitioner has to get
relieved of its liability, and if the Company is to be compensated
adequately, Company should be paid reasonable return on the amount
which it has invested while getting the debt assigned in its favour.
Page 21 of 31
44. Though, it has been submitted on behalf of the Petitioner that the rate
of interest which the Company should get should be 7.5% per annum
from the date on which the debt was assigned in favour of the Company
th
i.e. from 24 March, 2023, in my opinion, the said submission is not at
all reasonable because it is not only the minimum interest that should be
paid to the Company as getting the debt assigned was a business
transaction so the Company must get something more also by way of
profit. In fact, on the working capital borrowed by the Petitioner, the
Petitioner was paying interest at the rate of 9.9% p.a. and on the term loan
at the rate of 13.9% p.a. As the Bank is not in the picture at present, the
interest which is payable to the Bank is not relevant at this stage. In any
case, the rate of interest suggested by the Petitioner is not at all
reasonable.
45. In the course of the submissions made by both sides, it appears that
the Company had to borrow some amount for making payment of ₹250
crores to the Bank while getting the debt assigned in its favour. In the
circumstances, the Company must have paid some interest to somebody.
The rate at which the amount was borrowed by the Company is not
available with me but in my opinion, the Company should be rewarded
sufficiently. ”
33. Hon’ble Mr. Justice Anil R. Dave recorded that he had requested
Respondent No.2 to submit its financial statements in order to ascertain its
normal rate of return, but it was not inclined to submit them. In these
circumstances, with the assistance of Chartered Accountant Mr Sudhir K Jain,
he computed the return on the outstanding amount after crediting the payments
the Appellant made from time to time up to 01.03.2025. The return came to Rs.
57,74,13,699 at 13% per annum, Rs. 62,18,30,37 at 14% per annum, and Rs.
66,62,46,575 at 15% per annum. He stated that these amounts were in addition
to the principal of about Rs. 100 crores that remained unpaid on 01.03.2025.
The relevant portions of the Report read as under: -
Page 22 of 31
“46. The Company should get adequate return on the amount invested by
it, which is ₹250 crores. I wanted to know the normal rate of return on the
capital invested by the Company or the profit it gets from its business.
So, I had requested the Company to submit its financial statements for a
last few years but the Company was not inclined to submit the same.
47. In the circumstances, I have to simply do some guesswork and suggest
to this Hon'ble Court as to how much return may be awarded to the
Company by this Hon'ble Court. For that purpose, I have got some
calculations done on the basis of possible returns which might be awarded
to the Company.
49. On the balance amount i.e. after reducing the amount paid by the
Petitioner to the Company from time to time, if the return on the amount
actually invested by the Company is calculated :
(a) at the rate of 13% p.a., the amount of the return (or interest) would
be ₹57,74,13,699/-.
(b) at the rate of 14% p.a., the amount of the return (or interest) would
be ₹62,18,30,137/-.
(c) at the rate of 15% p.a., the amount of the return (or interest) would
be ₹66,62,46,575/-.
50. Possibly, the above return would also include reasonable profit of the
Company. The above amount would be in addition to ₹100 crores, which
st
has remained unpaid as on 1 March, 2025. If any amount has been repaid
st
after 1 March, 2025, the capital invested by the Company would be
reduced to that extent and additional return will have to be paid on the
reduced investment to the Company. If complete details about all
payments actually made are made available, further calculations would
be provided by the Chartered Account within a week from getting the
details.”
34. He further added, in addition to the above amount, the principal amount
and return thereon, Respondent No.2 must be compensated and in the absence
of any specific details on the expenditure incurred, Rs. 50 Lakhs might be
reasonable towards the costs. At paragraph 52 of the Report, he stated that this
Court might consider awarding the aforesaid amount to Respondent No.2,
Page 23 of 31
subject to adjustment of the amount made after 01.03.2025 in order to settle the
dispute amicably, so that the Appellant could continue to do its business and
Respondent No.2 may also get reasonable return on the amount invested by it.
The relevant portions of the Report read as under:-
“ 51. In addition to the above amount, the principal amount and return
thereon, towards expenses, the Company must be compensated and in
absence of any specific details, the amount of expenditure which might
have been incurred by the Company may be quantified by the Hon'ble
Court. However, in my view, looking at the nature of the litigation, ₹50
lakhs might be quite reasonable towards costs.
52. Thus, subject to adjustment of the amount paid by the Petitioner to
st
the Company after 1 March, 2025, the Hon'ble Court might think of
awarding the aforesatated amount to the Company by the Petitioner so as
to settle the dispute amicably in the interest of both sides, so that the
Petitioner can continue to do its business and the Company may also get
”
reasonable return on the amount invested by it.
35. The report was placed before this Court on 15.07.2025 and the following
order was passed:-
“1. Hon’ble Mr. Justice Anil R. Dave, former Judge of this Court, had
sent the report in terms of our order dated 09.12.2024. Let copy of the
said report be handed over to the learned counsel for the parties.
Another copy be also tagged with the paperbook of Hon’ble Mr. Justice
Joymalya Bagchi. The suggestions, if any, be submitted by the parties
within two weeks.
2. Post the matter for further consideration on 05.08.2025.”
36. The appellant filed its suggestions by way of an affidavit dated
28.07.2025. On 13.01.2026, Ld. Counsel for Respondent No. 2 informed this
Court that the Appellant had received the entire amount of Rs. 250 Crores. The
order of that date read as follows:-
Page 24 of 31
“1. Learned counsel for the respondents informs that the amount of
Rs.250 crores has been received from the petitioner. He seeks and is
granted two weeks’ time to submit the suggestions, if any, on the report
dated 09.07.2025 of Hon’ble Mr. Justice Anil R. Dave, former Judge of
this Court.
2. It goes without saying that as soon as the liability of the assignee of
SBI (CFM ARC) is discharged, the new lender (Kaventer Capital
Limited) will have a similar charge on the property already mortgaged
to the SBI.
3. Post the matters on 03.02.2026 (NMD).”
ANALYSIS AND CONCLUSIONS: -
37. This Hon’ble Court, by its order dated 13.01.2026, directed the parties
to file their suggestions to the report filed by Hon’ble Mr. Justice Anil R. Dave.
The Appellant had filed an additional affidavit subsequent to the report stating
that it has certain suggestions towards the recommendation made in the report
that the Respondent No.2 may be entitled to a reasonable rate of return in the
range of 13% to 15% in addition to a sum of Rs.50 lakhs towards costs. The
Appellant submitted that the acquisition of the loan by the Respondent No.2 for
a consideration of Rs.250 crores was contrary to the guidelines and directives
issued by the RBI and that its bonafides are seriously disputed. It is further
submitted that the entire consideration of Rs.250 crores were not funded from
the own sources of Respondent No.2 but it was transferred to the Respondent
No.2 by an entity called CIMMCO Vinimay Private Limited in nearly 250
installments from its account with ICICI Bank to the account of Respondent
No.2 with the Union Bank of India which was subsequently transferred to the
Page 25 of 31
Respondent No.1. The Appellant also contended that Rashmi Metaliks
Limited-a company engaged in the iron and steel business and operating in the
same sector as the Appellant is under the control of Mr. Sajjan Kumar Patwari
and his sons and the very same individuals controlled the company called
CIMMCO Vinimay Private Limited. It was submitted that the Appellant’s
apprehension is that the assignment of the loan and the acquisition may be with
the objective of indirectly facilitating the takeover of its business operations in
which the Respondent No.2 has played the role of a facilitator. Hence, it was
submitted by the Appellant that any commercial return on this may not be
justified especially since the funds did not emanate from the resources of the
Respondent No.2 and the transaction itself is under doubt. Finally it was
submitted by the Appellant that in case the Court comes to any conclusion that
any financial consideration over and above Rs.250 crores has to be awarded to
the Respondent No.2, it may be restricted to a reasonable rate of interest not
exceeding 7.5% per annum which is aligned with the prevailing Maximum
Marginal Cost of Landing Rate (MCLR) and any amount beyond this rate will
potentially confer an undue benefit to the Respondent No.2.
38. On the other hand, Respondent No.2 submitted that the Appellant has
been a habitual chronic defaulter and has misused the indulgence granted to it.
It was submitted that the Appellant was granted time by this Court to effect
payment of Rs.250 crores, the Appellant did not adhere to certain timelines and
Page 26 of 31
sought modification to allow them to make a payment of the balance amount
within a period of 60 days from the date of determination by Hon’ble Mr.
Justice Anil R. Dave and sought certain deferment of the instalments from this
Hon’ble Court. The Respondent No.2 submitted that the report of Hon’ble Mr.
Justice Anil R. Dave has travelled beyond the mandate/terms of reference and
overlooked the statutory and commercial framework within which the ARCs
operate and thereby obliterating the essential distinction between the debt value
and the acquisition value. Finally, it was submitted that the exercise undertaken
in the report determining a “reasonable compensation” on the acquisition value
of the debt is contrary to settled law and inconsistent with the statutory and
commercial rights of ARCs under the governing legal framework. Therefore,
it was submitted that no further indulgence should be granted to the Appellant
and in the alternative it was prayed that the matter may be remanded for a
specific and confined determination of the total liability of the Appellant
towards the Respondent No.2 in accordance with contractual documents.
39. Heard the parties and perused the records, the report of Hon’ble Mr.
Justice Anil R. Dave and the suggestions filed by both sides and the additional
submissions filed by the Respondent No.2.
40. The facts and the conduct of the Respondents reveal that the
classification of NPA itself was under challenge and the assignment by the
Respondent No.1 in favour of the Respondent No.2 had happened in a very
Page 27 of 31
quick succession after approaching the DRT, NCLT and after initiating the
SARFAESI proceedings by a quick somersault by the Respondent No.1 all of
a sudden after rejecting the OTS offer. It is a fact that there has been no denial
about the allegations made by the Appellant as against the Respondent No.2
that the funds which have been advanced for taking over the asset from the
Respondent No.1 were advanced by a competitor in business. In this regard
the report of Hon’ble Mr. Justice Anil R. Dave also notices these contentions
and the fact that the company had not provided any of the financial statements
for the last few years despite his request to the Respondent No.2 to provide the
same. It was also noticed that the Respondent No.2 had to borrow some amount
for effecting the payment of Rs.250 crores to the Respondent No.1 while
getting the debt assigned in its favour. Though it was requested by Hon’ble
Mr. Justice Anil R. Dave to show the rate of interest at which the amount of
Rs.250 crores was borrowed to get the debt assigned, it was not produced by
the Respondent No.2. Be that as it may, it is in these peculiar facts and
circumstances and in the interest of the Appellant-company which is a running
concern that a number of employees whose livelihood will be affected and also
considering the circulars issued by the RBI from time to time and the COVID-
19 pandemic circulars, this Court has to pass an order in the interest of justice
and equity and also to balance the interest of the Appellant and the Respondent
No.2. Though there are disputed issues such as the classification of NPAs were
valid or not, whether the assignment in favour of the Respondent No.2 itself
Page 28 of 31
was valid or not in the light of the fact that the account being classified as NPA
itself was in doubt and whether the transfer in favour of Respondent No.2 is in
compliance with Section 5 of the SARFAESI Act, are all the issues which are
kept open and not gone into due to the order that we propose to make in these
proceedings.
41. Admittedly, during the pendency of the proceedings, a sum of Rs.250
crores have been advanced/paid by the Appellant to the Respondent No.2 under
orders of this Court from time to time. However, it is also a fact that in certain
schedule of payments were not adhered to by the Appellant during the
pendency of this case before this Court and the extensions were granted.
42. Though in the report dated 09.07.2025, Hon’ble Mr. Justice Anil R. Dave
has calculated interest at the rate of 13% per annum, return at the rate of 14%
per annum and 15% per annum and arrived at different amounts as on
01.03.2025, Hon’ble Mr. Justice Anil R. Dave in his report has also directed
that a sum of Rs.50 lakhs may be reasonably directed to be paid towards the
cost of litigation to the Respondent No.1. So, in the peculiar circumstances of
the case without going into any legal issues or whether the compensation
amount will have to be calculated on the basis of the debt value or the
acquisition value etc. and without expressing any opinion on the conduct of the
parties, this Court directs that a sum of Rs.125 crores over and above a sum of
Rs.250 crores will have to be paid by the Appellant to the Respondent No.2.
Page 29 of 31
We have arrived at this sum, keeping in mind the highest rate of interest at 15%
per annum as per Justice Anil R. Dave’s report and the fact that more than 18
months have passed since the report, and the costs and expenses incurred by
the Respondent no.2. This will be towards the full and final settlement of the
entire dues payable by the Appellant towards the debt assigned by the
Respondent No.1 in favour of the Respondent No.2. This amount has been
fixed without going into the issue whether it is a return on investment or
otherwise so as to bring an end to the dispute which is continued between the
parties for years. While accepting the report with the above modification, we
sincerely record our gratitude to Hon’ble Mr. Justice Anil R. Dave for
undertaking the time consuming exercise.
43. This Court is not only the Court of law but also a Court of equity and the
relief has been granted after balancing the interests of both parties and to do
complete justice between the parties.
44. In view of the above discussion, this Court passes the following
directions:-
i. The appellant shall pay to the Respondent No.2 a further sum of
Rs.125 crores, over and above the sum of Rs.250 crores already paid,
within a period of 12 weeks from today.
ii. The said sum shall act as full and final settlement of all claims of
Respondent No. 2 as against the appellant, towards the debt.
iii. On receipt of the said sum, Respondents shall together, within four
weeks, return the title deeds and release all the other securities and
guarantees held by them.
Page 30 of 31
iv. The proceedings before the NCLT Kolkata initiated under Section 7
of the Insolvency and Bankruptcy Code, 2016 and before the DRT-1
Kolkata shall stand disposed of in the light of the above.
v. As the above directions have been passed in the peculiar facts and
circumstances of the case and to balance the interest of both the
parties, it is directed that the Appellant shall strictly adhere to the
timelines as specified above i.e., 12 weeks from today for effecting
the payment of Rs.125 crores to the Respondent No.2. In case, the
Appellant does not abide by the said direction and the timeline, the
Respondents will be at liberty to revive the proceedings as against the
Appellant and it is clarified that the benefit of this judgment will not
be available to the Appellant.
45. We dispose of the Appeals with the above directions. Pending
applications, if any, shall also stand disposed of.
…………………………CJI
(SURYA KANT)
……………………………J.
(JOYMALYA BAGCHI)
……………………………J.
(V. MOHANA)
New Delhi
October 26, 2026
Page 31 of 31