When the Ruias of Essar Steel approached the Gujarat High Court against the RBI/SBI/StandardChartered move to refer the company to the National Company Law Tribunal (NCLT) under the Insolvency and Bankruptcy Code (IBC), they argued the move was unfair/arbitrary for a variety of reasons. The company said it was not, for instance, a willful defaulter, that it had in fact paid Rs 3,467 crore back to banks and financial institutions over the previous 15 months and that its debt was in any case in the process of being restructured – in other words, the IBC proceedings would jeopardize this process of restructuring and repayment of the loan. Essar even invoked Article 14 (equality before the law) and alleged the central bank had chosen it for IBC proceedings solely on the basis of its outstanding loan being greater than Rs. 5000 Crores with 60% or more classified as NPAs by banks as of March 31, 2016. It was then argued “the initiation of proceedings under the Bankruptcy Code results in coercive steps including mandatory suspension of the functioning of the Board of Directors and hands over of management to Insolvency Resolution Professional (IRP)”.
While RBI deleted the part of its circular on NCLT that the Gujarat High Court objected to, it did well to point out gaps in the Essar Steel argument. For one, as it told the court, with 12% of the loans given by banks having turned NPA, the matter was quite grave. It pointed out its choice of 12 firms for IBC was not arbitrary. Essar Steel, for instance, had outstanding loans of more than Rs 45,000 crore and over Rs 31,000 crore of this had been NPA since March 31, 2016 – the list of companies chosen for quick action, RBI pointed out, met the “twin criteria of being the largest and longest standing NPAs”. Also, as RBI pointed out, the IBC process was not about winding up Essar Steel but was aimed at fast-tracking the restructuring process – RBI didn’t say, but having the insolvency sword would force promoters to be more reasonable. It also pointed out, correctly, that appointing an IRP would not change anything “because company is run by its officer and not by board of directors”.
The Gujarat High Court decision to reject the Essar Steel plea is a big win for RBI and banks since, in the period the case was being heard, many had begun to fear the NCLT process – planned as a way to fast-track resolution of cases like Essar Steel – would do the way of previous such attempts like DRTs and Sarfesai. Also, has the Essar case being prolonged, this would have prompted other firms to approach courts across the country to try and delay the NCLT process. Indeed, with Essar Steel deciding not to approach the Gujarat High Court in appeal or even the Supreme Court – it issued a statement soon after the court verdict – it would appear the Gujarat High Court message has gone out loud and clear. And that message is: lenders such as SBI have the right to invoke IBC proceedings against borrowers who are unable to repay loans, that often enough these borrowers have not tried their best to come to a quick and amicable resolution process and that, since the NCLT is a legal process, all issues that are sought to be raised before other courts will be dealt by it anyway. When 12% of bank loans have already gone bad, and more are likely to, even the slightest delay in resolution would have been costly for the nation.