Apex court transfers Binani Cement case to NCLAT

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Published: July 3, 2018 5:41:02 AM

Court said the appellate authority would decide all the points without being influenced by the May 15 order that had allowed the CoC to consider a revised offer for Binani Cement put forth by UltraTech Cement.

supreme court, apex courtA bench led by justice Rohinton F Nariman, while transferring all the cases to the NCLAT, directed the appellate tribunal to decide the case on a day-to-day basis and pronounce its judgment as soon as possible.

The Supreme Court on Monday asked the National Company Law Appellate Tribunal (NCLAT) to decide all issues related to the Binani Cement insolvency case, including the eligibility criteria of UltraTech Cement to file a revised bid.

It also transferred all the cases from the National Company Law Tribunal, Kolkata, to the NCLAT. So far, cases related to the insolvency process and eligibility of bidders were continuing at the Kolkata bench of the NCLT, appellate tribunal as well as the Supreme Court.

A bench led by justice Rohinton F Nariman, while transferring all the cases to the NCLAT, directed the appellate tribunal to decide the case on a day-to-day basis and pronounce its judgment as soon as possible. “Let all points be finally decided by the appellate authority on merits” after hearing all the parties including preliminary objections from Dalmia Bharat-controlled Rajputana Properties (RPPL) that UltraTech’s “present bid cannot be looked at all,” the bench said.

It also said the appellate authority will decide all the points without being influenced by the May 15 order that had allowed the committee of creditors to consider a revised offer for Binani Cement put forth by Aditya Birla Group’s UltraTech Cement.

The NCLAT is supposed to start hearing the case from July 10.

Senior counsel Gopal Subramanium, appearing for RPPL, argued that UltraTech Cement is ineligible to submit a resolution plan for Binani Cement under Section 29A of the Insolvency and Bankruptcy
Code (IBC) and its eligibility should be decided first.

On May 4, the NCLAT in an interim order also allowed the RP professional and the CoC to consider the revised resolution plan submitted by UltraTech, while offering RPPL an opportunity to revise its resolution plan of Rs 6,930 crore, which includes infusion of working capital and capex. UltraTech Cement’s revised offer stood at `7,900 crore, against its earlier bid of over `7,200 crore. Significantly, RPPL has not raised its offer of around Rs 6,930 crore.

The CoC on May 29 voted in absolute majority in favour of the revised resolution plan submitted by UltraTech Cement, which has offered to pay `7,960 crore. Under this plan, all the financial as well as the operational creditors will receive their complete dues.

The apex court was hearing an appeal by RPPL against the May 15 order of the NCLAT. RPPL had sought “setting aside of all consequential steps/actions” taken by RP and others pursuant to the NCLAT’s May 15 order that asked the RP to submit the revised resolution plans for Binani Cement in a sealed cover before the CoC along with his opinion on questions pertaining to conformity with the IBC.
RPPL has also challenged a May 22 order of the NCLAT that refused to stay the corporate insolvency resolution process for Binani Cement.

The petition further stated that the Dalmia group’s offer was rejected despite the same having been approved by CoC with an overwhelming majority of 99.43%. Instead of accepting approved bid, NCLAT directed consideration of a revised non-responsive and illegal offer mooted by Ultratech Cement, an unsuccessful bidder, it added.

According to RPPL, the appellate tribunal while ironically referring to the provisions and scheme of Code has erroneously laid down a procedure completely unknown to the statutory framework devised by the IBC.

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