The cement company is facing insolvency proceedings for dues of more than Rs 7,000 crore
The Supreme Court on Monday refused to restrain the resolution professional (RP) and the committee of creditors (CoC) of Binani Cement (BCL) from finalising or implementing any resolution plan without safeguarding interests of its operational creditors. BCL is facing insolvency proceedings for dues of more than Rs 7,000 crore. A bench led by Chief Justice Dipak Misra, while issuing notice to the Centre and others, refused to pass any interim order as sought by the Binani Operational Creditors Forum (BOCF), which has also challenged various provisions of the Insolvency and Bankruptcy Code (IBC), 2016. It also impleaded Rajputana Properties (RPL), the wholly-owned subsidiary of Dalmia Cement (Bharat), as party to the case. The committee of creditors (CoC) of BCL had approved the offer of `6,350 crore by the Dalmia Bharat firm for the debt-ridden firm on March 14 under the IBC.
Seeking protection of their rights and interests, BOCF alleged discrimination against different classes of creditors under the IBC and asked for participation in the meetings of the CoC and the National Company Law Tribunal (NCLT), Kolkata, before implementation of any such resolution plan in Binani Cement without securing their interests.
Pointing out at the discriminatory treatment meted out to the class of operational creditors and preferential treatment given to the financial creditors, it said IBC was created for protecting the interests and rights of all the stakeholders including both financial and operational creditors. Making the rights of operational creditors subservient to those of financial creditors, is contrary to law and in violation of Article 14 (equality before law), 19 (1) (g) (freedom of profession,trade) and 300 A(right to property) of the Constitution of India, the petitioners stated.
Meanwhile, the apex court asked the Attorney General to respond to various issue raised in three other petitions filed by Swiss Ribbons, Shivam Water Treaters and Dr Ganesh Prasad Pandey, challenging various provisions — Sections 3(12), 5(7), 6, 7, 12, 29, 62, 214(f), 231 and 238 – of IBC and Sections 409(2) and 419 of the Companies Act, 2013, and want the apex court to declare them as ultra vires of the Constitution of India. They also want that the SC set aside the appointments made to NCLT and NCLAT prior to 2018.
Relying on the 2015 judgment rendered by the Supreme Court in Madras Bar Association vs Union of India that struck down Section 412 of the Companies Act, it said that this provision was amended only in 2018 subsequent to the appointments, thus all the appointments made to NCLT and NCLAT are invalid under the provision of law. The cases have been posed for further hearing on May 3.