The Supreme Court’s disinclination to interfere in the Insolvency and Bankruptcy Code (IBC) process and entertain a petition by Binani Industries to terminate insolvency proceedings against it—this would have allowed it to pursue an out-of-court settlement with Ultratech for the sale of its subsidiary, Binani Cement—puts to rest any doubts or concerns over the sanctity of the IBC. The apex court’s stance sends out a clear message that the IBC must be upheld and not waylaid by settlements outside its purview; in other words, the winning bid as decided by the IBC process, must be respected.Ultratech’s failure to buy Binani Cement through an out-of court-settlement, after it lost out to Dalmia Bharat in the bidding process, will be a lesson for prospective buyers of distressed assets. As one legal expert put it, they will now make sure their bid is the best one, and that there will be no second chance. It will ensure that buyers are serious about the resolution plan that they put forward, and not hope to get away by quoting a lower price.
Legal experts have pointed out that the Committee of Creditors (CoC) must ensure they frame the evaluation criteria well and then evaluate the bids properly so that they get the best deal. Ultimately, the CoC plays a crucial role in deciding the winner, and since they are also often the biggest stakeholders, they must ensure they do a thorough job. In an affidavit before the Kolkata bench of the National Company Law Tribunal (NCLT), Ultratech observed that had its offer been “considered on 14.3.2018 and was evaluated in comparison with the Offer of Dalmia Cement Ltd, the applicant can state with confidence that it would have been impossible for Committee of Creditors to reject the Offer made by the Applicant”. It had also requested that it be invited to a meeting of the CoC. It is not immediately clear whether Ultratech’s revised bid was submitted within the deadline and whether the CoC considered it, but the SC’s decision seems to suggest that no alternative route —outside of the IBC—should be pursued.
However, the process should be transparent with the CoC informing bidders on how exactly they applied the evaluation criteria; this would help prospective buyers understand how the CoC assesses offers. To be sure, each CoC is different, but at the end of the day, they are all lenders. Given the very tight deadlines—180 days plus an additional 90 days—the NCLT too must ensure there are no delays. Some legal experts have pointed out the resolution professional (RP) seems to be over-burdened and it might not be a bad idea to have two RPs working on a case to share the load. For now, the SC’s order on Binani will ensure the process faces fewer hiccups.