Rising litigation mars debt resolution under Insolvency and Bankruptcy Code

With bidders and owners of companies that defaulted on debt repayments complaining of arbitrary use and interpretations of the Insolvency and Bankruptcy Code (IBC) by insolvency resolution professionals (IRPs) and lenders, more cases relating to non-performing assets (NPAs) resolution are likely to head to court. 

While the resolution process of Binani Cement, Videocon Industries, and Jaypee is in court, the next round of litigation is expected in the bidding process of Bhushan Power & Steel and Essar Steel.

“Most of these cases will be appealed in the Supreme Court as the interpretation of the code is different in most cases. While in the Binani Cement case, the IRP called for bids for the second round despite JSW Cement being the winner in the first round, in other cases latecomers were not allowed to bid,” said a Mumbai-based corporate lawyer.

London-based Liberty is planning to move court next week after it was not allowed to bid for Bhushan Power & Steel, for which Tata Steel emerged as a winner in the first round.

Binani Cement promoter Binani Industries has moved the National Company Law Tribunal (NCLT), Kolkata, after it alleged that the IRP undervalued the company at Rs 63 billion, against its valuation of Rs 173 billion.  The company complained the IRP had “personal” interests in offering the company to its “favourite bidder”.

When asked for comments, Vijaykumar Iyer of Deloitte, who is the IRP, did not comment on Binani Industries’ statement. 

Videocon Industries, on the other hand, has moved the Bombay High Court against the Reserve Bank of India (RBI) and the State Bank of India on the IBC proceedings initiated against it by the bank. The company said it had taken steps, including sales of assets, to repay its loans worth Rs 22 billion, but all its actions were ignored by the bank. 

“The RBI should say on what basis it sent some companies for resolution, resulting in widespread job losses, while ignoring others. That is the reason why many companies have moved court,” said the chief executive officer of a debt-hit company. The biggest court battle, however, is expected in the case of Essar Steel, which received two bids. The lenders said the bids of ArcelorMittal and Numetal, a company whose 25 per cent is owned by a trust belonging to the Ruias, were likely to be rejected. That is because ArcelorMittal owned 29 per cent in Uttam Galva, which had NPAs, and sold its stake just before it made the bid for Essar Steel. 

ArcelorMittal-promoter L N Mittal held 33 per cent in KSS of Kazakhstan, which, in turn, had a 100 per cent stake in KSS Petron, a company that defaulted in loan obligations, and was sent to the NCLT. Mittal sold his personal stake in KSS a week before bidding for Essar Steel.  However, ArcelorMittal executives are saying the firm’s offer for Essar Steel will be cleared. Numetal executives, too, are confident after taking legal opinion from former Supreme Court judges and government law officers. 

“The offers of ArcelorMittal and Numetal will be decided by the highest court as the aggrieved party will move court if its bid is rejected. This will further complicate the IBC process,” said a bidder.


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