NCLAT stays NCLT ban on ex-bankers' appointment as resolution professionals

The NCLT order had cast doubt on debt resolutions of several companies including Videocon Industries and Essar Projects, where former bank officials are working as IRPs

The National Company Law Appellate Tribunal (NCLAT) last week stayed a recent order by the National Company Law Tribunal’s New Delhi Bench, which prohibited appointing a former bank official as independent resolution professional (IRP) of a bankrupt company because of the possibility of “bias”.
 
The NCLT order had cast a doubt on debt resolutions of several companies including Videocon Industries and Essar Projects, where former bank officials are working as IRPs, said a legal source. In its stay order dated January 17, the NCLAT said it would hear the matter again on February 3 and issued notices to all the parties.
 
During the NCLAT proceedings, the lenders’ position was that while anyone after retirement could practise as a professional if qualified to do so, the person could not be assumed to be biased just because she or he happened to be a former bank official.
 
In its January 4 order in the State Bank of India vs Metenere case, the NCLT said the resolution professional proposed by the lenders for Metenere had worked with State Bank of India for more than 39 years and there was “an apprehension of bias” against the appointment.
 
“It is evident that such an IRP is unlikely to act fairly and cannot be expected to act as an independent umpire,” the tribunal had observed.
Accordingly, the tribunal said the financial creditors must replace the person by a new one.
 
Legal experts say this order will have a wide-ranging impact and slow the resolution of some big-ticket cases including the ones of Videocon Industries, which owes banks Rs 40,000 crore, and Essar Projects, which has a debt of Rs 7,700 crore.
 
“The NCLT order would have put a question mark on several accounts where the IRP has been appointed and the resolution has reached an advanced stage,” said a corporate lawyer.
 
Videocon Industries has seen the appointments of four IRPs, including those from Price Waterhouse, KPMG, and now Deloitte, which is managing the asset sale. Its debt resolution is going on since January 2018, when the RBI recommended Videocon on its second list of 29 companies for debt resolution.