SC to hear Dalmia Bharat plea against NCLAT order on Binani on Nov 16

The Supreme Court on Thursday agreed to hear on November 19 the plea of a Dalmia Bharat Group firm challenging the NCLAT's order allowing rival UltraTech Cement to acquire debt-ridden Binani Cement.

The National Company Law Appellate Tribunal Wednesday allowed the Aditya Birla group firm to acquire Binani Cement by approving its revised Rs 79.50 billion bid over an offer by Rajputana Properties.

A bench headed by Chief Justice Ranjan Gogoi considered the submissions of lawyer Gopal Sankaranarayanan, appearing for Rajputana Properties, that the appeal against the order of the tribunal be heard urgently.

"List it on Monday," said the bench, which also comprised justices S K Kaul and K M Joseph.

NCLAT approved UltraTech's resolution plan for Binani and rejected the resolution plan submitted by Dalmia Bharat's Rajputana Properties by terming it "discriminatory" and "unbalanced".

The Aditya Birla Group firm has not only paid the financial lenders of debt-ridden Binani but also its operational creditors.

The panel had observed that the plan submitted by Rajputana discriminated between "equally situated" financial creditors and did not balance other stakeholders such as the operational creditors of Binani Cement.

Rajputana had moved the appellate tribunal against the May 2 order of the Kolkata bench of the National Company Law Tribunal (NCLT) that allowed the Resolution Professional and Committee of Creditors (CoC) of Binani to consider UltraTech's revised offer while affording Rajputana an opportunity to revise its resolution plan.

The CoC had earlier approved Rajputana's Rs 69.32 billion bid, but the decision was changed once UltraTech revised its offer.

NCLAT observed that the amended offer of UltraTech Cement has got 100 per cent voting from the CoC and added that the intent of the Insolvency and Bankruptcy Code (IBC) was maximisation of the value of assets.

"We approve the revised resolution plan submitted by UltraTech Cement which shall be binding on the corporate debtor (Binani Cement) and its employees, members, creditors, guarantors and other stakeholders involved in the Resolution Plan," the NCLAT order had said.

NCLAT had also dismissed the plea of promoters of Binani Industries for termination of the Corporate Insolvency Resolution Process after settling the dues with lenders under section 12 A of the IBC, saying that the application did not have the requisite 90 per cent voting share of the CoC.

"Binani Industries cannot take advantage of Section 12A nor can be allowed to settle the matter," said the NCLAT bench.

UltraTech is the leading cement manufacturer of the country with an installed capacity of 96.5 Million Tonnes Per Annum (MTPA) of grey cement.

It is already merging the cement business of BK Birla Group company Century Textiles and Industries, which has a capacity of 11.4 MTPA.

In its 44-page-long order, NCLAT observed that financial creditors such as "Edelweiss Asset Reconstruction Company, IDBI Bank, Bank of Baroda, Canara Bank, Bank of India and State Bank of India have been provided with 100 per cent of their verified claim" but the resolution applicant Rajputana Properties has given "lesser percentage to Export-Import Bank of India 72.59 per cent and State Bank of India-Hong Kong 10 per cent".

On the other hand, the resolution plan submitted by UltraTech allows "maximization of assets of the Corporate Debtor (Binani Cement) while some amount of working capital has been infused (Rs 3.5 billion) and all the financial creditors and the Operational Creditors have been paid 100 per cent of dues except the related parties," the had order said.

The CoC had also asked Rajputana Properties to revise its offer of Rs 69.32 billion. UltraTech Cement's revised offer was Rs 79.50 billion, against its earlier bid of Rs 72 billion.