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Supreme Court refuses to interfere in Binani Cement sale process

Varun Marwah

While disposing off an appeal filed by Rajputana Properties against an NCLAT order, a Supreme Court bench of Justice Rohinton Nariman and Justice AM Sapre said that it won’t interfere with the Binani Cement sale process.

Noting that the case is currently pending before the NCLAT, the Apex court refused to interfere at this stage and has remitted the case back while asking NCLAT to hear the case on a daily basis from May 22, 2018.

Senior Advocates CA Sundaram and Neeraj Kishan Kaul (briefed by Shardul Amarchand Mangaldas) appeared for Rajputana Properties while Senior Advocate Mukul Rohatgi along with Advocate Mahesh Agarwal appeared for Ultratech.

Within a months’ time, the UltraTech-Binani case has entered the Supreme Court twice. And again, by the way of an appeal from an NCLAT order. Rajputana Properties/ Dalmia Bharat knocked the doors of the apex court to save its bid to acquire Binani Cements, and maybe in the process, save the law from being diluted.

The Supreme Court, however, refused to interfere once again and disposed off the appeal.

The Kolkata Bench of the NCLT on May 2 had ordered the Binani Cement’s creditors to consider the revised offer submitted by UltraTech and also allow Rajputana to revise its bid.

Rajputana appealed against the said order to NCLAT immediately after but was unable to obtain a stay on the said NCLT order, which means that the creditors are free to consider the revised bids submitted by UltraTech.

Rajputana quickly moved to the Supreme Court on May 8 just before the creditors meeting which is supposed to be (or was supposed to be) held today.

To ensure that the creditors would be deterred from considering the revised Ultratech bid, Rajputana wrote a letter to the Resolution Professional, Vijaykumar Iyer, alleging that Ultratech was disqualified under Section 29A of the amended IBC.

According to Rajputana, UltraTech and Binani Industries are acting in concert, a view which is being substantiated by their previous partnership which sought to take over Binani Cements outside the IBC purview.

Binani Cements was put in insolvency process in July 2017 and among the top two bidders were UltraTech and Rajputana Properties. Rajputana emerged as the winning bidder due as it got a higher score based on the criteria laid down by the creditors.

Aggrieved by this decision, UltraTech pursued (and continues to) all strategies to crush Rajputana and take over Binani Cements. It moved to the NCLT challenging the decision of the creditors, kept revising its bid offer constantly (to a point where it now exceeds Binani Cement’s total liabilities) and then tied hands with Binani Industries to take over Binani Cements outside IBC purview by the way of a stake purchase. UltraTech even sought the consent of the Supreme Court for this outside-IBC deal but was however turned down. NCLT found merit in UltraTech’s plea and asked the creditors to consider UltraTech’s revised offer.

As things stand today, there is no stay on the NCLT order which asked the creditors to consider the revised bids.

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