New Delhi: The Supreme Court Tuesday agreed to hear the Binani Operational Creditors Forum (BOCF) which has alleged discrimination against different classes of operational creditors of Binani Cement Ltd under the provisions of the Insolvency and Bankruptcy Code (IBC), 2016.

The petitioners are operational creditors to Binani Cement, namely Swastik Coal Corporation Pvt. Ltd, its director, Hitesh Bandal, Mangalalaxmi Industries Pvt Ltd, Sakhti Energy Pvt. Ltd, Rajasthan Flexible Packaging Ltd, Prakash Enterprises, Dhuleva Industries and Yajur Commodities Ltd.

The matter will be heard by a bench comprising justices A.K. Goel and Rohinton F. Nariman on Friday.

The petitioners have sought that provisions under the code and rules that are discriminatory, arbitrary, excessive qua the operational creditors be interpreted by the resolution professional and the National Company Law Tribunal (NCLT) before any scheme is finalized.  

It has been alleged that unlike the Companies Act, 1956 and 2013, the IBC seeks to “arbitrarily and unfairly discriminate and divide" unsecured creditors into two classes, unsecured financial creditors and operational creditors. ‘

Making the rights of operational creditors subservient to those of financial creditors is contrary to law and in violation of Article 14 (equality before law), 19 (1) (g) (freedom of profession, trade) and 300 A (right to property) of the Constitution of India, the petition states.

It is evident that the code favours financial creditors against operational creditors whether the financial creditors are secured or unsecured, it was added.

The operational creditors have submitted that despite claims being legally valid, substantiated and submitted by the operational creditors under the applicable laws, they have not been verified. However, in various meetings of the committee of creditors (CoC), the claims of financial creditors of Binani Cement have been verified.

The constitution of the CoC has also been questioned to the extent that it only includes the financial creditors, being contrary to the interest and rights of all other classes.

In another petition before the top court, Binani Industries Ltd has sought permission for an out-of-court settlement and end insolvency proceedings against its debt-ridden subsidiary, Binani Cement.

The total liability of Binani Cement stands at Rs7,290 crore including the liability of Rs4,049 crore towards secured lenders.

Last week, the CoC of Binani Cement had decided to stick with the offer of Rs6,350 crore from Dalmia Bharat Cement for the debt-ridden firm’s sale under the Insolvency and Bankruptcy Code, 2016.

Moreover, the National Company Law Appellate Tribunal (NCLAT) had also asked the adjudicating authority, the NCLT, to proceed with the resolution process of Binani Cement as per the IBC.

Hearing at the Kolkata bench of the NCLT has been adjourned till 16 April in view of the Supreme Court agreeing to hear the dispute later this week.

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