NEW DELHI :
A consortium of lenders led by State Bank of India has filed a petition before the Supreme Court against a National Company Law Appellate Tribunal (NCLAT) ruling that Essar Steel’s operational creditors have to be treated on a par with financial creditors at the time of settling claims.
The insolvency court’s ruling is expected to have a far-reaching impact and could significantly improve recoveries for operational creditors, who were so far considered to be a notch below financial creditors.
“By virtue of the impugned judgement the entire CIR (Corporate Insolvency Resolution) process with respect to the corporate debtor being one of the largest non-performing assets of the country has been put under jeopardy and the shocking unsettling of otherwise settled principles of law recognising and protecting the rights of the secured creditors on account of complete misreading of the code (Insolvency and Bankruptcy Code) has endangered the national economic interest of the country overall," the consortium argued.
The appellate tribunal ruled that lenders and operational creditors will get 60.7% of their outstanding claims and proportionately share the ₹42,000 crore that global steel giant ArcelorMittal has offered to pay for the debt-laden firm, which in rupee terms entails a payment of ₹30,030 crore to financial creditors and ₹11,969 crore to operational creditors.
Essar Steel’s financial creditors are primarily state-run banks, while its operational creditors are vendors and suppliers.
NCLAT has asked the committee of creditors to take the help of a reputed chartered accountant firm or legal firm to calculate the exact amount to be distributed among each operational creditor.
The judgement had two parts. In the first part, the court rejected the plea of Prashant Ruia, managing director, group chief executive officer and director, Essar Global Holdings Limited, challenging ArcelorMittal’s eligibility to bid for Essar Steel under Section 29A of the Insolvency and Bankruptcy Code (IBC), which says that bidders cannot be connected to other defaulting entities.
The appellate tribunal observed that the matter was settled by the Supreme Court on 4 October 2018 and ArcelorMittal’s eligibility as a resolution applicant “cannot be re-agitated again and again".
In the second part, the appellate tribunal dealt with the distribution of resources among creditors. “In the resolution plan, 0% of their (operational creditor) debt has been proposed to be paid, whereas the financial creditors have been proposed to be paid 92.5% of their dues and claims of some of the operational creditors have been notionally assessed at Re1 by the resolution professional without any basis," NCLAT said.
“Instead of rejecting the resolution plan submitted by ArcelorMittal India Pvt. Ltd, we modify the plan to safeguard the rights of the operational creditors and other financial creditors," said NCLAT chairperson Justice S.J. Mukhopadhaya.
The judgement will have a significant impact on the status of operational creditors, as this class has now been placed at the same level as financial creditors, or lenders, who form the committee of creditors (CoC). Operational creditors are not part of CoCs.
The Essar Steel case pertains to a 10-million tonne per annum steel mill in Gujarat, which became insolvent in August 2017, with dues of more than ₹54,000 crore.
The highest bidder for the asset was ArcelorMittal, which offered a resolution plan with a cash payout of ₹42,000 crore to be distributed among a clutch of financial and operational creditors.