While approving the resolution plan of Piramal group for Dewan Housing Finance Ltd (DHFL), the National Company Law Tribunal (NCLT), has named a seven-member monitoring committee, which will be given the power to manage and control the beleaguered housing finance company during the period between the approval of the plan and its implementation. The NCLT had approved Piramal group’s Rs37,250 crore resolution plan on 7th June in a verbal order
In its order copy which came out on Saturday night, the NCLT has taken a step further. In what is seen as the first such move it has appointed an observer to the monitoring committee to ensure smooth functioning and transition to Piramal Capital & Housing Finance Ltd.
The monitoring committee oversees supervising implementation of the approved resolution plan. In DHFL’s case, three members nominated by the committee of creditors (CoC), two by the Piramal group and the administrator are part of it. The NCLT has also appointed Ashok Kakkar, a former official from the tax department and SEBI as ‘observer cum permanent invitee’ to the monitoring committee.
The DHFL case has seen many sharp twists and turns in the last three weeks.
On 21st May, the Mumbai bench of NCLT had directed the committee of creditors to consider and vote on DHFL
promoter Kapil Wadhawan’s settlement proposal within 10 days. But now, it has approved Piramal group’s resolution plan.
R Subramaniakumar, the Reserve Bank of India (RBI)-appointed administrator for DHFL, the CoC led by Union bank of India and Piramal group separately immediately moved the National Company Law Appellate Tribunal (NCLAT) against the controversial NCLT order asking lenders to consider Kapil Wadhawan's settlement offer. In its appeal, the administrator termed the NCLT order "illegal and in breach of settled provisions of law." The 21st May NCLT order was stayed
by the NCLAT on 25th May. The NCLAT stay order has now been appealed by Wadhawan in the Supreme Court
Legal experts suggest that at the end of this long-drawn litigation process though, only one of the options can make it- Wadhawan’s settlement proposal or Piramal group’s resolution plan.
The total resolution amount for DHFL stands at Rs37,250 crore. This includes cash and non-cash consideration:
1) Upfront cash recovery of Rs14,700 crore. This includes repayment of the principal amount of DHFL’s retail loan book and cash on the company’s books, which combined comes to roughly Rs10,000 crore plus Rs4,000 crore infusion by Piramal group.
2) Rs3,000 crore to financial creditors. This is the interest repayment component from DHFL’s retail loans.
3) Debt securities of Rs19,550 crore to financial creditors. These non-convertible debentures (NCDs) will carry an interest of 6.75% per annum with a tenure of 10 years.
Creditors who have voted for Piramal group’s plan have been allocated a mix of cash and debt securities against their claims. Dissenting creditors, which include fixed depositors, will receive upfront cash based on liquidation value.
CoC asked to reconsider allocation to fixed deposit holders and NCD holders
In its order, the Mumbai bench of the NCLT has asked the creditors’ committee to consider allocating higher amounts to fixed deposit (FD) holders, debenture holders, employee groups and the Army Group Insurance Fund.
The tribunal said small investors should not face more risk than institutions. Considering the number of small investors and senior citizens who had deposited their hard-earned money and who now face a financial crisis due to the pandemic, the resolution plan should provide for an increased share for them, the order nudges the CoC.
“It is generally considered that the investment in the fixed deposit, non-convertible debentures (NCDs) are low-risk investment than investing in equity shares. Therefore, these small investors should not be put to more risk, take more haircut than the stronger financial institutions viz banks, financial institutions,”.
“Accordingly, for this limited purpose, we direct the CoC to reconsider their distribution method amongst various members of the CoC within two weeks from today and report the same to this Adjudicating Authority,” the NCLT said in its order.
Experts say that the NCLT has only made a request to the CoC (on compassionate grounds) to reconsider the distribution of funds while holding that the plan is in accordance with the law but the final decision will rest with the lenders. But if the CoC agrees to give more to the FD holders, then it could set a precedent for other insolvency cases.
That said, the NCLT, however, clarified that there is no additional monetary obligation for the Piramal group to pay anything more than what it has committed in the resolution plan, which is Rs 37, 250 crore. “It is only an inter se distribution of resolution money amongst various creditors,” the NCLT said.
“With regard to the decision on distribution to public depositors, fixed deposit holders, subscribers to NCDs, we also suggest, request the CoC to reconsider their grievances, plights and they did not oppose the resolution plan and their request is only to enhance the percentage of payment made in the plan and the same should be increased to the level of secured financial creditors i.e. approximately 40 per cent the financial creditors would be getting in this plan,” the NCLT order said.
Significantly, the NCLT has also told the CoC to reconsider the claim of the Army Group Insurance Fund and pay the full admitted claim amount of “only Rs39 crore, which amounts to just 0.0001% of the total plan”.
“Considering the nature of duties performed by them who are protecting the nation, sacrificing their lives, difficult working conditions and human service to keep peace of the country.”
It would be appropriate for the members of the CoC “to reconsider and repay their entire admitted claim without any haircut thereby expressing our deep concern, gratitude and respect to the Army Personnel,” NCLT said.
The tribunal also noted that the Army Group did not challenge/oppose the plan but only sought a sympathetic view of the CoC.