Sterling Biotech out of Liquidation; NCLAT Order Has Serious Implications on Repayment by Wilful Defaulters
On 28 August 2019, the National Company Law Appellate Tribunal (NCLAT) delivered a major blow to the efforts of investigation agencies and allowed Andhra Bank and other lenders to withdraw their resolution application. By this order, the controversial Sterling Biotech Ltd is out of the liquidation process ordered by the NCLT (National Company Law Tribunal). 
 
The order by a bench, headed by Justice SJ Mukhopadhyay, also allowed banks to accept money of Sterling Biotech’s absconding promoters with the caveat that it should be from individual accounts and should not be the proceeds of crime. 
 
Since the money has flown to Nigeria where the ‘wilful defaulters’ are holed up to evade arrest, and are under investigation by all of India’s top investigation and enforcement agencies, it is unclear how anyone will separate clean funds from the ‘proceeds of crime’. This is especially difficult because the Sterling group has wilfully defaulted on payments to nine Indian banks and others for many years, while it was clearly diverting funds abroad. 
 
NCLAT disposed all appeals by the investigation agencies. However, it said that the Enforcement Directorate (ED), Central Bureau of Investigation (CBI), ministry of corporate affairs (MCA) and the Securities & Exchange Board of India (SEBI) can continue to ‘take any action’ against the promoter, shareholders and directors under the existing laws, irrespective of the settlement made by them under the IBC (Insolvency and Bankruptcy Code). 
 
Based on an appeal, NCLAT also set aside all the negative observations against the conduct of the ‘resolution professional’ who had faced the wrath of NCLT in the 8th May order. 
 
As I mentioned earlier, NCLAT observes that its order will 'however, not come in the way of the individual', such as the promoter, shareholder or director, if the payments made by them are ‘not from the proceeds of crime’ but in their individual capacity and the amount is from their account—and not that of the corporate debtor. 
 
It arrives at this decision because ‘there was nothing on the record to suggest that the individual property of the promoters’, who have offered a one-time settlement (OTS) to banks, is subject to restraint by the ED. Therefore, NCLAT concludes that, even if the assets of Sterling Biotech are held to be ‘proceeds of crime’, the prayer for withdrawal of the application cannot be rejected if promoters make a payment in their individual capacity. 
 
This observation is frightening, for several reasons. Almost all wilful defaulters have amassed riches by diverting bank loans and skimming off the big listed entities that they had promoted. This money has been transferred overseas into personal accounts and is used to buy massive personal assets, homes and businesses overseas. Since Indian public sector banks (PSBs), like Andhra Bank, have no intention of going into these assets, will the money now be considered ‘individual’ wealth that is squeaky clean? 
 
Well, not really. The NCALT order covers those bases and adds to the confusion with a specific observation that proceedings under the Prevention of Money Laundering Act (PMLA) will continue against the ‘corporate debtor’, which is Sterling Biotech. How can a company be held responsible for money laundering and not the absconding promoters (either individually or jointly and severally), who would have initiated or ordered laundering transactions?
 
The Sterling group’s four promoters—Nitin Sandesara, Chetankumar Sandesara, Dipti Chetan Sandesara and Hiteshkumar Patel—are absconding and are known to be holed up in Nigeria where they have extensive businesses. They have extradition orders issued against them by a Delhi court. They are facing multiple investigations, criminal charges and extradition proceedings by the CBI, SFIO (Serious Frauds Investigation Office) and ED. Isn’t it hard to digest that these promoters have clean funds in individual accounts which ought to be acceptable to banks? What, indeed, is the source of these clean funds? And who will establish that?
 
The 24-page NCLAT order makes absolutely no mention of the massive figures that we are talking about. To understand this in the right context, let us remember that finance minister (FM) Nirmala Sitharaman has ordered the infusion of Rs70,000 crore from the exchequer into a set of PSBs on 31st August and the government has also appropriated Rs1.76 lakh crore of Reserve Bank of India’s (RBI) reserves to meet its funding requirements. 
 
As against this, the Sterling Biotech and its sister entity Sterling SEZ alone owe Rs15,600 crore to a consortium of Indian banks. Of this, Sterling Biotech owes Rs7,500 crore and Sterling SEZ owes over Rs8,100 crore. Sterling Biotech has now offered to pay Rs5,500 crore as an OTS , and Sterling SEZ, whose case may be decided shortly, has reportedly made a similar offer. This, essentially, means that they got an interest-free loan at public cost that allowed them to build a big business overseas. And, yet, we are outraged when farmers demand a loan write-off! 
 
Over 90.32% of the lenders to Sterling Biotech, led by Andhra Bank, voted to accept this OTS. As I wrote on 28th May, the promoters have already remitted some money through Nitin Sandasera’s company, VELL FLO Limited which has a registered office at 252, Muri Okunola Street, VI, Lagos (Nigeria). 
 
The banks have a single-point argument—they will recover significantly more money from the dubious promoters than they would if the company went into liquidation. But accepting this argument would mean that Essar Steel’s offer to payback over Rs54,000 crore to all creditors (including operational creditors) must be considered superior to the Rs42,000 crore offer from LN Mittal of Arcelor Mittal. Already, a controversial NCLAT order in the Essar Steel case by the same judge has led to a quick amendment of the bankruptcy law and the Essar case is pending in the Supreme Court. 
 
Clearly, the Sterling issue ought not to end with this order and should be decided along with the Essar Steel case. But who will file an appeal, when all the lenders are desperate to accept the OTS? 
 
It will also be interesting to watch whether the investigation agencies truly want to book the politically-connected Sandesaras, or whether the investigation is more of a witch-hunt to settle political scores. A day after the NCALT order, the ED was busy grilling the son of Ahmed Patel, a Congress politician who is very close to Sonia Gandhi. And, yet, anyone in Gujarat will tell you that the Sandesara family has powerful links across the political spectrum, including the ruling coalition, and its favourite CBI officers such as a former joint director Rakesh Asthana. The investigation agencies ought to appeal the NCLAT order, if they are serious about bringing the absconding promoters back. 
 
Finally, the big question is: Will the promoters come back to India to face investigation (the door to which has been kept open in the NCLAT order) or be allowed to control management from Nigeria? Also, will the government, at the very least, ensure that banks do not provide fresh loans to this dubious group? Remember, the bailout of PSBs continues to happen without making senior management more accountable for their lending decisions.  
 
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    COMMENTS

    Godavari Joshi

    2 weeks ago

    A Corporate entity is a fiction created by the Law and NCLT's order shall only help unscruplous individuals to use this 'fiction' to their advantage. IBC was expected to be a medicine to a disease but its already started becoming the cause of further strengthening the disease. Arent the court's orders to be to provide justice to the affected and punish the guilty, or the orders merely some esoteric decisions for mere playing around with the legalese with no succor to economy and business?
    Where is the incentive to do a honest business if one can get away with this?

    K V RAO

    3 weeks ago

    The writer has once again red flagged NCLT's order. Rightly so. Anybody in Finance Ministry listening? As for our PSBs, they have become beggars and accept whatever comes on their way.

    Jayaraman

    3 weeks ago

    This is ridiculous given the fact that the Judiciary has limited concern for the public wealth. As rightly stated, how can any fungible item like money be segregated into clean or dubious ? Well, this can be answered only by the Hon'ble Judge who pronounced judgement. In fact, given the pressure on the bottomline for all the PSU Bank lenders, if there is a meat available, they shall automatically pounce on it and not wait for this money also to vanish. Who, in the consortium, will be doing something which will allow the delay of getting OTS? Well, Sandesaras are notorious in their own way. While monies of whatever amount allowed (thru any source)is grabbed and used for settlement of dues, these Sandesara family has to be extradited to India and held responsible for all the wrong doings.

    Server crash may have cost huge loss of data: Rathi Steel
    A sudden crash in the company's main server could have resulted in "huge loss of the company's financial, legal and confidential data", Rathi Steel and Power said on Tuesday in an exchange filing.
     
    "Board would like to inform you that the main server of the IT department of the company suddenly crashed due to sudden fluctuations in the electricity and software failure issues. Thus there might be huge loss of company's financial, legal and confidential data," the company said.
     
    Because of this reason, the accounts are getting prepared at a slow pace and the company might not be able to finalise the accounts within time before the date of the anual general meeting (AGM), the company statement said.
     
    "Hence the application for extension of annual general meeting for the financial year ending March 31, 2019 be filed," it said.
     
    Disclaimer: Information, facts or opinions expressed in this news article are presented as sourced from IANS and do not reflect views of Moneylife and hence Moneylife is not responsible or liable for the same. As a source and news provider, IANS is responsible for accuracy, completeness, suitability and validity of any information in this article.
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    Auto Industry Downturn Remain Worrisome: SIAM
    Sales reports coming out from various companies for August 2019 has been very dismal with over 30% erosion of sales for passenger vehicles. Commercial vehicles (CVs) and two-wheeler sales are also significantly negative indicating that the market has still not responded to the various measures initiated by the finance minister last month, says the Society of Indian Automobile Manufacturers (SIAM).
     
    In a statement, SIAM president Rajan Wadhera said the series of announcements on credit availability and reducing the cost of credit that were made do not seem to have percolated down to the NBFCs (non-banking finance companies) which support the bulk of finance for the automotive industry.
     
    "The consumer sentiment also continues to be low and there is clearly a trust deficit in lending money to the dealers," he said, as per a SIAM statement.
     
    To help revive the sector, finance minister Nirmala Sitharaman, on 23rd August, had announced that the government departments would be allowed to buy new vehicles, automobiles purchased till March 2020 could avail the benefit of additional depreciation of 15%, with total depreciation up to 30%, and BS-IV vehicles bought till March 2020 would remain operational for their entire registration period.
     
    The sector has been going through a slowdown for the past few months due to several reasons including, high goods and services tax (GST) and liquidity crunch.
     
    Mr Wadhera pointed out the urgent need for the government to reduce the GST rates on automobiles to 18% from the high of 28%.
     
    "The industry has pulled out all stops in offering attractive deals and discounts to the consumers. However, the ability of the industry to provide large discounts is limited and this only highlights the need for the government to consider reducing the GST rates to 18%, which would significantly reduce the cost of vehicles and, in turn, create demand," the SIAM president added.
     
    On Sunday, Ms Sitharaman had said the GST Council would take the call on reducing the tax on motor vehicles.
     
    Mr Wadhera from SIAM also cited the requirement of an integrated incentive-based 'scrappage' policy covering all segments of the auto industry. "As the festival season is around the corner, it is imperative that these decisions are taken quickly and announced without delay so that the industry could hope for a better festival season that could harbinger a recovery in the industry," he said.
     
    Almost all automobile manufacturers have reported significant declines in their vehicle sales for August.
     
    Tata Motors reported a 49% fall in its domestic sales on a year-on-year (y-o-y) basis at 29,140 units. The CVs sales dipped 45% to 21,824 units. It sold 7,316 passenger vehicles in August, decline of 58% from 17,351 units during the year-ago month.
     
    Maruti Suzuki India reported a 32.7% decline in its vehicle sales during August 2019. The company sold 1,06,413 units, including exports, compared with 1,58,189 vehicles same month in 2018.
     
    Similarly, Mahindra and Mahindra's (M&M) local sales declined 26%. It sold 33,564 vehicles during the month against 45,373 units in year-ago month.
     
    Hyundai Motor India sold 38,205 units, lower by 16.58% from 45,801 units in August 2018.
     
    Ashok Leyland Ltd also closed August with a 47% drop in sales. The commercial vehicle maker sold a total of 9,231 units during the month, down from 17,386 units sold during August 2018.
     
    The company's sales of goods carrier—light, medium and heavy trucks—came down to 7,432 units the previous month from from 15,945 units sold in August 2018. On the other hand, bus sales last month went up to 1,799 units from 1,441 units sold in August 2018.
     
    Even the tractor sales have been down. According to ratings agency CRISIL, weak growth in rural income, moderation in rural infrastructure spending, higher channel inventory, and the effect of a high base will lead to de-growth in tractor sales volume by 5-7% this fiscal, from an all-time high of 8.78 lakh units in fiscal 2019.  
     
    The tractor industry is cyclical, and heavily dependent on rural incomes and monsoon. The ratings agency says, "Rural incomes were impacted towards the second half of last fiscal because crop production was flat after two years of 5-6% growth, and farm profitability declined due to weak pricing. Consequently, rural wage growth was lower at 3-4% compared with an average 6% in the preceding two fiscals." 
     
    "Besides, lower growth in spending on rural infrastructure has impacted non-farm tractor demand in recent months. Additionally, exports, which contribute 10-11% of sales, also declined 28% in the first quarter of this fiscal due to moderation in demand from Latin America," it added.
     
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    COMMENTS

    Baskaran

    2 weeks ago

    It was entirely the making of UPA as the scam , lending took places then and further the crooks involved are congress barons.

    MOHAN BHASKAR WAGH

    3 weeks ago

    ENTIRE ECONOMY HAS BEEN DESTROYED BY MODI

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