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Promoter bidding under IBC: Moral hazard issue is a serious one, says panel

Former SBI chairman Arundhati Bhattacharya said if promoters were allowed to regularise their accounts and bid, it would make them wilful defaulters.

By: ENS Economic Bureau | Mumbai |
December 11, 2017 12:50:15 am
Moral hazard issue is a serious one, says panel Former State Bank of India (SBI) chairman Arundhati Bhattacharya. (Express Photo: Prashant Nadkar)

Former State Bank of India (SBI) chairman Arundhati Bhattacharya has said the issue of moral hazard was an important issue in the context of the resolution under the IBC (Insolvency and Bankruptcy Code), recently amended to bar promoters from bidding for their assets. Bhattacharya said if promoters were allowed to regularise their accounts and bid, it would make them wilful defaulters. “If they can bring in the money now, it means they had the means, so why did they not bring it in earlier?”

“What is the moral hazard? It is that the same people who could not run a company, for whatever reason, would get it at a much lower price. The hazard is that others, who may not have the problem, would deliberately do things so that they can pare their debt and come back. It is because of this moral hazard that the Ordinance has been brought in,” Bhattacharya said at a panel discussion at the FE Best Banks Awards.

She observed that while this may not be done in the rest of the world, it was because any failure was attributed to genuine reasons. “In India, there is a deep distrust in what is happening and this Ordinance is an expression of that. We need more trust in the system. Once there are more checks and balances, and we can track why a company has failed, we may see an evolution of the law,” Bhattacharya said.

Uday Kotak, executive VC & MD, Kotak Mahindra Bank, acknowledged the reality of the moral hazard, but said that with the law now in place it was important to see how the process would work. “For larger assets we see bidders, especially given the steel cycle has turned for the better. The key question is what happens to SME assets what happens if there is one or no bidder? How do we make sure the process of bidding is fair?” Kotak believes it might be worth thinking about different criteria in the second round.

Sajan Jindal, chairman JSW, “Worldwide promoters are allowed to bid if they are not wilful defaulters. In our context, I felt somebody borrows and for either his fault or some circumstances, is not able to fulfill his obligation. And if he then buys the asset for half the value, I don’t think we are setting the right standards. I felt that if somebody is paying every rupee back to banks and if his competitor gets a 50 per cent discount, the first person feels cheated. Then he will say that I will go to NCLT and get a 50 per cent discount,” Jindal observed.

On the possible structure of bids, Kotak observed it would most likely be a banker or financier who would lend to the company. “With that all existing debts will be cleared. If the enterprise value is X, the debt value remains the same and that is how it is structured. If the promoter brings in that money as equity, it helps prospective bidder to be more efficient. It will be money into the company by a new lender, repaying some lenders but overall debt remaining the same,” Kotak said.

Jindal observed that while there was talk of promoters trying to bid through a new face with the intention of coming back later, it would not work. “Too many regulations will create problems. But if the government makes it clear that a promoter cannot come back by using a different face now, I don’t think that will work,” Jindal said.

UTI managing director Leo Puri said he understood the optics of allowing defaulters to come back after a huge haircut, but the alternative wasn’t without its political fallout either. If many of India’s big companies went into foreign hands, he asserted, this would also be a political issue. The plan also opened up India to vulture capital.

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