This article is written by Girijesh, pursuing a Certificate Course in Arbitration: Strategy, Procedure and Drafting from Lawsikho.com.
Insolvency and bankruptcy code is the Modi government’s most important reform. Indian capitalism never understood bankruptcy and moreover, it is taken as a shame. This is quite wrong, since a business can fail and there is nothing shameful in it.
Real capitalism doesn’t see shame in bankruptcy. Do you know the most powerful man in the world got bankrupt 4 times? Yes, you guessed it right “DONALD TRUMP”.
During the period between 2008 to 2014, banks lent indiscriminately. This led to a very high percentage of Non Profitable Assets (NPAs) which was highlighted by asset quality reviewers of the RBI. This led to the prompt action by the government in appointing the ‘Joint Committee of Parliament’ on April 28, 2016, which in its report of 2015 recommended the IBC.
Insolvency and Bankruptcy Code, 2016
The insolvency and bankruptcy code (IBC), 2016 was introduced to improve the relationship between the creditors and the debtors. IBC, 2016 was passed by the Lok Sabha on May 05, 2016 and by the Rajya Sabha on May 11, 2016. It got the assent of the President of India in 2016 and after 6 months in December 2016 IBC got active, On 1st June 2016, National Company Law Tribunal (NCLT) and its appellate body was set up by the government under Companies Act, 2013, to adjudicate disputes in the matters of companies and limited liability partnership, arising under the Act. In case of individuals and partnership, the adjudicating authority will be Debt Recovery Tribunal (DRT), which was established under Recovery of debts due to Banks and Financial Institution Act, 1993.
Both individuals as well as organizations can apply for insolvency. The only difference is, for individuals, it is known as bankruptcy and for corporate it is called corporate insolvency. It is a situation when an individual or company is not able to pay the debt in the present or near future and the value of assets held by them are less than liability.
The Insolvency and Bankruptcy Code (IBC), 2016 had been enacted to merge the then existing laws related to insolvency and bankruptcy. Insolvency is a state in which financial difficulties of a company are such that it is unable to run its business.
In order to cut down the burden of increasing non-performing assets, different kinds of reforms were necessary. However, an immediate change in the Insolvency and Bankruptcy Laws was important. Therefore, Bankruptcy Law Reforms Committee (BLRC) in 2014 under the chairmanship of Mr. T.K. Viswanathan, former Union Law Secretary, was set up, in view of recommending an Indian Bankruptcy Code to replace the existing laws and applicable both to non-financial corporations and individuals. The draft of Insolvency and Bankruptcy Code was submitted in 2015.
Key components of IBC in resolution process
NCLT and DRT are judicially constituted special bodies for adjudicating resolution of matters related to insolvency and bankruptcy. NCLT appeals lies to National Company Law Appellate Tribunal (NCLAT) and after NCLAT, the party can appeal to the Supreme court of India. Similarly, for DRT, appeals lie to the Debt Recovery Appellate Tribunal and then to the supreme court of India. NCLT and DRT are separate tribunals. NCLT is for companies and limited liability partnerships and DRT is for unlimited liability partnerships and sole proprietors.
Committee of creditors
Committee of Creditors (COC) is given under section 21 of the Insolvency and Bankruptcy Code, 2016. COC consists only of financial creditors. The role of the COC is to approve and disapprove the resolution plan proposed by the resolution professional in Corporate Insolvency Resolution Process (CIRP). The minimum vote required to approve the resolution plan is 75% in a meeting of COC. Operational creditors are allowed to take part in the meeting of the committee of creditors but they don’t have the voting rights.
Insolvency professionals are of two types one is interim insolvency professional and the other is insolvency professionals. Interim insolvency professionals are appointed by the adjudicating authority within 7 days from the day the application has been admitted by the adjudicating authority and insolvency professionals are appointed by a committee of creditors by a majority vote of 75% in the first meeting of the COC. If the COC is not satisfied with the appointed interim insolvency professionals, they can replace them by filing an application before the adjudicating authority. The adjudicating authority then transfers the list to the Insolvency and Bankruptcy Board of India (IBBI) for the approval of the list. If the board fails to respond within 10 days then the adjudicating authority directs the interim insolvency professionals to continue with the insolvency resolution process till the time the board confirms the list of insolvency professionals.
Insolvency and Bankruptcy Board of India
Insolvency and Bankruptcy Board of India (IBBI) came into existence on 1st of Oct 2016 to regulate and counter various Insolvency and Bankruptcy cases reported by financial and operational creditors, which especially involved banks in India, home buyers and etc. The IBBI falls under the Insolvency and Bankruptcy Code, 2016.
IBBI plays the role of governing body for all such as insolvency resolution process, insolvency professional agencies and information utilities. Approving the list of resolution professionals is done by IBBI. It also enacts rules as well as enforce them to resolve corporate insolvency, corporate liquidation, individual insolvency and individual bankruptcy as per the insolvency and bankruptcy code, 2016. IBBI also takes part in making new amendments to the code.
Who can file application for corporate insolvency resolution and how
Under sec. 5(7) of IBC 2016, financial creditors are basically creditors who give money to the promoters. Banks, home buyers, etc are considered as the promotional creditors. The following steps are followed by the debtors in case of any default.
- The financial creditors can file an application before the adjudicating authority.
- After furnishing the information, within 14 days the adjudicating authority has to ascertain the default and if default has occurred then the application is admitted.
- If default has not occurred then the application is rejected.
- Adjudicating authority has to communicate the admission of the application to the financial creditors within 7 days of the admission and after that corporate insolvency resolution process takes place.
Under sec. 5(20) of IBC 2016, operational creditors are those creditors who do not give money or cash to the promoters but they provide goods and services to the promoters. For example, there is a company ‘X’ who manufacture cars and there is a company ‘Y’ who provide machines to company ‘X’ for manufacturing cars. Both companies make an agreement that once the machines are delivered to the company ‘X’, then the company ‘X’ will transfer the money to the company ‘Y’ within 20 days. So, in this case company ‘Y’ is the operational creditor and the company ‘X’ is the debtor. The process is as follows:
- The operational creditor sends demand notice to corporate debtor on occurrence of default.
- Debtor intimates the creditor within 10 days of notice of repayment of the unpaid operational or notice of existence of disputes.
- If the payment of dispute is not paid within 10 days then file an application before the adjudicating authority.
- Then operational creditors proposed for resolution professional and within 14 days the adjudicating authority has to admit or reject the application.
- Commencement of insolvency resolution process.
Under sec. 5(a) of IBC 2016, corporate debtors are the promoters who take loans or money from financial creditors or take goods or services from operational creditors as a debt. The process is as follows:
- On commission of default, the corporate debtor files an application before the adjudicating authority.
- After furnishing of information the adjudicating authority passes an order within 14 days to admit or reject the application.
- If the application is admitted, then the commencement of insolvency resolution process takes place whereas in case if the application gets rejected, notice will be sent by the adjudicating authority to rectify the defects.
Corporate Insolvency Resolution Process
After the commencement of corporate insolvency resolution the NCLT orders a moratorium on the debtor’s operations for the period of 180 days. This is termed as a ‘calm period’ during which no judicial proceedings for recovery, enforcement of security interest, sale or transfer of assets, or termination of essential contracts can take place against the debtor..
If the Resolution Process fails to find a resolution for the corporate debtor within the stipulated timeline or if the COC does not approve the resolution plan by a vote of not less than 66% of the voting share, the corporate debtor is liquidated.
After the adjudicating authority passes an order under section 33 of the Code, the debtor goes into liquidation, the resolution professional who was appointed for the Corporate Insolvency Resolution Process shall act as the liquidator for the purposes of liquidation, subject to submission of a written consent to the Adjudicatory Authority, unless replaced.
Where the resolution professional, at any time during the corporate insolvency resolution process but before confirmation of resolution plan, intimates the Adjudicating Authority of the decision of the committee of creditors to liquidate the corporate debtor, the Adjudicating Authority shall pass a liquidation order as referred to in sub-clauses (i), (ii) and (iii) of clause (b) of sub-section (1) section 33 of the insolvency and bankruptcy code.
On receipt of an application under sub-section (3), if the Adjudicating Authority determines that the corporate debtor has contravened the provisions of the resolution plan, it shall pass a liquidation order as referred to in sub-clauses (i), (ii) and (iii) of clause (b) of sub-section (1) subject to section 52, when a liquidation order has been passed, no suit or other legal proceeding shall be instituted by or against the corporate debtor with exception in sub section (5) and (6) of section 33 of the code.
Achievements of Insolvency and Bankruptcy Code
- Ease of doing business – due to the faster insolvency resolution process.
- Deepening of bond markets to increase confidence among the creditors of getting the money back from the debtors.
- Stronger institutional framework such as Insolvency and Bankruptcy board of India (IBBI), National Company Law Tribunal (NCLT) etc.
- Reduction in Non Performing Assets (NPAs) is one of the biggest achievements of insolvency and bankruptcy code,2016.
- The professionalisation of process with the help resolution professional.
- In 2 years of insolvency and bankruptcy code 2016, 1332 cases have been admitted before the NCLT and 4452 cases have been disposed of at pre-admission stage. This ultimately helped recover and settle around Rs. 2.2 lakh crore.
- 66 cases resolved after adjudication and realisation of creditors around Rs 80,000 crore in resolution cases.
- Helped to resolve and cure 12 big companies like Electrosteel Steels, Bhushan Steel, Monnet Ispat & Energy, Amtek Auto and few companies have been referred for liquidation because nobody came to buy them and a total 260 cases have been ordered for liquidation.
- 12 loan defaulters are Bhushan steel, LancoInfratech, ESSAR steels, Bhushan Power and Steel, Alok Industry, AmtekAuto, Electro Steel limited, Era Infra, Jaypee Infra Tech, ABGShipyard, Jyoti Structures and Monnet Ispat & Energy, constitute 25% of bad loans.
- Many cases are settled outside the courts by using the Alternative resolution process.
- Companies pay up in anticipation of not being referred to NCLT after introduction of section 29(a). Bank receiving money from potential debtors who pay in anticipation of default.
- Defaulters know that if they will get into IBC they will be out of management of their company because of section 29(a), so the companies are clearing their NPAs.
- No political and governmental interference.
Need of Insolvency and Bankruptcy Code (amendment), 2020
Due to the novel coronavirus disease,it has created a destruction around the globe. Till date many people are infected across the world and the number is increasing rapidly. To combat the spread of coronavirus and to break the chain, various countries including India have imposed lockdowns. Lockdown has affected the economy, financial market and businesses have been temporarily stopped which is affecting the cash flow in the market which increases the non-performing assets and causing defaults in payments to the creditors/banks/financial institution. The government of India, in order to safeguard the interest of the corporate debtors and to rescue those corporate persons who may commit defaults towards their debt obligations, the Central Government brought two amendments for insolvency and bankruptcy code, 2016.
- Including the raising of threshold for initiating the corporate insolvency resolution process (“CIRP”) under Section 4 of the Code, from one lakh rupees to one crore rupees, vide a notification issued by the Ministry of Corporate Affairs (MCA) dated 24 March, 2020.
- Section 10A of IBC, 2016: suspension of initiation of corporate insolvency resolution process Notwithstanding anything contained in section 7, section 9, and section 10 of the IBC, 2016- No application for initiation of corporate insolvency resolution process of a corporate debtor shall be filled, for any default arising on or after 25th march 2020 for a period of 6 months not exceeding 1 year from such date as may be notified i.e. 05.06.20. It is hereby clarified that the provision of this section shall not apply to any default under the said sections before 25th March 2020.
In 2016, India ranked 136 out of 189 countries in the World Bank’s index on the ease of resolving insolvencies and as of 2019, India’s ranking in the World Bank’s index on resolving insolvency has jumped to the 63rd rank. In India, before IBC came into existence, the recovery rate of debt was around 26% and the time taken for closure of cases was over four years. With the recommendation for introducing IBC, now the average recovery rate is 43% in case of financial creditors and 49% in case of operational creditors. IBC applies to both companies and individuals, providing them with a time bound process to resolve insolvency. Due to the pandemic caused by Covid-19, many companies and individuals will fail to pay their debts, which will increase the number of Non Performing Assets. Therefore, IBC (amendments) will play a significant role in protecting the interest of the companies (debtors) and for banks (creditors). In the present era, there are numerous laws and forums which deal with various financial failures and insolvency issues for a large number of bodies. However, the Insolvency and Bankruptcy Code is one the best reforms by the Modi government given the way it has been drafted, which is truly commendable.
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