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Insolvency and Bankruptcy Code, 2016

Introduction

Insolvency and Bankruptcy Code, 2016, India’s new bankruptcy law aims to consolidate the existing laws by framing a single law for insolvency and bankruptcy of corporate entities, partnership firms and individuals. With the enactment of the Code, the Presidency Towns Insolvency Act, 1909 and the Provincial Insolvency Act, 1920 are repealed. In addition, 11 laws were amended. These are DRT Act 1993, SARFAESI Act 2002, SICA Repeal Act, 2003, LLP Act, 2008 and Companies Act, 2013. The many overlapping laws and judicial authorities currently in force in India dealing with financial defaults and insolvency of corporate undertakings, partnership firms and individuals create a number of conflicting situations. Thus, the current framework does not provide creditors, debtors and other interested parties with the final outcome and resolution process within the time frame. Against this backdrop, the Code legislation, which is part of the second generation of economic reforms in India, is designed to address the complexities of timely regularization of the insolvency resolution process. The existing legal and institutional framework does not facilitate effective and timely recovery or restructuring of non-performing assets, resulting in undue strain on the Indian credit system. In view of these difficulties, the Code, in its legal framework, aims to complete the entire resolution process in a timely manner. If properly applied, the Code may improve the business environment and ease the strain on credit markets.

Purpose of the code:

In the preamble of the Code, the purpose is very clearly stated. “With the organization of corporate persons, partnership firms and natural persons and the law on consolidation and amendment of insolvency resolution laws in a timely manner in order to maximize the value of the assets of these persons, to promote entrepreneurship, access to credit and balancing.” interests of all these stakeholders, including rescheduling of payment of government dues and setting up of the Insolvency and Bankruptcy Board of India and for matters connected therewith or connected therewith.

Key highlights:

• The code consists of five parts. Although Parts I and V have no chapters, each of the other parts contains seven chapters. Part III dealing with insolvency resolution and winding up for sole proprietorship and partnership firms contains the maximum number of sections (110) followed by Part II dealing with insolvency resolution and liquidation for corporate entities with sixty four (74) sections. Part IV, which deals with the regulation of insolvency professionals, agencies and information enterprises, contains thirty-six (36) sections. Part V, dealing with miscellaneous, contains thirty-two (32). Part I, which mainly deals with definitions, contains three (3) parts.

• The Code does not address the legal framework for bankruptcy resolution of financial institutions and financial service providers.

• The Code introduced the concept of multiple entities for the first time in Indian Insolvency and Bankruptcy Law. These entities are Insolvency Professional Agencies (IPAs), Insolvency Professionals (IPs), Interim Resolution Professionals (IRPs), Resolution Professionals (RPs), Resolution Applicant (RAs), Information Utility (IU), Committee of Creditors (CC), Financial Creditor (FCs) ), Operating Creditors (OCs), Corporate Debtors (CDs).

• Creditors are classified as financial, operational, secured, unsecured and decree holders.

• The Adjudicating Authority (AA) for Corporate Persons is NCLT and for Partnership Firms and Individuals the same is DRT.

• The term for completion of insolvency proceedings is 180 days with an extension of another 90 days – a total of 270 days.

• The AA will by order declare a moratorium during the entire period of the insolvency proceedings, by virtue of which no enforcement action can be taken by anyone disturbing the operation of the corporate debtor as a going concern.

• Corporate Insolvency The insolvency resolution process has been introduced for certain categories of corporate debtors.

• Any person connected with the decision process of the company aggrieved by the order of the AA may prefer an appeal to the National Company Law Appellate Tribunal (NCLAT). The concerned person aggrieved by the order of NCLAT may prefer to approach the Hon’ble Supreme Court.

• Same for individuals and partnership firms is Debt Recovery Appellate Tribunal and then Hon’ble Supreme Court.

• Steps to be taken by a financial creditor in the corporate insolvency resolution process

1. Financial Lenders (FC), individually or jointly with other FCs, apply to AA with all necessary details.

2. AA accepts statement/correction of defects.

3. AA sends a notice to correct the defects within 7 days.

4. The AA acknowledges the application within 14 days following all the requirements of the Code and notifies the secured creditor and the corporate debtor.

5. Insolvency resolution process (ICD) begins.

6. AA means IRP within 14 days of ICD.

7. IRP takes responsibility for CD matters.

8. IRP collects all necessary information/data/claims and ascertains the financial status of the CD.

9. IRP represents CC.

10. CC either accepts IRP as RP or designates new RP through AA.

11. The resolution plan will be presented by R.A.

12. RP reviews the plan and submits it to SC for approval.

After that, two situations can arise.

Situation 1:

1. The Council approves the plan with a vote of at least 75% of the votes of the SC.

2. RP submits approved plan to AA.

3. The AA approves the plan, which is binding on the CD and other interested parties, including the sureties.

or

3. AA rejects plan and orders liquidation.

4. Liquidation process begins, RP takes all steps for liquidation of the company in accordance with the provisions of the Code.

Situation 2:

1. The CSC rejects the plan with a majority.

2. AA orders for liquidation.

3. Liquidation process begins, RP takes all steps for liquidation of the company in accordance with the provisions of the Code.

In the case of an operational lender, the steps are almost the same, except the documents to be submitted to the AA are different. In the case of a corporate client, the steps are almost the same as for financial lenders.

Reorientation of central government policy to deal with industrial sickness and further growth of non-working assets

A favorable industrial climate in any economy should provide a favorable environment for doing business and a quick exit route in case an industrial unit does not perform well. In the early 1980s, when the government realized this, it began to relax its controls on the industry. Incompetent industries that received protection from the government came to a serious discussion. Nationalization as a solution was agreed to be ineffective. At the same time, in the absence of proper bankruptcy laws and exit policies, restructuring through market-oriented forces in the country has also proved ineffective. Due to pressure from various political quarters, the government ultimately chose a middle path. The enactment of SICA, 1985, was the result of such a policy decision at the central government level. The BIFR, which was created to operationalize the provisions of SICA, has not functioned as expected by the policy makers. SICA has been heavily abused by corporate debtors to the extent that it has been used as a shield for defaulting on creditors. This was mainly due to the provisions contained in section 22 of SICA 1985. Meanwhile other Acts namely DRT Act, 1993, SARFAESI Act, 2002 were mainly passed not to restructure and rehabilitate sick companies but. With the primary objective of collecting payments from secured creditors. Even then, there were no tangible results either in terms of revival or debt relief. The result was a sharp increase in the growth of NPAs. In such an economic environment investors did not show much interest in investing in India. The government was also under pressure from international agencies, namely the IMF and the World Bank, to implement a second generation of economic reforms. The result was the enactment of the Insolvency and Bankruptcy Code, 2016.

conclusion

India is ranked 136 out of 189 countries in terms of insolvency resolution. In India, it takes around 4.3 years to resolve an insolvency, against the world average of 2.6 years. World Bank data shows that there is a positive correlation between creditor recovery rates and the strength of the insolvency legal framework. In this perspective, the Code promises far-reaching reforms focusing on the insolvency resolution process for creditors. Despite the Code being a uniform law providing for a structured and time-bound process for insolvency resolution and liquidation, it remains to be seen over time whether the various provisions and steps contained in the Code will make any difference. Addressing the growing problem of industrial illness. When a specialized group of experts, ie. BIFR has failed, it remains to be seen how effective the NCLT with its combined and composite functions will be to resolve the range of problems related to the country’s underperforming manufacturing activities. Moreover, a review of the literature on the insolvency system prevailing in different countries suggests that well-designed insolvency laws do not necessarily guarantee the recovery of debts to the extent predicted. Again, there are economies that have well-designed laws but face challenges in implementing them effectively. However, the enactment of the Code, which provides for a streamlined, time-bound and collective process for insolvency resolution and liquidation, is a step in the right direction.

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