After the introduction of G.S.T, on May 11, 2016 the Rajya Sabha passed Insolvency and Bankruptcy Code, 2016’ which is considered to be the major economic reform Bill moved by the Government of India. The Bill received Presidential assent on May 28, 2016 and was notified in the official gazette.
Earlier before the introduction of the bill, the lenders were unconfident with various overlapping laws in India with relation to the recovery or restructuring of the defaulted assets.
According to the Government, the outcome for the recovery action by creditors were not as desired through the Contract Act or through special laws such as the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.
In addition, recovery actions through the Sick Industrial Companies (Special Provisions) Act, 1985 and the winding up provisions of the Companies Act, 1956 has not been in favour of lenders.
Also, the laws dealt with individual insolvencies such as Presidential Towns Insolvency Act, 1909 and the Provincial Insolvency Act. 1920 were outdated.
The Government observed that a critical improvement is required in the credit market regime and a reform in the laws related to insolvency and bankruptcy can only help to bring back the confidence of the creditors to invest in creditors market. The debt access of the borrowing class was critically down and resulted in the economic slowdown in India.
Moreover, the legal and institutional framework existed in India for the effective and timely recovery and restructuring of defaulted assets were not in line with global standards.
To revive the economy of India and to enhance the confidence of creditors, the Government has decided to give a face-lift to the laws relating to debt defaults.
The new law is aimed to consolidate and amend the laws relating to insolvency and restructuring of corporate, individuals and partnerships in a time bound manner.
The Government has the view that such consolidation would aid great clarity in debt default laws and would facilitate the application of consistent and coherent provisions to different stakeholders affected by business failure or inability to pay debt.
The main goal is to promote entrepreneurship, availability of credit, and balance the interests of all stakeholders for maximization of value of assets of such persons and matters connected therewith or incidental thereto.
In short, the law aims to consolidate the laws relating to insolvency of companies and limited liability, unlimited liability partnerships and individuals, presently contained in a number of legislations, into a single legislation.
The consolidations of laws relating to insolvency and bankruptcy have significant features and are discussed as under:-
- Simple Process: The new law ensures comprehensive, logical and swift process for early identification of financial distress and resolution of companies and limited liability entities, subject to the viability of its fundamental business.
- Tribunals as adjudicate Authority: The new rule granted formation of two tribunals to act as adjudicate Authority and deal with the cases related to insolvency, liquidation and bankruptcy process. The Debt Recovery Tribunal to oversee insolvency, liquidation and bankruptcy process of individuals and unlimited partnership firms, whereas National Company Law Tribunal to administer those of companies and limited liabilities entities.
- Diverse processes: Two distinct processes for resolution of individuals, namely- “Fresh Start” and “Insolvency”
- Regulatory Panel: The provisions of the new rule establishes ‘Insolvency and Bankruptcy Board of India’ to exercise regulatory oversight over insolvency professionals, insolvency professional agencies and information utilities.
- Insolvency professionals:Insolvency professionals would handle the commercial aspects of insolvency resolution process. Insolvency professional agencies will develop professional standards, code of ethics and be first level regulator for insolvency professionals members leading to development of a competitive industry for such professionals.
- Information efficacy: Information utilities would collect, collates, authenticate and disseminate financial information to be used in insolvency, liquidation and bankruptcy proceedings.
- Cross border insolvency: Enabling provisions to deal with cross border insolvency.
- Provision to Resuscitate: The new also provides shareholders/promoters to have 180 days to evaluate proposals from various players before it transfers its control over the company to a Committee of Creditors on debt defaults. Accordingly, the new law improves the managements’ probability to continue the company as a going concern. Also, the productive resources of the economy such as the labour and the capital can be explored to its best.
The terms with related to the Insolvency and Bankruptcy code which require further explanations is discussed as below:
National Company Law Tribunal (NCLT) & Debt Recovery Tribunal (DRT)
National Company Law Tribunal (NCLT) would deal with matters relating to corporate insolvency, Limited Liability Partnership and enforcement of personal guarantees related to corporate debtors.
Debt Recovery Tribunal (DRT) would deal with individual insolvency and partnership. Appeals from the order of the DRT will lie to the Debt Recovery Appellate Tribunal (DRAT), whereas the National Company Law Appellate Tribunal (NCLAT) shall be the appellate authority to hear appeals arising out of the orders passed by the Regulator in respect of insolvency professionals or information utilities.
Adjudication authority would have exclusive jurisdiction to deal with insolvency related matters, no injunction shall be granted by any court, tribunal or authority in respect of any action taken, or to be taken, in pursuance of any power conferred on the NCLT/ DRT.
Insolvency Resolution Professional
The Bill proposes to regulate insolvency professionals and insolvency professional agencies. Under the oversight of the Board, these agencies will develop professional standards, codes of ethics and exercise a disciplinary role. Three sets of Resolution Professionals are sought to be appointed – Interim Resolution Professional, Final Resolution Professional and Liquidator.
Insolvency Information Utilities: As per the provisions of the new code, an individual insolvency database is suggested to collect, collate, authenticate and disseminate financial information from listed companies as well as financial and operational creditors of companies. This action is expected to provide information on the insolvency status of individuals.
Moratorium: During the creditor action is stayed, the Adjudicating Authority on the recommendation of the Resolution Professional can grant Moratorium.
Liquidation: Based on the vote of the majority of the creditors, on failure of the submission of resolution plan within the prescribed period, the liquidation process is initiated.
Liquidation Estate & Priority: The assets held by the debtor are recovered during the liquidation process and will be distributed by the liquidator in the manner of priorities laid in the law. Individual claimants or those claiming to have any special rights on assets of the debtor will form part of the liquidation process.
The following debts will be paid in priority given below:
- Insolvency Resolution cost and liquidation cost
- Debts to secured creditor and workmens’ dues
- Wages and unpaid dues to employees
- Financial debts to unsecured creditors and workmen’s dues for earlier period
- Crown debts and debts to secured creditor following enforcement of security interest
- Remaining debts
- Preference shareholders
- Equity Shareholders or partners
Cross border insolvency
As per the provision of the code, the Government of India can enter into agreements with any country outside India for enforcing provisions of the Code and notify applicability of the same from time to time.
Further, assets of the debtor located outside India may also be included for the purpose of the insolvency resolution process and/or liquidation before the Adjudicating Authority.
The process begins with the filing of the insolvency application, the details with respect to such insolvency or bankruptcy should be mentioned there in.
The application with the Adjudicating Authority is carefully examined considering all the aspects of the defaulted debts, The Authority then admits or rejects such application upon completion of the scrutiny.
Further to the rejection of the application, the Authority notifies the applicant to rectify the defects in the application and re-file the same within seven days.
A moratorium is declared upon admission of the application by the Authority.
The Second phase of the insolvency involves the appointment of the interim Insolvency Resolution Professional.
The interim resolution professional constitutes a committee of the creditors and arrives at the appointment of final resolution professional.
A public announcement is made with regard to the insolvency of the company.
The Resolution Professional prepares information memorandum and a detailed Resolution Plan is prepared.
The same is submitted to the committee of creditors for examination and upon approval it is submitted with the Adjudicating Autority. On careful evaluation of the same,
The Plan can either be admitted or rejected. If rejected the Liquidation process of the business entity is initiated. If approved, the Moratorium ceases to have effect.
Generally, the Insolvency process will take more than 180 days to complete.
Provisions of the Code
The provisions of this Code shall be applicable to:
The companies incorporated under the Companies Act of 2013 or its previous versions
- The Companies governed by any special Act for the time being in force, except in so far as the said provisions are inconsistent with the provisions of such special Act;
- The Limited Liability Partnerships incorporated under the Limited Liability
Partnership Act, 2008
- The partnership firms and individuals, in relation to their insolvency, liquidation, voluntary liquidation or bankruptcy, as the case may be.
- The other bodies incorporated under any law for the time being in force, as the Central Government may, by notification, specify in this behalf
The vision of the new law is to encourage entrepreneurship and innovation. Some business ventures will always fail, but they will be handled rapidly and swiftly.
Entrepreneurs and lenders will be able to move on, instead of being bogged down with decisions taken in the past.
Click here to Company Formation India
- Insolvency and Bankruptcy Code in India
- How to Liquidate a Company in India under the Insolvency and Bankruptcy Code
- Lifting of the Corporate Veil
- Winding up of a Private Limited Company by the Tribunal
- How to Close (Winding up) a Private Limited Company in India
- Fast Track Exit Scheme
- Closing an OPC
- Closing an LLP
- Essential Features of a Company
- An Introduction to Companies Under the Indian Company Law