Insolvency Resolution Process

Demand Notice under the Insolvency and Bankruptcy Code, 2016

Chandni Joshi , ,

Demand Notice under the Insolvency and Bankruptcy Code, 2016

 

Introduction

The Insolvency and Bankruptcy code, 2016 (IBC) is a consolidation of all existing insolvency laws in India. The code provides a time bound and expedited process for resolving insolvency and bankruptcy cases in India. It was introduced in 2015 by the former finance minister of India, Late Arun Jaitley. The Code proposes two separate tribunals to oversee the process of insolvency resolution namely:

  1. The National Company Law Tribunal
  2. The Debt Recovery Tribunal

Format Of Section 8 Demand Notice Under IBC 2016 - Registrationwala

Demand Notice under IBC

Section 8 of the Insolvency and Bankruptcy Code, 2016, as mentioned below, lists down the procedure to be followed by an operational creditor in case of default by the debtor.

  1. (1) An operational creditor may, on the occurrence of a default, deliver a demand notice of unpaid operational debtor copy of an invoice demanding payment of the amount involved in the default to the corporate debtor in such form and manner as may be prescribed

(2) The corporate debtor shall, within a period of ten days of the receipt of the demand notice or copy of the invoice mentioned in sub-section (1) bring to the notice of the operational creditor—

(a) existence of a dispute, if any, and record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such dispute;

(b) the repayment of unpaid operational debt—

(i) by sending an attested copy of the record of electronic transfer of the unpaid amount from the bank account of the corporate debtor; or

(ii) by sending an attested copy of record that the operational creditor has encashed a cheque issued by the corporate debtor.

Explanation: For the purposes of this section, a “demand notice” means a notice served by an operational creditor to the corporate debtor demanding repayment of the operational debt in respect of which the default has occurred.

The IBC Code, 2016 mandates it for an operational creditor (complainant) to send a demand notice to the debtor in question before initiating corporate insolvency resolution proceedings.

An “operational creditor” is further defined under Section 5(20) as follows:

(20) “operational creditor” means a person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred;

LANDMARK JUDGEMENTS

In the 2017 case of Macquarie Bank Limited vs Shilpi Cable Technologies Ltd, the Supreme Court settled the law pertaining to two important issues mentioned below.

Firstly, whether the provision under Section 9 (3)(c) of the Code which mandates that in order to trigger CIRP against the Corporate Debtor, “”a copy of the certificate from the financial institutions maintaining accounts of the operational creditor confirming that there is no payment of an unpaid operational debt by the corporate debtor.” is it mandatory or not?

And secondly, whether a demand notice of an unpaid Operational Debt under Section 8 can be issued by a lawyer or an authorized representative on behalf of the Operational Creditor?

Clarifying about the provisions mentioned under Section 9(3)(c), the Supreme Court observed that, “it is equally clear that a copy of the certificate from the financial institution maintaining accounts of the operational creditor confirming that there is no payment of an unpaid operational debt by the corporate debtor is certainly not a condition precedent to triggering the insolvency process under the Code. The expression “confirming” makes it clear that this is only a piece of evidence, albeit a very important piece of evidence, which only “confirms” that there is no payment of an unpaid operational debt. This becomes clearer when we go to sub-clause (d) of Section 9(3) which requires such other information as may be specified has also to be furnished along with the application.”

This issue is specifically relevant to the foreign operational creditors who could not maintain accounts with the recognized financial institutions and thus were prevented from initiating the insolvency proceedings since such institutions were unable to produce the requisite certificate.[1]

In reference to the second issue, the Supreme Court noted that, “Section 8 of the Code speaks of an operational creditor delivering a demand notice. It is clear that had the legislature wished to restrict such demand notices being sent by the operational creditor himself, the expression used would perhaps have been “issued” and not “delivered”. Delivery, therefore, would postulate that such notice could be made by an authorized agent. In fact, in Forms 3 and 5 extracted hereinabove, it is clear that this is the understanding of the draftsman of the Adjudicatory Authority Rules, because the signature of the person “authorized to act” on behalf of the operational creditor must be appended to both the demand notice as well as the application under Section 9 of the Code. The position further becomes clear that both forms require such authorized agent to state his position with or in relation to the operational creditor. A position with the operational creditor would perhaps be a position in the company or firm of the operational creditor, but the expression “in relation to” is significant. It is clear, therefore, that both the expression “authorized to act” and “position in relation to the operational creditor” go to show that an authorized agent or a lawyer acting on behalf of his client is included within the aforesaid expression. A conjoint reading of Section 30 of the Advocates Act, 1961 and Sections 8 and 9 of the Code together with the Adjudicatory Authority Rules and Forms thereunder would further yield the result that a notice sent on behalf of an operational creditor by a lawyer would be in order.”

Another landmark judgement was delivered by the Supreme Court in the case of Alloysmin Industries Vs. Raman Casting Pvt. Ltd. on the issue of delivery of a demand notice. It was held that, “If the demand notice under Section 8 (1) is served on Corporate Debtor either on its Registered Office or its Corporate Office, it should be treated to be valid service of notice under Section 8 and application under Section 9 on failure of payment, if filed after 10 days, is maintainable.”

The case of Sandesh Ltd vs. Realm Media Solutions Pvt. Ltd. divulges into the issue of ignorance by the corporate debtor of the demand notice. The appellant rightly issued a demand notice before initiating CIPR against the debtor. No reply being received, the appellant filed a case under the Code. After NCLT rejected the application on the ground that there is no proof that the notice was delivered to the ‘Corporate Debtor’ at the registered office, the appellant issued fresh notice to the current address of the debtor. The appellant further published the notice in two newspapers but failed to get an acknowledgement from the respondent. After this incident, the NCLAT held that, “the Respondent is deliberately avoiding the service of notice and the stand taken by the Appellant that the Respondent is deliberately avoiding to receive the Demand Notice u/s. 8(1) of the Insolvency & Bankruptcy Code (I&B Code) is correct. In the circumstances, we hold that the Demand Notice u/s. 8(1) of the Insolvency & Bankruptcy Code (I&B Code) deemed to have been served on the Respondent and thereby the application u/s. 9 was maintainable.”

AUTHOR: VISMITA RATHI

 

[1] https://www.mondaq.com/india/insolvencybankruptcy/670620/demand-notice-under-section-8-of-the-insolvency-and-bankruptcy-code-2016-can-be-filed-by-lawyer-on-behalf-of-the-operational-creditor-provision-under-section-93c-of-the-code-is-not-mandatory

CORPORATE INSOLVENCY RESOLUTION PROCESS (CIRP)

Chandni Joshi , , , ,

CORPORATE INSOLVENCY RESOLUTION PROCESS (CIRP)

 

Introduction

Under the Insolvency and Bankruptcy Code, 2016, the Corporate Insolvency Resolution Process (CIRP) is a recovery mechanism made available to creditors (IBC). The concerned creditor or the corporate entity (the debtor) itself may commence CIRP if a corporate entity becomes insolvent (unable to repay debt).

Initiation of Insolvency

Chapter 2, section 6 of IBC, 2016 states that, “where any corporate debtor commits a default, a financial creditor, an operational creditor or the corporate debtor itself may initiate corporate insolvency resolution process in respect of such corporate debtor in the manner as provided under the act”.

IBC: Getting your dues: Procedure for creditors to file under IBC - The Economic Times

Steps for CIRP (Process)

 

  • Initiation of Corporate Insolvency Resolution process by Financial Creditor

 

  • Section 5 (7) of IBC, 2016 defines “financial creditor” as any person to whom a financial debt is owed and includes a person to whom such debt has been legally assigned or transferred to.
  • Section 7 of IBC, 2016 mentions process for Initiation of Corporate Insolvency Resolution process by Financial Creditor –

Submission of Application

  1. When a default has occurred, a financial creditor may submit an application with the Adjudicating Authority to begin the corporate insolvency resolution procedure against a corporate debtor, either individually or collectively with other financial creditors.
  • Adjudicating Authority for the purposes of this act, means National Company Law Tribunal constituted under section 408 of the Companies Act, 2013.
  1. The financial creditor shall make an application in such form and manner and accompanied with such fee as may be prescribed.
  2. The financial creditor shall, along with the application furnish –
  1. record of the default recorded with the information utility or such other record or evidence of default as may be specified,
  2. the name of the resolution professional proposed to act as an interim resolution professional,
  3. any other information as may be specified by the Board.
  1. The Adjudicating Authority shall, within 14 days of the receipt of the application, ascertain the existence of a default from the records of an information or on the basis of other evidence furnished by the financial creditor.
  2. The adjudicating authority must be satisfied that the application is proper and complete, that a default has occurred, and that no disciplinary proceeding against the proposed resolution professional is pending. If the adjudicating authority is not satisfied, the application may be rejected. If the application is not complete then, adjudicating authority shall give the applicant the timeline of 7 days to amend the application.
  3. The corporate insolvency resolution process shall commence from the date of admission of the application.
  4. The Adjudicating Authority shall communicate the order to the financial creditor and the corporate debtor within 7 days of admission or rejection of such application, as the case may be

Initiation of Corporate Insolvency resolution process by operational creditor

  • Section 5 (20) of IBC, 2016 defines “operational creditor” means a person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred.
  • Section 8 of IBC, 2016 mentions Insolvency resolution by operational creditor,

Delivery of Demand Notice

  1. On the occurrence of a default, an operational creditor may deliver to the corporate debtor a demand notice of unpaid operational debtor copy of an invoice seeking payment of the amount involved in the default in the form and manner authorised.
  2. It is the responsibility of the Corporate Debtor to respond to the Operational Creditor’s Demand Notice within 10 days of receiving it. To bring to the notice of the operational creditor—
  1. existence of a dispute, if any,
  2. the repayment of unpaid operational debt
  • A “demand notice” is a notification delivered by an operational creditor to the corporate debtor seeking repayment of the operational debt in respect of which the default has occurred for the purposes of this section.
  • Section 9 of IBC, 2016 provides Application for initiation of corporate insolvency resolution process by operational creditor –

Process after expiry of 10 days after delivering notice

  1. After the expiry of the period of 10 days from the date of delivery of the notice or invoice demanding payment, if the operational creditor does not receive payment from the corporate debtor or notice of the dispute, the operational creditor may file an application before the Adjudicating Authority for initiating a corporate insolvency resolution process.
  2. The application shall be filed in such form and manner and accompanied with such fee as may be prescribed.
  3. The operational creditor shall, along with the application furnish—
  1. a copy of the invoice demanding payment or demand notice delivered by the operational creditor to the corporate debtor;
  2. an affidavit to the effect that there is no notice given by the corporate debtor relating to a dispute of the unpaid operational debt;
  3. a copy of the certificate from the financial institutions maintaining accounts of the operational creditor confirming that there is no payment of an unpaid operational debt by the corporate debtor; and
  4. such other information as may be specified.
  1. An operational creditor initiating a corporate insolvency resolution process under this section, may propose a resolution professional to act as an interim resolution professional.
  2. The Adjudicating Authority shall, within 14 days of the receipt of the application, by an order admit the application and communicate such decision to the operational creditor and the corporate debtor if it is satisfied that the application made is complete, there is no repayment of the unpaid operational debt, the invoice or notice for payment to the corporate debtor has been delivered by the operational creditor, no notice of dispute has been received by the operational creditor or there is no record of dispute in the information utility and there is no disciplinary proceeding pending against any resolution professional. If the Adjudicating Authority is not satisfied it can reject the application.
  3. If the application is not complete then, adjudicating authority shall give the applicant the timeline of 7 days to amend the application.
  4. The corporate insolvency resolution process shall commence from the date of admission of the application.
  5.     Initiation of corporate insolvency resolution process by corporate applicant.
  • As per Section 10, a corporate applicant may file an application before adjudicating Authority for initiating CIRP against corporate debtor. The corporate applicant has been defined by the Code under Section 5 (5) which is reproduced here:
  1. corporate debtor; or
  2. a member or partner of the corporate debtor who is authorised to make an application for the corporate insolvency resolution process under the constitutional document of the corporate debtor; or
  3. an individual who is in charge of managing the operations and resources of the corporate debtor; or
  4. a person who has the control and supervision over the financial affairs of the corporate debtor;
  • Section 10, IBC 2016 provides Initiation of corporate insolvency resolution process by corporate applicant
  1. When a corporate debtor defaults, a corporate applicant may submit an application with the Adjudicating Authority to initiate the corporate insolvency resolution procedure.
  2. The application shall be filed in such form, containing such particulars and in such manner and accompanied with such fee as may be prescribed.
  3. The corporate applicant shall, along with the application furnish the information relating to
  1. its books of account and such other documents relating to such period as may be specified; and
  2. the resolution professional proposed to be appointed as an interim resolution professional.
  1. The application will be accepted or rejected by the Adjudicating Authority. If the application is rejected, the Adjudicating Authority shall allow the applicant a 7-day period from the date of receipt of the rejection notice to rectify or amend the application.
  2. The corporate insolvency resolution process shall commence from the date of admission of the application.

Fastrack CIRP

Chapter 4 of IBC, 2016 deals with FAST TRACK CORPORATE INSOLVENCY RESOLUTION PROCESS. The major goal of including the idea of fast track CIRP in the insolvency law was to enhance our country’s ease of doing business rating. The goal of fast track CIRP procedures is to reduce the unnecessary delay created by a small-scale company’s insolvency.

 

  • Fast track corporation insolvency resolution process.

 

As per section 55 of IBC, 2016 defines states that an application for initiation of Corporate Insolvency Process can be made only against these below-mentioned corporate debtors

  1. a corporate debtor with assets and income below a level as may be notified by the Central Government,
  2. corporate debtor with such class of creditors or such amount of debt as may be notified by the Central Government,
  3. such other categories of corporate persons as may be notified by the Central Government.

 

  • Time period for completion of fast-track corporate insolvency resolution process

 

As per Section 56,

  1. The fast-track corporate insolvency resolution process shall be completed within a period of 90 days from the insolvency commencement date.
  2. The resolution professional shall file an application to the Adjudicating Authority to extend the period of the fast-track corporate insolvency resolution process beyond 90 days if instructed to do so by a resolution passed at a meeting of the committee of creditors and supported by a vote of 75 percent of the voting share.
  3. On receipt of an application, if the Adjudicating Authority is satisfied that the subject matter of the case is such that fast track corporate insolvency resolution process cannot be completed within a period of 90 days, it may, by order, extend the duration of such process beyond the said period of 90 days by such further period, as it thinks fit, but not exceeding 45 days: Provided that any extension of the fast track corporate insolvency resolution process under this section shall not be granted more than once.

Manner of initiating fast track corporate insolvency resolution process.

As per Section 57,

  1.  An application for fast-track corporate insolvency resolution process may be filed by a creditor or corporate debtor as the case may be, along with
  2. the proof of the existence of default as evidenced by records available with an information utility or such other means as may be specified by the Board
  3. such other information as may be specified by the Board to establish that the corporate debtor is eligible for fast-track corporate insolvency resolution process. 

INDIVIDUAL INSOLVENCY: UNDER THE IBC

Chandni Joshi , , , ,

INDIVIDUAL INSOLVENCY: UNDER THE IBC

Introduction 

The Insolvency and Bankruptcy code is a landmark piece of legislation providing a facelift to the existing regime in the areas of restructuring and the insolvency and bankruptcy in India. The code provided the biggest missing piece in the existing jigsaw of laws by establishing a framework for time-bound resolution for defaulting debts. The journey of the code is long-lasting as the code will go a long way in bringing an element of certainty and predictability to commercial transactions in the country thereby providing Ease of Doing Business. 

Insolvency process: IBC to have provisions dealing with individual insolvency, says IBBI chairman - The Financial Express

 

What are individual insolvency laws?

Any debtor who is an individual, sole proprietorship or a partnership firm can be governed by individual insolvency laws, when such debtor is unable to meet its obligations to its creditors. These laws give debtors relief by allowing them to go to the court to either restructure their debts or avail discharge from their duty to repay their debts after liquidating their assets and distributing the proceeds to creditors. 

The individual insolvency law has a more social perspective, as it aims to save an individual from being pressured by creditors and criticized by society. The goal is to provide relief to the individual so that he can resume his peaceful life. Thus, personal insolvency laws seek to strike a balance between the rights of debtors (by enabling them to be free of debt burdens) and creditors (by ensuring repayments to the extent possible).

Before IBC made its mark, the corporate insolvency law in India too, drew inspiration from personal insolvency law. The personal insolvency law, in turn, was contained in two centenarian (even older!) laws, namely, Presidency Towns Insolvency Act 1909 (PTIA) and Provincial Insolvency act, 1920 (PIA). 

Although the new code, IBC contains specific provisions for individual insolvency resolution, it has only been notified of corporate insolvency so far. Individual insolvency provisions in the IBC have only been operationalized for people who have provided guarantees for loans taken out by companies, not for other individuals or businesses (operating as sole proprietorships or partnership firms). Thus, creating lacuna in existing laws and eliminating the possibility of population getting benefitted by the unnotified provisions. So far, the Central Government and IBBI has come up with draft rules and regulations.  (INSOLVENCY RESOLUTION PROCESS FOR INDIVIDUALS AND FIRMS) REGULATIONS, 2017 IBBI/2017-1  

Insolvency resolution and bankruptcy for individuals and partnership firms

Part III of the code deals with the insolvency resolution and bankruptcy for individuals and partnership firms, where the amount of default is not less than Rs.1,000. The adjudicating authority of insolvency resolution for the individual and partnership firms would be the Debt Recovery Tribunal (DRT). The Notification dated 15th November 2019 (hereinafter “Notification”) of the Central Government brought into force provisions of the Part III of the IBC, providing for insolvency and bankruptcy for individuals and partnership firms was the basis for the writ petitions filed before the High Courts. The Notification brought into force Section 78 and 79 of the IBC relating to applicability of the insolvency and bankruptcy of individuals and partnership firms where the amount of the default is not less than Rs. 1000 and definitions under Part III of the IBC respectively. Further, the said notification brought into force Section 94 to 187 of the IBC providing the framework for the initiation of insolvency resolution process and bankruptcy proceedings of individuals and partnership firms. Section 179 of the IBC provides for the Debt Recovery Tribunal to be the adjudicating authority in relation to insolvency matters of individuals and firms.

Part III of the code provides two methods for resolving the insolvency of individuals i.e. 1) Fresh start process , 2) Insolvency resolution process and , they are as follows:- 

Fresh Start Process 

Fresh start is a once‐in‐life‐time opportunity granted to the individual, to seek moratorium, phasing out obligations, etc. so that the individual may start his life afresh.

It provides an opportunity to a debtor who is unable to pay his debts to clear off his debts in a time-bound manner on fulfilling the prescribed condition for the fresh start of his qualifying debts. The applicability of this option is greatly limited by the very narrow monetary limits laid –annual income of Rs 60,000, and assets of Rs 20,000.

Fresh start application may be made by the debtor himself, provided the income and asset criteria are within the thresholds referred to above, and the “qualifying debt” for which the individual seeks relief is limited to Rs 35000/‐ .

The application for insolvency resolution may be led by the creditor or the concerned debtor himself. Once an application is led with DRT for initiating insolvency proceedings a Resolution professional shall be appointed to carry forward and supervise the entire process as prescribed in this chapter.

The prerequisites that need to be complied prior to making an application are as follows:

  1. The debtor should not be an undischarged bankrupt;
  2. The debtor should be undergoing fresh start process in relation to his debts;
  3. No insolvency resolution proceedings should be in process in relation to the debts against the debtor;
  4. The debtor should not be undergoing bankruptcy proceedings
  5. No insolvency resolution proceedings should have been admitted during the preceding twelve months to be counted from the date on which a fresh application is led for invoking insolvency resolution process.

Once all the prerequisites are met, an application may be submitted either by the debtor himself or by the resolution professional on behalf of the debtor. Pursuant to this, the code provides for an evaluation of the application by resolution professional, followed by a decision on its acceptance or rejection by the Debt Recovery Tribunal within 14 days of receiving the resolution professional’s recommendations on the application. Where the application is accepted by the DRT, the code provides for legal protection from both current as well as future legal proceedings against the applicant/debtor for a period of 180 days from the date of admission of application. 

However, importantly the code provides the creditors in such a situation that bestows on them a right to object any of the facts/grounds listed in an accepted application for fresh start .Such objections shall be submitted by the creditors to the resolution professional who shall then evaluate the accuracy and the importance of such objections. During the process, the resolution professional shall act as the main point of communication between the parties involved (Debtor/Creditor) and DRT. In the event of any change in financial circumstances which could make DRT change its decision on whether to accept or reject the initial application, then it shall be the duty of resolution professionals to ensure that DRT is informed of the relevant change.

Finally after resolution professionals have reviewed all the qualifying debts and compiled a final list of these qualifying debts then the DRT shall pass an order to discharge the debtors from all of the obligations with respect to these debts. Once the order is passed, then the fresh start process shall ultimately come to end thereby providing much-needed relief to the small-time debtors.

Insolvency Resolution Process

The process flow along with the relevant provisions related to the insolvency of individuals and partnership firms are enshrined in chapter III of part III of the Code. The provisions of the insolvency resolution process for individuals & partnership are similar to that of the corporate insolvency resolution process for corporate persons. Only the insolvency application of individuals & partnership firms is filed with DRT. 

The application for insolvency resolution may be filed by the creditor or the concerned debtor himself. Once an application is filed with DRT for initiating insolvency proceedings a Resolution Professional (hereinafter, “RP”) shall be appointed to carry forward and supervise the entire process as prescribed in this chapter. 

The Adjudicating authority shall on the basis of the received report decide whether to admit or reject the application as was initially submitted to it by the debtor or creditor. Once insolvency proceedings are ordered to be initiated by the DRT, a moratorium period shall commence and thereafter cease to be in effect at the end of one 180 days.

The creditors register their claims with the RP, who in turn, prepares a list of creditors. The debtor prepares a repayment plan in consultation with the RP. The RP then prepares a report on the repayment plan for submission to the AA – also stating whether  there is a necessity of summoning a meeting of creditors. Where the meeting of creditors is not summoned, the AA passes an order on the repayment plan as per report prepared by the RP. However, when the meeting of creditors is summoned, the repayment plan has to be approved by the creditors, the AA passes an order on the repayment plan on the basis of the report of the meeting, prepared by the RP.

Bankruptcy Process

Where the attempts to provide an individual debtor either a “fresh start” or an “earned start” fail, the last recourse left is an application for bankruptcy. Under 3 specified circumstances the debtor or the creditor(s) is/are eligible to make an application for bankruptcy order – (1) a resolution application is not admitted, (2) a repayment plan is not approved by creditors or the adjudicating authority, or (3) a repayment plan fails prematurely.

From the bankruptcy commencement date till his discharge, the bankrupt is an “undischarged insolvent” or “undischarged bankrupt” and faces several disqualifications under the Code as well as other laws; his after‐acquired property is also liable to be vested in the trustee.

Once an application is filed, an interim‐moratorium commences. A bankruptcy trustee is appointed to manage the process. Within 14 days of appointment of a bankruptcy trustee, the adjudicating authority passes a “bankruptcy order”. This date becomes the bankruptcy commencement date. The bankrupt is required to submit a statement of financial position within 7 days of the commencement date.

On the bankruptcy order being passed-

  1. the estate of the bankrupt vests in the bankruptcy trustee, 
  2. the interim‐moratorium ceases and a fresh moratorium starts, and 
  3. the bankrupt submits a statement of financial position (if so required).

 

The Bankruptcy Trustee performs the process similar to RP and constitutes the “committee of creditors”. The bankruptcy trustee administers and distributes the estate of the bankrupt in accordance with the provisions of Chapter V of Part III. The trustee notifies creditors to prove their claims, and values claims. He makes payment of interim dividend, and before distributing the final dividend, puts up a notice once again, requiring creditors to have one final opportunity to prove their claims.

The bankruptcy trustee applies to the adjudicating authority for a discharge order once the approval of  the committee of creditors is obtained or on the expiry of 1 year from the date of bankruptcy order, whichever is earlier. After discharge, the once‐bankrupt is a free man.

Conclusion 

This article aimed at understanding the need of individual insolvency laws, the process of individual insolvency and the applicability of the said laws as per the IBBI draft rules.

Although much has been said about corporate insolvency in India, personal insolvency laws have received little consideration. Individual insolvency provisions in the IBC have only been notified for personal guarantors for loans taken out by companies, not for other individuals or partnership firms. This must improve in order to provide better solutions for individuals and small businesses struggling with debt. The central government and IBBI have issued draft  rules for individual insolvency as part III of IBC. However, they have not yet been notified. For the easement of debt resolution of non-corporate entities these rules need to come into effect as early as possible.  

 

INSOLVENCY AND BANKRUPTCY BOARD OF INDIA (INSOLVENCY RESOLUTION PROCESS FOR INDIVIDUALS AND FIRMS) REGULATIONS, 2017

Eligibility for resolution professional (Regulation 3)

  1. An insolvency professional shall be eligible to be appointed as a resolution professional for an insolvency resolution process if he and all partners and directors of the insolvency professional entity of which he is a partner or director, or the insolvency professional entity of which he is a partner or director, are not associates of the debtor.
  2. An insolvency professional shall not be eligible to be appointed as a resolution professional if he, or the insolvency professional entity of which he is a partner or director, is under a restraint order of the Board.
  3. An insolvency professional shall not continue as a resolution professional if the insolvency professional entity of which he is a director or a partner, or any other partner or director of such an insolvency professional entity represents any other stakeholder in the same insolvency resolution process.

 Chapter II Proof of claims of creditors 

  1. Regulation 5 provides that a proof of claim should be submitted by the creditor to resolution professionals in lieu of Form 1. 
  2. Regulation 6 provides that resolution professional shall commence the verification of each claim as soon as it is received, and prepare a list of creditors reflecting the name of the creditors, amount claimed, amount admitted, and security interest in respect of the claims, if any, within the time period stipulated in Section 104 (2). Further under sub regulation (2) of regulation 6, the resolution professional shall file a report certifying the constitution of a committee of creditors on the preparation of the list of creditors, to the Adjudicating Authority under sub-regulation (1).
  3. Regulation 7 provides that A committee of creditors formed under Regulation 6(2) shall consist of the following members:
  1. ten largest creditors by value;
  2. one representative elected by all workmen other than those workmen included in sub-clause (a), if applicable; and
  3. one representative elected by all employees other than those employees included in sub-clause (a), if applicable.
  1. Regulation 9 provides that the resolution professional should prepare a statement of affairs that should include the following information – 
  2. debtor’s assets and liabilities for the previous three years;
  3. details of the excluded assets and excluded debts of the debtor;
  4. secured and unsecured debts with names of the creditors, and all requisite details for the previous three years;
  5. particulars of debt owed by debtor to associates of the debtor for the previous three years;
  6. guarantees given in relation to any of the debts of the debtor, and whether any of the guarantors is an associate of the debtor;
  7. Details of the financial statements for the business owned by the debtor, or of the firm in which the debtor is a partner, as the case may be, for the previous three years, if applicable;
  8. Details of the wealth tax statements filed by the debtor, if any, for the previous five years.

Chapter V- Voting by Creditors 

  1. Regulation 19 provides the method for calculation of voting share for the meeting of creditors it says that 
  1. A member of the committee under Regulation 7(1) shall having voting share in proportion of the debt due to such creditor or debt represented by a representative, as the case may be, to the total debt.
  2. The debt due to any creditor shall be calculated as on the insolvency commencement date, on the basis of the claims admitted.
  3. For the purposes of Section 109(3), an unliquidated debt shall mean a debt to which a value cannot be assigned by the resolution professional.

Explanation: For the purposes of sub-regulation (1), total debt is the sum of –

  1. the amount of debt due to the creditors listed in Regulation 7(1)(a);
  2. the amount of the aggregate debt due to workmen under Regulation 7(1)(b), if applicable; and
  3. the amount of aggregate debt due to employees under Regulation 7(1)(c), if applicable.

Chapter VI- Repayment plan 

  1. Regulation 22 provides the contents of repayment plan i.e. – 

The matters under Section 105(3)(c) that shall be provided for in a repayment plan include the following –

  1. the duration of the repayment plan;
  2. implementation schedule for the repayment plan, including the proposed dates of distributions to creditors, with estimates of their amounts;
  3. source of funds for the insolvency resolution process costs and their payment in priority to all other payments under the repayment plan;
  4. a minimum budget for the survival of the debtor and immediate family for the duration of the repayment plan;
  5. if the debtor has any business, the manner in which it is proposed to be conducted during the course of the repayment plan, and the role of the resolution professional;
  6. the manner in which funds held for the purposes of the repayment plan are to be banked, invested or otherwise dealt with, pending distribution to creditors;
  7.  a comprehensive list of all the creditors of the debtor;
  8. the functions which are undertaken by the resolution professional, including supervision and implementation of the repayment plan;
  9. variation of the terms of a contract or transaction involving the debtor;
  10. that excluded assets will not be transferred or sold;
  11. financing required for the insolvency resolution process; and
  12. terms and conditions for the discharge of the debtor

  2)   further sub regulation (2) says that A repayment plan may provide for the following-

  1. transfer or sale of all or part of the assets of the debtor, including treatment of excluded assets whose actual value exceeds the prescribed threshold value for excluded assets;
  2. administration or disposal of any funds of the debtor;
  3. satisfaction or modification of any security interest;
  4. reduction in the amount payable to creditors;
  5. curing or waiving of any breach of a debt due from the debtor;
  6. modification in the terms of payment of any debt due from the debtor;
  7. amendment of the partnership deed, if applicable;
  8. part of the income of the debtor to be used in the repayment of the debt, and the manner of calculating the income of the debtor;
  9. ratification of insolvency resolution costs which do not require approval of the committee of creditors under Regulation 28;
  10. the manner in which funds held for the purpose of payment to creditors, and not so paid on the end of the repayment plan, are to be dealt with; and

(k)  such other matters as may be required by the committee of creditors.

2)   further sub regulation (2) says that A repayment plan may provide for the following-

  1. transfer or sale of all or part of the assets of the debtor, including treatment of excluded assets whose actual value exceeds the prescribed threshold value for excluded assets;
  2. administration or disposal of any funds of the debtor;
  3. satisfaction or modification of any security interest;
  4. reduction in the amount payable to creditors;
  5. curing or waiving of any breach of a debt due from the debtor;
  6. modification in the terms of payment of any debt due from the debtor;
  7. amendment of the partnership deed, if applicable;
  8. part of the income of the debtor to be used in the repayment of the debt, and the manner of calculating the income of the debtor;
  9. ratification of insolvency resolution costs which do not require approval of the committee of creditors under Regulation 28;
  10. the manner in which funds held for the purpose of payment to creditors, and not so paid on the end of the repayment plan, are to be dealt with; and

(k)  such other matters as may be required by the committee of creditors.

Completion of the repayment plan (Regulation 26) 

  1. A repayment plan shall be complete when, in the opinion of the resolution professional, the debtor has complied with all obligations under the repayment plan within the duration of the repayment plan, and a notice to that effect has been issued under section 117(1)(a).
  2. The resolution professional may issue a notice of completion under section 117(1)(a) if the debtor has substantially complied with all obligations under the repayment plan.
  3. The Adjudicating Authority shall consider the notice and the report under section 117(1) in passing the discharge order.

 

 

 

 

 

Author: Mohit Mathur

Editor: Adv. Aditya Bhatt & Adv. Chandni Joshi

Corporate Insolvency Resolution Process

Chandni Joshi , , , , , , , ,

Corporate Insolvency Resolution Process

INTRODUCTION

In India, the Corporate Insolvency Resolution Process (“CIRP”) takes place under the Insolvency and Bankruptcy Code, 2016 (“IBC”). It involves a Resolution Professional inviting resolution plans for the corporate debtor undergoing insolvency. These plans are submitted by various Resolution Applicants and the best resolution plan is approved by the Committee of Creditors and sanctioned by the National Company Law Tribunal. Thus, from an acquisition perspective, the potential acquirer of the stressed asset is required to provide the best bid (in the form of the resolution plan) for the stressed asset which would be able to garner the approval of the Committee of Creditors.

Corporate Insolvency and Resolution Process - iPleaders

 

CIRCUMSTANCES WHEN CORPORATE INSOLVENCY RESOLUTION PROCESS TRIGGERED.

Corporate social insolvency process has been defined under the Chapter II of IBC licensed professional administrators the resolution process, manages the assets of the debtor, and provides information for creditors to assist them in decision making. The CIRP Triggered under Section 6 of IBC that is Where any corporate debtor commits a default, a financial creditor, an operational creditor or the corporate debtor itself may initiate a corporate insolvency resolution process in respect of such corporate debtor in the manner as provided under preceding sections of chapter II of IBC like under section 7 Financial creditor can initiate the the resolution process by giving an application of corporate insolvency resolution process. (CIRP), same can be done by Operational creditor under section 8 & Section 9 and by Corporate applicant under section 10.

Section 7: Initiation of corporate insolvency resolution process by financial creditor.

(1) A financial creditor either by itself or jointly with other financial creditors, or any other person on behalf of the financial creditor, as may be notified by the Central Government may file an application for initiating corporate insolvency resolution process against a corporate debtor before the Adjudicating Authority when a default has occurred.

Provided that for the financial creditors, referred to in clauses (a) and (b) of sub-section (6A) of section 21, an application for initiating corporate insolvency resolution process against the corporate debtor shall be filed jointly by not less than one hundred of such creditors in the same class or not less than ten per cent. of the total number of such creditors in the same class, whichever is less:

Provided further that for financial creditors who are allottees under a real estate project, an application for initiating corporate insolvency resolution process against the corporate debtor shall be filed jointly by not less than one hundred of such allottees under the same real estate project or not less than ten per cent. of the total number of such allottees under the same real estate project, whichever is less:

Provided also that where an application for initiating the corporate insolvency resolution process against a corporate debtor has been filed by a financial creditor referred to in the first and second provisos and has not been admitted by the Adjudicating Authority before the commencement of the Insolvency and Bankruptcy Code (Amendment) Act, 2020, such application shall be modified to comply with the requirements of the first or second proviso within thirty days of the commencement of the said Act, failing which the application shall be deemed to be withdrawn before its admission.

Explanation.—For the purposes of this sub-section, a default includes a default in respect of a financial debt owed not only to the applicant financial creditor but to any other financial creditor of the corporate debtor.

(2) The financial creditor shall make an application under sub-section (1) in such form and manner and accompanied with such fee as may be prescribed.

(3) The financial creditor shall, along with the application furnish—

(a) record of the default recorded with the information utility or such other record or evidence of default as may be specified.
(b) the name of the resolution professional proposed to act as an interim resolution professional and
(c) any other information as may be specified by the Board.

(4) The Adjudicating Authority shall, within fourteen days of the receipt of the application under sub-section (2), ascertain the existence of a default from the records of an information utility or on the basis of other evidence furnished by the financial creditor under sub-section (3).

Provided that if the Adjudicating Authority has not ascertained the existence of default and passed an order under sub-section (5) within such time, it shall record its reasons in writing for the same.

(5) Where the Adjudicating Authority is satisfied that—

(a) a default has occurred and the application under sub-section (2) is complete, and there is no disciplinary proceedings pending against the proposed resolution professional, it may, by order, admit such application; or

(b) default has not occurred or the application under sub-section (2) is incomplete or any disciplinary proceeding is pending against the proposed resolution professional, it may, by order, reject such application:

Provided that the Adjudicating Authority shall, before rejecting the application under clause (b) of sub-section (5), give a notice to the applicant to rectify the defect in his application within seven days of receipt of such notice from the Adjudicating Authority.

(6) The corporate insolvency resolution process shall commence from the date of admission of the application under sub-section (5).

(7) The Adjudicating Authority shall communicate—
(a) the order under clause (a) of sub-section (5) to the financial creditor and the corporate debtor;

(b) the order under clause (b) of sub-section (5) to the financial creditor,

within seven days of admission or rejection of such application, as the case may be.

Section 8: Insolvency resolution by operational creditor.

(1) An operational creditor may, on the occurrence of a default, deliver a demand notice of unpaid operational debtor copy of an invoice demanding payment of the amount involved in the default to the corporate debtor in such form and manner as may be prescribed.

(2) The corporate debtor shall, within a period of ten days of the receipt of the demand notice or copy of the invoice mentioned in sub-section (1) bring to the notice of the operational creditor—

(a) existence of a dispute, if any, or record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such dispute.

(b) the payment of unpaid operational debt—

(i) by sending an attested copy of the record of electronic transfer of the unpaid amount from the bank account of the corporate debtor or

(ii) by sending an attested copy of record that the operational creditor has encashed a cheque issued by the corporate debtor.

Explanation.—For the purposes of this section, a “demand notice” means a notice served by an operational creditor to the corporate debtor demanding payment of the operational debt in respect of which the default has occurred.

After the expiry of the period of ten days from the date of delivery of the notice or invoice demanding payment under sub-section (1) of section 8, if the operational creditor does not receive payment from the corporate debtor or notice of the dispute under sub-section (2) of section 8, the operational creditor may file an application before the Adjudicating Authority for initiating a corporate insolvency resolution process under Section 9.

Section 10-Initiation of corporate insolvency resolution process by corporate applicant.

(1) Where a corporate debtor has committed a default, a corporate applicant thereof may file an application for initiating corporate insolvency resolution process with the Adjudicating Authority.

(2) The application under sub-section (1) shall be filed in such form, containing such particulars and in such manner and accompanied with such fee as may be prescribed.
(3) The corporate applicant shall, along with the application, furnish-

(a) the information relating to its books of account and such other documents for such period as may be specified.

(b) the information relating to the resolution professional proposed to be appointed as an interim resolution professional and

(c) the special resolution passed by shareholders of the corporate debtor or the resolution passed by at least three-fourth of the total number of partners of the corporate debtor, as the case may be, approving filing of the application.

(4) The Adjudicating Authority shall, within a period of fourteen days of the receipt of the application, by an order—

(a) admit the application, if it is complete and no disciplinary proceeding is pending against the proposed resolution professional; or

(b) reject the application, if it is incomplete or any disciplinary proceeding is pending against the proposed resolution professional :

Provided that Adjudicating Authority shall, before rejecting an application, give a notice to the applicant to rectify the defects in his application within seven days from the date of receipt of such notice from the Adjudicating Authority.

(5) The corporate insolvency resolution process shall commence from the date of admission of the application under sub-section (4) of this section.

“10A. Notwithstanding anything contained in Sections 7, 9 and 10, no application for initiation of corporate insolvency resolution process of a corporate debtor shall be filed, for any default arising on or after 25th March, 2020 for a period of six months or such further period, not exceeding one year from such date as may be notified in this behalf.”

Provided that no application shall ever be filed for initiation of corporate insolvency resolution process of a corporate debtor for the said default occurring during the said period.

Explanation- For the removal of doubts, it is hereby clarified that the provisions of this section shall not apply to any default committed under the said sections before 25th March, 2020.

Further Committee of creditor is to be made under Section 21 of IBC The committee of creditors shall comprise all financial creditors of the corporate debtor party to whom a corporate debtor owes a financial debt shall not have any right of representation, participation or voting in a meeting of the committee of creditors Whereas the corporate debtor owes financial debts to two or more financial creditors as part of a consortium or agreement, each such financial creditor shall be part of the committee of creditors and their voting share shall be determined on the basis of the financial debts owed to them, The Board may specify the manner of determining the voting share in respect of financial debts issued as securities under sub-section (6) of Section 21. When a corporate debtor is accepted into the CIRP (Corporate Insolvency Resolution Process), it checks the board of directors. Further, the management is placed under an independent “interim resolution professional”. From this and till the end of the CIRP (Corporate Insolvency Resolution Process), the management ceases to have any control over the activities of the company.

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