India’s Insolvency and Bankruptcy Code: An Overview


In summary

This overview contains a summary of the most significant developments in Indian insolvency and bankruptcy law between July 2019 and August 2020, which have had an impact on the design of law and its implementation. Where possible, the legislative changes and the case law surrounding this have been discussed simultaneously to give the reader an understanding of the letter of the law and its interpretation. Some of the trend-setting judgments have been dealt with subsequently, and there is also a small overview of the changes brought about as a result of the covid-19 pandemic. The overview also provides a brief summary of legislative changes in the pipeline, such as group insolvency and cross-border insolvency.


Discussion points

  • Amendments to the Insolvency and Bankruptcy Code
  • Changes related to covid-19
  • Is the commercial wisdom of the committee of creditors unassailable in India?
  • What steps have been taken to ensure that the corporate debtor has a clean slate?
  • What other changes to Indian insolvency law can be expected in the coming year?

Referenced in this article

  • Committee of Creditors of Essar Steel India ltd v Satish Kumar Gupta [2020] 219 COMP CASE 97 (Supreme Court)
  • Anuj Jain, Interim Resolution Professional for Jaypee Infratech Limited v Axis Bank Limited 2019 SCC OnLine SC 1775
  • Jet Airways (India) Limited v State Bank of India and Another, Company Appeal (AT) (Insolvency) No. 707/2019
  • Insolvency and Bankruptcy Code 2016

Introduction

The Insolvency and Bankruptcy Code 2016 (IBC or the Code) was intended to be a transformative piece of legislation. It sought revolutionary and cultural transformation in the insolvency and bankruptcy landscape, by (i) creating a comprehensive code for insolvency and bankruptcy for corporates and individuals, (ii) establishing a new architecture, consisting of a committee of creditors (COC) and dedicated adjudicating authorities (AA) for insolvency resolution and liquidation, and (iii) bringing judicial discipline in the process.

Each of the three elements was intended to address the problems that affected the bankruptcy regime in India. Although the Companies Act 1956 and the Companies Act 2013 contained provisions for winding up companies, they were found inadequate. The Sick Industrial Companies (Special Provisions) Act 1985 (SICA), which provided an insolvency resolution framework for sick industrial undertakings, had failed to deliver. The insolvency and bankruptcy regime for individuals was based on colonial legislation and needed to be revamped to be in sync with the 21st century. In this context, the IBC was path-breaking. Besides prescribing a legislative framework for insolvency resolution and bankruptcy, the Code established the Insolvency and Bankruptcy Board of India (IBBI) as the regulator, which can proactively respond to the changing realities through its regulatory powers. The IBC has succeeded in establishing a distinct jurisprudence for insolvency resolution. The government and the IBBI have also been proactive in clarifying and resolving issues as and when they appear through the implementation of the legislation. This explains frequent amendments to both the IBC and various regulations issued under it. However, the fact that the IBC is not yet fully operational despite four years of its enactment raises a few red flags on its report card.

The National Companies Law Tribunal (NCLT), which existed as a forum for adjudication of disputes for companies, became the AA for corporate insolvency resolution and liquidation. Since the IBC has come into force, the NCLT has become pre-eminently a forum for insolvency resolution and liquidation, with its caseload predominantly consisting of insolvency cases. As per the annual report of the Ministry of Corporate Affairs for the financial year 2019–2020,[1] a total of 19,733 fresh cases were filed at various benches of the NCLT, of which 12,089 were filed under the IBC. Similarly, of the total 13,884 cases disposed off by various NCLT benches, 7,365 were under the IBC. A large caseload, particularly at the NCLT benches in Delhi and Mumbai, has often led to delays in adjudication of disputes. However, with new NCLT benches set up across various states and an increase in bench strength at the Delhi and Mumbai benches, the situation is likely to improve.

Enforcing judicial discipline in insolvency resolution was one of the principle objectives of the IBC. In this respect, the Code has certainly fared much better than its predecessor, SICA; however, many argue that its record is far from satisfactory. The IBC imposed a strict timeline of 180 days for the corporate insolvency resolution process (CIRP), which is extendable by another 90 days, at the discretion of the AA. This was further extended to 330 days through an amendment to the IBC in 2019. However, depending on the data one relies upon,[2] the average time taken for resolution under the IBC is 340 to 394 days. In either case, the average time taken is in excess of the maximum 330-day timeline prescribed under the Code. Many cases take much longer (Essar Steel’s CIRP took as many as 866 days to complete).[3] Further, as per the data released by the IBBI, since the provisions regarding the CIRP came into effect on 1 December 2016, only 5.85 per cent of cases have resulted in approval of resolution plans, while approximately 24 per cent have resulted in liquidation.[4] In most cases the disruption of timelines is attributable to judicial interventions. The courts have been liberal in interpreting the boundaries set by the timelines, which has led to such timelines being construed as merely advisory in nature. The government and Parliament’s attempt to fix the timelines have been repeatedly thwarted by the courts.

The government has largely played a constructive role in facilitating the implementation of the IBC. It has successfully aligned the banking regulator, the Reserve Bank of India (RBI), to push the banking system into using the IBC as the principal mechanism for resolving debt. This approach has predictably received certain setbacks with the onset of covid-19. Where challenges have been faced in IBC implementation, the government and the IBBI have stepped in to amend the legislation and the regulations. While, by and large, the amendments have made the implementation smoother, there have been instances where frequent amendments have caused some confusion.

Recent legislative amendments

The IBC is perhaps the most frequently amended legislation in recent years, and some of the changes were necessary to avoid unintended consequences. In addition to the legislative changes regarding the covid-19 situation, between July 2019 and August 2020 there were two broad sets of amendments to the IBC, as well as various amendments to the underlying regulations.

The 2019 Amendment

The Insolvency and Bankruptcy Code (Amendment) Act 2019 (the 2019 Amendment) came in the context of the following problems that were being faced in the implementation of the IBC:

  • The IBC provided for completion of the CIRP within 270 days[5] of the insolvency commencement date. This period of 270 days included 90 days[6] of discretionary extension that the AA could grant. Further, AAs[7] are required to ascertain the existence of debt within 14 days of receipt of application by a financial creditor. However, intervening legal proceedings initiated against the corporate debtor, insolvency resolution professionals (IRPs) and the COC made it difficult to adhere to the timelines. Time lost because of intervening legal proceedings was allowed to be excluded from the timeline of 270 days, which led to unbridled extension of the CIRP.[8] Moreover, it had been held by Supreme Court that the 14-day time period set out in the IBC for determining the existence of default by the NCLT is advisory and not a mandatory provision.[9]
  • Owing to certain judicial pronouncements,[10] the role of the COC in approving resolutions plans was significantly curtailed, in as much as (i) financial and operational creditors were expected to be given similar treatment, which was further interpreted to mean that both the operational and financial creditors must take a similar haircut, and (ii) financial creditors were not permitted to differentiate between financial creditors in the resolution plan on the basis of priorities of debt or security interests.
  • Homebuyers in real estate projects were given the status of financial creditors through an amendment to the IBC. Owing to a large number of homebuyers, the decision-making in the COC meetings was disrupted because creditors, particularly the homebuyers, were not voting.
  • Despite approval of resolution plans by the NCLT, resolution applicants of successful resolution plans were often saddled with a large number of tax recovery cases for pre-CIRP dues and other legal proceedings.

These concerns were addressed by the 2019 Amendment as follows:

  • A proviso was introduced in section 7(4) to require the AA (the NCLT) to record reasons where it fails to determine the existence of default within 14 days.
  • A maximum time limit of 330 days was prescribed to mandatorily complete the CIRP, which includes any time lost because of legal proceedings. The use of the words ‘shall mandatorily’ in a proviso to section 12(3) of the IBC, introduced through the amendment, was expected to convey that the time period shall not be extended beyond 330 days, even where intervening litigation may have resulted in loss of time. However, the Supreme Court, in the case of Committee of Creditors of Essar Steel India Ltd v Satish Kumar Gupta,[11] has held the newly inserted timeline of 330 days to be advisory and not mandatory, holding that the word ‘mandatorily’ is unconstitutional.
  • The COC has been empowered to consider the manner of distribution proposed in the resolution plan while deciding its feasibility and viability. The COC can evaluate the manner of distribution by taking into account the order of priority among creditors as per the liquidation waterfall in section 53 of the Code, or by taking into account the priority and value of the security interest of a secured creditor. In addition, the amendment introduced the concept of dissenting financial creditors[12] to address the lacuna highlighted by the National Company Law Appellate Tribunal (NCLAT) in Central Bank of India v Resolution Professional of the Sirpur Paper Mills Ltd & Ors.[13] Resolution plans are now required to provide for payment of liquidation value to dissenting financial creditors. With respect to operational creditors, the amendment entitles the operational creditors to the higher of (i) their liquidation value or (ii) the amount that would have been paid to them if amounts being distributed under the resolution plan were distributed in accordance with liquidation waterfall set out in section 53 of the IBC.
  • The authorised representatives of a class of financial creditors shall be able to represent 100 per cent of the class they are representing based on the decision of more than 50 per cent of the voting share of the financial creditor they represent. This applies not only to homebuyers in real estate projects, but also to beneficiaries of securities and deposits held with trusts, who, as financial creditors, are collectively represented through an authorised representative. However, this modified voting procedure shall not apply to cases where the authorised representative is voting on withdrawal of the resolution application. In such cases, each financial creditor shall be able to vote individually. The amendment was expected to make the voting process in the CIRP smoother.
  • Section 31 of the IBC was amended to provide that the resolution plan approved by order of the AA shall be binding on the corporate debtor and its employees, members and creditors, including the central government, any state government or any local authority to whom a debt in respect of the payment of dues arising under any law currently in force, such as authorities to whom statutory dues are owed.[14] Further, a clarification was inserted in section 33 to provide that the COC is empowered to make a decision regarding liquidation of the corporate debtor at any stage before approval of the resolution plan, including before issuance of information memorandum.
  • The definition of the ‘resolution plan’[15] has been amended to include provisions for restructuring of the corporate debtor, including by way of merger, amalgamation and demerger.

The First 2020 Amendment

The Insolvency and Bankruptcy Code (Amendment) Act 2020 (the First 2020 Amendment) followed the Insolvency and Bankruptcy Code (Amendment) Ordinance 2019. The key constraints that the First 2020 Amendment removed are as follows:

  • Under the IBC, all debts received by a corporate debtor prior to commencement of insolvency are treated on par. This had the effect of discouraging restructuring of debt or additional funding to the corporate debtor under distress. To address this issue, the definition of ‘interim finance’ was amended to enable the government to notify other classes of debt as ‘interim finance’. As evident from the statement of objects and reasons of the First 2020 Amendment, the amendment is intended to include last-mile funding as part of interim finance. Once the details of such last-mile funding are outlined by the government, it may help companies in distress to raise additional debt, which in the event of insolvency of the corporate debtor may get treated as interim finance, and will thus have superiority over other debt.
  • The inclusion of homebuyers as financial creditors had the effect of a large number of individual homebuyers approaching the NCLT against developers who failed to deliver projects or refund money. From June 2018 (when the amendment was made to the IBC to include homebuyers as financial creditors) until 30 September 2019, a total of 1,821 cases were filed under the IBC by homebuyers.[16] Admission of insolvency proceedings on an application of a single homebuyer had the effect of stalling the completion of various projects.[17] To prevent this situation, the First 2020 Amendment prescribed that an insolvency application in relation to a real estate project can be initiated only by a minimum of 100 allottees or at 10 per cent allottees in a project, whichever is less. This amendment has been challenged before the Supreme Court and is currently pending adjudication.[18]
  • Section 11 of the IBC has been amended to enable corporate debtors under insolvency to initiate the CIRP against other corporate debtors.
  • To maintain the going-concern status of a corporate debtor undergoing the CIRP, the scope of the moratorium under section 14 of the IBC has been extended to provide that licences, permits, concessions, clearances, etc, issued by a government authority shall not be suspended or terminated on the ground of insolvency during the moratorium period if current dues are being paid. Furthermore, the supply of goods or services critical to maintaining the corporate debtor’s going-concern status shall not be suspended if the current dues are being paid during the moratorium period. The provision offers flexibility to the IRP to determine what he or she considers critical to protect or preserve the value of the corporate debtor. The amendment has been necessitated to ensure that certain critical suppliers of goods and services do not twist the arm of the IRP to make payments of past dues as a priority over other creditors.
  • Attachment of assets of a company even after a successful resolution under the IBC for offences of the erstwhile management has caused much consternation in India. It has thwarted successful resolution in many cases where such fears existed. To prevent this and to ensure that the corporate debtor and successful resolution applicant get a fresh start and a clean slate, section 32-A has been amended to provide that: (i) the corporate debtor shall not be liable for offences committed prior to commencement of the CIRP after the date of approval of the resolution plan by the AA; and (ii) no action shall be taken against the property of the corporate debtor in relation to an offence committed prior to the insolvency commencement date, where such property is covered under a resolution plan approved by the AA, or where such property forms part of sale of liquidation assets. The above exemption from prosecution or attachment is available only when the acquirer is not the promoter of, or part of, the erstwhile management or a related party to it, and is otherwise not involved in the commission of the offence, as an abettor or conspirator. The interpretation of this provision by the courts is also that the prosecution of erstwhile management and promoters would remain unaffected by the outcome of the proceedings under the Code.[19]
  • Certain clarificatory amendments in the First 2020 Amendment include the requirement of appointing an IRP on the insolvency commencement date,[20] an express clarification under section 23 to provide that the IRP shall continue to manage the affairs of the corporate debtor after the CIRP until the approval of the resolution plan or an order appointing a liquidator is passed by the AA. In addition, the proviso to section 21(2) has been amended to further clarify that a financial creditor regulated by a financial service regulator shall not be considered a related party of the corporate debtor solely on account of such transactions as may be prescribed by the government. This may enable the government to prescribe a special class of transactions, such as merger of financial creditors and acquisition of debts, when the financial creditor may continue to remain represented on the COC. Financial creditors that are related parties are not represented on the COC.

Key regulatory changes

While the IBC contemplates the insolvency and bankruptcy regime for individuals, it has not been fully notified as yet. The same was notified in a limited manner with effect from 1 December 2019, insofar as it applies to personal guarantors of corporate debtors. To give effect to the provisions, the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtors) Rules 2019 and the Insolvency and Bankruptcy (Application to Adjudicating Authority for Bankruptcy Process for Personal Guarantors to Corporate Debtors) Regulations 2019 were also notified. This allowed creditors to initiate and maintain proceedings against both the corporate debtor and the guarantor of the corporate debtor in the NCLT. However, previously, in the case of Vishnu Kumar Agarwal v Piramal Enterprises Limited,[21] the NCLAT had held that if an insolvency proceeding under section 7 of the IBC has been admitted against the principal borrower, then a second application by the same creditor on the same claim cannot be maintained against the guarantor. This has caused some confusion as to whether simultaneous proceedings against the corporate debtor and the personal guarantor can continue for the same claim.

As per a recent amendment to the CIRP Regulations,[22] the COC is now required to simultaneously vote on all resolution plans received by the IRP that comply with the requirements of the CIRP Regulations and the IBC. If only one plan is received, it shall be considered approved by the COC if it receives 66 per cent of the votes. If there is more than one plan, the plan that receives 66 per cent of the votes shall be considered approved, failing which the plan that receives the highest votes shall be voted on again. This process gives the COC the ability to simultaneously examine various plans, as opposed to voting on plans individually, which may potentially lead to rejection of all plans. This is likely to make the process more efficient.

Changes related to covid-19

Like governments in many other countries, the Indian government has also brought about changes to mitigate the effects of covid-19 on corporations. On 5 June 2020, the government promulgated the Insolvency and Bankruptcy (Amendment) Ordinance 2020 (the Suspension Ordinance).[23] The Suspension Ordinance has suspended section 7 (initiation of insolvency resolution by a financial creditor), section 9 (initiation of insolvency resolution by an operational creditor) and section 10 (initiation of insolvency resolution by a corporate debtor itself) of the IBC for six months (extendable to one year) (the Suspension Period) in respect of any default that occurred after 25 March 2020.

The Suspension Ordinance has had its critics. Some argue that the language leaves much scope for improvement. The proviso to the newly inserted section 10A of the IBC states that no application for the initiation of the CIRP shall ever be filed in respect of a default that occurred during the Suspension Period. The draft indicates that a default occurring after 25 March 2020 would be excused. This may potentially result in worsening the crisis for banks and other stakeholders that may not be able to pursue the remedy under the IBC for defaults during the Suspension Period.

Another significant consequence of the Suspension Ordinance is that although the CIRP cannot be initiated against the corporate debtor, the insolvency resolution process under the Code can be initiated against personal guarantors of such corporate debtors. It is difficult to think of any reason why a default arising from the extraordinary situation of the covid-19 pandemic has been excused for corporate debtors but not personal guarantors.

In addition to suspending the IBC for a period of time, the government has also raised the threshold of debt for initiation of the CIRP to 10 million rupees from the existing threshold of 100,000 rupees.[24] It is relevant to highlight that this change is prospective in nature[25] and, therefore, should not impact those creditors’ petitions that had already been filed before 24 March 2020.

Lastly, the government is also mulling over a special framework for micro, small and medium-sized enterprises (MSMEs) that would enable MSMEs to initiate bankruptcy proceedings while remaining in control, in contrast to the ‘lenders in control’ philosophy of the IBC.[26] At the time of writing, the framework has not been made public.

On 6 August 2020, the RBI issued a circular[27] allowing companies a one-time restructuring (OTR) of loans without classifying them as non-performing assets. This mechanism has been made applicable for all commercial banks, cooperative banks, All India Financial Institutions and non-banking financial companies. The accounts that are eligible for an OTR are those that were classified as ‘standard’ and at the same time were not in default for more than 30 days as at 1 March 2020. The restructured framework needs to be invoked by 31 December 2020. For personal loans, it needs to be implemented within 90 days of the invocation date and for corporate loans, within 180 days of the invocation date. The invocation date will be the date on which the borrower and the lender agree to proceed on the OTR plan. As an additional measure, the RBI constituted an expert committee to suggest ways in which the restructuring can be implemented. The committee made recommendations for sector-specific financial parameters to be considered for the OTR. The recommendations, which have been broadly accepted by the RBI, were notified on 7 September 2020 by the RBI as guidelines for OTRs.[28]

Trendsetting judicial developments

The COC’s control of corporate debtors and their decision-making upon commencement of the CIRP is the cornerstone of the IBC. The NCLAT’s decision in Essar Steel [29] attempted to curtail the powers of the COC by circumscribing it with considerations of equity between different classes of creditors. The NCLAT’s decision was challenged and reversed by the Supreme Court in Committee of Creditors of Essar Steel Limited v Satish Kumar Gupta.[30] The judgment reinstated the primacy of the COC in approving the resolution plan and reinforced its position in K Sashidhar [31] that the commercial wisdom of the COC cannot be challenged by the AA except on very limited grounds set forth under the IBC. In doing so, the Court also clarified that the COC is not acting in a fiduciary capacity for any class of creditors; it is merely taking a commercial decision by requisite majority. On the ‘fair and equitable’ distribution principle introduced through the 2019 Amendment, the Court clarified that it does not give the AA an additional ground to reject a resolution plan, as long as the interests of all classes of creditors have been looked into and taken care of.

Allowing a resolution applicant a clean slate, the Court allowed an IRP to record disputed claims on notional value to enable a resolution applicant to take the same into account in a resolution plan. The creditors of such disputed claims or those who fail to submit claims should not be able to reagitate their claims against a successful resolution applicant.

Finally, the Court held the 330-day timeline introduced through the 2019 Amendment to be merely advisory in nature, holding that the word ‘mandatorily’ is unconstitutional.

Another trendsetting judgment was pronounced by the Supreme Court in the case of Anuj Jain, Interim Resolution Professional for Jaypee Infratech Limited v Axis Bank Limited.[32] The court was called upon to determine: (i) whether mortgages provided by Jaypee Infratech Limited (JIL) for loans by its parent company, Jayprakash Associates Limited (JAL) were preferential transactions under section 43 of the IBC; and (ii) whether lenders of JAL could be classified as financial creditors of JIL by virtue of a security interest created by JIL. The Court held that the mortgages created by JIL for the benefit of JAL were preferential transactions, on the basis that: (i) while there was no creditor-debtor relationship between JIL and lenders of JAL, JAL was the ultimate beneficiary of such transactions; (ii) since JAL was the operational creditor of JIL, the transactions put JAL in an advantageous position, as otherwise it would have stood much lower in priority; and (iii) the transaction was not in the ordinary course of business as JIL could not be said to be in the business of offering security for its parent company. On the issue of whether lenders of JAL could claim to be financial creditors of JIL, the Court held that since JIL did not owe any sum of money to lenders of JAL, mere mortgages would not make such lenders financial creditors of JIL.

Throughout 2019, there was a string of orders, in which the NCLT and the NCLAT directed resolution professionals to allow schemes of arrangement and compromise under sections 230 to 232 of the Companies Act 2013, where a liquidation order had been passed.[33] A number of promoters who were otherwise ineligible to submit a resolution plan in respect of the corporate debtors under section 29A of the Code saw this as a back-door entry to regain control. However, the NCLAT has clarified that a person who is ineligible in terms of section 29A of the Code cannot submit a scheme for compromise and arrangement in such cases.[34] This move is seen as levelling the playing field and ensuring that dishonest promoters are not able to take control of the companies again. However, a Discussion Paper on Corporate Liquidation Process along with Draft Regulations dated 27 April 2019 issued by the IBBI had discussed this issue and concluded that, for the time being, the ineligibility should not be applied to compromise and arrangements under section 230.[35]

Group insolvency

The IBC contemplates insolvency of companies on a standalone basis. Companies, by default, even if they are part of a larger conglomerate, are viewed as separate legal entities for the purposes of initiating insolvency proceedings against them. In isolated cases, AAs have ordered clubbing of insolvency proceedings of group companies for the purposes of hearings; however, no definite legal framework governing group insolvency exists in India. The IBBI had constituted a Working Group on Group Insolvency under the chairmanship of Mr U K Sinha to propose a legal framework within which group insolvency proceedings may be conducted in India. The Working Group submitted its report on 23 September 2019.[36]

The Working Group recommended a cautious approach to implementing group insolvency regime, in a phased manner. It stressed the enabling and voluntary nature of the framework, recommending that with the exception of communication, cooperation and information sharing (among insolvency professionals, adjudicating authorities and committee of creditors of various group companies), no other provisions should be made mandatory. In the first phase, it was suggested that provisions relating to procedural coordination alone should be implemented. Procedural coordination could be achieved through joint application by group companies before an AA, the appointment of a single IRP and a common COC, and coordination between creditors of various group companies.

Meanwhile, various branches of the NCLT took the lead in some matters in consolidating insolvency proceedings of various group companies. For example, NCLT Mumbai consolidated insolvency proceedings of various group companies of Lavasa Group in Axis Bank Limited v Lavasa Corporation Limited,[37] on the basis that the insolvency of the subsidiaries depended on the outcome of the insolvency of the parent company. Similarly, in the case of Edelweiss Asset Reconstruction Company Limited v Sachet Infrastructure Pvt Ltd,[38] insolvencies of five group companies involved in developing a common township were consolidated by the NCLAT, in the interest of homebuyers. However, where group companies are self-sustainable and are not interlinked, courts have also denied consolidation. In the case of Videocon group companies, while NCLT Mumbai allowed consolidation of the insolvencies of 13 group entities, it disallowed the consolidation of two other group companies.[39]

Cross-border insolvency

The Report of the Working Group on Cross-Border Insolvency had noted that the existing provisions in the IBC (sections 234 and 235) do not provide a comprehensive framework for cross-border insolvency matters.[40] The proposal to provide a comprehensive framework for this purpose based on the UNCITRAL Model Law on Cross-Border Insolvency 1997 has been pending for some time now. It was initially believed that an amendment bill would be introduced in the Winter Session of Parliament in 2019.[41]

While amendments to the IBC are awaited, the NCLAT advised a framework of cooperation between the administrator appointed by a Dutch court in respect of Jet Airways (having its regional hub in Amsterdam) and the resolution professional appointed by the AA in a petition filed by a financial creditor.[42] The protocol was designed on the principles of the UNCITRAL Model Law and provides a robust framework for cross-border coordination, maintaining respect for independent jurisdictions of the Dutch court and the NCLAT. Since Jet Airways was an Indian company with its centre of main interest in India, the IBC proceedings in India were the main insolvency proceedings and the Dutch proceedings were non-main proceedings.[43]

In the case of Videocon Industries, the AA in India permitted the inclusion of the foreign assets held through other companies to be included in the resolution process. Further, the AA also declared that the moratorium under section 14 of the IBC is applicable to such foreign assets.[44] However, in the absence of a clear framework, these matters have to be dealt with on a case-by-case basis.

Conclusion

Insofar as any legislation can have a transformative effect, the IBC has achieved that objective. Unlike its predecessor regimes, the IBC has been adopted well by the system and used in a manner that is maximising stakeholder value. The government has been proactive in ensuring that problems are dealt with and the courts have also (with the exception of some occasional stray orders) refrained from overturning the decisions of the COC. For international lenders and stakeholders, these are good tidings as they also point to the robustness of the Code to meet evolving challenges. It is hoped that once the covid-19 pandemic is dealt with substantially, the government will refocus its efforts on ensuring that the Code is implemented in earnest and made fully operational.


Notes

[1] Available at http://www.mca.gov.in/Ministry/pdf/AnnualReport2019_20_17042020.pdf (last accessed on 31 August 2020).

[2] As per the Report of the Parliamentary Standing Committee on Finance on the Insolvency and Bankruptcy (Second Amendment) Bill, 2019 (released in March 2020) available at https://ibbi.gov.in/uploads/resources/20ef77b3a1200f12ad19cee1c2c3dba9.pdf (last accessed on 31 August 2020), the average time taken is 394 days. As per the Economic Survey of the Government of India for Financial Year 2019-20, available at https://ibbi.gov.in/uploads/resources/1abc8cd7653dbc0024ed9da385e8b710.pdf (last accessed on 31 August 2020), the average time taken for resolution under the IBC is 340 days, including time spent in litigation.

[4] Insolvency and Bankruptcy News, January – March, 2020 (Vol. 14), available at: https://www.ibbi.gov.in/uploads/whatsnew/92565ddf81a88161193ec62d99dd7d1c.pdf (last accessed on 31 August 2020).

[5] Section 12, IBC.

[6] Section 12(3), IBC.

[7] Section 7(4), IBC.

[8] The principle of excluding certain days from the CIRP period were enunciated in detail by the National Company Law Appellate Tribunal (NCLAT) in Quinn Logistics India (P) Ltd v Mack Soft Tech (P) Ltd Hyd [2018] 208 COMP CASE 432 (NCLAT). In some cases, the Supreme Court, exercising its extraordinary powers under article 142 of the Constitution of India, also extended the timeline for the CIRP. In the case of Committee of Creditors of Essar Steel India Ltd v Satish Kumar Gupta [2020] 219 COMP CASE 97 (SC), the Supreme Court again affirmed the possibility of extending the CIRP even beyond the 330-day period set out in the 2019 Amendment.

[9] Surendra Trading Company v Juggilal Kamlapat Jute Mills Company Limited (2017) 16 SCC 143.

[10] In Standard Chartered Bank v Satish Kumar Gupta, RP of Essar Steel Ltd and Others, Company Appeal (AT) (Ins.) No. 242 of 2019, the NCLAT modified the resolution plan approved by the NCLT to provide for an identical haircut to both financial and operational creditors.

[11] [2020] 219 COMP CASE 97 (SC).

[12] Regulation 38(1) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations 2016 prior to its amendment in 2018 specifically provided that liquidation value due to dissenting financial creditors shall be paid to them before any recovery is made by financial creditors who voted in favour of the resolution plan. This provision was held to be ultra vires by the NCLAT, in Central Bank of India v Resolution Professional of the Sirpur Paper Mills Ltd & Ors, 2018 SCC OnLine NCLAT 1034. Following the judgment, the CIRP Regulations were amended.

[13] 2018 SCC OnLine NCLAT 1034.

[14] Rajasthan High Court in Ultra Tech Nathdwara Limited v Union of India, 2020 SCC OnLine Raj 1097, struck down various notices and demands raised by the goods and services tax department against a corporate debtor (whose resolution plan had been approved).

[15] Section 5(26), IBC.

[16] This is as per the statement made by Shri Anurag Thakur, Minister of State for Finance and Corporate Affairs in Lok Sabha. The statement is available at http://164.100.24.220/loksabhaquestions/qhindi/172/AU32.pdf (last accessed on 31 August 2020).

[17] In fact, the problem created for the real estate sector perhaps led to the decisions in Flat Buyers Association Winter Hills-77 Gurgaon v Umang Realtech Private Limited through IRP, Company Appeal (AT) (Insolvency) No. 926 of 2019 (available at: https://ibbi.gov.in//uploads/order/d70efb8cb431050862f08d0957ddc9e9.pdf) (last accessed on 31 August 2020). In this case, the NCLAT held that the corporate insolvency resolution process initiated by a homebuyer or a financial institution would be limited to the project concerned and not impact other developers’ projects. It observed that ‘reverse corporate insolvency resolution process’ can be followed in the cases of real infrastructure companies in the interest of the allottees and survival of the real estate companies. Clearly, such an interpretation is not in accordance with the provisions of the Code.

[18] Association of Karvy Investors v Union of India and Others, Writ Petition (Civil) Diary No. 10047/ 2020, available at: https://www.livelaw.in/pdf_upload/pdf_upload-376580.pdf.

[19] Tata Steel BSL Limited and Another v Union of India and Another, WP (Crl) No. 3037/2019, available at: https://ibbi.gov.in//uploads/order/9788b8a21170dc9a1a10309895394106.pdf.

[20] Amendment to section 16(1), IBC.

[21] 2019 SCC OnLine NCLAT 542.

[22] Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) (Fourth Amendment) Regulations 2020.

[24] Notification F No. 20/9/2020-Insolvency dated 24 March 2020 issued by Ministry of Corporate Affairs, Government of India.

[25] Foseco India Limited v Om Boseco Rail Products Limited, CP (IB) No. 1735/ KB/2019, available at: https://ibbi.gov.in//uploads/order/bb2c24f934fc7d187ad54a82987f16ba.pdf. See also: Arrowline Organic Products Private Limited v Rockwell Industries Limited, IA/341/2020 in IBA/1031/2019 available at: https://ibbi.gov.in//uploads/order/29d97fa84cefe57a39fa97d491c061a1.pdf.

[27] Circular No. DOR.No.BP.BC/4/21.04.048/2020-21 dated 6 August 2020 available at: http://www.rbi.org.in.

[28] See Circular No. DOR.No.BP.BC/13/21.04.048/2020-21.

[29] Standard Chartered Bank v Satish Kumar Gupta, RP of Essar Steel Ltd and Others, Company Appeal (AT) (Ins.) No. 242 of 2019. Available at: https://nclat.nic.in/Useradmin/upload/9483444955d1dd6f80afab.pdf (last accessed on 31 August 2020).

[30] 2019 SCC OnLine SC 1478.

[31] K Sashidhar v Indian Overseas Bank, 2019 SCCOnline SC 257.

[32] 2019 SCC OnLine SC 1775.

[33] S C Sekaran v Amit Gupta & Ors, 2019 SCC OnLine NCLAT 517.

[34] Jindal Steel & Power Limited v Arun Kumar Jagatramka, 2019 SCC OnLine NCLAT 759. See also: First Global Finance Private Limited v IVRCL Limited and Another, Company Appeal (AT) (Ins.) No. 918-919 of 2019.

[35] Discussion Paper on Corporate Liquidation Process along with Draft Regulations (27 April 2019) available at: https://ibbi.gov.in/Discussion%20paper%20LIQUIDATION.pdf.

[38] 2019 SCC OnLine NCLAT 592.

[40] Report of Insolvency Law Committee on Cross-Border Insolvency (October 2018), available at: https://ibbi.gov.in/uploads/resources/Report_on_Cross%20Border_Insolvency.pdf.

[42] Jet Airways (India) Limited v State Bank of India and Another, 2019 SCC OnLine NCLAT 385.

[43] ibid.

[44] Venugopal Dhoot v State Bank of India, MA 2385/2019 in C.P.(IB)-02/MB/2018, available at: https://ibbi.gov.in//uploads/order/a487133444be9bd8cadd770dbcdcc8db.pdf.

Get unlimited access to all Global Restructuring Review content