Amendments in IBBI (CIRP Regulations) 2016

Amendments in IBBI (Insolvency Resolution Process for Corporate Persons) (Fourth Amendment) Regulations, 2016 vide Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) (Fourth Amendment) Regulations, 2022

*This presentation is indicative and created for the sole purpose of creating awareness and educating the stakeholders. A stakeholder must refer to the Code and Rules/Regulations made thereunder or seek professional advice if he intends to take any action or decision in any matter under the Code

Improved information availability

Changes in CIRP timelines

• 5 categories of activities – Nonlinear and parallel

Claims, Assets, Identifying PRAs, Avoidance and those requiring all information

• EoI can be done earlier – Requires minimum information, gives more time to find PRAs
• Limited time for preparation of IM – inadequate information on CD for PRAs
• Filing avoidance application coincides with timeline for submission of resolution plan – No occasion to provide information regarding avoidance transactions to PRAs

Amendment

Improved Information Memorandum

• Information available through the IM is limited and does not reflect true value of CD
• IM acts as basic document for PRAs → Needs to be comprehensive

Amendment

IP shall include in the IM –

• • Operations of CD
  • Financial statements
  • Geographical coordinates of fixed assets
  • Company overview
• Details of business evolution for CDs with asset size of more than one hundred crore rupees.
• Timeline for preparation of IM shifted to T+95

Modified Form G/ Invitation of EOI (IEOI)

• Form G published – the first communication to market about CD
• Form- G/EOI should include the basic details of the CD to attract more prospective resolution applicants (PRAs)
• Exclude irrelevant details about the future processes for optimising publication cost

Amendment

• To provide for basic details of the CD
• Basic details include no. of employees/workmen, capacity of products, place where majority assets are situated etc.

Provide copy of avoidance application to PRAs

• New timeline proposed (T+130) presents an opportunity to share the information with PRAs
• Enables PRAs to account for such information in the resolution plan
• Clarified that this additional information does not entitle them for any extension for submission of the resolution plan

Amendment

• To provide copy of avoidance application to prospective resolution applicant to account for such information in the resolution plan
• Reduction in timeline to T+130

Value maximization

Marketing of assets by the RP

• Professional services hired for marketing of assets but only in some CIRPs
• Information of assets need to be disseminated to a wider and targeted audience
• Marketing effort linked to quantum of assets and not liabilities to prevent misuse of provision in cases where assets are low in comparison to assets and cost of marketing may be prohibitive

Amendment

• RP to prepare a strategy for marketing of assets in consultation with the CoC for CDs where assets (as per the last available balance sheet) exceed Rs.100 crore
• Strategy may be prepared in other cases, if CoC decides
• Strategy to include measures and cost involved as approved by CoC
• Strategy to include measures to be taken by CoC members

Resolution of functional/operating parts of CD

• CDs have functional and non-functional assets or assets in different businesses & locations
• PRAs interested in functional asset or an asset in one location/business alone
• Acquiring CD as whole may not in line with the capacity and strategic objective of PRA
• In Liquidation – assets sold in parts and realisation is far less than what is expected in CIRP

32nd report of Standing Committee on Finance: Bidders may be interested in selected business units or assets, rather than the entire business. A combination of bidders taking different business units or assets may be far superior to one bidder acquiring the entire business.

Amendment

• Enabled re-issue of the request for resolution plan for sale of part of the assets of CD as well where no resolution plan has been received for the CD as a whole
• Resolution plan may contain measures for sale of part of the assets of corporate debtor to one or more successful resolution applicant(s) submitting resolution plans for the part assets; and dealing with remaining assets

Reducing delays

Guiding factors for CoC to decide on early liquidation

• RP mandated to attempt for resolution before filing for liquidation orders

–  Cost on creditors in paying to the RP and erosion in asset value due to delay

• CoC may decide to liquidate in obvious liquidation cases
• Factors are for guidance

Amendment

• Provides factors to guide the CoC as stated above in timely liquidation of cases
• Reasons to be recorded and filed with AA

Exploring compromise /arrangement after CoC approves liquidation

• Liquidator directed to explore the possibility of a compromise or arrangement on many occasions by AA in most cases even where this exploration is not possible.
• A period of 90 days from commencement of liquidation is prescribed (proposed to be reduced to 30 days). However, taking much longer in practice

Amendment

• Enable the CoC to examine whether they want to explore option of compromise arrangement and file such recommendation with AA while applying to AA for liquidation order
• In cases, where they decide to explore, they should explore the option during the period, order for liquidation is awaited from the AA

Improving clarity in CIRP activities

Process email and Notice to creditors

♦ Communication gaps between IRP/RP and claimants

• Claims invited by IRP in specific email ID which is changed in case of IRP/RP replacement
• Missing communication history where IRP fails to deliver documents to new RP
• Creditors (specially homebuyers) unaware of initiation of CIRP

♦ Need for timely information to creditors regarding initiation of CIRP and the last date for filing of claims and a single email id for all correspondence

Amendment

• A common email address be used throughout the insolvency and liquidation processes and this email id needs to be handed over to the succeeding IP
• IRP to communicate to all creditors of the CD as the per the last available books of accounts through post or through electronic means wherever the information for communication is available

CoC meetings after approval of resolution plan by the CoC

• Communication gaps as the CoC does not receive any update about the business of CD (in going concern cases) and approval of plan while resolution plan is pending for AA’s approval

Clarificatory Amendment

Meeting of the CoC may be convened till the approval of resolution plan under sub-section (1) of section 31 or passing an order for liquidation under section 33