Insolvency and Bankruptcy Board of India notifies Fast Track Insolvency Resolution Process for Corporate Persons Regulations
The Insolvency and Bankruptcy Board of India (IBBI), in exercise of its powers conferred by sections 58, 196 and 208 read with section 240 of the Insolvency and Bankruptcy Code, 2016 (Code), has notified the Insolvency and Bankruptcy Board of India (Fast Track Insolvency Resolution Process for Corporate Persons) Regulations, 2017. These regulations provide the process from initiation of insolvency resolution of eligible corporate debtors till its conclusion with approval of the resolution plan by the Adjudicating Authority. The process in these cases shall be completed within a period of 90 days, as against 180 days in other cases. However, the Adjudicating Authority may, if satisfied, extend the period of 90 days by a further period up to 45 days for completion of the process.
A creditor or a corporate debtor may file an application, along with the proof of existence of default, to the Adjudicating Authority for initiating fast track resolution process. After the application is admitted and the interim resolution professional (IRP) is appointed, if the IRP is of the opinion, based on the records of corporate debtor, that the fast track process is not applicable to the corporate debtor, he shall file an application before expiry of 21 days from the date of his appointment, to Adjudicating Authority to pass an order to convert the fast track process into a normal corporate insolvency resolution process.
The Ministry of Corporate Affairs has notified the relevant sections 55 to 58 of the Insolvency and Bankruptcy code,2016 pertaining to the Fast Track Process and also notified that fast track process shall apply to the following categories of corporate debtors:
- a small company, as defined under clause (85) of section 2 of the Companies Act, 2013; or
- a Startup (other than the partnership firm), as defined in the notification dated 23rd May, 2017 of the Ministry of Commerce and Industry; or
- an unlisted company with total assets, as reported in the financial statement of the immediately preceding financial year, not exceeding Rs.1 crore.
Related Notification is as follows :-
ANNEXURE F
GAZETTE OF INDIA
EXTRAORDINARY
PART III, SECTION 4
PUBLISHED BY AUTHORITY
NEW DELHI, WEDNESDAY, JUNE 14, 2017
INSOLVENCY AND BANKRUPTCY BOARD OF INDIA
NOTIFICATION
New Delhi, the June 14, 2017
IBBI/2017-18/GN/REG 012 – In exercise of the powers conferred under sections 58, 196 and 208 read with section 240 of the Insolvency and Bankruptcy Code, 2016 (31 of 2016), the Insolvency and Bankruptcy Board of India hereby makes the following Regulations, namely‑
CHAPTER I
PRELIMINARY
1. Short title and commencement.
(1) These Regulations may be called the Insolvency and Bankruptcy Board of India (Fast Track Insolvency Resolution Process for Corporate Persons) Regulations, 2017.
(2) These Regulations shall come into force on June 14, 2017.
(3) These Regulations shall apply to the fast track process under Chapter W of Part II of the Code.
2. Definitions.
(1) In these Regulations, unless the context otherwise requires‑
(a) “applicant” means the person filing an application under Chapter W of Part II of the Code;
(b) “Code” means the Insolvency and Bankruptcy Code, 2016;
(c) “Code of Conduct” means the code of conduct for insolvency professionals as set out in the Insolvency and Bankruptcy Board of India (Insolvency Professionals) Regulations, 2016;
(d) “committee” means a committee of creditors established under section 21;
(e) “dissenting fmancial creditors” means the financial creditors who voted against the resolution plan approved by the committee;
(f) “electronic form” shall have the meaning assigned to it in the Information Technology Act, 2000 (21 of 2000);
(g) “electronic means” means an authorized and secured computer programme which is capable of producing confirmation of sending communication to the participant entitled to receive such communication at the last electronic mail address provided by such participant and keeping record of such communication;
(h) “fast track process” means the fast track insolvency resolution process for corporate persons under Chapter W of Part II of the Code;
(i) “fast track process costs” means the costs in Regulation 30;
(j) “fast track process period” means the period of ninety days beginning from the fast track commencement date and ending on the ninetieth day;
(k) “identification number” means the Limited Liability Partnership Identification Number under the Limited Liability Partnership Act, 2008, or the Corporate Identity Number under the Companies Act, 2013, as the case may be;
(l) “fast track commencement date” means the date of admission of an application by the Adjudicating Authority for initiating the fast track process under Chapter W of Part II of the Code;
(m) “insolvency professional entity” means an entity recognised as such under the Insolvency and Bankruptcy Board of India (Insolvency Professionals) Regulations, 2016;
(n) “liquidation value” means the amount determined in accordance with Regulation 34;
(o) “participant” means a person entitled to attend a meeting of the committee under section 24 or any other person authorised by the committee to attend the meeting;
(p) “registered valuer” means a person registered as such in accordance with the Companies Act, 2013 (18 of 2013) and rules made thereunder;
(q) “section” means section of the Code;
(r) “video conferencing or other audio and visual means” means such audio and visual facility which enables the participants in a meeting to communicate concurrently with one another and to participate effectively in the meeting.
(2) Unless the context otherwise requires, words and expressions used and not defined in these Regulations, but defined in the Code, shall have the meanings assigned to them in the Code.
CHAPTER II
GENERAL
3. Eligibility for resolution professional.
(1) An insolvency professional shall be eligible to be appointed as a resolution professional for a fast track process of a corporate debtor if he, and all partners and directors of the insolvency professional entity of which he is a partner or director, are independent of the corporate debtor.
Explanation– A person shall be considered independent of the corporate debtor, if he –
(a) is eligible to be appointed as an independent director on the board of the corporate debtor under section 149 of the Companies Act, 2013 (18 of 2013), where the corporate debtor is a company;
(b) is not a related party of the corporate debtor; or
(c) has not been an employee or proprietor or a partner:
1) of a firm of auditors or company secretaries in practice or cost auditors of the corporate debtor; or
2) of a legal or a consulting firm, which has or had any transaction with the corporate debtor amounting to ten per cent or more of the gross turnover of such firm,
at any time in the preceding three years.
(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 make disclosures at the time of his appointment and thereafter in accordance with the Code of Conduct.
(4) 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 insolvency professional entity represents any other stakeholders in the same fast track process.
4. Access to books.
Without prejudice to section 17(2)(d), the interim resolution professional may access the books of account, records and other relevant documents and information, to the extent relevant for discharging his duties under the Code, of the corporate debtor held with‑
(a) depositories of securities;
(b) professional advisors of the corporate debtor;
(c) information utilities;
(d) other registries that record the ownership of assets;
(e) members, promoters, partners, board of directors and joint venture partners of the corporate debtor; and
(f) contractual counter parties of the corporate debtor.
5. Extortionate credit transaction.
A transaction shall be considered an extortionate credit transaction under section 50(2) where the terms:
(a) require the corporate debtor to make exorbitant payments in respect of the credit provided; or
(b) are unconscionable under the principles of law relating to contracts.
CHAPTER III
PUBLIC ANNOUNCEMENT
6. Public announcement.
(1) An insolvency professional shall make a public announcement immediately on his appointment as an interim resolution professional.
Explanation: ‘Immediately’ means not later than three days from the date of his appointment.
(2) The public announcement referred to in sub-regulation (1) shall –
(a) be in Form A;
(b) (i) be published in one English and one regional language newspaper with wide circulation at the location of the registered office and principal office, if any, of the corporate debtor and any other location where in the opinion of the interim resolution professional, the corporate debtor conducts material business operations;
(ii) be hosted on the website, if any, of the corporate debtor; and
(iii) be hosted on the website, if any, designated by the Board for the purpose,
(c) provide the last date for submission of proofs of claim, which shall be ten days from the date of appointment of the interim resolution professional.
(3) The applicant shall bear the expenses of the public announcement which may be reimbursed by the committee to the extent it ratifies them.
Explanation-The expenses on the public announcement shall not form part of fast track process costs.
CHAPTER IV
PROOF OF CLAIMS
7. Claims by operational creditors.
(1) An operational creditor, other than workman or employee of the corporate debtor, shall submit proof of his claim to the interim resolution professional in person, by post or by electronic means in Form B.
Provided that such person may submit supplementary documents or clarifications in support of the claim before the constitution of the committee.
(2) The existence of debt due to the operational creditor under this Regulation may be proved on the basis of‑
(a) the records available with an information utility, if any; or
(b) other relevant documents, including –
(i) a contract for the supply of goods and services with corporate debtor;
(ii) an invoice demanding payment for the goods and services supplied to the corporate debtor;
(iii) an order of a court or tribunal that has adjudicated upon the non-payment of a debt, if any; or
(iv) financial accounts.
8. Claims by financial creditors.
(1) A financial creditor shall submit proof of claim to the interim resolution professional in electronic form in Form C:
Provided that such person may submit supplementary documents or clarifications in support of the claim before the constitution of the committee.
(2) The existence of debt due to the financial creditor may be proved on the basis of –
(a) the records available with an information utility, if any; or
(b) other relevant documents, including –
(i) a financial contract supported by financial statements as evidence of the debt;
(ii) a record evidencing that the amounts committed by the financial creditor to the corporate debtor under a facility has been drawn by the corporate debtor;
(iii) financial statements showing that the debt has not been repaid; or
(iv) an order of a court or tribunal that has adjudicated upon the non-payment of a debt, if any.
9. Claims by workmen and employees.
(1) A workman or an employee of the corporate debtor shall submit proof of claim to the interim resolution professional in person, by post or by electronic means in Form D:
Provided that such person may submit supplementary documents or clarifications in support of the claim, on his own or if required by the interim resolution professional, before the constitution of the committee.
(2) Where there are dues to numerous workmen or employees of the corporate debtor, an authorised representative may submit one proof of claim for all such dues on their behalf in Form E.
(3) The existence of dues to workmen or employees may be proved by them, individually or collectively on the basis of –
(a) records available with an information utility, if any; or
(b) other relevant documents, including –
(i) a proof of employment such as contract of employment for the period for which such workman or employee is claiming dues;
(ii) evidence of notice demanding payment of unpaid dues and any documentary or other proof that payment has not been made; or
(iii) an order of a court or tribunal that has adjudicated upon the non-payment of a dues, if any.
10. Substantiation of claims.
The interim resolution professional or the resolution professional, as the case may be, may call for such other evidence or clarification as he deems fit from a creditor for substantiating the whole or part of its claim.
11. Cost of proof proving the debt
A creditor shall bear the cost of proving the debt due to such creditor.
12. Submission of proof of claims.
(1) Subject to sub-regulation (2), a creditor shall submit proof of his claim on or before the last date mentioned in the public announcement.
(2) A creditor, who failed to submit proof of claim within the time stipulated in the public announcement, may submit proof of such claim to the interim resolution professional or the resolution professional, as the case may be, till the approval of a resolution plan by the committee.
(3) Where the creditor in sub-regulation (2) is a financial creditor, it shall be included in the
committee from the date of admission of such claim:
Provided that such inclusion shall not affect the validity of any decision taken by the committee prior to such inclusion.
13. Verification of claims.
(1) The interim resolution professional or the resolution professional, as the case may be, shall verify every claim, as on the fast track commencement date, within seven days from the last date of the receipt of the claims, and thereupon maintain a list of creditors containing names of creditors along with the amount claimed by them, the amount of their claims admitted and the security interest, if any, in respect of such claims, and update it.
(2) The list of creditors shall be –
(a) available for inspection by the persons who submitted proofs of claim;
(b) available for inspection by members, partners, directors and guarantors of the corporate debtor;
(c) displayed on the website, if any, of the corporate debtor;
(d) filed with the Adjudicating Authority; and
(e) presented at the first meeting of the committee.
14. Determination of amount of claim.
(1) Where the amount claimed by a creditor is not precise or cannot be determined due to any contingency or other reason, the interim resolution professional or the resolution professional, as the case maybe, shall make the best estimate of the amount of the claim based on the information available with him.
(2) The interim resolution professional or the resolution professional, as the case may be, shall revise the amount of claims admitted, including the estimates of claims made under sub-regulation (1), as soon as may be practicable, when he receives additional information warranting such revision.
15. Debt in foreign currency.
The claims denominated in foreign currency shall be valued in Indian currency at the official exchange rate as on the fast track commencement date.
Explanation – “official exchange rate” means the reference rate published by the Reserve Bank of India or derived from such reference rates.
CHAPTER V
COMMITTEE OF CREDITORS
16. Committee with only operational creditors.
(1) Where the corporate debtor has no fmancial debt or where all financial creditors are related parties of the corporate debtor, the committee shall be set up in accordance with this Regulation.
(2) The committee formed under this Regulation shall consist of following members: –
(a) eighteen largest operational creditors by value:
Provided that if the number of operational creditors is less than eighteen, the committee shall include all such operational creditors;
(b) one representative elected by all workmen other than those workmen included under sub-clause (a); and
(c) one representative elected by all employees other than those employees included under sub-clause (a).
(3) Every member of the committee formed under this Regulation shall have voting rights in proportion of the debt due to such creditor or debt represented by such representative, as the case may be, to the total debt.
Explanation -F or the purposes of this sub-regulation, ‘total debt’ means the sum of‑
(a) the amount of debt due to the creditors listed in sub-regulation 2(a);
(b) the amount of the aggregate debt due to workmen under sub-regulation 2(b); and
(c) the amount of the aggregate debt due to employees under sub-regulation 2(c).
(4) A committee formed under this Regulation and its members shall have the same rights, powers, duties and obligations as a committee comprising financial creditors and its members, as the case may be.
17. Filings by the interim resolution professional.
(1) The interim resolution professional shall file a report certifying the constitution of the committee to the Adjudicating Authority on or before the expiry of twenty-one days from the date of his appointment.
(2) Based on records of the corporate debtor and claims, if the interim resolution professional is of the opinion that the fast track process is not applicable to the corporate debtor as per notifications under section 55(2), he shall file an application to the Adjudicating Authority along with the report in sub-regulation (1), to pass an order converting the fast track process to corporate insolvency resolution process under Chapter II of Part II of the Code.
(3) If the Adjudicating Authority passes an order converting fast track to corporate insolvency resolution process on an application under sub-regulation (2), the process shall be carried on in accordance with the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016.
(4) The interim resolution professional shall convene the first meeting of the committee within seven days of filing the report(s) under this Regulation.
CHAPTER VI
MEETINGS OF THE COMMITTEE
18. Meetings of the committee.
A resolution professional may convene a meeting of the committee as and when he considers necessary, and shall convene a meeting if a request to that effect is made by members of the committee representing thirty-three per cent of the voting rights.
19. Notice for meetings of the committee.
(1) Subject to this Regulation, a meeting of the committee shall be called by giving not less than seven days’ notice in writing to every creditor, delivered at the address he has provided to the resolution professional and such notice may be served by hand delivery, or by registered post but in any event, be served on every participant by electronic means in accordance with Regulation 20.
(2) The committee may reduce the notice period from seven days to such other period of not less than twenty four hours, as it deems fit.
20. Service of notice by electronic means.
(1) A notice by electronic means may be sent to the participants through e-mail as a text or as an attachment to e-mail or as a notification providing electronic link or Uniform Resource Locator for accessing such notice.
(2) The subject line in e-mail shall state the name of the corporate debtor, the place, if any, the time and the date on which the meeting is scheduled.
(3) If notice is sent in the form of a non-editable attachment to an e-mail, such attachment shall be in the Portable Document Format or in a non-editable format together with a ‘link or instructions’ for recipient for downloading relevant version of the software.
(4) When notice or notifications of availability of notice are sent by an e-mail, the resolution professional shall ensure that it uses a system which produces confirmation of the total number of recipients e-mailed and a record of each recipient to whom the notice has been sent and copy of such record and any notices of any failed transmissions and subsequent re-sending shall be retained as -proof of sending-.
(5) The obligation of the resolution professional shall be satisfied when he transmits the email and he shall not be held responsible for a failure in transmission beyond its control.
(6) The notice made available on the electronic link or Uniform Resource Locator shall be readable, and the recipient should be able to obtain and retain copies and the resolution professional shall give the complete Uniform Resource Locator or address of the website and full details of how to access the document or information.
(7) If a creditor, other than a member of the committee, fails to provide or update the relevant e-mail address to the resolution professional, the non-receipt of such notice by such participant of any meeting shall not invalidate the decisions taken at such meeting.
21. Contents of the notice for meeting.
(1) The notice shall inform the participants of the venue, the time and date of the meeting and of the option available to them to participate through video conferencing or other audio and visual means, and shall also provide all the necessary information to enable participation through such means.
(2) The notice of the meeting shall provide that a creditor may attend and vote in the meeting either in person or through an authorised representative:
Provided that such creditor shall inform the resolution professional, in advance of the meeting, of the identity of the authorised representative who will attend and vote at the meeting on its behalf.
(3) The notice of the meeting shall contain an agenda of the meeting with the following‑
(i) a list of the matters to be discussed at the meeting;
(ii) a list of the issues to be voted upon at the meeting; and
(iii) copies of all documents relevant to the matters to be discussed and the issues to be voted upon at the meeting; and
(4) The notice of the meeting shall‑
(a) state the process and the manner for voting and the time schedule, including the time period during which the votes may be cast:
(b) provide the login ID and the details of a facility for generating password and for keeping security and casting of an electronic vote in a secure manner; and
(c) provide contact details of the person who will address the queries connected with the voting.
22. Quorum at the meeting.
(1) A meeting of the committee shall be quorate if members of the committee representing at least thirty-three percent of the voting rights are present either in person or by video conferencing or other audio and visual means:
Provided that the committee may modify the percentage of voting rights required for quorum in respect of any future meetings of the committee.
(2) Where a meeting of the committee could not be held for want of quorum, unless the committee has previously decided otherwise, the meeting shall automatically stand adjourned at the same time and place on the next day.
(3) In the event a meeting of the committee is adjourned in accordance with sub-regulation (2), the adjourned meeting shall be quorate with the members of the committee attending the meeting.
23. Participation through video conferencing.
(1) The notice convening the meetings of the committee shall provide the participants an option to attend the meeting through video conferencing or other audio and visual means in accordance with this Regulation.
(2) The resolution professional shall make necessary arrangements to ensure uninterrupted and clear video or audio and visual connection.
(3) The resolution professional shall take due and reasonable care‑
(a) to safeguard the integrity of the meeting by ensuring sufficient security and identification procedures;
(b) to ensure availability of proper video conferencing or other audio and visual equipment or facilities for providing transmission of the communications for effective participation of the participants at the meeting;
(c) to record proceedings and prepare the minutes of the meeting;
(d) to store for safekeeping and marking the physical recordings) or other electronic recording mechanism as part of the records of the corporate debtor;
(e) to ensure that no person other than the intended participants attends or has access to the proceedings of the meeting through video conferencing or other audio and visual means; and
(f) to ensure that participants attending the meeting through audio and visual means are able to hear and see, if applicable, the other participants clearly during the course of the meeting:
Provided that the persons, who are differently abled, may make request to the resolution professional to allow a person to accompany him at the meeting. meeting, which shall be in India, shall be deemed to be the place of the said meeting and all recordings of the proceedings at the meeting shall be deemed to be made at such place.
24. Conduct of meeting.
(1) The resolution professional shall act as the Chairperson of the meeting of the committee.
(2) At the commencement of a meeting, the resolution professional shall take a roll call when every participant attending through video conferencing or other audio and visual means shall state, for the record, the following:-
(a) his name;
(b) whether he is attending in the capacity of a member of the committee or any other participant;
(c) whether he is representing a member or group of members;
(d) the location from where he is participating;
(e) that he has received the agenda and all the relevant material for the meeting; and
(f) that no one other than him is attending or has access to the proceedings of the meeting at the location of that person.
(3) After the roll call, the resolution professional shall inform the participants of the names of all persons who are present for the meeting and confirm if the required quorum is complete.
(4) The resolution professional shall ensure that the required quorum is present throughout the meeting.
(5) From the commencement of the meeting till its conclusion, no person other than the participants and any other person whose presence is required by the resolution professional shall be allowed access to the place where meeting is held or to the video conferencing or other audio and visual facility, without the permission of the resolution professional.
(6) The resolution professional shall ensure that minutes are made in relation to each meeting of the committee and such minutes shall disclose the particulars of the participants who attended the meeting in person, through video conferencing, or other audio and visual means.
(7) The resolution professional shall circulate the minutes of the meeting to all participants by electronic means within forty-eight hours of the said meeting.
CHAPTER VII
VOTING BY THE COMMITTEE
25. Voting by the committee.
(1) The actions listed in section 28(1) shall be considered in meetings of the committee.
(2) Any action other than those listed in section 28(1) may be considered in meetings of the committee.
(3) The resolution professional may, at the meeting, take a vote of the members of the committee who are participating in the meeting on any item listed for voting after discussion on the same.
(4) The resolution professional shall –
(a) circulate the minutes of the meeting by electronic means to all members of the committee within forty-eight hours of the conclusion of the meeting; and
(b) seek a vote on the matters listed for voting in the meeting from the members of the committee who did not participate in the meeting or did not vote at the meeting, if any, by electronic means or electronic voting system, where the voting shall be kept open for twenty-four hours from the circulation of the minutes.
(5) At the end of the voting period, the electronic voting portal shall forthwith be blocked.
(6) Once a vote on a resolution is cast by a member of the committee, such member shall not be allowed to change it subsequently.
(7) The resolution professional shall within twenty four hours of the conclusion of the voting, or forty eight hours of the conclusion of the meeting if no electronic vote is required to be sought under this regulation, circulate by electronic means the decision of the committee on agenda items along with the names of the members of the committee who voted for or against the decision, or abstained from voting.
Explanation- For the purposes of these Regulations –
(a) the expressions “voting by electronic means” and its grammatical variant or “electronic voting system” means a “secured system” based process of display of electronic ballots, recording of votes of the members of the committee and the number of votes polled in favour or against, such that the voting exercised by way of electronic means gets registered and counted in an electronic registry in a centralized server with adequate cyber security;
(b) the expression “secured system” means computer hardware, software, and procedure that –
(i) are reasonably secure from unauthorized access and misuse;
(ii) provide a reasonable level of reliability and correct operation;
(iii) are reasonably suited to perform the intended functions;
(iv) and adhere to generally accepted security procedures.
CHAPTER VIII
CONDUCT OF THE FAST TRACK PROCESS
26. Appointment of registered valuer.
The interim resolution professional shall within seven days of his appointment, appoint one registered valuer to determine the liquidation value of the corporate debtor in accordance with Regulation 34:
Provided that the following persons shall not be appointed as the registered valuer:
(a) a relative of the interim resolution professional;
(b) a related party of the corporate debtor;
(c) an auditor of the corporate debtor in the five years preceding the fast track commencement date; or
(d) a partner or director of the insolvency professional entity.
27. Transfer of debt due to creditors.
(1) In the event a creditor assigns or transfers the debt due to such creditor to any other person during the fast track process period, both parties shall provide the interim resolution professional or the resolution professional, as the case may be, the terms of such assignment or transfer and the identity of the assignee or transferee.
(2) The resolution professional shall notify each creditor and the Adjudicating Authority of any resultant change in the committee within two days of such change.
28. Sale of assets outside the ordinary course of business.
(1) The resolution professional may sell unencumbered asset(s) of the corporate debtor, other than in the ordinary course of business, if he is of the opinion that such a sale is necessary for a better realisation of value under the facts and circumstances of the case:
Provided that the book value of all assets sold during fast track process period in aggregate under this sub-regulation shall not exceed ten percent of the total claims admitted by the interim resolution professional.
(2) A sale of assets under this Regulation shall require the approval of the committee.
(3) A bona fide purchaser of assets sold under this Regulation shall have a free and marketable title to such assets notwithstanding the terms of the constitutional documents of the corporate debtor, shareholders’ agreement, joint venture agreement or other document of a similar nature.
29. Assistance of local district administration.
The interim resolution professional or the resolution professional, as the case may be, may make an application to the Adjudicating Authority for an order seeking the assistance of the local district administration in discharging his duties under the Code or these Regulations.
CHAPTER IX
FAST TRACK PROCESS COSTS
30. Fast track process costs.
“Fast track process costs” shall mean –
(a) the amount of any interim finance and the costs incurred in raising such finance;
(b) the fees payable to any person acting as a resolution professional;
(c) any costs incurred by the resolution professional in running the business of the corporate debtor as a going concern;
(d) any costs incurred at the expense of the Government to facilitate the process;
(e) amounts due to suppliers of essential goods and services under Regulation 31;
(f) amounts due to a person whose rights are prejudicially affected on account of the moratorium imposed under section 14(1)(d);
(g) expenses incurred on or by the interim resolution professional to the extent ratified under Regulation 32;
(h) expenses incurred on or by the resolution professional fixed under Regulation 33; and
(i) other costs directly relating to the fast track process and approved by the
committee.
31. Essential supplies.
The essential goods and services referred to in section 14(2) shall mean-
(a) electricity;
(b) water;
(c) telecommunication services; and
(d) information technology services, to the extent these are not a direct input to the output produced or supplied by the corporate debtor.
Illustration-Water supplied to a corporate debtor will be essential supplies for drinking and sanitation purposes, and not for generation of hydro-electricity.
32. Costs of the interim resolution professional.
(1) The applicant shall fix the expenses to be incurred on or by the interim resolution professional.
(2) The Adjudicating Authority shall fix expenses where the applicant has not fixed expenses under sub-regulation (1).
(3) The applicant shall bear the expenses which shall be reimbursed by the committee to the extent it ratifies.
(4) The amount of expenses ratified by the committee shall be treated as fast track process costs.
Explanation- For the purposes of this Regulation, “expenses” means the fee to be paid to the interim resolution professional and other expenses, including the cost of engaging professional advisors, to be incurred by the interim resolution professional.
33. Resolution professional costs.
The committee shall fix the expenses to be incurred on or by the resolution professional and the expenses shall constitute fast track process costs.
Explanation- For the purposes of this Regulation, “expenses” mean the fee to be paid to the resolution professional and other expenses, including the cost of engaging professional advisors, to be incurred by the resolution professional.
CHAPTER X
RESOLUTION PLAN
34. Liquidation value.
(1) Liquidation value is the estimated realizable value of the assets of the corporate debtor if the corporate debtor were to be liquidated on the fast track commencement date.
(2) The registered valuer appointed under Regulation 26 shall submit to the interim resolution professional or the resolution professional, as the case maybe, an estimate of the liquidation value computed in accordance with internationally accepted valuation standards, after physical verification of the inventory and fixed assets of the corporate debtor.
(3) The resolution professional shall provide the liquidation value to the committee in electronic form.
35. Information memorandum.
(1) Subject to sub-regulation (4), the interim resolution professional or the resolution professional, as the case may be, shall submit an information memorandum in electronic form to each member of the committee and any potential resolution applicant containing‑
(a) at least the matters listed in paragraphs (a) to (i) of sub-regulation (2), before its first meeting; and
(b) matters listed in paragraphs (j) to (1) of sub-regulation (2), within fourteen days of the first meeting.
(2) The information memorandum shall contain the following details of the corporate debtor‑
(a) assets and liabilities, as on the fast track commencement date, classified into appropriate categories for easy identification, with estimated values assigned to each category;
(b) the latest annual fmancial statements;
(c) audited fmancial statements of the corporate debtor for the last two financial years and provisional financial statements for the current financial year made up to a date not earlier than fourteen days from the date of the application;
(d) a list of creditors containing the names of creditors, the amounts claimed by them, the amount of their claims admitted and the security interest, if any, in respect of such claims;
(e) particulars of a debt due from or to the corporate debtor with respect to related parties;
(f) details of guarantees that have been given in relation to the debts of the corporate debtor by other persons, specifying which of the guarantors is a related party;
(g) the names and addresses of the members or partners holding at least one per cent stake in the corporate debtor along with the size of stake;
(h) details of all material litigation and an ongoing investigation or proceeding initiated by Government and statutory authorities;
(i) the number of workers and employees and liabilities of the corporate debtor towards them;
(j) the liquidation value;
(k) the liquidation value due to operational creditors; and
(l) other information, which the resolution professional deems relevant to the committee.
(3) A member of the committee may request the resolution professional for further information of the nature described in this regulation and the resolution professional shall provide such information to all members within reasonable time if such information has a bearing on the resolution plan.
(4) The interim resolution professional or the resolution professional, as the case may be, shall share the information memorandum after receiving an undertaking from a member of the committee or a potential resolution applicant to the effect that such member or resolution applicant shall maintain confidentiality of the information and shall not use such information to cause an undue gain or undue loss to itself or any other person and comply with the requirements under section 29(2).
36. Resolution plan.
(1) A resolution plan may provide for the measures required for implementing it, including but not limited to the following‑
(a) transfer of all or part of the assets of the corporate debtor to one or more persons;
(b) sale of all or part of the assets whether subject to any security interest or not;
(c) the substantial acquisition of shares of the corporate debtor, or the merger or consolidation of the corporate debtor with one or more persons;
(d) satisfaction or modification of any security interest;
(e) curing or waiving of any breach of the terms of any debt due from the corporate debtor;
(f) reduction in the amount payable to the creditors;
(g) extension of a maturity date or a change in interest rate or other terms of a debt due from the corporate debtor;
(h) amendment of the constitutional documents of the corporate debtor;
(i) issuance of securities of the corporate debtor, for cash, property, securities, or in exchange for claims or interests, or other appropriate purpose; and
(j) obtaining necessary approvals from the Central and State Governments and other authorities.
37. Mandatory contents of the resolution plan.
(1) A resolution plan shall identify specific sources of funds that will be used to pay the –
(a) fast track process costs and provide that the fast track process costs will be paid in priority to any other creditor;
(b) liquidation value due to operational creditors and provide for such payment in priority to any financial creditor which shall in any event be made before the expiry of thirty days after the approval of a resolution plan by the Adjudicating Authority; and
(c) liquidation value due to dissenting financial creditors and provide that such payment is made before any recoveries are made by the fmancial creditors who voted in favour of the resolution plan.
(2) A resolution plan shall provide:
(a) the term of the plan and its implementation schedule;
(b) the management and control of the business of the corporate debtor during its term; and
(c) adequate means for supervising its implementation.
38. Approval of resolution plan.
(1) A resolution applicant shall endeavour to submit a resolution plan prepared in accordance with the Code and these Regulations to the resolution professional, thirty days before expiry of the maximum period permitted under section 56 for the completion of the fast track process.
(2) The resolution professional shall present all resolution plans that meet the requirements of the Code and these Regulations to the committee for its consideration.
(3) The committee may approve any resolution plan with such modifications as it deems fit.
(4) The resolution professional shall submit the resolution plan approved by the committee to the Adjudicating Authority with the certification that –
(a) the contents of the resolution plan meet all the requirements of the Code and the Regulations; and
(b) the resolution plan has been approved by the committee.
(5) The resolution professional shall forthwith send a copy of the order of the Adjudicating Authority approving or rejecting a resolution plan to the participants and the resolution applicant.
(6) A provision in a resolution plan which would otherwise require the consent of the members or partners of the corporate debtor, as the case may be, under the terms of the constitutional documents of the corporate debtor, shareholders’ agreement, joint venture agreement or other document of a similar nature, shall take effect notwithstanding that such consent has not been obtained.
(7) No proceedings shall be initiated against the interim resolution professional or the resolution professional, as the case maybe, for any actions of the corporate debtor, prior to the fast track commencement date.
(8) A person in charge of the management or control of the business and operations of the corporate debtor after a resolution plan is approved by the Adjudicating Authority, may make an application to the Adjudicating Authority for an order seeking the assistance of the local district administration in implementing the terms of a resolution plan.
39. Extension of the fast track process period.
(1) The committee is of the opinion that the fast track process cannot be completed within the stipulated 90 days, it may instruct the resolution professional to make an application to the Adjudicating Authority under section 56 to extend thefast track process period.
(2) The resolution professional shall, on receiving an instruction from the committee under this Regulation, make an application to the Adjudicating Authority for such extension.
Related Schedules
