Introduction: This article discusses the filing of insolvency resolution application against Corporate Debtor under Insolvency and Bankruptcy Code, 2016 (IBC in short).
IBC is the codification of laws and its one of its kind which inter-alia shifts the control of the management of corporate persons as well as other persons defined under the Code from debtor driven to creditors driven.
Steps Involved as per latest amendments and judicially settled issues are:
♣ Application for initiation of Corporate Insolvency Resolution Process (CIRP) can be filed by following person:
Financial Creditor, Operational Creditor and Corporate Debtor.
The minimum amount of the default shall be one lakh rupees or more for matters relating to insolvency and liquidation.
♣ Types of Creditors
There are three types of creditors:
i. Operational Creditor (including workmen and employees),
ii. Financial Creditors and
iii. Creditors who do not come under the previous two categories.
It is still not clarified whether this third type of creditor can initiate CIRP proceedings before the NCLT.
♣ Filing of Application by financial Creditors
♣ Filling of Application by Operational Creditors
Some of the key provisions brought in by the code as well as settled proposition by the Adjudicating Authorities regarding structure and mode of serving of demand notice are as follows:-
♣ Filling of Application by Corporate Debtor
In addition to the creditors as mentioned above, corporate debtor by its own can also file application for initiation of corporate resolution process under section 10 of the Code.
Proceedings before NCLT
Appointment of Interim Resolution Professional
In case of financial creditor/ corporate debtor: It is mandatory on the part of the financial creditor that along with the application furnishes the name of the resolution professional proposed to act as an interim professional.
In case of operational creditor: Operational Creditor may or may not furnish the name of the resolution professional proposed to act as an interim professional.
However, Adjudicating Authority shall appoint an interim resolution professional within 14 days from the insolvency commencement date i.e. name proposed by the financial creditor/ corporate debtor and operational creditor if no disciplinary proceedings are pending against the IRPs.
In case of no name of IRPs proposed by the operational creditors, the adjudicating authority shall make a reference to the IBBI for the recommendation of an insolvency professional who may act as an interim resolution professional. Consequently, the Board shall, within 10 days of the receipt of such reference from the Adjudicating authority recommend the name of the insolvency professional who shall be appointed as the interim resolution professional (IRP).
The term of IRP shall not exceed thirty (30) days from date of his appointment. The same or replaced IRP (by committee of creditors) shall be appointed as resolution professional (RP).
IRP shall make Public announcement of the initiation of CIRP immediately within 3 days after admission of the application by the Adjudicating authority.
Submission of Claims
The financial creditors shall submit their proof of claims by electronic means only.
All other creditors may submit the proof of claims in person, by post or by electronic means.
Formation of committee of creditors
After verification of claim, the committee of creditors (COC) shall be constituted by the IRP and the first meeting of the COC shall take place within a period of seven days of its constitution.
Appointment of Resolution Professional
The committee of creditors may, in the first meeting either resolve to appoint the interim resolution professional as a resolution professional or to replace the interim resolution professional by another resolution professional.
Preparation of Information Memorandum
Resolution Professional shall prepare information Memorandum as per section 29 of the code.
Preparation of Resolution Plan
Resolution plan can be proposed by any person for insolvency resolution of the corporate debtor and shall submit it to the resolution professional.
For this purpose, he shall be termed as “Resolution Applicant”.
The Resolution Professional shall present all the resolution plans before the committee of creditors and shall be subject to their approval fulfilling the requisite majority.
Time- line for completing corporate resolution process
The corporate resolution process shall be completed in 180 days from the date the petition is admitted.
However, if the resolution to extend the process of resolution process beyond 180 days but not more than 90 days passed by committee of creditors having a vote of seventy-five per cent of the voting shares, such extension shall be valid and no other such extension can be granted thereafter.
If the resolution plan is put before the Adjudicating authority after the dead line or not in the manner prescribed under the Code, the Adjudicating Authority may pass an order requiring the corporate debtor to be liquidated.
It is interesting to note that during the existence of resolution process also, the committee of creditors may take direction from NCLT to liquidate the Corporate Debtor.
The resolution professional shall automatically become liquidator if not replaced u/s 34(5) of IBC.
Proceeds from the sale of the liquidation assets shall be distributed in order of priority mentioned under the code.
Dissolving the Corporate Debtor
Upon the assets of corporate debtor completely liquidated and the liquidator making an application, the NCLT shall pass an order dissolving the corporate debtor
The author is a practising CA based in Delhi and is registered Insolvency Professional. He can be reached at [email protected] , Mob. +91 9953587496.
Disclaimer: The views expressed in this article are strictly personal. The content of this document are solely for informational purpose. It doesn’t constitute professional advice or recommendation. The Author does not accept any liabilities for any loss or damage of any kind arising out of information in this article and for any actions taken in reliance thereon.