The World Bank Doing Business’ Index 2018 recognized the sustained efforts and commitment of the Government of India as this year India became one of the top 10 ‘improvers’ in the rankings released by the World Bank. However, improving on the Doing Business rankings is not an easy task, especially for an economy that is as large and complex as India’s. Drafting a new piece of legislation is only the start. The more significant challenge is ensuring that the law is implemented in its true spirit. This can be achieved by periodically evaluating the law, especially when it is in its initial stages and practical challenges in implementation emerge. Towards this end, the Insolvency Law Committee was constituted by the Ministry of Corporate Affairs to conduct a detailed review of the Insolvency and Bankruptcy Code, 2016 in consultation with key stakeholders.
This Report by the Insolvency Law Committee is a sincere attempt to encourage sustainable growth of the credit market in India, while safeguarding interests of various stakeholders. The key recommendations in this Report are as follows:
(i) in recognition of the importance of Micro, Small and Medium Enterprises (MSMEs) to the Indian economy and the unique challenges faced by them, it has been recommended to allow the Central Government to exempt MSMEs from application of certain provisions of the Code. Illustratively, since usually only promoters of an MSME are likely to be interested in acquiring it, applicability of section 29A has been restricted only to disqualify wilful defaulters from bidding for MSMEs;
(ii) in order to address the problem of unintended exclusions under section 29A that disqualifies certain persons from submitting resolution plans under the Code, it has been recommended to streamline it so that only those who contributed to defaults of the company or are otherwise undesirable are rendered ineligible. Moreover, being mindful of the Non-Performing Assets (NPA) crisis in the country, the need to encourage the market for NPAs was felt and accordingly several carve-outs from section 29A have been recommended for pure play financial entities. In order to prevent retrospective application of any proposed change, it has been recommended to add a proviso that the amendments shall be applicable to resolution applicants that have not submitted resolution plans as on date of coming into force of the said amendment;
(iii) it has been recommended that home buyers should be treated as financial creditors owing to the unique nature of financing in real estate projects and the treatment of home buyers by the Hon’ble Supreme Court in ongoing cases.
Notably, classification as financial creditors would enable home buyers to participate equitably in the insolvency resolution process under the Code;
(iv) to clear the confusion regarding treatment of assets of guarantors of the corporate debtor vis-à-vis the moratorium on the assets of the corporate debtor, it has been recommended to clarify by way of an explanation that all assets of such guarantors to the corporate debtor shall be outside scope of moratorium imposed under the Code;
(v) in order to fulfil the stated objective of the Code i.e. to promote resolution, it has been recommended to re-calibrate voting threshold for various decisions of the committee of creditors;
(vi) in order to enable the corporate debtor to continue as a going concern while undergoing Corporate Insolvency Resolution Process (CIRP) it has been recommended to empower the NCLT on the application of IRP/RP to allow expansion of the scope of essential goods and services beyond what is specified in CIRP Regulations;
(vii) in order to cater to exceptional circumstances warranting withdrawal of an application for CIRP post-admission, it has been recommended to allow such exit provided the CoC approves such action by ninety per cent of voting share;
(viii) in order to prevent misuse of section 10 of the Code, which permits initiation of CIRP by Corporate Applicant, it has been recommended to provide for the requirement of special resolution passed by the shareholders of the Corporate debtor or resolution passed by at least three-fourth of the total number of partners of the corporate debtor as the case may be;
(ix) in order to facilitate successful implementation of the resolution plan by the successful bidder, it has been proposed to allow one year time to obtain necessary statutory clearances from Central, State and other authorities or such time as specified in the relevant law, whichever is later.
The Committee deliberated on Cross Border Insolvency and noted that the existing two provisions in the Code (S. 234 & S. 235) do not provide a comprehensive framework for cross border insolvency matters. Accordingly, it was decided to attempt a comprehensive framework for this purpose based on UNCITRAL model law on Cross Border Insolvency, which could be made a part of the Code by inserting a separate chapter for this purpose. Given the complexity of the subject matter and the requirement of in-depth research to adapt the model law in the Indian context, the Committee decided to submit its recommendations on Cross Border Insolvency separately.
Since provisions related to Insolvency resolution and bankruptcy for individual and partnership of the Code are yet to be commenced and experience related to it is not available, hence the committee did not deliberate on the processes of it.
I am hopeful that recommendations of the Committee will provide a further impetus to the insolvency resolution framework in India. Needless to add, law making is a consultative process and as further experience emerges, the Government shall closely monitor implementation of the Code.
Injeti Srinivas
Secretary, Ministry of Corporate Affairs &
Chairman, Insolvency Law Committee
New Delhi, March 26, 2018
Report Contains the following-
TABLE OF CONTENTS
I. Introduction
II. Working Process of the Committee
III. Structure of the Report
1. Definitions
Financial debt
Interim Finance
Operational Debt
Related party
2. Insolvency Resolution by Operational Creditor
3. Requirement for Operational Creditors to Submit a Certificate from Financial Institutions
4. Initiation of CIRP by the Corporate Applicant
5. Moratorium under Section 14
6. Last Date for Submission of Claims
7. Tenure of the IRP
8. Responsibility of Statutory Compliances at various stages of CIRP
9. Trigger of CIRP by Financial Creditors
10. Manner of Representation of Large Number of Creditors in the CoC
11. Voting Share Threshold For Decisions of the CoC
12. Consent of Insolvency Professional for Appointment
13. Running the Corporate Debtor
14. Eligibility to Submit a Resolution Plan
15. Acceleration of Debt
16. Resolution Plans Requiring Approval from Regulators or Authorities
17. Exemption from Shareholder Approval
18. Value Guaranteed to Operational Creditors under a Resolution Plan
19. Appeal from Acceptance of Claims in Liquidation
20. Avoidance of Undervalued Transactions
21. Treatment of Subordination Agreements within the Liquidation Waterfall
22. Fast-Track CIRP
23. Linking Proceedings of Corporate Guarantor with Corporate Debtor
24. Punishment for Transactions Defrauding Creditors
25. Treatment of Winding up Proceedings Initiated under CA 1956/ CA 2013 vis-a-vis provisions of the Code
26. Enabling the Central Government to Exempt or Vary the Code for Certain Classes of Companies
27. Treatment of MSMEs
28. Application of Limitation Act, 1963
29. Withdrawal of CIRP Proceedings Pursuant to Settlement
30. Value Guaranteed to Dissenting Financial Creditors
31. Default Amount For Triggering Insolvency Resolution Process
Annexure I – Order of Consitution of Committee
Annexure II – Summary Response to Comments
Annexure III – Summary of Proposed Amendments
List of Defined Terms
