FAQs Insolvency and Bankruptcy Code, 2016 Sneha Bhawnani sneha@vinodkothari.com 23 rd January, 2017 Check at: http://india-financing.com/staff-publications.html for more write ups. Copyright: This document is the property of Vinod Kothari & Company and no part of it can be copied, reproduced or distributed in any manner. Disclaimer: This document is intended to initiate academic debate on a pertinent question. It is not intended to be a professional advice and should not be relied upon for real life facts.
1. What is the object and purpose for enactment of the Insolvency and Bankruptcy Code, 2016? Prior to the enactment of the Insolvency and Bankruptcy Code, 2016 ( Code, 2016 ), the state of the bankruptcy process was highly fragmented, that is to say, the powers of the creditors and debtors under insolvency were provided in separate legislations. Thus, separate codification of rights inevitably lead to low chances of consistency and efficiency in the resolution process. It must be noted that the desire to have an effective legal regime on insolvency is not novel. In 1964, the first committee report which recommended the consolidation of extant two personal insolvency laws into one was the 26 th Report of Law Commission on Insolvency Laws. However, it took more than fifty years for the legislature to enact a unified law, the Code, 2016, for matters relating to insolvency, bankruptcy and liquidation for corporate persons, individuals and partnership firms. Thus, as it is popularly said better late than never, the resolution of insolvency under the Code, 2016 is a holistic, wholesome, equitable remedy which takes care of the interest of all creditors. 2. What is the foundational principle underlying the provisions of the Code, 2016? The foundational principle underlying the provisions of the Code, 2016 is creditors in control, that is to say, it shall be the decision of 75 percent consent of financial creditors in value which will decide whether a resolution plan can be made for the revival of the corporate debtor or whether the assets and liabilities of the borrower must be liquidated by means of a liquidation process. 3. What criteria may trigger action against the borrower as per the Code, 2016 The criterion to trigger action against the borrower has undergone a paradigm shift. Prior to the enactment of the Code, 2016 the criteria for proceeding against the corporate debtor was erosion of net worth of the corporate debtor, however, after the enforcement of the Code, 2016 criteria for proceeding against the borrower is default in payment by the borrower. The Code, 2016 prescribes that in order to invoke the provisions of the Code, 2016, the minimum amount of default on the part of the corporate debtor must be rupees one lakh. Also, the Central Government vide its notification specify the minimum amount of default of higher value which shall not be more than one crore rupees. 4. Does the Code, 2016 provide for a novel institutional design and framework? The Code, 2016 provides for a well- regulated institutional design and framework- which includes new regulators, namely, the Insolvency and Bankruptcy Board of India, adjudicating authorities, i.e., the Debt Recovery Tribunal, Debt Recovery Appellate
Tribunal, National Company Law Tribunal and the National Company Appellate Tribunal, other important bodies like Information Utilities, Insolvency Professional, Insolvency Professional Entity and Insolvency Professional Agencies 5. Whether there are other legislative enactments which must be taken into consideration by the secured creditor before undertaking proceedings under the Code, 2016? At the very outset, it must be understood that the Code, 2016 must not be read in isolation. It is imperative to know that the legislature in its wisdom has not only enacted the Code, 2016 but has simultaneously introduced amendments to various laws, namely, the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and the Securitisation, Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ( SARFAESI Act, 2002), Companies Act, 2013 read with the allied rules, the Payment of Wages Act, 1936 and the Benami Transactions (Prohibition) Act, 1988. Since, the remedy provided by the Code, 2016 is holistic in nature whereas the remedy provided in other laws is in favour of a specific individual creditor who proceeds against the borrower. Thus, the secured creditor must be mindful of the all the mentioned laws before availing any remedy against the corporate debtor. 6. What must be the foremost consideration for a secured creditor before invoking the provisions of the Code, 2016? The foremost consideration for a secured creditor before invoking the provisions of the Code, 2016 is to analyse and evaluate the circumstances in which the high value of the secured assets can be realised. In other words, if the value of the asset is high then it shall be in the interest of the secured creditor to proceed under the provisions of the SARFAESI Act, 2002; on the other hand, if the revival of the company as a going concern will lead to more realisation of the value of the asset then the company must undertake the proceedings in accordance with the Code, 2016. 7. Whether the secured creditor has the right to opt out from proceeding under the provisions of the Code, 2016? The secured creditor has the absolute right to opt out from insolvency proceedings under the provisions of the Code, 2016. After exercising the said right to opt out, the secured creditor may proceed to enforce his security interest in accordance with the provisions of the SARFAESI Act, 2002. Thereafter, the liquidator shall carry out the liquidation process in relation to the residual value of the assets of the corporate debtor. Also, it is desirable that the right to opt out by the secured creditor must be exercised before the initiation of the resolution plan. 8. What will be the role of an Insolvency Professional, as envisaged in the provisions of the Code, 2016?
The Insolvency Professional shall take over the supervisory management of the corporate debtor, that is to say, the powers of the board of directors shall be vested with the Insolvency Professional. However, there shall be no impediment in the functioning of the executive management and the daily operations of the business shall not be hindered. It must be noted that interpreting the role of the Insolvency Professional otherwise would destructive. In simple terminology, the role of an Insolvency Professional is that of a moderator and facilitator for deciding the fate of the corporate debtor, that is, either decide to revive the company as per the resolution plan or decides to liquidate the assets and liabilities of the corporate debtor. Further, it is incumbent on the Insolvency Professional to constitute the Committee of Creditors and ensure that the resolution plan is drafted in accordance with all the applicable laws. 9. Does the Code, 2016 envisage any threshold level for discharge of functions by an Insolvency Professional? According to Section 207 of the Code, 2016 a person who wants to act as an Insolvency Professional must be enrolled as a member of Insolvency Professional Agency and must thereafter register with the Insolvency and Bankruptcy Board of India within such time and in such manner as may be specified. The Board may specify the categories of professionals or persons possessing such qualifications and experience in the field of finance, law, management, insolvency or such other field, as it deems fit. Practically, it must be understood that an Insolvency Professional in his/her individual capacity cannot discharge his functions, as required as per the Code, 2016. The said Insolvency Professional has to be supported with intellectual capital by a team of professionals. Keeping in mind the stringent timelines, as provided in the Code, 2016, the Insolvency Professional and his/her team has to act with immense expertise. 10. What is an Insolvency Professional Entity? A limited liability partnership, a registered partnership firm and a company which may be recognised as an Insolvency Professional Entity ( IPE ) provided majority of the partners of the limited liability partnership or registered partnership firm or a majority of the wholetime directors of the company are registered as insolvency professionals under the Code. An insolvency professional may use the organisational resources of a recognised insolvency professional entity subject to the condition that the entity as well as the insolvency professional shall be jointly and severally liable for all acts of omission or commission of its partners or directors as insolvency professionals. 11. What is the period of moratorium? It is interesting to note that Section 12 of the Code, 2016 provides for a very stringent timeline of one hundred and eighty days for the completion of the insolvency resolution process. The moratorium period shall effectively commence from the date on which the application for initiation of corporate insolvency resolution process is admitted by the
Adjudicating Authority. However, the law provides that the said period of one hundred and eighty days may be extended by a further period of ninety days provided an application, stating that the resolution process could not be completed within the given timeline, is filed by the resolution professional to the Adjudicating Authority. 12. What is the legislative mandate behind Section 12 of the Code, 2016? The legislative mandate behind Section 12 of the Code, 2016 is to provide a calm period to the corporate debtor to facilitate the corporate insolvency resolution process, that is to say, any proceedings or suit against the corporate debtor that may have the potential to negatively impact the revival of the corporate debtor have been covered under the moratorium provisions. 13. Whether the provisions in relation to the moratorium period override the provisions of the SARFAESI Act, 2016? No, the provisions of the SARAFESI Act, 2002 are not over ridden by the provisions of the Code, 2016 because these two legislations exist simultaneously. However, during the moratorium period, that is, 180 days or 270 days (as the case may be) the proceedings under the SARFAESI Act shall be suspended. As for instance, stay on notice issued to the corporate debtor under Section 13(2) of the SARAFAESI Act, 2002, stay on the repossession of the corporate debtor s asset by any lender. 14. Whether the secured creditor can initiate proceeding under the Arbitration & Conciliation Act, 1996 or any other legal action when such creditor or any other lender has initiated insolvency proceeding under the Code, 2016 against the corporate debtor? In the event, the application for insolvency proceedings, filed by any one of the lenders of the corporate debtor, has been admitted by the Adjudicating Authority, the National Company Law Tribunal, and the moratorium period of 180 or 270 days, as the case may be, has commenced then all legal actions, including proceedings under the Arbitration and Conciliation Act, 1996, against the corporate debtor shall be stayed. Thus, exercise of any legal right against the corporate debtor shall remain in abeyance during the moratorium period. 15. Whether a secured creditor can repossess the secured assets, as per the Court s order, after the initiation of the insolvency proceedings against the corporate debtor? The secured creditor cannot repossess and/or sale the secured asset during the moratorium period of 180 or 270 days, as the case may be. In essence, no foreclosure action or repossession of the assets can be taken by the secured creditor during the said moratorium period.
16. In the liquidation process, what will be the treatment of the proceeds from the assets which are exclusively charge to one particular secured creditor? In the event the secured creditor has consented to participate in the liquidation process, such secured creditor will have to relinquish its security interest to the liquidation estate. Thereafter, the secured creditor shall receive proceeds from the sale of assets by the liquidator in accordance with the waterfall mechanism provided in Section 53 of the Code, 2016. 17. In the liquidation process, what will be the treatment of the proceeds from the assets which are charged on pari-passu basis? In the event the secured creditors, who have created pari-passu, on the secured asset have consented to participate in the liquidation process, then such secured creditors will have to relinquish their security interest to the liquidation estate. Thereafter, the secured creditors shall receive proceeds, to the extent of charge created, from the sale of assets by the liquidator in accordance with the waterfall mechanism provided in Section 53 of the Code, 2016. 18. What is the process for realising money from the personal guarantor or corporate guarantor of the company which is under the liquidation process? In order to realise monies, to the extent of default by the borrower company, the following proceedings may be undertaken: a. Invoke the personal or corporate guarantee in order to hold the guarantor liable to the extent of liabilities and obligations guaranteed by the guarantor on behalf of the corporate debtor; b. File for separate insolvency proceedings against the guarantor; c. Proceed against the guarantor in accordance with the provisions of the SARFAESI Act, 2002. 19. Whether the claim amount can take into account the future interest which will accrue from date of filing to actual resolution date? The claim amount will include the principle outstanding along with all the overdue charges as on the date of filing the application by the lender. 20. Whether the interest component, overdue charges and other related charges of the loan be treated a part of the claim amount?
Yes, the interest component, overdue charges and other related charges of the loan will be treated a part of the claim amount. 21. What shall be the treatment of a creditor who acts in the capacity of both the financial creditor as well as operational creditor for the corporate debtor? A creditor who acts in the capacity of both the financial creditor as well as operational creditor for the corporate debtor will be treated as a financial creditor for those contracts in which financial debt is owed by the corporate debtor and an operational creditor for such transactions in which operational debt is owed by the corporate debtor. 22. Can financial creditor of the borrower company, include the operating lease contract amount in total amount of debt granted to the corporate debtor? No, operating lease is an operational debt, thereby the Lessor will be an operational creditor for the borrower company. Where any person is a financial creditor as well as an operational creditor, such person shall be a financial creditor to the extent of the financial debt owed by the corporate debtor, and shall be included in the committee of creditors, with voting share proportionate to the extent of financial debts owed to such creditor and such person shall be considered to be an operational creditor to the extent of the operational debt owed by the corporate debtor to such creditor. 23. In the event the existing contract between the secured creditor and corporate debtor has been restructured and a new contract has been executed then what should be the date of disbursement of loan? It must be noted that since the parties have entered into a new ontract therefore there is no existence of the contract which is closed between the parties. Thus, the date of disbursement of loan shall be the date as provided in the new open contract between the secured creditor and corporate debtor. 24. In case of operating lease, can we take future rentals as a part of the claim amount? In case of operating lease, where there is non-payment of rentals, the agreement will terminate and therefore no future rentals will be payable. So claim amount will not include future rentals. 25. What shall be the treatment of repossessed assets for the purpose of determining the claim amount? In order to determine the claim amount, the calculation must be done in such manner as if the repossession of the asset has not taken place. However, in the event the said asset has been sold then the amount claimed must be determined on the basis of the balance amount, after deducting the amount of sale proceeds, due from the corporate debtor.
26. What happens in the situation when there is a conflict between the asset list as available on records of Registrar of Companies ( ROC ) and the asset list of the loan agreement? In the event of conflict of between the asset list of the loan agreement and the records of the ROC, the asset list of the loan agreement will be considered. However, as a matter of abundant caution and prudence it is advisable and desirable to bridge the gap and remove any inconsistency between the ROC list and the Agreement list. 27. Can the secured creditor proceed with the asset list as provided in the agreement when charge has not been created on the assets? It must be noted that the secured creditor has the obligation but not the onus to register the charge on the asset, however, all efforts must be made to remove any conflict between the asset list, as provided in the agreement, and the ROC records in order to avoid legal discrepancies. Therefore, if registration is not done then the secured creditor must register the asset in order to avoid any legal issue. 28. In the event, a new contract is executed against the closed contract, in which charge was created and further no modification has been filed with ROC, then can the secured creditor proceed against the secured assets as per the closed contract even though the charge has not been modified with the ROC? In order to avoid any legal issues, it is advisable and desirable that the charge on the secured assets is created or modified, as the case may be, as per the new contract executed between the lender and the corporate debtor. 29. What should be the date of creation of the charge when there is a conflict in relation to the date of charge creation in the agreement and the RoC records? In the event of conflict in relation to the date of charge creation in the agreement and the RoC records, the date of the charge creation will be the date as provided in the agreement between the lender and the corporate debtor. 30. Are the secured assets, against which the lender has granted facility to the corporate debtor, valued as per the current market valuation? The secured assets, against which the lender has granted facility to the corporate debtor, must be valued as per the fair market value. 31. Whether the secured creditor must disclose the information pertaining to all types of security, including collateral security, for the purpose of valuation of assets? The secured creditor must disclose the information of all types of security, including collateral security, for the purpose of valuation of assets.
32. If there is no charge created in the new contract, can we submit the charge certificate from ROC of closed contract which has neither been created or modified or satisfied? In the event no charge is created or modified or satisfied as per the new contract it is desirable that the lender creates, modifies or satisfies the said charge with the ROC in accordance with the new contract between the parties. 33. What shall be the treatment of the court orders awarded during the moratorium period? During the moratorium period, all legal proceedings and execution of awards against the corporate debtor shall be stayed. 34. What is the role of an information utility? According to Chapter V of Part IV of the Code, 2016 such person can carry out the business of information utility who has obtained the registration certification in this regard. The information utilities shall collect, classify, store and distribute all possible relevant data pertaining to debtors, including without limitation the data on financial default of the corporate debtor. The Code, 2016 seeks to achieve a robust infrastructure of information utilities for the purpose of making information and data in relation to the corporate debtor readily available for an Adjudicating Authority 35. In the event an existing contract has been restructured and a new contract has been executed between the parties then whether there is any requirement of giving complete contract details from the first disbursement date? In the event an existing contract has been restructured and a new contract has been executed between the parties then the details of the latest financial open contract must be provided. 36. What recourse is available to the lender when there is conflict between the internal books of accounts and the records of CIBIL? It shall be desirable on the part of the lender to update all records of CIBIL in order to avoid legal dispute. However, it must be always kept in mind that the claim in the books of account is substantiated with other credible evidence to prove the default of the borrower as per the books of accounts of the lender. 37. Does the cross default clause, as provided in the agreement between the corporate debtor and the lender, can trigger action against the subsidiary of the corporate debtor? The cross default clause, as provided in the agreement between the corporate debtor and the lender, can trigger action against the subsidiary of the corporate debtor provided that the secured creditor has granted a loan to the said subsidiary or the subsidiary acts in the capacity of a guarantor of the corporate debtor.
38. Is it desirable for two or more lenders to file a joint application for initiation of corporate insolvency against the corporate debtor? It is not advisable to have a joint application by two or more creditors against the borrower company because in the event one application is rejected then there will be a possibility that the other application survives and is not rejected. 39. Does the Code, 2016 provide for any deterrent for the secured creditor in order to avoid frivolous applications against the corporate debtor? Chapter VII of Part II of the Code, 2016 provides for penalty/fine/imprisonment on grounds of concealment of material facts, fraud, manipulation by the creditor or filing of any frivolous application against the corporate debtor. Therefore, this shall ensure that false information is not furnished by the lender to unnecessarily arm twist the corporate debtor. To read our articles on same topic click here To read our articles on Companies Act, 2013 click here To read our other resources click here