The Code seeks
to create a unified framework for resolving insolvency
and bankruptcy in India.
Insolvency is a situation
where individuals or organisations are unable to meet
their financial obligations.
The Code will apply to companies, partnerships,
limited liability partnerships, individuals and any other
body specified by the central government.
Resolution process for companies and limited
liability partnerships:
The resolution process will
have to be completed within a maximum period of 180
days from the date of registration of the case. This
period may be extended by 90 days if 75% of the
financial creditors agree. The process will involve
negotiations between the debtor and creditors to draft a
resolution plan.
The process will end under two circumstances, (i)
when a resolution plan is agreed upon by a majority of
the creditors and submitted to the adjudicating
authority, or (ii) the time period for negotiation has
come to an end. In case a plan cannot be negotiated
upon, the company will go into liquidation.
There will be provision for a fast track insolvency
resolution process for companies with smaller
operations. The process will have to be completed
within 90 days, which may be extended if 75% of
financial creditors agree.
Resolution process for individuals and partnerships:
Before going in for insolvency resolution, the debtor
may apply for forgiveness of a specified amount of
debt, provided that his assets are below a limit set by
the central government. This process will have to be
completed within six months.
In case of insolvency resolution, negotiations between
the debtor and creditors will be supervised by an
insolvency professional. If negotiations succeed, a
repayment plan, agreed upon by a majority of the creditors, will be submitted to the adjudicator. If they
fail, the matter will proceed to bankruptcy resolution.
Insolvency professionals and agencies:
The IRP will
be managed by a licensed professional. The
professional will also control the assets of the debtor
during the process. The Code also proposes to set up
insolvency professional agencies. These agencies will
admit insolvency professionals as members and
develop a code of conduct and evolve performance
standards for them.
Insolvency regulator: The Code seeks to establish the
Insolvency and Bankruptcy Board of India, to oversee
insolvency resolution in the country.
The Board will
have 10 members, including representatives from the
central government and Reserve Bank of India. It will
register information utilities, insolvency professionals
and insolvency professional agencies under it, and
regulate their functioning.
Insolvency and Bankruptcy Fund: The Code creates
an Insolvency and Bankruptcy Fund.
Deposits to the
Fund will include:
- (i) grants made by the central
government,
- (ii) amount deposited by persons, and
- (iii)
interest earned on investments made from the Fund.
Any person who has contributed to the Fund may apply
for withdrawal, in case of proceedings against him.
Bankruptcy and Insolvency Adjudicators:
The Code
proposes two separate tribunals to adjudicate
grievances related to insolvency, bankruptcy and
liquidation of different entities under the law:
- (i) the
National Company Law Tribunal will have jurisdiction
over companies and limited liability partnerships, and
- (ii) the Debt Recovery Tribunal will have jurisdiction
over individuals and partnership firms. Appeals
against orders of these tribunals may be challenged
before their respective Appellate Tribunals, and further
before the Supreme Court.
Source: PRS Legislative Research