Insolvency and Bankruptcy Board of India amends the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016

By Staff Reporter

The Insolvency and Bankruptcy Board of India (IBBI/Board) notified the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) (Second Amendment) Regulations, 2016 (CIRP Regulations) on 14th June, 2022.

The amendment provides the operational creditors to furnish extracts of Form GSTR-1, Form GSTR-3B and e-way bills, wherever applicable along with the application filed under section 9 of the Insolvency and bankruptcy Code, 2016. These additional set of documents, can  be used as evidence of transaction with the corporate debtor, debt and default easing the process of admission. These documents will also to be submitted as part of the claims submitted to the resolution professional to help collation of claims. Further, creditors filing applications under section 7 or 9 of the Code are required to furnish details of their PAN and Email ID to ensure smooth correspondence.

In order to improve information availability, the amendment places a duty on corporate debtor, its promoters or any other person associated with the management of the corporate debtor to provide the information in such format and time as sought by the resolution professional.

The amendment places a duty on the creditors to share information regarding the assets and liabilities of the corporate debtor, the financial statements and other relevant financial information from their records and available reports to help the resolution professional in preparation of the information memorandum and relevant extracts from the transaction or forensic audit reports to aid the resolution professional in preparation of the avoidance application.

The Amendment also addresses the issue of treatment of avoidance applications filed with the Adjudicating Authority after closure of the corporate insolvency resolution process (CIRP). It provides that the resolution plan shall provide for manner in which such applications will be pursued after the approval of the resolution plan and the manner in which the proceeds, if any, from such proceedings shall be distributed.

The amendment includes a definition of significant difference in valuations during CIRP and enables the committee of creditors to make a request to the resolution professional regarding the appointment of a third valuer.

The amended regulations are effective from today. These are available at www.ibbi.gov.in.

IBBI amends Insolvency and Bankruptcy Board of India (Grievance and Complaint Handling Procedure) Regulations, 2017 and the Insolvency and Bankruptcy Board of India (Inspection and Investigation) Regulations, 2017

By Staff Reporter

With a view to put in place, a streamlined and swift complaint handling procedure, the Insolvency and Bankruptcy Board of India notified the Insolvency and Bankruptcy Board of India (Grievance and Complaint Handling Procedure) (Amendment) Regulations, 2022 and the Insolvency and Bankruptcy Board of India (Inspection and Investigation) (Amendment) Regulations, 2022 to amend the Insolvency and Bankruptcy Board of India (Grievance and Complaint Handling Procedure) Regulations, 2017 and the Insolvency and Bankruptcy Board of India (Inspection and Investigation) Regulations, 2017.

The Insolvency and Bankruptcy Code, 2016 (Code) read with Insolvency and Bankruptcy Board of India (Grievance and Complaint Handling Procedure) Regulations, 2017 provide mechanism for redressal of complaints and grievances filed against insolvency professionals, insolvency professional agencies and information utilities. Further the Code read with Insolvency and Bankruptcy Board of India (Inspection and Investigation) Regulations, 2017 provide mechanism for carrying out inspections and investigations on insolvency professional agencies, insolvency professionals and information utilities and passing orders by Disciplinary Committee.

The mechanism of complaint/ grievance redressal and subsequent enforcement action has been amended to have expeditious redressal and also to avoid placing undue burden on the service providers. To curtail such delays and to ensure expeditious and result oriented enforcement mechanism, the Amendment Regulations provides for following:

  • Revisions in various timelines related to enforcement process provided in the (Grievance and Complaint Handling Procedure) Regulations, 2017 and (Inspection and Investigation) Regulations, 2017 for addressing the issue of delay in present mechanism.
  • Effective participation of IPAs in regulating the IPs through examination of grievances received against IPs.
  • Intimation to Committee of Creditor (CoC)/ Adjudicating Authority (AA) about the outcome of Disciplinary Committee (DC) order.

The Amendment Regulations are effective from 14th June, 2022. These are available at www.ibbi.gov.in.

Supreme Court allows the settlement plan of Promoter at Liquidation stage

By Fiona Mehta

 

In the matter of Vallal RCK Vs. M/s Siva Industries and Holdings Limited and Ors. [Civil Appeal Nos. 1811-1812 of 2022] under the Supreme Court of India on 3th June 2022, it was held that when 90% or more of the creditors decide that allowing the promoter of the Corporate Debtor to file a Settlement Plan and withdrawing the Corporate Insolvency Resolution Process as per Section 12A of the Insolvency and Bankruptcy Code, 2016, will be in the best interests of all stakeholders, the adjudicating authority (NCLT) or the appellate authority (NCLAT) cannot sit in appeal over such commercial wisdom of the Committee of Creditors.

This Judgement will now change legality of Section 12 of the Insolvency ad Bankruptcy Code, 2016.

 

Facts:

IDBI Bank Limited had filed an application under Section 7 of the IBC seeking initiation of Corporate Insolvency Resolution Process (CIRP) against M/s Siva Industries and Holdings Limited (Corporate Debtor). The NCLT accepted the application on July 4, 2019, and the CIRP process began. The Resolution Professional (RP) presented a resolution plan to the COC, but it was not adopted since it did not earn the required 66 percent of votes. The RP applied to start the liquidation process. Mr. Vallal Rck, the Corporate Debtor’s promoter, then submitted a settlement application under Section 60(5) of the IBC, proposing a one-time settlement plan.

The learned NCLT, in an order dated August 12, 2021, dismissed the application for withdrawal of CIRP and adoption of the Settlement Plan, stating that the said Settlement Plan was not a settlement simpliciter under Section 12A of the IBC but a “Business Restructuring Plan.” The learned NCLT began the liquidation process of the Corporate Debtor in IA/837/IB/2020 as well, pursuant to another ruling of even date. As a result of this, the appellant filed two appeals with the learned NCLAT.

 

Supreme Court Judgement:

The Court noted that Section 12A, which deals with withdrawal of petitions admitted under Sections 7, 9, or 10, was included by the Insolvency and Bankruptcy Code (Second Amendment) Act, 2018, following significant consideration by the Insolvency Law Committee. The Committee had suggested that a departure be permitted if the COC supports it with a 90% vote share.

The Court noted that the Committee issued the proposal because the IBC’s aim, according to the Committee, is to prevent individual enforcement and settlement actions. In light of this, it was suggested that a settlement may be negotiated between all creditors and the debtor in order for a withdrawal to be approved. Regulation 30A was added to the Regulations, 2016 as a result of the addition of Section 12A to the IBC, which lays out the detailed procedure for withdrawing an application.

The legality of Section 12A was also confirmed in Swiss Ribbons Private Limited and Anr. v. Union of India and Ors. Furthermore, a slew of Apex Court decisions have already concluded that NCLT and NCLAT have no authority to intervene with COC’s business judgement.

The Code 2016’s major goal is to resolve corporate debtor issues through a reorganization and resolution procedure while keeping the corporate debtor as a going business. Liquidation of a corporate debtor is the last resort when all other options have failed and there is no other option than liquidation. When a better plan for the Corporate Debtor’s business exists and has been accepted by a majority of the Committee of Creditors, it is the duty of the Adjudicating Authority or the Appellate Authority not to interfere with the COC’s decision.

NCLT Chennai: IBC does not apply to project-based CIRPs of real estate companies

By Fiona Mehta

The National Company Law Tribunal in the case of N Kumar v. Tata Capital Housing Finance Ltd. held that the project wise Corporate Insolvency Resolution Process (CIRP) of a real estate company is outside the purview of Insolvency and Bankruptcy Code, 2016 (IBC/Code) under Section 60(5).

Facts of the case: NCLT Chennai commenced the CIRP of Sheltrex Developers Pvt. Ltd (Sheltrex) with an order dated 10.12.2019, and Mr. N Kumar was appointed as the Interim Resolution Professional and then confirmed as Resolution Professional.

Sheltrex has established two real estate projects, Appur Village in Oragadam, Chennai, which has 296 homes, and Nammavedu in Coimbatore, which has 110 homes. Sheltrex’s Resolution Professional filed an application under Section 60(5) of the IBC, requesting authority to form a project-based Committee of Creditors and conduct Sheltrex’s project-based CIRP.

Resolution Professional contended that Sheltrex’s sole business is marketing real estate projects, particularly affordable housing. Sheltrex’s projects have several types of creditors who are unrelated to one another. The Resolution Professional also cited NCLAT’s decision in Flat Buyers Association v. Umang Realtech Pvt. Ltd., which allowed for a real estate company’s project-based insolvency.

Tata Capital Housing Finance Ltd objected to the Resolution Professional’s request for relief, claiming that it has 17 percent voting rights in COC and that the RP’s action is not maintainable because neither the IBC, 2016 nor other rules specify project-specific CIRP. Tata Capital also claimed that CIRP laws need a resolution plan for the Corporate Debtor’s whole business, not project by project, and so the Resolution Professional’s application violates IBC provisions.

 

Decision: According to NCLT, there is no concept of limited CIRP or CIRP for specific projects under the IBC, 2016 or its regulations. In the case of Pioneer Urban Land and Infrastructure Ltd. v. Union of India, the Supreme Court declared that the IBC is a beneficial legislation that can be used to get a corporate debtor back on its feet.

The verdict of Umang Realtech is not applicable to the present issue, according to NCLT, since the process used by NCLAT was too unique to the facts and circumstances of that case to be used as a precedent in this situation. NCLT dismissed Resolution Professional’s case, ruling that the reliefs sought by Resolution Professional are outside the purview of IBC, 2016, and so are not maintainable.

 

Final Decision: This IA(IBC)/1245(CE)/2020 stands dismissed without cost.