What Is The Procedure For Corporate Insolvency Resolution Under The IBC?
A recovery method made available to creditors under the Insolvency and Bankruptcy Code (IBC) is the Corporate Insolvency Resolution Process (CIRP). The concerned creditor or the corporate entity (the debtor) itself may start CIRP in the event that a corporate entity becomes insolvent (unable to repay debt). The Insolvency and Bankruptcy Code, 2016, amends and consolidates the laws relating to the reorganization & insolvency of corporate entities, individuals, and partnership organisations in a time-bound manner with the goal of balancing the interests of all stakeholders.
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The Insolvency and Bankruptcy Code, 2016, amends and consolidates the laws relating to the reorganization & insolvency of corporate entities, individuals, and partnership organisations in a time-bound manner with the goal of balancing the interests of all stakeholders. According to the Insolvency and Bankruptcy Code, 2016, the Corporate Insolvency Resolution Process (CIRP) is a remedy for creditors. The ease of doing business and the willingness of creditors to lend have greatly increased. As a result of the improvement in insolvency proceedings in a time-bound manner, according per CIRP. This has positively impacted credit flow in Indian real estate.
Who has the authority to start the resolution of corporate insolvency?
A financial creditor, an operational creditor, or the corporate debtor itself may submit an application to start CIRP against a defaulting corporate entity (debtor) to the National Company Law Tribunal (NCLT). The body responsible for deciding disputes of insolvency involving corporate entities. For each category of creditor, a different process must be followed for starting legal action and other procedures.
According to IBC regulations, a financial creditor is a person who is owed money. Financial debt has since been defined in terms of real estate as any sum obtained from an allottees as part of a real estate project and considered to be an amount with the commercial equivalent of a loan. Thus, homebuyers have been categorized as financial creditors and must adhere to the strict application process set down for financial creditors.
A financial creditor starting the CIRP
An application to initiate CIRP against a corporate debtor must be filed jointly by at least ten percent of the project’s total allottees or at least one hundred of these allottees, whichever is lower, in the case of financial creditors who are also allottees of a real estate project.
Such creditors must submit an application and pay the applicable fee, as well as provide the following information:
- Evidence of the debt default or record of default that is kept by an information utility (someone or something that is authorised to serve as a repository of legal data relating to any debt or claim, as submitted by a financial or operational creditor and verified & authenticated by the other parties to the debt or claim, such as National E-Governance Services Limited)
- Name of the resolution specialist that the creditors want to serve as the interim resolution specialist
- Any other details that the Insolvency & Bankruptcy Board of India (IBBI) may demand
Within 14 days of receiving the application, NCLT is required to prove that a default has occurred by accessing records from an information utility or using other proof offered by the financial creditor. If this isn’t done by the deadline, the Tribunal must give written notice of its justifications.
The Tribunal may, by its order, admit the application if it has determined that a default has occurred, is satisfied with the application as stated, and determines that no disciplinary actions are currently being pursued against the suggested resolution professional. Before rejecting the application, the adjudicating authority will allow the applicant seven days to correct any errors found in any of the aforementioned three components. The seven days will begin on the date the applicant receives the notification to correct the application. If accepted, NCLT will inform the corporate debtor and financial creditor of the order, and the resolution process will start on the day the application is accepted.
Professional interim resolution and moratorium
An Interim Resolution Professional (IRP) is chosen by the Adjudicating Authority (NCLT) upon the admission of a corporate debtor into the resolution procedure on the recommendation of financial creditors. The corporate debtor’s (corporate entity) board of directors is suspended, and the IRP now has administrative authority over the corporate entity. The IRP will be assisted by current employees of the corporate debtor, & his or her tenure will last until the Resolution Professional is appointed.
Following the appointment, a public notification declaring the beginning of the CIRP against the corporate debtor must be issued. This announcement must include information about the corporate debtor, including name and address, the name of the IRP, & the date on which the CIRP will end.
Additionally, a moratorium that forbids the following will go into effect:
- Its property transfers
- The beginning or continuation of any legal action against the corporate debtor or entity
- The owner’s ability to reclaim any property from the debtor
- An interest in a security measure’s enforcement
- The cessation or interruption of the supply of goods and services that are necessary
While the corporate debtor is involved in the resolution procedure, the moratorium is still in place. However, the impact of the moratorium does not include significant business agreements made by the corporate entity (the debtor).
Analysis and confirmation of allegations
The IRP must access and assess all information about the corporate debtor at this phase of the proceedings, including but not limited to the assets & liabilities, company operations, and financial and operational payments over the last two years. IRP will then review, call for, and confirm the financial creditors’ claims while also classifying them. The IRP then assembles a Committee of Creditors (COC) made up of each financial creditor of the corporate debtor. If there were two or more financial creditors in a consortium, as is generally the case with homebuyers of a real estate project. Each financial creditor would be a member of the COC, and their voting share would be determined by the financial debts owing to them.
Selection of the resolution specialist
The committee must decide whether to name the IRP as the resolution professional within seven days of the COC’s establishment. To do so, the committee must receive the support of at least 66 percent of the financial creditors who have the right to vote. The committee will then inform the adjudicating authority of its choice.
Obligations of the resolution specialist
The protection and preservation of the corporate debtor’s assets, including its ongoing business operations. Is the responsibility of the resolution professional. In addition to calling and attending all COC meetings, the professional must represent the corporate debtor’s interests in any quasi-judicial, judicial, or arbitration proceedings.
In the event that the committee determines that the resolution professional needs to be replaced. It may do so by a vote of 66 percent of the voting shares and submit the replacement’s name to the adjudicating authority.
Candidates for resolution must be eligible
IBC was created with the intention of examining potential options for a struggling corporate debtor to recover. As a result, it provides opportunities for a person, a trust, or a corporation to step forward, invest money, acquire & purchase the relevant corporate entity that is subject to CIRP, and rebuild the business. Several of the levels of relations that Section 29A of the IBC implemented to prevent promoters. Or others related to the promoter group of the corporate debtor. From acquiring the struggling company (corporate debtor). At a discount have been described below. This is essential to prevent promoters of a failing real estate firm from acquiring the same thing. Directly or indirectly through anyone else working for that company.
As a result, if an individual, trust, or corporation, or any other person working jointly. Or in concert with such an individual, trust, or corporation:
- Is an unsatisfied insolvent.
- Is a willful defaulter in accordance with Reserve Bank of India (RBI) regulations
- Having a non-performing asset (NPA) account
- Is the promoter of a company whose account has been labelled as an NPA?
- In the charge of a business entity (corporate debtor), whose account is categorized as an NPA.
- Is in charge of a business debtor whose account is categorized as a non-performing asset.
It is prohibited for at least a year for any such firm, its promoters. Or management whose account is designated as NPA to submit a resolution plan for a corporate debtor under CIRP. However, the company, its promoters, or management will be qualified to submit a resolution plan provided the same pays all past-due sums along with the necessary interest & other charges related to NPA accounts. However, a resolution applicant who is a financial company and is not connected to the concerned corporate debtor. Shall not be subject to the aforementioned restrictions.
The resolution plan’s submission and approval
Every resolution plan filed by a qualified applicant must be examined. By a resolution expert to make sure it covers the costs. Of the corporate insolvency resolution procedure as well as the fulfilment of the corporate debtor’s obligations. The committee of creditors will then be presented with the plans for approval. A majority of the financial creditors’ voting shares, or at least 66 percent, must vote in favour of the approval. The resolution specialist will next submit the resolution plan to the adjudicating authority. Financial creditors must accept this plan within 180 days of the start of CIRP. The Adjudicating Authority may, however, extend this time frame by up to 90 days.
If a resolution plan is sanctioned by NCLT and authorised within the time frame outlined above. It will be binding on the corporate debtor and all of its members, employees, guarantors, creditors, and other stakeholders. The Adjudicating Authority must order the corporate debtor’s liquidation if no proposal is accepted within the allotted time. Following its approval, the committee of creditors appoints the liquidator to sell the debtor’s assets and distribute the proceeds to interested parties.
Corporate Insolvency Resolution Process on the Fast Track
Compared to the typical 180-day process as per IBC for conventional CIRP proceedings. This is a speedier alternative to accomplish corporate insolvency within 90 days. If necessary and upon request by the resolution professional. The fast-track CIRP may be extended past 90 days with the Adjudicating Authority’s approval. The extension, though, cannot last longer than 45 days. The other procedures will be the same as those used during the 180-day CIRP.
Application of the fast-track CIRP includes:
- A small business (as defined by Section 2(85) of the 2013 Companies Act)
- Start-up, as the Ministry of Commerce and Industry defines it (other than a partnership firm).
- An unlisted business with total assets listed in its previous fiscal year’s financial statement that don’t exceed Rs 1 crore
The Insolvency and Bankruptcy Code, 2016, which includes the corporate insolvency resolution process. Has ushered in a new era in the management of insolvency proceedings and improved the ease of doing business in the Indian real estate sector. And other sectors with regard to redressal mechanisms in case of a default.
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