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Authorities Governing Insolvency And Bankruptcy In India: An Analysis

The Insolvency and Bankruptcy Code (IBC) 2016 is a comprehensive law relating to insolvency and bankruptcy in India. It provides a time-bound and efficient resolution process for insolvent entities and aims to promote entrepreneurship, maximize the value of assets, and balance the interests of all stakeholders.

Essentially, the Code provides for three categories of petitioners who can initiate an insolvency process:

  1. A financial creditor is defined u/s 5(7) of The Code that financial creditor as any person to whom the corporate debtor owes a financial debt. Financial creditors apply to NCLT after default made by the company with relevant documents.
  2. An operational creditor is defined u/s 5 (20) of The Code that operational creditor as any person to whom the corporate debtor owes an operational debt. The minimum amount of debt owed to an operational creditor to file an application for insolvency remains INR 1 Cr. Operational creditors send notice to the company after default asked them to give representation within 10 days. Then company need to inform them by highlighting the dispute or pay the money. If company not pays the money then operational creditor apply to NCLT with relevant documents.
  3. A corporate debtor is defined u/s 3(8) of The Code that a corporate debtor is any person that owes a debt to another. Corporate debtor by his own applies to NCLT with books of account.

National Company Law Tribunal (NCLT) can accept or reject the petition. NCLT if accept the petition then CIRP process will start which should be end within 180 days but additional 90 days will be given (270 days). Then extra 60 days but within 330days mandatory need to end.

After that within 14 days NCLT appoint Interim Resolution Professional(IRP). Then IRP need to form committee of creditor within 30 days and that Committee of Creditors consists of Financial Creditor, 18 operational Creditor,1workmen dues, I salary dues. Then within 7 days of forming the committee of creditor the 1st meeting should be held in that meeting. Committee of Creditor will decide that Interim Resolution Professional need to form Resolution Professional(RP) or not. For making IRP to RP need 66% vote. If Committee of Creditor were not agreeing to make them RP then they will again approach to NCLT for appointing to new RP. After that all powers and control of Board of Directors transfer to Resolution Process.

After appointment of RP announced the appointment in newspaper and also mentioned about that if anyone having any idea of resolution then give their suggestions and takes their dues money. When Resolution Professional gets the resolution plan give that plan to committee of creditors.

Then Committee of Creditors can approve that plan or reject that plan. For approving that plan need 66% vote. Then that plan send to NCLT which can be accepted by NCLT and ends the CIRP Process. Otherwise NCLT can reject the plan then they need to find another resolution plan within 330days else company will be started winding up.

Literature Review
The history of insolvency and bankruptcy laws in India dates back to the colonial era when the British enacted the Presidency Towns Insolvency Act, 1909, and the Provincial Insolvency Act, 1920, to deal with the issue of insolvency and bankruptcy.

After India gained independence in 1947, these Acts were amended and consolidated to form the Indian Insolvency Act, 1949. However, the Act was primarily focused on the liquidation of assets and did not adequately address the rehabilitation and restructuring of financially distressed companies.

In 1985, the government established the Board for Industrial and Financial Reconstruction (BIFR) to address the growing number of sick industrial companies. The Sick Industrial Companies (Special Provisions) Act, 1985 (SICA) was also enacted to provide a legal framework for the revival and rehabilitation of such companies.

However, the SICA failed to achieve its intended purpose due to its lengthy legal procedures, inadequate resources, and lack of expertise. As a result, the government replaced it with the Sick Industrial Companies (Special Provisions) Repeal Act, 2003, which transferred the powers of the BIFR to the National Company Law Tribunal (NCLT).

In 2016, the government passed the Insolvency and Bankruptcy Code (IBC), which replaced the outdated insolvency and bankruptcy laws in India. The IBC is a comprehensive law that provides a time-bound and efficient resolution process for insolvent entities. It consolidates the previously fragmented legal framework and provides for the restructuring and revival of financially distressed companies.

The IBC is a significant step towards improving India's business environment and attracting foreign investment by providing a predictable and transparent legal framework for resolving insolvency and bankruptcy cases. It has since been amended several times to address practical issues and improve the resolution process further.

The major provisions of the IBC 2016 are as follows:

  1. Establishment of Insolvency and Bankruptcy Board of India (IBBI): The IBBI was established to regulate the functioning of insolvency professionals, insolvency professional agencies, and information utilities under the IBC.
  2. Corporate Insolvency Resolution Process (CIRP): The CIRP is a time-bound process for the resolution of insolvent companies. It provides for the appointment of an insolvency professional to take control of the company's assets and liabilities, and for the formation of a committee of creditors to oversee the process.
  3. Fast Track Insolvency Resolution Process (FIRP): The FIRP is a simplified process for the resolution of small and medium enterprises with a default of up to Rs. 1 crore. It aims to complete the resolution process within a period of 90 days.
  4. Liquidation: If the resolution process fails or is not possible, the company goes into liquidation. The liquidator sells the assets of the company and distributes the proceeds to the creditors.
  5. Cross-border Insolvency: The IBC 2016 provides for the regulation of cross-border insolvency. It allows foreign creditors to participate in the insolvency process in India and Indian creditors to participate in foreign insolvency proceedings.
  6. Insolvency Professionals: The IBC 2016 provides for the regulation and licensing of insolvency professionals who are responsible for conducting the insolvency process. They are required to be registered with the IBBI.
  7. Information Utilities: The IBC 2016 provides for the establishment of information utilities to provide information about debtors and creditors, and facilitate the resolution process.
  8. Adjudicating Authority: The National Company Law Tribunal (NCLT) is the adjudicating authority under the IBC 2016. It is responsible for hearing and deciding on applications filed under the IBC.

Data Analysis
The exact number of insolvency and bankruptcy cases that have happened in India under the Insolvency and Bankruptcy Code, 2016 (IBC) is not readily available as the data is constantly changing due to new cases being initiated and resolved. However, as of March 2023, the Insolvency and Bankruptcy Board of India (IBBI) reports that a total of 15,411 corporate insolvency resolution processes (CIRPs) have been initiated under the IBC since its inception in 2016.

Out of these, 3,976 CIRPs have been closed on the basis of a resolution plan being approved, resulting in a recovery of INR 1.79 lakh crores (approximately USD 24.1 billion) for creditors. Another 6,183 CIRPs have been closed due to liquidation, resulting in a recovery of INR 1.04 lakh crores (approximately USD 14 billion) for creditors. The remaining cases are still ongoing, with 5,252 CIRPs currently under progress.

It is important to note that these numbers only reflect the corporate insolvency resolution processes initiated under the IBC and do not include the individual insolvency proceedings and the pre-IBC cases that were resolved under the earlier insolvency and bankruptcy laws in India.

The Insolvency and Bankruptcy Code, 2016 (IBC) has been a significant reform in India's insolvency and bankruptcy framework. It has brought in a much-needed shift from the earlier creditor-led to a debtor-led insolvency resolution process. The IBC aims to resolve insolvency cases in a time-bound and efficient manner, while ensuring a balance between the interests of the stakeholders, including creditors, debtors, and employees.

The IBC has helped in promoting a culture of entrepreneurship and innovation by providing a faster and more predictable mechanism for resolving insolvency cases. It has also helped in improving the credit culture in the country by reducing the risks associated with lending and promoting the availability of credit.

While the IBC has been successful in resolving many insolvency cases and recovering significant amounts for creditors, there have also been challenges in its implementation. There have been concerns about the capacity of the National Company Law Tribunal (NCLT) and the Insolvency and Bankruptcy Board of India (IBBI) to handle the increasing number of cases, delays in the resolution process, and the possibility of misuse of the IBC by some stakeholders.

Despite these challenges, the IBC has had a significant positive impact on the insolvency and bankruptcy ecosystem in India. The government and the regulators continue to work towards addressing the challenges and improving the implementation of the IBC. Overall, the IBC is expected to continue playing a crucial role in promoting the growth of the Indian economy and creating a more efficient and robust insolvency and bankruptcy framework in the country.

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