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Corporate Insolvency and Resolution Process

From an economic perspective, the Insolvency and Bankruptcy Code institution, 2016, had been a significant amelioration in our country's economic system. It has enhanced the global economic image of India. India is a foremost part of the global economy, so India needed to compete with other emerging nations, large economies.

We had distinctive overlapping laws concerning Insolvency, which was not adequate to settle down corporate and individual debt. Another imperative purpose of establishing this code was to attract foreign nations to invest in India. India will be at par with these foreign nations who play a vital role in the global economy.

The foremost objective of Insolvency law is to benefit the innocent debtor who is not able to his outstanding debts, which are due. This code acts as a rescue mechanism or recovery mechanism for entities by providing the investors with the exit route.

As per provisions of the Insolvency and Bankruptcy Code, 2016, the Corporate Insolvency and Resolution Process is a redressal mechanism for Financial Creditors, any individual or a corporate entity.

Understanding the Corporate Insolvency and Resolution Process:
It is considered as the recovery mechanism for the creditors. The Insolvency and Bankruptcy Code, 2016 has simplified the insolvency and Bankruptcy proceedings in India by establishing the Corporate Insolvency and Resolution Process.

This initiation gives relief to the creditors, stakeholders, corporate entity, and individual. In case an individual or a corporate entity becomes insolvent ( person or an entity is unable to repay the outstanding debt that they incurred). The concerned financial creditor or a corporate entity can initiate CIRP at NCLT (National Company Law Tribunal).

Applicants for the process:
When a Company or a Corporate Entity (the debtor) has become Insolvent and is unable to repay the debts, then a Corporate Insolvency and Resolution. The proceeding can be initiated by the insolvent company application to the National Company Law Tribunal (NCLT).

The Corporate Insolvency and Resolution Process can be initiate by the following applicants as defined under the provisions of the Insolvency and Bankruptcy Code of India, 2016:
  1. The Financial Creditor:
    A A financial Creditor is a person who owes a sum of money to the Corporate Debtor on which specific interest has to be charged. The Financial Creditor has been defined under Section 5(8) of the Insolvency and Bankruptcy Code, 2016. If an interest is not charged on the Corporate Debt, it will not be considered financial debt. A Financial Debtor is given a privileged treatment than the Operational Debtor.

    The Financial Creditor has sent the requisite information of the debt and evidence of default has to submit a report or a record of debt registered. The Financial Creditor has to submit the board's information and the name of the Insolvency Resolution professional. It is up to the Financial Creditor to send the demand notice against the Corporate Debtor before filing the application to the NCLT. Banks or other Financial Institutions can be termed as Financial Creditors.
     
  2. The Operational Creditor:
    An Operational Creditor is a person who owes an operational debt to the Corporate Debtor, and An Operational Creditor is a person who has transferred the goods or services through such amount legally assigned. The Operational Creditor is defined under Section 5(20) of the Insolvency and Bankruptcy Code, 2016. The goods or services that the Operational Creditor is transferring is related to the debt payable by the government or employment. A demand notice has to be sent by the Operational Debtor before filing the application to the NCLT against the Corporate Debtor. Employees, Suppliers and Vendors and the Government can be considered as Operational Creditor.
     
  3. The Corporate Debtor:
    The Corporate Debtor is a company itself that owns the debt to someone else. The Corporate Debtor is defined under Section 3(8) of the Insolvency and Bankruptcy Code, 2016. The Corporate Debtor has a voluntary decision to make whether it thinks that the company can no longer function effectively and efficiently and want to further initiate CIRP by applying the NCLT.

It is necessary to comprehend that who all persons are not entitled to make an application to the NCLT as mentioned under Section 11 of the Insolvency and Bankruptcy Code, 2016:
  1. If a Corporate Debtor is already undergoing the process of Corporate Insolvency and Resolution, then he is not entitled to be an applicant.
     
  2. If a Corporate Debtor has already completed the Corporate Insolvency and Resolution Process, but the date of filing the new application is preceding twelve months of already completed the Corporate and Insolvency and Resolution Process.
     
  3. If a Corporate Debtor or the Financial Creditor has violated any of the terms of the Resolution Plan of Corporate Insolvency and Resolution Process, which has approved the application before the twelve months of the date of violating the terms of the Resolution Plan shall no be entitled to be an applicant.
     
  4. If a Liquidation Order has been made against the Corporate Debtor before filing the new application of Corporate Insolvency and Bankruptcy Code, 2016 to the Adjudicating Authority.

Timeline:
The time period of the Corporate Insolvency and Resolution process shall commence when the application is accepted for the Corporate Insolvency and Resolution process and shall end when the NCLT approves the Resolution plan put forward by the Board of Creditors.

As stated under the Section of Insolvency and Bankruptcy Code, 2016, the Corporate Insolvency and Resolution process has to be complete within 180 days, but there can be an extension of the time period of 90 days, but the extension of the time period can only be availed once. To avail the benefit of the extension of the time period of 90 days, the Committee of Creditors need to pass the 75% majority, and after that, the Board of NCLT approves the decision taken by the Committee of Creditors.

Through a landmark Judgment, Supreme Court pronounced in the case of Committee of Creditors of Essar Steel Limited through Authorized Signatory V. Satish Kumar Gupta and Ors that the NCLT can provide an outer limit time period of 330 days, but this time period can be availed in only exceptional cases. This time period includes the time taken in the legal proceedings and the extensions. This case amended Section 12 under the Insolvency and Bankruptcy Code, 2016.

Under Section 56 of the Insolvency and Bankruptcy Code, the Fast-Track Corporate Insolvency and Resolution process (CIRP) is defined, which specifies that the fast-track CIRP should be completed within 90 days, and an extension period can also be availed but only once of 45 days. Small Companies, Start-up Companies and the companies which do not have their assets more than INR 1 crore for the previous financial year can be considered an applicant to file an application for the initiation of the CIRP under the fast-track process. Small Companies as described above is defined under Section 2(85) of the Companies Act, 2013.

When the application by Financial Creditor, Operational Creditor or Corporate Debtor is accepted by the Authorized Adjudicator that is NCLT, then the Authorized Adjudicator declares a Moratorium Period as defined under Section 14 of the Insolvency and Bankruptcy Code, 2016. The Moratorium Period prohibits any pending or initiation of suits or proceeding which are against the Corporate Debtor.

It also includes the execution of any decree, order, or a pending suit of judgment in any court of law for the time being. This helps NCLT and other Creditors to avoid delay in the Corporate Insolvency and Resolution Process. Lastly, when the applications initiated by the Financial Creditor, or Operational Creditor or Corporate Debtor is accepted, then they are bound to give the proof of their debt and evidence of default to the Authorized Adjudicator that is NCLT.

Withdrawal process of Application:
Withdrawal of the application initiated under CIRP has been defined under Section 12A of the Insolvency and Bankruptcy Code, 2016. Withdrawal of the application admitted under section 7 or section 9, or section 10 can be allowed by the Adjudicating Authority that is NCLT. The application's withdrawal is only possible when there is a 90% voting share in the Committee of Creditors for the withdrawal of the application initiated for CIRP in such a manner specified.

Moratorium and Public announcement appointment:
  1. After the admission of the application given by the Committee of Creditors under section 7, or section 9 or section 10 of Insolvency and Bankruptcy Code, 2016, the Adjudicating Authority:
    1. Declares a moratorium for the purpose of CIRP as mentioned under section 14 of the Insolvency and Bankruptcy Code, 2016.
    2. It causes a Public Announcement for the initiation of the Corporate Insolvency and Resolution Process. It calls for the submissions of the same as mentioned under section 15 of Insolvency and Bankruptcy Code, 2016.
    3. It appoints an Interim Resolution Professional as defined under section 16 of the Insolvency and Bankruptcy Code, 2016, as in a manner described.
       
  2. After the appointment of the Interim Resolution Professional, the Public Announcement shall be immediately made as described under the sub-section of 13(1) in clause (b) of Insolvency and Bankruptcy Code, 2016.
As described under the section of the Insolvency and Bankruptcy Code, 2016, a moratorium is a period where there is execution on the pending suits or judgment in the court of law. During this period, the Creditor or Corporate Debtor cannot institute judicial proceedings for redressal, sale or transfer of goods and services or assets, enforcement of security interest or the termination of the essential contracts. The Moratorium Period shall reduce the delay caused in the Corporate Insolvency and Resolution Process.

Therefore, upon the admission of the application initiated by the Creditors for Corporate Insolvency and Resolution Process, National Company Law Tribunal shall make a public announcement for the submission of the claims by Creditors.

Interim resolution process:
Resolution Professional is a licensed and Insolvency professional who is appointed for the management o the Corporate Insolvency and Resolution Process. The Adjudicator Authority of Insolvency Board appoints the Resolution professional. Until the constitution of the Committee of Creditors, Interim Resolution Professional is appointed, and then the appointment of Interim Resolution Professional is made.

During the process of Liquidation, RP plays a vital role as a Liquidator. Interim Resolution Professional manages the conduct of the Corporate Insolvency and Resolution Process. Section 16 of the Insolvency and Bankruptcy Code, 2016, states the appointment and tenure of the Interim Resolution Professional. Under section 22 of Insolvency and Bankruptcy Code, 2016, it is stated that after seven days of the constitution of the Committee of Creditors, its first meeting is held, and in the meeting, they decide that whether they should appoint an Interim Resolution Professional as Resolution Professional or they should appoint another new Resolution Professional. Suppose the Committee of Creditors appoint Interim Resolution Professional as Resolution Professional then the Committee of Creditors has to communicate this information to the Interim Resolution Professional, Corporate Debtor and the Adjudicator Authority.

The Committee of Creditors shall appoint the Resolution professional within 30 days of commencement of Corporate Insolvency and Resolution Process. If the board does not confirm the appointment of the Resolution Professional within ten days, then the Adjudicator Authority shall by itself permit the Interim Resolution Professional to work as Resolution Professional.

Section 18 of Insolvency and Bankruptcy Code, 2016, defines the duties and responsibilities of the Interim Professional and Section 25 of Insolvency and Bankruptcy Code, 2016 define the duties and responsibilities of the Resolution Professional. The tenure of Interim Resolution Professional, as stated under section 16(5) of the Insolvency and Bankruptcy Code, 2016, shall not exceed more than 30 days from the date of commencement of the appointment.

Section 18 talks about the duties of the Interim Resolution Professional, and they are as follows:
  1. It is the duty of the Interim Resolution Professional to garner all the claims made by the Creditors against the Corporate Debtor.
  2. The foremost duty of the Interim Resolution Professional is to form the Committee of Creditors.
  3. The prerequisite duty of the Interim Resolution Professional is to manage the finances and govern the operations going in the Corporate Resolution and Insolvency Process of the Corporate Debtor until a new Resolution Professional is appointed by the Committee of Creditors.
  4. Interim Resolution Professional can take into the custody of transferred goods and services and tangible and non-tangible assets of Corporate Debtor till the corporate Insolvency and Resolution process go on.
  5. Interim Resolution Professional can collate the information of all the assets, whether tangible or intangible, information pertaining to the operations and finances of the Corporate Debtor to know and understand its financial position.
  6. It is the duty of the Interim Resolution Professional to collate and receive all the claims submitted by the Corporate Debtor pursuant to the Public An announcement made under the section 13 and 15 of Insolvency and Bankruptcy Code 2016.
  7. The Interim Resolution Professional has to perform such duties as prescribed by the Board of Insolvency and Bankruptcy.

Management of operations of Corporate Debtor as going concerned:
Section 20 of Insolvency and Bankruptcy Code, 2016 talks about the management of Operations of Corporate Debtor as going concerned.
  1. The Interim Resolution Professional shall endeavor to protect the value of the property of the Corporate Debtor and manage the operations of the Corporate Debtor as going concerned.
  2. If it deems necessary for the Corporate Debtor, he can appoint accountants, legal or other professionals.
  3. The Interim Resolution Professional has a right to enter on behalf of the Corporate Debtor into contracts and can amend or modify the contracts or transactions entered by the Corporate Debtor before the Corporate Insolvency Resolution commencement Process.
  4. If a debt is secured over the Corporate Debtor's encumbered property, then no security interest shall be created by the company, and prior consent is must from the Creditors. Here the Interim Resolution Professional shall have the authority to raise interim finance. If the value of such encumbered property is not less than the amount equivalent to twice the amount of the debt, then the prior consent of the Creditors is not necessary.
  5. The Interim Resolution Professional must issue Instructions to the personnel of the Corporate Debtor as a going concern.
  6. Lastly, it is the Interim Resolution Professional's responsibility to take all such necessary actions that are helpful to keep the Corporate Debtor a going concern.

Conclusion:
Insolvency and Bankruptcy Code, 2016 has played an imperative role in the Indian economy. It resolves the significant problems of Non-Performing Assets of distinctive banks, which are an enormous helping hand by providing finances to various Corporate Entities. The enactment of the Corporate Insolvency and Resolution Process plays a vital role in the revival and reconstruction of the Corporate Debtor.

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