THIS ARTICLE IS BASED ON THE EDITORIAL: RECASTING INSOLVENCY RESOLUTION- THAT APPEARED ON THE HINDU
Insolvency occurs when a company is unable to generate enough funds to meet its debt obligations. This situation leads to an inability to pay off its liabilities, resulting in financial distress. Bankruptcy happens when the court legally recognizes insolvency and initiates a resolution process to address the financial issues, including the distribution of proceeds to creditors for settling dues.
The Insolvency and Bankruptcy Code (IBC) 2016 was introduced by the Bankruptcy Legislative Reforms Committee, headed by TK Viswanathan, to streamline the process of insolvency and bankruptcy resolution. It was necessitated by a large number of non-performing loans and delays in resolving financial issues. The code aims to address these problems through a time-bound process overseen by insolvency professionals, and it seeks to separate business operations from judicial processes to avoid previous errors in handling insolvency cases.
The IBC aims to provide a time-bound resolution process for insolvency cases affecting companies, partnerships, and individuals. The code ensures that when a default in repayment occurs, creditors gain control over the debtor's assets and resolve insolvency quickly. It consolidates and replaces multiple previous acts, improving the speed and efficiency of insolvency resolution in India.
The IBC applies to companies, LLPs, partnership firms, and individuals, covering insolvency, liquidation, voluntary liquidation, and bankruptcy. It includes entities incorporated under the Companies Act, 2013, and those governed by special acts. Additionally, the code applies to Limited Liability Partnerships (LLPs) and other bodies as specified by the government.
Key Pillars of the Insolvency and Bankruptcy Code, 2016
The IBBI is responsible for regulating the implementation of the IBC, overseeing insolvency professionals, and ensuring compliance with the code.
The NCLT is the adjudicating authority for insolvency cases, where the proceedings are initiated and resolved. Appeals against NCLT decisions can be made to the National Company Law Appellate Tribunal (NCLAT).
These professionals oversee the insolvency resolution process, managing debtor assets, and facilitating decision-making among creditors.
Under the IBC, information utilities collect and manage financial data related to creditors, ensuring transparency and efficiency in the insolvency process.
The IBC mandates that the insolvency resolution process must be completed within 180 days. The process may be extended for up to 90 days if necessary. For smaller companies, the resolution period is reduced to 90 days, with an extension of 45 days.
The Insolvency and Bankruptcy Board of India (IBBI) regulates the insolvency proceedings, ensuring compliance and overseeing insolvency professionals and agencies.
The resolution process can be initiated by either the debtor or the creditor. An insolvency professional manages the process, ensuring asset management and communication with creditors. During this period, no legal actions can be taken against the debtor.
The NCLT imposes a moratorium during the insolvency resolution process, halting all legal actions, asset sales, or contract terminations for 180 days, providing a calm period for resolution efforts.
If no resolution is reached, the debtor’s assets are liquidated. Proceeds from the liquidation are distributed in the following order: insolvency resolution costs, secured creditors, workers and employees, and finally, unsecured creditors.
The timeline for completing the insolvency process is as follows:
If necessary, an extension of up to 90 days is allowed, and the total process should be completed within 330 days.
This framework ensures the timely resolution of insolvency issues, minimizing delays and reducing the burden of bad debts on the economy.
The Insolvency and Bankruptcy Code (IBC), 2016 was introduced to address insolvency in India. It was meant to improve India’s business standing and deal with bad borrowers. Over time, issues related to institutional capacity and procedural efficiency have emerged. The recent Jet Airways case pointed out these problems and called for reforms.
The National Company Law Tribunal (NCLT) and National Company Law Appellate Tribunal (NCLAT) handle both corporate insolvencies and Companies Act cases. The NCLT's structure, which has 63 members, was designed for a different time. This makes it difficult to meet the demands of the current economic situation. The system is slow, with insolvency resolution times rising every year. In FY2023-24, it reached 716 days, an increase from 654 days the previous year. The Supreme Court has stressed the need for faster resolutions.
The Jet Airways case highlighted the lack of domain expertise among NCLT and NCLAT members. Many members lack the specialized knowledge to handle complex insolvency cases. This weakens the system. Also, bureaucratic delays are adding to the problem. Staff decisions on urgent listings and tribunals ignoring court orders threaten the institutional integrity of the NCLT and NCLAT.
Mandatory hearings for all applications, including progress reports, cause unnecessary delays. The limited use of alternative dispute resolution (ADR) methods like mediation further strains the system. These methods work well in other countries but are not widely used in India’s insolvency process.
India needs a comprehensive overhaul of its insolvency system. Mandatory mediation before insolvency applications is a good start. But more reforms are needed. A hybrid model combining judicial experience with domain expertise would improve efficiency and decision-making. Specialized benches for different cases like mergers and amalgamations could speed up the process. Strengthening infrastructure with more courtrooms and qualified staff is also crucial.
India’s insolvency system must go beyond debt resolution. It must drive economic rejuvenation. To attract foreign investment, the system needs to be efficient and transparent. The time for bold reforms is now. A new system should not just resolve debt but also boost economic growth.
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