National Biodiversity Authority releases Rs 18.3 Lakh to Committees in UP and Sikkim (See 'Corp Brief') IBC - Section 16(2) of IBC clearly requires the IRP to be appointed as suggested by Financial Creditor or Corporate Debtor & such provision does not allow any deviation: HC (See 'Legal Desk') Kurian calls for active registration under NFDP (See 'Corp Brief') PMLA - Provisions of PMLA over other statutes related to property encumbrances; attachment of property is tenable where it is acquired through proceeds of crime: SAFEMA TRIBUNAL (See 'Legal Desk') DPIIT, Primus Partners Pvt. Ltd. ink MoU to bolster startup ecosystem (See 'Corp Brief') PBPT Act - a land sale is indeed a benami transaction, where payment is made by beneficial owner for future benefit of her family, while land is registered in name of somebody else: SAFEMA Tribunal (See 'Legal Desk') DPIIT, Kotak Mahindra Bank ink MoU to enhance financial & non-financial support for startups (See 'Corp Brief') IBC/RTI - CPIO not required to generate, interpret, or explain records; appeal against FAA's order is not tenable where all relevant information is provided: IBBI (See 'Legal Desk') Centre plans inspection drives and field verification to ensure compliance (See 'Corp Brief') India continues to rank 3rd in Annual Forest Gain (See 'Corp Brief') RERA - Promoters are mandatorily required to comply with statutory condition of pre-deposit u/s 43(5) of Real Estate (Regulation and Development) Act, 2016 before appeal can be entertained: HC (See 'Legal Desk') Government intervention and Corporate governance (See CORP EINSICHT) Prof Sood launched 'AI Playbooks for Agriculture and SMEs' (See 'Corp Brief') SARFAESI - Once scheme of arrangement is sanctioned in particular manner and is acted upon, it is no longer permissible for secured creditor to resile therefrom unilaterally: HC (See 'Legal Desk') CCI nod to Setu AIF Trust to acquire stakes in Edelweiss Asset & Edelweiss Trusteeship (See 'Corp Brief') IPR - Mere adoption of product-by-process format would not result in novel product being downgraded to Section 48(b) of Patent Act: HC (See 'Legal Desk') CSIR hosts Capacity Building Workshop for Dissemination of Indian Knowledge System (See 'Corp Brief') Competition Act - issues pertaining to unauthorized business operations, public health & regulatory violations, not demonstrating any anti-competitive agreement or concerted action u/s 3 of the Act, cannot be looked into by CCI: CCI (See 'Legal Desk') 12 lakh Railway Employees working Day and Night during Festive Season: Vaishnaw (See 'Corp Brief') A&C - Restrictions contained in Code of Civil Procedure apply even in cases relating to enforcement of foreign arbitral awards: HC (See 'Legal Desk') Ministry of Mines introduces Timelines to Fast-track Operationalisation of Auctioned Blocks (See 'Corp Brief') RTI/IBC - Mechanism of the RTI Act cannot be commandeered for grievance redressal, policy suggestions, or compelling interpretations of prior responses: IBBI (See 'Legal Desk') Supreme Court Restores JSW's Resolution Plan in Bhushan Power Case: A Pragmatic Turn in IBC Jurisprudence (See CORP EINSICHT ) BSNL turns profitable after 18 Years: Scindia (See 'Corp Brief') IBC - Withdrawal of CIRP cannot be permitted merely on the basis of a unilateral settlement with one minor creditor, particularly when other bigger Financial Creditors oppose it: NCLT (See 'Legal Desk') Chouhan to meet Ministers of 11 Ministries for 'Pradhan Mantri Dhan-Dhaanya Krishi Yojana' (See 'Corp Brief') SEBI - PayTM founder held guilty of circumventing SEBI regulations to unlawfully grant ESOPs to self and brother by mis-representing promoter status and control - contravened disclosure & eligibility norms of SEBI - barred from accepting ESOPs for three-year period: SEBI (See 'Legal Desk') NITI Aayog's Women Entrepreneurship Platform and DP World launch 'We Rise' initiative (See 'Corp Brief') A&C - Mere pendency of formal signature by one party, when other party has signed agreement after reading its terms including arbitration clause, does not prevent parties from being referred to arbitration: HC (See 'Legal Desk') MoS unveils Curtain Raiser for 4-day India International Science Festival (See 'Corp Brief') PMLA - Secured creditor such as finance company not left without remedy, where properties acquired even prior to scheduled offence period are attached as value equivalent: SAFEMA Tribunal (See 'Legal Desk')

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The Insolvency and Bankruptcy Code, 2016 (IBC)

Published: Apr 20, 2017

FEATURES AND INSTITUTIONAL SETUP

The Insolvency and Bankruptcy Code, 2016 (IBC) was passed by the Parliament on 11 May 2016, received Presidential assent on 28 May 2016 and was notified in the official gazette on the same day. IBC aims to consolidate and amend the laws relating to reorganization and insolvency resolution of corporate persons, partnership firms and individuals in a time bound manner for maximization of value of assets of such persons, to promote entrepreneurship, availability of credit and balance the interests of all the stakeholders including alteration in the order of priority of payment of Government dues and to establish an Insolvency and Bankruptcy Board of India, and for matters connected therewith or incidental thereto.

This act has an overriding effect on multiple laws for the recovery of debts and insolvency and liquidation process like Chapter XIX & Chapter XX of Companies Act, 2013, Chapter XIX & Chapter XX of Companies Act, 2013, RDDBFI Act, 1993, SARFAESI Act, 2002, SICA Act, 1985, The Presidency Towns Insolvency Act, 1909, The Provincial Insolvency Act, 1920, Chapter XIII of the LLP Act, 2008 .

All these laws were inadequate to provide a single clearance or single window resolution system and many a time authorities with different jurisdiction and agencies overlapped and resulted in delayed case solving process and further complexities.

This article covers the key features or requirement of Act and framework of Act.

Key features of the IBC are:

• The code would have an overriding effect on all other laws relating to Insolvency &Bankruptcy. This code includes all persons including corporate, individuals, partnership firms and LLPs as well, however it shall not be applicable to corporate persons who are regulated financial service providers like Banks, Financial Institution (FIs) and Insurance Companies .

• IBC aims at consolidating all existing insolvency related laws as well as amending multiple legislation including the Companies Act. The code has replaced multiple laws covering the recovery of debts and insolvency and liquidation process and provides single window clearance to all the matters pertaining to insolvency and bankruptcy and applicant gets the appropriate relief at the same authority unlike earlier position of law where laws and authorities overlapped each other.

• The code aims to resolve insolvencies in a strict time-bound manner - the evaluation and viability determination must be completed within 180 days. The code provides fixed time frame for insolvency matters for companies and individuals. The process is to be completed within 180 days (Moratorium period) and will be extended by 90 days more. So the matters have to be resolved in not more that 270 days. Also there is a fast-track resolution process for corporate insolvency in 90 days and if it cannot be resolved assets of borrower can be sold in order to repay the creditors.

• Insolvency professionals to take over the management of the Company. IBC proposes a paradigm shift from the existing ‘Debtor in possession' to a ‘Creditor in control' regime.

• There is a simple and clear Framework of authorities under the Act. The National Company Law Tribunal (NCLT) will adjudicate insolvency resolution for companies and Debt Recovery Tribunal (DRT) will adjudicate insolvency resolution for individual.

• Sets clearly order of priority at the time of liquidation i.e.

• Insolvency related costs

• Secured creditors and workmen dues up to 24 months

• Other employee's salaries/dues up to 12 months

• Financial debts (unsecured creditors)

• Government dues (up to 2 years)

• Any remaining debts and dues

• Equity

Institutional Setup under IEC

The Act provides a time bound process for speedy disposal of the matters and for maximization of value of assets, promotes entrepreneurship, improves ease of doing business and also protects the interest of workman and employees. It provides a base to create a good environment for business and benefit to all. The Implementation of any law not only depends on good framework of law but also on effective and efficient functioning of institutions involved in the administration and execution of the same. The IBC is based on five pillars and they are:

IBB - Insolvency and Bankruptcy Board of India- This is the apex body for regulating, promoting transparency & governance in the administration of the IBC; will be involved in setting up the infrastructure and accrediting IPs & IUs; also perform legislative, quasi-judicial function with respect to IPs & IUs and IPAs.

IUs - Information Utilities: This is the centralized depository of financial and credit information of borrowers; would collect, collate and disseminate financial data provided by creditors.

IPs - Insolvency professional - The persons enrolled with IPA and regulated by Board and IPA will conduct resolution process; to act as Liquidator/ bankruptcy trustee; appointed by creditors and override the powers of board of directors. The role of IP includes a wide range of function which includes adhering to procedure of law, accounting as well as finance related functions.

Adjudicating authority (AA) - This would be the NCLT for corporate insolvency; to entertain or dispose any insolvency application, approve/ reject resolution plans, decide in respect of claims or matters of law/ facts thereof.

IPA - Insolvency Professional Agencies - This is registered by the board and shall enroll IPs as its members in accordance with the Insolvency and Bankruptcy Code, 2016 read with its regulations.

Conclusion: The IBC is not only a well-drafted law but also has a strong institutional set up.

(Author is a Practicing Company Secretary)

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