Welcome to INSOL India Newsletter Volume 21, Issue April | May 14, 2019

We welcome you to this edition of the INSOL India newsletter. 

Despite the many challenges surrounding the Insolvency and Bankruptcy Code (IBC), it has had a transformational effect on the loan-recovery landscape in the country. It played a significant part in improving India’s ease of doing business rankings in 2018, and it will have a critical role to play if the government is to achieve its ambitious target of breaking into the top 50 in the next year’s rankings.

IBC’s perception as an effective resolution mechanism can be gauged by the fact that more than 12,000 cases have been filed since its implementation and the setting up of the National Company Law Tribunal according to Corporate Affairs Secretary Injeti Srinivas. In a positive development, the Insolvency and Bankruptcy Board of India (IBBI) recently signed an MoU with the Securities and Exchange Board of India (SEBI) for effective implementation of the new bankruptcy law. The MoU will facilitate resource sharing, cross-training of staff and capacity building of insolvency professionals among other things. IBBI has also signed a cooperation agreement with the International Finance Corporation (IFC), a member of the World Bank Group. As part of the agreement, IFC will assist IBBI in building the capacity of insolvency professionals and insolvency professional agencies for the Code. A significant judgement of Supreme Court in the beginning of April overturning the landmark RBI circular dated 12^th February has had far reaching consequences. Several banks are considering withdrawal of IBC applications made pursuant to the directions of that circular. Also, in absence of any revised guidance from RBI (since the Feb 12^th circular had cancelled all the earlier restructuring schemes such as CRD/SDR/5-25 etc), the corporates and lenders are struggling to make progress on any restructuring proposals under consideration. I am certain the renewed guidance will be forthcoming from RBI shortly.

While we await the resolution of one of the biggest cases under IBC, that of Essar Steel, there is the possibility of another high-profile addition to the list: Jet Airways. One of the country’s biggest airlines, Jet Airways, is going through a financial turmoil, resulting in operational difficulties. Although the government has clarified that initiating insolvency proceedings against the company will be the last resort, it might be a viable option considering that a number of lenders have received a reasonable return on investment in recent resolutions. Some recent judgments at NCLAT on the subject of liquidation appears to have opened a small window for promoters of defaulting companies to reclaim their assets under liquidation by filing a scheme of compromise or arrangement in terms of Section 230 of the Companies Act, 2013. It will be interesting to see the outcome of this approach in the coming weeks and months. I would also like to remind the readers that IBBI is currently inviting comments and suggestions on various current and proposed legislations including bankruptcy for personal guarantors; corporate liquidation process; Insolvency professionals etc. Please do make some time to send in your valuable comments to IBBI as per their prescribed process and help in making our insolvency regime more robust going forward.I hope you will find the newsletter informative. As always, please do share your valuable feedback, to our editorial team at newsletter@insolindia.co

Greetings and welcome to yet another issue of your Newsletter!

The landmark legislation - Insolvency and Bankruptcy Code 2016 has completed three years on the statute book since its clearance by the Lok Sabha on May 5, 2016.  The provisions relating to corporate insolvency resolution including fast track resolution, corporate liquidation and voluntary liquidation of corporate debtors have become operational during this interregnum. 

The Code being in vogue, there is a visible change as to how shareholders and directors of corporate debtors look at resolution even outside the CIR process.  

Mediation is also entering the process to resolve insolvency and is likely to make it big. International institutions are promoting mediation to make the process ameliorating and speedier.

Resolution of insolvency in relation to group companies is gaining special attention.  In a recent case, the Hon’ble Adjudicating Authority decided to put the group members in the process.  We have to see the procedure to be followed, for in civil proceedings it is consolidation of the process amongst the group companies.  This will be not a less challenging task for the Adjudicating Authorities.  

Cross-border insolvency amendments and individual insolvency resolution under the Code are other facets awaiting implementation. Decisions right from the Apex Court to the Adjudicating Authority are in the news which often relate to jurisdiction of the Adjudicating Authority to look at the viability and feasibility of resolution plan besides taking a pragmatic view as to whether the prescribed timelines could me met.  This gains ground when it comes to information memorandum.  Another moot point is whether the entire CIR process can be excluded if it becomes necessary to restart the resolution process.

As a move for further refinement, the Insolvency and Bankruptcy Board has invited public comments on the process for personal guarantors to corporate debtors alongwith draft regulations.  

The coming months will be interesting and worth waiting to see the course of things.