STUDY OF THE INSOLVENCY AND BANKRUPTCY CODE 2016
Vritti Bang, Shreyansh Bhansali, Devansh Doshi and Asawari Vedak
ISME School of Management and Entrepreneurship
Abstract
India has been riddling for decades with the problems of insolvency and bankruptcy. Several
public sector banks, financial institutions and operational creditors were facing severe credit
default risk. Various laws and codes have been passed as a corrective measure, but have proved
to be inefficient and failed to provide any kind of a relief to the creditors.
There was thus a need for reform in insolvency and bankruptcy laws. The Insolvency and
Bankruptcy code 2016 (IBC) been instrumental in creating a shift in the way the bankruptcy
process of defaulting firms has been dealt with. The IBC 2016 promises to bring about
transparency, method and infrastructure in the entire system of liquidation. Changing the core
aspects of the insolvency process gives companies a well-deserved chance at revival.
Despite the recent amendments to the code and regulation changes by the Insolvency and
Bankruptcy Board of India, there are still few grey areas in the code.
This paper aims to thus test the effectiveness of the IBC since its introduction in 2016 and
ascertain if it resolves lags in the previous system. Hence, the paper dwells into the various
components of IBC to critically analyse its sustainability and scalability.
The research paper is purely based on secondary research through different news articles and
reports from reliable sources.
Though it is too early to comment on the impact of the IBC 2016, the researchers have tried to
study the code and conclude whether it will be successful in fixing the problems and will keep up
to its promise in the long run.
Keywords
Credit default risk
Transparency
Liquidation
Revival
Sustainability
1
I] Introduction
The Indian economy had growth rates which were among the highest globally in the year 2000
because of the internet boom. This kickstarted a phase where enormous amounts of investments
were made by companies that over-leveraged themselves in the fear of losing opportunities
which looked very lucrative. The Investment-GDP ratio had soared by 11% reaching 38% in
2007-08. The Global Financial Crisis in the year 2007-08 ended high growth levels. The reduced
growth rates led to low revenues, while high inflation levels led to the RBI increasing the interest
rates. Therefore the high borrowing costs, high project costs and low revenues, collectively
culminated into the creation of NPAs at an exponential rate in the Financial Sector. In a survey
conducted between 2014 and 2017, gross NPAs of the public sector banks rose to Rs 7,23,513
crore from 2,24,542 crore. The Banks also reported that the number of bad loans exceeded the
total interest they earned as ‘operating earnings’.1 Over a period of 30 years, India implemented
12 Debt resolution mechanisms but all the laws failed to meet the purpose for which they were
implemented.2 The borrowers used ambiguity in the judiciary to delay resolutions, avoid
liquidation, retain control and deteriorate the value of the company. The creditors ended up
seeing massive cuts in their debt recovery when these cases saw any form of conclusion. The
World Bank in 2015 estimated that it took 4.6 years on average to resolve an insolvency case in
India, contrary to UK & US which took 1 & 1.5 years respectively. This is one of the major
reasons India was ranked 142nd out of 189 countries by the World Bank for ease of doing
business in the same year.
According to a study by The Ministry Of Finance, if one would go by the rate of disposal at
which insolvency cases were being resolved in the year 2015, it would take us another 324 years
1
Indiabudget.gov.in. (2019). [online] Available at: https://www.indiabudget.gov.in/es2016-17/echapter.pdf
[Accessed 15 Feb. 2019].
2
Refer to Figure 2
2
just to complete the backlog.3 Thus the new government felt an urgent need for an efficient,
effective and speedy framework to curb the increasing number of NPAs.
Therefore, The Insolvency and Bankruptcy Code (IBC) 2016 was introduced as a single solution
for all the above problems.
Fig.1 - Need for IBC
Ⅱ] Methodology
The research paper is purely based on secondary research through different news articles and
reports from reliable sources.
Ⅲ] Birth of The Insolvency and Bankruptcy Code
The Insolvency and Bankruptcy Code, 2016 (IBC), passed on 26th May 2016, is a landmark
reform for India in the insolvency and bankruptcy ecosystem. The code has been put together by
amending previous debt resolution mechanisms. IBC solidifies different statutory guidelines
3
The Economic Times. (2019). How inordinate delays can ruin the purpose of bankruptcy code. [online] Available
at:https://economictimes.indiatimes.com/industry/banking/finance/banking/how-inordinate-delays-can-ruin-the-purp
ose-of-bankruptcy-code/articleshow/64345818.cms [Accessed 15 Feb. 2019].
3
declared before and focuses on a time-bound resolution combined with maximization of value.
This gives borrowers a second chance at reviving their failing businesses and lenders a hope of
recovering their money. Hence, the Code aims at stabilizing the debt market and catalyzing
growth in India. It has amended previous guidelines like:-
● Companies Act, 1956/2013
● Securitisation and Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002 (SARFAESI Act, 2002)
● Sick Industrial Companies Act, 1985 (SICA Act, 1985)
In all 2 laws were repealed and 11 laws were amended and redrafted under IBC.
Fig.2 - Debt resolution mechanisms in India, over the years
4
Ⅳ] Institution of IBC
A gist of the Infrastructure to support the implementation of IBC was set up in under a year of its
inception, which are as follows:
1] Insolvency and Bankruptcy Board of India (IBBI)- Apex authority in charge of regulating
the Corporate Insolvency Resolution Process. Its primary job is to create and amend laws
relating to reorganization and insolvency.
2] National Companies Law Tribunal (NCLT)/ Debt Recovery Tribunal (DRT) - These are
the adjudicating authority for the IBC 2016. They look into the matters of insolvency
resolution. NCLT deals with corporates, companies and LLPs, whereas DRT is for individual
bankruptcies.
3] Information Utilities (IUs)- These bodies keep all financial and credit records of the
borrowers which become useful during the CIRP.
4] Resolution Professionals (RPs)/ Insolvency Professionals (IPs) - RPs are appointed by the
Adjudicating authority to replace the board of directors and look after the daily operations of
the company. They work towards formulating a resolution plan for Committee of Creditors
(CoC).
5] Insolvency Professional Agencies (IPAs)- These are registered bodies that matriculate the
Insolvency Professionals.
V] Corporate Insolvency Resolution Process (CIRP) Under IBC 2016
The Corporate Insolvency Resolution process (CIRP) is a set of guidelines and workflow that is
carried out after a complaint is filed. The defined process of the IBC 2016 is as follows:
Step 1: Default of INR 1 Lakh or above leading to CIRP application filed by financial creditors
or homebuyers.
Step 2: Appointment of Resolution Professional (RP) who will undertake the working of the
business by dissolving and replacing the board of directors.
5
Step 3: Moratorium Period of 180-270 days is announced wherein no third party will be able to
take action against the defaulting entity.
Step 4: Formation of Committee of Creditors (CoC) i.e. A collection of all financial creditors
who will review the resolution plan prepared by the RP and decide whether it is
feasible.
Step 5: Implementation of resolution plan if accepted by 66% of CoC; liquidation of the
company if otherwise. Liquidation will take place on the basis of the Priority waterfall
of Claims method, which defines the order of priority.
VⅠ] Benefits of IBC
( 1 ) Creditor in control (vs) Debtor in possession
IBC gives power to any financial, operational creditor or corporate debtor to file a complaint to
the Adjudicating Authority whereas earlier, only the defaulters were in control of initiating the
resolution processes. Certain exceptions include wilful defaulters, promoters/management of the
company with non-performing debt for more than a year and disqualified directors. Moreover, it
prohibits the sale of property of the defaulter to such parties during liquidation. The decision to
accept or reject a resolution plan rests with the CoC, which is a major shift from the previous
processes. NCLT has restrained the suspended directors of the defaulting companies from using
the company’s brand name and trademarks as it may affect the business. For example, on 25th
January 2019, the NCLT prohibited several entities such as Precious Power Technologies,
SaveAWatt Power Technologies, Tushara Energy Ventures, etc from using the brand name and
trademarks of Servomax India Limited, which is currently under CIRP with debt amounting to
Rs. 8.77 crores.4
( 2 ) Speedy resolution
Before IBC, it took 4.5 years on an average to complete insolvency proceedings. IBC has created
a time-bound process to tackle the endless extensions that used to be given earlier. It allows only
4
Singh, karunjit. “IBC Has Led to the Resolution of Unpaid Claims of Nearly 3,00,000 Crores: Injeti Srinivas.” The
Economic Times, Economic Times, 24 Nov, 2018.
6
90 days extension over and above the prescribed 180 days of moratorium period. According to
Corporate Affairs Secretary, Injeti Srinivas, up till now, IBC has recovered a sum of over 3 lakh
crore of total debt, 60,000 crores worth non-performing assets and 1.2 lakh crore at
pre-admission before the insolvency petition was admitted.5
( 3 ) Consolidation of laws
There were several laws governing bankruptcy and insolvency and a common case went on with
different judicial bodies creating unnecessary delays and complexity. For example, cases went on
in different forums like High Court, Company Law Board, Board for Industrial and Financial
Reconstruction, Debt Recovery Tribunal etc. Therefore, IBC formed a single law and only two
adjudicating authorities to govern all aspects relating to the insolvencies.
( 4 ) Well defined institutional framework
Prior to IBC 2016, the insolvency proceedings would take place in an unorganised manner due to
lack of proper infrastructure. Different organisations i.e. IBBI, IUs, IPAs and IPs and a well
well-defined (CIRP) have been established under IBC to streamline the insolvency and
bankruptcy process. Currently, India has more than 1800 Insolvency Professionals registered
with IBBI.6
( 5 ) Early detection
Since Information Utilities function as ready reserves for every financial record of an entity,
early detection of stressed assets is possible, thereby preventing defaults from taking place in the
first place. In case of operational creditors such as suppliers, vendors and employees, they can
file an application for insolvency resolution if the debtor is not successful in paying their unpaid
dues beyond 10 days of demand notice. Due to the existence of IBC, around Rs. 1.2 lakh crores
5
economictimes.indiatimes.com/industry/banking/finance/banking/ibc-has-led-to-the-resolution-of-unpaid-claims-of
-nearly-300000-crores-injeti-srinivas/articleshow/66789674.cms.
6
The Economic Times. (2019). How inordinate delays can ruin the purpose of bankruptcy code. [online] Available
at:
https://economictimes.indiatimes.com/industry/banking/finance/banking/how-inordinate-delays-can-ruin-the-purpos
e-of-bankruptcy-code/articleshow/64345818.cms [Accessed 15 Feb. 2019].
7
worth loan defaults have been resolved, even before they have been admitted. Out of 9000 cases
transferred to the NCLT, 3,500 cases have been resolved pre-admission.7
( 6 ) Homebuyers as financial creditors
Homebuyers were not treated as financial creditors and so their dues were not cleared from the
proceeds of liquidation. However, under IBC, homebuyer’s interests are protected as they are
treated as financial creditors. For example, in the case of the insolvency proceedings against
Jaypee Infratech, homebuyers were unable to address their concerns to the developer. However,
after the amendment to the IBC in 2018, these homebuyers were given a 62.2% representation in
the CoC. The Supreme Court has ordered Jaypee Infratech’s parent company Jaiprakash
Associates Limited to pay the homebuyers a sum of Rs. 600cr. 8
( 7 ) Focus on turnaround
Unlike before, Board of directors/Promoters are replaced by an insolvency professional(IP). IP
curates a resolution plan most suitable for the operational turnaround of the business. The
average recovery of insolvency resolution cases has been 46% under the IBC as compared to
26% under the Board for Industrial and Financial Reconstruction.9
( 8 ) Central Repository of Information about Debtors
An absence of a central repository of information made it challenging for lenders to recover
dues. There was considerable loss of time in gathering necessary information from various
bodies under acts such as the Indian Evidence Act 1872, Bankers’ Books of Evidence Act 1891,
the Information Technology Act 2000, etc. To address this delay, Information Utilities were
formed. One of the very first information utilities to be registered with the IBBI was The
National E-Governance Services Limited (NeSl). Its function is to collect critical and verified
information regarding any debt, claim or default to facilitate time-bound resolution.
7
https://www.businesstoday.in/current/economy-politics/ibc-forces-companies-to-settle-rs-1-lakh-crore-debt-out-of-
court/story/294673.html
8
https://www.hindustantimes.com/india-news/deposit-rs-600-crore-to-refund-home-buyers-sc-tells-jaiprakash-associ
ates/story-Z04gU6fKPUPfBbEZs66tpO.html
9
https://economictimes.indiatimes.com/news/economy/policy/option-of-marrying-ibc-with-settlement-schemes-can-
be-looked-at-in-future-arun-jaitley/articleshow/67144447.cms
8
VIⅠ] Negatives of IBC
( 1 ) Significant delays in resolution
In many cases, the 270 day fixed timeframe was broken due to wasteful procedural aspects and
insufficiency of legal infrastructure. Every delay in judgement caused lenders to lose out on
interest by the day. Thus far only 5 of the prescribed 12 major insolvency cases have come to a
conclusion with an average of 333 days taken to solve them. They are as follows :-
Amtek Auto Ltd. - Acquired by Liberty House
Bhushan Steel Ltd. - Acquired by Tata Steel. Ltd.
Electrosteel Steels Ltd. - Acquired by Vedanta Ltd.
Lanco Infrastructure Ltd. - Headed for liquidation
Monnet Ispat Ltd. - Acquired by JSW Steel Ltd.
An average of more than 415 days have passed since the remaining 7 cases came to IBC, and so
far there is no end in sight.10
( 2 ) Concerns of Operational Creditors
Operational creditors cannot file a complaint with the NCLT in case of any defaults on payments
due. They get very low representation on the CoC. Due to low liquidation worth and inadequacy
to pay financial creditors, the incentive due to operational creditors remains at Nil. For Example,
the total claims made by operational creditors were Rs. 27,000 crore out of which the Resolution
Professional admitted claims of Rs. 5,000 crore, whereas the successful bidder, ArcelorMittal,
has offered to settle only Rs. 214 crore of these. Orissa Stevedores, an operational creditor
claimed that the financial creditors are getting lesser haircuts on their dues when compared to the
operational creditors.11
10
BloombergQuint. (2019). Watching The IBC: Lessons From The RBI-12 Cases. [online] Available
at:https://www.bloombergquint.com/insolvency/watching-the-ibc-lessons-from-the-rbi-12-cases#gs.Xcy3mn5u[Acc
essed 1 Dec. 2018].
11
https://www.financialexpress.com/industry/essar-steel-case-operational-creditors-move-nclt-against-arcelormittal/1
381073/
9
( 3 ) No legal framework to enforce cross border insolvencies
A Cross border insolvency is when :
A- Where the defaulting party has business operations/ assets overseas, outside the normal legal
jurisdiction of the home country
B- When a foreign creditor is initiating insolvency proceedings against a domestic party
C- When a domestic creditor wants to initiate insolvency proceedings against a foreign company
Unlike its predecessors, IBC promised to inculcate a framework to efficiently process cross
border insolvencies. The Ministry of Corporate Affairs has proposed to adopt the United Nations
Model Law for Insolvency and Bankruptcy with some modifications.12 But the developments on
the same haven’t been finalized yet.
( 4 ) Single bidder Liquidation vs Resolution
In most cases, lenders have agreed to liquidate the company as the liquidation value is much
higher than any bids. But the actual value realised later on could be much lower due to rising
operational costs and inefficient cash flows.
( 5 ) Dealing with contingent liabilities
Most companies have varied pending liabilities like - tax, statutory dues, government dues,
labour litigation and other commercial disputes, which makes it difficult to ascertain to what
extent the liabilities will be discharged under CIRP, and what should be the true value of the
company.
( 6 ) Alignment with other laws and exemptions
The Insolvency and Bankruptcy code should be synchronized with all other laws at the time. For
example IBC does not give any necessary tax exemptions to the successful bidder for taking over
the insolvent company, whereas Income tax law requires them to pay tax accrued on book
profits, which were generated by writing off liabilities at a discount during the time of
acquisition.
12
https://www.vantageasia.com/new-framework-proposed-cross-border-insolvency/
10
( 7 ) There are not enough number of NCLT benches and Judges in comparison to the
quantum of cases filed for resolution
There are about 9000 cases pending before the NCLT for insolvency and other routine matters,
and there currently are only 11 NCLT benches to review them, which makes the whole process
of resolution very slow.13
VIII] Conclusion
Since the day it was rolled out, IBC has successfully recovered around 3 lakh crores, directly or
indirectly, from various default cases as quoted by Mr. Injeti, Secretary, Corporate Affairs. The
average recovery rate in the sixty-odd insolvency cases, which have seen a resolution, in the past
two years is 46%, contrary to the 26% which existed under the Board for Industrial And
Financial Reconstruction (BIFR) regime. India's ranking for Ease of Doing business has bumped
up to 70 from 142 in 2015, which is a big leap.
Although the new code has been facing some hiccups and challenges, the government is
improving it by rolling out new reforms. Any kind of opinion on the nature of the code, quality
of performance, level of relevance and the working of IBC would be premature, considering it is
merely 3 years old.
But after looking at the numbers and the way it is being acknowledged, not only in India but
around the world, IBC is proving to be the silver lining that India needed in the dark clouds of
rising NPAs and lethargic growth rate.
13
https://www.google.co.in/amp/s/www.financialexpress.com/industry/nclt-benches-may-be-doubled-to-cope-with-ri
sing-cases/1276014/lite/
11
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14
