When a person or business is unable to pay their debts, they are said to be
insolvent. It is the circumstance in which a person or company's assets are
insufficient to pay off all of their debts and responsibilities. The term
"insolvent" refers to the individual or the business.
The Insolvency and Bankruptcy code, 2016 establishes the statutory requirements
for the Corporate Insolvency Resolution Process as well as other requirements
for the Corporate Insolvent.
The Corporate Insolvency Resolution Process (CIRP) can be started by corporate
debtors by submitting an application to the adjudicating authority. Without any
restrictions, financial creditors can also also start a CIRP. A corporate
applicant of a corporate debtor may also start CIRP under Section 10 of the
Code, a financial creditor may do so under Section 7, and an operational
creditor may do so under Section 9.
Person or Entities involved in the CIRP process
When the company fails to repay the debts so, a corporate insolvency resolution
proceeding (CIRP) is initiated against the company and these types of companies
are termed as Corporate Debtor. For the initiation of the process an application
has to be made before the Adjudicating Authority to initiate such proceedings
and the persons or entities involved in the process are
The Financial Creditor is defined under Section 5 (8) of the Code who is a
person who owes the Corporate Debtor a sum of money on which certain interest is
to be received. If there is no interest generated on the debt, then it does not
constitute a financial debt.
The Operational Creditor which is defined under Section 5 (20) of the Code,
which is a person who owes the Corporate Debtor any operational debt which
includes a claim in respect of the provision of goods or services, in relation
to employment or any debt payable to the Government.
The Corporate Debtor Is defined under Section 3 (8) of the Code. A Corporate
Debtor can voluntarily file an application for the initiation of CIRP before the
Adjudicating Authority if it can no longer function effectively.
Outcomes of the CIRP Process
Following the start of CIRP, there are typically two possible outcomes, namely:
- Liquidation
- Or the revival of the corporate debtor.
It is important to highlight that the primary goal of the Code of 2016 is to
implement the second effect that is of the Revival of the corporate debtor,
which is a resurgence of corporate debtors. Liquidation is only necessary if the
same is not in favor as the revival of the corporate debtor is next to
impossible. Revival may also result in the necessity to create a new ownership
plan or restructure the current setup.
Adjudicating author for the matters of IBC, 2006
The National Company Law Tribunal (NCLT), which was established by Section 408
of the 2013 Companies Act, serves as the adjudicating authority for disputes
governed by the Code. The location of the company's registered office will
determine which NCLT will rule on any disputes involving that company. If the
NCLT's judgment is not acceptable to the applicant, he may file a complaint with
the National Company Law Appellate Tribunal in New Delhi (NCLAT) in accordance
with Section 410 of the 2013 Companies Act.
Stages involved in the Insolvency Resolution Process
The Central Insolvency Resolution Process (CIRP) has a three-stage process:
- pre-admission (Sections 3 to 11),
- post-admission (Sections 12 to 32A),
- Liquidation (Sections 33 to 54)
Financial creditors, operational creditors, or corporate debtors can apply to
the National Company Law Tribunal (NCLT) to recover their debts. The NCLT must
complete the CIRP process within 180 days from admission, with an extension of
90 days. CIRP should be completed within a period of a maximum of 330 days from
the date the insolvency commencement date Otherwise, the Company would go into
the Liquidation process as per Sections 33 to 54.
The trigger point for initiation of the CIRP is when the default amount exceeds
one crore rupees (10,000,000). The NCLT passes an order to accept or reject the
application within 14 days of receipt, giving notice to rectify the default
within 7 days. The insolvency Commencement Date is the date on which the
application is accepted. The moratorium period begins with the appointment of an
Interim Resolution Professional by an Adjudicating Authority and a Public
Announcement by an Interim Resolution Professional.
The stakeholders involved in the CIRP process
The Insolvency Resolution Process (CIRP) involves four main stakeholders:
- Interim Resolution Professionals (IRP),
- Committee of Creditors (COC),
- Resolution Applicant (RA), and
- National Company Law Tribunal (NCLT).
The IRP forms a Committee of Creditors (COC) and is appointed or regularized by
the COC. The Resolution Applicant submits a resolution plan with an affidavit
proving he is not disqualified under Section 29A of IBC. The Committee of
Creditors may approve a resolution plan by voting a minimum of 66% of the
financial creditors' voting share.
The Resolution Applicant then submits the
resolution to the National Company Law Tribunal, which approves it and gives the
order to approve it. The order is binding on corporate debtors, employees,
creditors, guarantors, and other stakeholders involved in the plan. The first
successful insolvency resolution scheme under IBC was Synergies-Dooray
Automotive Ltd.
Conclusion
The Corporate Insolvency Resolution Process (CIRP) can be started by corporate
debtors by submitting an application to the adjudicating authority. Without any
restrictions, financial creditors can also start a CIRP. A corporate applicant
of a corporate debtor may start CIRP under Section 10 of the Code, a financial
creditor may do so under Section 7, an operational creditor may do so under
Section 9, or both may do so. If an applicant feels agreeved by the NCLAT's
decision, he may file a complaint with the Supreme Court of India under Section
62 of the Code.
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