In India, many acts were enacted to deal with the issue of debt defaults. The
recovery actions of creditors, such as the Contract Act and many special laws
such as Recovery of Debts Institutions Act, 1993 and the Securitisation and
Reconstruction of Financial Assets and Enforcement of Security Interest Act,
2002 came into force without bringing desired outcomes. However, the Companies
Act, 2013 have not been able to aid the recovery of debts from the debtors.
Finally, the
Insolvency and Bankruptcy Code (IBC), was enacted on the year 2016
which is one of the biggest economic reform to tackle Non-Performing Assets (NPA),
a problem that has been pulling the Indian economy down for years. The mounting
NPAs in banking sector and other financial institutions has severely damaged the
lending activities of financial institutions in India, more so by public sector
banks.
The main objective of the law was to promote availability of credit,
balance the interests of all stakeholders and the code is basically for the
reorganization and insolvency resolution of any corporate company, partnership
firms and other entities for the maximization of the value of assets of such
person in a specific time bound manner. The code consists of a new institutional
framework consisting of a regulator, insolvency professionals and adjudicatory
mechanisms which helps in facilitating the
Insolvency Resolution Process (IRP)
and liquidation.
The
Insolvency Resolution Process (IRP) is a process under the
IBC, where the National Company Law Tribunal (NCLT) initiates a
Corporate Insolvency Resolution Process (CIRP) when a company or a corporate
debtor defaults to pay the creditors. An IRP can be initiated if there will be a
minimum default of Rs. 1,00,000/- of creditors debt by the debtor. The Financial
creditor can file an application under Section 7 of the IBC and the operational
creditor can file an application under Section 9 of IBC before the NCLT of their
relevant jurisdiction.
Liquidation takes place basically, when the company or corporates become insolvent and cannot pay of the debts to their respective
claimants. The process of liquidation is enabled by distributing the assets or
inventory of a corporate firm or enterprise at a low or discounted price to
generate cash and payoff the creditors. The assets during the period of
liquidation are distributed in many orders:
- Creditors can receive the full debt rather than the collateral value
- government dues will be repaid after unsecured creditors
- unsecured creditors have priority over trade creditors.
The procedure of liquidation
generates when the IRP fails or the financial creditors decide to wind down and
sale the assets of the debtor in the order of liquidation preference prescribed
under IBC.
The advantage of this Code, provides a uniform platform overseeing all the
issues of debt recovery by the process of IRP and liquidation. It empowers the
creditors by reaching a resolution and getting them paid easily, the Code is
meant to make sure that the creditor gets paid-either through liquidation or
resolution. The main reason for the enactment of the Code was to speed-up the
process of long insolvency in a specific time provided in the Code which is 180
days and extension of 90 days.
However, the Code is providing an immense
strategy of investing in India as because it hopes for faster recovery and
lesser defaults which are nevertheless, faced by the investor. Many foreign
investor are seeking India as a legible place of investing the basic reasons are
that the foreign investor can now employ a flexible exist strategy and attention
can be drawn to the start-ups that are likely to succeed.
Thus, the new Code
could curb substantially the number of long-pending cases and also ensure
quicker resolution of NPA problems of banks. On the other hand, the IBC is too
business minded and thus compromise the morality with the natural justice.
The
time period for the resolution of insolvency which is to be praised within a
small stipulated time, it might not be enough for the valuation of the insolvent
assets. Most of the time liquidation generally deemed to be unsuccessful where
the welfare of the debtor is to be considered whereas the liquidation is often
only the course of action.
The IBC seems to be backed by a strong structure and framework in the Indian
Economy resolution. Overall the enactment of this Code made a huge step for a
country like India towards the ease of doing business and creates a potential
for the foreign investors to bring business practices within the boundaries for
a long period of time. Moreover, the code provides a separate authority and
jurisdiction for the corporates or the companies to resolve the matters.
The
Code is being continuously evolved by the government for its betterment. The
scenario of resolution is now being changed completely by removing the distress
of finance in the country. IBC also sets methods for working with defaulting
borrowers in order to better enable the borrower to meet their financial
obligation. Thus, the IBC in all together proves to be boon for the country.
Please Drop Your Comments