Insolvency Code – Progress and Challenges
Adimesh Lochan, Arjun Gupta and Sahil Kanuga
Nishith Desai Associates
Introduction
With the passage of six years since the introduction of the Insolvency and Bankruptcy Code, 2016 (“IBC/Code”), the Code has achieved substantial progress towards providing a robust insolvency resolution mechanism in the country. At the same time, we have also witnessed significant challenges in the effective implementation of the Code.
The article provides our analysis on (a) empirical data on recoveries and investments under the Code, and (b) judicial pronouncements and their impact on the stakeholders.
Empirical Data of Realization by Creditors
Scheduled Commercial Banks (“Banks”) form the largest category of creditors by value in the lender ecosystem of India. The RBI releases an annual report titled ‘Report on Trend and Progress of Banking in India’ which provides data on recoveries made by Banks through various routes. The recoveries made by Banks form a major component of the total recoveries made by all creditors under the IBC route. Therefore, we have used this data to analyse the changing rate of recovery under the IBC route in the past five financial years.
The below table provides the statistics of total claim amounts undergoing insolvency resolution and the corresponding recovery in the past five financial years.[1] The table also includes the percentage of realization of amounts by the Banks for each financial year.
| Table I | |||
| (All amounts in crores) | |||
| Financial Year | Default Amount | Amount Recovered | Percentage of recovery |
| 2017 – 2018 | 9,929 | 4,926 | 49.60% |
| 2018 – 2019 | 1,45,457 | 66,440 | 45.70% |
| 2019 – 2020 | 2,24,935 | 1,04,117 | 46.30% |
| 2020 – 2021 | 1,35,319 | 27,311 | 20.20% |
| 2021 – 2022 | 1,99,250 | 47,421 | 23.80% |
The quantum of recovery by Banks under the IBC has been encouraging in the formative years followed by some stagnation. The percentage of recovery appears to have reduced in the last two financial years. We understand that the same should be owed to the slowdown brought by the Covid-19 pandemic during which (a) the Code was suspended, and (b) National Company Law Tribunals (NCLTs) were functioning with limited infrastructure to support handling of the case load virtually. As a result, the insolvency framework was practically stalled during most parts of F.Y. 2020 – 2021.
It is seen from Table I that the claim amounts submitted by Banks for insolvency resolution under the IBC route increased substantially before the Covid disruption. Therefore, it is apparent that Banks were choosing IBC as the preferred route for realization of their dues. Post the Covid disruption, due to increasing backlog of cases, there were huge delays in successful completion of Corporate Insolvency Resolution Processes (“CIRP”) through approval of resolution plans. As a result, we saw an abrupt dip in the percentage of recovery for creditors in the F.Y. 2020 – 2021 and 2021 – 2022.
Further, till September 2022, 23,417 applications for initiation of CIRPs, having underlying default of INR 7.31 lakh crore were resolved before their admission.[2] This augur to the fact that a substantial number of debtors are settling their outstanding dues before the commencement of CIRP. In the absence of a ‘pre-packaged insolvency framework’ for all debtors,[3] promoters of defaulting debtors were agreeing to a settlement arrangement akin to a resolution plan without the requirement to commence a CIRP.
Since the inception of the IBC, a total of 5,636 applications seeking initiation of a CIRP have been admitted, out of which 517 have been successfully concluded after the approval of resolution plans by NCLT.[4]
| Table II | |||
| Total Cases Admitted | Total Admitted Claim | Combined Liquidation Value | Total Amount realized |
| 5,636 | INR 7.67 lakh crore | INR 1.31 lakh crore | INR 2.35 lakh crore |
From a combined reading of Table I and Table II, we understand that the consolidated recovery made by creditors since the inception of the Code has been approximately 30% of the total admitted claim. Further, the percentage of recovery against the claim amounts has dropped to 23% in F.Y. 2021 – 2022. However, creditors have been able to recover 178% of the combined liquidation value of all the defaulting debtors.
This implies that the IBC route has definitely benefited creditors in improving their recovery rates as compared to the erstwhile regimes of SARFAESI, RDDBFI and winding up under Companies Act. However, there is a substantial scope for improvement of recovery rates to ensure value maximization in a time bound manner. The percentage of recovery recorded prior to the Covid pandemic is a strong indicator of the benefits of an efficient and streamlined insolvency resolution regime.
Judicial Developments (2022 – 2023)
The year 2022 also witnessed the pronouncement of crucial decisions by the NCLTs and landmark precedents by the Supreme Court.
1. Treatment of Contingent Claims under IBC
With the imposition of moratorium, adjudication of disputed claims against the corporate debtor that are pending as on the date of commencement of CIRP get stalled. Thereafter, all categories of creditors are invited to submit their claims in order to prepare a consolidated liability statement of the debtor. As a part of this process, claims pending adjudication are also submitted by the respective claimants (“Contingent Claims”). In 2019, the Supreme Court, in Essar Steel India Ltd. Committee of Creditors v. Satish Kumar Gupta,[5] had observed that once a CIRP ends, the corporate debtor should start afresh on a ‘clean slate’. It was also observed that adjudication of Contingent Claims cannot be allowed to continue post the successful completion of a CIRP. Therefore, if a claimant has pending arbitration proceedings against a debtor at the time of commencement of CIRP, the entire claim could be attributed nil value by the RP.
However, recently the Supreme Court adopted an apparently contradicting position, and allowed an arbitration proceeding to continue post the successful completion of the CIRP.[6] However, if legacy liabilities are allowed to continue post successful completion of a CIRP, it may disincentivise an investor-acquirer from bidding for such a debtor.
A solution may be derived from the discussion paper released by the IBBI, which identified that all ‘Contingent Claims’ are capable of being estimated and an liquidator must not reject them.[7] This proposition was reflected in the 2018 amendment to the Code which made it mandatory for liquidators to estimate the value of contingent claims and incorporate the same in the consolidated liability statement of the debtor, such valuation being binding on all stakeholders. If the same process is adopted during a CIRP as well, it will ensure that a Contingent Claim is not attributed nil value by default, and that a successful resolution applicant has certainty and finality on the acquisition value of the corporate debtor upon approval of its resolution plan.
2. Attachment by Enforcement Directorate of a Corporate Debtor’s Assets
While the Prevention of Money Laundering Act, 2000 (“PMLA”) and IBC are special statutes and have distinct legislative purposes, there is an apparent conflict between the two with respect to situations regarding the attachment of assets of a corporate debtor during its CIRP. In this respect, Section 32A was inserted into the Code with the objective of (a) absolving a corporate debtor for any liability in respect of any offence committed prior to the commencement of the CIRP; and (b) protecting assets of the corporate debtor from any action in relation to such offence.
However, recently, the Delhi High Court in relation to the CIRP of Era Infra Engineering Limited, held that an attachment of the debtor’s assets during the subsistence of moratorium is valid and maintainable.[8] The court explained that while the purpose of moratorium is to prevent individual actions by creditors to recover their dues, the ‘Enforcement Directorate’ under the PMLA (“ED”) is not akin to ‘a creditor pursuing an ordinary monetary claim’. The court further stated that the PMLA seeks to subserve a larger public policy objective.
Pursuant to the above judgment of the Delhi High Court, ED can attach assets (including by way of freezing bank accounts) of a corporate debtor after the commencement of CIRP and imposition of moratorium. Such attachments might adversely impact the efficacy of the insolvency resolution process of such a corporate debtor. Since a corporate debtor is aimed to be sold as a going concern, regular cash flow is required during the CIRP for its day to day functioning. While ‘CIRP costs’ are paid for by the COC, the COC itself cannot infuse cash flow into the debtor. Further, the terms of raising interim finance are onerous and are generally met with resistance from the COC. In absence of adequate cash flow, the corporate debtor’s ability to perform its day to day functions would be severely prejudiced. Therefore, if assets of such corporate debtors are attached by the ED during the CIRP, it will be extremely challenging to maintain the corporate debtor as a going concern till the successful completion of its CIRP.
Further, in multiple cases, the NCLTs and NCLAT have directed resolution professionals to approach special courts designated under the PMLA to seek the release of assets of a corporate debtor attached by the ED during the CIRP.[9] If a resolution professional is compelled to approach the special court under PMLA for release of attached assets, it could result in stalling of the CIRP as well as draining of resources. The situation may worsen if a substantial portion of the assets of the corporate debtor are attached.
Further, such attachment of assets (and subsequent delay in release of the same) might restrict the ability of an RP to carry out valuation of such assets which would in turn constrain the preparation of a consolidated asset statement of the debtor. Lastly, initiation of separate proceedings before special courts to secure release of attached assets leads to multiplicity of proceedings which goes against the legislative objective of the Code.[10] In our IBC Law Article here, we discuss further ramifications and possible way forward towards resolving issues arising out of attachments by ED during the CIRP.
3. Does the NCLT Possess a discretion in admitting an Insolvency application by Financial Creditors
The process of adjudication by NCLT is summary in nature wherein the NCLT is required to only determine the existence of debt and default on the basis of documentary evidence brought on record by the creditor-applicant. The summary nature of insolvency applications allowed the NCLT to meet strict statutory timelines which, in turn, dissuaded the defaulting debtors from delaying repayment to creditors.[11] The NCLT did not have a discretion to refuse admission of an insolvency application once a creditor proved the existence of debt and default.[12]
However, in the recent case of Vidarbha Industries Power Limited v. Axis Bank Limited,[13] the Supreme Court has taken a view that it is not compulsory or mandatory for the NCLT to admit an application even if the existence of debt and default is proved. In Vidarbha, the corporate debtor resisted the admission of the insolvency application on the ground that there was an appeal pending against an arbitral award in its favour, the proceeds of which could be used to satisfy the dues owed to the creditor. The Supreme Court stalled the commencement of the CIRP until the disposal of the appeal.
It is possible for any debtor entity to show a possible source of funds which can be utilized to satisfy dues owed to a creditor. Possible infusion of capital, external borrowing, pending legal proceedings are all examples of such source of funds. It is almost impossible for the NCLT to carry out a qualitative as well as objective case by case analysis of the viability and availability of such source of funds. Given the massive caseload with NCLTs and limited infrastructure to deal with cases, an inquiry by NCLTs into such grounds and contentions by a debtor would further delay the process of disposal of applications and, as a result, add to the existing case load.
If insolvency applications are kept in abeyance until debtors are able to gather necessary finances to satisfy the dues of its creditors, such creditors may have to wait for years together to recover their dues. One of the basic tenets of the Code was to provide a time-bound and efficient insolvency resolution framework, which would stand defeated if the debtors are permitted to deploy such dilatory tactics. It might be necessary for the legislature/judiciary to take appropriate steps to ensure that the observations made in the Vidarbha judgment do not render the Code redundant.
4. Modification of Resolution Plans after approval by the COC
Investors generally incorporate clauses like ‘material adverse change’, ‘force majeure’, ‘condition precedent’, ‘condition subsequent’, etc. which would help an investor to withdraw from a potential acquisition should extraneous circumstances impact the value of assets being acquired. In the process of acquisition of stressed assets under the IBC, there is an intervening period between approval of a resolution plan by the COC and thereafter, by the NCLT. We have seen multiple instances where this intervening period has been prolonged due to extraneous circumstances like multiple rounds of litigation,[14] and pandemic induced delays.[15] During this intervening period, it is possible that (a) the assets of the debtor suffer from a substantial depreciation, and (b) the investor-acquirer obtains new information about the debtor. It is possible that the above change in circumstances could not have been ascertained by the acquirer even after a due diligence. In such situations, the investor-acquirer should have the ability to either modify or withdraw its offer to acquire the debtor.
However, the Supreme Court has recently held that NCLTs cannot allow modifications and/or withdrawals of resolution plans once such plan has been submitted to the NCLT after approval by the COC.[16]
In this regard, we may draw learnings from jurisdictions such as Singapore and the United States which have a robust insolvency resolution framework. We have explored the contours of the judgment of the Supreme Court and the steps that can be taken to address the aforesaid issue in our IBC Law article here.
5. Personal Guarantors can be made liable under Insolvency Code prior to any action against the Principal Borrower
The Supreme Court has provided clarity on the (a) right of creditors to initiate insolvency resolution process against personal guarantors of the principal borrower; and (b) timing and jurisdiction to exercise such a right.[17] Creditors can now initiate insolvency proceedings against personal guarantors even before commencing a CIRP against the principal borrower.
Since the inception of the IBC, we have seen large corporate groups undergoing CIRP. In each of these cases, multiple creditors had to take severe haircuts (even nil payment for some creditors as the amount offered by the resolution applicant could satisfy the dues of secured financial creditors only). While some creditors, including public sector banks, faced huge fiscal losses, the promoter entities/individuals continued being financially sound. This judgment will help creditors to recoup the unsatisfied claims from the personal assets of the promoters of the defaulting debtors. Please refer to our IBC Law Article here for further discussions on the implications arising out of the judgment.
Way Forward
Statistics show that the Code has fared better than other recovery regimes. While the statistics are encouraging, there are still concerns that the Code might be losing its sheen.
Two major issues that have plagued the effective implementation of the insolvency framework are: (a) inordinate delays in the successful completion of CIRPs, and (b) resolution applicants facing unforeseen challenges, including legacy liabilities of the debtor. We have attempted to explore these concerns and the underlying reasons.
Before a CIRP is successful concluded, there may arise multiple judicial proceedings in relation to the CIRP. These proceedings could arise out of (a) applications filed by the resolution professional, debtor and the COC; (b) applications filed by other stakeholders in relation to the CIRP; and (c) appeal proceedings against such applications. These applications remain pending for years due to lack of adequate infrastructure. Due to such delays, the assets and business of the debtor continue to suffer from depreciation, thereby causing incremental prejudice to an interested acquirer.
In any investment opportunity, an investor would weigh the expected rewards against risks which are either known or can be reasonably estimated. Similarly, for acquisition of stressed assets through the IBC route, the insolvency resolution mechanism should ensure that there are no unexpected ‘risks’ at the culmination of the resolution process. Unfortunately, we have witnessed several instances where legacy liabilities have come to haunt investors after the successful completion of the CIRP. If such a practice is not corrected, investors could be compelled to hedge their risks at the bidding stage and propose a lower acquisition price to tackle contingencies. This will in turn result in a lower realization value for creditors.
In order to strengthen the efficacy of any insolvency resolution mechanism, a robust pool of investor-acquirers is a pre-requisite. Although there have been multiple amendments to the Code to tackle evolving roadblocks, like previous recovery regimes, we are witnessing multiple cases where creditors are accepting substantially low recoveries. Without active participation from the investor community, creditors would have to liquidate most the defaulting entities, which would involve longer timelines and increased costs.
The IBC has undoubtedly bolstered the stressed asset market in India, which demonstrates that the Code is a significant step in the right direction. Statistics show that since the inception of the Code there has been a steady increase in the percentage of realization rate prior to the Covid pandemic. In order to regain the lost momentum, it is important to restore the confidence of all investors in the insolvency framework. Therefore, a concerted effort by the legislature as well as stakeholders is required in order to address the challenges faced by the Code.
Reference:
[1] See Reports at
(a) 2017 – 2018 at
https://rbidocs.rbi.org.in/rdocs/Publications/PDFs/0RTP2018_FE9E97E7AF7024A4B94321734CD76DD4F.PDF;
(b) 2018 – 2019 at
https://rbidocs.rbi.org.in/rdocs/Publications/PDFs/0RTP241219FL760D9F69321B47988DE44D68D9217A7E.PDF;
(c) 2019 – 2020 at
https://rbidocs.rbi.org.in/rdocs/Publications/PDFs/0RTP2020_F3D078985540A4179B62B7734C7B445C9.PDF;
(d) 2020 – 2021 at
https://rbidocs.rbi.org.in/rdocs/Publications/PDFs/0RTP2020CF9C9E7D1DE44B1686906D7E3EF36F13.PDF; and
(e) 2021 – 2022 at
https://rbidocs.rbi.org.in/rdocs/Publications/PDFs/0RTP20212225730A6FC708454BB270AC1705CCF178.PDF
[2] IBBI Quarterly Report July – September 2022, available at https://ibbi.gov.in/uploads/publication/f3ddc90d7391bcae84ef2f87f793eb3c.pdf
[3] Currently, the Pre-packaged insolvency framework is only applicable for Micro, Small and Medium Enterprises.
[4] IBC – Ideas, Impressions and Implementations, 2022 https://ibbi.gov.in/uploads/whatsnew/b5fba368fbd5c5817333f95fbb0d48bb.pdf
[6] Fourth Dimension Solutions Ltd. v. Ricoh India Ltd. & Ors., (2022) ibclaw.in 06 SC
[7] IBBI Discussion Paper on Corporate Liquidation Process, August 26, 2020, available at https://ibbi.gov.in/uploads/whatsnew/2020-08-26-184542-x70yo-1bc5a2ba5d43fda2a51fa372bf5bc76c.pdf
[8] Rajiv Chakraborty Resolution Professional of EEIL v. Directorate of Enforcement, (2022) ibclaw.in 257 HC
[9] Ashok Kumar Sarawagi v. Enforcement Directorate, Government of India, (2022) ibclaw.in 337 NCLAT; Kiran Shah v. Enforcement Directorate, (2022) ibclaw.in 10 NCLAT; Varrsana Ispat Limited Vs. Deputy Director of Enforcement, [2019] ibclaw.in 67 NCLAT.
[10] The IBC was introduced as a self-contained code to consolidate all proceedings pertaining to insolvency resolution before a single forum.
[11] Please refer to Part I for empirical data and our analysis.
[12] As was expressly set out in Innoventive Industries Ltd. v. ICICI, [2017] ibclaw.in 02 SC
[14] Committee of Creditors of Essar Steel India Limited v. Satish Kumar Gupta and Ors. [2019] ibclaw.in 07 SC
[15] Ebix Singapore Pvt. Ltd. v. Committee of Creditors of Educomp Solutions Ltd. and Anr., (2021) ibclaw.in 153 SC.
[16] Ebix Singapore Pvt. Ltd. v. Committee of Creditors of Educomp Solutions Ltd. and Anr., (2021) ibclaw.in 153 SC.
[17] Mahendra Kumar Jajodia v. State Bank of India, (2022) ibclaw.in 32 SC.
Disclaimer: The Opinions expressed in this article are that of the author(s). The facts and opinions expressed here do not reflect the views of IBC Laws (http://www.ibclaw.in). The entire contents of this document have been prepared on the basis of the information existing at the time of the preparation. The author(s) and IBC Laws (http://www.ibclaw.in) do not take responsibility of the same. Postings on this blog are for informational purposes only. Nothing herein shall be deemed or construed to constitute legal or investment advice. Discussions on, or arising out of this, blog between contributors and other persons shall not create any attorney-client relationship.
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