SEBI vs. IBC – A post CIRP anomaly – By Akshit Gupta

SEBI vs. IBC – A post CIRP anomaly

Authored by:
-Akshit Gupta

On November 11, 2022, The Securities and Exchange Board of India (SEBI) released a consultation paper[1] on the modalities of the Insolvency and Bankruptcy law, when the process was applied to publicly listed companies . It was an attempt to streamline the interests of a private equity  investor or shareholder with that of a financial creditor, associated with an entity undergoing the Corporate Insolvency Resolution Process (CIRP).  The notification was in response to the grievances expressed by the shareholders of delisted entities post liquidation vis-a-vis the asset distribution process. The white paper laid stress on the interests of the minority and micro-stake holders in a sick and liquidating enterprises, where the  most common issue addressed in the proposal was that the instances of small stakeholders losing their equity stake to the majority holders, once the company flushed out through the exit option provided under the Insolvency and Bankruptcy code. In order to regulate the cash flow, the SEBI proposal was suggestive of mandatory first offer mechanisms to the non-promoter group shareholders which would enable them to retain a reasonable stake in the post CIRP resultant entity. This comes out as a remarkable move by the Regulatory Body, since the resolution process has been seen as a garb for majority stakeholders to divest other shareholders from the entire pool of equity (now converted into equity shares) of the post-CIRP entity. This  would essentially entail a transition of the shareholder group into the ‘new corporate debtor’ (CD) personality, allowing the former to entitle multiple benefits under the Code. In a nutshell, the proposal would allow the buyout by the reserved shareholder class to circumvent the compliances under the SEBI (Delisting of Equity Shares) Regulation, 2021, in event the CD undergoes the liquidation pursuant to the CIRP and the public shareholding does not rise above 5% of the total capital structure of the resulting entity.

Compliances proposed by the Ombudsman

In vested interest of the public shareholder and the non-promoter group, the same shall be provided an opportunity to acquire equity in the fully diluted share capital of the new entity, which shall be a minimum of 25%. Furthermore, the resultant entity shall endeavor to acquire at least 5% of the total public shareholding through such an offer made to the non-promoter group. Point B of the Proposal lists out the excluded category of shareholders who cannot be made such an offer, which includes the affiliates of the promoter group and directors of the company. This has been perceived as a bold move since it would require an apparent  synergy of both legislations, and in various instances the jurisdiction of IBC and SEBI have seen to not coincide. In Bhanu Ram vs. HBN Dairies and Allied Limited (2019) 858 NCLT [2], the NCLT took an opinion that IBC cannot cast an overriding effect vide section 238, over SEBI since the two legislations are actually inconsistent in the sense that the IBC governs the relationship between the debtor and creditor, while SEBI protect the interests of investors in the securities markets. Once the Moratorium is evoked under section 14[3] of the Code, it bars any proceedings under any other legislation ,by virtue of Section 238 of the Code. Further in Innoventive Industries Limited vs. ICICI Bank Limited [2017] 02 SC [4], the Apex Court had clarified the position that the non-obstante clause contained in section 238 of the Code prevails over any corresponding enactment applying to the corporate debtor. The promoter group being offered a mandatory offer in the capital structure would ensure the new entity to retain a sizeable amount of liquidity. Additionally, the public shareholding in the new entity should be at least 5% for it to continue its listing on a stock exchange, failure in which would lead to the company’ delisting.

Merits of the Proposal

The harmonious construction proposed by the notification is a praiseworthy note, given the fact that the number of listed entities going into liquidation since the 2016 enactment is increasing gradually. Going statistically, the resolution plan of 517 CIRPs has been approved, since 2016, out of which 75 are listed companies, out of which 28 companies ended up in liquidation and 52 were delisted. The rise in winding up of investor – driven companies would naturally imply an added layer of complexity to be addressed by the Code, with regard to the distribution of equity of stake in the post CIRP entity. One of the speculated pros of the proposal focuses on the issue of excessive float suffered by entities post relisting. Since the Minimum Public Shareholding (MPS) requirement of the board had earlier addressed this issue in a white paper published in August 2020[5], wherein it suggested the statutory post-relisting requirement of 5%  (MPS), followed by 10% within the year, followed by 25% in the next two years. Another option given the entities was 10% MPS at the time of relisting and 25% in the next 2 years. This gave entities flexibility in achieving their mandatory MPS requirements based on their public investment pattern and challenges post the CIRP recovery. The Amendment to SEBI (Substantial Acquisition of Shares and Takeover) Regulations, 2011 compliments the above proposal, since it allows 75% acquisition in the relevant entity by a buyer in a CIRP, with the remaining 25% being left in the open market to be acquired.

Another merit of the said paper is the lessening of burden on the New Corporate Debtor/applicant of the resolution plan with respect to raising of capital for equity in the new entity. The public shareholding mechanism would ensure smooth flow of capital for the post CIRP entity, without risking dilution of shareholding, since the promoter/financial creditor would only be complying with the MPS requirement while making an offer to the public non-promoter group.

Auxiliary, the public – shareholders could now get at par with the promoter-group in, since they would not only retain their holding in the resulting entity, but also virtually continue to hold the same stake in the resulting entity as well as be able to participate in proportion to their shareholding. Additionally, the public shareholding group would also be able to acquire the capital in the new entity at the same cost as the which the acquirer does. Since Shareholders themselves are in the lowest hierarchy when it comes to distribution of the liquidation proceedings, after secured creditors and unsecured creditors, as per Chapter 7 of the Code, their protection has been crucially considered here.

Possible Drawbacks

Possible dilution of the promoter shareholding is a major issue which this proposal has failed to discuss. As forayed in the article earlier, the IBC and SEBI regulations do not coincide, nor are it’s provisions subservient to another at different occasions. Inclining excessively in the favor of public shareholder at the event of a corporate Insolvency or possible liquidation can damage the  established holdings of the Promoter Group. The 2020 Paper did provide some respite to the newly liquidity entity in the sense that the public equity shareholding needed to shoot up to the statutory level immediately, but instead after a certain period of time and in patches. The latest guidelines does follow-up to the loose-ended question posed by the former, and clarified that the SEBI (SAST) regulations 2011[6], would cease to apply as long as the MPS was below the statutory level.      


The link between the insolvency and Bankruptcy Code and SEBI has again been visited this time, albeit leaving the loop open for further discourse over the fact that the two legislations’ sui-generis application has not been properly scrutinized here. The insolvency of a listed entity poses a complexity in the form of differential shareholdings and their subsequent distribution to the creditors/shareholders. In void of any concrete liquidation process for the listed entities, the Code looms at uncertain bailout for the minority stakeholders, until, of course either of the legislations or the regulatory bodies work out a solution to the conundrum.


[1] Priyanaka Gawande,”SEBI floats paper to protect equityshareholders under IBC” (Livemint , Nov11,2022)

[2] Bhanu Ram vs. HBN Diaries and Allied Limited (2019) 858 NCLT

[3] Insolvency and Bankruptcy Code,2016.s,14,238

[4] Innoventive Industries Limited vs. ICICI Bank Limited [2017] 02 SC

[5] Sara Jain,”SEBI Consultation Paper on Minimum Public Shareholding” < > (Arbitration Corporate Law Review, Aug 28,2020)

[6] SEBI (Substantial Acquisitions of Shares and Takeovers)Regulation,2011 reg.3(2)


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