Resolution of MSME under IBC, 2016

INTRODUCTION

The Insolvency & Bankruptcy Code 2016 is one of the major insolvency reforms in
Indian historical perspective. The IB Code 2016 passed to identify the drawbacks in
current insolvency law in India and to carry them in one roof is establish to face a
huge issue and equally colossal prospect.
As per World Bank report Indian insolvency resolution obtain approx. 4.3 years,
compared with UK (1 year) and US (1.5 years). India has provided 135 rank out of
190 nations in Ease of Doing Business Index 2015 on the ease of insolvency
resolution. Therefore it is clear that the IBC is considered as one of significant
legislation initiated in influencing the ease of doing business in India1.
The basic purpose of the IBC Code has been to combine and revise the current laws
based on insolvency of companies, limited liability entity, partnership and individual
which were until recently spread out in various laws into a single law. Another aim of
the Insolvency & Bankruptcy Code between many other things is to give for time-
bound procedures to resolve insolvency so as to maximize the worth of the asset of
corporate individuals; and give flexibility to the parties to arrive at the most effective
resolution to minimize issues of common properties through negotiation. The IBC
offers a medium for negotiation among creditor and outside financier which may make
the chance of these reshuffles.2
The Insolvency & Bankruptcy Code offers for a market machinery to save the
companies in financial crisis and to assist closure of companies in times of financial
downturn, in keeping the activities in the IBC and laws made thereunder. The IBC
gives for designate the National Company Law Tribunals and the Debts Recovery
Tribunal as the adjudicating authorities for corporate individuals and companies for
resolution of insolvency, liquidation and bankruptcy.3
The economic trauma caused because of COVIV-19 pandemic, the Indian govt.
declared amendments by virtue of which the minimum threshold for starting a CIRP
against commercial debtors, have been increased to Rs. 1,00,00,000 from the earlier
threshold of rupees on lakh. This is relevant to note that this raise in thresholds have
been brought into effect to prevent triggering of defaults against the M.S.M.E.
However, the notification through which such amendment was brought into effect
doesn’t particularly state that the augmented entrance will only affect to SMEs.

1
https://ibclaw.in/short-note-on-insolvency-and-bankruptcy-code-2016/
2
Ahlawat & Associates, Insight Into The Bankruptcy, Insolvency & Rehabilitation Proceedings In
India, International Lawyers Network, June 15, 2020
3
Akshaya Kamalnath, Corporate Insolvency Resolution Law in India – A Proposal to Overcome the
‘Initiation Problem’, April 15, 2019
Therefore, it might be inferred that the entry apply to every corporate debtors and not
mere M.S.M.Es.4
A short description of the act is provided with the important emphasizes and the
insolvency resolution process. Individuals are supposed to have become insolvent
when they becomes unable of reimbursing their debt in the normal course of
businesses, or they become incompetent of disbursing their debt as they become
owing, whether or not, they have assigned a process of insolvency. But, debtors who
do some activities, inclined to beat or postponement their creditor, might be
considered bankrupt, and so be made liable to the bankruptcy rules and regulations.
There is no sole law in India that rules the insolvency processes. 5.
Insolvencies are while a person or an enterprise is incapable to gather their
exceptional financial debts to its lender as it become outstanding.  Insolvencies may
be determined by mode of altering the settlement plans of the loans or canceling a
part there of. If the debts can’t be settled, then legislative actions might lie against
the bankrupt and their asset would be sold to induce the exceptional debt. In general,
liquidators appointed by Indian Govt., understand the asset and allocate it between
the creditors of the insolvent.

There is a narrow difference between bankruptcies from insolvency, which is rather

cordial. Bankruptcies are when an individual voluntary states as insolvents and
approach the court. On announcing them as ‘bankrupts’, the court is accountable to
settle the individual properties of the insolvents and hand it out to its creditor. It
gives a new lease of living to the insolvents.

The basic aim of this act is at giving renaissance and resolutions in a systematic way
for maximisation of worth of debtor’s properties. IBC 2016 have give a dominant
structure to assist sick units to either end their businesses or engineer recovery plans,
and for shareholders to go out. Especially, the Insolvency & Bankruptcy Code has
also allowed the operational creditors (workman, supplier and so on.) to start the
resolving processes of insolvency if defaulting happens.

The other major characteristic of IBC is that it doesn’t create any difference among
the rights of global and national creditor or among classes of financial
establishments. The Insolvency & Bankruptcy Code has tries to poise the concern of
all the stakeholders comprising change in the order of priorities of disbursement of
Govt. dues. The lawmakers have tried to make a law equivalent to global standard
4
Ahlawat (2020) Insight Into The Bankruptcy, Insolvency & Rehabilitation Proceedings In India,
https://www.ilntoday.com/2020/06/insight-into-the-bankruptcy-insolvency-rehabilitation-proceedings-
in-india/
5
The Hindu, March 12, 2020
which is directed by the wide viewpoint that insolvency resolutions should be
profitable and competently driven. Per se, the responsibility of judging authority is
restricted to ensure due processes rather than judging on the benefits of the
insolvency resolutions 6.

The processes of prepare, draft and execution of IBC was much quicker, and is
concrete proof of the Govt.’s obligation to improve the effortlessness of doing
businesses in India and opening the equity market and other Indian investment
avenues. As the Indian Govt. has fully showed by its latest execution of
demonetization, it is made to get measures which might be ostracized with some,
and which in their execution could be criticized, but which are proposed to progress
the financial position.

It is simple to locate gaps, lack of clearness and maybe even scope for issues related
to the Act, but into the consideration it a very practical model to utilize and one
which will, over time, show to have been a vital footstep forward in improving
Indian lawful infrastructures. The IBC is changing in the basis of the requirement to
magnetize and ease overseas investments with the fast release and turnaround of
feasible national business imposed with indefensible debt and a deficiency of
lucidity as to their fundamental money matters 7.

Much of an eloquent nature has been write of late by lawyer, accountant and
professional looking to enlighten the latest regulation. On the contrary, in this
memorandum it is to be more logical and give comments on various important
provisos of IBC and associated policies relevant to business personals. 8

6
Akash Sharma, Critical Analysis on IBC, 2016, https://taxguru.in/
7
Dev Chatterjee & Avishek Rakshit , Banks' finances to improve by this year-end, Business STandard,
October 19, 2016
8
J K Budhiraja, 2016
The important characteristics of the I.B.C 2016

 I.B.C proposes a pattern modify from the current 'Debtors in ownership to a

'Creditors in control' rule.

 This code aimed at combining each and every current insolvency legislations
with revising multiple laws comprising the Companies Acts.

 The I.B.C tries to resolve insolvency in a stern and systematic way - the
assessment and feasibility determination should be finished in 180 days.

 Freezing time of 180 days for the firm. For new entrepreneurs and M.S.M.Es
the resolution time period is 90 days and it may be extendable up to 45 days.

 Initiate competent professionals as a mediator to supervise the insolvency

resolution processes.

 Organization of IB board as a self-governing authority for the management

and control of IB Law; and Information Utility as depository of monetary
information.
CHAPTER 2. IMPORTANT DEFINITIONS AND CONCEPTS

Definitions of I.B.C, 2016

In I.B.C, except the situation otherwise needs,—

1) “Board” denotes the Indian IB Board set up in sub-sec. (1) of sec. 188;

2) “bench” denotes a bench of Adjudicating Authorities;

3) “bye-laws” denotes the bye law prepared by the insolvencies expert agents in
sec.205;

4) “charge” is defined as a concern or lien made on the properties of any individual or

any organization or both, as the case might be, as safety and comprises a credit;

5) “Chairpersons” denotes the Chairpersons of the panel;

6) A “claim” is -

(i) a right to imbursement, whether or not such right is diminished to judgment,

permanent, clashed, undisputed, lawful, impartial, protected or unprotected;

(ii) rights to remedy for breaches of contract in any rule for the time being in force, if
these breach provides increase to a right to imbursement, whether or not such right is
diminished to judgment, permanent, grown, immature, uncertain, undisputed,
protected or unprotected;
7) corporate individual denotes a corporation as described in clause(20) of sec.2 of the
Companies Act, 2013, an LLP, as explained in clause(n) of sub-sec.(1) of sec.2 of the
LLP Act, 2008, or any other individual associated with limited liability in any legal
framework for the time being in force but shall not comprise any financial service
providers9;

8) Corporate debtors are business personal who owe debts to anyone;

9) Core service signifies services made by information utilities for -

(i) Receiving electronic compliance of financial facts in such type and way as might
be identified;

(ii) Secure and precise copy of financial information;

(iii) Validating and proving the financial information presented by an individual;

9
Ashish Makhija, Can CIRP be initiated against Societies with Limited Liability incorporated under
any Law?, November 12, 2019 https://www.linkedin.com
(iv) Giving admittance to information store with the information utilities to individuals
as might be stated;

10) A creditor is an individual to whom a liability is payable and comprises financial

creditors, operational creditors, secured creditors, unsecured creditors and decree
holders;

11) “debt” denotes an accountability regarding claims which is outstanding from any
individual and contains monetary debts and operational debts;

12) “default” denotes non-payment of debts when entire or installments have become
owing and payable and is not one by the debtors or the business debtors, as the case
might be;

Micro Small and Medium Enterprise (MSMEs)

An M.S.M.E under MSMED Act, begun in 2006, which inter alia gives for institution
of a statutory National Body for M.S.M.Es, backed by a committee to aid M.S.M.Es
and initiated the idea of companies as different to past concept of industry. The Act
gives for fill up of memo, evaluate for endorsement, growth and improvement of
competitiveness of M.S.M.Es, gives proposals to boost the credit facilities,
procurement preferences, provisions based on late imbursements. Former the
definition classify M.S.M.Es related to Industry they function into.10

Small scale industries have performed considerably in progressing the expansion

curve of the Indian financial system with regard GDP, exporting and job creation.
SMEs, always measured as the spine of the Indian financial system, are an enormous
network of 63.4 million companies that together give a highest of 29% to the Gross
Domestic Product and make over 1110 lakh job vacancies in both city and rural parts.
M.S.M.Es are influenced great impact Indian financial system rapidly after the
agricultural segment performing as the engine of living for a huge population. After
the M.S.M.ED Act too, M.S.M.Es have been confronting exemplary challenges. The
beginning of which is uncovered in the fundamental infrastructural shortages,
deficiency of financial education, supply of raw substances, legal commitments,
worker efficiency and lack of faith by conventional banks.

M.S.M.Es always succumbs to collateral needs mandatory for gaining funds. Financial
institutions frequently hesitate in approving loans to small scale industries because of
lack of lucidity, financial restraint and top mortality rate. As per 2018 report
M.S.M.Es were struggling with regards to decreasing profits and capacity utilizations.
This drives small scale industries into a state of debts or liquidity crisis and generates a

10
The MSMED Act, 20016, Ss 7
risk of existential catastrophe. Together that arrives one of the main chaos generated
by this Corona pandemic time that is reverse movement of workers all over the
country. Though a lot of M.S.M.Es were still improving from the negative impacts of
demonetization and G.S.T execution, mainly as many of them are not register by
virtue of their size. This clear invisibility be liable to effort for companies as well as
against them. Being out of the formal networks, the companies don’t have to keep
accounts, or stick to legal standards etc. This overthrows their expenses. However as it
is obvious in an occasion of catastrophe, it also restrains a govt.’s aptitude to assist
them. The blend of problems confronted by M.S.M.Es creates them prone to
insolvency. The epidemic leaded a new type of problems and thus created it hard to
continue buoyant and keep the employability of employees in M.S.M.E sector.

The GOI has been taken many key measures with the purpose of revitalizing the
financial system. The India Government has intended to set up a Rs.1000 crores debt
funds with partial assurance assistance for M.S.M.Es with extended the fulfillment
date in Goods and Services Tax and other laws for these sectors. It is also notable that
security free loans of 3,00,000 crores are to be given to SME sector firms.
Additionally, cutback in Cash Reserve Ratio by 100 base points thus adding liquidity
in banks and a 3 months freeze was permitted; furthermore, postponement in
imbursement during moratorium will not make the accounts N.P.A in the circular of
R.B.I.11 Although this declaration is probable to support M.S.M.Es in tackle financial
pressure, they cannot show to be in as much effectual because of low demand and
longer time to obtain monetary normalcy. Various measures have also been taken to
revitalize the strained M.S.M.Es in the protection of Reserve bank, M.S.M.E.D Act
and I.B.C.

MSMEs and I.B.C, 2016

The IBC is a complete legal framework giving a structure for resolution of insolvency
of corporate personals12, L.L.P13, individuals14, partnership and sole proprietorship
companies15 but, regulations are only informed for business and individual guarantor
to Corporate Debtor. The IBC does not give a different resolution processes for
M.S.M.E sector. As the majority of the SMEs are partnerships or proprietorships firm
the I.B.C regulations does not give them any assistance. They have to option to the
Insolvency Resolution Processes. Though, these firms have been eliminated from the

11
https://msme.gov.in/gallery/people/rbi-relief-measures
12
The IBC, 2016 Ss 2(a), (b), (d)
13
The IBC, 2016 Ss 2(c)
14
The IBC, 2016 Ss 2(g)
15
The IBC, 2016 Ss 2 (f)
inference imposed by sec.29A of IBC. Meaning thus, the promoter of the non-paying
M.S.M.Es are not disqualified in sec.29A to proposal for the company.

The other important characteristic that is being presently unnoticed is that small and
medium enterprises are not in all case the ‘Corporate Debtor’. Many insolvency cases
these M.S.M.Es act as the ‘Operational Creditor’. Sanctioning them the situation of
Operational creditors16 itself limits their involvement in the C.I.R.P.

16
The Insolvency and Bankruptcy Act, 2016, Ss 5(20, (21)
CHAPTER 3

AMENDMENTS MADE IN REGARD WITH MSME IN THE CODE

In an offer to promote entrepreneur to go into business and to support sustainable

development of the credit markets in India, there are certain suggestions in the IBC
2016. The suggestions M.S.M.Es are as follows17:

a) to except M.S.M.Es from claim of Sec.29A of IBC, since generally only

promoter of M.S.M.Es are liable to be concerned in attaining it,

b) to authorize the Govt. to let off the provision of IBC by way of an

announcement for a certain classes of firms, consisting for M.S.M.E as denoted
in Sec. 7 of the Act.

c) to give assistance to M.S.M.Es from the provisions of IBC by adding

Sec.240A in the Code, which specially exempts resolution claimants for
M.S.M.Es that are undertaking corporate insolvency resolution process from
every eligibility criterion stated in Sec.29A except the requisite that they must
not be categorized as willful defaulter. Additionally, to explain that provision
of IBC should pertain to M.S.M.Es in the altered forms as the Govt. might
inform regarding the Sec.240A. Moreover, provisions might be added to allow
the Govt. to, by means of an announcement, exempt some provision of I.B.C to
M.S.M.Es as denoted in this bill.

By identifying the necessity of the hour to assist M.S.M.Es in not giving way to the
rigor of the stern provision of the capital market, even the R.B.I on Restructuring of
Advance – M.S.M.Es, allowed a onetime restructuring of current credits to M.S.M.Es,
categorized as customary without downgrade their the assets categorization, given the
total funds and non-funds based contact to such borrowers don’t surpass Rs. 25 crore.

In addition, still the Supreme Court in “Swiss Ribbons Pvt. Ltd. vs. UOI”. 18 While
knowing the significance of inserting M.S.M.E friendly provision in IBC, found no
mistake in the exception of M.S.M.Es in Sec.29A. The Hon’ble Supreme Court further
identified the business of M.S.M.Es to magnetize interest from a supporter of a
M.S.M.Es and cannot be of attention to other resolution applicant. Consequently, if
M.S.M.E sector is not excused, then other resolution aspirants might not willing and it
would initiate a insolvency of the M.S.M.E rather than resolution.

The resolution aspirants for M.S.M.Es consisting the supporters of the M.S.M.Es can
now bids, although they have given assurances that have been raised by lender. The
17
Injeti Srinivas, 2018
18
\ Writ Petition (Civil) No. 99 of 2012
Amendments empower the Govt. to permit additional alterations regarding the
M.S.M.Es, if needed, in PIL. According to Amendments, no Promoters will be
ineligible in Sec.29A of IBC, to proposal for their firm undertaking C.I.R.P
given they are not a unruly nonpayer and doesn’t magnetize other ineligibilities not
based on non-payment as established in Sec.29A.19

In addition, in a latest judgments of Sarvana Global Holding Limited V. Bafana

Pharmaceutical Ltd.20, the N.C.L.A.T has scrutinized that the 'Committees of Creditor'
will judge the practicability, feasibility and other vital necessities as have been
identified by the panel. The intentions of the governing body reveals that the Promoter
of M.S.M.E must be pushed to reimburse the money with the approval of the
'Committees of Creditor' to recover under the defaulter and entrepreneurship by file
'Resolution Plans' which is feasible, realistic and fulfill other criterion as laid down by
the I&B Board. The amendments to distribute with the applications of Sec.29A of
IBC, Would currently allow the promoter of this M.S.M.E to proposal for their firm,
as the majority of M.S.M.Es are improbable to magnetize resolution aspirants
excluding their promoter, as exactly held by the SCI in the ruling of Swiss Ribbon
case. As a result, to evade insolvency of such M.S.M.Es, not only the promoter of
M.S.M.E has been permitted to tender for his own organizations although they had
become N.P.A but also any tender for M.S.M.Es who is otherwise ineligible owing to
its account being N.P.A can also tender for these M.S.M.Es.

Earlier position (Sec.29A)

The I&B Code has been sanctioned in 2016 to give an inclusive combining legislation
regarding Indian insolvencies and bankruptcies. The 2018 revisions to IBC Sec.29A
was added which fundamentally giving up provisos regarding persons who are not
qualified to propose resolution plans. Though, these recently added provisions arrived
in much inspection and analysis on the ground the Sec.29A has exceptionally
broadened the scope of ineligibility as long as considerably dropping the potential
resolution aspirants relating what can be labeled as general criterion for ineligibility
wherein it doesn’t distinguish among authentic applicants and one with antecedent.
The addition also rooted many problems for M.S.M.E sector firms since they were
more workers concentrated SMEs which couldn’t draw much concern from tenders
thus caused insolvency.

19
Harish Kumar, IBC: These 3 provisions can be potential threat to MSMEs unless government takes
this key step, Business Standard, Mar 25, 2020
20
Company Appeal (AT) (Insolvency) No. 203 of 2019, decided on 04.07.2019
Security Undermine in I.B.C

In IBC, M.S.M.Es are provided the position of “Operational creditor” and they could
summon Sec.9 and pull debtors to N.C.L.T by conveying an order on the happening of
a defaulting.21 However the problem which takes place is that there are any distinction
among M.S.M.Es and additional Operational Creditor. An operational creditor is
assured insolvency rate only but in truth, the resolution tactics in different N.C.L.Ts
recommend that scarcely any amounts are get back by Operational creditor. In
addition, there are a lot of other motives in related to which bias is being made to
M.S.M.Es in I&B Code.

Therefore, the bias is being made to Operational Creditor in different methods -

1. No say in Committees of Creditor-

Even if I.B.B.I has recognized the significance of taking in Operational Creditor in

CoC which grants the resolution plans of the corporate debtors but currently,
Committees of Creditor include only of Financial Creditor22, which abscond
Operational creditor beyond the involvement in resolution plans. The whole decisions
would be obtained by F.Cs only. C.o.C has the utmost accountability to grant the
resolution plans for revitalization of commercial debtors, related to viability and
practicability and present the same to Authority for final sanction and the same is
related to the doctrine of business insight of C.o.C.23

The distinction among the privileges of F.Cs and O.Cs have been validated by
Bankruptcy Committees by explaining that Operational creditor is usually
unconcerned in revitalization of enterprise, rather they are concerned about
insolvency.24 In addition, Sec.24(3) means that O.Cs may take part in CoC if the debts
be obliged to them surpasses ten percent. In spite of this, they don’t have voting right.
Although O.Cs are provided voting right in CoC, as they aren’t concerned in the firm
as a leaving apprehension, rather their objective is mere to get back outstanding
payments. In this case, they would often choose favoring of insolvency, which is
beside the interests of the business debtors. As a result, the complete revival of
M.S.M.Es in IBC will be rooted in caution of financial creditor who grants the
resolution plans.

2. Less priorities in waterfall mechanisms

21
S. 8, Insolvency & Bankruptcy Code, 2016.
22
S. 21(2), Insolvency & Bankruptcy Code, 2016.
23
K. Sashidhar v. Indian Overseas Bank & Ors., 2019 SCC OnLine SC 257.
24
https://ibbi.gov.in/BLRCReportVol1_04112015.pdf
Operational creditor is graded extremely less in the waterfall mechanisms given in
Sec.53 of IBC. In case of insolvency, the imbursements would be done to O.Cs after
the imbursement has been made to protected and unprotected creditor as his claim is
classified in “any existing debt and due”.25

In Essar Steel judgment SCI has declared that for the use of allocation of finances
beyond liquidation proceeding, right of monetary creditor would succeed over
Operational creditor.26

3. No proceeding for disputed debts -

Different from Operation Creditor, Financial Creditor may begin the proceeding for
disputed debts. Although, O.Cs can’t began the same if the debts are disputable by
corporate debtors. According to the decisions of Hon’ble SC in Mobilex Innovation
Pvt. Ltd., the Adjudicate Authorities seeks to the subsequent queries while concluding
applications in Sec.9 -

In the case of the operational debts are above Rs.1,00,000.

In the case of documentary evidences adduce by Operational Creditors demonstrates

the debts are due and the same haven’t been disbursed.

In the case of there are any clashes among individuals or any pendencyof suit or
arbitration proceeding before receipting of claim notices.27

In the case of some of the aspects are absent, N.C.L.T would discard the applications.
Therefore, if corporate debtors might showed that disputes subsisted before the
petitions are disclosed, the same can be discarded, as a result, it is not often essential
that petitions of operational creditors will be acknowledged.

The Hon’ble Court has also declared I.B.B.I Regulation, 2016 and Sec.30(2) by
seizing ‘impartial treatments of every class of creditor doesn’t make pay operational
creditor equivalent amount into C.I.R.P. The SCI also declared that the right of F.Cs
would succeed over the O.Cs in the fund allocation accepted from the liquidation
carries on due to the reality that F.Cs are the chief depositors for the corporate debtors.
In addition, it has been declared by SCI that I.B.C will be applied to carry corporate
debtors on their foot and it is not just revival legislation.28

M.S.M.E Facilitation Councils – Fast Settlements

25
S. 53, Insolvency & Bankruptcy Code, 2016.
26
2019 SCC OnLine SC 1478.
27
Civil Appeal No. 9405 of 2017 (Supreme Court, 21/09/2017).
28
Swiss Ribbons Private Limited v. Union of India, W.P. 99/2018 (Supreme Court, 25/01/2019).
M.S.M.E.D Act gives for mechanisms for delayed payment to M.S.M.E sector. This
Act consents the imbursement by purchaser for commodities distributed if there is a
contract to the similar. If there are no time fixations, disbursement has to be done; get
45 days for repay.29 By chance, purchaser fail to do disbursement as per the
provisions, purchaser would be accountable to give compound interests with monthly
relax to distributor at 3 times the bank rates informed by R.B.I.30

M.S.M.E.D Act gives for imbursement of principal money with interest for
postponement of above 45 days as in I.B.C, the legal safeguard has been restricted to
insolvency value only which is too less.

Mobiloxe Innovation Pvt. Ltd. vs. Kirusa Softwares Pvt. Ltd. (SC) 31

Sec.9(1) comprises the situations precedent for prompting IBC in so far as an OCs
are considered. The necessary constituents required to activate the IBC are-

a) Reason of defaulting;

b) Deliverance of an order of honorary operational debts or invoices insisting

imbursement of the amount included;

c) the truth that the OCs haven’t get imbursement from the corporate debtors in 10
days of receiving of the demand order or invoices insisting payments, or accepted
responses from the corporate debtors which don’t specify the survival of a pre-
existing clash or reimbursement of the voluntary operational debts. 32

Inoventive Industries Limited vs. I.C.I.C.I Bank 33

The distinction among Sec.7 and Sec.9 of IBC :

The plan of Sec.7 substitutes difference with the scheme in Sec.8 where OCs are, on
the incidence of defaulting, to first bring an order of the due to the operational
debtors in the way given in Sec.8(1) of IBC. In Sec.8(2), the corporate debtors may,
in 10 days of receipt of notices or invoices described in subsec.(1), convey to the
notices of the operational creditors the continuation of a clash or the record of the
pendency of a suit or negotiation and settlement processes, that is pre-existing – i.e.
before such notices or invoices was got by the corporate debtors. The survival of
these disputes, the OCs loopholes of the clutches of I.B.C.

29
S. 15, MSMED Act, 2006.
30
S. 16, The Micro, Small and Medium Enterprises Development Act, 2006.
31
Civil Appeal No. 9405 of 2017 decided on 21.9.2017
32
J K Budhiraja, 2016
33
Civil Appeal Nos. 8337-8338 of 2017 decided on August 31, 2017
Conversely, for corporate debtors who commit a defaulting of financial debts, the
adjudicating authorities have just to observe the documents of the information
efficacy or other evidences given by the financial creditors to please themselves that
defaults have happened. There is no issue that the debts are disputed providing the
debts are due. There is merely when this is verified to the approval of the arbitrating
authority that the adjudicating authorities can refuse a request and not or else.

SurendraTrading Co. vs. Jugilal Kamalapat Jute Mill Co. Ltd 34

In the case, the query of act enclosed in the N.C.L.A.T for its decisions were
whether the timing set for accepting or refusing an appeal for commencement of the
insolvencies resolution processes are compulsory. The exact query was whether, in
the provisions to Sec.9(5), the modification of deficiencies in a request in 7 days of
the receiving date of notices from the AA was a rigid and quick time boundary
which can never be modified. The N.C.L.A.T had held that the 7 days period was
revered and couldn’t be extensive, while, as much as the AA is apprehended, the
judgment to either accept or refuse the request in the time limit of 14 days was
detained to be listing. The judgment also lends support to the argument for the
appellant in that it is well settled that procedure is the handmaid of justice and a
procedural provision cannot be stretched and considered as mandatory, when it
causes serious general inconvenience.

Alchemist AssetReconstruction Co. Ltd. vs. M/s HotelGaudavan Pvt. Ltd. 35

A negotiation proceedings can’t be begin after obligation of moratorium and that that
the consequence of Sec.14(1)(a) is that the settlements that have been established
after the aforementioned moratorium is non est in legislation.

KS Rangaswamy v. SBI (N.C.L.A.T Chennai) 36

For the causes aforementioned, there aren’t persuaded to retard the impugned notice
dated 13.06.2017. Though, it was find out that the plaintiff has take appeal that the
‘Corporate Debtors’ is set to reimburse the whole money with 9 percentage interest
per annum in 12 equivalent monthly installment, it would be susceptible the
‘Financial Creditors’ to resolve the clash, if the ‘Resolution Applicants’ offers ‘less
amount’ and ‘extra time-bound’ than the ‘amount and time’ recommended by the

34
Civil Appeal No. 8400 of 2017 decided on September 19, 2017
35
Civil Appeal No. 16929 of 2017, decided on October 23, 2017
36
Company Appeal (AT) (Insolvency) No. 83 of 2017, Dated: 06/03/2018
Appellant. In this situation, it would be susceptible the individual to go before a
suitable forum to craft the resolution complete.”
CHAPTER 4. RESOLUTION UNDER THE CODE

The IBC needed that CIRP must be completed in time bound of 180days, it is
extended for 90 days, primarily scheduled had to equip in 270days for the resolution
after which insolvencies will be invoked. In, Bank of Baroda vs Rotomac Global
Private Limited37, it was detained that but there are no resolution plan within 180 days
of CIRP. As a result the insolvency of the corporate debtors were admitted.

In Sept. 2019 time limit was lengthened to 330 days with revision made sec.12 stated
that if the CIRP is not liquidated in 330days, it would move for insolvency. For
example in Essar Steel (I) Ltd. vs. Sateesh Kr. Gupta 38 case, the SCI strike off the
term compulsorily and detained that in the special instances, the period could be
extendable and the common rules of 330days as out of boundary continue.

CIR Processes are as follows

The C.I.R.P considered as a revival method for creditor. CIR Processes could be
began by a request to the N.C.L.T by the financial creditors in sec.7 of I.B.C2016 by
OCs in sec.9 of I.B.C, and by the corporate debtors themselves in sec.10 of I.B.C.
Stage #1: Applications to N.C.L.T
N.C.L.T reasons open statement to be prepared of the beginning of CIR processes
and calls for submission of claims by any other creditor.

37
203(IBC)12/2018
38
2019 SCC OnLine SC 1478
After received claim pursuant to open declaration, provisional Interim resolution
professionals constitute the creditor committees. Each financial creditor will be
ingredient of creditor committees and if anyFC is associated party of corporate
debtors, then this FC would not have any privilege of representation, involvement.
OCs must be part of Creditor Committees if their total outstanding payments are not
less than 10 percent of the debit.
Stage #2: Initiation of C.I.R.P; Interim’s Resolution Professionals take charge;
Moratorium set in

After the appointment of I.R.P, the I.R.P run the process of commercial as a setting
out apprehension upto 30days during which the IRP collects the claims from the
creditors and rooted in the same kinds committees of creditor, which then decide what
is to be made with the corporate debtors.
Stage #3: Role of IRP U/S16-20 of I.B.C,2016
Interim IP takes control of the debtor’s assets and company’s operations, collect
financial information of the debtor from information utilities.
In case of S.B.I financial creditor vs S.K.C Retail Limited 39, FC who is associate of
COCs, filed plea setting that C.O.C is not accountable to pay the fees of the I.R.P,
whereas appellate tribunal said that applicants who recommends the name of RP to
be appointed pay the expenditures, which is afterward paid back by the C.O.C.
Stage #4: Committee of creditor
Creditors’ committee shall meet first within seven days of its constitution and decide
by 75% of votes either to replace or confirm interim IP as Resolution Professional.
Thereupon, Resolution Professional is appointed by the NCLT upon confirmation by
the Board. The creditors’ committee, with a majority of 75% votes, can change
Resolution Professional any time.
The creditors’ committee has to then take decisions regarding insolvency resolution
by a 75% majority voting.
Once a resolution is passed, the creditors’ committee has to decide on the
restructuring process that could either be a revised repayment plan for the company,
or liquidation of the assets of the company. If no decision is made during the
resolution process, the debtor’s assets will be liquidated to repay the debt.
The resolution plan will be sent to NCLT for final approval, and implemented once
approved40.
39
Appeal No. 08 & 43 of 2018
40
http://www.lawyersclubindia.com/articles/The-Insolvency-and-Bankruptcy-Code-2016-Nutshell-
7307.asp
Stage #5 – Appointing of Resolution Professionals
The primary conference which requires to be held in 7days of constitution of C.O.C
as stated by sec.22 of the I.B.C, the 33 percent quorum should be needed to submit
at the initial convention and in same convention; C.O.C shall employ an individual
to role as the “Resolution Professionals”. According to sec.23, Resolution
Professionals requires conducting a conference and executing the process of
corporate debtors till sanction of resolution arrangement or appointing the liquidator
in C.I.R.P. Designing a Resolution Plan, the R.Ps makes Information Memorandums
will be presented to the prospective resolution applicant. Resolution Professional
also requires to demand for Resolution Plans/ Processes Memorandum which gives
how complete C.I.R. operations would functioned. In case of “Goa Auto Accessories
vs. Suresh Saluja” 41, it is held that it’s right of RP to acquire properties in the charge
of corporate debtors, its responsibility of RP to make and present the information
memorandum for sake of resolution applicants. RP is also needed to study resolution
procedures and plans, submit those arrangements before C.O.C and to propose the
resolution plans before the arbitrating authorities sanctioned by C.O.C. In the case of
SwissRibbon v. UOI 42, the SCI viewed that the resolution processes are only a
catalyst of C.I.R.P; He may perform only after sanction by COCs.

41
MA No. 130/2019NC.P. (IB)-3863/MB/2018
42
2019 SCC OnLine SC 73
Step 6: Approval of the Resolution Plan or liquidation

The commencement of liquidation process takes place on account of:

a) failure to submit the resolution plan to the NCLT within the prescribed period, or

b) rejection of resolution plan for non-compliance with the requirements of the Code,

c) or decision of creditors’ committee based on vote of majority, or

d) contravention of resolution plan by the debtor.

During liquidation, no suit or other proceedings shall be instituted by or against the

corporate debtor; except through the liquidator on behalf of corporate debtor with
permission of the NCLT.

Suspension of fresh IBC proceedings

Suspension of CIRP against the corporate debtor for any default arising on or after
25th March 2020 for a period of six months or such further period, not exceeding one
year. Further, the Resolution professional is also prohibited to file any application
under section 66(2) fraudulent trading or wrongful trading i.e. transactions which were
committed to defraud the operational creditors or the corporate debtor, and to identify
and hold liable such persons who were responsible for such fraudulent transactions, in
respect of such default arising on or after 25th March, 2020 for a period of six
months43.

43
Economic Times, Special insolvency resolution framework for MSMEs at advanced stage, July 26,
2020
CHAPTER 5. CONCLUSION AND RECOMMENDATIONS

The foreword of IBC in Indian constitution has been very acceptable. It has altered the
debtors – creditors association. The creditors no longer chase the debtors. Really, it is
or else. The execution of I&B Code its working pattern had disclosed the requirement
for improvement in the regulation and consequently modifications are done according
to the necessity. While the processes mature in the days to arrive, the insolvency rule
is anticipated to affect not only trouble-free of do businesses, but also on the whole
financial development.

This I&B Code considerably improve India’s capability to resolve liquidation

competently and in timely. In spite of legislative barriers that have significantly
postponed the initial cases as shades in the rule are resolved, IBC is put an end to the
dysfunctional association among commercial debtor and bidders who, with no
believable liquidation rule prepared, were forced to carry on to funds naughty debtor
indefinitely in the hope of finally get back their outstanding payments.

M.S.M.Es inhabit considerable and key situation in the financial system and
consequently, dues protection and formation of most M.S.M.Es will be persuaded.
Incentive must be allowed to small scale units as they are the base of Indian financial
system. In deliberation of every view the great way to support M.S.M.Es and give
them aid is to let off or unwind usability of some provision in the normal insolvency
processes. The latest processes in N.C.L.T, concerning Wig Associate case are making
an outlook of uncertainty as to the application of Sec.29A to the continuing processes.

The IBC might be at its primary steps of operations and there have previously been
many uncertainties in its execution because of the incessant modifications. The due
conservation of privileges for M.S.M.Es would motivate entrepreneur to go into and
maintain with their commerce by removing their panic of been focused by fake
populace, thus gaining the financial system. The foreword of Sec.29A hasn’t only
carried an alteration in the commercial insolvencies resolution processes however it
also brought in its awaken many characteristics having monetary effect. In the existing
financial situation the restricted assistance allowed to the M.S.M.Es in I.B.C regimes
are similar to Indian monetary policy to protect, preserve and promote
entrepreneurships in India.

The I.B.C 2016, an essential reform that would create it much easily to carry out
businesses in India. The I.B.C would initiate endorse M.S.M.E sector, accessibility of
credit, and stability the interest of every stakeholder by combining and revising the
rules concerning to restructuring and insolvency resolution of corporate individuals,
partnership companies and people and for maximisation of worth of property of these
people. This legal framework assures to make it trouble-free to finish falling
businesses and assist a speedy debt revival method in India.

Quick however cost-effective resolution in I.B.C is so far another feature the majority
of the small scale companies are concerning. To consider the quantity of debts, the
revival rates with the time taken to understand the amount, the rate acquired in revival
operations is a substantial variable for M.S.M.E sector companies to choose whether
to follow these debts through I.B.C method. In potential, facilitating provisions
permitting the M.S.M.Es to go for out-of-court resolutions might speak to such
concerns. Obviously, the R.B.I Reports about M.S.M.Es have also suggested that due
to lack of complexity on the element of M.S.M.Es, I.B.C must give for out-of-court
aid to small scale sector firms like arbitration, debt-counseling etc.

Therefore, a rapid analysis of I.B.C provisions in the background of M.S.M.Es

functioning will positively rationalize a different resolution rule for M.S.M.Es in I&B
Code in comparison with large organizations. Considerably, with the addition of
Sec.240A, the govt. might consider using this weapon, and speedy categorizing
appropriate areas, and providing particular guidance regarding the usability of
appropriate provisions to I.B.C to M.S.M.E sector.

.
BIBLIOGRAPHY

Ahlawat & Associates, Insight Into The Bankruptcy, Insolvency & Rehabilitation
Proceedings In India, International Lawyers Network, June 15, 2020
Akshaya Kamalnath, Corporate Insolvency Resolution Law in India – A Proposal to
Overcome the ‘Initiation Problem’, April 15, 2019
Clive Barnard, Kevin Pullen, Alexander Aitken and Soumya Rao, Overview Of And
Foreign Perspective On The Indian Insolvency And Bankruptcy Code 2016, India,
Asia Pacific Legal Briefings , 21 December 2016
Ravi, A. (2015). The Indian insolvency regime in practice: An analysis of insolvency
and debt recovery proceedings, IGIDR (WP-2015-027).
Ravi, Aparna (2015). \The Indian Insolvency Regime in Practice: An Analysis of
Insolvency and Debt Recovery Proceedings". In: Economic and Political Weekly.
Shivam Goel, The Insolvency and Bankruptcy Code, 2016: Problems & Challenges,
Imperial Journal of Interdisciplinary Research (IJIR) Vol-3, Issue-5, 2017
Zwieten, Kristin Van (2015). \Corporate Rescue in India: The Influence of the
Courts". In: Journal of Corporate Law Studies 1.
Paul Omar, International Insolvency Law: Themes and Perspectives, 2017
Ashish Pandey, The Indian Insolvency and Bankruptcy Bill: Sixty Years in the
Making, IMJ, 2014
Dipti Mehta, Insolvency and Bankruptcy laws – A look into the position of foreign
countries, Mehta & Mehta, March 29, 2017
Divesh Goyal,Time Limits under IBC are Mandatory - J.K. Jute MILLS VS. M/s
Surendra Trading Company. Corporate Blog, August 31, 2017
The Hindu, Parliament proceedings - Rajya Sabha passes IBC, mineral law Bills,
March 12, 2020
Harish Kumar, IBC: These 3 provisions can be potential threat to M.S.M.Es unless
government takes this key step, Business Standard, Mar 25, 2020
Dev Chatterjee & Avishek Rakshit , Banks' finances to improve by this year-end,
Business STandard, October 19, 2016
J K Budhiraja, Insolvency Resolution Process, Liquidation and Opportunities for
CMAs under IBC, 2016, The Management Accountant, December 2016
Economic Times, Special insolvency resolution framework for M.S.M.Es at advanced
stage, July 26, 2020

Websites
Akash Sharma, Critical Analysis on Insolvency and Bankruptcy Code, 2016,
https://taxguru.in/corporate-law/critical-analysis-insolvency-bankruptcy-code-
2016.html/
Ashish Makhija, Can CIRP be initiated against Societies with Limited Liability
incorporated under any Law?, November 12, 2019
https://www.linkedin.com/pulse/can-cirp-initiated-against-societies-limited-under-
any-ashish-makhija?articleId=6600051547026096128
Report of the high level committee on corporate social responsibility, 2018,
https://www.mca.gov.in/Ministry/pdf/CSRHLC_13092019.pdf
http://www.lawyersclubindia.com/articles/The-Insolvency-and-Bankruptcy-Code-
2016-Nutshell-7307.asp
https://msme.gov.in/sites/default/files/Annualrprt.pdf
https://msme.gov.in/gallery/people/rbi-relief-measures
https://ibclaw.in/short-note-on-insolvency-and-bankruptcy-code-2016/
https://ibbi.gov.in/BLRCReportVol1_04112015.pdf
Reports
Injeti Srinivas, Report of the Insolvency Law Committee, March 2018

ACTS
The Micro, Small and Medium Enterprises Development Act, 2006.
Limited Liability Partnership Act, 2008
Insolvency & Bankruptcy Code 2016
Companies Act, 2013