IBC Ordinance: Snapshot of Some Key Changes

THEORDINANCE EFFECT:
SomeKEYCHANGES
INSOLVENCY AND BANKRUPTCY CODE, 2016
- A Quick Snapshot
June 7, 2018

Introduction
The Insolvency and Bankruptcy Code, 2016 (“Code”) is
one of the most significant economic legislations in India
in recent times which has introduced sweeping changes
to the insolvency law regime. Being at a nascent stage,
the Code has had ‘teething problems’. Various issues are
being litigated before the different benches of the
National Company Law Tribunal (“NCLT”), National
Company Law Appellate Tribunal (“NCLAT”) as well as
before the Supreme Court. These matters have led to
delays in various corporate insolvency resolution
processes (“CIRP”). Seeking to address the issues that
have cropped up, the Government of India has issued the
Insolvency and Bankruptcy Code (Amendment)
Ordinance, 2018 (“Ordinance”) to amend the Code. The
Ordinance received the President’s assent and was
published on June 6, 2018.
This note provides a snapshot of some of the key
changes which have been made to the Code pursuant
to the Ordinance. A detailed note on all the changes
introduced in the Code shall be circulated separately.
It has been our endeavour to keep our clients updated of
the latest legal developments and we hope that this
update will prove to be handy for anyone keen to
understand and traverse the regulatory regime in India
and be apprised of the latest legal developments. We will
be happy to hear your feedback on this update and help
you with any further information that you may require.
Feel free to send us an email at
argusknowledgecentre@argus-p.com.

For Private Circulation
1
1. Home-buyers to be treated as Financial
Creditors; Can vote in CoC meetings;
On liquidation, will be at a higher
position in the distribution waterfall
Home-buyers (allottees) from whom amounts have been raised
under a real estate project would now be considered as financial
creditors and the amounts raised from the allottees are now
deemed to be a financial debt.
As financial creditors, some of the benefits which home buyers
would enjoy are as follows:
§ right to file an application for initiation of an insolvency
resolution process against the developer;
§ right to participate and vote at meetings of committee of
creditors (“CoC”) and thereby being part of the decision
making process for approving or rejecting a resolution plan
and for other matters which require CoC’s approval;
§ entitled to receive at least the liquidation value due to them
under a CIRP; and
§ in case of a liquidation, right to receive distribution proceeds
(if any remaining) before payment of Government dues,
operational unsecured creditors and shareholders.
The manner in which home-buyers will be represented in meetings of
CoC is expected to be detailed in the IBBI (Insolvency Resolution
Process for Corporate Persons) Regulations, 2016 (“CIRP
Regulations”). The Ordinance indicates that an insolvency
professional may be separately appointed by NCLT for a class of
creditors to act as their authorised representative.
2. Withdrawal of application for initiation
of CIRP only before EoI; Late bids not
allowed; Mandatory timelines
NCLT can allow withdrawal of an application which was admitted
for initiation of a CIRP, if 90% (ninety percent) of the voting share
of the CoC approve the same. Though under the existing rules,
NCLT could permit withdrawal of the application for initiation of CIRP
before the same gets admitted, there was no provision expressly
allowing withdrawal after admission.
The manner in which withdrawal will be permitted would be
prescribed. Hence, one would have wait for the rules and
regulations which would be promulgated in this regard. An
indication of the same can be found in the press release issued by
the Government at the time of promulgation of the Ordinance. The
press release states that such withdrawal will only be permissible
before publication of notice inviting expressions of interest (“EoI”).
In other words, there can be no withdrawal once the commercial
process of EoIs and bids commences. Separately, the press
release states that the regulations will bring in further clarity by
laying down mandatory timelines, processes and procedures for
CIRP. Some of the specific issues that would be addressed
include non-entertainment of late bids, no negotiation with the late
bidders and a well laid down procedure for maximizing value of
assets. Pursuant to the Ordinance, the Central Government has
been given the power to issue rules for the manner of withdrawal
of an application.

2
3. Moratorium not applicable to a
guarantor
Once a CIRP commences in respect of a corporate debtor, a
moratorium is declared, inter alia, prohibiting any enforcement of
security.
The issue of whether a moratorium which is declared in respect of
a corporate debtor would also apply to a guarantor, has been the
subject of litigation. There has been a divergence of views in this
regard between the various benches of the NCLTs. NCLAT has
held that the moratorium would apply to the assets of a personal
guarantor. The matter is now before the Supreme Court.
Pursuant to the Ordinance, the provision of moratorium would not
apply to a guarantor.
4. Threshold for approving resolution
plan by CoC reduced from 75% to 66%
Pursuant to the Ordinance, a resolution plan now requires the
approval of 66% (sixty six percent) of the voting share of financial
creditors instead of the earlier requirement of 75% (seventy five
percent).
Also, routine decisions can be taken by the CoC by a 51% (fifty
one percent) majority vote instead of the earlier requirement of
75% (seventy five percent).
5. Resolution Professional responsible
for compliance of all laws
Under the Code, once a CIRP commences against a corporate debtor
and an interim resolution professional is appointed, the powers of the
board of directors (“Board”) of the corporate debtor stand
suspended and such powers are exercised by the resolution
professional. The management of the affairs of the corporate debtor
vests in the resolution professional. The Ordinance provides that the
resolution professional shall be responsible for complying with the
requirements of all laws on behalf of the corporate debtor.
6. Resolution Professional to continue till
receipt of NCLT’s approval even if 270
days (CIRP Period) has expired
Under the Code, the resolution professional is required to manage
the operations of the corporate debtor during the corporate insolvency
resolution process period (“CIRP Period”). ‘Insolvency resolution
process period’ has been defined as a period of 180 (one hundred
eighty) days commencing from the insolvency commencement date.
This period can be extended by a further period of 90 (ninety) days.
However, there have been cases where a resolution plan has been
approved by the CoC within the CIRP Period and the plan has been
submitted to NCLT for its approval before the expiry of the CIRP
Period. However, approval of NCLT was not received prior to the
expiry of the CIRP Period, but was received after the expiry of such
period. In these cases, the issue that arose was whether the Board
stays suspended and the resolution professional continues after
expiry of the CIRP Period if approval of NCLT is not received before
the expiry of such period. The Ordinance brings about a much needed
clarity in this respect. The Ordinance states that if a resolution plan
has been submitted to NCLT for its approval, then the resolution
professional will continue to manage the operations of the corporate

3
debtor even after the expiry of the CIRP Period until approval of the
resolution plan by NCLT.
7. Disqualification on the ground of
conviction has been limited
Section 29A(d) of the Code disqualified a person from submitting
a resolution plan if the person or its connected person or any
person acting jointly or in concert with such person had been
convicted for any offence punishable with imprisonment for 2 (two)
years or more. The said criteria was quite sweeping in as much as
any conviction under any law and in any country would get
covered. The Ordinance has amended the said provision.
Henceforth, a person will be disqualified from submitting a
resolution plan if the person has been convicted for an offence
punishable with imprisonment for 2 (two) years or more only under
specified laws which have been listed in a schedule to the Code.
The legislations listed in the schedule are mainly laws in India
relating to tax, foreign exchange, securities market, environment
protection, black money, corruption, benami property, competition
law, companies law and insolvency law. In respect of other laws,
a person will be disqualified from submitting a resolution plan if the
person has been convicted for an offence punishable with
imprisonment for 7 (seven) years or more. After the expiry of a
period of 2 (two) years from the date of his release from
imprisonment, the aforesaid disqualification will not apply.
8. Limitation Act to apply to proceedings
or appeals before NCLT and NCLAT
The issue of whether the Limitation Act, 1963 (“Limitation Act”)
would be applicable to proceedings before NCLT and NCLAT has
been hugely debated and have been the subject of divergent
views of different benches of the NCLT and NCLAT.
The issue arose due to applications being made by creditors
before NCLT for claims which would otherwise be time-barred
under the Limitation Act. The Ordinance brings about a much-
needed clarity in this regard by stating that the Limitation Act
would apply to proceedings or appeals before the NCLT, NCLAT,
the Debt Recovery Tribunal and the Debt Recovery Appellate
Tribunal.
9. Consent of shareholders not required
Often a resolution plan provides for matters which would ordinarily
require consent of shareholders under the Companies Act, 2013
or regulations framed by the Securities and Exchange Board of
India or under articles of association or pursuant to a shareholders
agreement. These matters could relate to issuance of new shares,
mergers, capital reduction, buy-back etc. The issue that arose was
whether approval of shareholders would also be separately
required for such matters. It was argued that since section 31 of
the IBC provides that once a resolution plan is approved by NCLT, it
will be binding on the shareholders of the corporate debtor, no
separate approval of the shareholders would be required.
Further regulation 39(6) of the CIRP Regulations provides that a
provision in a resolution plan which would otherwise require the
consent of the members of the corporate debtor under the terms of
the constitutional documents, shareholders’ agreement, or other
document of a similar nature, would take effect notwithstanding that
such consent has not been obtained. However, the said regulation
does not mention about the requirement of consent of shareholders
under specific laws.
To address the issue, the Ministry of Corporate Affairs issued a
circular (General Circular No. IBC/01/2017) dated October 25, 2017

4
(“MCA Circular”) clarifying that approval of shareholders of the
corporate debtor for a particular action required in the resolution plan
which would have been required under the Companies Act, 2013 or
any other law, if the plan was not being considered under the Code
will be deemed to have been given on its approval by NCLT. Though
the MCA Circular clarified the issue, considering that it was a circular
and a similar provision was not present in the Code, there was an
ambiguity as to whether consent of shareholders should also be taken
if required under other laws.
The Ordinance has cleared the air on this issue. If any approval of
shareholders is required under the Companies Act, 2013 or any other
law, for the implementation of actions under the resolution plan, then
such approval will be deemed to have been given.
10.Resolution applicant required to obtain
necessary approvals pursuant to the
resolution plan approved by NCLT
The Ordinance provides that after approval of a resolution plan by
NCLT, the resolution applicant shall obtain the necessary
approvals required under any law within 1 (one) year from the date
of approval or within such period as provided for in such law,
whichever is later. The amendment is a significant one as it allows
a resolution applicant more time to obtain approvals under other
laws even if the other law prescribes a time period of less than 1
(one) year. The amendment also indicates that if an approval is
required from another authority for any matter provided for in the
resolution plan, then such approval would have to be obtained,
and NCLT may not be a single window clearance mechanism for
obtaining approvals under all laws.
11.Disqualification under section 29A
regarding NPAs not applicable to a
financial entity
Section 29A(c) of the Code disqualifies a person from submitting
a resolution plan for the insolvency resolution of a corporate
debtor undergoing a CIRP, if such person has, at the time of
submission of a resolution plan, an account or has an account of
a corporate debtor which is under its management and control, or
is a promoter of such a company, which is classified as a non-
performing asset (“NPA”). Pursuant to the Ordinance, pure play
financial entities have been exempted from this provision. For
example, if a financial entity acquires a significant stake in a
company pursuant to conversion of its loan, and such company is
classified as an NPA, then the financial entity will not be
disqualified to submit a resolution plan.
Notably, in order to be considered a ‘financial entity’ for availing
the benefit of the above exemption, an entity has to fall within the
following categories and should meet such criteria which the
Government would notify:
a. a scheduled bank;
b. any entity regulated by a foreign central bank or a securities
market regulator of a jurisdiction outside India which
jurisdiction is compliant with the Financial Action Task Force
Standards and is a signatory to the International Organization
of Securities Commissions Multilateral Memorandum of
Understanding;

5
c. any investment vehicle, registered foreign institutional
investor, registered foreign portfolio investor or a foreign
venture capital investor1
;
d. an asset reconstruction company;
e. an alternate investment fund registered with the Securities and
Exchange Board of India; and
f. such categories of persons as may be notified by the Central
Government.
Apart from the above relaxation, financial creditors regulated by a
financial sector regulator, who become a related party of a
corporate debtor solely on account of conversion or substitution of
debt into equity shares prior to the insolvency commencement
date will no longer be barred from being a member of a CoC and
vote at meetings of the CoC.
12.Disqualification under section 29A not
to apply to MSMEs
Section 29A was introduced in the Code pursuant to an ordinance
in November 23, 2017. Notably, as discussed above, under sub-
section (c), a person is disqualified to submit a resolution plan if the
person or any other person acting jointly or in concert with such
person, has an account which is classified as an NPA or if such
person is a promoter or in management or control of a corporate
debtor whose account has been classified as an NPA and 1 (one)
year has lapsed from the date of classification till the date of
commencement of the CIRP of the corporate debtor. However, such
persons can submit a resolution plan if they make payment within
such period decided by the COC (not exceeding 30 days) of all
overdue amounts with interest thereon and charges relating to NPA
1 The terms shall have the meaning assigned to them in regulation 2 of the Foreign
Exchange Management (Transfer or Isse of Security by a Person Resident Outside
India) Regulations, 2017 made under the Foreign Exchange Management Act, 1999
accounts before submission of resolution plan. Also, under sub-
section (h) of section 29A, a person is disqualified if the person has
executed a guarantee in favour of a creditor in respect of a corporate
debtor against whom an application for insolvency resolution made
by such creditor has been admitted under the Code and such
guarantee has been invoked by the creditor and remains unpaid.
Thus, existing promoters of defaulting companies undergoing a CIRP
were effectively kept out of the process and they could not bid for the
companies. However, it has been seen that in case of small and
medium enterprises, it is usually only the promoters who would be
interested in acquiring the company. Also, keeping promoters of such
companies out of the process could impede a proper price discovery.
Hence, pursuant to the amendment to the Code vide the Ordinance,
the disqualification criteria in sub-sections (a) and (h) of section 29A
of the Code would not apply in respect of a CIRP of any micro, small
and medium enterprises (“MSME”) as defined in the Micro, Small and
Medium Enterprises Development Act, 2006. Wilful defaulters would
still be disqualified.
However, it is pertinent to note that the way MSMEs are defined under
the Micro, Small and Medium Enterprises Development Act, 2006,
only a limited number of companies would be covered under the
above exemption. For example in the manufacturing sector, a
medium enterprises would be one where the investment in plant and
machinery is not more than Rs. 10 crores.

6
13.Disqualification under section 29A not
to apply if it is because of acquiring a
corporate debtor undergoing CIRP
Section 29A of the Code, as discussed above, contains various
disqualification criteria. One criteria is that an applicant cannot have
an NPA account. Another criteria is that an applicant should not be a
promoter of a company or be in the management or control of a
corporate debtor in which a preferential transaction, undervalued
transaction, extortionate credit transaction or fraudulent transaction
has taken place. However, there could be an instance where a person
acquires a corporate debtor under a resolution plan approved by
NCLT. In such instance, the acquirer could get disqualified under
section 29A of the Code because the corporate debtor acquired by
the acquirer would satisfy the criteria, though the acquirer acquired
the company pursuant to a resolution plan approved by NCLT.
The Ordinance seeks to relax the disqualification criteria for such
persons under section 29A of the Code.
The Ordinance provides that if a person has an account, or is in the
management or control of a corporate debtor whose account is, or is
a promoter of a person whose account is, classified as an NPA, and
such account was acquired pursuant to a prior resolution plan
approved under the Code, then the person can still submit a
resolution plan if it is within a period of 3 (three) years from the date
of approval of such resolution plan by NCLT. Also, if a preferential
transaction, undervalued transaction, extortionate credit transaction
or fraudulent transaction has taken place prior to the acquisition of a
corporate debtor by the applicant pursuant to a resolution plan
approved under the Code or pursuant to a scheme or plan approved
by a financial sector regulator or a court, and the applicant has not
otherwise contributed to such transactions, then the disqualification
pertaining to such transactions would not apply.
This note has been contributed by Adity Chaudhury (Partner).
DISCLAIMER
This document is merely for informational purposes. This
document should not be construed as a legal opinion. No
person should rely on the contents of this document
without first obtaining advice from a qualified professional
person. This document is contributed on the
understanding that the Firm, its employees and
consultants are not responsible for the results of any
actions taken on the basis of information in this document,
or for any error in or omission from this document. Further,
the Firm, its employees and consultants, expressly
disclaim all and any liability and responsibility to any
person who reads this document in respect of anything,
and of the consequences of anything, done or omitted to
be done by such person in reliance, whether wholly or
partially, upon the whole or any part of the content of this
document. Without limiting the generality of the above, no
author, consultant or the Firm shall have any responsibility
for any act or omission of any other author, consultant or
the Firm. This document does not and is not intended to
constitute solicitation, invitation, advertisement or
inducement of any sort whatsoever from us or any of our
members to solicit any work, in any manner, whether
directly or indirectly.
You can send us your comments at:
argusknowledgecentre@argus-p.com
MUMBAI I DELHI I BENGALURU I KOLKATA
www.argus-p.com

IBC Ordinance: Snapshot of Some Key Changes

More Related Content

What's hot (20)

Similar to IBC Ordinance: Snapshot of Some Key Changes (20)

More from Shruti Jadhav (12)

Recently uploaded (20)

IBC Ordinance: Snapshot of Some Key Changes