Employees as Operational Creditor

The Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as “Code”) considers all employees and workmen as operational creditors.

Operational Creditor is defined under Section 5 (20) of the IB Code as:

"Operational creditor"means a person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred;”

TIME LIMIT FOR RECTIFICATION AND ADMISSION IS DIRECTORY 

It is pertinent to note that Section 9 (5) of Insolvency and Bankruptcy Code, 2016 provides the time limit for admission and rejection of the application and also the time limit for rectification of the defect in the application:

SECTION 9(5)

“Section 9 (5) – The Adjudicating Authority shall, within fourteen days of the receipt of the application under sub-section (2), by an order—

Companies undergoing corporate insolvency resolution process tend to be in dire need of funds to meet their working capital expenses. Interim finance can be an important tool for effective reorganization so as to prevent liquidation.

The Insolvency and Bankruptcy Board of India has amended the Insolvency and Bankruptcy Board of India (Fast Track Insolvency Resolution Process for Corporate Persons) Regulations, 2017 with effect from February 7, 2018, and has brought into force the Insolvency and Bankruptcy Board of India (Fast Track Insolvency Resolution Process for Corporate Persons) Regulations, 2018[1]. The salient features of the new regulations have been discussed hereunder.

Appointment of registered valuers

Enforced with the objective of time-bound insolvency resolution and maximization of assets, the Insolvency Bankruptcy Code, 2016 (hereinafter referred to as “IBC”), in order to facilitate the process of insolvency resolution, has provision for appointment of an insolvency resolution professional (hereinafter referred to as “IRP”).

It is known that I & B Code came into effect from 01.12.2016.  Subsequently, it perspired during various proceedings in NCLT that it has no specific provision for limitation period and/or categorical applicability of Limitation Act on initiation of insolvency process under the Act.

However, the limitation period is prescribed under the Limitation Act for every suit instituted, appeal preferred, and application made under the law.

As per Section 5(14) of the IB Code "Insolvency Resolution Process Period" is 180 days.

“Period of one hundred and eighty days beginning from the insolvency commencement date and ending on one hundred and eightieth day;”

COMPLETION OF INSOLVENCY RESOLUTION PROCESS - It must be noted that Section 12 of the IB Code prescribes the time limit for completion of Insolvency Resolution process.

National Company Law Appellate Tribunal has held that ‘Moratorium’ under Section 14 of the Insolvency and Bankruptcy Code will not only be applicable to the property of the ‘Corporate Debtor’ but also on its ‘Personal Guarantor’.

Brief Facts:

Background:

The Hon’ble Calcutta High Court on February 2, 2018, upheld the validity of Section 7, 8 and 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred as ‘IBC 2016’ or ‘the Code’) in the case of Akshay Jhunjhunwala & anr. v. Union of India[1].