The legal framework w.r.t. law of insolvency in India has seen considerable progress since the introduction of Insolvency and Bankruptcy Code, 2016 (“IBC”). The Legislature, taking cue from various judgments passed by the courts and the grey areas identified during the implementation of the provisions of IBC, introduced various amendments from time to time. However, notwithstanding such amendments, various legal questions involving interpretation and implementation of provisions of IBC keep arising posing challenges before the Courts to resolve the same.
The National Company Law Appellate Tribunal (New Delhi Bench) (“NCLAT”) in two recent judgments passed in Raiyan Hotels and Resorts Pvt. Ltd. vs. Unrivalled Projects Pvt. Ltd. [Company Appeal (AT) (Insolvency) No. 1071 of 2023] and Aryan Mining & Trading Corpn Pvt. Ltd. vs Kail limited and Anr. [Company Appeal (AT) (Insolvency) No.
INTRODUCTION:
The Insolvency and Bankruptcy Code, 2016 (“IBC”) being a relatively new legislation, has witnessed inconsistent interpretation of its various provisions, especially in respect of certain legal issues, which are grey areas i.e. the issues which are not specifically dealt with under the existing provisions of IBC. One of such interesting legal issue is effect of breach of settlement agreements, entered into between two parties, where one party promises to pay a certain amount to the other party.
Introduction:
In a recent judgment, the Supreme Court of India, while keeping up the efforts of plugging various loopholes in Insolvency & Bankruptcy Code, 2016 (“Code”), decided an interesting legal issue relating to the scope of Section 5(20) of the Code, which provides the definition of “operational creditor”.
The Apex Court, in the case of Consolidated Construction Consortium Limited vs. Hitro Energy Solutions Private Limited, was seized of the following legal questions:
INTRODUCTION:
The Supreme Court in a recent judgment of Indus Biotech Pvt. Ltd. vs. Kotak India Venture (Offshore) Fund [AIR 2021 SC 1638] has settled an important question of law: ‘whetheran application filed under Section 8 of Arbitration & Conciliation Act, 1996 (‘A&C Act’) can be said to be maintainable in a proceeding initiated under Insolvency and Bankruptcy Code, 2016 (‘IBC’)’.
INTRODUCTION:
INTRODUCTION:
The Insolvency and Bankruptcy Code, 2016 (‘Code’) was enacted by the Parliament with the aim to provide and revamp the framework for insolvency resolution in India in a time bound manner and for the promotion of entrepreneurship, credit availability and balancing of different interests of each and every stakeholder of a Company.
近年来，我国宏观经济增长放缓，国家调整产业和信贷政策，并逐渐加强金融监管，商业银行的资产质量压力有所增加，十亿甚至百亿级别的债务逾期或潜在违约浮出水面。这些巨无霸级别的潜在不良贷款风险，迫切要求商业银行审查并改善贷前贷后管理中的遗漏和问题，也对商业银行的危机处理能力提出了更高的挑战。
大敌当前，痛定思痛，当危机来临时，商业银行的管理层和执行层需要的是冷静的思考、周密的策划，以及必要时刻壮士断腕的决策力。从本团队近期参与处理的几项复杂的债务逾期及潜在违约案例来看，危机的表象多种多样，除了资金周转困难带来直接的偿付危机；有的则是债务人控制人挪用公司资金投入股市炒股，有的是公司实际控制人陷入刑事调查和指控，也有的则更为隐蔽，债务人关联主体在境外受到他国政府的调查等等。这些危机虽然不一定直接表现为到期不付，但可能已经导致债务人违反融资文件的陈述、承诺条款，甚至通过交叉违约触发了违约事件或潜在违约事件。
本文旨在梳理危机处理的思路，通盘策划全面追索资产的策略，为贷款管理工作层面制定一份简介易行的“工作方案”，以便为后续的债务重组和清偿争取宝贵的时间，避免弯路：
一、梳理融资文件
As the Chinese economy enters the “new normal”, the Chinese government has been adjusting its industrial and credit-related policies and strengthening regulation of Chinese financial institutions. A large number of non-performing loans (NPLs) as well as actual loan defaults have started to surface. The risks associated with rising levels of NPLs require Chinese banks to enhance their ex ante and ex post credit risk management practices.