Background:
On 24 July 2020, the National Company Law Appellate Tribunal (NCLAT), in its decision in GRIDCO Limited v Surya Kanta Sathapathy and Others [C.A. (AT) (Insolvency) 1271 of 2019] (GRIDCO judgement), held that the termination of a Power Purchase Agreement (PPA) during the subsistence of a moratorium would be in violation of Section 14(1) of the Insolvency and Bankruptcy Code 2016 (IBC). FACTUAL BACKGROUND |
The passage and the working of the Insolvency and Bankruptcy Code, 2016 (Code) is an important landmark in India’s tryst with insolvency and debt restructuring laws. Further, the interpretation provided by the courts, from holding that the Code is not a means for recovery of dues to reinforcing the primacy and commercial wisdom of the committee of creditors, along with appropriate and timely amendments by the legislature in line with the object of the Code has certainly aided in the successful implementation of the Code.
Court closures
India was in complete lockdown from 24 March until 31 May, a situation that inevitably impacted the functioning of Indian courts. Even though most implemented measures to conduct virtual hearings, these hearings have been limited to only the most urgent cases. Once courts return to business as usual, they are likely to receive a surge in filings, which will increase the backlog in a country that already has 30 million pending cases.
Does an arbitration agreement protect a
debtor from the threat of liquidation?
27 July 2020
UPDATED 3 AUGUST 2020
Updates marked with *
Updated: Ireland, Israel
We take a look at some of the recent emergency legislation and measures implemented by various nations around the world in response to COVID-19. As this is a rapidly developing crisis, please ensure you keep a close eye on the Lexology Coronavirus hub page for the most up-to-date information.
In several Commonwealth jurisdictions, the corporate legislation allows creditors to petition a court to order the winding up of a debtor in circumstances where that debtor is unable to pay its debts as they fall due. Such legislation generally presumes that the debtor is insolvent if it has failed to comply with a statutory notice requiring the debtor to pay a certain debt within a given period of time (a statutory demand).
In an interesting case of intersection of insolvency and copyright laws, the Delhi High Court has held that the suit for alleged infringement of copyrights, arising out of and/or is in relation to the insolvency resolution plan of a corporate debtor must be adjudicated by the NCLT and that the proceedings in the Civil Court are barred. The suit was dismissed as not maintainable before the High Court in view of Sections 230 and 231 read with Section 60(5) of the Insolvency and Bankruptcy Code, 2016.
As per Section 60 (5) (c) of the Insolvency and Bankruptcy Code (IBC), the jurisdiction of matters, inter alia, pertaining to Intellectual Property infringement by a corporate debtor is vested with the National Company Law Tribunal (NCLT) which is empowered by the IBC to entertain and dispose off any question of priorities or any question of law or fact, arising out of or concerning the insolvency resolution for liquidation proceedings.
On 5 June 2020, the Government of India issued an ordinance (The Insolvency and Bankruptcy Amendment (Ordinance), 2020 (the Ordinance)) to amend the Insolvency and Bankruptcy Code, 2016 (the Insolvency Code). This follows on from the Finance Minister’s press conferen