The amended regulations are laudatory steps which will help to maximise recoveries for creditors since the amendments will lead to concluding the liquidation process in a time bound manner.

In the previous quarter, the Supreme Court pronounced important judgements on the admission of insolvency applications filed by financial creditors and the validity of resolution plans not providing for payment of statutory dues to government authorities. In arbitration law, the Supreme Court clarified the scope of the court’s power to grant interim measures under Section 9 of the Arbitration and Conciliation Act, 1996, and assess the arbitrability of a dispute in an application filed for appointment of the arbitrator.

Between the lines... For Private Circulation-Educational & Information purpose only Vaish Associates Advocates… Distinct. By Experience. I. Supreme Court: The actual gain or loss is immaterial, but the motive for making a gain is essential. The Supreme Court (“SC”) has, in its judgment dated September 19, 2022, in the case of Securities and Exchange Board of India v. Abhijit Rajan [Civil Appeal No. 563 of 2020], held that in deciding cases pertaining to insider trading, the actual gain or loss is immaterial, but the motive for making a gain is essential.

Insolvency Proceedings are commenced upon bankruptcy of a debtor. In simple terms, bankruptcy is inability of a corporate debtor to pay back its creditors. Insolvency and Bankruptcy Code, 2016 (“IBC”) governs insolvency proceedings in India. A corporate insolvency resolution process (“CIRP”) is a recovery mechanism for the creditors of the corporate debtor and the CIRP can be initiated under Section 7 & Section 9 of the IBC.

The Reserve Bank of India (“RBI”) has amended the regulatory framework (“Framework”) for asset reconstruction companies (“ARCs”) on October 11, 2022. Since inception, ARCs have grown in number and size, however their potential for resolving stressed assets is yet to be realised. Accordingly, based on the recommendation of a committee, RBI has reviewed the existing regulatory regime applicable to ARCs and put forth the Framework.

In an insolvency of a company under Insolvency and Bankruptcy Code, 2016 (IBC), prospective bidders place bids for purchase of the insolvent company. Before placing such bids, prospective bidders are expected to deep dive into the financial position of the company and arrive at a proposed value for purchasing the company.

The Insolvency and Bankruptcy Board of India (“IBBI”) notified the IBBI (Insolvency Resolution Process for Corporate Persons) (Fourth Amendment) Regulations, 2022 on September 16, 2022 (“Fourth Amendment”) and the IBBI (Insolvency Resolution Process for Corporate Persons) (Fifth Amendment) Regulations, 2022 on September 20, 2022 (“Fifth Amendment”). The Fourth Amendment and the Fifth Amendment are collectively referred to as the “Amendments”). We have summarised the Amendments below.

Recently on August 28, 2022, a three-judge bench of the Supreme Court of India delivered a judgement in R.K. Industries (Unit-II) LLP vs. H.R. Commercials Private Limited and Others[1], interpreting the provisions of IBC concerning the powers of the liquidator vis-à-vis mode of sale of assets by the liquidator.

Under the Insolvency and Bankruptcy Code, 2016 (Code), the resolution professional or the interim resolution professional (collectively referred as RP) is vested with the responsibility of running the business of the corporate debtor as a going concern and conducting the corporate insolvency resolution process (CIRP). The RP must also ensure that CIRP is conducted in a time-bound manner and the value of the assets of the corporate debtor is maximised during the process.

In the recent decision of Somesh Choudhary v. Knight Riders Sports Private Limited & Ors., the National Company Law Appellate Tribunal (“NCLAT”), New Delhi has held that claims arising from the grant of an exclusive right and license to use intellectual property rights falls within the definition of “operational debt” under Section 5(21) of Insolvency and Bankruptcy Code, 2016 (“IBC”).

Background Facts