Introduction

The Insolvency and Bankruptcy Board of India (IBBI) has released a discussion paper aimed at gathering feedback on specific challenges within the Corporate Insolvency Resolution Process (CIRP). In this discussion paper, IBBI has suggested amendments to the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (CIRP Regulations) with a view to address the identified challenges and enhance the effectiveness and efficiency of the CIRP. Set out below is a summary of some of the proposed key amendments:

The Insolvency and Bankruptcy Code (Code) provides the right to a financial creditor to make an application to the National Company Law Tribunal (NCLT) for initiation of corporate insolvency resolution process (CIRP) against a corporate debtor in the event the debtor fails to repay its debt owed to the creditor. The Code as well as precedents developed by insolvency courts have consistently held that the test for admission of an insolvency application of a financial creditor is twofold, existence of a debt and default on that debt.

The Supreme Court (“SC”) in the case of M. K. Rajagopalan v. Dr. Periasamy Palani Gounder & Anr., has held that, while commercial wisdom of the Committee of Creditors (“CoC”) must be respected, certain factors having a material bearing on the process of approval of the resolution plan should also be borne in mind.

The Supreme Court of India, in its recent judgment passed in the case of M. Suresh Kumar Reddy v Canara Bank and Ors., has held that the existence of a financial debt and proof of default on the part of Corporate Debtor are the only factors to be considered by the Adjudicating Authority to admit an Application filed under Section 7 of the Insolvency and Bankruptcy Code, 2016 (“Code”).

May, 2023 For Private Circulation - Educational & Informational Purpose Only A BRIEFING ON LEGAL MATTERS OF CURRENT INTEREST KEY HIGHLIGHTS * Supreme Court: Directors cannot escape penal liability in cheque dishonoring cases by citing company's dissolution. ⁎ Bombay High Court: A share purchase agreement containing option to sell the shares does not amount to derivative contract, thereby does not violate provisions of SCRA. * NCLAT: Fraud for the purpose of Section 66 of the IBC includes a debt where the debtor has no intention to repay.

The original version of this article was first published in the Trilegal Quarterly Roundup.

These FAQs delve into some key aspects that prospective resolution applicants must consider while devising a robust resolution plan for a corporate debtor.​

Introduction

Recently, the Supreme Court, in the case of Gaurav Agarwal vs CA Devang P. Sampat, has issued notice to the parties for adjudicating the crucial question of law pertaining to the ‘Period of Limitation’ for preferring an appeal under Section 61 of Insolvency and Bankruptcy Code, 2016 (“theCode”).

While the inclusion of interest amounts in ‘financial debt’, for the purposes of the Insolvency and Bankruptcy Code, 2016 (‘IBC’), is clearly provided for in the IBC, the interest component in the case of operational debt has always been a point of contention.