Shristhi Verma

About this code and its existence

The trends of Indian economy began when the economic reforms of liberalisation, privatization and globalization were initiated in 1991 which was also like a green card for the Indian companies to infiltrate into business more like right to entry because the arrangements were carried out in their favours so they can easily plant their enterprises, formerly at the second stage they followed the structural framework for a business environment of equitable competition more like right to play fair and survive according to the competition commission in 2009 but till 2016 we didn’t have the right to exit from the business like when the company is not engaging accurately and is underlying on indebtedness and they are at the mount of incapability to return the loans, then the company should have to exterminate themselves freely so that they can pay off their credits, at last they should have the right to exit from the business. In another way round the right to get off is nothing but advancing the process of recovery of loans or a strategy of restoration of the non-performing asset (NPA) the resource of the bank which are not returned back to them and corresponding to the 2016 survey of the World Bank, India possesses an increasing NPA rates from the preceding years that will results in the increase of the lending rates, decreasing effect in the investment series, fall of the investor confidence which ultimately hinder the potential expansion of the economy. There was the immediate need for a statutory framework which cuts down the time of recovery rate, reduces the NPA and will eventually make India as the country where starting, sustaining and withdrawing is finally flexible to regulate business.

The government confronted the deficiency of the preceding multiple laws and handled according to the above-mentioned aim through one system identified as Insolvency and Bankruptcy code in 2016 which can be certainly analyzed as the discipline to recover the amount of lending in a time-bound procedure which is engendered through the ineptitude of the individual to pay it.

Structure and features of the body of the IBC

To easily interpret this code it is functionally partitioned into two segments they are: Regulators and Adjudicators. These both segment have specific responsibilities to execute, essentially the regulators comprising ‘The Insolvency and Bankruptcy Board of India’ (IBBI) a legal body for monitoring and administering the functions implemented by the other bodies and likewise to provide the license to various private companies which are recognized as ‘Insolvency Professional Agency’ (IPA) which have the function to create the code, employed by the ‘Insolvency Professionals’ (IP) to clear up the cases to recover NPA in the time-bound technique, these professional are better integrated with the ‘Insolvency Utilities’ (IU) on how to strengthened the policy to recover debts based on the inspection of the fiscal condition of the parties. Secondary the adjudicators which is the quasi-judicial body to undertake the disagreement between the bodies and is constituted of two different tribunals first the National Company Law Tribunals (NCLT) solely for the corporates and secondly the Debt Recovery Tribunal (DRT) for Non-Corporates like individuals including partnerships. 

How does this body works with the recent amendments made to it ?

Work of this body appears when the creditors will approach to the NCLT/DRT then in next fourteen days they have to admit the case or else have to repudiate the case, if the case is approved by the NCLT then they will designate the IP who has mainly three functions: First he is represented in-charge of the operations of the company, he will assign a Committee of Creditors (COC) mostly the financial creditors and at last receive commercial information from IU to make debt recast plan and operate as the negotiator between the borrower and creditor. Then the COC and the IP will be handed over the duration of 180 days also called moratorium period where it is expected that they will deliberate, discuss and come to the conclusion of insolvency resolution that is either sell the company to the new buyer or to liquidate the company though consensus where people support one decision or through voting where the resolution should be appreciated by at least 50% of the creditors[1] through recent judgement. If the COC needs further time, then extra 90 days can be permitted based  on the discretion of the IP to come to a conclusion. Through the recent amendment the whole pending case should be solved within 330 days with another extension of 90 days.[2] At last the decision will be imparted to the adjudicating authorities, then NCLT in this scenario will issue an order to implement the decision. If the COC cannot determine in the given period, then the IP by default will give the recommendation of liquidation to the borrower’s company to the adjudicating authority and for the same tribunal will issue the order. This is the basis mechanisms of the working of Insolvency and Bankruptcy Code with its major team players. This code significantly worked in India after fulfilling various of its objectives and ultimately extending its rank to 52nd in 2019 from 108th in the past year. [3]

Current amendments are not the limit of this Code

Through the recent modifications of the government had established many arrangements with an intention to enhance the autonomy of the creditor [4]so that NPA can be retrieved quickly, it also tries to understand the liability prior to the offence of the corporate debtor by insertion of new section 32A[5], despite all the amendments these provisions we are lacking behind as the judicial process is sluggish and time taking. One another release which should be necessarily addressed that there are not a sufficient number of benches, to resolve this issue, the parliament should make some policies with the cooperation of the supreme court so that tribunals can act accountable and more numbers of benches should be created so that the recovery rate could be made more efficient, speedy justice can be given to the creditors.

[1]              Insolvency and Bankruptcy Code, No. 45 of 2019 § 21, India Code (1941)    

[2]              Id. at 1

[3]              World Bank, (Press Release 24 Oct, 2019) https://www.worldbank.org/en/news/press-release/2019/10/24/doing-business-india-top-10-improver-business-climate-ranking

[4]                Id. at 1

[5]                Insolvency and-Bankruptcy Code, No. 1 of 2020 § 32(A), India Code (1941)