IBC and Interim Finance

WHAT IS INSOLVENCY & BANKRUPTCY CODE

The Insolvency and Bankruptcy Code, which is considered the biggest insolvency reform, was enacted and came into force w.e.f. 28th May 2016. It is a central Act enacted for reorganization and insolvency resolution of corporate persons, partnership firms, and individuals in a time-bound manner for maximization of the value of assets of such persons.

IBC has amended over 11 legislations in India, bringing about one of the most significant change to commercial laws in India in recent times. It has also become a very important tool for banks to regularize multitudes of non-performing assets plaguing the country’s economy. Within 7 months of the enactment of the IBC, the Reserve Bank of India released a list of 12 companies that held about 25% of the gross non-performing assets of the country.

The Code provides for a time-bound insolvency resolution mechanism, (also known as turnover), which is generally 180/330 days. This period of 180/330 days is known as a moratorium, i.e. free from legal proceedings. The code is aimed to provide an easy Exit to the corporate entities who fail to make their business stand in the market, as against the earlier codes aimed at an easy Entry.

NEED

The Insolvency & Bankruptcy Code stands to be one of the most direly needed legislation in the wake of the increasing corporate culture in India. The pre-existing legislative framework created the mischief of being complex; multi-layered and lacking proper adjudicating mechanism which led to the development of this code. The code makes both, individual and corporate insolvency process comprehensive yet simpler. The Code has a very vast scope and is applicable to the entire range starting from a farmer to a billionaire businessman, from start-ups to well establish gigantic corporate hubs. Following factors led to the making of the code-

i. Financial Corporate Defaults: It is a matter of no surprise that even the Corporates, no matter how big or small, may fall a victim to market failure and may not perform well. This can very well; and has in multiple instances; led to financial frauds and susceptible risks. Such financial failures, not only harm the corporate but also the stakeholders, irrespective of the fact that the corporate might be a separate legal entity.

ii. Indebtedness of the Individual: Corporate defaults run at macro levels. However, it is not limited to that. Even at micro level of the individual, such failures may very well occur. It is evident in day to day lives that at individual fronts like farmers, kirana shop owners, etc fall victim to non-ability of repayment. They procure loans from banks, financial institutions, or other individuals to carry out their work or business. However, due to many unfortunate yet inevitable circumstances they become unable to discharge their debt and liabilities to the loan obligations, coming out from which becomes a herculean task for them, leading to many unfortunate suicides and other cases of human agony.

iii. The Need for a Unified Code: It is very imperative and vital for the system to have a well-defined structural mechanism of loan recovery vis- a-vis not harming the debtor who inevitably falls a prey to such debt trap. Such instances of insolvency and bankruptcy require a code that bestows an opportunity to start afresh for the corporates, start-ups and individuals.

INSTITUTIONAL FRAMEWORK-

  1. Adjudicating Authority– There are two adjudicating authorities and one appellate authority provided by the Code. The Adjudicating authorities under the code are-

i. National Company Law Tribunal (NCLT) for deciding upon the cases arising out from companies and limited liability partnerships AND

ii. Debt Recovery Tribunal (DRT) for deciding upon the cases arising from Individuals and Partnership Firms.

The person or beneficiary may initiate the application for the resolution process to NCLT or DRT as the case may be. If the person is aggrieved by the order of the same, he may file an appeal to the NCLAT (National Company Law Appellate Tribunal) within 30 days of such order. However, an additional buffer of 15 days is provided to him for initiating such an appeal if he shows sufficient reasons for the inability to file the application for appeal within the prescribed period of thirty 30 days. The final scope of an appeal lies to the Supreme Court of India, within 45 days of the order of NCLAT, again with an extension period of 15 days.

  1. Regulatory Authority– The Insolvency and Bankruptcy Board of India (IBBI) acts as the Regulatory Authority of the Code. It was established by the Government of India on 1st October 2016 in order to regulate the functioning of the other three pillars namely-

 Information Utilities, Insolvency Professionals and The Insolvency Professional Agencies.

  1. Insolvency Professional Agencies– IPAs are not for profit institutions created to enroll, educate, monitor, regulate and guide the Insolvency Professionals. Presently there are 3 IPAs that are officially registered with the IBBI, namely-

(i) ISCI Insolvency Professional Agency (ISCI IPA);

(ii) Indian Institute of Insolvency Professionals of ICAI (IIPICAI) and

(iii) Insolvency Professional Agency of ICMAI (IPAICMAI)

  1. Insolvency Professional– An individual who:

(i) Passes the Limited Insolvency Examination, and

(ii) Has an experience of at least 10 years as a registered Charted Accountant/ Company Secretary/ Cost Accountant/ Advocate OR

(iii) Has passed the Limited Insolvency Examination and has management experience of at least 15 years, is eligible to be registered as an Insolvency Professional.

The Insolvency Professional has to be registered with any of the Insolvency Professional Agency and also with IBBI. Their major role is to conduct the Insolvency Resolution Process of both, individuals and the Companies. He is however subjected to oversight by the IBBI and the IPA, of which he is a registered member.

  1. Information Utilities– IUs are entities that will collect, collate and disseminate financial information relating to debtors that will help in facilitating quick resolution.

INTERIM FINANCE

In ordinary sense, interim finance means raising of funds from external sources for a Company during its regular course of business for a specific purpose. The objective behind raising interim finance is to basically to prevent the company from suffering losses.

In accordance with Section 5 (15) of the Insolvency and Bankruptcy Code, 2016, the term interim finance means any financial debt raised by the resolution professional during the insolvency resolution process period or by the corporate debtor during the pre-packaged insolvency resolution process period, as the case may be and such other debt as may be notified.

In the case of Sajeve Bhushan Deora v. Axis Bank Ltd. & Ors. (Company Appeal (AT) (Ins) No. 741 of 2019), the S.C. held that pursuant to seeking approval from the Committee of Creditors, the Resolution Professional has all the rights to raise interim finance in order to effectively carry out his duties as entrusted upon him under the Code.

The Insolvency Resolution Process Cost includes the amount of any interim finance and the cost incurred in raising such finance. As per section 3(13) of Insolvency and Bankruptcy Code, 2016 which reads as under: – Section 5(13) “insolvency resolution process costs” means

the amount of any interim finance and the costs incurred in raising such finance. the fees payable to any person acting as a resolution professional. any costs incurred by the resolution professional in running the business of the corporate debtor as a going concern. any costs incurred at the expense of the Government to facilitate the insolvency resolution process; and any other costs as may be specified by the Board.

The aforementioned expenses forms a vital part of the process and the same cannot be kept on hold until the approval of the resolution plan by the Honble National Company Law Tribunal. According to Section 30 (2) of the Code, the payment towards such costs gets shall be given highest priority and shall be settled even before any recoveries being made by the creditors. Since raising of the interim finance forms part of the insolvency resolution process cost, its payment is pari passu to other expenses.

AREAS THAT NEED TO BE ADDRESSED

Even though raising of interim finance aids the IRP/RP in improving the state of affairs of the corporate debtor to a large extent, there are certain areas that have still not been addressed.

  1. The provisions of raising interim finance of the Code are only applicable to the corporate debtor whose operations are running on the date of the commencement of the insolvency resolution process. They do not apply to the corporate debtor whose operations were stopped before the commencement of CIRP or PPIRP.
  2. Further, raising of interim finance cannot take place during the liquidation process of the corporate debtor. This is to say that even if the liquidator feels the need to raise funds considering that the value of the assets of the corporate debtor are insufficient to meet the dues of the creditors of the corporate debtor, there is no such provision in the IBC, 2016 which permits the liquidator to raise interim finance.

Adding to the afore-mentioned areas which have not been taken upon, Regulation 2 (ea) (vi) of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 states as follows: Liquidation cost under clause (16) of section means Interest on interim finance for a period of twelve months or for the period from the liquidation commencement date till the repayment of interim finance, whichever is lower.

This has led to be a biggest demotivator for the lenders to provide funds by way of interim financing. The financer company usually do not indulge in any transaction of providing interim finance where there are possibilities that the corporate debtor may undergo liquidation as this may result in huge losses to the lenders.

CONCLUSION Interim Finance acts as a lifejacket for companies undergoing the corporate insolvency resolution process. As the company is short of funds, Interim Financiers provide capital for the day to day running of the business. Such costs can include electricity charges, security salaries, maintenance of machinery and other daily expenses. As the main motive of IBC Code,2016 is to maximise the assets and keep the company as a going concern, Interim Finance helps companies to stay afloat.

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