The INSOLVENCY AND BANKRUPTCY CODE,2016 · 2019-01-31 · 5. InformationUtilities 6. Inspection &Investigation 7. Finance, Accounts &Audit V Miscellaneous (224 – 255) Miscellaneous

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The INSOLVENCY AND

BANKRUPTCY CODE,2016

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Contents

AMIT BACHHAWAT TRAINING FORUM

THE INSOLVENCY AND BANKRUPTCY CODE

INTRODUCTION

The Insolvency and Bankruptcy Code, 2015 was introduced in the Lok Sabha on 21st December, 2015 and referred to the Joint Committee on the Insolvency and Bankruptcy Code, 2016. The Committee had presented its recommendations and a modified Bill based on its suggestions. Further, the Insolvency and Bankruptcy Code, 2016 was passed by both the Houses of Parliament and notified in May 2016. Being one of the major economic reforms it paves the way focussing on creditor driven insolvency resolution.

Concept of Insolvency and Bankruptcy

The term insolvency is used for both individuals and organizations. For individuals, it is known as bankruptcy and for corporate it is called corporate insolvency. Both refer to a situation when an individual or company are not able to pay the debt in present or near future and the value of assets held by them are less than liability. Insolvency in this Code is regarded as a “state” where assets are insufficient to meet the liabilities. If untreated insolvency will lead to bankruptcy for non-corporates and liquidation of

corporates.

While insolvency is a situation which arises due to inability to pay off the debts due to insufficient assets, bankruptcy is a situation wherein application is made to an authority declaring insolvency and seeking to be declared as bankrupt, which will continue until discharge. From the above it is evident that insolvency is a state and bankruptcy is a conclusion. A bankrupt would be a conclusive insolvent whereas all insolvencies will not lead to bankruptcies. Typically insolvency situations have two options – resolution and recovery or liquidation

Term 'Insolvency'can be usedfor-

Individuals Organization/

Corporates

known as Bankruptcy

Known as Corporate insolvency

State when an individual or company are not able to pay the debt and

the value of assets held by them are less than liability

If,untreatedinsolvency,itwillleadto-

For non-corporates Corporates

Bankruptcy Liquidation

Relationship between Bankruptcy, Insolvency & Liquidation Bankruptcy is a legal proceeding involving a person or business that is unable to repay

outstanding debts. The bankruptcy process begins with a petition filed by the debtor, or by the creditors. All of the debtor's assets are measured and evaluated, and the assets may be used to repay a portion ofoutstanding debt.

In lucid language, if any person or entity is unable to pay off the debts, it owes, to their creditor, on time or as and when they became due and payable, then such person or entity is regarded as “insolvent”. Liquidation is the winding up of a corporation or incorporated entity. There are many entities that can initiate proceedings to cause the Liquidation, those being:-

(1) The Regulatory Bodies;

(2) The Directors of a Company;

(3) The Shareholders of a Company; and

(4) An Unpaid Creditor of a Company In nut shell, insolvency is common to both bankruptcy and liquidation. Not being able to pay debts as and when they became due and payable are the leading cause of Liquidations and is the only way that can cause a natural person to become a bankrupt.

Needfor a New Law As per the Ease of Doing Business Report of the World Bank, it takes an average of four to five years in insolvency resolution in India. The main reason behind such delay in the legal process is the existence of overlapping legislations and adjudicating authorities dealing with insolvency of companies and individuals in India. The Government of India then formulated a plan to refurbish the prevailing bankruptcy laws and replace them with one that will facilitate hassle-free and time-bound for revival and closure of businesses.

Insolvency

&Bankruptcy Code, 2016

CompaniesAct,2013

SARFAESI Act, 2002

Recoveryofdebts due to Banks

&FinancialInstitutions Act,1993

Sick Industries Companies Act, 1985

CompaniesAct,1956

Indian Partnership Act, 1932

Provincial Insolvency Act, 1920

Presidency Towns InsolvencyAct1909

The existing framework of law has failed to resolve insolvency situations.

Financial failure – a persistent mismatch between payments by the enterprise

and receivables into the enterprise, even though the business model is generating revenues.

Business failure – which is a breakdown in the business model of the enterprise,

and it, is unable to generate sufficient revenues to meet payments.

Malfeasance and mismanagement bypromoters Since, the existing laws were not aligned with the market realties and had several problems and were inadequate. There was no single window resolution available and the resolution and jurisdiction was with the multiple agencies with overlapping powers that was leading to delays and complexities in the process. The Companies Act deals with the corporate insolvency law and the individual insolvency laws were being dealt by a century old two Acts, i.e., The Provincial Towns Insolvency Act and the Presidency Towns Insolvency Act.

Multiple laws governing Debt resolution and multiple forums

Parallel proceedings by different parties on the same debtor in different forums and Conflicts between laws and over jurisdictions.

Asymmetry of information Objectives: A sound legal framework of bankruptcy law is required for achieving the

following objectives:-

Improved handling of conflicts between creditors and the debtor: It can provide

procedural certainty about the process of negotiation, in such a way as to reduce problems of common property and reduce information asymmetry for all economicparticipants.

Avoid destruction of value: It can also provide flexibility for parties to arrive at the

most efficient solution to maximise value during negotiations. The bankruptcy law will create a platform for negotiation between creditors and external financiers which can create the possibility of suchrearrangements.

Drawing the line between malfeasance and business failure: Under a weak

insolvency regime, the stereotype of “rich promoters of defaulting entities” generates two strands of thinking:

(A) the idea that all default involves malfeasanceand

(B) the idea that promoters should be held personally financially responsible for defaults of the firms that theycontrol.

Clearly allocate losses in macroeconomic downturns: With a sound

bankruptcy framework, these losses are clearly allocated to some people. Loss allocation could take place through taxes, inflation, currency depreciation, expropriation, or wage or consumption suppression. These could fall upon foreign creditors, small business owners, savers, workers, owners of financial and non-financial assets, importers, exporters.

The following benefits are expected from the new Law:-

Asset stripping by promoters is controlled after and beforedefault.

The promoters can make a proposal that involves buying back the company for a certainprice, alongside a certain debtrestructuring

Others in the economy can make proposals to buy the company at a certain price, alongside a certain debtrestructuring

All parties knowsthat if no deal is struck within the stipulated period, the company will go into liquidation. This will help avoid delayingtactics.

The inability of promoters to steal from the company, owing to the supervision of the IP, also helps reduce the incentive to have a slow lingeringdeath.

The Code seeks to provide an effective legal framework for timely resolution of insolvency and bankruptcy which would support development of credit markets and encourage entrepreneurship, and facilitate more investments leading to higher economic growth and development.

Structure of the Code The Code is structured into 5 parts comprising of 255 sections and 11 Schedules. Each part deals with a distinct aspect of the insolvency resolution process. Part II, Chapters I and II are of particularsignificanceforthestudentsandarediscussedindetailhereunder:

Part Part Content Chapters

and

Sections

Chapter / Contents

I Preliminary (1-3) 1. Short title, extent &Commencement

2. Application

3. Definitions

II Insolvency

Resolutions

and

Liquidation

for Corporate

Persons

I–VII

(4–77)

1. Preliminary (Application &Definitions)

2. Corporate Insolvency ResolutionProcess

3. LiquidationProcess

4. Fast Track Corporate Insolvency Resolution

Process

5. Voluntary Liquidation of CorporatePersons

6. Adjudicating Authority for CorporatePersons

7. Offences &Penalties

III Insolvency

Resolution

and

Bankruptcyfo

rIndividuals

and

Partnership

Firms

I – VII

(78-

187)

1. Preliminary (Application &Definitions)

2. Fresh StartProcess

3. Insolvency ResolutionProcess

4. Bankruptcy Order for Individuals

&Partnership Firms

5. Administration &Distribution of the Estate of

theBankrupt

6. AdjudicatingAuthority

7. Offences &Penalties

IV Regulation of

Insolvency

Professionals

AgencieandI

nformation

Utilities

I – VII (188–

223)

1. The Insolvency and Bankruptcy Board ofIndia

2. Powers &Functions of theBoard

3. Insolvency ProfessionalAgencies

4. InsolvencyProfessionals

5. InformationUtilities

6. Inspection &Investigation

7. Finance, Accounts &Audit

V Miscellaneous (224 – 255) Miscellaneous

Extent and Commencement of the Code: As per section 1 of the Insolvency and Bankruptcy Code, it extends to the whole of India exceptPart III (Insolvency Resolution and Bankruptcy for Individuals and Partnership Firm) which excludes the state of Jammu andKashmir. This Code came into an enforcement on 28th May 2016, however, the Central Government appointed different dates for different provisions of this Code and any reference in any such provision to the commencement of this Code shall be construed as a reference to thecommencement of thatprovision.

Applicability of the Code

The provisions of the Code shall apply for insolvency, liquidation,

voluntary liquidation or bankruptcy of the followingentities:-

(a) AnycompanyincorporatedundertheCompaniesAct,2013orunderanypreviouslaw.

(b) Any other company governed by any special act for the time being in

force, except in so far

asthesaidprovisionisinconsistentwiththeprovisionsofsuchSpecialAct.

(c) Any Limited Liability Partnership under the LLP Act2008.

(d) Any other body incorporated under any law for the time being in force,

as the entral Government may by notification specify in thisbehalf.

(e) Partnership firms andindividuals.

Exceptions: There is an exception to the applicability of the Code that it shall not apply

to corporate persons who are regulated financial service providers like Banks, Financial Institutions and Insurancecompanies.

Features of the Insolvency and Bankruptcy Code: The Insolvency and Bankruptcy Code, 2016 has following distinguishing features:-

Comprehensive Law: Insolvency Code is a comprehensive law which envisages and regulates the process of insolvency and bankruptcy of all persons including corporates, partnerships, LLP’s andindividuals.

No Multiplicity of Laws: The Code has withered away the multiple laws covering

the recovery of debts and insolvency and liquidation process and presents singular platform for all the reliefs relating to recovery of debts andinsolvency.

Low Time Resolution: The Code provides a low time resolution and defines fixed

time frames for insolvency resolution of companies and individuals. The process is mandated to be completed within 180 days, extendable to maximum of 90 days. Further, for a speedier process there is provision for fast-track resolution of corporate insolvency within 90 days. If insolvencycannotberesolved,theassetsoftheborrowersmaybesoldtorepaycreditors.

Companies( Governed by Companies Act, 2013/under any previous law/by any sepcial act)

Individuals LLP

Partnership Firms Notified entity

One Window Clearance: It has been drafted to provide one window clearance to the applicant whereby he gets the appropriate relief at the same authority unlike the earlier position of law where in case the company is not able to revive the procedure for winding up andliquidationhastobeinitiatedunderseparatelawsgovernedbyseparateauthorities.

One Chain of Authority: There is one chain of authority under the Code. It does not

even allow the civil courts to interfere with the application pending before the adjudicating authority, thereby reducing the multiplicity of litigations. The National Company Law Tribunal (NCLT) will adjudicate insolvency resolution for companies. The Debt Recovery Tribunal (DRT) will adjudicate insolvency resolution forindividuals.

Priority to the interests of workman and employees: The Code also protects the interests of workman and employees. It excludes dues payable to workmen under provident fund, pension fund and gratuity fund from the debtor’s assets duringliquidation.

New Regulatory Authority: It provides for constitution of a new regulatory authority ‘Insolvency and Bankruptcy Board of India’ to regulate professionals, agencies and information utilities engaged in resolution of insolvencies of companies, partnership firms and individuals. The Board has already been established and started functioning.

Key Objectives of the Code

The Insolvency and Bankruptcy Code, 2016 is intended to strike the right balance of interests of all stakeholders of the business enterprise so that the corporates and other business entities enjoy availability of credit and at the same time the creditor do not have to bear the losses on account of default. The purpose of enactment of the Insolvency and Bankruptcy Code, 2016 is as follows:

(a) To consolidate and amend the laws relating to re-organization and

insolvency resolution of corporate persons, partnership firms

andindividuals.

(b) Tofixtimeperiodsforexecutionofthelawinatimeboundmanner.

(c) To maximize the value of assets of interestedpersons.

(d) To promoteentrepreneurship

(e) To increase availability ofcredit.

(f) To balance the interests of all the stakeholders including alteration in

the order of priority of payment of Governmentdues.

(g) To establish an Insolvency and Bankruptcy Board of India as a

regulatory body for insolvency and bankruptcylaw.

Regulatory Mechanism

The Insolvency and Bankruptcy Code, 2016 provides a new regulatory mechanism with an institutional set-up comprising of five pillars:-

Insolvency and Bankruptcy Board ofIndia

Insolvency ProfessionalAgencies

InsolvencyProfessionals

InformationUtilities

AdjudicatingAuthority

(a) To consolidate and amend the laws relating to re-organization and insolvency resolution of corporate persons, partnership firms andindividuals.

(b) Tofixtimeperiodsforexecutionofthelawinatimeboundmanner.

(c) To maximize the value of assets of interestedpersons.

(d) To promoteentrepreneurship

(e) To increase availability ofcredit.

(f) To balance the interests of all the stakeholders including alteration in the order of priority of payment of Governmentdues.

(g) To establish an Insolvency and Bankruptcy Board of India as a regulatory body for insolvency and bankruptcylaw.

(1) Insolvency and Bankruptcy Board of India-The Code provides for establishment of a Regulator who will oversee these entities and to perform legislative, executive and quasi- judicial functions with respect to the Insolvency Professionals, Insolvency Professional Agencies and Information Utilities. The Insolvency and Bankruptcy Board of India was established on October 1, 2016. The head office of the Board is located at New Delhi.

The Board is a body corporate, having perpetual succession and a common seal, with power, subject to the provisions of this Code, to acquire, hold and dispose of property, both movable and immovable, and to contract, and shall, by the said name, sue or be sued.

Composition of the Board

(a) aChairperson;

(b) three members from amongst the officers of the Central

Insolvency and Bankrupty Code,

2016

Insolvency and Bankruptcy Board of

India (IBBI)

Adjudicating Authority

Insolvency Professionals Agency (IPA)

Insolvency Professionals (IP)

Information Utility (IU)

Government not below the rank of Joint Secretary or equivalent,

one each to represent the Ministry of Finance, the Ministry of

Corporate Affairs and Ministry of Law,ex-officio;

(c) onemembertobenominatedbytheReserveBankofIndia,exofficio;

(d) five other members to be nominated by the Central Government,

of whom at least three shall be the whole-timemembers

(2) Insolvency Professional Agencies-The Code provides for establishment of

insolvency professionals agencies to enroll and regulate insolvency professionals as its members in accordance with the Insolvency and Bankruptcy Code 2016 and read withregulations.

Principles governing registration of Insolvency Professional Agency

Functions of Insolvency professional agencies (IPA): It will perform three key

functions:

to protect the interests of debtors, creditors and such other persons as may be specified

to promote good professional and ethical conduct amongst insolvency professionals

to promote the services of competent insolvency professionals to cater to the needs of debtors, creditors and such other persons as may be specified

addressing grievances of aggrieved parties, hearing complaints against members and taking suitable actions

Quasi-judicial functions

gathering information on their performance, with the over-

arching objective of preventing frivolous

behaviour, and

Executive functions

drafting detailed standards and codes of conduct through bye-laws, that aremade public and are binding on allmembers

Regulatory functions

malfeasance in the conduct of IP duties

monitoring, inspecting and

investigating members on a regular basis

Fu

nc

tio

ns o

f

IPA

to promote the professional development of and regulation of insolvency professionals

(3) Insolvency Professionals: The Code provides for insolvency professionals as

intermediaries who would play a key role in the efficient working of the bankruptcy process. The role of theIP encompasses a wide range of functions, which include adhering to procedure of the law, as well as accounting and finance related functions. He shall have the power andresponsibilitytomonitorandmanagetheoperationsandassetsoftheenterprise.

In the resolution process, the insolvency professional verifies the claims of the creditors, constitutes a creditors committee, runs the debtor's business during the moratorium periodand helps the creditors in reaching a consensus for a revival plan. In liquidation, the insolvency professional acts as a liquidator and bankruptcytrustee.

An Insolvency Professional if appointed as a Resolution Professional shall act as a as a neutral trustee of the assets of theorganization. Every insolvency professional shall abide by the following code of conduct:—

to take reasonable care and diligence while performing hisduties;

to comply with all requirements and terms and conditions specified in the bye-laws of the insolvency professional agency of which he is amember;

to allow the insolvency professional agency to inspect hisrecords;

to submit a copy of the records of every proceeding before the Adjudicating Authority

to the Board as well as to the insolvency professional agency of which he is a member; and

to perform his functions in such manner and subject to such conditions as may be specified.

(4) Information Utilities – The Code envisages creation of information utility to collect, collate, authenticate and disseminate financial information of debtors in centralized electronic databases, at alltimes.

The Code requires creditors to provide financial information of debtors to multiple utilities on an ongoing basis. Such information would be available to creditors, resolution professionals, liquidators and other stakeholders in insolvency and bankruptcy proceedings. The purpose of this is to remove information asymmetry and dependency on the debtor's management for critical information that is needed to swiftly resolveinsolvency.

Obligations of Information Utility: An information utility shall provide such services as may be specified including core servicesto any person if such person complies with the terms and conditions as may be specified by regulations. For the purposes of providing core services to any person, every information utility shall—

create and store financial information in a universally accessibleformat;

accept electronic submissions of financial information from persons who are under obligations to submit financialinformation

accept, in specified form and manner, electronic submissions of financial informationfrom persons who intend to submit suchinformation;

meetsuchminimumservicequalitystandardsasmaybespecifiedbyregulations;

get the information received from various persons authenticated by all concerned parties before storing suchinformation;

provide access to the financial information stored by it to any person who intends to accesssuchinformationinsuchmannerasmaybespecifiedbyregulations;

publish such statistical information as may be specified byregulations;

have inter-operatability with other informationutilities.

(5) Adjudicating Authority-The Adjudicating Authority for corporate insolvency and liquidation is the National Company Law Tribunal (NCLT). Appeals against NCLT orders shall lie with National Company Law Appellate Tribunal (NCLAT) and thereafter to the Supreme Court of India.

The Code has created one chain of authority for adjudication under the Code. Civil Courtshave been prohibited to interfere in the matters related with application pending before the Adjudicating Authority. No injunction shall be granted by any Court, Tribunal or Authority in respect of any action taken by the NCLT.

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AMIT BACHHAWAT TRAINING FORUM

PART IV

REGULATION OF INSOLVENCY PROFESSIONALS, AGENCIES AND

INFORMATION UTILITIES

CHAPTER I

THE INSOLVENCY AND BANKRUPTCY BOARD OF INDIA

188.Establishment and incorporation of Board. –

(1) With effect from such date as the Central Government may, by notification, appoint,

there shall be established, for the purposes of this Code, a Board by the name of the Insolvency

and Bankruptcy Board of India.

(2) The Board shall be a body corporate by the name aforesaid, having perpetual

succession and a common seal, with power, subject to the provisions of this Code, to acquire,

hold and dispose of property, both movable and immovable, and to contract, and shall, by the

said name, sue or be sued.

(3) The head office of the Board shall be at such place in the National Capital Region,

as the Central Government may, by notification, specify.

Explanation. - For the purposes of this section, the expression “National Capital

Region” shall have the same meaning as assigned to it in clause (f) of section 2 of the National

Capital Region Planning Board Act, 1985 (2 of 1985).

(4) The Board may establish offices at other places in India.

189.Constitution of Board. -

(1) The Board shall consist of the following members who shall be appointed by the Central

Government, namely: -

(a) a Chairperson;

(b) three members from amongst the officers of the Central Government not below

the rank of Joint Secretary or equivalent, one each to represent the Ministry of Finance,

the Ministry of Corporate Affairs and Ministry of Law, ex -officio;

(c) one member to be nominated by the Reserve Bank of India, ex-officio;

(d) five other members to be nominated by the Central Government, of whom at

least three shall be the whole-time members.

(2) The Chairperson and the other members shall be persons of ability, integrity and standing,

who have shown capacity in dealing with problems relating to insolvency or bankruptcy and

have special knowledge and experience in the field of law, finance, economics, accountancy or

administration.

(3) The appointment of the Chairperson and the members of the Board other than the

appointment of an ex-officio member under this section shall be made after obtaining the

recommendation of a selection committee consisting of -

(a) Cabinet Secretary- Chairperson;

(b) Secretary to the Government of India to be nominated by the Central

Government-Member;

(c) Chairperson of the Insolvency and Bankruptcy Board of India (in case of

selection of members of the Board)- Member;

(d) three experts of repute from the field of finance, law, management, insolvency

and related subject, to be nominated by the Central Government- Members.

(4) The term of office of the Chairperson and members (other than ex-officio members) shall be

five years or till they attain the age of sixty-five years, whichever is earlier, and they shall be

eligible for re-appointment.

(5) The salaries and allowances payable to, and other terms and conditions of service of, the

Chairperson and members (other than the ex-officio members) shall be such as may be

prescribed.

190.Removal of member from office. -

The Central Government may remove a member from office if he–

(a) is an undischarged bankrupt as defined under Part III;

(b) has become physically or mentally incapable of acting as a member;

(c) has been convicted of an offence, which in the opinion of Central Government

involves moral turpitude;

(d) has, so abused his position as to render his continuation in office detrimental to

the public interest:

Provided that no member shall be removed under clause (d) unless he has been given a reasonable

opportunity of being heard in the matter.

191.Powers of Chairperson. -

Save as otherwise determined by regulations, the Chairperson shall have powers of general

superintendence and direction of the affairs of the Board and may also exercise such other powers

as may be delegated to him by the Board.

192.Meetings of Board. -

(1) The Board shall meet at such times and places, and observe such rules of procedure

in regard to the transaction of business at its meetings (including quorum at such meetings) as

may be determined by regulations.

(2) The Chairperson, or if, for any reason, the Chairperson is unable to attend any

meeting of the Board, any other member chosen by the members present at the meeting shall

preside at the meeting.

(3) All questions which come up before any meeting of the Board shall be decided by

a majority votes of the members present and voting, and, in the event of an equality of votes,

the Chairperson, or in his absence, the person presiding, shall have a second or casting vote.

193.Member not to participate in meetings in certain cases. -

Any member, who is a director of a company and who as such director has any direct or indirect

pecuniary interest in any matter coming up for consideration at a meeting of the Board, shall, as

soon as possible after relevant circumstances have come to his knowledge, disclose the nature of

his interest at such meeting and such disclosure shall be recorded in the proceedings of the Board,

and the member shall not take any part in any deliberation or decision of the Board with respect to

that matter.

194.Vacancies etc., not to invalidate proceedings of Board, and Officers and employees

of Board. -

(1) No act or proceeding of the Board shall be invalid merely by reason of –

(a) any vacancy in, or any defect in the constitution of, the Board; or

(b) any defect in the appointment of a person acting as a member of the Board; or

(c) any irregularity in the procedure of the Board not affecting the merits of the

case.

(2) The Board may appoint such other officers and employees as it considers necessary

for the efficient discharge of its functions in such manner as may be specified.

(3) The salaries and allowances payable to, and other terms and conditions of service

of, officers and employees of the Board appointed under sub-section (2) shall be such as may

be specified by regulations.

195.Power to designate financial sector regulator. –

Until the Board is established, the Central Government may by notification, designate any

financial sector regulator to exercise the powers and functions of the Board under this Code.

CHAPTER II

POWERS AND FUNCTIONS OF THE BOARD

196.Powers and functions of Board. -

(1) The Board shall, subject to the general direction of the Central Government, perform all or any

of the following functions namely: -

(a) register insolvency professional agencies, insolvency professionals and

information utilities and renew, withdraw, suspend or cancel such registrations;

1[(aa) promote the development of, and regulate, the working and practices of, insolvency

professionals, insolvency professional agencies and information utilities and other institutions,

in furtherance of the purposes of this Code;]

(b) specify the minimum eligibility requirements for registration of insolvency

professional agencies, insolvency professionals and information utilities;

(c) levy fee or other charges 2[for carrying out the purposes of this Code, including fee for

registration and renewal] of insolvency professional agencies, insolvency professionals

and information utilities;

(d) specify by regulations standards for the functioning of insolvency professional

agencies, insolvency professionals and information utilities;

1 Ins. by Act No. 26 of 2018, sec. 32 (i) (w.e.f. 6-6-2018). 2 Subs. by Act No. 26 of 2018, sec. 32 (ii), for the words “for the registration” (w.e.f. 6-6-2018).

(e) lay down by regulations the minimum curriculum for the examination of the

insolvency professionals for their enrolment as members of the insolvency professional

agencies;

(f) carry out inspections and investigations on insolvency professional agencies,

insolvency professionals and information utilities and pass such orders as may be

required for compliance of the provisions of this Code and the regulations issued

hereunder;

(g) monitor the performance of insolvency professional agencies, insolvency

professionals and information utilities and pass any directions as may be required for

compliance of the provisions of this Code and the regulations issued hereunder;

(h) call for any information and records from the insolvency professional agencies,

insolvency professionals and information utilities;

(i) publish such information, data, research studies and other information as may

be specified by regulations;

(j) specify by regulations the manner of collecting and storing data by the

information utilities and for providing access to such data;

(k) collect and maintain records relating to insolvency and bankruptcy cases and

disseminate information relating to such cases;

(l) constitute such committees as may be required including in particular the

committees laid down in section 197;

(m) promote transparency and best practices in its governance;

(n) maintain websites and such other universally accessible repositories of

electronic information as may be necessary;

(o) enter into memorandum of understanding with any other statutory authorities;

(p) issue necessary guidelines to the insolvency professional agencies, insolvency

professionals and information utilities;

(q) specify mechanism for redressal of grievances against insolvency professionals,

insolvency professional agencies and information utilities and pass orders relating to

complaints filed against the aforesaid for compliance of the provisions of this Code and

the regulations issued hereunder;

(r) conduct periodic study, research and audit the functioning and performance of

to the insolvency professional agencies, insolvency professionals and information

utilities at such intervals as may be specified by the Board;

(s) specify mechanisms for issuing regulations, including the conduct of public

consultation processes before notification of any regulations;

(t) make regulations and guidelines on matters relating to insolvency and

bankruptcy as may be required under this Code, including mechanism for time bound

disposal of the assets of the corporate debtor or debtor; and

(u) perform such other functions as may be prescribed.

(2) The Board may make a model bye-laws to be adopted by the insolvency professional agency

which may provide for –

(a) the minimum standards of professional competence of the members of

insolvency professional agencies;

(b) the standard for professional and ethical conduct of the members of

insolvency professional agencies;

(c) requirements for enrolment of person as members of insolvency

professional agency which shall be non-discriminatory;

Explanation. - For the purposes of this clause, the term “non-discriminatory” means

lack of discrimination on the ground of religion, caste, gender or place of birth and such other

grounds as may be specified;

(d) the manner of granting membership;

(e) setting up of a governing board for the internal governance and

management of insolvency professional agency in accordance with the regulations

specified by the Board;

(f) the information required to be submitted by members including the form

and the time for submitting such information;

(g) the specific classes of persons to whom services shall be provided at

concessional rates or for no remuneration by members;

(h) the grounds on which penalties may be levied upon the members of insolvency

professional agencies and the manner thereof;

(i) a fair and transparent mechanism for redressal of grievances against the

members of insolvency professional agencies;

(j) the grounds under which the insolvency professionals may be expelled from the

membership of insolvency professional agencies;

(k) the quantum of fee and the manner of collecting fee for inducting persons as its

members;

(l) the procedure for enrolment of persons as members of insolvency professional

agency;

(m) the manner of conducting examination for enrolment of insolvency

professionals;

(n) the manner of monitoring and reviewing the working of insolvency professional

who are members;

(o) the duties and other activities to be performed by members;

(p) the manner of conducting disciplinary proceedings against its members and

imposing penalties;

(q) the manner of utilising the amount received as penalty imposed against any

insolvency professional.

(3) Notwithstanding anything contained in any other law for the time being in force, while

exercising the powers under this Code, the Board shall have the same powers as are vested in

a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in

respect of the following matters, namely: –

(i) the discovery and production of books of account and other documents, at such

place and such time as may be specified by the Board;

(ii) summoning and enforcing the attendance of persons and examining them on

oath;

(iii) inspection of any books, registers and other documents of any person at any

place;

(iv) issuing of commissions for the examination of witnesses or documents.

197.Constitution of advisory committee, executive committee or other committee. -

The Board may, for the efficient discharge of its functions, may constitute advisory and executive

committees or such other committees, as it may deem fit, consisting of a Chairperson and such

other members as may be specified by regulations.

198.Condonation of delay. -

Notwithstanding anything contained in this Code, where the Board does not perform any act

within the period specified under this Code, the relevant Adjudicating Authority may, for reasons

to be recorded in writing, condone the delay.

CHAPTER III

INSOLVENCY PROFESSIONAL AGENCIES

199.No person to function as insolvency professional agency without valid certificate of

registration. –

Save as otherwise provided in this Code, no person shall carry on its business as insolvency

professional agencies under this Code and enrol insolvency professionals as its members except

under and in accordance with a certificate of registration issued in this behalf by the Board.

200. Principles governing registration of insolvency professional agency. -

The Board shall have regard to the following principles while registering the insolvency

professional agencies under this Code, namely: –

a. to promote the professional development of and regulation of insolvency

professionals;

b. to promote the services of competent insolvency professionals to cater to the

needs of debtors, creditors and such other persons as may be specified;

c. to promote good professional and ethical conduct amongst insolvency

professionals;

d. to protect the interests of debtors, creditors and such other persons as may be

specified;

e. to promote the growth of insolvency professional agencies for the effective

resolution of insolvency and bankruptcy processes under this Code.

201. Registration of insolvency professional agency. -

(1) Every application for registration shall be made to the Board in such form and

manner, containing such particulars, and accompanied by such fee, as may be specified by

regulations:

Provided that every application received by the Board shall be acknowledged within

seven days of its receipt.

(2) On receipt of the application under sub-section (1), the Board may, on being

satisfied that the application conforms with all requirements specified under sub-section (1),

grant a certificate of registration to the applicant or else, reject, by order, such application:

Provided that no order rejecting the application shall be made without giving an

opportunity of being heard to the applicant:

Provided further that every order so made shall be communicated to the applicant within

a period of fifteen days.

(3) The Board may issue a certificate of registration to the applicant in such form and

manner and subject to such terms and conditions as may be specified.

(4) The Board may renew the certificate of registration from time to time in such manner

and on payment of such fee as may be specified.

(5) The Board may, by order, suspend or cancel the certificate of registration granted to

an insolvency professional agency on any of the following grounds, namely: –

(a) that it has obtained registration by making a false statement or misrepresentation

or by any other unlawful means;

(b) that it has failed to comply with the requirements of the regulations made by

the Board or bye-laws made by the insolvency professional agency;

(c) that it has contravened any of the provisions of the Act or the rules or the

regulations made thereunder;

(d) on any other ground as may be specified by regulations:

Provided that no order shall be made under this sub-section unless the insolvency

professional agency concerned has been given a reasonable opportunity of being heard:

Provided further that no such order shall be passed by any member except whole-time

members of the Board.

202. Appeal to National Company Law Appellate Tribunal. -

Any insolvency professional agency which is aggrieved by the order of the Board made

under section 201 may prefer an appeal to the National Company Law Appellate Tribunal in

such form, within such period, and in such manner, as may be specified by regulations.

203. Governing Board of insolvency professional agency. –

The Board may, for the purposes of ensuring that every insolvency professional agency

takes into account the objectives sought to be achieved under this Code, make regulations to

specify–

a. the setting up of a governing board of an insolvency professional agency;

b. the minimum number of independent members to be on the governing board of

the insolvency professional agency; and

c. the number of the insolvency professionals being its members who shall be on

the governing board of the insolvency professional agency.

204. Functions of insolvency professional agencies. -

An insolvency professional agency shall perform the following functions, namely: –

a. grant membership to persons who fulfil all requirements set out in its bye-laws

on payment of membership fee;

b. lay down standards of professional conduct for its members;

c. monitor the performance of its members;

d. safeguard the rights, privileges and interests of insolvency professionals who

are its members;

e. suspend or cancel the membership of insolvency professionals who are its

members on the grounds set out in its bye-laws;

f. redress the grievances of consumers against insolvency professionals who are

its members; and

g. publish information about its functions, list of its members, performance of its

members and such other information as may be specified by regulations.

205. Insolvency professional agencies to make bye-laws. –

Subject to the provisions of this Code and any rules or regulations made thereunder and

after obtaining the approval of the Board, every insolvency professional agency shall make

bye-laws consistent with the model bye-laws specified by the Board under sub-section (2) of

section 196.

CHAPTER IV

INSOLVENCY PROFESSIONALS

206. Enrolled and registered persons to act as insolvency professionals. -

No person shall render his services as insolvency professional under this Code without

being enrolled as a member of an insolvency professional agency and registered with the Board.

207. Registration of insolvency professionals. -

(1) Every insolvency professional shall, after obtaining the membership of any

insolvency professional agency, register themselves with the Board within such time, in such

manner and on payment of such fee, as may be specified by regulations.

(2) The Board may specify the categories of professionals or persons possessing such

qualifications and experience in the field of finance, law, management, insolvency or such

other field, as it deems fit.

208. Functions and obligations of insolvency professionals. –

(1) Where any insolvency resolution, fresh start, liquidation or bankruptcy process has

been initiated, it shall be the function of an insolvency professional to take such actions as may

be necessary, in the following matters, namely: –

(a) a fresh start order process under Chapter II of Part III;

(b) individual insolvency resolution process under Chapter III of Part III

(c) corporate insolvency resolution process under Chapter II of Part II.

(d) individual bankruptcy process under Chapter IV of Part III; and

(e) liquidation of a corporate debtor firm under Chapter III of Part II.

(2) Every insolvency professional shall abide by the following code of conduct: –

(a) to take reasonable care and diligence while performing his duties;

(b) to comply with all requirements and terms and conditions specified in the bye-

laws of the insolvency professional agency of which he is a member;

(c) to allow the insolvency professional agency to inspect his records;

(d) to submit a copy of the records of every proceeding before the Adjudicating

Authority to the Board as well as to the insolvency professional agency of which he is

a member; and

(e) to perform his functions in such manner and subject to such conditions as may

be specified.

CHAPTER V

INFORMATION UTILITIES

209. No person to function as information utility without certificate of registration. –

Save as otherwise provided in this Code, no information utility shall carry on its

business under this Code except under and in accordance with a certificate of registration issued

in that behalf by the Board.

210. Registration of information utility. –

(1) Every application for registration shall be made to the Board in such form and manner,

containing such particulars, and accompanied by such fee, as may be specified by

regulations:

Provided that every application received by the Board shall be acknowledged within

seven days of its receipt.

(2) On receipt of the application under sub-section (1), the Board may, on being satisfied that

the application conforms with all requirements specified under sub-section (1), grant a

certificate of registration to the applicant or else, reject, by order, such application.

(3) The Board may issue a certificate of registration to the applicant in such form and manner

and subject to such terms and conditions as may be specified.

(4) The Board may renew the certificate of registration from time to time in such manner and

on payment of such fee as may be specified by regulations.

(5) The Board may, by order, suspend or cancel the certificate of registration granted to an

information utility on any of the following grounds, namely: –

a. that it has obtained registration by making a false statement or

misrepresentation or any other unlawful means;

b. that it has failed to comply with the requirements of the regulations made

by the Board;

c. that it has contravened any of the provisions of the Act or the rules or the

regulations made thereunder;

d. on any other ground as may be specified by regulations:

Provided that no order shall be made under this sub-section unless the information utility

concerned has been given a reasonable opportunity of being heard:

Provided further that no such order shall be passed by any member except whole-time members

of the Board.

211.Appeal to National Company Law Appellate Tribunal. –

Any information utility which is aggrieved by the order of the Board made under section 210 may

prefer an appeal to the National Company Law Appellate Tribunal in such form, within such

period, and in such manner, as may be specified by regulations.

212.Governing Board of information utility. –

The Board may, for ensuring that an information utility takes into account the objectives sought to

be achieved under this Code, require every information utility to set up a governing board, with

such number of independent members, as may be specified by regulations.

213.Core services, etc. of information utilities. –

An information utility shall provide such services as may be specified including core services to

any person if such person complies with the terms and conditions as may be specified by

regulations.

214.Obligations of information utility. –

For the purposes of providing core services to any person, every information utility

shall–

a. create and store financial information in a universally accessible

format;

b. accept electronic submissions of financial information from persons who are

under obligations to submit financial information under sub-section (1) of section 215,

in such form and manner as may be specified by regulations;

c. accept, in specified form and manner, electronic submissions of financial

information from persons who intend to submit such information;

d. meet such minimum service quality standards as may be specified by

regulations;

e. get the information received from various persons authenticated by all

concerned parties before storing such information;

f. provide access to the financial information stored by it to any person who

intends to access such information in such manner as may be specified by regulations;

g. publish such statistical information as may be specified by regulations.

h. have inter-operatability with other information utilities.

215.Procedure for submission, etc. of financial information. –

(1) Any person who intends to submit financial information to the information utility or access

the information from the information utility shall pay such fee and submit information in such

form and manner as may be specified by regulations.

(2) A financial creditor shall submit financial information and information relating to assets in

relation to which any security interest has been created, in such form and manner as

may be specified by regulations.

(3) An operational creditor may submit financial information to the information utility in such

form and manner as may be specified.

216. Rights and obligations of persons submitting financial information. -

(1) A person who intends to update or modify or rectify errors in the financial information

submitted under section 215, he may make an application to the information utility for such

purpose stating reasons therefor, in such manner and within such time, as may be specified

(2) A person who submits financial information to an information utility shall not provide such

information to any other person, except to such extent, under such circumstances, and in such

manner, as may be specified.

CHAPTER VI

INSPECTION AND INVESTIGATION

217. Complaints against insolvency professional agency or its member or information

utility. -

Any person aggrieved by the functioning of an insolvency professional agency or insolvency

professional or an information utility may file a complaint to the Board in such form, within such

time and in such manner as may be specified.

218. Investigation of insolvency professional agency or its member or information utility.

(1) Where the Board, on receipt of a complaint under section 217 or has reasonable grounds to

believe that any insolvency professional agency or insolvency professional or an information

utility has contravened any of the provisions of the Code or the rules or regulations made or

directions issued by the Board thereunder, it may, at any time by an order in writing, direct

any person or persons to act as an investigating authority to conduct an inspection or

investigation of the insolvency professional agency or insolvency professional or an

information utility.

(2) The inspection or investigation carried out under sub-section (1) of this section shall be

conducted within such time and in such manner as may be specified by regulations.

(3) The Investigating Authority may, in the course of such inspection or investigation, require any

other person who is likely to have any relevant document, record or information to furnish the

same, and such person shall be bound to furnish such document, record or information:

Provided that the Investigating Authority shall provide detailed reasons to such person before

requiring him to furnish such document, record or information.

(4) The Investigating Authority may, in the course of its inspection or investigation, enter any

building or place where they may have reasons to believe that any such document,

record or information relating to the subject-matter of the inquiry may be found and may seize

any such document, record or information or take extracts or copies therefrom, subject to the

provisions of section 100 of the Code of Criminal Procedure, 1973, insofar as they may be

applicable.

(5) The Investigating Authority shall keep in its custody the books, registers, other documents

and records seized under this section for such period not later than the conclusion of the

investigation as it considers necessary and thereafter shall return the same to the concerned

person from whose custody or power they were seized:

Provided that the Investigating Authority may, before returning such books, registers, other

documents and record as aforesaid, place identification marks on them or any part thereof.

(6) A detailed report of inspection or investigation shall be submitted to the Board by the

Investigating Authority.

219. Show cause notice to insolvency professional agency or its member or information

utility. -

The Board may, upon completion of an inspection or investigation under section 218, issue a

show cause notice to such insolvency professional agency or insolvency professional or

information utility, and carry out inspection of such insolvency professional agency or insolvency

professional or information utility in such manner, giving such time for giving reply, as may be

specified by regulations.

220.Appointment of disciplinary committee. –

(1) The Board shall constitute a disciplinary committee to consider the reports of the investigating

Authority submitted under sub-section (6) of section 218:

Provided that the members of the disciplinary committee shall consist of whole-time members of

the Board only.

(2) On the examination of the report of the Investigating Authority, if the disciplinary committee

is satisfied that sufficient cause exists, it may impose penalty as specified in sub- section (3) or

suspend or cancel the registration of the insolvency professional or, suspend or cancel the

registration of insolvency professional agency or information utility as the case may be.

(3) Where any insolvency professional agency or insolvency professional or an information

utility has contravened any provision of this Code or rules or regulations made thereunder,

the disciplinary committee may impose penalty which shall be –

• three times the amount of the loss caused, or likely to have been caused, to

persons concerned on account of such contravention; or

•three times the amount of the unlawful gain made on account of such

contravention,

whichever is higher:

Provided that where such loss or unlawful gain is not quantifiable, the total amount of the penalty

imposed shall not exceed more than one crore rupees.

(4) Notwithstanding anything contained in sub-section (3), the Board may direct any person who

has made unlawful gain or averted loss by indulging in any activity in contravention of this

Code, or the rules or regulations made thereunder, to disgorge an amount equivalent to such

unlawful gain or aversion of loss.

(5) The Board may take such action as may be required to provide restitution to the person who

suffered loss on account of any contravention from the amount so disgorged, if the person who

suffered such loss is identifiable and the loss so suffered is directly attributable to such

person.

(6) The Board may make regulations to specify-

(a) the procedure for claiming restitution under sub- section (5)

(b) the period within which such restitution may be claimed; and

(c) the manner in which restitution of amount may be made.

CHAPTER VII

FINANCE, ACCOUNTS AND AUDIT

221.Grants by Central Government. -

The Central Government may, after due appropriation made by Parliament by law in

this behalf, make to the Board grants of such sums of money as that Government may think fit

for being utilised for the purposes of this Code.

222.Board’s Fund. –

(1) There shall be constituted a Fund to be called the Fund of the Insolvency and Bankruptcy

Board and there shall be credited thereto –

(a) all grants, fees and charges received by the Board under this Code;

(b) all sums received by the Board from such other sources as may be decided upon by

the Central Government;

(c) such other funds as may be specified by the Board or prescribed by the Central

Government.

(2) The Fund shall be applied for meeting –

a. the salaries, allowances and other remuneration of the members, officers

and other employees of the Board;

b. the expenses of the Board in the discharge of its functions under section 196;

c. the expenses on objects and for purposes authorised by this Code.

d. such other purposes as may be prescribed.

223.Accounts and audit. –

(1) The Board shall maintain proper accounts and other relevant records and prepare an

annual statement of accounts in such form as may be prescribed by the Central Government in

consultation with the Comptroller and Auditor-General of India.

(2) The accounts of the Board shall be audited by the Comptroller and Auditor-General

of India at such intervals as may be specified by him and any expenditure incurred in

connection with such audit shall be payable by the Board to the Comptroller and Auditor-

General of India.

(3) The Comptroller and Auditor-General of India and any other person appointed by

him in connection with the audit of the accounts of the Board shall have the same rights and

privileges and authority in connection with such audit as the Comptroller and Auditor-General

generally has in connection with the audit of the Government accounts and, in particular, shall

have the right to demand the production of books, accounts, connected vouchers and other

documents and papers and to inspect any of the offices of the Board.

(4) The accounts of the Board as certified by the Comptroller and Auditor General of

India or any other person appointed by him in this behalf together with the audit report thereon

shall be forwarded annually to the Central Government and that Government shall cause the

same to be laid before each House of Parliament.

PART V

MISCELLENEOUS

224. Insolvency and Bankruptcy Fund. –

(1) There shall be formed a Fund to be called the Insolvency and Bankruptcy Fund (hereafter in

this section referred to as the “Fund”) for the purposes of insolvency resolution, liquidation

and bankruptcy of persons under the Code.

(2) There shall be credited to the Fund the following amounts, namely —

(a) the grants made by the Central Government for the purposes of the Fund;

(b) the amount deposited by persons as contribution to the Fund;

(c) the amount received in the Fund from any other source; and

(d) the interest or other income received out of the investment made from the Fund.

(3) A person who has contributed any amount to the Fund may, in the event of proceedings

initiated in respect of such person under this Code before an Adjudicating Authority, make an

application to such Adjudicating Authority for withdrawal of funds not exceeding the amount

contributed by it, for making payment to workmen, protecting the assets of such persons,

meeting the incidental cost during the proceedings or such purposes as may be prescribed.

(4) The Central Government shall, by notification, appoint an administrator to administer the

fund in such manner as may be prescribed.

225.Power of Central Government to issue directions. –

(1) Without prejudice to the foregoing provisions of this Code, the Board shall, in exercise of

its powers or the performance of its functions under this Code, be bound by such

directions on questions of policy as the Central Government may give in writing to it from

time to time:

Provided that the Board shall, as far as practicable, be given an opportunity to express its views

before any direction is given under this sub-section.

(2) The decision of the Central Government as to whether a question is one of policy or not

shall be final.

226.Power of Central Government to supersede Board. –

(1) If at any time the Central Government is of opinion –

(a) that on account of grave emergency, the Board is unable to discharge the

functions and duties imposed on it by or under the provisions of this Code; or

(b) that the Board has persistently not complied with any direction issued by the

Central Government under this Code or in the discharge of the functions and duties

imposed on it by or under the provisions of this Code and as a result of such non-

compliance the financial position of the Board or the administration of the Board has

deteriorated; or

(c) that circumstances exist which render it necessary in the public interest so to

do,

the Central Government may, by notification, supersede the Board for such period, not

exceeding six months, as may be specified in the notification.

(2) Upon the publication of a notification under sub-section (1) superseding the Board,

- (a) all the members shall, as from the date of supersession, vacate their offices as such; (b) all

the powers, functions and duties which may, by or under the provisions of this Code, be

exercised or discharged by or on behalf of the Board, shall until the Board is reconstituted

under sub-section (3), be exercised and discharged by such person or persons as the Central

Government may direct; and (c) all property owned or controlled by the Board shall, until the

Board is reconstituted under sub-section (3), vest in the Central Government.

(3) On the expiration of the period of supersession specified in the notification issued

under sub-section (1), the Central Government may reconstitute the Board by a fresh

appointment and in such case any person or persons who vacated their offices under clause (a)

of sub-section (2), shall not be deemed disqualified for appointment:

Provided that the Central Government may, at any time, before the expiration of the

period of supersession, take action under this sub-section.

(4) The Central Government shall cause a notification issued under sub-section (1) and

a full report of any action taken under this section and the circumstances leading to such action

to be laid before each House of Parliament at the earliest.

227.Power of Central Government to notify financial sector providers etc.-

Notwithstanding anything to the contrary examined in this Code or any other law for the time

being in force, the Central Government may, if it considers necessary, in consultation with the

appropriate financial sector regulators, notify financial service providers or categories of financial

service providers for the purpose of their insolvency and liquidation proceedings, which may be

conducted under this Code, in such manner as may be prescribed.

228.Budget. -

The Board shall prepare, in such form and at such time in each financial year as may be prescribed,

its budget for the next financial year, showing the estimated receipts and expenditure of the Board

and forward the same to the Central Government.

229.Annual Report. –

(1) The Board shall prepare, in such form and at such time in each financial year as may be

prescribed, its annual report, giving a full account of its activities during the previous

financial year, and submit a copy thereof to the Central Government.

(2) A copy of the report received under sub-section (1) shall be laid, as soon as may be after it is

received, before each House of Parliament.

230.Delegation. -

The Board may, by general or special order in writing delegate to any member, officer of the

Board or subject to such conditions, if any, as may be specified in the order, such of its powers

and functions under this Code (except the powers under section 240 as it may deem necessary.

231.Bar of jurisdiction. -

No civil court shall have jurisdiction in respect of any matter in which the 1[Adjudicating

Authority or the Board] is empowered by, or under, this Code to pass any order and no injunction

shall be granted by any court or other authority in respect of any action taken or to be taken in

pursuance of any order passed by such 1[Adjudicating Authority or the Board] under this Code.

232.Members, officers and employees of the Board to be public servants. -

The Chairperson, Members, officers and other employees of the Board shall be deemed, when

acting or purporting to act in pursuance of any of the provisions of this Code, to be public servants

within the meaning of section 21 of the Indian Penal Code (45 of 1860).

233.Protection of action taken in good faith. -

No suit, prosecution or other legal proceeding shall lie against the Government or any officer of

the Government, or the Chairperson, Member, officer or other employee of the Board or an

insolvency professional or liquidator for anything which is in done or intended to be done

1 Ins. by Act No. 26 of 2018, sec. 33 (w.e.f. 6-6-2018).

129

in good faith under this Code or the rules or regulations made thereunder.

234. Agreements with foreign countries. -

(1) The Central Government may enter into an agreement with the Government of any country

outside India for enforcing the provisions of this Code.

(2) The Central Government may, by notification in the Official Gazette, direct that the

application of provisions of this Code in relation to assets or property of corporate debtor or

debtor, including a personal guarantor of a corporate debtor, as the case may be, situated at any

place in a country outside India with which reciprocal arrangements have been made, shall be

subject to such conditions as may be specified.

235. Letter of request to a country outside India in certain cases. -

(1) Notwithstanding anything contained in this Code or any law for the time being in force if, in

the course of insolvency resolution process, or liquidation or bankruptcy proceedings, as the

case may be, under this Code, the resolution professional, liquidator or bankruptcy trustee, as

the case may be, is of the opinion that assets of the corporate debtor or debtor, including a

personal guarantor of a corporate debtor, are situated in a country outside India with which

reciprocal arrangements have been made under section 234, he may make an application to

the Adjudicating Authority that evidence or action relating to such assets is required in

connection with such process or proceeding.

(2) The Adjudicating Authority on receipt of an application under sub-section (1) and, on being

satisfied that evidence or action relating to assets under sub-section (1) is required in

connection with insolvency resolution process or liquidation or bankruptcy proceeding, may

issue a letter of request to a court or an authority of such country competent to deal with such

request.

1[235A. Punishment where no specific penalty or punishment is provided. -

If any person contravenes any of the provisions of this Code or the rules or regulations made

thereunder for which no penalty or punishment is provided in this Code, such person shall be

punishable with fine which shall not be less than one lakh rupees but which may extend to two

crore rupees.]

236.Trial of offences by Special Court. -

(1) Notwithstanding anything in the Code of Criminal Procedure, 1973(2 of 1974), offences

under of this Code shall be tried by the Special Court established under Chapter XXVIII of

the Companies Act, 2013 (18 of 2013).

(2) No Court shall take cognizance of any offence punishable under this Act, save on a complaint

made by the Board or the Central Government or any person authorised by the Central

Government in this behalf.

(3) The provisions of the Code of Criminal Procedure, 1973 shall apply to the proceedings

before a Special Court and for the purposes of the said provisions, the Special

1 Ins. by Act 8 of 2018, sec. 8 (w.r.e.f. 23-11-2017)

130

Court shall be deemed to be a Court of Session and the person conducting a prosecution before

a Special Court shall be deemed to be a Public Prosecutor.

(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, in case of a

complaint under sub-section (2), the presence of the person authorised by the Central

Government or the Board before the Court trying the offences shall not be necessary unless the

Court requires his personal attendance at the trial.

237.Appeal and revision. -

The High Court may exercise, so far as may be applicable, all the powers conferred by Chapters

XXIX and XXX of the Code of Criminal Procedure, 1973 (2 of 1974) on a High Court, as if a

Special Court within the local limits of the jurisdiction of the High Court were a Court of Session

trying cases within the local limits of the jurisdiction of the High Court.

238.Provisions of this Code to override other laws. -

The provisions of this Code shall have effect, notwithstanding anything inconsistent therewith

contained in any other law for the time being in force or any instrument having effect by virtue of

any such law.

1[238A. Limitation. –

The provisions of the Limitation Act, 1963 (36 of 1963) shall, as far as may be, apply to the

proceedings or appeals before the Adjudicating Authority, the National Company Law

Appellate Tribunal, the Debt Recovery Tribunal or the Debt Recovery Appellate Tribunal, as the case

may be.]

239.Power to make rules. -

(1) The Central Government may, by notification, make rules for carrying out the provisions of

this Code.

(2) Without prejudice to the generality of the provisions of sub-section (1), the Central

Government may make rules for any of the following matters, namely: —

(a) any other instrument which shall be a financial product under clause (15) of

section 3;

(b) other accounting standards which shall be a financial debt under clause (d)

of sub-section (8) of section 5;

(c) the form, the manner and the fee for making application before the

Adjudicating Authority for initiating corporate insolvency resolution process by

financial creditor under sub-section (2) of section 7;

(d) the form and manner in which demand notice may be made and the manner

of delivery thereof to the corporate debtor under sub-section (1) of section 8;

(e) the form, the manner and the fee for making application before the


131


operational creditor under sub-section (2) of section 9;

1[(ea) other proof confirming that there is no payment of an unpaid operational debt by

the corporate debtor or such other information under clause (e) of sub-section (3) of section

9;]

(f) the form, the manner and the fee for making application before the


corporate applicant under sub-section (2) of section 10;

(g) the persons who shall be relative under clause (ii) of the Explanation to sub-

section (1) of section 79;

(h) the value of unencumbered single dwelling unit owned by the debtor under

clause (e) of sub-section (13) of section 79;

(i) the value under clause (c), and any other debt under clause (f), of sub-section

(14) of section 79;

(j) the form, the manner and the fee for making application for fresh start order

under sub-section (3) of section 81;

(k) the particulars of the debtor's personal details under clause (e) of sub-section

(3) of section 81;

(l) the information and documents to support application under sub-section (3)

of section 86;

(m) the form, the manner and the fee for making application for initiating the

insolvency resolution process by the debtor under sub-section (6) of section 94;

(n) the form, the manner and the fee for making application for initiating the

insolvency resolution process by the creditor under sub-section (6) of section 95;

(o) the particulars to be provided by the creditor to the resolution professional


(p) the form and the manner for making application for bankruptcy by the debtor

under clause (b) of sub-section (1) of section 122;

(q) the form and the manner of the statement of affairs of the debtor under sub-


(r) the other information under clause (d) of sub-section (1) of section 123;

(s) the form, the manner and the fee for making application for bankruptcy under

sub-section (6) of section 123;

(t) the form and the manner in which statement of financial position shall be

1 Ins. by Act No. 26 of 2018, sec 35 (w.e.f. 6-6-2018).

132

submitted under sub-section (2) of section 129;

(u) the matters and the details which shall be included in the public notice under


(v) the matters and the details which shall be included in the notice to the

creditors under sub-section (3) of section 130;

(w) the manner of sending details of the claims to the bankruptcy trustee and

other information under sub-sections (1) and (2) of section 131;

(x) the value of financial or commercial transaction under clause (d) of sub-


(y) the other things to be done by a bankrupt to assist bankruptcy trustee in

carrying out his functions under clause (d) of sub-section (1) of section 150;

(z) the manner of dealing with the surplus under sub-section (4) of section 170;

(za) the form and the manner of proof of debt under clause (c) of sub-section

(2) of section 171;

(zb) the manner of receiving dividends under sub-section (7) of section 171;

(zc) the particulars which the notice shall contain under sub-section (2) of

section 176;

(zd) the salaries and allowances payable to, and other terms and conditions of

service of, the Chairperson and members of the Board under sub-section (5) of section

189;

(ze) the other functions of the Board under clause (u) of sub-section (1) of

section 196;

(zf) the other funds under clause (c) of sub-section (1) of section 222;

(zg) the other purposes for which the fund shall be applied under clause (d) of


(zh) the form in which annual statement of accounts shall be prepared under


(zi) the purpose for which application for withdrawal of funds may be made


(zj) the manner of administering the fund under sub-section (4) of section 224;

(zk) the manner of conducting insolvency and liquidation proceedings under

section 227;

(zl) the form and the time for preparing budget by the Board under section 228;

(zm) the form and the time for preparing annual report under sub-section (1) of

section 229;

133

(zn) the time up to which a person appointed to any office shall continue to hold

such office under clause (vi) of sub-section (2) of section 243.

240.Power to make regulations. –

(1) The Board may, by notification, make regulations consistent with this Code and the rules

made thereunder, to carry out the provisions of this Code.

(2) In particular, and without prejudice to the generality of the foregoing power, such

regulations may provide for all or any of the following matters, namely: —

(a) the form and the manner of accepting electronic submission of financial

information under sub-clause (a) of clause (9) of section 3;

(b) the persons to whom access to information stored with the information utility

may be provided under sub-clause (d) of clause (9) of section 3;

(c) the other information under sub-clause (f) of clause (13) of section 3;

(d) the other costs under clause (e) of sub-section (13) of section 5;

(e) the cost incurred by the liquidator during the period of liquidation which shall

be liquidation cost under sub-section (16) of section 5;

(f) the other record or evidence of default under clause (a), and any other

information under clause (c), of sub-section (3) of section 7;

1[(g) * * * ]

(h) the period under clause (a) of sub-section (3) of section 10;

(i) the supply of essential goods or services to the corporate debtor under sub-


(j) the manner of making public announcement under sub-section (2) of section 15;

2[(ja) the last date for submission of claims under clause (c) of sub-section (1) of section

15;]

(k) the manner of taking action and the restrictions thereof under clause (b) of


(l) the other persons under clause (d) of sub-section (2) of section 17;

(m) the other matters under clause (d) of sub-section (2) of section 17;

(n) the other matters under sub-clause (iv) of clause (a), and the other duties to be

performed by the interim resolution professional under clause (g), of section 18;

1 Omitted by Act No. 26 of 2018, sec. 36 (i) (w.e.f. 6-6-2018). Before omission, it stood as “(g) the other

information under clause (d) of sub -section (3) of section 7;” 2 Ins. by Act No. 26 of 2018, sec. 36 (ii) (w.e.f. 6-6-2018).

134

1[(na) the number of creditors within a class of creditors under clause (b) of sub-section

(6A) of section 21;

(nb) the remuneration payable to authorised representative under clause (ii) of the

proviso to sub-section (6B) of section 21;

(nc) the manner of voting and determining the voting share in respect of financial

debts under sub-section (7) of section 21;]

(o) the persons who shall comprise the committee of creditors, the functions to be

exercised such committee and the manner in which functions shall be exercised under

the proviso to sub-section (8) of section 21;

(p) the other electronic means by which the members of the committee of creditors

may meet under sub-section (1) of section 24;

(q) the manner of assigning voting share to each creditor under sub-section (7) of

section 24;

(r) the manner of conducting the meetings of the committee of creditors under sub-


(s) the manner of appointing accountants, lawyers and other advisors under clause

(d) of sub-section (2) of section 25;

2[(sa) other conditions under clause (h) of sub-section (2) of section 25;

(t) the other actions under clause (k) of sub-section (2) of section 25;

(u) the form and the manner in which an information memorandum shall be

prepared by the resolution professional sub-section (1) of section 29;

(v) the other matter pertaining to the corporate debtor under the Explanation to sub-


(w) the manner of making payment of insolvency resolution process costs under

clause (a), the manner of repayment of debts of operational creditors under clause (b),

and the other requirements to which a resolution plan shall conform to under clause (d),

of sub-section (2) of section 30;

3[(wa) other requirements under sub-section (4) of section 30;]

(x) the fee for the conduct of the liquidation proceedings and proportion to the value

of the liquidation estate assets under sub-section (8) of section 34;

(y) the manner of evaluating the assets and property of the corporate debtor under

clause (c), the manner of selling property in parcels under clause (f), the manner of

reporting progress of the liquidation process under clause (n), and the other functions

1 Ins. by Act No. 26 of 2018, sec 36 (iii) (w.e.f. 6-6-2018). 2 Ins. by Act 8 of 2018, sec. 9 (i) (w.r.e.f. 23-11-2017). 3 Ins. by Act 8 of 2018, sec. 9 (ii) (w.r.e.f. 23-11-2017).

135

to be performed under clause (o), of sub-section (1) of section 35;

(z) the manner of making the records available to other stakeholders under sub-


(za) the other means under clause (a) of sub-section (3) of section 36;

(zb) the other assets under clause (e) of sub-section (4) of section 36;

(zc) the other source under clause (g) of sub-section (1) of section 37;

(zd) the manner of providing financial information relating to the corporate debtor


(ze) the form, the manner and the supporting documents to be submitted by

operational creditor to prove the claim under sub-section (3) of section 38;

(zf) the time within which the liquidator shall verify the claims under sub-section

(1) of section 39;

(zg) the manner of determining the value of claims under section 41;

(zh) the manner of relinquishing security interest to the liquidation estate and

receiving proceeds from the sale of assets by the liquidator under clause (a), and the

manner of realising security interest under clause (b) of sub-section (1) of section 52;

(zi) the other means under clause (b) of sub-section (3) of section 52;

(zj) the manner in which secured creditor shall be paid by the liquidator under sub-


(zk) the period and the manner of distribution of proceeds of sale under sub-section

(1) of section 53;

(zl) the other means under clause (a) and the other information under clause (b) of

section 57;

(zm) the conditions and procedural requirements under sub-section (2) of section

59;

(zn) the details and the documents required to be submitted under sub-section (7)

of section 95;

(zo) the other matters under clause (c) of sub-section (3) of section 105;

(zp) the manner and form of proxy voting under sub-section (4) of section 107;

(zq) the manner of assigning voting share to creditor under sub-section (2) of

section 109;

(zr) the manner and form of proxy voting under sub-section (3) of section 133;

(zs) the fee to be charged under sub-section (1) of section 144;

(zt) the appointment of other officers and employees under sub-section (2), and the

136

salaries and allowances payable to, and other terms and conditions of service of, such

officers and employees of the Board under sub-section (3), of section 194;

(zu) the other information under clause (i) of sub-section (1) of section 196;

(zv) the intervals in which the periodic study, research and audit of the functioning

and performance of the insolvency professional agencies, insolvency professionals and

information utilities under clause (r), and mechanism for disposal of assets under clause

(t), of sub-section (1) of section 196;

(zw) the place and the time for discovery and production of books of account and

other documents under clause (i) of sub-section (3) of section 196;

(zx) the other committees to be constituted by the Board and the other members of

such committees under section 197;

(zy) the other persons under clause (b) and clause (d) of section 200;

(zz) the form and the manner of application for registration, the particulars to be

contained therein and the fee it shall accompany under sub-section (1) of section 201;

(zza) the form and manner of issuing a certificate of registration and the terms and

conditions thereof, under sub-section (3) of section 201;

(zzb) the manner of renewal of the certificate of registration and the fee therefor,


(zzc) the other ground under clause (d) of sub-section (5) of section 201;

(zzd) the form of appeal to the National Company Law Appellate Tribunal, the

period within which it shall be filed under section 202;

(zze) the other information under clause (g) of section 204;

(zzf) the other grounds under Explanation to section 196;

(zzg) the setting up of a governing board for its internal governance and

management under clause (e), the curriculum under clause (l), the manner of conducting

examination under clause (m), of section 196;

(zzh) the time within which, the manner in which, and the fee for registration of

insolvency professional under sub-section (1) of section 207;

(zzi) the categories of professionals or persons, the qualifications and experience

and the fields under sub-section (2) of section 207;

(zzj) the manner and the conditions subject to which the insolvency professional

shall perform his function under clause (f) of sub-section (2) of section 208;

(zzk) the form and manner in which, and the fee for registration of information

utility under sub-section (1) of section 210;

(zzl) the form and manner for issuing certificate of registration and the terms and

137

conditions thereof, under sub-section (3) of section 210;

(zzm) the manner of renewal of the certificate of registration and the fee therefor,


(zzn) the other ground under clause (d) of sub-section (5) of section 210;

(zzo) the form, the period and the manner of filling appeal to the National Company

Law Appellate Tribunal under section 211;

(zzp) the number of independent members under section 212;

(zzq) the services to be provided by information utility and the terms and conditions

under section 213;

(zzr) the form and manner of accepting electronic submissions of financial

information under clause (b) and clause (c) of section 214;

(zzs) the minimum service quality standards under clause (d) of section 214;

(zzt) the information to be accessed and the manner of accessing such information

under clause (f) of section 214;

(zzu) the statistical information to be published under clause (g) of section 214;

(zzv) the form, the fee and the manner for submitting or accessing information


(zzw) the form and manner for submitting financial information and information

relating to assets under sub-section (2) of section 215;

(zzx) the manner and the time within which financial information may be updated

or modified or rectified under section 216;

(zzy) the form, manner and time of filing complaint under section 217;

(zzz) the time and manner of carrying out inspection or investigation under

subsection (2) of section 218;

(zzza) the manner of carrying out inspection of insolvency professional agency or

insolvency professional or information utility and the time for giving reply under

section 219;

(zzzb) the procedure for claiming restitution under sub-section (6), the period

within which such restitution may be claimed and the manner in which restitution of

amount may be made under sub-section (7) of section 220;

(zzzc) the other funds of clause (c) of sub-section (1) of section 222.

138

1[240A. Application of this Code to micro, small and medium enterprises. –

(1) Notwithstanding anything to the contrary contained in this Code, the provisions of clauses (c) and (h) of

section 29A shall not apply to the resolution applicant in respect of corporate insolvency resolution

process of any micro, small and medium enterprises.

(2) Subject to sub-section (1), the Central Government may, in the public interest, by notification, direct that

any of the provisions of this Code shall—

(a) not apply to micro, small and medium enterprises; or

(b) apply to micro, small and medium enterprises, with such modifications as may be

specified in the notification.

(3) A draft of every notification proposed to be issued under subsection (2), shall be laid before

each House of Parliament, while it is in session, for a total period of thirty days which may be

comprised in one session or in two or more successive sessions.

(4) If both Houses agree in disapproving the issue of notification or both Houses agree in making

any modification in the notification, the notification shall not be issued or shall be issued only in

such modified form as may be agreed upon by both the Houses, as the case may be.

(5) The period of thirty days referred to in sub-section (3) shall not include any period during which the

House referred to in sub-section (4) is prorogued or adjourned for more than four consecutive days.

(6) Every notification issued under this section shall be laid, as soon as may be after it is issued,

before each House of Parliament.

Explanation.— For the purposes of this section, the expression "micro, small and medium

enterprises" means any class or classes of enterprises classified as such under sub-section (1) of

section 7 of the Micro, Small and Medium Enterprises Development Act, 2006 (27 of 2006).]

241.Rules and Regulations to be laid before Parliament. –

Every rule and every regulation made under this Code shall be laid, as soon as may be after it is

made, before each House of Parliament, while it is in session, for a total period of thirty days

which may be comprised in one session or in two or more successive sessions, and if, before the

expiry of the session immediately following the session or the successive sessions aforesaid, both

Houses agree in making any modification in the rule or regulation or both Houses agree that the

rule or regulation should not be made, the rule or regulation shall thereafter have effect only in

such modified form or be of no effect, as the case may be; so, however, that any such

modification or annulment shall be without prejudice to the validity of anything previously done

under that rule or regulation.


139

242.Power to remove difficulties. -

(1) If any difficulty arises in giving effect to the provisions of this Code, the Central Government

may, by order, published in the Official Gazette, make such provisions not inconsistent with the

provisions of this Code as may appear to be necessary for removing the difficulty:

Provided that no order shall be made under this section after the expiry of five years from the

commencement of this Code.

(2)Every order made under this section shall be laid, as soon as may be after it is made, before each

House of Parliament.

243.Repeal of certain enactments and savings. –

(1) The Presidency Towns Insolvency Act, 1909 (3 of 1909) and the Provincial Insolvency Act,

1920 (5 of 1920) are hereby repealed.

(2) Notwithstanding the repeal under sub-sections (1) -

(i) all proceedings pending under and relating to the Presidency Towns Insolvency

Act 1909, and the Provincial Insolvency Act 1920 immediately before the

commencement of this Code shall continue to be governed under the aforementioned

Acts and be heard and disposed of by the concerned courts or tribunals, as if the

aforementioned Acts have not been repealed;

(ii) any order, rule, notification, regulation, appointment, conveyance, mortgage,

deed, document or agreement made, fee directed, resolution passed, direction given,

proceeding taken, instrument executed or issued, or thing done under or in pursuance

of any repealed enactment shall, if in force at the commencement of this Code, continue

to be in force, and shall have effect as if the aforementioned Acts have not been

repealed;

(iii) anything done or any action taken or purported to have been done or taken,

including any rule, notification, inspection, order or notice made or issued or any

appointment or declaration made or any operation undertaken or any direction given or

any proceeding taken or any penalty, punishment, forfeiture or fine imposed under the

repealed enactments shall be deemed valid;

(iv) any principle or rule of law, or established jurisdiction, form or course of

pleading, practice or procedure or existing usage, custom, privilege, restriction or

exemption shall not be affected, notwithstanding that the same respectively may have

been in any manner affirmed or recognised or derived by, in, or from, the repealed

enactments;

(v) any prosecution instituted under the repealed enactments and pending

immediately before the commencement of this Code before any court or tribunal shall,

subject to the provisions of this Code, continue to be heard and disposed of by the

concerned court or tribunal;

140

(vi) any person appointed to any office under or by virtue of any repealed

enactment shall continue to hold such office until such time as may be prescribed; and

(vii) any jurisdiction, custom, liability, right, title, privilege, restriction, exemption,

usage, practice, procedure or other matter or thing not in existence or in force shall not

be revised or restored.

(3) The mention of particular matters in sub-section (2) shall not be held to prejudice the general

application of section 6 of the General Clauses Act, 1897 (10 of 1897) with regard to the

effect of repeal of the repealed enactments or provisions of the enactments mentioned in the

Schedule.

244.Transitional provisions. –

(1) Until the Board is constituted or a financial sector regulator is designated under section 195,

as the case may be, the powers and functions of the Board or such designated financial sector

regulator, including its power to make regulations, shall be exercised by the Central Government.

(2) Without prejudice to the generality of the power under sub-section (1), the Central

Government may by regulations provide for the following matters: -

(a) recognition of persons, categories of professionals and persons having such

qualifications and experience in the field of finance, law, management or insolvency as

it deems necessary, as insolvency professionals and insolvency professional agencies

under this Code;

(b) recognition of persons with technological, statistical, and data protection

capability as it deems necessary, as information utilities under this Code; and

(c) conduct of the corporate insolvency resolution process, insolvency resolution

process, liquidation process, fresh start process and bankruptcy process under this Code.

245.Amendments of Act 9 of 1932.-

The Indian Partnership Act, 1932 shall be amended in the manner specified in the

First Schedule.


The Central Excise Act, 1944 shall be amended in the manner specified in the Second

Schedule.


The Income – Tax Act, 1961 shall be amended in the manner specified in the Third

Schedule.


The Customs Act, 1962 shall be amended in the manner specified in the Fourth

Schedule.

141


The Recovery of Debts due to Banks and Financial Institutions Act, 1993 shall be amended in

the manner specified in the Fifth Schedule.


The Finance Act, 1994 shall be amended in the manner specified in the Sixth Schedule.


The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest

Act, 2002 shall be amended in the manner specified in the Seventh Schedule.

252.Amendments of Act 1of 2004.-

The Sick Industrial Companies (Special Provisions) Repeal Act, 2003 shall be amended in the

manner specified in the Eighth Schedule.

253.Amendments of Act 51of 2007.-

The Payment and Settlement Systems Act, 2007 shall be amended in the manner specified in the

Ninth Schedule.


The Limited Liability Partnership Act, 2008 shall be amended in the manner specified in the

Tenth Schedule.


The Companies Act, 2013 shall be amended in the manner specified in the Eleventh Schedule.

1


INSOLVENCY AND BANKRUPTCY BOARD OF INDIA (INSOLVENCY RESOLUTION PROCESS FOR CORPORATE PERSONS) REGULATIONS, 20161

2. Definitions.

2[(aa)“class of creditors” means a class with at least ten financial creditors under clause

(a) of sub-section (6A) of section 21 and the expression, “creditors in a class” shall be

construed accordingly.]

1Vide Notification No. IBBI/2016-17/GN/REG004, dated 30th November, 2016, published in the Gazette of India,

Extraordinary, Part III, Sec.4, vide No. 432, dated 30th November, 2016 (w.e.f.01.12.2016).

2Inserted by Notification No. IBBI/2018-19/GN/REG031, dated 3rd July, 2018 (w.e.f. 04-07-2018).

(b) 3[“dissenting financial creditor” means a financial creditor who voted against the

resolution plan or abstained from voting for the resolution plan, approved by the

committee;]

4[“(ha) “evaluation matrix” means such parameters to be applied and the manner of applying such

parameters, as approved by the committee, for consideration of resolution plans for its approval;

(hb) “fair value” means the estimated realizable value of the assets of the corporate debtor, if they

were to be exchanged on the insolvency commencement date between a willing buyer and a willing

seller in an arm’s length transaction, after proper marketing and where the parties had acted

knowledgeably, prudently and without compulsion.]

(C) “insolvency professional entity” means an entity recognised as such under the Insolvency

and Bankruptcy Board of India (Insolvency Professionals) Regulations, 2016;

(d) 5[“liquidation value” means the estimated realizable value of the assets of the corporate

debtor, if the corporate debtor were to be liquidated on the insolvency commencement

date.]

3Substituted by Notification No. IBBI/2017-18/GN/REG022, dated 31st December, 2017 (w.e.f. 01.01.2018). Prior to

this substitution, Regulation 2(f)) stood as under: -

“ (f) dissenting financial creditors” means the financial creditors who voted against the resolution plan approved by the

committee;’.

4Inserted by Notification No. IBBI/2017-18/GN/REG024, dated 6th February, 2018 (w.e.f. 06-02-2018).

2

5Substituted by Notification no. IBBI/2017-18/GN/REG024, dated 6th February, 2018 (w.e.f. 06-02-2018). Clause (k), before substitution, stood as under: -

CHAPTER II

GENERAL

3. Eligibility for resolution professional.

(1) An insolvency professional shall be eligible to be appointed as a resolution professional for a

corporate insolvency resolution process of a corporate debtor if he, and all partners and directors of

the insolvency professional entity of which he is a partner or director, are independent of the

corporate debtor.

Explanation– A person shall be considered independent of the corporate debtor, if he:

(a) is eligible to be appointed as an independent director on the board of the corporate debtor

under section 149 of the Companies Act, 2013 (18 of 2013), where the corporate debtor is a

company;

(b) is not a related party of the corporate debtor; or

(c) is not an employee or proprietor or a partner:

“2(k) “liquidation value” means the amount determined in accordance with Regulation 35;”

(1) of a firm of auditors or 6[secretarial auditors] in practice or cost auditors of the corporate debtor;

or

(11) of a legal or a consulting firm, that has or had any transaction with the corporate debtor

amounting to 7[five per cent] or more of the gross turnover of such firm,

in the last three financial years.

8[(1A) Where the committee decides to appoint the interim resolution professional as resolution

professional or replace the interim resolution professional under section 22 or replace the resolution

professional under section 27, it shall obtain the written consent of the proposed resolution

professional in Form AA of the Schedule.]

(2) A resolution professional shall make disclosures at the time of his appointment and thereafter in

accordance with the Code of Conduct.

(3) A resolution professional, who is a director or a partner of an insolvency professional entity, shall

not continue as a resolution professional in a corporate insolvency resolution process if the

insolvency professional entity or any other partner or director of such insolvency professional entity

represents any of the other stakeholders in the same corporate insolvency resolution process.

6Substituted by Notification No. IBBI/2017-18/ GN/ REG030, dated 27th March, 2018 (w.e.f.01-04-2018).Regulation

3 (1) (c) (i), before substitution, stood as under :

“(i) of a firm of auditors or company secretaries in practice or cost auditors of the corporate debtor; or”.

3

7Substituted by Notification No. IBBI/2018-19/GN/REG031, dated 3rd July, 2018 (w.e.f. 04-07-2018). Before substitution,

the words stood as under:

“ten per cent”

3Inserted by Notification No. IBBI/2018-19/GN/REG031, dated 3rd July, 2018 (w.e.f. 04-07-2018)

9[4A. Choice of authorised representative

(1) On an examination of books of account and other relevant records of the corporate debtor, the

interim resolution professional shall ascertain class(s) of creditors, if any.

(2) For representation of creditors in a class ascertained under sub-regulation (1) in the committee,

the interim resolution professional shall identify three insolvency professionals who are-

(a) not his relatives or related parties;

(b) eligible to be insolvency professionals under regulation 3; and

(c) willing to act as authorised representative of creditors in the class.

(3) The interim resolution professional shall obtain the consent of each insolvency professional

identified under sub-regulation (2) to act as the authorised representative of creditors in the class

in Form AB of the Schedule.]

5. Extortionate credit transaction.

A transaction shall be considered extortionate under section 50(2) where the terms:

(1) require the corporate debtor to make exorbitant payments in respect of the credit provided; or

(2) are unconscionable under the principles of law relating to contracts.


CHAPTER III

PUBLIC ANNOUNCEMENT

6. Public announcement.

(1) An insolvency professional shall make a public announcement immediately on his appointment

as an interim resolution professional.

Explanation: ‘Immediately’ means not later than three days from the date of his appointment.

(2) The public announcement referred to in sub-regulation (1) shall:

(a) be in Form A of the Schedule;

(b) be published-

4

(1) in one English and one regional language newspaper with wide circulation at the location of the

registered office and principal office, if any, of the corporate debtor and any other location where in

the opinion of the interim resolution professional, the corporate debtor conducts material business

operations;

(11) on the website, if any, of the corporate debtor; and

(111) on the website, if any, designated by the Board for the purpose,

10[(ba) state where claim forms can be downloaded or obtained from, as the case may be;

(bb) offer choice of three insolvency professionals identified under regulation 4A to act as the

authorised representative of creditors in each class; and]

(c) provide the last date for submission of proofs of claim, which shall be fourteen days from the date

of appointment of the interim resolution professional.

(3) The applicant shall bear the expenses of the public announcement which may be reimbursed by

the committee to the extent it ratifies them.

11[***]


11Omitted by Notification No. IBBI/2018-19/GN/REG031, dated 3rd July, 2018 (w.e.f. 04-07-2018)

PROOF OF CLAIMS

15[8A. Claims by creditors in a class.

(1) A person claiming to be a creditor in a class shall submit claim with proof to the interim resolution

professional in electronic form in Form CA of the Schedule.

(2) The existence of debt due to a creditor in a class may be proved on the basis of-

(a) the records available with an information utility, if any; or

(b) other relevant documents, including any-

(1) agreement for sale;

(2) letter of allotment;

(3) receipt of payment made; or

(4) such other document, evidencing existence of debt.

5

(3) A creditor in a class may indicate its choice of an insolvency professional, from amongst the three

choices provided by the interim resolution professional in the public announcement, to act as its

authorised representative.]

14Substituted by Notification No. IBBI/2018-19/GN/REG031, dated 3rd July, 2018 (w.e.f. 04-07-2018). Before

substitution the words stood as –

“repaid”.


18[9A.Claims by other creditors.

(1) A person claiming to be a creditor, other than those covered under regulations 7, 8, or 9,

shall submit 19[its claim with proof] to the interim resolution professional or resolution

professional in person, by post or by electronic means in Form F of the Schedule.

(2) The existence of the claim of the creditor referred to in sub-section (1) may be proved on

the basis of –

(a) the records available in an information utility, if any, or

(b) other relevant documents sufficient to establish the claim, including any or all of the

following:-

(1) documentary evidence demanding satisfaction of the claim;

(2) bank statements of the creditor showing non-satisfaction of claim;

(3) an order of court or tribunal that has adjudicated upon non-satisfaction of claim, if any.]

18Inserted by Notification No. IBBI/2017-18/ GN/ REG013, dated 16th August, 2017, (w.e.f. 16-8-2017).

19Substituted by Notification No. IBBI/2018-19/GN/REG031, dated 3rd July, 2018 (w.e.f. 04-07-2018). Before substitution

the

words stood as –

“proof of claim”.

12. Submission of proof of claims.

(1) Subject to sub-regulation (2), a creditor shall submit 20[claim with proof] on or before the last

date mentioned in the public announcement.

21[(2) A creditor, who fails to submit claim with proof within the time stipulated in the public

announcement, may submit the claim with proof to the interim resolution professional or the

resolution professional, as the case may be, on or before the ninetieth day of the insolvency

commencement date.]

6

(3) Where the creditor in sub-regulation (2) is 22[ a financial creditor under regulation 8], it

shall be included in the committee from the date of admission of such claim:

Provided that such inclusion shall not affect the validity of any decision taken by the committee prior

to such inclusion.

13. Verification of claims.

(1) The interim resolution professional or the resolution professional, as the case may be,

shall verify every claim, as on the insolvency commencement date, within seven days from

the last date of the receipt of the claims, and thereupon maintain a list of creditors

containing names of creditors along with the amount claimed by them, the amount of their

claims admitted and the security interest, if any, in respect of such claims, and update it.



“proof of claim”.

21Substituted by Notification No. IBBI/2018-19/GN/REG031, dated 3rd July, 2018 (w.e.f. 04-07-2018). Sub

regulation (2) of regulation 12, before substitution stood as-

“A creditor, who failed to submit proof of claim within the time stipulated in the public announcement, may submit

such proof to the interim resolution professional or the resolution professional, as the case may be, till the approval of

a resolution plan by the committee.”



“a financial creditor”.

CHAPTER IV

COMMITTEE OF CREDITORS

16. Committee with only operational creditors.

(1) Where the corporate debtor has no financial debt or where all financial creditors are

related parties of the corporate debtor, the committee shall be set up in accordance

with this Regulation.

(2) The committee formed under this Regulation shall consist of members as under -

(a) eighteen largest operational creditors by value:

Provided that if the number of operational creditors is less than eighteen, the committee shall

include all such operational creditors;

(b) one representative elected by all workmen other than those workmen included

under sub-clause (a); and

7

(c) one representative elected by all employees other than those employees included

under sub-clause (a).

(3) A member of the committee formed under this Regulation shall have voting rights in

proportion of the debt due to such creditor or debt represented by such representative,

as the case may be, to the total debt

Explanation – For the purposes of this sub-regulation, ‘total debt’ is the sum of-

(a) the amount of debt due to the creditors listed in sub-regulation 2(a);

(b) the amount of the aggregate debt due to workmen under sub-regulation 2(b); and

(c) the amount of the aggregate debt due to employees under sub-regulation 2(c).

(4) A committee formed under this Regulation and its members shall have the same

rights, powers, duties and obligations as a committee comprising financial creditors and

its members, as the case may be.

23[16A. Authorised representative.

(1) The interim resolution professional shall select the insolvency professional, who is

the choice of the highest number of financial creditors in the class in Form CA received

under sub-regulation (1) of regulation 12, to act as the authorised representative of the

creditors of the respective class:

Provided that the choice for an insolvency professional to act as authorised representative

in Form CA received under sub-regulation (2) of regulation 12 shall not be considered.

(2) The interim resolution professional shall apply to the Adjudicating Authority for

appointment of the authorised representatives selected under sub-regulation (1) within

two days of the verification of claims received under sub-regulation (1) of regulation 12.

(3) Any delay in appointment of the authorised representative for any class of creditors

shall not affect the validity of any decision taken by the committee.

(4) The interim resolution professional shall provide the list of creditors in each class to

the respective authorised representative appointed by the Adjudicating Authority.

(5) The interim resolution professional or the resolution professional, as the case may be,

shall provide an updated list of creditors in each class to the respective authorised

representative as and when the list is updated.

Clarification: The authorised representative shall have no role in receipt or verification of

claims of creditors of the class he represents.

23Inserted by Notification No. IBBI/2018-19/ GN/ REG031, dated 3rd July, 2018 (w.e.f. 04.07.2018).

8

17. 24[Constitution of committee.

(1) The interim resolution professional shall file a report certifying constitution of the

committee to the Adjudicating Authority within two days of the verification of claims

received under sub-regulation (1) of regulation 12.

(2) The interim resolution professional shall hold the first meeting of the committee

within seven days of filing the report under this regulation.

(3) Where the appointment of resolution professional is delayed, the interim resolution

professional shall perform the functions of the resolution professional from the fortieth

day of the insolvency commencement date till a resolution professional is appointed

under section 22.]

24Substituted by Notification No. IBBI/2018-19/GN/REG031, dated 3rd July, 2018 (w.e.f. 04-07-2018). regulation

17, before substitution stood as-

“17. First meeting of the committee.

(1) The interim resolution professional shall file a report certifying constitution of the committee to the Adjudicating

Authority on or before the expiry of thirty days from the date of his appointment.

(2) The interim resolution professional shall convene the first meeting of the committee within seven days of filing

the report under this Regulation.”.

CHAPTER VI

MEETINGS OF THE COMMITTEE

19. 25[(19) Subject to this Regulation, a meeting of the committee shall be called by

giving not less than five days’ notice in writing to every participant, at the address it has

provided to the resolution professional and such notice may be sent by hand delivery, or

by post but in any event, be served on every participant by electronic means in

accordance with Regulation 20.

(2) The committee may reduce the notice period from five days to such other period of not

less than twenty-four hours, as it deems fit:

Provided that the committee may reduce the period to such other period of not less than

forty-eight hours if there is any authorised representative.]

25Substituted by Notification No. IBBI/2018-19/GN/REG031, dated 3rd July, 2018 (w.e.f. 04-07-2018). regulation

19, before substitution stood as-

“19. Notice for meetings of the committee.

(1) Subject to this Regulation, a meeting of the committee shall be called by giving not less than seven days’ notice in writing to

every participant, at the address it has provided to the resolution professional and such notice may be sent by hand delivery, or by

post but in any event, be served on every participant by electronic means in accordance with Regulation 20.

(2) The committee may reduce the notice period from seven days to such other period of not less than twenty four hours, as it deems fit.”

9

24. Conduct of meeting.

(1) The resolution professional shall act as the chairperson of the meeting of the committee.

CHAPTER VII

VOTING BY THE

COMMITTEE

25. Voting by the committee.

(1) The actions listed in section 28(1) shall be considered in meetings of the

committee.

(2) Any action other than those listed in section 28(1) requiring approval of the

committee may be considered in meetings of the committee.

(3) 26[The resolution professional shall take a vote of the members of the

committee present in the meeting, on any item listed for voting after

discussion on the same.]

(4) At the conclusion of a vote at the meeting, the resolution professional shall

announce the decision taken on items along with the names of the members of

the committee who voted for or against the decision, or abstained from voting.

(5) 27[The resolution professional shall-

(a) circulate the minutes of the meeting by electronic means to all members of the

committee within forty-eight hours of the conclusion of the meeting; and

(b) seek a vote of the members who did not vote at the meeting on the matters listed

for voting, by electronic voting system in accordance with regulation 26 where the

voting shall be kept open for twenty-four hours from the circulation of the minutes,

for.]

26Substituted by Notification No. IBBI/2018-19/GN/REG031, dated 3rd July, 2018 (w.e.f. 04-07-2018). Sub –

regulation 3 of regulation 25, before substitution stood as-

“(3) Where all members are present in a meeting, the resolution professional shall take a vote of the members of

the committee on any item listed for voting after discussion on the same.”.

27Substituted by Notification No. IBBI/2018-19/GN/REG031, dated 3rd July, 2018 (w.e.f. 04-07-2018). Sub –

regulation 5 of regulation 25, before substitution stood as-

“If all members are not present at a meeting, a vote shall not be taken at such meeting and the resolution professional shall -

10

26. Voting through electronic means.

(1) The resolution professional shall provide each member of the committee the means

to exercise its vote by either electronic means or through electronic voting system in

accordance with the provisions of this Regulation.

CHAPTER VIII

CONDUCT OF CORPORATE INSOLVENCY RESOLUTION PROCESS

29[Appointment of registered valuers.

The resolution professional shall within 30[ seven days of his appointment, but not later

than forty-seventh day from the insolvency commencement date], appoint two registered

valuers to determine the fair value and the liquidation value of the corporate debtor in

accordance with regulation 35:

Provided that the following persons shall not be appointed as registered valuers, namely:

(a) a relative of the resolution professional;

(b) a related party of the corporate debtor;

(c) an auditor of the corporate debtor at any time during the five years preceding the

insolvency commencement date; or

29Substituted by Notification No. IBBI/2017-18/GN/REG024, dated 6th February, 2018 (w.e.f. 06-02-2018). Prior to this substitution, Regulation 27, stood as under: -

“27. Appointment of registered valuers:- The interim resolution professional shall within seven days of his appointment, appoint two registered valuers to determine the liquidation value of the corporate debtor in accordance with Regulation 35:

Provided that the following persons shall not be appointed as registered valuers:

(a) a relative of the interim resolution professional; (b) a related party of the corporate debtor; (c) an auditor of the corporate debtor in the five years preceding the insolvency commencement date; or (d) a partner or director of the insolvency professional entity.”.

30 Substituted by Notification No. IBBI/2018-19/GN/REG031, dated 3rd July, 2018 (w.e.f. 04-07-2018). The words

before substitution stood as-

“seven days of his appointment”.

32[30 A. Withdrawal of application.

(1) An application for withdrawal under section 12A shall be submitted to the interim

resolution professional or the resolution professional, as the case may be, in Form FA of

the Schedule before issue of invitation for expression of interest under regulation 36A.

11

(2) The application in sub-regulation (1) shall be accompanied by a bank guarantee

towards estimated cost incurred for purposes of clauses (c) and (d) of regulation 31 till

the date of application.

(3) The committee shall consider the application made under sub-regulation (1) within

seven days of its constitution or seven days of receipt of the application, whichever is

later.

(4) Where the application is approved by the committee with ninety percent voting

share, the resolution professional shall submit the application under sub-regulation (1)

to the Adjudicating Authority on behalf of the applicant, within three days of such

approval.

(5) The Adjudicating Authority may, by order, approve the application submitted under

sub- regulation (4).]

CHAPTER IX

INSOLVENCY RESOLUTION PROCESS COSTS

31. Insolvency resolution process costs.

“Insolvency resolution process costs” under Section 5(13)(e) shall mean-

(a) amounts due to suppliers of essential goods and services under Regulation 32;

33[(aa) fee payable to authorised representative under sub-regulation (7) of regulation 16A;

(ab) out of pocket expenses of authorised representative for discharge of his functions

under section 25;]

(b) amounts due to a person whose rights are prejudicially affected on account of the

moratorium imposed under section 14(1)(d);

(c) expenses incurred on or by the interim resolution professional to the extent ratified

under Regulation 33;

(d) expenses incurred on or by the resolution professional fixed under Regulation 34; and



12

(e) other costs directly relating to the corporate insolvency resolution process and

approved by the committee.

32. Essential supplies.

The essential goods and services referred to in section 14(2) shall mean-

(1) electricity;

(2) water;

(3) telecommunication services; and

(4) information technology services,

to the extent these are not a direct input to the output produced or supplied by the corporate

debtor.

Illustration- Water supplied to a corporate debtor will be essential supplies for drinking

and sanitation purposes, and not for generation of hydro-electricity.

33. Costs of the interim resolution professional.

(1) The applicant shall fix the expenses to be incurred on or by the interim

resolution professional.

(2) The Adjudicating Authority shall fix expenses where the applicant has not

fixed expenses under sub-regulation (1).

(3) The applicant shall bear the expenses which shall be reimbursed by the

committee to the extent it ratifies.

(4) The amount of expenses ratified by the committee shall be treated as

insolvency resolution process costs. 34[ Explanation. - For the purposes of this regulation, “expenses” include the fee to be

paid to the interim resolution professional, fee to be paid to insolvency professional

entity, if any, and fee to be paid to professionals, if any, and other expenses to be

incurred by the interim resolution professional.]

34Substituted by Notification No. IBBI/2017-18/ GN/ REG030, dated 27th March, 2018 (w.e.f.01-04-2018). The explanation to Regulation 33, before substitution, stood as under:

“Explanation- For the purposes of this Regulation, “expenses” mean the fee to be paid to the interim resolution

professional and other expenses, including the cost of engaging professional advisors, to be incurred by the interim

resolution professional.”.

CHAPTER IX

RESOLUTION PLAN

13

35. 37[Fair value and Liquidation value.

(1) Fair value and liquidation value shall be determined in the following manner:-

(a) the two registered valuers appointed under regulation 27 shall submit to the

resolution professional an estimate of the fair value and of the liquidation value

computed in accordance with internationally accepted valuation standards, after

physical verification of the inventory and fixed assets of the corporate debtor;

(b) if in the opinion of the resolution professional, the two estimates of a value are

significantly different, he may appoint another registered valuer who shall submit an

estimate of the value computed in the same manner; and

(c) the average of the two closest estimates of a value shall be considered the fair value

or the liquidation value, as the case may be.

(2) After the receipt of resolution plans in accordance with the Code and these

regulations, the resolution professional shall provide the fair value and the liquidation

value to every member of the committee in electronic form, on receiving an undertaking

from the member to the effect that such member shall maintain confidentiality of the

fair value and the liquidation value and shall not use such values to cause an undue gain

or undue loss to itself or any other person and comply with the requirements under sub-

section (2) of section 29:

(3) The resolution professional and registered valuers shall maintain confidentiality of

the fair value and the liquidation value.”.]

38[35A. Preferential and other transactions.

(1) On or before the seventy-fifth day of the insolvency commencement date, the

resolution professional shall form an opinion whether the corporate debtor has been

subjected to any transaction covered under sections 43, 45, 50 or 66.

(2) Where the resolution profesional is of the opinion that the corporate debtor has been

subjected to any transactions covered under sections 43, 45, 50 or 66, he shall make a

determination on or before the one hundred and fifteenth day of the insolvency

commencement date, under intimation to the Board.

38Substituted by Notification No. IBBI/2018-19/GN/REG031, dated 3rd July, 2018 (w.e.f. 04-07-2018). Regulation 35

A (which was inserted by Notification No. IBBI/2017-18/GN/ REG030, dated 27th March, 2018 (w.e.f.01-04-2018)),

before substitution stood as under –

“35 A. Identification of Resolution Applicant.-

14

The resolution professional shall identify the prospective resolution applicants on or before the 105th day from the insolvency

commencement date.”

(3) Where the resolution profesional makes a determination under sub-regulation (2),

he shall apply to the Adjudicating Authority for appropriate relief on or before the one

hundred and thirty-fifth day of the insolvency commencement date.]

36. Information memorandum.

(1) 39[(1) Subject to sub-regulation (4), the resolution professional shall submit the

information memorandum in electronic form to each member of the committee within

two weeks of his appointment, but not later than fifty-fourth day from the

insolvency commencement date,whichever is earlier.]

(2) The information memorandum shall contain the following details of the corporate

debtor-

(a) 40[assets and liabilities with such description, as on the insolvency commencement

date, as are generally necessary for ascertaining their values.

Explanation: ‘Description’ includes the details such as date of acquisition, cost of

acquisition, remaining useful life, identification number, depreciation charged, book

value, and any other relevant details.]

(b) the latest annual financial statements;

(c) audited financial statements of the corporate debtor for the last two financial years

and provisional financial statements for the current financial year made up to a date not

earlier than fourteen days from the date of the application;

(d) a list of creditors containing the names of creditors, the amounts claimed by them,

the amount of their claims admitted and the security interest, if any, in respect of such

claims;

39 Substituted by Notification No. IBBI/2018-19/GN/REG031, dated 3rd July, 2018 (w.e.f. 04-07-2018). Regulation 36 (1)

before substitution, stood as -

“(1) Subject to sub-regulation (4), the resolution professional shall submit the information memorandum in

electronic form to-

(a) each member of the committee within two weeks of his appointment as

resolution professional; and

(b) to each prospective resolution applicant latest by the date of invitation of

resolution plan under clause (h) of sub-section (2) of section 25 of the Code.”

15

40Substituted by Notification No. IBBI/2017-18/ GN/ REG024, dated 6th Feb, 2018 (w.e.f. 06.02.2018) for Regulation 36 (2) (a). Prior to this substitution, Regulation 36(2)(a) stood as under:-

“36(2)(a)assets and liabilities, as on the insolvency commencement date, classified into appropriate categories for easy identification, with estimated values assigned to each category.”.

(e) particulars of a debt due from or to the corporate debtor with respect to related

parties;

(f) details of guarantees that have been given in relation to the debts of the corporate

debtor by other persons, specifying which of the guarantors is a related party;

(g) the names and addresses of the members or partners holding at least one per cent

stake in the corporate debtor along with the size of stake;

(h) details of all material litigation and an ongoing investigation or proceeding initiated by

Government and statutory authorities;

(i) the number of workers and employees and liabilities of the corporate debtor towards

them;

(j) 41[***]

(k) 42[***]

(l) other information, which the resolution professional deems relevant to the

committee.

(3) A member of the committee may request the resolution professional for further

information of the nature described in this Regulation and the resolution professional

shall provide such information to all members within reasonable time if such information

has a bearing on the resolution plan.

(4) 43[The resolution professional shall share the information memorandum after

receiving an undertaking from a member of the committee 44[***] to the effect that such

member or resolution applicant shall maintain confidentiality of the information and

shall not use such information to cause an undue gain or undue loss to itself or any other

person and comply with the requirements under sub-section (2) of section 29.]

41 Clause (j) omitted by Notification No. IBBI/2017-18/GN/REG022, dated 31st December, 2017 (w.e.f. 31-12-2017).

Prior to its omission, it stood as “(j) the liquidation value;”.

16

42 Clause (k) omitted by Notification No. IBBI/2017-18/ GN/ REG022, dated 31st December, 2017 (w.e.f. 31-12-2017).

Prior to its omission, it stood as, “(k) the liquidation value due to operational creditors;”.

43Substituted by Notification No. IBBI/2017-18/ GN/ REG024, dated 6th February, 2018 (w.e.f. 06-02-2018). Prior to

this substitution, Regulation 36(4) stood as under:

“36(4) The interim resolution professional or the resolution professional, as the case may be, shall share the

information memorandum after receiving an undertaking from a member of the committee or a potential resolution

applicant to the effect that such member or resolution applicant shall maintain confidentiality of the information and

shall not use such information to cause an undue gain or undue loss to itself or any other person and comply with the

requirements under section 29(2).”

44Omitted by Notification No. IBBI/2018-19/GN/REG031, dated 3rd July, 2018 (w.e.f. 04-07-2018). Before omission

the words stood as –

“or a prospective resolution applicant”.

45[36A. Invitation for expression of interest.

(1) The resolution professional shall publish brief particulars of the invitation for

expression of interest in Form G of the Schedule at the earliest, not later than seventy-

fifth day from the insolvency commencement date, from interested and eligible

prospective resolution applicants to submit resolution plans.

(2) The resolution professional shall publish Form G-

(i) in one English and one regional language newspaper with wide circulation at the

location of the registered office and principal office, if any, of the corporate debtor and

any other location where in the opinion of the resolution professional, the corporate

debtor conducts material business operations;

(ii) on the website, if any, of the corporate debtor;

(iii) on the website, if any, designated by the Board for the purpose; and

(iv) in any other manner as may be decided by the committee.

(3)The Form G in the Schedule shall -

(a) state where the detailed invitation for expression of interest can be downloaded or

obtained from, as the case may be; and

(b) provide the last date for submission of expression of interest which shall not be less

than fifteen days from the date of issue of detailed invitation.

17

(4) The detailed invitation referred to in sub-regulation (3) shall-

(a) specify the criteria for prospective resolution applicants, as approved by the

committee in accordance with clause (h) of sub-section (2) of section 25;

(b) state the ineligibility norms under section 29A to the extent applicable for

prospective resolution applicants;

(c) provide such basic information about the corporate debtor as may be required by a

prospective resolution applicant for expression of interest; and

(d) not require payment of any fee or any non-refundable deposit for submission of

expression of interest.

(5) A prospective resolution applicant, who meet the requirements of the invitation for

expression of interest, may submit expression of interest within the time specified in

the invitation under clause (b) of sub-regulation (3).

(6) The expression of interest received after the time specified in the invitation under

clause (b) of sub-regulation (3) shall be rejected.

(7) An expression of interest shall be unconditional

45 Substituted by Notification No. IBBI/2018-19/GN/REG031, dated 3rd July, 2018 (w.e.f. 04-07-2018). Regulation 36 A,

before substitution stood as –

“36A. Invitation of Resolution Plans

(1) The resolution professional shall issue an invitation , including evaluation matrix, to the prospective resolution applicants in

accordance with clause (h) of sub-section (2) of section 25, to submit resolution plans at least thirty days before the last date of

submission of resolution plans.

(2) Where the invitation does not contain the evaluation matrix, the resolution professional shall issue, with the approval of the

committee, the evaluation matrix to the prospective resolution applicants at least fifteen days before the last date for submission of

resolution plans.

(3) The resolution professional may modify the invitation, the evaluation matrix or both with the approval of the committee within

the timelines given under sub-regulation (1) or sub-regulation (2), as the case may be.

(4) The timelines specified under this regulation shall not apply to an ongoing

corporate insolvency resolution process-

(a) where a period of less than thirty-seven days is left for submission of resolution plans under sub-regulation (1);

(b) where a period of less than eighteen days is left for submission of resolution

plans under sub-regulation (2).

(5) The resolution professional shall publish brief particulars of the invitation in Form G of the Schedule:

(a) on the website, if any, of the corporate debtor; and

(b) on the website, if any, designated by the Board for the purpose.”

18

46[36B. Request for resolution plans.

(1) The resolution professional shall issue the information memorandum, evaluation

matrix and a request for resolution plans, within five days of the date of issue of the

provisional list under sub-regulation (10) of regulation 36A to -

(a) every prospective resolution applicant in the provisional list; and

(b) every prospective resolution applicant who has contested the decision of the

resolution professional against its non-inclusion in the provisional list.

(2) The request for resolution plans shall detail each step in the process, and the

manner and purposes of interaction between the resolution professional and the

prospective resolution applicant, along with corresponding timelines.

(3) The request for resolution plans shall allow prospective resolution applicants a

minimum of thirty days to submit the resolution plan(s).

37. 47[Resolution plan.

A resolution plan shall provide for the measures, as may be necessary, for insolvency

resolution of the corporate debtor for maximization of value of its assets, including but

not limited to the following:-

(a) transfer of all or part of the assets of the corporate debtor to one or more persons;

(b) sale of all or part of the assets whether subject to any security interest or not;

(c) the substantial acquisition of shares of the corporate debtor, or the merger or

consolidation of the corporate debtor with one or more persons;

48[(ca) cancellation or delisting of any shares of the corporate debtor, if applicable;]

(d) satisfaction or modification of any security interest;

(e) curing or waiving of any breach of the terms of any debt due from the corporate debtor;

(f) reduction in the amount payable to the creditors;

(g) extension of a maturity date or a change in interest rate or other terms of a debt

due from the corporate debtor;

(h) amendment of the constitutional documents of the corporate debtor;

(i) issuance of securities of the corporate debtor, for cash, property, securities, or in

exchange for claims or interests, or other appropriate purpose;

19

(j) change in portfolio of goods or services produced or rendered by the corporate debtor;

(k) change in technology used by the corporate debtor; and

(l) obtaining necessary approvals from the Central and State Governments and other

authorities.]

“(37) (1) A resolution plan may provide for the measures required for implementing it, including but not limited to the

following-

(a) transfer of all or part of the assets of the corporate debtor to one or more persons; (b) sale of all or part of the assets whether subject to any security interest or not; (c) the substantial acquisition of shares of the corporate debtor, or the merger or consolidation of

the corporate debtor with one or more persons;

(d) satisfaction or modification of any security interest;

(e) curing or waiving of any breach of the terms of any debt due from the corporate debtor; (f) reduction in the amount payable to the creditors; (g) extension of a maturity date or a change in interest rate or other terms of a debt due from the

corporate debtor;

(h) amendment of the constitutional documents of the corporate debtor; (i) issuance of securities of the corporate debtor, for cash, property, securities, or in exchange for

claims or interests, or other appropriate purpose; and (j) obtaining necessary approvals from the Central and State Governments and other authorities.”


38. Mandatory contents of the resolution plan.

(1) A resolution plan shall identify specific sources of funds that will be used to pay the -

(a) insolvency resolution process costs and provide that the 49[ insolvency resolution

process costs, to the extent unpaid, will be paid] in priority to any other creditor;

(b) liquidation value due to operational creditors and provide for such payment in

priority to any financial creditor which shall in any event be made before the expiry of

thirty days after the approval of a resolution plan by the Adjudicating Authority; and

(c) liquidation value due to dissenting financial creditors and provide that such payment

is made before any recoveries are made by the financial creditors who voted in favour

of the resolution plan.

50[(1A) A resolution plan shall include a statement as to how it has dealt with the

interests of all stakeholders, including financial creditors and operational creditors, of

the corporate debtor.]

(2) A resolution plan shall provide:

(a) the term of the plan and its implementation schedule;

(b) the management and control of the business of the corporate debtor during its term;

and

20

(c) adequate means for supervising its implementation.



“insolvency resolution process costs will be paid”.

50 Inserted by Notification No. IBBI/2017-18/ GN/ REG018, dated 5th October, 2017 (w.e.f. 5-10-2017).

39. Approval of resolution plan.

52[(1) A prospective resolution applicant in the final list may submit resolution plan or

plans prepared in accordance with the Code and these regulations to the resolution

professional electronically within the time given in the request for resolution plans under

regulation 36B along with

(a) an affidavit stating that it is eligible under section 29A to submit resolution plans;

(b) an undertaking that it will provide for additional funds to the extent required for the purposes under sub-regulation (1) of regulation 38;

52Substituted by Notification No. IBBI/2018-19/GN/REG031, dated 3rd July, 2018 (w.e.f. 04-07-2018). Sub – regulation (1) of

regulation 39 before substituted stood as –

“(1) A resolution applicant shall submit resolution plan(s) prepared in accordance with the Code and these regulations

to the resolution professional within the time given in the invitation made under clause (h) of sub-section (2) of section

25.”

54[(3) The committee shall evaluate the resolution plans received under sub-regulation (1)

strictly as per the evaluation matrix to identify the best resolution plan and may approve

it with such modifications as it deems fit:

Provided that the committee shall record the reasons for approving or rejecting a resolution

plan.]

55[(3A) The committee shall, while approving the resolution plan under sub-section (4) of

section (30), specify the amounts payable from resources under the resolution plan for the

purposes under sub-regulation (1) of regulation 38.]

56[(4) The resolution professional shall endeavour to submit the resolution plan approved

by the committee to the Adjudicating Authority at least fifteen days before the maximum

period for completion of corporate insolvency resolution process under section 12, along

with a compliance certificate in Form H of the Schedule.]

53 Substituted by Notification No. IBBI/2017-18/GN/REG019, dated 7th November, 2017 (w.e.f. 7-11-2017). Prior to this substitution,

Regulation 39(2) stood as under: -

“39(2) The resolution professional shall present all resolution plans that meet the requirements of the Code and these

Regulations to the committee for its consideration”

54Substituted by Notification No. IBBI/2018-19/GN/REG031, dated 3rd July, 2018 (w.e.f. 04-07-2018). Sub regulation (3) of regulation

39, before substitution stood as –

“The committee may approve any resolution plan with such modifications as it deems fit.”

55 Inserted by Notification No. IBBI/2017-18/GN/REG024, dated 6th February, 2018 (w.e.f. 06-02-2018).

21

56Substituted by Notification No. IBBI/2018-19/GN/REG031, dated 3rd July, 2018 (w.e.f. 04-07-2018). Sub – regulation (4) of

Regulation 39 before substitution stood as-

“(4)The resolution professional shall submit the resolution plan approved by the committee to the Adjudicating Authority, at least

fifteen days before the expiry of the maximum period permitted under section 12 for the completion of the corporate insolvency

resolution process, with the certification that-

(a) the contents of the resolution plan meet all the requirements of the Code and the Regulations; and

(b) the resolution plan has been approved by the committee:

Provided that the timeline specified in this sub-regulation shall not apply to an ongoing corporate insolvency resolution process which has completed 130th day from its commencement date.”

57[40A. Model time-line for corporate insolvency resolution process.

The following Table presents a model timeline of corporate insolvency resolution

process on the assumption that the interim resolution professional is appointed on the

date of commencement of the process and the time available is hundred and eighty days:

Section /

Regulation

Description of Activity Norm Latest

Timeline

Section 16(1) Commencement of CIRP and appointment

of IRP

…. T

Regulation 6(1) Public announcement inviting claims Within 3 Days of Appointment of

IRP

T+3

Section 15(1)(c) /

Regulations 6(2)(c) and 12 (1)

Submission of claims For 14 Days from Appointment of

IRP

T+14

Regulation 12(2) Submission of claims Up to 90th day of commencement T+90

Regulation 13(1) Verification of claims received under

regulation 12(1)

Within 7 days from the receipt of

the claim

T+21

Regulation 13(2) Verification of claims received under regulation 12(2)

T+97

Section 21(6A) (b) /

Regulation 16A

Application for appointment of AR Within 2 days from verification of

claims received under regulation

12(1)

T+23

Regulation 17(1) Report certifying constitution of CoC T+23

Section 22(1)

Regulation 19(1)

/ 1st meeting of the CoC Within 7 days of the constitution

of the CoC, but with seven days’ notice

T+30

Section 22(2) Resolution to appoint RP by the CoC In the first meeting of the CoC T+30

Section 16(5) Appointment of RP On approval by the AA ……

Regulation 17(3) IRP performs the functions of RP till the RP

is appointed. If RP is not appointed by 40th day

of commencement

T+40

Regulation 27 Appointment of valuer Within 7 days of appointment of RP, but not later than 40th day of commencement

T+47

Section 12(A) Regulation 30A

/ Submission of application for withdrawal of application admitted

Before issue of EoI W

CoC to dispose of the application Within 7 days of its receipt or 7

days of constitution of CoC,

whichever is later.

W+7

22

Filing application of withdrawal, if

approved by CoC with 90% majority voting, by RP to AA

Within 3 days of approval by CoC W+10

Regulation 35A RP to form an opinion on preferential and

other transactions

Within 75

commencement

days of the T+75

RP to make a determination on preferential

and other transactions

Within 115 days of

commencement

T+115

RP to file applications to AA for

appropriate relief

Within 135 commencement

days of T+135

Regulation 36 (1) Submission of IM to CoC Within 2 weeks of appointment of

RP, but not later than 54th day of commencement

T+54

Regulation 36A Publish Form G Within 75

commencement

days of T+75

Invitation of EoI

Submission of EoI At least 15 days from issue of EoI

(Assume 15 days)

T+90

Provisional List of RAs by RP Within 10 days from the last day of receipt of EoI

T+100

Submission of objections to provisional list For 5 days from the date of

provisional list

T+105

Final List of RAs by RP Within 10 days of the receipt of

objections

T+115

Regulation 36B Issue of RFRP, including Evaluation Matrix

and IM

Within 5 days of the issue of the

provisional list

T+105

Receipt of Resolution Plans At least 30 days from issue of

RFRP (Assume 30 days)

T+135

Regulation 39(4) Submission of CoC approved Resolution

Plan to AA

As soon as approved by the CoC T+165

Section 31(1) Approval of resolution plan by AA T=180

AA: Adjudicating Authority; AR: Authorised Representative; CIRP: Corporate Insolvency Resolution

Process; CoC: Committee of Creditors; EoI: Expression of Interest; IM: Information Memorandum; IRP:

Interim Resolution

Professional; RA: Resolution Applicant; RP: Resolution Professional; RFRP: Request for Resolution Plan.]


INSOLVENCY AND BANKRUPTCY BOARD OF INDIA (INSOLVENCY

PROFESSIONALS) REGULATIONS, 20161

[AMENDED UPTO 11.10.2018]

CHAPTER III

REGISTRATION OF INSOLVENCY PROFESSIONALS

Eligibility.

1. No individual shall be eligible to be registered as an insolvency professional if he-

(a) is a minor;

(b) is not a person resident in India;

(c) does not have the qualification and experience specified in Regulation 5 or

Regulation 9, as the case may be;

(d) has been convicted by any competent court for an offence punishable with

imprisonment for a term exceeding six months or for an offence involving

moral turpitude, and a period of five years has not elapsed from the date of expiry of

the sentence:

Provided that if a person has been convicted of any offence and sentenced in

respect thereof to imprisonment for a period of seven years or more, he shall not

be eligible to be registered;

(a) he is an undischarged insolvent, or has applied to be adjudicated as an insolvent;

(b) he has been declared to be of unsound mind; or

(c) he is not a fit and proper person;

Explanation: For determining whether an individual is fit and proper under

these Regulations, the Board may take account of any consideration as it deems

fit, including but not limited to the following criteria-

(1) integrity, reputation and character,

(2) absence of convictions and restraint orders, and

(3) competence, including financial solvency and net worth.

2Substituted by Notification No. IBBI/2017-18/GN/REG027, dated 27th March, 2018 (w.e.f. 01-04-2018). Sub Regulation (3), before substitution, stood as under:

“(3) The syllabus, format and frequency of the ‘Limited Insolvency Examination’, including

qualifying marks, shall be published on the website of the Board at least one month before the

examination.”

3[Qualifications and experience.

1. Subject to the other provisions of these regulations, an individual shall be

eligible for registration, if he –

(a) has passed the Limited Insolvency Examination within twelve months

before the date of his application for enrolment with the insolvency

professional agency;

(b) has completed a pre-registration educational course, as may be required by

the Board, from an insolvency professional agency after his enrolment as a

professional member; and

(c) has-

(1) successfully completed the National Insolvency Programme, as may

be approved by the Board;

(2) successfully completed the Graduate Insolvency Programme, as may

approved by the Board;

(3) fifteen years’ of experience in management, after receiving a

Bachelor’s degree from a university established or recognised by law; or

(4) ten years’ of experience as –

(a) chartered accountant registered as a member of the Institute of

Chartered Accountants of India,

(b) company secretary registered as a member of the Institute of

Company Secretaries of India,

(c) cost accountant registered as a member of the Institute of Cost

Accountants of India, or

(d) advocate enrolled with the Bar Council.]

Registration for a limited period.

9. (1) Notwithstanding any of the provisions of Regulation 5, an individual shall

be eligible to be registered for a limited period as an insolvency professional if

he-

a. has been ‘in practice’ for fifteen years as-

(1) a chartered accountant enrolled as a member of the Institute of Chartered

Accountants of India,

(2) a company secretary enrolled as a member of the Institute of Company

Secretaries of India,

(3) a cost accountant enrolled as a member of the Institute of Cost Accountants

of India, or

(4) an advocate enrolled with a Bar Council; and

b. submits an application for registration in Form A of the Second Schedule to

these Regulations to the insolvency professional agency with which he is

enrolled on or before 31st December, 2016 along with a non-refundable

application fee of five thousand rupees which shall be collected by such insolvency

professional agency on behalf of the Board.

(2) The insolvency professional agency shall submit to the Board the fee

collected and the details of the applications received under sub-regulation

(1)(b).

(3) An individual referred to sub-regulation (1) shall be registered for a limited

period upon submission of the details and fee to the Board under sub-

regulation (2), which shall be valid for a period of six months from the date of

such submission.

(4) An insolvency professional registered under sub-regulation (3) shall not

undertake any assignment as an insolvency professional after the expiry of his

registration:

Provided that he may complete the pending assignments undertaken before the

expiry of his registration, and his registration shall be deemed to be valid for

this limited purpose.

CHAPTER V

RECOGNITION OF INSOLVENCY PROFESSIONAL ENTITIES

Recognition of Insolvency Professional Entities.

12. 6[(1) A company, a registered partnership firm or a limited liability

partnership may be recognised as an insolvency professional entity, if –

(a) its sole objective is to provide support services to insolvency professionals,

who are its partners or directors, as the case may be;

(b) it has a net worth of not less than one crore rupees;

(c) majority of its shares is held by insolvency professionals, who are its directors,

in case it is a company;

(d) majority of capital contribution is made by insolvency professionals, who

are its partners, in case it is a limited liability partnership firm or a registered

partnership firm;

(e) majority of its partners or directors, as the case may be, are insolvency

professionals;

(f) majority of its whole time directors are insolvency professionals, in case it is

a company; and

(g) none of its partners or directors is a partner or a director of another

insolvency professional entity:

Provided that the insolvency professional entities recognised as on the date of

commencement of the Insolvency and Bankruptcy Board of India (Insolvency

Professionals) (Amendment) Regulations, 2018 shall comply with the provisions

of clauses

(a), (b) (c) and (d) on or before 30th September, 2018 and the provisions of clauses (e),(f)

and (g) on or before 30th June, 2018.]

6 Substituted by Notification No. IBBI/2017-18/GN/REG027, dated 27th March, 2018 (w.e.f. 01-04-2018). Sub regulation (1) of Regulation 12, before substitution, stood as under:

“A limited liability partnership, a registered partnership firm or a company may be

recognised as an insolvency professional entity if-

(a) a majority of the partners of the limited liability partnership or registered partnership firm

are registered as insolvency professionals; or

(b) a majority of the whole-time directors of the company are registered as insolvency

professionals, as the case may be.”


INSOLVENCY AND BANKRUPTCY BOARD OF INDIA (LIQUIDATION

PROCESS) REGULATIONS, 20161

2[(ea) “liquidation cost” under sub-section (16) of section 5 means-

(a) fee payable to the liquidator under regulation 4;

(b) remuneration payable by the liquidator under regulation 7;

(c) cost incurred by the liquidator under regulation 24; and

(d) interest on interim finance for a period of twelve months or for the period from the

liquidation commencement date till repayment of interim finance, whicheveris lower;]

2 Inserted by Notification No. IBBI/ 2017-18/GN/REG028, dated 27th March, 2018 (w.e.f. 01-04-2018).

CHAPTER II

APPOINTMENT AND REMUNERATION OF LIQUIDATOR

3. Eligibility for appointment as liquidator.

(1) An insolvency professional shall be eligible to be appointed as a liquidator if he, and

every partner or director of the insolvency professional entity of which he is a partner

or director, is independent of the corporate debtor.

Explanation– A person shall be considered independent of the corporate debtor, if he-

(a) is eligible to be appointed as an independent director on the board of the corporate

debtor under section 149 of the Companies Act, 2013 (18 of 2013), where the

corporate debtor is a company;

(b) is not a related party of the corporate debtor; or

(c) has not been an employee or proprietor or a partner:

i. of a firm of auditors or 3[secretarial auditors] or cost auditors of the corporate

debtor; or

ii. of a legal or a consulting firm, that has or had any transaction with the corporate

debtor contributing ten per cent or more of the gross turnover of such firm,

in the last three financial years.

(2) A liquidator shall disclose the existence of any pecuniary or personal relationship

with the concerned corporate debtor or any of its stakeholders as soon as he becomes

aware of it, to the Board and the Adjudicating Authority.

(3) An insolvency professional shall not continue as a liquidator if the insolvency

professional entity of which he is a director or partner, or any other partner or director

of such insolvency professional entity represents any other stakeholder in the same

liquidation process.

CHAPTER III

POWERS AND FUNCTIONS OF LIQUIDATOR

5. Reporting.

(1) The liquidator shall prepare and submit:

(a) a preliminary report;

(b) an asset memorandum;

(c) progress report(s);

(d) sale report(s);

(e) minutes of consultation with stakeholders; and

(f) the final report prior to dissolution

to the Adjudicating Authority in the manner specified under these Regulations.

(2) The liquidator shall preserve a physical as well as an electronic copy of the reports

and minutes referred to in sub-regulation (1) for eight years after the dissolution of the

corporate debtor.

CHAPTER IV

GENERAL

12. Public announcement by liquidator.

(1) The liquidator shall make a public announcement in Form B of Schedule II

within five days from his appointment.

(2) The public announcement shall-

(a) call upon stakeholders to submit their claims as on the liquidation

commencement date; and

(b) provide the last date for submission of claim, which shall be thirty days from

the liquidation commencement date.

(3) The announcement shall be published-

(a) in one English and one regional language newspaper with wide circulation at

the location of the registered office and principal office, if any, of the

corporate debtor and any other location where in the opinion of the

liquidator, the corporate debtor conducts material business operations;

(b) on the website, if any, of the corporate debtor; and

(c) on the website, if any, designated by the Board for this purpose.

13. Preliminary report.

The liquidator shall submit a Preliminary Report to the Adjudicating Authority within

seventy- five days from the liquidation commencement date, detailing-

(a) the capital structure of the corporate debtor;

(b) the estimates of its assets and liabilities as on the liquidation commencement

date based on the books of the corporate debtor:

Provided that if the liquidator has reasons to believe, to be recorded in writing, that the

books of the corporate debtor are not reliable, he shall also provide such estimates based

on reliable records and data otherwise available to him;

(c) whether, he intends to make any further inquiry in to any matter relating to the

promotion, formation or failure of the corporate debtor or the conduct of the

business thereof; and

(d) the proposed plan of action for carrying out the liquidation, including the

timeline within which he proposes to carry it out and the estimated liquidation

costs.

34. Asset memorandum.

(1) On forming the liquidation estate under section 36, the liquidator shall prepare an

asset memorandum in accordance with this Regulation within seventy-five days from

the liquidation commencement date.

41. All money to be paid in to bank account.

(1) The liquidator shall open a bank account in the name of the corporate debtor

followed by the words ‘in liquidation’, in a scheduled bank, for the receipt of all moneys

due to the corporate debtor.

SCHEDULE I

MODE OF SALE

1. AUCTION

2. PRIVATE SALE

The following regulation of 30A of the IBBI (Insolvency Resolution Process for Corporate Persons)

Regulations, 2016 has been inserted w.e.f 4th July, 2018 provides that:

1) An application for withdrawal under section 12A shall be submitted to the IRP or the RP,

as the case may be, in Form FA of the Schedule before issue of invitation for expression of

interest under regulation 36A.

2) The application in sub-regulation (1) shall be accompanied by a bank guarantee towards

estimated cost incurred for purposes of clause (c) and (d) of regulation till the date of

application

3) The committee shall consider the application made under sub-regulation (1) within seven

days of its constitution or seven days of receipt of the application, whichever is later

4) Where the application is approved by the committee with 90% voting share, the RP shall

submit the application under sub-regulation (1) to the AA on behalf of the applicant,

within three days of such approval

5) The AA may, by order approve the application submitted under sub-regulation (4).

The public announcement shall also include:

(ba) state where claim forms can be downloaded or obtained from, as the case may be

(bb) offer choice of three insolvency professionals identified under regulation 4A to act as

the authorised representative of creditors in each class;

Insolvency Resolution Process

Section/ Regulation Description of Activity Norm Latest Timeline

Section 16(1) Commencement of CIRP and appointment of IRP

T

Regulation 16(1) Public announcement inviting claims

Within 3 days of Appointment of IRP

T+3

Section 15(1)(c)/ Regulations 6(2)(c) and 12(1)

Submission of Claims For 14 days from appointment of IRP

T+14

Regulation 12(2) Submission of Claims Up to 90th day of commencement

T+90


Within 7 days from the receipt of the claim

T+21


T+97

Section 21(6A)(b) / Regulation 16A

Application for appointment of AR

Within 2 days from verification of claims received under regulation 12(1)

T+23

Regulation 17(1) Report certifying constitution of CoC

T+23

Section 22(1)/ Regulation 19(1)

1st meeting of the CoC Within 7 days of the constitution of the CoC, but with seven days notice

T+30

Section 22(2) Resolution to appoint RP by the CoC

In the first meeting of the CoC

T+30

Section 16(5) Appointment of RP On approval by the AA ............

Regulation 17(3) IRP performs the functions of RP till the RP is appointed

If RP is not appointed by 40th day of commencement

T+40

Regulation 27 Appointment of valuer Within 7 days of appointment of RP, but not later than 40th day of commencement

T+47

Section12(A)/ Regulation 30A

Submission of application for withdrawal of application admitted

Before issue of EoL W

CoC to dispose of the application

Within 7 days of its receipt or 7 days of constitution of CoC, whichever is later

W+7

Filing application of withdrawal, if approved by COC with 90% majority voting,

Within 3 days of approval by Coc

W+10

by RP to AA

Regulation 35A RP to form an opinion on preferential and other transactions

Within 75 days of the commencement

T+75

RP to make a determination on preferential and other transactions


T+115

RP to file applications to AA for appropriate relief


T+135

Regulation 36(1) Submission of IM to CoC

Within two weeks of appointment of RP, but not later than 54th day of commencement

T+54

47. Claims by creditors in a class

The IBBI has amended the IBBI (Insolvency Resolution Process for Corporate Persons)

Regulations, 2016 by inserting new Regulation 8A for Claims by Creditors in a class which provides

that:

1) A person claiming to be a creditor in a class shall submit claim with proof to the interim

resolution professional in electronic form in Form CA of the Schedule.

2) The existence of debt due to a creditor in a class may be proved on the basis of---

a) The records available with an information utility, if any; or

b) Other relevant documents , including any----

i. Agreement for sale

ii. Letter of allotment

iii. Receipt of payment made, or

iv. Such other document, evidencing existence of debt.

3) A creditor in a class may indicate its choice of an insolvency professional, from amongst the

three choices provided by the interim resolution professional in the public announcement,

to act as its authorized representative.

52. Claims must be submitted to the IRP or the RP on or before the last date

mentioned in the public announcement or till the approval of a resolution

plan by the committee

Regulation 12 of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations,

2016 provides that a creditor shall submit claim with proof on or before the last date mentioned in

the public announcement.

Regulation 12(2) as amended provides that [a creditor, who fails to submit claim with proof

within the time stipulated in the public announcement, may submit claim with proof to the interim

resolution professional or the resolution professional, as the case may be, on or before the ninetieth

day of the insolvency commencement date]

60.1.1 Numbers of members in the committee of the operational creditors

Regulation 16(2)) of the IBBI (Insolvency Resolution Process for Corporate Persons)

Regulations, 2016 provides that the committee formed under Regulation 16(1) shall consist of

members as under---

a) Eighteen largest operational creditors by value:

Provided that if the number of operational creditors is less than eighteen, the

committee shall include all such operational creditors

b) One representative elected by all workmen other than those workmen included under

sub-clause (a). and

c) One representative elected by all employees other than those employees included

under sub-clause (a)

101. Preservation of records

The Regulation [39A provides that the interim resolution professional or the resolution

professional, as the case may be, shall preserve a physical as well as an electronic copy of the

records relating to corporate insolvency resolution process of the corporate debtor as per the record

retention schedule as may be communicated by the Board in consultation with Insolvency

Professional Agencies]

43.10 Appointment of two registered valuers by RP within 7 days of his

appointment but not later than 47th day from insolvency commencement

date

The Regulation 27 of the IBBI (Corporate Insolvency Resolution of Corporate Personal)

Regulation as amended on 6th June, 2018 provides that the resolution professional shall within [

seven days of appointment but not later than forty seventh day from the insolvency commencement

date] appoint two registered valuers to determine the fair value and the liquidation value of the

corporate debtor in accordance with regulation 35

62. Appointment of representative by the IRP

The Regulation 16A(1) provides that the interim resolution professional shall select the

insolvency professional, who is the choice of the highest number of financial creditors in the class in

Form CA received under regulation 12(1), to act as the authorised representative of the creditors of

the respective class

Amendments

Undergo continuing professional education, as may be required by the Board

Not outsource any of his duties and responsibilities under the Code, except those specifically

permitted by the Board

Pay to the Board, a fee of ten thousand rupees, every five years after the year in which the

certificate is granted and such fee shall be paid on or before 30th April of the year it falls due

Illustration:

Where registration is granted on 2nd February, 2018 in the year 2017-18, the fee shall

become due on 1st April, 2023 after five years (2018-19, 2019-20, 2020-21, 2021-22, 2022-

23) and it shall be paid on or before the 30th April, 2023.

Pay to the Board, a fee calculated at the rate of 0.25 percent of the professional fee earned

for the services rendered by him as an insolvency professional in the preceding financial

year, on or before 30th of April every year, along with a statement in Form E of the Second

Schedule

83.3 List of the various Acts for the purposes of conviction of any offence

punishable with imprisonment consideration of under section 29A(d)

The Schedule XII has been inserted section 38 of the Ordinance No.6 of 2018, w.e.f. 6-6-2018

which provides that if any person convicted and penalized as per provision of section 29A(d) of the

Code, shall not be eligible to submit the resolution plan:

1) The Foreign Trade (Development and Regulation) Act, 1922 (22 of 1922)

2) The Reserve Bank of India Act,1934 (2 of 1934)

3) The Central Excise Act, 1944 (1 of 1944)

4) The Prevention of Food Adulteration Act, 1954 (37 of 1954)

5) The Essential Commodities Act, 1955 (10 of 1955)

6) The Securities Contracts (Regulation) Act, 1956 (42 of 1956)

7) The Income-tax Act, 1961 (43 of 1961)

8) The Customs Act, 1962 (52 of 1962)

9) The Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974)

10) The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974

(52 of 1974)

11) The Air (Prevention and Control of Pollution) Act, 1981 (14 of 1981)

12) The Sick Industrial Companies ( Special Provisions) Act, 1985 (1 of 1985)

13) The Environment (Protection) Act, 1986 (29 of 1986)

14) The Prohibition of Benami Property Transactions Act, 1988 (45 of 1988)

15) The Prevention of Corruption Act, 1988 (49 of 1988)

16) The Securities and Exchange Board of India Act,1992 (15 of 1992)

17) The Foreign Exchange Management Act, 1999 (42 of 1999)

18) The Competition Act,2002 (12 of 2002)

19) The Prevention of Money-Laundering Act, 2002 (15 of 2002)

20) The Limited Liability Partnership Act, 2008 (6 of 2008)

21) The Foreign Contribution (Regulation) Act, 2010 (42 of 2010)

22) The Companies Act, 2013 (18 of 2013) or any previous company law

23) The Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015

(22 of 2015)

24) The Insolvency and Bankruptcy Code, 2016 (31 of 2016)

25) The Central Goods and Services Tax Act, 2017 (12 of 2017) and respective State Acts

imposing State goods and services tax

26) such other Acts as may be notified by the Central Government.

Meaning of Essential Supplies

Regulation 32 of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations,

2016 provides that the essential goods and services referred to in section 14(2) shall mean—

1) electricity

2) water

3) telecommunications services, and

4) information technology services,

to the extent these are not a direct input to the output produced or supplied by the

corporate debtor.

Illustration: Water supplied to a corporate debtor will be essential supplies for drinking and

sanitation purposes, and not for generation of hydro-electricity.

92. Insolvency Resolution Process Cost

The Regulation 31 provides that the Insolvency resolution process costs under section 5(13)(e) shall

mean-

(a) amounts due to suppliers of essential goods and services under section 32

(aa) fee payable to authorized representative under sub-regulation (7) of regulation 16A

(ab) out of pocket expenses of authorized representative for discharge of his functions under section

25

(b) amounts due to a person whose rights are prejudicially affected on account of the moratorium

imposed under section 14(1)(d)

(c) expenses incurred on or by the interim resolution professional to the extent ratified under

Regulation 33

(d) expenses incurred on or by the resolution professional fixed under Regulation 34; and

(e) other costs directly relating to the corporate insolvency resolution process and approved by the

committee.

The Supreme Court (SC) recently allowed UltraTech Cement’s purchase of bankrupt Binani Cement to go through.

What is the case on?

The case involves the bidding process of debt-laden Binani Cement Ltd, under Insolvency and Bankruptcy Code

(IBC).

In the course of bidding, Dalmia Bharat Pvt. Ltd-owned Rajputana Properties had bid Rs 69.30 billion.

However, the Binani's Committee of Creditors (CoC) then received a revised bid from UltraTech cement of Rs 79

billion.

Binani Cement’s CoC decided to consider this improved bid, even after Rajputana Properties’ offer was declared

the highest.

It was also filed with the Kolkata bench of the bankruptcy court for its approval.

The CoC's decision would entirely pay off all secured and unsecured financial creditors, as well as operational

creditors of Binani.

Rajputana Properties had approached the apex court, challenging the CoC’s decision.

It argued that it was against the spirit of the insolvency law as one could not have revised its bid after being aware

of the competitor’s bid.

The court referred the matter to the NCLAT (National Company Law Appellate Tribunal).

What was NCLAT's ruling?

A two-member bench of NCLAT had dismissed the appeal by Rajputana Properties.

NCLAT held that the objective of the Insolvency and Bankruptcy Code was resolution.

Ultimately, the purpose of the resolution is for maximization of the value of assets of the debtor.

Also, the resolution process should consider the interests of even those creditors, who are not part of the resolution

process, such as operational creditors.

NCLAT said that Rajputna's offer for Binani Cement was “discriminatory” against some financial creditors.

Notably, UltraTech’s bid was backed by 100% of secured creditors, 100% of unsecured creditors and 100% of

operational creditors.

Backed by this rationality, the Court upheld the order of the National Company Law Appellate Tribunal (NCLAT).

This is a victory for UltraTech and for the committee of creditors of Binani Cement.

What are the concerns?

The ruling is a severe blow to the integrity of the process embedded in the Insolvency and Bankruptcy Code (IBC).

The decision seems to be not in keeping with the natural justice of the auction process.

Acceptance of offers outside the IBC-sanctioned bidding process undermines the whole basis of the auction

mechanism.

Moreover, operational creditors are not specifically “discriminated” against in the IBC process.

There is, in all economic transactions, a hierarchy of creditors.

Financial creditors such as bond-holders are usually at the top of this list, and the IBC recognises this basic fact.

In sealed-bid auctions, allowing collection of information, after opening the bid, to make another offer is unfair.

If this is allowed, all future auctions will see lower bids as other parties begin to hold back their offers to examine

what others would bid.

In any case, there is now an incentive for companies to short-circuit or manipulate the bidding process.

What lies ahead?

Certainly, the gap needs to be addressed by the government.

The NCLAT judgment needs to be carefully studied by the appropriate ministries (including corporate affairs,

finance, law).

Suitable amendments have to be proposed to the IBC’s governing legislation.

The legal loopholes that have been taken advantage of in this case have to be addressed.

NCLT CASE LAWS:

Transfer of Proceedings from Courts to NCLT: The Calcutta High Court’s View

A question that has often come up since the Companies Act, 2013 (the 2013 Act) came into

force is how will proceedings ongoing before the High Courts be transferred to the National

Companies Law Tribunal (NCLT)? Section 434(1)(c) of the 2013 Act deals with transfer of

“all proceedings” under the Companies Act, 1956[1] to the NCLT. For winding up

proceedings, this provision states that only such proceedings relating to winding up, which are

at a certain stage as prescribed by central Government, are to be transferred to the NCLT.

Another part of this provision, meanwhile, deals with cases other than winding up proceedings,

which may not be transferred to the NCLT.[2] A reading of all the various provisions leads to

the conclusion that not all proceedings under the 1956 Act pending before the District Courts

and High Courts are to be transferred to the NCLT.

Share Transfers: Can the Company Say No?

Share transfer restrictions come in various shapes and sizes and in so far as they relate to shares

of public companies, their validity has been a topic of hot debate. In several cases, Indian courts

have considered and opined on the legality of contractual restrictions on the transfer of shares

of public companies. The position in this regard now appears to be much clearer than before

with changes also being introduced in the Companies Act, 2013 (CA 2013). However, one

aspect of this debate that has hitherto gained lesser traction is the ability of a public company

to refuse registration of share transfers pursuant to section 58(4) of the CA 2013.

Section 58(2) of CA 2013 states that the securities of any member in a public company are

freely transferable, while under section 58(4) of CA 2013, it is open to the public company to

refuse registration of the transfer of securities for a ‘sufficient cause’. To that extent, section

58(4) of CA 2013 can be read as a limited restriction on the free transfer permitted under section

58(2) of CA 2013. However, the statute does not provide any guidance on what would

constitute ‘sufficient cause’ and leaves it open to the company itself to ascertain the same.

Resetting the Clock: Supreme Court Sends Jaypee Infratech Limited Back to NCLT for CIRP

By utilising its powers under Article 142 of the Indian Constitution, the Supreme Court of India

has delivered an unprecedented decision on August 09, 2018 in Chitra Sharma & Ors. v. Union

of India and Ors[1]., and other connected matters (the Jaypee / homebuyers Case)[2]. In this

era of evolving jurisprudence on the Insolvency and Bankruptcy Code, 2016 (IBC), the

Supreme Court, by this landmark decision, has settled some highly debated issues with respect

to its implementation and has provided much required certainty. This has been achieved by the

Supreme Court paving the way to reset the clock by re-commencing the Corporate Insolvency

Resolution Process (CIRP).

https://corporate.cyrilamarchandblogs.com/2018/10/transfer-proceedings-courts-nclt-calcutta-high-courts-view/#more-2554

https://corporate.cyrilamarchandblogs.com/2018/09/share-transfers-can-company-say-no/

https://corporate.cyrilamarchandblogs.com/2018/08/resetting-clock-supreme-court-sends-jaypee-infratech-limited-back-nclt-cirp/

Is a Third-Party Security Holder a Financial Creditor Under the Insolvency and Bankruptcy

Code?

In its judgment pronounced on May 9, 2018, the National Company Law Tribunal (NCLT),

Allahabad, in the case of ICICI Bank Limited v. Mr. Anuj Jain (Resolution Professional of

Jaypee Infratech Limited), addressed the issue of the rights of third-party security holders of a

corporate debtor under the Insolvency and Bankruptcy Code, 2016 (IBC).

The judgment negated ICICI Bank Limited’s contention that it should be considered a financial

creditor of Jaypee Infratech Limited, the corporate debtor. ICICI Bank’s claim was based on

the corporate debtor having created mortgages on its property to secure loans provided to

Jaiprakash Associates Limited, the holding company of the corporate debtor. The NCLT

concluded that there was no financial debt owed to ICICI Bank by the corporate debtor, and so

it could not be considered a financial creditor of the corporate debtor.

We consider here the correctness of the judgment and whether the NCLT has considered all

the implications of its finding.

NCLT Can Reject a Scheme of Arrangement if it is not in Public Interest

In the case of Wiki Kids Limited[1], the NCLAT upheld the order of the NCLT rejecting a

scheme of amalgamation, as it resulted in undue advantage to the promoters of the

amalgamating company.

Facts

Background

In the instant case, a non-listed company Wiki Kids Limited (Transferor Company), wished

to amalgamate with Avantel Limited, a listed company (Transferee Company). For the

aforesaid purpose, these entities (collectively referred to as Appellants) had proposed a

scheme of amalgamation (Scheme) and approached the Andhra Pradesh High Court, seeking

directions with respect to the meetings of the shareholders, and secured and unsecured

creditors in the Scheme.

Pursuant to the directions of the High Court, the Scheme was approved by the shareholders of

the Transferee Company. In the meantime, in view of a notification of the Ministry of

Corporate Affairs dated December 7, 2016, the case was transferred to the National Company

Law Tribunal (NCLT). The Appellants, accordingly, filed a second motion before the

Hyderabad Bench of the NCLT. The NCLT, on perusal of various documents including the

share exchange ratio and the valuation report, rejected the Scheme on the ground that it was

beneficial to the common promoters of the Appellants and no public interest was being

served.

Innoventive Industries Limited v. ICICI Bank Limited: Paradigm Shift in Insolvency Law in

India

On August 31st 2017, the Supreme Court of India in the case of Innoventive Industries Limited

v. ICICI Bank Limited* delivered its first extensive ruling on the operation and functioning of

the Insolvency and Bankruptcy Code, 2016 (Insolvency Code). The Court said that it is

pronouncing its detailed judgment in the very first application under the Insolvency Code, so

that all Courts and Tribunals may take notice of a paradigm shift in the law.

https://corporate.cyrilamarchandblogs.com/2018/06/third-party-security-holder-financial-creditor-insolvency-bankruptcy-code/

https://corporate.cyrilamarchandblogs.com/2018/06/third-party-security-holder-financial-creditor-insolvency-bankruptcy-code/

https://corporate.cyrilamarchandblogs.com/2018/01/nclt-can-reject-scheme-arrangement-not-public-interest/

https://corporate.cyrilamarchandblogs.com/2017/09/innoventive-industries-limited-v-icici-bank-limited-paradigm-shift-insolvency-law-india/

https://corporate.cyrilamarchandblogs.com/2017/09/innoventive-industries-limited-v-icici-bank-limited-paradigm-shift-insolvency-law-india/

The Supreme Court dismissed the appeal filed on behalf of Innoventive Industries Limited and

confirmed the decision of the National Company Law Appellate Tribunal (NCLAT), which in

turn had affirmed the order passed by the National Company Law Tribunal Mumbai (NCLT)

admitting the insolvency petition filed by ICICI Bank Limited against Innoventive Industries

Limited.

NCLAT Defines the Scope and Extent of the Corporate Debtor’s Right to Contest Admission

of Insolvency Applications Filed by Financial Creditors

In a landmark judgment recently delivered by the National Company Law Appellate Tribunal

(NCLAT) in the case of Innoventive Industries Limited v. ICICI Bank Limited, the NCLAT

has held that the National Company Law Tribunal (NCLT) is bound to issue only

a limited notice to the corporate debtor before admitting a case under Section 7 of the

Insolvency and Bankruptcy Code, 2016 (Insolvency Code).

Whilst dismissing the appeal filed by Innoventive Industries Limited against an order passed

by NCLT, Mumbai admitting the insolvency petition filed by ICICI Bank Limited, the NCLAT

has clarified that adherence to principles of natural justice would not mean that in every

situation the NCLT is required to afford reasonable opportunity of hearing to the corporate

debtor before passing its order.

Indian Insolvency Regime without Cross-border Recognition – A Task Half Done?

The Insolvency and Bankruptcy Code, 2016 (Insolvency Code) has been one of the biggest

Indian reform of recent times, which has moved the regime away from one that was highly

uncertain for foreign investors. Among other important changes, the Insolvency Code

contemplates change in control of the company during the insolvency resolution process to an

insolvency professional (IP). The Insolvency Code comes in an environment where many

Indian companies have gone global and have made acquisitions outside India.

India has not adopted the United Nations Commission on International Trade Law Model Law

on Cross-Border Insolvency (UNCITRAL Model Law). It is notable that only a few countries

that have adopted the UNCITRAL Model Law have specified a ‘reciprocity’ requirement for

recognition of insolvency proceedings. Therefore, even if India has not adopted the

UNCITRAL Model Law, Indian insolvency proceedings may be recognised in a jurisdiction

that does not have a reciprocity requirement (this remains untested for Indian insolvency

judgements). Also, Section 234 of the Insolvency Code provides for the Indian Government to

enter into bilateral treaties with other countries for application of the Insolvency Code to assets

or property outside India of the insolvent entities. However, to date, no such bilateral treaty has

been signed.

https://corporate.cyrilamarchandblogs.com/2017/05/nclat-defines-scope-extent-corporate-debtors-right-contest-admission-insolvency-applications-filed-financial-creditors/

https://corporate.cyrilamarchandblogs.com/2017/05/nclat-defines-scope-extent-corporate-debtors-right-contest-admission-insolvency-applications-filed-financial-creditors/

https://corporate.cyrilamarchandblogs.com/2017/05/indian-insolvency-regime-without-cross-border-recognition-task-half-done/

IBC CODE QUESTIONS

REVISION OF IBC CODE SHOULD BE DONE ON THE BASIS OF THESE QUESTION :-

Q1) STATE THE MAIN OBJECTIVE OF IBC CODE ?

Q2) STATE THE STRUCTURE OF ADMINISTRATIVE BODIES UNDER IBC CODE ?

Q3)WRITE A SHORT NOTE ON ADJUDICATING AUTHORITIES UNDER IBC CODE ?

Q4) WHAT DO YOU MEAN BY a) FINANCIAL CREDITOR b) OPERATIONAL CREDITOR c) OPERATIONAL

DEBT

Q5) WRITE A SHORT NOTE ON IP AND IP ENTITIES ?

Q6) WHAT IS THE MINIMUM AMOUNT OF DEFAULT ON THE BASIS OF WHICH ACTION CAN BE TAKEN

AGAINST THE COMPANY ?

Q7) STATE THE LIST OF PERSONS WHO MAY INITIATE CORPORATE INSOLVENCY RESOLUTION

PROCESS ? REG-6

Q8) WHAT DO YOU MEAN BY CIR PROCESS ? [CIRP IS A PROCESS DURING WHICH CREDITOR ASSESS

WHETHER THE DEBTORS BUSINESS IS VIABLE TO CONTINUE AND EXPLORE THE OPTIONS FOR ITS

RESCUE AND REVIVAL

Q9) WHAT DOCUMENTS ARE SUBMITTED BY FINANCIAL CREDITOR WHILE FILING APPLICATION FOR

INITIATING CIRP PROCESS AGAINST A CORPORATE DEBTOR BY :-

a) FINANCIAL CREDITOR - REG-7

b) OPERATIONAL CREDITOR – REG-8

ALSO EXPLAIN HOW THE ADJUDICATING AUTHORITY AND WITHIN WHAT TIME PERIOD IT TAKEN THE

STEPS ? REG -7(4) TO 7 , REG 9(4) TO 6

Q10) CAN A CORPORATE APPLICANT ITSELF APPLY FOR INITIATION OF CIRP PROCESS ? EXPLAIN REG-

10

Q11) WHICH PROSON SHALL NOT BE ENTITLED TO INITIATE CORPORATE INSOLVENCY RESOLUTION

PROCESS ? REG-11

Q12) WHAT IS THE TIME LIMIT FOR COMPLETION OF CIRP PROCESS ? CAN SUCH PERIOD BE

ENTENDED AGAIN AND AGAIN AND WHOSE CONSENT IS REQUIRED FOR THE EXTENTION ? REG-12

Q13) WHAT ORDER ARE PASSED BY ADJUDICATING AUTHORITY IMMEDIATELY AFTER ADMISSION OF

APPLICANT ? REG-13

Q14) WHO APPOINTS INTERIM RESOLUTION PROFESSIONAL ? REG-13 NCLT ? WITHIN WHAT TIME

IRP IS APPOINTED REG-16

Q15) FOR WHAT TIME PEROID WILL THE ORDER OF MORATORIUM HAVE EFFECT ? EXPLAIN IN

DETAIL & NOT IN 1 LINE [ REG 14(4) & ITS PROVISO]

Q16) WHAT MATTER ARE PROHIBITED BY ORDER DECLARING MORATORIUM ? REG 14(1) WHAT

MATTER ARE NOT TERMINATED DURING MORATORIUM PERIOD ? 14(2)(3)

Q17) WITHIN WHAT TIME PUBLIC ANNOUNCEMENT IS MADE ? [HINT: WITHIN 3 DAYS OF THE

APPOINTMENT OF IRP]. WHAT ARE CONTENTS OF PUBLIC ANNOUNCEMENT OF CIRP PROCESS AS

PER REGULATION-13 ?

Q18) WHAT IS THE INSOLVENCY COMMENDCEMENT DATE ? [HINTS REG-7(6) FROM THE DATE OF

ADMISSION OF APPLICATION BY NCLT] ?

Q19) IS IT COMPULSORY FOR OPERATIONAL CREDITOR TO PROPOSE THE NAME OF IRP WHILE

APPLYING TO NCLT FOR CIRP PROCESS ? 16(3)

Q20) WHAT IS THE TENURE OF IRP ?

Q21) WHAT POWER ARE EXERCISED BY IRP AS SOON AS IRP IS APPOINTED ? REG-17

Q22) WHAT ARE DUTIES OF IRP ? LEARN a,b,c,d REG-18

Q23) WHAT IS THE REMEDY TO IRP IF PERSONNEL DO NOT COOPERATE WITH IRP ? REG 19(2)

Q24) WHAT STEPS CAN BE TAKEN BY IRP TO MANAGE THE OPERATION OF THE CORPORATE DEBTOR

AS A GOING CONCERN ? REG-20

Q25) WHO CONSTITUTE COMMITTEE OF CREDITORS? REG-21 (HINT:IRP)

WHO COMPRISES COC ? REG21(2) EXPLAIN THE CASE WHERE OC ARE ALSO INCLUDED IN COC

WILL OC BE COUNTED IF OC HAS ASSIGNED OPERATIONAL DEPT TO A FONANCIAL CREDITOR ? 21(

5)

Q26) HOW ARE DECISION AT THE MEETING OF COC TAKEN ? 21(8)

Q27) WHO APPOINTS RP? REG22 COC IN ITS FIRST MEETING HELD WITHIN 7 DAYS OF CONSTITUTION

DECIDE BY A MAJORITY VOTE OF ATLEAT 75% OF VOTING SHARES OF F.C EITHER RESOLVE TO APP

IRP AS RP/REPLACE IRP BY QVOLTER RP. IN CASE OF RECISION OF REPLACEMENT COC FILES

APPLICATION BEFORE NCLT . NCLT FORWARDS THE NAME OF PROPOSED RP TO IBBI FOR ITS

CONFORMATION & APPOINT AFTER CONFORMATION BY IBBI. IF IBBI DOES NOT CONFIRM THE

NAME WITHIN 10 DAYS THEN NCLT DIRECTS IRP TO CONTINUE AS RP

Q28) WHAT ARE THE DUTIES OF RP UNDER REG-25 COMPARE WITH THE DUTIES OF IRP UNDER REG-

18,20

Q29) CAN RP BE REPLACE DURING CIRP PROCESS ? BY WHOM AND WITH WHOSE CONSENT ? HOW

[HINTS: YES, BY COC , 75% .....] REG-27

Q30) STATE SOME MATTERS FOR WHICH RP NEEDS PRIOR APPROVAL OF COC UNDER REG-28?

LEARN a,b,c,f,i,j. WHAT ARE CONTENTS OF RP ?

Q31) WHO SHALL PREPARE INFORMATION MEMORANDUM REG-30 WHAT ARE ITS CONTENTS ?

WHO SUBMITS RESOLUTION PLAN TO THE RESOLUTIONAL PROFESSIONAL AND ON WHAT BASIS

RESOLUTION PLAN IS PREPARED ? REG 3D CAN MORE THAN 1 RESOLUTION PLAN BE RECEIVED BY RP

& WHAT SHOULD RP CONFIRM TO? REG-30

Q32) WHO PRESENTS RESOLUTION PLAN TO COC FOR APPROVAL ? WHOSE CONSENT IS REQUIRED ?

REG 30(3)(5)

Q33) WHO SHOULD FINALLY APPROVE THE RP ? REG 31 NCLT

Q34) WHEN IS LIQUIDATION INITIATED ? REG-33 MENTION 4 CASES

Q35) a) CAN RP ACT AS LIQUIDATOR ? REG-34

b) CAN NCLT REPLACE RP ACTING DURING CIRP PROCESS & APPOINT ANOTHER RP TO

MANAGE THE LIQUIDATION PROCESS ? 34(4)

Q36) WHAT ARE THE POWER OF LIQUIDATOR UNDER IBC CODE ? REG-35

Q37) a) WHO FORMS LIQUIDATION ESTATE ? (LIQUIDATOR)

b) WHO HOLDS THE LIQUIDATION ESTATE AS AFIDURIRARY & FOR WHOSE BENEFIT ? 36(2)

c) WHAT ASSETS ARE INCLUDED IN L.ESTATE & WHAT ARE EXCLUDED? 36(3)(4)

Q38) a) WITHIN WHAT TIME THE LIQUIDATOR COLLECTS ALL CLAIMS ? 38(1)

b) CAN A CREDITOR VARY/WITHDRAW HIS CLAIM ? 38(5)

c) CAN LIQUIDATOR VERIFY THE CLAIMS & THEN REJECT ? REG-39

d) CAN A CREDITOR APPEAL TO NCLT AGAINST THE DECISION OF LIQUIDATOR WITHIN WHAT

TIME REG-42

Q39) WHAT ARE THE OPTIONS AVAILABLE TO SECURED CREDITORS IN LIQUIDATION PROCEEDING ?

HOW CAN THEY EXERCISE THE OPTION REG 52(1) ,52(2)(3),(6),(8)

Q40) EXPLAIN THE ORDER OF PRIORITY IN DISTRIBUTION OF PROCEEDS UNDER IBC CODE ? REG 53

Q41) WHEN CAN A CORPORATE DEBTOR BE DISSOLVED UNDER IBC CODE ? REG 54

Q42) ON WHAT GROUNDS APPEAL BE FILED AGAINST

a) ORDER APPROVING RESOLUTION PLAN UNDER REG 31

b) AGAINST LIQUIDATION ORDER REG 61 (3),61(4)

TO WHOM THE ABOVE APPEAL CAN BE MADE ? 61(2) NCLAT-30 DAYS +15 DAYS TIME

TO WHOM FURTHER APPEAL BE MADE 62- SC 45 DAYS + 15 DAYS

Q43) WHAT IS THE PROVISION WHICH EMPHASIS & EXPEDITION DISPOSAL OF CASES UNDER-IBC

CODE BY NCLT? REG-64

Q44) WHAT IS THE PENALTY FOR FRAUDULENT MALICIOUS PROSECUTION OF PROCEEDINGS UNDER

IBC CODE? REG-64

Q45) WHAT ARE THE FUNCTIONS OF IBBI ? REG 196

Q46) FUNCTION OF IPA ? REG204, ALSO CHAP II OF IPA REGULATION PAGE 51

Q47) EXPLAIN THE ELIGIBILITY , QUALIFICATION & EXPENENCE TO REGESTER AS IP? 207

Q48) EXPLAIN THE CONCEPT OF FAST TRACK INSOLVENCY ?

Q49) EXPLAIN THE STEPS IN VOLUNTARY LIQUIDATION UNDER IBC CODE?

Q50) EXPLAIN THE ELIGIBILITY OF RP AS PER REGULATION 2016? PAGE 54

Q51) WHAT TYPE OF REPORTS ARE PREPARED BY LIQUIDATOR ? PAGE 63 IBC REGULATION

Q52) WRITE A SHORT NOTE ON EXTORTIONATE CREDIT TRANSACTION ? REG50 (PAGE 28)

Q53) WHAT ARE PREFERENTIAL TRANSATIONS UNDER IBC CODE ? REG 43 & ITS EFFECTS REG 44

Q54) WRITE A SHORT NOTE ON AVOIDANCE OF UNDERVALUED TRANSACTION ? REG 45,46

Q55) WHAT ARE MODES OF VOTING ALLOWED AT COC MEETING ? PAGE 58

Q56) CAN COC ONLY HAVE OC ? COMMENT PAGE 56

Documents

The INSOLVENCY AND BANKRUPTCY CODE,2016 · 2019-01-31 · 5. InformationUtilities 6. Inspection &Investigation 7. Finance, Accounts &Audit V Miscellaneous (224 – 255) Miscellaneous