President Kovind gives assent to ordinance to amend Insolvency and Bankruptcy Code

Home buyers Bankruptcy Code Home loan bank interest on home loan Insolvency and Bankruptcy Code Bankruptcy Board of India

The Cabinet on Wednesday approved bringing in an ordinance to make "some changes" in the Code, Corporate Affairs Minister Arun Jaitley said.

The Bankruptcy Code, which became operational in December a year ago, provides for a market-determined and time-bound insolvency resolution process.

The development assumes significance in view of reports of some promoters of companies identified for insolvency proceedings preparing to bid for the stressed assets of the same companies, thus defeating the entire objective of the Narendra Modi government's landmark reform to prune bad loans. The government opted for an ordinance weeks before the winter session of Parliament as some cases are likely to come up for resolution soon. "You can't be a stressed asset and you want to join the process for bidding".

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A new section will be incorporated into the Code which would, inter alia, include proscribe "wilful defaulter, undischarged insolvent, disqualified director, a person who has indulged in preferential transaction or under-valued transaction or fraudulent transaction" as determined by the Adjudicating Authority. This also includes those who are promoters, in the management or control of such persons whose accounts are classified as nonperforming assets beyond a prescribed duration.

As many as 400 companies have been referred to the National Company Law Tribunal (NCLT) for resolution.

The details of the resolution plan shall disclose details of identity, convictions for any offence in the preceding five years, pending criminal proceedings, disqualifications under the Companies Act, 2013, identification as a willful defaulter by any bank or financial institution in accordance with the guidelines of the Reserve Bank of India, debarment, from accessing to, or trading in, securities markets under any order or directions of the Securities and Exchange Board of India, and lastly, the transactions, with the corporate debtor in the preceding two years.

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"The sale of property to a person who is ineligible to be a resolution applicant. has been barred", an official statement said. However, an amendment to the code was needed as curbs on promoters bidding would not have held up in courts otherwise. It is implemented by the corporate affairs ministry.

"The amendment also provides check by specifying that the Committee of Creditors ensure the viability and feasibility of resolution plan before approving it". Advisory KPMG India's partner Sanjay Doshi said that insulating the insolvency process from undue influence is critical for its success.

The Cabinet took the view that it is necessary to ensure that promotors of the corporate debtors who are found to have contributed to the default need to be prevented from regaining control of the company through backdoor entry in the garb of a resolution applicant.

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