Monday, October 3, 2022

IBBI makes changes to Insolvency Professionals Regulations

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New Delhi: The Insolvency and Bankruptcy Board of India has notified amendments to the Insolvency Resolution Process for Corporate Persons Regulations, 2019 on Friday. The amendments take effect on the same day and specify the process for withdrawal of applications before the constitution of the committee of creditors (CoC), after the constitution of CoC but before the issue of invitation for expression of interest, and after the issue of invitation for expression of interest.

Here are the changes:

The amendments require that while approving a resolution plan or deciding to liquidate the corporate debtor, the CoC may:

  • approve a plan providing for contribution for meeting the liquidation costs,
  • recommend the sale of the corporate debtor or sale of the business of the corporate debtor as a going concern, and
  • fix, in consultation with the RP, the fee payable to the liquidator, if an order for liquidation is passed by the Adjudicating Authority.

The salient amendments effected by the Insolvency and Bankruptcy Board of India (Liquidation Process) (Amendment) Regulations, 2019 are:

  • The amendments specify the process for (i) sale of the corporate debtor as going concern, and sale of the business of corporate debtor as going concern under liquidation. These also provide that where a corporate debtor is sold as a going concern, the liquidation process shall be closed without dissolution of the corporate debtor.
  • The amendments require completion of the liquidation process within one year of its commencement, notwithstanding the pendency of applications for avoidance transactions. These provide a model timeline for each task in the liquidation process. It also specifies a maximum time of 90 days from the order of liquidation for completion of compromise or arrangement, if any, proposed by the stakeholders under section 230 of the Companies Act, 2013. These will ensure that the liquidation process is closed at the earliest.
  • The amendments require the financial creditors, who are financial institutions, to contribute towards the liquidation cost, where the corporate debtor does not have adequate liquid resources to complete liquidation, in proportion to the financial debts owed to them by the corporate debtor, in case the CoC did not approve a plan for such contribution during corporate insolvency resolution process. However, such contribution along with interest at bank rate thereon shall form part of liquidation cost, which is paid in priority.
  • The amendments provide for the constitution of a Stakeholders’ Consultation Committee having representation from secured financial creditors, unsecured financial creditors, workmen and employees, government, other operational creditors, and shareholder/partners to advice the liquidator on matters relating to the sale. However, the advice of this committee is not binding on the liquidator.
  • The amendments require that a stakeholder may submit its claim or update its claim submitted during the corporate insolvency resolution process, as on the liquidation commencement date. Along with the submission of the claim, a secured creditor shall inform the liquidator of its decision to relinquish its security interest to liquidation estate or to realise its security interest.
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  • The amendments have introduced a comprehensive compliance certificate to be submitted along with the final report to the Adjudicating Authority.
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