An entity/individual is amenable to committing a default during the disaster period. Therefore, in such difficult times, it becomes important to save businesses, which can later save the economy. The Indian Government and the judiciary have undertaken several intermittent measures with respect to insolvency regime.
As the authorities try to provide all possible relief amidst the ongoing crisis, what we need is probably a holistic mitigation framework to deal with all possible problem areas – as we can see for other countries as well. Countries across the globe have promulgated relaxations under their respective insolvency laws, both personal and corporate. In general, the insolvency and winding up proceedings have the same trigger event, which is default. A cursory reading of the amendments/propositions with respect to insolvency laws across countries would indicate a certain level of commonness in the measures, e.g. there is a moratorium on presumption/determination of default, increase in the minimum limit of default, etc.
An important thing to note is that the relaxations do not extend to entities which had been in default before the event of disaster – that is, a disaster cannot be an excuse to cover a default which did not happen because of the disaster. Therefore, a pre-existing default is not saved from the COVID mitigation laws. Country-wise study of reforms with respect to insolvency laws are in the detailed article below.
In view of the worldwide reforms and the imminent necessity, we are of the view that certain basic amendments in law can help, for instance, the definition of ‘default’ under s. 3(12) may be amended as to exclude default occurring during the disaster period. Alternatively, a proviso can be inserted under s. 4(1) and s. 78 to provide that a default occurring during such period as the Central Government may, by notification, specify, being period associated with a national disaster, shall not be treated as a default for the purpose of the said sections. “Disaster” shall have the meaning as ascribed thereto in section 2 (d) of the Disaster Management Act, 2005.
Incidental amendments may also be necessary in the SARFAESI Act. The definition of default under s. 2(1)(j) of the said Act can be defined so as to provide that a default occurring during such period as the Central Government may, by notification, specify, being period associated with a national disaster, shall not be treated as a default for the purposes the above clause.
The aspects as above have been discussed in detail in the article below.