Resolution – Page 2 – Vinod Kothari Consultants

Statutory dues cannot override section 53: Supreme Court clarifies the applicability of Rainbow ruling

July 29, 2023/0 Comments/in Case laws, Insolvency and Bankruptcy, Resolution /by Barsha Dikshit

– Barsha Dikshit | resolution@vinodkothari.com

Introduction

Section 53 of Insolvency and Bankruptcy Code, 2016 (‘IBC’) has created a waterfall citing priority of dues. Whether it is distribution in liquidation process or resolution plan – both processes would need to honour the priorities under Section 53 of IBC. However, in September, 2022, in State Tax Officer v. Rainbow Papers Ltd., the Hon’ble Supreme Court (SC) held that by virtue of the ‘security interest’ created in favour of the Government under GVAT, the State is a ‘secured creditor’ as per the definition in IBC. Hence, as workmen’s dues are treated pari passu with secured creditors’ dues, so should the debts owed to the State be put at the same pedestal as the debts owed to workmen under the scheme of section 53(1)(b)(ii). [Read our detailed analysis on Rainbow Papers ruling here]. As such, this ruling led to anomalies in interpretation, as it shuffled the already well-settled view on priorities of tax dues vis-a-vis secured creditors.

Interestingly, the recent ruling of SC in Paschimanchal Vidyut Vitran Nigam Ltd. Vs. Raman Ispat Private Limited & Ors. [Civil Appeal Nos. 7976 of 2019] has confined the applicability of Rainbow Papers to its own factual circumstances, thereby, providing relief to all stakeholders, especially IPs undertaking liquidation/resolution processes, who started receiving demands from tax authorities on the strength of Rainbow Papers.

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GoAir Insolvency: Lessors’ rights gone in thin air?

June 1, 2023/1 Comment/in Financial Services, Insolvency and Bankruptcy, Lease Transactions, Leasing and Asset Financing /by Team Finserv

– Financial Services Division, finserv@vinodkothari.com

A Special Bench of NCLT, New Delhi admitted the insolvency of Go Airlines (India) Ltd, popularly known as GoAir, on the 10th May 2023. The insolvency was admitted on an application of the company itself, on the ground of a self-admitted default of Rs. 11.03 crores towards interest to financial creditors, out of a pile of debt, that is, Rs. 2660 cr towards aircraft lessors and Rs. 1202 cr towards its vendors. The application was admitted in the face of strong opposition by the financial creditors and the lessors of aircrafts taken on lease by the company.

Subsequently, on an appeal before the NCLAT, the appellate forum affirmed the order of the NCLT, rejecting the contention that the filing of the insolvency application was malicious. The matter may still be taken up to higher or other forums, but in the meantime, there are question marks on India as a favoured jurisdiction for aircraft leasing. Aircraft lessors need certainty as to the exercise of their rights over the leased aircraft in the event of a lessee default, and the Cape Town Convention (CTC), signed under the auspices of UNIDROIT way back in 2021, is a set of minimum assurances that the countries signing that convention have provided to aircraft lessors. The question is, India having actually been a signatory to the Convention, is it okay to have stayed the rights of the lessors by way of a moratorium during the entire period of insolvency resolution?

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NCLAT gives a go signal to the Go Airlines insolvency application

May 25, 2023/0 Comments/in Insolvency and Bankruptcy, Resolution /by Neha Malu

– Neha Malu, Senior Executive & Tanay Dubey, Legal Intern | resolution@vinodkothari.com

Background

In India, airline companies prefer acquiring aircrafts through lease rather than buying them. According to a report released by PwC, as of 2018, around 80% of India’s commercial aircrafts are leased, much more than the global average of leased commercial aircrafts as compared to commercial aircrafts in use, 53%. According to the report, airlines prefer leasing aircrafts predominantly due to two reasons: first, the lower overall cost of leasing which allows the airlines company to spend available capital on giving price advantage to the price sensitive customers in India and; second, because of the shorter fleet replacement cycles, leasing aircrafts provides airlines an option to quickly increase or decrease the capacity, thereby keeping the fleet younger.

Go Airlines, an ultra-low-cost airline, possesses a fleet of 54 aircraft, with the majority obtained through leasing arrangements with different aircraft lessor companies. Unfortunately, the airline is currently facing financial difficulties caused by the non-delivery of engines from Pratt and Whitney (P&W), a US-based jet engine manufacturer. As a result, they have been compelled to ground over 50 planes. Due to concerns about the feasibility of the CIRP and the airline’s revival, the lessors want to recover their aircrafts from the airline.

Go Airlines (‘Corporate Applicant’) has been defaulting towards the aircrafts lessors, vendors, and financial creditors from 2022 onwards. In order to keep the company as a going concern and retain the possession of leased aircrafts, the Corporate Applicant filed an application under Section 10 of Insolvency and Bankruptcy Code, 2016 (‘IBC’). The umbrella of moratorium was opened for Go Airlines after its voluntary application for resolution under section 10 of IBC was admitted by the NCLT leading to a complete prohibition on transfer of any of the leased aircrafts which were in possession of Go Airlines as on the date of admission of the CIRP application. In the present case, though the lessors of the aircrafts had terminated the lease agreement days before the admission of the CIRP application by NCLT, the possession remained to be transferred to the lessor as on the date of admission.

An appeal was preferred by the lessors against the order of the NCLT contending that the said application was filed with fraudulent and malicious intent. Further, the lessors were not given the notice providing for an opportunity of hearing before admitting the application. In addition to this, given the fact that the lease agreement was cancelled by the lessor prior to the admission of CIRP application, the Corporate Applicant has no legal right to claim possession and moratorium under Section 14(1)(d) of IBC on the assets of the lessor.

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Fast Track Merger- finally on a faster track

May 18, 2023/0 Comments/in Resolution, Schemes and Arrangements /by Barsha Dikshit

– Barsha Dikshit, Partner | resolution@vinodkothari.com

The objective of promoting ‘ease of doing business in India’ had made the Ministries introduce some really momentous concepts and corresponding changes in law. One of such moves taken by the Ministry of Corporate affairs (‘MCA’), was introduction of section 233 of the Companies Act, 2013 (‘Act’) dealing with “Merger and amalgamation of certain types of companies” vide notification dated 7^th December, 2016, [1] thereby offering an alternative mode to certain classes of companies for entering into scheme of merger or amalgamation. The idea was to process the scheme of arrangements involving wholly owned subsidiaries or small companies in a cost effective and comparatively swift way. However, upon the practical implementation of the provision, it was seen that the time taken by the authorities for disposal of such applications and issuing confirmation orders to the schemes was longer than expected and therefore, the provision was losing its relevance.

It is in the backdrop of such delays, MCA, vide notification dated 15th May, 2023 (yet to be published in e-gazette) has introduced certain amendments in the Companies (Compromise, Arrangements, and Amalgamations) Rules, 2015 (‘CAA Rules’) ensuring faster disposal of applications u/s 233 of the Act. The amendments shall be effective w.e.f. 15^th June, 2023.

This article intends to discuss the amendments introduced by MCA and to gauge the effectiveness of the same.

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Income tax issues in IBC

April 26, 2023/0 Comments/in Insolvency and Bankruptcy, Liquidation & Winding-up, Resolution /by Team Resolution

-Vinod Kothari and Sikha Bansal | finserv@vinodkothari.com

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Classification of fraud and reporting

April 14, 2023/0 Comments/in Banks, Case laws, Financial Services /by Rhea Shah

Should borrower be given an opportunity of being heard?

-Rhea Shah, Executive | rhea@vinodkothari.com

Background

A recent ruling of the Supreme Court placed emphasis on the classification of an account as fraudulent and the consequences thereof. The ruling is in favour of incorporating the principles of natural justice during the process of declaring an account as fraudulent.

Fraud classification by banks and NBFCs is essentially guided by Master Directions on Frauds – Classification and Reporting by commercial banks and select FIs^[1] and the Master Direction – Monitoring of Frauds in NBFCs (Reserve Bank) Directions, 2016^[2], respectively (‘Fraud Directions’). However, there has been a certain extent of ambiguity as to the procedural aspects of the classification. While the basic purpose of such classification remains to ensure the early detection and reporting of a fraudulent transaction, it also entails significance in implementing a procedure that is fast and robust for the RBI to disseminate information regarding fraudulent borrowers and related parties.

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Comments on the MCA Discussion Paper on changes being considered to IBC, 2016

February 7, 2023/0 Comments/in Insolvency and Bankruptcy, Resolution /by Team Resolution

– Team Resolution, Vinod Kothari and Company | resolution@vinodkothari.com

The Ministry of Corporate Affairs (‘MCA’) issued a Discussion Paper on 18th January, 2023 on changes being considered to the Insolvency and Bankruptcy Code, 2016 (‘Discussion Paper’). Since the very inception of the Insolvency and Bankruptcy Code, 2016 (‘IBC’), it has undergone six amendments besides, several amendments in the respective regulations. However, the proposals in this Discussion Paper seem to be the most comprehensive one – covering all major aspects of the law.

Broadly speaking, the amendments proposed in the Discussion Paper can be categorized as follows:

Proposals that try to overcome past difficulties:
1. Voting in CoCs, direct dissolution, etc
2. Enhancing the scope of pre-packs and fast track insolvency
Proposals that codify amendments in regulations already done or IBBI circulars:
1. Mandatory filing of information of default with IU
2. Presumption of relinquishment of security interest
Proposals to override or respond to some court rulings:
1. Vidarbha Industries Power Limited v. Axis Bank Limited
2. State Tax Officer v. Rainbow Papers Limited
3. Gujarat Urja Vikas Nigam Limited v. Amit Gupta & Ors
Fundamental or progressive amendments:
1. Partial resolution
2. Collapsing the levels in the waterfall
3. Separation of resolution and distribution
4. Resurrection of entity from liquidation to resolution
5. Aggregation of assets of guarantors
6. Collaboration for the purpose of group insolvency