This article has been published in IBBI’s annual publication named Insolvency and Bankruptcy Board of India – A Narrative, (2020). See here
-Megha Mittal (firstname.lastname@example.org) As per Regulation 39 of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 (“Liquidation Regulations”), a liquidator shall endeavour to maximize recovery and realisation from all assets of and dues to the corporate debtor. Realisation from assets of the corporate debtor shall be done by way of sale as […]
If the Insolvency and Bankruptcy Code, 2016 (‘Code’) is the car driving the ailing companies on road to revival, resolution plans are the wheels- Essentially designed to explore revival opportunities for an ailing entity, the Code invites potential resolution applicants to come forward and submit resolution plans.
Generally perceived as an alluring investment opportunity, resolution plans enable interested parties to acquire businesses at considerably reduced values. An indispensable aspect of these Resolution Plans, however, is the applicability of section 29A, which restricts several classes of entities, including ex-promoters of the corporate debtor, from becoming resolution applicants- for the very simple purpose of preventing re-possession of the corporate debtor at discounted rates. Hence, section 29A is seen as a crucial safeguard in revival of the corporate debtor, in its true sense.
In the present times, however, we cannot overlook the fact that the unprecedented COVID disruption, has compelled regulators around the globe, to reconsider the applicability and continuity of several laws, including those considered as significant; and one such provision is section 29A of the Code.
In a recent paper “Indian Banks: A Time to Reform?” dated 21st September,2020, the authors, Viral V Archarya and Raghuram G. Rajan, the former Deputy Governor and Governor of the Reserve Bank of India, have discussed banking sector reforms in view of the COVID disruption, calling for privatisation of Public Sector Banks, setting up of a ‘Bad Bank’ amongst other suggested reforms. In the said Paper, they also suggest that “for post-COVID NCLT cases to allow the original borrower to retain control, with the restructuring agreed with all creditors further blessed by the court. Another alternative might be to allow the original borrower to also bid in the NCLT-run auction”- thereby setting a stage for holding back applicability of section 29A in the post COVID world.
In this article, the author makes a humble attempt to analyse the feasibility and viability of doing-away with section 29A in the post-COVID world.
– By Sikha Bansal (email@example.com)
This article has also been published in IndiaCorpLaw Blog, the same can be viewed here
A regulatory framework for asset reconstruction companies (ARCs) was introduced in India through the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). This intended to put in place a system for clearing up non-performing assets (NPAs) from the books of banks and financial institutions. Over a decade later, the Insolvency and Bankruptcy Code, 2016 (IBC) was introduced with the objective of reorganisation and resolution of insolvent entities.
Although the common goal of both these legislation seems to be the cleaning or reconstruction of bad loan portfolios, it is important to understand the difference between the basic premises of these two laws: while the SARFAESI Act deals with ‘recovery’ and is more of a ‘class’ remedy, the IBC is about ‘resolution’ and intended to constitute a collective process. Given a common set of stakeholders involved under both these laws, there remains an obvious possibility of overlaps or inconsistencies. Read more
This article has also been published in the LawStreetIndia blog – http://www.lawstreetindia.com/experts/column?sid=466 Liability Acknowledgment & Limitation Period for IBC Applications – Deciphering the Enigma -Sikha Bansal (firstname.lastname@example.org) The applicability of the Limitation Act, 1963 (Limitation Act) to the applications under the Insolvency and Bankruptcy Code, 2016 (Code) has been settled long back, after a series of […]
The Insolvency and Bankruptcy Board of India (‘IBBI’/ ‘Board’) issued Discussion Paper on Corporate Liquidation Process, dated 26th August, 2020 (‘DP’) which envisages the introduction of (a) Assignment of Not Readily Realisable Assets (‘NRRA’) and (b) Assignment of Claims/ Interests.
Herein below we put forth our general and specific comments/ suggestions on the DP-
A discussion on the fair practice code issued for ARCs
-Sikha Bansal and Kanakprabha Jethani
Asset Reconstruction Companies (ARCs) are companies specializing in the business on acquiring non-performing assets and stressed assets of the banks and financial institutions and reconstructing them.
The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI) accords the status of ‘financial institutions’ and ‘secured creditor’ to ARCs, such that an ARC acquiring bad loans is also able to exercise same rights and powers as the originator of the loan would have. This is explicitly stated in section 5 of SARFAESI.
Now, as they say, with great power, comes great responsibility; since, the business of ARCs involves frequent dealing with borrowers of loans, they must be guided by principles of fairness in their dealings with borrowers. Earlier, there were no guidelines with respect to fair practices of ARCs. However, after a gap of almost 20 years from the time the law was enacted, the Reserve Bank of India (RBI) through a notification dated 16.07.2020, issued a Fair Practices Code (FPC) for ARCs. It is noteworthy that in this span of 20 years, around 28 ARCs have been registered in India and have an AUM of USD 14,583 million. Further, the role and involvement of ARCs have increased multifold with IBC proceedings.
The FPC seeks to ensure fairness as well as transparency in the operations of ARCs, and calls upon the ARCs to put in place board approved FPC, grievance redressal mechanisms, code of conduct for recovery agents, etc. However, what is more important is that the FPC sets out principles for ARCs for sale and purchase of assets, as discussed below.
Acquisition of assets: follow arm’s length principle
While acquiring any asset, an ARC should maintain transparency and follow arms’ length principle and shall ensure there is no discrimination between sellers in the process of acquisition.
Notably, RBI has already prohibited ARCs to have bilateral acquisitions (that is, one to one transactions) from certain connected entities, e.g. sponsor banks/FIs, and group entities, irrespective of the consideration involved. However, auction purchases are allowed provided the auction is transparent, is on arms’ length and price is determined by market forces. This essentially entails that the auctions should be widely publicised, be open to all interested parties and be transparent in terms of bids submitted.
Sale of assets: be transparent
ARC should enable the participation of as many prospective buyers they can, so that actual market value can be determined of any asset. For that, the invitation shall be made public. The extant guidelines for conduct of ARCs also require sale of assets through public auction only. Thus, this is just a reiteration of the existing guidelines.
Further, while finalising the terms and condition for sale of underlying assets, the ARCs shall consult the investors of security receipts (SRs).
Besides, a crucial provision in the FPC is the reference to section 29A of the Insolvency and Bankruptcy Code, 2016 (IBC), as discussed below.
The ‘spirit’ of section 29A
FPC mentions that the “spirit” of section 29A of IBC may be followed while dealing with prospective buyers”.
The reference to section 29A, most predictably, comes in the wake of rising involvement of ARCs in insolvency proceedings, either as sole or joint resolution applicants. Section 29A provides a list of persons who shall not be eligible to be a resolution applicant or a buyer of assets in case of a liquidation sale. The intent here seems to bar persons such as undischarged insolvents, wilful defaulters, a person whose accounts are classified as NPA, etc. from buying the assets. One concern with regard to section 29A is possible use of ARCs as devices to camouflage ineligible persons. Therefore, it is a logical and a positive step to add this restriction as a component of FPC for ARCs.
It is relevant to note that courts have held that the disability under section 29A is to be considered even where the sales are made by a secured creditor outside liquidation. Say, what if the secured creditor assigns his rights and interest to an ARC? Will an ARC be debarred from selling the assets to a person hit by section 29A?
The issue has to be examined under two circumstances – first, where the borrower has been under insolvency proceedings of IBC and in case of liquidation, the secured creditor stands out of liquidation proceedings to sell the asset, and second, where there are no preceding IBC proceedings.
Considering the extant precedents surrounding section 29A, it can be contended that the contagion of section 29A might also hamper the freehand of ARCs in selling the assets whether or not the assets have been through IBC proceedings or not. However, one may note that the extant guidelines, on the contrary, permit the defaulting promoters to buy-back the assets from ARCs, provided the settlement is considered beneficial in certain respects.
Hence, ARCs would be required to take a balanced view on determining whether the sale is to be made to a prospective buyer or not. Notably, FPC does not impose section 29A, per se, on sales by ARCs, but advises the ARCs to follow the spirit of section 29A. The intent of section 29A has been to ensure that among others, persons responsible for insolvency of the corporate debtor do not participate in the resolution process.
Therefore, it may be contended that in case the assets are in or have passed through IBC proceedings, the provisions of section 29A will apply strictly, and in other cases, the ARCs should endeavour to abide by the intent of section 29A. The stance of the regulator may become clearer in due course of time.
Action points for ARCs
The following are actionables on the part of ARCs. We are of the view that, since the notification does not provide for any specific date of applicability, the same shall be immediately applicable. Hence, the FPC, incorporating the following, shall be formulated within reasonable time and may be adopted in the next board meeting.
|Measures to prevent harassment by recovery agents||· Ensure that the staff and recovery agents are adequately trained to deal with customers and to handle their responsibilities with care and sensitivity, particularly in respect of aspects such as hours of calling, privacy of customer information
· Adoption of code of conduct (as discussed above)
· Ensure that the recovery agents and the staff of ARCs observe strict customer confidentiality.
· Ensure that recovery agents do not induce adoption of uncivilized, unlawful and questionable behaviour or recovery process.
|Charging of fees||Put in place a board approved policy on management fee, expenses and incentives, if any, claimed from trusts under their management.|
|Outsourcing||Put in place an outsourcing policy, approved by the Board, which incorporates, criteria for selection of activities to be outsourced as well as service providers, delegation of authority depending on risks and materiality and systems to monitor and review the operations of these activities/ service providers.|
|Grievance Redressal||· Constitute a Grievance Redressal machinery which deals with the issue relating to services provided by the outsourced agency and recovery agents, if any.
· Mention the name and contact number of designated grievance redressal officer of the ARC in communications with the borrowers.
As regards acquisition and realisation of assets, the extant directions provide for framing of acquisition policies and realisation plans. Further, as discussed, RBI from time to time, had been issuing directives regulating the sales by ARCs. The FPC, incorporating the provisions of section 29A, can be said to be an additional step in the same direction.
Insofar as conduct towards borrowers is concerned, before issue of the FPC for ARCs, there were no separate guidelines. However, this should not imply that ARCs were not required to act as such. As a matter of practice, the conduct of ARCs towards the borrowers should be guided by the behavioural principles and principles of fairness and equity.
The banks/financial institutions are anyway under the directions of RBI to be fair in all respects in dealing with the borrowers. Therefore, it could not be said that an ARC which purchases loans from the banks/financial institutions could have all the powers of a secured lender but not the responsibilities. In the authors’ view, the responsibility to act fairly is tagged along with the right to enforce security. However, the FPC as issued now, concretises the concept of ‘fair practice’ for ARCs, and is a step in the right direction. With the FPC coming into force, practices of ARCs, which were earlier based on the market practice and varied largely, shall be unified.
 List of ARCs on the website of the RBI (As in February 2020)
 See para 5 of the ARC Guidelines
 Guidelines on Fair Practices for lenders- https://www.rbi.org.in/scripts/NotificationUser.aspx?Id=3315&Mode=0 and;
Fair Practice Code for NBFCs- https://rbidocs.rbi.org.in/rdocs/notification/PDFs/45MD01092016B52D6E12D49F411DB63F67F2344A4E09.PDF
The MSME industry, colloquially referred to as the power engine of the economy has been a focal point of several reforms over the years. The recent reforms w.r.t. MSMEs and the Insolvency and Bankruptcy Code, 2016 (“Code’) has altered the stance of MSMEs, both as creditors and debtors. In this article, we shall discuss some significant reforms/ amendments w.r.t. MSMEs (due to COVID, or otherwise), and those under the Code and analyse the cumulative impact of these reforms on the sector in the prevailing scenario
“Pre-packs”, though yet to be born, have raised the expectations high. Reasons are obvious – the package is supposed to offer a lucrative combination of all the benefits of a ‘reorganisation/resolution plan’ as otherwise available only under formal insolvency proceedings with the added benefit of ‘speed’.
Pre-pack framework, as studies show, is not always contained in the statutory machinery. One of the close examples is UK. There the pre-pack arrangement is guided by insolvency practice statement, rather than a legislative framework.
In the Indian context, with some unique features, our insolvency regime stands differently from other jurisdictions – say, section 29A, and more importantly, section 32A.
Also, we already have certain debt restructuring tools in vogue – schemes of arrangement, and the apex bank’s framework for resolution of stressed framework. So, how do we welcome pre-packs, such that it serves the intended purpose? Surely enough, the pre-pack framework has to imbibe all the ‘good things’ which a formal insolvency framework has, and also offer something ‘over and above’ the existing options of debt restructuring.
The article sees these aspects and proposes what can be the optimal way of adopting pre-packs in India.
The President today signed in the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2020 [‘Ordinance’] to implement the already-talked-about abatement of IBC filings for the period of the COVID disruption, and accordingly, amend the Insolvency and Bankruptcy Code, 2016 [‘Code’]. We analyse the Ordinance in quick bullet points –