Personal Insolvency under the Insolvency and Bankruptcy Code (IBC), 2016

Syllabus: GS3/ Economy

Context

  • Videocon’s former promoter Venugopal Dhoot has been declared bankrupt by the National Company Law Tribunal (NCLT) on personal guarantees for loans of ₹12,668 crore taken by Videocon firms.

About

  • Insolvency is the inability of a person or company to pay debts as they come due.
  • Bankruptcy is the formal legal process through which an insolvent individual is declared bankrupt, allowing their assets to be distributed among creditors to repay outstanding debts.
  • The Insolvency and Bankruptcy Code (IBC), 2016, provides a time-bound framework for resolving insolvency and maximising asset value.
    • The provisions relating to insolvency resolution and bankruptcy of personal guarantors to corporate debtors were brought into force in December 2019.

Categories of Insolvency under the IBC

  • Corporate Insolvency: Applicable to companies and Limited Liability Partnerships (LLPs).
    • When a company defaults on its debt, financial or operational creditors can approach the NCLT to initiate the Corporate Insolvency Resolution Process (CIRP).
    • The objective is to resolve the company’s financial distress through a resolution plan rather than immediately liquidating it.
    • If resolution fails, the company may undergo liquidation, with its assets sold to repay creditors.
  • Personal Insolvency: Personal insolvency deals with individuals and partnership firms unable to repay their debts. Under the IBC, it broadly covers two categories:
    • Personal Guarantors to Corporate Debtors: Individuals (usually promoters or directors) who personally guarantee loans taken by a company. If the company defaults, lenders can initiate insolvency proceedings against the guarantor.
      • NCLT handles insolvency proceedings of personal guarantors to corporate debtors.
    • Other Individuals and Partnership Firms: Individuals unable to repay personal borrowings and partnership firms unable to meet their financial obligations.
      • Debt Recovery Tribunal (DRT) handles proceedings relating to other individuals and partnership firms.

Process of Personal Insolvency of a Guarantor

  • Initiation: Creditors can initiate proceedings under Section 95, while the guarantor can apply voluntarily under Section 94.
  • The NCLT appoints a Resolution Professional to examine the application, verify the debt and submit a report.
  • Repayment Plan: The guarantor may submit a repayment plan outlining how the outstanding debt will be repaid.
    • Creditors consider the plan and may approve or reject it.
  • If the repayment plan fails or is rejected, bankruptcy proceedings may be initiated under Section 121 of the IBC.
  • A bankruptcy trustee administers and realises the guarantor’s assets to repay creditors according to the prescribed priority. 

Insolvency and Bankruptcy Code (IBC) 2016

  • IBC was introduced in 2016 to address rising Non Performing Assets and ineffective debt recovery mechanisms in India.
  • Objectives of the IBC resolution are;
    • Business Revival: To save businesses through restructuring, changes in ownership, or mergers,
    • Maximization of Asset Value: To preserve and maximize the value of the debtor’s assets,
    • Promoting Entrepreneurship and Credit: To encourage entrepreneurship, improve credit availability, and balance the interests of stakeholders, including creditors and debtors.
  • Currently a maximum 330 days is allowed to find a resolution for a company admitted into the insolvency resolution process.
    • Otherwise, the company goes into liquidation.

Institutional Framework 

  • Insolvency and Bankruptcy Board of India (IBBI): The apex regulatory body established to oversee the functioning of insolvency professionals, insolvency professional agencies, and information utilities.
  • National Company Law Tribunal (NCLT): The adjudicating authority that takes up insolvency applications, imposes moratoriums and sanctions resolution plans for firms and LLPs.
  • Insolvency Professionals (IPs): IPs are the people who deal with the affairs of troubled entities, protect assets and convene meetings of creditors.
  • Committee of Creditors (CoC): The top decision-making body that includes the distressed entity’s financial creditors. They examine, vote on and adopt the resolution plan.

Source: IE

 

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