The Insolvency and Bankruptcy Code (IBC) may undergo some major changes soon to make the resolution process quicker and more efficient. On the cards is an easing of the contentious ‘related party’ criterion under Section 29 (A) to make it less restrictive and allow conditional approvals to certain relatives (of defaulting promoters) who apparently have nothing to do with the delinquency to bid for stressed assets.
Also, once financial creditors, who usually not take knee-jerk decisions, file an open-and-shut case of default under Section 7, the adjudicating authority (NCLTs) could have the option to admit it forthwith, without seeking and verifying proof of default, as submitted by these creditors or collected otherwise.
Delivering the keynote address at a conference organised by Columbia Business School, State Bank of India (SBI) chairman Rajnish Kumar said the interpretation of Section 29 (A) has been stretched too far and that, “there is a need that more clarity is brought along”.
Speaking on the sidelines of the event, corporate affairs secretary Injeti Srinivas said ‘deemed admission’ of an insolvency petition could be a possibility in cases where there can be little dispute that the debtor has defaulted on repayments to the financial creditor.
Srinivas said such facility should be an appropriate framework for pleas moved by financial creditors as this class of creditors does not resort to the insolvency process as a knee-jerk reaction. Unlike operational creditors, who may be influenced by vested interests, financial creditors invoke the IBC only as last resort, he added. A lot of cases have had to wait for admission by NCLT, thus delaying the insolvency process.
Kumar said: “Section 29A has become the most contentious issue… Just as an example, if two brothers have parted 20 years or 25 years ago and if one business family is in trouble, barring the other brother from bidding is alright. But to say that the other brother running a business successfully cannot bid for any asset, I think that is carrying the interpretation too far.”
Many analysts have long argued on the same lines. A Mukesh Ambani, they had said, shouldn’t be barred from bidding for, say, Alok Industries, even if Anil Ambani is declared a defaulter or vice-versa. Earlier this year, Numetal, a contender for Essar Steel, had claimed that its rival bidder ArcelorMittal was ineligible, as firms belonging to brothers of the latter’s promoter LN Mittal allegedly defaulted on loan repayments despite Mittal not having business ties with these brothers. Numetal’s bid for Essar Steel, too, was held to be ineligible on the grounds that Rewant Ruia who is associated with the company is the son of Ravi Ruia, a promoter of Essar Steel.
Sources told FE earlier that through changes in Section 29A of the IBC people related to defaulters by blood or other familial relationships could be declared only “deemed to be related” and given a chance to rebut that assumption on grounds like “we have not worked together in any business in the last 3-5 years and so on” with supportive evidence.
According to Srinivas, the ministry of corporate affairs is also working on evolving frameworks for cross-border insolvency and individual insolvency. He also said the high incidence of liquidation among assets referred under the IBC was due to the lingering effects of the legacy of the Board for Industrial and Financial Reconstruction or because many of them were dud assets. Of the 260 assets which have gone into liquidation since the enactment of IBC, 70% either entered the system from BIFR or were not going concerns at all, he observed.
Kumar also made a case for other tweaks to enhance the efficiency of IBC, including penalties against non-serious bidders and overseers for the liquidation process. He referred to instances where after the completion of the bid process, a new bidder has come in and offered a higher value than the highest bid discovered through the bidding process. “If we allow this to continue, then the short-term view could be that it is maximising recovery for the lenders, but otherwise I think it is counterproductive. Anyone who is a serious bidder should participate in the process,” he noted.
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