SC upholds IBC spirit: Now, make it resolution-centric instead of liquidation-centric

Published: January 30, 2019 12:12 AM

The operational ecosystem will mature with successive judgments clearing the position of the law on greater institutional support to the adjudicating authority and players’ inter-se.

The threat of invoking IBC is itself enough to prevent defaults and to reinstate the sanctity of debt contract.

By K Srinivasa Rao  

The judgment of the Supreme Court upholding the legal sanctity of Insolvency and Bankruptcy Code (IBC) can bring a tectonic shift in the loan repayment culture. It asserts that the defaulters cannot bid for the assets of the insolvent company in terms of amended section 29 (A) to regain control while lenders are forced to take a haircut. It also tames the attitude of Committee of Creditors (CoC) and provides a clear and firm guidance that its decisions cannot be arbitrary, as was seen in the recent stance in the Essar Steel case. It asserts that CoC is not the ultimate link in the value-chain of IBC. It also removes many of the apprehensions of key players engaged in implementing IBC.

The spirit of judgment, read in conjunction with the series of pronouncements of National Company Law Appellant Tribunal (NCLAT) and the amendments in the operational regulations brought about by Insolvency and Bankruptcy Board of India (IBBI), makes it clear that the purpose and objectives of IBC is becoming sharper. NCLAT stated clearly that the order of priorities in achieving the objectives of IBC— resolution, maximization of value of assets of the corporate debtor or set of stakeholders such as creditors and promoting entrepreneurship while ensuring availability of credit and in the process—are time-bound and sacrosanct.

Imbibing best global practices in IBC implementation to come up with judgments on the various interlocutory issues is important. Banks and other stakeholders must redesign their internal operational guidelines and train their human resources to integrate the spirit behind the IBC.

Data shows 1,298 claims against delinquent entities were admitted into Corporate Insolvency and Resolution Process (CIRP) besides 288 voluntary liquidation cases till December 1, 2018. Out of admitted cases for CIRP, 52 (4%) have been resolved till September 2018 with 46% average recovery. Another 259 cases (20%) have gone into liquidation and 987 (76%) cases at various stages of adjudication. The pendency status on September 30, 2018, shows that the 270-days upper cap (180 days plus 90 days moratorium) was breached in 238 cases; a further 158 cases are beyond 180-days old but are within 90 days moratorium. In another 420 cases, the 180-day period is not yet over.

Coming to the outcome, of the first lot of 12 stressed large loan accounts referred to NCLTs, only four have seen resolution. According to RBI, the average recovery by banks was as much as 41.3% in FY18, against 12.4% recovered through other mechanisms such as SARFAESI Act, Debt Recovery Tribunals, etc. But, according to the NCLT data, 4,452 cases were disposed at pre-admission stage with borrowers paying up `2.02 trillion to settle their dues. The threat of invoking IBC is itself enough to prevent defaults and to reinstate the sanctity of debt contract.

Many debtors are now trying to find innovative methods to repay dues or service loans on time or even earlier to avoid defaults. Sale of non-core assets, divestment in group companies, release of investments, sale of idle properties and even capping diversification plans and focusing on consolidation of business and other options are being weighed by them. Thus, honouring loan commitments is gradually becoming a priority for borrowers.

IBC has had a tremendous impact on the asset quality of banks, though stakeholders are still struggling to adjust to the legislation’s evolving nuances. The only sore point is there are many instances of liquidation instead of revival. The operational ecosystem will mature with successive judgments clearing the position of the law on greater institutional support to the adjudicating authority and players’ inter-se.

The path forward should bring units back from from collapse and ensure the greater good to society. The resolution experts and turnaround professionals will have to evolve alternate restructuring plans in coordination with lenders to eventually strengthen resolution. Even invocation of IBC should also evolve as a tool of last resort. The judicial affirmation, via the apex court judgment, of the IBC can bring about a cultural shift.

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