Financial creditors are clearly feeling the heat of pandemic-induced slowdown in insolvency and bankruptcy proceedings, inordinate delays in resolution process and the waning appetite of potential investors to acquire stressed assets in India. 

This was revealed by the latest IBBI data which showed that financial creditors’ realisation as a percentage of their admitted claims in January-March 2022 quarter hit a record low of 10.21 per cent, much lower than the 13.4 per cent in previous December quarter. 

In January-March 2022, as many as 29 Corporate Insolvency Resolution Process (CIRP) yielded resolution plans with different degree of realisation compared to the liquidation value. 

As against the admitted claims of financial creditors of ₹12,610 crore for January-March 2022, the amount realisable by such creditors stood at ₹ 1,288 crore — which is about 10.21 per cent. 

In fact, the worrying part is that for the first time ever, the quarterly realisation of ₹1,288 crore in January-March was lower than the liquidation value of ₹1,316 crore.

Till end March 2022 ,since the launch of IBC, the cumulative recovery for lenders where resolution took place dropped to 32.9 per cent against 35.9 per cent upto September 31, 2021. In absolute terms, the realisation for financial creditors till end March 2022 stood at ₹2,25,294 crore — much higher than liquidation value of ₹1,31,448 crore. The cumulative admitted claims of financial creditors till end March 2022 was ₹6,84,901 crore. 

‘Cause for concern’

Sushmita Gandhi, Partner, IndusLaw, said the recoverability through resolution plans being snubbed to below the asset liquidation value is indeed a cause for concern, as it goes against the basic tenet that the value maximisation of the assets of a debtor under the code is only possible if the same is revived as a going concern rather than being stripped for parts and liquidated. 

However, the reasons for lenders opting for such approach are not far to see. The appetite of potential investors to acquire stressed assets in India has been on a gradual decline, she said. 

Various factors are being attributed to lower resolution rates under the IBC regime, starting from Covid- induced shadow cast on the revival of a company to delays in resolution and liquidation process. Due to the difficulty in providing turnaround roadmaps, the interest of potential buyers is often reduced, consequently resulting in lower recovery rate, Gandhi added. 

Given the other alternative of liquidation process, the timelines are even blurred due to contesting priorities, lack of potential buyers, fluctuating market values, etc making haircuts on resolution plan come out as the lesser of the two evils for lenders.

Covid fallout

Tahira Karanjawala, Principal Associate, Karanjawala & Co, said the aftermath of the global pandemic and the resultant economic slowdown has also had its effect on the insolvency and bankruptcy proceedings across the country. The reduced appetite of corporates to take over distressed assets coupled with the inordinate delays caused by protracted legal battles before the NCLT and the NCLAT have effectively resulted in increasingly poor recoveries of debts owed to financial creditors, she added. 

The Covid-19 lockdowns have also affected the smooth functioning of the courts resulting in a huge pendency of court cases. This has resulted in the corporate insolvency resolution process losing steam, Karanjawala said. 

Yogendra Aldak, Partner, Lakshmikumaran & Sridharan Attorneys, said that some of the key factors that have contributed to a plummeted recovery under IBC is delay in the process of insolvency. The prime reasons for delay are non-filling of vacancies at the Tribunal, rise in the backlog of cases before the Tribunal, insufficient knowledge and training of the stakeholders, etc. “The Government must take immediate actions to respond to these issues before the situation becomes alarming and IBC fails to serve its purpose”, Aldak said. 

Kumar Saurabh Singh, Partner, Khaitan & Co, said that low recoveries in IBC recently is a reflection of slowing down of the NCLT process and delays in resolution. Longer the process takes, it creates uncertainty for all stakeholders resulting in low interest for the asset and consequently lower recovery, he said. 

“Considering that vacancies in NCLT is not fully filled up yet, naturally there is delay in disposal of multitude of litigations which are faced in any resolution. There is a clear requirement to develop a robust pre-insolvency resolution framework like pre-pack for large corporates which can help curtail delays and thereby preserving value”, Singh said. 

“While approval by NCLT to a resolution is the preferred option for all stakeholders, finding a way to cut down time being taken in the process even while ensuring competition/ transparency is the clear need of the hour”, he added.