Damage control

| Updated on July 17, 2019 Published on July 17, 2019

The Centre has moved quickly to ring fence the IBC from the fallout of NCLAT's Essar Steel order

The Cabinet approved several amendments to the Insolvency and Bankruptcy Code (IBC) on Wednesday. Two of them — inclusion of distribution of recovery proceeds within the powers of the Committee of Creditors (CoC) and bringing back the relevance of Section 53 of the Code in the insolvency process — have diluted the recent National Company Law Appellate Tribunal’s (NCLAT’s) ruling in the Essar Steel case. In what could have threatened the very sanctity of the IBC, the NCLAT had set aside the CoCs’ decision on how the ₹42,000 crore Arcelor Mittal’s offer would be distributed among creditors, arguing that the CoC was not empowered to do so. By placing the manner of distribution of proceeds within the ambit of commercial decisions of the CoC, the latest amendment has upheld the sanctity of the collective decision of the CoC. On the ground of fairness, the NCLAT had prescribed a sharing arrangement that treated all classes of creditors — secured, unsecured financial creditors and operational creditors — identically. By wiping out the distinction between secured and unsecured creditors, the ruling went against the basic tenets of commercial law that accords priority to secured creditors and equitable treatment of ‘similar creditors’.

In a bid to safeguard the interest of the operational creditors, the NCLAT had held Section 53 of the Code (which lays down the hierarchy of payment in liquidation—where unsecured and operational creditors come after secured creditors) irrelevant under the insolvency process. Essentially NCLAT ruled that distribution of debts to the financial and operational creditors during the Corporate Insolvency Resolution Process cannot be equated with distribution of proceeds to all stakeholders after the liquidation (Section 53); therefore, the resolution applicant cannot take advantage of Section 53 for the purpose of distribution to be made in favour of certain creditors. The latest amendment has clarified the rights of dissenting financial creditors and operational creditors, ensuring a minimum amount both under resolution or liquidation in accordance with Section 53, in turn upholding the principle of vertical comparison or repayment hierarchy that gives priority to secured creditors.

While the amendments may have to put rest the gnawing concerns of the secured creditors for now, it does not address the inequitable distribution that had caused the NCLAT to give a higher share to operational creditors in the Essar Steel case. The position of operational creditors remains the same—before and after the amendment. This will have to be addressed urgently. Undue delays in the IBC process are also a cause for worry. The Essar Steel case has been stuck for nearly two years in court. The amendment has capped the maximum time allowed for resolution to 330 days from 270 days. However, it's imperative that this timeline is respected.

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Published on July 17, 2019
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