Category Archives: Insolvency and Bankruptcy Code 2016

Provision under the (Indian) Insolvency and Bankruptcy Code 2016

Liquidator in voluntary liquidation

In recent posts, we discussed voluntary liquidation and its commencement. In liquidation, liquidator play crucial role.

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Initiation of Voluntary Liquidation

In last post we discussed here basic provisions of Section 59 of the Insolvency and Bankruptcy Code, 2016 about voluntary liquidation.  As we mentioned, sub – section (3) to (5) of section 59 prescribes conditions related to corporate person registered as company. Similar conditions, in relation to voluntary liquidation of other corporate persons are prescribed in Insolvency and Bankruptcy Board of India (Voluntary Liquidation Process) Regulations, 2017. Here, we will discuss.

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Voluntary Liquidation

Part II of Chapter XX of the Companies Act (discussed earlier here and here) has been omitted by the Insolvency and Bankruptcy Code, 2016. In new scheme, there will be voluntary liquidation, not voluntary winding – up as called earlier.  In this post we will discuss Chapter V of the Insolvency and Bankruptcy Code, 2016 consisting of consisting of section 59.

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Transfer of Proceedings

Ministry of Corporate Affairs notified the Companies (Transfer of Pending Proceedings) Rules, 2016 on 7th December 2016. These Rules shall come into effect on 15th December 2016. In this post, we will discuss these rules.

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Notification of IBBI related Sections of IBC 2016

Recently Ministry of Corporate Affairs issued two notifications to enforce selected sections of the Insolvency and Bankruptcy Code, 2016. In this post we will briefly discuss section notified by Notification S.O. 2618(E) dated 5th August 2016 and S.O. 2746(E) dated 19th August 2016.

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On 28th day of May 2016, Ministry of Law and Justice published the Insolvency and Bankruptcy Code 2016 for “General Information” of receiving the assent from President of India.

By this publication, nothing including Section 1 of the Insolvency and Bankruptcy Code 2016 come into force. Accordingly, “It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint [Section 1(3)].” This Section is in sharp contrast with Section 1(3) of the Companies Act, 2013, which make it clear that Section 1 of that Act came into force at once.

In case of the Insolvency and Bankruptcy Code, 2016 government is required to notify this Act, including its Section 1.

Further, According to Proviso to sub – section (3) of Section 1, different dates may be appointed for different provisions of this Code and any reference in any such provision to the commencement of this Code shall be construed as a reference to the commencement of that provision.”

Accordingly, the Insolvency and Bankruptcy Code, 2016 shall not come into force at once but in phased manner. This is correct approach for smooth enforcement of any big legislation.

As No section of the Code came into force on 28th May 2016 including Sections 245 to 255, there is not amendment in the Acts mentioned these Sections. Accordingly, the Companies Act, 2013 has no amendment on 28th May 2016.

Please, Readers of this Blog read widely circulated Whatsapp, facebook and other Social Media Messages in light of above discussion.

Please note: This blog invite readers to share their comments, suggestions, hardship, queries and everything in comment section. This blog post is not a professional advice but just a knowledge sharing initiative for mutual discussion.