Tag Archives: Insolvency and Bankruptcy Code 2016

STAKEHOLDERS’ CONSULTATION COMMITTEE IN LIQUIDATION


Stakeholders’ Consultation Committee in liquidation do not have any parliamentary backing but a product of subordinate legislation. This is a committee constituted under Regulation 31A of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016. To understand the scope of stakeholders’ consultation committee we may refer to Section 35(2) and executive overreach in a legislative mandate.

Power to Consult

Section 35(2) empower the liquidator to power to consult any of the stakeholders entitled to a distribution of proceeds under section 53. This is not a duty of the liquidator but power meaning thereby this consultation is completely optional on part of the liquidator. Under law, any such consultation is not be binding on the liquidator.     However, the law mandate record of such consultation, if it takes place. The records of any such consultation shall be made available to all other stakeholders not so consulted, in a manner specified by the Board. [Section 35(2)]

This is the duty of stakeholders consulted to extend all assistance and cooperation to the liquidator to complete the liquidation of the corporate debtor. [Regulation 8(1)]

For the purpose of Second proviso, the liquidator shall maintain the particulars of any consultation with the stakeholders made under this Regulation, as specified in Form A of Schedule II. [Regulation 8(2)]

Consultation Committee

The above law is the major position under the Insolvency and Bankruptcy Code, 2016 and the Liquidation Regulations.

However, the Insolvency and Bankruptcy Board of India (IBBI) to streamline this consultation process, prescribes the Stakeholders’ Consultation. With the recent amendment, the stakeholder’s consultation committee becomes a significant affair. Still, any stakeholder should not consider it as Committee of Creditors which is powerful to decide the faith the resolution process.

The liquidator shall constitute a Stakeholders’ Consultation Committee within sixty days from the liquidation commencement date (the date of liquidation order). The committee shall be constitute based on the List of stakeholders prepared on the basis of claims received and verified. [Regulation 31A(1)]

Duty of Consultation Committee

Regulation 31A cast a duty on the Stakeholders Consultation Committee to advise the liquidator on matters related to –

  • Appointment of Professionals and their remuneration (power given with effect from 30 September 2021);
  • Sale under Regulation 32, including manner of sale, pre-bid qualifications, reserve price, amount of earnest money deposit, and marketing strategy.

The decision(s) taken by the liquidator prior to the constitution of consultation committee shall be placed before the consultation committee for information in its first meeting. [Proviso to Regulation 31A(1)] The Committee has no power to advise on such decision taken place before the constitution of the Stakeholders’ consultation committee.

The Regulations do not limit the power of the liquidator to consult any of the stakeholder under Section 35(2) in any additional matter.

Constitution

The consultation committee shall have following members [Regulation 31A (2)]:

Secured Financial Creditors: 2 – 4 depends upon percentage of claims to the Liquidation Value;

Unsecured Financial Creditors: 1-2 upon percentage of claims to the Liquidation Value;

Workmen and Employees: 1

Government: 1

Operational Creditors: 1-2 upon percentage of claims to the Liquidation Value;

Shareholder or Partners: 1

No Remuneration

This may be noted that these representatives shall not be entitle to any remuneration or allowance under the Code and these regulations. However, the code do not bar creditors representative by the representative to reimburse the cost but in any case, any cost incurred by these representative shall not form part of the liquidation process cost.

The liquidator may facilitate the stakeholders of each class to nominate their representatives for inclusion in the consultation committee. If the stakeholders of any class fail to nominate their representatives, such representatives shall be selected by a majority of voting share of the class, present and voting. [Regulation 31A (3) and (4)].

Record and Information

Representatives in the consultation committee shall have access to all relevant records and information as may be required to provide advice to the liquidator under sub-regulation (1). It means where the liquidator seeks advise on additional matter, the liquidator may at his option provide the information. [Regulation 31A (5)] This record and information may be provided subject to restriction under the Code and Regulations. The Regulations do not provide any restriction; however, the Liquidator may take hint from the CIRP Regulations and should request a non-disclosure undertaking from these Representatives.

Meeting

The liquidator shall convene a meeting of the consultation committee when he considers it necessary and shall convene a meeting of the consultation committee when a request is received from at least fifty-one percent of representatives in the consultation committee. [Regulation 31A(6)] However, it is not clear on what matter the Stakeholders’ consultation Committee shall “forced advise” where the liquidator has not called the meeting.

The liquidator should call meeting at reasonable intervals and keep the committee informed of developments.

The liquidator shall chair the meetings of consultation committee and record deliberations of the meeting. [Regulation 31A(7)]

The consultation committee shall advise the liquidator, by a vote of not less than sixty-six percent of the representatives of the consultation committee, present and voting. The advice of the consultation committee shall not be binding on the liquidator. Where the liquidator takes a decision different from the advice given by the consultation committee, he shall record the reasons for the same in writing and mention it in the next progress report. [Regulation 31A (9) and (10)]

Sale as Going Concern

The liquidator shall place the recommendation of committee of creditors made under sub-regulation (1) of regulation 39C of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, before the consultation committee for its information. [Regulation 31A(8)]

Under Regulation 39C of those regulations, the committee (of creditors) may recommend that the liquidator (to be appointed) may first explore sale of the corporate debtor as a going concern under clause (e) of regulation 32 of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 or sale of the business of the corporate debtor as a going concern under clause (f) thereof, if an order for liquidation is passed under section 33.

Where the committee of creditors has not identified the assets and liabilities under sub-regulation (2) of regulation 39C of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, the liquidator shall identify and group the assets and liabilities to be sold as a going concern, in consultation with the consultation committee. [Regulation 32(3)]

Assignment of not readily realisable assets

A liquidator may assign or transfer a not readily realisable asset through a transparent process, in consultation with the stakeholders’ consultation committee in accordance with regulation 31A, for a consideration to any person, who is eligible to submit a resolution plan for insolvency resolution of the corporate debtor. [Regulation 37A(1)]

Case Note: Standard Chartered Bank Vs S K Gupta, NCLAT


Dhiraj Yadav, 4th Year Law Student, Dr. Ram Manohar Lohiya National Law University, Lucknow; and
Urvashi Gattani, 3rd year Law Student, ILS, Pune

Insolvency and Bankruptcy Code, 2016 has been severely tested since its enactment. However, constructive interpretation by the judiciary coupled with effective amendments to the Code has flooded the gates with teething issues.

In the instant case, Corporate Insolvency Resolution Process was initiated against ‘Essar Steel India Limited (“Corporate Debtor”), and pursuant to which the Committee of Creditors (“CoC”) approved the Resolution Plan submitted by ArcelorMittal India Pvt. Ltd.(‘Successful Resolution Applicant’) which was adjudged by NCLT, Ahmedabad Bench with certain modifications by the impugned order dated 8th March 2019. The successful resolution applicant in its resolution plan made the following categorisation:

Financial Creditors

(i) Secured Financial Creditors (having a charge on project assets of the ‘Corporate Debtor’);

(ii) Secured Financial Creditors (having no charge on project assets of the ‘Corporate Debtor’);

(iii) Unsecured Financial Creditors (with admitted claims less than Rs.10, 00,000);

(iv) Unsecured Financial Creditors (with admitted claims equal to or above Rs. 10, 00,000).

Operational Creditors

(i) Operational Creditors (workmen and employees);

(ii)The Operational Creditors (other than workmen and employees), but admitted claim amount is less than Rs. 1 Crore and

(iii) The Operational Creditors (whose admitted claim is equal to or more than Rs. 1 Crore).

According to the resolution plan, the first two categories of the operational creditors were proposed to be paid 100% of their dues, but the rest of the Operational Creditors whose claim admitted is Rs. 1 Crore or more, have been proposed with NIL amount i.e. 0% (zero per cent).

However, pursuant to this bifurcation numbers of appeals were preferred by the Operational Creditors and the Financial Creditors, on similar ground. These appeals were clubbed together to answer the question of law involved. The grievances of the Operational Creditors have been that in the resolution plan 0% of their debt has been proposed to be paid and claims of some of the Operational Creditors have been notionally assessed at Re. 1/- (average) by the ‘Resolution Professional’ without any basis.

Standard Chartered Bank (SCB) being one of the Financial Creditors, alleged that they were not equated with other Financial Creditors. All the Financial Creditors have been allowed 91.99% of their claim amount, whereas the claim of SCB has been categorised as-

  • ‘Secured Financial Creditors’ (having a charge on project assets of the Corporate Debtor) ─ in respect of claim amount of Rs. 3,487.10 Crores and SCB has been shown as Secured Financial Creditors but it has not been allowed 91.99% of the claim amount as allowed in favour of other Financial Creditors. SCB has been provided with 1.74% of the claim amount on the ground that it has no charge on project assets of the Corporate Debtor.
  • Unsecured Financial Creditors in respect of claim amount of Rs. 70.34 Crore has been allowed 4.08% of the claim amount.

The following Questions of Law  arising from this appeal and the earlier preferred appeals have been answered by the Hon’ble NCLAT in this pertinent case:

  1. Whether the distribution as shown in the ‘Resolution Plan is discriminatory and can the Financial Creditors be classified on the ground of a Secured Financial Creditor having charge on project assets of the Corporate Debtor and Secured Financial Creditor having no charge on the project asset of the Corporate Debtor or on the ground that the Financial Creditor is an Unsecured Financial Creditor?

Financial Creditors being Claimants at par with other Claimants like other Financial Creditors and the Operational Creditors having conflict of interest cannot distribute the amount amongst themselves that too keeping the maximum amount in favour of one or other Financial Creditors and minimum or ‘NIL’ amount in favour of some other Financial Creditors or the Operational Creditors. This violates Section 30 (2) and Regulation 38 (1A).

There is also discrimination made by CoC in the distribution of the proposed amount to Operational Creditors qua the Financial Creditors. The distribution is discriminatory and arbitrary. Classification of Financial Creditors is also discriminatory.

Therefore, Appellate Tribunal observed that as per the definition of the creditor in the Code, it includes a ‘Financial Creditor’, an ‘Operational Creditor’, a ‘Secured Creditor’, an ‘Unsecured Creditor’ and a decree-holder. Also as per the definition of Financial Creditor and Financial Debt (Section 5 (7)& (8), there is no distinction made between one or other ‘Financial Creditor’. All of such person form one class i.e. ‘Financial Creditor’ they cannot be sub-classified as ‘Secured’ or ‘Unsecured Financial Creditor’ for the purpose of preparation of the ‘Resolution Plan’.

  1. Whether the Operational Creditors can be validly classified on the ground of:
  2. employees of the Corporate Debtor
  3. those who have ‘supplied goods’ and ‘rendered services’ to the ‘Corporate Debtor’ and
  4. the debt payable under the existing law (statutory dues) to the Central Government or the State Government or the Local Authorities?

The Hon’ble  Appellate Tribunal held that the Operational Creditors can be classified for determining the manner in which the amount is to be distributed to them, they are to be given the same treatment if similarly situated.

Thus the classification of Operational Creditors in the Resolution Plan is upheld and not discriminatory as the Operational Creditors whose claim is more than Rs. 1 Crore or the ‘Central Government’ or the ‘State Government’ or the ‘Local Authority’, who raise their claim on the basis of the statutory dues, cannot ask for same treatment as allowed in favour of the Operational Creditors like employees or those who have ‘supplied goods’ and ‘rendered services’ having claim less than Rs.1 Crore, are provided with 100% dues of their claim amount.

  1. Whether the ‘Committee of Creditors’ can delegate its power to a ‘Sub Committee’ or ‘Core Committee’ for negotiation with the ‘Resolution Applicant’ for revision of plan and is it empowered to distribute the amount amongst the ‘Financial Creditors’ and the ‘Operational Creditors’ and other Creditors?

A ‘Sub-Committee or ‘Core Committee’ is unknown and against the provisions of the IBC. There is no provision under IBC which permits constitution of a ‘Core Committee’ or ‘Sub-Committee’ nor the IBC or Regulations empowers the ‘Committee of Creditors’ to delegate the duties of the ‘Committee of Creditors’ to such ‘Core Committee’/ ‘Sub-Committee’.

Therefore, the Committee of Creditors’ cannot delegate its power to a ‘Sub Committee’ or ‘Core Committee’ for negotiating with the ‘Resolution Applicant(s)’. The manner of distribution of amount among various stakeholders is the exclusive domain of the Resolution Applicant.

The said provision makes it clear that the ‘Resolution Applicant’ in its ‘Resolution Plan’ must provide the amount it proposes to pay one or other Creditors, including the ‘Operational Creditors’ and the ‘Financial Creditors’ that means if the ‘Resolution Plan’ does not show the distribution amongst the ‘Financial Creditors’ and the ‘Operational Creditors’, it cannot be placed before the ‘Committee of Creditors’.

Conclusion

The Insolvency and Bankruptcy Code,2016 is experiencing a seesaw of judgments where time and again rights of Financial and Operational Creditors rights have been determined. As per this judgment following the precedents set up in the case of Binani Judgments and in Swiss Ribbons Financial and Operational Creditors have been treated at par. Amount earned during the process by the company, where the Resolution Applicant is not paying full, the profits have been given to the creditors – financial and operational. It has also serious relevance where the resolution plan has been approved and accepted by the lender whether the said lender has any rights left against the principal borrower under the guarantee or otherwise This judgment will have a far-reaching impact in the future when the law of precedent will be referred to.

Contact Detail: raodhiraj123@gmail.com

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