Though the focus of the Code in its early stages is expeditious operationalisation, effective implementation by way of the revival of business, albeit under new management is yet to come off the age. International experience suggests that the US approach of 'fresh start' in bankruptcy has proved extremely influential in the subsequent development of 'business rescue' legislation in Europe.
For long, India's government-controlled banking sector has supported loan default by failing enterprises with enormous haircuts and new loan extensions. Whereas in a few cases, such defaults were attributable to the genuine failure of the business model, perhaps most fall in the category of promoters fleecing banks under the garb of lucrative cash flows built with window-dressed business plans. A few promoters also resorted to illegitimate means, including over-invoicing and other forms of laundering mechanisms, crippling the Indian banking system.
Given the quantum's of insolvency cases before the adjudicating authorities (National Company Law Tribunal and National Company Law Appellate Tribunal) as well as the Supreme Court, India's challenge will be to deal with errant promoters, unwilling to accept a separate identity of creditors i.e. the Committee of Creditors with the resolution professional acting as a trustee and new management, in the insolvency process. For promoters to argue that the Code offers another opportunity for debt recovery is a fallacy and goes against the grain & preamble of the law. Similarly, it is not a remedy for creditors to pursue their individual rights; instead, the Code is a symbiotic mechanism for all stakeholders collectively. This is the very purpose for the Government to rush through an ordinance in late 2017 prohibiting loan defaulters, either acting on their own or in concert with others, including in some cases with discontent bidders, to be a part of the resolution process. Therefore, where any promoter pleads for an 'out of court' settlement before the adjudicating authority just on the basis that it is ready to pay off the debts without a haircut, the very purpose of this Code is defeated. If adjudicating authorities encourage such settlement after the admission of insolvency application and the resolution process reaching an advanced stage, the objective of the Code stands jettisoned.
The past few months have witnessed several disputes, including challenging the Constitutional validity of various provisions of the statute in the Supreme Court. In its yeoman service, the Supreme Court has appreciated expeditious process of the Code and has rendered several judgments, including dismissing frivolous petitions. In addition, it has selectively invoked Article 142 of the Constitution of India 'in the interest of equity and justice', insofar as various stakeholder interests are concerned. As it happened last Friday, the Supreme Court was not interested in invoking its inherent jurisdiction (under Article 142) since it seemed convinced with the argument of the opposing party that a disqualified promoter was acting in 'unholy alliance' with a failed bidder.
In summary, though India's Code has been praised by international fora, its success will lie in 'time-bound' implementation process. The 270-day resolution plan under the Code to bring the business back on its feet is predicated on the principle of going concern, avoiding layoffs and satisfying debts, which will address twin balance sheet challenges. There are several learnings for the lawmakers from experience thus far.
The author is Founder BMR legal and was assisted by Shreyash Shah.
Views expressed are personal