Opportunities in NCLT P H Arvindh Pandian Senior Advocate 1
BUSINESS CONVENTIONS ARE IMPORTANT BECAUSE THEY DEMONSTRATE HOW MANY PEOPLE A COMPANY CAN OPERATE WITHOUT 2
Opportunities before NCLT for CS Existing Important Areas of Practice before CLB- Oppression & Mismanagement Rectification of Register of Members Compounding of Offences Repayment of Deposits Other approvals under the Act 3
Important New Areas before NCLT for CS Mergers / Demergers Reduction of Capital Winding Up & Insolvency Class Action Restoration of Companies Other approvals under the Act 4
Preparing for the opportunities Time Management As more time needs to be spent in Court, schedule and allocate time for other work. Court s Time To be precise and brief in presentation so that precious time of the Court is not wasted.
Preparing for the opportunities Getting the Facts To get the facts completely before taking the brief and to prepare a case sheet for all the cases showing the plus and minus of each case. Judgments Keeping track of Judgments passed by other Tribunals, High Courts and Supreme Court in Corporate Laws. To subscribe for various law journals and legal websites for judgments.
Preparing for the opportunities Tracking the dates To keep track of the dates of hearing by maintaining a diary exclusively for NCLT. Adhering to the time lines To complete the pleadings as per the directions of the tribunal.
M&A Practice Synopsis mandatory specifying the page numbers, newspapers for advertisement and notices to regulators. Dispensation of meetings are allowed for shareholders which is not permitted before other benches. Advertisements to be undertaken, though there are no meetings. Relaxation on quorum requirements. Quorum as present at the meeting post half an hour would be considered valid quorum. Dispatch of notice permitted by email. 8
M&A Practice Deemed Consent a misnomer. Reports of the Official Liquidator and Regional Directors mandatory. Notices served upon the IT and the CCI afford a response by an affidavit with requisite undertakings. Schemes are sometimes sanctioned on admission without a second advertisement. 9
Preparing for the opportunities Understanding the other counsel To observe and analyze the strength of the other side counsel. ALWAYS BE YOURSELF BECAUSE THE PEOPLE THAT MATTER DON T MIND AND THE ONES THAT MIND DON T MATTER
Preparing for the opportunities Understanding the Member To present the case and to refer the documents taking into consideration the background of the member i.e., Technical / Judicial 11
Preparing for the opportunities To refer to Case laws To analyze and identify case-law from the journals/website to support the legal position. Maintaining Files Proper storage space to be provided in office. Each case shall have separate file.
Preparing for the opportunities Thinking on the feet Possible only when we are strong on facts and law and very importantly not getting nervous during the course of arguments. A GOOD TIME TO KEEP YOUR MOUTH SHUT IS WHEN YOU RE IN DEEP WATER Observing in the Court To observe other matters in the court to know the approach of the judge.
Preparing for the opportunities Devil s Advocate Approaching the client as other side counsel in order to prepare answers for all probable questions that may be raised by other side. Making things simple Even complicated matter has to be presented to the court in a simplified manner.
Preparing for the opportunities Cordial Relationship To maintain cordial relationship with fellow professionals. Not to have any personal grievance against the other side counsel/representative. IF YOU DON T HAVE A SENSE OF HUMOUR YOU PROBABLY DON T HAVE ANY SENSE AT ALL Last but not the least To act as a Court Officer and assist the Court for the speedy and proper disposal of the matter.
Evolution of IBC since inception Mobilox Innovations Vs. Kirusa Software Existence of Dispute Innoventive Industries Vs. ICICI Bank Applicability of Section 238 overriding State Bank of India Vs. V. Ramakrishna - Application of Moratorium to Guarantor 16
Chitra Sharma v Union of India Homebuyers as 17 Financial Creditors Evolution of IBC since inception Arcelormittal India Pvt Ltd Vs. Satish Kumar Gupta & Ors Applicability of Section 29A & Resolution Plan B.K. Educational Services Pvt Ltd Vs. Parag Gupta and Associates Limitation till 6/6 Swiss Ribbons Private Ltd & Another Vs. Union of India Constitutional validity of Code
Mobilox Innovations Vs. Kirusa Software IBC is not intended to be substitute to a recovery forum. Whenever there is existence of real dispute, the IBC provisions cannot be invoked. The word pre-existing should mean that a dispute existed prior to the demand notice. The AA does not examine the merits of the dispute but only sees whether the dispute truly exists in fact and is not spurious, hypothetical or illusory. 18
Innoventive Industries Vs. ICICI Bank Non-obstante clause, in the widest terms possible, is contained in Section 238 of the Code, so that any right of the corporate debtor under any other law cannot come in the way of the Code. The moment AA is satisfied that a default is occurred the application u/s.7 must be admitted unless incomplete. 19
State Bank of India Vs. V. Ramakrishna Moratorium u/s.14 can have no manner of application to personal guarantors of CD. Individual personal guarantors will continue to be proceeded against two Insolvency Acts (Presidency- Towns Insolvency Act, 1909 and Provincial Insolvency Act, 1920) and not under the Code. Section 2(e) that refers to application of Code to a personal guarantor, apply only for the limited purpose contained in Section 60(2) and (3). 20
Arcelormittal India Pvt Ltd Vs. Satish Kumar Gupta & Ors Balance to be maintained between timely completion of CIRP and CD otherwise being put into liquidation. If there is a resolution applicant who can continue to run the CD as a going concern, every effort must be made to try and see that this is made possible. 21
Arcelormittal India Pvt Ltd Vs. Satish Kumar Gupta & Ors Stage of ineligibility attaches when the resolution plan is submitted by a resolution applicant. Period of time taken in litigation ought to be excluded. 22
B.K. Educational Services Pvt Ltd Vs. Parag Gupta and Associates Limitation Act is applicable to applications filed under Sections 7 and 9 of the Code from the inception of the Code. If default has occurred over 3 years prior to the date of filing of application, the application would be barred under Article 137 of the Limitation Act. 23
Chitra Sharma & Ors Vs. Union of India & Ors Amounts raised from allottees under real estate projects are deemed to be amounts having a commercial effect of a borrowing. Hence outstanding s to allottees in real estate projects are statutorily regarded as financial debts. Such allottees are brought within the purview of the definition of financial creditors. 24
Chitra Sharma & Ors Vs. Union of India & Ors The concerns of the home buyers have been sought to be assuaged by the Insolvency and Bankruptcy (Amendment) Ordinance, 2018 which came into force on 6 June 2018. As a result of the Ordinance, home buyers are brought within the purview of financial creditors under the IBC. Exercising powers under Article 142, the SC reconstituted the CoC as the amendment was brought in after the initiation of the CIRP Process and the constitution of the CoC. 25
Swiss Ribbons Private Ltd & Another Vs. Union of India Preamble does not, in any manner, refer to liquidation, which is only availed of as a last resort if there is either no resolution plan or the resolution plans submitted are not up to the mark. Union of India shall set up Circuit Benches of the NCLAT within a period of 6 months. CoC has primary responsibility of financial restructuring. 26
Swiss Ribbons Private Ltd & Another Vs. Union of India Regulation 30A(1) of CIRP Regulations is not mandatory but is directory. Application for withdrawal may be allowed in exceptional cases even after issue of invitation for EOI under Regulation 36A. Proceeding before AA is a proceeding in rem. CoC does not have the last word. NCLT can always set aside decision of COC under section 60 of the Code. 27
Swiss Ribbons Private Ltd & Another Vs. Union of India RP has no adjudicatory powers. He has administrative powers as opposed to quasijudicial powers. RP is really a facilitator of the resolution process, whose administrative functions are overseen by the CoC and by the AA. A statute is not retrospective merely because it affects existing rights; nor because a part of requisites for its action is drawn from a time antecedent to its passing. 28
Swiss Ribbons Private Ltd & Another Vs. Union of India Preamble does not, in any manner, refer to liquidation, which is only availed of as a last resort if there is either no resolution plan or the resolution plans submitted are not up to the mark. Union of India shall set up Circuit Benches of the NCLAT within a period of 6 months. CoC has primary responsibility of financial restructuring. 29
Swiss Ribbons Private Ltd & Another Vs. Union of India Regulation 30A(1) of CIRP Regulations is not mandatory but is directory. Application for withdrawal may be allowed in exceptional cases even after issue of invitation for EOI under Regulation 36A. Proceeding before AA is a proceeding in rem. CoC does not have the last word. NCLT can always set aside decision of COC under section 60 of the Code. 30
Swiss Ribbons Private Ltd & Another Vs. Union of India RP has no adjudicatory powers. He has administrative powers as opposed to quasijudicial powers. RP is really a facilitator of the resolution process, whose administrative functions are overseen by the CoC and by the AA. A statute is not retrospective merely because it affects existing rights; nor because a part of requisites for its action is drawn from a time antecedent to its passing. 31
Swiss Ribbons Private Ltd & Another Vs. Union of India Approximately 3300 cases have been disposed of based on out-of-court settlements amounting to over INR 1,20,390 crores. 80 cases resolved by resolution plans. Liquidation value of 63 cases is INR 29,788.07 crores. Amount realized from the resolution process is in the region of INR 60,000 crores, which is over 202% of the liquidation value. 32
Swiss Ribbons Private Ltd & Another Vs. Union of India Credit exposure by banks and financial institutions to the commercial sector (other than food) has jumped up from INR 4952.24 crores in 2016-2017, to INR 9161.09 crores in 2017-2018, and to INR 13195.20 crores for the first six months of 2018-2019. Credit flow from non-banks has gone up from INR 6819.93 crores in 2016-2017, to INR 4718 crores for the first six months of 2018-2019. 33
Swiss Ribbons Private Ltd & Another Vs. Union of India Total flow of resources to the commercial sector in India, both bank and non-bank, and domestic and foreign (relatable to the nonfood sector) has gone up from a total of INR 14530.47 crores in 2016-2017, to INR 18469.25 crores in 2017-2018, and to INR 18798.20 crores in the first six months of 2018-2019. 34
Chitra Sharma & Ors Vs. Union of India & Ors Amounts raised from allottees under real estate projects are deemed to be amounts having a commercial effect of a borrowing. Hence outstanding s to allottees in real estate projects are statutorily regarded as financial debts. Such allottees are brought within the purview of the definition of financial creditors. 35
Chitra Sharma & Ors Vs. Union of India & Ors The concerns of the home buyers have been sought to be assuaged by the Insolvency and Bankruptcy (Amendment) Ordinance, 2018 which came into force on 6 June 2018. As a result of the Ordinance, home buyers are brought within the purview of financial creditors under the IBC. Exercising powers under Article 142, the SC reconstituted the CoC as the amendment was brought in after the initiation of the CIRP Process and the constitution of the CoC. 36
Important Amendments in IBC The Insolvency and Bankruptcy (Amendment) Ordinance, 2017 23/11/2017 Section 29A and 235A inserted The Insolvency and Bankruptcy (Amendment) Ordinance, 2018 06/06/2018 Section 5(8),12, 12A, 14(3)(b), 238A 37
CS AS IRP/RP New Area of Practice Good alternate to secretarial practice Understanding the role and responsibilities under IBC Ethical discharge of duties Maintain Independence 38
LIFE ISN T TIED WITH A BOW BUT IT S STILL A GIFT 39
THANK YOU 40