Insolvency petition procedure in India

Insolvency under the Insolvency and Bankruptcy Code (IBC) of 2016 refers to a situation where an individual or entity is unable to repay its debts. A state of financial distress hampers the debtor's ability to meet their financial obligations and liabilities. The IBC provides a framework for resolving insolvency cases in a time-bound and creditor-driven manner maximizing the value of distressed assets and ensuring a fair and efficient resolution.

Read More About: Insolvency and Bankruptcy Code, 2016

When a debtor defaults on their payment obligations, the insolvency resolution process is initiated through an application to the National Company Law Tribunal (NCLT) by the financial or operational creditor. Post initiation of the process, a resolution professional takes control of the debtor’s affairs and assesses their financial position, and invites claims from the creditors. 

A resolution plan is formulated, approved by the Committee of Creditors (CoC), and sanctioned by the NCLT. However, if a viable resolution plan cannot be agreed upon within the stipulated time frame, the debtor's assets may be liquidated. In the liquidation process, the debtor's assets are sold, and the proceeds are distributed among the creditors according to the priority laid out in the IBC. The IBC aims to provide a structured and time-bound mechanism for insolvency resolution, promote asset value maximization, and facilitate the revival of viable businesses.

The insolvency process starts when someone, whether an individual or a company, files an insolvency petition due to their financial troubles. After filing, the court or an insolvency practitioner takes charge of overseeing the proceedings. Negotiations with creditors, selling off assets, or restructuring finances could be part of the process. The main goal is to handle the debts owed in a transparent and just manner. Both creditors' rights and the debtor's chance for a new beginning are taken into consideration. The process is time-bound, ensuring a smooth and efficient resolution to the insolvency case. 

History of Insolvency Petition

The concept of insolvency in India has a long history and can be traced back to ancient times. However, the modern framework for dealing with insolvency issues was established with the enactment of the Insolvency and Bankruptcy Code (IBC) in 2016.

Before the IBC came into existence, India's insolvency and bankruptcy laws were fragmented and lacked a comprehensive and time-bound resolution mechanism. There were multiple laws dealing with insolvency, such as the Sick Industrial Companies (Special Provisions) Act, of 1985, the Recovery of Debts Due to Banks and Financial Institutions Act, of 1993, and the Companies Act, of 1956. However, these laws were not effective in providing a quick and efficient resolution to insolvency cases.

The need for a more robust insolvency framework arose due to several reasons:

1. Fragmented Legal System: The existence of multiple laws led to confusion and delays in the insolvency resolution process. Different laws are applied to different types of entities, making the process complicated and time-consuming.
2. Lengthy and Inefficient Insolvency Proceedings: Insolvency cases in India took years to resolve, causing a significant burden on the judicial system and preventing the timely recovery of debts.
3. Lack of Creditor Protection: The existing laws did not adequately protect the interests of creditors, leading to difficulties in recovering debts from defaulting entities.
4. Poor Recovery Rates: The recovery rates for creditors in insolvency cases were historically low, which discouraged lending and investment in the economy.
5. Inadequate Focus on Resolution: The focus was primarily on liquidation, leading to the closure of businesses and loss of livelihoods for employees.

Essential Documents Required for the Insolvency Petition

To file an insolvency petition, you'll need some essential documents. Here they are, explained in simple language:

1. Identity Proof: A valid identification document, like a passport or driver's license, to confirm your identity.
2. Address Proof: A document that shows your address, like a utility bill or Aadhaar card, to verify your residence.
3. Financial Statements: Documents that detail your financial situation, such as bank statements, income tax returns, and balance sheets.
4. Proof of Debts: Evidence of the debts you owe, like loan agreements, credit card bills, or any other outstanding payments.
5. Creditors' Claims: A list of claims made by your creditors, stating how much they are owed.
6. Asset Details: Information about your assets, including properties, vehicles, or any valuable possessions you own.
7. Employment Proof: If you are employed, provide a letter from your employer to confirm your job and income.
8. Business Details: For companies, documents about the business, like registration certificates and ownership details.
9. Insolvency Resolution Plan: If available, a proposed plan to deal with your debts and repay creditors.
10. Affidavit: A sworn statement declaring the accuracy of the information provided in the petition.

Conclusion

In conclusion, an insolvency petition is a vital lifeline for individuals and companies burdened by overwhelming debts. It offers relief from debt stress, fair asset distribution, and a structured resolution process. Crucially, it provides a chance for financial rehabilitation and preserves businesses and jobs. The process ensures transparency and accountability, making it a valuable tool for those seeking a fresh start and a brighter financial future. The transparent and supervised nature of the process ensures accountability and fairness throughout. Additionally, in some jurisdictions, the insolvency code provides a single point of resolution for all creditors, streamlining the process and avoiding multiple legal actions.

FAQs

What is the time limit for Insolvency Petition?

The time limit for filing an insolvency petition can vary depending on the jurisdiction and the specific insolvency laws applicable in that region. In some countries, there might not be a specific time limit for filing an insolvency petition, while in others, there may be strict deadlines.

For example, in India under the Insolvency and Bankruptcy Code (IBC), the time limit for admitting or rejecting a corporate insolvency resolution application is 14 days from the date of its submission. However, the specific time limit for filing an insolvency petition itself may not be explicitly defined.

How long does Insolvency take?

The duration of an insolvency process can vary significantly depending on several factors, including the complexity of the case, the type of insolvency (personal or corporate), the jurisdiction, and the efficiency of the insolvency resolution system in place.

In certain cases, the proceedings can be resolved within a few months, especially if it involves a straightforward and uncontested matter. However, in the event of complex cases, it may take several months or even years to resolve.

What is the court fee for an insolvency petition? 

The court fees for filing an insolvency petition can vary depending on the jurisdiction and the specific laws applicable in that region. The fees may also differ based on the type of insolvency petition (personal or corporate) and the amount of debt involved.

In some countries, the court fee for filing an insolvency petition may be fixed, while in others, it might be calculated as a percentage of the debt amount being claimed. Additionally, the court fees may also include additional charges for other legal processes involved in the insolvency proceedings.

What are the benefits of an Insolvency Petition?

Filing an insolvency petition can offer several significant benefits when facing financial distress. Here's a human-friendly explanation of its advantages:

• Relief from Debt Stress: An insolvency petition provides relief from the constant burden of overwhelming debts. It gives individuals and companies a chance to address their financial challenges and take a step toward regaining control over their finances.
• Fair Distribution of Assets: The process ensures that creditors' interests are protected and that the debtor's assets are fairly distributed to repay the debts owed. This helps maintain a sense of fairness in the resolution.
• Time-Bound Resolution: Insolvency proceedings are time-bound, offering a structured approach to resolving debts efficiently. This means that the resolution process is faster compared to other alternatives.
• Opportunity for Financial Rehabilitation: Filing an insolvency petition allows debtors to restructure their financial affairs, negotiate with creditors, and work towards a fresh start. This opportunity can be crucial in rebuilding one's financial life.
• Legal Protection: Once an insolvency petition is filed, creditors are prohibited from taking further legal actions against the debtor, providing a breathing space to work on finding a resolution.

Does the filing of an insolvency petition affect the credit score?

Yes, filing an insolvency petition can significantly impact the credit score. When one files for insolvency, it indicates to creditors and credit bureaus that they are facing financial difficulties and unable to manage their debts. As a result, it can have several negative effects on your creditworthiness and overall credit profile. Filing for insolvency will be noted on one’s credit report, and this entry will remain on their credit history for several years. It becomes visible to potential lenders and can affect their decision when evaluating creditworthiness. Further, it negatively affects the petitioner’s ability to achieve future financial goals such as buying a home, leasing a car, or obtaining a mortgage.

Author Bio: Adv. Pawan Prakash Pathak, Managing Partner at Vidhik Nyay & Partners, specializes in Constitutional Practice in India. After graduating from Pune University in 2017, he founded the firm in 2019 and has since accrued nearly 7 years of legal expertise. He also has considerable experience in handling litigation & and prosecution matters relating to commercial disputes, and civil & criminal disputes & he has represented several highly reputed national & international companies like Dew Point HVAC, Batt Wheelz, SS Engineering, etc, Proto Developers Ltd. He has represented and has argued for 100 + clients & has a wide media coverage for the reported matters. He has regular appearances in the Supreme Court of India, the High Court, National Company Law Tribunal, Debt Recovery Appellate Tribunal, Telecom Disputes Settlement and Appellate Tribunal and Appellate Tribunal for Forfeited Property (ATFP), NCDRC, AFT, CAT, PMLA.