IBBI prohibits secured creditors from selling assets to entities ineligible for insolvency plan

08 Jan 2020 Evaluate

In an important change in the liquidation framework, the Insolvency and Bankruptcy Board of India (IBBI) has forbidden secured creditors from selling or transferring assets of a company, which is subject to security interest, to any person who is not eligible under the code to submit a resolution plan for insolvency resolution of the corporate debtor. The move will close doors on promoters regaining control of their insolvent firms during liquidation proceedings. The IBBI has notified changes to the regulations with effect from January 6. The amendment also provides for a stakeholder to withdraw from the corporate liquidation account.

The amendment clarifies that a person, who is restricted from submitting an insolvency resolution plan, shall not be a party in any manner to a compromise or arrangement of the corporate debtor under section 230 of the Companies Act, 2013. The IBC provides for time-bound and market-linked resolution process for stressed firms. In case the resolution process does not materialise, then the entity goes for liquidation. Section 230 allows for promoters or any class of creditors to reach an arrangement with other stakeholders to take control of the company once it is sent for liquidation.

The amendment allows a secured creditor, who proceeds to realise its security interest, to contribute its share of the insolvency resolution process cost, liquidation process cost and workmen's dues, within 90 days of the liquidation commencement date. Also, the secured creditor has to pay excess of realised value of the asset, which is subject to security interest, over the amount of its claims admitted, within 180 days of the liquidation commencement date. When the secured creditor fails to pay the amount to the liquidator within 90 days or 180 days, as the case may be, the asset should become part of the Liquidation Estate.

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