Pre-packaged Insolvency Resolution Process (PPIRP)

Table of Contents:

1. Background of the PPIRP (Pre-packaged Insolvency Resolution Process)

1.1 Purpose and philosophy of PPIRP

1.2 Purpose of PPIRP as per preamble

1.3 Advantages of PPIRP over CIRP

1.4 No reason to restrict the PPIRP scheme to MSME only

2. Basic design of pre-packaged insolvency resolution process (PPIRP)

2.1 Distinction between CIRP and PPIRP

3. Application of provisions of CIRP to PPIRP

3.1 Some other sections of CIRP which are applicable to PPIRP

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1. Background of the PPIRP (Pre-packaged Insolvency Resolution Process)

After considering experience of Insolvency Code, the Insolvency Law Committee (ILC), at its meeting on 16-5-2020, decided to constitute a sub-committee to study pre-packaged Insolvency Resolution Process (PPIRP) for speedier resolution of insolvency, and submit their recommendations. Accordingly, a sub-committee of ILC was constituted by Ministry of Corporate Affairs vide order dated 24-4-2020, under Chairmanship of Dr. M S Sahoo, Chairperson of IBBI.

The sub-committee submitted its recommendations on 31st October, 2020 to Government. On basis of the recommendations of sub-committee, it was decided to amend Insolvency Code. An Ordinance was issued on 4-4-2021, making amendments to Insolvency Code. The amendments are effective from 4-4-2021. The Ordinance has been converted into IBC (Amendment) Act, 2021 w.r.e.f. 4-4-2021.

A pre-packaged insolvency resolution process (PPIRP) for corporate persons classified as micro, small and medium enterprises has been introduced by on 4-4-2021.

Chapter III-A [sections 54A to 54P] has been introduced in Part II of Insolvency Code w.e.f. 4-4-2021.

1.1 Purpose and philosophy of PPIRP

As per preamble to the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2021 issued on 4-4-2021, purpose of Ordinance is to help MSME to get over difficulties faced due to COVID-19 pandemic. However, really, this is not the major (or even real) objective of Ordinance. Scope of PPIRP is much wider than Covid-19.

In fact, the report dated 31-10-2020 of sub-committee of Insolvency Law Committee hardly talks of Covid-19 in their report.

Some important observations made in the sub-committee are as follows –

Pre-pack is preferred hybrid framework to resolve stress as a going concern, with minimum assistance of Government – Pre-pack has emerged as an innovative corporate rescue method that incorporates the virtues of both informal (out-of-court) and formal (judicial) insolvency proceedings. It seems to be preferred hybrid framework, as it empowers stakeholders to resolve the stress of a CD as going concern, with the minimum assistance of the State. It is considered fast, cost efficient, and effective in resolution of stress, much before value deteriorates, with the least business disruptions and without attracting the stigma attached with the formal insolvency process. It starts with an informal understanding, engages the stakeholders in between, and ends with a judicial blessing of the outcome, though the nuances differ across jurisdictions. The insolvency laws around the world provide a variant of pre-pack, in addition to regular resolution process – para 1.36 of sub-committee on PPIRP report dated 31-10-2020.

Basic Structure of PPIRP – The sub-committee of Insolvency Law Committee delineated the three principles that should guide the design of pre-pack framework. These are: (i) the basic structure of the Code should be retained; (ii) there should be no compromise of rights of any party; and (iii) the framework should have adequate checks and balances to prevent any abuse. It identified three features, namely, creditor in control, moratorium during resolution and binding nature of an approved resolution plan, which could be considered as part of basic structure of the Code. It envisaged a pre-pack framework that provides a level playing field and does not disturb the balance of power too much to preserve the credit discipline that has been achieved with implementation of the Code in the last three years – para 1.44 of sub-committee on PPIRP report dated 31-10-2020.

Advantages of PPIRP over CIRP – Pre-pack combines “the best of both worlds” so that insolvency proceedings cause minimal disruption to debtors’ business activities by combining the efficiency, speed, cost, and flexibility of workouts with the binding effect and structure of formal insolvency proceedings. It offers several advantages as compared to the regular resolution process. Most of these emanate from two elements, namely, (a) the informal process, and (b) shorter time for closure. Since the process prior to commencement of formal proceeding is informal, pre-pack provides the stakeholders flexibility in working out a consensual, but efficient, strategy for effective resolution and value maximisation that may be difficult under the formal insolvency procedure. It takes less time because a substantial part of the proceedings is undertaken before the commencement of the formal proceeding by the court. The sub-committee took note of benefits of a typical pre-pack process – para 2.14 of sub-committee on PPIRP report dated 31-10-2020.

PPIRP should be extended to all Corporate Debtors in phases – The sub-committee recommends making pre-pack available for all CDs, but it could be implemented in phases – para 3.17 of sub-committee on PPIRP report dated 31-10-2020.

Co-operation of management of CD essential for success of PPIRP – The success of the pre-pack hinges upon the co-operation and active participation of the CD, its promoters, management, and Board of Directors in the process – para 3.17 of sub-committee on PPIRP report dated 31-10-2020.

Corporate Debtor is the best and often the only person for resolution of stress – The CD understands the company, its stress, and the possibility of its resolution better. In many cases it could be the only person who is interested in resolution of stress of the CD and can do so. In recognition of this, the pre-pack framework in every other jurisdiction allows only the CD to initiate the process voluntarily and obtain consent of key stakeholders before approaching the Court. When it does so voluntarily with consent of stakeholders, the threat of losing company or the possibility of liquidation reduces considerably – para 3.19 of sub-committee on PPIRP report dated 31-10-2020.

Process flexibility before admission of application for PPIRP – In the interest of flexibility which makes pre-pack advantageous, the process before the admission should be flexible and not codified. It should be left to mutual understanding among the stakeholders and such understanding or process of understanding should be informal. For example, the law should not prescribe whether a meeting of creditors is required to obtain approval, when it should be organised, who will chair the meeting, how votes will be taken, etc. It should be sufficient if the proposal to explore pre-pack has approval of majority of unrelated FCs – para 3.19 of sub-committee on PPIRP report dated 31-10-2020 – para 3.33 of sub-committee on PPIRP report dated 31-10-2020.

1.2 Purpose of PPIRP as per the preamble

As per preamble to the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2021 issued on 4-4-2021, COVID-19 pandemic has impacted businesses, financial markets and economies all over the world, including India, and has impacted the business operations of micro, small and medium enterprises (MSME) and exposed many of them to financial distress. Government had taken several measures to mitigate the distress caused by the pandemic, including suspending filing of applications for initiation of corporate insolvency resolution process in respect of the defaults arising during the period of one year beginning from 25th March 2020. The suspension has ended on 24-3-2021.

Micro, small and medium enterprises (MSME) are critical for India’s economy as they contribute significantly to its gross domestic product and provide employment to a sizeable population. Hence, it was necessary to urgently address the specific requirements of micro, small and medium enterprises relating to the resolution of their insolvency, due to the unique nature of their businesses and simpler corporate structures.

Hence, it is proposed to provide an efficient alternative insolvency resolution process for corporate persons classified as micro, small and medium enterprises under the Insolvency and Bankruptcy Code, 2016, ensuring quicker, cost-effective and value maximising outcomes for all the stakeholders, in a manner which is least disruptive to the continuity of their businesses and which preserves jobs.

Purpose as given in preamble is not real purpose at all – Really, the purpose as given in preamble is not real purpose at all. It seems a political gimmick.

1.3 Advantages of PPIRP over CIRP

Normal procedure as specified in Part II Chapter II of Insolvency Code [sections 4 to 32A] are cumbersome. Hence a comparatively simple procedure has been prescribed in Chapter III-A [sections 54A to 54P] in Part II of Insolvency Code.

In PPIRP, provisions from UK have been mainly adapted to our Indian law but similar procedures exist in France, Netherlands, Germany etc.

PPIRP has following inherent advantages over CIRP. These advantages have been noted in the report dated 31-10-2020 of sub-committee of Insolvency Law Committee.

Preliminary work already done before filing application to Adjudicating Authority – CIRP does not involve any preliminary steps before filing application to Adjudicating Authority (AA). However, PPIRP process commences only after (a) at least 66% of financial creditors approval proposal for PPIRP and approve name of Resolution Professional (b) Corporate debtor passes special resolution on 75% of members approve (c) Corporate Debtor prepares a Base Resolution Plan (d) Name of Resolution Professional has been approved by Financial Creditors and Corporate Debtors.

Thus, initial spade work is done before making application to Adjudicating Authority (NCLT) and some sort of informal understanding has been reached with financial creditors.

Informal understanding with creditors before making formal application to AA for approval – Pre-Pack Insolvency resolution plan allows creditors and debtors to work on an informal plan and then submit to Adjudicating Authority (AA) for approval. Thus, flexibility is available in initial stages.

Practically and effectively, it is a joint application by Corporate debtor and Financial Creditors. Thus, chances of opposition at admission stage are less as it is usually a ‘win-win’ situation.

In my view, Banks and Financial Institutions may find this an easy option as ‘audit objections’ and ‘objections from RBI’ are likely to be much less if approval is accorded by quasi-judicial authority like NCLT.

Fast approval and reduction of burden on NCLT – Since informal understanding has already been reached between financial creditors and corporate debtor, approval will be fast as practically there may not be opposition to resolution plan. At stage of admission, detailed examination of issues will not be required.

Management continues with corporate debtor and hence no disturbance in running of enterprise – In CIRP, Management of corporate debtor is handed over to Interim Resolution Professional (IRP). Practically, it is impossible for him to manage an enterprise of which he has no idea or exposure at all. Thus, effectively, management has to continue with corporate debtor himself.

In PPIRP, the management continues with corporate debtor himself, except in case of fraud. Thus, disturbance in routine management of enterprise is negligible.

Base Resolution Plan is good starting point – It is rightly said that one who wears the shoes knows where shoe pinches. Thus, the management of corporate debtor, which has inside knowledge of business, is in the best position to determine way of recovery (unless of course he is crook). The Base Resolution Plan prepared by corporate debtor having inside knowledge of business is a good starting point. In fact, if there is no impairment of operational creditors, Committee of Creditors can accept the Base Resolution Plan itself, with some improvements.

Corporate debtor is allowed to be partner with other person – It is specifically clarified that the corporate debtor may submit the base resolution plan either individually or jointly with any other person – Explanation I to section 54K of Insolvency Code. Thus, he can rope in financial or technical or marketing partner (as per requirement) and submit best possible resolution plan.

Swiss challenge method to get best possible resolution plan – A ‘Swiss challenge’ is a method where a bid is published and third parties are invited to match or better it. This system has been specifically provided in PPIRP regulations.

A Swiss challenge is a method of bidding, in which an interested party initiates a proposal for a contract or the bid for a project. The details of the project are out in the public and invites proposals from others interested in executing it. On the receipt of these bids, the original contractor gets an opportunity to match the best bid.

The ‘Swiss Challenge’ allows a seller to mix-and-match the features of both an open auction and a closed tender to discover the best price for an asset.

The submitter of the resolution plan under regulation 48(3) of IBBI (PPIRP) Regulations shall have an option to improve its plan in the following manner:-

(a) The submitter of resolution plan, which has lower score, shall have an option to improve its resolution plan by at least a tick size

(b) then the submitter of the other resolution plan shall have an option to improve its resolution plan by at least a tick size

(c) then the submitter under clause (a) shall have an option to improve its resolution plan by at least a tick size

(d) then the submitter under clause (b) shall have an option to improve its resolution plan by at least a tick size.

The process of improvement shall continue till either of the submitters fails to use the option within the time specified in the invitation for resolution plans – Regulation 48(4) of IBBI (PPIRP) Regulations, 2021.

1.4 No reason to restrict the PPIRP scheme to MSME only

PPIRP has some inherent advantages compared to normal CIRP (Corporate Insolvency Resolution Process) as explained above. In my view, there is no reason to restrict the scheme to corporate MSME only and should be extended to all body corporates, may be with some stricter controls. This is view of sub-committee of Insolvency Law Committee also.

2. Basic design of pre-packaged insolvency resolution process (PPIRP)

The basic aspects of PPIRP are as follows –

• • • The PPIRP applies only to MSME which are corporates (Company or LLP or body corporate with limited liability) – section 54A(1)
    • Except where specific provisions have been made in respect of PPIRP, most of other provisions relating to CIRP apply to PPIRP also with suitable modifications [section 54L and section 54P]
    • PPIRP process commences only after (a) at least 66% of financial creditors approval proposal for PPIRP and approve name of Resolution Professional (b) Corporate debtor passes special resolution on 75% of members approve (c) Corporate Debtor prepares a Base Resolution Plan (d) Name of Resolution Professional has been approved by Financial Creditors and Corporate Debtors (e) Draft information memorandum is prepared- section 54A
    • Minimum default should be ` ten lakhs – Notification No. S.O. 1543(E) dated 9-4-2021.
    • CIRP cannot be initiated by a financial creditor or an operational creditor of a corporate debtor which is undergoing a pre-packaged insolvency resolution process – section 11(aa). What is meant is that if MSME is undergoing PPIRP, Financial Creditor or Operational creditor cannot file CIRP against that MSME. The Financial Creditor or Operational creditor can of course file CIRP against some other corporate debtor. The drafting of this clause needs improvement to clarify the intention.
    • Corporate debtor is required to prepare base resolution plan and submit to Financial Creditors before they agree to commence PPIRP – section 54A(4)(c)
    • Fees of resolution professional are to be borne by resolution applicant if PPIRP not filed by corporate debtor or is rejected by AA, for which a separate bank account is required to be opened – Regulation 8
    • After special resolution and approval of at least 66% of creditors, application shall be filed with Adjudicating Authority (AA) (NCLT) by corporate applicant in Form 1 as prescribed in PPIRP Rules, with required annexures – section 54C(1)
    • Further process starts if AA (NCLT) admits application – [section 54C(4)]
    • PPIRP gets priority if application filed before application for CIRP of application filed within 14 days of filing application for CIRP – section 11A(1). It is impossible to complete all formalities within 14 days and hence corporate applicant may file application with whatever details within 14 days and then request time to complete formalities [hope this works]
    • PPIRP cannot be filed if CIRP already commenced against corporate debtor- section 11A(4)
    • On admission of PPIRP, AA shall declare moratorium, appoint Resolution Professional and order public announcement – section 54E(1)
    • After order of AA, resolution plan should be submitted within 90 days (otherwise PPIRP terminates) and entire PPIRP process should be completed within 120 days – section 54D(1)
    • CoC should be constituted in seven days – section 54F(2)
    • The resolution professional shall finalise the information memorandum with details under regulation 40(2) and submit to members of the committee within 14 days.
    • The financial institutions maintaining accounts of the corporate debtor shall furnish all information relating to the corporate debtor available with them to the resolution professional – section 54F(4)
    • The corporate debtor shall submit a list of claims under section 54G(1) of Insolvency Code in Form P10 to the resolution professional – Regulation 20(1). Claims will be updated from time to time.
    • The management of the affairs of the corporate debtor shall continue to vest in the Board of Directors or the partners, unless conducted in fraudulent manner – section 54H
    • CoC can resolve to vest management of corporate debtor with RP with 66% voting, approval of AA is required – section 54J(1)
    • Base resolution Plan to be submitted to CoC – section 54K(1). It can be revised and improved.
    • CoC may approve the base resolution plan for submission to the Adjudicating Authority if it does not impair any claims owed by the corporate debtor to the operational creditors – Section 54K(4)
    • CoC can invite Resolution Applicant to submit resolution plan, if base resolution plan not accepted – section 54K(5)
    • Any person can be resolution applicant even if (a) His account has been classified as NPA or (b) he has given guarantee to corporate debtor, which has been invoked by creditor but remains unpaid.- section 240A
    • Performance security by resolution applicant is mandatory
    • Scoring and improvement of resolution plans will be done as per Regulation 48 of IBBI (PPIRP) Regulations, 2021 – Swiss Challenge
    • CoC will approve a resolution plan with best score with minimum 66% voting- section 54K(9)
    • Termination of PPIRP if resolution plan not approved by CoC – section 54K(11)
    • Submission of Resolution plan approved by CoC to Adjudicating Authority for approval – section 54K(15)
    • Approval of resolution plan by AA – section 54L(1)
    • AA can order liquidation if PPIRP terminated – section 54N(4)
    • CoC may terminate PPIRP if corporate debtor eligible for CIRP – section 54-O
    • Order of liquidation if PPIRP terminated (or transfer as CIRP, but that will be an exercise in futility)

2.1 Distinction between CIRP and PPIRP

The distinctions are as follows:

3. Application of provisions of CIRP to PPIRP

Part II Chapter III-A of Insolvency Code [sections 54A to 54P] make special provisions for PPIRP. Except those special provisions, other provisions of CIRP apply to PPIRP also.

As per section 54P(1) of Insolvency Code inserted vide IBC (Amendment) Act, 2021 w.r.e.f. 4-4-2021, save as provided under Chapter III-A (Pre-packaged insolvency resolution process), the provisions of sections 24, 25A, 26, 27, 28, 29A, 32A, 43 to 51 of Insolvency Code, and the provisions of Chapters VI and VII of Part II of Insolvency Code shall, mutatis mutandis apply, to the pre-packaged insolvency resolution process, subject to the following, namely:―

(a)   reference to “members of the suspended Board of Directors or the partners” under section 24(3)(b) of Insolvency Code shall be construed as reference to “members of the Board of Directors or the partners, unless an order has been passed by the Adjudicating Authority under section 54J of Insolvency Code”.

(b) Reference to section 25(2)(j) under section 26 of Insolvency Code shall be construed as reference to section 54F(2)(h) of Insolvency Code.

(c) Reference to “section 16” under section 27 of Insolvency Code shall be construed as reference to “section 54E” of Insolvency Code.

(d) Reference to “resolution professional” in sections 28(1) and 28(4) of Insolvency Code shall be construed as “corporate debtor”.

(e) Reference to “section 31” under section 61(3) of Insolvency Code shall be construed as reference to section 54L(1)” of Insolvency Code.

(f) Reference to “section 14” in sections 74(1) and 74(2) of Insolvency Code shall be construed as reference to “section 54E(1)(e)” of Insolvency Code.

(g) Reference to “section 31” in section 74(3) of Insolvency Code shall be construed as reference to section 54L(1) of Insolvency Code.

The brief contents of sections which are specifically made applicable to PPIRP are as follows –

Section 24 – Meeting of creditors.

Section 25A – Voting by authorised representative of class of financial creditors if financial creditors give conflicting directions, his remuneration.

Section 26 – Filing of application for avoidance of transactions by the resolution professional shall not affect the proceedings of the corporate insolvency resolution process.

Section 27 – Committee of Creditors (CoC) can change the resolution professional with 66% voting, subject to a written consent from the proposed resolution professional in the specified form.

Section 28 – Prior approval of Committee of Creditors (CoC) for certain actions by resolution professional.

Section 29A – Persons not eligible to act as resolution applicant. This provision applies to PPIRP also, except where exemption has been given to MSME under section 240A of Insolvency Code.

Section 32A – Immunity from prosecution of corporate debtor after approval of PPIRP, in respect of past transactions, if there was change in management.

Sections 43 to 51 – Preferential transactions (sections 43 and 44), Undervalued transactions (sections 45, 46, 47 and 48), section 49 (Action if corporate debtor had defrauded creditors), sections 50 and 51 (extortionate credit transaction)

Chapter VI – Adjudicating Authority for corporate persons and penalties- sections 60 to 67

Chapter VII – Offences and punishments – sections 68 to 77A

3.1 Some other sections of CIRP which are applicable to PPIRP

Besides sections specified above, some other sections of CIRP are applicable to PPIRP through other sections, which are as follows –

Section 14(1) and 14(3) – Moratorium [Refer section 54E(1)]

Section 21 – Meeting of Committee of Creditors [Refer section 54-I(3)]

Section 30(1), 30(2) and 30(5) – Requirements and contents of resolution plan [Refer section 54K(3)]

Section 31(1) – Resolution plan once approved by AA binding on all [see section 54L(2)]

Section 31(3) – Moratorium ceases after approval of resolution plan and records to be returned [see section 54L(2)]

Section 31(4) – Approval from other authorities within specified period after approval of resolution plan [see section 54L(2)]

Section 33 – Liquidation if resolution plan contravened by corporate debtor [refer section 54N]