Insolvency and Bankruptcy Board of India (Liquidation Process) (Amendment) Regulations, 2019 - IBBI/2019-20/GN/REG047 - Insolvency and Bankruptcy

INSOLVENCY AND BANKRUPTCY BOARD OF INDIA NOTIFICATION New Delhi, 25th July, 2019 Insolvency and Bankruptcy Board of India (Liquidation Process) (Amendment) Regulations, 2019 No. IBBI/2019-20/GN/REG047. - In exercise of the powers conferred by clause (t) of subsection (1) of section 196 read with section 240 of the Insolvency and Bankruptcy Code, 2016 (31 of 2016) , the Insolvency and Bankruptcy Board of India hereby makes the following regulations further to amend the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 , namely: - 1. (1) These Regulations may be called the Insolvency and Bankruptcy Board of India (Liquidation Process) (Amendment) Regulations, 2019. (2) They shall come into force on the date of their publication in the Official Gazette. 2. In the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 , (hereinafter referred to as the principal regulations), in regulation 2, in sub-regulation (1) - (i) after clause (b), the following clause shall be inserted, namely: - (ba) consultation committee means the stakeholders consultation committee constituted under sub-regulation (1) of regulation 31A; ; (ii) for clause (ea), the following clause shall be substituted, namely:- (ea) liquidation cost under clause (16) of section 5 means- (i) fee payable to the liquidator under regulation 4; (ii) remuneration payable by the liquidator under sub-regulation (1) of regulation 7; (iii) costs incurred by the liquidator under sub-regulation (2) of regulation 24; (iv) costs incurred by the liquidator for preserving and protecting the assets, properties, effects and actionable claims, including secured assets, of the corporate debtor; (v) costs incurred by the liquidator in carrying on the business of the corporate debtor as a going concern; (vi) interest on interim finance for a period of twelve months or for the period from the liquidation commencement date till repayment of interim finance, whichever is lower; (vii) the amount repayable to contributories under sub-regulation (3) of regulation 2A; (viii) any other cost incurred by the liquidator which is essential for completing the liquidation process: Provided that the cost, if any, incurred by the liquidator in relation to compromise or arrangement under section 230 of the Companies Act, 2013 (18 of 2013), if any, shall not form part of liquidation cost. . 3. In the principal regulations , after regulation 2 , the following regulations shall be inserted, namely: - 2A. Contributions to liquidation costs. (1) Where the committee of creditors did not approve a plan under sub-regulations (3) of regulation 39B of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, the liquidator shall call upon the financial creditors, being financial institutions, to contribute the excess of the liquidation costs over the liquid assets of the corporate debtor, as estimated by him, in proportion to the financial debts owed to them by the corporate debtor. Illustration Assume that the excess of liquidation costs over liquid assets is ₹ 10, as estimated by the liquidator. Financial creditors will be called upon to contribute, as under: Sl. No. Financial creditors Amount of debt due to financial creditors (Rs.) Amount to be contributed towards liquidation cost (Rs.) (1) (2) (3) (4) 1 Financial institution A 40 04 2 Financial institution B 60 06 3 Non-financial institution A 50 00 4 Non-financial institution B 50 00 Total 200 10 (2) The contributions made under the plan approved under sub-regulation (3) of regulation 39B of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 or contributions made under sub-regulation (1), as the case may be, shall be deposited in a designated escrow account to be opened and maintained in a scheduled bank, within seven days of the passing of the liquidation order. (3) The amount contributed under sub-regulation (2) shall be repayable with interest at bank rate referred to in section 49 of the Reserve Bank of India Act, 1934 (2 of 1934) as part of liquidation cost. 2B. Compromise or arrangement. (1) Where a compromise or arrangement is proposed under section 230 of the Companies Act, 2013 (18 of 2013), it shall be completed within ninety days of the order of liquidation under sub-sections (1) and (4) of section 33. (2) The time taken on compromise or arrangement, not exceeding ninety days, shall not be included in the liquidation period. (3) Any cost incurred by the liquidator in relation to compromise or arrangement shall be borne by the corporate debtor, where such compromise or arrangement is sanctioned by the Tribunal under sub-section (6) of section 230: Provided that such cost shall be borne by the parties who proposed compromise or arrangement, where such compromise or arrangement is not sanctioned by the Tribunal under sub-section (6) of section 230. . 4. In the principal regulations , for regulation 4 , the following regulation shall be substituted, namely: 4. Liquidator s fee. (1) The fee payable to the liquidator shall be in accordance with the decision taken by the committee of creditors under regulation 39D of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. (2) In cases other than those covered under sub-regulation (1), the liquidator shall be entitled to a fee- (a) at the same rate as the resolution professional was entitled to during the corporate insolvency resolution process, for the period of compromise or arrangement under section 230 of the Companies Act, 2013 (18 of 2013); and (b) as a percentage of the amount realised net of other liquidation costs, and of the amount distributed, for the balance period of liquidation, as under: Amount of Realisation / Distribution (In rupees) Percentage of fee on the amount realised / distributed in the first six months in the next six months thereafter Amount of Realisation (exclusive of liquidation costs) On the first 1 crore 5.00 3.75 1.88 On the next 9 crore 3.75 2.80 1.41 On the next 40 crore 2.50 1.88 0.94 On the next 50 crore 1.25 0.94 0.51 On further sums realized 0.25 0.19 0.10 Amount Distributed to Stakeholders On the first 1 crore 2.50 1.88 0.94 On the next 9 crore 1.88 1.40 0.71 On the next 40 crore 1.25 0.94 0.47 On the next 50 crore 0.63 0.48 0.25 On further sums distributed 0.13 0.10 0.05 (3) Where the fee is payable under clause (b) of sub-regulation (2), the liquidator shall be entitled to receive half of the fee payable on realisation only after such realised amount is distributed. Clarification: Regulation 4 of these regulations, as it stood before the commencement of the Insolvency and Bankruptcy Board of India (Liquidation Process) (Amendment) Regulations, 2019 shall continue to be applicable in relation to the liquidation processes already commenced before the coming into force of the said amendment Regulations. . 5. In the principal regulations , in regulation 12, for sub-regulation (2) , the following subregulation shall be substituted, namely: - (2) The public announcement shall- (a) call upon stakeholders to submit their claims or update their claims submitted during the corporate insolvency resolution process, as on the liquidation commencement date; and (b) provide the last date for submission or updation of claims, which shall be thirty days from the liquidation commencement date. . 6. In the principal regulations , for regulation 16 , the following regulation shall be substituted, namely: - 16. Submission of claim. (1) A person, who claims to be a stakeholder, shall submit its claim, or update its claim submitted during the corporate insolvency resolution process, including interest, if any, on or before the last date mentioned in the public announcement. (2) A person shall prove its claim for debt or dues to him, including interest, if any, as on the liquidation commencement date. . 7. In the principal regulations , after regulation 21 , the following regulation shall be inserted, namely: 21A. Presumption of security interest. (1) A secured creditor shall inform the liquidator of its decision to relinquish its security interest to the liquidation estate or realise its security interest, as the case may be, in Form C or Form D of Schedule II: Provided that, where a secured creditor does not intimate its decision within thirty days from the liquidation commencement date, the assets covered under the security interest shall be presumed to be part of the liquidation estate. (2) Where a secured creditor proceeds to realise its security interest, it shall pay as much towards the amount payable under clause (a) and sub-clause (i) of clause (b) of sub-section (1) of section 53, as it would have shared in case it had relinquished the security interest. . 8. In the principal regulations , after regulation 31 , the following regulation shall be inserted, namely: 31A. Stakeholders consultation committee. (1) The liquidator shall constitute a consultation committee within sixty days from the liquidation commencement date, based on the list of stakeholders prepared under regulation 31, to advise him on the matters relating to sale under regulation 32. (2) The composition of the consultation committee under sub-regulation (1) shall be as shown in the Table below: Table Class of Stakeholders Description Number of Representatives (1) (2) (3) Secured financial creditors, who have relinquished their security interests under section 52 Where claims of such creditors admitted during the liquidation process is less than 50% of liquidation value Number of creditors in the category, subject to a maximum of 2 Where claims of such creditors admitted during the liquidation process is at least 50% of liquidation value Number of creditors in the category, subject to a maximum of 4 Unsecured financial creditors Where claims of such creditors admitted during the liquidation process is less than 25% of liquidation value Where claims of such creditors admitted during the liquidation process is at least 25% of liquidation value Number of creditors in the category, subject to a maximum of 1 Number of creditors in the category, subject to a maximum of 2 Workmen and employees 1 1 Governments 1 1 Operational creditors other than Workmen, employees and Governments Where claims of such creditors admitted during the liquidation process is less than 25% of liquidation value Number of creditors in the category, subject to a maximum of 1 Where claims of such creditors admitted during the liquidation process is at least 25 % of liquidation value Number of creditors in the category, subject to a maximum of 2 Shareholders or partners, if any 1 (3) The liquidator may facilitate the stakeholders of each class to nominate their representatives for inclusion in the consultation committee. (4) If the stakeholders of any class fail to nominate their representatives, the required number of stakeholders with the highest claim amount in that class shall be included in the consultation committee. (5) Subject to the provisions of the Code and these regulations, representatives in the consultation committee shall have access to all relevant records and information as may be required to provide advice to the liquidator under sub-regulation (1). (6) The liquidator shall convene a meeting of the consultation committee when he considers it necessary and shall convene a meeting of the consultation committee when a request is received from at least fifty-one percent of representatives in the consultation committee. (7) The liquidator shall chair the meetings of consultation committee and record deliberations of the meeting. (8) The liquidator shall place the recommendation of committee of creditors made under subregulation (1) of regulation 39C of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, before the consultation committee for its information. (9) The consultation committee shall advise the liquidator, by a vote of not less than sixty-six percent of the representatives of the consultation committee, present and voting. (10) The advice of the consultation committee shall not be binding on the liquidator: Provided that where the liquidator takes a decision different from the advice given by the consultation committee, he shall record the reasons for the same in writing. . 9. In principal regulations, after regulation 32 , the following regulation shall be inserted, namely:- 32A. Sale as a going concern. (1) Where the committee of creditors has recommended sale under clause (e) or (f) of regulation 32 or where the liquidator is of the opinion that sale under clause (e) or (f) of regulation 32 shall maximise the value of the corporate debtor, he shall endeavour to first sell under the said clauses. (2) For the purpose of sale under sub-regulation (1), the group of assets and liabilities of the corporate debtor, as identified by the committee of creditors under sub-regulation (2) of regulation 39C of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 shall be sold as a going concern. (3) Where the committee of creditors has not identified the assets and liabilities under subregulation (2) of regulation 39C of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, the liquidator shall identify and group the assets and liabilities to be sold as a going concern, in consultation with the consultation committee. (4) If the liquidator is unable to sell the corporate debtor or its business under clause (e) or (f) of regulation 32 within ninety days from the liquidation commencement date, he shall proceed to sell the assets of the corporate debtor under clauses (a) to (d) of regulation 32. . 10. In the principal regulations , in regulation 35, in sub-regulation (2), for In cases not covered under sub-regulation (1), the liquidator shall within seven days , the following shall be substituted, namely: - In cases not covered under sub-regulation (1) or where the liquidator is of the opinion that fresh valuation is required under the circumstances, he shall within seven days . 11. In the principal regulations, in regulation 42 , in sub-regulation (2), for the words six months , the words ninety days shall be substituted. 12. In the principal regulations , in regulation 44, - (i) for sub-regulation (1), the following sub-regulation shall be substituted, namely: - (1) The liquidator shall liquidate the corporate debtor within a period of one year from the liquidation commencement date, notwithstanding pendency of any application for avoidance of transactions under Chapter III of Part II of the Code, before the Adjudicating Authority or any action thereof: Provided that where the sale is attempted under sub-regulation (1) of regulation 32A, the liquidation process may take an additional period up to ninety days. ; (ii) in sub-regulation (2), for the words two years , the words one year shall be substituted. 13. In the principal regulations, in regulation 45, for sub-regulation (3), the following subregulation shall be substituted, namely: - (3) The liquidator shall submit an application along with the final report and the compliance certificate in form H to the Adjudicating Authority for - (a) closure of the liquidation process of the corporate debtor where the corporate debtor is sold as a going concern; or (b) for the dissolution of the corporate debtor, in cases not covered under clause (a). . 14. In the principal regulations, after regulation 46 , the following regulation shall be inserted, namely: - 47. Model time-line for liquidation process. The following Table presents a model timeline of liquidation process of a corporate debtor from the liquidation commencement date, assuming that the process does not include compromise or arrangement under section 230 of the Companies Act, 2013 (18 of 2013) or sale under regulation 32A: Model Timeline for Liquidation Process Sl. No. Section / Regulation Description of Task Norm Latest Timeline (Days) (1) (2) (3) (4) (5) 1 Section 33 and 34 Commencement of liquidation and appointment of liquidator LCD 0 = T 2 Section 33 (1) (b) (ii) / Reg. 12 (1, 2, 3) Public announcement in Form B Within 5 days of appointment of liquidator. T + 5 3 Reg. 35 (2) Appointment of registered valuers Within 7 days of LCD T + 7 4 Section 38 (1) and (5), Reg. 17, 18 and 21A Submission of claims; Within 30 days of LCD T + 30 Intimation of decision on relinquishment of security interest 5 Section 38 (5) Withdrawal/ modification of claim Within 14 days of submission of claim T + 44 6 Reg. 30 Verification of claims received under regulation 12(2)(b) Within 30 days from the last date for receipt of claims T + 60 7 Reg. 31A Constitution of SCC Within 60 days of LCD T + 60 8 Section 40 (2) Intimation about decision of acceptance/ rejection of claim Within 7 days of admission or rejection of claim T + 67 9 Reg. 31 (2) Filing the list of stakeholders and announcement to public Within 45 days from the last date of receipt of claims T + 75 10 Section 42 Appeal by a creditor against the decision of the liquidator Within 14 days of receipt of such decision T + 81 11 Reg. 13 Preliminary report to the AA Within 75 days of LCD T + 75 12 Reg. 34 Asset memorandum Within 75 days of LCD T + 75 13 Reg. 15 (1), (2), (3), (4) and (5), and 36 Submission of progress reports to AA; Asset Sale report to be enclosed with every Progress Report, if sales are made First progress report Q1 + 15 Q-2 Q2 + 15 Q-3 Q3 + 15 Q-4 Q4 + 15 FY: 1 Audited accounts of liquidator's receipt payments for the financial year 15 th April 14 Proviso to Reg. 15 (1) Progress report in case of cessation of liquidator Within 15 days of cessation as liquidator Date of cessation + 15 15 Reg. 37 (2, 3) Information to secured creditors Within 21 days of receipt of intimation from secured creditor Date of intimation + 21 16 Reg. 42 (2) Distribution of the proceeds to the stakeholders Within 3 months from the receipt of amount Date of Realisation + 90 17 Reg.10 (1) Application to AA for Disclaimer of onerous property Within 6 months from the LCD T + 6 months 18 Reg.10 (3) Notice to persons interested in the onerous property or contract At least 7 days before making an application to AA for disclosure. 19 Reg. 44 Liquidation of corporate debtor. Within one year T + 365 20 Reg. 46 Apply to AA for order on unclaimed proceeds of liquidation or undistributed assets. Before dissolution order 21 Sch-1 Sl. No 12 Time period to H1 bidder to provide balance sale consideration Within 90 days of the date of invitation to provide the balance amount. [AA: Adjudicating Authority, LCD: Liquidation Commencement Date, SCC: Stakeholders Consultation Committee] 15. In the principal regulations, in Schedule I, - (i) in Paragraph 1, for clause (4), the following shall be substituted, namely: - (4) The reserve price shall be the value of the asset arrived at in accordance with regulation 35. (4A) Where an auction fails at the reserve price, the liquidator may reduce the reserve price by up to twenty-five percent of such value to conduct subsequent auction. (4B) Where an auction fails at reduced price under clause (4A), the reserve price in subsequent auctions may be further reduced by not more than ten percent at a time. ; (ii) for paragraph 12, the following paragraphs shall be substituted, namely: - (12) On the close of the auction, the highest bidder shall be invited to provide balance sale consideration within ninety days of the date of such demand: Provided that payments made after thirty days shall attract interest at the rate of 12%: Provided further that the sale shall be cancelled if the payment is not received within ninety days. (13) On payment of the full amount, the sale shall stand completed, the liquidator shall execute certificate of sale or sale deed to transfer such assets and the assets shall be delivered to him in the manner specified in the terms of sale. . 16. In the principal regulations, in Schedule II,- (i) in Form B, for [insert the date falling thirty days after the liquidation commencement date] , the following shall be substituted, namely: - [insert the date falling thirty days from the liquidation commencement date] ; (ii) in Form C , in the table, after serial number 8, the following serial number and entries shall be inserted, namely: - 8A. WHETHER SECURITY INTEREST RELINQUISHED Yes/ No ; (iii) in Form D , in the table, after serial number 8, the following serial number and entries shall be inserted, namely: - 8A. WHETHER SECURITY INTEREST RELINQUISHED Yes/ No ; (iv) after Form G , the following Form shall be inserted, namely: - FORM H COMPLIANCE CERTIFICATE [Under Regulation 45(3) of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016] 1. [Name of the Liquidator], an insolvency professional enrolled with [name of insolvency professional agency] and registered with the Board ith registration number [registration number], am the Liquidator for the Liquidation Process of [name of the corporate debtor (CD)]. 2. The details of the Liquidation Process are as under: Sl. No. Particulars Description (1) (2) (3) 1 Name of the corporate debtor 2 Case No. NCLT Bench 3 Date of initiation of liquidation 4 Date of appointment of liquidator 5 Date of commencement of CIRP 6 Name of RP during CIRP and his registration No. as IP 7 Name of Liquidator and his registration No. as IP 8 Date of Publication of Public Announcement under Form B 9 Date of Intimation to Registry and Information Utility, if any, about commencement of Liquidation 10 Date of handover of charge by RP 11 Date of submission of compliance, if any, directed by AA in the liquidation order and its particulars 12 Date of appointment of registered valuers, if any 13 Date of notice for uncalled capital/unpaid capital contribution 14 Date of realisation of uncalled capital/unpaid capital contribution 15 Date of opening of liquidation account with Bank A/c details 16 Date of constitution of Consultation Committee 17 No. of meetings of consultation committee held 18 Date of submission of list of stakeholders to AA 19 Date of public announcement of list of stakeholders 20 Date of filing of preliminary report assets memorandum to AA 21 Fair value 22 Liquidation value 23 Date of public announcement for auction (please add additional rows, if required) 24 Date of order of AA to dispense with the public announcement for Auction 25 Date of permission of AA for physical Auction 26 Date of permission of AA for private sale 27 Date of permission of AA for distribution of unsold assets to stakeholders 28 Date of permission of the liquidator to realise the un-relinquished security interest by the secured creditor 29 Modified list of stakeholders and date of submission to AA 30 Date of first realisation 31 Date of second realisation 32 Date of first distribution 33 Date of second distribution 34 Date of submission of Quarterly Progress Report-I (FY-1) 35 Date of submission of Asset Sales Report to AA 36 Date of submission of Quarterly Progress Report-II 37 Date of submission of Quarterly Progress Report-III 38 Date of submission of Quarterly Progress Report-IV Audit Report 39 Date of submission of Quarterly Progress Report-I (FY-2) 40 Date of submission of Quarterly Progress Report-II 41 Date of submission of Quarterly Progress Report-III 42 Date of submission of Quarterly Progress Report-IV Audit Report 43 Date of intimation to statutory authority as applicable. PF ESI Income Tax Dept Inspector of Factory GST/VAT Others 44 Date of application to AA as per Reg 46(1) 45 Date of transfer of undistributed/unclaimed assets or proceeds of liquidation to public Account of India 46 Date of intimation as per Reg 46(3) 47 Date of Final Report to AA (prior to dissolution application) 3. The details of the assets as per Asset Memorandum and Final Sale Report are as under: Sl. No. Assets Mode of Sale Estimated Liquidation Value Realisation Amount (Rs.) Date of Transfer to Liquidation Account (1) (2) (3) (4) (5) (6) 4. (a) Liquidation value of the liquidation estate: (b) Amount realised from sale of liquidation estate: (c) The amounts distributed to stakeholders as per section 52 or 53 of Code are as under: (Amount in Rs. lakh) Sl. No. Stakeholders* under section 53 (1) Amount Claimed Amount Admitted Amount Distributed Amount Distributed to the Amount Claimed (%) Remarks (1) (2) (3) (4) (5) (6) (7) 1 (a): CIRP Costs 2 (a): Liquidation Costs 3 (b)(i) 4 (b)(ii) 5 (c) 6 (d) 7 (e)(i) 8 (e) (ii) 9 (f) 10 (g) 11 (h) Total *If there are sub-categories in a category, please add rows for each sub-category. 5. The Liquidation Process has been conducted as per the timeline indicated in regulation 47 as under: Section of the Code / Regulation No. Description of Task Timeline as per regulation 47 Actual Timeline (1) (2) (3) (4) Section 33 Commencement of LCD and Appointment of Liquidator T T 6. The following are deviations /non-compliances with the provisions of the Insolvency and Bankruptcy Code, 2016, regulations made, or circulars issued there under (If any deviation/ non-compliances were observed, please state the details and reasons for the same): Sl. No. Deviation/Noncompliance observed Section of the Code / Regulation No. / Circular No. Reasons Whether rectified or not (1) (2) (3) (4) (5) 1 2 3 7. The dissolution application has been filed [before expiry of the period of one year] / [after expiry of one year]. Please state details of any extension sought with the reason and granted: 8. The details of application(s) filed / pending in respect of avoidance of transactions. Sl. No. Type of Transaction Date of Filing with Adjudicating Authority Date of Order of the Adjudicating Authority Brief of the Order (1) (2) (3) (4) (5) 1 Preferential transactions under section 43 2 Undervalued transactions under section 45 3 Extortionate credit transactions under section 50 4 Fraudulent transactions under section 66 9. All undischarged or matters pending before any Court or Tribunal relating to corporate debtor, if any, have been reported to AA. 10. I (Name of Liquidator), hereby certify that the contents of this certificate are true and correct to the best of my knowledge and belief, and nothing material has been concealed there from. (Signature) Name of the Liquidator: IP Registration No: Address as registered with the Board: Email id as registered with the Board: Date: Place: . Dr. M. S. Sahoo Chairperson [ADVT ] Note: The Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 were published vide notification No. IBBI/2016-17/GN/REG005 dated 15th December, 2016 in the Gazette of India, Extraordinary, Part III, Section 4, No. 460 on 15th December, 2016 and were subsequently amended by (1) The Insolvency and Bankruptcy Board of India (Liquidation Process) (Amendment) Regulations, 2018 published vide notification No. IBBI/2017-18/GN/REG028, dated 27th March, 2018 in the Gazette of India, Extraordinary, Part III, Section 4, No. 122 on 28th March, 2018; and (2) The Insolvency and Bankruptcy Board of India (Liquidation Process) (Second Amendment) Regulations, 2018 published vide notification No. IBBI/2018-19/GN/REG037, dated 22nd October, 2018 in the Gazette of India, Extraordinary, Part III, Section 4, No. 393 on 22nd October, 2018.