[By Ishita Chandra]
The author is a student of Dr. B.R. Ambedkar National Law University, Sonepat.
INTRODUCTION
The liquidation of a corporation denotes the cessation of its activities, business endeavours, or existence upon its incapacity to settle its debts or obligations, owed to its creditors. Section 230 of the Companies Act empowers the liquidator, in the event of a company undergoing liquidation under the Insolvency and Bankruptcy Code 2016 (IBC), to propose a Scheme of Compromise and Arrangement. Such a scheme enables companies to reorganize their operations through mergers, demergers, acquisitions, or other forms of restructuring. This may include reorganizing the company’s share capital by consolidating shares of different classes or dividing shares into distinct classes. Nevertheless, this article endeavours to explain why, in a liquidation proceeding under IBC, a Scheme for Compromise and Arrangement should not be permitted particularly while dealing with a company that is entirely unviable and the operations of which are economically unfeasible.
INSOLVENCY PROCEEDING – A CONSCIOUS STEP THAT IS UNDERGONE AFTER CONSIDERING THE SCOPE OF COMPROMISE AND ARRANGEMENT
When a corporate debtor defaults on its debts, a legal process called the Corporate Insolvency Resolution Process (CIRP) gets initiated under IBC, with the objective of addressing the insolvency of corporate entities. It becomes imperative to note that the CIRP gives adequate time for resolution of insolvency. Statutorily, the CIRP should be completed within a period of 180 days from the date of admission of the application seeking to initiate CIRP proceedings. An additional one-time extension of 90 days may be provided by the Adjudicating Authority. The resolution process, including the time taken in legal proceedings, must be completed within a total of 330 days, failing which, liquidation proceedings will be initiated against the corporate debtor as per Section 33 of the Code. The aforementioned provisions uphold the spirit of the IBC expressed through its Preamble which aims to maximize the value of assets, in a time-bound manner. The time allowed by the IBC to conclude the resolution process is more than sufficient to arrive at a viable resolution plan to save a viable company from corporate death. Thus, a Scheme of Compromise and Arrangement essentially leads us to understand that a mere extension provided for the proposal of a scheme of compromise and arrangement adds no value to the resolution process of an unviable business and merely prolongs it incessantly.
Generally, parties resort to insolvency proceedings under the IBC only after exhausting all other potential avenues for resolving disputes between debtors and creditors, leaving no further options for resolution. Hence, it is evident that both the debtor and creditors must have previously considered the possibility of a Scheme of Compromise and Arrangement before resorting to the IBC. Consequently, the initiation of CIRP should be regarded as a deliberate and well-considered action. However, permitting a compromise scheme during the liquidation process of an unviable company undermines the gravity of such a decision.
PROLONGED LITIGATION – A CHALLENGE FOR UNVIABLE BUSINESSES
Allowing schemes of arrangement during liquidation proceedings, allows for a never-ending cycle towards resolving an entity as such schemes are time consuming processes, whereas the focus of the Code is to create time-bound processes. For proposing a Scheme of Compromise and Arrangement, Section 230 mandates convening gatherings of both creditors and members, further outlining a comprehensive voting procedure for endorsing a scheme that necessitates agreement from a majority representing three-fourths in value of said creditors, members, or a specific class among them. The convening of a creditors’ meeting as required by Section 230 of the Companies Act can be waived if creditors representing 90% in value provide their approval for the arrangement through affidavits. This underscores that a creditor who refuses to cooperate can disrupt the fair allocation of assets or hinder the adoption of a viable resolution that serves the company’s best interests. Creditors might choose to contest a settlement plan, leading to prolonged legal disputes that impede the ultimate timeline of a liquidation process, causing further setbacks in the form of erosion of the value of the assets. Thus, if the promoters and ex-management of an unviable business are allowed to present schemes in liquidation on the basis of Section 230 of the Companies Act, 2013, this would result in prolonged litigation under the Code.
Furthermore, an entity under the auspices of IBC gets multiple chances of proving its viability. A viable business should ultimately find success through CIRP proceedings. Therefore, pressing for an additional chance through a “scheme” might indeed prove to be ineffective in case a company is completely unviable.
A major obstacle to business restructuring can arise from a system that practically prevents the efficient dissolution of a viable entity. Placing excessive focus on revival while disregarding the reality that, in certain instances, liquidation is the optimal approach for value maximization, could potentially result in the erosion of the value of the assets. Schemes of compromise or arrangement may not always be feasible, or economically viable once a decision to liquidate the corporate debtor has already been made, following the failure of the CIRP. Further, repeatedly attempting revival, through schemes of arrangement or otherwise, even where the business is not economically viable is likely to result in value-destructive delays, and was identified as a key reason for the failure of the regime under the SICA (Sick Industrial Companies Act, 1985), by the BLRC in its Interim Report.
HOW OVER-EMPHASIS ON REVIVAL MAY LEAD TO VALUE EROSION
It is crucial to recognize that the value of assets and the duration of insolvency resolution are inversely related. As the delay in insolvency resolution persists, it becomes increasingly probable that the liquidation value will decline over time, given that several assets (especially tangible assets like machinery) suffer from substantial economic depreciation overt ime. Therefore, in cases where companies are entirely unviable and economically unsustainable, excessive emphasis on revival through a Compromise and Arrangement Scheme (which would lead to further delay of approximately 3 months) could lead to unnecessary erosion of value due to prolonged delays.
When a company faces delays in liquidation, the value of its assets can erode significantly. This asset erosion, due to depreciation, wear and tear of assets with time, etc, can reduce the book value of these assets and diminish both the perceived and book value of a business. Intangible assets, such as patents or trademarks, also experience erosion, particularly as their expiration dates approach. In today’s fast-paced world, technological advancements accelerate the value erosion of many asset types. For instance, electronic devices like smartphones and computers rapidly lose value as newer models with enhanced features are introduced. This rapid obsolescence is especially prevalent in technology sectors where continuous innovation is the norm. Additionally, factors like poor maintenance practices and exposure to harsh environmental conditions can further accelerate the erosion of tangible assets’ value. Thus, achieving a high recovery rate is primarily about identifying and combating the sources of delay.
The Preamble of the IBC states that it is a legislation designed to consolidate and revise the regulations concerning the restructuring and resolution of corporate entities in a time-bound manner with the goal of optimizing the value of their assets. Even the liquidation process is sought to be completed within a year, to prevent value destruction and increase recovery for creditors of such companies. In Arcelormittal India Private Limited Vs. Satish Kumar Gupta & Ors., it was highlighted that the pre-IBC systems were not only inadequate and ineffective, but they also led to unjustified delays in the resolution process. Consequently, a key purpose of the Code is to tackle these challenges within defined time constraints. Thus, it becomes necessary that unviable and uneconomical businesses that fail CIRP, must go through a time-bound liquidation to prevent unnecessary value erosion of its assets.
CONCLUSION
The implementation of the IBC marked a vital milestone in India’s journey towards becoming a more developed market economy. The IBC was established with the purpose of offering a structure for effectively addressing debtor insolvency, enhancing the value of assets available to the creditors, and facilitating the shutdown of nonviable enterprises. However, if any reference is made to Section 230 of the Companies Act 2013 for providing a scheme of compromise during liquidation proceedings under IBC, then the entire raison d’etre for providing a specialized code that eases the closure of unviable businesses, gets defeated. This proposed scheme, in the interest of justice, does not hold any substance as it was proposed as an afterthought to delay the liquidation proceedings which poses grave consequences to the Corporate Debtor, the creditors, and the stakeholders. Therefore, Section 230 comes with a warning that asks for cautious usage.