"The term 'default' under SARFAESI Act and the Insolvency and Bankruptcy Code, 2016 are different and based on purpose of the Acts." Examine the statement by analyzing the definition under the both Acts.
CS Professional · Corporate Restructuring, Insolvency, Liquidation & Winding-up · PYQS · December 2023
"The term 'default' under SARFAESI Act and the Insolvency and Bankruptcy Code, 2016 are different and based on purpose of the Acts." Examine the statement by analyzing the definition under the both Acts.
Answer & Explanation:
As per section 3(12) of Insolvency and Bankruptcy Code, 2016 the term "default" means non-payment of debt when whole or any part or instalment of the amount of debt has become due and payable and is not repaid by the debtor or the corporate debtor, as the case may be. Further, SARFAESI Act defines term "default" as non-payment of any debt or any other amount payable by the borrower to any secured creditor consequent upon which the account of such borrower is classified as non-performing asset in the books of account of the secured creditor; or non-payment of any debt or any other amount payable by the borrower with respect to debt securities after notice of ninety days demanding payment of dues served upon such borrower by the debenture trustee or any other authority in whose favour security interest is created for the benefit of holders of such debt securities. The SARFAESI Act, 2002 has empowered the Banks and Financial Institutions with vast power to enforce the securities charged to them and the purpose of this Act is to enable and empower the secured creditors to take possession of their securities and to deal with them without the intervention of the court. One of the objectives of SARFAESI Act is to provide a mechanism for banks and other financial institutions to recover secured assets. On the other hand, the purpose of Insolvency & Bankruptcy Code, 2016 is to offer a market-directed, time-bound mechanism to resolve insolvency and run the corporate debtor as a going concern, wherever possible, or exit, where required. The IBC deals with the reorganization and insolvency resolution of corporate debtors (CDs), partnership firms, and even individuals. The IBC also provides an exit mechanism for a corporate person that has not defaulted, through a voluntary liquidation process. The statement given in the question is correct as the objectives of both Acts are different and term 'default' is required to be read with the purpose of both Acts in relevant context.
Topics: SARFAESI Act & IBC
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