Examine under the provision of the Insolvency and Bankruptcy Code, 2016 and the decided case law(s) about the correctness of the following statement : "Resolution Plan under Corporate Insolvency Resolution Process genera
CS Professional · Insolvency - Law and Practice · PYQS · December 2022
Examine under the provision of the Insolvency and Bankruptcy Code, 2016 and the decided case law(s) about the correctness of the following statement : "Resolution Plan under Corporate Insolvency Resolution Process generally aims that the corporate debtor should be liquidated whereas the resolution plan should comply with certain principles other than that of liquidation". State all principles other than that of liquidation which a resolution plan should have complied with.
Answer & Explanation:
A resolution process under the provision of the Insolvency and Bankruptcy Code, 2016 (the Code) against a corporate debtor is not a liquidation process as the Code does not allow for liquidation of a corporate debtor directly but permits the liquidation only on failure of the resolution process. Further, the preamble of the Code also doesn't mention that the objective of the Code is liquidation. Therefore, the given statement is not a correct statement. The National Company Law Appellate Tribunal (NCLAT), in the matter of Binani Industries Limited vs. Bank of Baroda while approving the revised resolution plan submitted by Ultratech Cement Limited laid down certain principles that a resolution plan should comply with inter alia are:- Functionally, the resolution plan shall resolve insolvency, maximize the value of the asset of corporate debtor, and promote entrepreneurship, availability of credit, and balance the interest of all the stakeholder, the resolution plan is not a sale, or auction, or recovery or liquidation but a resolution of the corporate debtor as a going concern. A resolution process under IBC is not an auction. Feasibility and viability of a 'Resolution Plan' are not amenable to bidding or auction; it requires application of mind by the 'Financial Creditors' who understand the business well. A resolution process under IBC is not recovery. Recovery is an individual effort by a creditor to recover its dues through a process that has debtor and creditor on opposite sides. The IB Code prohibits and discourages recovery. A resolution process is not a liquidation process. The IBC does not allow liquidation of a corporate debtor directly and permits liquidation only on failure of the resolution process. The IBC aims to balance the interest of all stakeholders and does not maximize value for financial creditors. Therefore, the dues of operational creditors must get at least similar treatment as compared to the dues of financial creditors.
Topics: Resolution Plan
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