Insolvency and Bankruptcy Code, 2016 (the Code) primarily focus on resolution of the corporate debtor but where the resolution plan fails as the Committee of Creditors (CoC) do not approve the resolution plan and no othe

CS Professional · Insolvency - Law and Practice · PYQS · December 2022
Insolvency and Bankruptcy Code, 2016 (the Code) primarily focus on resolution of the corporate debtor but where the resolution plan fails as the Committee of Creditors (CoC) do not approve the resolution plan and no other way can be adopted then the ultimate resort is the liquidation and dissolution of the corporate debtor. However, even in the case of liquidation of corporate debtor as held by the Supreme Court the liquidator can sale the business of the corporate debtor as a 'going concern'. The liquidation process under chapter - III of Part - II of the Code is being regulated by the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 and the order of liquidation is also being passed by the Adjudicating Authority (AA). A resolution professional is being appointed by AA to act as liquidator. However, occasions may arise where the appointed liquidator can be threatened and may not be allowed to enter the premises of corporate debtor to carry out his functions or the appointment of the liquidator is challenged by CoC after the order of liquidation is passed by the AA. Despite the order of liquidation the entire assets of the corporate debtor do not constitute liquidation estate assets. Consider the above facts and answer the following questions: Despite the liquidation estate comprising assets held by the corporate debtor, certain assets have to be excluded from the liquidation estate assets. Specify all such assets.

Answer & Explanation:

The liquidation estate shall comprise of all liquidation assets of the corporate debtor forming part of liquidation estate. However, certain assets as specified in section 36(4) of Insolvency and Bankruptcy Code, 2016 shall not be the forming part or to be included in the liquidation estate assets. Such assets are: assets owned by a third party which are in possession of the corporate debtor, including: assets held in trust for any third party; bailment contracts all sums due to any workmen or employees from the provident fund, the pension fund and the gratuity fund; other contractual arrangements which do not stipulate transfer of title but only use of the assets; and such other assets as may be notified by the Central Government in consultation with any financial sector regulator; assets in security collateral held by financial services providers and are subject to netting and set-off in multi-lateral trading or clearing transactions; personal assets of any shareholder or partner of a corporate debtor as the case may be provided such assets are not held on account of avoidance transactions that may be avoided under this Chapter; assets of any Indian or foreign subsidiary of the corporate debtor, or any other assets as may be specified by the Board, including assets which could be subject to set-off on account of mutual dealings between the corporate debtor and any creditor.

Topics: Liquidation Process

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