Homebuyers, MSMEs may Get IBC Relief

Homebuyers, MSMEs may Get IBC Relief

Govt plans ordinance to ease disqualifications under Section 29A, clarify definition of a related party

The government could soon promulgate an ordinance to make changes to the Insolvency and Bankruptcy Code that will provide relief to small businesses and homebuyers, relax disqualifications under Section 29A and clarify the definition of a related party.

The changes are based on the recommendations of a high-level law committee chaired by Injeti Srinivas, secretary in the ministry of corporate affairs.The Union Cabinet could consider the ordinance as early as Wednesday, according to a senior government official.

The decree will empower the central government to modify or exempt medium and small enterprises (MSMEs) from various provisions of the code including Section 29A, which bars those with non-performing loans from bidding under the resolution process.

Barring wilful defaulters, Section 29A will not be applicable to resolution applicants wanting to bid for MSMEs. This will mean that owners of MSMEs can bid for their own companies in the resolution process. This is being done after it was found that there were very few bidders for MSMEs and often promoters were the only ones interested.

Homebuyers as Financial Creditors

The ordinance will also put homebuyers in the category of financial creditors as the amounts raised from them under a real estate project would count as commercial borrowings.

The ordinance will narrow the scope of disqualifications under 29A by making way for a carve-out for pure-play financial entities from being disqualified because of a non-performing asset (NPA).

As part of restructuring the disqualification criteria, exemption will be made for resolution applicants holding an NPA account due to acquisition of a corporate debtor under the code for three years from the date of approval of the resolution plan by the National Company Law Tribunal.

Also, where disqualification is personal in nature, it will not result in exclusion of related parties.A definition for related parties of individuals, which has so far not been covered in the code, will be added. Financial creditors that become related parties because of conversion of their debt into equity will not be considered as such under the law and will not suffer disqualification.

The ordinance, according to officials, will set various voting thresholds – 90% of creditors for withdrawal of applications post-admission, 66% for important decisions such as approval of resolution plans and allowing liquidation and 51% for approval of routine matters.

It will clarify that guarantors of a corporate debtor are ineligible if the guarantee has been invoked by the creditor and remains unpaid in full or in part. Besides, moratorium will not apply to the surety of guarantors to the corporate debtor.

The ordinance is likely to allow people to file resolution applications on behalf of the financial creditors as their guardians or the administrators or executors of their estates or their debenture trustees.Representatives will be allowed to appear and vote on behalf of certain classes of creditors – exceeding a number to be specified later – at meetings of committees of creditors. This could help homebuyers in particular.

The Economic Times, New Delhi, 24th April 2018

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