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 The Evolution of Corporate ICRA BULLETIN

Mon ey
Bankruptcy Law in India &
Fin a n ce
1
NIMRIT KANG AND NITIN NAYAR OCT. 0 3 – M A R . 0 4

Abstract
The Indian post-independence industrial policies, such as import
substitution, industrial licensing, and limited private ownership, fostered a
breed of inefficient and uncompetitive companies. Deregulation, foreign
competition and financial reform led many financially unviable firms to
consider exit or restructuring options. H owever, the existing legal, political
and social system did not provide the appropriate framework for efficient and In so far as the
equitable resolution of insolvency cases, thus dramatically slowing the pace of
the much needed industrial restructuring. This paper shows that there is no objective of a well
single comprehensive and integrated policy on corporate bankruptcy in India
comparable with the bankruptcy code in the US. Instead, there are a number functioning
of legislative acts and special provisions, which provide procedural guidance
on the liquidation or reorganisation process and there is an involvement of bankruptcy system
different agencies, having overlapping jurisdiction, which creates systemic
delays and complexities in the process. In so far as the objective of a well
is to promote
functioning bankruptcy system is to promote economic efficiency by
economic efficiency
maximising the total value of assets, the Indian system fails, as under this
system, liquidation or reorganisation is extremely time and resource costly; the by maximising the
system does not encourage optimal valuation outcomes; and creates incentives
for managers or stockholders to take actions that generate private benefits at total value of assets,
the expense of firm value. The paper evaluates the existing corporate bank-
ruptcy system; and the incentives and biases it has created, given the Indian the Indian system
socio-political context and economic goals. It assesses the new Companies
(Second Amendment) Act, 2002, and the possibility of its success in streamlin- fails, as under this
ing and correcting the shortcomings of the existing process.
system, liquidation
The Protectionist Past
or reorganisation is
After its independence from British rule in 1947, India adopted
a socialistic and state dominated economic system and over the next extremely time and
four decades aggressively pursued a series of protectionist policies
designed to develop and promote the domestic industrial base. Policies resource costly.
such as import substitution, industrial licensing, limited private owner-
ship, and price fixing gave rise to a new breed of Indian companies that

1 The authors are recent graduates from H arvard Business School and

their respective email addresses are: nkang@mba2003.hbs.edu and

nnayar@mba2003.hbs.edu. 37
 ICRA BULLETIN were inefficient, uncompetitive and yet able to extract high rents. At the
same time, the nationalised banking sector was encouraged to provide
Mon ey
credit at highly subsidised interest rates to these Indian businesses, and
& because these banks were managed by bureaucrats who were incentivi-
Fin a n ce sed to grow the size of the loan portfolios, not much attention was paid
to recovery and monitoring of these loans. As such, the need for an effi-
OCT. 0 3 – M A R .. 0 4
cient and equitable bankruptcy system was much less pronounced and
the haphazard and cumbersome insolvency procedures inherited from
the British system seemed to do an adequate job for those rare occasions.

A Changing Context
India is paying a
A few shocks, such as the fiscal and balance-of-payment crisis
huge opportunity of 1991, triggered a move towards privatisation and rapid dismantling
of these protectionist policies through the 1990s. Deregulation and
cost for not being introduction of foreign competition coupled with financial reform have
exposed the vulnerabilities (financial and business) of the incumbent
able to redeploy this firms, forcing many of them to consider exit or restructuring options.
H owever, the current legal, political and social system have lagged
capital towards its behind in providing the appropriate forum or policy framework for
efficient and equitable resolution of insolvency cases, thus dramatically
ambitious goals for slowing the pace of a much needed industrial shakeout. Also, as much
of public sector and institutional credit is locked up in these poor
economic investments, India is paying a huge opportunity cost for not being able
to redeploy this capital towards its ambitious goals for economic
development; hence
development; hence a growing consensus for development of a robust
a growing bankruptcy system. As of M arch 2001, there were 3,317 financially
distressed large and medium sized firms with an unpaid debt of Rs. 258
consensus for billion (or US$5.4 billion at the 2001 exchange rate), roughly 2 per
cent of 2001 gross domestic product (GDP) or 10 per cent of the total
development of a outstanding industrial credit provided by banks in 2001. These “ sick”
loans have been growing faster than GDP at an annual rate of about 10
robust bankruptcy per cent over the last 10 years (M itra, 2001).
This paper will focus on (1) evaluation of the corporate bank-
system. ruptcy system that had existed until very recently (referred to as the exist-
ing system in this paper) until a new amendment was passed in January
2003, the incentives and systemic biases it has created, given the Indian
social and political context and the goals for economic development;
and (2) assessment of the suitability of the recently passed amendment
(new system) in correcting the shortcomings of the existing system.

The Existing Bankruptcy System

There is no single comprehensive and integrated policy on
corporate bankruptcy in India comparable with the Chapter 11 or
Chapter 7 bankruptcy code in the US. There are three major legislative
Acts and several special provisions, which provide procedural guidance
on the liquidation or reorganisation process. As a result, four different
38 agencies, the H igh Courts, the Company Law Board, the Board for
Industrial and Financial Reconstruction (BIFR), and the Debt Recovery ICRA BULLETIN

Tribunals (DRTs), have overlapping jurisdiction, which creates sys-

Mon ey
temic delays and complexities in the process. Key provisions are
summarised below, followed by an assessment and implications for the &
companies in financial distress. Fin a n ce
OCT. 0 3 – M A R . 0 4
Companies Act, 1956
A comprehensive legislation, modelled after the British Compa-
nies Law, confers a variety of powers on the federal (Union) government
(the Department of Companies Affairs via the Company Law Board)
and the judicial system (the H igh Courts) to monitor and regulate
An interesting
companies. Under this Act, liquidation of a company facing financial
distress can be accomplished via two modes: voluntary liquidation by feature of this
creditors or involuntary liquidation by court. In the first and the more
efficient case of voluntary liquidation, shareholders vote for liquidation provision is the
and hand over control of the liquidation process to secured creditors,
who then hire a private or an official liquidator to oversee the asset absence of an
sales and distribution of proceeds. In the second case, a creditor with a
minimal amount of Rs. 500 of unpaid and undisputed debt, after giving automatic stay in the
three weeks’ notice to the debtor, can petition the court for involuntary
liquidation, in which case, the court will determine the validity of the interim period
claim and the reasonableness of the petition before ordering liquida-
tion. H owever, the court’s actions are purely discretionary and “ the
between filing of the
court may refuse to hold the company insolvent on other considerations
petition and a ruling
including that of public interest” (M itra, 2001). During the time it takes
the courts to decide upon a case, the debtor remains in possession of the by the court, and
assets but once the winding-up has been ordered by the court, an
official liquidator (government employee) is appointed who then takes this interim period
charge of the entire process from claiming and selling assets, recover-
ing “ uncalled capital from contributories” 2 and paying off the is usually
company’s liabilities. In settling the claims, the highest priority is
accorded pari passu to secured creditors and workers’ dues, followed by characterised by a
preferential status of government and administrative claims (employee
severance pay and accrued insurance and pension benefits), with the frenzy of lawsuits by
residual going towards settling the claims of unsecured creditors and
all kinds of
equity holders. Fraudulent and preferential transfers that occur within
six months of the liquidation petition are treated as in the US Bank- claimants.
ruptcy code. An interesting feature of this provision is the absence of an
automatic stay in the interim period between filing of the petition and a
ruling by the court, and this interim period, which can last up to a
year, is usually characterised by a frenzy of lawsuits by all kinds of
claimants and in some cases sale of collateral in possession of creditors.
Restructuring under this Act is limited to either a merger &
acquisition strategy or a voluntary compromise arrangement between

2 Contributories are registered shareholders who have unpaid capital on

the face value of their shares. 39

 ICRA BULLETIN the company and the creditors if a change in the capital structure
(changing debt for equity or reducing equity) is warranted as part of the
Mon ey
compromise. The compromise arrangement can be proposed by any
& party (creditors, management, government, official liquidator) but has
Fin a n ce to be approved by creditors (majority in numbers and three-fourth in
value) and confirmed by the court, which has the power to supervise
OCT. 0 3 – M A R .. 0 4
the implementation of the compromise. There is no provision similar to
a “ cram-down,” which would make the compromise binding without
the approval of the requisite block of creditors. Also, the liquidation
and reorganisation petitions here are not necessarily sequential and
either proceeding can trigger the other at any time until an order for
Any action
liquidation is passed.
prescribed by the
Sick Industrial Companies (SIC) Act, 1985
BIFR can be This Act, constituting the closest alternative to a comprehen-
sive bankruptcy framework, established a quasi-judicial body, the
contested before the Board for Industrial and Financial Reconstruction (BIFR), to secure
timely detection of “ sick” industrial companies and to provide the
courts by the appropriate type of intervention. The process is applicable only for
industrial companies that have been registered for more than five years
management or the and have accumulated losses at the end of any year greater than their
net worth. 3 The Board of Directors of the company is required to file an
creditors, and often application with the BIFR within 60 days “ from the finalisation of the
audited accounts of the year in which the company has fallen sick”
the courts refer the
(M itra, 2001). O nce an application for intervention has been filed, the
case back to the BIFR has three alternatives. It can (1) approve a management/creditor
sponsored plan without concessional financing, (2) determine
BIFR for further unviability of the business and recommend liquidation to the court
(governed by Companies Act, 1956 discussed above) or (3) claim that
review causing an the firm must be rehabilitated in “ public interest” (currently registered
sick cases employ ~ 2.2 million workers 4 ) and approve a plan requir-
endless loop of ing major concessions and “ sacrifices” from the various parties includ-
ing subsidies from the government. In options 2 and 3, the BIFR
delays. appoints an operating agency (O A), usually the largest secured lender
(a bank or financial institution), to determine the viability of the
company and propose a turnaround plan. In this case, an automatic
stay against all claims, suits and legal proceedings against the “ sick
company” is granted as soon as the case is registered with the BIFR but
the debtor remains in possession of the assets. Any action prescribed by
the BIFR can be contested before the courts by the management or the
creditors, and often the courts refer the case back to the BIFR for further
review causing an endless loop of delays.

3 The SIC Act defines net worth as the sum of paid up capital and “ free

reserves” ; free reserves include all reserves from profits and share premium account

40 but not from revaluation of assets, depreciation write-offs or amalgamation.

4 BIFR published statistics.
 Recovery of Debts due to Banks and Financial ICRA BULLETIN

Institutions Act, 1993

Mon ey
An extremely controversial and frequently disputed legislation
enacted as part of the financial reforms in the early 1990s, this Act &
allows banks and financial institutions to pursue recovery of outstand- Fin a n ce
ing debts greater than Rs. 1 million by filing a petition before a Debt
OCT. 0 3 – M A R . 0 4
Recovery Tribunal (DRT). The DRT issues a recovery order (primarily
via liquidation of assets) after a relatively swift process of appraising
and validating the claim, which may override the other two regulations
in jurisdiction, preference and priority of claims. The rationale for this
conflicting legislation is that “ the civil courts are burdened with diverse
If the overarching
types of cases. Recovery of dues due to banks and financial institutions
is not given any priority by the civil courts. The banks and financial objective of a well
institutions like any other litigants have to go through a process of
pursuing the cases for recovery through civil courts for unduly long functioning
periods” (Justice Eradi Committee Report, 2000). Figure 1 below shows
a schematic summary of the various legal routes available to compa- bankruptcy system
nies under financial distress.
is to promote
FIGURE 1
Schematic of the Indian Bankruptcy Process economic efficiency

by maximising the
Company under Financial Distress

total value of assets,

Out of Government Sponsored then the Indian

Court
system is a
Companies Act Recovery due to
SIC Act
(High Court or Banks and FI miserable failure on
BIFR
Company Law Board) DRT

this score.
Voluntarily Liquidate
Reorganise Reorganise Recommend Liquidate
Liquidation

N otes: The bold lines indicates the actual process pursued in majority of the cases of
financial distress.

Implication of the Current System

If the overarching objective of a well functioning bankruptcy
system is to promote economic efficiency by maximising the total value
of assets, then the Indian system is a miserable failure on this score.
Judged by Gilson’s (Gilson, 1994) criteria for a robust bankruptcy
process, the Indian process systematically destroys value because
(1) liquidation or reorganisation is time consuming and very costly; 41
 ICRA BULLETIN (2) it does not ensure the optimal outcome by encouraging “ insolvent
firms to reorganise when their going-concern value exceeds their
Mon ey
liquidation value, while forcing them to liquidate when their liquida-
& tion value exceeds their going-concern value” and (3) it creates “ incen-
Fin a n ce tives for managers or stockholders to ‘game’ the system ex ante by
taking actions that generate private benefits at the expense of firm
OCT. 0 3 – M A R .. 0 4
value” (Gilson, 1994). H owever, critics often point out that in India this
goal of economic efficiency has to be balanced with the social policy of
protecting worker rights and providing employment. Unfortunately, the
current system falls short on the social criteria as well because these
arcane laws only serve to hinder economic development which is
Unfortunately, the
perhaps the single most important driver of public welfare in a develop-
current system falls ing country such as India.

short on the social Inefficient and Costly Process

Although data are not available to accurately estimate the
criteria as well costs involved in reorganising or liquidating a firm’s operation, we can
easily surmise the time value of money costs (erosion of ~ 50 per cent
because these of value) due to the time intensive nature of the process for reorganising
or liquidation under the SIC Act. Although the data in Table 1 are
arcane laws only based on total process time for decisions made in 2002, anecdotal
evidence suggests that these average times are representative of the
serve to hinder BIFR process and one of the prime reasons why the process is con-
demned as a failure by the creditors, companies and the government.
economic

development which TABLE 1

Average time to reach decision via BIFR process
is perhaps the (BIFR Decision in 2002—Year the Case registered)

R eorganisation L iquidation N o L onger R eorganisation

single most R ecom m ended D ism issed i
R ecom m ended Sick ii failed iii

7 years 1 year 6.5 years 8 years 11 years

important driver of
i
Cases where management had a false case (e.g. accounting manipulation, etc.).
ii
public welfare in a Companies whose net worth became positive after a reorganisation plan was
implemented.
iii
Cases that had been declared no longer sick but could not sustain the positive
developing country net worth.

such as India.
The commonly cited reasons for the delays include sheer
workload (~40 cases are reviewed each month), dilatory tactics used by
the management and workers such as litigating the BIFR decision and
not providing appropriate financial records, and lack of cooperation
from creditors when asked to make concessions.
The process of liquidation under the jurisdiction of the Compa-
nies Act, 1956, is also a cumbersome process riddled with endless loops
of procedural delays. O nce a recommendation for liquidation is made
by the appropriate agency, the process of disposing of assets and
42 settling claims is very lengthy because of the involvement of the
government and the judicial system. For example, the O fficial Liquida- ICRA BULLETIN

tor (O L) is responsible for the actual asset disposal procedure which

Mon ey
involves (1) inspection of assets, (2) validation of claims, (3) appoint-
ment of security agency, (4) valuation of assets, (5) fixing of reserve &
price, (6) advertisement of tenders, and (7) bidding process. Interest- Fin a n ce
ingly enough, these O Ls are government employees who may not have
OCT. 0 3 – M A R . 0 4
the appropriate legal, accounting or business acumen required during
the liquidation process. Also, the O L has to keep going back and forth
to the court at several points in this process to force compliance by the
company’s debtors, management and contributories, and settle the suits
filed by or against the company by various parties to this process. In
Although the BIFR
addition to the lengthy process, the O L staff does not have the capacity
or the technological infrastructure to support the volume of liquidation has the authority to
cases. “ In a typical case, the winding up procedure takes between 3-10
years. Delay has twin effects: cost of liquidation process (security and propose a wide
administrative charges) goes up; and realisable value of the assets
drops, often to absurd levels. Very often, there are security lapses and range of remedial
pilferage of fixed assets” (M itra, 2001). Another complicating element
is the overlapping jurisdiction of the various labour and land regula- reorganisation
tions, which impose rigid restrictions on redeployment of human and
land capital. For example, according to certain sections of the Indus- plans, the SIC Act’s
trial Disputes Act of 1947, a factory establishment employing 100 or
more workmen needs to obtain prior permission of the appropriate
sickness definition
government (generally State Government for private enterprises) for
and its
closure, layoffs or retrenchment which in most cases is turned down.
The employer then has to pursue the lengthy route of appeals to the corresponding
H igh Court and Tribunals and “ typically closure through this route
takes anything between 3-15 years, during which substantial erosion of selectivity bias
the value of assets takes place” (Wadia, 2000). “ The problems of
liquidating firms in India steer banks and financial institutions towards towards the worst
sub-optimal decisions. The ability to liquidate totally unviable Indian
firms rapidly has often compelled creditors to support going-concern possible cases
restructuring when they should have cut their losses and forced these
companies to wind-up” (Goswami, 1996). Table 2 shows that it takes explain the high
more than 5-10 years for most companies to navigate the Indian
proportion of
liquidation process when conducted by the official liquidators, implying
huge costs involved in the liquidation process. liquidation

recommendations
TABLE 2
Years taken in the OL liquidation process for companies (3/ 12/ 1999) made by the BIFR.
Years 0-5 5-10 10-15 15-20 20-25 >25 Total
Active Cases 1065 603 482 321 251 473 3195
% of Total 33% 19% 15% 10% 8% 15%

Source: Justice Eradi Committee Report, 2000.

43
 ICRA BULLETIN Bias against Restructuring & Liquidation
The definition of sickness proposed by the Sick Industrial
Mon ey
Companies Act (1993) prevents any intervention by the BIFR until the
& accumulated losses have completely wiped out equity and reserves,
Fin a n ce which is simply too late for any meaningful rehabilitation of the
company’s financial condition. In the words of a previous chairman of
OCT. 0 3 – M A R .. 0 4
the BIFR, “ We find typically that in a sick unit…the entire net worth has
been eroded, the working capital has all but disappeared, there are no
stocks, and the unit is characterised by very low levels of capacity
utilisation…. For all practical purposes, the sorts of cases that come
before BIFR are almost mortuary cases” (M itra, 2001). The absurdity
An intrinsic bias
of the definition of sickness is evident in the data reported by the BIFR
among the at the end of 2002: for 4,318 registered cases, cumulative net worth
was Rs. 468 billion and the accumulated losses were almost twice the
management and net worth at Rs. 891 billion. H ence, although the BIFR has the author-
ity to propose a wide range of remedial reorganisation plans, the SIC
creditors to file for Act’s sickness definition and its corresponding selectivity bias towards
the worst possible cases explain the high proportion of liquidation
restructuring rather recommendations made by the BIFR (of 1,711 active cases at end of
2002, 63 per cent were recommended for liquidation, 22 per cent were
than outright reorganised successfully, 5 15 per cent were still under rehabilitation 6 ).
If we think of the Companies Act as analogous to Chapter 7
liquidation might be and the SIC Act to Chapter 11, then the numbers in Table 3 imply that
an overwhelming number of firms chose to file for restructuring even if
due to the social
it may not have been a viable option, since a majority of these cases
pressure to preserve ended up being recommended for liquidation eventually. Thus volun-
tary liquidation (Chapter 7) is a rare occurrence in the Indian land-
jobs, which tends to scape. H ence, the system has created an interesting mismatch whereby
the right policy prescriptions are available to the wrong candidates and
be driven by the vice versa, causing widespread scepticism and disappointment on the
part of all involved. An intrinsic bias among the management and
elevated status of creditors to file for restructuring rather than outright liquidation might
be due to the social pressure to preserve jobs, which tends to be driven
the local businesses by the elevated status of the local businesses as social benefactors
within their communities.
as social
O ther barriers to restructuring include the land and labour
benefactors. regulations mentioned above which make it much harder to consoli-
date, merge and redeploy labour and physical assets. For example, “ a
sick firm like the N ational Textile Corporation sits on land potentially
worth hundreds of crores, 7 but it is an encumbered asset since state
governments would not give permission to sell that land” (Kapur and
Ramamurti, 2002).

5 N et worth became positive at some point after the reorganisation plan

was implemented.
6 Reorganisation plan has been implemented but net worth is still negative

44 7 1 crore = 10 million.
 ICRA BULLETIN
TABLE 3
Annual Outcomes via Legislative Process
Mon ey
Com panies A ct, 1956 SIC A ct data from BIFR w ebsite &
Voluntary L iquidations R eorganisation L iquidation D ism issed i Fin a n ce
L iquidations under Court R ecom m ended R ecom m ended
O rder OCT. 0 3 – M A R . 0 4

1996 13 39 29 85 25
1997 14 42 13 85 22
1988 19 81 13 50 36
1999 35 102 13 65 70
2000 34 52 10 153 158 For sick companies,
i Cases where management had a false case (i.e. accounting manipula-
tion, etc.). since liquidation
Source: Department of Company Affairs A nnual R eport, 2001.
will wipe out equity,
The 2002 Securitisation Bill (a descendant of the Financial the debtor-in-
Recovery due to Banks and Financial Institutions Act) has further comp-
licated the process, by allowing banks and financial institutions to seize possession and
assets if a borrower defaults on a repayment and fails to respond within
60 days of a notice issued by the creditors. A Supreme Court ruling automatic stay
establishes that when statutes conflict with each other, such as the 2002
Securitisation Bill and the 1985 SIC Act, the more recent statute
further create
overrides the older one.8 This would imply that secured creditors could
incentives for the
seize assets of sick companies, violating the automatic stay provided by
the 1985 SIC Act. The 2002 Securitisation Bill is still being challenged promoters to delay
in courts, 9 but there have been numerous cases of a mad rush among
creditors to take control of the assets although an interim injunction the process and
prevents them from disposing of the assets. This represents an appalling
example of the system’s bias towards sub-optimal outcomes. siphon off value in

Perverse Incentives the interim.

In the case of a liquidation petition, during the time it takes the
court to review the petition and recommend liquidation, the assets
remain under the control of the management which is frequently
accused of fraudulent and illegal transfers during this interim period
because there is really no effective monitoring mechanism by the
creditors despite the absence of an automatic stay to prevent asset
stripping other than the threat of ex-post litigation, which in the Indian
context has been pretty weak so far. This phenomenon is partly to
blame for the delays that official liquidators experience in trying to
regain control of all assets and reconciling financial statements. For

8 View taken by the Supr eme Court in A llahabad Bank v. Canara Bank .

Interview with Gunjan Shah, Lawyer, Amarchand M angaldas, a N ew Delhi law firm.
9 In M ardiya Chem icals v. ICICI and others. Interview with Ashish Rana,

Third Year Law Student, Amity Law School, N ew Delhi. 45

 ICRA BULLETIN sick companies, since liquidation will wipe out equity (with accumu-
lated losses exceeding net worth), the debtor-in-possession and auto-
Mon ey
matic stay further create incentives for the promoters10 to delay the
& process and siphon off value in the interim. From this perspective, it is
Fin a n ce not surprising that on an average the accumulated losses for companies
filing for protection under SIC Act are twice the net worth indicating
OCT. 0 3 – M A R .. 0 4
that the management waits too long to seek any viable restructuring
based solutions. Banks and financial institutions allege that “ companies
are increasingly resorting to the protection afforded by BIFR to escape
the loan discipline” or that management “ has forced the companies into
sickness, just to obtain bank concessions…” . 11 In fact, 20 per cent of the
Given the noisy and
total cases brought before the BIFR are dismissed due to evidence of
the fractured nature financial statement manipulation or other wrong doing by the manage-
ment (Justice Eradi Committee Report, 2000), which supports the
of the Indian perception of SIC Act as a safe haven for the promoters. Current laws
disallow creditors from initiating recovery proceedings, and as a result,
democracy, any “ creditor rights were weakened while unprincipled managements
enjoyed the flexibility to mismanage companies and divert resources”
change in the (Ahluwalia, 2002). This contrasts with the US Code, which allows
either the creditor or the debtor to initiate the bankruptcy proceedings.
bankruptcy system For the workers, fear of liquidation and loss of jobs creates incentives
to bind with the promoters and misuse the veto power to block any
has to be balanced reorganisation plan.
Additionally, in situations where the BIFR forces concessions,
with the interests of
such as subsidies from the government, the marginal costs of these
the various political poorly performing companies are distorted vis-à-vis their healthy
competitors, thereby introducing excess capacity in the short term.
factions, and is Examples of government-sponsored bailouts include waivers of electric-
ity duty, power consumption tariffs, and sales taxes for a period of five
therefore by years (as has been proposed in the recent case of Dunlop, a tyre manu-
facturer). 12 The perception within the Indian media is that these bail-
contextual definition outs have allegedly enriched both management and public officials at
the expense of creditors.
“ gradual” . It is not surprising that the Indian bankruptcy system had been
widely criticised by developmental agencies such as the International
M onetary Fund (IM F) and the Asian Development Bank (ADB), as well
as the Indian intelligentsia. N umerous reports have been published by
various task forces and special committees appointed by the govern-
ment to propose reforms to correct the value destruction biases of the
current system. H owever, given the noisy and the fractured nature of

10 The inside shareholder or the entrepreneur who holds a controlling

interest and is actively involved in management of the company.
11 In M ardiya Chem icals v. ICICI and others, p. 30. Interview with Ashish

Rana, Third Year Law Student, Amity Law School, N ew Delhi.

12 “ Dunlop creditors back its draft rehab scheme,” Econom ic T im es, M arch

46 29, 2003, available from ISI Emerging markets, http://www.securities.com.

the Indian democracy, any change in the bankruptcy system has to be ICRA BULLETIN

balanced with the interests of the various political factions, and is

Mon ey
therefore by contextual definition “ gradual” because of its attempts to
minimise or delay social costs. It was not until 2002 that the country’s &
legal framework for addressing corporate bankruptcies was amended in Fin a n ce
any significant way.
OCT. 0 3 – M A R . 0 4

The Companies (Second Amendment) Act, 2002

Recognising that India’s arcane bankruptcy laws could hinder
the country’s long-term economic growth, Parliament passed the
Companies (Second Amendment) Act, 2002 (the 2002 Act), which
received Presidential assent in January 2003.13 The Act amended
certain provisions in the 1956 Companies Act and repealed the 1985
Sick Industrial Companies Act outright. The 2002 Act sought to achieve
the following goals:
• Remodel India’s insolvency laws so that they are in line with
international standards;14
• Expedite the rehabilitation or liquidation process to within a
time frame of two years;
• Protect the interest of workers affected by the restructuring or
liquidation process (Gupta, 2001)
The Act followed the recommendations of Justice V.
Balakrishna Eradi, a Retired Justice of the Supreme Court of India, who
was instructed by the Government to form a committee “ which con-
sisted of experts in several fields to examine the law relating to insol-
vency and winding up of companies” (Gupta, 2001).
The 2002 Act addresses the shortcomings of the bankruptcy
system identified by the Eradi Committee by repealing the 1985 SIC Act
and amending the 1956 Companies Act by including the following
provisions:
• A N ew Definition of “Sickness”: A new definition of “ sickness”
will result in early identification of distressed companies
allowing for quick, efficient restructuring or liquidation.
• Establishment of a N ational Company Law Tribunal: This
Tribunal will handle all cases pertaining to corporate matters
previously heard by the BIFR and the Company Law Board,
both of which will be abolished, and the H igh Courts, which
will then be free to focus on civil cases.
• Time-bound restructuring or liquidation guidelines: These

13 “ India’s Competition & Companies Bill Receives Presidential Assent,”

A sia Pulse, January 20, 2003, available on Lexis N exis Academic, http://www.lexis-
nexis.com.
14 “ Companies (Amendment) Bill 2001,” US India Business Council

Information Sheet. 47
 ICRA BULLETIN guidelines will limit the restructuring or liquidation process to
about two years. The Tribunal would institute monitoring
Mon ey
mechanisms throughout the restructuring process to prevent
& management from engaging in rent-seeking behaviour.
Fin a n ce • Introduction of a Rehabilitation and Revival Fund: A tax will
be levied on revenues of all Indian companies to build a Fund
OCT. 0 3 – M A R .. 0 4
that will compensate displaced workers of sick companies. This
fund would enable the Tribunal to restructure or liquidate
distressed companies without penalising labour.

Redefining “Sickness”
The definition of
The definition of “ Sickness” in the 1985 SIC Act had been
“ Sickness” in the considered restrictive by the Eradi Committee, in that by the time a
company had accumulated losses equal to or exceeding its entire net
1985 SIC Act had worth, chances of recovery were remote. The requirement that firms
must be registered for at least five years further limited the scope of
been considered companies covered by the Act. Given that the 1985 SIC Act was the
only means by which a firm could restructure under the aegis of the
restrictive by the courts, such a restrictive definition ensured few companies would
actually be restructured. The 2002 Act redefines a “ Sick Company” as
Eradi Committee, in one:

that by the time a (a) which has accumulated losses in any financial year equal to 50
per cent or more of its average net worth during four years
company had immediately preceding the financial year in question, or
(b) which has failed to repay its debts within any three consecutive
accumulated losses quarters on demand for repayment by its creditors (Gupta, 2001).

equal to or The 2002 Act also lifts the five-year registration restriction on
industrial companies (Rana, 2003).
exceeding its entire
Establishment of a National Company Law Tribunal
net worth, chances The 2002 Act establishes the N ational Company Law Tribunal
(the Tribunal) to consolidate the powers and jurisdictions of the Com-
of recovery were pany Law Board (CLB), the BIFR, and various offices of the H igh
Courts that deal with affairs surrounding company insolvency. The
remote.
BIFR and the CLB now cease to exist. “ The multiplicity of litigations
before various bodies for revival or rehabilitation or merger or amal-
gamation or winding up of companies will be avoided and the Tribunal
will hear and decide these matters” (Rana, 2003). The Tribunal, like its
predecessor bodies, adjudicates on plans offered by creditors and
management, or proposes a plan itself (unlike Chapter 11 of the US
Bankruptcy Code, where creditors and management negotiate and vote
on an appropriate plan that is sanctioned by the Court). The Tribunal is
headquartered in N ew Delhi and has 10 branches throughout the
country in the H igh Court offices. Appeals against the Tribunal are
heard by the Appellate Tribunal, and appeals contesting the Appellate
48 Tribunal judgements will be heard in the Supreme Court.
 The 2002 Act recommends that the Tribunal “ should be headed ICRA BULLETIN

by a sitting judge or a former judge of a H igh Court and each of its

Mon ey
benches should consist of a judicial member and a technical mem-
ber” .15 The Chairperson of the Appellate Tribunal “ shall be a person &
who is, or has been, a judge of the Supreme Court or Chief Justice of a Fin a n ce
H igh Court” .16 H owever, finding qualified members to sit on the
OCT. 0 3 – M A R . 0 4
Tribunal may be easier said than done: several positions in the CLB,
(the 1956 Act’s predecessor to the Tribunal), have been vacant for many
years (Datar, 2001).

Time-bound Restructuring or Liquidation Guidelines

The 2002 Act reduces the length of time taken to rehabilitate or
liquidate distressed companies from 10–15 years under the old bank-
ruptcy system to less than two years under the current system. See
Table 4 for steps in the rehabilitation process and the associated time
periods for each step as specified by the 2002 Act.
Finding qualified
Step 1 of the restructuring process involves a referral to the
Tribunal. The company can refer itself to the Tribunal within 180 days members to sit on
of coming to know “ of the relevant facts giving rise to causes of such
reference or within 60 days of final adoption of accounts, whichever is the Tribunal may be
earlier” (The Companies Act, 2002). The Tribunal assigns a panel of
auditors to certify that either of the two criteria determining the com- easier said than
pany is “ sick” has been met. State-owned enterprises can only be
referred to the Tribunal following the approval of the Central or State done: several
governments. With respect to private companies, the Tribunal can act
on referrals from managers, or petitions from creditors, or without positions in the CLB
provocation if it has reason to believe the company is distressed and
have been vacant for
needs to be restructured (The Companies Act, 2002, p. 18).
In Step 2 of the rehabilitation process the Tribunal appoints an many years.
O perating Agency to conduct an initial exploration of whether the
“ sick” company should be restructured and if so, how the restructuring
should take place. The Tribunal also appoints a Director to oversee the
day-to-day operations of the company and ensure that management
does not participate in rent-seeking behaviour. This Director submits an
initial report regarding the state of affairs in the company and is
conferred upon the rights and responsibilities of a director of the
company. The Tribunal must now decide in Step 3, given the informa-
tion from the O perating Agency report, the Director’s report, and other
information provided to it by management and creditors, whether the
company needs to be restructured, or whether it simply needs more time
to get its house in order.

15 “ Eradi panel proposals on insolvency law – Core Group to examine

changes in Companies Act,” Business L ine Internet Edition, September 3, 2000.

16 “ Companies (Amendment) Bill 2001,” December 6, 2001.
49
ICRA BULLETIN
TABLE 4
Proposed restructuring time period
Mon ey
& O rder of
Events
A ction R ecom m ended
T im e Period
Fin a n ce
1 The earlier of
OCT. 0 3 – M A R .. 0 4 (a ) Company comes to know of “ relevant facts” 6 months
that could provide cause for restructuring; and
(b) Accounting statements show Company should
be restructured;
O r,
Tribunal comes across information on its own, 2 months
perhaps through creditor petitions, that Company
should be restructured.
2 Tribunal appoints O perating Agency to conduct 1 month
initial enquiry. Agency submits report to Tribunal.
2 Tribunal appoints Director to Company Board to 2 months
(Simu lt a - safeguard interests of creditors and the public.
neously) Director submits “ state of affairs report” .
3 Tribunal decides whether Company should be 2 months
given more time to improve its health or whether
rehabilitation proceedings should be initiated.
4 O perating Agency and Creditors must submit their 2 months
restructuring schemes.
5 Tribunal must sanction a restructuring scheme. 2 months
It is free to make modifications of its own.
6a If Tribunal decides to restructure the Company, Varies
it may monitor the restructuring process periodi-
cally until restructuring is complete.
6b If Tribunal decides to liquidate the Company, 1 year
it must appoint an O fficial Liquidator to commence
liquidation proceedings.
7 Aggrieved parties may appeal to the Appellate 1.5 months
Tribunal after hearing Tribunal decision.
8 Appellate Tribunal must decide on case. 6 months
9 Aggrieved parties may appeal to Supreme Court 2 months
after hearing Appellate Tribunal decision.

Source: 2002 Companies (Second Amendment) Act.

If the Tribunal concludes that the company must be restruc-

tured (Step 4), it will direct an O perating Agency to prepare a restruc-
turing plan. The company may also submit a proposed rehabilitation
plan (when it initially applies to the Tribunal) and creditors may also
do so, provided their scheme has been approved by at least three-
fourths in value of the creditors. The Tribunal will review any or all
restructuring schemes (Step 5), and has the power to make whatever
modifications it deems necessary in the light of suggestions and objec-
tions it receives from what it deems to be relevant parties. The Tribunal
must decide whether a restructuring plan will be adopted (Step 6a) or a
liquidation plan will be adopted (Step 6b). The Tribunal’s chosen
50 restructuring or liquidation scheme is binding on the distressed com-
pany, its shareholders, creditors, and employees, and creditors or other ICRA BULLETIN

public or private financial institutions may have to “ provide for

Mon ey
financial assistance by way of loans, advances or guarantees or relief
or concessions or sacrifices” (The Companies Act, 2002, p. 23). &
The Tribunal can order liquidation at any time if it feels the Fin a n ce
company “ is not likely to become viable in the future and that it is just
OCT. 0 3 – M A R . 0 4
and equitable that [it] should be wound up” (The Companies Act, 2002,
p. 24). The Tribunal appoints an O fficial Liquidator, who must execute
the liquidation proceedings within one year of receiving the order from
the Tribunal. To accelerate the liquidation process, the O fficial Liqui-
dator is given broader powers to appoint accountants and secretaries to
The Rehabilitation
assist him in the performance of his duties. O fficial Liquidators will
also receive “ success fee based remuneration… payable on the and Revival Fund
realisation value of assets sold or debt recovered,” ensuring that “ only
serious professionals with high standards of achievement and quality will be utilised by
will come forward to undertake these activities” .17
the Tribunal to make
Rehabilitation and Revival Fund
According to the 2002 Companies Act, the interest of the interim payments on
workers affected by restructuring and liquidation must be protected.
The Central Government has thus decided to tax all companies a set workers’ wages,
percentage of around 0.1 per cent of revenues for the purpose of
creating a fund that relates to the restructuring of companies.18 This
protect the assets of
fund, entitled the Rehabilitation and Revival Fund (the RRF), will be
the sick company,
utilised by the Tribunal to make interim payments on workers’ wages,
protect the assets of the sick company, and whatever else the Tribunal and whatever else
sees fit in order to revive or rehabilitate the company.
the Tribunal sees fit
Implications of the 2002 Act
It is clear that the 1956 and 1985 Acts fail miserably when in order to revive or
judged against Gilson’s three criteria (Gilson, 1994) for understanding
the efficacy of bankruptcy systems in different countries. We can apply rehabilitate the
these litmus tests on the 2002 Companies Act to gauge whether the
amendments put forward by the Act bring India any closer to a bank- company.
ruptcy system that promotes economic efficiency. These criteria are as
follows:
(a) reorganisation or liquidation must be accomplished at mini-
mum cost;
(b) insolvent firms must reorganise when their going-concern value
exceeds their liquidation value, and liquidate when their
liquidation value exceeds their going-concern value;
(c) managers and stockholders must be dissuaded from “ gaming”

17 Federation of Andhra Pradesh Chambers of Commerce and Industry

(FAPCCI) Review, 2002, p. 10.

18 FAPCCI Review, 2002, p. 28.
51
 ICRA BULLETIN the system and taking actions that generate private benefits at
the expense of firm value (Gilson, 1994).
Mon ey
& Because the 2002 Act was approved only recently, we lack the
data necessary to accurately measure the impact of these reforms and can
Fin a n ce only speculate as to what improvements these amendments will engender.
OCT. 0 3 – M A R .. 0 4
Will Restructuring and Liquidation Proceedings Take Less Time?
O ne of the goals of the authors of the 2002 Act was to “ expe-
dite the rehabilitation or liquidation process to within a time frame of
two years, versus 10 to 15 years under the previous system.” Delay is
By streamlining the the enemy—it provides management with time to engage in perverse
activities, it depletes asset values, and it reduces the time-value of
work of various money that can be directed to more profitable projects. We can reason-
ably assume that the time taken to order the restructuring or liquidation
judicial bodies such of companies will be drastically reduced from 10–15 years for two
reasons: first, the mere existence of a timeline should serve to acceler-
as the Courts, the
ate proceedings; second, by streamlining the work of various judicial
CLB, and the BIFR bodies such as the Courts, the CLB, and the BIFR into one Tribunal, the
restructuring process should be less vulnerable to the innumerable
into one Tribunal, delays that plagued the previous system.
According to the timeframe in Table 4, the Tribunal must
the restructuring sanction a restructuring or liquidation plan to be implemented 12–14
months after the company is referred to the agency. The O fficial
process should be Liquidator has been given one year to complete the liquidation process,
and his powers have been broadened to equip him with greater decision
less vulnerable to rights, thereby removing the need to seek approval from the courts, a
common source of delay. This two-year period stands in marked
the innumerable contrast to the data in Table 2, which examines the fate of 3,195
companies that were referred to the O fficial Liquidator as per the 1956
delays that plagued
Companies Act and shows the median liquidation period to be 5–10
the previous system. years. H owever, the average time to restructure companies under the
2002 Act could be longer than two years, if one includes firms which
are liquidated following a failed restructuring process overseen by the
Tribunal.
The 12–14 month period the Tribunal expends to reach its
decision is still a welcome improvement over the BIFR, which took on
average seven years simply to conclude its inquiry and propose a
restructuring plan, according to Table 1. When it comes to executing a
restructuring plan, however, the Tribunal may face the same source of
delay as faced by the BIFR, viz., the 1947 Industrial Disputes Act,
which forces firms to seek government approval when laying off more
than 100 workers, though the minimum threshold has recently been
increased to 1,000 workers in the 2002-03 budget session. 19

19“ Cabinet okays amendment to Industrial Disputes Act,” rediff.com ,

52 February 22, 2002, available on http://www.rediff.com.
 It is widely agreed that the dualism inherent in the previous ICRA BULLETIN

bankruptcy regime, for example, between the H igh Courts and tribu-
Mon ey
nals such as the BIFR and the CLB, or between the 1956 Act and the
1985 Act, has been a source of considerable delay. The 2002 Act &
eliminates this dualism by transferring all cases managed by the Fin a n ce
Courts, the BIFR, and the CLB to the Tribunal. O ne benefit of removing
OCT. 0 3 – M A R . 0 4
this dualism is that once the Tribunal decides a company must be
liquidated, it need not refer the case to the H igh Court as the BIFR once
did. H owever, this streamlining could itself cause additional delays.
For example, although the Tribunal has 10 branches throughout the
country, there is only one Appellate Tribunal in N ew Delhi, in contrast
When it comes to
to the 10 Appellate Courts, each of which would handle appeals
relating to decisions made by the corresponding H igh Court (Datar, executing a
2001). The two judiciaries were often located in the some building. It
remains to be seen whether the Appellate Tribunal will be clogged with restructuring plan,
appeals relating to decisions made by the 10 Tribunals.
however, the
Will the Right Companies be Restructured and Liquidated?
An efficient bankruptcy system ensures that companies whose Tribunal may face
going-concern value is less than liquidation value are liquidated, while
those whose going-concern value is greater than liquidation value are the same source of
restructured. Under the bankruptcy system embodied in the 1956 and
1985 Acts, there existed some companies that should have been restruc-
delay as faced by
tured or liquidated, but would be permitted to continue as going
the BIFR, viz., the
concerns. A common example would be state-owned enterprises, which
would simply receive additional funding from the government, without 1947 Industrial
being restructured or liquidated when necessary.
Table 5, a variation of Gilson’s schematic framework for Disputes Act.
comparing alternative bankruptcy systems (Figure 10.1, Gilson, 1994),
illustrates potential outcomes of the previous bankruptcy system, given
that a firm should be restructured or liquidated. Each box lists possible
reasons why these sub-optimal outcomes might occur. Sub-optimal
outcomes (e.g., firm that should be restructured is allowed to continue
as a going concern because it does not meet the definition of “ sickness”
outlined by the BIFR) are shaded in grey. By tackling specific root
causes relating to sub-optimal outcomes, such as the government’s
inability to retrench workers, exemption of state enterprises, etc., the
2002 Act can limit the type of sub-optimal outcomes that might occur.
The 2002 Act has attempted to remedy the underlying issues
behind these sub-optimal outcomes. For example, “ sickness” has been
redefined to include non-payment of debt as a contributing factor,
thereby enabling creditors to force companies to restructure. Broader
powers have been conferred upon the O fficial Liquidator to accelerate
the liquidation process. The dualism inherent in the system as a result
of two legislations addressing the issue of corporate bankruptcy has
been removed; now one Act and one agency will handle all aspects of
the corporate bankruptcy process. A set restructuring timeframe has 53
 ICRA BULLETIN been introduced to reduce the time taken to 12–14 months for the
agency to decide on either a restructuring plan or a liquidation plan.
Mon ey
Creditors are now able to petition the Tribunal to initiate restructuring
& proceedings and submit plans while previously they could only restruc-
Fin a n ce ture out of court or force liquidation. M anagement fraud is addressed
by appointing Directors, auditors, and O As to oversee the restructuring
OCT. 0 3 – M A R .. 0 4
process.

TABLE 5
An analysis of which sub-optimal outcomes might occur under the previous
bankruptcy system. Each of the shaded boxes represents a sub-optimal outcome
The dualism
w hat should happen to the firm
inherent in the firm should be liquidated firm should be restructured
w h at firm • government unwilling to • definition of sick is too
system as a result of continues retrench workers narrow
as going • O fficial Liquidator powerless • government unwilling to
two legislations concern • conflicting labour or land retrench workers
• State enterprises exempt • conflicting labour and land
addressing the issue • State enterprises exempt
• Creditors unable to initiate
restructuring proceedings
of corporate
does restructure • government unwilling to • takes too long
retrench workers
bankruptcy has been • wrong agency handles case
• management fraud under
removed; now one BIFR umbrella
happen liquidate • takes too long • wrong agency handles case
Act and one agency • restructuring plan poorly
executed—firm
will handle all subsequently liquidated

aspects of the
The Central Government, with the introduction of the RRF,
corporate also hopes to mitigate the apprehension that restructuring and liquida-
tion are against “ public interest” because workers will be worse off.
bankruptcy process. The RRF enables the Tribunal to focus solely on maximisation of
distressed assets, as the fund will compensate displaced workers and
ensure that the restructuring process does not go against public interest.
Critics worry, however, that the funds in the RRF may be appropriated
for other purposes, or that the Tribunal would have trouble accessing
proceeds of the RRF (Rana, 2003). Because the tax is levied on com-
pany turnover, not profit, even firms that are incurring losses will have
to contribute to the RRF (Rana, 2003). Critics also assert that wages
offered to displaced workers “ should not be used as a dole for the
displaced employees but should be used to retrain them so that they are
able to face up to the challenges of a competitive environment” .20

54 20 FAPCCI Review, 2002, p. 10.

 External forces will still influence the effectiveness of India’s ICRA BULLETIN

bankruptcy system, despite the positive strides taken through the 2002
Mon ey
Act. For example, the Tribunal cannot recommend a state industrial
enterprise be restructured or liquidated without the consent of the &
relevant state government. The RRF, however, may encourage lay-off- Fin a n ce
conscious state governments to reform their industrial enterprises,
OCT. 0 3 – M A R . 0 4
whose losses are contributing towards an ever-increasing proportion of
their budget deficits. India’s consolidated budget deficit, including
central and state governments and state-owned businesses, is 11 per
cent of GDP21 . O ne piece of legislation, the 2002 Securitisation Bill (if
it eventually makes it through the Courts), could enhance the rights of
External forces will
secured creditors to seize the assets against non-performing loans,
especially if fraud is involved on the part of the borrower.22 Because the still influence the
2002 Companies Act was instituted after the approval of the 2002
Securitisation Bill, the Tribunal will be able to override provisions of effectiveness of
the Securitisation Bill whenever it believes the Bill is acting against the
interests of creditors as a whole. It is possible that this Bill, in conjunc- India’s bankruptcy
tion with the new definition of “ sickness” , will spur more voluntary
out-of-court settlements or referrals to the Tribunal. The recent amend- system, despite the
ment to the 1947 Industrial Disputes Act is also a positive sign.
A more fundamental issue regarding whether the right compa- 2002 Act. For
nies will be restructured or liquidated is whether a system of “ restruc-
turing by tribunal,” embodied by the 1956 Act, the 1985 Act, and the
example, the
2002 Act, is superior to a system of negotiated settlements by creditors
Tribunal cannot
and management, akin to Chapter 11 in US corporate bankruptcy law.
The BIFR, according to one author, “ prolongs the inevitable liquidation recommend a state
of the company. If there is scope for rehabilitation, banks and financial
institutions are competent enough to assess the possibility” (Datar, industrial enterprise
2001). This author envisages that “ a substantial part of the Tribunal’s
time and energy is going to be wasted on rehabilitation schemes which be restructured or
will seldom be implemented” (Datar, 2001). In its analysis of bank-
ruptcy laws in 2001, the Reserve Bank of India (RBI), India’s central liquidated without
bank, urged the Central Government to scrap the command-approach
to resolving bankruptcies: the consent of the

The Advisory Group is of the opinion that the formalistic design or relevant state
facility created for parties to restructure and renegotiate must have a
veil of juristic neutrality, that is, absence of any privilege or favour to government.
any of the parties. The formalistic procedure of restructuring, as for
example, Chapter 11 restructuring of the US Code, is a simple
creation of neutral environment for the parties to renegotiate. It is

21 “ Small savings, big headache,” T he Econom ist, M arch 27, 2003,

available from the Economist website, http://www.economist.com.

22 “ RBI Definition of Willful Defaulters to H elp Banks N ail Culprits,”

Financial Ex press, N ovember 7, 2002, available from Lexis N exis Academic, http://
www.lexis-nexis.com. 55
 ICRA BULLETIN only an additional opportunity for voluntary re-negotiation for
reorganisation of the borrower institution. Any effort for restructur-
Mon ey
ing must be based on a voluntary effort of all creditors, secured and
& unsecured, the members of the company, its promoters and manage-
Fin a n ce ment. There is no place for any command. In case the parties want,
the Trustee can provide expert’s advice either from in-house or from
OCT. 0 3 – M A R .. 0 4
external expert agencies, hiring the services of such agencies. 23

An additional concern relates to the fact that the Tribunal will

be composed of retired H igh Court judges who have primarily handled
civil cases. If it is believed that it may not possess adequate knowledge
In a socialist of bankruptcy laws, or that it could be influenced, or that a severe
backlog of cases could plague the Tribunal and Appellate Tribunals,
economy such as then the RBI’s recommendations should be adopted. H owever, in a
socialist economy such as India, where the protection of the worker, as
India, where the articulated by the goals of the 2002 Act, is paramount, the government
may simply not trust creditors and managers to formulate an outcome
protection of the
in “ public interest,” despite the intentions of the RRF and the pari passu
worker distribution of claims between secured creditors and workers’ dues.

is paramount, the Will Managers and Stockholders Still Game the System?
The 2002 Act institutes a number of provisions designed to
government may address concerns that under Indian bankruptcy laws, “ bankrupt compa-
nies rot in government-sponsored rehabilitation, their assets tied up,
simply not trust their creditors unpaid but their promoters often richer by raiding
retirement funds and pocketing primary and secondary investors’
creditors and money” . 24 The Act removes the automatic stay against creditors except
when explicitly sanctioned by the Tribunal. There are stringent controls
managers to on management with the appointment of a Director representing the
Tribunal to sit on the company’s Board of Directors and with the
formulate an
appointment of O perating Agencies and the enhanced powers of the
outcome in “ public O fficial Liquidator. A team of auditors verifies the accounts of the
company when it applies to the Tribunal, to ensure management is not
interest” . manipulating its financial statements for the sole purpose of seeking
protection against creditors. A defined timeframe will limit opportuni-
ties for management to engage in perverse behaviour.
It is interesting to note that two hallmarks of Chapter 11 in the
US, the automatic stay and control of assets by the management team
during the restructuring process, have both been curbed in the 2002
Act. Similar provisions of the Indian bankruptcy system led to rent-
seeking behaviour on behalf of both management and public officials.
This misbehaviour may not have been solely a result of the automatic
stay or debtor control of assets, but it may reflect structural flaws in the

23 M itra, 2001, p. 30.

24

56 “ Thus Capital,” T he Statesm an (India), January 29, 2002, available on

Lexis N exis Academic, http://www.lexis-nexis.com.
bankruptcy system. For example, without a defined timeframe in which ICRA BULLETIN

to execute the proceedings, debtors have ample time to siphon off or

Mon ey
sell assets. The BIFR may have lacked enforcement mechanisms to
align incentives of management with the greater public interest, or the &
agency may have been confused as to which objective was paramount, Fin a n ce
maximisation of the value of the distressed assets, or protection of jobs.
OCT. 0 3 – M A R . 0 4
Given the negative public perception of company management
in high profile bankruptcies such as Dunlop and Unit Trust of India
(UTI), it is reasonable to expect that automatic stay and debtor control
of assets will only be granted on a case-by-case basis, under the control
of some judicial authority. Even the RBI recommends that a Trustee be
It is interesting to
appointed to “ take full charge of the entity as if it were the CEO of the
entity” as soon as a bankruptcy petition is filed by either the debtor or note that two
creditors (M itra, 2001, p. 28).
hallmarks of Chapter
Conclusion
The conflict between the government’s implicit social contract 11 in the US, the
to protect the public interest and its role in promoting economic
efficiency via maximisation of value of assets has been and will automatic stay and
continue to be a defining feature of the bankruptcy laws in India. Given
these contextual constraints, it remains to be seen whether the 2002 control of assets by
Companies Act will adequately address the deficiencies of India’s
corporate bankruptcy laws. Legislation to further amend bankruptcy
the management
laws might, however, accompany future efforts to liberalise India’s
team during the
economic infrastructure, in the areas of labour law reform, deregula-
tion of industries, and privatisation of state-owned enterprises. restructuring
Although further improvements could have been instituted to
bring India’s framework in line with Western countries adopting a process, have both
“ gradualist” approach to bankruptcy law reform may have been more
politically sensible: those opposed to economic reform may have been curbed in the
scuttled attempts to radically overhaul the existing infrastructure
overnight. Indian economist M ontek S. Ahluwalia notes25 that when 2002 Act.
reform goals are indicated only as a broad direction, with the precise
end-point and pace of transition left unstated, opposition is minimised,
and the government is given room to retreat if necessary. As a result,
progress is made, albeit in “ fits and starts” . The alternative approach,
which would consist of a more thorough debate, with a clear delinea-
tion of what needs to be done, could create gridlock in India’s highly
pluralistic democracy. So it is possible that the 1956, 1985, and 2002
Acts relating to Indian bankruptcy laws are really just a series of
legislations that will culminate in an Indian version of Chapter 11, but
we cannot let the O pposition know that, or they will threaten to walk
out of Parliament. That secret is safe with us.

25 Ahluwalia, 2002. 57
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