Supreme Court Fully Upholds Constitutional Validity of IBC in Landmark Verdict
MUMBAI and NEW DELHI, February 08,2019 /PRNewswire/ —
Cyril Amarchand Mangaldas instructs Mr. Tushar Mehta, Solicitor General of India on behalf of respondent banks and financial institutions in the defence of IBC
In a landmark decision on January 25th, 2019, the Hon’ble Supreme Court of India in Swiss Ribbons v. Union of India has upheld the constitutional validity of the Insolvency and Bankruptcy Code, 2016 (IBC) in its entirety, laying rest to several issues which arose due to the departure of IBC from previous laws governing insolvency in India. The lead Petitioner Mr. Sanjay Singhal (promoter of Bhushan Power and Steel Limited (Bhushan Power)) had challenged the constitutionality of various provisions of IBC such as Sections 7, 9, 12A, 21, 24, 29A, 53 along with several regulations pertaining to Corporate Insolvency Resolution Process (CIRP), Information Utilities, Resolution Professional as well as constitution of various benches of NCLT and the NCLAT.
The defense of IBC was led by Mr. K.K. Venugopal, Attorney General of India and by Mr. Tushar Mehta, Solicitor General of India. The CAM team instructed Mr. Tushar Mehta in the proceedings on behalf of 32 banks and financial institutions forming the Committee of Creditors (CoC) of Bhushan Power and Steel Limited (BPSL). The matter relates to the Insolvency proceedings initiated against Bhushan Power under IBC, for resolution of debt of INR 49,000 crore (USD 7 billion appox.) owed to creditors.
The Cyril Amarchand Mangaldas Team representing the banks and financial institutions were led by Mr. L. Viswanathan, Chair – Finance and Projects; Mr. Bishwajit Dubey, Partner; Mr. Spandan Biswal, Partner; with support from Ms. Srideepa Bhattacharyya, Associate; and Mr. Prafful Goyal, Associate.
The key challenges made were in respect of the admission process under Section 7, lack of participation of operational creditors in CoC and the disqualification of erstwhile promoters under Section 29A; all such provisions being conceptual departures from previous regimes and which contribute to the immediate impact of IBC on the financial sector.
In its Judgement on 25th January, 2019, the Bench comprising of Hon’ble Justice Mr. Rohinton F. Nariman and Hon’ble Justice Mr. Navin Sinha, while upholding IBC in its entirety, the Hon’ble Supreme Court recognized the Legislature’s right to experimentation in the field of economic legislation and the positive impact of the working of IBC. The Hon’ble Court has observed that “the flow of financial resource to the commercial sector in India has increased exponentially as a result of financial debts being repaid“. The Court based its key observations on the distinction between the interests of the corporate debtor and of its promoters/ management, on the difference in nature and purpose of financial debt and of operational debt, and in the role of COC members in bringing financial expertise to the resolution process.
The Supreme Court has set out a test for disqualification caused due to related parties being a ‘connected person’ under Section 29A(j) of IBC (the related party has to be connected to the business of the Resolution Applicant). Additionally, the Court has recognized the NCLT’s inherent power to permit withdrawal of a Company from CIRP in the time period between admission and before formation of CoC. The Court has also directed the Government to set up Circuit Benches of NCLAT within a period of 6 months.
About Cyril Amarchand Mangaldas
Cyril Amarchand Mangaldas was founded on May 11, 2015 and takes forward the values going back 100 years, of the erstwhile Amarchand & Mangaldas & Suresh A. Shroff & Co., whose pre-eminence, experience and reputation of almost a century has been unparalleled in the Indian legal fraternity. Tracing its professional lineage to 1917, the Firm of Cyril Amarchand Mangaldas is now the largest full-service law firm in India, with over 650 lawyers including over 100 partners, and offices in India’s key business centres at Mumbai, New Delhi, Bengaluru, Hyderabad, Chennai and Ahmedabad. The Firm advises a large, and varied client base that includes domestic and foreign commercial enterprises, financial institutions, private equity funds, venture capital funds, start-ups and governmental and regulatory bodies.
The firm, Cyril Amarchand Mangaldas, was awarded the flagship country award as being the ‘Most Innovative National Law Firm of the Year – India for 2018″ at the IFLR Asia Awards, 2018, having also been successful in winning the ‘prestigious & coveted ‘National Law Firm of the Year, 2018 for India‘ at the Chambers Asia-Pacific Awards, 2018. The firm was also voted as the ‘Employer of Choice for 2018’ from India, by the Asian Legal Business, now 4 years in a row, building upon the several awards that the erstwhile Amarchand & Mangaldas & Suresh A. Shroff & Co. had won in the past.
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