Bankruptcy as the term implies refers to the legal status of a person or entity wherein it is unable to repay the debts of its creditors. In other words, bankruptcy is a legal process for liquidating the business when the existing debts cannot be paid out of the available current assets. Bankruptcy is not the only legal status that an insolvent may seek.
In common parlance often the terms bankruptcy and insolvency are used interchangeably. Though we use these terms interchangeably these terms have their distinct meanings and thus these terms cannot be used as synonyms for one another.
Insolvency refers to the stage wherein a person is unable to repay the money borrowed from a person or company within the due time on account of the unavailability of sufficient assets that can be liquidated to repay the debt burden. Going by the interpretation of the term insolvency, it is only a stage of inability to honor the debts due and not an ultimate status of being bankrupt. When the stage of being insolvent is not monitored strictly then such untapped stage of insolvency ultimately leads to the attainment of the status of being bankrupt. Bankruptcy is the end result of the continued flow of insolvency.
“The principal focus of insolvency & bankruptcy legislations is not to eliminate the insolvent or bankrupt entities instead its main focal zone is to remodel the financial and organizational structure of debtors who are at the moment battling with financial hardship thereby permitting rehabilitation and continuation of their businesses.”
The provisions relating to the insolvency and bankruptcy of individuals and partnerships are enshrined in part III of the Code. On reading part III of the Code we shall witness the provisions targeting bankruptcy order for individual and partnership firms outlined in Chapter IV.
On this note, an application for bankruptcy of the debtor may be made by the creditor(s) or by the debtor himself to the adjudicating authority in the prescribed circumstances. Once the application is filed an interim moratorium shall commence on the date of making the aforesaid application and thereafter come to an end on the bankruptcy commencement date. During the course of the interim moratorium, there shall be a stay on all the pending legal actions or legal proceedings in respect of the debts of the debtor. An insolvency professional as proposed by the debtor or creditor shall be appointed as bankruptcy trustee by the adjudicating authority on the recommendation of the board. After the appointment of the bankruptcy trustee, the adjudicating authority shall make a public notice for inviting claims from creditors.
Once claims are received from the creditors the bankruptcy trustee shall register the received claims and thereafter prepare a list of creditors. After the list of creditors is compiled by the bankruptcy trustee he shall make endeavors to summon and convenve meeting of the committee of creditors. The bankruptcy trustee shall conduct the administration and distribution of the estate of the bankrupt and on the completion of the same, the bankruptcy trustee shall apply to the adjudicating authority for the discharge order. The discharge order shall release the bankrupt from all the bankruptcy debts.
On the interpretation of chapter IV of Part III of the Code, we are of the view that “all creditors taking part in the bankruptcy process would have to donate the respective security interest that is in possession of each of them towards the bankruptcy estate that is created for all the creditors. Once a bankruptcy order is passed, the created bankruptcy estate shall be divided in the prescribed order as mentioned in the relevant Section.” By this action, the process tends to cover more creditors in an effective and synchronized manner.
The Code seems to continue to follow in the footsteps in the same direction thereby protecting creditors by granting creditors enhanced powers along with ensured speedy resolution as highlighted in the preamble of the Code.
Abhishek Jain at MUDS is of the opinion that “Bankruptcy is a serious decision people have to make. Bankruptcy is the legal proceeding in which the debtor puts all his money in his pants pocket and thereafter handovers the coat to the creditors. The status of being bankrupt is temporary because it’s a wise way to regroup and bounce back again with clean hands to continue the business.”
After interpreting the term bankruptcy and thereafter having to gain the insight into the bankruptcy process for individuals and partnership firms in brief it’s time to head toward understanding the entire bankruptcy process for individuals and partnership firms in detail and at length.
Application for Bankruptcy
The application for bankruptcy can be made only in the below-mentioned scenarios:
- On rejection of application for initiating the insolvency resolution process.
- Where the proposed repayment plan is rejected by the adjudicating authority.
- In the scenario where the repayment plan as approved could not be implemented in its entirety due to which it ended prematurely.
The application for bankruptcy is required to be filled within a time span of three months from the date of receipt of the order in any of the aforesaid scenarios. On this note, the application for initiating the bankruptcy process may be filed by the creditor either solely or in consortium with other creditors or by the concerned debtor himself to the respective adjudicating authority.
Application by Debtor
The debtor may on a voluntary basis approach the concerned adjudicating authority for seeking a bankruptcy order if it meets any of the aforesaid scenarios. In the case where the debtor is a firm then in such a state, the application for bankruptcy may be filed by either of the partners of such firm. The application as filed by the debtor shall be in the form as prescribed in the Code thereby incorporating within itself the prescribed annexures as are highlighted in the Code. During the course of making an application for obtaining a bankruptcy order, the debtor may also propose the name of an insolvency professional who shall on the admission of application for bankruptcy act as bankruptcy trustee. It is crucial to note that once an application is filed for obtaining a bankruptcy order then it cannot be withdrawn without the express permission of the concerned adjudicating authority.
Application by Creditor
Creditors may make an application on suo motto basis for seeking a bankruptcy order against the debtor. The application by the creditor shall be in the prescribed format as prescribed in the Code supported by the required annexures as listed in the section. The application for bankruptcy if made by a secured creditor shall be accompanied by a few additional annexures. The creditor shall at the time of making the application for initiating bankruptcy process thereby propose the name of an insolvency professional who shall act as bankruptcy trustee to convene the entire process of bankruptcy. In the scenario where a debtor is a deceased person then an application for bankruptcy may be made against the legal representative of the debtor.
Once an application for bankruptcy is filed by the debtor or creditor, an interim moratorium shall come into effect from the very date on which the application is made and shall cease to be in effect on the bankruptcy commencement date. During the course of the interim moratorium all pending legal actions, as well as legal proceedings, shall remain inoperative. The creditors shall also have no power to initiate any fresh legal proceedings or legal actions against any property of the debtor in relation to their pending debts. In the scenario where the debtor is a firm then in such a situation, the interim moratorium shall be applicable on all the partners of the firm who are its partners as on the date on which application is made against the firm.
Appointment of Bankruptcy Trustee
The bankruptcy trustee is the sole driver of the entire bankruptcy process. The entire series of proceedings for seeking bankruptcy orders are monitored by the bankruptcy trustee. On this note a bankruptcy trustee is appointed whose primary task is to monitor and carry forward the bankruptcy process in a smooth and efficient manner. The bankruptcy trustee is no other but an insolvency professional who is registered with the Board and insolvency agency to act as insolvency professionals. The insolvency professional to act as bankruptcy trustee can be appointed in either of the below-mentioned manners:
Where the insolvency professional is already proposed by the creditor or debtor at the time of making an application for bankruptcy then in such a scenario the adjudicating authority shall direct the board to verify that there prevail no pending disciplinary proceedings against the proposed insolvency professional. The above verification shall be directed by the adjudicating authority to the board within a span of seven days to be counted from the date on which it receives the application for bankruptcy. On receipt of the aforesaid direction, the board shall with a period of ten days communicate its findings in writing thereby confirming or rejecting the appointment of the proposed insolvency professional as bankruptcy trustee. If the board rejects the appointment of the proposed insolvency professional then it shall nominate another insolvency professional who shall act as bankruptcy trustee.
By Adjudicating Authority
If the name of insolvency professional is not proposed by the debtor or creditor in the application for bankruptcy then in such a case the adjudicating authority shall instruct the board to nominate an insolvency professional to act as bankruptcy trustee. The above instruction shall be made within a period of seven days from the date of receipt of an application for bankruptcy. The board shall on receipt of the above instruction nominate an insolvency professional to act as a bankruptcy trustee within a period of ten days of receipt of instruction form the adjudicating authority.
The bankruptcy trustee as pre-proposed or nominated by the adjudicated authority shall be duly appointed by the adjudicating authority as a bankruptcy trustee to head forward the bankruptcy process in a time-bound manner.
Once confirmation or nomination of the bankruptcy trustee is received by the adjudicating authority it shall thereafter within a period of fourteen days pass bankruptcy order. On passing the bankruptcy order the adjudicating authority shall forward the copy of the application for bankruptcy along with a copy of the bankruptcy order to the bankrupt, creditor, and the bankruptcy trustee.
The bankruptcy order as passed by the adjudicating authority shall remain in force till the debtor is ultimately discharged of his debts via discharge order. The bankruptcy order if passed against the firm shall have an effect on all individuals of the firm who are its partners as of the date of passing of the order.
On the passing of the bankruptcy order the estate of the bankrupt shall stand transferred to the appointed bankruptcy trustee and later the formed estate shall be distributed among the creditors. The creditors shall not initiate any fresh legal action or proceedings against the debtor or against his property without the prior approval of the adjudicating authority.
Statement of Financial Position
In the scenario where an application for bankruptcy is filed by the creditor and thereafter on the passing of bankruptcy order by the adjudicating authority, the concerned bankrupt debtor shall furnish a statement of his financial position within a span of seven days from the bankruptcy commencement date. The statement shall be in accordance with the prescribed format as prescribed in the Code. Where the bankrupt is a firm then a joint statement of financial position shall be submitted by the firm along with individual statements from each of the partners.
Invitation of Claims from Creditors
Within ten days from the bankruptcy commencement date, the adjudicating authority shall issue a public notice thereby inviting claims from creditors as are highlighted in the statement of financial position as furnished by the bankrupt or in the application for bankruptcy as filed by the bankrupt. The public notice shall specify the last date by which the claims may be submitted by the creditors. The public notice inviting the claims from creditors shall be published in one English and one vernacular language newspaper; affixed in the premises of the adjudicating authority and also uploaded on the website of the adjudicating authority.
Registration of Claims
The creditors shall get their claims registered with the bankruptcy trustee within a period of seven days of the publication of the notice for submitting claims. The creditors shall submit their claims to the bankruptcy trustee in the format as prescribed in the Code along with the required annexure that shall form part of the application for claim registration.
Preparation of List of Creditors
The bankruptcy trustee shall come into the active role by compiling a list of creditors within a period of fourteen days to be counted from the start of the bankruptcy commencement date. The list of creditors shall be compiled keeping into account the information disclosed by the bankrupt in the bankruptcy application as submitted or in the statement of financial position as furnished later on and from the claims received from the creditors.
Convening Meeting of Creditors
Within a period of twenty days from the bankruptcy commencement date, the bankruptcy trustee shall therein issue a notice calling meeting of creditors. The notice of the meeting shall be sent to all the creditors whose name is covered in the list of creditors as prepared by the bankruptcy trustee. The notice shall highlight the date of meeting of the creditors which shall not be later twenty-one days from the bankruptcy commencement date. Once summoned the meeting of creditors shall be conducted by the bankruptcy trustee. The quorum for the aforesaid meeting shall be decided by the bankruptcy trustee and the summoned meeting shall be convened only in the presence of the required quorum. The minutes of the said meeting shall be prepared and recorded by the bankruptcy trustee. The voting share shall be determined by the resolution professional in the prescribed manner as mentioned in the Code.
Administration and Distribution of Estate of Bankrupt
From the very date of appointment of the insolvency professional as a bankruptcy trustee, the estate of the bankrupt shall vest or rather be monitored by the appointed bankruptcy trustee. The bankruptcy trustee shall take under his hands the possession and overall control of the property and all other documents of the bankrupt that have a linking with the estate of the bankrupt. The bankruptcy trustee is empowered to claim any after-acquired property by serving a notice to the bankrupt which shall thereafter form part of the bankruptcy estate.
In the scenario where the bankrupt is a deceased person then the bankruptcy trustee shall ensure that claims made by the legal representative for funeral and testamentary expenses for the deceased are honored. The above claim shall rank parallel to that of the secured creditors in the distribution hierarchy. If after administration of the deceased bankrupt’s estate any surplus remains in the possession of the bankruptcy trustee then that available surplus shall be paid to the legal representative of the deceased bankrupt.
After compiling the list of the creditors the bankruptcy trustee shall via notice invite proof of debts from the creditors covered under the compiled list of creditors within a span of fourteen days. The proof debts as submitted by the concerned creditor shall be in the prescribed format and supported by the required annexures.
There may be a situation in which the bankruptcy trustee may have sufficient liquid funds in his hands than in such a state he may declare and distribute the available surplus as interim dividend among the creditors in proportion to the proved bankruptcy debts. At the time of declaring the aforesaid dividend, the bankruptcy trustee shall provide the notice for the same in the prescribed format to all the creditors to whom such the dividend shall be distributed.
In the scenario where the bankruptcy trustee has realized the entire estate of the bankrupt then in such a state, he shall give notice of his intention to declare a final dividend or that no dividend or further dividend shall be declared. If the bankruptcy trustee is of the opinion of declaring a final dividend then he shall declare and distribute the dividend among the creditors who have proved their debts. After the distribution of dividend and making the payment along with interest to all creditors there remains a surplus then the bankrupt shall be entitled to such surplus.
During the course of the administration and distribution of the estates of the bankrupt if there come up any creditors who have not proved their debts prior to the declaration of dividend then these creditors shall not be eligible for hindering the ongoing bankruptcy process. If the concerned creditor is able to prove his claim then in such case he shall become eligible to receive the dividend. Where the bankruptcy trustee fails or denies to pay dividends to the creditor then the concerned creditor may approach the adjudicating authority for seeking action against the bankruptcy trustee. On approaching the adjudicating authority, the adjudicating authority shall pass an order directing the bankruptcy trustee to pay the dividend or make payment of interest along with the cost incurred by the concerned creditor to obtain an order out of his own pocket.
At the time of distribution of final debts, there are various debts that shall rank on priority as against the other debts. On this note the hierarchy or priority order highlighted in the Code is as follows:
Firstly the costs and expenses as are incurred by the bankruptcy trustee during the course of the bankruptcy process shall be paid off in full.
Secondly the workmen’s dues for the preceding twenty-four months to be accounted for from the bankruptcy commencement date and the debts owed to secured creditors on a pari passu basis.
Thirdly the wages and pending dues of the employees other than workmen during the course of the preceding twelve months to be calculated from the bankruptcy commencement date.
Fourthly pending dues if any of the central or state government during a period of two years from the bankruptcy commencement date.
Lastly all other dues and debts owed by the bankrupt as well as unsecured debts.
The glimpses of the priority order in which the payments and distribution of the estate of the bankrupt shall me made as described aforesaid are highlighted below.
Completion of Administration
On completion of the administration and distribution of the estate of the bankrupt, the bankruptcy trustee shall convene a meeting of the committee of the creditors. The bankruptcy trustee shall furnish forth the committee of the creditors’ report of the administration and distribution of the estate of the bankrupt. The committee of creditors shall within a period of seven days of the receipt of the report approve the report as submitted by the bankruptcy trustee.
After the competition of the administration, the bankruptcy trustee shall approach the adjudicating authority for seeking a discharge order. The bankruptcy trustee shall on the expiry of one year from the bankruptcy commencement date or within seven days of approval of the committee of creditors on completion of administration file an application for the discharge order. On receipt of the application, the adjudicating authority shall pass a discharge order. On obtaining the discharge order the bankrupt shall be discharged from all his pending bankruptcy debts.
Modification/ Recall of bankruptcy order
At any time after passing of the bankruptcy order the adjudicating authority may either on receipt of an application or on suo motto basis modify or recall the passed bankruptcy order irrespective of the fact as to whether the bankrupt is discharged or not. The modification or calling back of order can only be made in selective scenarios. On this note the scenarios in which the passed order can be modified or recalled are as under:
- In cases where an error is clearly evident by viewing the order.
- Where bankruptcy debts as well as the expenses in relation to bankruptcy have either been paid off or are secured as per the satisfaction of the adjudicating authority.
In the scenario where the bankruptcy order as passed is modified or recalled by the adjudicating authority then any sale or alienation of property or payments made by the bankruptcy trustee shall be valid. It is important to note that the property as disposed of post-discharge order shall remain in possession of the person whom adjudicating authority shall appoint and in case of non-appointment of any person it shall vest back to the bankrupt on such terms as the adjudicating authority deems fit.
The modified order as passed after the passing of the original discharge order shall be applicable to all the creditors whose debts remain due thereby forming a part of the bankruptcy process.
By having a glance at the above described brief process it is evident that bankruptcy gives a possible way to the bankrupt to cope and renovate himself. It depends on the decision of the bankrupt as to what he decides in such a situation. Bankruptcy is a situation that can be resolved by being calm and controlling the finances which will thereby act as the greatest stress reliever. It is a one-time situation that can be tapped if detected within due time.
People wait until the last minute to approach the bankruptcy lawyer’s office because they don’t want to be in the bankruptcy lawyer’s office. We at MUDS hope that people recognize that bankruptcy is still an option for them and that the only requirement is that the bankrupt needs to be proactive and vigilant in resolving the bankruptcy as early it can be done.
Hope this blog was informative in providing a deep insight into the bankruptcy process for individuals and partnership firms. Stay connected with MUDS for more updates.