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Guide to Navigating and Filing for Bankruptcy in India

Updated: May 22

What is Bankruptcy?

Bankruptcy is a legal option for individuals or businesses unable to repay debts, offering financial relief. Typically, the debtor files a petition declaring inability to pay, although creditors can also initiate bankruptcy proceedings. Assets are assessed to determine repayment options, which may involve selling assets or establishing a repayment plan. The type of bankruptcy and individual circumstances dictate the process and outcomes. Overall, bankruptcy provides a chance for a fresh financial start by restructuring debts. However, it's a significant decision with long-term effects, so seeking professional guidance is advisable.


Bankruptcy provides individuals and businesses with an opportunity for a fresh start by forgiving unmanageable debts, while creditors may receive partial repayment based on available assets. This process theoretically benefits the economy by offering a second chance for credit access and aiding creditors in recouping some debts.


Bankruptcy Laws in India

The Insolvency and Bankruptcy Code of 2016 in India supersedes previous bankruptcy legislation, covering various entities and establishing procedures for insolvency resolution. It introduces insolvency professionals to facilitate the process and creates the Insolvency and Bankruptcy Board of India to regulate these professionals and information companies.


Who is eligible to apply for bankruptcy, and at what point should they file for it? Sec 2 of the Insolvency and Bankruptcy Code of 2016, highlights who is eligible to apply for bankruptcy: (a) any company incorporated under the Companies Act, 2013 (18 of 2013) or under any previous company law;

(b) any other company governed by any special Act for the time being in force, except in so far as the said provisions are inconsistent with the provisions of such special Act;

(c) any Limited Liability Partnership incorporated under the Limited Liability Partnership Act, 2008 (6 of 2009);

(d) such other body incorporated under any law for the time being in force, as the Central Government may, by notification, specify in this behalf; 1***

(e) personal guarantors to corporate debtors;

(f) partnership firms and proprietorship firms; and

(g) individuals, other than persons referred to in clause


It's essential to consult with insolvency professionals, financial advisors, or legal experts to evaluate the feasibility of filing for bankruptcy and to explore alternative debt relief options. Familiarizing oneself with the provisions of the Insolvency and Bankruptcy Code (IBC) and following the prescribed procedures are crucial for a successful bankruptcy filing and resolution process. Bankruptcy should be considered when debts cannot be repaid within a reasonable timeframe, usually around five years. However, it's advisable to also explore alternatives such as debt management programs or debt consolidation.


What is the minimum threshold for filing bankruptcy in India ?

The minimum threshold for filing bankruptcy for corporate debtors is set at 1 crore rupees, as stipulated under Section 4 of The Insolvency and Bankruptcy Code, 2016. However, it's important to note that the Central Government has the authority to define a higher minimum default amount, not exceeding one crore rupees, through official notification.


Initiation of Insolvency: The process begins with the filing of an application for insolvency with the National Company Law Tribunal (NCLT).

  1. Appointment of an Interim Resolution Professional (IRP): Upon admission of the application, the NCLT appoints an IRP to take over the management of the company's affairs during the insolvency process.

  2. Formation of a Creditors Committee (CoC): The IRP forms a committee of creditors (CoC) comprising the company's creditors. The CoC evaluates the company's assets and liabilities and plays a crucial role in the decision-making process during insolvency proceedings.

  3. Resolution Plan: The CoC invites resolution plans from interested parties. The plan that receives the highest vote of approval from the CoC is submitted to the NCLT for final approval. If approved, it becomes binding on all stakeholders.

  4. Liquidation: In case a viable resolution plan is not approved, the company may be liquidated. The assets of the company are sold, and the proceeds are distributed to the creditors according to the priority specified in the Insolvency and Bankruptcy Code.

These steps provide a concise overview of the bankruptcy filing process in India under The Insolvency and Bankruptcy Code, 2016. It's important to note that specific details and procedures may vary depending on the circumstances of each case and any subsequent amendments to the law.


Grounds on which Bankruptcy petition can be rejected under Insolvency and Bankruptcy Code:

  • Section 7 - Initiation of Corporate Insolvency Resolution Process by Financial Creditor: This section outlines the process by which a financial creditor can initiate insolvency proceedings against a corporate debtor. Grounds for rejection may include non-compliance with the requirements specified in this section or lack of evidence to support the creditor's claim.

  • Section 9 - Application for Initiation of Corporate Insolvency Resolution Process by Operational Creditor: Similar to Section 7, this section pertains to the initiation of insolvency proceedings by an operational creditor against a corporate debtor. Grounds for rejection may include procedural irregularities or insufficient evidence of the debt owed.

  • Section 10 - Initiation of Corporate Insolvency Resolution Process by Corporate Applicant: This section allows a corporate debtor to initiate insolvency proceedings against itself. Grounds for rejection may include the debtor's failure to meet the eligibility criteria specified in this section or evidence of fraudulent intent.

  • Section 94 - Grounds for Rejecting Applications: This section provides a broad framework for the rejection of insolvency applications. It includes grounds such as non-compliance with procedural requirements, lack of evidence, bad faith filing, and others.

  • Section 213 - Penalty for Fraudulent Transactions: If fraudulent transactions are discovered during insolvency proceedings, this section allows for penalties to be imposed on the individuals involved. Such transactions could be a ground for rejecting a bankruptcy petition if they are deemed to be material to the case.


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Considerations before filing for bankruptcy:

1. Exploring debt relief options: Before deciding to file for bankruptcy, individuals should explore alternative debt relief options that may be available to them. These options could include debt consolidation, negotiation with creditors for reduced payments or settlement, debt management plans, or seeking assistance from credit counseling agencies. It's essential to evaluate these alternatives to bankruptcy to determine if they can provide a viable solution to the financial challenges without the need for bankruptcy.

2. Seeking legal counsel: Filing for bankruptcy is a complex legal process with long-term implications, so it's crucial to seek advice from a qualified bankruptcy attorney or legal professional. A bankruptcy attorney can assess the individual's financial situation, explain the various types of bankruptcy (such as Chapter 7, Chapter 13), and provide guidance on the best course of action based on their circumstances. Legal counsel can help navigate the bankruptcy process, ensure compliance with applicable laws, and protect the individual's rights throughout the proceedings.

3. Assessing debt viability: Individuals considering bankruptcy should assess the viability of their debts and their ability to repay them. This involves compiling a comprehensive list of debts, including their amounts, interest rates, and terms, and evaluating their affordability based on income and expenses. Assessing debt viability can help determine whether bankruptcy is the most appropriate solution for addressing the financial challenges or if alternative strategies may be more suitable. It's essential to consider factors such as the types of debts (secured vs. unsecured), the extent of financial hardship, and the potential impact on assets and creditworthiness.


Advantages of Filing for Bankruptcy :

1. Debt Relief: Bankruptcy provides a legal process to discharge or restructure debts, offering relief from overwhelming financial burdens.

2. Automatic Stay: Upon filing for bankruptcy, an automatic stay goes into effect, halting creditor collection activities, such as wage garnishment, foreclosure, or repossession, providing immediate relief.

3. Fresh Start: Bankruptcy allows individuals and businesses to start anew financially, eliminating or reducing debt and offering a chance to rebuild credit over time.

4. Protection of Assets: Certain assets may be protected from liquidation under bankruptcy exemptions, allowing debtors to retain essential possessions.

5. Structured Repayment Plan: In Chapter 13 bankruptcy, debtors can propose a repayment plan to catch up on missed payments over time, avoiding foreclosure or repossession.


Disadvantages of Filing for Bankruptcy:

1. Negative Impact on Credit: Bankruptcy stays on credit reports for several years, negatively affecting credit scores and making it challenging to secure loans or credit cards in the future.

2. Loss of Assets: In Chapter 7 bankruptcy, non-exempt assets may be sold to repay creditors, potentially resulting in the loss of valuable property.

3. Public Record: Bankruptcy filings are a matter of public record, which may lead to stigma or embarrassment for some individuals or businesses.

4. Limited Eligibility for Credit: After bankruptcy, obtaining new credit may be difficult, and if available, it often comes with higher interest rates or stricter terms.

5. Long-Term Financial Impact: While bankruptcy provides immediate relief, its long-term consequences can linger, affecting future financial opportunities and goals.


By carefully exploring debt relief options, seeking legal counsel, and assessing debt viability, individuals can make informed decisions about whether bankruptcy is the right solution for addressing their financial difficulties. These considerations can help individuals navigate the complexities of bankruptcy and work towards achieving a fresh start in their financial lives.


Exploring Alternatives to Bankruptcy

When seeking to avoid bankruptcy, there are several alternative approaches that may help alleviate debt burdens.

  • Negotiating with Creditors: Direct negotiations with creditors, bypassing legal proceedings, can often yield mutually beneficial outcomes. Creditors may be open to adjusting repayment terms, such as reducing debt amounts or extending payment periods, rather than risking total non-payment.

  • Exploring Mortgage Relief Options: For individuals struggling with mortgage payments, reaching out to their loan servicer can unveil various alternatives before resorting to bankruptcy. Options like forbearance, which temporarily suspends payments, or repayment plans offering extended terms, may provide relief. Additionally, loan modification can permanently alter loan terms, potentially lowering interest rates, though caution is advised against unsolicited offers from potentially fraudulent companies.


Overall, filing for bankruptcy can be a beneficial solution for those facing overwhelming debt but requires careful consideration of its implications and alternatives. Seeking professional guidance from a bankruptcy attorney or financial advisor is advisable to navigate the process effectively and make informed decisions.


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Frequently Asked Questions (FAQs) about Bankruptcy in India:

1. What is bankruptcy in India?

Bankruptcy in India refers to the legal process initiated by individuals or businesses unable to repay their debts. It provides a mechanism for debt relief and financial restructuring under the Insolvency and Bankruptcy Code, 2016.


2. How does bankruptcy benefit individuals and businesses?

Bankruptcy offers individuals and businesses a fresh start by forgiving debts they cannot repay. It provides relief from creditor harassment and offers a structured process for debt resolution.


3. What are the key laws governing bankruptcy in India?

 The primary legislation governing bankruptcy in India is the Insolvency and Bankruptcy Code, 2016 (IBC). It replaced previous laws and provides a comprehensive framework for insolvency resolution and bankruptcy proceedings.


4. Who can file for bankruptcy in India?

Any individual or business entity, including companies, limited liability partnerships (LLPs), and partnership firms, can file for bankruptcy under the IBC if they are unable to repay their debts.


5. What is the process for filing bankruptcy in India?

The bankruptcy process in India involves filing an application for insolvency with the National Company Law Tribunal (NCLT), appointment of an interim resolution professional (IRP), formation of a creditors committee, submission and evaluation of resolution plans, and approval of the plan by the NCLT.


6. What are the consequences of bankruptcy for individuals and businesses?

 Bankruptcy can have both advantages and disadvantages. While it provides debt relief and protection from creditor actions, it may also impact credit scores, result in the loss of assets, and affect future borrowing and financial credibility.


7. Are there alternatives to bankruptcy in India?

Yes, alternatives to bankruptcy include debt restructuring, negotiation with creditors, loan consolidation, and government support schemes for financial assistance. These options can help individuals and businesses manage debt without resorting to bankruptcy.


8. What government schemes are available to support struggling businesses in India?

Government schemes such as the Start-up India Seed Fund Scheme, Credit Guarantee Fund Trust for Micro and Small Enterprises (CGTMSE), and Atal Innovation Mission provide financial assistance and support to failing start-ups and small businesses.


9. How long does bankruptcy stay on a credit report in India?

Bankruptcy typically remains on a credit report for seven to ten years in India. During this period, individuals or businesses may face challenges in obtaining credit or loans due to their bankruptcy status.


10. Can individuals or businesses recover from bankruptcy in India?

Yes, individuals and businesses can recover from bankruptcy by adhering to the insolvency resolution process, implementing sound financial management practices, and leveraging government support schemes and opportunities for restructuring and rehabilitation.

 

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