Photo of Abhishek Mukherjee

Partner in the Insolvency and Restructuring Team at the Mumbai office of Cyril Amarchand Mangaldas. Abhishek advises leading banks and financial institutions as well as corporate groups (including developers) and funds on aspects of insolvency, debt restructuring, security enforcement, structured financing, loan recovery and infrastructure projects. He is advising leading banks, office-holders, funds and Asset Reconstruction Companies (ARC) in various cases under the Insolvency and Bankruptcy Code, setting up of ARCs, stressed asset resolution and loan transfers. Abhishek has also served as a secondee with the Financial Restructuring Group of Milbank LLP (London). He can be reached at abhishek.mukherjee@cyrilshroff.com.

The “Ordinary Course of Business” exception in preferential transactions – Deciphering the interpretation methodology

Blog Post:

The concept of avoidance of preferential transactions under Section 43 of the Insolvency & Bankruptcy Code, 2016 (“Code”), is based on the principle that insolvency is a collective scheme process and that the assets of a corporate debtor (“CD”) are distributed equitably in a liquidation scenario. During the twilight period of insolvency, paying off one creditor selectively can be disadvantageous to the interests of other stakeholders/creditors as transferring certain assets/monies diminishes the CD’s value. To reverse/avoid such preferential transactions, Section 43(1) of the Code empowers the resolution professional (“RP”) or the liquidator to approach the jurisdictional National Company Law Tribunal (“NCLT”). As per Section 43(2), a CD shall be deemed to have been given “preference” if the CD’s transfer of property benefits any creditor on account of any pre-existing debt owed by the CD and such a transfer puts the creditor into a beneficial position than it would have had the assets been distributed in a liquidation scenario. One of the two exclusions Section 43(3) lays down two exceptions from the trappings of the deeming fiction of preferential transactions one of them being “transfers made in the ordinary course of business or financial affairs of the corporate debtor or the transferee” (the “OCOB Exception”)[1].Continue Reading The “Ordinary Course of Business” exception in preferential transactions – Deciphering the interpretation methodology

Stock Broker is a Financial Service Provider – The NCLAT ruling may offer respite

While the Insolvency and Bankruptcy Code, 2016 (“IBC”) provides for insolvency resolution and liquidation of ‘corporate persons’, it excludes ‘financial service provider’ (“FSP(s)”) from the said provision. The Central Government, pursuant to its powers under Section 227 of IBC, had notified Insolvency and Bankruptcy (Insolvency and Liquidation Proceedings of Financial Service Providers and Application to Adjudicating Authority) Rules, 2019 (“FSP Rules”) for resolving specified non-banking financial companies (“Specified NBFCs”) registered with the Reserve Bank of India.[1]Continue Reading Stock Broker is a Financial Service Provider – The NCLAT ruling may offer respite

Appropriate forum for Insolvency of Personal Guarantors

Introduction

The provisions of the Insolvency and Bankruptcy Code, 2016 (the “Code”) in relation to personal guarantors (“PG”) to corporate debtor (“Corporate Debtor”) have been effective since December 1, 2019. However, whether a corporate insolvency resolution process (“CIRP”) (or even a pending application to initiate such a process) against the Corporate Debtor is a pre-requisite for initiation of insolvency resolution process or bankruptcy process against the PG under the Code (“PG Proceedings”) before the National Company Law Tribunal (“NCLT”) has been a question that continued to vex the judicial for some time, until recently the Honourable Supreme Court, in Mahendra Kumar Jajodia v. SBI Stressed Assets Management Branch (“Mahendra Kumar Case”),[1] upheld the National Company Law Appellate Tribunal (“NCLAT”) order holding that the NCLT has jurisdiction over PG Proceedings, regardless of any CIRP or liquidation proceedings pending against the Corporate Debtor before it.

This blog analyses the background, the developments so far and the position after the Apex Court’s order.Continue Reading Appropriate forum for Insolvency of Personal Guarantors – Is the last word out?

Overhaul of the ARC Framework – Need of the hour

In continuance of various measures to resolve the pile of non-performing assets (NPAs) in the financial sector, the Reserve Bank of India (RBI) has now turned its focus on the role and framework of Asset Reconstruction Companies (ARCs) in being an important part of the solution. Even though the ARCs were in the game since enactment of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (“SARFAESI”), their performance has been sub-optimal and the recovery percentage abysmally low.[1]Continue Reading Overhaul of the ARC Framework – Need of the hour