Photo of L. Viswanathan

National Chair and Partner in the Finance, Insolvency &  Projects Practice at the Mumbai office of Cyril Amarchand Mangaldas. Viswanathan advises leading banks, financial institutions and private credit providers as well India’s largest corporates on financing, restructuring  and infrastructure projects.  He is currently advising on many insolvency proceedings under the Insolvency and Bankruptcy Code, 2016. He can be reached at l.viswanathan@cyrilshroff.com

Lenders as Promoters under RERA regime - Analysing Haryana Real Estate Regulation Authority’s recent Order in Supertech Hues case

Introduction

The Haryana Real Estate Regulation Authority (“HRERA”) has recently delivered an unprecedented order in the matter of Deepak Chowdhary Vs PNB Housing Finance Ltd. & Ors. (“Supertech Hues case/ Order”)[1]. This Order will have implications on banks and other financial institutions, which provide credit to real estate companies, while also bringing into focus, the conflict between the rights of such banks and financial institutions vis-à-vis the rights of allottees of such projects. Despite the Real Estate (Regulation and Development) Act, 2016 (“RERA/Act”), contemplating mortgage loans to be the “first funders” of a real estate project[2], the HRERA has passed an order, which may have implications on secured lenders when it comes to exercising their rights to enforce their security.
Continue Reading Lenders as Promoters under RERA regime: Analysing Haryana Real Estate Regulation Authority’s recent Order in Supertech Hues case

Jaypee Judgement – Assessing it’s impact on the Indian financing landscape

Background

On February 26, 2020, the Hon’ble Supreme Court delivered its judgment in the Jaypee matter, bringing to a close the long drawn litigation between two sets of competing creditor claims i.e. those advanced by certain creditors of Jaypee Infratech Limited (JIL) and those of its holding company, Jaiprakash Associates Limited (JAL).

In its ruling, the Supreme Court addressed two key issues:
Continue Reading The `Jaypee Judgement’ – Assessing it’s impact on the Indian financing landscape

IBC Second Amendment Bill 2019

The edifice of the Insolvency and Bankruptcy Code, 2016 (“IBC”) was conceptualised on ideas such as promoting ‘maximisation of value of assets’, ‘a transparent and predictable insolvency law’,  ‘avoiding destruction of value of the debtor’ and recognising the difference between ‘malfeasance and business failure’.[1] In the three years since the enactment of the IBC, many areas in the insolvency resolution process  have required judicial and legislative interventions to enable the process to achieve the desired results.

Among others, the ongoing investigations against insolvent entities and the risk of cancellation of critical government contracts during the insolvency process, were identified as key impediments to strategic interest in the stressed market. The introduction of the Insolvency and Bankruptcy Code (Second Amendment) Bill, 2019 (“Bill”), by the Government, is a step that will help overcome such ‘critical gaps in the corporate insolvency framework’.[2]
Continue Reading IBC Second Amendment Bill, 2019: Finishing Touches to the Indian Restructuring Landscape

THE ROAD TO RESOLUTION OF FINANCIAL SERVICE PROVIDERS - IBC

 

The Imperative for a distinct framework for the resolution of financial firms

The financial sector is facing a combination of liquidity, governance and business issues, on account of which certain Non Banking Financial Companies (“NBFCs”) are facing solvency concerns.

The severe liquidity crunch for NBFCs was caused  as banks and other financial institutions have curtailed refinancing the loans of NBFCs on account of which several NBFCs and other financial institutions faced debt servicing and solvency issues. These have sought to be resolved through the Stressed Asset Directions issued by the Reserve Bank of India (“RBI”) on June 7, 2019. This was fraught with complexities given the diverse sets creditor, including market borrowings  each of whom were governed by different financial regulators.
Continue Reading The Road to Resolution of Financial Service Providers: A Firm First Step

Essar Steel India Limited - Supreme Court reinforces primacy of Creditors Committee in insolvency resolution

Essar Steel judgement of the National Company Law Appellate Tribunal (NCLAT), which required that the secured financial creditors share recoveries in a resolution plan under the Insolvency and Bankruptcy Code, 2016 (IBC), inter se (irrespective of the ranking of their security positions) and with the trade creditors, on a pari passu basis, was considered a ”confusion in the different types of creditors” and a setback for the nascent but growing secondary debt market in India. The judgement perhaps was also opposed to the realities of credit risk assessments and pricing of the credit leading to an unsatisfactory resolution outcome for creditors in an insolvency situation.
Continue Reading Essar Steel India Limited: Supreme Court Reinforces Primacy of Creditors Committee in Insolvency Resolution

 2019 IBC Amendment Bill - Insolvency and Bankruptcy

The Insolvency and Bankruptcy Code, 2016 (IBC) has been widely considered a landmark legislation that has brought about a paradigm shift in the recovery and resolution process.

However, during the implementation of the IBC over the past two years and eight months, several challenges have emerged, including:

  1. The Supreme Court recognises the utmost

Is Liquidation Irreversible - Schemes of Compromise in Liquidation

The 2005 Report of the Expert Committee on Company Law (JJ Irani Committee Report) had noted that an effective insolvency law:

should strike a balance between rehabilitation and liquidation. It should provide an opportunity for genuine effort to explore restructuring/ rehabilitation of potentially viable businesses with consensus of stakeholders reasonably arrived at. Where revival / rehabilitation is demonstrated as not being feasible, winding up should be resorted to.

Where circumstances justify, the process should allow for easy conversion of proceedings from one procedure to another. This will provide opportunity to businesses in liquidation to turnaround wherever possible. Similarly, conversion to liquidation might be appropriate even after a rehabilitation plan has been approved if such a plan was procured by fraud or the plan can no longer be implemented”.
Continue Reading Is Liquidation Irreversible? Schemes of Compromise or Arrangement for Companies in Liquidation

RBI FRAMEWORK FOR RESOLUTION OF STRESSED ASSETS BLOG

The Reserve Bank of India (“RBI”) has issued the Reserve Bank of India (Prudential Framework for Resolution of Stressed Assets) Directions, 2019 (“New Framework”) on June 07, 2019[1] in which the RBI has continued the core principles of its circular dated February 12, 2018 (“February 12 Circular”) and has added provisions encouraging both informal and formal restructuring in India. The New Framework creates an enabling framework for restructuring and resolutions outside the Insolvency and Bankruptcy Code, 2016 (“IBC”) as well as encourages use of IBC as a restructuring tool. It applies to banks, financial institutions as well as large non-banking financing companies (“NBFCs”) (the February 12 Circular did not apply to NBFCs) and also requires asset reconstruction companies to adhere to the relevant resolution framework under the inter-creditor agreement (see below).
Continue Reading BANKS TO LEAD RESOLUTION EFFORTS – THE NEW RBI FRAMEWORK FOR RESOLUTION OF STRESSED ASSETS

RBI Circular - Insolvency and Bankruptcy Blog

The Supreme Court’s judgment in Dharani Sugars and Chemicals Limited vs. Union of India is examined herein.

The Supreme Court in Dharani Sugars and Chemicals Limited vs. Union of India & Others (Dharani Sugars) has struck down the circular dated February 12, 2018, containing the revised framework for resolution of stressed assets (RBI Circular) issued by the Reserve Bank of India (RBI) on the ground of it being ultra vires Section 35AA of the Banking Regulation Act, 1949 (Banking Regulation Act).

Section 35AA was introduced by Parliament in 2017 to confer power on Central Government to authorise the RBI to give directions to any bank or banks to initiate an insolvency resolution process under the provisions of the Insolvency and Bankruptcy Code, 2016 (IBC) in respect of ‘a default’. The RBI Circular was challenged, inter alia, on the basis that Section 35AA does not empower the RBI to issue directions for reference to the IBC of all cases without considering specific defaults.


Continue Reading Dharani Sugars v. Union of India: RBI’s Regulatory Powers Re-affirmed by the Supreme Court

Sashidhar v. Indian Overseas Bank and Ors. – Commercial Wisdom Reigns Supreme

The Supreme Court’s decision in K. Sashidhar v. Indian Overseas Bank and Ors.[1]addressed a critical issue in the corporate insolvency resolution process (CIRP) – i.e. the scope of judicial scrutiny over a commercial decision taken by the committee of creditors (“CoC”) to approve or reject a resolution plan.
Continue Reading Sashidhar v. Indian Overseas Bank and Ors. – Commercial Wisdom Reigns Supreme