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The Insolvency and Bankruptcy Code, 2016 is listed for passage in Rajya Sabha today.  Last week, Lok Sabha passed the Code with changes recommended by the Joint Parliamentary Committee that examined the Code.[1],[2]  We present answers to some of the frequently asked questions in relation to the Insolvency and Bankruptcy Code, 2016. Why do we need a new law?Time resolve insolvency1 As of 2015, insolvency resolution in India took 4.3 years on an average.  This is higher when compared to other countries such as United Kingdom (1 year) and United States of America (1.5 years).  Figure 1 provides a comparison of the time to resolve insolvency for various countries.  These delays are caused due to time taken to resolve cases in courts, and confusion due to a lack of clarity about the current bankruptcy framework. What does the current Code aim to do? The 2016 Code applies to companies and individuals.  It provides for a time-bound process to resolve insolvency.  When a default in repayment occurs, creditors gain control over debtor’s assets and must take decisions to resolve insolvency within a 180-day period.  To ensure an uninterrupted resolution process, the Code also provides immunity to debtors from resolution claims of creditors during this period. The Code also consolidates provisions of the current legislative framework to form a common forum for debtors and creditors of all classes to resolve insolvency. Who facilitates the insolvency resolution under the Code? The Code creates various institutions to facilitate resolution of insolvency.  These are as follows:

  • Insolvency Professionals: A specialised cadre of licensed professionals is proposed to be created. These professionals will administer the resolution process, manage the assets of the debtor, and provide information for creditors to assist them in decision making.
  • Insolvency Professional Agencies: The insolvency professionals will be registered with insolvency professional agencies. The agencies conduct examinations to certify the insolvency professionals and enforce a code of conduct for their performance.
  • Information Utilities: Creditors will report financial information of the debt owed to them by the debtor. Such information will include records of debt, liabilities and defaults.
  • Adjudicating authorities: The proceedings of the resolution process will be adjudicated by the National Companies Law Tribunal (NCLT), for companies; and the Debt Recovery Tribunal (DRT), for individuals. The duties of the authorities will include approval to initiate the resolution process, appoint the insolvency professional, and approve the final decision of creditors.
  • Insolvency and Bankruptcy Board: The Board will regulate insolvency professionals, insolvency professional agencies and information utilities set up under the Code.  The Board will consist of representatives of Reserve Bank of India, and the Ministries of Finance, Corporate Affairs and Law.

What is the procedure to resolve insolvency in the Code? The Code proposes the following steps to resolve insolvency:

  • Initiation: When a default occurs, the resolution process may be initiated by the debtor or creditor. The insolvency professional administers the process.  The professional provides financial information of the debtor from the information utilities to the creditor and manage the debtor’s assets.  This process lasts for 180 days and any legal action against the debtor is prohibited during this period.
  • Decision to resolve insolvency: A committee consisting of the financial creditors who lent money to the debtor will be formed by the insolvency professional. The creditors committee will take a decision regarding the future of the outstanding debt owed to them.  They may choose to revive the debt owed to them by changing the repayment schedule, or sell (liquidate) the assets of the debtor to repay the debts owed to them.  If a decision is not taken in 180 days, the debtor’s assets go into liquidation.
  • Liquidation: If the debtor goes into liquidation, an insolvency professional administers the liquidation process. Proceeds from the sale of the debtor’s assets are distributed in the following order of precedence: i) insolvency resolution costs, including the remuneration to the insolvency professional, ii) secured creditors, whose loans are backed by collateral, dues to workers, other employees, iii) unsecured creditors, iv) dues to government, v) priority shareholders and vi) equity shareholders.

What are some issues in the Code that require consideration?

  • The Bankruptcy Board (regulator) will regulate insolvency professional agencies (IPAs), which will further regulate insolvency professionals (IPs).  The rationale behind multiple IPAs overseeing the functioning of their member IPs, instead of a single regulator is unclear. The presence of multiple IPAs  operating simultaneously could enable competition in the sector. However, this may also lead to a conflict of interest between the regulatory and competitive goals of the IPAs.  This structure of regulation varies from the current practice where the regulator directly regulates its registered professionals.  For example, the Institute of Chartered Accountants of India (which regulates chartered accountants) is directly responsible for regulating its registered members.
  • The Code provides an order of priority to distribute assets during liquidation. It is unclear why: (i) secured creditors will receive their entire outstanding amount, rather than up to their collateral value, (ii) unsecured creditors have priority over trade creditors, and (iii) government dues will be repaid after unsecured creditors.
  • The smooth functioning of the Code depends on the functioning of new entities such as insolvency professionals, insolvency professional agencies and information utilities.  These entities will have to evolve over time for the proper functioning of the system.  In addition, the NCLT, which will adjudicate corporate insolvency has not been constituted as yet, and the DRTs are overloaded with pending cases.

 


 

  1. The Insolvency and Bankruptcy Code, 2016, http://www.prsindia.org/administrator/uploads/media/Bankruptcy/Bankruptcy%20Code%20as%20passed%20by%20LS.pdf.
  2. Report of the Joint Committee on the Insolvency and Bankruptcy Code, 2015, April 28, 2016, http://164.100.47.134/lsscommittee/Joint%20Committee%20on%20Insolvency%20and%20Bankruptcy%20Code,%202015/16_Joint_Committee_o n_Insolvency_and_Bankruptcy_Code_2015_1.pdf

A version of this blog appeared in the Business Standard on May 7, 2016.

Recently, there have been reports of price crashes and distress sales in case of farm produce, such as tomatoesmangoes, and garlic.  In some cases, farmers have dumped their produce on roads.  Produce such as fruits and vegetables are perishable and therefore have a short shelf life.  Further, due to inadequate storage facilities and poor food processing infrastructure farmers have limited options but to sell the produce at prevailing market prices.  This can lead to distress sales or roadside discards (in some cases to avoid additional cost of transportation).

Food processing allows raw food to be stored, marketed, or preserved for consumption later.  For instance, raw agricultural produce such as fruits may be processed into juices, jams, and pickles.  Activities such as waxing (for preservation), packaging, labelling, or ripening of produce also form part of the food processing industry.

Between 2001-02 and 2016-17, production of food grains grew annually at 1.7% on average.  Production of horticulture crops surpassed food grains with an average growth rate of 4.8%.  While production has been increasing over the years, surplus produce tends to go waste at various stages such as procurement, storage, and processing due to lack of infrastructure such as cold storages and food processing units.

Source: Horticulture Statistics at a Glance 2017, Union Budget 2018-19; PRS.

Source: Horticulture Statistics at a Glance 2017, Union Budget 2018-19; PRS.

Losses high among perishables such as fruits and vegetables

Crop losses ranged between 7-16% among fruits and around 5% among cereals in 2015.  The highest losses were witnessed in case of guava, followed by mango, which are perishable fruits.  Perishables such as fruits and vegetables are more prone to losses as compared to cereals.  Such crop losses can occur during operations such as harvesting, thrashing, grading, drying, packaging, transportation, and storage depending upon the commodity.

It was estimated that the annual value of harvest and post-harvest losses of major agricultural products at the national level was Rs 92,651 crore in 2015.  The Standing Committee on Agriculture (2017) stated that such wastage can be reduced with adequate food processing facilities.

Sources: Annual Report 2016-17, Ministry of Food Processing Industries; PRS.

Sources: Annual Report 2016-17, Ministry of Food Processing Industries; PRS.

Inadequate food processing infrastructure

As previously discussed, perishables such as fruits and vegetables are more prone to damages as compared to cereals.  Due to inadequate processing facilities in close proximity, farmers may be unable to hold their produce for a long time.  Hence, they may be forced to sell their produce soon after harvest, irrespective of the prevailing market situations.  Expert committees have recommended that agri-logistics such as cold chain infrastructure and market linkages should be strengthened.

Cold chain infrastructure: Cold chain infrastructure includes processing units, cold storages, and refrigerated vans.  As of 2014, out of a required cold storage capacity of 35 million metric tonnes (MT), almost 90% (31.8 million MT) of the capacity was available (see Table 1).  However, cold storage needs to be coupled with logistical support to facilitate smooth transfer of harvested value from farms to distant locations.  This includes: (i) pack-houses for packaging and preparing fresh produce for long distance transport, (ii) refrigerated transport such as reefer vehicles, and (iii) ripening chambers to ripen raw produce before marketing.  For instance, bananas which are harvested raw may be ripened in these chambers before being marketed.

While there are sufficient cold storages, there are wide gaps in the availability of other associated infrastructure.  This implies that even though almost 90% (32 million tonnes) of cold storage capacity is available, only 15% of the required refrigerated transport exists.  Further, the shortfall in the availability of infrastructure necessary for safe handling of farm produce, like pack-houses and ripening chambers, is over 90%.

Table 1:  Gaps in cold chain infrastructure (2014)

Facility Required Available Gap % gap
Cold storage
(in million MT)

35.1

31.8 3.2

9.3%

Pack-houses

70,080

249 69,831

99.6%

Reefer vehicles

61,826

9,000 52,826

85.4%

Ripening chambers

9,131

812 8,319

91.1%

Source: Standing Committee on Agriculture 2018; PRS.

To minimise post-harvest losses, the Standing Committee (2017) recommended that a country-wide integrated cold chain infrastructure network at block and district levels should be created.  It further recommended that a Cold Chain Coordination and Monitoring Committee should be constituted at the district-level.  The Standing Committee also recommended that farmers need to be trained in value addition activities such as sorting, grading, and pre-cooling harvested produce through facilities such as freezers and ripening chambers.

Between 2008 and 2017, 238 cold chain projects were sanctioned under the Scheme for Integrated Cold Chain and Value Addition Infrastructure.  Grants worth Rs 1,775 crore were approved for these projects.  Of this amount, Rs 964 crore (54%) has been released as of January 2018.  Consequently, out of the total projects sanctioned, 114 (48%) are completed.  The remaining 124 projects are currently under implementation.

Transport Facilities:  Currently, majority of food grains and certain quantities of tea, potato, and onion are transported through railways.  The Committee on Doubling Farmers Income had recommended that railways needs to upgrade its logistics to facilitate the transport of fresh produce directly to export hubs.  This includes creation of adjoining facilities for loading and unloading, and distribution to road transport.

Mega Food Parks: The Mega Food Parks scheme was launched in 2008.  It seeks to facilitate setting up of food processing units.  These units are to be located at a central processing centre with infrastructure required for processing, packaging, quality control labs, and trade facilitation centres.

As of March 2018, out of the 42 projects approved, 10 were operational.  The Standing Committee on Agriculture noted certain reasons for delay in implementation of projects under the scheme.  These include: (i) difficulty in getting loans from banks for the project, (ii) delay in obtaining clearances from the state governments and agencies for roads, power, and water at the project site, (iii) lack of special incentives for setting up food processing units in Mega Food Parks, and (iv) unwillingness of the co-promoters in contributing their share of equity.

Further, the Standing Committee stated that as the scheme requires a minimum area of 50 acres, it does not to promote smaller or individual food processing and preservation units.  It recommended that smaller agro-processing clusters near production areas must be promoted.  The Committee on Doubling Farmers Income recommended establishment of processing and value addition units at strategic places.  This includes rural or production areas for pulses, millets, fruits, vegetables, dairy, fisheries, and poultry in public private-partnership mode.