Insolvency & Bankruptcy Services – NCLT Representation in Ahmedabad and Across India

1. Overview

The Code envisages two primary objectives:

• Maximisation of value of assets of the debtor, and
• Balancing the interests of all stakeholders, including creditors, employees, and shareholders.

Applicability and Forum

• Proceedings for corporate insolvency can be initiated by a financial creditor, operational creditor, or the corporate debtor itself under Sections 7, 9, or 10 of the IBC respectively.
• The jurisdiction depends on the registered office of the corporate debtor. For example, matters relating to entities based in Gujarat are heard by NCLT Ahmedabad, while others may fall before benches in Delhi, Mumbai, Chennai, or other notified locations.
• The process is pan-India in scope — procedural rules and substantive provisions remain uniform across all benches.

Process Snapshot

The corporate insolvency resolution process (CIRP) under the IBC typically involves:

• Admission Stage: NCLT determines the existence of default and, if satisfied, admits the petition.
• Appointment of Interim Resolution Professional (IRP): Oversees management of the corporate debtor and forms the Committee of Creditors (CoC).
• Moratorium Period (Section 14): Suspends all pending suits, enforcement of security interest, and recovery proceedings to allow a standstill for resolution.
• Invitation and Evaluation of Resolution Plans: CoC evaluates competing plans to decide on revival through approval of plan or liquidation.
• Liquidation: If no plan is approved within statutory timelines, the debtor goes to liquidation.

Timelines

• The IBC prescribes a statutory period of 180 days, extendable by 90 days, for completion of the CIRP, with a further special extension in certain cases.
• In practice, timelines may vary due to litigation or complex creditor structures, but NCLT closely monitors compliance.

2. Legal Framework & Key Provisions

The Insolvency and Bankruptcy Code, 2016 operates as a complete code in itself for corporate insolvency and liquidation, with the following key features that influence how matters are planned and conducted:

• Section 7: Financial Creditors (banks, NBFCs, bondholders) may initiate proceedings upon proof of default. No prior notice to the debtor is required; the application is directly filed before NCLT
• Section 9: Operational Creditors (suppliers of goods/services, employees) must first serve a demand notice and allow 10 days for the debtor to dispute or pay before approaching NCLT.
• Section 10: Corporate Debtors may voluntarily seek admission into the insolvency process, often as a strategic decision to reorganise debts.

• Upon admission, a moratorium is imposed, prohibiting:
  • Institution or continuation of suits and proceedings,
  • Transfer or disposal of assets,
  • Enforcement of security interests,
  • Recovery of property by owners or lessors
• The moratorium creates breathing space for the debtor and allows creditors to consider revival options without asset-stripping.

• An Interim Resolution Professional (IRP) takes over the management from the board of directors.
• Within 30 days, the IRP forms the Committee of Creditors (CoC), which assumes decision-making authority over the debtor’s affairs.
• The IRP may be replaced by a Resolution Professional (RP), who runs the CIRP until resolution or liquidation.

• Composed solely of financial creditors, the CoC decides on:
  • Approval of resolution plans,
  • Replacement of IRP/RP,
  • Key commercial decisions.
• Approval requires 66% voting share.

• A resolution plan may involve debt restructuring, equity infusion, or sale of assets.
• If no plan is approved within statutory timelines, liquidation is initiated under Chapter III of Part II of the IBC.

• Section 29A: Restricts certain persons (including promoters in default) from submitting resolution plans.
• Section 12A: Allows withdrawal of insolvency proceedings by the applicant even after admission thereof if approved by 90% of the CoC.
• Section 238: Grants IBC overriding effect over other laws, subject to constitutional and public policy limitations.

• Sections 234 and 235 provide for agreements with foreign countries and for Indian courts to issue letters of request to foreign courts/authorities.
• However, India has not yet adopted the UNCITRAL Model Law on Cross-Border Insolvency, and operationalising cross-border proceedings requires case-specific strategies within the current statutory framework.

3. Key Services

• Drafting and issuance of demand notice in statutory Form 3 or Form 4 under Section 8(1) of the IBC.
• Conducting a detailed dispute assessment exercise — recognising that debtors almost invariably raise some form of objection, but evaluating whether such objection qualifies as a “pre-existing dispute” under Mobilox Innovations Pvt. Ltd. v. Kirusa Software Pvt. Ltd. or is merely specious. This approach is based on legal reasoning illustrated in our published Law Guide & Articles.
• Preparing the application with documentary proof of debt and default (invoices, delivery challans, bank statements), and structuring pleadings to pre-empt foreseeable debtor defences.
• Example: A supplier of industrial machinery to a manufacturing unit in Ahmedabad issues a demand notice for ₹1.2 crore in unpaid invoices. The debtor responds with generic “quality issues” without contemporaneous records — assessed as illusory and petition pursued under Section 9.

• Advising on statutory prerequisites and preparing the application in Form 1 with supporting records from the Information Utility (where available) to strengthen the claim.
• Assessing borrower defences based on limitation, debt restructuring agreements, or partial settlements.
• Representation in complex cases involving multiple tranches of lending, inter-creditor disputes, or parallel recovery proceedings under SARFAESI or before DRT (see also related work under Our Services in debt recovery).
• Example: A bank seeks initiation of CIRP for loan default. The borrower claims a debt restructuring MoU extended repayment timelines; however, no formal novation is found. Application proceeds under Section 7 with reliance on IU records.

• Strategic defence assessment to determine if the petition can be resisted at the admission stage.
• Common grounds include:
  • Pre-existing dispute, supported by contemporaneous correspondence, inspection reports, or ongoing litigation/arbitration (see related Arbitration Services for dispute-handling context).
  • Limitation defence, showing the debt is time-barred and no valid acknowledgment revived it.
  • Absence of locus standi, e.g., where the petitioner is not the lawful creditor or lacks due authorisation, whether application is preferred by a ‘person’ as defined under IBC etc.
  • Statutory deficiencies, such as defective demand notice or missing annexures.
• Voluntary CIRP under Section 10 is generally avoided unless statutorily unavoidable due to long-term consequences.
• Example: A software development company produces arbitration pleadings filed months prior to demand notice, demonstrating genuine pre-existing dispute, leading to rejection at admission.

• Advising IRPs/RPs on compliance with IBC, CIRP Regulations, and judicial directions.
• Drafting and defending applications relating to claims, extension of CIRP period, or replacement of RP.
• Representation in challenges to CoC decisions and resolution plan approval.
• Example: An RP faces objections regarding claim classification; representation shows adherence to regulations and precedent, resulting in dismissal of objections.

• Advising on eligibility under Section 29A and conducting due diligence on the debtor’s financial, contractual, and litigation status.
• Drafting resolution plans compliant with Section 30(2) and CIRP Regulations.
• Representation before CoC during plan negotiation and before NCLT for plan approval.
• Example: A resolution applicant proposes revival of a distressed steel manufacturing company via equity infusion and debt restructuring, securing 66% CoC approval and NCLT sanction.

• Advising on voting thresholds (Sections 28, 30, 33) and procedural compliance.
• Drafting/reviewing agendas, minutes, and resolutions to ensure enforceability.
• Assisting in negotiations with resolution applicants to maximise recovery within statutory timelines.
• Example: CoC faces competing resolution plans for an infrastructure company; evaluation is based on Section 30(2) compliance and commercial considerations before voting.

4. Legal Nuances and Special Considerations in Insolvency Matters

Environmental clearances can become critical in insolvency proceedings, particularly for resolution applicants seeking to revive operations in sectors such as manufacturing, infrastructure, or mining. A project lacking valid environmental permissions may face operational delays, cost escalations, or outright regulatory stoppages — factors that can materially affect the viability of a resolution plan.

Labour and employee claims hold a unique position under the Insolvency and Bankruptcy Code, 2016. Such claims rank high in the waterfall mechanism for distribution under Section 53 in liquidation and must be addressed within any resolution plan approved under Section 30. For a resolution applicant, this means factoring wage arrears, retrenchment benefits, or provident fund dues into the plan’s financial structure. For employees, unions, or workmen representatives, it means ensuring that their admitted claims are recognised and prioritised in accordance with the Code. Our role may involve advising either category, depending on the engagement, ensuring compliance with statutory priorities and avoiding post-approval disputes.

4.3 Preservation and Treatment of Intellectual Property (IP)

Intellectual property, such as trademarks, patents, and proprietary technology, often forms a substantial portion of a distressed company’s value. Under CIRP, the resolution professional (RP) is tasked with preserving the company as a “going concern” under Section 20 of the Code. This includes ensuring that IP registrations are maintained, renewal fees are paid, and enforcement actions for infringement continue where necessary. For resolution applicants, this may involve incorporating IP protection strategies into the resolution plan to maintain competitive advantage post-acquisition.

In liquidation, IP may be sold as part of the asset pool under Regulation 32 of the Liquidation Process Regulations, provided it is transferable and not inextricably tied to personal skill or restricted by contract. Buyers of such IP may include industry competitors or investors looking for technology-driven assets. We advise stakeholders — whether RP, RA, or purchaser — on the legal, contractual, and regulatory considerations involved in such transactions.

4.8 Foreign Creditors and Cross-Border Insolvency Considerations

While India has yet to adopt a comprehensive cross-border insolvency framework (such as the UNCITRAL Model Law), the IBC does permit foreign creditors — financial or operational — to initiate proceedings against Indian corporate debtors, provided their claims are supported by the documentary evidence prescribed under the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. Such documents may include invoices, contracts, or other proof of default; they need not necessarily be based on a court decree or arbitral award.

However, where a foreign creditor seeks to rely on a decree from a non-reciprocating territory (as defined under Section 44A of the CPC), that decree cannot be executed directly in India. It can only form the basis of a fresh suit, which may not be efficient in the insolvency context. In such cases, unless the underlying contract or payment default can be evidenced through documents meeting IBC Rule requirements, the creditor may face limitations in directly filing under Sections 7 or 9.

Foreign creditors must also comply with procedural requirements, such as providing a local address for service and, where necessary, executing powers of attorney or authorisations in accordance with Indian law. This is an area where close coordination between international counsel and Indian insolvency lawyers is critical.

5. Industries and Transactions Covered

Insolvency and restructuring matters under the IBC cut across sectors, and each industry presents its own legal and commercial challenges. The following illustrations reflect scenarios where CIRP or liquidation may interact with sector-specific regulations or contractual frameworks. Where legal positions are not entirely settled, it is indicated accordingly.

5.1 Manufacturing and Supply Contracts

Where the corporate debtor has pending supply obligations—especially under government or strategic procurement contracts—the Resolution Professional (RP) may, during CIRP, seek interim directions from the NCLT to preserve the contract and prevent termination due to insolvency. Ultimately, the Resolution Applicant (RA) may include continuation or assignment of such contracts as a relief sought in the resolution plan. Unlike certain statutory licences, such contracts may be continued if NCLT deems it essential for value maximisation.

5.2 Infrastructure and Highway Development

For highway or large infrastructure projects, continuity of concession agreements and maintenance obligations is critical. Interim applications are typically moved by the RP to maintain project viability; final reliefs for continuation or restructuring of such agreements are addressed by the RA in the resolution plan. The law is still evolving on the scope of NCLT’s powers to grant such reliefs vis-à-vis government or statutory contracts.

5.3 Environmental Clearances and Regulatory Licences

For highway or large infrastructure projects, continuity of concession agreements and maintenance obligations is critical. Interim applications are typically moved by the RP to maintain project viability; final reliefs for continuation or restructuring of such agreements are addressed by the RA in the resolution plan. The law is still evolving on the scope of NCLT’s powers to grant such reliefs vis-à-vis government or statutory contracts.

5.4 Financial Service Providers (FSPs)

Under current IBC provisions, corporate insolvency proceedings against notified FSPs are subject to a special framework prescribed by the Central Government. This does not restrict FSPs themselves—such as NBFCs or housing finance companies—from initiating proceedings as creditors under section 7 of the IBC. However, proceedings against FSPs require adherence to the specific FSP Rules.

5.5 Intellectual Property (IP) in CIRP

IP assets—patents, trademarks, copyrights—can be preserved during CIRP and transferred under the resolution plan. The RP may take interim measures to safeguard IP from lapse (such as renewing registrations), while the RA may propose acquisition, licensing, or monetisation strategies. In liquidation, IP can be sold as part of the asset sale process if it is transferable under applicable IP law.

5.6 Public-Private Partnership (PPP) and Concession Projects

For PPP models—such as metro rail, port development, or special economic zones—continuation of concession agreements often requires consent from the public authority. The RP may seek interim relief to maintain project status quo, and the RA may seek such continuation as part of the final plan. While NCLT has in some cases granted interim protection, its authority to compel a public authority to continue a concession post-resolution remains open to legal debate.

5.7 Cross-Border Creditors and International Aspects

Foreign creditors can initiate insolvency proceedings in India if they meet the definition of “financial” or “operational” creditor under the IBC and hold evidence of debt in the prescribed form (such as contracts, invoices, or awards). A foreign decree from a non-reciprocating territory under the CPC is not directly enforceable in India; it can only serve as a cause of action for a fresh suit and does not by itself satisfy the IBC’s evidentiary requirements. In such cases, the creditor would need alternative documentary proof as specified under the IBC and its rules. Cross-border insolvency recognition in India is still at a developing stage, as the UNCITRAL Model Law has not yet been formally adopted