PROCEDURE FOR INITIATION OF CORPORATE INSOLVENCY RESOLUTION PROCESS BY OPERATIONAL CREDITOR(S)

[Mr. M. GOVINDARAJAN]

Operational creditor

Section 5(20) of the Insolvency and Bankruptcy Code, 2016 (‘Code’ for short) defines the expression ‘operational creditor’ as a person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred.

Operational debt

Section 5(21) of the Code defines the expression ‘operational debt’ as a claim in respect of the provision of goods or services including employment or a debt in respect of the payment of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority.

Initiation date

Initiation date is the date on which an operational creditor makes an application to the Adjudicating Authority for initiating corporate insolvency resolution process.

Initiation of CIRP by Operational Creditor

Section 6 provides that where any corporate debtor commits a default, an operational creditor may initiate corporate insolvency resolution process in respect of such corporate debtor in the manner as provided under Chapter - II of the Code.

Issuing of Demand notice by operational creditor

Section 8(1) of the Code requires an operational creditor may, on the occurrence of a default, deliver a demand notice of unpaid operational debtor copy of an invoice demanding payment of the amount involved in the default to the corporate debtor-

• A demand notice in Form 3;
•  a copy of an invoice attached with a notice in Form 4.

as prescribed in ‘Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules.

The demand notice or the copy of the invoice demanding payment may be delivered to the corporate debtor,-

• at the registered office by hand, registered post or speed post with acknowledgement due; or
• by electronic mail service to a whole time director or designated partner or key managerial personnel, if any, of the corporate debtor.

A copy of demand notice or invoice demanding payment served under this rule by an operational creditor shall also be filed with an information utility, if any.

Reply to demand notice by corporate debtor

Section 8(2) of the Code requires the corporate debtor shall, within a period of 10 days of the receipt of the demand notice or copy of the invoice bring to the notice of the operational creditor-

• existence of a dispute, if any, or and record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such dispute;
• the payment of unpaid operational debt-

• by sending an attested copy of the record of electronic transfer of the unpaid amount from the bank account of the corporate debtor; or
• by sending an attested copy of record that the operational creditor has encashed a cheque issued by the corporate debtor.

Filing of application

Section 9 of the Code provides the procedure for filing application by the Operational Creditor before the Adjudicating Authority for initiation of Corporate of Insolvency Resolution Process.  The procedure is as detailed below-

• After the expiry of the period of 10 days from the date of delivery of the notice or invoice demanding payment section 8(1), if the operational creditor does not receive payment from the corporate debtor or notice of the dispute section 8(2), the operational creditor may file an application before the Adjudicating Authority for initiating a corporate insolvency resolution process in Form 5 as prescribed under ‘Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules.
• The operational creditor shall, along with the application furnish-

• a copy of the invoice demanding payment or demand notice delivered by the operational creditor to the corporate debtor;
• an affidavit to the effect that there is no notice given by the corporate debtor relating to a dispute of the unpaid operational debt;
• a copy of the certificate from the financial institutions maintaining accounts of the operational creditor confirming that there is no payment of an unpaid operational debt by the corporate debtor, if available;
•  a copy of any record with information utility confirming that there is no payment of an unpaid operational debt by the corporate debtor, if available;
• any other proof confirming that there is no payment of an unpaid operational debt by the corporate debtor or such other information, as may be prescribed;
• Regulation 2B provides that the operational creditor shall, along with application under section 9, furnish copies of relevant extracts of Form GSTR-1 and Form GSTR-3B filed under the provisions of the relevant laws relating to Goods and Services Tax and the copy of e-way bill wherever applicable. The provisions of this regulation shall not apply to those operational creditors who do not require registration and to those goods and services which are not covered under any law relating to Goods and Services Tax.
• Regulation 2C provides that operational creditor shall, while filing application under section 9 also furnish details of his/ its-

• Permanent Account Number; and
• Email-ID.

Appointment of Interim Resolution Plan

Section 9(4) of the Code provides that the operational creditor initiating a corporate insolvency resolution process under this section may propose a resolution professional to act as an interim resolution professional.  The resolution professional as proposed, shall be appointed as the interim resolution professional, if no disciplinary proceedings are pending against him.

If no proposal for an interim resolution professional is made, the Adjudicating Authority shall make a reference to the Board for the recommendation of an insolvency professional who may act as an interim resolution professional.  The Board shall, within 10 days of the receipt of a reference from the Adjudicating Authority recommend the name of an insolvency professional to the Adjudicating Authority against whom no disciplinary proceedings are pending.

The term of the interim resolution professional shall continue till the date of appointment of the resolution professional under section 22.

Order of Adjudicating Authority

The Adjudicating Authority shall, within fourteen days of the receipt of the application, by an order-

• admit the application and communicate such decision to the operational creditor and the corporate debtor if,-

• the application made  is complete;
• there is no payment of the unpaid operational debt;
• the invoice or notice for payment to the corporate debtor has been delivered by the operational creditor;
• no notice of dispute has been received by the operational creditor or there is no record of dispute in the information utility; and
• there is no disciplinary proceeding pending against any resolution professional proposed under sub-section (4), if any.

• reject the application and communicate such decision to the operational creditor and the corporate debtor, if-

• the application made is incomplete;
• there has been payment of the unpaid operational debt;
• the creditor has not delivered the invoice or notice for payment to the corporate debtor;
• notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility; or
• any disciplinary proceeding is pending against any proposed resolution professional.

The Adjudicating Authority shall before rejecting an application give a notice to the applicant to rectify the defect in his application within 7 days of the date of receipt of such notice from the Adjudicating Authority.

Insolvency Commencement date

The corporate insolvency resolution process shall commence from the date of admission of the application.