EMPANELMENT OF ADVOCATES BY INSOLVENCY AND BANKRUPTCY BOARD OF INDIA

[Mr. M. GOVINDARAJAN]

Introduction

The Insolvency and Bankruptcy Board (‘Board’ for short) is the Authority in the matter of insolvency resolution process.  The Insolvency and Bankruptcy Code provides the procedure for corporate insolvency resolution process.  The Adjudicating Authority is to order for the resolution process and monitor the entire process.   In such cases the Board will not be involved.   In some cases the Board is made a party or in some cases the Board itself takes interest.  Therefore the Board decided to have a panel of Advocates to represent it before the judicial forum. The Board framed ‘The Guidelines for Empanelment of Advocates by the Insolvency and Bankruptcy Board of India’. 

Applicability of guidelines

These Guidelines shall apply in relation to empanelment of advocates to represent and appear for and on behalf of the Insolvency and Bankruptcy Board of India in matters arising out of the Insolvency and Bankruptcy Code, 2016, the rules, regulations, guidelines, circulars, orders issued there under or any other law for the time being in force in which the Board is interested in or is made a party to any case or matter or in relation to rendering legal advice or providing legal support or defending the Board, in any case or matter generally or specifically arising out of any question of law or fact, in any Court in India.

Panel of Advocates

The Board shall prepare two types of panels-

• Senior panel of Advocates; and
• Junior penal of Advocates.

There is no fixed number of Advocates to be kept in the panel.  The strength may be decided according to the requirements and quantum of cases.

If the services of the panel of Advocates approved by the Ministry of Law are utilized by the Board then they are deemed to be in the panel maintained by the Board.  Where required and considered appropriate by the competent authority, the Attorney General for India, Solicitor-General, Additional Solicitor General, Assistant Solicitor General, Advocate General, designated senior advocate or any other advocate for the time being empanelled or engaged by the Central or a State Government, as the case may be, or by any authority constituted or established by a statutory body, may be engaged by the competent authority to argue or conduct a case or matter on behalf of the Board, keeping in view the urgency and importance of a particular matter, and the empanelled advocate shall conduct any case or matter in any Court in consultation, coordination and cooperation with the said law officers.

Qualifications

• An advocate to be eligible for empanelment in the senior panel shall have active practice in the respective Courts for at least fifteen years at the bar.
• An advocate to be eligible for empanelment in the junior panel shall have active practice in the respective Court for at least five years at the bar.

Disqualifications

A person shall be disqualified for apply to be an empanelled advocate, if he-

• is an undischarged bankrupt;
• is physically or mentally incapable of acting as an advocate;
• has been convicted of an offence, which in the opinion of the competent authority involves moral turpitude;
• has any conflict of interest;
• has been subject to any professional disqualification by the Bar Council;
• has, so abused his position as an advocate as to render his empanelment or continuation in the panel detrimental to the interests of the Board.

Selection of Advocates

An Empanelment Committee, constituted for this purpose shall select the Advocates in the panel.  The said Committee consists of  the following officers of the Board-

• Executive Director (Law);
• Chief General Manager; and
• Deputy General Manager(Law)/Assistant General Manager (Law).

The Committee shall consider the following criteria in selection of Advocates-

• experience;
• length of practice;
• specialization, if any, in the area of insolvency and bankruptcy of corporate persons and individuals;
• nature of cases dealt with or being dealt with by the Advocate;
• two preceding annual income tax returns;
• track record and integrity.

For considering empanelment for the Supreme Court, generally an advocate who is regularly practising in the Court including Advocate-on-Record shall be considered, if he is otherwise found to be competent and suitable by the competent authority.

The Committee may cause necessary inquiries with the Bar Council or Bar Association or about the claim of conduct and antecedent of the Advocate.  The Advocate may be required to produce self attested copies of the required documents before the Committee.  After satisfying the suitability for empanelment, the committee may approve the name of advocate for empanelment with Board.

Terms of employment

The terms and conditions of empanelment of advocate with the Board shall be complied with by empanelled advocate.

Payment of fees

There are five types of fees payable by the Board to the Advocates as detailed below-

• Fee for Attorney General/Solicitor General/Additional Solicitor General/ Senior Designated Advocates;
• Fee for Senior Panel of Advocates;
• Fee for Junior Panel of Advocates;
• Fee for legal opinion;
• Outstation charges.

Fees payable to Attorney General Category

The following type of fees is eligible for Attorney General, Solicitor General, Additional Solicitor General and Senior Designated Advocates-

• Effective hearing-

• Before Supreme Court – ₹ 2 lakhs;
• Before High Court – ₹ 1.75 lakhs;

• Non effective hearing/appearance-

• Before Supreme Court – ₹ 50,000/-;
• Before High Court – ₹ 30,000/-

• Conference fee-

• Supreme Court cases – Not more than ₹ 40,000/- per conference;
• High Court cases – Not more than ₹ 30,000/- per conference.

• Clerkage.

• Up to 10% of the fee.

Fee payable to Senior panel of Advocates

The following type of fees is eligible for Senior Panel of Advocates-

• Effective hearing/argument-

• Before Supreme Court – Upto ₹ 50,000/-;
• Before High Court – Up to ₹ 40,000/-;
• Before NCLAT – Up to ₹ 30,000/-
• Before NCLT – Upto ₹ 25,000/-
• Before Special Court – Up to ₹ 20,000/-

• Conference fee-

• For Supreme Court cases – Up to ₹ 20,000/-
• For High Court cases –Up to ₹ 20,000/-
• For NCLAT cases – Up to ₹ 15,000/-
• For NCLT cases – Up to ₹ 10,000/-
• For Special Court cases – Up to ₹ 5,000/-

• Drafting/Vetting charges-

• For Supreme Court cases – Up to ₹ 40,000/-
• For High Court cases –Up to ₹ 30,000/-
• For NCLAT cases – Up to ₹ 25,000/-
• For NCLT cases – Up to ₹ 20,000/-
• For Special Court cases – Up to ₹ 10,000/-

• Drafting/vetting of reply affidavit/counter-

• For Supreme Court cases – Up to ₹ 25,000/-
• For High Court cases –Up to ₹ 20,000/-
• For NCLAT cases – Up to ₹ 15,000/-
• For NCLT cases – Up to ₹ 10,000/-
• For Special Court cases – Up to ₹ 5,000/-

• Misc. application/Misc. counter etc.,

• For Supreme Court cases – Up to ₹ 25,000/-
• For High Court cases –Up to ₹ 20,000/-
• For NCLAT cases – Up to ₹ 15,000/-
• For NCLT cases – Up to ₹ 10,000/-
• For Special Court cases – Up to ₹ 5,000/-

• Clerkage-

• 10% of fee;

Fee payable to junior panel of Advocates

The following type of fees is eligible for Junior Panel of Advocates-

• Effective hearing/argument-

• Before Supreme Court – Upto ₹ 40,000/-;
• Before High Court – Up to ₹ 35,000/-;
• Before NCLAT – Up to ₹ 30,000/-
• Before NCLT – Upto ₹ 20,000/-
• Before Special Court – Up to ₹ 20,000/-

• Conference fee-

• For Supreme Court cases – Up to ₹ 15,000/-
• For High Court cases –Up to ₹ 10,000/-
• For NCLAT cases – Up to ₹ 10,000/-
• For NCLT cases – Up to ₹ 10,000/-
• For Special Court cases – Up to ₹ 5,000/-

• Drafting/Vetting charges-

• For Supreme Court cases – Up to ₹ 30,000/-
• For High Court cases –Up to ₹ 25,000/-
• For NCLAT cases – Up to ₹ 20,000/-
• For NCLT cases – Up to ₹ 15,000/-
• For Special Court cases – Up to ₹ 10,000/-

• Drafting/vetting of reply affidavit/counter-

• For Supreme Court cases – Up to ₹ 20,000/-
• For High Court cases –Up to ₹ 15,000/-
• For NCLAT cases – Up to ₹ 10,000/-
• For NCLT cases – Up to ₹ 10,000/-
• For Special Court cases – Up to ₹ 5,000/-

• Misc. application/Misc. counter etc.,

• For Supreme Court cases – Up to ₹ 20,000/-
• For High Court cases –Up to ₹ 15,000/-
• For NCLAT cases – Up to ₹ 15,000/-
• For NCLT cases – Up to ₹ 10,000/-
• For Special Court cases – Up to ₹ 5,000/-

• Clerkage-

• 10% of fee;

Fee for legal opinion

For seeking written legal opinion on various issues related to the Board, including disciplinary matters related to employees and members of the Board an amount of ₹ 10,000/- will be paid for each of the opinion in addition to typing charges on ad-hoc basis. In exceptional cases, the fee for providing legal opinion shall be on the mutually agreed professional charges with the approval of the competent authority.

Outstation charges

The outstation charges are payable on the conveyance and accommodation.  The said charges in respect of Senior panel of Advocates and above are paid as detailed below-

• Accommodation-

• Metro cities –Rs.25,000/- per day;
• Non metro cities – ₹ 20,000/- per day.

• Conveyance-

• By air – Business/Executive;
• By train – I Class A/C;
• By Taxi –Air conditioned cab.

The said charges in respect of junior panel of Advance are paid as detailed below-

• Accommodation-

• Metro cities –Rs.15,000/- per day;
• Non metro cities – ₹ 10,000/- per day.

• Conveyance-

• By air – Economy class;
• By train – Two tier A/C;
• By Taxi –Air conditioned cab.

No fee shall be payable to the empanelled advocate if case is adjourned without hearing.

     The competent authority shall process payment of bill within a period of one month from the date of submission if the claim is complete in all respects.  The payments shall be subject to tax deduction at source, goods and service tax or such other taxes as applicable from time to time.

Review

The empanelment committee shall review the performance of empanelled advocate regarding conduct of any case or matter pertaining to the Board every six months and where committee believes that the performance of empanelled advocate is not satisfactory, his name may be removed from the panel for reasons to be recorded in writing by the competent authority.

Removal from empanelment

An empanelled advocate may be removed or suspended from the panel by the Board if the said Advocate has committed or attempted to commit any of the following acts-

• failing to attend the hearing of the case without sufficient reason and without prior intimation to the competent authority;
• handing over the case or matter to another advocate without prior written permission of the competent authority;
• not acting as per the instructions or acting against any general or specific instructions of the competent authority;
• not returning the brief or matter or no-objection when demanded by the competent authority or not allowing or evading to allow the inspection of case records on demand;
• misappropriation of any money or property of the Board or earmarking or using or appropriating the same towards his fees without the permission of the Board;
• threatening, intimidating, abusing any employee, officer or representative of the Board or in any manner misbehaving with him;
• making or allowing any of his associates or juniors to appear on behalf of any opposite party in any case or matter against the interests of the Board;
• committing an act that tantamount to contempt of court or professional misconduct;
• arrest or detention or disbarment by the Bar Council;
• directly or indirectly passing on any secret or other information relating to the Board or any case or matter to the opposite party or the opposite or other advocate which causes or likely to cause damage to the Board’s interests;
• giving false or misleading information to the Board or to any officer or employee or representative of the Board relating to the proceedings of the case or matter;
• not objecting the adjournment moved by any party to a case or matter without any sufficient reason;
• if at any time during the period of empanelment the empanelled advocate has engaged in any fraudulent activities, misrepresentation , misappropriation etc.; or
• violating any of the provisions contained in paragraphs 8, 9 or 10 of these Guidelines.

Termination

• The empanelled advocate shall be at liberty to terminate the empanelment by giving at least one months’ notice in writing to the Board.
• Within the notice period every case file and every other document relating to the case or matter entrusted to him shall be returned to the competent authority or any officer or representative authorized by him.
• The competent authority or the Board reserves the right to terminate the empanelment by giving notice to the empanelled advocate at any time he fails to discharge his obligation under these Guidelines or is found to be negligent, careless, inefficient or has committed fraud, mischief, misappropriation or any misconduct to the satisfaction of the competent authority or the Board, as the case may be.
• Any pending or unresolved operational issues, performance, unpaid fees or any other remedy to the empanelled advocate may be settled or resolved even after the advocate is removed or his empanelment is terminated.

Right to practice

An empanelled advocate shall have the right to represent for and on behalf of any other client in any case or matter, which shall not, however, interfere with or be in conflict with the efficient discharge of his professional duties towards the Board or any of its officers or employees.

An empanelled advocate shall not advise any party or accept any case or matter against the Board, any member or its officers or employees, or any case or matter in which he has appeared or is likely to be called upon to appear or advise, in which event he shall be liable to be removed from the panel.

If the empanelled advocate, at any relevant period, is a partner of a firm of lawyers or solicitors, which takes up or advises a person or a party who is or is likely to be moving against the interests of the Board, it shall be incumbent upon the empanelled advocate to disclose the same and a decision to withdraw a case or matter from such empanelled advocate shall be taken by the competent authority; however, non-disclosure of such information shall liable the empanelled advocate to be removed from the panel.

The empanelled advocate shall not take up any case or matter or advice any person or party against the interests of the Board, the Central or a State Government, any public sector bank or any authority, constituted or established under any Central or State law, which in the opinion of the competent authority, amounts to conflict of interest, prejudice or bias affecting the case or matter entrusted to him or advice sought by the Board from him.