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                           Insolvency’s Group Tangle











         T        he Insolvency and Bankruptcy Code (IBC) has been  through judicial orders, without explicit provisions within the

                  around for nearly seven years, and in these seven
                                                             Code. "While group insolvency is a critical requirement in
                  years, it has been amended six times. However,
                                                             many cases, mandating substantive consolidation under the
                  it is yet to address a significant concern: group
                                                             structures and financing across each company within a
         insolvencies.                                       Code might not be prudent due to varying ownership
                                                             group," he explains.
         While the IBC lags in accommodating the consolidation of
         resolution processes for group companies, courts have  Interlinked, interdependent
         frequently intervened to take up group insolvency matters.
                                                             On January 8, 2019, the National Company Lay Tribunal
                                                             (NCLT) Mumbai had, for the first time, recognised the
         The absence of a dedicated provision for group insolvency
                                                             principle of “consolidation”, drawing from legal precedents
         within  the  IBC  has  led  to  notable  cases  of  judicial
                                                             in the UK and USA, to consolidate 13 out of 15 corporate
         consolidation. Among these are the consolidation of 13
                                                             insolvency resolution processes of Videocon Industries Ltd.
         Videocon group companies, Lavasa corporation and its  group companies.
         subsidiaries, and the procedural consolidation of Srei
         Equipment Finance and Srei Infra Finance Ltd.
                                                             "The  NCLT  recognised the interlinked operations  and
                                                             financial interdependencies within corporate groups," says
         There was also the case where, to benefit homebuyers, the
                                                             Sonam  Chandwani,  Managing  Partner,  KS  Legal  and
         National Company Law Appellate Tribunal merged the
                                                             Associates. This approach, she adds, enabled a holistic and
         insolvencies of five Edelweiss Asset Reconstruction Company  efficient resolution process, considering the interconnected
         Ltd entities developing a common township.
                                                             assets and liabilities, leading to potentially higher recoveries
                                                             and more viable resolution plans.
         "In commercial matters, the law serves as a roadmap for
         transactions," says MS Sahoo, distinguished professor at the
         National Law University Delhi.

         "The corporate insolvency resolution process, initially
         outlined by the IBC, is one such route." Another avenue,
         prepackaged insolvency resolution, was introduced through
         an amendment to the IBC, he explains. "Group insolvency
         resolution," Sahoo adds, "represents yet another guided
         pathway that requires legal provision. Courts, however, lack
         the capacity to lay such a path."

         Anoop Rawat, partner at the law firm Shardul Amarchand
         Mangaldas & Co, adds that consolidation has so far arisen

            48 | 2024 | FEBRUARY                                                           | BANKING FINANCE
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