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Editorial

Published on: Jan. 14, 2021, 2:24 p.m.
Resolving mounting stressed assets
  • Illustration: Panju Ganguli

By Business India Editorial

When an individual fall sick, the home physician is the first port of call. And only when the sickness becomes serious is he rushed to the hospital and in some extreme cases, surgery is done. Likewise, in corporate sickness, the government has, over the years, tried various methods to try and revive companies and nurse them back to health. It is an ongoing process with new techniques in medical science and methods being introduced continuously. 

 The Sick Industrial Companies Act of 1985 (SICA) was enacted in 1985 to determine early signs of sickness in a loss-making company which had seen erosion in net worth by more than 50 per cent. This was followed by the setting up of The Board for Industrial Financial Reconstruction in 1987. The aim of BIFR was to revive sick and loss-making companies and give them a chance to recover. 

SICA and BIRF were repealed in late 2016. One of the reasons was the lengthy time taken in resolving the issues and the pile-up of cases under SICA. The earlier act was repealed by setting up the National Company Law Tribunal (NCLT) and National Company Appellate Tribunal under the Company Act 2013. The earlier objectives of the bodies were to hear matters of M&A, amalgamation and revival and rehabilitation of companies. The scope was further widened by the enactment of the Insolvency and Bankruptcy Code 2016, prescribing any corporate insolvency matter to be initiated under NCLT.

The pandemic-like rise in non-performing assets in the banking sector saw RBI directing banks to take action against big defaulters who were not able to meet their commitment and have defaulted. Corporate restricting and rehabilitation were the principle while maximisation of value for financial creditors in the case of insolvency was the embedded object. NCLT did resolve some large cases referred to it by effecting changes in the management and banks taking steep cuts in their secured debts. Without going into the success or failure of NCLT (this is a matter of debate at a later stage) the fact remains that the NCLT is bogged down heavily with unresolved cases. 

To expedite resolution of cases under the NCLT, there are two suggestions being currently widely discussed. One is to allow prepack process in resolving cases with the prior consent of the NCLT. This requires the approval of more than 50 per cent of creditors, shareholders and debtors. The MS Sahoo Committee set up under the Insolvency and Bankruptcy Board of India has already sent a report and this is under consideration of the government.

Prepack essentially allows promoters to ink agreements with the creditors and sort out the issues and nurse the company back to health to enable creditors to get a reasonably good value and certainly more than if the case was referred to NCLT and sent to liquidation. Prepack, in a way, is similar to SICA and BIFR, which was in practice earlier. In the US also, prior to a company being referred to for protection under Chapter 11, such a pre-negotiated led revival is in vogue. Some other countries also have prepack initiatives.

During the pandemic several businesses have been impacted through no fault of the promoters. And once these cases are allowed to be referred to NCLT post the temporary reprieve given by the government, pre-packaged initiatives may be given a chance.

The second suggestion is to allow promoters of defaulting companies to participate in the bidding process. Leaving aside moralistic considerations promoters who know the intrinsic value of their assets would, with the help of private equity or others, help in maximising the value of the assets in NCLT. One could if required, debar wilful promoters from taking part in the bidding process.  Having a swiss challenge which may entail multiple rounds of bidding during a specified period, will also help in getting better value for the assets.

Instead of stopping at the final bid, other participants are allowed to bid for the distressed assets and this will allow better price discovery. It will also act against any unholy alliances being struck between the creditors and the promoters/bidders. Putting up a time limit will see the asset sale happening with a limited period and may also minimise the final bids being challenged in the various courts. 

While this form of the swiss challenge route is largely used in public private participation projects of the government, this form of bidding can be used in NCLT too, especially when stressed assets are put in for liquidation. Necessary changes to the Act may be required but both suggestions merit serious consideration by the government.

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