“INSOLVENCY BANKRUPTCY LAW IN INDIA AND UK: A

COMPARATIVE ANALYSIS ”

Submitted By: Submitted To: Prof. Sanchita Tiwari

Name: Ankita Toppo Faculty of Law
Roll no.: 732 Sec: ‘A’ NUSRL, Ranchi

Semester: IX (B.A LLB)

NATIONAL UNIVERSITY OF STUDY AND

RESEARCH IN LAW, RANCHI
834006

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 TABLE OF CONTENT

SR NO. TOPIC PAGE NO.

INTRODUCTION 3-4
1.

OVERVIEW OF INSOLVENCY AND 5-7

2.
BANKRUPTCY CODE IN INDIA

ANALYSIS OF INSOLVENCY 8-13

3.
BANKRUPTCY BETWEEN INDIA AND
UNITED KINGDOM
CHART ANALYSIS 14
4.

CONCLUSION 15
5.

REFERENCES 16
6.

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 1. INTRODUCTION
The insolvency and bankruptcy code 2016 , implements in the phases since 5th august 2016 was
enacted to overhaul the outdated and complex corporate insolvency laws in India to address an
economy-wide problem of bad loan, with its resulting impact on the banking and access to credit.
To regain the confidence of the creditors and to promote entrepreneurship, availability of credit,
and balance the interests of all stakeholders for maximization of value of assets, the new Code
was introduced. The new Code consolidated the laws relating to insolvency and restructuring of
corporations, individuals and partnerships. The Government has the view that such consolidation
would aid great clarity in debt default laws and would facilitate the application of consistent and
coherent provisions to different stakeholders affected by business failure or inability to pay debt.

One of the usual question that arises in our minds is how in the Indian IBC 2016 compared to
other Insolvency codes practiced internationally. Since internationally insolvency and bankruptcy
laws have been in place for a long time and have dealt with several cases a look into their laws
may give some more insight. As we know IBC 2016 and is therefore, young and evolving. It
should be really appreciated how proactively and speedily the regulator is reacting to every
emerging situation by bringing rules and regulations to deal with various situation appropriately.

According to World Bank Doing Business Report, 20191 which asses economies on eleven
parameters2, it takes an average of 1.6 years for insolvency resolution of a company in India,
whereas it is 1.0 years in UK. Also, recovery rate in India is 71.6% lower than other countries in
comparison.

At this juncture it is pertinent to examine the practice in other jurisdictions for some guidance in
bringing about a reform in Indian Insolvency regime. The reason for selecting the comparison of
Insolvency laws between India and UK is that as per rankings of World Bank, India ranks at 52
in its insolvency resolution, while UK ranks 14 . Hence despite India’s ranking is improving but
there is still a long way to go for India in terms of bankruptcy laws in comparison with these
developed countries such as the UK.

The research paper focus on the aspect of insolvency and bankruptcy code practical
implementation in India. Several years passed since the legislation come into implementation.

1
https://www.ibbi.gov.in/legal-framework/act
2
Eleven parameters used by World bank to assess Ease of Doing Business: starting a business, dealing with
construction permits, getting electricity, registering property, getting credit, protecting minority investors, paying
taxes, trading crossborders, labour market regulations, enforcing contracts and resolving insolvency.
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This researcher paper seeks to analyse the comparison of Insolvency law and its legal procedure
in India from other country that is United Kingdom.

Insolvency occurs when an individual, company, or other organization cannot meet its financial
obligations for paying debts as they become due. Bankruptcy is not exactly the same as
insolvency. Bankruptcy is a determination of insolvency made by a court of law with resulting
legal orders intended to resolve the insolvency. Insolvency describes a situation where the debtor
is unable to meet his/her obligations. Bankruptcy is a legal scheme in which an insolvent debtor
seeks relief. The Companies Act, 2013 and the Insolvency and Bankruptcy Code, 2016 includes
provision for determination of sickness, application for revival, appointment of interim/Company
administrator, time bound revival process and if revival not possible, liquidation process through
single regulator National Company Law Tribunal.

The objective of the Insolvency and Bankruptcy Code is to consolidate and amend the laws
relating to reorganization and insolvency resolution of corporate persons, partnership firms and
individuals in a time bound manner. An effective legal framework for timely resolution of
insolvency and bankruptcy will not only encourage entrepreneurship but will also improve Ease
of Doing Business, and facilitate more investments leading to higher economic growth and
development.

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 2. OVERVIEW OF INSOLVENCY AND BANKRUPTCY CODE IN INDIA

HISTORY

Before the enactment of the Insolvency and Bankruptcy Code, there was no single law in the
country to deal with insolvency and bankruptcy. There were multiple overlapping laws and
adjudicating forums dealing with financial failure and insolvency of companies and individuals
in India. The framework for insolvency and bankruptcy was inadequate, ineffective and resulted
in undue delays in resolution3. The legal and institutional framework did not aid lenders in
effective and timely recovery or restructuring of defaulted assets and causes undue strain on the
Indian credit system.4

The new Code of 2016 repeals the “Presidency Towns Insolvency Act, 1909”, and "Provincial
Insolvency Act, 1920”, as well as amends certain laws, including: “Indian Partnership Act
1932”, “The Companies Act 2013”, “Securitization and Reconstruction of Financial Assets
and Enforcement of Security Interest Act 2002”, “Sick Industrial Companies (Special
Provisions) Repeal Act 2003”. To avoid any further litigation in bankruptcy proceedings, the
Code provides that it will have superseding effect over all other laws. It is specifically provided
that civil courts or authority not to have authority and also cannot grant any injunction. The IBC
as a new law, substituting over a dozen laws, when applied post the infrastructure being put in
place, will show to be the most important step in evolving the regimen of recovery of bad debts.
The Code has sought to balance the interest of all the concerned parties including alteration in
the order of priority of payment of Government dues. It amalgamates various laws relating to
the insolvency resolution of business firms. It lays down clear-cut and faster insolvency
proceedings to help creditors, such as banks, recover dues and prevent bad loans, a key drag on
the economy.

LEGAL FRAMEWORK IN INDIA:

The government introduced the Insolvency and Bankruptcy Code (Amendment Bill), 2021(July)
in the Lok Sabha. The Bill is set to replace the Insolvency and Bankruptcy Code Amendment
Ordinance 2021 promulgated in April 2021.

3
Michelle Schreiber, Beyond the Economic Turmoil of the Asian Financial Crisis: Indonesia's Struggle to Cope
with Insolvency, 12 Transnat'l Law. 353 (1999)
4
Indrajit Mallick, Economic Analysis of Corporate Bankruptcy Law Reform In Indiaî, WB NUJS Working Paper
Series No. 7, SEBL, March, 2004
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Major key highlight changes introduced by the code5 are:

• Pre-packaged Insolvency Resolution Process6 (PIRP) as a method of tackling enterprises

in duress, effectively serving as an alternative to the ‘Corporate Insolvency Resolution
Process' [“CIRP”]. Distressed Corporate Debtors (CDs) are permitted to initiate a PIRP
with the approval of two-thirds of their creditors to resolve their outstanding debt under
the new mechanism.

• The PIRP also allows for a Swiss challenge7 to the resolution plan submitted by a CD in
case operational creditors are not paid 100 % of their outstanding dues.

• Corporate debtor is a person who is a corporate person who owes debt to any other person.

• The Code stipulates a total of 330 days for the successful completion of CIRP. In contrast,
a pre-packed process serves up noticeably more informal and malleable ways of resolving
insolvency. The far lesser duration of 120 days makes PIRP a viable alternative.
However, there are certain benefits of the Pre-Pack’s Benefits they are as under:
a. Quick Resolution - The statutorily mandated period of 120 days ensures that the corporate
debtor's value is not eroded. In the UK, such processes have been completed in a matter of
hours.8
b. Cost Effectiveness - As the debtor continues with its own management, it averts any
disruption in business. The employments are not interrupted. Further, as the RP does not
run the business as a going concern, further costs are saved. It prevents indirect costs from
stigma and loss of reputation.
c. Value Boosting - A distressed asset has a life cycle and with an increased duration, it only
worsens. It is further adversely affected by an increase in direct or indirect costs. Thus, the
PIRP maintains value to a large extent by speeding the process and reducing costs. The
effect is felt more in the case of MSMEs.
d. Employment Preservation - The requirement of a base plan much before insolvency
commencement facilitates a smooth continuation of employment without any
interruptions. This transition may be contrasted with the CIRP which is fraught with risks.

5
Chandrashekaran Upasana, 2021, “India: The Insolvency And Bankruptcy Code (Amendment) Act, 2021” last
accessed on 29thoctober 2021. https://www.mondaq.com/india/insolvencybankruptcy/1111036/the-insolvency-
and-bankruptcy-code-amendment-act-2021.
6
A pre-pack is the resolution of the debt of a distressed company through an agreement between secured creditors
and investors instead of a public bidding process.
7
A Swiss Challenge is a method of bidding, often used in public projects, in which an interested party initiates a
proposal for a contract or the bid for a project.
8
Jo Windsor & Rebecca Jarvis, A guide to “Pre-Pack” Sales (May 2011), Linklaters, ＜
https://www.linklaters.com/pdfs/mkt/london/A13446736.pdf＞ (last visited october 21, 2021)
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 e. Judicial Convenience - Given the largely consensual and flexible nature of the process,
there is far lesser time and effort spent before the adjudicating authority. It thrives on
minimal interference.

Under the IBC, 2016, the resolution process can be initiated by any financial or operational
creditor, as well as the Debtor itself. The Debtor while filing an application has to file the consent
of the Board of Directors. There are two processes provided under this code which are:

(a) Corporate Insolvency Resolution Process: In which financial creditors are required to assess
the worthiness of the business as to whether a business can be revived or not.
(b) Liquidation: If the insolvency resolution process fails, then the creditors decide on selling the
assets of the company to recover their share of dues. The value of default should be more than
1Lakh ru

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 3. ANALYSIS OF INSOLVENCY BANKRUPTCY BETWEEN INDIA AND UNITED

KINGDOM

The UK regime has influences in formulating the Insolvency and Bankruptcy Code in India,
but the Bankruptcy Law Reforms Committee has made commendable efforts in customizing it
to Indian Scenario. The move is expected to help India move up from its current rank of 130 in
the World Bank’s ease of doing business index. The fact is well known that India has recently
adopted its new insolvency law , hence, there are certain countries that have played a vital role
in laying down or influence us for a formulating laws for the recognition of the rights of its
debtors and creditors and the functioning of the insolvency in the country. Some of which are
as under:

• Control:- Under the old laws and acts, the debtors had the upper hand to control the
insolvency process. The new law has made a remarkable effort to switch the debtor in
possession regime to a creditor in control. As per the new Code, now a creditor or group
of creditors can initiate the insolvency process by filing an application to the
Adjudicating Authority when a borrower is in default. However, the legalisation vested
with the debtors has not been lifted, a borrower or debtor can still initiate the process
by filing an application in the respective authority. The regime was adopted from the
UK laws which is considered to be the most internationally recognized system.

• Freeze: During the insolvency process, when the creditor action has stayed, the
Adjudicating Authority on the recommendation of the Resolution Professional can
grant Moratorium. As per the Code, during the period of Moratorium, no suits can be
instituted or recovery action can be initiated.

• Professionals: The appointment of a licensed professional is another key aspect

adopted from the UK regime. As per the new code, the consortiums of creditors on
regulatory clearances appoints an interim Insolvency professional to oversee the
insolvency process. Three sets of Resolution Professionals are sought to be appointed
– Interim Resolution Professional, Final Resolution Professional and the Liquidator.
Under the oversight of the Board, the Insolvency Professional will develop professional
standards, codes of ethics and exercise a disciplinary role till the end of the process.
Insolvency professionals would handle the commercial aspects of insolvency resolution

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 process. Insolvency professional agencies will develop professional standards, code of
ethics and be the first level regulator for insolvency professionals members leading to
the development of a competitive industry for such professionals.

• Priority: The new Code adopted distribution of payments in priority as outlined in UK

regime, during the liquidation of the company. Based on the vote of the majority of the
creditors, on failure of the submission of resolution plan within the prescribed period,
the liquidation process is initiated. The assets held by the debtor are recovered during
the liquidation process and will be distributed by the liquidator in the manner of
priorities laid in the law.

• Cross-border: As per the provision of the code, the Government of India can enter into
agreements with any country outside India for enforcing provisions of the Code and
notify applicability of the same from time to time. Further, assets of the debtor located
outside India may also be included for the purpose of the insolvency resolution process
and/or liquidation before the Adjudicating Authority.
There are certain other parts also can be seen in the Code, which are similar in the UK regime,
including the period of antecedent transaction of up to 2 years, license examination for
insolvency professionals etc.

Further, some of the main difference between the insolvency law in India and UK are as under:

• Control: During the insolvency process in India, the insolvency professional appointed
shall obtain approval from the creditors on various matters related to the insolvency
process. Section 28 of the Code detailed such matters which require creditor approval.
Whereas, in UK regime, generally the approval is required only at the time of
appointment of such professional.

• Voting rights: Though the creditors in India enjoy such privileges during the process,
there voting rights are limited. As per the Code, only secured or unsecured creditors
vote in a creditor committee, whereas in UK, all creditors including trade creditors have
voting power in the creditor committee. Apart from that the 75% of the secured or
unsecured creditors will have to approve the resolution plan proposed, whereas the
creditors under UK regime a simple majority can approve the plan during the
insolvency process.

• Professionals: In India, an individual or a group of agencies can act as an Insolvency

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 Professional upon approval from the creditor’s committee. However, in the UK only
licensed individuals are eligible to become an Insolvency professional. Also, in India,
an Insolvency Professional is not required to provide a surety bond or professional
insurance whereas the counterpart demands so. There are distinctions in the licence
renewal though both demands a licensing or examination process to become an
Insolvency Professional. The licences obtained in India are of life membership in nature
whereas in UK it should be renewed annually.

• Freeze: As per the Code on failure of the submission of resolution plan within the
prescribed period or if it is not approved by the creditors within 180 days, the
liquidation process would automatically get initiated. However, in UK, no such timeline
has been specified under the law and is valid for the entire period till plan is approved,
if rejected only the liquidation process shall be initiated.

• Courts: In India, there are specialized courts to deal with Insolvency as the new Code
established the formation of two tribunals to act as adjudicate Authority and deal with
the cases related to insolvency, liquidation and bankruptcy process. The Debt Recovery
Tribunal to oversee insolvency, liquidation and bankruptcy process of individuals and
unlimited partnership firms, whereas National Company Law Tribunal to administer
those of companies and limited liabilities entities.

• Remuneration: As per the Code, In India, the remuneration paid to the liquidator could
be decided by the creditors and would be decided based on the scale of realization and
distribution. However, in UK regime the remuneration is fixed on consensus of
creditors and the insolvency professional appointed, in default the court may intervene
to fix the remuneration. It is important to note here that the liquidator in India is required
to liquidate the assets within a period of two years, whereas no such requirement in the
UK for the liquidator.

• Proof of insolvency: Section 4 Apply to matters relating to the insolvency and

liquidation of corporate debtors where minimum amount of the default is one lakh
rupees and the government may by notification specify the minimum amount of default
of higher value which shall not be more than rupees one crore.

• Role of unsecured creditors in the insolvency process : Section 8 and Section 9 An

operational creditor can initiate insolvency resolution process after giving 10 days

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 notice of demand for the payment of amount involved in the default . International
practice is in favour of permitting even unsecured creditors to file for the initiation of
rescue proceedings in relation to the company. In UK, any creditor can apply to the
court for an administration order in relation to the company

• Moratorium: Section 13 and 14 and 31 NCLT can declare moratorium period which
starts from the date of acceptance of application by NCLT and continue till approval of
the resolution plan. However, in UK Schedule B1 of the IA 1986 an interim moratorium
applicable during the period between the filing of an application to appoint an
administrator or giving of notice of intention to appoint an administrator and the actual
appointment of such administrator. Further, the IA 1986 provides for an automatic
moratorium on insolvency proceedings.

• Appointment of Resolution professional Section 16 and Section 22 Interim

professional is appointed by NCLT within 14 days from Insolvency commencement
date and the interim professional will be appointed as resolution professional subject to
approval of 66% of financial creditors at the committee of creditors at the meeting of
committee of creditors or a new resolution professional will be appointed at the meeting
of committee of creditors. In the UK, the holder of a qualifying floating charge may
appoint an administrator out of court at any point. This enables a qualifying floating
charge holder who has a substantial stake in the company’s fortunes and receives early
warning signals about impending financial trouble to act at the earliest and initiate
proceedings for turning the company around.

• Participation: The Committee noted that the insolvency regimes of various other
jurisdictions also allow participation of all affected creditors in a reorganisation
proceeding. In certain jurisdictions, creditors vote in separate classes, with each class
comprising creditors having common or similar interests9. For example, in a company
voluntary arrangement under the Insolvency Act, 1986 of the UK, a voluntary
arrangement proposed on behalf of a corporate debtor involving “a composition in
satisfaction of its debts or a scheme of arrangement of its affairs” must be accepted by
three-fourths in value of all the creditors of the debtor and a majority in value of the

9
United Nations Commission on International Trade Law, Legislative Guide on Insolvency Law, (2005) part II.
ch. IV paras 26-51

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 members voting in a meeting.10 In light of the above, the Indian Committee agreed that
it would be beneficial to provide operational creditors with voting powers in meetings
of the CoC, in order to ensure that the provisions of the Code are aligned with global
best practices. However, the Committee noted that the implementation of and practice
under the Code are still at a nascent stage. Operational creditors do not currently have
the requisite technical and financial capacity to assess and monitor the viability of the
corporate debtor and restructure their contracts for the purposes of resolving insolvency
of the corporate debtor11. This capacity would have to be developed further to enable
them to effectively exercise voting rights in the CoC. the Insolvency and Bankruptcy
Code (Amendment) Act, 2019 has enhanced the minimum protection accorded to
operational creditors under a resolution plan and the Supreme Court has held that the
CoC should consider, inter alia, “that the interests of all stakeholders including
operational creditors has been taken care of” while approving a resolution plan12

• Super priority to interim finance: Section 20 of the Code allows the resolution
professional to raise interim finance during the CIRP to supplement working capital
needs where the corporate debtor’s own assets are illiquid. However, “once a company
enters the insolvency resolution proceedings, it may find it extremely difficult to obtain
credit, as few lenders would be willing to lend to a troubled debtor.”13 To overcome
this, Section 5(13) includes interim finance within insolvency resolution process costs,
which is accorded the highest priority under a resolution plan and in the liquidation
waterfall under Section 53.14 Further, in the UK, any finance provided during
administration, along with the dues payable under other post-administration contracts,
is provided a priority over the administrator’s expenses and remuneration, preferential
claims and the claims of a floating charge holder.15 However, the claims of an interim
financer do not enjoy priority over the claims of secured creditors having a fixed charge

10
5 Insolvency Act, 1986, Sections 1-7B. However, a company voluntary arrangement cannot affect the right of
a secured creditor to enforce its security or the priority of a preferential creditor or its entitlement to the same
proportional payment as any other preferential creditor, except with the concurrence of the creditor concerned.
See Insolvency Act, 1986, Section 4(3)
11
Swiss Ribbons Pvt. Ltd. v Union of India Writ Petition (Civil) No. 99 of 2018. Decision date - 25.01.2019,
para 44
12
Committee of Creditors of Essar Steel India Limited Through Authorised Signatory v Satish Kumar Gupta &
Ors., Civil Appeal No. 8766-67 of 2019. Decision date- 15 November 2019 para 46
13
Insolvency and Bankruptcy Code Bill, 2015, Notes on Clauses, p. 120
14
Insolvency and Bankruptcy Code, 2016, Sections 30 and 53
15
Insolvency Rules, 2016, Rule 3.51; Insolvency Act, 1986, Schedule B1, Para 99. See Kristin Van Zwieten,
Goode on Principles of Corporate Insolvency Law (5th edn, Sweet and Maxwell 2018) p. 545, 546

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 over the assets of the debtor.16 The Committee discussed that the Code already includes
interim finance in ‘insolvency resolution process costs’, which are paid in priority over
all other claims, including the claims of secured creditors, without requiring the
approval of the Adjudicating Authority.17

16
Kristin Van Zwieten, Goode on Principles of Corporate Insolvency Law (5th edn, Sweet and Maxwell 2018)
p. 546
17
Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons)
Regulations, 2016, Regulation 31

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 4. CHARTS ANALYSIS

Comparison Insolvency and Bankruptcy Code 2016 UK Insolvency Act 1986

Initiate Section 7 financial creditors Creditors

insolvency Section 9 operational creditors Debtors
Section 10 debtors
Duration of 330 days 12 months (extends upto 6
process of months by courts approval)
insolvency
Moratorium yes yes
Management Directors are suspended after the Insolvency Directors operates the
control professional are appointed regular operation while
management control is woth
the insolvency practioners.
Cost One who commence the proceeding either the Debtor borne the cost
creditor or debtors
Sale of Insolvency professional can do so after the Insolvency adminstrationer
assets Coc approval section 28 have the power to sell the
assets. No such approval is
required.

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 5. CONCLUSION
The UK regime has influences in formulating the Insolvency and Bankruptcy Code in India,
now, such a move is expected to help India move up from its current rank of 130 in the World
Bank’s ease of doing business index. As it is clear from the above context that there are certain
provision in which similarities can be found like the appointment of professional as well as
the power vested to the creditors to initiate the inslovency etc. However, there are certain
difference that can be seen in both the law of India and UK as there are circumstantial
difference occurring some of which are there are in UK there are only creditors and debtors,
while in India there are financial creditor, operational creditors and then the debtors. The
process of insolvency is only 90 days while in India the time is longer that is 330 days however
now after the Pre-Pack it is to be of 120 days.

Suggestion.

1. Interim finance should not have priority over other insolvency resolution process costs,
because if super-priority is provided to interim finance, other claims falling under
insolvency resolution process costs can only be paid (both under a resolution plan and
in liquidation) after the dues towards an interim finance are repaid. This could adversely
impact the interests of other claimants that are equally crucial for running the operations
of the corporate debtor during CIRP, such as suppliers of essential goods and services.

2. It would beneficial to provide operational creditors with voting powers in meetings of

the CoC, in order to ensure that the provisions of the Code are aligned with global best
practices Their capacity would have to be developed further to enable them to
effectively exercise voting rights in the CoC. The Supreme Court also held that the CoC
should consider, inter alia, “that the interests of all stakeholders including operational
creditors has been taken care of” while approving a resolution plan18.

18
Committee of Creditors of Essar Steel India Limited Through Authorised Signatory v Satish Kumar Gupta &
Ors., Civil Appeal No. 8766-67 of 2019. Decision date- 15 November 2019 para 46

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6. REFERENCES.

• https://www.ibbi.gov.in/legal-framework/act
• Sylwia Morawska , Błażej Prusak,(2020) : “Bankruptcy Law Severity for Debtors:
Comparative Analysis Among Selected Countries”, European Research Studies
Journal, Volume XXIII, Special Issue 2.
• Dr. Binoy J. Kattadiyil and CS Peer Mehboob, (2020): “ Corporate Insolvency In India
and other Countries a Comparative Analysis Study”, International Journal Of
Multidisciplinary Educational Research, Volume 9, Issue 7(9)
• Rajeswari Sengupta, Anjali SharmA,(2015); “Corporate Insolvency Resolution in
India: Lessons from a cross-country comparison”, Indira Gandhi Institute of
Development Research, Mumbai http://www.igidr.ac.in/pdf/publication/WP-2015-
029.pdf
• Indrajit Mallick, Economic Analysis of Corporate Bankruptcy Law Reform In Indiaî,
WB NUJS Working Paper Series No. 7, SEBL, March, 2004
• Chandrashekaran Upasana, 2021, “India: The Insolvency And Bankruptcy Code
(Amendment) Act, 2021” last accessed on 29thoctober 2021.
https://www.mondaq.com/india/insolvencybankruptcy/1111036/the-insolvency-and-
bankruptcy-code-amendment-act-2021.

• Jo Windsor & Rebecca Jarvis, A guide to “Pre-Pack” Sales (May 2011), Linklaters,
＜https://www.linklaters.com/pdfs/mkt/london/A13446736.pdf＞
• Insolvency Rules, 2016, Rule 3.51; Insolvency Act, 1986, Schedule B1, Para 99. See
Kristin Van Zwieten, Goode on Principles of Corporate Insolvency Law (5th edn,
Sweet and Maxwell 2018) p. 545, 546
• Michelle Schreiber, Beyond the Economic Turmoil of the Asian Financial Crisis:
Indonesia's Struggle to Cope with Insolvency, 12 Transnat'l Law. 353 (1999)

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