2019 (1) TMI 1508 - SC - IBC

Supreme Court validates Insolvency and Bankruptcy Code provisions, upholds differential treatment of creditors and Section 12A threshold

Swiss Ribbons Pvt. Ltd. And Anr. Versus Union of India And Ors.

Swiss Ribbons Pvt. Ltd. And Anr. Versus Union of India And Ors. - [2019] 213 Comp Cas 198 (SC), 2019 AIR 739, 2019 (3) SCR 535, 2019 (4) SCC 17, 2019 (2) ... Issues Involved:1. Constitutional validity of various provisions of the Insolvency and Bankruptcy Code, 2016.2. Appointment of members of the NCLT and NCLAT.3. Functioning of NCLAT Bench only at Delhi.4. Administrative support for tribunals.5. Classification between financial and operational creditors.6. Notice, hearing, and set-off or counterclaim for financial debts.7. Voting rights of operational creditors in the committee of creditors.8. Section 12A regarding withdrawal of applications.9. Evidence provided by private information utilities.10. Adjudicatory powers of the resolution professional.11. Constitutional validity of Section 29A.12. Retrospective application of Section 29A.13. Exemption of Micro, Small, and Medium Enterprises (MSMEs) from Section 29A.14. Section 53 and its impact on operational creditors.Detailed Analysis:1. Constitutional Validity of Various Provisions:The petitions challenged the constitutional validity of several provisions of the Insolvency and Bankruptcy Code (IBC), 2016. The court examined these provisions in light of their objectives, which include timely resolution of insolvency, maximization of asset value, and balancing the interests of all stakeholders.2. Appointment of Members of NCLT and NCLAT:It was argued that the appointments were contrary to the Supreme Court’s judgment in Madras Bar Association (III). The court found that a Selection Committee, including two Supreme Court judges, had been constituted in compliance with the court's directions, validating the appointments.3. Functioning of NCLAT Bench Only at Delhi:The court noted that having a single NCLAT Bench in Delhi was contrary to the principles of convenience and expediency. The Attorney General assured the establishment of Circuit Benches, and the court directed the Union of India to set up these benches within six months.4. Administrative Support for Tribunals:The court reiterated that administrative support for tribunals should come from the Ministry of Law and Justice, as stated in Madras Bar Association (I). Despite the rules of business allocating this to the Ministry of Corporate Affairs, the court emphasized compliance with its earlier judgment.5. Classification Between Financial and Operational Creditors:The court upheld the classification, stating that financial creditors are typically involved in assessing the viability of corporate debtors and restructuring loans, which operational creditors are not equipped to do. This classification is neither discriminatory nor arbitrary.6. Notice, Hearing, and Set-off or Counterclaim for Financial Debts:The court clarified that financial creditors must provide evidence of default, and the corporate debtor can contest this at the stage of the Adjudicating Authority’s satisfaction. Set-offs and counterclaims can be considered during the resolution process.7. Voting Rights of Operational Creditors in the Committee of Creditors:Operational creditors do not have voting rights in the committee of creditors. The court found this justified as financial creditors are better equipped to assess the viability and feasibility of the corporate debtor’s business.8. Section 12A Regarding Withdrawal of Applications:Section 12A allows withdrawal of applications with the approval of 90% of the committee of creditors. The court upheld this provision, stating that it ensures collective decision-making in insolvency proceedings.9. Evidence Provided by Private Information Utilities:The court held that evidence from private information utilities is only prima facie and rebuttable, ensuring that the corporate debtor can contest the information.10. Adjudicatory Powers of the Resolution Professional:The court clarified that the resolution professional has administrative, not adjudicatory, powers. Decisions made by the resolution professional are subject to oversight by the committee of creditors and the Adjudicating Authority.11. Constitutional Validity of Section 29A:Section 29A, which disqualifies certain persons from being resolution applicants, was upheld. The court found that it serves the purpose of preventing persons responsible for insolvency from regaining control of the corporate debtor.12. Retrospective Application of Section 29A:The court held that Section 29A does not affect vested rights as resolution applicants have no vested right to be considered. Therefore, its retrospective application is valid.13. Exemption of MSMEs from Section 29A:The court noted that MSMEs are exempt from certain clauses of Section 29A to prevent liquidation due to lack of interest from other resolution applicants, which is justified given their role in the economy.14. Section 53 and Its Impact on Operational Creditors:The court upheld Section 53, stating that the differentiation between financial and operational creditors is based on legitimate interests and is related to the objectives of the IBC.Conclusion:The Supreme Court upheld the constitutional validity of the Insolvency and Bankruptcy Code, 2016, and its various provisions, emphasizing the importance of the Code in the economic context and its role in ensuring timely resolution of insolvency and maximizing asset value. The court also directed the establishment of Circuit Benches for NCLAT and reiterated the need for administrative support from the Ministry of Law and Justice for tribunals.