ARTICLE

Section 53 of IBC, 2016: Camouflage Key Player in the Revival Process

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1. Introduction
Practical experiences reveal that the Section 30 (2) of the
IBC has apparently come in the way of waterfall The core theme on which the entire Insolvency and
mechanism provided under Section 53. For instance, if a Bankruptcy Code, 2016 (IBC or Code) is built upon is
creditor with minor voting share votes against the revival of the Corporate Debtor. It has been five years
Resolution Plan but the Plan is finally accepted by the since the Code was implemented and now it has crossed its
CoC, the dissenting creditor may get more money than the infancy. Though the Code has been and is being witnessing
top creditor. This demoralizes the efforts of the assenting
the fruits of its implementation process, still there are
creditors particularly the lead creditor in resolving the
cases where the Corporate Debtor goes into Liquidation in
Corporate Debtor. In this article, the author through
whenever and wherever the resolution fails.
various illustrations has highlighted the tricky nature of
the Section 30 (2) of the IBC and has suggested a feasible Nevertheless, the Code read with its Regulations has been
solution to address the issue through amendment either in framed in such an efficient way that even during
Section 30(2)(b) or 53(1)(b)(ii) of the IBC. Liquidation there could be sale of the Corporate Debtor as
Read on to know more… a Going Concern and hence the chances of revival of the
Corporate Debtor during Liquidation cannot be ruled out.
If in case the Corporate Debtor fails to taste the fruits of
being sold as a Going Concern during liquidation, then
steps in the last leg of the Liquidation process being the
sale of the assets where a greater emphasis is placed on the
realizations and distribution of the proceeds. It is at this
M. Pavithra
juncture comes into role, the key player Section 53 of the
The author is a Chartered Accountant.
She can be reached at IBC.
[email protected]

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2. Glimpses of Section 53 of IBC

Section 53 lays down the waterfall mechanism in
accordance with which the proceeds from the sale of the
Liquidation assets shall be distributed in the order of
priority stipulated therein. The provision could be quoted
as follows:
“………………..the proceeds from the sale of the
liquidation assets shall be distributed in the following
order of priority and within
such period as may be specified, namely: -
(a) the insolvency resolution process costs and the
liquidation costs paid in full;
(b) the following debts which shall rank equally between
and among the following:
(i) workmen's dues for the period of twenty-four months
preceding the liquidation commencement date; and
(ii) debts owed to a secured creditor in the event such bad debts.
secured creditor has relinquished security in the manner
3. Role of Section 53 during the Corporate Insolvency
set out in section 52;
Resolution Process
(h) equity shareholders or partners, as the case may be”
However, it is interesting to note that even in the event of
2.1. Interpretation of the Section 53 the prime revival process, i.e., Corporate Insolvency
On a close interpretation of Section 53 on a real time basis Resolution Process (CIRP), Section 53 plays a key role
in the case of most of the Corporate Debtors under rather implicitly. In fact, it takes an influential role in
Liquidation, it is predominantly the Secured Financial deciding the fate of the Corporate Debtor.
Creditors who stand to gain something from the Through this small illustration, let us probe to understand
realizations while all other creditors following them are the Camouflage nature of Section 53:
left high and dry. Even here it is to be noted that Secured
Facts:
Financial Creditors (SFCs) gain only 'something', which
clearly indicates towards the fact that even the SFCs are • Company XYZ Limited has been admitted into the
not able to recover their dues to the full extent, the reason CIRP.
being the asset value of the Corporate Debtor being Table 1: Liquidation Value of the assets of the
abysmally low as compared to the dues owed by it, thereby Corporate Debtor
resulting in insufficient realizations.
S. Asset Description Liquidation
Thus, in Liquidation, it is Section 53, which plays a pivotal No. Value
role, since all the stakeholders being Financial Creditors, (₹ in Crores)
Operational Creditors, and other stakeholders who are 1 Fixed Assets 250
entitled to distribution of proceeds under section 53 in the
2 Current Assets 50
Company would be interested in knowing how much of
their debts are capable of being saved from turning into Total 300

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Table 2: Details of the Creditors of the Company along 4. Distribution to Financial Creditors in the event of
with their claim amounts and security assent/dissent by the SFCs.
interest:
Scenario 1:
S. Name Claim Voting Security Interests Table 4: Distribution to SFCs in case all the 3 Creditors
No. of the admitted share
Creditor* (₹ in % in being A, B and C vote in favour of the Resolution Plan
Crores) CoC S. Name Actual Amount Amount Gain
st No. of the provided in the distributed (+)/
1 A 1000 50% 1 Charge on Fixed Loss
Creditor Resolution Plan after the
Assets. (-) to
(₹ in Crores) approval of
2nd Charge on the Resolution Credi-
Current Assets. tors
Plan
nd (₹ in Crores)
2 B 600 30% 2 Charge on Fixed
Assets. 1 A 100 100 __
1st Charge on
Current Assets 2 B 60 60 __
nd 3 C 40 40 __
3 C 400 20% 2 Charge on
Current assets. Total 200 200 __
Total 2000 100%
Scenario 2:
*Note: Distribution to SFCs in case all the 3 Creditors being A,
(a) All Creditors are Secured Financial Creditors. B and C vote against the Resolution Plan: In that case,
since the Resolution Plan failed to secure the 66% votes in
(b) It is assumed that there are no other creditors barring
favour of it, the Resolution Plan stands rejected and hence
the creditors mentioned in Table 2. there is no question of distribution under the Resolution
Plan.
3.1. Company PQR Ltd has submitted a Resolution Plan
Scenario 3:
for the Corporate Debtor wherein an amount of ` 200
Crores is allocated to the SFCs which shall be divided Distribution to SFCs in case Creditor A votes in favour
amongst the SFCs in the ratio of their voting shares in the of the Resolution Plan and either B or C vote against
the Resolution Plan
CoC. The total amount payable to SFCs shall remain
constant and shall not be subject to any further increase. Table 5A: A and B assent, C dissents

Table 3: Allocation of the Resolution Plan Value to the S. Name Actual Amount Amount Gain
No. of the provided in the distributed (+)/
SFCs as per the terms provided in the Resolution Plan Creditor Resolution Plan after the Loss
(₹ in Crores) approval of (-) to
S. Name Amount % of amount Credi-
No. the Resolution
of the allocated allocated. tors
Plan
Creditor (₹ in Crores)
(₹ in Crores)
1 A 100 50%
1 A 100 87.5 -12.5
2 B 60 30%
2 B 60 52.5 -7.5
3 C 40 20%
3 C* 40 60.0 +20
Total 200 100%
Total 200 200.0

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Table 5B: A and C assent, B dissents than approving a Resolution Plan, since the approval of
S. Gain any of them result in voting by requisite majority which
Name Actual Amount Amount
No. (+)/ would result in successful approval of the Resolution
of the provided in the distributed
Creditor Resolution Plan after the Loss Plan.
(₹ in Crores) approval of (-) to
Credi- 4.1. Questions
the Resolution
tors
Plan In the event the Resolution Plan gets approved in
(₹ in Crores) accordance with Table 5A or Table 5B, then there arises a
1 A 100 78.60 -21.40 need to address the following questions:

2 B* 60 90.00 + 30 (a) Would it be right for a Creditor to realize more

from a Resolution Plan to which it has dissented?
3 C 40 31.40 - 8.60 While the Creditor with the highest voting share
Total who has voted in favor of the Resolution Plan gets
200 200.00
a lower amount?
*Note: Explanation:
(a) As per Section 30(2) of the IBC, 2016 Let us take the case of Table 5B:-
“The resolution professional shall examine each Creditor A has a voting share of 50% and receives ₹ 78.60
resolution plan received by him to confirm that each Crores, whereas Creditor B who has a voting share of 30%
resolution plan ……….………………provides for the receives ₹ 90 Crores.
payment of debts of financial creditors, who do not vote in
favour of the resolution plan, in such manner as may be (b) If all creditors conceive the same notion that they
specified by the Board, which shall not be less than the can realize more by dissenting, then all the votes
amount to be paid to such creditors in accordance with will be cast against the Resolution Plan, in that
sub-section (1) of section 53 in the event of a liquidation of case will not the entire revival of Corporate
the corporate debtor”. Debtor turn futile?

The phrase “in the event of a liquidation” gains Explanation:

prominence at this juncture.
If both Creditor B and Creditor C decide to dissent the
Thus, in the event of Liquidation B and C will get the Resolution Plan since their realization would be more in
following amounts: case of dissenting rather than assent, then the Resolution
B ₹ 300 Crores (Liquidation Value) * 30% (Voting Plan will lose 50% of the votes which eventually results in
share) = ₹ 90 Crores. rejection of the Resolution Plan by the CoC.
C ₹ 300 Crores (Liquidation Value) * 20% (Voting
share) = ₹ 60 Crores.
Since the amount payable to the SFCs has already been
allocated at ₹ 200 Crores, the excess payments made to
dissenting Financial Creditor shall be adjusted against the
“ Even here it is to be noted that Secured Financial
Creditors (SFCs) gain only 'something', which
“
clearly indicates towards the fact that even the
SFCs are not able to recover their dues to the full
extent.
amounts payable to the assenting creditors propor-
tionately.
(c) In order to avoid this conundrum and ensure a fair
(b) The main conundrum arises only in “Scenario 3” play amongst the Creditors, should the amounts
allocated to the stakeholders under the Resolution
• As per Section 30(4) of IBC, the committee of creditors Plans have a value higher than the Liquidation
may approve a resolution plan by a vote of not less than Value?
sixty-six percent.
Explanation:
• Since A being a 50% majority shareholding Creditor,
the consent of A is indispensable for the approval of the Most of the companies falling into the hands of CIRP have
Resolution Plan by the CoC. been subject to lack of proper maintenance and irregular
• However, either 'B' or 'C' can take a different call rather operations by the company management prior to the

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commencement of CIRP. In few cases the companies approved, and he will also suffer a loss in case the
have even been shut down for several years back the line Company gets into Liquidation. Thus, Creditor A will
prior to CIRP Commencement. Thus, the Prospective suffer a loss either way.
Resolution Applicants willing to acquire the Corporate (c) In common practice, the claim of first charge holder
Debtor will have to incur significant spending on shall prevail over the claim of the second charge
refurbishment and other aspects. Taking these capital costs holder and where debts due to both the first charge
into consideration, it may not be feasible in all the cases for holder and the second charge holder are to be realised
the Resolution Plan to provide a value to the stakeholders from the property belonging to the mortgager, the first
which is higher than the Liquidation Value of the charge holder will have to be repaid first.
Corporate Debtor. This may serve as an impediment in
(d) However, the main reason behind this conundrum is
successful revival of the Corporate Debtor and would
that the Section 53 neither establishes any distinction
defeat the entire purpose of the Code.
nor provides for further bifurcation amongst the

“However, the main reason behind this conundrum

is that the Section 53 neither establishes any
“
distinction nor provides for further bifurcation
amongst the Secured Financial Creditors on the
basis of charge holdings extent.
Secured Financial Creditors on the basis of charge
holdings. All SFCs who have relinquished their
security interests are treated as one class irrespective
of the charge holdings and hence no differential
treatment is attributed to any individual creditor
5. Root Cause of the Conundrum and its Impact
within the same class.
(a) With reference to the above illustration, the major
6. Contextual References: Followings are the recent case
cause of concern is that in the CIRP, merely by voting
laws related to this issue-
in favour of the Resolution Plan and playing a pivotal
role in the Resolution Plan implementation process, (a) In the matter of Technology Development Board Vs
Creditor “A” suffers a loss in either case where “B” or Mr. Anil Goel and 2 others (Company Appeal (AT)
“C” dissents the Resolution Plan and despite the same (Insolvency) No.731 of 2020), the issue was raised
the Resolution Plan gets approved with the requisite before NCLAT on whether “whether there can be no
majority. sub-classification inter-se the Secured Creditors in the
distribution mechanism adopted in a Resolution Plan
(b) However, in the contrary, in the event of Liquidation,
of the Corporate Debtor as according priority to the
had the First Charge holder of the Fixed Assets being
first charge holder would leave nothing to satisfy the
Creditor “A” not relinquished their security interests,
claim of Appellant who too is a Secured Creditor”.
then they would have enjoyed the priority in the
The NCLAT in its order1 on April 05, 2021, held as
realization proceeds and would have been on a better
follows:
footing than in case of approval of the Resolution
Plan. If the company gets into Liquidation, then it is
also noteworthy that the realization of the
Liquidation Value is highly questionable, because
once the company gets into the hands of Liquidation
“ “
The word “fair” may be interpreted in wide ways
by different parties. One treatment which may be
considered fair to one creditor may not be so with
respect to another creditor.

then it would become a prey to rock bottom rates and (i) The impugned order holding that the inter-se
uplifting it to a reasonable price may involve lot of priorities amongst the Secured Creditors will
time and efforts. Thus, the irony here is that Creditor remain valid and prevail in distribution of assets
A will suffer a loss for being a key factor in the revival in liquidation cannot be sustained.
of the company – the prima facie intention of the IBC 1
NCLAT, Technology Development Board Vs Mr. Anil Goel and 2 others,
Code, 2016 in case the Resolution Plan gets (Company Appeal (AT) (Insolvency) No.731 of 2020), April 05, 2021.

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(ii) We allow the same with direction to the financial creditors, who do not vote in favour of the
Liquidator to treat the Secured Creditors resolution plan, in such manner as may be specified by the
Board, “which shall be the lower of the amount to be paid
relinquishing the security interest as one class
to such creditors in accordance with sub-section (1) of
ranking equally for distribution of assets under section 53 in the event of a liquidation of the corporate
Section 53(1)(b)(ii) of IBC Code and distribute debtor or the amount that would have been paid to such
the proceeds in accordance therewith”. creditors, if the amount to be distributed under the
resolution plan had been distributed in accordance with
However, the Supreme Court vide an order on June 29, the order of priority in sub-section (1) of section 53.”
2021, has imposed a stay on the operation of the above
Or
judgement of the NCLAT.
7.2. Proposed Amendment in Section 53(1)(b)(ii): This
7. Proposed Feasible Solution subsection should be amended as ... debts owed to a
Though the explanation 1 to Section 30(2) of the Code, secured creditor in the event such secured creditor has
states that the provisions of this clause shall be fair and relinquished security in the manner set out in section 52
equitable to such creditors, it still remains a grey area as to “provided there shall be an inter se ranking of the Secured
what can be construed as “fair and equitable”. The word Creditors on the basis of the Charge holdings”.
“fair” may be interpreted in wide ways by different parties. 8. Conclusion
One treatment which may be considered fair to one
creditor may not be so with respect to another creditor. With the advent of IBC, 2016 numerous companies have
Subsequently, there may arise disagreements between the been saved from becoming extinct. Since the entire Code
Creditors while trying to identify as to what distribution being predominantly a creditor driven process where the
constitutes fairness. Thus, the word “Fair” here will decision to resolve or liquidate the Corporate Debtor rests
remain subjective unless an explicit meaning is being on a collective body termed as CoC. It would be in the best
assigned to it under the Code and thus in order to remove interests of all the stakeholders as well as the Corporate
the iota of doubt, the following amendments may be Debtor if their interests are balanced in a fair manner
considered in Section 30(2)(b) or Section 53(1)(b)(ii) of without giving rise to any prejudicial benefits to one
the IBC. creditor over the other. In the light of the above, it's high
time to amend the sections of the IBC. The suggested
7.1. Amendment of Section 30(2)(b): Section 30(2)(b) of amendments will ensure a fair play among the creditors
the IBC should be amended as follows: and facilitate faster resolution of the corporate debtor.
“…………….provides for the payment of debts of

2
Supreme Court, Technology Development Board Vs Mr. Anil Goel and 2 others,
Civil Appeal Diary No. 11060/2021, (Company Appeal (AT) (Insolvency)
No.731 of 2020), June 20, 2021.

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