Business Standard

LITIGATION TURNING OUT TO BE A HURDLE FOR IBC

- DEV CHATTERJEE Mumbai, 29 January

The Economic Survey has said the Insolvency and Bankruptcy Code (IBC) is facing serious hurdles because of litigation initiated by various parties and said there is a need for efficient legal systems.

The Survey said the court system remains the most important way for ex-post resolution and India’s performanc­e on dispute resolution and contract enforcemen­t remains a concern.

In support of this assertion, the Survey cited the World Bank’s Doing Business report (2020), which said it takes 1,445 days to resolve a commercial contract dispute in India, compared with 589.6 days in OECD (Organisati­on for Economic Co-operation and Developmen­t) high income countries and 120 days in Singapore. The report also shows that the cost of litigation in India is around 31 per cent of the claim value. This is significan­tly higher than in the OECD countries (21 per cent) and Bhutan (0.1 per cent).

The IBC was introduced in 2016 and the first 12 companies were sent for debt resolution in June 2017. However, some large

accounts like Bhushan Power & Steel are still pending in court due to litigation by former promoters and other government investigat­ing agencies.

The Survey said India’s performanc­e on enforcing contracts was reflected in its ranking in the World Rule of Law Index for 2020, where it stood 69th out of 128 countries. “Our performanc­e is the worst in the category ‘Civil Justice not subject to unreasonab­le delay’, where we are placed at rank 123,” the Survey said.

Reacting to the Survey, Misha, partner at

Shardul Amarchand Mangaldas & Co, said it justifiabl­y emphasises the need to reduce judicial and procedural delays in matters of insolvency and bankruptcy. “Although the implementa­tion of IBC has already given impetus to this segment, in comparison with the erstwhile winding up regime, it is expected that developmen­ts such as more settled jurisprude­nce under IBC, improved familiaris­ation with new processes, coupled with efforts towards strengthen­ing of judicial systems and introducti­on of pre-packs and other non-formal insolvency resolution mechanisms expected in the coming year, will help reduce delays,” she said.

The Survey said further that the legal system is required not to fix ex-ante issues but to be used as an ex-post dispute resolution mechanism. This is just as true for government decision-makers, who may find their decisions questioned later. “An effective enforcemen­t system should be able to distinguis­h the negative outcomes arising due to uncertaint­ies from outright frauds. There is a need for reforms in the legal system in the country as it has been argued by various Economic Surveys in the past,” the Survey said.

 ?? ILLUSTRATI­ON: BINAY SINHA ??
ILLUSTRATI­ON: BINAY SINHA

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