IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016

Prior to amendment Post amendment (Amended on 3rd July,

(2nd February, 2018 to 2nd July, 2018) 2018)
“36A. Invitation of Resolution Plans 36A. Invitation for expression of interest.

(1) The resolution professional shall issue an
invitation, including evaluation matrix, to the
prospective resolution applicants in
accordance with clause (h) of sub-section (2)
of section 25, to submit resolution plans at
least thirty days before the last date of
submission of resolution plans.
(1) The resolution professional shall publish
brief particulars of the invitation for
expression of interest in Form G of the
Schedule at the earliest, not later than
seventy-fifth day from the insolvency
commencement date, from interested and
eligible prospective resolution applicants to
submit resolution plans.

 Resolution Professional shall issue  RP shall invite applications from the

invitation to resolution plans at least prospect resolution applicants in
30 days prior to the date of Form G within 75 days of
submission commencement of CIRP

(2) Where the invitation does not contain the (2) The resolution professional shall publish
evaluation matrix, the resolution professional Form G-
shall issue, with the approval of the (i) in one English and one regional
committee, the evaluation matrix to the language newspaper with wide
prospective resolution applicants at least circulation at the location of the
fifteen days before the last date for registered office and principal
submission of resolution plans. office, if any, of the corporate
debtor and any other location where
in the opinion of the resolution
professional, the corporate debtor
conducts material business
operations;
(ii) on the website, if any, of the
corporate debtor;
(iii) on the website, if any,
designated by the Board for the
purpose; and
(iv) In any other manner as may be
decided by the committee.

 If Resolution Professional has failed  Publication of Form G:

to provide evaluation matrix under
(1) then he shall issue the same at
least 15 days prior to the submission
of resolution plans.
 1 English newspaper and 1 regional
newspaper where registered and
principal office of the principal
debtor is situated
 Website of the corporate debtor and
any other website designated by the

(3) The Form G in the Schedule shall –
(3) The resolution professional may modify
the invitation, the evaluation matrix or both
with the approval of the committee within the
timelines given under sub-regulation (1) or
sub-regulation (2), as the case may be.
Board
(a) state where the detailed
invitation for expression of interest
can be downloaded or obtained
from, as the case may be; and
(b) Provide the last date for
submission of expression of interest
which shall not be less than fifteen
days from the date of issue of
detailed invitation.

 Resolution professional is empowered  Form G shall provide

to modify invitation or evaluation
matrix or both.
information regarding last date
of the submission of interest
which shall be more than 15
days from the date of issue of
the detailed invitation

(4) The timelines specified under this (4) The detailed invitation referred to in sub-
regulation shall not apply to an ongoing regulation (3) shall-
corporate insolvency resolution process- (a) specify the criteria for
(a) where a period of less than thirty- prospective resolution applicants, as
seven days is left for submission of approved by the committee in
resolution plans under sub-regulation accordance with clause (h) of sub-
(1); section (2) of section 25;
(b) Where a period of less than (b) state the ineligibility norms
eighteen days is left for submission of under section 29A to the extent
resolution plans under sub-regulation applicable for prospective resolution
(2). applicants;
(c) provide such basic information
about the corporate debtor as may
be required by a prospective
resolution applicant for expression
of interest; and
(d) Not require payment of any fee
or any non-refundable deposit for
submission of expression of interest.

 Timeline provided in this section  Invitation for expression of

shall not apply CIRP:
 Less than 37 days are left for
submission of CIRP where
evaluation matrix has been
issued along with the date of
inviting applications
 Less than 18 days are left for
submission of CIRP where
evaluation matrix has been
issued after date of inviting
interest:
 Shall specify criteria for
resolution applicants as per
section 25(2)(h)
 Extent of applicability of
section 29A on resolution
applicants
 Basic necessary information
regarding corporate debtor
 applications
(5) The resolution professional shall publish
brief particulars of the invitation in Form G
of the Schedule:
(a) on the website, if any, of the
corporate debtor; and
(b) On the website, if any, designated
by the Board for the purpose.
 Publication of Form G website of
the corporate debtor and such
other website as designated by
the Board
(5) A prospective resolution applicant, who
meets the requirements of the invitation for
expression of interest, may submit expression
of interest within the time specified in the
invitation under clause (b) of sub-regulation
(3).
 Resolution applicants who satisfy the
criteria shall make application within
the time specified which shall not be
less than 15 days from the date of the
issue of detailed invitation.
(6) The expression of interest received after
the time specified in the invitation under
clause (b) of sub-regulation (3) shall be
rejected.
 Any applications which exceed the
time line shall be rejected.
(7) An expression of interest shall be
unconditional and be accompanied by-
(a) an undertaking by the
prospective resolution applicant that
it meets the criteria specified by the
committee under clause (h) of sub-
section (2) of section 25;
(b) relevant records in evidence of
meeting the criteria under clause (a);
(c) an undertaking by the
prospective resolution applicant that
it does not suffer from any
ineligibility under section 29A to the
extent applicable;
(d) relevant information and records
to enable an assessment of
ineligibility under clause (c);
(e) an undertaking by the
prospective resolution applicant that
it shall intimate the resolution
professional forthwith if it becomes
ineligible at any time during the
corporate insolvency resolution
process;
(f) an undertaking by the
prospective resolution applicant that
 every information and records
provided in expression of interest is
true and correct and discovery of
any false information or record at
any time will render the applicant
ineligible to submit resolution plan,
forfeit any refundable deposit, and
attract penal action under the Code;
and
(g) an undertaking by the
prospective resolution applicant to
the effect that it shall maintain
confidentiality of the information
and shall not use such information
to cause an undue gain or undue loss
to itself or any other person and
comply with the requirements under
sub-section (2) of section 29.

 Expression of the interest shall

be unconditional and shall be
accompanied by:
 Undertaking along with relevant
record stating resolution
applicant satisfies criteria
provided under section 25(2)(h)
 Undertaking along with
relevant information stating that
resolution applicant is not
ineligible under section 29A to
the extent applicable.
 Undertaking from resolution
applicant stating that he shall
intimate the resolution
professional forthwith if he
becomes ineligible, maintain
confidentiality and every
information provided is true and
correct and if discovered to be
false then he shall be ineligible
to submit resolution plan and
subject to penal actions also.

(8) The resolution professional shall conduct

due diligence based on the material on record
in order to satisfy that the prospective
resolution applicant complies with-
(a) the provisions of clause (h) of
sub-section (2) of section 25;
(b) the applicable provisions of
 section 29A, and
(c) Other requirements, as specified
in the invitation for expression of
interest.

(9) The resolution professional may seek any

clarification or additional information or
document from the prospective resolution
applicant for conducting due diligence under
sub regulation (8).

 Resolution professional shall conduct

due diligence to ensure that
resolution applicant satisfies the
criteria provided under section
25(2)(h), 29A and any other
requirement and also he can seek any
further clarification, if required.

(10) The resolution professional shall issue a

provisional list of eligible prospective
resolution applicants within ten days of the
last date for submission of expression of
interest to the committee and to all
prospective resolution applicants who
submitted the expression of interest.

(11) Any objection to inclusion or exclusion

of a prospective resolution applicant in the
provisional list referred to in sub-regulation
(10) may be made with supporting
documents within five days from the date of
issue of the provisional list.

(12) On considering the objections received

under sub-regulation (11), the resolution
professional shall issue the final list of
prospective resolution applicants within ten
days of the last date for receipt of objections,
to the committee.

 Resolution professional shall issue

list of resolution applicants 10 days
prior to the date of submission to all
the prospective applicants who
submitted their applications and in
case, if there is any objection
regarding inclusion or exclusion of
the resolution applicant then it shall
be submitted within 5 days of issue of
 the said list. Considering objections
raised, resolution professional shall
issue final list within 10 days from
last date of receipt of the objection.

Reading of Regulation 36A along with section 240(1) of Insolvency and Bankruptcy Code, 2016
As per Section 240(1), it has empowered IBBI to make to make rules and regulations for the
purpose of the insolvency proceedings but such enactment should be in compliance with IBC and
it should not over power or defect the purpose of the enactment of IBC.

By introducing, regulation 36A of IBBI (Insolvency Resolution Process for Corporate Person)
Regulation, 2016 it has defeated the intent of IBC as invitation for interest to the assets of the
corporate debtor are invited even prior to resolution plan is implemented.

Such implementation is in negation to the salient feature which was highlighted by the Supreme
Court in Innoventive Industries Ltd. V. ICICI Bank Ltd. that speed is the essence of the IBC.

Also, it was held in the case of Punjab National Bank v. Bhushan Power & Steel Ltd. that
Insolvency and Bankruptcy Code (IBC) does not permit the division of the process i.e. by first
inviting application in the nature of ‘expression of interest’ and later on to file resolution plans.
Such process defeats the intention and motive of IBC as it has been enacted for speedy disposal of
the insolvency cases and in the most of the cases under the IBC, the number of the resolution
applicants is not more than 10 and it is not required to have such method wherein division has
been created in the resolution process by first accepting applications for the assets of the corporate
debtor(s) and later on, filing resolution plan.

Hence NCLT, New Delhi held that regulation 36A is ultra-vires of the Section 240(1) of IBC,
2016 and directed IBBI to frame regulation according to competence and source of the power as
given to it under IBC.

Summary of SBI V. Su Kam Power Systems Ltd.

Application was filed under Sec 12(2) to extend the time period for CIRP by further period of 90
days.

The said application was supported by a resolution passed by CoC in 4th meeting held on 7th
August, 2018. The reason for the extension sorted was because two to three potential resolution
applicants after obtaining access to data room need sufficient amount of time to carry out their due
diligence and arrive at an appropriate price for the assets of the corporate debtor and also there
was a strike of transporters due to which supplies of key raw material was delayed and potential
resolution applicant wanted to visit operational plant.
Hence, application was made to extend last date of submission of resolution plan from 10th
August, 2018 to 31st August, 2018.

The said proposal had been placed before CoC and it had been passed by 96.99% votes by the
Committee of Creditors (CoC). Also, CoC has empowered RP to file the said application.
Expression of interest was invited on 4th July, 2018 and last date to submit interest was to be
decided as 18th June, 2018 without even inviting any resolution plan. Such action lead to the
negation of the Supreme Court judgement passed in Innoventive Industries Ltd. V. ICICI Bank
Ltd. and hence, NCLT, New Delhi held that regulation 36-A is ultra-vires of Section 240(1) of the
IBC, 2016.