Solving the Bad Loan Crisis in the Unconventional Way: Is Reverse Piercing the Corporate Veil a Solution?
Naman Kamdar & Akash Srinivasan*
Volume 12 Issue 2 (2019)
India being a country with a large number of closely held companies, the chances of fund diversion, siphoning, and financial mismanagement are high, since the control of companies largely lies in the hands of a few individuals. The bad loan crisis, especially, has plagued the Indian economy, with the willful defaulters causing a wreckage of the Indian banking sector. Several steps have been taken to address this mounting concern, including the enactment of the Insolvency and Bankruptcy Code 2016, and amendments to the Banking Regulation Act 1949. However, we believe and propose through this paper that these efforts need to be effectively supplemented with the application of the doctrine of reverse piercing the corporate veil. The doctrine involves imposition of liability of the controllers of the corporation to the corporation itself, thereby leaving little room for the controller to misuse the corporate façade for wrongful purposes. Application of this doctrine certainly causes disruption in the present set up of debt recovery, i.e., priority of claims, but it can be tackled with adequate change of the distribution waterfall, as explained in detail in this paper. Lastly, the elusive aspect of ‘control’ which arises while determining the application of the doctrine also finds analysis with detailed elucidation. The recommendations are made keeping in mind the present legal framework surrounding the insolvency resolution process and keeping in mind the larger public interest involved in recovering the economy from the persisting crisis.