A Case for Tribunal Discretion in Strengthening the Prevalence of the Scheme of Arrangement in Indian Debt Restructuring
Ria Kumar & Rudra Athray*
Volume 17 Issue 3 (2024)
While the Scheme of Arrangement (‘SoA’) has been widely accepted as a critical debt restructuring tool across the world, this mechanism has rarely been used in the Indian context. Often at crossroads with India’s regime under the Insolvency and Bankruptcy Code, 2016 (‘IBC’), tribunals have regularly taken a stance preferring insolvency proceedings under §7 of the IBC over ongoing proceedings under §230 of the Companies Act, 2013 (‘CA’) relating to the SoA. In addition to the low success rate of the corporate insolvency resolution process (‘CIRP’) regime, this phenomenon becomes increasingly relevant considering the jurisprudential precipice that Indian insolvency law finds itself at regarding minimum creditor entitlements vis-à-vis CIRP, and the extent of tribunal discretion in accepting §7 applications as seen in the recent Vidarbha Judgment. While there has been notable discourse identifying the need for India to leverage the benefits of SoA as a debt restructuring mechanism, this note examines the various jurisprudential developments which have and are taking place within the SoA and insolvency paradigms to identify a potential opportunity to induct §230 as a prominent debt-restructuring mechanism. Instead of advocating for the SoA over the insolvency regime, this note presents a model to potentially harmonise two regimes for a more effective and revival-oriented debt-restructuring paradigm in India.