When individuals or business entities fail to repay their debts on time for a prolonged period, they are said to have become insolvent. A case of insolvency is referred to as the competent authority for adjudication. If all resolution efforts fail, then bankruptcy proceedings are initiated. For individuals and a sole proprietorship, the Debt Recovery Tribunal is the adjudicating authority, whereas the National Company Law Tribunal adjudicates the cases of other corporate entities. Bankruptcy cases are rising in India in general and the best bankruptcy law firm in India foresee a rise in individual bankruptcies as well.
Bankruptcy filings are not very common in India, but of late, it has increased drastically. If an individual files for bankruptcy, then he/she legally declares the inability to service debt obligations. If the bankruptcy application is accepted and approved, it relieves the individual from repaying its debts to the creditors. The creditors stop harassing the debtor for recovery which gives the individual tremendous peace of mind. He/she can sit back and relax, and then think of restarting their life.
Bankruptcy cases in India are governed by the Insolvency and Bankruptcy Code or IBC. Though it has provisions for individual bankruptcies, the process is not as smooth and streamlined as it is for business entities. In this article, we will try to explain the bankruptcy laws and how to file for individual bankruptcy in India.
The Bankruptcy Law
As mentioned above, the IBC does not clearly define individual bankruptcy. After coming into effect in 2016, the IBC has been amended several times but the rules for individual bankruptcy have not been notified yet. Till that happens, individual bankruptcy is governed by laws that were enacted during the British era, that is, the Provincial Insolvency Act, 1920 and the Presidency Towns Insolvency Act 1909 which is applicable only in the cities of Mumbai, Kolkata and Chennai.
Under these laws, you can file for bankruptcy if you are unable to repay a debt greater than a certain amount. The court reviews the application to assess if the case satisfies the conditions for bankruptcy and decides whether to accept or reject the application. Meanwhile, an interim receiver appointed by the court takes charge of the properties of the debtor. If the application is admitted, the court can put a stay on all legal proceedings against the debtor, that is, the creditors are barred from making any recovery effort.
On admission of the application, your property, which now vests with the receiver, is proportionately distributed among the creditors, unless any other formula for settling the dues has been devised and accepted by all. The court then discharges you from bankruptcy, and you are free to make a new beginning. While the insolvency proceedings are on, you can apply for a minimum maintenance amount for yourself and your family. However, till the time insolvency proceedings are completed and you are discharged from insolvency, certain restrictions apply with respect to your public life.
An order of discharge by the court, however, does not absolve you of all debts. You will still be liable to pay certain debts, such as government dues, debt incurred through fraudulent means, etc. There is no provision for prison term for debtors in India, however, if you commit any fraud related to your debts then you may be awarded a prison term.
Steps to Follow in Bankruptcy Filing
The best bankruptcy law firm in India suggests certain steps you need to follow when you plan to file for bankruptcy. These have been explained below.
You are discharged from bankruptcy by a court through a legal process. The court assesses your financial condition and takes a decision. As it is a legally obtained status, you have to provide evidence to the court to prove your case. The court will examine your assets and liabilities to give its judgment, and for that, you need to present a balance sheet to the court.
Consult a Lawyer
Though you are allowed to file for bankruptcy in India on your own, it is always advisable to hire a bankruptcy lawyer for the same. A lawyer is well versed in the bankruptcy laws and will be able to give proper insight into the case. A lawyer can analyze your balance sheet and give you an honest opinion on the chances of getting a discharge from the court. Also, he/she will advise you on the type of filing to make.
File a lawsuit
Once you decide to file for bankruptcy, either individual or joint, your lawyer should file a petition under the Provincial Insolvency Act 1920. If your lawyer wins the case for you by his arguments in court, you are discharged from bankruptcy and get permanent relief from your creditors.
According to the best bankruptcy law firm in India, these archaic insolvency laws will soon be replaced by a revamped IBC. It will make the processing time-bound and automatically stay all legal proceedings against the debtor once the application is accepted.