Characteristics of Insolvency Act 2063 of Nepal - by Prajwal Bhattarai

1. Prajwal Bhattarai Characteristics of Insolvency Act, 2063

2. Introduction • being insolvent” means a state of being unable, or appearing to be unable, to pay any or all of the debts due and payable to or payable in the future to creditors or a situation where the amount of liabilities of a company exceeds the value of the assets. Section 2(b) • “liquidation of company” means a situation where the registration of a company is canceled by fulfilling the procedures referred to in this Act. Section 2(d)

3. Insolvency Proceedings Application by any of the stakeholder • Company itself which has become insolvent • Creditor (10%) • Shareholder (5%) – prior permission from the court to make application • Debenture holder (5%)- permission from the court to make application • Liquidator appointed by the company • Authorized Body and regulator (for financial institution- NRB, for insurance –Insurance board. Application to be accompanied by necessary documents

4. Registration of application at the court • Application to the court • Appoint a date of hearing within 15 days • Gives chance to revoke application (7 days) • Court may ask concerned body to submit statement of reason • Court gives formal notice in national daily newspaper at least twice

5. Hearing and Order by the court • Court may accept or dismiss the application • If accepted, court gives order to appoint inquiry officer IO makes a detail inquiry to check -whether the company has been insolvent or not - whether its financial situation can be improved through restructure - whether it’s lost cause and the company should be liquidated IO convenes meeting of creditor IO submits a report to the court

6. Court gives order within 7 days of the receipt of IO Report to liquidate, restructure, to wait for specific period if the company can be improved without liquidation, to make further inquiry

7. Restructuring of company • Restructuring scheme shall be prepared by restructuring manager in written form. • Scheme contain :to capitalize debt and alter capital structure , selling assets , to amalgamate the company , to change the management and other act which the Court considers appropriate to restructure the company. • Meeting of creditor is called in order to discuss the details of restructuring program and adopt the resolution (with or without amendment or to liquidate the company).

8. Contd… • Restructuring report is submitted by the restructuring manager to the court in order to implement restructuring program so that company is rescued from insolvency within time period (sec.25) • failure to submit details of restructuring program court may invalidate order of restructuring and ordered for liquidation of the company . • Creditors who does not agreed with the proposal of restructuring program can make an application of claim and objection with reasonable grounds. • If approved the proposal is binding to all creditors ,directors and shareholders

9. Contd… • Does not bind to secured creditor unless the order of court or they have agreed to program. • not to affect the right of owner of property or lessor unless the order of court • the court can issue orders to secured creditors, the lessor and owners of the property used by the company, if it is proved that the restructuring program will fail if the secured creditors or lessor of the property enforce their security or take back the leased property. • Restructuring manager may exercise the power to operate the company , act as an agent of the company and has power to borrow loan

10. Contd… • Alteration and amendment of restructuring program can be made by approval of creditors and court. • Termination of program if company fails to implement it. • If court issues an order of liquidation.

11. Liquidation • Liquidation v. restructure • Court order and appointing a liquidator • Liquidator exercises of powers in an attempt to fulfill his duties • Liquidator invites debt claims • Liquidator chairs creditors meeting

12. Contd… • Can take more loans from the creditors • Report preparation (including recommendation) • Abandonment of liquidation and pursuit Restructuring • Court order • Deregistration of the company

13. Claims of Creditors ( Chapter - 6 ) • Section 48 - Creditors to submit claims. A creditor of the company which has become insolvent shall submit a claim for the loan due and outstanding or payable. • company to him or her, • in the prescribed format • within the time limit specified by the restructuring manager or liquidator. • the creditor shall also submit the proof and evidence substantiating such claim. • The restructuring manager or liquidator shall examine the submitted proofs or evidences.

14. 49. Claim for interest: • Where any company which has become insolvent has borrowed a loan on the condition of paying interest • According to the agreement entered into at the time of borrowing such loan. • Provided that no interest may be claimed for the period after the date of issue • by the Court of an order to liquidate the company, • implement the restructuring program of the company.

15. 50. Claims on undetermined or contingent liability: • any claim on any liability of an undetermined value • which has resulted from any loss caused by the company, • or from any compensation to be paid by the company to anyone as a result of its failure to comply with any contract • or for having violated any contract, or from any other action, • which creates a civil obligation, or any claim on any contingent obligation of the company • pursuant to Sub-section (1) of Section 48.

16. restructuring manager or liquidator shall either accept or reject such claim pursuant to Sub-section (3) of Section 48 • Where such claim is accepted pursuant to Sub-section (2), the restructuring manager or liquidator shall also determine the estimated value of such claim. • the restructuring manager or liquidator may make an application to the Court to have the value of such claim determined; • and where an petition is so made, the Court shall determine the estimated value of such claim. • Any person who is not satisfied with the decision to reject the claim • may make a complaint to the Court within fifteen days from the date of receipt of the notice thereof.

17. 51. Immature claims: The restructuring manager or liquidator may make prescribed exemption from the debt claims relating to immature debts made against the company. • 52. Claims involving foreign exchange: Any claims made in relation to any • debt or other liability in a foreign currency under this Act shall be settled by • calculating the value in the Nepali currency • according to the exchange rate fixed by the Nepal Rastra Bank for the day on which an application is made • to the Court for the liquidation, insolvency of the company or its restructuring.

18. 53. Adjustment of debts: any other transaction between a company which has become insolvent and any creditor who makes a debt claim against the company, the debt or such debt claim or transaction shall be adjusted as follows: • To determine the amount due to be paid by one party to the other party; • (b) To deduct the amount payable by one party to the other party from the amount determined • To fix only the amount that remains after making deduction pursuant to Clause (b) as the claim of debt payable by the company. • The purposes of this Section, the expression "company which has become insolvent" shall mean a company in relation to application has been filed in the Court for the restructuring or liquidation of that company.

19. 54. Right of secured creditor to make claim: • A secured creditor may make a debt claim against the company at any time; and the restructuring manager or liquidator may accept or reject that claim. • The amount to be claimed pursuant to Sub-section (1) shall be limited to the difference between the amount received from the property • according to its market value and the amount payable by the company to the secured creditor. • Where there arises a dispute between the secured creditor and the company which has become insolvent in relation • to the differencebetween the value of the secured property and the amount outstanding and payable

20. Mode of Payment • 55. Shareholder’s claim: Where any creditor who is also a shareholder of a company which has become insolvent makes a claim against the company, • and where that creditor has not paid any amount due on his or her share • and where the time has already matured to pay such amount 56. Deemed to be creditor if debt is accepted: A person should acquire status of creditor pursuant to Subsection (1) • shall also acquire the right to participate in a meeting of creditors, • exercise the voting right to the extent of the accepted debt claim • and receive payment of the amount of debt under this Act.

21. 57. Order of settlement of liabilities: • While settling the liabilities of a company which is being liquidated under this Act, the liquidator shall make payment of liabilities from the available funds according to the following order of priority: • All expenses associated with the functions discharged by the interim administrator • Other amounts to be settled pursuant to Chapter-2; • All expenses associated with the functions discharged by the inquiry officer • All expenses associated with the functions discharged by the restructuring manager • All debts of the company borrowed during the period of investigation of the insolvency proceedings; • All debts of the company borrowed during the period of the restructuring program of the company;

22. (h) Wages and remuneration due and payable to the workers or employees of the company at the time of the issue of the order • (i) Amounts payable to the workers or employees of the company in consideration of home leave, sick leave, gratuity and • employee provident fund, if any, at the time of the issue of the order under this Act to liquidate or restructure the company; • Provided that no director of the company shall be entitled to such amount. • (j) All other amounts in consideration of debt claims accepted by • the liquidator. • Every liability falling in the order of priority referred to in Subsection (1) shall be treated equally; and all liabilities falling in such order shall be settled fully. • Provided that if such liabilities cannot be settled fully, they shall be settled proportionately.

23. Where any liability of the company is insured, the amount receivable under such insurance contract shall be paid to that person who is entitled to it. • Where the liabilities mentioned in Sub-section (1), (2) or (3) are settled fully, • the surplus shall be used by the liquidator to pay interest payable on debts from the date of the order issued to liquidate • or restructure the company to the date of acceptance of the debt claim. • The amount remaining after such payment shall be distributed among the preference shareholders, • and the remaining amount shall be distributed among the other shareholders proportionately. • 58. Mode of settling liabilities:While settling the liabilities of the creditors pursuant to this Chapter, the liquidator may do so at one time or at different times

24. Voidable Transactions • Voidable transactions: (1) Where any company has become insolvent, the following transactions shall be void: • (a) Preferential transactions carried on in advance of six months immediately preceding the commencement of the insolvency proceedings or within the period of six months after the commencement of the proceedings; • (b) Preferential transactions carried on with the associated persons of the company in advance of one year immediately preceding • the commencement of the insolvency proceedings or within the period of one year after the commencement of the proceedings; • "Preferential transactions" shall mean any transactions done or entered into with a provision for payment of amount that exceeds the payment which any creditor of the company other than a secured creditor would have been entitled to get if the creditor had made a claim against the company at the time of its liquidation.

25. Any under-valued transactions have been carried on in advance of one year immediately preceding the commencement of the • insolvency proceedings or within the period of one year after the commencement of the proceedings and the company has become insolvent as a consequence of such transaction. • "Under-valued transactions" shall mean any transactions in relation to which the company has received a value that is lower than the prevailing market value • All fraudulent transactions carried on in advance of two years immediately preceding the commencement of • the insolvency proceedingsorwithin the period of two years after the commencement of the proceedings;

26. The liquidator shall make an application to the Court to have the transactions • the liquidator shall prove that the company was insolvent when such transactions were carried on or the company has become insolvent by the reason of such transactions. • Where any associated person of the company is found involved in the proceeding carried out in relation to void any voidable transactions, • it shall be presumed that the company was insolvent when such transactions • were carried on or the company has become insolvent by the reason of such transactions.

27. 60. To defend voidable transactions: The associated person may prove • the following matters in his or her defense: (a) That the company was not insolvent when the transactions were carried on; • (b) That he or she has not derived any benefit from the transactions; • 61. Powers of the Court in relation to voidable transactions: • Where the Court is satisfied that any transaction is voidable, the Court may issue orders as follows: • To order the concerned person to pay to the liquidator some or all of the amounts paid by the company • To order the concerned person to hand over to the liquidator the asset so transacted or an amount equivalent

28. The debt obtained by the company through such transaction, or the collateral or guarantee furnished by the company for that debt be fully or partly remitted or released; (2) The Court may also issue any such other additional order any • may be required to enforce the order issued pursuant to Sub-section (1). • 62.Right to claim amount paid in consideration of preferential transaction: • Any creditor who pays any amount to the liquidator in relation to any preferential transaction made with the company, • according to the order of the Court or for any other reason, may make a claim for that amount • as a debt claim against the company in liquidation.

29. Insolvency Practice, and Regulation and Administration • Prohibits the non bearer of license from being appointed as inquiry officer, restructuring manager or liquidator to operate insolvency practice and if appointed, appointment is ipso facto void. (s 63) • The insolvency Administration Office functions as a regulatory body and is responsible for issuance and renewal of license. • Only a Nepali citizen not less than age of 30 competent to carry the insolvency practice who is a member of a prescribed professional association and is at least a graduate in commercial law, commerce, management, accounts or similar discipline from a recognized university can qualify for license. • Court has the power to suspend or cancel the license. (s 66)

30. Contd… • The court can order to appoint a qualified person to fill vacant position if the office of the restructuring manager or liquidator falls vacant due to suspension or cancellation of license by court. (s 67) • The court fixes the remuneration of inquiry official, restructuring manager or liquidator if it can’t be fixed by the meeting of creditors from time to time. (s 68) • The court has the power to remove a restructuring manager or liquidator if they fail to execute duties prescribed or if their conduct is found to be contrary to the Act. However, the latter is given the chance to defend himself. (s 70) • The court can inquire a restructuring manager or liquidator for any action done or taken by him or her and in such an event, the latter has to reply promptly. (s 71)

31. Misc. • The following acts are considered as offences and punishment is provided. (S.72) • Non submission of report on the financial condition and transaction of the company to the court by the person holding the office of director of the company • Acting as an insolvency practitioner without obtaining license • Non disclosure of insolvency status of the company by the director • Failure of insolvency practitioner to discharge the functions laid down by the Act in good faith • Committing any act of fraud or forgery against, or cheating or misleading the company or its creditors by director or employee or shareholder or other person of a company

32. Contd. • The liquidator, Office or concerned party can file a case against any person who appears to have committed an offense under the Act. (s 73) • The party making an appeal has to recover the expenses incurred by the other party if the court of appeal affirms the decision of lower court. {s 74(1)} • The former might have to compensate for actual loss or damage borne by the company, shareholders or creditors if the prolongation of proceeding is caused as a result of any action instituted by him. {s 74(2)} • The Office is provided with the power to frame necessary manuals in order to facilitate the insolvency proceedings. (s 75) • The issues not affected due to the inoperativeness of the Insolvency Ordinance, 2062 is enlisted. (s 77)

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