TURNAROUND OF WHOLESALE & RETAIL SECTOR UNDER IBC

TURNAROUND OF WHOLESALE & RETAIL SECTOR UNDER IBC 2016

Legal environment of a country plays a pivotal role in its economic development, and a robust and effectively implemented legal system strengthens the country’s global standing. Following the implementation of the Goods and Services Tax, the IBC has become the second most significant reform in India’s legal landscape

Increasing Trend of admission of CIRP – Wholesale & Retail Units

Ease of doing business for MSMEs: Cases under CIRP have increased each quarter since the launch of IBC, highlighting the rising acceptance of IBC as an effective debt resolution mechanism.

As per market report, the number of cases belonging to the wholesale and retail trade increased from 526 as of March 2022 to close to 700 + at the end of March this year.

Importantly, the share of the trading sector in the total 6,571 insolvency cases as of March 2023 stood at 10 per cent – fourth highest after 2,561 manufacturing cases with 39 per cent share followed by 1,379 cases from the real estate sector with 21 per cent share, and 722 cases from the construction with 11 per cent share. Hotels & restaurants, electricity & others, transport 7 storage, etc., were other sectors with cases under CIRP.

Wholesale & Retail  Trade Sector

Wholesale trade  is distributing is the sale of goods or merchandise to retailers; to industrial, commercial, institutional, or other professional business users; or to other wholesalers (wholesale businesses) and related subordinated services.

Retail Trade we mean the market that includes all those activities that involve the sale of goods or services by a company/wholesaler directly to the consumer that are usually purchased for personal or family use.

Retailers can be both retail and institutional.

By Type

• Non-Durable Goods Merchant Wholesalers
• Wholesale Electronic Markets
• Agents And Brokers
• Durable Goods Merchant Wholesalers

By Ownership

• Wholesale/Distribution Chain
• Independent Wholesalers

Wholesale retail trade sector – Journey of Wholesale trade  in India

The pandemic brought about significant shifts in consumer preferences and the way businesses operate. As a result, the adoption of new and emerging technologies became a necessary.

Rapid digitisation, increasing internet penetration both in urban and rural India, and the growing scale and scope of online players have changed consumer’s shopping habits (who are spoilt for choices and comfort).

Several social factors, such as shifting consumer preferences and demographics, rising awareness about the environment, improved income and ability to spend Technology is driving the wholesale and retail market’s growth faster than Before.

Industry <——Wholesale<——–Retailers<—– Consumer Preference

RBI & IBC Restructuring

1) Government Initiative: The Government of India has taken various initiatives to improve the retail industry in India. Some of them are listed below:

• PLI Scheme
• New Framework for digital Payments ( CBDC)
• Retail Parks Policy by AP Govt (Target Investment by 5,000 crores)
• GOI Allowed 100% FDI

The Minister of MSME announced inclusion of retail and wholesale trades as MSMEs. Retail and  wholesale trade will now get the benefit of priority sector lending under the RBI guidelines

Eased Credit  access for retail & Wholesale traders by loans under Credit Guarantee Fund Trust for Micro and Small Enterprises (CGTMSE).( Credit Limit extended to 2 Cr from 1 Cr)

RBI Restructuring Framework – History :

• Very early in the year of 1970, there existed the term restructuring. In the year of 1970, the Reserve Bank of India issued guidelines which was earlier the instruction only but it was eventually turned as guidelines pertaining to restructuring of financial aspects of a company in the circumstances of natural calamities and financial complications. In those guidelines, the Reserve Bank stated that any company if undergoing financial crisis and if they voluntarily want to undergo corporate restructuring and only 75% creditors are in favor of the proposed restructuring, all of them are considered as in favor of the modification. Such restructuring is only to be done by those enterprises which had taken loans from various creditors and the amount of debt that is due on the enterprise shall be 100 million or more to be eligible for corporate restructuring.
• In case where the enterprise is a bank or any other financial institution, it can be eligible for corporate restructuring if it contains 20% share in loan of the company. In the year of 2012 there were 292 cases of corporate restructuring involving nearly 1.5 lakh crore rupees which were increased to 401 cases of corporate restructuring which involved more than 2 lakh crores.
• Then after in 2015 the draft of IBC was made to provide a code which contain whole provisions of restructuring.
• Under the RBI Circular dated 7 June 2019, the term ‘restructuring’ is defined to include modification of terms of advances, rollover of credit facilities, sanction of additional credit facility and release of additional funds for an account in default to aid curing of default and enhancement of existing credit limits, and compromise settlements when time for payment of settlement amount exceeds three months.
• Restructuring under 5 May 2021 circular: by way of its circular dated 5 May 2021 (Resolution Framework 2.0), RBI permitted accounts that were not restructured under the resolution framework for covid-19-related stress dated 6 August 2020 (Resolution Framework 1.0) or the earlier frameworks to be restructured, whereby restructuring should be invoked by 30 September 2021 and implemented within 90 days. This threshold of aggregate exposure being less than 250 million rupees has been increased to less than 500 million rupees by way of a RBI circular dated 4 June 2021.
• For individuals and small businesses with aggregate exposure of less than 250 million rupees (excluding a few categories as specified under the Resolution Framework 1.0), RBI has permitted lending institutions to implement a resolution plan, while classifying such exposures as standard, by way of its circular dated 5 May 2021, provided that such exposure has not been resolved under Resolution Framework 1.0 and is standard as at 31 March 2021. This threshold of aggregate exposure being less than 250 million rupees has been increased to less than 500 million rupees by way of RBI circular dated 4 June 2021. Given the lack of consensus among creditors in arriving at mutually agreed inter-creditor arrangements, these options are usually not successful.
• Informal and bilateral workouts: parties may engage in an out-of-court informal workout through a bilateral arrangement between the creditors and the debtor. This allows the parties flexibility in determining the terms and conditions of the restructuring without any judicial intervention in the process. Such restructurings are generally ineffectual given the conflicting interests of different lender groups.
• Scheme of arrangement: under the Companies Act, a debtor or company can seek to resolve its debts by way of entering into a compromise or arrangement with its shareholders and creditors of any class, supervised by the NCLT. This form of restructuring requires consent of three-quarters of the creditors in value and the majority being present and voting. The process under the Companies Act is a purely debtor-driven process. It is cumbersome to implement (with protracted timelines)
• Further Reserve Bank of India’s (RBI) permited a one-time restructuring of loans amid the COVID-19 crisis supported the retail industry that has witnessed significant disruption over the past few months. It said banks have made huge investments in the retail sector, and if the sector struggles to get back on its feet, a significant portion of that investment could turn into non-performing assets

Prepack Insolvency- Pre-Packaged Insolvency Resolution Process

• The government’s PPIRP implemented in 2021 for resolving financial stress among MSMEs — where default amount ranges between Rs 10 lakh and Rs 1 crore – hasn’t seen significant adoption, according to the RBI. Reserve Bank of India  commented on the future road map for the resolution of stressed assets and IBC (Insolvency and Bankruptcy Code), said the response towards the adoption of Pre-Packaged Insolvency Resolution Process  “seems to be relatively muted.”
• One reason could be the hesitancy on the part of the financial creditors (FCs) in approving the proposals under this mechanism, wherein the haircut is perceived as voluntary,
• Pre-Packaged Insolvency Resolution Process discretionary nature of settlement terms makes PSU lenders reluctant to agree to terms which could later lead to personal questions against the officers involved. Promoters tend to hold-out, hoping for a revival or just in hopes of avoiding the embarrassment of a bankruptcy tag against their name. The result is that the process, which could be a game-changer for affecting turnarounds, has found few takers so far. Although PPIRP enables the promoter to be a part of the restructuring, with a reduced litigation risk, systemic changes are required before the process kicks in.

FEW Case Laws in Sector 

• Contract Logistics Private Limited Vs. ITC Limited:

The Operational Creditor filed an application under section 9 IBC against ITC Limited for payment of Rs. 83,25,074/- arising out of three invoices between the year 2017-2019.. However, the court found that there was no compliance of section 8 IBC as there was a pre-existing dispute present which was clear through the correspondences via email and complaints by ITC against the OC for deficiency in services provided and that the dispute is reflected even in the reply to the demand notice hence section 8 has not been complied therefore section 9 application cannot be admitted.

• Bizerba India Private Limited vs. Cissil Retail Management Private Limited

Section 9 petition filed by the OC. Both the companies involved belong to retail trade industry. The OC provided and installed retail scale machines to the corporate debtor as per agreement in 2015. As per the MoU in 2016, a running account was maintained by the OC for the payments to be made by the Corporate Debtor.. The tribunal admitted the application based on the evidence of invoice, demand notice, financial transactions and bank statements indicating the default. Moratorium was issued.

• Brand Realty Services Ltd vs. Sir John Bakeries India Pvt Ltd.

Breach of settlement agreement would not be an operational debt and the IBC cannot be taken recourse to as the Adjudicating Authority is not a debt recovery forum.

• Future Coupons Private Limited versus Amazon.com NV Investment.

The Supreme Court in previous order put stay on the process of approval of Final Scheme by NCLT though the composite scheme of arrangement was approved by the CCI and SEBI. The NCLT was to wait until the merits of the case were decided upon before the Supreme Court. It was argued that it takes 16 stages for the scheme to achieve finality and presently the scheme by Future retail is at the eight stage and it will take 6 to 8 months for remaining process to be completed and the assets will be alienated only after that and until then Amazon is not prejudiced. It was argued that liberty be given to approach High Court for continuation of NCLT proceedings else the delay will cause more expenses to pile up which might lead to insolvency and hence render the agreement between Future Retail and Reliance redundant

• Future Retail Limited-

The Hon’ble NCLT, Mumbai Bench vide an order dated 20th July 2022 admitted a petition under section 7 of the IBC code filed by Bank of India for initiating Corporate Insolvency Resolution Process (CIRP) against Future Retail Limited. The Company is still under CIRP.

• Future Supply Chain Solutions Limited-

The Hon’ble NCLT, Mumbai Bench vide an order dated 05th January 2023 admitted a petition under section 9 of the IBC code filed by DHL Ecommerce (India) Private Limited for initiating Corporate Insolvency Resolution Process (CIRP) against Future Supply Chain Solutions Limited. The Company is still under CIRP.

• Future Enterprises Limited-

The Hon’ble NCLT, Mumbai Bench vide an order dated 27th February 2023 admitted a petition under section 9 of the IBC code filed by Foresight Innovations Private Limited for initiating Corporate Insolvency Resolution Process (CIRP) against Future Enterprises Limited. The Company is still under CIRP.

• Future Lifestyle Fashions Limited-

The Hon’ble NCLT, Mumbai Bench vide an order dated 04th May 2023 admitted a petition under section 7 of the IBC code filed by Bank of India for initiating Corporate Insolvency Resolution Process (CIRP) against Future Enterprises Limited. The Company is still under CIRP.

Recent cases

• Future Retail: Latest order is on 03/06/2024. As per order dated 03rd June 2024, hearing on IA 2608/2024 IA 2639/2024 In C.P. (IB)/527(MB)2022 has been posted to 02.07.2024.
• Future Supply: On 20th May 2023, Resolution plans have been invited and 04th June was given as the last date for submission of Resolution Plan. Subsequent to this, there is no update either in NCLT or IBBI.
• Future Lifestyle: On 14th August 2023, Resolution plans have been invited and 29th August 2023 was given as the last date for submission of Resolution Plan. Subsequent to this, there is no update either in NCLT or IBBI.
• Future Enterprise: Vide order dated 14/03/2023 the Adjudicating Authority has allowed application to extend CIRP by another 60 days. After which I.A. 5719/2023 I.A. 4693/2023 IN C.P.(IB)-513(MB)/2022 has been filed and it has been adjourned twice. The next hearing is on 27th June 2024.

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