Section 29A of India’s Insolvency and Bankruptcy Code: an instance of hard cases making bad law?

Abstract

The Insolvency and Bankruptcy Code (IBC) of India which offers a mode of reorganisation for distressed corporations prevents promoters and directors with non-performing assets from submitting plans to rescue their company. This provision is contained under section 29A of the IBC. Judicial interpretation has required corporate reorganisations under India's Companies Act to give effect to the limitations under section 29A as well. The introduction and application of section 29A is reflective of a broader scepticism towards allowing promoters and directors whose companies entered financial distress from regaining control. This article evaluates whether section 29A has addressed the problems it had set out to and finds that some ineligibilities prescribed for the incumbent management under section 29A can be relaxed. It also uses the example of the United Kingdom's insolvency regime (with which India bears similarities) to explain why resolution plans from the incumbent management should not be disallowed.