Finance and Money Management

Understanding the Role of Personal Guarantors in IBC Claim Filing


The Insolvency and Bankruptcy Code (IBC) has completely rewritten the bankruptcy framework for individuals and organizations, hence bringing about a paradigm shift in the Indian legal system. One area that has garnered significant attention is the incorporation of personal guarantors into the IBC. This measure impacts guarantee providers as well as lenders and the whole ecosystem surrounding bankruptcy. In this essay, we look into the advantages and disadvantages of personal guarantors under the IBC

Who is a Personal Guarantor?

In the past, insolvency processes were primarily focused on business borrowers. However, the 2019 IBC amendments recognized the interconnectedness between personal guarantees and corporate loans by bringing personal guarantors within its jurisdiction. This suggests that personal guarantors can file for bankruptcy Claim filing under IBC at the same time or later if a corporate debtor files.

Implications for Personal Guarantors: 

  1. Procedures: Now that personal guarantors are included, lenders can file for bankruptcy against them without having to get in touch with the corporate debtor. Personal guarantors risk having their bankruptcies announced if they fail to fulfill their obligations. 
  2. Dependency on Guarantor Assets: In the aftermath of the IBC, bankruptcy processes may center on the personal guarantor’s assets, perhaps leading to a liquidation to recover the unpaid sum. This might immediately jeopardize the guarantor’s financial security.
  3. Reputation and Credit Score: A personal guarantor’s credit rating and standing in the financial industry may suffer from an insolvency action against them. In the future, it may make it more difficult for them to get credit or do business.
  4. Cross-Border Implications: The IBC may have effects on personal guarantors who operate or own property in many countries. This may provide difficulties for them when dealing with legal issues and asset recovery. 
  5. Avoidance Transactions: The Code on Insolvency and Bankruptcy permits the avoidance of specific transactions that the personal guarantor could have made to avoid having to pay back debts. During bankruptcy procedures, these transactions may be contested and overturned.
  6. Complicated Legal Procedures: When personal guarantors are involved, legal processes become more complicated since they may touch on both individual and corporate insolvency, necessitating a thorough comprehension of both.

Understanding Their Role in IBC Claim Filing

We now focus on the Indian Banking Corporation (IBC), which has transformed the Indian financial industry since its establishment in 2016. When a corporate firm cannot pay its debts and becomes insolvent, creditors can file claims under the IBC framework to get their money back. Kindly come in, personal guarantor. If the guarantor indicated above has pledged assets or provided a personal guarantee for the obligations of the corporate borrower, they are also participating in the bankruptcy procedure.

Key Points to know:

  1. The fallacy regarding the distinct legal entity: The concept of an independent legal entity is a cornerstone of business law. A company must be independent of its guarantors, promoters, and directors. The responsibilities of personal guarantors are pooled with those of the corporate debtor under the IBC, blurring this difference.
  2. The Inclusion of Personal Guarantors in the IBC: Section 60(2) of the IBC serves as our guide. It brings personal guarantors under the purview of insolvency procedures. If the corporate borrower defaults, creditors essentially have the option to enter the fray and file for bankruptcy against personal guarantors to recover their unpaid debts.
  3. Filing Claims: A Crucial Step Personal guarantors are entitled to file claims under IBC using the process just like any other creditor under the terms of the agreement. They must confirm that everything is in order and provide the resolution professional tasked with overseeing the insolvency procedure with the required documentation and evidence of their claim. 
  4. National Company Law Tribunal: How these claims are handled will ultimately be determined by the National Company Law Tribunal (NCLT) and the Committee of Creditors (CoC). The resolution plan developed by the CoC and later authorized by the NCLT governs the handling of these claims. This plan calls for the personal guarantor to sell assets or utilize other planned means of debt repayment.
  5. Repercussions for Non-Payment: Let’s not mince words. There are repercussions if the personal guarantor breaks their end of the agreement and fails to pay the guaranteed debt. There may be impending legal action, which can involve the abduction of private property or possibly bankruptcy procedures.

In Conclusion

Personal guarantors under IBC are important players in the complex insolvency and bankruptcy procedures. Even though their liability is based on the mistakes made by the corporate borrower, they are nevertheless subject to the same rules and regulations as other creditors. A fair and just settlement depends on all parties involved, including personal guarantors, being aware of their rights and obligations. The fact that organizations like Ancoraa Resolution are involved only serves to highlight how complex bankruptcy procedures are since they are essential to streamlining the resolution process and guaranteeing compliance with legal requirements.

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