On February 17, 2020, the Ministry of Corporate Affairs (“Ministry”) issued a general circular bearing number 04/2020, which clarifies the procedures with respect to filing of documents in the MCA-21 registry where an insolvency resolution professional (“IRP”) or resolution professional (“RP”) or liquidator has been appointed under the Insolvency and Bankruptcy Code, 2016 (“IBC”) in respect of a company.  

The procedure that has been laid out is as follows:  

1. The IRP/RP/liquidator is required to file the order of the National Company Law Tribunal (“NCLT”), approving him as the IRP/RP/liquidator in form INC-28 on the MCA-21 portal by selecting the option “Others” at serial no. 5(a)(i) from the drop down menu in the form. After filling the form, the IRP/RP/liquidator while affixing his digital signature certificate (DSC), is required to choose his designation as “Others” in the declaration box.
2. Thereafter, the jurisdictional registrar of companies (“RoC”) is required to examine and approve the INC-28 form so filed. If the filed form is not in order, the RoC is required to mark the form under the re-submission/rejected category, as applicable.
3. Once the INC-28 form is approved, only the IRP/RP/liquidator is thereafter allowed to file any form on behalf of the company. For all subsequent filings, the IRP/RP/liquidator is required to choose his designation as “Chief Executive Officer” (“CEO”), for the purpose of filing e-forms, in various e-forms.
4. After the approval of INC-28 form, the master data for the company is required to clearly display that the said company is under corporate insolvency resolution process (“CIRP”) or liquidation, as the case may be, and the name of the IRP/RP/liquidator so appointed is required to be displayed in the CEO column.
5. The IRP/RP/liquidator is responsible for filing all necessary documents/disclosures/ returns for the purposes of compliances under the Companies Act, 2013.
6. For filing e-forms SH-8 and SH-9 and iXBRL, the IRP/RP/liquidator will be allowed to file the same in his role as CEO, instead of the form being signed by two directors. Similarly, in respect of e-form MGT-7, the IRP/RP/liquidator is required to sign the form instead of a director, and thereafter, the form is required to be certified by a company secretary in practice.

No other forms would be enabled for filing by the IRP/RP/liquidator in his role of designated CEO unless the INC-28 e-form is approved. The IRP/RP/liquidator in his role as designated CEO is again required to file e-form INC-28 upon the approval of the resolution plan, initiation of liquidation proceedings or upon withdrawal of the application for CIRP based on which the status of the company would get suitably reflected in the company master data.  

In a scenario where a new board of directors is required to be appointed in terms of the order passed by the NCLT or the National Company Law Appellate Tribunal, the details of the first authorised signatory of such board of directors is required to be inserted by the RoC after receiving an application from the IRP/RP/liquidator, wherein the SRN of the relevant e-form INC-28 is required to be quoted. Consequently, the authorisation for the IRP/RP/liquidator to file documents on behalf of the company will cease and the new authorised signatory will take over the responsibility of filing e-forms on behalf of the company.  

The Ministry has further clarified that in case the order of admission of a company (corporate debtor) into CIRP or into liquidation is stayed or is set aside by the NCLT or NCLAT or other courts, such order is required to be filed in form INC-28 by the concerned RP/IRP/liquidator. Consequently, the status of the company and the authorisation for filing of forms on behalf of company will change accordingly.   

This update has been contributed by  Adity Chaudhury (Partner) and Ishita Malhotra (Associate).