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Insolvency Proceeding in Nepal

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Insolvency Proceeding in Nepal – A case of Nepal Development Bank (NDB)

The day when court orders for liquidation of a company, it is the most miserable day for it. But such a harsh decision is taken only after deep investigation of the case. All the possible methods are adopted to protect the company before the decision of dissolution is taken. Like in other countries, Nepal’s Insolvency Act 2006 also emphasizes to protect the company from liquidation. We have taken a real liquidation case of Nepal Development Bank (NDB) as an example to correlate with Insolvency Act 2006.
NDB was a Class – B banking institution under the regularization of central bank – Nepal Rastra Bank (NRB). During the early years of establishment itself, NDB was trapped into a severe financial crisis. Being a regularizing body, NRB stepped in to rescue NDB but was unsuccessful. Finally, NRB decided liquidation of NDB. Generally practiced steps related to the insolvency are provided below and major proceedings held in case of NDB are linked with them as follows.
1. Administration
When a company is trapped into financial trouble, either it voluntarily tightens its administration or the regulating body gets hold of it. This is first and most safe step to protect a company from dissolution or liquidation. The major objective behind holding the administration is to rescue the company from financial difficulties. In case of NDB, NRB took over its administration and try to rescue and revive for five years.

2. Notice before Insolvency Proceedings
When administrative corrections fail to revive the company, a formal notice is sent to inform that the company is soon going for insolvency proceedings. In this stage, all the financial transactions are frozen. In Nepal, such notice can be sent by court upon recommendation of shareholders or the regulating body. The notice period is of 35 days. In case of NDB, it was provided with only 15 days notice because NRB was already handling the case since last 5 years.

3. Voluntary Arrangement
At this stage, company voluntarily decide to shut down the company and do all the processes related to dissolution. An insolvency expert, a third licenced party, is appointed to carry on all proceedings lawfully with consent of court. In case of NDB, a licenced third party insolvency expert was appointed who looked after all the financial analysis and legal proceedings of insolvency and liquidation.

4. Scheme of Arrangement
At this step, the third party tries and fixes the debt structure, reschedule the debt if possible and restructures whole company in terms of financial as well as HR structures. This is the last attempt to protect the company from dissolution. The activities happen with consent of the court and get executed by the third party. In case of NDB, NRB was already looking after the problem since last 5 years. Hence, they did not spend much time in this stage and went to the next step straight away.

5. Receivership
Until step 4, the legal system tries to protect and revive from even troublesome stages of the proceeding. When there is no other way out to save the company from dissolution, a proceeding is held by court and third party to find the creditors who should receive their part of credit given to the company. Hence, creditors are categorized as secured and unsecured. Secured creditors are those whose credits are secures by some mortgage. But unsecured are those ones who don’t have any mortgage as a security. In case of NDB also the same step was followed. Besides other creditors, Nepal army and Employee Provident Fund were recognized as big creditors.

6. Liquidation
After identifying the receivers, court gives an order to liquidate the company to pay its creditors. In this stage, all the assets of the company are sold to pay for the creditors. If the amount becomes short, former directors and CEO are held liable to pay the remaining if found guilty. In case of NDB, it was liquidated as per Insolvency Act and BFI’s Act in guidance of NRB.

Social Consequences of Liquidation

Liquidation Act 2006 of Nepal has emphasized and made provisions for restructuring the debt and whole organization at any stage before going for the liquidation. When the financial health of a company is not promising and restructuring also doesn’t help revive the company, there is provision for voluntary dissolution as well. Despite all those provisions made in the legal system of Nepal, and almost all over the world, if company goes for liquidation, law has provisioned for punishment for those who are guilty in taking the company all the way to liquidation stage.
The Act has specified punishments for guilty as below:
• Directors and CEOs can be arrested on the grounds of “Wrongful Trading”
• Punishment of Rupees 1 – 5 lakhs
• Imprisonment of 1 – 2 years
• Or both punishment and imprisonment
• Recovery of amount equivalent to forgery
In Australian and UK’s Acts, there is a provision that those who are found guilty will become disqualified in similar kind of job and position. This will virtually stop the career growth of the persons involved and can be considered as most sever social consequence of the offense.
Taking example of NDB, 40 persons including the then and former directors and CEOs were arrested and further legal proceedings were held. But the chain of consequences doesn’t stop here. There are other indirect effects in the society:
- Interest amount of creditors and depositors was lost due to liquidation of NDB.
- Depositors were deprived from using their own money due to freezing of bank’s financial activities.
- Innocent employees became victimized and had to lose jobs.
- Arrested persons became defamed and black listed in the industry, although not legally as the Act doesn’t have such provision.
Therefore, it can be said that there could be ups and downs in the financial health of a company, but we should not be late in finding out the remedies. Nepali legal system has opened all the doors to protect a company from liquidation. Even if it goes for liquidation, all the top level management becomes liable for the offense and have to face legal consequences. Indirect consequences are even higher than direct ones. Hence, it is suggested that if financial position of an organization is found weak, settle the matter by restructuring and volunteer dissolution outside the court.

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