Unfinished Reform: The Case For Legislative Harmonisation Of Creditor Hierarchies And Jurisdictional Supremacy Under India's Insolvency Framework
- IJLLR Journal
- 6 days ago
- 2 min read
Arnav Bhardwaj, O.P. Jindal Global University, Sonipat, Haryana
ABSTRACT
The Insolvency and Bankruptcy Code (Amendment) Act, 2026 (‘Amendment Act’ or ‘2026 Act’) represents one of the most significant legislative moves in India’s insolvency framework, since the enactment of the Insolvency and Bankruptcy Code 2016 (‘IBC’ or ‘Code’). By mandating that admission of applications under Section 7 of the Code, within fourteen days, taking in consideration the judicial discretion taken in the case of Vidarbha Industries Power Ltd v Axis Bank Ltd (2022), the Amendment Act proceeds to address procedural bottlenecks, that had materialised and started to undermine the IBC’s creditor-in-control model. Though the Amendment closes lot of loopholes, it leaves untouched a deeper source of structural tensions and systemic uncertainty that is the continued co-existence of the Companies Act, 2013’s winding up regime alongside the IBC. The absence of a well-defined fraud exception to the IBC’s supremacy doctrine & the divergent creditor hierarchies under Section 53 of the IBC and Section 326 of the Companies Act are some of the other sources of uncertainty. In this paper, I wish to argue that judicial improvisation, as seen in the cases of Innoventive Industries Ltd v ICICI Bank (2018) and qualified in Devas Multimedia Pvt Ltd v Antrix Corporation Ltd (2023), have proven insufficient as they generate exceptions that incentivise forum shopping, while producing inconsistent results. A targeted legal harmonisation like a unified creditor hierarchy, which reconciles Sec 53 of the Code with Section 326 of the Companies Act or a statutory definition of the fraud exception, which permits concurrent Companies Act proceedings, can provide certainty to objects that the 2026 Amendment procedurally initiated but left structurally incomplete.
Keywords: Insolvency and Bankruptcy Code, 2016; Companies Act, 2013; IBC Amendment Act, 2026; Creditor hierarchy; Forum shopping; Jurisdictional supremacy.
