IBC (Amendment) Ordinance, 2020: A Pandemic Of Bad Drafting

Much awaited amendment has been made in IBC by an Ordinance promulgated on 5th June, 2020. The main part of Section 10A is reproduced as under: "Notwithstanding anything contained in Sections 7, 9 and 10, no application for initiation of corporate insolvency resolution process of a corporate debtor shall be filed, for any default arising on or after 25th March, 2020 for a period of six months or such further period, not exceeding one year from such date, as may be notified in this behalf:" In fact, the placement of the expression "as may be notified" used at the end of the main Section 10A is the root cause of confusion. So what is intended to be conveyed by the drafter is that the "defaults arising on or after 25th March, 2020 for a period of six months or such further period as may be notified by the Central Government in this behalf but not exceeding one year from the said date" have been made "non-actionable". The main part of Section 10A could have been better cast or rearranged in the following manner for conveying the intended purpose thereof: "Notwithstanding anything contained in Sections 7, 9 and 10, no application for initiation of corporate insolvency resolution process of a corporate debtor shall ever be filed for any "default arising on or after 25th March, 2020 for a period of six months or such further period as may be notified by the Central Government in this behalf but not exceeding one year from the said date." I think since the intention was to make certain defaults occurring during the pandemic period "non-actionable" for the purpose of triggering insolvency process by applications under Sections 7, 9 and 10 and also for the purpose of Section 66 IBC, the better way would have been to amend the definition of "Default" itself by simply adding a Proviso in Section 3 to the following effect: "Provided that the defaults arising on or after 25th March, 2020 for a period of six months or such further period as may be notified by the Central Government in this behalf but not exceeding one year from the said date, shall not be considered for the purpose of calculating the 'minimum amount of default' under Section 4 of the Insolvency and Bankruptcy Code, 2016."