Preliminary (Sec. 78-79)

Section 78 Application

“This Part shall apply to matters relating to fresh start, insolvency and bankruptcy of individuals and partnership firms where

the amount of the default is not less than one thousand rupees:

Provided that the Central Government may, by notification, specify the minimum amount of default of higher value which

shall not be more than one lakh rupees.” 

VL Note : –

Section 79 Definitions

“In this Part, unless the context otherwise requires, –

(1) “Adjudicating Authority” means the Debt Recovery Tribunal constituted under subsection (1) of section 3 of the Recovery

of Debts Due to Banks and Financial Institution Act, 1993 (51 of 1993);

(2) “associate” of the debtor means –

       (a) a person who belongs to the immediate family of the debtor; 

       (b) a person who is a relative of the debtor or a relative of the spouse of the debtor;

       (c) a person who is in partnership with the debtor;

       (d) a person who is a spouse or a relative of any person with whom the debtor is in partnership;

       (e) a person who is employer of the debtor or employee of the debtor;

       (f) a person who is a trustee of a trust in which the beneficiaries of the trust include a debtor, or the terms of the trust

       confer a power on the trustee which may be exercised for the benefit of the debtor; and

       (g) a company, where the debtor or the debtor along with his associates, own more than fifty per cent. of the share

       capital of the company or control the appointment of the board of directors of the company.

Explanation. – For the purposes of this sub-section, “relative”, with reference to any person, means anyone who is related to

another, if-

       (i) they are members of a Hindu Undivided Family;

       (ii) one person is related to the other in such manner as may be prescribed;

(3) “bankrupt” means –

       (a) a debtor who has been adjudged as bankrupt by a bankruptcy order under section 126;

       (b) each of the partners of a firm, where a bankruptcy order under section 126 has been made against a firm; or

       (c) any person adjudged as an undischarged insolvent;

(4) “bankruptcy” means the state of being bankrupt;

(5) “bankruptcy debt”, in relation to a bankrupt, means –

        (a) any debt owed by him as on the bankruptcy commencement date;

        (b) any debt for which he may become liable after bankruptcy commencement date but before his discharge by reason

        of any transaction entered into before the bankruptcy commencement date; and

        (c) any interest which is a part of the debt under section 171;

(6) “bankruptcy commencement date” means the date on which a bankruptcy order is passed by the Adjudicating Authority

under section 126;

(7) “bankruptcy order” means an order passed by an Adjudicating Authority under section 126;

(8) “bankruptcy process” means a process against a debtor under Chapters IV and V of this part;

(9) “bankruptcy trustee” means the insolvency professional appointed as a trustee for the estate of the bankrupt under

section 125;

(10) “Chapter” means a chapter under this Part;

(11) “committee of creditors” means a committee constituted under section 134;

(12) “debtor” includes a judgment-debtor;

(13) “discharge order” means an order passed by the Adjudicating Authority discharging the debtor under sections 92, 119

and section 138, as the case may be;

(14) “excluded assets” for the purposes of this part includes –

        (a) unencumbered tools, books, vehicles and other equipment as are necessary to the debtor or bankrupt for his

        personal use or for the purpose of his employment, business or vocation,

        (b) unencumbered furniture, household equipment and provisions as are necessary for satisfying the basic domestic

        needs of the bankrupt and his immediate family;

        (c) any unencumbered personal ornaments of such value, as may be prescribed, of the debtor or his immediate family

        which cannot be parted with, in accordance with religious usage;

        (d) any unencumbered life insurance policy or pension plan taken in the name of debtor or his immediate family; and

        (e) an unencumbered single dwelling unit owned by the debtor of such value as may be prescribed;

(15) “excluded debt” means –

        (a) liability to pay fine imposed by a court or tribunal;

        (b)liability to pay damages for negligence, nuisance or breach of a statutory, contractual or other legal obligation;

        (c) liability to pay maintenance to any person under any law for the time being in force;

        (d) liability in relation to a student loan; 

        (e) any other debt as may be prescribed;

(16) “firm” means a body of individuals carrying on business in partnership whether or not registered under section 59 of the

Partnership Act, 1932 (9 of 1932);

(17) “immediate family” of the debtor means his spouse, dependent children and dependent parents; (18) “partnership debt”

means a debt for which all the partners in a firm are jointly liable;

(19) “qualifying debt” means amount due, which includes interest or any other sum due in respect of the amounts owed

under any contract, by the debtor for a liquidated sum either immediately or at certain future time and does not include –

        (a) an excluded debt;

        (b) a debt to the extent it is secured; and

        (c) any debt which has been incurred three months prior to the date of the application for fresh start process;

(20) “repayment plan” means a plan prepared by the debtor in consultation with the resolution professional under section

105 containing a proposal to the committee of creditors for restructuring of his debts or affairs;

(21) “resolution professional” means an insolvency professional appointed under this part as a resolution professional for

conducting the fresh start process or insolvency resolution process;

(22) “undischarged bankrupt” means a bankrupt who has not received a discharge order under section 138″ 

VL Note : –