The industry is keenly awaiting final guidelines on Surety Solutions after draft guidelines were released by insurance regulator Insurance Regulatory and Development Authority (IRDA) in September. Promoters already engaged in offering Surety Solutions will be given preference as per draft guidelines.
Vikash Khandelwal, CEO, Eqaro Guarantees said that each contract requires the contractor to put up various bonds over the life cycle of the project which together may total up to approximately 15-20% of the total cost of the project. Most of the guarantee requirements for the infrastructure sector are fulfilled by the banks in the form of bank guarantees cutting across banking lines, consume on collaterals, and margin money thus sucking out liquidity from a contractor who is already reeling from a liquidity crisis. Since sureties depend on their underwriting expertise to assess the risks associated with the project, they usually do not require cash collaterals to issue surety guarantees.
Hence, as a result, surety guarantees do not cut across banking lines or consume productive collateral which can be used by the contractor far more efficiently towards executing the project or to participate in new project opportunities, Khandelwal added.
It is notable that in the US and other developed countries of the world, Surety guarantees are mandated by law on infrastructure projects and have played an enabling role in protecting the interests of the project owners and the lenders from the consequences of contractor failure.
Speaking further on surety solutions, Khaldelwal said, “The basic construct of the surety underwriting is the assumption of zero loss – it means that the underwriter approaches a given proposal with the conviction that the underlying obligation will be fulfilled from today’s perspective. As such it’s imperative that the surety is assured of a full recourse against the principal in the event of a default and the subsequent call on the guarantee.”
Currently, the Insolvency and Bankruptcy Code (IBC) grants the guarantor certain rights under the act. It includes the right of a guarantor to initiate corporate insolvency proceedings against the debtor. The IBC also distinguishes between a financial creditor and an operational creditor and the rights available to them under the IBC. Further, since the guarantor steps into the shoes of the original creditor under the Indian Contract Act, it’s important to ascertain the exact nature of the debt to be able to get an understanding of the rights of a surety under the IBC.
The Insolvency law grants differential rights depending on whether a creditor is an operational or a financial creditor which include the manner in which the creditor can file for initiation of the insolvency proceedings, inclusion in the committee of creditors, and the right to vote on a resolution as well. Operational creditors are neither included in the committee of creditors nor can they vote on any resolution during the insolvency process and are ranked lower in the hierarchy below the financial creditors for the distribution waterfall.
Khandelwal further said that if the concept of surety insurance has to flourish in India and achieve the desired objective of creating surety capacities in our country thereby offering much-needed relief to the contracting community, care should be taken to impart complete clarity to the rights and recourse available to the surety insurance companies. Surety companies have to be sure about how and where they stand with respect to other regulations in India.
