That the main purpose of Suspension of Debt Payment and Bankruptcy process is restructuring the debt payment of the Debtor against Creditors. For this reason, The Debtor has a right to propose a Settlement Plan whether on Suspension of Debt Payment process or Bankruptcy process. In Suspension of Debt Payment process, The Debtor right to propose a Settlement Plan, regulated by Article 265 Act No. 37 of 2004 regarding Bankruptcy and Suspension of Debt Payment (herein after referred to as “Act No. 37/2004), which regulates:
“The Debtor has a right at the time propose Suspension of Debt Payment Application or after that to propose Settlement Plan to Creditors”.
While in the Bankruptcy process, the rights of the Debtor to propose a Settlement Plan, regulated by Article 144 Act No. 37/2004, which regulates:
“The bankrupt Debtor has a right to propose Settlement Plan for all creditors”.
A. Settlement In Suspension of Debt Payment Process
In the Suspension of Debt Payment process, The Debtor can propose Settlement Plan along with a Suspension of Debt Payment Application (In case the Suspension of Debt Payment is filed by The Debtor) or filed later during the Suspension of Debt Payment process. A Settlement Plan has been filed by The Debtor to be discussed at the Creditor’s Meeting, to furthermore a vote is carried out (voting). Based on Article 281 paragraph (1) point a and b Act. 37/2004, in Suspension of Debt Payment process, Settlement Plan was accepted by The Creditors, in the case:
- Approval of more than 1/2 total Concurrent Creditors whose rights are recognized or temporarily recognized who are present at the meeting of voting The Settlement Plan, which together represents at least 2/3 part of all recognized bills or temporarily recognized bills from Concurrent Creditor or power of attorney who are present in the meeting; and
- Approval of more than 1/2 total Separate Creditors who are present at the meeting of voting The Settlement Plan, which together represent at least 2/3 part of all bills from Separate Creditor or power of attorney who are present in the meeting.
The Settlement Plan which is approved by Creditors will then be legalized by The Court as long as there is no reason that could result from The Court’s rejection to legalize Settlement Plan, regulated by Article 285 paragraph (2) Act 37/2004. The Settlement Plan which was legalized, bound all Creditors unless Creditors disagrees Settlement Plan, as referred to in Article 281 paragraph (2) (Vide Article 286 Act No. 37/2004). The Creditor as referred to in Article 281 paragraph (2) is Separate Creditor who disagrees Settlement Plan.
B. Settlement In Bankruptcy Process
As in the case of Suspension of Debt Payment process, in the Bankruptcy process, The Debtor also has a right to propose Settlement Plan. But in the Bankruptcy process, Settlement Plan can approve by Creditors in case get approval at the Creditor’s Meeting from more than 1/2 total Concurrent Creditors whose rights are recognized or temporarily recognized who are present at the meeting of voting The Settlement Plan, which together represents at least 2/3 part of all recognized bills or temporarily recognized bills from Concurrent Creditor or power of attorney who are present in the meeting (Vide Article 151 Act. 37/2004).
On this basis, in the Bankruptcy process, only Concurrent Creditors have voting rights in a vote of The Settlement Plan. This is because, based on Article 149 paragraph (1) Act No. 37/2004, it has been regulated that:
“Lien holders, fiduciary guaranty, security rights, hypothec or collateral rights of another good and privileged Creditor, include Creditor who has rights to preferred which is refuted, voting rights are prohibited regarding Settlement Plan, unless when they have to release their rights to preferred for Bankruptcy Asset interests before voting of Settlement Plan held.”
The Settlement Plan which is approved by Creditors will then be legalized by The Court as long as no reason could result from The Court’s rejection to legalize Settlement Plan, regulated by Article 159 Act 37/2004. The Settlement Plan which was legalized, bound all Concurrent Creditors as referred to in Article 162 Act No. 37/2004, which regulates:
“Settlement Plan which legalizes applies to all Creditors who does not have a right to preferred with no exceptions, whether who has been proposed in Bankruptcy process or who does not propose in Bankruptcy process.”
C. NULLIFICATION OF SETTLEMENT PLAN
In the process of implementing the Settlement Plan, there is always a possibility of conditions The Debtor does not implement The Settlement Plan that has been legalized (Homologasi) or carried out but not as it should be. If this situation was to occur, there are legal remedies that can be pursued by Creditors to Apply for The Annulment of the Settlement Plan, as referred to in Article 170 Jo. Article 171 Jo. Article 291 Act No. 37/2004, which regulates:
Article 170 Act No. 37/2004:
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The Creditor can prosecute the annulment of a Settlement Plan that has been legalized, in case The Debtor default on performing his obligations in the Settlement Plan.
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The Debtor must substantiate that The Settlement Plan has been fulfilled.
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The Court has the authority to provide relaxation for The Debtor to perform his obligations at least 30 (thirty) days after The Decision is pronounced.
Article 171 Act No. 37/2004:
“The prosecute about the annulment of a Settlement Plan must be applied and stipulated with the same procedure, as referred to in Article 7, Article 8, Article 9, Article 11, Article 12 and Article 13 regarding bankruptcy application”.
Article 291 Act No. 37/2004:
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Regulation as referred to in Article 170 dan Article 171, prevailing mutatis mutandis against nullification Settlement Plan.
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In The Decision Nullification of Settlement Plan, it was The Debtor has been established in a state of bankruptcy
For nullification of the Settlement Plan which previously has been stipulated in the Bankruptcy process, in the Decision Nullification of Settlement Plan, it was also instructed Bankruptcy process reopened with the appointment of Supervisory Judge, The Receiver and The Member of Creditors Committee (If there was previously), who wherever possible are appointed from those who have previously held the post (Vide Article 172 paragraph (1) and (2) Act No. 37/2004). After Bankruptcy reopened again, The Debtor does not have a right to propose Settlement Plan and The Receiver must immediately initiate a settlement of the bankruptcy asset (Vide Article 175 paragraph (1) and paragraph (2) Act No. 37/2004). While for Nullification of Settlement Plan which previously has been stipulated in Suspension of Debt Payment process, in the Decision Nullification of Settlement Plan, it was The Debtor has been established in a state of bankruptcy and the asset of the bankruptcy Debtor is in a state of insolvency (Vide Article 291 paragraph (2) and The Explanation of Article 292 Act No. 37/2004).
Based on the description previously, then it can be concluded that in case The Debtor does not implement The Settlement Plan that has been legalized (Homologasi), the Creditors can pursue legal remedies with apply The Annulment of The Settlement Plan to the Commercial Court which has been examined, adjudicate and decide legalized of The Settlement Plan (Homologasi) previously, as referred to in Article 170 Jo. Article 171 Jo. Article 291 Act No. 37/2004.
