IMPORTANT THINGS TO BE CONSIDERED IN FILING FOR BANKRUPTCY TO THE COMMERCIAL COURT
“Petition for bankruptcy may be filed by the creditor/s or even the debtor itself.”
Petition for bankruptcy is generally filed by the creditors who have receivables against the debtor. However, besides filed by the creditors, the debtor may file for bankruptcy against himself.
It is in accordance with Article 2 paragraph (1) Law Ini 37 of 2004 on Bankruptcy and Suspension of Debt Payment Obligation (“Bankruptcy Law“) which states:
“A debtor having two or more creditors and failing to pay at least one debt which has matured and became payable, shall be declared bankrupt through a Court decision, either at his own petition or at the request of one or more of his creditors.“
Moreover, in Article 2 paragraph (1) of Bankruptcy Law, it is stated “the request of one or more of his creditors.” Although the request may be filed by one creditor, it does not ruled out the main condition which the debtor should have at least two creditors to be declared bankrupt.
If the petitioner is one of the creditors, it is necessary in his petition to clarify the existence of other creditors who have receivables from the debtor. Furthermore, in verification process, creditor who is the petitioner shall be able to present the evidence regarding the receivables.
Evidences of the petitioners’ receivables and other creditors’ receivables will be listed in the bankruptcy petition. This is because when the petition of bankruptcy is filed, it should be attached with the supporting evidence. This procedure is clearly different from the civil lawsuit, which the evidences will be presented before the court in evidentiary hearing.
The evidences which need to be prepared are:
- Proof of legal relationship (transaction/cooperation or else) between creditor (petitioner) and debtor (petitionee). It may be agreement or contract, purchase order (PO), etc;
- Proof of debts between creditor and debtor, i.e. invoice or bills on different forms;
- Correspondent proof which indicates there has been an effort of collecting debts by creditor against the debtor, may be a collection letter, reprimand letter, or summons; and
- Proof of debtor’s debt to the other creditors.
Based on our experiences in preparing evidences in pre-petition stage, communication and cooperation among creditors are needed. This is due to the need of evidences which can prove that the debtor has debts to the other creditors.
Basically, bankruptcy cases are based on simple proof principle. The facts that debtor has two or more creditors and the debt has matured and became payable can be a proof for filing a bankruptcy. Meanwhile, dispute regarding the debts nominal does not make the bankruptcy petition get rejected by the Court.
It is important to keep in mind that bankruptcy petition is different from civil lawsuit. Bankruptcy petition should be filed by lawyer. Thus, the debtor or creditor cannot file for bankruptcy by themselves, but rather by their lawyer. This is in accordance with provision under Article 7 paragraph (1) of Bankruptcy Law.
Fairus Harris, S.H., M.Kn.