Other Creditors Arising From The Cessie in PKPU & Bankruptcy

Alexandra Gerungan

Postponement of debt payment obligation (Penundaan Kewajiban Pembayaran Utang, “PKPU”) is a legal remedy that can be taken to restructure the debtor’s debt in order that he is able to pay off his debts. The PKPU application can be submitted either by the Debtor or the Creditor on the condition that the PKPU involves more than 1 (one) creditor with debts due and collectible pursuant to Article 222 of the Bankruptcy Law and PKPU).

A. Cessie

Cessie is a transfer of debt in a manner regulated by laws and regulations, which is made in the form of an authentic or underhand deed with an obligation to notify the Debtor.

Article 613 of Indonesian Civil Code 

“The transfer of registered debts and other intangible assets shall be effected by using an authentic or private deed, in which the rights to such objects shall be transferred to another. Such transfer shall have no consequences with respect to the debtor, until he has been notified thereof, or if he has accepted the transfer in writing or has acknowledged it. The delivery of Debt Securities for indebtedness shall take place by handover, the Debt Securities for indebtedness by submission and endorsement of the paper.”

Pursuant to Article 613 of Indonesian Civil Code, it should be noted that the provision regulates the bill, but the bill in question does not have to be in the form of money. The Legal Explanation Book About Cessie written by Rachmad Setiawan and J. Satrio explains that “what is meant by bill here is bill for performance, which are intangible objects. So, if it is said that cessie is the transfer of bill on behalf of recipient of the Cessie, it does not mean that it must be in the form of money although it is usually about a certain amount of money. Bills on behalf of recipient of the Cessie are claims for the performance of the engagement, where the creditor is certain (known by the debtor)”.

According to Black Law Dictionary by Henry Campbell Black, MA Revised Fourth,

“The relinquishment, concession, or giving up of a right, claim, or privilege, by the person in whom it exists or to whom it accrues, to the person against whom it might have been demanded or enforced”.

Cessie in this defintion can be interpreted to have something to do with the transfer of rights from the giver of the cessie to the recipient of the Cessie that can be sued and forced.

According to Prof. Subekti, Cessie is the transfer of credit rights which is actually a replacement for people with old debts; According to Prof. Mariam Daruz Badrulzaman, Cessie is an agreement in which the editor transfers his receivables to (on behalf of) another party; and according to Prof. Sri Sudewi, Cessie is the transfer of receivables on behalf of recipient of the cessie which is carried out by making an authentic deed or an underhand deed, then notification related to the transfer of receivables is given by the bailiff to the debtor of the receivable.

Read more: Pledoi is

B. Cessie In PKPU

The Cessie may give rise to other entities that are considered as Other Creditors in PKPU because it is a legal transfer of claim rights, and it fulfills the provisions of Article 613 of the Indonesian Civil Code so that it also fulfills the provisions of Article 222 paragraph (1) of the Bankruptcy Law and PKPU.

In practice, regarding Other Creditors in the process of Cessie in PKPU as of this writing, there are still pros and cons from judges who examine, hear and decide on a PKPU case i.e., there are several PKPU decisions that grant the PKPU Application because the judges, based on legal considerations, acknowledge the existence and position of Other Creditors arising from the Cessie in PKPU. It is also stated in the Book of Legal Explanation About Cessie written by Rachmad Setiawan and J. Satrio that “In general the term Cessie has been accepted, but the meaning and usage are not uniform. There are still those who use the term for the transfer of objects that are not Bills on behalf of recipient of the Cessie.”

For example, several decisions, which in their legal considerations, recognize  the existence and position of Other Creditors arising from the cessie process:

(i)           Decision Number 30/Pdt.Sus-PKPU/2020/PN.Niaga.Jkt.Pst, dated March 9th, 2020

• Legal Considerations:

“Whereas the Deed of Debt Transfer (Cessie) that has been notified to PKPU Respondent and has been pursuant to Article 613 of Indonesian Civil Code can be justified. Therefore, PKPU Respondent has a debt to Other Creditors.”

(ii)          Decision Number 1/Pdt.Sus-PKPU/2020/PN.Niaga.Smg, dated January 13th, 2020

• Legal Considerations:

“Whereas, in legal considerations, recognizing Other Creditors due to the transfer of debt from the PKPU Applicant and pursuant to Article 613 of the Civil Code the transfer is legal in accordance with law, and the panel of judges believes that the PKPU Application has complied with Article 222 of the Bankruptcy Law and PKPU.”

For example, several decisions, which in their legal considerations, reject Other Creditors arising from Cessie:

(i)         Decision Number 42/Pdt.Sus-PKPU/2021/PN.Niaga.Smg, dated November 29th, 2021

• Legal Considerations:

“According to the Panel of Judges, even though Cessie has been committed, the substance is only one person so it cannot be said to be Other Creditors.”

(ii)         Decision Number 52/Pdt.Sus-PKPU/2020/PN.Niaga.Jkt.Pst, dated March 19th, 2020

• Legal Considerations:

“The existence of Other Creditors arising from Cessie makes the debt in the PKPU case difficult to be proven simply as stipulated in Article 8 paragraph (4) of the Bankruptcy Law and PKPU.”

From the non-uniformity of legal considerations in several PKPU decisions mentioned above, Other Creditors arising from Cessie in PKPU & Bankruptcy are also regulated in the provisions of Circular Letter Number 07 of 2012 on the Formulation of the Results of the Plenary Meeting of the Supreme Court Chamber as a Guidance to the Implementation of Duties for the Court in the section of the Special Civil Chamber Meeting, which states:

“When is Cessie’s understanding can be said to be the Creditor of the Debtor who is petitioned for bankruptcy? After the transfer is notified to the Debtor, or it is approved and acknowledged in writing. (Article 613 paragraph (2) of the Indonesian Civil Code)”

So, as of this writing, there is still non-uniformity of regulations regarding Other Creditors arising from Cessie in PKPU.

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