Landmark judgement by Hon’ble Supreme Court on 15th Dec 17 in Macqarie Bank Ltd V. Shilpi Cable Technologies Ltd. Removed two threshold bars to the application by Operational Creditors for initiation of corporate insolvency resolution process under Insolvency and Bankruptcy Code 2016.
It was held that (1) It is not mandatory to file the certificate from financial institutions confirming unpaid debt as required in Section 9(3)(c);
(2) Demand notice can be issued by a lawyer on behalf of the operational creditor.
Considering this, may be, if the issue of definition of ‘Operational Creditors’ is brought before Hon’ble SC, those who have given advances (including home buyers) will also be considered as Operational Creditors under IBC.
From the following excerpts from the Report of the Bankruptcy Law Reforms Committee it is clear that the intention of law makers was not to debar any category creditors from invoking IBC provisions:-
“ the Committee proposes that any creditor, whether financial or operational, should be able to initiate the insolvency resolution process (IRP) under the proposed code” (Pg 13)
“Liabilities fall into two broad sets: liabilities based on financial contracts, and liabilities based on operational contracts” (Pg 54).