Both operational creditors and financial creditors own certain advantages over each other. But Financial creditors are given some priorities over other creditors such as they are members of the creditor’s committee and have voting power etc and operational is not a member of the creditor’s committee.
In the present case, the NCLAT held that the Appellants were acting as investors, the money they gave to the Respondents was in the nature of a loan, satisfying the condition of amount “disbursed against consideration for time value of money,” and the committed returns were in the nature of “interest.”
Under Section 7 of the IBC, this amendment allowed the home buyer to initiate insolvency proceedings against defaulting Promoters. However, the Insolvency Amendment 2018 was challenged in the Supreme Court of India by approximately 200 realtors.
The homebuyers who have got RERA refund orders and if builder has defaulted in making the payment, you can file case before NCLT under IBC laws
The new framework allows Creditors to continue recovery process with Personal Guarantor after completion of the Corporate Insolvency Resolution Process.
A financial creditor(s) may file an application for initiating CIRP u/s 7 of IBC against a corporate debtor when a default has occurred.
There has been no further clarification as to whether the home buyers are secured financial creditors or unsecured financial creditors, but in consideration of the recent developments, one thing is sure that the result will be in the interest of homebuyers only.
Home buyers are vital stakeholders in building projects. Many home buyers book their property in advance which helps builders raise funds for construction and development of the project.
The homebuyers who wish to seek refund of their amount are legally entitled to approach National Company Law Tribunal (NCLT) under IBC.
Initiation process of Insolvency Resolution by a financial creditor in the easiest possible manner along with the time line that is required to be followed.
The Insolvency and Bankruptcy Code (Amendment) bill 2017, describes the Financial Creditor and the Operational Creditor and the ambit of its applicability on creditor-debtor relationship.
The IBC has introduced new and distinct concepts of ‘Financial Creditor’ and ‘Operational Creditor’ as opposed to the Companies Act, 2013 which merely introduced the term ‘creditor’, without any classification thereof.
‘Financial Debt’ would have to be construed to include interest free loans advanced to finance the business operations of a corporate body.
The NCLAT had to decide whether the NCLT/CoC may provide resolution applicants repeated chances to alter their individual resolution plans and whether the CoC was authorised to entertain fresh or revised resolution plans without exhausting available bids.
This judgement is a step in the right direction because it recognizes the authority of a non-petitioning creditor to request for a transfer of the winding up proceedings. It assures that A creditor is not deprived of their right just because they didn’t participate in the initial winding up procedure against corporate debtor.