A unique feature of the Indian insolvency regime is its
classification of debt into “operational” and “financial” debt. In
Swiss Ribbons v. Union of India, the Supreme Court of India
tenaciously upheld the difference between operational and
financial creditors and declared this classification constitutionally
valid. Last year, the Insolvency and Bankruptcy Code, 2016 (IBC)
was amended to include amounts raised from allottees (persons to
whom an apartment or plot in a real estate project has been
allotted) within the definition of “financial debt,” thus making
allottees financial creditors. Though the amendment was passed to
empower allottees in India’s real estate sector, it revived a more
general discussion on the characteristics of operational and
financial creditors.
This paper posits that the amendment was enacted at the
cost of stretching the definition of “financial creditor” beyond its
conceptual limit and interfering with the IBC’s insolvency
resolution mechanism. We use the United States’ and the United
Kingdom’s insolvency regimes as a point of reference for
ascertaining the role of creditors in insolvency proceedings and
whether operationalizing the insolvency regime to solve problems
in a particular sector is justified.