The NCLAT held that once the claim of a creditor is taken into consideration in the 'Resolution Plan' by providing them the same treatment as other similarly situated Creditors, thereafter the creditor cannot take the benefit of Section 60(6) of the IBC and cannot pursue arbitration proceedings for the same claim.
In the present case, Kotak Mahindra Prime Ltd. and Kotak Mahindra Investment Ltd. ("Kotak") had entered into term loan agreements with M/s. Kitply Industries Ltd. ("KIL") dated March 8, 2008, and the amount borrowed under these loan agreements had to be repaid on December 13, 2009. Upon default of payment by the Corporate Debtor, the parties commenced arbitration proceedings in order to resolve their dispute. However, while the proceedings were still in progress, IDBI Bank initiated CIRP against KIL. Kotak filed their claims but the 'Resolution Professional' refused to admit them as they were not filed within the prescribed time limit.
Kotak contended that the 'Resolution Plan' was in violation of Section 30(2) of IBC as it was accepted without admitting their claims and that they shall pursue arbitration proceedings under Section 60(6) of IBC. A revised plan was offered to the Appellants giving them the same treatment offered to similarly situated financial creditors but Kotak contended that they wanted to continue with the arbitration proceedings under Section 60(6) of IBC.
The NCLAT rejected the arguments of Kotak and held that they cannot resort to arbitration proceedings as they are being provided with the same treatment as other financial creditors who are in similar position. Since the 'Resolution Plan' was in accordance with Section 30(2) of the IBC and was approved by the NCLT, it was binding on Kotak and they could not pursue alternative arbitration proceedings in order to settle their claim.
* Company Appeal (AT) (Insolvency) No. 47-50 of 2019, National Company Law Appellate Tribunal, judgment dated November 13, 2019.
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