TaxTMI 
TaxTMI 
2022 (1) TMI 516
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....the Adjudicating Authority (National Company Law Tribunal), Mumbai Bench, Court-III, by which C.P. No. 315/IBC/MB/2019 filed by the Respondent- Financial Creditor under Section 7 of the Insolvency and Bankruptcy Code, 2016 ("I&B Code" for short) has been admitted. The Appeal has been filed by Rajeev R. Jain, Director (Suspended) of the Corporate Debtor challenging the impugned judgment. The brief facts of the case giving rise to this Appeal are:- The Corporate Debtor obtained two loans from the Financial Creditor by means of two deposits agreements dated 31.03.2017 for an amount of Rs. 230,00,00,000/- and 27.10.2017 for an amount of Rs. 277,00,00,000/- respectively. The first deposit was secured by Deed of Mortgage dated 30.03.2017 bearing Registration No.3102 of 2017 and other security documents. Similarly, the second agreement was also secured by Deed of Mortgage and other security documents. As per the terms of the First Deposit Agreement, the first loan was repayable on the expiry of three months from the date of first loan. The date for payment was extended till 31.03.2018. By 31.03.2018, the Corporate Debtor was liable to repay the outstanding principal amount of Rs. 217,6....
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....ailable in law. It is submitted that the terms and conditions of the loan Agreement as well as the Mortgage Deed did not put any embargo on the right of the Financial Creditor to take recourse of Section 7 of the 'I&B Code'. Insofar as the judgment of the co-ordinate Bench relied by Counsel for the Appellant, it is submitted that the Adjudicating Authority has given reason for not following the said judgment and in any view of the matter, the said judgment was not in conformity with 'I&B Code' and ought not to have been followed. 4. We have considered the submissions of the Learned Senior Counsel for the parties and perused the record. 5. In the present case, there is no dispute between the parties regarding debt or default committed by the Corporate Debtor. In paragraph 29 of the judgment, Adjudicating Authority has noticed this in following words: - "29. It is important to mention here that the Corporate Debtor is neither disputing the debt nor the default committed by them in this case. The only contention of the Corporate Debtor is that the remedy of the Financial Creditor is to proceed against the mortgage securities as per the order of Beacon Trusteeship Limite....
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....h clearly mentioned that the rights and remedies conferred upon the Mortgagee under this indenture shall not prejudice any other rights or remedies, to which the Mortgagee may, independently of this Indenture, be entitled. Thus, if the law provides any other remedy to Mortgagee the same can very well be availed by him. It is the choice of the mortgagee to recover his dues from secured assets or to take other recourse of remedy as provided under law. 10. Section 7 of the 'I&B Code' is special remedy provided to Financial Creditors. The Financial Creditor can take recourse to Section 7 when a default has occurred. Present is a case where Application under Section 7 has been filed when a default has occurred. The remedy under Section 7 is special remedy and the provision of 'I&B Code' has been given overriding effect from any other law or instrument. Section 238 of the 'I&B Code' provides:- "238. Provisions of this Code to override other laws. - The provisions of this Code shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law." 11. A rea....
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....re argument of Mr. Gaurav Joshi deserves to be rejected." 13. The reason given by the Adjudicating Authority in not following the co-ordinate Bench judgment was that the same Judicial Member has taken a contrary view in another matter i.e. "IDBI Trusteeship Services Ltd. V. Ornate Spaces Pvt. Ltd.". 14. Learned Counsel for the Appellant submits that on principle of stare decisis, the Adjudicating Authority was bound by the judgment of the co-ordinate Bench. 15. Doctrine of stare decisis means to stand by decided cases. The principle behind the doctrine is that men who are governed by law should be fixed definite and known and when a law is declared by Court of Competent Jurisdiction in absence of any palpable mistake or error, it is required to be followed. Doctrine of stare decisis is wholesome doctrine which gives certainty to law and guide the people to mould their affairs in future. The doctrine is fully attracted on the statutory Tribunal which is well settled. We may refer to judgment of the Hon'ble Supreme Court in "Sub-Inspector Rooplal and Anr. Vs. Lt. Governor Through Chief Secretary, Delhi and Others- (2000) 1 SCC 644" where in paragraph 12 the Hon'ble Supreme C....
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....ired that he should not ignore it Our system of administration of justice aims at certainty in the law and that can be achieved only if Judges do not ignore decisions by Courts of coordinate authority or of superior authority. Gajendragadkar, C.J. observed in Lala Shri Bhagwan and Anr, v. Shri Ram Chand and Anr. "It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a single Judge, need to be re- considered, lie should not embark upon that enquiry sitting as a single Judge, but should refer the matter to a Division Bench, or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety." 16. The same principle has been reiterated by the Hon'ble Supreme Court in "Collector of Central Excise, Kanpur vs. Matador Foam and Others.- (2005) 2 SCC 59". 17. There can ....
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....e default notice. If read in this manner, on the receipt of a default notice during the pendency of the CIRP, the third respondent would be required to complete the reorganization process within 30 days so as to obviate the consequence of the PPA getting terminated. The IBC provides a period of 330 days for the completion of the CIRP. There is a dichotomy between the provisions of the PPA and the IBC. The timelines under the PPA for curing a default are inconsistent with those under the IBC for completing the CIRP with respect to the third respondent. In view of the non-obstante clause in Section 238, the provisions of the IBC would override those of the PPA. 40.1.2. The argument that the PPA is not an ―instrument under the IBC is incorrect. Since the term ―instrument has not been defined in the IBC, it may bear a meaning drawn from the definition in other statutes. The PPA is approved by the GERC and has the force of law under the Electricity Act. The PPA sets out the rights and liabilities of the parties and is an instrument for the purposes of Section 238. Being an ―instrument, which is inconsistent with the provisions of the IBC, the latter would have....