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2022 (1) TMI 516 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - Doctrine of stare decisis - existence of debt and dispute or not - HELD THAT:- 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. A reading of Section 238 indicates that provisions of the 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. Thus, what is overridden by the ‘I&B Code’ is both inconsistency with any other law or any instrument having effect. The mortgage is an instrument. The terms and conditions of the mortgage thus cannot claim any superior status and proceedings under Section 7 can be availed irrespective of any contrary or inconsistent condition in mortgage - the mortgage entered between the parties in the present case does not have any inconsistent condition rather the mortgage itself reserves and protects other remedies which are available to the Financial Creditor in any other law. 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 - There can be no doubt that the principle of stare decisis is fully applicable on judgments delivered by the NCLT as well as this Appellate Tribunal. Both NCLT and this Tribunal are bound by doctrine of stare decisis. At this juncture, we may clarify that what is binding as a precedent on Company Law Tribunal is the judgment of jurisdictional Tribunal. Judgment delivered by NCLT in other jurisdiction have only persuasive value. It is well settled that per incuriam is exception to the rule of precedent. Incuria literally means carelessness. In practice, per incuriam appears to us per ignorantiam. When judgment is rendered in ignorance of binding statute or binding authority the judgment is said to be per incuriam. The Financial Creditor has full right to initiate action under Section 7 for non-payment of dues - no error has been committed by the Adjudicating Authority in admitting Section 7 Application filed by the Financial Creditor - appeal dismissed.
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