Case: SUZUKI PARASRAMPURIA SUITINGS PVT. LTD Vs. THE OFFICIAL LIQUIDATOR OF MAHENDRA PETROCHEMICALS LTD (IN LIQUIDATION) AND ORS

4. Company Petition No.150 of 1996 was filed for winding up of M/s. MPL.The company was also referred for rehabilitation to the Board for Industrial and Financial Reconstruction (hereinafter referred to as ?BIFR?) in Reference No.385 of 2000. During pendency of the same, without permission or knowledge of the BIFR, M/s. MPL entered into an unregistered memorandum of understanding (hereinafter referred to as the ‘MOU?) with the sister concern of the appellant, M/s. Suzuki Parasrampuria Suitings Pvt. Ltd. for leasing out its properties to the appellant for 20 years for repayment of its debts.The MOU was also not brought to the attention of the company court till the winding-up order was passed on 19.04.2010. The IFCI, Bank of Baroda – respondent no.3 and the Punjab National Bank – respondent no.4 were secured creditors, who had filed original applications against M/s. MPL for recovery of their debts before the Debt Recovery Tribunal under the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (hereinafter referred to as?SARFAESI Act?). IFCI held first charge over the assets of M/s. MPL for outstandings of Rs.160 crores and the Bank of Baroda with an outstanding of approximately Rs.4,68,00,000/- held second charge. On 28.07.2010 after the winding-up order, IFCI assigned its dues to the appellantfor a sum of Rs.85 lacs only and informed the official liquidator thereafter.5. The appellant then filed Company Application No.248 of 2014 with a prayer for substitution in place of IFCI as a secured creditor of M/s. MPL. The Company Judge rejected the application on 31.07.2015 holding that the appellant was neither a Bank or Banking company or a financialinstitution or securitization company or reconstruction company and therefore could not be substituted in place of IFCI as a secured creditor for the purpose of the SARFAESI Act. In the nature of the relief sought for substitution as a secured creditor under the SARFAESI Act, the Company Judge held that the appellant could not draw any benefit for the purpose from Section 130 of the Transfer of Property Act.All other contentions were left open to be raised before the appropriate court/forum in appropriate proceedings. The appellant then filed OJMCA No.170 of 2015 invoking the inherent powers of the Company Court under Rule 9 of the Companies (Court) Rules, 1959 for recall/review of order dated 31.07.2015 contending that the appellant had never sought substitution as a secured creditor and simply desired substitution as a transferee of an actionable claim under Section 130 of the Transfer of the Property Act (hereinafter referred to as?the T.P. Act?). The recall/review application was rejected holding that an entirely new case was sought to be made out in the application. The appeal against the same has been rejected by the impugned order.

Reasoning:
8. We have considered the submissions on behalf of the parties.That the unregistered MOU was without permission of the BIFR, it was not disclosed to the Company Court till the winding-up order was passed on 19.04.2010, the assignment of debt of Rs.160 crores by IFCI for Rs.85 lacs are admitted facts.The order dated 31.07.2015 passed by the Company Judge makes it very explicit that the appellant in Company Application No.248 of 2014 had specifically sought substitution in place of IFCI as a secured creditor holding first charge consequent to the deed of assignment in its favour dated 28.07.2010 from IFCI.In support of the relief sought, reliance was also placed on the pursis dated 21.11.2011 filed by IFCI in OA No.452 of 2000 before the Debt Recovery Tribunal, Ahmedabad reaffirming the assignment in favour of the appellant. The submissions made before the Company Judge leaves no doubtsthat as an assignee of debts from the IFCI, the appellant essentially sought substitution as a secured creditor under the SARFAESI Act and for that purpose sought to draw sustenance from the provisions of Section 130 of the Transfer of Property Act. Therefore, the Company Judge opined that Section 130 of the Transfer of the Property Act was not applicable in the facts of the case leaving it open for the partiesto take all available contentions before the appropriate court/forum in appropriate proceedings.lly took a conscious and considered stand before the Company Judge, staking a claim for being substituted as a secured creditor under the SARFAESI Act consequent to the assignment of debt to it by the IFCI.That the claim was not simply with regard to assignment of an actionable claim under Section 130 of the T.P. Act is evident from its own pleadings and the pursis filed by the IFCI before the Debt Recovery Tribunal.No material has been placed before us with regard to the orders that may have been passed by the Tribunal on such application. After the claim of the appellant of being a secured creditor was rejected by the Company Judge, and the appellant realised the unsustainability of its claim in the law, it made a complete volte face from its earlier stand and surprisingly, contrary to its own pleadings, now contended that it had never sought the status of a secured creditor under the SARFAESI Act.The contention of the appellant that it had never sought substitution as a secured creditor under the SARFAESI Act is additionally beliedfrom the recitals contained in the order dated 07.09.2015. Time and again this court has held that the recitals in the order sheet with regard to what transpired before the High Court are sacrosanct.A litigant can take different stands at different times but cannot take contradictory stands in the same case. A party cannot be permitted to approbate and reprobate on the same facts and take inconsistent shifting