SUZUKI PARASRAMPURIA SUITINGS PVT. LTD. versus THE OFFICIAL LIQUIDATOR OF MAHENDRA PETROCHEMICALS LTD. (IN LIQUIDATION) AND OTHERS

Citation: [2018] 12 S.C.R. 906 · Decided: 08-10-2018 · Supreme Court of India · Bench: RANJAN GOGOI · Disposal: Leave Granted & Dismissed

Cited by 5 judgment(s) · cites 3 · see the full citation network in Lexace

Judgment (excerpt)

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SUPREME COURT REPORTS
[2018] 12 S.C.R.
          SUZUKI PARASRAMPURIA  SUITINGS PVT. LTD.
v.
THE OFFICIAL LIQUIDATOR OF MAHENDRA
PETROCHEMICALS LTD. (IN LIQUIDATION) AND OTHERS
OCTOBER 08, 2018
(Civil Appeal No. 10322 of 2018)
[RANJAN GOGOI, CJI, NAVIN SINHA AND
K.M. JOSEPH, JJ.]
Securitisation and Reconstruction of Financial Assets and
Enforcement of Securities Interest Act, 2002 – Company Petition
filed for winding up of one M/s. MPL – M/s. MPL was also referred
for rehabilitation to the Board for Industrial and Financial
Reconstruction (BIFR) – During pendency of the same, without
permission or knowledge of the BIFR, M/s. MPL entered into an
MOU with the sister concern of the appellant for leasing out its
properties to the appellant for 20 years for repayment of its debt –
Industrial Finance Corporation of India Ltd. (IFCI) was secured
creditor of M/s. MPL and held first charge over the assets of
M/s. MPL for outstandings of Rs.160 Crores – After the winding-up
order, IFCI assigned its dues to the appellant for a sum of
Rs.85 lacs – Appellant filed Company Application for substitution
in place of IFCI as a secured creditor of M/s. MPL – Company
Judge rejected the application on 31.07.2015 holding that the
appellant was neither a Bank/Banking company/financial institution/
securitization company/reconstruction company and therefore could
not be substituted in place of IFCI as secured creditor for the purpose
of the SARFAESI Act– Challenged by appellant for recall/review of
said order contending that it never sought the status of a secured
creditor in lieu of the IFCI but had simply desired to be adjudged a
transferee from IFCI of an actionable claim u/s.130 of the T.P. Act –
Held: Appellant in Company Application specifically sought
substitution in place of IFCI as a secured creditor consequent to
the deed of assignment in its favour from IFCI – 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, contrary to its own pleadings, and contended that it had
 [2018] 12 S.C.R. 906
  906
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never sought the status of a secured creditor under the SARFAESI
Act – A litigant cannot take contradictory stands in the same case –
No merit in the appeal – Transfer of Property Act, 1882 – s.130.
Practice & Procedure – Inconsistent stands in the same case
– Untenability of – Held:  A party cannot be permitted to approbate
and reprobate on the same facts and take inconsistent shifting stands.
 Dismissing the appeal, the Court
HELD: 1.1 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 passed by the Company Judge makes
it very explicit that the appellant in Company Application 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.  The submissions made
before the Company Judge leaves no doubts that as an assignee
of debts from the IFCI, the appellant essentially sought
substitution as a secured creditor under the Securitisation and
Reconstruction of Financial Assets and Enforcement of Securities
Interest Act, 2002 (SARFAESI Act) and for that purpose sought
to draw sustenance from the provisions of Section 130 of the
Transfer of Property Act. [Para 8] [910-G-H; 911-A-B]
1.2 The appellant initially 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. 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. [Para 10] [912-D-F]
SUZUKI PARASRAMPURIA  SUITINGS

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