IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10322 OF 2018
(arising out of S.L.P.(C)No.12073 of 2017)
SUZUKI PARASRAMPURIA SUITINGS PVT. LTD. …APPELLANT(S)
THE OFFICIAL LIQUIDATOR OF MAHENDRA PETROCHEMICALS LTD.
(IN LIQUIDATION) AND OTHERS …RESPONDENT(S)
NAVIN SINHA, J.
2. The appellant is an assignee of debt by a Industrial Finance Corporation of India Ltd. (hereinafter called as “IFCI”) for a outstandings of M/s. Mahendra Petrochemicals Ltd. (hereinafter referred to as “M/s. MPL”). It is depressed by a appellate sequence antiquated 02.09.2016 in O.J. Appeal No.4 of 2016, disappearing to meddle with a orders of a Company Judge antiquated 31.07.2015 in Company Application No.248 of 2014, and also a sequence antiquated 07.09.2015, in OJMCA No.170 of 2015 disappearing to recall/review a sequence antiquated 31.07.2015.
3. It is not deliberate compulsory to set out and bargain with a entirety of a contribution and resources of a case, solely to a border compulsory for a functions of a benefaction order, in a singular inlet of a debate outset in a benefaction appeal.
4. Company Petition No.150 of 1996 was filed for circuitous adult of M/s. MPL. The association was also referred for reformation to a Board for Industrial and Financial Reconstruction (hereinafter referred to as “BIFR”) in Reference No.385 of 2000. During pendency of a same, though accede or believe of a BIFR, M/s. MPL entered into an unregistered chit of bargain (hereinafter referred to as a ‘MOU’) with a sister courtesy of a appellant, M/s. Suzuki Parasrampuria Suitings Pvt. Ltd. for leasing out a properties to a appellant for 20 years for amends of a debts. The MOU was also not brought to a courtesy of a association justice compartment a windingup sequence was upheld on 19.04.2010. The IFCI, Bank of Baroda – respondent no.3 and a Punjab National Bank – respondent no.4 were cumulative creditors, who had filed strange applications opposite M/s. MPL for liberation of their debts before a Debt Recovery Tribunal underneath a Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (hereinafter referred to as “SARFAESI Act”). IFCI hold initial assign over a resources of M/s. MPL for outstandings of Rs.160 crores and a Bank of Baroda with an superb of approximately Rs.4,68,00,000/ hold second charge. On 28.07.2010 after a windingup order, IFCI reserved a impost to a appellant for a sum of Rs.85 lacs usually and sensitive a central liquidator thereafter.
5. The appellant afterwards filed Company Application No.248 of 2014 with a request for transformation in place of IFCI as a cumulative creditor of M/s. MPL. The Company Judge deserted a focus on 31.07.2015 holding that a appellant was conjunction a Bank or Banking association or a financial establishment or securitization association or reformation association and therefore could not be replaced in place of IFCI as a cumulative creditor for a purpose of a SARFAESI Act. In a inlet of a service sought for transformation as a cumulative creditor underneath a SARFAESI Act, a Company Judge hold that a appellant could not pull any advantage for a purpose from Section 130 of a Transfer of Property Act. All other contentions were left open to be lifted before a suitable court/forum in suitable proceedings. The appellant afterwards filed OJMCA No.170 of 2015 invoking a fundamental powers of a Company Court underneath Rule 9 of a Companies (Court) Rules, 1959 for recall/review of sequence antiquated 31.07.2015 contending that a appellant had never sought transformation as a cumulative creditor and simply preferred transformation as a transferee of an actionable explain underneath Section 130 of a Transfer of a Property Act (hereinafter referred to as “the T.P. Act”). The recall/review focus was deserted holding that an unconditionally new box was sought to be done out in a application. The interest opposite a same has been deserted by a impugned order.
6. Shri Harin P. Raval, schooled comparison warn for a appellant, assailing a impugned sequence antiquated 02.09.2016, contended that a appellant had never sought a standing of a cumulative creditor in lieu of a IFCI. The anticipating to that outcome is erring and totally misconceived. The appellant had simply preferred to be adjudged a transferee from IFCI of an actionable explain underneath Section 130 of a T.P. Act. The rights and claims of a appellant underneath a latter was a usually issue, and has not been deliberate during all. The help of assignment antiquated 28.07.2010 was subsisting and was challenged by none. The miss of any standing of a appellant underneath a SARFAESI Act was a unconditionally irrelevant care to reject a movement for send of an actionable explain underneath Section 130 of a T.P. Act. The fundamental energy of a Company Court underneath Rule 9 of a Companies (Court) Rules was poorly declined to be exercised in a contribution of a case.
7. Learned warn for a respondents opposite a focus submitting that a appellant can't be accessible to make a volte face after a rejecting of a usually explain by a Company Judge and take changeable stands during opposite times according to a preference in a same proceedings.
8. We have deliberate a submissions on interest of a parties. That a unregistered MOU was though accede of a BIFR, it was not disclosed to a Company Court compartment a windingup sequence was upheld on 19.04.2010, a assignment of debt of Rs.160 crores by IFCI for Rs.85 lacs are certified facts. The sequence antiquated 31.07.2015 upheld by a Company Judge creates it really pithy that a appellant in Company Application No.248 of 2014 had privately sought transformation in place of IFCI as a cumulative creditor holding initial assign accompanying to a help of assignment in a foster antiquated 28.07.2010 from IFCI. In support of a service sought, faith was also placed on a pursis antiquated 21.11.2011 filed by IFCI in OA No.452 of 2000 before a Debt Recovery Tribunal, Ahmedabad reaffirming a assignment in foster of a appellant. The submissions done before a Company Judge leaves no doubts that as an assignee of debts from a IFCI, a appellant radically sought transformation as a cumulative creditor underneath a SARFAESI Act and for that purpose sought to pull living from a supplies of Section 130 of a Transfer of Property Act. Therefore, a Company Judge opined that Section 130 of a Transfer of a Property Act was not germane in a contribution of a box withdrawal it open for a parties to take all accessible contentions before a suitable court/forum in suitable proceedings. In a inlet of a debate sought to be lifted by a appellant in a benefaction interest we cruise it correct to set out a following extracts from a sequence of a Company Judge:
“23. The usually doubt that is compulsory to be deliberate in this focus is as to either a applicant can be accessible to be replaced for and in place of IFCI Limited as a cumulative creditor of a association in liquidation? For determining this question, certain supplies of a SARFAESI Act are compulsory to be considered.
25. Thus, in perspective of a aforesaid supplies contained in a SARFAESI Act, we am of a perspective that when a applicant association is not a bank or banking or financial establishment or securitization association or reformation company, a applicant can't be accessible to be replaced in place of IFCI as cumulative creditor for a purpose of SARFAESI Act.
27. The aforesaid supplies of Section 130 of a Transfer of Property Act are not germane to a contribution of a benefaction box as a IFCI has eliminated a debts of a association in murder in foster of a applicant by help of assignment and therefore a box of a applicant is that it might be accessible to ensue opposite a association in murder underneath a SARFAESI Act as cumulative creditor. The applicant is not entitled to get any advantage underneath a SARFAESI Act and can't be termed as cumulative creditor. Hence a faith placed by a schooled disciple for a applicant on a supplies of Section 130 of a Transfer of Property Act, is misconceived.”
9. The applicable remove of a pleadings by a appellant in Company Application No.248 of 2014 beheld by a Company Judge in his sequence antiquated 07.09.2015 are also noticeable:
“8. we contend and row that earlier, IFCI also filed a purshis antiquated 21.11.2011 before a Debts Recovery Tribunal, Ahmedabad in Original Application No.452 of 2000 reaffirming that a IFCI Ltd. Has reserved a impost in foster of a applicant. we desire to apparatus a duplicate of purshis antiquated 21.11.2011 filed before a Debts Recovery Tribunal, Ahmedabad in Original Application No.452 of 2000 during AnnexureIII.
10. we contend and row that suitable to a Deed of Assignment, a Applicant has turn a cumulative creditor of a Company in Liquidation and all a rights of IFCI Ltd. in propinquity to a financial comforts extended to a Company in Liquidation and a underlying confidence interests therein vests in a Applicant visàvis a Company in liquidation.”
10. The appellant primarily took a unwavering and deliberate mount before a Company Judge, staking a explain for being replaced as a cumulative creditor underneath a SARFAESI Act accompanying to a assignment of debt to it by a IFCI. That a explain was not simply with courtesy to assignment of an actionable explain underneath Section 130 of a T.P. Act is transparent from a possess pleadings and a pursis filed by a IFCI before a Debt Recovery Tribunal. No element has been placed before us with courtesy to a orders that might have been upheld by a Tribunal on such application. After a explain of a appellant of being a cumulative creditor was deserted by a Company Judge, and a appellant realised the unsustainability of a explain in a law, it done a finish volte face from a progressing mount and surprisingly, discordant to a possess pleadings, now contended that it had never sought a standing of a cumulative creditor underneath a SARFAESI Act.
11. The row of a appellant that it had never sought transformation as a cumulative creditor underneath a SARFAESI Act is additionally belied from a recitals contained in a sequence antiquated 07.09.2015. Time and again this justice has hold that a recitals in a sequence piece with courtesy to what transpired before a High Court are sacrosanct. The schooled Single Judge, in a examination jurisdiction, has reiterated that a arguments addressed before him in Company Application No. 248 of 2014 were done privately underneath a SARFAESI Act watching as follows:
“It is also compulsory to be remarkable that schooled disciple for a applicant in a pronounced application, during a time of arguments, submitted that a applicant be replaced as cumulative creditor and given a advantage underneath a SARFAESI Act and therefore, schooled disciple Mr. Rao appearing for a Bank of Baroda submitted in detail, after relying on a supplies contained in SARFAESI Act, that a applicant can't be replaced as cumulative creditor and accessible to ensue underneath a supplies of SARFAESI Act.”
12. A contractor can take opposite stands during opposite times though can't take paradoxical stands in a same case. A celebration can't be accessible to approbate and reprobate on a same contribution and take unsuitable changeable stands. The untenability of an unsuitable mount in a same box was deliberate in Amar Singh vs. Union of India, (2011) 7 SCC 69, watching as follows:
“50. This Court wants to make it transparent that an movement during law is not a diversion of chess. A contractor who comes to Court and invokes a command office contingency come with purify hands. He can't dodge and take unsuitable positions.”
13. A identical perspective was taken in Joint Action Committee of Air Line Pilots’ Assn. of India vs. DG of Civil Aviation, (2011) 5 SCC 435, observing:
“12. The doctrine of choosing is formed on a order of estoppel—the element that one can't approbate and reprobate inheres in it. The doctrine of estoppel by choosing is one of a class of estoppels in pais (or estimable estoppel), that is a order in equity….. Taking unsuitable pleas by a celebration creates a control distant from satisfactory. Further, a parties should not blow prohibited and cold by holding unsuitable stands and lengthen record unnecessarily.”
14. Resultantly we find no consequence in a appeal. The interest is dismissed.
NEW DELHI OCTOBER 08, 2018.