Approbation and reprobation on same facts not allowed; appellant taking stand under SARFAESI disallowed to change to Transfer of Property Act: SC

Supreme Court: A Bench comprising of CJ Ranjan Gogoi and Navin Sinha and K.M. Joseph, JJ. dismissed an appeal filed against the appellate order whereby interference in the order of Company Judge was declined.

The appellant was an assignee of debt by Industrial Finance Corpn. of India Ltd. for the outstandings of Mahendra Petrochemical Ltd. Earlier, a company petition was filed for winding up of MPL. Subsequently, after assignment of debt by IFCI in its favour, the appellant filed another company appeal for substitution of its name in place of IFCI as a secured creditor. The Company Judge rejected the application holding that the appellant was neither a bank or a banking company or a financial institution or a securitisation company or a reconstruction company, and therefore could not be substituted in place of IFCI as a secured creditor for the purpose of Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (SARFAESI). It was also held that in the nature of the relief sought under the SARFAESI Act, the appellant could not draw any benefit from Section 130 of the Transfer of Property Act. The review application filed to the Company Court under Section 9 of the Companies (Court) Rules, 1959 was rejected. The appellant submitted that it never sought substitution as a secured creditor, but simply desired substitution as a transferee of an actionable claim under Section 130 of Transfer of Property Act.

The Supreme Court, after considering the submissions and perusing the record, was of the view that the submissions made before the Company Judge left no room for doubt that as an assignee of debt from IFCI, the appellant essentially sought substitution as a secured creditor under SARFAESI Act and for that purpose sought to draw sustenance from Section 130 of Transfer of Property Act. After the claim of the appellant of being a secured creditor was rejected, it realised the unsustainability of its claim and made a complete volte face from its earlier stand contrary to its own pleadings. The contention of the appellant was belied from its own recitals before the Company Court. Referring to Amar Singh v. Union of India, (2011) 7 SCC 69 and Joint Action Committee for Airline Pilots’ Assn. of India v. Director General of Civil Aviation, (2011) 5 SCC 435, the Supreme Court held that a litigant can different stands at different times but cannot take contrary stands in the same cases. A party cannot be permitted to approbate and reprobate on the same facts and take inconsistent shifting stands. [Suzuki Parasrampuria Suitings (P) Ltd. v. Official Liquidator of Mahendra Petrochemicals Ltd.,2018 SCC OnLine SC 1798, dated 08-10-2018]

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