TMI Blog2018 (10) TMI 484X X X X Extracts X X X X X X X X Extracts X X X X ..... sought substitution as a secured creditor under the SARFAESI Act is additionally belied from 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 stands. Appeal dismissed. - CIVIL APPEAL NO. 10322 OF 2018 (arising out of S.L.P.(C)No.12073 of 2017) - - - Dated:- 8-10-2018 - CJI. RANJAN GOGOI, NAVIN SINHA And K.M. JOSEPH,JJ. JUDGMENT NAVIN SINHA, J. Leave granted. 2. The ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.04.2010. 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 ₹ 160 crores and the Bank of Baroda with an outstanding of approximately ₹ 4,68,00,000/held second charge. On 28.07.2010 after the windingup order, IFCI assigned its dues to the appellant for a sum of ₹ 85 lacs only and informed the official liquidator thereafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant, assailing the impugned order dated 02.09.2016, contended that the appellant had never sought the status of a secured creditor in lieu of the IFCI. The finding to that effect is erroneous and completely misconceived. The appellant had simply desired to be adjudged a transferee from IFCI of an actionable claim under Section 130 of the T.P. Act. The rights and claims of the appellant under the latter was the only issue, and has not been considered at all. The deed of assignment dated 28.07.2010 was subsisting and was challenged by none. The lack of any status of the appellant under the SARFAESI Act was a wholly irrelevant consideration to reject its action for transfer of an actionable claim under Section 130 of the T.P. Act. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 parties to take all available contentions before the appropriate court/forum in appropriate proceedings. In the nature of the controversy sought to be raised by the appellant in the present appeal we consider it proper to set out the following extracts from the order of the Company Judge: 23. The only question which is required to be considered in this application is as to whether the applicant can be permitted to be substituted for and in place of IFCI Limited as the secured cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o.452 of 2000 reaffirming that the IFCI Ltd. Has assigned its dues in favour of the applicant. I beg to annex a copy of purshis dated 21.11.2011 filed before the Debts Recovery Tribunal, Ahmedabad in Original Application No.452 of 2000 at Annexure-III. 10. I say and submit that apropos to the Deed of Assignment, the Applicant has become the secured creditor of the Company in Liquidation and all the rights of IFCI Ltd. in relation to the financial facilities extended to the Company in Liquidation and the underlying security interests therein vests in the Applicant vis vis the Company in liquidation. 10. The appellant initially took a conscious and considered stand before the Company Judge, staking a claim for being substituted as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted that the applicant be substituted as secured creditor and given the benefit under the SARFAESI Act and therefore, learned advocate Mr. Rao appearing for the Bank of Baroda submitted in detail, after relying upon the provisions contained in SARFAESI Act, that the applicant cannot be substituted as secured creditor and permitted to proceed under the provisions of SARFAESI Act. 12. 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 stands. The untenability of an inconsistent stand in the same case was considered in Amar Singh vs. Union of India, (2011) 7 SCC 69, observi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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