IMPORTANT POINT
A litigant can take different stands at different times, but cannot take contradictory stands in the same case.

JUDGMENT

NAVIN SINHA, J.

Leave granted.

2. The appellant is an assignee of debt by the Industrial Finance Corporation of India Ltd. (hereinafter called as “IFCI”) for the outstandings of M/s. Mahendra Petrochemicals Ltd. (hereinafter referred to as “M/s. MPL”). It is aggrieved by the appellate order dated 02.09.2016 in O.J. Appeal No.4 of 2016, declining to interfere with the orders of the Company Judge dated 31.07.2015 in Company Application No.248 of 2014, and also the order dated 07.09.2015, in OJMCA No.170 of 2015 declining to recall/review the order dated 31.07.2015.

3. It is not considered necessary to set out and deal with the entirety of the facts and circumstances of the case, except to the extent necessary for the purposes of the present order, in the limited nature of the controversy arising in the present appeal.

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 windingup 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 windingup order, IFCI assigned its dues to the appellant for 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 financial institution 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.

6. Shri Harin P. Raval, learned senior counsel for 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 miscon