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 Supreme Court, while dismissing an appeal against Gujarat High Court order, has observed that recitals in the order sheet with regard to what transpired before the high court are sacrosanct.

Suzuki Parasrampuria Suitings Pvt. Ltd filed an application before the company judge for substitution in place of IFCI as a secured creditor of M/s. MPL. The company judge rejected the application holding that company 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.

The prayer for substitution as a secured creditor under the SARFAESI Act, the company judge held that the company could not draw any benefit for the purpose from Section 130 of the Transfer of Property Act.

In the review petition, the company contended that it 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. The review petition was rejected holding that an entirely new case was sought to be made out in the application

Before the apex court, Senior Advocate Harin P. Raval reiterated the contention taken by the company in the review petition that it had never sought the status of a secured creditor in lieu of the IFCI.

But the bench comprising CJI Ranjan Gogoi, Justice Navin Sinha and Justice KM Joseph, perused the order sheets of the high court, and also the pleadings and observed: “The contention of the appellant that it had never 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.” Livelaw

Justice Sinha, who authored the judgment, referred to the observations made in Amar Singh vs. Union of India and remarked: “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.”

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