SUZUKI PARASRAMPURIA SUITINGS PRIVATE LIMITED Vs. OFFICIAL LIQUIDATOR OF M/S MAHENDRA PETROCHEMICALS LTD (IN LIQN) & 4 ORS

JUDGEMENT

(1.) This appeal under Section 483 of the Companies Act, 1956 is preferred by the appellant / original applicant against the oral order dated 07.09.2015 passed by the learned Company court in OJMCA No.170 of 2015 dismissing the application seeking recall of the CAV Judgment and order dated 31.07.2015 passed in Company Application No.248 of 2014; and the very CAV judgment and order dated 31.07.2015 in which prayer of seeking substitute of the applicant, a company registered under the Companies Act, 1956, came to be rejected.

(2.) The above company application was preferred before the Company Court in the backdrop of certain facts that IFCI Ltd. a company registered under the Companies Act, 1956 and a public Financial Institution in terms of Section 4A(1)(ii) of the Companies Act, 1956 and established under Section 3 of the Industrial Finance Corporation Act, 1948 and thus creation of the statute empowered to transact business as specified in Section 23 of The Industrial Finance Corporation Act, 1948, provided financial facilities to M/s. Mahendra Petrochemicals Limited [for short, 'M/s. MPL'], the company in liquidation, which were secured by the company in liquidation against all the movable and immovable assets of the company in liquidation. Section 23 of The Industrial Finance Corporation Act, 1948 is about nature of business which the Corporation may transact, as defined in clauses [a] to [p] also include granting loans or advances to industrial concerns as per clause [i]. IFCI Limited was the first charge holder and M/s. MPL defaulted in making the payment of the dues in respect of the financial facilities granted by IFCI Limited. In the proceedings initiated before the Company Court, vide order dated 19.04.2010 passed in Company Petition No.150 of 1996, the company was ordered to be wound up. The case of the appellant / applicant Suzuki Parasrampuria Suiting Pvt. Ltd. [SPSPL] assignee before the Company Court was that IFCI Limited assigned the debts due of company in liquidation pursuant to executing Deed of Assignment on 28.07.2010 in favour of the appellant / applicant. Thus, all rights, title, interest and benefits in respect of the claim against the aforesaid company in liquidation together with all the security interest therein came to be assigned by IFCI Ltd.

(3.) In addition to the above, before the Company Court, provisions of Section 130 of the Transfer of Property Act was relied on in respect of argument that assignment was permissible even though appellant was not a banking company. That reliance was placed on the decision of the Hon'ble Supreme Court in case of ICICI Bank Limited v Official Liquidator of APS Star Industries Limited & Others, 2010 10 SCC 1 in which earlier decision in the case of Khardah Company Ltd. v. Raymon & Co. (India) Private Ltd., 1963 3 SCR 183 was considered wherein it was held that the law on the subject of assignment of a contract was well settled and an assignment of a contract might result by transfer either of the rights or by transfer of obligations thereunder. Further, reliance was placed on oral judgment dated 11/12.08.2014 rendered by the Company Court in Company Application No.126 of 2014 where issue with regard to requirement of registration of charge in light of Sections 125 and 135 of the Companies Act was considered and held that such issue was not to be addressed at the stage viz. substitution of the applicant company since it is to be kept open to all the parties to argue as and when company petition is finally decided. Otherwise, it would defeat the very purpose of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'SARFAESI Act') by creating an impasse.