Summary
The Supreme Court dismissed an assignee’s appeal concerning substitution as a secured creditor in winding-up proceedings. Having expressly sought secured-creditor status under SARFAESI on the strength of an assignment, the applicant could not reverse that position in review by claiming that it had sought only recognition of an actionable claim. The original order had refused substitution for SARFAESI purposes while leaving other contentions open before the appropriate forum.
Issues
- Whether an applicant could disown its pleaded claim to secured-creditor status after that claim failed and advance a contradictory case in review.
Held
- The original application expressly asserted that the assignment vested the underlying securities in the applicant and sought substitution as secured creditor. The later assertion that such status had never been sought contradicted the application and the recorded proceedings. (¶¶ 8, 9, 10, 11)
- A litigant may take different positions at different times, but cannot take contradictory positions in the same case to secure relief after its conscious earlier position has failed. The prohibition on approbating and reprobating and the doctrine of election applied. (¶¶ 12, 13)
- The Company Judge’s order concerned substitution for the purposes of SARFAESI and left other contentions open before the appropriate forum. The appeal did not warrant interference with the rejection of the changed case in review. (¶¶ 5, 8, 14)
Result
Appeal dismissed; refusal of substitution for SARFAESI purposes and rejection of review left undisturbed, with the original reservation of other contentions intact.