JUDGMENT : C.L Soni, J. This application is preferred with following prayers in para 26:- (A) Your Lordships may be pleased to review/recall the oral order dated 25.8.2008 made by this Hon'ble Court in Company Application No. 414 of 2007 and be pleased to pass appropriate orders, in the interest of justice and equity; (B) Your Lordships may be pleased to declare the Deed of Assignment dated 25.8.2007 as void in so far as it provides for transfer of shares of applicants to Respondent No. 2, in the interest of justice; (C) Your Lordships may be pleased to declare the transfer of the shares of Applicants as void ab initio; (D) Your Lordships may be pleased to direct the Respondent No. 2 and/or respondent No. 3 to re-transfer the shares in favour of Applicants with all rights attached thereto; (E) Your Lordships may be pleased to direct the respondent no. 3 to give effect to the transfer of the shares that may be executed by Respondent No. 2 and/or respondent No. 3 in favour of Applicants as stated above; (F) Your Lordships may be pleased to award the cost of this application; (G) Your Lordships may be pleased to condone the delay of 1484 days; (H) Your Lordships may be pleased to grant such other and further reliefs as may be thought fit in the circumstances; Subsequently, as per the affidavit filed on behalf of applicant No. 1, the applicants sought permission to omit word "review" wherever mentioned in the application and also to delete prayer for condonation of delay. 2. The above-said request was accepted by the Court vide order dated 21.2.2013 after recording no objection of the learned advocate appearing for respondent No. 2 without prejudice to its right to raise contention as regards limitation. 3. Learned advocate Mr. A.L. Shah appearing with Mr. Pavan S. Godiawala and Ms. Sangeeta Pahwa for the applicants declared that they are restricting the application for prayer of recalling of the oral order dated 25.8.2008 passed by the Court in Company Application No. 414 of 2007 and are not pressing the remaining prayers. 4. It is the case of the applicants that they were equity shareholders of Prasad Mill Company Ltd. (company under liquidation) and they pledged their shares with the respondent No. 1-Industrial Development Bank of India (IDBI) to secure loan advanced by IDBI to the company. 4. It is the case of the applicants that they were equity shareholders of Prasad Mill Company Ltd. (company under liquidation) and they pledged their shares with the respondent No. 1-Industrial Development Bank of India (IDBI) to secure loan advanced by IDBI to the company. The company was ordered to be wound up by order dated 05.05.1989 passed in Company Petition No. 21 of 1984 and the Official Liquidator attached with the Court was appointed as Liquidator of the company. The IDBI filed Civil Suit No. 4958 of 1991 against the company and its sureties, which, thereafter, was transferred to Debt Recovery Tribunal, where it was registered as Transfer Application No. 482 of 1995, wherein the Presiding Officer of the Tribunal passed order dated 28.12.2006 for issuing recovery certificate to recover an amount of Rs.36,49,872/-. The recovery officer registered the Proceeding No. 418 of 2006 to recover the aforesaid amount. The IDBI could recover an amount of Rs.19 lacs from the sale proceeds of the assets of the company and thereafter, it executed the deed of assignment dated 25.8.2007 in favour of respondent No. 2 for consideration of Rs.15 lacs. It is further case of the applicants that the IDBI then moved an Application No. 414 of 2007 before learned Company Judge with following prayers:- (A) That this Hon'ble Court may be pleased to ratify the action of the applicant in assigning all rights, title and interest and underlying securities of Prasad Mills Ltd. (in Liquidation) in favour of respondent No. 2-Riverfront Properties Pvt. Ltd.; (B) That, in terms of section 536 of the Companies Act, 1956, while considering the assignment to respondent No. 2-Riverfront Properties Pvt. Ltd., this Hon'ble Court may be pleased to consider the transfer of all the rights, title, interest and benefits of the applicant bank in respect of its claim against the Company together with all its security interest therein including the pledge of 3669 fully paid equity shares in the Company... (illegible); (C) That this Hon'ble Court may be pleased to grant such other and further reliefs as may be deemed fit and proper in the facts and circumstances of the case; 5. The applicants have averred that though the applicants were directly concerned with the subject matter of the deed of assignment, more particularly 1344 equity shares, the applicants were not made parties to the above-said application. The applicants have averred that though the applicants were directly concerned with the subject matter of the deed of assignment, more particularly 1344 equity shares, the applicants were not made parties to the above-said application. It is also pointed out that subsequently, the recovery officer closed the recovery proceedings by recording that the amount to be recovered was to be treated as NIL. The applicants have further averred that since no amount remained to be recovered on account of closure of the recovery proceedings, the applicants were entitled to return of the equity shares. However, instead of returning the equity shares, the above-said application was preferred by IDBI. It is further stated that since the applicants were not parties to the above-said application, they were not aware about the proceedings of the said application and disposal thereof. However, when they came to know about the proceedings and order for transfer of the shares in favour of respondent No. 2 in February 2012, they asked for return of the shares. On the above and other averments, the applicants have prayed to recall the order dated 25.8.2008 made by this Court in the above-said application. 6. The application is opposed by affidavit-in-reply filed on behalf of respondent No. 2 on the ground of suppression, delay, maintainability of the application for review or recall of the order and the conduct of the applicants. The applicants have also filed rejoinder affidavit and further affidavit in support of the application. The Official Liquidator has also filed report on 13.2.2013, wherein it is pointed out that after the order dated 25.8.2008 passed in Company Application No. 414 of 2007, neither the respondent No. 1- IDBI nor respondent No. 2 have approached till the date of filing of the report for transfer of the shares and the Official Liquidator has not effected any transfer of the shares in the name of respondent No. 2. 7. I have heard learned advocates for the parties. 8. Learned advocate Mr. A.L. Shah appearing for the applicants submitted that Company Application No. 414 of 2007 was not maintainable at the instance of IDBI. Mr. 7. I have heard learned advocates for the parties. 8. Learned advocate Mr. A.L. Shah appearing for the applicants submitted that Company Application No. 414 of 2007 was not maintainable at the instance of IDBI. Mr. Shah submitted that since the applicants were vitally affected by the prayers in the application which included transfer of equity shares pledged by the applicants, not only the applicants were required to be joined in the said application but were also required to be heard before entertaining the application and passing order for transfer of the shares in favour of respondent No. 2. Mr. Shah submitted that since the Court entertained the application and passed orders thereon without hearing the applicants, the Court is empowered to recall such order in its inherent jurisdiction. Mr. Shah submitted that since the applicants are praying to recall the order on the above two main grounds, the applicants have rightly not pressed for review of the order and the prayer for condonation of delay. 9. Learned advocate Mr. Shah has elaborated as to why the applicants were required to be heard in the Company Application No. 414 of 2007. 10. Learned advocate Mr. Shah submitted that the applicants were not debtors of the IDBI. They have pledged their shares by way of security with IDBI for the loan advanced by IDBI to the company. The IDBI as a pawnee was under obligation to preserve the shares of the applicants till it could recover the loan from the company. Mr. Shah submitted that pledged shares of the applicants were neither the debts or assets of the company and therefore, IDBI could not have transferred rights, title and interest in the shares in favour of respondent No. 2. Mr. Shah submitted that as per Section 176 of the Contract Act, pawnee gets right to sell or assign rights in the pledged goods only after giving notice of recovery of the loan amount to the pawnor and his failure to comply with the notice. Mr. Shah submitted that when such is the requirement of law, the applicants were vitally concerned by the Company Application No. 414 of 2007 and therefore, they were required to be joined as parties and required to be heard before passing order dated 25.8.2008 by this Court. 11. Learned advocate Mr. Mr. Shah submitted that when such is the requirement of law, the applicants were vitally concerned by the Company Application No. 414 of 2007 and therefore, they were required to be joined as parties and required to be heard before passing order dated 25.8.2008 by this Court. 11. Learned advocate Mr. Shah submitted that the IDBI was otherwise not entitled to move Application No. 414 of 2007 seeking ratification of the action of assignment and for transfer of the shares in favour of respondent No. 2 as after executing deed of assignment dated 25.8.2007, it lost all its rights to take any action in respect of the debts, assets of the company or pledged shares. Mr. Shah submitted that when the IDBI lost such rights after the deed of assignment, it could not have filed above application. Mr. Shah submitted that respondent No. 2 got the rights assigned in its favour in the pledged goods (equity shares of the applicants) with debts and assets of the company only for meagre amount of Rs.15 lacs. Mr. Shah submitted that the immovable properties of the company are worth hundred crore of rupees and being equity shareholders of the large number of shares, the applicants will be entitled to get more than 30% of such worth of the company. Mr. Shah thus submitted that in order to do complete justice, this Court may recall the order dated 25.8.2008 passed in the above application by exercising its inherent power under Rule 9 of the Company Court Rules, 1959 ('the Rules' for short). 12. In support of his arguments, learned advocate Mr. Shah relied on the following decisions:- (1) In the case of G.T. Swamy and Another v. Goodluck Agencies and Another, reported in 1990 (69) CC 819 ; (2) In the case of Mahendrakumar Chandulal v. Central Bank of India, reported in 1984 (1) GLR 237 ; (3) In the case of Prabhat Bank Ltd. And Another v. Babu Ram, reported in AIR 1966 Allahabad 134; (4) In the case of Tapanga Light Foundry and others v. State Bank of India, Khurda and others, reported in AIR 1987 Orissa 174; (5) In the case of Asit Kumar Kar v. State of West Bengal and others, (2009) 2 SCC 703 ; (6) In the case of State of Punjab v. Davinder Pal Singh Bhullar and others, (2011) 14 SCC 770 . 13. 13. As against the above submissions, learned senior advocate Mr. S.N. Soparkar appearing with learned advocate Mr. A.S. Vakil for respondent No. 2 submitted that there is total lack of bonafide on the part of the applicants in moving the present application. Mr. Soparkar submitted that this application is moved to grab more money from the respondent No. 2 even after getting huge assistance from respondent No. 2 for release of the immovable properties of the applicants worth crore of rupees given in security against liability to be discharged as guarantors towards the dues of the company. 14. Learned senior advocate Mr. Soparkar submitted that in substance, the present application is for review of the order dated 25.8.2008. Mr. Soparkar submitted that the contents of the application clearly suggest that the applicants want the order dated 25.8.2008 to be reviewed by this Court on more than one grounds by looking at the merits of the proceedings of Company Application No. 414 of 2007. Mr. Soparkar submitted that since the application is opposed on the ground that the same is grossly delayed and barred by limitation, for which no explanation is given in the application, the applicants in second thought adopted a clever and mischievous idea of deleting word review and the prayer for condonation of delay. Mr. Soparkar submitted that under the guise of prayer for recall, the applicants want review of the order which is not permissible as held by the Hon'ble Supreme Court in the case of Cine Exhibition Private Limited v. Collector, District Gwalior and others, reported in (2013) 2 SCC 698 . Mr. Soparkar submitted that unless the Court first review its order, recall of order is not possible and therefore, even if recall of the order is prayed, the law of limitation would apply. Mr. Soparkar submitted that as per the Limitation Act, application for review is to be filed within three months. Mr. Soparkar submitted that even application for recall would fall within residuary Article 137 which provides for three years time limit. Mr. Soparkar submitted that since there is no application or explanation for delay in the present application, this Court may not entertain the application even though the same is now restricted only for the prayer of recall. Mr. Mr. Soparkar submitted that even application for recall would fall within residuary Article 137 which provides for three years time limit. Mr. Soparkar submitted that since there is no application or explanation for delay in the present application, this Court may not entertain the application even though the same is now restricted only for the prayer of recall. Mr. Soparkar submitted that since deed of assignment is a registered document, the applicants could be said to have deemed knowledge of assignment and therefore, application for recall was required to be filed within three years from the date of registration of assignment. Mr. Soparkar has relied on the judgment in the case of Dilboo (Smt.) (Dead) By LRs. and others v. Dhanraji (Smt.) (Dead) and others, reported in (2000) 7 SCC 702 . 15. Learned senior advocate Mr. Soparkar while relying on the judgment in the case of ICICI Bank Limited v. Official Liquidator of APS Star Industries Limited and others, reported in (2010) 10 SCC 1 , submitted that the IDBI since was entitled to transfer or assign the debt with underlying security, the applicants were not required to be heard for ratification of such assignment by this Court. Mr. Soparkar submitted that when the applicants were not required to be heard in the application filed by IDBI, the applicants are not entitled to file application for recall of the order passed by this Court. 16. Learned senior advocate Mr. Soparkar submitted that the IDBI was otherwise entitled to assign right, title and interest in the pledged shares by virtue of the power of attorney given by the applicants to IDBI to deal with and dispose of such shares as may be deemed fit by IDBI. Mr. Soparkar submitted that in view of such authority given to the IDBI, no prior notice before assignment of rights in the shares in favour of the respondent No. 2 was required to be given to the applicants and consequently, no hearing was required to be given to them by this Court in the application preferred by the IDBI for ratification of assignment. 17. Learned senior advocate Mr. Soparkar submitted that the conduct of the applicants does not permit them to pray for recall of the order. Mr. 17. Learned senior advocate Mr. Soparkar submitted that the conduct of the applicants does not permit them to pray for recall of the order. Mr. Soparkar submitted that the applicants have suppressed the facts that after this Court passed order in Company Application No. 427 of 2008 under Section 391 of the Companies Act, 1956 ('the Act' for short), the applicants attended the meeting of equity shareholders held on 25.9.2008 and the applicants since knew about the assignment of rights in their equity shares to respondent No. 2, the applicant No. 2 voted for five shares only. Mr. Soparkar submitted that the applicant No. 1 had in fact signed as witness in the transaction of purchase of other equity shares in the month of July 2007 and therefore, the applicants had knowledge about the purchase and assignment of rights in the shares since the year 2007-2008 in favour of respondent No. 2 still no action was taken for more than four years by the applicants. Mr. Soparkar submitted that the applicants since have not come with clean hands, this Court may not exercise the discretionary jurisdiction in their favour. 18. Nobody has appeared for IDBI- respondent No. 1. 19. Learned advocate Mr. R.N. Desai appearing for the Liquidator drew the attention of the Court to the Official Liquidator report at page 215 to point out that after the Court passed order in Company Application No. 414 of 2007, neither the IDBI nor respondent No. 2 approached the Liquidator for transfer of the shares in terms of the order dated 25.8.2008 and therefore, the Liquidator has not effected transfer of the shares in favour of respondent No. 2. Though learned advocate Mr. Desai wanted to argue on merits of the Scheme, since the Court was of the view that Mr. Desai can canvass such arguments at appropriate time, if so required, learned advocate Mr. Desai has reserved his arguments to be canvassed later on. 20. Learned advocate Mr. A.L. Shah however in rejoinder submitted that even as per the judgment in the case of ICICI Bank Ltd. (supra), relied on by learned senior advocate Mr. Soparkar, the creditor can assign debt but not obligation. Mr. Shah submitted that while assigning the debt, the debtor may not require to be heard, however since the assignment of the obligation would amount to novation, the same was not permissible without consent of the applicants. Soparkar, the creditor can assign debt but not obligation. Mr. Shah submitted that while assigning the debt, the debtor may not require to be heard, however since the assignment of the obligation would amount to novation, the same was not permissible without consent of the applicants. 21. Mr. Shah has also placed reliance on a decision of the Hon'ble Supreme Court in the case of Davinder Pal Singh Bhullar (supra), on the issue of power to recall the order. Mr. Shah also submitted that since the deed of assignment was subsequent to the decree passed by the Tribunal, decree could have been transferred and final assets with bank would not survive. Mr. Shah submitted that all these aspects of the matter could have been pointed out by the applicants if they were made party to the application filed by IDBI. 22. Learned senior advocate Mr. Soparkar in reply however submitted that in the facts of the case, giving of hearing to the applicants was of not importance or relevance as IDBI was justified in making assignment of debt and other rights till the loan amount was fully recovered. 23. Learned senior advocate Mr. Soparkar has again pressed the issue of limitation by submitting that even to application for recall, limitation would apply and no application for recalling of the order after unreasonable long time can be entertained. 24. Having heard learned advocates for the parties and having perused the record of the case, what appears to be not in dispute is that the applicants were not debtor of the IDBI but they had pledged their 1344 equity shares with IDBI in the month of March 1985 as security against loan advanced by IDBI to the company. There appears to be also no dispute that after IDBI recovered Rs.19 lacs out of total dues of the company, the IDBI executed deed of assignment on 25.8.2007 transferring all rights in debt of the company with underlying security and rights in pledged shares in favour of respondent No. 2 for consideration of Rs.15 lacs. The Definition and Assignment clause from the deed of assignment at Annexure-B1 page 34 are reproduced:- 1. Definitions In this Assignment, unless the context otherwise requires, the following expression shall have the meanings set out below: (a) Assignment means this agreement and the transactions hereby intended and contemplated. The Definition and Assignment clause from the deed of assignment at Annexure-B1 page 34 are reproduced:- 1. Definitions In this Assignment, unless the context otherwise requires, the following expression shall have the meanings set out below: (a) Assignment means this agreement and the transactions hereby intended and contemplated. (b) Borrower means Prasad Mills Ltd. (in liquidation) a company within the meaning of the Companies Act, 1956 and having registered office at Raikhad, Ahmedabad and having been under the winding up pursuant to the order/s of the Hon'ble High Court of Gujarat being represented by the Official Liquidator attached to the High Court of Gujarat. (c) Financial Assets means the loan/financial facility originally availed of by the Borrower, from the Assignor under or pursuant to the Loan Agreement(s), deeds and/or documents executed therefore and underlying security which are more particularly listed out in 'Schedule-A' hereto (hereinafter referred to as "Loan Documents), all the amounts due by the Borrower in respect thereof, including principal, interest, compound interest and all other monies whatsoever stipulated in, or payable by the Borrower in respect thereof, together with any security interest created to secure the repayment of the same. (d) Guarantors means the persons who have undertaken obligation to make payments to the Assignor IDBI in the event of default by the borrower to discharge its financial obligations pursuant to the Loan Documents. (e) Purchase Consideration means an amount of Rs.15,00,000/- (Rupees fifteen lacs), being the aggregate purchase consideration for the assignment of the Financial Assets under this Agreement which includes consideration for the transfer/sale of rights title and interests in 3669 equity shares of the Borrower pledged in favour of the Assignor by the Assignor in favour of the Assignee. 2. Assignment. (e) Purchase Consideration means an amount of Rs.15,00,000/- (Rupees fifteen lacs), being the aggregate purchase consideration for the assignment of the Financial Assets under this Agreement which includes consideration for the transfer/sale of rights title and interests in 3669 equity shares of the Borrower pledged in favour of the Assignor by the Assignor in favour of the Assignee. 2. Assignment. (a) In consideration of payment of the Purchase Consideration by the Assignee to the Assignor, the Assignor hereby irrevocably transfers and assigns absolutely, and for ever, unto the Assignee to the end and intent that the Assignee shall hereafter be vested with all the rights and remedies of the Assignor against Borrower, Guarantor and the Pledgor in and in respect of the Financial Assets, including the rights to file a suit or institute such other recovery proceedings and take such other action as may be required for the purpose of recovery of the Financial Assets in the Assignee's own name, right and as legal assignee and/or transferee thereof and not as a representative or agent of the Assignor and to the end and intent that the Assignee shall be deemed to be the full and absolute legal owner and as such the only person legally entitled to be paid and/or to recover the Financial Assets and/or to realise the Financial Assets or any part thereof. (b) From the date of this Assignment, the Assignor shall not have any right to collect or recover any monies pertaining to the financial assets or any right to enforce the underlying security interests, pledges and/or guarantees which rights shall from the date of this Assignment vest with the Assignee. 25. From the above definition of financial assets and the clause for assignment contained in assignment deed, it appears that the assignor transferred the debt and rights to recover all amounts due by the borrowers with right to enforce security for recovery of the dues. 26. At this stage, Sections 173 to 176 of the Indian Contract Act need to be referred. They read as under:- 173. Pawnee's right of retainer.- The pawnee may retain the goods pledged, not for only payment of the debt or the performance of the promise, but for the interests of the debt, and all necessary expenses incurred by him in respect of the possession or for the preservation of the goods pledged. 174. They read as under:- 173. Pawnee's right of retainer.- The pawnee may retain the goods pledged, not for only payment of the debt or the performance of the promise, but for the interests of the debt, and all necessary expenses incurred by him in respect of the possession or for the preservation of the goods pledged. 174. Pawnee not to retain for debt or promise other than that for which goods pledged. Presumption in case of subsequent advances.- The pawnee shall not, in the absence of a contract to that effect, retain the goods pledged for any debt or promise other than the debt or promise for which they are pledged; but such contract, in the absence of anything to the contrary, shall be presumed in regard to subsequent advances made by the pawnee. 175. Pawnee's right as to extraordinary expenses incurred.- The pawnee is entitled to receive from the pawnor extraordinary expenses incurred by him for the preservation of the goods pledged. 176. Pawnee's right where pawnor makes default.- If pawnor makes default in payment of the debt, or performance; at the stipulated time or the promise, in respect of which the goods were pledged, the pawnee may bring a suit against the pawnor upon the debt or promise, and retain the goods pledged as a collateral security; or he may sell the thing pledged, on giving the pawnor reasonable notice of the sale. If the proceeds of such sale are less than the amount due in respect of the debt or promise, the pawnor is still liable to pay the balance. If the proceeds of the sale are greater than the amount so due, the pawnee shall pay over the surplus to the pawnor. 27. As per the provisions of Sections 173 to 176 of the Indian Contract Act, the pledgee (pawnee) is entitled to retain the goods pledged for payment of the debt or performance of the promise and for payment of other necessary expenses incurred by him for preservation of the goods pledged. It is only when the pawnor makes default in making payment of debt or performance, the pawnee may either bring suit against pawnor upon debt or promise or retain the goods pledged as collateral security or he may sell things pledged on giving pawnor reasonable notice of the same. It is only when the pawnor makes default in making payment of debt or performance, the pawnee may either bring suit against pawnor upon debt or promise or retain the goods pledged as collateral security or he may sell things pledged on giving pawnor reasonable notice of the same. Therefore, the law does not straightway give right to pawnee to sell or transfer the rights, title and interest of pawnor in the pledged goods. 28. Keeping in mind the above provisions of Sections 173 to 176 of the Contract Act, the question would arise whether the applicants were concerned and affected and required to be joined in Application No. 414 of 2007 filed by IDBI before this Court seeking to rectify its action of assigning all rights, title and interest in the debt with underlying securities of the company and in transfer of all rights, title and interest and its benefit in respect of the claim against the company together with all its security interest therein including the pledge of 3699 fully paid equity shares. 29. In the above application, by order dated 25.8.2008, the Court issued final directions in para 13 as under:- 13. In view of aforesaid observations and discussion, the present application is hereby allowed. The action of the applicant-IDBI is hereby required to be ratified qua the assignment of right, title and interest and the underlying security of the Company in liquidation in favour of opponent no. 2 limited to the amount of Rs.15 lakhs i.e. the amount of consideration paid to the applicant, over and above the pledge of 3669 fully paid equity shares and rights against the guarantors. So for this right, title and interest, the Deed of Assignment executed earlier is accepted. The Official Liquidator of the Company now shall effect the transfer of shares in the name of opponent no. 2 and shall deal with the opponent no. 2 as assignee of the applicant in future transactions which may take up in the winding up proceedings. 30. In the case of ICICI Bank Ltd. (supra) relied on by learned senior advocate Mr. Soparkar, the Hon'ble Supreme Court has held and observed in para 46 to 50 as under:- 46. As stated above, an outstanding in the account of a borrower(s) (customer) is a debt due and payable by the borrower(s) to the bank. Secondly, the bank is the owner of such debt. Soparkar, the Hon'ble Supreme Court has held and observed in para 46 to 50 as under:- 46. As stated above, an outstanding in the account of a borrower(s) (customer) is a debt due and payable by the borrower(s) to the bank. Secondly, the bank is the owner of such debt. Such debt is an asset in the hands of the bank as a secured creditor or mortgagee or hypothecate. The bank can always transfer its asset. Such transfer in no manner affects any right or interest of the borrower(s) (customer).Further, there is no prohibition in the BR Act, 1949 in the bank transferring its assets inter se. Even in the matter of assigning debts, it cannot be said that the banks are trading in debts, as held by the High Court(s). The assignor bank has never purchased the debt(s). It has advanced loans against security as part of its banking business. The account of a client in the books of the bank becomes Non Performing Asset when the client fails to repay. In assigning the debts with underlying security, the bank is only transferring its asset and is not acquiring any rights of its client(s).The bank transfers its asset for a particular agreed price and is no longer entitled to recover anything from the borrower(s). The moment ICICI Bank Ltd. transfers the debt with underlying security, the borrower(s) ceases to be the borrower(s) of the ICICI Bank Ltd. and becomes the borrower(s) of Kotak Mahindra Bank Ltd. (assignee). 47. At this stage, we wish to once again emphasise that debts are assets of the assignor bank. The High Court(s) has erred in not appreciating that the assignor bank is only transferring its rights under a contract and its own asset, namely, the debt as also the mortgagee's rights in the mortgaged properties without in any manner affecting the rights of the borrower(s)/mortgagor(s) in the contract or in the assets. None of the clauses of the impugned Deed of Assignment transfers any obligations of the assignor towards the assignee. 48. In the case of Khardah Company Ltd. v. Raymon and Co. (India) Private Ltd., reported in (1963) 3 SCR 183 : AIR 1982 SC 1810 the Supreme Court has held that the law on the subject of assignment of a contract is well settled. 48. In the case of Khardah Company Ltd. v. Raymon and Co. (India) Private Ltd., reported in (1963) 3 SCR 183 : AIR 1982 SC 1810 the Supreme Court has held that the law on the subject of assignment of a contract is well settled. An assignment of a contract might result by transfer either of the rights or by transfer of obligations thereunder. There is a well recognised distinction between the two classes of assignments. As a rule, obligations under a contract cannot be assigned except with the consent of the promise, and when such consent is given, it is really a novation resulting in substitution of liabilities. That, rights under a contract are always assignable unless the contract is personal in its nature or unless the rights are incapable of assignment, either under the law or under an agreement between the parties. A benefit under the contract can always be assigned. That, there is, in law, a clear distinction between assignment of rights under a contract by a party who has performed his obligation thereunder and an assignment of a claim for compensation which one party has against the other for breach of contract. 49. In the case of Camdex International Ltd. v. Bank of Zambia, reported in (1998) QB 22 (CA) the following observation which is relevant to the present case needs to be quoted: The assignment of a debt will not be contrary to public policy solely on the grounds that the assignee has purchased the debt for a considerably discounted price or because that price is only payable after a period of credit. Nor will the assignment be contrary to public policy simply because the assignee may make a profit on the transaction at the end of the day. If there was no prospect of a profit, Hobhouse LJ observed, commercial entities would never purchase debts. 50. Similarly, the following proposition in Chitty on Contracts, 27th Edn. (1994) at para 19.027 is relevant to be noted. It is also well established that a claim to a simple debt is assignable even if the debtor has refused to pay. The practice of assigning or 'selling' debts to debt collecting agencies and credit factors could hardly be carried on if the law were otherwise. 31. (1994) at para 19.027 is relevant to be noted. It is also well established that a claim to a simple debt is assignable even if the debtor has refused to pay. The practice of assigning or 'selling' debts to debt collecting agencies and credit factors could hardly be carried on if the law were otherwise. 31. The pledged goods are not debt but are security and creditor is under obligation to preserve such security till his dues are repaid by the borrower. As held by the Hon'ble Supreme Court, the debt is an asset in the hands of the bank as a secured creditor and the bank can always transfer its assets and such transfer in no way affects any rights or interest of the borrower. However, Hon'ble supreme Court has clearly distinguished between the rights to transfer debt and the assignment of obligation for promisor and held that assignment of the obligation for the promisor owed to the promise is not possible without novation of the contract with the promisor. 32. As regards the right of pawnor and pawnee under the Contract Act, following decisions need to be referred:- (1) In the case of Balkrishan Gupta and others v. Swadeshi Polytex Ltd. And Another, reported in AIR 1985 SC 520 , the Hon'ble Supreme Court has held and observed in para 33 as under:- 33. The fact that 3,50,000 shares have been pledged in favour of the Government of Uttar Pradesh also would not make any difference, Sections 172 to 178-A of the Indian Contract Act, 1872 deal with the contract of pledge. A pawn is not exactly a mortgage As observed by this Court in Lallan Prasad v. Rahmat Ali, (1967) 2 SCR 233 at pp. 238-39 : AIR 1967 SC 1322 at pp. 1324-1325, the two ingredients of a pawn are: "(i) that it is essential to the contract of pawn that the property pledged should be actually or constructively delivered to the pawnee and (2) a pawnee has only a special property in the pledge but the general property therein remains in the pawner and wholly reverts to him on discharge of the debt. A pawn therefore is a security, where, by contract a deposit of goods is made as security for a debt. The right to property vests in the pledgee only so far as is necessary to secure, the debt.... A pawn therefore is a security, where, by contract a deposit of goods is made as security for a debt. The right to property vests in the pledgee only so far as is necessary to secure, the debt.... The pawner however has a right to redeem the property pledged until the sale." In Bank of Bihar v. State of Bihar, 1971 (Supp) SCR 299 : AIR 1971 SC 1210 also this Court has reiterated the above legal position and held that the pawnee had a special property which was not of ordinary nature on the goods pledged and so long as his claim was not satisfied no other creditor of the pawnor had any right to take away the goods or its price. Beyond this no other right was recognised in a pawnee in the above decision. Under section 176 of the Indian Contract Act, 1872 if the pawnor makes default in payment of the debt, or performance, at the stipulated time, of the promise, in respect of which the goods were pledged, the pawnee may bring a suit against the pawnor upon the debt or promise, and retain the goods pledged as a collateral security, or he may sell the thing pledged, on giving the pawnor reasonable notice of the sale, In the case of a pledge, however, the legal title to the goods pledged would not vest in the pawnee. The pawnor has only a special property. A pawnee has no right of foreclosure since he never had the absolute ownership at law and his equitable title cannot exceed what is specifically granted by law. In this sense a pledge differs from a mortgage in view of the foregoing the pawnee in the instant case i.e. the Government of Uttar Pradesh could not be treated as the holder of the shares pledged in its favour. The Cotton Mills Company continued to be the member of the Polytex Company in respect of the said shares and could exercise its rights under section 169 of the Act. (2) In the case of Standard Chartered Bank and Another v. Custodian and Another, reported in (2000) 6 SCC 427 , the Hon'ble Supreme Court has held and observed in para 41, 44, 45 and 46 as under:- 41. (2) In the case of Standard Chartered Bank and Another v. Custodian and Another, reported in (2000) 6 SCC 427 , the Hon'ble Supreme Court has held and observed in para 41, 44, 45 and 46 as under:- 41. Before we deal with the main contention it will be pertinent to note that in so far as the right shares were concerned, it was accepted by all the parties that as the appellant bank had paid for these right shares the same belong to it and they were entitled to keep them irrespective of the question whether they formed part of the pledge or not. The question of return of right shares does not, therefore, arise in these appeals. 44. On the other hand the Privy Council in Motilal Hirabhai v. Bai Mani, AIR 1925 PC 86 had to consider as to whether the pledgee was required to return to the pledgor, on redemption, bonus shares which had been issued. The plea taken by the pledgee in that case was that the pledgee was only required to return the original shares which were pledged and not the bonus shares which were received. Rejecting this contention it was held that the bonus shares were received as arising out of and appertaining to the original shares and that it was impossible to contend that the right to these shares could be differentiated from the right to the original shares. Referring to Section 163 of the Contract Act the Privy Council held that These shares (bonus shares) are clearly accessions to the shares expressly pledged or hypothecated, and the pledgor or his representative, the present plaintiff, is entitled to recover the same. 45. It was then contended by Mr. Cooper that the bonus shares, dividend and interest, if they are regarded as accretions to the pledged stocks then they must also be regarded as forming part of the pledged property which could not be ordered to be handed over unless redemption takes place. In other words, the submission was that the Special Court could not have permitted the appellant bank to have retained the stocks originally pledged but at the same time directed that the accretions thereto should be handed over to the custodian. 46. Section 172 of the Contract Act provides that the bailment of goods as security or payment of a debt or performance of a promise is called pledge. 46. Section 172 of the Contract Act provides that the bailment of goods as security or payment of a debt or performance of a promise is called pledge. Bailor being the pawnor and pawnee being the bailee. What is bailment is defined by Section 148 which, inter alia, provides that bailment is the delivery of goods by one person to another for some purpose, upon a contract that they shall, when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them. The person delivering the goods is called the bailor and the person to whom the goods are delivered is called the bailee. Section 160 provides that the goods bailed are to be returned by the bailee on expiration of time or accomplishment of purpose. Reading Section 172 with Sections 148 and 160 of Contract Act, it would appear that when goods are bailed for securing payment of debt or the performance of a promise the bailor would get a right for the return of the said goods when the purpose is accomplished, namely, the debt is returned or the promise is performed. At the same time Section 176 provides for pawnee's right when pawnor makes default. This section not only gives the pawnee the right to retain the goods pledged as collateral security but also entitles the pawnee to sell the pledged goods after giving pawnor reasonable notice of the same. If the proceeds of the sale are less than the amount due, the pawnor continues liable to pay the balance. On the other hand if the proceeds realised on the sale being made are greater than the amount due the pawnee is under obligation to pay over the surplus to the pawnor. (3) In the case of Bank of Rajasthan Ltd. v. Hajarimal Milap C. Surana and others, reported in (2005) 10 SCC 238 , the Hon'ble supreme Court has held and observed in para 5 and 6 as under:- 5. A plain reading of this agreement shows that the respondents have admitted that a sum of Rs.58.07 lakhs was due and payable to the appellant Bank on the date of the agreement. It shows that some precious stones have been handed over. It then recites that the appellant Bank has allowed a lump sum remission of Rs.5 lakhs towards interest. A plain reading of this agreement shows that the respondents have admitted that a sum of Rs.58.07 lakhs was due and payable to the appellant Bank on the date of the agreement. It shows that some precious stones have been handed over. It then recites that the appellant Bank has allowed a lump sum remission of Rs.5 lakhs towards interest. It then recites (in clause 2) that the appellant Bank shall not charge any further interest. Clause 3 states that the precious stones have been delivered as "security towards the outstanding dues amounting to Rs.53.07 lakhs". Thus, it is clear that the precious stones have merely been handed over as security. They are not handed over in full and final settlement of the dues of the appellant Bank. The fact that the precious stones are handed over merely as a security and not in full and final settlement of dues of the appellant Bank is also clear from a perusal of clause 2 which provides that the appellant Bank is not to charge any further interest. It the debt was being wiped out, then there would have been no need to provide that the appellant Bank will not charge any further interest in this account. 6. It is strenuously urged that clause 4 of this agreement clearly indicates that the precious stones were handed over to the appellant Bank in lieu of debt. It is submitted that by virtue of clause 4 the only remedy of the appellant Bank was to recover its dues by sale of the precious stones. We are unable to accept this submission. Clause 4 mentions that the respondents undertake to arrange disposal of the stocks so delivered to the appellant Bank within a period of six months failing which the appellant Bank shall have the full authority to dispose of the goods. If the appellant Bank had become the owner of the goods i.e. if title had passed to them, they did not require authority to dispose of the goods. Under clause 4, if the respondents did not sell within a period of six months, then the appellant Bank has been given authority to sell either by private treaty or by public auction. But this is nothing more than the right which is given to a pledgee under Section 176 of the Indian Contract Act. Under clause 4, if the respondents did not sell within a period of six months, then the appellant Bank has been given authority to sell either by private treaty or by public auction. But this is nothing more than the right which is given to a pledgee under Section 176 of the Indian Contract Act. This is clear from the fact that clause 4 provides that the sale proceeds are to be appropriated towards the claim of the appellant Bank amounting to Rs.53.07 lakhs. If the precious stones were being given in full and final settlement then there was no question of appropriation after sale. Appropriation after sale can only arise if the debt still remains. The sale is only towards satisfaction of that debt. 33. In the case of Prabhat Bank Ltd.(supra), relied on by learned advocate Mr. Shah, the Court has held and observed in para 5 to 8 as under:- 5. Two contentions were raised by the learned counsel before me. First, that the term in the agreement empowering the Bank to sell the securities for realising the debt due from the respondent being unqualified, it was not necessary to comply with the provisions of S. 176 of the Contract Act. Secondly, it was urged that the letter sent by the bank on 5-8-1948 asking the respondent to pay up the money due to the appellant, and the reply of the defendant, dated 13-8-1948 asking for time up to the 15th September, 1948 and requesting the postponement of the sale of securities clearly indicated that the respondent had notice of the intended sale of the securities pledged with the Bank. Consequently, so it was urged, the sale of the securities by the appellant Bank was legal and the suit for recovery of the balance was maintainable. 6. Section 176 of the Contract Act provides that if the pawner makes a default in payment of the debt in respect of which the goods were pledged, the pawnee may bring a suit against the pawner upon the debt, or he may sell the thing pledged on giving the pawner reasonable notice or the same. 6. Section 176 of the Contract Act provides that if the pawner makes a default in payment of the debt in respect of which the goods were pledged, the pawnee may bring a suit against the pawner upon the debt, or he may sell the thing pledged on giving the pawner reasonable notice or the same. The contention that notice of the contemplated sale to the pawner should be inferred from his letter dated 13-8-1948, cannot hold water inasmuch as the said letter does not disclose that a reasonable notice had been given by the pawnee to the pawner to sell the securities. A notice of the character contemplated by Section 176 cannot be implied. Such notice has to be clear and specific in language indicating the intention of the pawnee to dispose of the security. No such intention was disclosed by the Bank in any letter to the respondent. 7. As regards the terms of the agreement dated 31-12-1946 under which the pawnee had been authorised to sell the securities in case the credit balance of the debtor fell below the margin, it could not avail the Bank in acting contrary to law. An agreement of this character would be inconsistent with the provisions of the Contract Act and, as such, would be wholly void and unenforceable. 8. I am, therefore, clearly of the opinion that the sale of the securities by the appellant Bank without reasonable notice to the respondent was bad and was not binding on him. What is contemplated by Section 176 is not merely a notice but a 'reasonable' notice, meaning thereby a notice of intended sale of the security by the creditor within a certain dale so as to afford an opportunity to the debtor to pay up the amount within the time mentioned in the notice. No such notice was ever given by the appellant to the respondent. There caw thus be no escape from the conclusion that the sale of the securities by the appellant was against law and not binding on the respondent. The conclusion reached by the lower appellate court was, therefore, legally sound. 34. In the case of Tapanga Light Foundry (supra), relied on by learned advocate Mr. Shah, the Court has held and observed in para 10 as under:- 10. The conclusion reached by the lower appellate court was, therefore, legally sound. 34. In the case of Tapanga Light Foundry (supra), relied on by learned advocate Mr. Shah, the Court has held and observed in para 10 as under:- 10. Learned counsel for the petitioners contended that there was no compliance of S. 176 of the Indian Contract Act, which is mandatory in character. S. 176 lays down that if the pawner makes default in payment of the debt, or performance, at the stipulated time of the promise, in respect of which the goods were pledged, the pawnee may bring a suit against the pawner upon the debt or promise, and retain the goods pledged as a collateral security; or he may sell the thing pledged, on giving the pawner reasonable notice of the sale. In, Hulas Kunwar v. Allahabad Bank Ltd., AIR 1958 Cal 644 it was held that the provisions of S. 176 relating to a "reasonable notice of the sale" are mandatory. In Wangapally Latchiah v. Peddi Laxmiah, AIR 1960 AP 272 it was held that before exercising the power of sale the pawnee should give to the pledger reasonable notice of the sale. In order that that provision should not be made nugatory, the proper interpretation to put on S. 176 is to hold notwithstanding any contract to the contrary notice has to be given. At the time of entering into a contract of pledge the pawner cannot agree to waive notice as it would be inconsistent with the provisions of S. 176. In Haridas Mundra v. National and Grindlays Bank Ltd., AIR 1966 Cal 132 it was held that the pawner is entitled to reasonable notice under S. 176. In Prabhat Bank Ltd. v. Babu Ram, AIR 1966 All 134 . It was held that a notice of the character contemplated by S. 176 cannot be implied. Such notice must be clear and specific in its language and must indicate the intention of the pawnee to dispose of the security. On consideration of the above principles and the provision of S. 176 of the Indian Contract Act, it is clear that the pawner is entitled to reasonable notice before sale of the pawned goods and the provisions are mandatory in character. 35. Learned senior advocate Mr. On consideration of the above principles and the provision of S. 176 of the Indian Contract Act, it is clear that the pawner is entitled to reasonable notice before sale of the pawned goods and the provisions are mandatory in character. 35. Learned senior advocate Mr. Soparkar, however, submitted that the applicants had given special authority by power of attorney to deal with and dispose of the pledged shares and therefore, by virtue of such authority, the IDBI was authorised to transfer its rights in the pledged shares in favour of respondent No. 2. Such contention will not stand against the mandatory provision of Section 176 of the Contract Act. Mr. Shah however disputed giving of any authority in favour of the IDBI by referring to the xerox copy of letter dated 17.7.1985 at page 21/4, to point out that no authority is given to deal with or dispose of any share by the applicants. However, Mr. Soparkar drew the attention of the Court to typed copy of the said letter at page 17 so as to point out that the applicants have given authority to IDBI to deal with and dispose of the pledged shares in any manner it deemed fit. In fact, such strong rival contentions could have been gone into and dealt with if the applicants were made parties and heard in the Company Application No. 414 of 2007. 36. Company Application No. 414 of 2007 was filed by IDBI mainly seeking to ratify its action of assigning all rights and remedies against the borrower with underlying security in favour of respondent No. 2. 37. By the above said application, validation of assignment of rights against the company was sought on the basis of the agreement of assignment with respondent No. 2. Under the provisions of the Companies Act and the Rules, the Company Court appears to have no jurisdiction to validate any act or agreement between two parties not involving the company. Therefore, the Company Court would not have jurisdiction to entertain any such application for ratification of any act or agreement between two independent parties. Under the provisions of the Companies Act and the Rules, the Company Court appears to have no jurisdiction to validate any act or agreement between two parties not involving the company. Therefore, the Company Court would not have jurisdiction to entertain any such application for ratification of any act or agreement between two independent parties. If the creditor of the company assigns his rights in the debts of the company in favour of any other party by any agreement, the assignee steps into the shoes of the creditor of the company and such assignee thereafter will be at liberty to move application before the Company Court to substitute him in place of creditor and to recognise him as creditor of the company in the winding up proceedings. 38. As regards the jurisdiction of the Company Court for rectification of registers of the members of the company for the purpose of transfer of the shares, the decision in the case of Ammonia Supplies Corporation (P) Ltd. v. Modern Plastic Containers Pvt. Ltd. And others, reported in (1998) 7 SCC 105 needs to be referred. In the said decision, the Hon'ble Supreme Court has held and observed in paragraph Nos. 24, 26, 27 and 28 as under:- 24. First the scope of Section 155 and Section 446 to be understood to be entirely in different fields. Section 155 deals with power of the Court to rectify Register of Members maintained by a Company. Section 441 deals with commencement of winding-up by the Court. Section 442 deals with the power of the Court to stay or restrain proceedings against the company, at any stage after the petition for winding-up is filed but before a winding-up order is made. A creditor or a company may apply to the Court having jurisdiction to wind-up the company to restrain all further proceedings in any suits or proceedings against the Company. Section 443 deals with powers of Court to hear such petition, Section 444 entrusts the Court after the winding-up order to communicate the same to the Official Liquidator. Section 445 directs that a copy of the winding-up order to be filed with the Registrar. Then comes Section 446. Section 443 deals with powers of Court to hear such petition, Section 444 entrusts the Court after the winding-up order to communicate the same to the Official Liquidator. Section 445 directs that a copy of the winding-up order to be filed with the Registrar. Then comes Section 446. Sub-section (1) is after winding-up order has been passed or the Official Liquidator has been appointed, it puts an embargo on any suit to be instituted or if pending against the company on that date to be proceeded with except with the leave of the Court. Use of the words, '.....no suit.....' shall be commenced '.....proceeded with......' except by leave of the court..... "spells out that the jurisdiction of the Civil Court is not ousted to adjudicate matter between the parties but embargo is to be controlled at the discretion of the Company Judge, depending on the facts of each case. Then comes Section 446(2) under which the Court is invested with the jurisdiction to entertain or dispose of any suit or proceeding by or against the company. So Section 446 deals with cases of the company under winding-up while Section 155 deals with both classes of companies, one under winding-up and other not under winding-up. 26. The proviso gave discretion to the Court to direct an issue of law to be tried, if raised. By this deletion, submission is that the Company Court now itself has to decide any question relating to the rectification of the register including the law and not to send one to the Civil Court. There could be no doubt any question raised within the peripheral field of rectification, it is the Court under Section 155 alone which would have exclusive jurisdiction. However, the question raised does not rest here. There could be no doubt any question raised within the peripheral field of rectification, it is the Court under Section 155 alone which would have exclusive jurisdiction. However, the question raised does not rest here. In case any claim is based on some seriously disputed civil rights or title, denial of any transaction or any other basic facts which may be the foundation to claim a right to be a member and if the Court feels such claim does not constitute to be a rectification but instead seeking adjudication of basic pillar some such facts falling outside the rectification, its discretion to send a party to seek his relief before Civil Court first for the adjudication of such facts, it cannot be said such right of the Court to have been taken away merely on account of the deletion of the aforesaid proviso. Otherwise under the garb of rectification one may lay claim of many such contentious issues for adjudication not falling under it. Thus in other words, the Court under it has discretion to find whether the dispute raised are really for rectification or is of such a nature, unless decided first it would not come within the purview of rectification. The word 'rectification' itself connotes some error which has crept in requiring correction. Error would only means everything as required under the law has been done yet by some mistake the name is either omitted or wrongly recorded in the register of the Company. In T.P. Mukherjee's Law Lexicon, fifth revised Edn.; The expression rectification of the register used in Section 155 is significant and purposeful. 'Rectification' implies the correctness of an error or removal of defects or imperfections. It implies prior existence of error, mistake or defect......... the register kept by the Company has to be shown to be wrong or defective. Stroud's Judicial Dictionary: Rectify - Altering the register of a company so as to make it conformable with a lawful transfer. 'Rectification' implies the correctness of an error or removal of defects or imperfections. It implies prior existence of error, mistake or defect......... the register kept by the Company has to be shown to be wrong or defective. Stroud's Judicial Dictionary: Rectify - Altering the register of a company so as to make it conformable with a lawful transfer. In Venkataramaiya's Law Lexicon, 2nd Edn.: The act to be done under the powers of that Section is the 'rectification of the register, a term which itself implies that the register, either in what is, or what is not upon it, is wrong; but the register cannot be wrong unless there has been a failure on the part of the company to comply with the directions in the Act as to the kind of register to be kept; for if the Act has been complied 27. In other words, in order to qualify for rectification, every procedure as prescribed under the Companies Act before recording the name in the register of the Company has to be stated to have been complied with by the applicant at least that part as required by the Act and assertion of what not complied with under the Act and rule by the person or authority of the respondent-Company before applicant to claim for the rectification of such register. The Court has to examine on the facts of each case, whether an application is for rectification or something else. So field or peripheral jurisdiction of the Court under it would be what comes under rectification not projected claims under the garb of rectification. So far exercising of power for rectification within its field there could be no doubt the Court as referred under Section 155 read with Section 2(11) and Section 10, it is the Company Court alone which has exclusive jurisdiction. Similarly, under Section 446 the 'Court' refers to the Company Judge which has exclusive jurisdiction to decide matters what is covered under it by itself. But this does not mean by interpreting such 'court' having exclusive jurisdiction to include within it what is not covered under it, merely because it is cloaked under the nomenclature rectification does not mean court cannot see the substance after removing the cloak. 28. Question for scrutiny before us is the peripheral field within which Court could exercise its jurisdiction for rectification. 28. Question for scrutiny before us is the peripheral field within which Court could exercise its jurisdiction for rectification. As aforesaid the very word "rectification" connotes something what ought to have been done but by error not done and what ought not to have been done was done requiring correction. Rectification in other words, is the failure on the part of the Company to comply with the directions under the Act. To show this error the burden is on the applicant, and to this extent any matter or dispute between persons raised in such Court it may generally decide any matter which is necessary or expedient to decide in connection with the rectification. 39. If the applicants were joined in the application, they would have apprised the about the correct position of law as regards the Court's power to ratify/validate the act or agreement of assignment between the creditor of the company and third party - respondent No. 2 and about the power of the Court to order transfer of the shares. 40. The relief sought in the Company Application No. 414 of 2007 were directly affecting the applicants. The applicants were therefore, required to be joined and heard in the application preferred by IDBI. No order affecting the applicants could have been passed without hearing the applicants. Learned advocate Mr. Shah was right when he submitted that if the applicants were joined as parties, they could have pointed out that the IDBI having assigned its rights against borrower and in security, the application at its instance was not maintainable and the Court would have no jurisdiction to grant prayers made therein. 41. Learned senior advocate Mr. Soparkar however strenuously contended that the applicants are in fact seeking review of the order dated 25.8.2008 by pressing application only for recall of the said order. Mr. Soparkar while relying on the decision in the case of Cine Exhibition Pvt. Ltd. (supra) submitted that such practice of seeking indirect review by filing application for clarification/modification/recall/rehearing is deprecated by the Hon'ble Supreme Court on the ground that what cannot be done directly cannot be permitted to be done indirectly. In my view, the judgment in the case of Cine Exhibition Pvt. Ltd. (supra) will have no application to the facts of the case. In my view, the judgment in the case of Cine Exhibition Pvt. Ltd. (supra) will have no application to the facts of the case. In the said case, the Registrar of the Supreme Court expressed his view that the prayers made in the application presented before him would clearly fall in the realm of the application for review of the judgment of the Hon'ble Supreme Court dated 11.1.2012. Considering the practice prevailing in the Supreme Court and having found that applications filed for clarification, modification or recall were in fact for review of the orders, the Hon'ble Supreme Court observed that the Court should not permit hearing of such application for clarification, modification or recall if application in substance is for review. After expressing that it is for the Court to examine whether the application is, in substance, in the nature of review, the Hon'ble Supreme Court finally observed in para 9 and 10 as under:- 9. Under Order 40 of the Rules a review application has first to go before learned Judges in circulation and it will be for the Court to consider whether the application is to be rejected without an order giving an oral hearing or whether notice is to be issued to the opposite party. Many a times, applications are filed for clarification/modification/recall or rehearing not because of any clarification/modification is found necessary but because the applicant in reality wants a review and also wants hearing by avoiding circulation of the same in Chambers. We are of the view that a party cannot be permitted to circumvent or by-pass this circulation procedure and indirectly obtain a hearing in the open Court, what cannot be done directly, cannot be permitted to be done indirectly. 10. We are, therefore, of the view that the Registrar has rightly ordered for lodgment of the applications. However, we make it clear that the dismissal of these applications would not stand in the way of the applicants in filing review petitions with additional documents, stated to have been suppressed by the opposite side, which would be dealt with in accordance with law. The interlocutory applications are dismissed. 42. At this stage, following judgments on review and recall need to be referred. (1) In the case of Pohla Singh Alias Pohla Ram (D) By Lrs. The interlocutory applications are dismissed. 42. At this stage, following judgments on review and recall need to be referred. (1) In the case of Pohla Singh Alias Pohla Ram (D) By Lrs. and others v. State of Punjab and others, reported in (2004) 6 SCC 126 , the Hon'ble Supreme Court held and observed in para 18.1 and 19 as under:- 18.1. In this petition Gurcharan Singh son of Dhanna Singh was arrayed as respondent No. 4 and the judgment shows that the petition was contested only by the said respondent. If a decision rendered in a writ petition adversely affects the interest of a third person who was not impleaded as party in the writ petition, it is always open to him to ask for recall of the judgment which has been rendered without affording any opportunity of hearing to him. An identical question has been examined by a Constitution Bench in Shivdeo Singh v. State of Punjab, AIR 1963 SC 1909 . Here in a writ petition filed by A for cancellation of the order of allotment passed by the Director of Rehabilitation in favour of B, the High Court cancelled the order in favour of B though he was not a party to the writ proceedings. Subsequently, B filed a petition under Article 226 of the Constitution for impleading him as a party to A's writ petition and rehearing the whole matter. The High Court allowed the writ petition. It was held by this Court that the second writ petition filed by B was maintainable and the High Court had not acted without jurisdiction in reviewing its previous order at the instance of B, who was not a party to the previous proceedings. It was further held that there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave or palpable errors committed by it. In entertaining B's petition, the High Court thereby did what the principles of natural justice required it to do. 19. In entertaining B's petition, the High Court thereby did what the principles of natural justice required it to do. 19. The recourse taken to the second writ petition by the allottees, therefore, cannot be said to be illegal as their basic grievance was that though they were in possession since 1962 i.e. for nearly 18 years, but the order declaring the land as surplus had been set aside in a writ petition, wherein they were not impleaded as parties. In these circumstances we are of the opinion that the writ petition filed by the allottees was rightly allowed by the learned single Judge. (2) In the case of Ram Chandra Mahadev Jagpat and others v. Chief Executive Officer and others, reported in (2006) 11 SCC 661 , the Hon'ble Supreme Court has held and observed in para 40 and 41 as under:- 40. We have given our anxious and careful consideration to the lengthy submissions made by all the learned senior counsel appearing for the respective parties with reference to the pleadings, annexures etc. The applicant Sigtia have explained to this Court as to how the deposit of Rs.2.5 crores was not be deposited with SRA. It also denied that the agreement entered into between Sigtia and the society came to an end on 25.04.2005 by efflux of time. In this context, Clause 22 of the agreement must be read as a whole and when so read, it would be clear that the developer was to start the actual construction after the issuance of the commencement certificate by the authority. Therefore, the period of 3 years must be construed to begin from the date when commencement certificate is issued and not from the date of execution of the agreement. It was also submitted that the letters dated 25.04.2005 and 06.06.2005 were issued by 2 or 3 members of the society who were acting with ulterior motive and in collusion with the rival developer. Even the SRA to whom the letter dated 06.06.2005 was addressed in its counter affidavit filed before this Court in the present proceedings has stated that they did not take notice of the said letter of termination as the letter was not supported by the relevant resolution of the society. Even the SRA to whom the letter dated 06.06.2005 was addressed in its counter affidavit filed before this Court in the present proceedings has stated that they did not take notice of the said letter of termination as the letter was not supported by the relevant resolution of the society. After 11.03.2005, Sigtia approached the SRA on several occasions requesting for the issuance of the Letter of Intent but since no response was coming from the Housing Department of Government of Maharashtra on 10.06.1995. In our view after the dismissal of the special leave petition No. 19848 of 2005, the order of the High Court dated 11.03.2005 attained finality and there was no proposal of M/s. Keya Developers before the SRA on 13.04.2006 and, therefore, there was no question of SRA considering the proposal made by the new developer. In our view, Sigtia was a necessary party to the writ petition and to the special leave petition No. 10281 of 2006 as it directly affected by any order appointing Keya as developer. The society has also entered into an agreement and also executed an irrevocable general Power of Attorney dated 19.03.2004 wherein expressed its satisfaction with the progress in the work made by the Sigtia and also by the undertaking dated 26.02.2004 where the society undertook to continue with Sigtia as developer till the completion of the SRA project. Though it is contended by Sigtia that the termination by the society on 29.04.2005 was illegal and without authority, the Sigtia has not so far challenged the order of termination by the society. This important factor has also to be taken note of by the SRA at the time of considering the case of Sigtia along with Keya Developers. It is also stated that the consent affidavits of more than 70% of the slum dwellers had already been obtained by Sigtia. It is also submitted in the rejoinder affidavit that Sigtia did have the technical expertise and financial capability to complete the work and that all these issues were decided in favour of Sigtia by the High Court in writ petition No. 988 of 2004 by order dated 11.03.2005 which order has attained finality in view of the dismissal of special leave petition Nos. 11318 of 2005 and 19848 of 2005. 11318 of 2005 and 19848 of 2005. Sigtia, after receiving the copy of the letters dated 24.05.2006 and 06.06.2005 sent a reply dated 15.06.2005 wherein the Sigtia submitted that the purported termination is illegal and without any authority and no further reply was sent by the society to the said letter. Moreover, in the hearing held before the Principal Secretary dated 20.06.2005, the representative of the society made no arguments with regard to the purported termination of the agreement. Therefore, it is contended that the society has not acted on the letter of termination and that the matter has come to an end and, therefore, Sigtia did not file any petition to challenge the purported termination. It is also argued that the prayer in the writ petition No. 1277 of 2006 adversely affects the interests of the Sigtia. It is stated that with the dismissal of special leave petition No. 19848 of 2005 all the applications filed in the said petition also stood dismissed and, therefore, the petitioners in the special leave petition had no right to approach this Court by way of writ petition making the same prayer which was made in the application for directions filed in special leave petition No. 19848 of 2005 and that the effect of the order dated 13.04.2006 is that the order of the High Court dated 11.03.2005 which was not challenged in the special leave petition attained finality and that in the application for directions filed in the special leave petition No. 19848 of 2005 the society had raised the issue of termination of agreement of Sigtia and appointment of Keya developers and the same stood dismissed with the dismissal of the said special leave petition. Therefore, as rightly pointed out by Mr. Arun Jaitley in any subsequent proceedings where the termination of the agreement of applicant Sigtia with the society and replacement of Sigtia a new developer is a subject-matter, Sigtia is a proper and necessary party to it. We see much force and substance in the said argument. In our view, the applicant Sigtia has also the right to have a hearing before the SRA along with Keya Developers, the new appointee. We see much force and substance in the said argument. In our view, the applicant Sigtia has also the right to have a hearing before the SRA along with Keya Developers, the new appointee. It must also be seen that the relief sought in the special leave petition No. 10281 of 2006 though only against SRA but in effect against the applicant Sigtia and, therefore, Sigtia is the necessary party to any proceedings wherein the replacement of the Sigtia with a new developer and the termination of the agreement with the Sigtia is in issue and, therefore, Sigtia should have been made a party respondent in the writ petition No. 1277 of 2004 as well as special leave petition No. 10281 of 2006. It is also not in dispute that Sigtia was impleaded as party respondent No. 7 in the special leave petition which came to be withdrawn by the petitioner therein on 26.09.2005 on which date Sigtia appeared through their advocate in this Court. As rightly submitted by the learned Solicitor General after the withdrawal of special leave petition No. 11318 of 2005 by the petitioner-Nazeer Khan Yakub Khan both the developers i.e. M/s. Sigtia and Keya Developers kept on submitting applications with the SRA. However, due to pendency of the special leave petition in this Court, SRA was not able to take any decision on the representations of the developers as well as the society. At the time of hearing, our attention was also drawn to the guidelines and the several conditions to be fulfilled by the slum dwellers/the society/as well as the developers and the remarks required to be obtained on the proposal from the concerned authorities before issuing Letter of Intent. The SRA has also to verify the resolution as passed by the general body of the slum dwellers proposed society by majority for appointing or replacing the developers for the development of the scheme. It is also necessary for SRA to verify and to see whether the plot under the development is not affected by any reservation such as playground or recreation ground in view of the stay granted by the High Court in writ petition No. 1152 of 2002 and also to verify whether the proposed appointed developer has the financial capacity to undertake and complete the scheme. Therefore, for the foregoing reasons, we hold that Sigtia is a necessary and proper party to the special leave petition No. 10281 of 2006 filed by Ramchandra Mahadev Jagpat and Ors. We say that the order dated 27.06.2006 was passed in S.L.P. No. 10281/2006 on the basis of representation made by all the respective senior counsel appearing at that time. The order was not obtained as playing fraud on Court as alleged by the applicant herein. Now, it is brought to our notice and made out a clear case as to why Sigtia was a necessary party to the special leave petition No. 10281 of 2006 and in the light of the directions given by the High Court dated 11.03.2005 in writ petition No. 988 of 2004 and of the order dated 04.05.2006 in writ petition No. 77 of 2006. We have, therefore, no hesitation to recall our order dated 27.06.2006 in special leave petition No. 10281 of 2006. Since the entire matter was argued at length now by all the respective senior counsel, there is no necessity to rehear special leave petition No. 10281 of 2006. This apart in the concluding portion of our order dated 27.06.2006 in special leave petition No. 10281 of 2006, this Court directed the SRA to issue proper orders within two weeks from 27.06.2006. The said direction is also not correct. This Court ought to have directed the SRA, if at all, to consider issuing of the Letter of Intent in favour of Keya Developers in view of the replacement of previous Developers M/s. Sigtia. 41. The said direction is also not correct. This Court ought to have directed the SRA, if at all, to consider issuing of the Letter of Intent in favour of Keya Developers in view of the replacement of previous Developers M/s. Sigtia. 41. We, therefore, allow the application I.A. No. 3 of 2006 filed by the applicant Sigtia and recall our order dated 27.06.2006 passed in special leave petition No. 10281 of 2006 and pass the following order:- As directed by the order in writ petition No. 988 of 2004 dated 11.03.2005 and order dated 04.05.2006 in writ petition No. 1277 of 2006 the SRA is directed to call the two developers, namely, M/s. Keya and M/s. Sigtia and dispose of their application for issuing the Letter of Intent and to pass appropriate orders and in accordance with the Maharashtra Slum Areas Improvement, Clearance and Re-development Act, 1971 and also strictly following the procedure for submission, processing and approval of Slum Rehabilitation Scheme and to Award the Letter of Intent to the developer who satisfies the required qualifications and conditions and regulations and the provision of the Act, 1971. (3) In the case of Asit Kumar Kar v. State of West Bengal and others, reported in (2009) 2 SCC 703 , the Hon'ble Supreme Court has held and observed in paragraph Nos. 4 to 7 as under:- 4. It is a basic principle of justice that no adverse orders should be passed against a party without hearing him. This is the fundamental principle of natural justice and it is a basic canon of jurisprudence. In the Seven Judge Constitution Bench of this Court, A.R. Antuley v. R.S. Nayak and Anr., 1988 (2) SCC 602 it has been observed in paragraph 55 thereof: so also the violation of the principles of natural justice renders the act a nullity. 5. One of the counsel relied upon another Five Judge Constitution Bench decision in Rupa Ashok Hurra v. Ashok Hurra, 2002 (4) SCC 388 . It is true that in paragraph 9 of the said judgment it has been observed that this Court under Article 32 of the Constitution cannot hold as invalid a judgment of this Court by treating it as a nullity. However, the aforesaid judgment does not say that we cannot pass a recall order when that order has been passed without hearing a party. 6. However, the aforesaid judgment does not say that we cannot pass a recall order when that order has been passed without hearing a party. 6. There is a distinction between a petition under Article 32, a review petition and a recall petition. While in a review petition the Court considers on merits where there is an error apparent on the face of the record, in a recall petition the Court does not go into the merits but simply recalls an order which was passed without giving an opportunity of hearing to an affected party. 7. We are treating this petition under Article 32 as a recall petition because the order passed in the decision in All Bengal Licensees Association v. Raghabendra Singh and Ors., 2007 (11) SCC 374 cancelling certain licences was passed without giving opportunity of hearing to the persons who had been granted licences. In these circumstances, we recall the directions in paragraph 40 of the aforesaid judgment. However, if anybody has a grievance against the grant of licences or in the policy of the State Government, he will be at liberty to challenge it in appropriate proceedings before the appropriate Court. The writ petitions are disposed of with these directions. 43. The Company Court has inherent powers under Rule 9 of the Rules to pass necessary orders to do complete justice to the parties by recalling its order if it finds that there was total lack of jurisdiction to deal with particular application whereon the order was made and it was not properly apprised of the correct facts or correct position of law by party in whose favour the order is passed. Present is not the case where the applicants are seeking review under the guise of seeking modification/clarification or recalling of the order. The applicants have come with clear case that they are equity shareholders of the company under liquidation which were pledged by them with IDBI by way of security for the loan advanced by the IDBI to the company. In respect of such shares, if the IDBI wanted to get its action of assigning the rights, title and interest therein ratified with the help of the Court, the applicants were the first affected persons in whose absence no order affecting their rights could have been passed. 44. Learned senior advocate Mr. In respect of such shares, if the IDBI wanted to get its action of assigning the rights, title and interest therein ratified with the help of the Court, the applicants were the first affected persons in whose absence no order affecting their rights could have been passed. 44. Learned senior advocate Mr. Soparkar, however, submitted that even if the application is treated only for recalling of the order dated 25.8.2008 passed by this Court, the law of limitation would apply to such application. Mr. Soparkar submitted that for such kind of application, limitation would be as per Article 137 of the Limitation Act which provides for three years time limit to prefer such application. Mr. Soparkar submitted that the present application is hopelessly time barred and no explanation for delay is given in the application. Mr. Soparkar submitted that the applicants having dropped the prayer for condonation of delay, the application cannot be entertained. 45. The above contentions of learned senior advocate Mr. Soparkar cannot be accepted for the simple reason that when the patent error is found in the order of the Court resulting into injustice to a party by not hearing such party, it is always open to the Court to exercise its inherent powers to do complete justice to such party by recalling the order for which delay cannot come in the way of the Court. 46. As stated above, the applicants though were very much concerned with the proceedings of Company Application No. 414 of 2007 still were not joined as parties. This Court is therefore, of the view that to do complete justice in the matter, the order dated 25.8.2008 passed in the above application needs to be recalled. For the reasons stated above, the application is allowed. The order dated 25.8.2008 passed in Company Application No. 414 of 2007 is recalled and the Company Application No. 414 of 2007 is restored to file. The applicants shall be arraigned as party-respondents in the said application. Amendment in the title clause of the said application shall be carried out by the office. The office may now notify Company Application No. 414 of 2007 for hearing before the appropriate Court. Application allowed.