TaxTMI 
TaxTMI 
2022 (7) TMI 772
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....Court of India in M.A. No. 21 of 2022 in M.A. No. 665 of 2021 in SMW (C) No. 3 of 2020 vide order dated 10.01.2022, a fresh period of limitation of 90 days was granted from 28.02.2022 and that the instant `Appeal', since it is filed within the limitation, the condonation of delay application I.A. No. 415 of 2022 in Comp. App. (AT) (CH) (INS) No. 182 of 2022 is to be allowed, in the interest of justice. 2. It is evident that the `impugned order' in IA/442/CHE/2021 in TCP/413/IB/CB/2017 was passed by the `Adjudicating Authority', (National Company Law Tribunal), Division Bench, Court - I, on 17.12.2021, and that the copy of the `impugned order' was obtained by the `Petitioner / Appellant' on the same day. 3. As a matter of fact, the instant `Appeal' is to be filed within 30 days as per the I & B Code, 2016. In this connection, the `Appellant' adverts to the `Order' of Hon'ble Supreme Court of India in M.A. No. 21 of 2022 in M.A. No. 665 of 2021 in Suo Moto Writ Petition Civil No. 3 of 2020 dated 10.01.2022, thereby and whereunder at Paragraphs 5 and 6, it is observed as under: 5. "Taking into consideration the arguments advanced by learned counsel and the impact of the....
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....' before this `Tribunal', is well within the limitation and only as a matter of abundant care and caution, the `Petitioner/Appellant' has projected I.A. No. 415 of 2022. 5. Viewed in the above perspective, this `Tribunal' in furtherance of substantial cause of justice, allows I.A. No. 415 of 2022 (condone delay application) in Comp. App. (AT) (CH) (INS) No. 182 of 2022. No Costs. JUDGMENT (Virtual Mode) Comp. App. (AT) (CH) (INS) No. 182 of 2022: Introduction: 6. The Appellant has focussed the instant Comp. App. (AT) (CH) (INS) No. 182 of 2022, as an `Affected Person', on being dissatisfied with the `impugned order' dated 17.12.2021 in IA/442/CHE/2021 in TCP/413/IB/CB/2017, passed by the `Adjudicating Authority' (National Company Law Tribunal), Division Bench, Court - I, Chennai. 7. According to the Learned Counsel for the Appellant the `Adjudicating Authority' (National Company Law Tribunal), Division Bench, Court-I, Chennai, while passing the `Order' in IA/442/CHE/2021 in TCP/413/IB/CB/2017, filed by the `Appellant / Applicant', wherein at paragraphs 4 to 10, had observed the following and dismissed the IA/442/CHE/2021, without costs: 4. "Vide an Ord....
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....stipulated time i.e., on or before 14.07.2018 as published for by the Respondent. 9. It is also submitted that on 20.09.2019 i.e., after the commencement of the liquidation PF Department has filed Form-F (applicable to CIRP) which was rejected by the Ld. Liquidator. Form-G was filed only on 02.02.2021 i.e., after a delay of 934 days. 10. We have gone through the rival contentions of both the parties and observed that the EPFO Department has not followed the due process as prescribed under the IBC, 2016. The Supreme Court in the matter of P.K.R. Ramachandran -Vs- State of Kerala [1997] 7 SCC 556 has held that an essential pre-requisite of exercising discretion to condone the delay is that the Court must record its satisfaction that the explanation of delay was either reasonable or satisfactory. Further, in the present case the Applicant is not even aware whether the Company is under Liquidation or under the CIRP. In any case, the insurmountable delay of nearly 936 days cannot be condoned at this belated stage.'' and dismissed the Interlocutory Application/442/CHE/2021, without costs. Appellant's Submissions: 8. Questioning the Order of Dismissal of IA/442/....
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....ed, the Appellant was required to file Form-F with an affidavit before the Respondent, on 02.03.2018 and in all, a sum of Rs.1,34,55,603/- was sought by the Appellant. And added further, the Respondent had not replied till date, either admitting or rejecting the Appellant's claim. 13. It is projected on the side of the Appellant that the Respondent through his letter dated 26.06.2018 received on the side of the Appellant on 04.07.2018 informed that the Adjudicating Authority through an order dated 12.06.2018 has initiated the liquidation proceedings against the Corporate Debtor and that the Appellant was also informed that the Respondent was appointed as `Liquidator' on the very same `Order'. Besides this, the Respondent had directed the Appellant to prefer a `claim' under I & B Code, 2016, in the specified format without informing the Appellant that the earlier claim in Form-F would not be taken into account or would not be considered. 14. It is pointed out on behalf of the Appellant on 21.07.2018 the Appellant had issued a reminder letter informing the Respondent / Resolution Professional that the details of the amount due to the Appellant were placed before the Respondent ....
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....pellant that in the Letter dated 24.05.2019, the Appellant had also filed additional claims under Form-F (Supplementary) and sought for further payment of Rs.1,13,89,308/- for the period from Jan'2018 to Jul'2018 and Jun'2015 to Mar'2016. In fact, the Appellant had made a claim amounting to Rs.1,34,55,603/- relating to the period Jul'2015 to Mar'2016 and Apr'2016 to Dec'2017, the Supplementary Claim made on 24.05.2019 was in the character of an amendment to the initial claim, filed by the Appellant. 20. The Learned Counsel for the Appellant proceeds to make a mention that the Respondent through a Letter dated 09.07.2019 had admitted the claim earlier preferred by the Appellant, paid a sum of Rs.21,18,637/- (as part payment). In fact, the Appellant through a communication dated 12.07.2019 had mentioned to the Respondent that an outstanding sum of Rs,2,27,26,274/- remains to be paid in priority over all other claims. But the Respondent, through a Letter dated 01.08.2019 had informed the Appellant with ECR text files with bifurcation of individual code relating to the PF payment of Rs.21,18,637/-. Even the two reminder Letters dated 28.01.2020 and 11.03.2020 given by the Appellant ....
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....Fund' are exempted because of the fact the Appellant is not an `Operational Creditor'. Appellant's Decisions: 26. The Learned Counsel for the Appellant relies on the `Judgment' of the Hon'ble Supreme Court of India in the matter of Employees Provident Fund Commissioner V O.L. of Esskay Pharmaceuticals Limited, reported in MANU / SC / 1327 / 2011, wherein it is observed that sub-section 2 of Section 11 of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, declares that the amount due from an `Employer' shall be the `First Charge of the Assets of the Establishment', and should be paid in priority to all other debts. 27. The Learned Counsel for the Appellant refers to the Judgment of this Tribunal in Company Appeal (AT) (INS.) No. 354 of 2019 with Company Appeal (AT) (INS.) 364 of 2019, Company Appeal (AT) (INS.) No. 404 of 2019 and Company Appeal (AT) (INS) No. 1001 of 2019 dated 19.12.2019, wherein at paragraph 44 and 45, it is observed as under: 44. "However, as no provisions of the `Employees Provident Funds and Miscellaneous Provisions Act, 1952 is in conflict with any of the provisions of the I & B Code, and, on the other hand, in terms of S....
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.... "that provident fund dues are excluded from the liquidation estate so as to enable the workmen realize their saving as well as the matching contribution comes from the employer giving priority even above the costs of liquidator, because the liquidator is also entitled to realize the costs from the liquidation estate only, whereas the workmen for Provident Fund dues need not remain in the line to realize their PF dues from the liquidation estate.'' 29. The Learned Counsel for the Appellant points out the Order dated 12.09.2018 in MA No. 576 and 752/2018 in CP (IB) - 1339 (MB)/2017, passed by the `Adjudicating Authority', (National Company Law Tribunal), Mumbai Bench, wherein at Paragraphs 30, 38 and 42, it is observed as under: 30. " I believe that the right of all other creditors over the assets of the company is a property right, whereas workmen dues, more specially PF dues of workmen, are interwoven with Right to Life because the workmen all through their life save some portion of the hard earnings for their later life after retirement, if such sums are being interlinked on part with debts of the creditors of the company, secured or unsecured as the case may be, th....
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....aw Tribunal), Chennai Bench, the `Appellant/Applicant' had filed IA/442/2021 in TCP/413/IB/CB/2017, seeking an `Order' in directing the `Resolution Professional' to make provision in the `Information Memorandum' and corresponding `Resolution Plan', if any, for the payment of Claim of Rs.3,09,88,511/- as per the revised Form G Establishment wise under Section 14B, 7Q on 02.02.2021 for the period from 05/2015 to 11/2018 due to the applicant herein by condone the delay of 936 days in claiming the EPF & MP Act, 1952, dues. 31. According to the Applicant/Appellant, the Applicant had intimated the Respondent that there was a due sum of damages Rs.6,56,113/- and an interest of Rs.3,14,934/- and totalling in all Rs.9,71,047/- to the Applicant and requested to forward a `Demand Draft' for the said amount. In fact, the Applicant/Appellant had intimated on 02.03.2018 that the provisional assessment of PF dues for the period from 04/2016 to 12/2017 along with damages, amounting to Rs.1,34,55,603/- was prepared and placed in `Form F'. Furthermore, the Respondent had intimated through his letter dated 26.06.2018 about the `initiation of Liquidation Process' and hence, to prefer the Claim, if ....
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.... from 05/2015 to 11/2018 for a sum of Rs.1,17,34,011/-. It is submitted that this allegation is baseless without any substantiation. However, assuming without admitting the only claim value that can be admitted to Rs,1,01,96,123/- for a period of 05/2015 to 10/2017 a period before the initiation of CIRP. 15. Furthermore, in this Hon'ble Adjudicating Authority in MA/57/2019 in TCP/413/2017 considered the application filed by the employees for (i) payment of salary for the month of August 2018 to December 2018, i.e. during the liquidation period when all the employees were discharged and no operation of the Corporate Debtor; (ii) categorically confirm the Corporate Debtor is continued as a going concern and pay wage and salaries; (iii) to obtain fresh claim applications from employees and workers for all lawful claims. The Hon'ble Adjudicating Authority had rejected the application as it is not maintainable either in law or on facts, is devoid of merits. In accordance with the same, the present application of the Applicant is also not maintainable in law and facts. 16. With regard to averments in paragraph 2, it is submitted that the Corporate Debtor was ordered for....
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....ovident Fund Department which fall within the provision of Section 66 of the Code which deals with fraudulent trading or wrongful trading. The Liquidator filed the additional report in MA/1313/2020, wherein the Liquidator appraised the Hon'ble Tribunal the status of the Liquidation process of the Corporate Debtor company. Furthermore, the Respondent submitted before the Hon'ble Tribunal with regard to the collusion between the employees and the present Applicant. Therefore, the present application is with an intent to defraud the Corporate Debtor concern and to make unlawful gain which is subject to be investigated by this Hon'ble Tribunal. 19. It is submitted that the PF due claim was for the period from 05/2015 to 10/2017. On perusal of the claim filed by the RPF dated 02.02.2021 it is observed that the TRRN and the ECR was generated between 27.09.2018 and 04.10.2018. Further, these challans appeared to have been generated by some employees of the CD without any authority in collusion with the PF authorities which well after the commencement of the Liquidation Process. These filings do not have the approval or authority of the Liquidator and as such the same is not bindi....
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....olice to restrain the Liquidator making the handover of the premises to the SBI and ensuring the financial creditors to not participate the liquidation. 24. With regard to the averments and allegation made in para 13 to 15, it is vehemently denied as false and misleading. The allegation that the corporate debtor company being admitted to insolvency or liquidation was not within the knowledge of the Applicant is utterly surprising to believe. The Applicant is the Regional Provident Fund Commissioner - II is well aware and has information with regard to the Corporate Debtor being admitted to insolvency and the Respondent had called for the claims from all creditors, vide his paper publication dated 16.12.2017. The Respondent received a claim from the Applicant corporation on 29.05.2019, which is about two years after the Corporate Debtor concern entered into insolvency. The belatedness of the claim from the Applicant concern entered into insolvency. The belatedness of the claim is not substantiated with valid explanation neither to the Respondent herein or the Adjudicating authority. Moreover, the Applicant's motive was only to send demanding letters requesting for the dues ....