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2023 (10) TMI 535
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....by the Order in so far as treatment of its claim under the Resolution Plan, has come up in this Appeal. 3. Brief facts of the case necessary to be noticed for deciding this Appeal are:- (i) The Adjudicating Authority vide order dated 30.09.2019 admitted the Application under Section 9 of Insolvency and Bankruptcy Code, 2016 (IBC in short) filed by Operational Creditor against the Corporate Debtor-M/s. Perfect Boring Pvt. Ltd. (ii) The IRP got the notice published on 07.10.2019 calling upon the creditors of the Corporate Debtor to lodge their respective claims on or before 18.10.2019. (iii)The Appellant filed two claims in Form-F for Rs. 1,32,44,314/- (payable under Section 7A and 7Q of Employees Provident Fund Miscellaneous Provisions Act, 1952) (Hereinafter referred to as 1952 Act) and claim of Rs. 99,71,315/- (payable under Section 14B of 1952 Act). (iv) The Resolution Professional collated the claims and prepared a list of claims as on 10th August, 2020 in which list the claimed amount of Appellant Rs. 1,32,44,314/- and Rs. 99,71,315 were admitted with Nil security. The Resolution Plan was submitted by Respondent No. 2 which Resolution Plan was approved by the Committee....
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....r provident fund. It is submitted that copy of the Resolution Plan was shared with the Appellant by Resolution Professional but no objection was raised by Appellant to the Resolution Plan. It is submitted that PF Department is claiming to have found due on the basis of estimate while the Resolution Plan has already provided for the payment of actual workmen dues and as such the claim of PF Department stand subsumed in which plan an amount of Rs. 218.89 lacs made to the workmen. It is further submitted that the Appellant is not entitled to claim any damages under Section 14B. It is submitted that the claim of damages under Section 14B for amount of Rs. 68,54,869/- has been imposed by an order under Section 14B dated 14.10.2019 that is much after declaration of moratorium. It is further submitted that Corporate Debtor being in insolvency, other claim of damages under Section 14B amounting to Rs. 31,16,446/- ought to be waived in view of Section 14B of the 1952 Act. It is submitted that thus total claim of damages under Section 14B of Rs. 99,71,315/- are not payable and no error can be found with regard to the aforesaid amount in the Resolution Plan. Coming to the claim under Section ....
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....nging the assessment made by the Appellant with regard to section 7A and 7Q as well as section 14B. The challenge to assessment orders, made by Appellant in exercise of jurisdiction under 1952 Act cannot be subject matter of challenge in the proceedings under IBC. We have to proceed on the basis of assessment made by statutory authority under 1952 Act and challenge to the said proceedings cannot be entertained in this proceeding. However, the submission of Respondent No. 2 with regard to damages as imposed on the Corporate Debtor needs consideration. From the claim forms which was submitted by the Appellant on 18.10.2019 annexed as Annexure C to the Appeal indicates that one of the assessment pertaining under Section 14B for amount of Rs. 68,54,869 was imposed by Order dated 14.10.2019 which is clear from Form-F which was submitted by the Appellant itself. The Copy of Order dated 14.10.2019 by which amount of Rs. 68,54,869/- has been imposed is clearly after initiation of CIRP against the Corporate Debtor vide Order dated 30.09.2019. 10. We thus are of the view that it is not necessary in this proceeding to issue any direction for payment of the damages as imposed by the Order dat....
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....ndustrial company, complete waiver of damages may be allowed; (b) in cases where the Board for Industrial and Financial Reconstruction, for reasons to be recorded in its schemes, in this behalf recommends, waiver of damages up to 100 per cent may be allowed; (c) in other cases, depending on merits, reduction of damages up to 50 per cent may be allowed." 13. The above provision indicates that the Central Board is empowered to waive the damages under Section 14B of the Act. The Para 32B of the Scheme provides that Board for Industrial and Financial Reconstruction for reasons to be recorded in its schemes, in this behalf recommends, waiver of damages up to 100 per cent may be allowed. After enforcement of IBC, the provisions of Board for Industrial and Financial Reconstruction and Sick Industrial Companies (Special Provisions) Act, 1985 were repealed and earlier statutory regime for rehabilitation is now substituted by Insolvency Regime as contained in IBC. Thus when Insolvency Resolution Process has been initiated against a Corporate Debtor and Resolution plan has been approved under IBC, power of Central Board to reduce or waive the damages can be exercised with regard to th....
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....the extent of Rs. 218.89 Lacs out of total admitted dues of Rs. 307.86 Lacs. What is the bifurcation of PF dues under the payment of 218.89 Lacs which have directly been given to the workmen? We have noticed above that total claim admitted of the Appellant for dues under Section 7A and 7Q was Rs. 1,32,44,314/-, we are of the view that in the amount which is claimed by the Appellant towards 7A and 7Q, the amount which has already been paid to the workmen need to be deducted. Resolution Professional needs to compute the amount paid to the workmen under Resolution Plan towards PF dues. Resolution Professional being ex- Resolution Professional i.e. Respondent No. 1 we direct the Respondent No. 1 to compute the amount of PF dues paid to the workmen under Resolution Plan and thereafter arrive at the amount which is required to be paid to the Appellant as against the admitted claim towards Section 7A and 7Q. 16. Let the aforesaid exercise be completed by the Respondent No. 1 within two months from today and communicate the amount payable to Appellant under 7A and 7Q. The amount to be determined for payment to Appellant has to be the amount after deducting from total claim of Rs. 1,32,44,....