TaxTMI 
TaxTMI 
2025 (5) TMI 81
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....rli Industries, one asset reconstruction company had filed Insolvency proceedings for initiation of Insolvency Regulation, in which by an order dated 5.4.2017 passed by the National Company Law Tribunal (NCLT for short hereinafter) in CP No. 66/2017 one Mr. Vijaykumar Iyer was appointed as the Interim Resolution Professional (IRP for short hereinafter) (page 31). The said IRP by a public announcement dated 11.4.2017, called upon the creditors of the original petitioner company to submit proof of their claims on or before 19.4.2017 to him (p32). The respondent, by communication dated 4.10.2017 (p38) intimated a claim of Rs. 54,98,118/- with the IRP. By the communication 28.10.2017 (p39), the IRP, intimated, the respondent, to file a proof of claim in the relevant form as provided in the CIRP Regulations copy of which was enclosed as Annexure 2 to the communication. The respondent thereafter, it appears has not filed anything with the IRP. The proceedings went ahead as a result of which a resolution plan came to be submitted to NCLT by the IRP, in which though it was indicated that the EPFO/respondent had by their letter indicated a claim of Rs. 54,98,118/- the verifiable amount was ....
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....17.2.2025. 3. We have further heard the respective learned Counsels for the parties on 06/03/2025; 07/03/2025, on which dates the following arguments were advanced. 3.1. Mr. Sundaram, learned Counsel for the respondent invites our attention to Section 5 of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 (for short hereinafter "EPF Act") to contend that the provident fund is a fund of the employees, and therefore, will have to be considered as an 'asset' and not as a 'debt' and therefore, cannot be made a subject matter of the resolution plan, in terms of Section 30 of the Insolvency and Bankruptcy Code, 2016 (for short hereinafter "IB Code"). 3.2. He further invites our attention to Section 30 (2) Clause - (b), of the IB Code, which provides that the resolution plan should ensure that it does not contravene any of the provisions of the law for the time being in force, in reference to which, he relies upon Section 36 (4) (a) (iv) by which all sums due to any workman or employee from the provident fund, pension fund and the gratuity fund, stand excluded from the Liquidation Estate Asset and are held not be liable to be used for recovery in th....
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....ent extraction unit and the paper unit. The resolution plan was only in respect of the cement unit, as against which the solvent extraction and paper unit were not the subject to the resolution plan. These are acquired by the petitioner Nos.2 and 3, by virtue of amalgamation, in terms of Section 230 and 231 of the Companies Act, which has been approved by the order dated 05/05/2022 (page 416) and insofar as these units are concerned, since the entire liability to pay the EPF dues to the workers has been taken over by the transferee company in terms of clause 16.1 and 16.3 of the amalgamation scheme (pg.489), the same cannot be questioned in the present petition, by an omnibus prayer in terms of prayer clause (i). It is also contended that right to provident fund, being a statutory right, cannot be extinguished on account of any resolution plan which may be approved by the authority under the IB Code. 3.3. Mr. Bhangde, learned Senior Counsel for the petitioner, in rebuttal, in respect of the decision in Fanendra Harakchand Munot (supra) by the NCLAT relied upon by the learned counsel for the respondent, invites our attention to para 3 thereof, to contend that in the said ca....
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....nds approved and since in the instant case, there is no dispute that the resolution plan already stood approved and challenge before NCLAT came to be decided by Judgment dated 24/01/2020 (page 212), f urther challenge before the Apex Came to be rejected by orders dated 20/11/2020 in Civil Appeal 3169-3170 of 2020 Lalchand Maloo vs. Vijay Kumar (page 239); 12/02/2021 Murlidhar Suganchand Agrawal vs. Vijay Kumar Civil Appeal No. 3956/2020(page-240); 03/05/2021 Prashant vs. Vijay Kumar Civil Appeal Nos.1701 - 1710 of 2021 (page 241), the rights of the EPFO, to claim the EPF dues according to him stood extinguished. 3.7. He further contends that the provisions of resolution are in Chapter II of the IB Code from Sections 6 to 32-A of the I & B Code therefore both operate in different fields, on account of which also Section 36 (4) (a) (iii) is not applicable, as the same would be applicable only when a liquidator is appointed in terms of 33 (1) of the IB Code. 3.8. Jet Aircraft (supra) relied upon by Mr. Sundaram, learned counsel for respondent, according to Mr. Bhangde learned Senior counsel for the petitioners is not applicable in view of the position that it was ren....
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....by the same by deletion of the same in the prayer clause (ii) in the present petition, would not have any adverse effect upon the petitioner, as even though the liability to pay the dues stands admitted by the petitioner, however, in view of the contention that it is not included in the resolution plan, the same would not have any effect as the order of recovery of the Provident Fund dues, has now become unexecutable. He therefore, submits that in case, the petition is allowed in terms of prayer clause (i) the deletion of the challenge to order dated 04/02/2020 would not adversely affect the petitioner in any manner whatsoever. 3.14. He further invites our attention to para 2 of the order dated 24/01/2020 passed by NCLAT, New Delhi (pg. 218), to contend that the argument by Mr. Sundaram, learned Counsel for the respondent that the resolution plan was only in respect of Murli Industries and not in respect of its paper and solvent extraction unit, is factually incorrect, as the workers of the paper and solvent extraction unit had filed Company Appeal (Insolvency) No.871-872 of 2019 challenging the approval of the resolution plan on the ground that they would be adversely aff....
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....ons, which fall for consideration for the sake of ready reference are reproduced as under : I B Code 3. In this Code, unless the context otherwise requires,- (11) "debt" means a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt; CHAPTER II CORPORATE INSOLVENCY RESOLUTION PROCESS 18. Duties of interim resolution professional.- (1) The interim resolution professional shall perform the following duties, namely:- (a) collect all information relating to the assets, finances and operations of the corporate debtor for determining the financial position of the corporate debtor, including information relating to- (i) business operations for the previous two years; (ii) financial and operational payments for the previous two years; (iii) list of assets and liabilities as on the initiation date; and (iv) such other matters as may be specified; (b) receive and collate all the claims submitted by creditors to him, pursuant to the public announcement made under sections 13 and 15; (c) constitute a committee of c....
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....rate debtor under section 53; (c) provides for the management of the affairs of the Corporate debtor after approval of the resolution plan; (d) the implementation and supervision of the resolution plan; (e) does not contravene any of the provisions of the law for the time being in force; (f) conforms to such other requirements as may be specified by the Board. (3) The resolution professional shall present to the committee of creditors for its approval such resolution plans which confirm the conditions referred to in sub-section (2). (4) The committee of creditors may approve a resolution plan by a vote of not less than seventy five per cent. of voting share of the financial creditors. (5) ---------: (6) The resolution professional shall submit the resolution plan as approved by the committee of creditors to the Adjudicating Authority. CHAPTER III LIQUIDATION PROCESS 33. Initiation of liquidation.- (1) Where the Adjudicating Authority,- (a) before the expiry of the insolvency resolution process period or the maximum period permitted for completion of the corporate insolvency resolution proce....
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....t be in possession of the corporate debtor including but not limited to encumbered assets; (c) tangible assets, whether movable or immovable; (d) intangible assets including but not limited to intellectual property, securities (including shares held in a subsidiary of the corporate debtor) and financial instruments, insurance policies, contractual rights; (e) assets subject to the determination of ownership by the court or authority; (f) any assets or their value recovered through proceedings for avoidance of transactions in accordance with this Chapter; (g) any asset of the corporate debtor in respect of which a secured creditor has relinquished security interest; (h) any other property belonging to or vested in the corporate debtor at the insolvency commencement date; and (i) all proceeds of liquidation as and when they are realised. (4) The following shall not be included in the liquidation estate assets and shall not be used for recovery in the liquidation:- (a) assets owned by a third party which are in possession of the corporate debtor, including- (i) assets held in trust for any third ....
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....(whether employed by him directly or by or through a contractor), and the employees' contribution shall be equal to the contribution payable by the employer in respect of him and may, if any employee so desires, be an amount exceeding ten per cent. of his basic wages, dearness allowance and retaining allowance (if any), subject to the condition that the employer shall not be under an obligation to pay any contribution over and above his contribution payable under this section: Provided that in its application to any establishment or class of establishments which the Central Government, after making such inquiry as it deems fit, may, by notification in the Official Gazette specify, this section shall be subject to the modification that for the words ten per cent., at both the places where they occur, the words twelve per cent shall be substituted: Provided further that --. Explanation 1.-For the purposes of this section -------. Explanation 2.-For the purposes of this section, -------. 5. The necessary facts, for the purpose of determination of the controversy in issue, are as under: 5.1. Company Petition No. 66 of 2017 was filed under....
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....P Regulations, on 22/12/2017, seeking approval of the Tribunal to the resolution plan, which was heard and reserved for orders. 5.5. In view of the initiation of the Corporate Resolution Process against M/s. Murli Industries Ltd., Company Application No. 10 of 2017 came to be filed in Company Petition No. 6 of 2012 under section 446 of the Companies Act by the resolution professional on behalf of the Corporate Debtor seeking leave to proceed with or continuing with the ongoing corporate insolvency resolution process under the IB Code. Similar applications, were also filed by the RP bearing Company Application Nos. 13/2017, 14/2017 and 15/2017 in the connected Company Petitions. Initially, by an order dated 22/03/2018, passed in Company Application No. 10 of 2017, in Company Petition No. 6 of 2012, the learned Single Judge of this Court, by considering the fact, that the issue involved in CA No. 10 of 2017, would have a bearing upon the determination of the resolution process one way or the other, pending before the NCLT, expected that the NCLT would not go ahead with the hearing of the resolution process, till the application was finally disposed of by this Court. ....
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....), preferred by the workers of the Paper and Solvent Extraction Units of Murli Industries Ltd. on the ground, that the resolution plan was discriminatory and was threatening the livelihood of 1184 workers of the Paper and Solvent Extraction Units of Murli Industries Ltd., by not paying outstanding wages and compensation for retrenchment as per the provisions of the Industrial Disputes Act, 1947 and in view of the IB Amendment Act, 2019, their claims were to be treated pari passu with the claims of the secured financial creditors of the corporate debtors, in accordance with section 53 (1) of the IB Code. Several other persons had also challenged the approval of the resolution plan, before the National Company Law Appellate Tribunal. This challenge before the NCLAT came to be rejected by the common judgment dated 24/01/2020 (Page 212). 5.10. A further challenge to this, before the Hon'ble Apex Court came to be rejected by orders dated 20/11/2020 in Civil Appeal Nos.3169-3170 of 2020 Lalchand Maloo vs. Vijay Kumar (page 239); 12/02/2021 Murlidhar Suganchand Agrawal vs. Vijay Kumar Civil Appeal No. 3956/2020(page-240); 03/05/2021 Prashant vs. Vijay Kumar Civil Appeal Nos.1701-....
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....ate debtor stands extinguished and no proceedings can be initiated or continued for recovery of alleged provident fund dues, is being pressed. A further claim for quashing and setting aside the show cause notice dated 19/01/2023 and the demand notice dated 13/07/2023 is also made. 6. It is in the above factual background, that the rival contentions are to be considered. Before proceeding ahead, it is necessary to note, that the applicability of the EPF Act, 1952 to the employees of the original petitioner Murli Industries/Corporate Debtor is not disputed. The dispute is limited to the issue, that since the respondent though lodged a claim before the IRP, did not get it verified, on account of which, it was not included in the Resolution Plan and thus the entitlement of the respondent to recover the same, stands extinguished. A plea raised, that the PF dues cannot form part of the resolution plan also needs to be considered. 7. At the outset, the contention of Mr. Bhangde, learned Senior Counsel for the petitioners, that Section 36 (4) (a) (iii) of the IB Code, does not apply to insolvency resolution proceedings, needs to be considered. In this context, what is necessary to no....
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....tion estate assets, cannot be deemed to be a provision, available under Chapter II of the IB Code. This would indicate to us, that in such a case, the plea of exclusion, of the provident fund, from the scope and ambit, of Chapter II of the IB Code will have to be considered, independently of the provisions of section 36 (4) (iii) of the IB Code. 8. Before we proceed ahead, it is also necessary to consider, whether the resolution plan, was in respect of Murli Industries and not in respect of its Paper and Solvent Extraction Units, as contended by Mr. Sundaram, learned counsel for the respondent, or was in respect of the entire Murli Industries, including the Paper and Solvent Extraction Units too. In this context, what is necessary to note, is that the resolution plan prepared by the resolution professional, which is on record (Pgs.48 to 168) is not disputed, para-3.3 (Pg.51) of which, indicates, that the corporate debtor operated three business segment- (1) Cement Undertaking, (2) Paper Unit and (3) Solvent Extraction Unit. This resolution plan was approved by the COC and submitted to the NCLT for approval, and was approved by the order dated 03/07/2019, and also indicates, t....
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....ilable for paying debts or for distribution." 10.3 While considering the meaning of the word "asset" this is what has been held in Maharashtra State Coop. Bank Ltd. v. Provident Fund Commr., (2009) 10 SCC 123 : "60. As per Black's Law Dictionary (8th Edn.), the word "asset" means, an item that is owned and has value; the entries on a balance sheet showing the items of property owned, including cash, inventory, equipment, real estate, accounts receivable and goodwill; all the property of a person available for paying debts or for distribution. In Law Lexicon by P. Ramanatha Aiyar (2nd Edn.), the word "assets" has been described as the property in the hands of an heir, an executor, administrator or trustee which is legally or equitably chargeable with the obligations which such heir, executor, administrator or trustee is, as such, required to discharge. Everything which can be made available for the payment of debts, whether belonging to the estate of a deceased person or not; property in general all that one owns, considered as applicable to the payment of his debts; as, his assets are much greater than his liabilities. In Velchand Chhaganlal v. Mussan [14 Bom LR 633....
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....ecurities in accordance with the regulations made under the Securities and Exchange Board of India Act, 1992 (15 of 1992); (c) any unit linked insurance policy to which exemption under clause (10D) of section 10 does not apply on account of the applicability of the fourth and fifth provisos thereof, but does not include- (i)------; (ii)------, but excludes- (a) jewellery; (b) archaeological collections; (c) drawings; (d) paintings; (e) sculptures; or (f) any work of art. We are not here concerned with the Explanation. (iii) ------, (iv) ------, (v) ------, (vi) ------" 10.6. The Wealth Tax Act, defines as 'assets', in sec.2(e) as includes property of every description, movable or immovable, subject to the exceptions as indicated therein. 10.7. The basic concept of an 'asset' would therefore be something, which is owned or controlled by a person, over which he/it has a right of dominion and disposition, be it movable or immovable, tangible or intangible. The concept of the power of disposition on account of its control or possession, is thus in....
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....e EPF Act. This has been considered and spelt out in Maharashtra State Coop. Bank Ltd. v. Provident Fund Commr., (2009) 10 SCC 123 in the following words : "30. Since the Act is a social welfare legislation intended to protect the interest of a weaker section of the society i.e. the workers employed in factories and other establishments, it is imperative for the courts to give a purposive interpretation to the provisions contained therein keeping in view the Directive Principles of State Policy embodied in Articles 38 and 43 of the Constitution. In this context, we may usefully notice the following observations made by Krishna Iyer, J. in Organo Chemical Industries v. Union of India [(1979) 4 SCC 573 : 1980 SCC (L&S) 92] : (SCC pp. 587 & 591-92, paras 28 & 40-41)" "28. The pragmatics of the situation is that if the stream of contributions were frozen by employers' defaults after due deduction from the wages and diversion for their own purposes, the scheme would be damnified by traumatic starvation of the Fund, public frustration from the failure of the project and psychic demoralisation of the miserable beneficiaries when they find their wages deducted and the....
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....ployer, that however, cannot mean that the employers contribution to the provident fund, would become the property or asset of the employer, over which he would have control or dominion of disposition, for in such a case it would be held by the employer in trust for the employee as the employers contribution to the provident fund. 10.11. The protection against attachment to the provident fund as envisaged by section 10 of the EPF Act, as indicate, hereinafter, not only supports, but emphasizes the primacy of workers dues over everything else. 11. In the above background, it is necessary to determine the scope, ambit and jurisdiction of the Resolution Plan. The Corporate Insolvency Resolution Process, is contained in Chapter-II of the IB Code. Section 6 of the IB Code, provides for three categories of persons who can initiate corporate insolvency resolution process, namely: (a) Financial Creditor [as defined in section 5 (7) of the IB Code], (b) Operational Creditor [as defined in section 5 (20) of the IB Code] and (c) the Corporate Debtor itself [as defined in section 3 (8) r/w section 3 (7) of the IB Code as Chapter-II does not define what a 'Corpo....
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....tion 18 (1) of the IB Code, the dominion, being relatable to having a right of disposition. Thus, the use of the expression 'take control and custody of any asset over which the corporate debtor has ownership rights', as occurring in sec. 18 (1) (f) of the IB Code, would demonstrate that such 'assets', ought to be those over the corporate debtor has right of ownership and disposition [Sec. 18 (1) (f) (i)], though they may not be in its possession [Sec. 18 (1) (f) (ii)], and include tangible assets, whether movable or immovable [Sec. 18 (1) (f) (iii)], intangible assets including intellectual property [Sec. 18 (1) (f) (iv)], securities [Sec. 18 (1) (f) (v)] and assets subject to the determination of ownership by a Court or authority [Sec. 18 (1) (f) (vi)]. Thus as indicated above the concept of ownership or dominion of the 'assets', by a corporate debtor, is also incorporated in Sec. 18 (1) of the IB Code for the purpose of the Insolvency Resolution Process. 13. It is further necessary to note, that the Explanation to Sec. 18 (1) of the IB Code specifically excludes from the term 'assets', by virtue of clause (a) thereunder, 'assets', owned by a third party in possession of the c....
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.... of the IB Code also needs to be considered, in the above context and not otherwise, for not doing so, would render the explanation to Sec. 18 (1) of the IB Code, redundant and otiose. Thus when Sec.31 of the IB Code uses the expression in relation to approval of the RP, which is as under : "---- which shall be binding on the corporate debtor and its employees, members, creditors, including the Central Government, any State Government or any local authority to whom a debt in respect of payment of dues arising under any law for the time being in force, such as authorities to whom statutory dues are owed, guarantors and other stakeholders involved in the resolution plan:", the same will have to be held, not to include the PF contribution of the employer. This is also for the reason that the expression uses the word 'debt' and 'dues', which will have to be read ejusdem generis. 17. That the PF contribution of the employer, is not a 'debt', is apparent from its definition as defined in Sec. 3 (11) of the IB Code, which defines it to mean a liability or obligation in respect of a claim which is due from any person and includes a 'financial debt' and 'operational debt', th....
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.... (a) (i) & (ii) is similar to that used in Explanation (a) to Sec. 18 (1). Though it is correct as contended by Mr. Bhangde, learned Senior Counsel for the petitioners, that Sec. 36 (4) (a) falls in Chapter-III, which relates to the liquidation process, which can be undertaken only when the RP is contravened as indicated in sec. 33 (3) and therefore the provisions of Sec. 36 (4) would not apply to proceedings under Chapter-II, of the Insolvency Resolution Process, however, one cannot loose sight of the scope and ambit of the Resolution process in Chapter -II, which would then be governed by Explanation (a) to Sec. 18 (1), which states what is excluded from what is meant by 'assets', for the purpose of the IRP or the RP for that matter. 19. It is also trite that to note that the Resolution Plan to be submitted by the RP, under the provisions of Sec. 30 (1) of the IB Code, in terms of clause (e) of Sec. 30 (2) has to ensure that it does not contravene any of the provisions of the law for the time being in force. This to us would indicate that while preparing and submitting a Resolution Plan, the RP, has to ensure that it, is strictly within the four corners of all the laws, which ....
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....nd also in relation to any amount payable under the Insurance Scheme] as they apply in relation to any amount payable out of the Fund." A perusal of the language of Sec. 10 of the EPF Act would demonstrate that it protects from attachment, amounts standing to the credit of an employee, of the provident fund, from any decree or order of any Court, even in respect of any debt or liability incurred by the member/employee. Not only this, Sec. 10, even directs that neither the Official assignee appointed under the Presidency Towns Insolvency Act, nor any received appointed under the Provincial Insolvency Act, shall be entitled to or have any claim on such provident fund amount of an employee, thereby indicating that it is to be preserved sacrosanct, by granting it immunity even in respect of insolvency proceedings, which may be initiated, even against such employee. 19.2. Sec. 11 of the EPF Act is also of significance and is reproduced as under : "11. Priority of payment of contributions over other debts.- (1) Where any employer is adjudicated insolvent or, being a company, an order for winding up is made, the amount due- (a) from the employer in relatio....
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....her debts in distribution of the property of the insolvent or the assets of the company being wound up, as the case may be and also the employer's contribution towards the EPF is deemed to be first charge on the assets of the establishment and notwithstanding anything contained in any other law for the time being in force, is to be paid in priority to all other debts. This will have to be necessarily, read in conjunction with section 30 (ii) (e) of the IB Code, which mandates, that the resolution plan does not contravene any of the provisions of the law for the time being in force. 19.3. Thus, when even, while liquidating a company, or upon it being declared as insolvent, the provident fund of any employee is to be protected, there is no reason why the same ought not to be done, while ensuring revival of the company, under the provisions of Chapter-II of the IB Code, which is why the Explanation (a) to section 18 (1) of the IB Code appears to have been inserted by the legislature. 20. Another aspect to be considered, is that if the employers contribution to the Provident Fund of an employee, is considered to be an 'asset', of the corporate debtor, then even in a case where th....
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.... business of the company to be taken over by Dalmia Cement (Bharat) Limited (Petitioner No. 1); the paper business to be taken over by Ascension Mercantile (Petitioner No. 2) and the Solvent Extraction business being taken over by Ascension Multiventure (Petitioner No. 3). The scheme, which has been sanctioned in relation to the employees, has the following provisions, in relation to the employees of the de-merged undertakings (taken over by the petitioner No. 2) : "5. EMPLOYEES 5.1 Upon the coming into effect of this Scheme, all employees pertaining to Demerged Undertaking 1 and those employees as the Board of Demerged Company may determine, shall become employees of Resulting Company 1 ("Transferred Employees of Demerged Undertaking 1") with effect from the Effective Date, on same terms and conditions which, as a result, shall be no less favourable than those on which they are engaged as on the Effective Date, without any interruption of service as a result of Demerger 1 and without any further act, deed or instrument on the part of Demerged Company or the Resulting Company 1. With regard to provident fund, gratuity fund, superannuation fund, leave encashment an....
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....ment information of all such Transferred Employees of Demerged Undertaking 1 of Demerged Company, including but not limited to, personnel files (including hiring documents, existing employment contracts, and documents reflecting changes in any employee's position, compensation, or benefits), payroll records, medical documents (including documents relation to past or ongoing leaves of absence, on the job injuries or illness, or fitness for work examinations), disciplinary records, supervisory files relating to its Transferred Employees of Demerged Undertaking 1 and all forms, notifications, orders and contribution / identity cards issued by the concerned authorities relating to benefits transferred pursuant to this sub-clause. 5.5 The contributions made under Applicable Laws in connection with the Transferred Employees of Demerged Undertaking 1, to the gratuity fund / leave encashment and any other special scheme or benefits created, for the period after the Appointed Date shall be deemed to be contributions made by Resulting Company 1. 5.6 Resulting Company 1 shall continue to abide by any agreement(s)/ settlement (s) entered into in respect to the Transferred Emp....
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....y be, in respect of the period up to the date of such transfer: Provided that the liability of the transferee shall be limited to the value of the assets obtained by him by such transfer. Thus, where the transferee companies which are the petitioner Nos. 1 to 3 in the matter, have already taken up the responsibility and obligation, regarding the entitlements of the employees of the original corporate debtor, as indicated in para supra, then in terms of section 17B of the EPF Act, the liability to pay the EPF contribution, would get transferred to them, in terms of the Statute too, since the liability to do so, is jointly that of the original employer as well as that of the transferee jointly and severally, as is indicated by the language of section 17B of the EPF Act. 25. In Ghanshyam Mishra (supra) what was under consideration as is indicated by a perusal of paras-12 to 17 was a liability on account of bank guarantee against the corporate debtor, workman's wages, statutory dues and other benefits, and a claim for recovery by the President-Group Head HR, in the case of Ghanshyam Mishra and Sons Pvt.Ltd.; a claim for entry tax in the case of Binani Cement; and a claim....
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....ng under the EPF Act. It is however equally true that the same is not payable to the Central Government, any State Government or any Local Authority, but it is payable in the Fund established under sec.6 of the EPF Act, which is administered by the Board as constituted under the provisions of the EPF Act, which is an independent body. In that view of the matter, the payment of employers contribution of the EPF, cannot be construed to mean payment to the Central Government, any State Government or any Local Authority. If that be so, then such contribution, would not fall within the meaning of 'operational', debt', as defined in Sec. 5 (21) and for this reason also would not be something which could be a claim which has to be included in the Resolution Plan, non inclusion of which would result in the liability being wiped out in terms of what has been held in Ghanashyam Mishra (supra). It is also necessary to note, that the question whether the provident fund of an employee could be one which could be included in the definition of 'assets owned by the corporate debtor' in terms of the explanation to Section 18 of the IB Code was never under consideration in Ghanshyam Mishra (supra). ....
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....l Kumar Jain v. Sundaresh Bhatt, (supra), was a case where while considering a plea regarding entitlement of the dues of the workmen / employees towards PF, gratuity and pension, in the context of Section 36 (4) (iii) of the IB Code, as no resolution plan could be adopted and the corporate debtor, went into liquidation in terms of Chapter III of the IB Code, it has been held that these were excluded from the scope and ambit of liquidation proceedings and therefore is a case, which does not consider explanation to Section 18 (1) of the IB Code. 30. Fanendra Farakchand Munot (supra), in our considered opinion does not dilate upon the subject matter in consideration in the present petition and therefore, is of no assistance, for the purpose of deciding the matter in hand. 31. No doubt, a Company, which is failing, would have the right to be revived, however, can it be said that the attempt at revival, is to be at the cost of the employees security, who have rendered services to the company, which services form the very basis for the existence of the company, which security they have an account of their provident fund and an attempt to revive such company/industry, should wipe of....