9911796707
TMI Blog2019 (5) TMI 1516X X X X Extracts X X X X X X X X Extracts X X X X ..... d, pension fund and gratuity fund are not constitute a part of the liquidation estate, we fail to understand as to how Section 53 could be invoked along with its explanation. According to Section 53, the proceeds from the sale of the liquidation assets are to be distributed in the manner specified therein. Therefore, the aforesaid amount of the workmen dues cannot be a part of liquidation estate assets. The provident fund dues, pension funds dues and gratuity fund dues are not treated as a part of the liquidation estate and would not, therefore, be recovered by Section 53 of the Code which provides for waterfall mechanism - The liquidator has taken a perverse view by unnecessarily referring to explanation Il of Section 53 and Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Reply to the application has been filed and the stand taken by the liquidator is that as per the provisions of Section 326 of the Companies Act, 2013 which have been referred to in Section 53 explanation 11 of the Code wherein the terms workmen's dues shall have the same meaning as assigned to it under Section 326 of the Companies Act, 2013. Therefore, the gratuity is included as per Section 326 and could be covered by Section 53 to the extent of the balance amount. 3. We have heard learned counsels for the parties. There is a basic flaw in the reasoning adopted by the liquidator Under Section 36(4) (a) (111), the expression 'liquidation estate' has been defined and it is clarified that all sums due to any workm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und dues are considered, the Code has treated it as an asset of the workmen lying with the Corporate Debtor. 34. In view thereof, the overriding effect of section 238 of this Code will not have any bearing over the asset of the workmen lying in the possession of the Corporate Debtor because the asset is not considered as the part of the liquidation estate, moreover, to apply Section 238 over any other law for the time being in force, the other law must be inconsistent with the provisions of the Code, since section 36(4)(iii) has excluded the PF dues of the workmen from the liquidation estate assets treating it as an asset of the workmen lying with the corporate debtor, section 53 is not applicable to say that these dues fall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmitted to be withdrawn in view of the order passed in CA No. as the liquidator has to revisit the whole distribution list. CA-496(PB)/2019:- The application stands disposed of. Notice of the application be issued to the non-applicant f 09.04.2019 and the details are as under:- 1. Hindustan EPC Company Ltd. (formerly known as Mos Baer Engineering Construction Ltd.) 2. Babulnath Alloys Pvt. Ltd. 3. Maharashtra State Power Generation Co. Ltd. 4. Vestige Marketing Pvt. Ltd. 5. N N Moulding Pvt. Ltd. 6. Power Cube Infotech Private Ltd. Process dasti. List on 09.04.2019. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
