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TMI Blog2022 (6) TMI 496X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 of NCLT Rules, 2016, seeking relief as follows; (a) That this Hon'ble Tribunal be pleased to set aside the order of communication of the first respondent dated 29.06.2020 rejecting the revised claim amount of the Applicant for Rs. 28,43,387/-; (b) This Honourable Tribunal may be pleased to direct the Respondents to pay off the revised claim amount of Rs. 28,43,387/- of the Applicant on first priority from and out of the liquidation assets/estate of the Respondents; (c) This Honourable Tribunal may be pleased to direct the Respondents for payment of costs thereof. 2. The Corporate Insolvency Resolution Process in respect of the Corporate Debtor viz. M/s. R.L. Logistics Private Limited was initiated by this Tribunal on 27.02.2019 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 14B & 7Q of the Employees Provident Fund & Miscellaneous Provision Act 1952 has been levied for the period 12/2014 to 10/2017 for Rs. 3,17,298/-. (v) Penal Damages and Interest under section 14B & 7Q of the Employees Provident Fund & Miscellaneous Provision Act 1952 has been levied for the period 08/2014 to 02/2017 for Rs. 4,02,488/-. 3. The Liquidator vide its email dated 29.06.2020 has rejected the above said claim filed by the Applicant on the following grounds; a) On verifying your revised claims, you have failed to explain the points as mentioned in my earlier mail and also the above mentioned points. b) The Order issued U/S. 7A for Rs. 14,55,873 Dated 7.1.2020 is in violation section 7A(3) & 11(2) of EPF Act and also U/S. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred the present Appeal under Section 42 of IBC, 2016 before this Tribunal on 09.09.2020. 5. Heard the submissions made by the Learned Counsel for the parties. It is seen that the Applicant has filed its revised supplementary claim before the Liquidator on 24.02.2020 for a sum of Rs. 28,43,387/- which came to be rejected by the Liquidator on the ground that the order passed by the EPF Authority under Section 7A of the EPF Act, 1952 was violative and beyond jurisdiction. In this context, it is reiterated that in so far as the dues of the Provident Funds are concerned, the same does not form part of the Liquidation Estate and that the Liquidator in these cases, are only put on notice, about the claim of the PF authorities. The liquidator c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6(4)(iii), the provident fund and gratuity funds are not the assets of the corporate debtor, there being specific provisions, the application of Section 238 of the Code will not arise. In the circumstances, the successful resolution applicant was directed to release full provident fund and interest thereof in terms of EPF & MP Act, 1952 and the appeal of PF authorities was thereby allowed. 7. Further, also the Supreme Court in the matter of Maharashtra State Cooperative Bank Limited Vs. Provident Fund Commissioner; (2009) 10 SCC 123 has held in para 66 to 69 as follows; "66. Section 11 gives statutory priority to the amount due from the employer vis-a-vis. all other debts. Clause (a) of sub-section (1) of Section 11 is applicable to case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be the first charge on the assets of the establishment, and shall be paid in priority to all other debts. 67. The expression "any amount due from an employer" appearing in sub-section (2) of Section 11 has to be interpreted keeping in view the object of the Act and other provisions contained therein including sub-section (1) of Section 11 and Sections 7A, 7Q, 14B and 15(2) which provide for determination of the dues payable by the employer, liability of the employer to pay interest in case the payment of the amount due is delayed and also pay damages, if there is default in making contribution to the Fund. If any amount payable by the employer becomes due and the same is not paid within the stipulated time, then the employer is requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to recover the dues as arrears of land revenue by contending that the movable or immovable property of the establishment is subject to other debts. Any such interpretation would frustrate the object of introducing the deeming provision and non obstante clause in Section 11(2). Therefore, it is not possible to agree with the learned senior counsel for the appellant-bank that the amount of interest payable under Section 70 and damages leviable under Section 14B do not form part of the amount due from an employer for the purpose of Section 11(2) of the Act." (emphasis supplied) 8. Thus, from the reading of the above judgment, it is made amply clear that any penal damages and interest levied by the PF Authorities under Section 14B & 7Q of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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