Per: R. VARADHARAJAN, MEMBER (JUDICIAL) FACTS IN BRIEF: The facts in brief, which are required to be considered with a view to enable to dispose of this Application by this Tribunal are as follows:-
1. As against the Corporate Debtor, namely, M/s. SAS Autocom Engineers India Pvt. Ltd., the Corporate insolvency Resolution Process (CIRP) was initiated by this Tribunal vide Order dated 05.10.2018, based on an Application filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 (I&B Code 2016) by an Operational Creditor, namely, M/s. APL Apollo Tubes Limited.
2. At the time of initiation of the CIRP, this Tribunal had appointed the Applicant herein as the Interim Resolution Professional (IRP). After the constitution of the Committee of Creditors (CoC), it is seen that the IRP continued as IA/31/2021 and IA/370/2020 and MA/868/2019 in CP/567(IB)/CB/2018 In the matter of M/s. SAS Autocom Engineers India Pvt Ltd.
3 of 37 Resolution Professional (RP) of the Corporate Debtor, in view of the decision of CoC of the Corporate Debtor choosing him to act as such. Based on the recommendation of the CoC for the liquidation of the Corporate Debtor, the RP filed an Application in MA/696/2019 seeking for the liquidation of the Corporate Debtor, which was ordered by this Tribunal on 08.07.2019.
3. While so, it is seen that the Respondent, namely, Employees Provident Fund Organisation (EPFO) through the Office of the Recovery Officer had issued a sale notice dated 23.07.2019 for the sale of movable properties of the Corporate Debtor claiming that an outstanding amount in a sum of Rs.38,89,229/- is due and the date of sale was also fixed as 22.08.2019 pursuant to the sale notice. The said notice provoked the Applicant herein, in the capacity as a Liquidator, to move the Application in MA/868/2019 before this Tribunal, wherein, it was stated that the Respondent without filing a claim during the process of CIRP or thereafter when this Tribunal ordered for the Liquidation of the Corporate Debtor, however, had issued the sale notice dated 23.07.2019 IA/31/2021 and IA/370/2020 and MA/868/2019 in CP/567(IB)/CB/2018 In the matter of M/s. SAS Autocom Engineers India Pvt Ltd.
4 of 37 proclaiming the sale of the movable assets of the Corporate Debtor.
4. This Tribunal after initially staying the sale mooted by the Respondent vide its Order dated 20.08.2019 had subsequently passed the following Orders dated 19.02.2020 in the said MA/868/2019 as follows: This is an application moved by the Liquidator seeking for the following reliefs:-
a) To pass an order for Stay of Operations of the Respondent herein against the Corporate Debtor (M/s. SAS Autocom Engineers India Private Limited);
b) To restrain the respondent herein for Sale of the Movable properties dt. 22.08.2019 of the Corporate Debtor which is undergoing Liquidation Process;
c) And pass such other orders which may be deem fit and proper. During the course of submissions made by the Liquidator, it is pointed out that an attachment notice has been issued by the Respondent (EPFO) and subsequently that was followed with the proclamation of sale notice dated 23.07.2019 seeking for the recovery of Rs. 38,89,229/-. Ld. Counsel for the Applicant represents that the sale notice as pointed out has been issued by the EPFO Authorities. Pursuant to the attachment notice as already issued, in response to the application, a reply has been filed by the Respondent (EPFO) and it is pointed out by the Counsel for the Respondent that attachment of movable property was effected by the Respondent on 25.04.2018 whereas the CIRP was initiated by this Tribunal only on 05.10.2018 and in the circumstances, Section 14 of the Insolvency & Bankruptcy Code, 2016 (IBC, 2016) in relation to moratorium as per the provisions of EPF Act overrides the provisions of IBC, 2016 and in the circumstances, an attachment order which has been issued by the Respondent (EPFO) can be sustained. By virtue of the said submission, it is contended that the Respondent is at liberty to bring the property for sale as sought in the application by the Liquidator. The detail of the attachment order issued is also pointed out by the Counsel for the Respondent which is annexed as 4 page to the typed set filed on 19.02.2020. IA/31/2021 and IA/370/2020 and MA/868/2019 in CP/567(IB)/CB/2018 In the matter of M/s. SAS Autocom Engineers India Pvt Ltd.
5 of 37 Pursuant to the said warrant of attachment of movable property dated 23.10.2018, the notice shows the following amounts have been claimed as due from the Corporate Debtor: RRC No. Nature of Period Amount
1 CBSLM2574 dt. 06/04/2017 7A 06/2004 to 10/2012 2905380
2 CBSLM5814 dt. 09/05/2017 PD 04/2013 to 01/2014 477380
3 CBSLM5814 dt. 09/05/2017 INTEREST 04/2013 to 01/2014 229142 Grand Total 36,11,902 As a consequence of non-payment of the money admitted as demanded in the attachment notice, proclamation of sale has been made and in the circumstances, the interference of this Tribunal is not called for. Counsel for the Liquidator brings to the notice of this Tribunal that during the CIRP period as well as subsequent to the liquidation passed by this Tribunal on 04.07.2019, the Respondent has not lodged its claim as required under the provisions of IBC, 2016. It is also brought to the notice of this Tribunal that in the absence of any claim being lodged and an option being exercised with liquidation in relation to the property, the Respondent wants to invoke pursuant to the attachment notice and sell the property belonging to the Corporate Debtor which we find will not be in consonance with the provisions of IBC, 2016 and more particularly Section 32 to Section 42 of IBC, 2016 read with IBBI (Liquidation Process) Regulations, namely Regulation 21 and Regulation 37. Hence we direct the Respondent to file necessary forms before the Liquidator in relation to the claim and security interest, if any for proper consideration and the option being exercised by the Respondent to stand outside the liquidation processes, the Respondent cannot suo motto try to sell the property belonging to the Corporate Debtor unless such a sale is in consonance with the provisions of IBC, 2016. We find credence in the submissions made by the Counsel for the Liquidator that as per the IBC, 2016 read with IBBI (Liquidation Process) Regulations, 2016 which details as to how the claims have to be lodged and a person can exercise an option to stand outside the liquidation in case he wants to invoke any security interest realize the asset belonging to the Corporate Debtor. Under the circumstances, the Respondent is directed to follow the procedure contemplated scrupulously as provided under the provisions of IBC, 2016 and attendant regulations thereof and let the claim be lodged and option be exercised by the Respondent and upon the same being done, the Liquidator will decide in accordance with the provisions of IBC, 2016 in relation to the claim and the option as may be exercised by the Respondent in this IA/31/2021 and IA/370/2020 and MA/868/2019 in CP/567(IB)/CB/2018 In the matter of M/s. SAS Autocom Engineers India Pvt Ltd.
6 of 37 regard. Till such time, let the parties maintain a status quo in relation to the property.
5. While so, the Applicant herein, had sought to auction of both the land and building, plant and machinery by way of e- auction sale notice dated 05.02.2020 in relation to which the liquidation value had been arrived at Rs.2,06,41,500/- against which value a sum which was fetched in the e- auction, is stated to be Rs.2,16,00,000/-. In view of the status quo Order passed in MA/868/2019 as above by this Tribunal on 19.02.2020, even though a sum of Rs.22,50,000/- had been lodged by the successful bidder in the e-auction, the sale by auction of plant and machinery could not be finalized as the successful bidder did not make further payment.
6. In the circumstances, IA /370/2020 has been filed by the Applicant seeking for the following reliefs: (a) To pass an order for re-locating the machinery of the Corporate Debtor, namely, M/s. SAS Autocom Engineers India Private Limited, which is undergoing Liquidation Process; (b) To pass an order for co-operation of the Respondent for relocating the machinery of the Corporate Debtor, namely, M/s. SAS Autocom Engineers India Private Limited while it is undergoing Liquidation Process; and (c) To pass such other orders or further orders which may deem to be fit and proper in the interest of justice. IA/31/2021 and IA/370/2020 and MA/868/2019 in CP/567(IB)/CB/2018 In the matter of M/s. SAS Autocom Engineers India Pvt Ltd.
7 of 37 On its part, the Respondent herein, in relation to the Order dated 19.02.2020 passed by this Tribunal in MA/868/2019, had chosen to file a Writ Petition in WP/9036/2020 before the Honble High Court of Madras seeking for the issue of Writ of Certiorari to call for the records of this Tribunal in MA/868/2019 and quash the same.
7. From the records available before this Tribunal, it is seen that initially the Honble High Court of Madras vide its Order dated 09.07.2020 had granted an Interim Stay of four weeks and also with the further directions that the properties which are the subject matter of the Order dated 19.02.2020 not to be brought up for auction and no third party interest to be created in relation to the property.
8. It is further seen that, on 31.08.2020, the Honble High Court of Madras (DB) had chosen to dispose of the said Writ Petition No.9036 of 2020 filed by the Respondent herein, and as the Petitioner before the Honble High Court of Madras, the operative portion of which reads as follows:
7. In such view of the matter, the order under challenge stands set aside with the direction to the Tribunal to consider the issue of jurisdiction as raised by the Petitioner with specific IA/31/2021 and IA/370/2020 and MA/868/2019 in CP/567(IB)/CB/2018 In the matter of M/s. SAS Autocom Engineers India Pvt Ltd.
8 of 37 reference to the provisions contained under the Employees Provident Funds and Miscellaneous Provisions Act, 1952 vis-a- vis the Insolvency and Bankruptcy Code, 2016. Accordingly, the Tribunal is directed to consider the Original Application No.MA/868/2019 in No.CP/567/1B in the light of the discussion made above, by way of speaking order and by giving a finding on its jurisdiction, within a period of eight weeks from the date of receipt of a copy of this order. We make it clear that all the issues both on fact and law are left open.
8. In view of the above, the writ petition stands allowed. No costs. Consequently, the connected miscellaneous petitions are closed.
9. In view of the above directions given in WP /9036/2020, the matter was heard in detail and both the parties were also allowed to file their Written Submissions before this Tribunal, of which it is seen from the records of this Tribunal that the parties also seem to have availed.
10. It is also seen that in the meanwhile IA/31/2021 has been filed by the Applicant based on the averments contained in the said Application for the reliefs as sought as follows: (a) That this Honble Adjudicating Authority pass an order allowing the Applicant to register the property in favour of the successful bidder to complete the liquidation process within the mandated timeline; and (b) To pass such other orders or further orders, which may deem to be fit and proper in the interest of justice. IA/31/2021 and IA/370/2020 and MA/868/2019 in CP/567(IB)/CB/2018 In the matter of M/s. SAS Autocom Engineers India Pvt Ltd.
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11. Perusal of the Counter statement of the Respondent discloses the following, namely:
i. The Corporate Debtor had defaulted in the remittance of PF dues from April 2013, consequent to which, the Respondent had initiated an enquiry under Section 7A of the Employees Provident Fund (EPF) and Miscellaneous Provisions (MP) Act, 1952.
ii. In 2017, upon an enquiry conducted for the determination of dues and as a consequence of which it has been arrived at that the PF dues aggregates to a sum of Rs.38,83,229/-. Pursuant to the determination of the PF dues payable under the EPF Act, recovery procedures were initiated as contemplated under the said Act under Sections 8B to 8G of the said Act read with Second Schedule of the Income Tax Act, 1961. Due notices and communication were also issued, as per the averments made by the Respondent in the Counter and in relation to the same, it is averred that the Order(s) of attachment of property was issued, dated 25.04.2018 and 23.10.2018 and the physical possession of the same was taken on 26.04.2018 pursuant to the Order of Attachment.
iii. Subsequently, the property was valued on 11.04.2019 and the issue of RRC/CP-I was communicated to the IA/31/2021 and IA/370/2020 and MA/868/2019 in CP/567(IB)/CB/2018 In the matter of M/s. SAS Autocom Engineers India Pvt Ltd.
10 of 37 Establishment on 11.04.2019 as well as 19.06.2019 and thereafter warrant of sale was issued on 23.07.2019. Proclamation of sale and publication was effected on 23.07.2019 and 24.07.2019 respectively for the auction, which was fixed on 22.08.2019 in relation to the dues payable by the Corporate Debtor under the EPF and MP Act, 1952.
iv. It is also averred in the Counter that based on the representations of the employees of the Corporate Debtor that there has been default in payment of workmen dues and that the Corporate Debtor is planning to sell off the machinery, and based on the said information received, the Respondent had attached the property, namely, the movable property in Plant and Machinery under the relevant provisions of EPF and MP Act, 1952. While the mode of recovery as contemplated under the EPF and MP Act, 1952 was being given effect for the recovery of PF dues in a sum of Rs.38,83,229/-, however, this Tribunal had passed on Order dated 20.08.2019 in the above MA/868/2019 staying the sale of machinery. In this connection, it is specifically averred that taking into consideration Section 11 of EPF and MP Act, 1952, this Application as filed by the Applicant/ Liquidator lacks jurisdiction and it is not required to be entertained by this Tribunal. For this purpose, reliance is also placed on the decision of NCLT, Mumbai rendered in the matter IA/31/2021 and IA/370/2020 and MA/868/2019 in CP/567(IB)/CB/2018 In the matter of M/s. SAS Autocom Engineers India Pvt Ltd.
11 of 37 of M/s. Precision Fasteners Ltd. vs. Employees Provident Fund Organisation in MA/576 & 752/2018 in CP(IB) 1339 (MB) 2017 vide its Order dated 07.09.2018 that the entire arrears towards the EPF should be liquidated before paying of other creditors.
v. Further, the amount due to the workmen in relation to Provident Fund, Pension Fund and Gratuity cannot form part of the liquidation estate. As such payment of dues should be construed as the asset of the workmen or the employees concerned and that in relation to the same far over reaching interest and title has been created in favour of the workmen to whom amounts are due.
vi. The Respondent also brings to the notice of this Tribunal that the Applicant had been given prior/advance intimation that the Respondent proposes to proceed with the recovery of dues as per the mechanism given under EPF and MP Act, 1952 read with Second Schedule of IT Act, 1961 and that the notice of sale of proclamation was also served upon the Resolution Professional as well as Corporate Debtor for information. Instead of replying to the said notice or communication, the Applicant seems to have preferred this Application before this Tribunal that too at the eleventh hour without giving due opportunity to IA/31/2021 and IA/370/2020 and MA/868/2019 in CP/567(IB)/CB/2018 In the matter of M/s. SAS Autocom Engineers India Pvt Ltd.
12 of 37 the Respondent to file a suitable reply in this connection.
vii. The rationale for staying/restraining the Respondent from selling the property vide the proclamation of sale notice by this Tribunal vide Order dated 20.08.2019 is that it will amount to violation of the moratorium under Section 14 of IBC, 2016 and cannot be countenanced in view of the plain reading of Section 36(4) of IBC, 2016, as all sums due to the workmen under Provident Fund, Pension Fund and Gratuity cannot be included in the liquidation estate of the Corporate Debtor. In view of the attachment already being effected even prior to the initiation of the CIRP of the Corporate Debtor and as PF dues are not part of the liquidation estate, it will not fall under the water fall mechanism under IBC, 2016. Further, the attachment and possession of the property attached had happened, much prior to the initiation of the CIRP. The RP has to exclude the assets under Section 36 of the Code as not forming part of the liquidation estate.
viii. In any case, it is submitted that proceedings under the EPF and MP Act, 1952 cannot be considered as a proceeding falling under Section 14 of IBC, 2016 and the moratorium cannot be applied to all proceedings. In this connection, the decision of the Honble Delhi IA/31/2021 and IA/370/2020 and MA/868/2019 in CP/567(IB)/CB/2018 In the matter of M/s. SAS Autocom Engineers India Pvt Ltd.
13 of 37 High Court rendered in Power Grid Corporation vs. Jyoti Structures Ltd., is sought to be relied on.
ix. In the circumstances, it is stated by the Respondent that the whole machinery under the EPF and MP Act, 1952 cannot be made a prisoner of IBC 2016, which is not the intent of the legislature. Upon combined reading of Section 14(b) and Section 36(4) of the Code under the circumstances, the attachment and sale of property for PF dues it is contended will not come under the provisions of moratorium as envisaged in Section 14 of the IBC, 2016. In a similar vein, it is contended that the Social Welfare Legislation like EPF and MP Act, 1952 will get precedence over IBC, 2016 which is an economic legislation and if the converse is applicable, then the interest of the workmen will be seriously prejudiced and in this connection, the deliberations of the Joint Preliminary Committee (JPC) in respect of priority of payments of debts under the Code and that in relation to the same, EPF dues shall get priority over all of the debts, including the secured creditors of the Corporate Debtor, is also mentioned pursuant to which Section 36 (4)(a)(iii) in the Code was substituted as follows: all sums due to any workmen or employee from the Provident Fund, Pension Fund and Gratuity Fund and that similar inclusion was also recommended by JPC to Clause 155(2)(c). IA/31/2021 and IA/370/2020 and MA/868/2019 in CP/567(IB)/CB/2018 In the matter of M/s. SAS Autocom Engineers India Pvt Ltd.
14 of 37 The decision rendered by the NCLT, New Delhi in Alchemist Asset Reconstruction Co. Ltd., vs. Moser Baer (India) Ltd., concurring with the Order of the Mumbai Bench rendered in the decision of M/s. Precision Fasteners Ltd. vs. Employees Provident Fund Organisation case and the said decision being upheld by the Honble NCLAT in appeal, are relied on, to canvass for the proposition that dues arising out of the EPF and MP Act, 1952 are not amenable to the provisions of IBC 2016, and taking into consideration the factual and legal position, to vacate the Stay Order as passed by this Tribunal on 20.08.2019.
12. Before venturing into the exercise as to whether this Tribunal is at all competent to dwell on the aspect when a situation comes up in the process of CIRP of a Corporate Debtor or during the Liquidation process of such a Corporate Debtor vis--vis the claims made by the EPFO Authorities, it is required to be noted that in relation to insolvency of a Corporate Debtor, this Tribunal is vested with exclusive jurisdiction under Section 238 of IBC, 2016 whereby the provisions of the Code are to override other laws. Further, under Section 60 of IBC, 2016 and more particularly under sub Section (5) of Section 60 of the Code, incidentally under which the main Application has been moved reads as follows: Section 60 Adjudicating Authority for Corporate Persons:- IA/31/2021 and IA/370/2020 and MA/868/2019 in CP/567(IB)/CB/2018 In the matter of M/s. SAS Autocom Engineers India Pvt Ltd.
15 of 37 (1) xxxxxx (2) xxxxxx (3) xxxxxx (4) xxxxxx (5) Notwithstanding anything to the contrary contained in any other law for the time being in force, the National Company Law Tribunal shall have jurisdiction to entertain or dispose of :
a) any application or proceeding by or against the corporate debtor or corporate person;
b) any claim made by or against the corporate debtor or corporate person, including claims by or against any of its subsidiaries situated in India; and
c) any question of priorities or any question of law or facts, arising out of or in relation to the insolvency resolution or liquidation proceedings of the corporate debtor or corporate person under this Code. (underline supplied)
13. In a recent judgement rendered by the Honble Supreme Court in the matter of Gujarat Urja Vikas Nigam Limited Vs. Mr. Amit Gupta & Ors in Civil Appeal No.924 of 2019, the Apex Court had an occasion to deal with in detail, the jurisdictional ambit of NCLT and NCLAT and more particularly, with reference to sub Section (5) of Section 60 of IBC, 2016. Paragraphs 67 and 68 of the said judgment, which reads as follows, has been extracted:-
67 The institutional framework under the IBC contemplated the establishment of a single forum to deal with matters of insolvency, which were distributed earlier across multiple fora. In the absence of a court exercising exclusive jurisdiction over matters relating to insolvency, the corporate debtor would have to file and/or defend multiple proceedings in different fora. These proceedings may cause undue delay in the insolvency resolution process due to multiple proceedings in trial courts and courts of appeal. A delay in completion of the insolvency proceedings would diminish the value of the debtors assets and hamper IA/31/2021 and IA/370/2020 and MA/868/2019 in CP/567(IB)/CB/2018 In the matter of M/s. SAS Autocom Engineers India Pvt Ltd.
16 of 37 the prospects of a successful reorganization or liquidation. For the success of an insolvency regime, it is necessary that insolvency proceedings are dealt with in a timely, effective and efficient manner. Pursuing this theme in Innoventive (supra) this court observed that one of the important objectives of the Code is to bring the insolvency law in India under a single unified umbrella with the object of speeding up of the insolvency process. The principle was reiterated in Arcelor Mittal (supra) where this court held that the non-obstante Clause in Section 60(5) is designed for a different purpose to ensure that the NCLT alone has jurisdiction when it comes to applications and proceedings by or against a corporate debtor covered by the Code, making it clear that no other forum has jurisdiction to entertain or dispose of such applications or proceedings. Therefore, considering the text of Section 60(5)(c) and the interpretation of similar provisions in other insolvency related statutes, NCLT has jurisdiction to adjudicate disputes, which arise solely from or which relate to the insolvency of the Corporate Debtor. However, in doing so, we issue a notice of caution to the NCLT and NCLAT to ensure that they do not usurp the legitimate jurisdiction of other courts, tribunals and fora when the dispute is one which does not arise solely from or relate to the insolvency of the Corporate Debtor. The nexus with the insolvency of the Corporate Debtor must exist.
68. It is appropriate to refer to the observations in the Report of the BLRC, wherein it noted the role of the NCLT, as the Adjudicating Authority for the CIRP, in the following terms:- An adjudicating authority ensures adherence to the process. At all points, the adherence to the process and compliance with all applicable laws is controlled by the adjudicating authority. The adjudicating authority gives powers to the insolvency professional to take appropriate action against the directors and management of the entity, with recommendations from the creditors committee. All material actions and events during the process are recorded at the adjudicating authority. The adjudicating authority can assess and penalise frivolous applications. The adjudicator hears allegations of violations and fraud while the process is on. The adjudicating authority will adjudicate on fraud, particularly during the process resolving bankruptcy. Appeals/actions against the behaviour of the insolvency professional are directed to the Regulator/ Adjudicator. (underline supplied) IA/31/2021 and IA/370/2020 and MA/868/2019 in CP/567(IB)/CB/2018 In the matter of M/s. SAS Autocom Engineers India Pvt Ltd.
17 of 37 As such, it is important to remember that the NCLTs jurisdiction shall always be circumscribed by the supervisory role envisaged for it under the IBC which sought to make the process driven by trained resolution professionals.
14. Again at Paragraph No.72 of the judgment, the Honble Apex Court taking into consideration the provisions of IBC, 2016 as well as the law laid down in Embassy Property Developments Pvt Ltd., vs. State of Karnataka & Ors in Civil Appeal No.9170 of 2019 has endeavoured to delineate as to when the IRP/RP can approach this Tribunal seeking to invoke its jurisdiction and when not being apposite to the instant case on hand, the said paragraph is reproduced as follows:-
72. Therefore, we hold that the RP can approach the NCLT for adjudication of disputes that are related to the insolvency resolution process. However, for adjudication of disputes that arise dehors the insolvency of the Corporate Debtor, the RP must approach the relevant competent authority. For instance, if the dispute in the present matter related to the non-supply of electricity, the RP would not have been entitled to invoke the jurisdiction of the NCLT under the IBC. However, since the dispute in the present case has arisen solely on the ground of the insolvency of the Corporate Debtor, NCLT is empowered to adjudicate this dispute under Section 60(5) of the IBC.
15. While construing the provisions of Section 60(5)(c) at paragraph 87 and also at paragraph 163 of the judgment rendered by it in Gujarat Urja Vikas (supra), the Honble Apex Court has held as follows: IA/31/2021 and IA/370/2020 and MA/868/2019 in CP/567(IB)/CB/2018 In the matter of M/s. SAS Autocom Engineers India Pvt Ltd.
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87. The residuary jurisdiction of the NCLT under Section 60(5)(c) of the IBC provides it a wide discretion to adjudicate questions of law or fact arising from or in relation to the insolvency resolution proceedings. If the jurisdiction of the NCLT were to be confined to actions prohibited by Section 14 of the IBC, there would have been no requirement for the legislature to enact Section 60(5)(c) of the IBC Section 60(5)(c) would be rendered otiose if Section 14 is held to be exhaustive of the grounds of judicial intervention contemplated under the IBC in matters of preserving the value of the corporate debtor and its status as a going concern. We hasten to add that our finding of the validity of the exercise of residuary power by the NCLT is premised on the facts of this case. We are not laying down a general principle on the contours of the exercise of residuary power by the NCLT. However, it is pertinent to mention that the NCLT cannot exercise its jurisdiction over matters dehors the insolvency proceedings since such matters would fall outside the realm of IBC. Any other interpretation of Section 60(5)(c) would be in contradiction of the holding of this Court in Satish Kumar Gupta (supra). (underline supplied)
163. Although various provisions of the IBC indicate that the objective of the statute is to ensure that the corporate debtor remains a going concern, there must be a specific textual hook for the NCLT to exercise its jurisdiction. The NCLT cannot derive its power from the spirit or object of the IBC Section 60(5)(c) of the IBC vests the NCLT with wide powers since it can entertain and dispose of any question of fact or law arising out or in relation to the insolvency resolution process. We hasten to add, however, that the NCLTs residuary jurisdiction, though wide, is nonetheless defined by the text of the IBC. Specifically, the NCLT cannot do what the IBC consciously did not provide it the power to do.
16. Keeping in consideration the decision of the Honble Supreme Court in relation to the jurisdictional aspect of this Tribunal under IBC, 2016 we now venture into the pleadings of the parties. From the rival pleadings, it is evident that since the admission of the Petition on 05.10.18 and initiation of CIRP of the Corporate Debtor, the concerned Corporate Debtor has become, due to its insolvency, amenable to the jurisdiction of this Tribunal. Upon initiation of the IA/31/2021 and IA/370/2020 and MA/868/2019 in CP/567(IB)/CB/2018 In the matter of M/s. SAS Autocom Engineers India Pvt Ltd.
19 of 37 CIRP of the Corporate Debtor it is to be noted that a sequence of steps is required to be initiated by this Tribunal and the IRP appointed by this Tribunal, including action under Section 13 of IBC, 2016, the declaration of moratorium for the purposes of Section 14 of IBC, 2016 and causing a public announcement calling for the submission of claims under Section 15 of IBC, 2016. In this regard, definition of a claim has been given, it is pertinent note, under sub Section (6) of Section 3 of IBC, 2016 as follows:- (6) Claim means (a) a right to payment, whether or not such right is reduced to judgment, fixed, disputed, undisputed, legal, equitable, secured or unsecured; (b) right to remedy for breach of contract under any law for the time being in force, if such breach gives rise to a right to payment, whether or not such right is reduced to judgment, fixed, matured, un-matured, disputed, undisputed, secured, secured or unsecured;
17. Perusing the definition of claim as given above and upon a combined reading of sub sections (a) & (b) of Section 6 of IBC, 2016, it is seen that the definition covers a diverse spectrum with the only pre-condition being that there must exist a right to payment on the part of claimant and a duty on the part of the Corporate Debtor to make a payment. At this stage, there is no categorisation of the claimants, it must be noted, and the call made by the IRP is in relation to all the claimants having a claim over the IA/31/2021 and IA/370/2020 and MA/868/2019 in CP/567(IB)/CB/2018 In the matter of M/s. SAS Autocom Engineers India Pvt Ltd.
20 of 37 Corporate Debtor undergoing the CIRP, so that the IRP is in a position to collate the claims received. Thus, filing of claim pursuant to the notice published by the IRP on the part of a Claimant puts the IRP on notice about the claim. This act of the claimant in filing the claim enables the IRP to factor the same during collation of the claims which is made available to the COC as well as during the resolution process to the Resolution Applicant who may intend to resolve the insolvency of the corporate debtor to factor it in the Resolution Plan outlay as subsequent to the receipt of the claims, the Code envisages the constitution of the CoC and thereafter the CoC to pilot the implementation of CIRP and taking it to its conclusion either by resolving the insolvency of the Corporate Debtor under CIRP by way of approval of a resolution plan or for the liquidation of the Corporate Debtor.
18. While so, during the course of submissions made by the Respondent, a vehement contention was taken by the Ld. Counsel for the Respondent that it is not necessary for the Respondent even to lodge a claim with IRP/RP as the case may be during the CIRP or with the Liquidator during the liquidation process in view of Section IA/31/2021 and IA/370/2020 and MA/868/2019 in CP/567(IB)/CB/2018 In the matter of M/s. SAS Autocom Engineers India Pvt Ltd.
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11 of EPF & MP Act, 1952. Section 11 of the EPF & MP Act, 1952 reads as follows:-
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 relation to an establishment to which any Scheme or the Insurance Scheme applies in respect of any contribution payable to the Fund or, as the case may be, the Insurance Fund, damages recoverable under section 14B, accumulations required to be transferred under sub-section (2) of section 15 or any charges payable by him under any other provision of this Act or of any provision of the Scheme or the Insurance Scheme; or
b) from the employer in relation to an exempted establishment in respect of any contribution to the Provident Fund or any Insurance Fund insofar it relates to exempted employees, under the the rules of the Provident Fund or any Insurance Fund, any contribution payable by him towards the Pension Fund under sub-section (6) of Section 17, damages recoverable under section 14B or any charges payable by him to the appropriate Government under any provision of this Act or under any of the conditions specified under section 17. shall, where the liability thereof has accrued before the order of adjudication or winding up is made, be deemed to be included among the debts which under section 49 of the Presidency-Towns Insolvency Act, 1909 or under section 61 of the Provincial Insolvency Act, 1920 or [section 530 of the Companies Act, 1956] are to be paid in priority to all other debts in the distribution of the property of the insolvent or the assets of the company being wound up, as the case may be. Explanation.In this sub-section and in section 17, insurance fund means any fund established by an employer under any scheme for providing benefits in the nature of life insurance to employees, whether linked to their deposits in provident fund or not, without payment by the employees of any separate contribution or premium in that behalf. IA/31/2021 and IA/370/2020 and MA/868/2019 in CP/567(IB)/CB/2018 In the matter of M/s. SAS Autocom Engineers India Pvt Ltd.
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[2] Without prejudice to the provisions of sub-section (1), if any amount is due from an employer whether in respect of the employees contribution deducted from the wages of the employee or the employers contribution, the amount so due shall be deemed to be the first charge on the assets of the establishment, and shall, notwithstanding anything contained in any other law for the time being in force, be paid in priority to all other debts.
19. In view of the above provision, namely, Section 11 of the EPF & MP Act, 1952, it is submitted by Ld. Counsel for the Respondent, that the debts arising under the EPF & MP Act, 1952 up to the date of insolvency or winding up, is deemed to be included in the list of debts also having a statutory first charge on the assets of the establishment in relation to dues as envisaged under Section 11(1)(a) of the EPF & PF Act, 1952 which stands created and is required to be paid in priority to all other debts and hence, whether a claim is lodged or not the same is required to be factored during the CIRP or Liquidation process.
20. Further, it is also pointed out that the provisions of IBC, 2016, more particularly, by virtue of Section 36(4)(a)(iii) of the Code provides that all sums due to any workman or employee from the Provident Fund, the Pension Fund and the Gratuity Fund are not to be included in the liquidation estate assets and shall not be used for recovery in liquidation. IA/31/2021 and IA/370/2020 and MA/868/2019 in CP/567(IB)/CB/2018 In the matter of M/s. SAS Autocom Engineers India Pvt Ltd.
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21. Thus, we pose ourselves with a question as an Adjudicating Authority having jurisdiction exclusively over the insolvency of Corporates, like that of the company under liquidation can such a view be entertained or countenanced.
22. A careful perusal of both i.e., Section 11 of the EPF & MP Act, 1952 or for that matter Section 36(4)(a)(iii) of IBC, 2016 primarily deals with the assets concerned of the establishment, and the Corporate Debtor respectively and nowhere specifies that the EPF Authorities are not required to even lodge a claim before the IRP /RP/Liquidator in relation to a Corporate Debtor undergoing a Insolvency or Liquidation Proceedings even though liability accrued only prior to insolvency is deemed to be included amongst the debts. The Respondent, if at all, taking into consideration the decisions of the Honble Supreme Court rendered in the cases of M/s. Embassy Property Developments Ltd., and M/s. Gujarat Urja Vikas Nigam Limited, can only advance an argument that IRP/RP/Liquidator or even for that matter this Tribunal will not have any scope for adjudication of the claim or the correctness of it as put forth by the Respondent authorities already ascertained and quantified, prior to initiation of the insolvency proceedings, before IA/31/2021 and IA/370/2020 and MA/868/2019 in CP/567(IB)/CB/2018 In the matter of M/s. SAS Autocom Engineers India Pvt Ltd.
24 of 37 the concerned IRP/RP/Liquidator and that if at all the RP/Liquidator has any grievance in relation to the quantum of claim made or otherwise, the remedies by way of an appeal is required to be preferred as provided under the EPF & MP Act, 1952, itself and cannot call upon this Tribunal to decide on the same under the provisions of IBC, 2016.
23. In the circumstances, this Tribunal is confronted with a piquant situation as on one hand, the Liquidator is seeking a priority over the assets of the company under liquidation avowedly for the benefit of the creditors of the said company, however, on the other hand, the Respondent, being a statutory body constituted under the provisions of EPF & MP Act, 1952 is projecting its priority for the realisation of the PF dues based on the said Act. The paramount interest of the workmen/employees should take precedence over all the other stakeholders of which position we do not have any disagreement, save the contention taken by the Respondent that it is not even required to lodge a claim and exercise an option to stand outside the liquidation process in relation to the statutorily attached assets and recover the PF dues for the reasons stated in paragraph supra as the act of filing the IA/31/2021 and IA/370/2020 and MA/868/2019 in CP/567(IB)/CB/2018 In the matter of M/s. SAS Autocom Engineers India Pvt Ltd.
25 of 37 Claim by any person, including any statutory or government body coming under the domain of public law puts the IRP/RP/Liquidator on notice about the Claim and does not vest with the IRP/RP/Liquidator to adjudicate upon the claim preferred, as that will be venturing into the jurisdiction of the other authorities and encroaching on their powers as provided under the respective statutes of which an example had been given by the Honble Supreme Court in relation to Income Tax in the matter of Embassy Property Developments Ltd., case. Thus lodging of a claim of the PF dues by the PF authorities puts the IRP/RP/Liquidator on notice of the claim and to be beware in dealing with the assets of the Corporate Debtor and in turn put on notice any Resolution Applicant during the CIRP or a purchaser of the assets of the company under liquidation as in the present instance. This enables the PF authorities to reinforce the claims arising out of PF dues avowedly for the welfare of the employees and the PF authorities being a statutory body created under the EPF & MP Act, 1952 is required to act more responsibly keeping in mind the overall interest of the Nation in relation to speedier resolution of insolvency of corporate and cannot act in an obdurate manner which makes the resolution or liquidation process under IBC, 2016 a never ending process IA/31/2021 and IA/370/2020 and MA/868/2019 in CP/567(IB)/CB/2018 In the matter of M/s. SAS Autocom Engineers India Pvt Ltd.
26 of 37 similar to the one which was prevalent earlier stuck in a legal quagmire before judicial Forums. Further, under the provisions of IBC, 2016 the management of the Corporate Debtor is taken over by the IRP/RP/Liquidator as the case may be and in any event going by the provisions of EPF & MP Act, 1952 demand for EPF dues is required to be made to the establishment concerned which had defaulted as well as for any subsequent action including notice of attachment or proclamation by way of sale and in the circumstances, the PF authorities will in any case be required to put on notice about the claim as well as their intent in case of default to proceed against it for its recovery. In the circumstances, we are unable to accept that the PF authorities are even immune from filing the Claim before the IRP/RP/Liquidator as the case may be, thereby denying him an opportunity on behalf of the Corporate Debtor from settling the PF dues and thereby releasing the assets from the statutory first charge as demanded under Section 11 of EPF & MP Act, 1952 enabling him, namely IRP/RP/Liquidator to deal with the assets of the Corporate Debtor in the manner as laid down by the provisions of IBC, 2016 in meeting the dues to the other creditors by realisation of assets. Thus it is advised of PF authorities, instead of creating a legal logjam of the insolvency or IA/31/2021 and IA/370/2020 and MA/868/2019 in CP/567(IB)/CB/2018 In the matter of M/s. SAS Autocom Engineers India Pvt Ltd.
27 of 37 liquidation process, they are required to approach the issue in a prudent and level headed fashion and in the interest of the employees/workmen concerned on whose behalf they are representing. Similarly, the Liquidator or for that matter IRP/RP is also required to be wary in dealing with the assets of the Corporate Debtor upon coming to know the estimate of dues in relation to PF, Pension and Gratuity whether put on notice by the concerned Authority, more so, taking into consideration the regulations of IBBI relating to liquidation process and the claims concerning the workmen where an onus is placed upon the Liquidator to ascertain the liability from the books of accounts of the Corporate Debtor, where the workers have not lodged a claim formally.
24. In this connection, it must be noted that while the EPF & MP Act, 1952 seeks to exclusively protect the interest of the workmen/employees who are part of a business entity and is one amongst the stakeholders, this Tribunal is required to balance the interest of all the stakeholders as is evident from the respective Statement of Objects and Reasons, giving the purpose of the respective statutes and leading to its very enactments. IA/31/2021 and IA/370/2020 and MA/868/2019 in CP/567(IB)/CB/2018 In the matter of M/s. SAS Autocom Engineers India Pvt Ltd.
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25. In relation to the EPF & MP Act, 1952 the statement of objects and reasons, inter-alia given for its enactment reads as follows:- STATEMENT OF OBJECTS AND REASONS The question of making some provision for the future of the industrial worker after he retires or for his dependents in case of his early death, has been under consideration for some years. The ideal way would have been provisions through old age and survivors pensions as has been done in the industrially advanced countries. But in the prevailing conditions in India, the institution of a pension scheme cannot be visualised in the near future. Another alternative may be for provision of gratuities after a prescribed period of service. The main defect of a gratuity scheme, however, is that amount paid to a worker or his dependents would be small, as the worker would not himself be making any contribution to the fund. Taking into account the various difficulties, financial and administrative, the most appropriate course appears to be the institution compulsorily of contributory provident funds in which both the worker and the employer would contribute. Apart from other advantages, there is the obvious one of cultivating among the workers a spirit of saving something regularly. The institution of a provident fund of this type would also encourage the stabilisation of a steady labour force in industrial centres.
26. From the above paragraph, it is quite evident that the primary concern of EPF & MP Act, 1952 centres around the welfare of the employees and the necessity of providing a retirement nest in the absence of pension as prevalent in the industrialized nation. IA/31/2021 and IA/370/2020 and MA/868/2019 in CP/567(IB)/CB/2018 In the matter of M/s. SAS Autocom Engineers India Pvt Ltd.
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27. On the other hand, the Statement of Objects and Reasons for the enactment of IBC, 2016 reads as follows:- An Act to consolidate and amend the laws relating to reorganisation and insolvency resolution of corporate persons, partnership firms and individuals in a time bound manner for maximisation of value of assets of such persons, to promote entrepreneurship, availability of credit and balance the interests of all the stakeholders including alteration in the order of priority of payment of Government dues and to establish an Insolvency and Bankruptcy Board of India, and for matters connected therewith or incidental thereto.
28. Perusal of the above paragraph clearly establishes that the onus of this Tribunal as an Adjudicating Authority named in IBC, 2016 are of much wider amplitude as compared to the statutory authority named in EPF & MP Act, 1952 as during the course of insolvency and liquidation and more so during liquidation as contemplated IBC, 2016 to balance the interests of all the stakeholders concerned including employees.
29. In the circumstances, this Tribunal is required to take a broader view without in any way compromising the interests of the employees, taking into consideration the provisions of EPF & MP Act, 1952 and Section 36 of IBC, 2016 while considering and exercising in relation to the jurisdictional issue in relation to the question on hand, of course within the textual hook of IBC, 2016 in IA/31/2021 and IA/370/2020 and MA/868/2019 in CP/567(IB)/CB/2018 In the matter of M/s. SAS Autocom Engineers India Pvt Ltd.
30 of 37 doing so, as laid down by the Honble Apex Court in Gujarat Urja Vikas Nigam Limiteds case and noted above in paragraphs supra. In this connection, it is seen that it in the course of implementation of the Code in retrospect, both binding as well as persuasive precedents that have evolved which if it has a bearing, this Tribunal is bound to take note of in arriving at its decision in the instant case.
(i) In the matter of Regional Provident Fund Commissioner Ahmedabad -vs- Ramachandra D.Choudhry (Company Appeal (AT)(Insovency) No.1001 of 2019 In answering the question as to whether PF authorities are entitled to a claim of interest charged by the said authority during the course of CIRP of the corporate debtor post CIRP, in addition to the principal amount of provident fund due of which has been fully taken care of in the approved Resolution Plan, negating the contention of the successful resolution applicant that Sections 7Q and 14B of the EPF & MP Act, 1952 cannot be relied upon, as the provisions of IBC, 2016 has an overriding effect on the same in terms Section 238 of the Code, it was held that no provisions of EPF & MP Act, 1952 and IBC, 2016 are in conflict and on the other hand in terms of Section 36(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. IA/31/2021 and IA/370/2020 and MA/868/2019 in CP/567(IB)/CB/2018 In the matter of M/s. SAS Autocom Engineers India Pvt Ltd.
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(ii) In the matter of State Bank of India vs. Moser Baer Karamchari Union & Anr (Company Appeal (AT)(Insolvency) No.396 of 2019 The question which arose for decision before the Appellate Tribunal in this matter was as to whether for the purpose of distribution of assets of the Corporate Debtor during the course of its liquidation under Section
53 of IBC, 2016, whether dues of employees as mentioned in sub clause (c) of sub-section (1) therein includes the contribution of Provident Fund, in view of Explanation to Section 53 stating that workmens dues shall have the same meaning as assigned to it in Section 326 of the Companies Act, 2013. Relying on the definition of Liquidation Estate under Section 36(1) read with Section 36(3) of IBC, 2016 and since it does not include all sums due to any workman and employees from the provident fund, for the purpose of distribution of assets under Section 53, the provident fund, the pension fund and the gratuity fund cannot be included and in the circumstances the adjudicating authority having held that the same will not form part of the Liquidation Estate of the corporate debtor for the purpose of distribution of assets under Section 53 of IBC, 2016, the said decision was upheld
(iii) In the matter of Regional Provident Fund Commissioner EPFO Regional Office Chennai vs T.V.Balasubramanian Resolution Professional Sholingur Textiles Limited in Company Appeal (AT)(Insolvency) No.1521 of 2019 The issue which came up before the Appellate Tribunal concerned about the attachment of immoveable properties of the Corporate Debtor by the PF authorities in relation to PF dues and consequent attachment and thereafter issue of a Recovery Certificate to the concerned Recovery Officer in exercise of the powers conferred under Section 8(B) to 8(G) of EPF & MP Act, 1952 and the validity of such attachment in view of the initiation of the CIRP and moratorium imposed under Section 14 of IBC, 2016 by this Tribunal it was held by IA/31/2021 and IA/370/2020 and MA/868/2019 in CP/567(IB)/CB/2018 In the matter of M/s. SAS Autocom Engineers India Pvt Ltd.
32 of 37 the Appellate Tribunal that the attachment effected by the PF authorities was prior in time to the initiation of the CIRP of the corporate debtor, even though the entries in the concerned Sub Registrars record of the said attachment was recorded in the register during the CIRP, would still be a valid attachment.
(iv) In the matter of Precision Fasteners Ltd through the Liquidator Vs Employees Provident Fund Organisation, Thane & Ord in MA 576 & 752/2018 in C.P.(IB) 1339(MB)/2017 (NCLT- Mumbai Bench) reported in 2018 SCC Online NCLT 27284 Upon a detailed consideration of the interplay of EPF& MP Act,1952, Companies Act of 1956 and 2013 as well as IBC, 2016 and the decisions of the Apex Court it has been held that:-
a) In relation to attachments effected by the PF authorities, it makes no difference whether attachments have been made prior to or subsequent to admission of Company Petition under IB Code, the statutory first charge having remained in force against the assets of the corporate debtor company, there is no merit to differentiate in respect of attachments made prior to filing of the Company Petition and during CIRP period;
b) The charge in relation to PF dues will be the first charge in priority to all other debts, including Liquidator costs because the PF dues has been excluded from the Liquidation Estate;
c) PF dues being treated as an asset of the workmen u/s.36(4)(a)(iii) of the Code, for realisation of such debt, EPF Act 1952 is applicable, not IBC, 2016; IA/31/2021 and IA/370/2020 and MA/868/2019 in CP/567(IB)/CB/2018 In the matter of M/s. SAS Autocom Engineers India Pvt Ltd.
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d) Since Liquidation Process should not get obliterated by the attachment taken against the assets of the Corporate Debtor, the only viable answer to this situation is, the Liquidator shall pay the dues that are payable under the head of Provident Fund/Pension Fund/Gratuity Fund earmarking it as asset of the workmen and pay off the same to the respondents in priority to the waterfall mechanism made under Section 53 of the Code. In view of the law in force, we hereby hold that by virtue of EPF Act and Section 36(4)(a)(iii) of the Code, the charge will remain in force against the assets of the corporate debtor until it has been paid off before making any payment to any entity falling under waterfall mechanism devised under Section 53 of the Code;
e) Liquidator directed to pay the PF dues from the Liquidation Estate before distributing the Liquidation Estate of the Corporate Debtor to the claimants, to which since the Liquidator has to sell the assets of the Corporate Debtor, the respondents i.e., PF authorities are directed to allow the Liquidator to sell the assets of the Corporate Debtor and pay off the Provident Fund dues including interest in priority to all other claims payable by the Corporate Debtor in Liquidation. The above decisions clearly bring out the complexity of the issue on hand before this Tribunal as well as gives guidance as to the way forward in resolving the claim and priority as staked by the Liquidator-Applicant on the one hand and the EPFO authorities-Respondent on the other. However, it is also required to be noted that because of the dispute IA/31/2021 and IA/370/2020 and MA/868/2019 in CP/567(IB)/CB/2018 In the matter of M/s. SAS Autocom Engineers India Pvt Ltd.
34 of 37 between the parties, the Liquidation Process of the Corporate Debtor is stuck in a legal quagmire which is also required to be put on track.
30. Taking into consideration the discussions as above under the circumstances since the Corporate Debtor is undergoing liquidation process, and the application filed in effect seeks for determining priorities in relation to the claims and its satisfaction out of the assets of the Corporate Debtor, however, subject to whatever security interest created over it and the adjudication to be done by this Tribunal taking into consideration the provisions of IBC, 2016 and determine as who will have the first charge over the assets and right to invoke it towards the satisfaction of its claim, we are of the considered view that this Tribunal has the jurisdiction to entertain the application as filed before it and it is accordingly dealt with. CONCLUSION
(i) In relation to the Claim of the PF Authorities in the instant case, the PF Authorities are entitled to the satisfaction of the full claim in relation to the PF dues including interest in a sum of Rs.36,11,902/- as well as any additional amounts as may be found due under the EPF & MP Act, 1952 as reflected in the IA/31/2021 and IA/370/2020 and MA/868/2019 in CP/567(IB)/CB/2018 In the matter of M/s. SAS Autocom Engineers India Pvt Ltd.
35 of 37 Proclamation of Sale Notice issued dated 23.07.2019 following the decision of the Honble NCLAT in Company Appeal (AT)(Insolvency) No.1001 of 2019 referred supra.
(ii) Since the attachment of movables effected by the PF Authorities by way of Order of Attachment of Property issued dated 25.04.2018 for the recovery of the PF dues is even prior to the initiation of CIRP by this Tribunal on 05.10.2018, the said order of attachment will not be hit by the declaration of moratorium under Section 14 of IBC, 2016 following the ratio of the Honble NCLAT as held in Company Appeal (AT)(Insolvency) No.1521 of 2019 also referred supra and hence this Tribunal is not required to delve any further on the aspect of attachment.
(iii) As the Order of Attachment issued by the PF Authorities-Respondent dated 25.04.2018 is held to be not hit by the provisions of the moratorium declared thereafter and for the reasons stated in paragraph supra, the action of the Liquidator in conducting an auction on 12.02.2020 while the matter was pending before this Tribunal dealing inter-alia with the said property as well under attachment, is required to be set aside as the same cannot be sustained in view of the statutory first charge prevalent on the assets of the Corporate Debtor in relation to PF dues and not IA/31/2021 and IA/370/2020 and MA/868/2019 in CP/567(IB)/CB/2018 In the matter of M/s. SAS Autocom Engineers India Pvt Ltd.
36 of 37 being discharged as provided under Section 11 of the EPF & MP Act, 1952 read with Section 36(4)(iii)(a)(iii) of IBC, 2016.
(iv) In case if the Liquidator is in a position to provide and pay off the amount due and claimed under the provisions of the EPF & MP Act , 1952 by the Respondent, including any amount found to be due since August 2019, to the satisfaction of the Respondent and in priority to all other debts, the Liquidator in this regard shall avail the provisions of EPF & MP Act, 1952 read with the Second Schedule to the Income Tax Act, 1961 and to enable the Liquidator to adopt such a course of action and for which purpose a period of two weeks shall be granted by the Respondent to the Liquidator, prior to auctioning of the properties under attachment for which a Proclamation of Sale Notice has been issued on 23.07.2019 failing which as a consequence, the PF Authorities are free to proceed as per the provisions of EPF & MP Act, 1952 for the recovery of PF dues as per the provisions of EPF & MP Act, 1952 in priority to all other claims. However, such an action thereafter shall be completed with in a period of 8 weeks failing which the Respondent shall re-locate the movables under attachment detailed in the Warrant of Attachment for the Liquidator to proceed with the Liquidation Process. Any surplus left after appropriation of PF dues by the IA/31/2021 and IA/370/2020 and MA/868/2019 in CP/567(IB)/CB/2018 In the matter of M/s. SAS Autocom Engineers India Pvt Ltd.
37 of 37 PF Authorities/Respondent shall be duly lodged with the Liquidator, who will accept the same as part of Liquidation Estate Assets of the Company under liquidation.
31. Thus, with the above directions IA/370/2020, IA/31/2021 and MA/868/2019 are disposed off, accordingly. ANIL KUMAR B R. VARADHARAJAN MEMBER (TECHNICAL) MEMBER (JUDICIAL)
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