Jitender Kumar Jain vs Employees Provident Fund Organisation ...

IN THE MATTER OF: Jitender Kumar Jain, Liquidator of Roofit Industries Ltd. ...Appellant Versus Employee Provident Fund Organisation ...Respondent

Present: For Appellant : Present but appearance not marked.

For Respondent :

ORDER

(Hybrid Mode)

09.07.2024 : Heard Counsel for the Appellant.

2. This appeal has been filed against an order dated 12.03.2024 passed

by the Learned Adjudicating Authority (National Company Law Tribunal,

Mumbai Bench-I) in I.A. No. 2705 of 2021 filed by the Employees Provident

Fund Organisation (EPFO) which has been partly allowed.

3. The Learned Adjudicating Authority in paragraphs 3.2 & 3.3 has made

following observations:

"3.2. The appellant has claimed dues on account of principal contribution, damages and interest on these two components. In so far as principal contribution is concerned the same no longer forms part of Liquidation estate, hence the Liquidator is directed to exclude this amount from the Liquidation estate and deal with the same in priority over all other claims. In so far as damage and interest are concerned, these dues are not payable to the employees, but the same are contributions to the general fund of Provident Fund Organisation and have statutory force.

3.3. Accordingly, we direct the Liquidator to admit the dues on account of contribution to Provident fund (both employer and employee) and exclude the corresponding amount from the Liquidation estate to be dealt with in priority of all other claims. We further direct the Liquidator to admit the dues on account of damages and interest as Operational Debt payable to Statutory Authorities and deal with the same accordingly in terms of section 53 of the Code."

4. Learned Counsel for the Appellant challenging the order submits that

there was no separate account maintained for the PF and claims relate two

years prior to the CIRP commencement date.

5. Be that as it may, the law is now well settled by the Judgment of this

Tribunal in the matter of `Jet Aircraft Maintenance Engineers Welfare

Association' Vs. `Ashish Chhawchharia Resolution Professional of Jet Airways

(India) Ltd. & Ors.' in Comp. App. (AT) (Ins.) 752 of 2021, that provident fund

claims are not part of the liquidation estate and Section 36 has been

considered and interpreted which Judgment has also been affirmed by the

Hon'ble Supreme Court.

6. Learned Counsel for the Appellant has referred to the Judgments in the

matter of `State Bank of India' Vs. `Moser Bear Karmachari Union & Anr.'

reported in 2019 SCC Online NCLAT 447 and `Mr. Savan Godiwala' Vs. `Mr.

Apalla Siva Kumar' in Comp. App. (AT) (Ins.) No. 1229 of 2019. All the above

Judgments have been taken note in the Judgment of this Tribunal in `Jet

Aircraft Maintenance Engineers Welfare Association' (Supra) and has been held

that provident fund dues cannot be part of the liquidation estate under

Section 36.

Comp. App. (AT) (Ins.) No. 1227 of 2024 2 of 3

7. We thus do not find any error in the order of the Adjudicating Authority

directing the amount to be kept separate from the liquidation estate.

There is no merit in the appeal. The appeal is dismissed.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical)

[Arun Baroka] Member (Technical) himanshu/nn

Comp. App. (AT) (Ins.) No. 1227 of 2024 3 of 3