Bombay High Court
The Regional Provident Fund ... vs Rajiv Shivaji Ghule And Another on 8 October, 2021
Bench: S.V. Gangapurwala, R. N. Laddha
CA No.8682/21
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
944 CIVIL APPLICATION NO.8682 OF 2021
IN WP/12957/2017
THE REGIONAL PROVIDENT FUND COMMISSIONER
AURANGABAD
VERSUS
RAJIV SHIVAJI GHULE AND ANOTHER
...
Advocate for Applicant : Mr. N.K. Choudhari
Advocate for petitioner in WP : Mr. S.V. Adwant
...
CORAM : S.V. GANGAPURWALA &
R.N. LADDHA, JJ.
DATED : 08/10/2021.
PER COURT :
. The present application is filed by the original
respondent No. 1 in the writ petition seeking withdrawal of the
amount of Rs.30,87,479/- (Rupees thirty lakhs eighty seven
thousand four hundred and seventy nine only) deposited by the
original writ petitioner pursuant to the orders passed by this
Court.
2. Mr. N.K. Choudhari, learned counsel for the applicant
submits that the dues of the provident fund department were
CA No.8682/21
quantified in the sale certificate pursuant to which the original
writ petitioner has purchased the property. In the sale certificate,
it has been clearly stated that the provident fund dues as on
31.3.2014 are to the tune of Rs.88,26,767/-. The original
petitioner has challenged the demand notice issued to the present
applicant. The Court while granting interim relief to original writ
petitioner had directed to deposit the amount of Rs.30,87,479/-.
The applicant be permitted to withdraw the said amount.
3. Mr. Adwant, learned advocate for the original writ
petitioner submits that the amount has been deposited by the writ
petitioner to show his bonafides. According to the learned
advocate, the notice of demand is per-se illegal. The sale
certificate relied by the applicant does not have any sanctity. The
dues allegedly mentioned under the list of encumbrances do not
have any legal sanctity. The dues cannot be quantified on the basis
of unaudited accounts or balancesheet. The Maharashtra
Cooperative Societies Act does not recognize any dues pursuant to
the unaudited balancesheet. The learned counsel further submits
that the dues are uncertain and if the dues are uncertain and
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adjustment of uncertain dues is considered, the same is void in
view of section 29 of the Indian Contract Act. The learned counsel
also relies on the section 83 of he Indian Evidence act to buttress
his submission.
4. According to the learned counsel, section 17-B of E.P.F.
Act would not apply to the present applicant with regard to any
priority claim. The learned advocate submits that the priority
claim is of secured creditor as per section 26-E of SARFAESI Act.
The property was to be auctioned under SARFAESI Act. According
to the learned counsel even it is assumed that dues were admitted
by the creditor still the auction purchaser is not precluded from
challenging the said dues. Reliance is placed on the judgment of
the Apex Court in the case of Bhagwant Rai and Ors. Vs. State of
Punjab and Ors, reported in (1995) 5 SCC 440.
5. According to the learned advocate, as the original writ
petitioner does not have liability to pay the amount, the applicant
may not be allowed to withdraw the amount deposited by the
present petitioner.
CA No.8682/21
6. It is submitted that the procedure is prescribed for
recovery of amount. The amount has to be recovered as arrears of
land revenue. The said procedure has not been adhered by the
Provident Fund Department. According to the learned advocate,
the matter involves complex issues to be decided. The petitioner is
ready to work out the matter finally on any given date.
7. We have considered the submissions. At present,
application for withdrawal of the amount is only required to be
decided. The legal provisions addressed by the learned advocate
for the applicant and the learned advocate for the non applicant
can be considered at the time of hearing the writ petition. While
deciding the application for withdrawal of the amount, we are not
deciding the legal issues raised by the parties. We would not be
giving conclusive finding upon the liability of the petitioner or
right of respondent No. 1. What would be the effect of the amount
quantified in the sale certificate on the basis of unaudited
balancesheet would be a subject matter for consideration while
deciding the writ petition.
8. The present applicant viz. Provident Fund Department
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is a statutory body. Keeping the amount idle would be in nobody's
interest. In case, the petitioner succeeds in writ petition, the steps
can always be taken to direct the department to refund the
amount along with permissible interest. The Provident Fund
Department also caters to the dues of the employees.
9. In case, this Court allows the writ petition
subsequently then it would not be difficult to recover the amount
from the Provident Fund Department.
10. In the light of above, we permit the applicant to
withdraw the amount of Rs. 30,87,479/- along with accrued
interest, if any on condition that the responsible officer of the
department files undertaking in this Court to the effect that in the
event authority is directed to deposit/refund the amount, it will
deposit the amount within one months. Civil Application disposed
of.
[ R.N. LADDHA, J. ] [S.V. GANGAPURWALA, J.]
ssc/
