Craftech Numerics (P) Ltd. vs Assistant Provident Fund ...
2011 Latest Caselaw 1380 Del

                                                         UNREPORTABLE


*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                               WP (C) No.1501/2011


                                          Date of Decision: March 09, 2011


       CRAFTECH NUMERICS (P) LTD.               ..... Petitioner
                     through Mr. Basant C. Agrawal, Advocate

                      versus


       ASSISTANT PROVIDENT FUND COMMISSIONER ..... Respondent
                      through Mr. R.C.Chawla, Advocate with
                      Mr. Sri Ram Kamal, Advocate

       CORAM:
       HON'BLE MISS JUSTICE REKHA SHARMA

1.     Whether the reporters of local papers may be allowed to see the
       judgment? No
2.     To be referred to the reporter or not? No
3.     Whether the judgment should be reported in the „Digest‟? No

REKHA SHARMA, J.

The petitioner before me had preferred an appeal before the

Employees‟ Provident Fund Appellate Tribunal (in short, called the

"Tribunal") against an order passed under Section 7A of the

Employees‟ Provident Funds and Miscellaneous Provisions Act, 1952

(hereinafter called the "Act"). The Tribunal, vide order dated

March 26, 2010, had directed the petitioner to deposit 30% of the

assessed amount within three months and subject to the deposit had

stayed the operation of the impugned order. The petitioner rather

than depositing the amount as directed filed an application before the

Tribunal stating therein that its assets had been taken over by Canara

WP (C) No.1501/2011 Page 1 Bank under Section 13(12) read with Rule 9 of the Securitization and

Reconstruction of Financial Assets and Enforcement of Security Interest

Act, 2002 and the same have been disposed of by the Bank by way of

auction/sale for a total sum of ` 3,52,30,000/-. Accordingly, the

petitioner prayed that the Assistant Provident Fund Commissioner be

directed to recover the dues assessed under Section 7A of the Act from

the Bank/Auction Purchaser. The said application was taken up for

hearing by the Tribunal on October 11, 2010. The Tribunal dismissed

the same by passing the following order:-

"x x x x x x

Present: Sh. Nagesh, Advocate for Appellant.

None for Respondent.

Heard the arguments of the advocate for appellant on the Miscellaneous Application filed. Under Section 7(O) it is the appellant who is to deposit the pre-deposit. In this case, instead of depositing the pre-deposit the appellant prayed to direct the respondent to realize the same from the bank. The appeal has not yet been admitted so the appellant is not entitled to any interim relief. Hence the application filed is rejected. The appellant was directed to make the pre-deposit by 2.6.2010 and that order has not been complied with yet.

2. The case is adjourned for further order on 18.10.2010.

Sd/-

(Srikanta Nayak) Presiding Officer, EPFAT"

On October 18, 2010, when the appeal was taken up for hearing,

none was present for the petitioner, nor had the petitioner deposited

30% of the assessed amount. Hence, the Tribunal dismissed the

appeal as not maintainable. It is this order of October 18, 2010 as well

WP (C) No.1501/2011 Page 2 as the order dated October 11, 2010 which have been assailed in the

present writ-petition.

The learned counsel for the petitioner has referred to

Section 11(2) of the Act which provides that, "if any amount is due

from an employer whether in respect of the employee‟s contribution

(deducted from the wages of the employee) or the employer‟s

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 force, be paid in priority

to all other debts", and relying upon the same, has contended that in

view of the Canara Bank having sold the property of the petitioner and

having realized the amount of ` 3,52,30,000/-, the respondent, namely,

Assistant Provident Fund Commissioner should claim the amount due

to it from the Canara Bank.

It is true that Section 11(2) of the Act provides that the dues

payable to the Provident Fund Commissioner by a firm are liable to be

paid on priority to all other debts, but whether the respondent was

liable to recover those dues from the Canara Bank as a first charge,

was not an issue before the Tribunal. What the petitioner had

challenged before the Tribunal was its very liability to pay the dues as

determined under Section 7A of the Act. The question of recovery of

the amount, how and from whom, would have arisen only after the

Tribunal had dismissed the appeal of the petitioner. The Tribunal, as

noticed above, before hearing the appeal had directed the petitioner to

deposit 30% of the amount due from it and as the petitioner failed to

deposit the said amount, the Tribunal dismissed the appeal. The

Canara Bank with which, as per the petitioner, a sum of ` 3,52,30,000/-

WP (C) No.1501/2011 Page 3 is lying, was neither made a party before the Tribunal, nor before this

Court. One does not know, whether the Canara Bank is still holding the

amount received or has already appropriated the same towards the

dues payable to it. Therefore, for the petitioner to contend that the

respondent should approach the Canara Bank for recovery of its dues

is based on incomplete information and in any case, in the absence of

the Canara Bank being a party before this Court, no order thereon can

be passed. The writ-petition is dismissed on the sole ground that the

petitioner failed to make the pre-deposit as ordered by the Tribunal.

REKHA SHARMA, J.

MARCH 09, 2011
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WP (C) No.1501/2011                                                Page 4