Madhya Pradesh High Court
Citibank N.A.London Branch ... vs M/S Plethico Pharmaceuticals ... on 13 December, 2021
Author: Subodh Abhyankar
1
COMP No.35/2013
High Court of Madhya Pradesh, Jabalpur
Bench at Indore
Company Petition No.35/2013
Indore, Dated 13.12.2021
Parties through their learned counsel.
Heard on IA No.4425/2019, which is an application filed
under Section 279 of the Companies Act, 2013 read with Rule 9 of
the Companies (Court) Rules, 1959, seeking leave of this Court to
proceed with an inquiry under Section 7-A of the Employees
Provident Funds and Miscellaneous Provisions Act, 1952.
The application has been filed by the applicant / intervener -
Commissioner of Employees Provident Fund Organization, Indore
(MP) seeking the following relief: -
"PRAYER
Therefore, the present applicant prays this Hon'ble Court by
invoking inherent powers of the court seeking leave to
proceed ahead with the inquiry in the nature of quasi-judicial
proceedings under Section 7A, 7Q and 14B of EPFMP Act
be allowed and the concerned authorities including official
liquidator may be directed to co-operate during the said
process. This Court may also be pleased to pass any other
such orders as deems fit in the facts and circumstances of the
case as well as in the interests of justice directing
continuance as well as permission to proceed ahead with
inquiry of the applicant."
Shri Prateek Maheshwari, learned counsel for the applicant
has submitted that when the order of liquidation was passed on
07.04.2015, this Court also allowed the respondent - Company (M/s.
Plethico Pharmaceuticals Limited) to carry out its business activities,
but it was restrained from alienating or creating any charge on
COMP No.35/2013
immovable or movable properties of the company.
Counsel has further submitted that subsequent to this order of
winding up, the company has continued to run its business and thus,
the liability to pay the Provident Fund (PF) has also arisen and in
such circumstances, the present application has been filed for
determination of the provident fund (PF) money dues from the
employer.
Shri H.Y. Mehta, learned counsel appearing for the Official
Liquidator has opposed the prayer and it is submitted that as per the
Company Code Rules (Rule 154), which refers to "value of the
debts", provides that the value of all debts claimed against the
company shall, as far as possible, be estimated, according to the
value thereof at the date of order of winding up of the company.
Thus, it is submitted that the present intervener Provident Fund
Organization cannot proceed against the Official Liquidator in
respect of the period subsequent to 07.04.2015, when the order of
liquidation was passed.
Shri Mehta has also relied upon a judgment of the Bombay
High Court in the case of Aryarup Tourism Club Resorts P.
Limited (In Liquidation), In re (with connected petitions)
reported as (2017) 203 Company Cases 220 (Bombay), wherein it
is held (in para 119) that the official liquidator acts as trustee and
custodian of all such properties and assets of companies in
COMP No.35/2013
liquidation for the purpose of distribution of the proceeds of those
properties amongst the creditors in accordance with the provisions of
the Companies Act, 1956 and under supervision of this court.
Heard learned counsel for the parties and perused the record.
So far as the order of liquidation dated 07.04.2015 is
concerned, the Official Liquidator was appointed as provisional
Liquidator on the following conditions: -
"[1] That, the provisional liquidator will take paper
possession of all the assets of the company in liquidation and
prepare an inventory of all the immovable and movable
assets of the company in liquidation and the respondent will
extend full co-operation to the OL in this regard.
[2] The respondent company is permitted to carry out
its business activity but it is restrained from alienating or
creating any charge on immovable or movable properties
of the company.
[3] The respondent company will furnish details of
account in respect of sale of its finished product to the OL on
monthly basis. The respondent company will also submit
previous three years audited balance sheet and fixed asset
register to provisional OL within two weeks from today."
(Emphasis supplied)
It is apparent from the aforesaid order that the company was
also allowed to carry out its business activities and pursuant thereto,
it has continued its business activities. In the application filed by the
Provident Fund Organization, the dues are said to be from
September, 2016 to May, 2018 i.e. for a period of around 21 months.
Considering the aforesaid undisputed factual aspect and
reading the order of this Court dated 07.04.2015 in juxtaposition
with Rule 154 of the Company Code Rules, 1959 as also Section 2
(e) of the Employees Provident Funds and Miscellaneous Provisions
COMP No.35/2013
Act, 1952, which refers to the definition of "employer" and also
includes the owner or occupier of the factory, this Court is of the
considered opinion that the present applicant - Provident Fund
Organization is well within its rights to claim the PF dues from the
owner of the factory, who have continued with its business till May,
2018.
In such circumstances, the present application is partly
allowed and it is directed that the present applicant - Provident Fund
Organization would be at liberty to proceed under Section 7-A of the
Employees Provident Funds and Miscellaneous Provisions Act, 1952
for determination of money dues from the employer. After
determination of the money, the aforesaid report be placed before
this Court for further orders.
Accordingly, IA No.4425/2019 stands disposed of.
Let the matter be listed on 12.01.2022 for consideration of IA
No.7135/2021 and IA No.7322/2021.
(Subodh Abhyankar)
Company Judge
rcp
RAMESH CHANDRA PITHWE
2021.12.15 18:07:39 +05'30'
