Regional Provident Fund Commissioner- II vs M/s. R A Samy Trading Pvt. Ltd.

Heard the Learned Counsel for the ‘Appellant/Regional Provident Fund Commissioner-II, EPFO, Chennai’ in the instant Comp. App. (AT)(CH)(Ins) No.92/2024 and also heard Mr. Pranav Charan, Learned Counsel appearing for the ‘Respondent/Liquidator’.

According to the Learned Counsel for the ‘Appellant’, the ‘Adjudicating Authority/National Company Law Tribunal, Special Bench-II, Chennai’ had passed the ‘Impugned Order’ dated 12.01.2024 in IA/860(CHE)/2023 in IBA/332/2019 by rejecting the ‘Application’ filed by the ‘Appellant/Petitioner’ under Section 42 and under Section 60(5) of the Insolvency and Bankruptcy Code, 2016 whereby and whereunder relief for condoning the delay of 644 days from 21.05.2021 to 23.02.2023 in filing the ‘Supplementary Claim’ in ‘Form-G’ dated 24.03.2023 for Rs.17,67,120/- was paid for. Also, the relief was sought by the ‘Appellant’ to reject the ‘e-mail communication’ of the ‘Order of the Liquidator’ dated 01.03.2023 and for direction to admit the ‘Supplementary Claim’ of the ‘Petitioner/Appellant’ in ‘Form-G’ dated 24.02.2023 for Rs.17,67,120/-. In addition to the above a relief was also sought by the ‘Appellant/Petitioner’ seeking direction to the ‘Liquidator’ to release the full claim of Rs.29,65,949/- to the ‘Petitioner/Appellant’ payable by the ‘Respondent’ on ‘first priority’ from and out of the ‘Liquidation Assets/Estate of the Respondent’.

According to the ‘Petitioner/Appellant’, the ‘Adjudicating Authority/Tribunal’ on 20.04.2021 had passed an order in IA/213/IB/2020 for ‘Liquidation of the Corporate Debtor’ and appointed the ‘Respondent’ herein as ‘Liquidator’.

It is not in dispute that the ‘Appellant/Petitioner’ had submitted a claim before the ‘Respondent/Liquidator’ on 17.06.2021 for an amount of Rs.21,05,815/-and the same was admitted by the ‘Liquidator’ through e-mail dated 18.06.2021. Subsequently, the ‘Appellant/Petitioner’ found that some of the amount claimed in the ‘Claim Form’ was already paid by the ‘Corporate Debtor’ and through a letter dated 03.08.2021 had modified its claim to Rs.11,98,829/-. It comes to be known that a ‘Composite Scheme of Arrangement’ was proposed in the ‘6^th Stakeholders Consultation Committee Meeting’ wherein it was agreed that the ‘Appellant/Petitioner’s dues to an extent of Rs.11,98,829/- would be paid within a period of 30 days, from the date of approval of the ‘Scheme’, of the ‘Adjudicating Authority/Tribunal’. In the interregnum, the ‘Appellant/Applicant’ found that the Section 7Q interest and 14B ‘damages’ under the ‘Employees Provident Fund and Miscellaneous Provisions Act, 1952’, claim for the period from 12/2012 to 03/2015 for Rs.17,67,120/- was not included, in the ‘Claim’ furnished to the Respondent on 17.06.2021. As such, subsequently, the ‘Claim’ in Form–G along with Annexure Format for Rs.17,67,120/- was filed with the ‘Liquidator’ on 24.02.2023.

The ‘Respondent/Liquidator’ on 01.03.2023, had rejected the ‘claim’ of the ‘Appellant/Applicant’ mentioning that the claim was belated and the ‘scheme’, was already been finalised and a payment of Rs.11,98,829/-was proposed to be paid to the ‘Appellant/Petitioner’ and such view of the matter, ‘supplementary claim’ could not be considered. It is evident that in respect of the rejection of the ‘claim’ of the ‘Respondent/Liquidator’, the ‘Appellant/Petitioner’ had filed IA(IBC)/860(CHE)/2023, to condone the ‘delay of 644 days’ in filing the ‘Supplementary Claim’ in IA(IBC)/1068(CHE)/2023 to condone the delay of 25 days in preferring the IA(IBC)/1068(CHE)/2023. In fact, the IA(IBC)/1068(CHE)/2023 came to be rejected by the ‘Adjudicating Authority/Tribunal’.

The ‘Respondent/Liquidator’ before the ‘Adjudicating Authority/Tribunal’ had filed ‘Reply’ pointing out that the ‘Appellant/Petitioner’ had filed ‘Supplementary Claim’ after a delay of about 644 days, which is against true ‘Letter’ and ‘Spirit’, of the Court, 2016’.

According to the ‘Respondent/Liquidator’ the claim by the ‘Appellant/Petitioner’ will not form part of the ‘Liquidation Estate’ and further the ‘Respondent/Liquidator’ had not taken the approval of the ‘Adjudicating Authority/Tribunal’ while rejecting the claim sum of Rupees from Rs.21,05,815/-to Rs.11,98,829/-. Also, it comes to light that the ‘Respondent/Liquidator’ had obtained approval of the change in the clearance/claim sum of the ‘Adjudicating Authority’ in IA/583//2022 on 09.01.2023.

It cannot be ignored that the ‘Appellant’ had originally preferred the claim for Rs.21,05,815/- which was scaled down to Rs.11,98,829/- and now sought to be increased to Rs.29,65,949/-.

A clear-cut stand of the ‘Respondent/Liquidator’ is that the ‘Appellant’ is not diligent in submitting its correct claim and the ‘Appellant’ is in fact abusing the process of Insolvency and Bankruptcy Code, 2016 to its maximum advantage.

In regard to the plea of the ‘Appellant’ that the ‘Respondent’ had failed to consider the ‘Supplementary Claim’ for Section 7Q interest and Section 14B damages for the period 12/2012 to 03/2015, the period commencing from 11/2017 to 03/2019, it is evident that no separate orders were passed under Section 7Q and 14B of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 for the said period.

The Learned Counsel for the ‘Respondent/Liquidator’ comes out with a plea that the ‘Liquidator/Respondent’ had rejected the claims of the ‘Appellant’ as it is valid one and the scheme under Section 230 of the Companies Act, 2013 is in final stage pending approval before this ‘Tribunal’.

Even though the ‘Appellant’ has come out with a plea that the delay of 644 days is to be condoned, because of the fact during that period, the ‘COVID’ had affected the people of the country, yet this ‘Tribunal’ is of the considered view that the ‘Appellant/Petitioner’ cannot make, for the first time, ‘original’ claim letter scaling down to Rs.11,98,829/- from the original amount of Rs.21,05,815/- and file a ‘Supplementary Claim’, in respect of the ‘unpaid dues’.

On-going through the ‘Impugned Order’ of the ‘Adjudicating Authority/Tribunal’ this ‘Tribunal’ is of the considered view that the ‘Adjudicating Authority/Tribunal’ has come to the correct conclusion in not condoning the delay of 644 days in question in preferring the ‘Appeal’ and a view taken by the ‘Adjudicating Authority/Tribunal’ in dismissing the Application is free from any foibles and follies. In short, there is no legal infirmity in the ‘Impugned Order’ passed by the ‘Adjudicating Authority’ in rejecting the Claim of the ‘Appellant/Petitioner’ and also the said ‘Impugned Order’ does not suffer from any latent irregularity and illegality, patently in the ‘eye of law’.

Looking at from any angle, the instant ‘Appeal’ sans merits.

In fine, the instant ‘Appeal’ (AT) (CH) (Ins) 92 of 2024 is ‘Dismissed’. No costs.