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Pearly Andrew Franz Vs. Official Assignee - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberO.C.J. Appeal No. 54 of 1964
Judge
Reported in[1965(11)FLR365]; (1965)IILLJ478Bom; 1965MhLJ807
ActsEmployees' Provident Funds Act, 1652 - Sections 10; Presidency-towns Insolvency Act, 1909; Provincial Insolvency Act, 1920
AppellantPearly Andrew Franz
RespondentOfficial Assignee
Excerpt:
labour and industrial - amount of provident fund - section 10 of employees' provident funds act and presidency-town insolvency act, 1909 - whether official assignee entitle to make claim in respect of amount of provident fund - official assignee is not entitled to make any claim in respect of provident fund amount standing to credit of insolvent with regional provident fund commissioner under section 10 (1) - section 10 (1) override provisions of presidency-towns insolvency act . - - the amount will be subject to the provisions in the scheme for deductions by the provident fund commissioner in favour of the employers as well as other parties. the contention made on behalf of the debtor must, therefore, fail......applicable. the contention is that, having regard to the provisions in the act and the scheme, the official assignee is not entitled to make any claim in respect of the provident fund amount standing to the credit of the insolvent with the regional provident fund commissioner. in this connection, reliance is placed on s. 10 of the employees' provident funds act, the relevant part whereof provides : '10. (1) the amount standing to the credit of any member in the fund ... shall not be liable to attachment under any decree or order of any court in respect of any debt or liability incurred by the member ... and neither the official assignee appointed under the presidency-towns insolvency act, 1909. .. nor any receiver appointed under the provincial insolvency act, 1920 ... shall be entitled.....
Judgment:
ORDER

K.K. Desai, J.

1. As regards the second relief, the debtor's contention is that a sum of Rs. 7,062.75 stands to his credit with the Regional Provident Fund Commissioner at Bombay. Admittedly, to this fund, the provisions of the Employees' Provident Funds Act, 1652, and the Employees' Provident Funds Scheme enacted under that Act are applicable. The contention is that, having regard to the provisions in the Act and the scheme, the Official Assignee is not entitled to make any claim in respect of the provident fund amount standing to the credit of the insolvent with the Regional Provident Fund Commissioner. In this connection, reliance is placed on S. 10 of the Employees' Provident Funds Act, the relevant part whereof provides :

'10. (1) The amount standing to the credit of any member in the fund ... shall not be liable to attachment under any decree or order of any Court in respect of any debt or liability incurred by the member ... and neither the Official Assignee appointed under the Presidency-towns Insolvency Act, 1909. .. nor any receiver appointed under the Provincial Insolvency Act, 1920 ... shall be entitled to, or have any claim on, any such amount.

(2) * * *'

2. The contention is that the phrase 'the Official Assignee shall not be entitled to or have any claim, on any such amount' means that at no time whatsoever the Official Assignee can make a claim on the Regional Provident Fund Commissioner for paying over or receiving the amount of provident fund standing to the credit of an insolvent. The further contention is that such amount cannot be recovered even if it ultimately becomes payable to the insolvent under the scheme of provident funds enacted under the Act. On behalf of the petitioning creditor, it is submitted that the only correct construction of the section is that the Official Assignee can have no claim to recover the amount of provident fund standing to the credit of the insolvent until the time when under the scheme enacted under the Act it becomes and falls to be payable to the insolvent. The amount will be subject to the provisions in the scheme for deductions by the Provident Fund Commissioner in favour of the employers as well as other parties.

3. In this connection, it is necessary to refer to Clause 69 of the scheme which relates to the liability of the Provident Fund Commissioner to pay over the amount of the provident fund to the person to whose credit it stands with him. It is also relevant in this connection to refer to Ss. 17 and 52 of the Presidency-towns Insolvency Act which deal with the question of effect of the order of adjudication and the description of the insolvent's property divisible amongst creditors. Section 17 provides that

'on the making of an order of adjudication, the property of the insolvent wherever situate shall vest in the Official Assignee and shall become divisible amongst his creditors ...'

4. It also provides that after the order of adjudication

'... no creditor to whom the insolvent is indebted in respect of any debt provable in insolvency shall, during the tendency of the insolvency proceedings, have any remedy against the property of the insolvent in respect of the debt ...'

5. Under S. 52(2), the property of the insolvent divisible amongst his creditors is mentioned as follows :

'(a) all such property as may belong to or be vested in the insolvent at the commencement of the insolvency or may be acquired by or devolve on him before his discharge; '.

6. The rest of the provisions in Sub-section (2) of S. 52 are not relevant. Having regard to the provisions in Ss. 17 and 52, it is obvious that all kinds of properties belonging to the insolvent must vest in the Official Assignee. Even 'after-acquired' properties must vest in the Official Assignee. The question is as to in what manner these provisions in the Presidency-towns Insolvency Act have been affected by reason of the provisions in S. 10 of the Employees' Provident Funds Act. In this connexion, Clause 69 of the Provident Fund Scheme relating to circumstances in which accumulations in the fund are payable to a member must be considered. The relevant part of this clause provides that a member may withdraw the full amount standing to his credit in the fund on retirement from service after attaining the age of 55 years. Sub-clause (2) deals with the liability of the Provident Fund Commissioner to make payment of the fund and the right of the member to recover the same even when the member has not attained the age of 55 and has not retired. The substance of the relevant provision in this sub-section is that a member who has resigned and/or retired prior to his age of 55 and/or has not been employed in any establishment to which the Act applies for a continuous period of not less than six months is entitled to withdraw the amount standing to his credit, subject, however, to the deductions which are all in detail referred to in Sub-clause (3) of Cl 69. It appears to me that the true effect of the provisions in S. 10 of the Act is that in so far as certain amounts are liable to be deducted and forfeited under the Provident Fund Commissioner and in so far as the amount of the fund is not payable to a member who becomes insolvent, the Official Assignee can have no claim of any kind against the Provident Fund Commissioner. The provision in S. 10 that the Official Assignee shall not be entitled to have any claim on any amount of provident fund does not have the effect of providing that the fund which is under the scheme liable to be withdrawn and is payable by the Provident Fund Commissioner to an insolvent-member does not vest in the Official Assignee under S. 17 and does not form part of the property divisible amongst the creditors under S. 52(2). The only effect of the provisions in S. 10 is that the rights of the Provident Fund Commissioner to make deductions and other rights of third parties in respect of the funds in his hands as provided in the scheme made under the Act are not liable to be affected by vesting of the property of the insolvent-member in the Official Assignee. The contention made on behalf of the debtor must, therefore, fail.

7. The notice of motion is dismissed with costs.

8. The appellant appealed.

9. II

10. Per Chainani, C.J. :- The appellant was formerly employed in Killick Nixon & Co., Ltd., Bombay. They had established a provident fund for the benefit of their employees. The appellant used to contribute to that fund. In 1962 the Employees' provident Funds Act, 1952, hereinafter referred to as the Act, was made applicable to the establishment of Killick Nixon & Co., Ltd. The appellant then became a member of the fund established under the scheme framed under the Act. Under Sub-section (2) of S. 15, the accumulations in the provident fund of his employers became liable to be transferred to the fund established under the provisions of the Act. The appellant retired from service in the beginning of 1964. On June 16, 1964, he was adjudicated insolvent.

11. The Official Assignee then addressed letters to the Regional Provident Fund Commissioner and also to the appellant's ex-employers asking them not to pay to the appellant the amounts lying to his credit in his provident fund account. The appellant then took out a notice of motion, in which prayer (c) was as follows;

'(c) That the Official Assignee may be directed to withdraw his letters to the ex-employers of the insolvent and the Provident Fund Commissioner requesting them to detain the insolvent's provident fund, and he may be further directed not to write any further letters in order to deprive the insolvent of his provident fund.'

12. This motion was dismissed by Justice Sri K. K. Desai. Against the order made by him the present appeal has been filed.

13. Sub-section (1) of S. 10 of the Employees' Provident Funds Act is in the following terms :

'The amount standing to the credit of any member in the fund or of any exempted employee in a provident fund shall not in any way be capable of being assigned or charged and shall not be liable to attachment under any decree or order of any Court in respect of any debt or exempted employee, and neither the Official Assignee appointed under the Provincial Insolvency Act, 1920, shall be entitled to or have any claim on, any such amount.'

14. The latter part of this sub-section provides that the Official Assignee appointed under the Presidency-towns Insolvency Act, 1909, shall not be entitled to or have any claim on the amount standing to the credit of the Presidency-towns Insolvency Act in this sub-section makes it clear that when the legislature enacted this provision, it was aware of the provisions of the Presidency-towns Insolvency Act, under S. 17 of which on the making of an order of adjudication, the property of the insolvent wherever situate vests in the Official Assignee. Notwithstanding that provision, the legislature has specifically provided that the Official Assignee shall have no title to or any claim on the amount standing to the credit of the insolvent in the provident fund. The intention of the legislature is, therefore, clear and that is this sub-section should override the provisions of the Presidency-towns Insolvency Act. It follows that so long as the amount stands to the credit of the insolvent in the fund, that is, so long as it is lying with the Regional Provident Fund Commissioner and has not been paid to the insolvent, the amount does not vest in the Official Assignee and he cannot lay any claim to it. The immunity given by Sub-section (1) of S. 10 will, however, not continue after the amount has been paid to the insolvent - see Bonjour v. Official Assignee, Madras [A.I.R. 1956 Mad. 491].

15. The learned Judge has referred to Sub-section (3) of S. 69, which provides for certain percentages of the employer's contribution and interest thereon being forfeited to the fund, when a member withdraws any amount under Sub-section (2) of this section. The learned Judge was inclined to hold that Sub-section (1) of S. 10 applies only to those amounts which are liable to be deducted and forfeited under the provisions of the Act and which not being payable to the insolvent cannot vest in the Official Assignee. With respect, it seems to us that the view taken by the learned Judge on this point is not correct. The amounts, which have to be deducted from the sum standing to the credit of a member in the fund or which are liable to be forfeited under the provisions of the Act, are not payable to the member. As he is not entitled to them, they cannot be attached under any decree or order of any Court, in respect of any debt or liability incurred by him. No special provision in regard to such amounts was, therefore, necessary. The object underlying Sub-section (1) of S. 10 appears to be much wider. One of the purposes of a provident fund is to make some provision for the families of the employees. The legislature, therefore, appears to have provided by S. 10 that the amount standing to the credit of a subscriber in the provident fund shall not be available to his creditors.

16. We, therefore, allow the appeal, set aside the order made by the learned Judge dismissing the notice of motion taken out by the appellant in so far as prayer (c) in the notice of motion is concerned and make an order in terms of prayer (c) in the notice of motion dated July 2, 1964.

17. The appellant should get his costs of the appeal from respondent 2.


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