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Regional Provident Fund Commissioner Vs. Official Liquidator - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtAllahabad High Court
Decided On
Case NumberCompany Application No. 55 of 1967
Judge
Reported inAIR1968All591; [1969(18)FLR197]; (1969)ILLJ811All
ActsCompanies Act, 1956 - Sections 530 and 530(1); Employees' Provident Funds Act, 1952 - Sections 5
AppellantRegional Provident Fund Commissioner
RespondentOfficial Liquidator
Appellant AdvocateJ.N. Tewari, Adv.
Respondent AdvocateParty in person
DispositionAppeal allowed
Excerpt:
- .....this is an appeal under section 164 of the companies (court) rules, 1959, against the order of the official liquidator dated september 27, 1967, allowing the claim of the regional provident fund commissioner, u.p., for rs. 1,445.24p. against the pipraich sugar mills ltd. in liquidation. the official liquidator, however, treated the claim as an ordinary claim and did not give it the preference which, it is contended for the appellant, the claimant is entitled to receive.2. the appellant, the regional provident fund commissioner, relies on section 11 of the employees' provident funds act, 1952, which provides,inter alia, that where an employer is a company under liquidation, the contributions to be made by the employer to the provident fund ' are to be paid in priority to all other debts.....
Judgment:

M.H. Beg, J.

1. This is an appeal under Section 164 of the Companies (Court) Rules, 1959, against the order of the official liquidator dated September 27, 1967, allowing the claim of the Regional Provident Fund Commissioner, U.P., for Rs. 1,445.24P. against the Pipraich Sugar Mills Ltd. in liquidation. The official liquidator, however, treated the claim as an ordinary claim and did not give it the preference which, it is contended for the appellant, the claimant is entitled to receive.

2. The appellant, the Regional Provident Fund Commissioner, relies on Section 11 of the Employees' Provident Funds Act, 1952, which provides,inter alia, that where an employer is a company under liquidation, the contributions to be made by the employer to the provident fund ' are to be paid in priority to all other debts in the distribution of...the assets of the company being wound up...' The only reply put forward was that Section 530 of the Companies Act of 1956 (this corresponds to Section 230 of the Companies Act of 1913), which lists the debts to be given priority over other claims, contains the following entry under Section 530(1)(f): ' All sums due to any employee from a provident fund, a pension fund, a gratuity fund or any other fund for the welfare of the employees, maintained by the company '. It is urged that this provision does not specifically mention any liability which has accrued in the course of winding up. I do not find any force in this objection. The liability is provided for in fairly general terms in respect of all sums due to any employee from a provident fund, a pension fund, a gratuity fund or any other fund for the welfare of the employees. The fund has to be maintained under the provisions of Section 5 of the Employees' Provident Funds Act, 1952. A contribution due to it is, therefore, a debt entitled to priority within the meaning of Section 530 of the Companies Act.

3. Another objection put forward was that Rule 147 of the Companies (Court) Rules, 1959, provides for the form in which the creditors of the company are to prove their debts or claims. In this connection reference is made to Form 66 where it is mentioned that 'if the claim is made as a preferential claim it must be so mentioned and set out the grounds on which the preference is claimed'. Form 66 is actually mentioned in Rule 151 and not in Rule 147. Rule 151 provides that the affidavit in proof of the claim shall be in Form 66. The actual affidavit in support of the claim of the appellant in the present case states that the amount is due under the provisions of the Employees' Provident Funds Act, 1952. It does not specifically mention that the amount due is entitled to priority under the provisions of the Employees' Provident Funds Act or under the Companies Act. This, however, is a mere technical objection which could not debar the claim for priority advanced by the appellant. The priority is to be given under the mandatory provisions of Section 530 of the Companies Act, 1956, by the official liquidator. However, as the claim was not set out expressly as a claim which had priority, the official liquidator is right in contending that he had no opportunity to consider this aspect. Therefore, no costs of this appeal can be allowed.

4. The result is that I allow this appeal and direct that the claim of the appellant will be treated as a preferential claim within the meaning of Section 530 of the Indian Companies Act, 1956. The order of the official liquidator is modified to that extent. I, however, make no order as to costs. A copy of this order may be given to the official liquidator free of cost.


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