- (1.) THE petitioner has filed this interlocutory application with a prayer that the present writ application be heard along with W.P. (C) No. 3651 of 2010. THE petitioner in W.P. No. 3651 of 2010 is one of the respondents in the present writ application. However, from the statements made in the instant interlocutory application and the submissions of the learned counsel for the petitioner, it appears that the subject matter of the present writ application is related to the issues raised in the other writ petition being W.P. (C) No. 3651 of 2010. Accordingly, let this application be listed along with W.P. ( C) No. 3651 of 2010 before the appropriate Bench. Hence, the aforesaid I.A. No. 2601 of 2011 stands disposed
(2.) LEARNED Senior Counsel, Mr. P. K. Prasad seeks permission to withdraw this writ application in order to raise all the issues of law available to the petitioner in the First Appeal pending before this Court in respect of the same subject matter arising out of Land Reference Case. With the aforesaid liberty, this writ petition stands dismissed as withdrawn. From the submission of the parties, it appears that the writ petition arises out of the mutation proceeding. The subject matter of the writ petition appears to be assigned to another Bench. Accordingly, let this application be placed before the appropriate Bench. Heard learned counsel for the parties. The petitioner has sought quashing of the notice dated 9th August, 2007 (Annexure-3) by which the petitioner has been asked to show cause as to why it should not be declared as deemed defaulter for non-payment of the lease rent payable to M/s. SBL Industries Limited Ranchi as outstanding liability and dues of M/s. SBL Industries Limited Ranchi to the E.P.F. Organization. The petitioner has also sought quashing of the notice of attachment dated 11 th April 2007 (Annexure-2) issued by the respondent no.4 Official Liquidator, Government of India, Ministry of Company Affairs. The petitioner is a tenant of M/s. SBL Industries Limited, whereupon it is liable to pay rent to the said Company. The E.P.F dues of SBL Industries Ltd. were outstanding against the Employees' Provident Fund Organization, for which a notice dated 6th August, 2003 was issued to the petitioner to remit the rental due to M/s. SBL Industries Limited, Ranchi in favour of E.P.F Organization (Annexure-1). Learned counsel for the petitioner submits by referring to paragraph 6 of the writ petition that the said notice was duly served and the rental amount for the period January, 2003 to June, 2004, were deposited by the petitioner. However, it is submitted that the dues thereafter which accrued on account of rental to M/s. SBL Industries Limited would not be remitted to the E.P.F Organization for reasons explained in the writ petition.
(3.) IN the meantime, the petitioner received an attachment notice dated 11th April, 2007 from the Deputy Official Liquidator, Delhi High Court, asking the petitioner to remit the rental due to M/s. SBL INdustries Limited with the office of Official Liquidator in connection with the said Company which has been ordered to be wound up under order dated 23rd January, 2006, passed by the High Court of Delhi. The petitioner was informed that under Section 456 of the Companies Act, 1956 all assets, properties etc. are deemed to be in custody of the Hon'ble High Court of Delhi from the date of winding up orders and are to be delivered/remitted to the official liquidator. Since as per application no. 273 of 2007, the petitioner is a tenant of the premises of M/s. SBL INdustries Limited, the rent due for the period January, 2005 to till date, were directed to be remitted within 15 days of receipt of this said letter. Learned counsel for the petitioner further submits that the petitioner-company thereafter remitted the rental dues payable to M/s. SBL INdustries Ltd. in favour of Deputy Official Liquidator, Delhi High Court. However, the petitioner, in the meantime, received the impugned notice dated 9th August, 2007 threatening him to be declared as deemed defaulter for failure to deposit rental of the said premises in favour of E.P.F Organization. The petitioner thereafter filed a show cause dated 13th August, 2007 before the Regional Provident Fund Commissioner and Recovery Officer, E.P.F. Organization, Ranchi, vide Annexure-5 bringing to his notice the aforesaid fact and requesting him not to treat as a deemed defaulter in the aforesaid circumstances, However, the rental for July, 2004 till December, 2004 was remitted by a Cheque in favour of E.P.F Organization. IN these circumstances, learned counsel for the petitioner submits that though the Respondents-E.P.F Organization may have a valid claim of priority of payment of contribution over other debts in respect of E.P.F dues even in respect of the company under liquidation, the proper course for the Respondents-EPF Organization is to move before the concerned Company Court where the winding up proceedings are pending for disbursal of the amount of liability due from M/s. SBL INdustries Limited.. Learned counsel for the Respondents E.P.F. Organization submits that under Section 11 of the Act of 1952, the organization has priority of payment of contribution over other debts even in cases where any employer is adjudicated insolvent or, being a company, an order for winding up is made. Learned counsel for the Respondents-EPF Organization also submits that the petitioner was himself in default in not making payments for the subsequent periods after June, 2004 till the notice of the Deputy Official Liquidator dated 11th April, 2007 by which the petitioner has been asked to remit the rental for the period January, 2005 onwards. The petitioner has not explained reasons for not remitting the said rental for the period before the notice dated 11th April, 2007 in favour of EPF. Organization. A counter affidavit has been filed on behalf of the Official Liquidator in which the stand has been taken that M/s. SBL Industries Ltd. is under liquidation by the order of the Hon'ble High Court of Delhi dated 23rd January, 2006 in Company Petition No. 321 of 2001 and the official liquidator has been appointed as its liquidator of the aforesaid company. It has been stated in the said affidavit that no suit or other legal proceedings shall be commenced, or if pending at the date of winding up order, shall be proceeded with against the company except by leave of the court and subject to the terms imposed. It is also submitted that the E.P.F. Organization has no right to attach the rent of the company in liquidation as once an order of winding up is passed, all the assets and properties of the company are vested with the official liquidator and all claims arising against the company in liquidation are to be dealt with in accordance with the provisions of Section 529, 529A and 530 of the Companies Act, 1956. However, it is stated in the affidavit of the official liquidator that the dues of the Provident Fund Organization if any are preferential in nature and the said respondent have to file their claim in form no. 66 provided in the Companies (Court) Rules 1959 as and when the claims are invited by the Hon'ble High Court of Delhi. In these circumstances it has been stated in affidavit that the EPF organization is not empowered to attach the rent payable to the company in liquidation.;