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2018 (5) TMI 2173 - HC - Indian LawsSeeking a direction in favour of the applicant for payment of dues under the Employees Provident Fund & Miscellaneous Provisions Act, 1952 - priority of dues against the statutory as well non-statutory secured and non-secured debts including on assets subject to mortgage or pledge - HELD THAT:- In the present case, as already noted by this court, the OL invited claims on 23.01.2004. Thereafter the claims were processed and payments were released in favour of those whose claims were accepted by order dated 27.09.2005. Reference may be had to the said order dated 27.09.2005. The said order noted that there are 770 workmen who have lodged their claims before the OL. Total of these claims add up to Rs.5.04 crores. The court accepted that the claims of the worker would to the tune of Rs.3.40 crores. There were claims of three secured creditors, namely, Canara Bank, HFC and Essenda Finanze Pvt. Ltd. which were for Rs.374 lacs, Rs.120 lacs and Rs.4 lacs. Noting that the OL has Rs.3.86 crores, the court ordered distribution of the fund to the secured creditors and workers on pari passu basis in terms of Sections 529 and 529A of the Act. In the rejoinder that was filed by the applicant to the reply of the OL, the applicant has attached a copy of a communication dated 18.06.2004 which was allegedly sent to the OL. Unfortunately this document has been filed alongwith the rejoinder and the OL has not been able to respond to the same. There is also nothing to show that this document was served on the OL. It is further stated in the letter that the dues are likely to the tune of Rs.50 lacs, which are pending and are not deposited by the respondent company. As already noted, this letter was not in response to claims invited by the OL. Even if such a letter had been received by the OL, it cannot be a substitute for the statutory procedure which exist for inviting claims from the creditors of the respondent company. A liquidator has to give notice inviting creditors, who have not proved their debts. As per Rule 151, the affidavit proving a debt shall contain or refer to a statement of account and shall be in Form 66. The applicant is only entitled to the amount that is now left with the OL, namely, a sum of Rs. 5,76,162/- or about. The applicant cannot be permitted to disturb the position/steps which have been taken by this court way back in 2005. The applicant has merrily taken five years to file its first application attempting to prove its dues. Thereafter, the applicant had withdrawn the said application and has now filed the present application in 2015. In view of the settled legal position, the applicant would be entitled to only the amount now remaining with the OL. Application allowed.
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