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TMI Blog2007 (11) TMI 408X X X X Extracts X X X X X X X X Extracts X X X X ..... an application (I.A. No. 16142 of 2007) seeking permission of the court to challenge the order dated 4-4-2007. After going through the application, we are of the opinion that the appellant should be given appropriate opportunity in this very appeal to challenge the order dated 4-4-2007. 3. From the records it would appear that the company petition was filed in the year 1997 and the company came under liquidation from the year 1998. The Official Liquidator was accordingly appointed to receive the assets, properties, accounts, etc., of the said company and was also required to work under the directions of this Court. 4. We are told that the property of the company was time and again disposed of and certain properties have been converted in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supported the submissions made by Shri Saraswat. 7. Shri Gupta, learned counsel for respondent No. 3, after taking us through the provisions contained in section 11(2) of the Provident Funds Act and section 446 (2)(d) of the Companies Act, submitted that the claims of the workers shall have the top priority and the same will have to be paid even before the claims of the secured creditors are settled. Shri Gupta also submitted that the Department is not making any claim against the company or the Official Liquidator in its official capacity but being a statutory body being obliged under the Provident Funds Act is making a demand to subserve the cause of the workers. 8. Shri Mahesh Goyal, learned counsel appearing for Mazdoor Congress howev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim or question has been arisen or arises or such application has been made or is made before or after the order of the winding up of the company. A fair reading and understanding of sub-section (2) of section 446 would make it clear that the same applies to the matter where certain suits have been filed or are likely to be filed. Section 446(2)(d) independent of everything does not confer any extra power to the Company Court to decide the priorities of any creditor. The right and entitlement of the creditors of the company are well described in section 529, the priorities are fixed under section 529A and section 530 of the Companies Act. Section 446 has nothing to do with the present dispute. For proper appreciation of the dispute it wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid in priority to all other debts. 13. It is indisputable that the right to recover the money is conferred upon the workmen so also on the secured creditors. The amount is to be distributed pari passu. After the claims of the secured creditors and workmen are satisfied and money is left then the money shall be paid in accordance with section 530 of the Companies Act. 14. Shri Gupta, learned counsel repeatedly submitted that the provisions of section 11(2) of the Provident Funds Act shall have an overriding effect over the provisions of the Companies Act, therefore, section 529A of the Companies Act would be subserving section 11(2) of the Provident Funds Act. 15. It is to be seen that the Provident Funds Act is of the year 1952 while th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sary to determine the purport and object for which the same was enacted. The Supreme Court further observed that only because the dues of the workmen and the debts due to the secured creditors are treated pari passu with each other, the same by itself, would not lead to the conclusion that the concept of inter se priorities amongst the secured creditors had thereby been intended to be given a total go by. The said judgment nowhere says that despite the intention of the Legislature and the mandate contained in the Companies Act the right of the workman would still have a priority over the dues claimed by the secured creditors. In the said matter the question before the Apex Court simply was that in accordance with section 48 of the Transfer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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