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TMI Blog2019 (2) TMI 602X X X X Extracts X X X X X X X X Extracts X X X X ..... lant Organics Ltd (POL) was a sick industrial Company and duly registered with Board for Industrial & Financial Reconstruction (BIFR) as Case No.133/1998. BIFR order on 28.08.2008 approved the Modified Rehabilitation Scheme (MRS-08) in terms of Section 19(3) r/w 18(4) of SICA, 1985, under which a comprehensive package of reliefs and concessions were approved including merger of POL ( a sick Industrial Company under SICA, 1985) with SMS Pharmaceuticals Ltd. (Demerged Company/known as Unit V). Subsequently, this Unit No. V along with two other Units, i.e. Unit-I and Unit-IV demerged from SMS Pharmaceuticals Ltd (Demerged Company) into SMS Life Sciences India Ltd (Resulting Company) in pursuance of this Tribunal Order dated 15.05.2017 passed in CP (CAA) NO.7/230/232/HDB/2017, is the true owner of Unit No. V and the relief and concessions are part and parcel of the approved Scheme of Rehabilitation by Hon'ble BIFR. (2) It is averred that upon enactment of Insolvency and Bankruptcy Code (IBC) which came into effect on 01.11.2016 vide notification dated 28.05.2016, Section 4(b) of SICA Repeal Act, 2003 is substituted by Section 252 of IBC, 2016 and all proceedings pending before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Writ Petition pending on the file of this Court, ends of justice would be met if the Petitioner is permitted to make an application to the Central Board i.e. Central Provident Fund Commissioner-cum-Secretary of the Central Board, seeking waiver of penalty/damages, enclosing thereto a copy of the Modified Rehabilitation Scheme, approved by the BIFR. The said application shall be made within a period of one week from today. In case such an application shall be considered, in accordance with law; and orders passed thereupon, and communicated to the Petitioner. Till orders are passed and communicated as aforesaid, no coercive steps shall be taken against the petitioner to recover the penalty/damages. It is made clear that, in case the Petitioner does not submit the application within the aforesaid period of one week, it is open to Respondents 1 and 2 to take action in accordance with law". (8) As per the above orders of Hon'ble High Court SMS Pharmaceuticals Ltd (Transferee Company) filed an application/request letter dated 12.03.2014 to Central PF Commissioner-cum-Secretary of Central Board, EPFO, New Delhi and also the Central Board of Trustees, Secretary to the Govt. of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the financial implication and the impact on the general behaviour and tendency to default by citing various reasons. (4) It is the case of Respondents that since Petitioner has not paid the amount under recovery and Central Board of Trustees did not convey its decision of granting waiver of damages, action was initiated U/s 8B to 8G against the establishment for recovery of amount. (5) It is further contended that the Petitioner has so far not paid the amount under recovery and Central Board of Trustees has not conveyed its decision to grant waiver of damages and as such recovery action initiated under Section 8-B to 8-G against the establishment is continuing. 4. This Application is filed under Section 31(1) of Insolvency & Bankruptcy Code, 2016 by Applicant seeking certain directions to the Respondents herein. This Application is to be treated as reference to the Tribunal by virtue of Section 252 of IBC. The PCS for Applicant relied on the notification issued by Ministry of Home Affairs dated 24.05.2017 in SO No.1683 (E). The Central Government passed order under Section 242 (i) of IBC, which is called I&BC (Removal of Difficulties) Order, 2017. By virtue of this order, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) The liabilities, which are under litigation/appeal, on crystallization, after exercise of all the legal remedies available to the Company, shall be paid, over a period of four (4) years, on interest free basis. 7. The Petitioner has mainly relied on Clause 2 of 8.3 of the Scheme stated above. The contention of PCS, Petitioner has filed Petition before BIFR bearing MA No. 141/2014 along with other Applications before BIFR seeking necessary directions for implementation of the reliefs granted in the Scheme. MA No. 141/2014 was filed for necessary directions to the PF Authorities to extend the reliefs covered by the Scheme. For implementation of other reliefs, separate Applications were filed. 8. The PCS has filed the common order passed by BIFR in MA 141/2014 along with two other Applications. In so far as MA No. 141/2014 is concerned, BIFR directed PF Department to file a reply for the relief claimed by the Petitioner herein. When this Application was pending, SICA was repealed and it is substituted by the Eighth Schedule to the Code and per provisions of Section 252 of IBC that a reference to be made to the authority under IBC within 180 days from the date of abatement. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... because Scheme provides for consideration to waive penal damages, it does not mean that Petitioner accrued a right to claim relief. It doesn't mean that a right accrued to the Company and that it is mandatory for the PF Authorities to waive penal damages. The PF authorities may or may not accept the waiver. It all depends on examination of the particulars of the Company. 12. PCS for Petitioner relied on the order passed by BIFR dated 21.03.2011. The BIFR observed in the order that Company may approach BIFR in case any difficulty is faced by the Company in implementing the unimplemented provision of the sanctioned Scheme (MS -08). PCS further relied on the letter from Regional Provident Fund Commissioner-II to BIFR stating that the Company had paid the dues due up to 11/2013. Penal interest and penal damages are levied up to 12/2007. RPFC-II further confirmed in the letter that Company paid Provident Fund interest and only penal damages to be paid amounting to Rs. 7,52,424/-. The RPFC-II further requested BIFR to make provision in the Scheme for payment of money by the Company. 13. The PCS further relied on the copy of the attachment order issued by the Recovery Officer for a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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