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TMI Blog2021 (12) TMI 1055X X X X Extracts X X X X X X X X Extracts X X X X ..... as (Advocate) For the Respondent : Shri. Joseph Kodianthara, (Senior Advocate) ORDER 1. These appeals have been filed by the Petitioners/Appellants who were workmen/ employees of Excel Glasses Limited under Section 42 of Insolvency & Bankruptcy Code, 2016 (hereinafter referred as Code), along with a petition to condone the delay, aggrieved by the decision of the liquidator in the Claims of Workmen/ Employees of Excel Glasses Limited. The brief facts are: - 2. An application has been filed under Section 7 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the "Code'") read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 against the Corporate Debtor (Excel Glasses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of, the respondent published a modified list of stakeholders on the website of the subject Company. Subsequently the modified list of stakeholders-workmen/Employees published by the Respondent and the Respondent. However, he failed to appreciate the claims of the appellants. 4. The claim amounts which included gratuity etc. were never paid to them till 21.10.2019, the date on which order directing liquidation of the subject Company was passed by this Tribunal. Therefore, the Appeals were filed by the Appellants. Brief description of claim of the appellants: CA(IBC)/01/KOB/2021 The appellant Joseph K. J. stated that he was a Workman of the Corporate Debtor from 23.02.1976 for about four decades. On seeing the Public Announcement, he had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... came to know that an amount of Rs. 2,47,273/- has only been admitted by the respondent. CA(IBC)/04/KOB/2021 The appellant James P.V. stated that he was a Packer of the Corporate Debtor from 03.12.1974 for about four decades. On seeing the Public Announcement, he had submitted his claim in Form E on 18.11.2019 to the respondent claiming amounts on various counts such as salary arrears, bonus, lay off compensation, closure/ retrenchment compensation, and notice pay and gratuity. Thereafter, nothing was heard from Respondent. His total claim amount is Rs. 3,97,882/- [Rs. 2,39,905/- (Gratuity Payable) + Rs. 1,33,947/-(interest @ 8% per annum till liquidation order + Rs. 24,330/- (Salary & Bonus)]. However, as per the modified list of "Detai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt claiming amount on various counts such as salary arrears, bonus, lay off compensation, closure/ retrenchment compensation, and notice pay and gratuity. Upon receipt of the appellant's aforesaid claim, the respondent sought for production of certain documents and detail, in terms of Section 39 (2) of Code from the Appellant. Subsequently the Appellant submitted a revised claim and additional supporting documents. Thereafter, nothing was heard from the side of Respondent. His total claim amount is Rs. 1,45,172/-. However, as per the modified list of "Details of Claims of Workmen/ Employees" uploaded on the website of the subject company, the appellant came to know that an amount of Rs. 74,558/- has only been admitted by the respondent. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... records and the arguments advanced by the learned counsel for the appellants as well as the learned Senior Counsel for the respondent - Liquidator as gone through the extant provisions of the Code and Rules made thereunder. After hearing the arguments made by both parties through video conferencing and on verification of records it is found that the submission of the Respondent that he has not been provided with any order from the appropriate authority in connection with payment of gratuity etc. Since the Appellants have not produced any order of the Labour Court or such authorities the Liquidator on his own cannot decide on disputed liability of them. He can only act on the strength of crystalized claims. 7. We have also gone through the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 36: Liquidation estate (4) The following shall not be included in the liquidation estate assets and shall not be used for recovery in the liquidation: - (a) assets owned by a third party which are in possession of the corporate debtor, including- (i) assets held in trust for any third party; (ii) bailment contracts; (iii) all sums due to any workman or employee from the provident fund, the pension fund and the gratuity fund; 9. The above Section leads us to go through Section 53 of the Act which is as under: - Section 53: Distribution of assets. 53. (1) Notwithstanding anything to the contrary contained in any law enacted by the Parliament or any State Legislature for the time being in force, the proceeds from the sale o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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