JUDGMENT :

G.S. Singhvi and V. Gopala Gowda, JJ.

1. These petitions are directed against order dated 7.4.2010 by which the Division Bench of the Bombay High Court dismissed the writ petitions filed by the petitioner for quashing the action taken by Assistant Provident Fund Commissioner and Recovery Officer under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (for short, 'the 1952 Act') for recovery of the provident fund dues. Shri M.Y. Deshmukh, learned Counsel for the petitioner argued that the Division Bench of the High Court committed an error by relying upon the judgment in Maharashtra State Co-operative Bank Limited v. Assistant Provident Fund Commissioner and Others 2009 (123) FLR 653 (SC) because the subject-matter of that case was an interlocutory order passed by the High Court permitting joint auction of the sugar bags which had been attached by the Provident Fund authorities. Learned Counsel emphasised that this Court should not have decided the issue relating to priority of the dues of the workers under Section 11(2) of the 1952 Act because the main petition was pending before the High Court. He then argued that the judgment in Maharashtra State Cooperative Bank Limited v. Assistant Provident Fund Commissioner and Others (supra) should be treated as per incuriam because while deciding the matter this Court did not consider the provisions of Sections 33Dand 3E of the Essential Commodities Act, 1955 (for short, 'the 1955 Act') and various clauses of the Sugarcane (Control) Order, 1966, which cast a duty upon the producer to pay price of sugarcane to the growers. He lastly argued that the petitioner is a scheduled bank and, therefore, its dues are recoverable in preference to the dues of provident fund.

1. In our opinion, there is no merit in the arguments of the learned Counsel and the special leave petitions are liable to be dismissed.

It is true that the subject-matter of the judgment in Maharashtra State Cooperative Bank Limited v. Assistant Provident Fund Commissioner and Others (supra) was an interlocutory order passed by the High Court. Shri Ashok H. Desai, learned Senior Counsel, who appeared on behalf of the petitioner made detailed arguments on the entitlement of the Assistant Provident Fund Commissioner to realize the dues of provident fund, etc., by disposing of the sugar bags pledged with the petitioner. This is evinced from paragraphs 13 and 14 of the judgment, which are extracted below:

13. Shri Ashok H. Desai, learned Senior Counsel appearing for the appellant assailed the impugned orders and argued that the sugar bags lying in the godowns of the Sugar Mills could not have been attached and sold at the instance of the Assistant Commissioner for realization of the dues of provident fund, etc. because the same had already been pledged with the appellant-Bank. Learned Senior Counsel relied upon the judgments of this Court in Karnataka Pawnbrokers (1965) 2 SCR 289. Asstt. v. State of Karnataka and Central Bank of India v. Siriguppa Sugars & Chemicals Ltd. and argued that even though under Section 11(2) of the Act, the amount due from an employer is treated as first charge on the assets of the establishment, the same cannot have priority or precedence over the dues of the appellant-Bank, the payment of which is secured by the deeds of pledge executed by the management of the Sugar Mills.

14. Shri Desai referred to various clauses of the deeds of pledge and submitted that for all practical purposes, the appellant-Bank had become the owner of the sugar bags and the Recovery Officer did not have the jurisdiction, power or authority to attach the same. Learned Senior Counsel emphasised that the term "assets" used in Section 11(2) of the Act means unencumbered property of the establishment and argued that as the sugar bags pledged with the appellant-Bank had become its property, the Recovery Officer was not entitled to attach the same for realising the dues of provident fund, etc. In support of t