COMPANY APPEAL 10 OF 2023

Under Section 42 of Insolvency &

Bankruptcy Code, 2016

Employees Provident Fund Organisation

... Appellant

Vs.

Mr. Vijay Kumar Iyer

The Resolution Professional

…Respondents

INVP No.54 OF 2023

Edelweiss Assets Reconstruction

Company Limited

...Applicant

In the matter of In the matter of

C.P.(IB) No. 292/MB/2017

Edelweiss Assets Reconstruction

Company Limited

... Financial Creditor

Vs.

Bharti Defence and Infrastructure Limited

…Corporate Debtor

In CP (IB)292/MB-1/2017 Order delivered on: 12.03.2024 Coram:

Shri Prabhat Kumar Justice Shri V.G. Bisht Hon’ble Member (Technical) Hon’ble Member (Judicial)

Appearances:

For the Intervenor : Mr. Rohit Gupta a/w Mr.

Shreyansh Desai, Advocate For the Liquidator : Mr. Naman Kamdar, Advocate For the Respondent : Mr. Akshay Doctor, Advocate For the EPFO : None

ORDER

Per: Prabhat Kumar, Member (Technical)

1. This Company Appeal bearing IA No. 10 of 2023, is filed by through Employee Provident Fund Organisation in the Corporate Insolvency Resolution Process (CIRP) of M/s Bharati Defence and Infrastructure Private Limited (Corporate Debtor) seeking direction to Mr. Vijay Kumar V. Iyer, the Resolution Professional (Respondent) to accept the claim in respect of entire PF claim and categorize PF Interest and Damages along with PF contributions under Section 36(4)(a)(iii) of IBC as out of Liquidation Estate.

2. That M/s Bharti Defence and Infrastructures Limited bearing PF code no. MH/21069, MH/100507 and MH/103864 was unable to service its debt.

In CP (IB)292/MB-1/2017

2.1. M/s Bharti Defence and Infrastructures Limited has been covered under EPF & MP Act, 1952 vide PF code No MH/21069 with effect from 1 February 1979. With applicability of EPF & MP Act, 1952 to the Principal employer, PF Code No MH 100507 was allotted to M/s Bharati defense and Infrastructures Limited(Contractor) for reporting compliance of Contractual Employees. A separate PF Code No MH/103864 was allotted to M/s Dabhol Marine Services who was engaged with M/s Bharti Defence and Infrastructures Limited for providing Security services.

2.2. Applicant states that the corporate debtor M/s Bharti Defence and Infrastructures Limited defaulted in payment of Provident Fund, Pension and Insurance contributions under Section 6 of EPF & MP Act, 1952 (henceforth the Act). In the instant case, the Corporate Debtor failed to credit employees PF contribution amount to the fund. Therefore, at no fault of employees, they were denied their valuable right protected under the Employees' Provident Funds and Miscellaneous Provisions Act. The debt owed to the Provident Fund Commissioner is the debt owned by the employees. Therefore, the claim filed by Commissioner represents the claim of the employees and workmen in respect of their claim for provident fund.

2.3. That this Tribunal was pleased to admit the application filed by M/s. Edelweiss Asset Reconstruction Company Ltd (the Financial creditor) under section 7 of the IBC Code, for In CP (IB)292/MB-1/2017 initiation of Corporate Insolvency Resolution Process ("CIRP") of the Corporate Debtor vide its order dated 6th June 2017 (i.e. the "Insolvency Commencement Date" or "ICD") in application bearing No. CP No. 292/1 & BP/NCLT/MAH/2017. The public announcement as per Insolvency and Bankruptcy Code was issued on 12th June 2017 calling for submission of claims with IRP on or before 20th June 2017.

2.4. Pursuant to this the EPFO Regional office Kolhapur filed Provisional Claim of Rs 8,94,35,596/- by way of Affidavit with Shri Dhinal Shah (IRP) on 19.07.2017 and also RO Kolhapur had informed IRP that this claim was only provisional claim and Final claim will be filed shortly. Accordingly, on 30th Oct 2017 EPFO Regional office Kolhapur has filed claim of Rs. 36,75,86,820/- towards dues, damages and Interest with IRP.

2.5. Later on the said establishment has gone under liquidation and Shri Vijaykumar V. lyer has been appointed as liquidator. The public announcement as per Insolvency and Bankruptcy Code (In Liquidat