Post-liquidation PF assessments and claims inadmissible under IBC Section 33(5); only pre-liquidation dues entertainable.

Mr. Man Mohan Gupta, Hon’ble Member (T)

Appearance:

For the Applicant : Ms. Darshana Baghel, Adv.

For the Respondent : Mr. Navin Khandelwal, Liquidator J U D G E M E N T

1. This Interlocutory Application is filed on 19.07.2024, under Section 60(5) of the Insolvency and Bankruptcy Code, 2016 (the IB Code, 2016), read with the National Company Law Tribunal Rules, 2016 (the NCLT Rules, 2016) by the Regional Provident Fund Commissioner, EPFO, Indore (the Applicant) against Mr Naveen Khandelwal (the Respondent), Liquidator of M/s Oxygen Lifeline Retail Pvt. Ltd. (the Corporate Debtor).

2. Through this present Application, the Applicant seeks following directions given below:

a) To direct the Respondent/Liquidator to allow the claim of the Applicant amounting to Rs. 1,12,82,232/- (Rupees One Crore Twelve Lakh Eighty- Two Thousand Two Hundred Thirty-Two only) as submitted vide claim dated 04.01.2024 and reminder dated 16.02.2024, together with further Date of Order: 07.01.2026 interest as this Adjudicating Authority may deem fit, and declare the same as enjoying first charge priority over all other dues of the Financial Creditor/Corporate Debtor.

b) To direct the Respondent/Liquidator to consider the Applicant's claim in priority in accordance with the provisions of the IBC, 2016 and the EPF & MP, 1952, and the IBBI (Liquidation Process) Regulations, 2016, if modify the approved Liquidation Process to incorporate the EPF claim and include the Applicant in the Stakeholders Consultation Committee.

c) To restrain the Respondent/Liquidator pending hearing and final disposal of this Application, assets valued at Rs. 1,12,82,232/- (Rupees One Crore Twelve Lakh Eighty-Two Thousand Two Hundred Thirty-Two only) and restrain distribution thereof to ensure satisfaction of the Applicant's claim.

d) Pass any further order(s) as this Tribunal deem fit and proper.

3. The Applicant’s case in brief is:

a) The Applicant submits that Shri Amit Jain, Regional Provident Fund Commissioner- II, Regional Office, Indore was duly authorised to file the present application vide authority letter.

(Copy of the letter of authority is annexed under ANNEXURE A1 of the Application.)

b) The Applicant submits that in IA No. 66 (MP) 2022 in CP (IB) 12 of

2021, this Adjudicating Authority, passed a liquidation order dated 22.09.2022 under Section 33 (2) of the IB Code, 2016 and appointed the Respondent as the Liquidator.

Date of Order: 07.01.2026 c) The Applicant submits that the Adjudicating Authority possesses territorial jurisdiction over the subject matter by virtue of the CD having its registered office situated at Indore, Madhya Pradesh, in accordance with Section 60(1) of the IBC, 2016.

d) The Applicant submits that the present IA is within limitation, as the PF claim was filed with the Liquidator on 04.01.2024 with reminder and no response received. Section 60(5) IBC imposes no limitation period.

e) The Applicant submits that the EPFO is a social security organization governed by its own Act, the EPF & MP Act, 1952. The Corporate Debtor/CD is covered under the EPF & MP Act, 1952 and allotted EPF Code No. MP/IND/MP/1464219. The CD was legally obligated to comply with the EPF & MP Act, 1952 and its Schemes by timely remitting dues and submitting returns since the date of inception.

f) The Applicant submits that the CD committed default in remitting Provident Fund and allied dues from February 2019 to November 2023. Consequently, proceedings under Sections 7A, 14B of the EPF & MP Act, 1952, were initiated to determine and recover the dues, damages & interest, and orders were passed under Section 7A dated 04.12.2023 of the EPF & MP Act, 1952 and thereaf