Page 1 of 6

IN THE NATIONAL COMPANY LAW TRIBUNAL

KOCHI BENCH

KOCHI

IA(IBC)/296/KOB/2022

IN

IBA/44/KOB/2019

(Under Rule 154 of NCLT Rules, 2016)

In the matter of:

Kaula Agro Foods Private Limited;

MEMO OF PARTIES:

REGIONAL PROVIDENT FUND COMMISSIONER-II (LEGAL) Employees

Provident Fund Organization, Regional Office, 36/685/A, Bhavishyanidhi

Bhavan, Kaloor, Kochi-17;

… Applicant

-Versus-

K.P DILEEP, Resolution Professional of M/s. Kaula Agro Foods Pvt. Ltd.,

Veluthedath House, Ponnurunni, Vyttila – 682 019.

… Respondent

Coram:

Shri P. Mohan Raj

:

Member (Judicial

Shri Satya Ranjan Prasad

:

Member (Technical)

Appearances (through video conferencing)

For Applicant

:

Mr. Sajeevkumar K Gopal,

Advocate

For Respondent

: Mr. Ahaan Mohan, Advocate

Mr. Dileep K.P, (RP)

Order reserved on: 30.11.2022

Order pronounced on: 23.12.2022

O R D E R

1. This IA has been filed under Rule 154 of the NCLT Rules, 2016 by

Regional Provident Fund Commissioner-II (EPFO), against the erstwhile

IN THE NATIONAL COMPANY LAW TRIBUNAL

KOCHI BENCH

IA(IBC)/296/KOB/2022 IN IBA/44/KOB/2019

In re: Kaula Agro Foods Private Limited.

Page 2 of 6

Resolution Professional of Kaula Agro Foods Pvt Ltd., the Corporate

Debtor (CD) now under the successful Resolution Applicant (RA) , seeking

to rectify the order dated 29-09-2020 in MA/96/KOB/2020 in IBA

44/KOB/2019 and to include the statutory claim of the EPFO towards

contribution, damage and interest as part of the resolution plan and to order

for release the EPFO Claim amount.

2. Kaula Agro Foods Pvt Ltd. was admitted to CIRP under a section 10

petition of IBC, 2016 vide order dated 03.12.2019. The Public

Announcement was made on 06.12.2019 and consequently vide order dated

29.09.2020, this Tribunal approved the Resolution Plan passed with 100%

voting of COC, and the successful Resolution Applicant Tolins Pure Foods

Pvt Ltd had taken over the Corporate Debtor.

3. The Case of the applicant is that the applicant on 22.08.2022 submitted a

claim to the erstwhile resolution professional claiming a sum of

Rs.31,39,298/- including principal, interest thereupon and penalty which is

due to the EPFO by the CD under EPF & MP Act, 1952. The Applicant

contends that the EPFO has got first charge over the assets of the CD and it

requires priority of payment over other debts under provisions of the EPF

Act. It is stated that the claim amount is outside the purview of the

liquidation estate and that the RP having had access to books was

dutybound to look into the books of accounts and claim of EPFO and settle

them in CIRP Process. It is stated that the payable amount due of CD to

ESI Rs. 2,38,874 made it to the list of operational debt but the EPFO

amount has been entered as NIL. It is stated that the EPFO, as the

proceedings were made aware submitted their claim on 22.08.2022 wherein

the respondent replied that the new management has already taken over the

CD and no claim has been submitted by EPFO during the CIRP and hence

is not maintainable. The Ld. Counsel for EPFO argued that the provisions

of EPF Act have overriding effect over IBC and the respondent ought to

IN THE NATIONAL COMPANY LAW TRIBUNAL

KOCHI BENCH

IA(IBC)/296/KOB/2022 IN IBA/44/KOB/2019

In re: Kaula Agro Foods Private Limited.

Page 3 of 6

have admitted the claim and is entitled for it even without submission of

any claims, which is not mandatory. It is stated that under section 36 of the

IBC, 2016 the amount due to EPFO is exempted claim from liquidation

estate and relies on judgement of Honourable Supreme Court in Sunil

Kumar Jain Vs Sundaresh Bhatt to state that dues of EPFO do not form part

of waterfall mechanism under the code.

4. The respondent has categorically denied all averments of the EPFO and

stated that per se the application under rule 154 is not maintainable as