High Court Kerala High Court

M/S.Southern Paper Product vs The Employees’ Provident Fund on 21 August, 2008

Kerala High Court
M/S.Southern Paper Product vs The Employees’ Provident Fund on 21 August, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 10563 of 2007(G)


1. M/S.SOUTHERN PAPER PRODUCT,
                      ...  Petitioner

                        Vs



1. THE EMPLOYEES' PROVIDENT FUND
                       ...       Respondent

2. THE RECOVERY OFFICER, EMPLOYEES'

3. THE KERALA FINANCIAL CORPORATION,

4. M/S.PARAGON PACKS, REPRESENTED BY ITS

                For Petitioner  :SRI.SATHISH NINAN

                For Respondent  :SRI.L.MOHANAN, SC, KFC

The Hon'ble MR. Justice S.SIRI JAGAN

 Dated :21/08/2008

 O R D E R
                       S. SIRI JAGAN, J.
                ------------------------------------
                  W.P.(C)No.10563 OF 2007
              ----------------------------------------
              Dated this the 21st day of August, 2008

                           JUDGMENT

The 4th respondent borrowed money from the 3rd

respondent, Kerala Financial Corporation. The 4th respondent

defaulted repayment of the same to the 3rd respondent. At the

same time, the 4th respondent owed money to the Employees’

Provident Fund Organisation, the 1st respondent herein, for dues

under the Employees Provident Funds and Miscellaneous

Provisions Act. The 4th respondent had mortgaged their

properties in favour of the 3rd respondent as security for loan

amounts taken by them from the 3rd respondent. Despite the

same, the 1st respondent, under the provisions of the Employees’

Provident Funds and Miscellaneous Provisions Act, had priority of

charge over the properties of the 4th respondent for recovery of

amounts due from the 4th respondent under the Employees’

Provident Funds and Miscellaneous Provisions Act. It appears

that both the Provident Fund Organisation and the KFC were

mutually unaware of the dues from the 4th respondent to the

W.P.(c)No.10563/08 2

other. Without knowing the same, the 3rd respondent took

over the mortgaged properties under Section 29 of the State

Financial Corporation Act and the same was sold in public

auction. The petitioner herein purchased the same and they

paid the entire amount to the KFC. Now by Exts.P4 and P6,

respondents 1 and 2 have initiated proceedings against the

petitioner for recovery of the amounts due from the 4th

respondent to the Provident Fund Organisation as dues under

the Employees’ Provident Funds and Miscellaneous Provisions

Act. The petitioner is challenging Exts.P4 and P6.

2. According to the petitioner, what the Provident Fund

Organisation has, is only a right to enforce the statutory

charge on the property in question and that can still be

enforced against the sale consideration paid by the petitioner

to the KFC by directing the KFC to make over the proceeds of

the sale to the extent to satisfy the demand of the Provident

Fund Organisation. The petitioner, therefore, seeks the

following reliefs:

“i) Call for the records leading to Exhibits P4
and P6 and issue a writ in the nature of certiorari
quashing the same;

ii) issue a writ in the nature of mandamus or
any other appropriate writ, order or direction,

W.P.(c)No.10563/08 3

commanding the respondents 1 and 2 to demand the
outstanding towards provident fund dues and realise
the same from the Kerala Financial Corporation who
has auctioned the property to the petitioner for a
sum of Rs.20,30,000/-;

iii) Issue a writ in the nature of mandamus or
any other appropriate writ order or direction
declaring that in view of the firt charge of Employees
Provident Fund Organisation on the property
purchased by the petitioner, the sale conducted by
the Kerala Financial Corporation is subject to the said
charge and therefore only after adjusting the dues
outstanding to the provident fund the balance amount
loan can be appropriated by the Kerala Financial
Corporation and that no proceedings can be initiated
against the petitioner;”.

3. The Provident Fund Organisation would contend that

in so far as they have statutory charge over the properties

belonging to the 4th respondent for the dues under the

Employees’ Provident Funds and Miscellaneous Provisions Act,

the sale conducted by the KFC does not bind them and they

can still proceed against the property notwithstanding the sale

of the property by the KFC, to the petitioner. They would

therefore, submit that there is nothing wrong in Exts.P4 and

P6.

4. The learned Standing counsel for the KFC would

submit that they were not at any time made aware by the

W.P.(c)No.10563/08 4

Provident Fund Organisation regarding any amounts due from

the 4th respondent to the Provident Fund Organisation and

therefore, they are not liable to make over any money realised

by them by sale of the mortgaged properties to the Provident

Fund Organisation. He would further submit that the

Provident Fund Organisation has to proceed against the 4th

respondent for recovery of the amounts due.

After hearing all parties, I am not inclined to countenance

the contentions of either the KFC or the Provident Fund

Organisation. The petitioner is a bona fide purchaser of the

property. He was not made aware of any charge in respect of

the property in favour of the Provident Fund Organisation. In

any event, the Provident Fund Organisation’s claim is only for

enforcing the charge over the property, which can still be

enforced by proceeding against the sale consideration received

by the KFC. Since as between the KFC and the Provident Fund

Organisation, the Provident Fund Organisation has a better

claim having statutory charge over the property, the KFC is

bound to make over that part of the sale consideration

sufficient to satisfy the demand of the Provident Fund

Organisation for amounts due from the 4th respondent to them.

W.P.(c)No.10563/08 5

Therefore, it is for the Employees Provident Fund Organisation

to make a demand to the KFC to make over that much amount

from the sale consideration to the Provident Fund

Organisation. It would be totally inequitable to make the

petitioner liable for any further amounts in respect of the

property in question. Accordingly, I quash Exts.P4 and P6. I

declare that the petitioner or the property purchased by them

cannot now be subjected to any further proceedings by the

Employees Provident Fund Organisation or the KFC in so far as

they have paid the entire sale consideration to the KFC.

However, I make it clear that it would be open to the Provident

Fund Organisation to make their claim to the KFC for recovery

of the amounts sufficient to discharge the liability of the 4th

respondent from the sale consideration in the hands of the KFC

obtained by them, by sale of the property belonging to the 4th

respondent.

The writ petition is allowed as above.

S. SIRI JAGAN, JUDGE

Acd

W.P.(c)No.10563/08 6