Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN WEDNESDAY, THE6H DAY OF NOVEMBER201315TH KARTHIKA, 1935 WP(C).No. 25182 of 2009 (P) ---------------------------- PETITIONER(S): -------------------------- THE TRAVANCORE RAYONS LIMITED, RAYONAPURAM, PERUMBAVOOR-683 543, ERNAKULAM DISTRICT REPRESENTED BY ITS, MANAGING DIRECTOR MR.AUGUSTINE JOSEPH. BY ADVS.SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.ANIL D. NAIR RESPONDENT(S): ---------------------------- 1. REGIONAL PROVIDENT FUND COMMISSIONER, EMPLOYEES PROVIDENT FUND ORGANISATION SUB REGIONAL OFFICE, BHAVISHYANIDHI BHAVAN, KALOOR KOCHI.
2. INDIAN OVERSEAS BANK, WILLINGDON- ISLAND BRANCH, XXIV/1557, INDIRAGANDHI MAIN ROAD WILLINGDON ISLAND, KOCHI-3. BY ADV. SRI.P.B.SURESH KUMAR, SC,I.O.BANK BY ADV. SRI.S.GOPAKUMARAN NAIR (SR.) BY ADV. SRI.M.CHANDRA BOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON0611-2013, ALONG WITH WPC. 24811/2010, WPC. 20320/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 25182 of 2009 (P) APPENDIX EXHIBITS P1- TRUE COPY OF THE ORDER
IN CMP NO.28542 OF 2002 IN OP.NO.16742 OF 2002 DATED166.2004 P2- TRUE COPY OF THE JUDGMENT
IN CP.NO.14 OF 2002 DATED412.2008 P3- TRUE COPY OF THE ORDER
IN CO.APPLN.NO.865 OF 2008 IN CP.NO.14/2002 DATED1812.2008 P4- TRUE COPY OF THE ORDER
IN CO.APPLN.NO.865/2008 IN CP.NO.14/2002 DATED201.2009 P5- TRUE COPY OF THE ORDER
IN CO.APPLN.NO.865/2008 IN CP.NO.14/2002 DATED17.2009 P6- TRUE COPY OF THE COMMUNICATION DATED248.2009 ISSUED BY THE2D RESPONDENT TO THE PETITIONER R1(a)- TRUE COPY OF THE LETTER DATED165.2013 FROM THE MANAGING DIRECTOR OF THE ESTABLISHMENT R1(b)- TRUE COPY OF THE COMPLAINT RECEIVED FROM SRI.T.GOPALAKRISHNAN, A FORMER EMPLOYEE OF THE ESTABLISHMENT //true copy// P.A.To Judge K.VINOD CHANDRAN, J - - - - - - - - - - - - - - - - - W.P.(C).Nos. 25182/2009, 24811/2010 & 20320/2012 - - - - - - - - - - - Dated this the 6th day of November, 2013 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT
All the three writ petitions are filed by a defunct company against which BIFR has also passed an order of winding up confirmed by the AIFR and now pending before the Company Court. Admittedly, the petitioner had dues to the respondent/Organisation. The respondent/Organisation had proceeded against the immovable properties and had also sold a portion of the immovable properties so attached by it. However, the dues have not been entirely satisfied. The respondent/Organisation issued show cause notice to the Managing Director as to why he should not be committed to the Civil Prison for failure to satisfy the demand made by the respondent/Organisation. Two such show cause notices were issued, which were challenged by the Company in W.P.(C). 24811 of 2010 as Ext.P11 and in W.P.(C).20320 of 2012 as Ext.P14. W.P.(C).25182 of 2009 is a writ petition filed against the attachment of Bank account of the petitioner Company. W.P.(C).NoS. 25182/2009, 24811/2010 & 20320/2012 2 2. While, the writ petitions came up for admission, there was an interim stay of the show cause notices issued by the respondent/Organisation and in the writ petition filed against the attachment of the Bank accounts, there were two interim orders permitting the petitioner to withdraw a total amount of Rs.15 Lakhs. As of now, it is submitted by the learned counsel appearing for the petitioner that there is remaining in the account an amount of Rs.5, 23,000/-.
3. I have heard Sri.Benny appearing for the petitioner Company and the learned Senior Counsel Sri.S.Gopakumaran Nair appearing for the respondent/Organisation. The primary contention raised on behalf of the respondent/Organisation is that the petitioner company being defunct, respondent/Organisation has to resort to all modes of recovery to collect the dues. It is also contended that by virtue of the stay orders issued in these writ petitions, the respondent/Organisation has been rendered helpless insofar as W.P.(C).NoS. 25182/2009, 24811/2010 & 20320/2012 3 proceeding against the movable and immovable properties of the petitioner. The learned counsel for the petitioner, per contra, placed before this Court a decision of the Division Bench of this Court reported in Ali v. Recovery Officer, E.P.F. Organisation (2007 LLR469 wherein this Court found that when other modes of recovery as provided are possible, arrest and detention of defaulter on the requisition of authorised officer is impermissible. On facts it is also to be noticed that the Managing Director who was issued with a show cause notice in W.P.(C).24811 of 2010 is no more in charge. The petitioner Company having been taken over by the Government of Kerala, an Officer of the KINFRA, a Corporation under the Government, was deputed as Managing Director. The show cause notice produced in W.P.(C).20320 of 2012 is against the said person.
4. Going by the facts as also the binding precedent, it is evident that the petitioner Company has assets, both movable and immovable against which the respondent/Organisation can validly proceed with and the show cause notices issued for W.P.(C).NoS. 25182/2009, 24811/2010 & 20320/2012 4 arrest and detention of persons at this point of time cannot be sustained. In such circumstances, W.P.(C).20320 of 2012 and W.P. (C).24811 of 2010 are allowed setting aside Exts.P14 and P11 respectively produced in the said writ petitions. However, the respondent Organisation shall be entitled to proceed against the properties, both movable and immovable, of the petitioner Company, in accordance with law. With respect to W.P.(C). 25182 of 2009, petitioner Company cannot have any further claims on the amounts remaining in the account. The writ petition hence stands dismissed again leaving liberty to the respondent/Organisation to proceed against the amounts remaining in the account of the petitioner Company. Sd/- K.VINOD CHANDRAN, Judge Mrcs