1 W.P.No.4295.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. WRIT PETITION NO. 4295 OF 2010 M/s Supertech Forgings (India) Pvt Ltd., Bhosari, Pune. ... PETITIONER V E R S U S The Union of India, Through Secretary and others ... RESPONDENTS ... Mr.D.D.Pokharkar ,Advocate for Petitioner Mr. L.B.Choudhari,standing counsel of Respondent No.1. ... CORAM : V.R.KINGAONKAR, J. DATE : 6TH MAY, 2010. PER COURT : 1. Heard Counsel. 2. This petition is filed by the petitioner-company, who has taken Kada Sahakar Karkhana for running on annual rental basis. The Maharashtra State Co-Operative Bank leased out the said sugar factory to the petitioner- company under an agreement dated 22.12.2007. The Provident Fund Commissioner issued show cause notice to the petitioner as to why recovery of the arrears of provident fund payable to the workers be not effected by attachment of the properties of sugar factory. The 2 W.P.No.4295.10 petitioner submitted that the agreement between itself and the Maharashtra State Co-operative Bank Ltd. created liability only for a period between 2007 to 2010, and, therefore, prior liability can not be saddled on it. The petitioner sought immunity from the proceedings of recovery provident provident fund prior to December 2007. The petitioner also made representation that it had no objection to recover the amount from the rent payable to the Maharashtra State Co-operative Bank Ltd. 3. The Counsel would submit that the petitioner is only lessee and can not be made liable to pay arrears of the Provident Fund for the period before commencement of the lease. He invited my attention on certain observations in “Universal Pollution Control (I) P. Ltd Vs. Regional Provident Fund Commissioner and another” 2006(3) Mh.L.J. 831. A learned single Judge of this Court held that “Provident fund dues of one company cannot be recovered from another company”. The facts of the cited case are altogether different than the case at hand. There were two different companies having their different entities. The Provident Fund amount sought to be recovered from one of the company, which were payable 3 W.P.No.4295.10 by another company, merely on the ground that some of the Directors were common. The learned single Judge held that the “dues of one company can not be claimed from another company who has separate legal entity. The Division Bench of this Court in the case Indus Agro Products Vs. Union of India and others 2006 (5) Mh.L.J. 136 held that section 11(2) of the Employees Provident Funds and Miscellaneous Provisions Act,1952, creates first charge in respect of any amount due from the employee on account of employee or employer’s contribution. It is also held that in view of section 17-B of the Employee’s Provident Funds Act, the transferee could be also jointly and severally liable to discharge such liability. It is well settled that the liability to pay Provident Fund dues is required to be discharged by the employer or transferee. Subsequent transferee can not say that he will not be liable to pay dues pertaining to the period, prior to commencement of the lease. The respondents were not parties to the inter-se contract between the petitioner and Maharashtra State Co-operative Bank Ltd. The petitioner has not joined lessor as party to the petition. Considering well settled legal position there is no merit in this petition and as such same is dismissed. The petitioner is, however, 4 W.P.No.4295.10 at liberty to make representation to the Provident Fund Commissioner for allowing payments from the rent amount payable to the employer and the same may be considered. Sd/- ( V.R.KINGAONKAR ) JUDGE MTK