1 wp 6602.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 6602 OF 2011 M/s. Vijay Saree Center, Through its authorized signatory, Guru Nanak Market, Nanded. .. Petitioner Versus The Assistant Commissioner, Employees Provident Fund & Misc. Provisions Act, Town Centre Cidco, New Aurangabad .. Respondent Shri B. R. Kawre, Advocate for the Petitioner. Shri K. B. Choudhari, Advocate for the Respondent. WITH WRIT PETITION NO. 6606 OF 2011 M/s Vijay Cloth Center, Through its authorized signatory, Guru Nanak Market, Nanded. .. Petitioner Versus The Assistant Commissioner, Employees Provident Fund & Misc. Provisions Act, Town Centre Cidco, New Aurangabad .. Respondent 2 wp 6602.11 Shri B. R. Kawre, Advocate for the Petitioner. Shri K. B. Choudhari, Advocate for the Respondent. CORAM : S. V. GANGAPURWALA, J. DATE : 09TH NOVEMBER, 2011. ORAL JUDGMENT : . Rule. Rule returnable forthwith. With the consent of parties taken up for final hearing. 2. The proceedings U/Sec.7-A were taken up against the present petitioners. The petitioners were found liable to pay the amount. The petitioners assailed the said order before the Employees Provident Fund Appellate Tribunal, New Delhi. The petitioners were directed to deposit the amount of pre-deposit. Pursuant to the directions of the Court, an amount of Rs. 1,08,271/- was deposited by the petitioner M/s. Vijay Saree Center and an amount of Rs. 1,02,230/- was deposited by the petitioner M/s. Vijay Cloth Center. Subsequently, the appeals filed by the present petitioners came to be allowed by the Appellate Tribunal vide judgment dated 24th October, 2007. After the said appeals were allowed, the petitioners moved the respondent for refund of the amount deposited. The respondent did not refund the amount, as such, the present writ petitions are 3 wp 6602.11 filed. 3. Heard Shri Kawre, the learned counsel for petitioners and Shri K. B. Choudhari, the learned counsel for the respondent. 4. Shri Kawre, the learned counsel for petitioners submits that, the respondent could not have withheld the said amount once the Appellate Tribunal has set aside the judgment passed by the respondent U/Sec. 7-A of the Employees Provident Funds and Miscellaneous Provisions Act. The respondent has not challenged the said judgment and the said judgment has become final. In view of that, the petitioners are entitled for refund of the amount. Even after the judgment of the Appellate Tribunal the respondent has deliberately and willfully retained the said amount illegally with it. The petitioners are entitled for interest at mercantile rate i. e. 18% per annum. 5. Shri Choudhari, the learned counsel for the respondent submits that, though the appeals have been allowed by the Appellate Tribunal, no proper reasons are given. The respondent is contemplating challenge to the said judgment. Even one of the employee has filed an application stating that he has been illegally removed and the amount of provident fund is not been 4 wp 6602.11 paid to him. Taking into consideration all the aspects, the respondent did not refund the amount and the respondent is justified for the same. 6. It is not disputed that till this date the respondent has not assailed the judgment dated 24th October, 2007 passed by the Appellate Tribunal setting aside the order passed U/Sec. 7-A by the respondent. In such circumstances, the said judgment and order of the Appellate Tribunal has become final. In view of that, when liability does not subsist, then the respondent did not have any authority to retain the said amount atleast after the judgment was passed by the Appellate Tribunal. The respondent is bound by the judgment of the Appellate Tribunal, more particularly when he has not challenged the same. Four years have lapsed since the judgment of the Appellate Tribunal. The respondent could not justify the retention of the said amount by him. Said retention would not be proper and in consonance with the principals of justice, equity and good conscience. 7. As far as the claim of interest is concerned, the petitioners would not be entitled for any interest prior to the date of the judgment, as the deposit was pursuant to the orders of the Court. However, as the respondent was not justified in retaining the 5 wp 6602.11 amount after the judgment of Appellate Tribunal, I am inclined to saddle interest upon the respondent on the said amount from the date of the judgment of the Appellate Tribunal. However, as the transaction is not a commercial transaction, the petitioners would not be entitled to interest at the rate of 18% per annum. 8. In the result I pass the following order. A. The writ petitions are allowed. B. The respondent is directed to refund the amount to the petitioners. C. The respondent shall refund an amount of Rs. 1,08,271/- to the petitioner M/s. Vijay Saree Center with interest at the rate of 6% per annum from 24th October, 2007 till the date of payment. D. The respondent shall refund an amount of Rs. 1,02,230/- to the petitioner M/s. Vijay Cloth Center with interest at the rate of 6% per annum from 24th October, 2007 till the date of payment. E. The payment shall be made within a period of two (2) 6 wp 6602.11 months from today. F. Rule is accordingly made absolute in above terms, however, with no order as to costs of the present petitions. Sd/- [ S. V. GANGAPURWALA, J. ] bsb/Nov. 11