IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 23RD NOVEMBER 2011 / 2ND AGRAHAYANA 1933 CRP.No. 305 of 2007() --------------------- I.A.7260/06 IN OS.1051/2006 of II ADDL MUNSIFF'S COURT,TRIVANDRUM .................... REVN. PETITIONER(S): PETITIONER/DEFENDANTS ------------------------------------------ 1. THE REGIONAL PROVIDENT FUND COMMISSIONER EMPLOYEES PROVIDENT FUNDS, BHAVISHYA NIDHI BHAWAN, PATTOM, TRIVANDRUM. 2. K.PURUSHOTHAMAN PILLAI, RECOVERY OFFICER, EMPLOYEES PROVIDENT FUNDS, BHAVISHYA NIDHI BHAVAN, PATTOM, TRIVANDRUM. BY ADV. SMT.T.N.GIRIJA, SC,EPF ORGANISATION RESPONDENT(S): RESPONDENT/PLAINTIFF ----------------------------------- C.B.BALAKRISHNAN, S/O BHASKARAN NAIR, CHITHIRA, CHENTHY, PONGUMOODU, THIRUVANANTHAPURAM. ADV. SRI.THIRUMALA P.K.MANI FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/11/2011, THE COURT ON 23.11.2011 PASSED THE FOLLOWING: M.L.JOSEPH FRANCIS, J. ----------------------------------------------- C.R.P. No.305 of 2007 ----------------------------------------------- Dated 23rd November, 2011. O R D E R This Civil Revision Petition is filed by the petitioners/ defendants in I.A.7260/06 in O.S.1051/06 on the file of II Additional Munsiff's Court, Thiruvananthapuram. The respondent herein was the respondent/plaintiff in that I.A., which was filed by the defendants for hearing the question regarding the maintainability of the suit as preliminary issue. 2. The case of the revisions petitioners is briefly as follows : M/s.Kerala Cultural Organization Board, Thiruvananthapuram is an establishment covered under the Employees' Provident Funds & Miscellaneous Provisions Act, 1952 (for short, 'the Act'). At the time when the Act was first made applicable to the establishment, Sri.Chandrakumar was shown as owner of the establishment. Thereafter, on request made by the respondent for allotment of a separate code number to the establishment on the basis that the assets of the establishment has been transferred to him on 31.3.2000, a separate code number was allotted on condition that this will not affect the date of initial coverage. As the establishment CRP 305/07 2 was in arrears payable under the Act for the wage months 7/95 to 1/98 and 2/98 to 1/99 amounting to Rs.97,598.40, proceedings were initiated as per the Act for recovering the dues. Notice under Section 8B of the Act was issued to show cause why warrant of arrest should not be issued for non- payment of EPF dues. On request by respondents, time was granted upto 29.5.2006. The respondent, in the meanwhile filed O.S.No.1051/2006. 3. The defendants filed I.A.7260/06 to hear the question regarding maintainability of the suit as preliminary issue. The learned Munsiff, on considering that petition found that the learned counsel for the defendants could not point out any provisions in the Act to the effect that the suit is barred by limitation and that without any specific provision barring the jurisdiction, it is not possible to find that the court has no jurisdiction to entertain the suit. Against the order in I.A.7260/06, the petitioners/defendants filed this Civil Revision Petition. 4. Heard the learned counsel for revision petitioners. CRP 305/07 3 5. Learned counsel for the revision petitioners submitted that the establishment in question is a defaulter in remittance of contributions payable under the Act and the Schemes framed thereunder for the period 7/95 to 1/99 amounting to Rs.97,598.40 and in respect of which recovery certificates dated 3.5.99 and 6.4.2000 were issued by the authorized officer viz., the Regional Provident Fund Commissioner, Trivandrum as provided under Section 8B of the Act. As per Section 8G of the Act the provisions of Second and Third Schedules to the Income Tax Act, 1961 and the Income Tax (Certificate Proceedings) Rules, 1962, as in force from time to time shall apply with necessary modification as if the said provisions and the rules with regard to the arrears of the amount specified in Section 8 of the Act instead of the income tax provided that any reference in the said provisions and the rules to the 'assessee' shall be construed as a reference to an employer as defined in the Act. Rule 9 of the II Schedule of the Income Tax Act provides for a general bar to jurisdiction of civil courts except where fraud is alleged. This aspect was omitted CRP 305/07 4 to be noticed by the court below. 6. Learned counsel for the revision petitioners further submitted that jurisdiction of civil court is barred under Rule 9 of the Second Schedule to the Income Tax Act, which is made applicable in the matter of recovery of dues under the Act as per Section 8G thereof. 7. Learned counsel for the revision petitioners submitted that all the above contentions were not raised by the defendants before the court below by filing written statement. If the defendants have not filed written statement raising the above contentions, sufficient opportunity must be given to the defendants to file written statement raising all the above contentions. After filing the written statement, the learned Munsiff is directed to dispose of I.A.7260/06 afresh in the light of the contentions raised by the defendants with regard to the maintainability of the suit. 8. Accordingly, this Civil Revision Petition is allowed and the order in I.A.7260/06 in O.S.1051/06 on the file of II Additional Munsiff's Court, Thiruvananthapuram is set aside and CRP 305/07 5 remanded to that court for fresh disposal in accordance with law, considering the contentions of the defendants with regard to the maintainability of the suit raised in the written statement. There is no order as to costs. SD/- M.L.JOSEPH FRANCIS, JUDGE. tgs (True copy) P.S. to Judge.