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5.2 Learned senior counsel for the petitioner submitted that respondent No.2 ESI Corporation does not have any right in law to ask/compel the petitioner (purchaser of the property in question) to pay the dues payable by the erstwhile owner of the property in question, i.e. Eazy Slide Fastners Limited. Learned senior counsel for the petitioner submitted that the petitioner has purchased the property in question in auction sale and that, therefore, the petitioner is merely 'auction purchaser' and that, therefore, cannot be made liable to pay the dues of the erstwhile owner of the property in question. Learned advocate for the petitioner also contended that the auction sale of the property in question cannot be said to be transfer of the property as contemplated under Section Page 9 93A of the ESI Act and the sale would not come within the purview of section 93A of ESI Act. The said section 93A will apply in case of transfer by sale or gift or lease but not auction sale. Learned senior counsel for the petitioner also tried to assail the clause in the sale deed which obliges the petitioner to pay the dues payable by the erstwhile establishment, i.e. the said loanee company to the Excise Department and ESI Corporation. The learned senior counsel for the petitioner alleged that until the registered sale deed was executed, respondent No.1 Corporation had not informed the petitioner regarding the dues of Excise Department or respondent No.2 ESI Corporation.

(g) section 93A of ESI Act makes both, the employer and the transferee, jointly and severally liable to pay the dues and sub-section (2) of section 29 of SFC Act creates deeming fiction.

10. Respondent No.1 GSFC has claimed that it addressed a communication dated 20.11.2013 (which is challenged by the petitioner in present petition) in light of the letter dated 14.11.2013 forwarded by respondent No.2 ESIC asking it (i.e. respondent GSFC) to direct M/s. Ganesh Page 13 Trading Company, i.e. present petitioner to make payment of ESIC's dues to the tune of Rs.1,41,88,446/-. 10.1 Thus, according to the respondent No.1 GSFC, it has acted at the instance of respondent No.2 ESIC, whereas respondent No.2 ESIC has taken shelter under the provisions of Section 93A of the ESIC Act, to justify its action and the demand. The said Section 93A of ESIC Act reads thus:

Provided that the liability of the transferee shall be limited to the value of the assets obtained by him by such transfer."

11. The petitioner claims that action by respondent No.2 ESI Corporation under section 93A of he ESI Act is not justified or competent.

12. The said Section 93A of ESI Act, which came to be inserted with effect from 1.9.1975 by section 6 of Amendment Act No.38 of 1975, empowers ESI Corporation Page 14 to demand and recover from the employer and/or the transferee, the contribution due in respect of the factory or establishment which is transferred by the employer. 12.1 The said section 93A comes into operation when "employer" in relation to factory or establishment transfers such factory or establishment (in respect of which contribution is due) either wholly or in part and when such transfer is effected by way of sale or gift or lease or licence or "in any other manner" and in such cases both (i.e. the transferee and the employer) are, by virtue of the said section 93A, made jointly and severally liable to pay the dues of ESIC.

28. However, in light of the facts of present case it is not necessary to enter into the issue as to whether the Page 36 provision under Section 93A of ESI Act contemplates only voluntary action or it would also take in its fold involuntary action like auction sale etc., more particularly in view of the fact that the expression "in any manner whatsoever is used by legislature" and the expression "sale" is not restricted or qualified.

28.1 In present case it is noticed that the sale is made and effected by respondent No. 1 GSFC and that therefore the said sale and consequent transfer of the factory and premises in question to the petitioner does not fall within the purview of one of the requirements of the said Section 93A viz. transfer of factory / establishment by employer and consequently it will not attract Section 93A of the ESI Act and that therefore it is not necessary to examine, in present case, as to whether the said second requirement prescribed under the said Section 93A exists or not.