JUDGMENT B.K. Roy and P.K. Jain, JJ.
1. The petitioners have come up with a prayer to issue a writ of mandamus commanding the respondents not to transfer or auction the properties of petitioner No. 1 without first assessing their value through a Government approved valuer and ascertaining accounting and adjusting value of the transfers already made by the respondent Nos. 10 and 11. On their prayer vide order dated 12.7.1995, the Court passed an interim order staying auction of the properties until further orders.
2. According to the petitioners, petitioner No. 2 and respondent Nos. 6 to 8 are partners of petitioner No. 1. M/s. Balaji Oil and Dal Mill, which is a partnership firm. On an application filed by the firm, the U. P. Financial Corporation sanctioned a loan of Rs. 10.35 lacs though the firm received Rs. 10.03 lacs only. The firm suffered loss resulting in institution of Insolvency Case No. 2 of 1991 filed by respondent Nos. 7 and 8 and Insolvency Case No. 3 of 1991 filed by petitioner No. 2 and respondent No. 6. Both cases are pending in the Court of Insolvency/Civil Judge, Etah who appointed respondent No. 10 Hari Om Verma (who appears to be husband of respondent No. 8 as also stated by Sri Paul, learned counsel for the petitioner] to look after the properties of the firm and save it from recovery of electrical dues. Subsequently in place of respondent No. 10, respondent No. 1 1 was appointed to look after the properties. After some time respondent No. 11 was also removed and respondent No. 10 resumed control and custody of the firm and his of nefarious activities to the utter disadvantage of the firm. Petitioner No. 2 lodged a first information report on 15.3.1993 against him, which was registered as Case Crime No. 182/93 police station Sahawar, district Etah under Section 406/411, I.P.C. He moved this Court under Section 482, Cr. P.C. in a Criminal Misc. Application and managed stay of his arrest. Respondent No. 10 in collusion with respondent No. 9 (Insolvency Judge/Civil Judge, Etah) is continuing to mint money whereas petitioner No. 2 is running from pillar to post for redressal of his grievances, the action of the respondents is calculated to auction/dispose of the properties of the petitioner No. 1 which are manifestly erroneous in law, arbitrary, discriminatory, mala fide, perverse and without jurisdiction and they are wilfully violating the mandatory provision of Section 29 of the State Financial Corporation Act, 1951 even though the petitioners and respondent Nos. 6 to 8 were and are still agreeable to repay the loan taken from U. P. Financial Corporation.
3. In the counter-affidavit, filed on behalf of respondent Nos. 2 and 3, it has been stated, inter alia, that vide an application dated 30.11.1987 the firm applied for grant of loan of Rs. 15.45 lacs for setting up an Oil and Dal Mill ; the Corporation, sanctioned a term loan of Rs. 10.20 lacks : after completion of the formalities, the loan agreement and hypothecation deed were executed and signed by all the partners of the firm and thereafter the Corporation disbursed a sum of Rs. 10,03,800 lacs in favour of petitioner No. 1, the litigations appear to be instituted collusively with an intention to escape from the liability of payment of the genuine dues of the Corporation ; the properties of the firm stand mortgaged with the Corporation which has its first charge over the entire assets of the petitioner No. 1 ; the petitioner No. 1 having defaulted in payment of its dues, the Corporation has a valuable right to realise them and had Initiated action for their realisation against the firm and its partners by issuing a recovery certificate in the year 1992 as arrears of land revenue ; no action under Section 29 of the Act was initiated against the petitioner firm and misleading and confused statements have been made for the purpose of obtaining an order from this Court, a sum of Rs. 19,334.80 was sought to be recovered towards electrical dues and for that purpose respondent No. 5 has attached the properties of the petitioner No. 1 whereas the Corporation is interested and pursuing the recovery of its dues after giving full opportunity to repay its dues and accordingly the writ petition deserves to be dismissed with special cost.
4. In their rejoinder, the petitioners stated, inter alia, to the effect that they have no intention to escape from their liability of payment of the genuine dues of the Corporation and their concern is against the illegal transfers made by the Receivers respondent Nos. 10 and 11 and no Recovery Certificate has been issued by respondent No. 2 who without following the procedure has initiated auction proceedings.
5. Mr. B. B. Paul, the learned counsel for the petitioners contended that the Receiver respondent No. 10 is in collusion with the Insolvency Judge/Civil Judge, Etah and is out to squander the properties of the petitioner No. 1 and accordingly the reliefs prayed for by the petitioners be granted.
6. Mr. Khan, learned counsel appearing on behalf of the U. P. Financial Corporation, on the other hand, contended that the entire assets of petitioner No. 1 being the first charge of the Corporation, it has rightly taken steps to recover its loan, subsidiary and interest. The Corporation is yet to take action under Section 29 of the Act. The Corporation has nothing to do with respondent No. 10 who incidently is none else than the husband of respondent No. 8. If the petitioners have any grievance against the Receiver respondent No. 10, they can move an application under Order XL, Rule 4, C.P.C. but the writ petition is thoroughly misconceived and is fit to be dismissed with exemplary cost. He also contended that the allegations of collusion of the Insolvency Judge/Civil Judge. Etah respondent No. 9 with the Receiver respondent No. 10 is not only vague but thoroughly misconceived and unfortunate and not supported by any document whatsoever except the self serving statements. The petitioners have not brought anything on record that against his appointment as Receiver, they ever moved higher up.
7. We find substance in the arguments of Mr. Khan and accept them. From the averments made, it is clear that loan was taken by petitioner No. 1 and/or its partners from the U. P. Financial Corporation. Mr. Paul could not show us that either the petitioners or any co-partner of petitioner No. 2 had obtained any injunction order restraining Financial Corporation from proceeding to realise its loan along with its interest which is the first charge. The Corporation cannot be infuncted also from realisation of its loan, etc. The Receiver has to aid the Financial Corporation in realisation of its statutory dues and cannot create any hindrance. The petitioners have not brought anything on the record to show that against the order of the appointment of respondent No. 10. the petitioners moved higher Court and got that order set aside. In this backdrop, we are of the view that petitioner or co-partners of petitioner No. 2 are not entitled to any relief whatsoever against the U. P. Financial Corporation as the Corporation intends to realise its dues which is public money and if they have got any grievance against the Receivers, they can ventilate under Order XL. Rule 4, C.P.C, against the Receiver and not through this writ petition.
8. Having gone through the entire records including the various orders passed earlier in this case, it is clear that the Bench at the time of issuing notice on 12th July, 1995 was not at all influenced by the assertions of the petitioners in regard to the collusion of respondent No. 9, the Insolvency Judge/Civil Judge, Etah with respondent No. 10 and thereby never issued any notice to respondent No. 9. The allegation of collusion of the Judicial Officer has been stated in para 12 of the writ petition which the petitioner No. 2 in his affidavit claims to be true to his personal knowledge. Except stating this, no particular has been mentioned by the petitioner No. 2 in this regard. 'Collusion' is synonimous with 'conspiracy'. It implies a secret deceitful agreement, for some evil/illegal purpose. It is welt-settled that in a writ petition not only facts are required to be pleaded but evidence in proof of such facts have to be annexed to it. It is equally well-settled that a general allegation of collusion implying some kind of fraud is not enough without particulars. No material whatsoever has been brought to our knowledge also during his submissions by Mr. Paul to show that the Insolvency Judge/Civil Judge, Etah was in collusion with respondent No. 10. The learned counsel should have been cautious in allowing this pleading to be incorporated in para 12 of the writ petition in absence of specific corroborative material. No application under Order XL, Rule 4. C.P.C. is claimed to have been filed by Mr. Paul for attaching the properties of the Receiver. Nor has any application filed under Order XL, Rule 1, C.P.C. for his removal and appointment of someone else in his place. It has also not been shown as to whether the petitioners moved in appeal against his reappointment as Receiver. The charge of collusion, therefore, is not only frivolous but also scandalous and contemptuous. This allegation is rejected.
9. In the result, this writ application is thoroughly misconceived and is hereby dismissed with special cost quantified to the tune of Rs. 5,000 which the petitioners are directed to pay to the U. P. Financial Corporation within three months from today failing which it will be open to the U. P. Financial Corporation to realise this cost in accordance with law. It goes without saying that the interim order passed earlier stands vacated automatically with the dismissal of this writ petition.
10. We also issue a notice against the petitioner No. 2 under Article 215 of the Constitution to show cause as to why for having made a contemptuous statement in para 12 against the Insolvency Judge/Civil Judge. Etah, he should not be held guilty of committal of criminal contempt and suitably punished. Cause if any by him to be shown by 14th May, 1998. This notice to be registered as a separate criminal contempt case against the petitioner No. 2 and he served on him through Sri Paul.