ORDER
Asok Kumar Ganguly, J.
1. Heard learned counsel for the parties and considered the materials on record. This matter is being disposed of at the admission stage by passing the following order:
2. This writ petition has been filed, inter alia, with a prayer for issuance of a writ of mandamus restraining the Bihar State Financial Corporation (hereinafter called the said Corporation) from acting in furtherance of the notice issued under Sections 29 and 30 of the State Financial Corporations Act (hereinafter to be referred to as the said Act). There is also a subsidiary prayer to restrain the Officers of the said Corporation from, in any way, interfering with the running of the unit of the petitioner which is a hotel at Madhupur.
3. For the purpose of disposal of this writ petition, the following facts may be recorded :
The case of the petitioner, inter alia, is that with the technical support of civil engineer, a project report of the proposed Hotel Brosan at Madhupur (hereinafter called the said Hotel) was prepared by petitioner No. 2. The said Hotel was established on the plot of land which belonged to the mother of petitioner No. 2. Thereafter the said Hotel sought a term loan of Rs. 14.17 lacs from the said Corporation. The said prayer, though initially turned down, was ultimately granted by the respondent Corporation and a term loan of Rs. 10 lacs was granted on certain terms and conditions which were appended to the sanction letter. Thereafter the case of the petitioner is the said loan, had been increased to rupees thirteen lacs by the said Corporation. In the writ petition various facts have been stated alleging delay on the part of the said Corporation in not releasing the loan. Facts have also been stated about the non-acceptance of the proposal of the petitioner Hotel by the said Corporation in the matter of granting additional loan. In paragraph 63 of the writ petition, the petitioner has given details of the loan disbursed by the said Corporation and on its own showing the said amount comes to Rs. 10.46 lacs. In paragraph 65 of the writ petition, the petitioners have given details of the amount paid by them.
4. In the counter-affidavit filed by the said Corporation, it appears that an amount of Rs. 22,36,270.96 p. is due from the said Hotel and the said amount has been given on the basis of the calculation made up to 31st August, 1994.
5. In the rejoinder affidavit the petitioners have also admitted that up to 31st August, 1994 the amount which is due from them is about rupees eighteen lacs and odd. In the background of this admitted dues of rupees eighteen lacs of the said Corporation, the question is whether the said Corporation can issue the. notice in question which is impugned as Annexure-1 to this writ petition for the realisation of its dues. The said notice has been issued on 1 st February, 1990. Thereafter while the matter was heard in this Court, learned counsel appearing for the petitioners, in answer to the repeated querries of the Court, made it very clear that his clients are not in a position to pay any thing for the purpose of liquidating the dues of the Corporation. Therefore, the position remains that the admitted dues of the said Corporation for the staggering amount of about rupees twenty lacs are outstanding from the petitioners. It is further stated that after issuing the said notice under Sections 29 and 30 of the said Act dated 1st February, 1990, the said Corporation has also issued further notice dated 23rd November, 1994, as contained in Annexure-41 to this writ petition, informing the petitioners that the dues of the petitioner Hotel has gone up to Rs. 20.06 lacs and as such the petitioners are informed that the Corporation is now left with no option but to take over the physical possession of the mortgaged assets of the Unit under Section 29 of the said Act. In the said notice an opportunity was given to the petitioner Hotel to clear up the dues within 15 days from the date of the notice. As noted earlier no proposal for liquidating the said dues of the Corporation has been offered by the petitioners even before this Court.
6. Learned counsel appearing for the petitioners has placed reliance on the decision of the Supreme Court in the case of Mahesh Chandra v. Regional Manager, U.P. Financial Corporation reported in, AIR 1993 SC 935 : 1992 All LJ 1202 : 1992 AIR SCW 3629 and has contended that the said Corporation is acting mala fide in the matter. While saying so, learned counsel for the petitioners has placed reliance on paragraph 15 of the said judgment in the case of Mahesh Chandra (supra) and contended that the concept of mala fide, as indicated in paragraph 15 of the said judgment, has to be applied to the facts of the present case. On perusal of paragraph 15 of the said judgment, it appears that the Supreme Court has held “an action is mala fide if it is contrary to the purpose for which it was authorised to be exercised”. It goes without saying that when mala fide allegations are made in the writ petition, the particulars of such allegations must be furnished in the writ petition. Learned counsel for the petitioners has submitted that such particulars of mala fide have been given in paragraphs 72, 74, 75, 76, 77 and 78 of the writ petition. Even accepting the concept of mala fide as indicated in the aforesaid decision of the Supreme Court in the case of Mahesh Chandra (supra) this Court cannot come to the conclusion that the averments made in the writ petition, as stated above, amount to any averment of mala fide against the respondents. In that view of the matter, this Court is unable to come to the conclusion that the respondent Corporation is proceeding mala fide against the petitioners.
7. Learned counsel for the petitioners has placed reliance on certain judgments in order to contend that in case of a conflict between the previous judgment and the subsequent judgment of co-ordinate Benches of the Supreme Court, the decision in the previous judgment must be followed. This Court is unable to appreciate the relevance of this submission in the facts and circumstances of the present case inasmuch as no divergence of judicial opinion is reflected in the judgment of the Supreme Court in the case of Mahesh Chandra (supra) and the subsequent judgment of the Supreme Court in the case of U. P. Financial Corporation v. Ms. Gem Cap (India) Pvt. Ltd., reported in, AIR 1993 SC 1435: 1993 All LJ 515: 1993 AIR SCW 1189. In the subsequent judgment of the Supreme Court in the case of U.P. Financial Corporation (supra), the previous judgment of the Supreme Court in the case of Mahesh Chandra (supra) has been considered in paragraph 13 thereof. The question of divergence of judicial opinion, therefore, does not arise. In paragraphs 11 and 12 of the subsequent judgment in the case of U.P. Financial Corporation (supra), the Supreme Court held that in a matter between the Corporation and its debtor, a writ Court has no say except in two situations, namely, (i) where there is a statutory violation on the part of the Corporation; or (ii) where the Corporation acts unfairly i.e. unreasonably. In the context of the action of the Corporation under Sections 29 and 30 of the said Act, the Supreme Court has explained what can be an unfair and unreasonable act on the part of the Financial Corporation. This aspect has been further developed in a still recent judgment of the Supreme Court in the case of U.P. Financial Corporation v. Naini Oxygen and Acetylene Gas Limited reported in JT 1994 (7) SC page 551 and in paragraph 21 thereof the following observations have been made :
“However, we cannot lose sight of the fact that the Corporation is an independent autonomous statutory body having its own constitution and rules to abide by, and functions and obligations to discharge. As such, in the discharge of its functions, it is free to act according to its own light. The views it forms and the decisions it takes are on the basis of the information in its possession and the advice it receives and according to its own perspective and calculations. Unless its action is mala fide, even a wrong decision taken by it is not open to challenge. It is not for the courts or a third party to substitute its decision, however more prudent, commercial or business like it may be, for the decision of the Corporation. Hence, whatever the wisdom or the lack of it of the conduct of the Corporation, the same cannot be assailed for making the Corporation liable.”
8. This Court is, therefore, of the view that there is no scope for any divergence of judicial opinion in the aforesaid three decisions.
9. This Court is bound by the principles of law as elucidated in paragraph 21 of the latest judgment of the Supreme Court in the case of M / s. Naini Oxygen and Acetylene Gas Limited (supra) and holds that there is no scope for interference by this Court in its writ jurisdiction in the facts and circumstances of the case.
10. This Court further holds that there is no mala fide on the part of the respondent Corporation in proceeding to take steps for recovery of its loan from the petitioners under Sections 29 and 30 of the said Act,
11. This writ petition is thus dismissed. There will be no order as to cost.