( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 2859 OF 2009 WITH CIVIL APPLICATION NO. 4354 OF 2010 AND CIVIL APPLICATION NO. 4355 OF 2010 State Bank of India .. Appellant [original plaintiff] Versus Ramesh Baburao Bodhane and Anr. .. Respondents [original respondent] Shri P.B. Paithankar, Advocate for the appellant. Shri J.N. Singh, Advocate for the respondents. CORAM : P.R. BORKAR,J. DATED : 15.06.2010 P.C. :- 1. The first appeal is filed by the plaintiff being aggrieved by the judgment and decree passed by the 2nd Jt. Civil Judge, Senior Division, Latur, in Special Civil Suit No. 165 of 2007, on 26.06.2009, thereby the suit was dismissed with no costs. ( 2 ) 2. Briefly stated, present appellant, which is a nationalised bank, filed suit for recovery of Rs. 8,31,144/- from the respondents on the ground that respondent No.1 applied for loan on 21.08.1999 as “crop loan” and respondent No.2 has acted as guarantor. The loan of Rs. 3,75,000/- was sanctioned as per letter dated 27.08.1999. The agreed rate of interest was at the rate of 13.77%. There were other documents such as agreement of hypothecation, deed of guarantee and declaration to create charge against land Gat No. 127 of Killari. Since the amount of loan was not repaid as agreed, the suit was filed for recovery. 3. The respondents appeared and filed written statement at Exh.11. They raised contention that the suit was not filed by authorised person. The alleged terms and conditions of the loan were denied. It was denied that agreed rate of interest was 13.77%. The documents were also denied. So, it was a case of denial. 4. The Trial Court proceeded to decide the matter. In judgment para 8 it is observed that the plaintiff has ( 3 ) examined one witness by filing affidavit at Exh.14. Vijaykumar Dattatraya Takkar was examined on 29.12.2008. However, no one appeared for the plaintiff bank thereafter. Finally, the advocate for the defendant was only present on 16.04.2009 and was ready to cross-examine the witness of the plaintiff. In view of failure of the witness to remain present for cross-examination and in absence of additional evidence, it was held that there was no evidence led before the Court. It is further stated in para 9 of the judgment that thereafter the suit was posted for evidence of defendants and the defendants also failed to file any oral as well as documentary evidence and ultimately for want of evidence, the suit was dismissed. 5. In the appeal memo some serious allegations are made. It is stated in the appeal memo that already the advocate for the plaintiff had filed a complaint against the Presiding Officer for illegally and intentionally dismissing the suit by preparing false Roznama. It is also observed that though the witness of the bank and the advocate were present in the Court, the order of ‘no-cross’ was passed. Similarly, it is also alleged in para 8 of the appeal memo ( 4 ) that the order of ‘no argument’ was passed when the advocate for the appellant was present in the Court. Thus, the judgment and decree was passed without giving opportunity of leading evidence to the appellant to prove its case. In support of these allegations, the appellant bank has produced affidavit of Adv. Shri Hiras as Annexure “B” to Civil Application No. 4355 of 2010. As a counter to the same, respondent No.1 personally filed his affidavit denying allegations made regarding falsification of record and Roznama. 6. It is further argued by Adv. Shri J.N. Singh that the suit is not tenable in Civil Court as the Bank ought to have filed proceedings under the Recovery of Debts Due to Bank and Financial Institutions Act, 1993 (hereinafter referred to as the “said Act”). The learned advocate for the appellant Shri Paithankar stated that the total claim is of Rs. 8,31,144/- and it is less than Rs. 10,00,000/-. There would not be bar of Section 18 of the said Act. The learned advocate for the appellant pointed out Section 1 (4) of the said Act which makes it clear that the provisions of this Act shall not apply where the amount of debt due to any bank or ( 5 ) financial institution or to a consortium of banks or financial institutions is less than ten lakh rupees or such other amount, being not less than one lakh rupees, as the Central Government may, by notification specify. So, in the circumstances, the Civil Court has jurisdiction. 7. The learned advocate for the respondents Shri Singh also pointed out that present respondent No.1 has filed Writ Petition No. 2550 of 2010 for declaration that the respondent No.1 is entitled to benefit of Agricultural Debt Waiver Relief Scheme, 2008 and the said writ petition is pending. The learned advocate for the appellant Shri Paithankar stated that partially the benefit of Agricultural Debt Waiver Relief Scheme was extended to the petitioner as per his eligibility and the petitioner is not entitled to full exoneration or waiver of debt. This is a matter to be decided in the writ petition. However, pendency of the writ petition would not come in the way of disposal of the first appeal in as much as if the first appeal is not allowed and the suit is restored then the question would be whether the respondents are entitled to waiver of debt and if this appeal is dismissed, the writ petition itself will not survive as the cause of ( 6 ) action would not arise as the suit is already decided and that decision would be binding. 8. Considering the affidavit filed by the advocate for the plaintiff in the Trial Court and after considering the record and proceedings, in my opinion, in the interest of justice, it is necessary that opportunity should be given to the appellant bank to lead evidence to prove its case. 9. In the circumstances, the appeal is partly allowed. The judgment and decree passed by the Trial Court is set aside. The matter is remanded back to the Trial Court and the matter stands transferred to the Civil Judge, Senior Division, Latur, who shall restore the Special Civil Suit to the file of the Court, give liberty to both sides to lead evidence and then decide the matter afresh, subject to directions/order, if any, given in the writ petition. 10. The appellant bank shall pay an amount of Rs. 2000/- (Rupees Two Thousand Only) as costs of this appeal to the respondents. ( 7 ) . The first appeal is accordingly allowed and disposed of. 11. In view of disposal of the first appeal, Civil Application Nos. 4354 of 2010 and 4355 of 2010 do not survive. The Civil Applications stand disposed of. [P.R. BORKAR,J.] snk/2010/JUN10/fa2859.09