* HON’BLE MR JUSTICE B. PRAKASH RAO AND *HON’BLE SRI JUSTICE R.KANTHA RAO + A.S.No. 1792 of 2000, A.S.No. 1793 of 2000, AND Cross Objections (SR)No. 56865 of 2000 % Date: 14-09-2009 # A.S.Nos.1792 and 1793 OF 2000 BETWEEN: Bank of India .. Appellant And M/s Vegi Venkateswara Rao and brothers And others .. Respondents Cross Objections (Sr) No.56865 of 2000 BETWEEN: M/s Vegi Venkateshwara Rao and brothers And others .. cross objectors And Bank of India .. Respondent ! Counsel for appellant: Sri S.Surya Prakash Rao ^ Counsel for respondents: Sri K.V.Satyanarayana, Sri V.Rajagopal Reddy, Sri Rama Rao Mavidi. < GIST: >HEAD NOTE: ? Cases referred: [1] AIR 2000 SC 2957 2 (2006) 5 SCC 72 3 AIR 1999 SC 1381 4 AIR 2000 SC 2671 THE HON’BLE MR JUSTICE B. PRAKASH RAO AND THE HON’BLE MR JUSTICE R. KANTHA RAO A.S.No. 1792 of 2000, A.S.No. 1793 of 2000, AND Cross Objections (SR)No. 56865 of 2000 DATE:14.09.2009 A.S.Nos.1792 and 1793 OF 2000 BETWEEN: Bank of India .. Appellant And M/s Vegi Venkateswara Rao and brothers And others .. Respondents Cross Objections (Sr) No.56865 of 2000 BETWEEN: M/s Vegi Venkateshwara Rao and brothers And others .. cross objectors And Bank of India .. Respondent THE HON’BLE MR JUSTICE B. PRAKASH RAO AND THE HON’BLE MR JUSTICE R. KANTHA RAO A.S.No. 1792 of 2000, A.S.No. 1793 of 2000, AND Cross Objections (SR)No. 56865 of 2000 COMMON JUDGMENT: (Per Hon’ble Sri Justice R.Kantha Rao,) A.S.No. 1792 of 2000 arises out of the judgment and decree dated 30.12.1999 (after remand) passed by the I Additional Senior Civil Judge, Visakhapatnam in O.S.No.307 of 1979. 2. A.S.No. 1793 of 2000 arises out of the judgment and decree dated 30.12.1999 (after remand) passed by the I Additional Senior Civil Judge, Visakhapatnam in O.S.No.116 of 1981. 3. For the sake of convenience, the State Bank of India, Branch Visakhapatnam will be referred as plaintiff and M/s. Vegi Venkateshwar Rao and Brothers etc. will be referred as defendants. 4. The plaintiff bank filed O.S.No.307 of 1979 before the trial Court for recovery of an amount of Rs.5,01,129.22 ps. from the defendants basing on the equitable mortgage dated 08.04.1970. 5. Whereas, the defendants filed O.S.No.116 of 1981 against the plaintiff bank for rendition of accounts, recovery of rent and for evicting the plaintiff bank. 6. The pecuniary value of O.S.No.307 of 1979 as on the date of institution is Rs.5,01,129.22 ps. and the pecuniary value of O.S.No.116 of 1981 as on the date of institution is Rs.8,95,700/-. 7. Both the suits were tried jointly and a common judgment dated 30.12.1999 was rendered by the learned trial Court. By its judgment, the learned trial Court adjusted the claim of the bank from the arrears of rent allegedly payable by the bank as tenant to the defendants and consequently dismissed O.S.No.307 of 1979 filed by the plaintiff bank and decreed the suit i.e. O.S.No.116 of 1981 filed by the defendants directing the bank to pay a sum of Rs.7,70,194/- with interest at 12% per annum. 8. Aggrieved by the said decree and judgment, the plaintiff filed A.S.No.226 of 1989 against O.S.No.116 of 1981 and the defendants filed A.S.No.324 of 1989 against O.S.No.307 of 1979 before this Court. A division bench of this Court on 19.09.1995 upon allowing C.M.P.No.3831 of 1993 filed by the plaintiff bank to receive some additional evidence, set aside the judgment and decree passed by the trial Court and remitted the matters back for fresh trial directing the trial Court to permit both parties to adduce further evidence and dispose of the suits afresh. 9. In pursuance thereof, the learned trial Court before which the plaintiff examined Pws.7 and 8 and marked Exs.A-64 to A-83 and the defendants examined DW-4 without marking any document, held that the defendants who availed loan from the bank are liable for the suit amount of Rs.5,01,129.22 ps. with interest @ 12% per annum and also held that the plaintiff bank was due in arrears of rent to the defendants and thereby adjusting the rentals allegedly due to the suit claim of the defendants and consequently dismissed the suit filed by the plaintiff bank and decreed the suit of the defendants for an amount of Rs.7,70,194/- with interest at 12% per annum and also costs. by its common judgment dated 30.12.1999. 10. Challenging the said decree and judgment, the plaintiff bank filed A.S.No.1792 of 2000 against O.S.No.307 of 1979 and A.S.No.1793 of 2000 against O.S.No.116 of 1981 before this Court. The defendants filed Cross Objections (SR) No. 56865 of 2000 in A.S.No.1792 of 2000 against O.S.No.307 of 1979. 11. Thus, both the appeals and the cross objections are now before us for consideration. 12. We have heard the learned counsel appearing for the plaintiff- bank/appellant and the defendants/respondents. 13. Primarily the issue of jurisdiction was raised for consideration and upon hearing both the learned counsel, we thought it fit to adjudicate upon the jurisdiction without going into the other rival contentions. 14. The point for determination which arises for consideration before us is that after the judgment and decree passed by the learned trial Court was set aside by this Court by adjudicating the appeals in A.S.Nos.226 of 1989 and 324 of 1989 on 19.05.1995 and remitting both the suits to the trial Court for fresh disposal with a direction to afford opportunity to both parties to adduce evidence, the subject matter of the dispute in both the suits being primarily with regard to jurisdiction whether the Tribunal under the Recovery of Debts due to banks and financial institutions Act, 1993 or the trial Court which is a civil Court has jurisdiction to adjudicate the dispute. 15. Section 1 of the Recovery of Debts due to banks and financial institutions Act, 1993 lays down that the Tribunal shall have jurisdiction where the debt due to the bank or financial institution is Rs.10 lakhs or more. Section 31 lays down that every suit or other proceeding pending in a Court immediately before the date of establishment of the Tribunal shall stand transferred to the Tribunal. 16. A bar is created under Section 18 excluding the jurisdiction of the Civil Courts in respect of all the matters which come under the purview of the Tribunal. Section 34 of the Act lays down that the Act of 1993 shall have overriding effect over the other enactments. 17. In the instant case, the learned trial Court passed a decree on 30.12.1999 in favour of the defendants for an amount of Rs.7,70,194/- with interest @ 12% per annum and costs directing the plaintiff bank to pay the same. The suit filed by the plaintiff was instituted in 1979, whereas the suit filed by the defendants was instituted in the year 1981. The judgment in the appeals in A.S.Nos.226 of 1989 and 324 of 1989 setting aside the judgment of the trial Court and remitting the suits back for disposal afresh by the trial Court was rendered on 19.09.1995 i.e. subsequent to the passing of the Act, 1993. Again after the remand, the trial Court passed the decree in both the suits on 30.12.1999 in favour of the defendants for an amount of Rs.7,70,194/-. 18. No doubt, according to proviso of sub-section 1 of Section 37, the provisions relating to transfer shall have no application to any appeal pending before any Court. However, the crucial question is when once the matter is remanded by the appellate Court setting aside the decree passed by the trial Court, the original suit automatically revives. In such an event, the further question will be about the pecuniary value of the suit for the purpose of jurisdiction after the order of remand passed by the appellate Court by setting aside the decree passed by the trial Court. 19. In UNITED BANK OF INDIA, CALCUTTA v. ABHIJIT TEA CO. PVT. LTD[1], the Apex Court held as follows: “It is now well settled that an order of remand by the appellate Court to the trial Court which had disposed of the suit revives the suit in full except as to matters, if any, decided finally by the appellate Court. Once the suit is revived, it must, in the eye of law, be deemed to be pending from the beginning when it was instituted. The judgment disposing of the suit passed by the single Judge which is set aside gets effaced altogether and the continuity of the suit in the trial Court is restored, as a matter of law. The suit cannot be treated as one freshly instituted on the date of the remand order. Otherwise, serious questions as to limitations will arise. In fact, if any evidence was recorded before its earlier disposal, it would be evidence in the remanded suit and if any interlocutory orders were passed earlier, they would revive. In the case of a remand, it is as if the suit was never disposed of.” 20. Subsequently, in INDIAN BANK v. ABS MARINE PRODUCTS (P) LTD.[2] the Apex Court had an occasion to deal with the provision in Section 31 for transfer of the suit to the Debt Recovery Tribunal and the bar of jurisdiction of Civil Court under Sections 17 and 18 of the Act and the Apex Court after elaborately dealing with the relevant provisions of the Act laid down that Section 19(6) to (11) (as introduced in 2000) are merely enabling provisions, they do not provide the exclusive remedy and do not deprive the borrower, of his remedy of suit in respect of his claim against the bank where the borrower had filed a suit for damages against the bank for non-release of the sanctioned loan and the bank thereafter filed an application before the Tribunal for recovery of its debts against the same borrower, the borrower’s suit being an independent suit and therefore, the borrower could not be compelled to make his claim against the bank not by suit but only by way of counter-claim nor could his suit be transferred to the Tribunal against his wishes. 21. Now turning to the facts of the case on hand, even if both the suits one by the plaintiff-bank and the other by the defendants are cannot, in their strict sense, considered to be suit and the counterclaim, they in fact, arise out of the different causes of action and arise out of two independent transactions. In view of the ratio laid down in the decision first cited, pursuant to the remand order passed by the Division Bench of this Court earlier, both the suits would revive and they shall be deemed to have been pending from the date of their institution, in which event, do not attract provision relating to transfer of the suit to the Tribunal under Section 31 of the Act, since the value of the subject matter of the dispute being less than Rs.10 lakhs. 22. Further more, O.S.No.307 of 1999 by the bank is for recovery of an amount of Rs.5,01,129.22 ps against the defendants basing on the equitable mortgage, dated 08.04.1970, whereas O.S.No.116 of 1981 was filed by the defendants against the plaintiff-bank for rendition of accounts and recovery of rent and also for evicting the plaintiff-bank from the premises. It is the version of the defendants in the said suit that the plaintiff-bank obtained the premises of the defendants on lease, fell in arrears of rent. Since both the suits are between the same parties, they were tried jointly and a common judgment was rendered by the learned trial Court and the issues which actually arise for consideration basing on the evidence on which the respective claims sought to be established are entirely different. Rendering a common judgment does not disentitle the defendants claiming that their suit has to be tried by the civil Court only. Another important aspect which has to be borne in mind is that the Tribunal is not governed by the strict rules of evidence or the procedure prescribed in the Code of Civil Procedure and the Tribunal can evolve its own procedure subject to, of course not deviating from the principles of natural justice. Whereas the civil Court has to strictly follow the procedure laid down in the Code of Civil Procedure and also try the issues elaborately, strictly adhering to the rules of evidence mentioned in the Evidence Act and unless there is an elaborate trial, the case of the defendants will certainly be prejudiced. 23. The judgments relied upon by the plaintiff-bank in UNITED BANK OF INDIA v. DEBTS RECOVERY TRIBUNAL AND OTHERS[3] and in PUNJAB NATIONAL BANK, DASUYA v. CHAJJU RAM AND OTHERS[4] have no bearing on the point to be determined in these appeals since the question there was regarding the filing execution petitions relating to the legally recoverable debt by the bank on the date of the application and that in regard to the proposition that the debt is wide enough to include the claim of an undetermined sum. However, the contention of the plaintiff-bank is that the learned trial Court in respect of the order of remand passed by the Division Bench of this Court earlier on 19.09.1995 in A.S.Nos.226 of 1989 and 324 of 1989 without considering the evidence on record properly and more particularly, without referring to the evidence adduced by the parties after the matter was remanded to the trial Court, rendered the judgment in a mechanical way. The plaintiff-bank also further contended that the judgment passed by the trial Court after remand is virtually, the copy of the common judgment passed in O.S.No.116 of 1981 and O.S.No.307 of 1979 which was rendered prior to remand. 24. We have perused the judgment of the learned trial Court and we are thoroughly convinced with the arguments submitted by the learned counsel appearing for the plaintiff-Bank. Since the trial Court has not properly addressed the issues based on rival contentions in the light of the pleadings as well as evidence forthcoming before it, we have to accede to the contention of the learned counsel appearing for the plaintiff-bank that the matter has to be remitted back to the trial Court for fresh disposal according to law. Further more the crux of the dispute to be resolved lies in the suit O.S.No. 116 of 1981 filed by the defendants and no further adjudication in fact is required in the suit filed by the plaintiff-Bank. Thus, we have necessarily to hold that the defendants shall not be deprived of their right to get their suit adjudicated by the civil Court. 25. The judgment and decree passed by the learned trial Court are, therefore, set aside and the matters are remanded to the trial Court for disposal afresh according to law after affording opportunity to both the parties to adduce further evidence, if any, and to pass a reasoned judgment addressing all the contentious issues in a proper perspective. The trial Court is further directed to dispose of the suits within four months from the date of receipt of the copy of the judgment in these appeals and cross objections. 26. Both the appeals and cross objections are disposed of accordingly, without any order as to costs. _______________ B.PRAKASH RAO,J ______________ R.KANTHA RAO,J Date:14.09.2009 Note: L.R. copy to be marked. B/o Ccm [1] AIR 2000 SC 2957 [2] (2006) 5 SCC 72 [3] AIR 1999 SC 1381 [4] AIR 2000 SC 2671