“Bombay High Court on Unconditional Leave to Defend in Summary Suit”

⚖️Case Study: Avinash Baburao Kumavat v. Mamta Manik Shahani & Ors.
Bombay High Court, CRA No. 283 of 2025, decided on 08.09.2026 by N.J. Jamadar, J.


📌 Factual Background

  • Plaintiff invested USD 500,000, ₹2.02 Cr, ₹90.9 Lakh, and SGD 700,000 (₹3.36 Cr) in Monarch Realty ventures, backed by MoUs (2014) and security of flats in Monarch Greenscapes.
  • A cheque of ₹3.36 Cr was dishonoured in 2018 with the remark “Account closed today”.
  • Plaintiff filed a summary suit for ₹23.09 Cr (principal + interest).
  • Defendant No.6 (Applicant) sought leave to defend, claiming no privity of contract and not being a partner of Defendant No.1 firm.

⚖️ Legal Issues

  1. Whether Defendant No.6 was a partner of Defendant No.1 firm.
  2. Whether absence of privity of contract entitled Defendant No.6 to unconditional leave to defend.
  3. Application of principles governing Order XXXVII CPC (Summary Suits).

🗣️ Contentions

  • Applicant (Def. No.6): Not a signatory to MoUs/cheques; no contractual liability; deserves unconditional leave.
  • Plaintiff: Overdraft facility was in Defendant No.6’s account; hence he was a partner/liable.
  • Trial Court: Denied leave, presuming partnership due to lack of denial.

📚 Case Laws Discussed

  • Raj Duggal v. Ramesh Kumar Bansal, 1991 Supp (1) SCC 191 – test of “real issue vs. sham defence.”
  • IDBI Trusteeship Services Ltd. v. Hubtown Ltd., (2017) 1 SCC 568 – principles on leave to defend.
  • B.L. Kashyap & Sons Ltd. v. JMS Steels & Power Corp., (2022) 3 SCC 294 – triable issues and conditional leave.
  • Reliance by plaintiff on Sham Sunder v. Hari Dev Bansal, 1999 SCC OnLine P&H 189 and Hindustan Unilever Ltd. v. Sethi Agencies, 2022 SCC OnLine Del 3131 was held misplaced.

👩‍⚖️ Observations of High Court

  • No pleadings in plaint that Defendant No.6 was a partner of Defendant No.1.
  • Plaintiff’s affidavit‑in‑reply attempted to “improve” pleadings.
  • Defence of absence of privity of contract was substantial and triable.
  • Trial Court erred in presuming partnership without pleadings.

✅ Conclusion

  • Impugned order set aside.
  • Defendant No.6 granted unconditional leave to defend.
  • Written statement to be filed within 30 days.

🔑 Key Takeaways

  • Courts cannot presume facts absent in pleadings.
  • In summary suits, triable issues warrant unconditional leave.
  • Partnership liability must be pleaded and proved, not inferred.
  • Affidavit‑in‑reply cannot substitute for plaint averments.

🔖Hashtags

#BombayHighCourt #SummarySuit #LeaveToDefend #PartnershipLaw #CivilProcedure #CaseStudy #LegalDrafting #IndianLaw

📌 Official Copy of judgement 👇

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