⚖️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
- Whether Defendant No.6 was a partner of Defendant No.1 firm.
- Whether absence of privity of contract entitled Defendant No.6 to unconditional leave to defend.
- 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.
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#BombayHighCourt #SummarySuit #LeaveToDefend #PartnershipLaw #CivilProcedure #CaseStudy #LegalDrafting #IndianLaw
📌 Official Copy of judgement 👇