AVINASH BABURAO KUMMAVATversusMAMTA MANIK SHAHANI THR POWER OF ATTORNEY HOLDER MR. BRIJESH BHATIA

                                                                        CRA-283-2025.DOC

                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CIVIL APPELLATE JURISDICTION

                                    CIVIL REVISION APPLICATION NO. 283 OF 2025


                      Avinash Baburao Kumavat
                      Age : 44 years, Occ:- Service
                      R/at:- Monarch Fortune,
                      Flat No-203, Plot No-19,
                      Sanjeevni International School,
                      Sector – 18, Kharghar,
                      Navi Mumbai – 410210.                              ...Applicant


                              Versus

                      1. Mamta Manik Shahani
                         through Power of Attorney Holder,
                         Mr. Brijesh Bhatia
                         Age:- Adult years, Occ:-
                         office at:- B-10, Milan Shopping
                         Centre, M.G. Road,
                         Ghatkopar (W) - 400086.

                      2. Monarch Realty Management Services
                         a partnership Firm registered under
                         Indian Partnership Act, 1932,
                         having its office at 419, Raheja
                         Arcade, Sector 11, CBD Belapur,
                         Navi Mumbai - 400614.

                      3. Gopal Amar Thakur
                         R/at:- Flat No. 701, 7th Floor,
                         Dheeraj Palace, Near Mira Marriage
                         Hall, Ulhasnagar, Thane – 421001
                         Also at 1303, Sonnet, Kesar
                         Harmony, Plot No.11/12, Sector-6,
                         Kharghar, Navi Mumbai – 410210.

SAINATH
SANJAY
                      4. Hasmukh Amar Thakur
BODKHE
Digitally signed by
SAINATH SANJAY
                         Monarch Universal Lifescapes Pvt. Ltd.
BODKHE
Date: 2026.09.08
18:28:11 +0530           R/at:- Flat No.701, 7th Floor,
                         Dheeraj Palace, Near Mira Marriage
                         Hall, Ulhasnagar, Thane – 421001
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     Also at 1303, Sonnet, Kesar
     Harmony, Plot No.11/12, Sector-6,
     Kharghar, Navi Mumbai – 410210.

5. Anand Thakur
   R/at:- Survey No. 113/0,
   Village-Akurli, Near Panvel Matheran
   Road, Panvel, Dist. Raigad-410206.

6. Ashok Nariyani
   R/at:-1201, Flavia, Kesar Harmony,
   Plot – 11/12, Sector-6, Kharghar,
   Navi Mumbai – 410210.

7. Roshan Sheth
   Monarch Universal Lifescapes Pvt. Ltd.
   R/at:- 1201, Flavia, Kesar Harmony,
   Plot No-11/12, Sector-6, Kharghar,
   Navi Mumbai – 410210.
   Also at 01 Kohinoor Arcade,
   Near Daule Hospital, Savedi,
   Ahmednagar – 414001.

8. Ramnivas Janardan Agarwal
   R/at:- Survey No. 113/0,
   Village – Akurli, Near Panvel
   Matheran Road, Panvel,
   Dist. Raigad – 410206.

9. Sachin Ramnivas Agarwal
   R/at:- Survey No. 113/0,
   Village – Akurli, Near Panvel
   Matheran Road, Panvel,
   Dist. Raigad – 410206.

10. Monarch Greenscapes
   a partnership Firm registered
   under Indian Partnership Act, 1932
   having its office at Survey No.113/0,
   Village-Akurli, Near Panvel Matheran
   Road, Panvel, Dist. Raigad-410206.
   Also at Village No.1, Monarch Empire,
   Mayuresh Chambers, Plot No.60,

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      Sector – 11, CBD Belapur,
      Navi Mumbai – 400 614.                      …Respondents
_____________ _______ ___                         _________

Ms. Sayali Gite, a/w Mr. Rajindar Singh Bhatti, for the
Applicant.

Mr. Kaustubh Thipsay, for the Respondent No.1.
_____________________________________

               CORAM              :      N. J. JAMADAR, J.
               RESERVED ON        :      14th JULY 2026
               PRONOUNCED ON :           08th SEPTEMBER 2026


JUDGMENT:


1.      This Civil Revision Application is directed against an

order dated 18th February, 2025 passed by the learned Civil

Judge, Belapur in Summary Suit No.161/2023, whereby the

learned Civil Judge rejected an application preferred by the

Applicant – Defendant No.6, seeking leave to defend the

summary suit.


2.      Shorn of superfluities, the background facts, can be

stated as under :-


2.1     Monarch Realty Management Services (Defendant No.1)

and Monarch Greenscapes (Defendant No.10), are the registered

partnership firms. The Respondent No.1 – plaintiff had known




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the Defendant Nos. 2 to 9; the partners of Defendant Nos.1 and

2, through common friends.


2.2     The Defendant Nos.2 to 9 allegedly made representations

to the plaintiff that, the investment in the ventures of Monarch

Group of Companies, including Defendant No.1 was not only

safe but also yielded good and viable returns.


2.3     Pursuant to the representations and the confidence

which the defendants made the plaintiff to repose in them, the

plaintiff claimed to have invested a sum of USD 500,000/- (Five

Hundred Thousand Dollars) in Defendant No.1 – Firm. A

Memorandum of Understanding was executed between the

plaintiff     and   Defendant   No.1   on   10th   February,   2014

incorporating the terms of the contract between the parties.

The MoU recorded, inter alia, that 11 flats in the then ongoing

residential project of Monarch Greenscapes (D-10) were offered

as security for the due repayment of the amount and the

interest thereon.


2.4     The plaintiff further claimed that, she was induced to

invest a further sum of Rs.2,02,50,000/- (Rupees Two Crores

Two Lakhs Fifty Thousand) in Defendant No.1 – Firm, and the

said amount was offered by way of security for the overdraft
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and credit facilities in the savings bank account of the

Defendant No.6 – Applicant herein.


2.5     A Memorandum of Understanding dated 15 th April, 2014

was executed to evidence the said transaction. Monarch

Greenscapes (D-10) offered 8 flats by way of security for the

due repayment of the principal amount and interest thereon.


2.6     In the third tranche of investment, the plaintiff claimed to

have advanced a sum of Rs.90,90,000/- (Ninety Lakhs Ninety

Thousand) to the Defendant No.1. The third investment was

also evidenced by a MoU dated 25th June, 2014. The said credit

was also made available by way of an additional overdraft

facility in the savings account of the Applicant – Defendant

No.6. The plaintiff claimed that, the aforesaid financial facility

was also secured by the security interest created in the three

flats in the project - Monarch Greenscapes (D-10).


2.7     The fourth investment was in the sum of SGD 700,000/-

equivalent to Rs.3,36,00,000/- (Rupees Three Crores Thirty Six

Lakhs) to be repaid in INR within 20 days from the date of

execution of the MoU dated 27th June, 2014 alongwith interest

at the rate of 20% p.a. The fourth tranche of advance was also

secured by a post-dated cheque drawn in the sum of
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Rs.3,36,00,000/- (Rupees Three Crores Thirty Six Lakhs) and

12 flats in the project, “Monarch Greenscapes” (D-10).


2.8     The plaintiff asserted that, barring payment of interest

component qua the first investment, no amount was repaid by

the Defendant No.1 in accordance with the terms of the

contract evidenced by the Memorandums of Understanding.

Eventually, at the request of the defendants, the cheque drawn

for Rs. 3,36,00,000/- (Rupees Three Crores Thirty Six Lakhs)

was presented for the encashment. However, the cheque was

returned unencashed on 10th January, 2018, with the remark

“Account closed Today”.


2.9     As the defendants failed and neglected to pay the due

amount despite service of the legal notice, the plaintiff was

constrained to institute the suit for recovery of the sum of

Rs.23,09,54,066/- (Rupees Twenty Three Crore Nine Lakhs

Fifty Four Thousand and Sixty Six), comprising of the principal

amount of Rs.9,43,50,000/- (Rupees Nine Crores Forty Three

Lakhs Fifty Thousand) and the interest of Rs.13,66,04,066/-

(Rupees Thirteen Crores Sixty Six Lakhs Four Thousand and

Sixty Six), which had accrued thereon, alongwith further




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interest on the principal amount at the rate of 24% p.a., from

the date of institution of the suit till realization.



2.10 The Defendant No.6 appeared and sought leave to defend

the suit by filing an application (Exh. 32). The Defendant No.6,

inter alia, contended that, all the transactions were between

the plaintiff and the Defendant No.1 – Firm. The Defendant

No.6 was not a party to any of the MoU’s which allegedly

evidence the transaction between the plaintiff and Defendant

No.1. Thus, there was no privity of contract between the

plaintiff and Defendant No.6. Neither was Defendant No.6 the

executant of any of the instruments, nor was Defendant No.6 a

signatory to any of the cheques, purportedly drawn by the

Defendant No.1. The Defendant No.6 was not liable to repay any

amount to the plaintiff and, therefore, the Defendant No.6

deserved an unconditional leave to defend the suit.



2.11 The plaintiff opposed the grant of leave to defend the suit.

It was, inter alia, contended that, the Defendant No.6 was a

partner of Defendant No.1 – Firm and the facility of overdraft

was made available in the account of the Defendant No.6 on

the basis of the security furnished by the plaintiff. As the


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Defendant No.6 has never controverted his position as a

partner of the Defendant No.1 – Firm, the defence based on the

purported absence of privity of contract between the plaintiff

and Defendant No.6, did not warrant grant of leave to defend

the suit.


2.12 By the impugned order, the learned Civil Judge was

persuaded to reject the application for leave to defend, opining

inter alia that, there was no specific denial of the contentions

of the plaintiff in the affidavit-in-reply that, the Defendant No.6

was a partner of Defendant No.1 – Firm. Since the commercial

suit was based on documents, in the view of the learned Civil

Judge, no case for grant of leave to defend was made out.


2.13 Being aggrieved, the Applicant/Defendant No.6 has

preferred this application.


3.      I have heard Ms. Sayali Gite, the learned Counsel for the

Applicant-Defendant No.6, and Mr. Kaustubh Thipsay, the

learned Counsel for the Respondent No.1 – plaintiff, at some

length. The learned Counsel for the parties took the Court

through the pleadings and the material on record.




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4.      Ms. Sayali Gite, the learned Counsel for the Applicant,

would submit that, the learned Civil Judge rejected the

application for leave to defend the summary suit on completely

untenable grounds. The learned Civil Judge did not keep in

view the principles which govern the grant of leave to defend a

summary suit. In the process, the learned Civil Judge

constructed a case for the plaintiff which was not at all pleaded

by the plaintiff. There was not an iota of material to show that,

Defendant No.6 was a partner of Defendant No.1 – Firm, and,

in fact, that was not the pleaded case of the plaintiff. Yet, the

learned Civil Judge fastened the liability on the Defendant No.6

by presuming that, the Defendant No.6 was a partner of

Defendant No.1 – Firm.


5.      Mr. Kaustubh Thipsay, the learned Counsel for the

Respondent No.1 – plaintiff made a valiant attempt to support

the impugned order. It was submitted that, the entire nature of

the transaction was required to be appreciated to correctly

understand the relationship between the Defendant No.1 and

Defendant No.6. The claim of the plaintiff that, the credit was

made available to the Defendant No.1 in the form of an

overdraft facility in the then newly opened account of the

Defendant No.6, finds support in the documents on record.
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The learned Civil Judge was, thus, justified in holding that, the

Defendant No.6 was indeed a partner of Defendant No.1 - Firm.


6.      As a second limb of the submission, Mr. Thipsay would

urge that, even when a person holds himself out as a partner of

a firm and induces the persons dealing with the firm to alter

their positions, such person cannot be permitted to urge that,

there was no privity of contract. To lend support to this

submission, Mr. Thipsay placed reliance on a judgment of the

Punjab and Haryana High Court in the case of Sham Sunder

Vs. Hari Dev Bansal1, and another judgment of a learned

Single Judge of the Delhi High Court in the case of Hindustan

Unilever Ltd. Vs. Sethi Agencies & ors. 2, wherein the inferences

that emanate when a person holds himself out as a partner of

a firm were expounded.


7.      I have given careful consideration to the submissions

canvassed across the bar. To begin with, it is necessary to note,

the pleadings as to the purported jural relationship between

the Defendant No.1 and Defendant No.6. In the plaint, the

plaintiff asserted that the Defendant Nos. 1 and 10 are the

partnership firms registered under the Indian Partnership Act,

1       1999 SCC OnLine P&H 189
2       2022 SCC OnLine Del 3131
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1932. A reference is made to various transactions between the

plaintiff and Defendant No.1 – Firm. Purportedly, Monarch

Greenscapes (D-10) had offered security of the flats towards

repayment of the amount allegedly advanced by the plaintiff to

Defendant No.1.


8.      It is pertinent to note that, in the prayer clause, the

plaintiff sought a decree in the sum of Rs.23,09,54,066/-

(Rupees Twenty Three Crores Nine Lakhs Fifty Four Thousand

and Sixty Six) against the Defendant No.1 – Firm only. Ex facie,

there are no averments in the plaint to the effect that, the

Defendant Nos.2 to 9 are the partners of either Defendant No. 1

or the Defendant No.10. The pleadings as regards the jural

relationship between the Defendant Nos.1 and 10, on the one

part, and Defendant Nos.2 to 9, on the other part, are blissfully

vague.


9.      Secondly, from the tenor of the plaint, it becomes clear

that, the plaintiff had asserted that the MoUs to evidence the

transaction were executed by and between the plaintiff and

Defendant No1, only. It is not the case of the plaintiff that, the

Defendant No. 6 is the executant of any of the MoUs. As noted




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above, the decree is sought against the Defendant No.1- Firm,

only.


10.     In the aforesaid context, the capacity in which the

Defendant No.6 has been impleaded in the suit assumes

critical salience. In Paragraph No. 14 of the plaint, there is a

clear and categorical assertion that, by furnishing security in

the sum of Rs.2,02,50,000/- (Rupees Two Crores Two Lakhs

Fifty Thousand), the overdraft and credit limit in the savings

account of the Defendant No.6, was facilitated. In the said

paragraph, the Defendant No.6 has been described as a

“business partner/friend of defendants and their partners .”


11.     Two things become abundantly clear. One, a statement in

the plaint is conspicuous by its absence that Defendant No.6

was a partner of the Defendant No.1 – Firm. Two, the

Defendant No.6 was stated to be a friend of a business

partner/friend of Defendant Nos.1 to 10 and their partners.


12.     Indeed, it appears that, in the affidavit-in-reply filed in

opposition to the application seeking leave to defend, the

plaintiff made an endeavour to improve upon her version and

assert that, the Defendant No.6 was a partner of Defendant

No.1 – Firm. The learned Civil Judge found that, the said
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assertion of the plaintiff went untraversed as it was not

controverted by filing an affidavit-in-rejoinder and, thus, it

amounted to an admission that, Defendant No.6 was a partner

of Defendant No.1 – Firm.


13.     Clearly, the learned Civil Judge misdirected herself in

arriving at a finding that, the Defendant No.6 had admitted

that, he was a partner of Defendant No.1. The learned Civil

Judge completely lost sight of the fact that, it was not the case

of the plaintiff that, the Defendant No.6 was ever a partner of

Defendant No.1 – Firm. On the contrary, a distinct capacity

was sought to be attributed to the Defendant No.6. The learned

Civil Judge, thus, could not have readily acceded to the

submission on behalf of the plaintiff that, the Defendant No.6

was a partner of the firm in the absence of such pleadings.


14.     Reliance by Mr. Thipsay on the decisions in the cases of

Sham Sunder (supra) and Hindustan Unilever Ltd. (supra), is

wholly misplaced as the plaint lacks averments to demonstrate

that, Defendant No.6 was either a partner of the firm or that

Defendant No.6, by his acts or conduct, held himself out as a

partner of the Defendant No.1 – Firm. In the absence thereof,

the theory of Defendant No.6 being a person who held himself


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out as a partner of the firm, does not merit countenance,

especially at the stage of consideration on the aspect of grant of

leave to defend the suit.


15.     The legal position as regards the grant of leave to defend a

summary suit is well crystallised. If the defendant raises a

substantial defence, leave to defend is required to be granted

unconditionally. Where the defendant raises a triable issue in

the sense that the defence is fair and reasonable, ordinarily,

the defendant is entitled to unconditional leave to defend the

suit. However, where the defendant raises a triable issue, but,

the Court entertains doubt about the bonafide of the said

defence or such defence though plausible, yet, appears to be

improbable to the Court, conditional leave to defend the suit

can be granted. The conditions may relate to time or mode of

trial or an order for deposit of the amount or security for the

claim amount. It is only in those cases where the Court finds

that defence raised by the defendant is sham and bogus, the

Court can decline to grant leave to defend the suit.


16.     In the case of Raj Duggal Vs. Ramesh Kumar Bansal 3,

the law was succinctly enunciated as under :-


3       1991 Supp (1) SCC 191
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              “3. Leave is declined where the court is of the opinion
              that the grant of leave would merely enable the
              defendant. to prolong the litigation by raising untenable
              and frivolous defences. The test is to see whether the
              defence raises a real issue and not a sham one, in the
              sense that if the facts alleged by the defendant are
              established there would be a good or even a plausible
              defence on those facts. If the court is satisfied about
              that leave must be given. If there is a triable issue in
              the sense that there is a fair dispute to be tried as to
              the meaning of a document on which the claim is based
              or uncertainty as to the amount actually due or where
              the alleged facts are of such a nature as to entitle the
              defendant to interrogate the plaintiff or to cross-
              examine his witnesses leave should not be denied.
              Where also, the defendant shows that even on a fair
              probability he was a bona fide defence, he ought to
              have leave. Summary judgments under Order 37
              should not be granted where serious conflict as to
              matter of fact or where any difficulty on issues as to law
              arises. The court should not reject the defence of the
              defendant merely because of its inherent implausibility
              or its inconsistency."


17.     In the case of IDBI Trusteeship Services Ltd. Vs. Hubtown

Ltd.4, the Supreme Court culled out the propositions which

govern the exercise of discretion as under:-

              “17. Accordingly, the principles stated in paragraph 8 of
              Mechelec’s case will now stand superseded, given the


4       (2017) 1 SCC 568
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              amendment of O.XXXVII R.3, and the binding decision of
              four judges in Milkhiram’s case, as follows:

                 17.1 If the defendant satisfies the Court that he
                 has a substantial defence, that is, a defence that
                 is likely to succeed, the plaintiff is not entitled to
                 leave to sign judgment, and the defendant is
                 entitled to unconditional leave to defend the suit.

                 17.2   If    the    defendant          raises    triable    issues
                 indicating that he has a fair or reasonable
                 defence, although not a positively good defence,
                 the plaintiff is not entitled to sign judgment, and
                 the       defendant      is     ordinarily         entitled     to
                 unconditional leave to defend.

                 17.3 Even if the defendant raises triable issues, if
                 a doubt is left with the trial judge about the
                 defendant’s good faith, or the genuineness of the
                 triable     issues,    the     trial     judge    may      impose
                 conditions both as to time or mode of trial, as well
                 as payment into court or furnishing security. Care
                 must be taken to see that the object of the
                 provisions     to     assist    expeditious        disposal     of
                 commercial causes is not defeated. Care must also
                 be taken to see that such triable issues are not
                 shut out by unduly severe orders as to deposit or
                 security.

                 17.4 If the Defendant raises a defence which is
                 plausible but improbable, the trial Judge may
                 impose conditions as to time or mode of trial, as
                 well as payment into court, or furnishing security.
                 As such a defence does not raise triable issues,
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              conditions as to deposit or security or both can
              extend to the entire principal sum together with
              such interest as the court feels the justice of the
              case requires.

              17.5 If the Defendant has no substantial defence
              and/or raises no genuine triable issues, and the
              court finds such defence to be frivolous or
              vexatious, then leave to defend the suit shall be
              refused, and the plaintiff is entitled to judgment
              forthwith.

              17.6 If any part of the amount claimed by the
              plaintiff is admitted by the defendant to be due
              from him, leave to defend the suit, (even if triable
              issues or a substantial defence is raised), shall not
              be granted unless the amount so admitted to be
              due is deposited by the defendant in court.”


18.     The aforesaid tests formulated by Supreme Court were

reiterated by the Supreme Court in the case of B. L. Kashyap and

Sons Ltd. vs. JMS Steels & Power Corporation & anr.5, as under :-

         “33.1 As noticed, if the defendant satisfies the Court that
         he has substantial defence, i.e., a defence which is likely
         to succeed, he is entitled to unconditional leave to
         defend. In the second eventuality, where the defendant
         raises triable issues indicating a fair or bonafide or
         reasonable defence, albeit not a positively good defence,
         he would be ordinarily entitled to unconditional leave to
         defend. In the third eventuality, where the defendant
         raises triable issues, but it remains doubtful if the

5       (2022) 3 SCC 294
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         defendant is raising the same in good faith or about
         genuineness of the issues, the Trial Court is expected to
         balance the requirements of expeditious disposal of
         commercial causes on one hand and of not shutting out
         triable issues by unduly severe orders on the other.
         Therefore, the Trial Court may impose conditions both as
         to time or mode of trial as well as payment into the Court
         or furnishing security. In the fourth eventuality, where
         the proposed defence appear to be plausible but
         improbable, heightened conditions may be imposed as to
         the time or mode of trial as also of payment into the
         Court or furnishing security or both, which may extend
         to the entire principal sum together with just and
         requisite interest.


         33.2 Thus, it could be seen that in the case of
         substantial   defence,   the    defendant   is   entitled   to
         unconditional leave; and even in the case of a triable
         issue on a fair and reasonable defence, the defendant is
         ordinarily entitled to unconditional leave to defend. In
         case of doubts about the intent of the defendant or
         genuineness of the triable issues as also the probability
         of defence, the leave could yet be granted but while
         imposing conditions as to the time or mode of trial or
         payment or furnishing security. Thus, even in such cases
         of doubts or reservations, denial of leave to defend is not
         the rule; but appropriate conditions may be imposed
         while granting the leave. It is only in the case where the
         defendant is found to be having no substantial defence
         and/or raising no genuine triable issues coupled with
         the Court’s view that the defence is frivolous or vexatious
         that the leave to defend is to be refused and the plaintiff


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         is entitled to judgment forthwith. Of course, in the case
         where any part of the amount claimed by the plaintiff is
         admitted by the defendant, leave to defend is not to be
         granted unless the amount so admitted is deposited by
         the defendant in the Court.


         33.3 Therefore, while dealing with an application seeking
         leave to defend, it would not be a correct approach to
         proceed as if denying the leave is the rule or that the
         leave to defend is to be granted only in exceptional cases
         or only in cases where the defence would appear to be a
         meritorious one. Even in the case of raising of triable
         issues, with the defendant indicating his having a fair or
         reasonable   defence,    he   is      ordinarily   entitled   to
         unconditional leave to defend unless there be any strong
         reason to deny the leave. It gets perforce reiterated that
         even if there remains a reasonable doubt about the
         probability of defence, sterner or higher conditions as
         stated above could be imposed while granting leave but,
         denying the leave would be ordinarily countenanced only
         in such cases where the defendant fails to show any
         genuine triable issue and the Court finds the defence to
         be frivolous or vexatious”.


19.     In the light of the aforesaid position in law, if the facts of

the case at hand are appraised, the Defendant No.6 had

succeeded in demonstrating that, he had a substantial defence

in the sense that, there was no credible material to show the

jural relationship between the Defendant No.1 and Defendant

No.6, and it was not the pleaded case of the plaintiff that,

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Defendant No. 6 was the partner of Defendant No.1, and, at any

rate, the Defendant No.6 had raised a triable issue of the

absence of privity of contract between the plaintiff and

Defendant No.6 or the liability of the Defendant No.6 to

discharge the debt purportedly incurred by Defendant No.1.

Under no circumstances could it be inferred that, the defence

raised by the Defendant No.6 was, ex facie, sham, frivolous or

vexatious so as to deny the leave to defend.



20.     In the backdrop of the aforesaid facts, which appear to be

rather incontrovertible and stare in the face, the learned Civil

Judge committed a manifest error in law in declining to grant

leave to defend the suit. The learned Civil Judge did not keep in

view the well recognized principles which govern the grant of

leave to defend a summary suit.


21.     Resultantly, the impugned order cannot be sustained and

deserves to be quashed and set aside. Hence, the following

order :-

                             ::ORDER::


       (i)    The Civil Revision Application stands allowed.

       (ii)   The impugned order dated 18th February, 2025,


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       stands quashed and set aside.

       (iii)   The Applicant/Defendant No.6 is granted an

       unconditional leave to defend the suit.

       (iv)    The Defendant No.6 shall file his written

       statement within a period of 30 days from today.

       (v)     No costs.



                                           [N. J. JAMADAR, J.]




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