VAIBHAV ASHOK AHERversusVISHNU SUKDEO BASTE AND ORS

                                                                       29 WP-9004-26.DOC

                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       CIVIL APPELLATE JURISDICTION

                                       WRIT PETITION NO. 9004 OF 2026

                      Vaibhav Ashok Aher                                      ..Petitioner

                              Versus

                      Vishnu Sukdeo Baste & ors.                           …Respondents


                      Mr. Sachin Gite, for the Petitioner.

                      Mr. Girish Agrawal, a/w Mr. Shubham Jangam, for the
                           Respondent Nos. 1 to 5.


                                                 CORAM :       N. J. JAMADAR, J.
                                                 DATE    :     22nd SEPTEMBER 2026

SAINATH
SANJAY
                      Oral Order :-
BODKHE
Digitally signed by
SAINATH SANJAY
BODKHE
Date: 2026.09.24
17:54:10 +0530        1.      Heard the learned Counsel for the parties.

                      2.      The challenge in this petition is to an order dated 18 th

                      April, 2026 passed by the learned Civil Judge, Senior Division,

                      Niphad, whereby an application preferred by the plaintiff to

                      recall the order passed below Exh. 30 in Summary Suit

                      No.3/2025 dated 09th January, 2026 thereby granting an

                      unconditional leave to defend the summary suit, came to be

                      rejected.




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3.      The petitioner has instituted the suit for recovery of a sum

of Rs.67,00,000/- which was advanced by the petitioner to the

defendants by way of a hand loan through banking channel.

4.      By the impugned order dated 09th January, 2026, the

learned Judge was persuaded to grant unconditional leave to

defend the suit by a single line reason that, the defendants have

raised substantial issues in respect of the claim amount.

5.      The impugned order is sans reasons. The learned Judge

has not adverted to the provisions contained in Order XXXVII of

the Code of Civil Procedure, 1908 (“Code, 1908”) nor has

consulted the binding precedents which guide the Courts in the

matter of grant of leave to defend a summary suit.

6.      The tests for deciding an application for grant of leave to

defend a summary suit have been reformulated by the Supreme

Court in the case IDBI Trusteeship Services Ltd. Vs. Hubtown

Ltd1. In the case B. L. Kashyap & Sons Ltd. Vs. M/s Jms Steels

& Power Corporation & anr.2, the Supreme Court has further

expounded the factors which ought to weigh with the Court in

granting or refusing to grant leave to defend the summary suit.

7.      Without satisfying himself as to whether the defendant

has raised a substantial defence or triable issues or for that

1       (2017) 1 SCC 568
2       (2022) 3 SCC 294
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matter, the defence raised by the defendants is sham or bogus,

the learned Judge has granted an unconditional leave to defend

the suit.

8.      In this view of the matter, without delving into the merits

of the case, this Court considers it appropriate to remit the

matter back to the learned Civil Judge for deciding the

application for grant of leave to defend the summary suit afresh.

9.      Hence, the following order :-

                                :: ORDER ::

              i)     The Writ Petition stands allowed.

              ii)    The impugned order stands quashed and

              set aside.

              iii)   The application for grant of leave to

              defend the summary suit (Exh.30) stands

              restored to file of learned Civil Judge, Niphad.

              iv)    The learned Civil Judge is requested to

              hear and decide the application for leave to

              defend     the   summary         suit   afresh,    after

              adverting to the provisions contained in Order

              XXXVII of the Code, 1908 and the binding

              judicial     precedents,    as     expeditiously     as

              possible and, preferably, within a period of 2


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              months from the date of communication of this

              order.

              The Writ Petition stands disposed.



                                         [N. J. JAMADAR, J.]




SAINATH, PA                        4/4