[Cites 0, Cited by 0]
Bombay High Court
A. K. Gandhi Electronics And Appliances ... vs M/S. Sukesh Associates, Mahalgaon, ... on 23 December, 2025
2025:BHC-NAG:14916
2312WP5227-25.odt 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 5227 OF 2025
1. A.K. Gandhi Electronics & Appliances LL,
Reg. Office: Plot No.24 & 25, Great Nag Road,
Unthkhana, Nagpur - 440009.
2. Sunita Ashokkumar Gandhi, Age-67 years, Occ:
Business, Director/Partner in A.K. Gandhi Electronics
& Appliances LL.
3. Ashokkumar Ratanlal Gandhi, Director/Partner in A.K.
Gandhi Electronics & Appliances LL (Dead), Thr. LR's
3a. Achal Ashokkumar Gandhi, Age-40 years, Occ: Business.
3b. Yash Ashoikumar Gandhi, Age-35 years, Occ: Business.
a & b Office at : Plot No.24 & 25, Great Nag Road,
Unthkhana, Nagpur - 440 009. PETITIONERS
VERSUS
M/s Sukesh Associates, Office at : Survey No.253/Ka/2,
16 Km Stone, National Highway No.6, Village Mahalgaon,
Tah. Kamptee, Dist. Nagpur - 441202. Through its Partner
Dharmesh Mukund Ved. RESPONDENT
______________________________________________________________
Shri N.D. Dawda, counsel for the petitioners.
Shri H.A. Khan, counsel for the respondent.
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CORAM : PRAFULLA S. KHUBALKAR, J.
DATE ON WHICH ARGUMENTS WERE HEARD : DECEMBER 18, 2025
DATE ON WHICH JUDGMENT IS PRONOUNCWED : DECEMBER 23, 2025
JUDGMENT
RULE. Rule is made returnable forthwith and heard finally with
consent of the learned counsel for the parties.
2. The petitioners, who are the original defendants in Summary Civil
Suit no.466 of 2022 filed by the respondent for recovery, have challenged
the order of grant of conditional leave to defend.
3. The respondent has filed the summary suit claiming recovery of
Rs.750000/- in which the petitioners had appeared and sought for leave
2312WP5227-25.odt 2 Judgment
to defend. By order dated 24.06.2025, the trial Court granted leave to
defend subject to deposit of an amount of Rs.750000/- in the Court. The
petitioners have challenged this order by way of instant petition.
4. The primary contention canvassed on behalf of the counsel for the
petitioners is, the trial Court has categorical recorded in the impugned
order that there is triable issue between the parties which can be decided
by a full-fledged trial and that the defendants have a substantial defence
and therefore the defendants became entitled for unconditional leave to
defend. In support of his submissions, he placed reliance on the judgment
of the Hon'ble Supreme Court in B.L. Kashyap & Sons Limited Versus JMS
Steels and Power Corporation & Another [(2022) 3 SCC 294] and the
judgment of the Delhi High Court in GE Capital Services India Versus May
Flower Healthcare Pvt. Ltd. & Others [2012 SCC OnLine Del 4530].
5. Per contra, the counsel for the respondent opposed the petition and
submitted that there existed an enforceable debt against the defendants in
view of the fact that the defendants had issued a cheque for the amount of
dues which was since dishonoured, the plaintiff became entitled for
recovery of the amount. He submitted that the defendants have failed to
raise any bonafide defence in the application for leave to defend and
imposition of condition is justified. In support of his submissions, he relied
on the judgments of this Court in National Commodity Clearing Ltd.
(NCCL) Versus Dita Comtrade Limited [Commercial Summary Suit no.32
of 2020], in Kavita Moreshwar Sor Versus Anjali Vinayakrao Kadam w/o
Arjun Shahane [Writ Petition No.1590 of 2025] and the Division Bench
2312WP5227-25.odt 3 Judgment
judgment in Rajesh Laxmichand Udeshi @ Bhatia Versus Pravin Hiralal
Shah [2012 SCC OnLine Bom 2181]. By relying upon these judgments, he
submitted that in view of issuance of cheque by the defendants, the
liability is acknowledged and imposition of condition is not at all arbitrary.
6. While considering the controversy, it has to be seen that the plaintiff
has filed the summary suit seeking recovery of Rs.750000/-. The basis of
claim by the plaintiff is the alleged enforceable debt against which the
cheque of Rs.750000/- was issued by the defendants. It is pertinent to
note that the defendants have categorically disputed the purpose for
which the cheque was issued as can be seen from the reply dated
06.09.2022 which was sent on behalf of the defendants to the plaintiff to
the notice dated 13.08.2022. This reply notice is part of the documents
attached with the plaint. As such, in view of the aforesaid, it becomes
clear that there is no undisputed claim with respect to which the summary
suit could be filed. The defendants have raised triable issues and a
reasonable defence to the extent of seeking leave to defend.
7. The position of law with regard to granting leave to defend is laid
down by the Hon'ble Supreme Court in B.L. Kashyap & Sons Limited
(supra). The relevant paragraph from the said judgment being 33, 33.1
and 33.2 are reproduced as under:-
"33. It is at once clear that even though in IDBI Trusteeship, this
Court has observed that the principles stated in para 8 of
Mechelec Engineers case shall stand superseded in the wake of
amendment of Rule 3 of Order 37 but, on the core theme, the
principles remain the same that grant of leave to defend (with or
without conditions) is the ordinary rule; and denial of leave to
2312WP5227-25.odt 4 Judgment
defend is an exception. Putting in in other words, generally, the
prayer for leave to defend is to be denied in such cases where the
defendant has practically no defence and is unable to give out
even a semblance of triable issues before the court.
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 bona
fide or reasonable defence, albeit not a positively good defence, he
would be ordinarily entitled to unconditional leave to defend. .....
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; ........"
In the wake of enunciation of law in the aforesaid judgment of the Hon'ble
Supreme Court, it is clear that once the trial Court records an inference
that a triable issue is raised by the defendant, he becomes entitled for
unconditional leave to defend. In the instant case, the trial Court has
categorically recorded that there are tribal issues which can be decided on
full-fledged trial and the defendants have a substantial defence. In view
of these observations of the trial Court, there was no reason to impose the
condition to deposit the entire amount of Rs.750000/-.
8. As regards the judgments relied upon by the counsel for the
respondent in National Commodity Clearing Ltd. (NCCL) , Kavita
Moreshwar Sor and Rajesh Laxmichand Udeshi @ Bhatia (supra), the
position of law laid down therein is not disputed and the inferences of
2312WP5227-25.odt 5 Judgment
granting conditional leave to defend are drawn by the trial Court on the
basis of factual circumstances of this case. Although the counsel for the
respondent has harped on these judgments to buttress his submission that
the imposition of condition in the instant matter is just and proper
however, it has to be seen that in view of the specific inference by the trial
Court that there is a triable issue and the defendants have raised a
substantial defence, the position of law as laid down in B.L. Kashyap &
Sons Limited (supra) needs to be applied in the instant case.
9. In view of the position of law as laid down by the Hon'ble Supreme
Court and having regard to the facts of the instant case, particularly the
averments in the plaint alongwith the documents, I am of the firm view
that the defendants have raised a substantial defence and thus became
entitled for grant of an unconditional leave to defend. The order passed
by the trial Court imposing condition is thus unsustainable in law and thus
needs interference to that extent.
10. Hence, the writ petition is allowed. The order dated 24.06.2025 is
modified to the extent of imposing condition of deposit of Rs.750000/-
while granting leave to defend. Rule is made absolute in aforesaid terms.
No order as to costs.
(PRAFULLA S. KHUBALKAR, J.)
APTE
Signed by: Apte
Designation: PS To Honourable Judge
Date: 23/12/2025 19:20:54
