The court held that leave to defend in summary suits should be granted if the defendant raises a genuine triable issue, emphasizing the importance of judicial examination over procedural expediency.

JUDGMENT :

PURUSHAINDRA KUMAR KAURAV, J.

I.A. 8819/2025 (by D-4 under Order XXXVII Rule 3(5) of CPC)

1. By way of the instant application, Defendant No. 4 seeks unconditional leave to defend the present suit.

2. The instant suit is under Order XXXVII of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") for recovery of Rs. 4,10,00,000/- along with past, pendente lite, and future interest.

Submissions advanced by the parties

3. Mr. Monish Panda, learned counsel for Defendant No.4, submitted that the suit is misconceived and not maintainable. He further contends that the Plaintiff is not entitled to any summary judgment against Defendant No.4.

4. Learned counsel for Defendant No.4 further makes the following submissions:

(i) There exists no privity of contract between the Plaintiff and Defendant No.4 as it has neither undertaken nor agreed to make any payment to the Plaintiff or satisfy any alleged claim.

(ii) The plaint discloses no cause of action against Defendant No.4, rendering the suit, as against Defendant No.4, non-maintainable.

(iii) Any claim of the Plaintiff, if at all, lies against Defendant Nos.1 to 3 and Defendant No.4 is neither a necessary nor a proper party.

(iv) The Plaintiff had invoked Section 11 of the Arbitration and Conciliation Act, 1996 for the appointment of an arbitrator, which was later withdrawn.

(v) The suit is barred by limitation and the Plaintiff has filed a misconceived application under Section 14 of the Limitation Act seeking exclusion of time spent in the Section 11 proceedings.

(vi) Defendant No.4 is not a party to the alleged substitution and settlement agreement dated 25.06.2020; any agreement between Defendant No.4, Defendant No.3, and National Highway Authority of India (hereinafter referred to as ‗NHAI‘) is independent, and no rights flow to the Plaintiff therefrom.

(vii) Reliance is placed on the decisions of the Supreme Court in the cases of Essar Oil Limited Vs. Hindustan Shipyard Limited, (2015) 10 SCC 642, IDBI Trusteeship Services Limited vs. Hubtown Limited, (2017) 1 SCC 568 and B.L. Kashyap and Sons Limited vs. JMS Steels and Power Corporation and Another, (2022) 3 SCC 294]

5. He prays that, in view of the facts of the present case, Defendant No.4 be granted unconditional leave to defend as there exists a substantial and bona fide defence, indicating a strong likelihood of success in the suit.

6. The aforesaid submissions are vehemently opposed by Mr. Kamal Mehta, learned counsel for the Plaintiff.

7. Mr. Mehta, learned counsel for the Plaintiff has made the following broad submissions:-

(i) In the Business Transfer Agreement (hereinafter referred to as BTA) dated 08.06.2020, under the heading of "current liabilities," the specific amount owed to the Plaintiff was explicitly acknowledged and assigned to Defendant No.4.

(ii) Clauses 1.3 and 1.4 of the BTA, which deal with "Assumed Contracts" and "Assured Liabilities" respectively, unequivocally establish that certain rights and liabilities, including the Plaintiff‟s claim, were transferred and vested in Defendant No.4, thereby entitling the Plaintiff to seek enforcement of the agreed terms against the concerned Defendant.

(iii) While clarifying that the Plaintiff