Bona fide triable issue defeats summary judgment and bars security as a condition of leave to defend

In a Chapter XIIIA summary procedure, the Calcutta HC held that final judgment could not be granted where the defendant's affidavit disclosed a bona fide triable issue and the defence was not sham, illusory, or practically moonshine. The Court distinguished cases where the plaintiff is clearly entitled to judgment from cases where a real defence requires trial, and held that security or payment into Court should not be imposed as a condition of leave to defend if that would make the leave illusory. The plaintiffs were therefore denied final judgment at that stage, and the defendant received unconditional leave to defend.

---

---

Issues: Whether the plaintiffs were entitled to final judgment on a summary application under Chapter XIIIA, and whether the defendant, having raised a triable issue, could be required to furnish security or pay the arrears into Court as a condition for leave to defend.

Analysis: The defendant's affidavit disclosed a defence which could not be dismissed as sham, illusory, or practically moonshine, and the dispute raised serious questions requiring trial. The Court reviewed English authorities construing the corresponding summary judgment rules and drew the distinction between cases where the plaintiff is clearly entitled to judgment, cases where a bona fide triable issue is raised, and cases where the defence is so weak that the plaintiff may be protected by security. It held that where the defendant raises a triable issue and is entitled to defend, the Court should not impose payment into Court or security in a manner that would make the leave to defend illusory.

Conclusion: The plaintiffs were not entitled to final judgment at this stage, and the defendant was entitled to unconditional leave to defend without being compelled to furnish security or pay the claimed amount into Court.

Final Conclusion: Summary judgment was refused, the defence was allowed to proceed, and the suit was directed to continue in the ordinary course.

Ratio Decidendi: Under the summary judgment procedure, security or payment into Court cannot be imposed as a condition for leave to defend where the defendant has raised a bona fide triable issue; such conditions are reserved for cases where the plaintiff is otherwise entitled to judgment and mercy alone is extended to the defendant.

---