Leave to defend in summary suits cannot be burdened beyond a prior consent deposit when the defence is bona fide.

Unconditional leave to defend in a summary suit is required where the defence raises a bona fide triable issue, and conditional leave is justified only if the defence is sham, illusory or moonshine. The earlier consent order was treated as fixing a deposit of Rs. 20,00,000 only to establish bona fides, and it did not permit a further enhanced deposit. A later direction requiring a total deposit of Rs. 70,00,000 as a condition for leave to defend was therefore beyond the scope of that arrangement and unsustainable. The defendant was entitled to relief.

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Issues: Whether the defendant was entitled to unconditional leave to defend under Order XXXVII of the Code of Civil Procedure, 1908, and whether the earlier consent order limited the quantum of deposit that could be imposed as a condition for leave to defend.

Analysis: The governing principles for leave to defend in summary suits require unconditional leave where the defence raises a triable issue and is bona fide, while leave may be refused or conditioned only where the defence is sham, illusory, or moonshine. The earlier consent order was read as fixing the deposit at Rs. 20,00,000 for the purpose of establishing bona fides, with no indication that any further amount could be compelled by way of an enhanced condition. The subsequent direction requiring a total deposit of Rs. 70,00,000 therefore exceeded the scope of that earlier arrangement and could not stand.

Conclusion: The defendant was entitled to relief, and the order imposing deposit of Rs. 70,00,000 as a condition for leave to defend was unsustainable.

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