Summary suit defence and leave to defend test: acknowledgments, part-payments, and cheques defeated a sham defence.

In a summary suit under Order XXXVII CPC, the defence was held not to be bona fide because the defendant had signed successive written agreements and a memorandum of settlement expressly acknowledging liability and the outstanding amount. Part-payments and issuance of post-dated cheques supported the claim, while allegations of coercion, pressure and undue influence were rejected as unsupported by any contemporaneous complaint or legal action over a prolonged period. Applying the test for leave to defend, the defence was treated as sham and moonshine and no triable issue was disclosed. Unconditional leave to defend was therefore declined and the refusal to grant leave was upheld.

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Issues: Whether the defence raised by the defendant in a summary suit was bona fide and disclosed a triable issue so as to entitle him to unconditional leave to defend.

Analysis: The suit was founded on successive written agreements and a memorandum of settlement signed by the defendant, in which the liability and outstanding amount were expressly acknowledged. The record also showed part-payments and issuance of post-dated cheques, while the plea of coercion, pressure and undue influence was held to be unsupported by any contemporaneous complaint or legal action over a long period. Applying the principles governing Order XXXVII CPC and the test for grant or refusal of leave to defend, the defence was found to be neither bona fide nor substantial and was treated as sham and moonshine.

Conclusion: The defendant was not entitled to unconditional leave to defend, and the order refusing leave was upheld.

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