In a summary suit under Order CPC, the defendant has no right to defend as of course; he must first obtain leave to defend, and leave is refused only when the defence is sham, illusory, frivolous, or vexatious.student.
For a Judicial service interview, remember this formula: substantial defence or triable issue = leave granted; moonshine defence = leave refused.
Summary suit
A summary suit lies in cases based on negotiable instruments or where the plaintiff seeks recovery of a debt or liquidated demand arising on a written contract, enactment, or guarantee. Its object is speedy disposal of cases where the defendant is not expected to have a real defence.
Grounds of defence
Leave to defend should be granted when the defendant shows a substantial defence, meaning a defence likely to succeed on merits.
It should also be granted when the defendant raises a fair, bona fide, or reasonable triable issue, even if the court is not yet convinced that the defence will definitely succeed.
Interview-ready grounds
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The defendant has a good defence on merits.
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The defendant raises a triable issue requiring evidence.
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The defendant discloses facts showing a fair or bona fide defence.
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The defendant shows facts from which it may be inferred that he may be able to establish a defence at trial.
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The suit itself is arguably not maintainable under Order 37, though if the claim is founded on a written contract, maintainability may still stand and the objection may remain only a matter of defence.
Refusal of leave
Leave to defend may be refused when the defence is illusory, sham, frivolous, or vexatious, or where the facts disclosed do not indicate any substantial defence or real triable issue. If no plausible defence is shown, the plaintiff becomes entitled to judgment without the need for a full trial.
When refusal is proper
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Defence is moonshine or merely a bald denial.
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Facts disclosed do not show any real issue to be tried.
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Defence is frivolous or vexatious.
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Defendant admits part of the claim but does not deposit the admitted amount, because leave cannot be granted unless that admitted sum is deposited in court.
Conditional leave
Where the defendant discloses a plausible but doubtful defence, the court may grant conditional leave. However, conditions as to deposit or security become especially relevant where the defence is weak, or part of the amount is admitted by the defendant.
Best oral answer
You may answer in interview like this: “Under Order 37 CPC, leave to defend is granted if the defendant shows a substantial defence or raises a fair and bona fide triable issue. Leave is refused when the defence is sham, illusory, frivolous, or vexatious. If part of the claim is admitted, leave cannot be granted unless the admitted amount is deposited.”
Quick memory line
Real defence = leave. Triable issue = leave. Moonshine defence = no leave. Admitted amount = deposit first.