JUDGMENT

NAVIN SINHA, J.

Leave granted.

2. The appellant is aggrieved by grant of conditional leave to defend in Summary Suit No. 1289 of 2015 filed against him, by the respondent under Order XXXVII of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”) for recovery of Rs.64,18,609/-, inclusive of interest.

3. Learned counsel for the appellant submitted that under the Second Proviso to sub-Rule 5 of Rule 3 of Order XXXVII of the Code, the condition for deposit of Rs.30,00,000/- could not have been ordered in absence of any admissible dues. The fact that there may have been a commercial transaction between the parties in the past, cannot ipso facto be construed as an admission of debt merely because the respondent may have so claimed in the suit. The respondent had unconditionally withdrawn the prosecution instituted by him earlier under Section 138 of Negotiable Instruments Act (hereinafter referred to as “the Act”), for the same dues. All legitimate dues have been paid. The defective goods were returned, the balance of five lacs was also paid, and the accounts cleared, after which no further transactions had taken place between the parties. Reliance was placed