A defendant is entitled to unconditional leave to defend if a substantial or fair defense is raised, and a triable issue is indicated.

JUDGMENT :

G.S. SISTANI, J.

1. This is an appeal against the judgment passed by a learned Single Judge of this Court in a suit instituted by the respondent under the provisions of Order XXXVII of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”) for recovery of Rs. 3,25,56,496/- along with interest. For the sake of convenience, the appellant shall be referred to as ‘Cargill’ and the respondent/plaintiff as ‘DM’.

2. On 17.10.1996, DM joined the services of Bharat Cargill Holding Pvt. Ltd. as a Manager, Trade Finance. He completed his probation in the year 1997. Post confirmation, his services were transferred to Cargill. DM continued to serve Cargill till he resigned on 07.12.2009.

3. The suit of DM was based on a claim for bonus, which was guaranteed to him for the years 2006-2007, 2007-2008 and 2008-2009. The relevant clause on which the deferred incentive was to be provided to an employee is extracted below along with the forfeiture provisions:

“DEFERRED INCENTIVES

Deferred incentives will be deferred for a period one (1) to three (3) Fiscal Years measured from the Grant Date of the award, as a function of the Individual Incentive Award amount, in accordance with the schedule below. Deferred Incentives will be paid out in annual installments over the deferred period. Each annual installment is computed by dividing the total outstanding Deferred Incentive balance (plus accrued interest thereon) as of May 31 preceding the relevant distribution date, by the years remaining in the deferral period.

Interest Rate Applied to Deferred Incentive

Deferred Incentive amounts will earn interest at the one-year USD LIBOR plus one percent per annum spread, which will be compounded annually. The USD LIBOR +1% will be set each Fiscal Year based on the prevailing one year USD LIBOR as quoted by Cargill Treasury on June 1st (or the next working day) of each succeeding Fiscal Year, Interest will be calculated annually over the remaining deferral period based on the remaining unpaid balance (including previous interest amounts calculated but not paid).

FORFEITURE PROVISIONS

Deferred incentives that have been awarded but not distributed will be forfeited if the Participant (1) is Terminated for Cause, or (2) (a) voluntarily separates from service with the Company or is Terminated for Sub-standard Performance, and (b) continues a career within the financial or commodity trading industry outside of the Company within a period of 2 years from the date of termination (referred to as the Two-year, Non-compete period). Continuance of a career within the financial or commodity trading industry is defined as employment by consulting with, establishing, or having a substantial ownership interest in any organisation, which competes with the Company for employees, customers, clients, market share, or financial/commodity resources or deals.

Deferred incentives will not be forfeited under the following circumstances:

? A Participant’s Reduction In Force (RIF), Disability or death.

? A Participant who voluntarily separates from service with the Company, Retires from the Company, or is Terminated for Sub-standard Performance and who does not compete within the Two-year, Non-compete period.

In the event that a Participant seeks to engage in an activity or an employment relationship that may violate the Two