Ali FJ:

We allowed this appeal and now give our reasons.

The appeal arose out of an order by the Assistant Registrar, High Court lpoh granting the respondent unconditional leave to defend the action against him. The claim is founded on a debt due from the respondent under a written agreement. The respondent admitted signing the agreement but denied liability on grounds, namely, lack of certainty, implied recission, a mistake of fact and a breach of contract by the appellant. The writ being specially endorsed and taking the view that there was no defence to the claim the appellant applied for summary judgment. In his affidavit he dealt with the various grounds of defence raised. On the defence allegation of breach of contract for having failed to hand over or transfer four shares in West Lake Timber Sdn. Bhd., he referred to a letter from the respondent dated 23 January 1971 in which she acknowledged receiving the share transfer forms of the four shares. In her counter-affidavit she said she could not remember signing the letter although she admitted that the signature was hers. Notwithstanding this point against her the Assistant Registrar made an order in the following terms:

Unconditional leave to defend granted. (Issue similar to those in CS 196/71. Security already furnished there). Costs in the cause."

The appellant appealed to the High Court asking that the order be made conditional. Wan Hamzah J dismissed the appeal taking the view that there are triable issues to go to trial. He also said that there was no evidence to show that the defence was a sham. In cases of this nature it is well established that summary judgment under O. 14 will not be granted if there is a triable issue to go to trial. This is so even if the merit of the defence case is not apparent from the defence filed or from the affidavit showing cause. Here it has clearly been shown that there is doubt as to the I bona fides of the defence case and it was, therefore, only right or just that the defendant be asked to furnish security. That is to say, leave to defend should have been conditional. We say nothing of the matters raised in the pleadings but we are of the view that in the circumstances of this particular case the Assistant Registrar erred in not making the order conditional.

Accordingly, we allowed this appeal with costs and directed that leave to defend granted is conditional on the respondent depositing the amount claimed into Court within one month.

Appeal allowed.