ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)

Having noted the averments made in paragraphs 7, 8, 13 and 20 of the application for obtaining leave to defend filed on behalf of the defendant – petitioner herein under Order XXXVII Rule 5(3) of the Civil Procedure Code, 1908, we find that the transaction of Rs.5,00,000/- between the parties on 25.1.2018 through Kotak Mahindra Bank A/c. No.3011685297 is admitted. As per the contention of the defendant in the application seeking leave to defend, the petitioner had entrusted the work of installation of machinery already purchased by it from other vendors/suppliers, to the plaintiff herein and had thus paid an amount of Rs.5,00,000/- on 25.1.2018. It is sought to be stated therein that the said payment made by the defendant to the plaintiff is shown as payment received against fake invoices raised by the plaintiff. The submission, thus, is that the invoices generated by the plaintiff, relied by the Commercial Court to establish the supply made by the plaintiff to the defendant, are fake invoices. 2. As against this statement, the stand of the plaintiff is that Rs.5,00,000/- paid by the defendant was advance towards the supplies made by the plaintiff and the invoices are of the year 2017 with respect to which the recovery suit has been filed.

3. We may take note of the stand of the defendant in the application seeking leave to defend by making statement in paragraph ‘13’ that it is very strange that defendant being based at Kamrup, Assam would order for supply of goods and machinery from the plaintiff who is based at Ahmedabad, that too without any offer in terms of the purchase order. Taking note of the said statement, we find it also strange that the defendant based at Assam, would engage the plaintiff for installation work of the machinery supplied by other supplier, and the plaintiff would enter into such work for only an amount of Rs.5,00,000/- only.

4. For the aforesaid, the bald denial made on the part of the defendant about any transaction for supply of goods seeking to assert that the invoices submitted by the plaintiff are fake documents, is not believable. Moreover, the Commercial Court has directed for conditional deposit of only Rs.4,83,800/-, which amount is to be kept in the fixed deposit receipt and is not to be disbursed to any of the parties. The matter on merits is yet to be examined by the Commercial Court. We do not find any justification to interfere with the order of the Commercial Court asking the defendant to deposit only 10% of the amount claimed by the plaintiff. No illegality much less manifest illegality can be shown by the petitioner herein – defendant in the decision of the Commercial Court so as to invoke the supervisory jurisdiction of this court under Article 227 of the Constitution of India. The present petition is accordingly, dismissed.

5. For the facts of this case, reliance placed on the decision of the Apex Court in case of B.L.Kashyap & Sons Ltd. v. JMS Steels & Power Corporation & Anr. [(2022) 3 SCC 294] is of no benefit to the petitioner.

6. It is clarified that the observations made hereinabove are only to examine the validity of the order passed by the Commercial Court, which is in nature of an interim order. The Commercial Court is directed to decide the suit independently without being influenced by any of the observations made hereinabove.

7. The request made by the learned counsel for the petitioner for grant of reasonable time to make the deposits under the directions of the order impugned, is turned down for the reason that the order passed in the month of August-2023 has been challenged by the presentation of the present petition in the month of December-2023. When there was no challenge, it was incumbent upon the petitioner to comply with the directions contained in the order impugned for deposit of the amount in question within a period of four weeks from the date of order. The petitioner is, therefore, obl