: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMARY SUIT NO.1768 OF 2009 M/s. Welset Engineers .. Plaintiffs v/s. M/s. Bhagwati Auto Corporation .. Defendants ......... Mr. Pankaj Das i/by Mr. R.S. Datar for the plaintiffs None for the defendants ......... CORAM : R.Y.GANOO, J. DATE : 1st APRIL, 2010. P.C. : 1. The suit is taken up for ex-parte decree as defendants have not filed their Vakalatnama. The Plaintiffs have instituted this suit for recovery of Rs.1,60,163/- along with interest as set out in prayer clause (a). The plaintiffs claim that goods covered by 3 invoices as set out in particulars of claim at Exh.”J” were sold to the defendants and defendants have failed to pay the respective amounts covered by each invoices. The plaintiffs have prayed for interest as set out in the particulars of claim. 2. This being a suit for recovery of monies for the goods sold and delivered, I have enquired with learned advocate for the plaintiffs as to whether plaintiffs are producing the delivery challans duly receipted by the : 2 : defendants in token of having received the goods as I could not see such Delivery Challans on the original documents which were placed before the Court. In reply to this enquiry, learned advocate for the plaintiffs submitted that goods sold by the plaintiffs to the defendants were covered under the Central Excise Act and that plaintiffs had filed their returns under the Central Excise Act. According to learned advocate for the plaintiffs, filing of the returns on behalf of the plaintiffs is a proof that the plaintiffs had delivered the goods to the defendants. 3. I have considered the entire record and the submissions advanced by learned advocate for the plaintiffs. In my view, if a suit is being filed for recovery of monies for the goods sold and delivered, it is necessary for the plaintiffs to produce Delivery Challans duly receipted by the defendants as that is a fundamental document on the basis of which the case of the plaintiffs can be accepted. In the absence of such Delivery Challans duly receipted, if on record, one finds certain correspondence by which it is admitted by the defendants that the goods have been delivered that may prove that the defendants have received the goods. In the persent case, plaintiffs neither produced Delivery Challans nor produced any documentary evidence to show that the defendants admitted having received the goods. The question is whether the filing of the return by the : 3 : plaintiffs with the Central Excise Department in regards to the goods covered by the 3 invoices should be treated and should be equated with the plaintiffs having delivered the goods. Having considered the point, I am inclined to observe that the returns are filed by the plaintiffs without any counter signature of the defendants and, therefore, whether the goods have been delivered to the defendants or not cannot be said to have been duly made out by perusing the returns. Even if plaintiffs’ claim that they have filed the returns covering the 3 invoices that by itself is not sufficient to accept the caes of the plaintiffs that they have delivered the goods to defendants. In view of the above, I hold that plaintiffs have failed to show that they have delivered the goods of the defendants. In such case, plaintiffs’ case that plaintiffs are entitled to the monies covered by 3 invoices cannot be accepted and the plaintiffs suit will have to be dismissed. Hence, I pass following order. ORDER (i) Plaintiffs’ suit is dismissed. There shall be no order as to costs. [R.Y.GANOO, J.]