: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMARY SUIT NO.2301 OF 2009 Venus Synthetics .. Plaintiffs v/s. Krishna Fab .. Defendants & Anr. ......... Mr. S.C. Naidu a/w. Y.C. Naidu, M.M. Gujar, S.D. Kulkarni i/by C.R. Naidu & Co. for the plaintiffs None for the defendants ......... CORAM : R.Y.GANOO, J. DATE : 5TH APRIL, 2010. P.C. : 1. The present suit is filed by the plaintiffs for recovery of monies in regard to goods sold and delivered covered by 22 invoices as set out in particulars of claim at Exh.G. According to the plaintiffs, the goods were placed in the hands of a transporter by name South Gujarat Transport Pvt. Ltd. and the said goods have been delivered to the defendants and the defendants have issued ‘C’ forms in regard to the invoices described in Exh.G. According to the plaintiffs, the demand notices in regard to the suit : 2 : goods were issued being notices dated 10th June, 2009 and 20th June, 2009 and the defendants have failed to pay the amounts covered by these 4 invoices. The plaintiffs have claimed interest @24% per annum on the basis of the text of the invoices. 2. Learned advocate for the plaintiffs has submitted that the defendants have not filed Vakalatnama and, therefore, this being a Summary Suit, the suit has been posted for ex-parte decree and, therefore, the averments in the plaint ought to be accepted by the Court as true and correct and decree should be passed. 3. In support of the case of the plaintiffs, learned advocate for the plaintiffs had submitted that lorry receipts were duly despatched to the defendants and that in accordance with the provisions of Section 23 as well as Section 39 of the Sale of Goods Act, 1930 (hereinafter referred to as the said Act) the moment, the said goods were entrusted in the hands of the transporter, the title in the said goods passed from the plaintiffs to defendants and, therefore, the defendants are liable to pay for the suit goods. Learned advocate for the plaintiffs had submitted that two ‘C’ forms dated 23rd December, 2008 were duly issued by the defendants. Plaintiffs have produced the counterfoils of the same. According to : 3 : plaintiffs issuance of “C” forms by the defendants shows that the transaction between the plaintiffs and the defendants had materialized and that defendants had received the goods. According to learned advocate for the plaintiffs, if the defendants had not received the goods in question, they would not have issued the ‘C’ forms. According to him, this being an Inter State transaction, the moment the goods were delivered to the transport operator, the defendants are said to be in possession of the goods and, therefore, the defendants are liable to pay for the costs of the goods. Learned advocate for the plaintiffs had taken me through the terms and conditions at Sr. nos.1 and 2 set out in the invoices as regards the delivery of the goods and according to him the transaction between plaintiffs and defendants was subject to terms and conditions. According to learned advocate for the plaintiffs reading of the terms on the invoice supports his contention that once the goods set out in the invoices are entrusted with the transporter, the delivery is complete as far as the defendants are concerned and the defendants ought to pay for the goods along with the interest. 4. I have heard learned advocate for the plaintiffs. I have perused the entire record. The argument advanced by learned advocate for the plaintiffs that in a Summary Suit if the defendants do not file Vakalatnama, : 4 : the case of the plaintiffs should be straight away accepted, cannot be accepted. In my view, in a summary suit, it is necessary for the Court to consider the entire record, peruse the original documents on which the plaintiffs have placed reliance, consider the provisions of law and satisfy itself whether the plaintiffs have made out a case for a decree and then pass a decree in favour of plaintiffs. I have accordingly considered the submission of learned advocate for plaintiffs and perused the record. 5. It is true that perusal of the lorry receipts, which are produced before the Court indicate that certain goods have been entrusted with South Gujarat Transport Pvt. Ltd. and the name of consignor is mentioned as the plaintiffs, name of consignee is mentioned as defendants. However, there is nothing placed on record to show that after the goods were entrusted in the hands of the transporter, the defendants were duly informed at least by way of an ordinary letter informing the defendants that the goods have been entrusted with the transporter. In order to make the defendants liable on the strength of the argument that once the goods are handed over to the transporter, the transaction is complete, it was absolutely necessary that the plaintiffs should have informed the defendants that the goods have been duly handed over to the transporter so that the defendants would approach the transporter at the place of : 5 : delivery and collect the goods. No material is placed to show that such an intimation was given and received by defendants. In the absence of such letter, it would be difficult to understand as to how the defendants would come to know about the entrustment of goods with transporter. 6. The plaintiffs have placed on record affidavit dated 26th March, 2010 enclosing therewith letter from the transporter stating that the goods covered by the 4 invoices were delivered to the defendants. In my view, in the normal course, if the original lorry receipts are handed over to the defendants and if the transporter delivered the goods to the defendants he would obtain the original lorry receipts duly signed by the defendants in token of having received the goods and forward the same to the plaintiffs to show and create a record that the goods have been delivered to the defendants. In the present case, nothing in this behalf has happened. Hence, plaintiffs have not been able to show that the goods are delivered to the defendants. I am inclined to observe that letter from the transporter certifying therein that the goods have been delivered to the defendants, cannot be considered as a proper document to show that the goods have been delivered because the transporter has been chosen by the plaintiffs. Nothing is shown to say that the name of transporter was agreed by and between parties or the transporter was nominated by defendant. In such a : 6 : case it would be unsafe to accept the letter relied upon by plaintiffs on the back drop of what is stated above. 7. I have considered the arguments advanced by learned advocate Mr. Naidu in connection with the provisions of Section 23 and Section 39 of the said Act. It is pertinent to note that Section 39 uses the following terminology :- “...is prima-facie deemed to be a delivery of the goods to the buyer”. In my view, at this stage, when the Court is considering whether decree should be passed in favour of the plaintiffs, the Court has to consider the case from all angles and then arrive at conclusion. The Court has to come to the conclusion on the basis of record that goods have been delivered and on satisfaction of facts relating to delivery of goods decree can be passed. 8. If the plaintiffs would have shown that defendants were infromed about lodgement of goods with transporter, the plaintiffs would have been able to get the benefit of provisions of Section 23 as well as Section 39 of the said Act. Since plaintiffs have failed to show that plaintiffs had handed over the goods to the transporter with intimation thereof to the defendants, it will not be possible to take recourse to Section 23 as well as : 7 : Section 39 of said Act. I, therefore, hold that plaintiffs have failed to show that goods were delivered to defendants. 9. It was argued by learned advocate for the plaintiffs that the defendants had issued ‘C’ forms and two challans in regard to the same have been relied upon. My attention was drawn by learned advocate for the plaintiffs to the portion found at bottom of the said challan, which is in the nature of certificate to be issued by the purchaser. It is pertinent to note that the said certificate is required to be filled in by mentioning therein the purchase order number, date of the purchase order as also to give the bill / cash memo / challan number and the date. The relevant portion of the said challan is reproduced for the better understanding of this matter. Purchase order No. ____ dated ______ and purchased from you, Supplied as per your bill cash memo, Challan no. ___ dated ___. The said certificate on the reverse bears the date. 10. In the persent case, the blanks which are mentioned above have not been filled by the defendants as also date is not mentioned. On the reverse, one can find a rubber stamp of Krishna Fab and the signature of a person who is supposed to be a proprietor with Invoice number and amount. In substance, the ‘C’ form challan, on which plaintiffs are heavily relying are : 8 : not duly filled in and, therefore, a doubt is raised about the validity and correctness of the said form. Having seen that purchaser M/s. Krishna Fab have not filled any particulars mentioned in the aforesaid portion clearly goes to indicate that the said ‘C’ form have not been duly issued by the defendants ‘after receiving the said goods’. If the said ‘C’ form would have been issued after receiving the said goods, defendants would have filled in all the necessary particulars to make the said ‘C’ form complete in all respects. It is in these circumstances, argument advanced by learned advocate for the plaintiffs that the production of two ‘C’ forms challans by the plaintiffs which are forming part of the original documents, does not constitute sufficient material to show that the said goods have been duly delivered to the defendants. In substance, looking to the case from all angles, I am inclined to observe that the plaintiffs have failed to show that they have delivered the goods to the defendants and / or the goods have been duly delivered by the transport operator to the defendants. 11. It is true that two demand notices have been relied upon by the plaintiffs and according to the plaintiffs those demand notices have not been replied by the defendants. In my view, merely because these demand notices have not been replied by the defendants, it cannot be said that the goods have been duly delivered to the defendants. : 9 : 12. For the reasons mentioned aforesaid, I hold that the plaintiffs have failed to show that the suit goods were duly delivered to the defendants and as such plaintiffs have failed to make out a case to get a decree as prayed for. The suit wil have to be dismissed. Hence, I pass the following decree. DECREE (i) The Suit is dismissed. (ii) In the facts and circumstances of this case, there shall be no order as to costs. [R.Y.GANOO, J.]