( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.120 OF 2008 SUMMONS FOR JUDGMENT NO.120 OF 2008 SUMMONS FOR JUDGMENT NO.120 OF 2008 IN IN IN SUMMARY SUIT NO.620 OF 2002 SUMMARY SUIT NO.620 OF 2002 SUMMARY SUIT NO.620 OF 2002 Consumer Plastics Pvt. Ltd. ...Plaintiffs V/s. Special Paints Ltd. ...Defendants Mr.Vishal Kanade with Mr.M.S. Delhvi i/b. M/s.Nagandhi Shah & Himayatullah for the Plaintiffs. Mr.Anil Menon for the Defendants. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. DATED : 4th December, 2008. DATED : 4th December, 2008. DATED : 4th December, 2008. P.C.: P.C.: P.C.: . Learned Counsel for the Defendants had filed sur-rejoinder dated 4th December, 2008. Learned Counsel for the Plaintiffs proceeded on the basis of the denials so far as the said sur-rejoinder is concerned and that is how the pleadings were taken to have been completed and the hearing was conducted. Affidavit-in-rejoinder was filed by the Plaintiffs on the last occasion. It has not been tagged with the record. Counsel for the Defendants had made his copy available to the Court. The same is returned to the ( 2 ) Advocate after hearing of this Summons for Judgment was over. 2. The Plaintiffs have filed Suit for recovery of cost of the goods delivered in regard to two invoices which are at Exhibits "A-1" and "A-2" to the plaint. 3. The Defendants have contended that the said goods were never delivered to them. 4. In view of the aforesaid controversy, it became necessary for the Court to ascertain whether the Plaintiffs did deliver the goods to the Defendants. Learned Counsel for the Plaintiffs drew my attention to the invoices at Exhibits "A-1" and "A-2" and contended that because the Plaintiffs paid excise duty while taking the goods out of the factory premises and such payment of duty is mentioned on the invoices, it would go to show that the goods have been duly delivered to the Defendants. In my view, such an argument cannot be accepted, because the invoices at Exhibits "A-1" and "A-2" may at the most go to show that the goods were taken out of the factory premises with an intention to deliver and excise duty has been paid. In my view, these documents would not go to show that the goods were duly delivered. ( 3 ) 5. Affidavit-in-rejoinder came to be filed and two documents namely Exhibit "A" and Exhibit "B" have been relied upon to show that the goods were delivered. These two documents are extracts of statement maintained by the Plaintiffs to show how much quantity of goods were taken out of the factory premises and what amount of duty is paid. It is to be noted that this statement in the form of a register is maintained by the Plaintiffs without reference to the Defendants and it is maintained by way of a parallel record in accordance with the rules of the Excise Department and in line with the invoices which have been issued. In my view, these documents by themselves do not show that the goods were delivered. 6. A "C" Form duly signed by the Defendants was relied upon. Undoubtedly, it bears the signature for and on behalf of the Defendants. Annexed to that "C" Form, certain invoice numbers and dates and the figures are mentioned. My attention was drawn to last item pertaining to Invoice No.132 for Rs.1,52,880/- which forms a part and parcel of the suit amount. On the basis of this document, it was again contended that the goods have been delivered to the Defendants. In my view, looking into these documents independently, there is nothing to show that the goods were delivered because it is normal experience that ( 4 ) "C" Forms are obtained from the purchasers well in advance so that the supplier does not find difficulty in claiming the benefits under the Central Sales Tax. Mere delivery of "C" Form by the Defendants by itself may not go to show that the goods were delivered. 7. Taking the three documents which have been discussed above together also, there is nothing to show that the goods were delivered. In my view, if the Plaintiffs have not been able to make out the case that the goods were delivered to the Defendants, this itself becomes a triable issue and therefore, the Defendants are entitled to unconditional leave. Hence the order. "O R D E R" "O R D E R" "O R D E R" "(1). Unconditional leave is granted to the Defendants to defend the Suit. (2). Defendants to file written statement directly in this Court on 19th January, 2009." 8. Suit is adjourned to 19th January, 2009, for W.S. 9. Summons for Judgment is disposed of in above ( 5 ) terms with no order as to costs. (R.Y. GANOO, J.) (R.Y. GANOO, J.) (R.Y. GANOO, J.)