Application under Section 151 CPC for de-sealing of godown sealed by local commissioner
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Name of the court and designation of the presiding officer
I.A. NO. Application (I.A.) number OF Year of the I.A. number.
IN
CS (COMM.) NO. Commercial suit number OF Year of the commercial suit number.
(Old Suit No. TM No.Old trademark suit number/2017)
IN THE MATTER OF :-
Plaintiff's name: PLAINTIFF
VERSUS
Defendant's name: DEFENDANT
N.D.O.H.: Date of next date of hearing
APPLICATION ON BEHALF OF THE APPLICANT / DEFENDANT, NAMELY Applicant/defendant's name, UNDER SECTION 151 OF THE CIVIL PROCEDURE CODE, 1908, SEEKING DE-SEALING OF THE GODOWN OF THE SUIT PREMISES, WHICH WAS SEALED BY THE LEARNED LOCAL COMMISSIONER.
MOST RESPECTFULLY SHOWETH :-
1.That the captioned suit has been filed by the plaintiff for permanent and mandatory injunction, damages and rendition of accounts, with allegations of infringement of registered trademarks and copyright against Mr. Name of person against whom infringement is alleged, and the same is pending before this Hon'ble Court since Pendency period of suit, for arguments on an application under Order I Rule 10 of the Civil Procedure Code, 1908 filed by the plaintiff.
2.That on Date of appointment of local commissioner, this Hon'ble Court was pleased to appoint the Local Commissioner, who inspected the premises of the defendant and thereafter seized the allegedly infringing goods and affixed a seal upon the godown of the suit premises, after preparing an inventory of the goods lying in the said godown.
3.That the said Local Commissioner also took photographs of the articles; the identity of the said articles is also in dispute, since the same did not belong to the applicant, who was nevertheless compelled to retain them in superdari. It is needless to state that the applicant has no concern with the said disputed articles and has been unnecessarily impleaded as a defendant.
4.That the learned Local Commissioner inspected the subject property and submitted a report wrongly observing that the articles lying in the said godown belonged to the defendant, despite the fact that the defendant had already stated to the Local Commissioner, at the time of the inspection, that the goods lying in the godown did not belong to the defendant and were the concern of another person.
5.It is submitted that the plaintiff has implicated the applicant in the present case despite being aware that the articles do not belong to the defendant. The plaintiff initially filed the present case against a fake name of the defendant, i.e. Fake name of defendant used by plaintiff, merely to obtain a favourable order from this Hon'ble Court.
6.It is further submitted that the defendant is not the owner of the suit property and is only a tenant in the said premises, i.e. House/shop number of suit premises, Ground Floor, New Market, Near Landmark near suit premises, Locality of suit premises, Delhi-PIN code of suit premises. The goods recovered by the Local Commissioner do not belong to the defendant, and at the time of the execution of the commission, the defendant had already informed the Local Commissioner that the defendant had no concern with the said goods, which were the concern of another person. The defendant is running a business of socks/hosiery and is not engaged in the business of cosmetics. The defendant has no concern with the trademarks/trade dress and copyright in respect of which the present suit has been filed. Hence, the purpose and relief of the suit have become infructuous, as the subject matter of the suit does not belong to the defendant in any manner.
7.It is submitted that on Date of MCD demolition, the Municipal Corporation of Delhi demolished the top roof of the suit premises, as a result of which water leaked from the said demolished portion and accumulated in the sealed godown, where perishable and consumable goods have been lying since Date since goods lying in godown.
8.That the articles/goods lying in the said godown are perishable and consumable in nature and have a very short usable life; the said goods are decaying and emitting a foul smell owing to the leakage of water from the demolished top roof of the suit premises, and the said goods are decaying and polluting the environment owing to the seal, as they have a very short life and have been lying sealed in the godown since Date since goods sealed.
9.It is submitted that the continued sealing of the said godown serves no purpose and resolves no issue concerning the outcome of the present suit; the sealed godown, sealed since Date since godown sealed, must necessarily be reopened/de-sealed and the water leakage repaired, failing which the leakage may lead to a short circuit.
10.It is submitted that the space occupied by the said articles/goods disturbs the entire affairs of the business of the applicant; hence, the sealing of the said goods/articles along with the entire premises belonging to the defendant is bad in law and contrary to the factual matrix of the case. The applicant has, from the very inception, disputed the identity and ownership of, and any kind of possession over, the said articles.
11.That no fruitful purpose would be served by retaining the articles with the applicant, which admittedly do not belong to, and are admittedly not in the possession of, the applicant.
12.It is further submitted that the right to trade and business is a fundamental right, and the continued stocking of the alleged inventory in the premises of the applicant is bad in law.
13.It is further submitted that the plaintiff deliberately and intentionally gave the impression to this Hon'ble Court that the said sealed articles/goods lying in the godown belong to the applicant, and filed the present suit against a fake name of the defendant, i.e. Fake name of defendant used by plaintiff, so as to obtain a favourable order from this Hon'ble Court. The applicant reserves his right to initiate proceedings for perjury against the plaintiff.
14.It is further submitted that the applicant/defendant is suffering huge loss and mental agony on account of the sealing of the said godown, as the defendant is the tenant of the said godown and continues to pay rent for the same, while the socks/hosiery business of the defendant has suffered huge losses. The plaintiff has filed the present case in respect of trademarks of cosmetic items, whereas the business of the defendant is entirely different and forms no part of the subject matter of the present dispute. Hence, the present suit is liable to be dismissed on this ground alone.
15.That the applicant/defendant has been constrained to file the present application for de-sealing of the godown of the suit premises, as the godown of the subject property has remained sealed since Date since godown sealed; there is water leakage owing to the demolition carried out by the MCD, and the godown urgently requires repair, as the electricity wires as well as the internal pipelines have been severely damaged; the goods lying therein are also decaying and emitting a foul smell owing to water seepage, and the walls/roof of parts of the subject property have become damp and damaged, which may lead to a short circuit.
16.It is further submitted that no structural deviation or unauthorised construction is being carried out at the subject property; the work is merely a renovation, necessitated by the structural condition of the premises and by frequent leakage of electricity and water, which has led to acute dampness.
17.Hence, the present application is bona fide and has been filed in the interest of justice.
PRAYER :-
It is, therefore, most respectfully prayed that, in view of the facts and circumstances stated above, this Hon'ble Court may graciously be pleased to:
a.De-seal the godown of the suit premises, along with the articles/goods lying in the said godown, in the interest of justice.
d.Pass such further order(s) as may be deemed fit and proper in the facts and circumstances of the case.
Place of execution/signingDEFENDANT/APPLICANT
DATED: Date of filing of the applicationTHROUGH
Counsel's name
ADVOCATE
Counsel's address
Email: Email address of counsel
Name of the court and designation of the presiding officer
I.A. NO. Application (I.A.) number OF Year of the I.A. number.
IN
CS (COMM.) NO. Commercial suit number OF Year of the commercial suit number.
(Old Suit No. TM No.Old trademark suit number/2017)
IN THE MATTER OF :-
Plaintiff's name: PLAINTIFF
VERSUS
Defendant's name: DEFENDANT
AFFIDAVIT
Affidavit of Mr. Deponent's name, aged about Deponent's age years, S/o Sh. Deponent's father's name, R/o Deponent's address, presently at Place where affidavit is sworn, do hereby solemnly affirm and declare as under:-
1.That I am the applicant/defendant in the present case, and I am well conversant with the facts and circumstances of the case and am competent to swear and file the present affidavit.
2.That the contents of the accompanying application under Section 151 of C.P.C. have been read over and explained to me in the vernacular language, and having understood the same, I state that the facts stated therein are true and correct to the best of my knowledge and belief, and nothing material has been concealed therefrom.
DEPONENT
VERIFICATION :-
Verified at Place of verification on this Date of verification. That the contents of the above affidavit are true and correct to my knowledge, no part thereof is false, and nothing material has been concealed therefrom.
DEPONENT