IN THE COURT OF MS. TWINKLE WADHWA; LD. ADJ-03; DIST. CENTRAL; TIS HAZARI COURTS, DELHI.

I.A. NO. ______ OF 2022.

IN

CS (COMM.) NO. __ OF 2020.

(Old Suit No. TM No.__/2017)

IN THE MATTER OF :-

XXXXXXXXXXXXX.                                : PLAINTIFF

VERSUS

XXXXXXXXXXXXXX                                      : DEFENDANT

N.D.O.H.: XXXXXXX

APPLICATION FOR AND ON BEHALF OF APPLICANT / DEFENDANT NAMELY XXXXXX UNDER SECTION 151 OF CIVIL PROCEDURE CODE SEEKING FOR DE-SEALING OF THE GODOWN OF THE SUIT PREMISES WHICH WAS SEALED BY THE LD. LOCAL COMMISSIONER.

MOST RESPECTFULLY SHOWETH :-

1.          That the captioned suit 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. XXXXXX and same is pending before this Hon’ble Court for XXXXX for arguments on Application under Order 1 Rule 10 of CPC filed by the plaintiff.

2.          That on XXXXX this Hon’ble Court was pleased to appoint the Local Commissioner who had inspected the premises of the defendant and thereafter, seized the infringing goods and affixed the seal on the godown of the suit premises, after taking the inventory lying in the godown of the suit premises.

3.          That the said Local Commissioner also took the photographs and the identity of articles is also in dispute since the same were not belonging to the applicant still was compelled to retain the same in superdari. Needless to say, that the applicant has no concerned with the said disputed articles and unnecessary been impleaded as defendant.

4.          Ld. Local Commissioner inspected the subject property and submitted its report wrongly observing that the articles lying in the said godown was belongs to the defendant, despite the fact that defendant already stated to the Local Commissioner at the time of inspection that goods lying in the godown is not belonging to the defendant and there is concerned with another person.

5.          It is submitted that the plaintiff has indulged the applicant in the present case despite the knowledge that the articles do not belong to the defendant. Initially plaintiff has filed the present case with a fake name of defendant i.e. XXXXXX     just to get the favourable order from Hon’ble Court.

6.          It is further submitted that the defendant is not the owner of the suit property and the defendant is the tenant in the said premises i.e. XXXX, Ground Floor New Market, Near XXXXXX, XXXXX, Delhi-XXXX. The goods recovered by the Local Commissioner are not belongs to the defendant and at the time of execution of the commission, the defendant already stated to the Local Commissioner about the fact that the defendant is no concerned with the goods and the goods lying there is concerned with another person. The defendant is running the business of socks / hosiery and he is not involving in the business of cosmetic. The defendant has no concerned with the trademarks / trade and copy rights for which the present suit was filed. Hence, the purpose and relief of the suit was infructuous as the subject of the suit is not belongs to the defendant in any manner.

7.          It is submitted that in …….. the Municipal Corporation of Delhi was demolished the top roof of the suit premises, due to which water was leakage from the said demolished portion and water was stored in the sealed godown where the perishable and consumable goods are lying since XXXX.

8.          That the articles / goods lying the said godown are perishable and consumable in nature and have a very short live to use it, the said goods are decaying and smelling due to leakage of water from the demolished top roof of the suit premises and the said goods decaying and polluting the environment due to seal as the goods have a very short life and lying sealed in the godown since XXXX.

9.          It is submitted that lying sealing of the said godown was no use and solving the any purpose of the outcome of the present suit and the sealed godown since XXXX is necessary to reopen / de-sealing the godown and repair the water leakage, in the absence of the same which have lead to short circuit.

10.       It is submitted that the space occupied by the said articles / goods disturb the entire affairs of the business of the applicant thus sealing of the said goods / articles along with the entire premises belonging to the defendant is bad in law and against the factual matrix of the case. The applicant rights from the inception disputed the identity and ownership or in any kind of possession of the said articles.

11.       That no fruitful purpose would survive to retain the articles with the applicant which are admittedly not belonging to or not in possession of applicant.

12.       It is further submitted that right to trade and business is a fundamental right and due to the said stocking of the alleged inventory in the premises of the applicant is bad in law.

13.       It is further submitted that the plaintiff deliberately, intentionally gave an impression to this Hon’ble Court that the said sealed articles / goods lying the godown are belongs to the applicant and filed the present suit with a fake name of defendant i.e. XXXXXX and get the favourable order from Hon’ble Court. Applicant reserves his right to file case of perjury against the plaintiff.

14.       It is further submitted that the applicant / defendant is suffering from huge loss and mental agony due to the sealing said godown of the defendant as the defendant is the tenant of the said godown and he is still paying the rent of the godown and the socks / hosiery business of the defendant are suffered huge losses. Plaintiff filed the present case for trademark of cosmetic items, but the business of the defendant is totally different which is not subject matter of the present dispute. Hence, the present suit is liable to be dismissed on this ground.

15.       That the applicant / defendant has forced to file present application for de-sealing of the godown of the suit premises as the godown of subject property is lying sealed since XXXX, there is water leakage due to demolition by MCD and was in urgent need of repair as electricity wires as well as internal pipelines were severally damaged of godown and goods lying therein was also decaying and smelling due to the water seepage all the walls / roof of some of the part of the subject property got dampness and damaged resulting which have lead to short circuit.

16.       It is further submitted that no structure deviation or any construction is being carried out at the subject property rather it is only a mere renovation which was much in necessitated due to its structural conditions and frequent electric and water leakage which led to acute dampness.

17.       Hence, the present application is bonafide and in the interest of justice.

PRAYER :-

It is therefore prayed that in view of the facts and circumstances as submitted above, this Hon’ble Court may please to: -

a.     De-seal the godown of the suit premises along with the articles / goods lying the said godown, in the interest of justice.

d.     Pass such further order as may deem fit in view of the facts and circumstances as stated above.

DELHI                                      DEFENDANT/APPLICANT

DATED                     THROUGH

XXXXXXXXXX

ADVOCATE

XXXXXXXXXX,

New Delhi-110015

Email: XXXXXXXXXXX

IN THE COURT OF MS. TWINKLE WADHWA; LD. ADJ-03; DIST. CENTRAL; TIS HAZARI COURTS, DELHI.

I.A. NO. ______ OF 2022.

IN

CS (COMM.) NO. XXX OF 2020.

(Old Suit No. TM No.XX/2017)

IN THE MATTER OF :-

XXXXXXXXXXXXX.                                : PLAINTIFF

VERSUS

XXXXXXXXXX                                       : DEFENDANT

AFFIDAVIT

Affidavit of Mr. XXXXXX, aged about ….. years S/o Sh.XXXX  R/o XXXXXXXXXX, presently at New Delhi, do hereby solemnly affirm and declare as under:-

1.     That I am the applicant / defendant and I am well conversant with the facts and circumstances of the case and also competent to 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 vernacular language and having understood the same I say that the facts stated therein are true to the best of my knowledge and belief and nothing material has been concealed therefrom.

DEPONENT

VERIFICATION :-

Verified at Delhi on this ___ day of May, 2022. That the contents of the above Affidavit are true and correct to my knowledge, no part of it is false and nothing material has been concealed therefrom.

DEPONENT