SHRI MANOHAR SINGH VS ABDUL WARIS AND ANR-Contempt and LC

IN THE HIGH COURT OF DELHI AT NEW DELHI
 
   05.05.2009
 
 
 
  Present: Mr. S.K. Bansal and Mr. S.P. Ojha, Advocates for the plaintiff.
 
   IA No. 6015/2009 (of the plaintiff u/O 39 R 2A CPC) in CS(OS) No. 1903/2008
 
  The counsel for the plaintiff along with this application has also prayed
  for the relief in IA 5192/2009 for appointment of Court Commissioner. On 21st

  April, 2009 when IA No. 5192/2009 had come up for hearing, it was felt that the

  Court Commissioner could not be appointed for collecting evidence. The counsel

  for the plaintiff/applicant has contended that the defendants are defeating the

  interim order by continuing to sell the infringing goods through the various

  parties particulars whereof are given in this application as well as in the

  application for appointment of Court Commissioner and who are stated to be the

  distributors of the defendants. The infringing goods stated to be purchased by
  the plaintiff after the interim order has also been shown. The same does not
  contain any date of manufacturing or batch number. In fact the packaging of the
  defendants filed along with the suit also does not contain any date of
  manufacturing or batch number. The counsel for the plaintiff has contended that
  without the same it is absolutely impossible for the plaintiff to establish
  before this Court

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  that the defendants have violated the order of the Court. Reliance is also
  placed on Autodesk Incorporated vs. AVT Shankardass 2008 (37) PTC 581 Delhi DB
  wherein though guidelines for appointment of the Court Commissioner in cases of
  software infringement/piracy were laid down, it was held by the Division Bench
  that in such matters in the absence of ex parte appointment of Court
  Commissioner there is likelihood that the evidence may be lost, removed or
  destroyed. It was further held that it is imperative to have an element of
  surprise so that actual position is not altered.

  The counsel for the plaintiff/applicant has pressed for an order also of
  seizure of the infringing goods found at the premises of the distributors and
  stockist of the defendants. It is contended that they being the agents of the
  defendants are also bound by the injunction order.

  Order of seizure of goods found in the possession of the parties who are
  not parties to the present suit is not considered appropriate. However, there is
  merit in the other contentions of the counsel for the plaintiff.

  In the circumstances, the following are appointed as Court Commissioners
  to visit the premises mentioned against their names.

  Page 2 of 4

   Sl. No.

  Name
  Premises to visit
  1.
  Mr. Akshay Chandra
  Advocate
  Mobile No.: 9910401230
  Ram Krishna makhija and Sons
  5609, Gandhi Market, Sadar Bazar, Delhi-110006
  
  
  Narinder Cosmetic
  5211/2. IInd Floor, Ganga Ram Ki Sarai, Guru Nanak Building, Gandhi Market,
  Sadar Bazaar, Delhi-110006
  
  
  Ginni Traders,
  5543/1, Gandhi Market, Sadar Bazaar, Delhi-110006
  
  
  
  
  Novelty General Store
  5690/1, Gandhi Market, Sadar Bazaar, Delhi-110006
  2.
  
  Mr. Saurabh Banerjee
  Advocate
  Mobile No.: 9810282282
  Attar Chand Tej Kumar
  5607, Gandhi Market, Sadar Bazaar, Delhi-110006
  
  
  Maya Devi and Sons
  5219/4, Masjid Wali Gali, Gandhi Market, Rui Mandi, Sadar Bazar, Delhi-110006
  
  
  Arora Enterprises
  5442, New Market, Sadar Bazar, Delhi-110006.
  3.
  Ms. Padma Priya
  Advocate
  M/s. Kini and Associates
  Mobile No: 9910531145, 24371038
  B-3/17C, DDA Flats Inder Lok
  Delhi-35
  The Court Commissioners to make inventory of all goods and packaging found
  at the aforesaid premises and godowns containing the mark ?SANARANG? and the
  infringing artistic work and all the books/sale vouchers/bills, if any, found
  containing the record of sale of the said goods after 12th September, 2008. If
  any infringing goods are found at the premises of the defendants,

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  the Court Commissioners to seize the same and to after sealing the same entrust
  the same on superdari to the person, if any, offered by the defendants failing
  which to any person offered by the plaintiff. The Court Commissioner shall also
  be entitled to break open locks/doors, if any. The SHO of the concerned police
  station are directed to render all necessary assistance for execution of the
  commission, if called for. The fee of each of the Court Commissioner is fixed
  at Rs. 25,000/- to be borne by the plaintiff. The commission be executed within
  three weeks. IA No. 5192/2009 is disposed of.

  Issue notice of IA No. 6015/2009 to the defendants through counsel on the
  plaintiff taking requisite steps, returnable before the Joint Registrar on 14th
  July, 2009.
  
  RAJIV SAHAI ENDLAW,J
  May 05, 2009
  rb
  
  
  
  
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