MR HIREN DOSHI DIRECTOR OF GMBELL HEALTHCARE INDIA PVT LTD MISREPRENSENTED TO COURT AND FILLED FAKE FABRICATED AFFIDAVIT ON OATH IN VARIOUS COURT OF GUJARAT/BOMBAY HIGH COURT. AND UNIVERSAL PHARMA APPEAL HAS BEEN CONFIRMED AGAINST GMBELL FOR CLOBET-GM/ENC GEL/FUNGDID-B ETC.
MR HIREN DOSHI DIRECTOR OF GMBELL HEALTHCARE INDIA PVT LTD MISREPRENSENTED TO COURT AND FILLED FAKE FABRICATED AFFIDAVIT ON OATH IN VARIOUS COURT OF GUJARAT/BOMBAY HIGH COURT. AND UNIVERSAL PHARMA APPEAL HAS BEEN CONFIRMED AGAINST GMBELL FOR CLOBET-GM/ENC GEL/FUNGDID-B ETC.
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MR HIREN DOSHI DIRECTOR OF GMBELL HEALTHCARE INDIA PVT LTD MISREPRENSENTED TO COURT AND FILLED FAKE FABRICATED AFFIDAVIT ON OATH IN VARIOUS COURT OF GUJARAT/BOMBAY HIGH COURT. AND UNIVERSAL PHARMA APPEAL HAS BEEN CONFIRMED AGAINST GMBELL FOR CLOBET-GM/ENC GEL/FUNGDID-B ETC.
Copyright:
Attribution Non-Commercial (BY-NC)
Available Formats
Download as TIF, PDF, TXT or read online from Scribd
IN THE HO~'BLE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL 'FROM ORDER NO. ~.3g' OF 2010
MIs Universal Pharma
a partnership firm
B/701, Sapath - 4
Opp, Karnavati Club,
S.G. Road,
Ahmedabad 380 006
.......... APPELLANT /5
(Orig. Defendant)
VERSUS
G.M. Bell Health Care Pvt. Ltd.
345/346, Mahagujarat Industrial Estate,
,
Moraiya,
Dist. - Ahmedabad
........... RESPONDENTS
(Org. Plaintiffs)
AN APPEAL FROM ORDER under Order 43 Rule l(r) of
Code of Civil Procedure against the order passed by
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" " . "
the Learned City ,Civil Judge, Ahmedabad" below Exh. 5
in Regular Civil. Suit No. 29 of 2008 dated
28/10/2010.
2
To, _
The Hon'ble the Chief Justice
and other Hon'ble Judges of the High Court of Gujaliat, Ahmedabad
o
MOST RESPECTFULLY SHEWETH THAT:'
1. The Applicant! Appellant being aggrieved by the order passed by the Learned Additional, District Judge of
I
Hon'ble District Court, of Ahmedabad below Exh. 5 an
application for injunction (Notice of Motion) dated zs"
October, 2010, beg to file present Appeal From Order before this Hon'ble Court. The said order is annexed herewith and mrrked as Annexure' A', The copy of the complete paper book is filed hereby with separate list.
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2. The facts of the case are briefly narrated as under: -
The appellant respectfully submits that the appellant is
the partnership firm having its registered office at
Ahmedabad and the appellant is engaged in the
business of manufacturing, marketing and selling
pharmaceutical products since long.
It is respectfully submitted that in the year 1992 Mr.
Jayesh K. Mehta, Satish K. Mehta and Mrs. Saryuben K.
3
Mehta had started partnership firm in the name and
style of M/s Universal Impex and they had adopted
trademarks namely CLOBET -GM, FUNGDID-B and
ENAC-GEL some where in the year 1997-98.
Thereafter, one of the partner Mr. Jayesh Mehta,
without any written and/or oral consent of the
remaining existing partners, had assigned the
impugned trademarks in favour of the respondent in
the year 2005. Therefore M/s Universal Impex came to
know that the use of the trademarks, universal Impex
had filed a Civil Suit No.3075/2006 in Hon'ble High
Court of Bombay against Universal Twin Labs and ors.
However, the said suit was withdrawn due to technical
reasons and with a p.ermission to file a fresh suit.
Thereafter, a 'fresh suit being Civil Suit NO.3422/2006
was filed along with Motion No.4300/2006 came to be
filed against Mr. Universal Twins Labs and the Hon'ble
. .
Mumbai . Court was pleased to refuse the injunction
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application.
.'
Thereafter, Mr. Satish K. Mehta had also filed a Civil
,
Suit NO.1342/2007 in the Hon'ble High Court of
Mumbai against Mr. Jayesh K. Mehta and the present
respondent. In the said matter Motion was also moved
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where under Hon'ble Mumbai High Cou~ was Pleased~~
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to grantinjun,ction restraining the present respondents. •
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In the said order Hon'ble Mumbai High Court was
pleased held that the Deed of Assigned executed
between Mr. Jayesh K. Mehta and G.M. Bell Health Care
(I) Pvt. Ltd. is null and void. Therefore, present
respondents cannot be considered as proprietor of the
impugned trademarks.
3. The appellants fubmits that the respondents have filed the suit being lcs No.29/2008 in the Hon'ble District
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Court, at Ahmedabad, for passing off action and
infringement of Copyright alleging that the respondent
is the owner of the trade marks ,Clobet.;.GM, Fungdid-B,
and Enac-Gel as the said trade marks have been
assigned in favour of the respondent by way of
assignment deed dated 4/10/2005. It is further alleged
that respondent is a company incorporated under the
India Companies Act, 1956 and it is engaged in the
business of manufacturing and marketing of Medicinal
and Pharmaceutical products in India and elsewhere.
The Respondent has purchased trademarks Clobet-GM,
Fungdid-B, and Enac-Gel with goodwill by way of an
Assignment Deed dated 04/10/05 as alleged by the
respondent.
5
4. Accordingly the matter was heard by the trial court and have allowed the injunction application (Notice of
Motion) and passed order as under:
Order
"The Interim Injunction Application Ex. 5 hereby
granted subject to the decision given by the
Hon 'ble High Court of Bombay in Civil Suit No.
1342/07.
The defendant, their agents, servants, dealers,
distributors are hereby restrained from using and
committing the act of "Passing Off" the Plaintiff's Trade mark named 'Clobet-GM, Fungdid-B, and Enac-Gel' including other assigned products' and
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also 'restrained them from usinq, acquiring,
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providing and/or offering business to others,
advertising, 'Marketing and/or exposing the
business by using the identical and/or deceptively
similar name as of the mark. 'Clobet-GM, Funqdid-
B, and Enac-Gel including other assigned products'
of the plaintiff till the disposal of the: suit.
The defendant, their agents, servants, dealers,
distributors are also restrained from using the \\01-
~wy>
similar artistic work, colour combination, ~ F
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phonetical write-up on the box and Artistic Labels
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of the products 'Clobet-GM, Fungdid-B, and Enac-
Gel' and by that way committing the Act of
"Infringement of Copy Right" of the plaintiff till the
disposal of the suit".
The aforesaid order was passed on 28th October,
2010 and being aggrieved by the said order, the
eopettenss have preferred an appeal alongwith
Civil Application. The aforesaid order however
temporarily suspended. for implementation and
execution till 29/11/2010 by the trial court.
5. It is respectfully submitted that the respondent is not a
proprietor of the said trademarks. The respondent and
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Mr. Jayesh Mehta have made one deed of assignment
of the trademarks with goodwill in the month of
October 2005, who was the partner of the Mis
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. Universal Irnpex. Mr. Jayesh Me.,ta.was not the only
partner of the Mis Universal Impex but there were two
other partners also and they did not sign the said
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assignment deed and their was no oral or written
consent by the remaining partners and therefore the
Hon'ble High Court of Bombay has held that said deed
of assignment executed between the respondent and ~
Mr. Jayesh Mehta is null and void. Thereafter the ~p:,
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respondent is not entitled to claim any ownership on
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the said trademarks. The respondent is a very well . aware • of this fact. The responde'ht has not challenged
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the order of the Hon'ble High Court of Bombay.
Therefore the respondent is not proprietor of the
trademarks Clobet-GM, Fungdid-B, and Enac-Gel as
alleged as these trademarks were never assigned to
the present 1 respondent as asiignmnet deed was
declared null and void. The respondent has given a
letter to Mis Universal Impex on 16th October, 2006. The respondett has confirmed his right as a manufacturer of the products of Universal Impex and
not for any other purpose. Further the respondent has
not claimed title, interest or' rightef any nature in the
trade marks except of manufacturing the products for
and on behalf of Mis Universal Impex. Moreover the
respondent has not claimed as proprietor of the trade
marks Clobet-GM, Fungdid-B, and Enac-Gel. The
respondent has claimed as a proprietor of the trade
marks Clobet-GM, Fungdid-B, and Enac-Gel with
malafide intention and without any support of the
documents in Regular Civil Suit No. 29 of 2008. It is
further submitted that the respondent has claimed for
infringement of copyright in Regular Civil Suit No. 29 of
2008 with regard to the copyright in· artistic work inrf~
:.;'!i\r~/\';' /' .
, ;~\,: DlA // ..
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Trade marks Clobet-GM, Fungdid-B, and Enac-Gel, the
respondent is not the owner or creator of the said
copyright and therefore it can not claim for its
infringement. Moreover the original owner of the said
copyright is Mr. Jayeshbhai Mehta. Thus the respondent
has no right, title or interest in the said copyright.
I
6. The Respondent has filed suit against the appellant on
the ground of deed· of assignment, on dated 04th
October, 2005 between the present respondent and
Mis Universal Impex. The respondent has as alleged an
amount of Rs. 5 lakhs has been paid either to Jayesh
Mehta or Mis Universal Impex. But the respondent has
never paid the said amount to any of the party.
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7. 'Itis submitted that 5 K Mehta fkedsult being suit no.
1342/2007 against the present respondent and Mr.
Jayesh Mehta' who is the partner of the appellant
partnership firm before the Hon'ble High Court of
Bombay. The plaintiff (Shri 5 K Mehta) of the Bombay
suit has challenged the said deed of assignment on the
ground that only one partner of the partnership firm
has signed the deed of assignment and the respondent
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has not paid tny consideration amount Universal Impex or to Jayesh Mehta or
to the M/S, 'ir ~~~.
any of the '\
. remaining pantners.: Therefore tne Hon'ble High court
of Bombay held that:-
"the pteintttt has come with clear assertion in the
plaint that he is the joint owner in respect of the
registered Trade Marks. The Hon 'ble High· Court
therefore held that the whether the assignment
deed by defendant no. 1 in tevour of the
defendant no. 3 to which the other joint owners were not 4arties can not be said to be legitimate. The Hon 'ble High Court further held that the user
of assignment by one of the partner could be said
to be velid, provided there was express contract
between the partners in that behalf. There can be
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no implied authority in one partner to use or
create assignment of the registered trade marks
exclusively or unilaterally. In the present case, the
assertion of the plaintiff is that the defendant no.
1 unilaterally executed the assignment deed in
favour of the defendant no. 3. Thus understood, it
necessarily follows that there is no valid
assignment in favour of defendant no. 3 and that
the defendant no. 1 cannot use the registered
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trade marks to the exclusion of the other joint
owners or otherwise without such express
authority. The appellant respectfully submitted
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that the -Hot: 'ble district court has not considered
the view of the Hon'ble Bombay high court. The
Hon 'ble Bombey High court further held that the
provision of the partnership act such as section 53
would support the plea of the plaintiff that one of
the defendant cannot use the registered Trade
marks exclusively or create assignment therein. "
, .
The user or assignment by one of the partner could be
said to be valid, provided there was express contract
between the partners in that behalf. Thus it is
understood that there is no valid assignment in favour
of defendant no. 3. Moreover the suit is filed by the
respondent, who is a neither assignee of the said
trademarks nor a proprietor of the said trademarks as
per the . order passed by the t-Lon'ble Hiqh Court of
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Bombay. Moreover the respondent has sent a letter to
the commissioner of Food and drug Control,
administration on 12/05/08 and he has stated that they
have stopped the manufacturing of said product and
there by the product is not available in the market after
the Bombay High court have declared the said deed of
Assignment void illegal and cancelled vide 06/07/2007 in 1iVii suit No. 1342/2007.
order date
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8. In view of 'the above facts, the appellant most
respectfully beg to challenge the impugned order on
the following main amongst other grounds that may be
urged at the time of hearing of this petition.
GROUNDS
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A; The order passed by the· t.d. District Judge is
illegal, without application of mind and required to
be summarily quashed and set aside.
B. The impugned order of the learned Trial Judge is
contrary to law and is violating the provisions of
law and well settled principle of law established by
,
Hon'ble Apex court and various High Courts.
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C. The learned judge has wrongly exercised the
jurisdiction which is not vested in it.
D. The learned Judge has wrongly appreciated the
documents and facts produced by the respondent
and have failed to appreciate well settled principle
of law relating to the action of passing off and
infringement of copyright in respect of
trade
~~.
marks.
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E.
,
The Ld. Trial Judge has failed to appreciate that
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the respondent is not the owner / proprietor of the
said trade marks.
F. The Ld. Trial Judge has failed' to appreciate that
the deed of assignment dated 4/10/2005 has been
declared .as null and void by Hon'ble Mumbai High
Court.
G. The Ld. Trial Judge has failed to appreciate that in
one of the letter written by the respondent it has
been specifically acknowledged by the respondent
that M/s Universal Impex is the owner of the
trademarks and the respondent are only
interested in rnqnufacturlnq the products under
the said trademarks.
H. The Ld. Trial Judge has wrongly appreciated that
the principle of estoppel is applicable in. the
,
present case ..
I.
The Ld.·Trial Judge has failed to appreciate that
. . e
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drug license of the respondent G.M. Bell (I) Pvt.
Ltd. has been cancelled
by the Drugs Authorities ~ company cannot do an~ -'
J. The LD judge has only passed the order granting
the injunction only subject to the decision given
by the Hon'ble high court of Mumbai in civil Suit No. 1342 of -2007 and - failed to consider other
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facts of the case which were-on record.
K. The Ld. T-rial Judge has failed to appreciate that
the respondent has - not produced a single
document to show that any consideration has
been paid by the respondent to said Mr. Jayesh K.
1
Mehta towards the said deed of _ assignment.
Therefore the present respondent has failed to ~
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fulfill main condition of the said deed of
assignment and in view of the said fact the deed
of assignment is null and void.
1
L. The Ld. Trial Judge has failed to appreciate that no
copyrights of the said trademarks have been
transferred to the respondent and therefore also
the respondent cannot claim any right, title or
interest in the said trademarks and/or copyrights. \ ~
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M.
N.
J 14
The ream d Judge has erred in appreciating the
facts from the face of the record that appellant
have invented the words Clobet-GM, Fungdid-B,
and Enac-Gel and the same are using as trade
marks in respect of Medicinal and pharmaceutical
products. Hence the bonafide intention of
appellant: to use trade marks Clobet-GM, Funqdid-
B, and Enac-Gel along with copyright artistic work
are not considered by the learned Judge.
The learned judge has wrongly considered the
proprietorship of trade marks Clobet-GM, Fungdid-
B, and Eflac-Gel along with copyright artistic work of respondent, thoug h there was no evidences
produced by the respondent to substantiate their
claim of proprietor and continuous use of trade
marks. Moreover, respondent is not a proprietor of
the trade marks. Therefore, the respondent has no
right to use the said trademarks .
. I
O. The Learned Judge has errea in- appreciating right
for exclusive use of trade marks Clobet-GM,
Fungdid-B, and Enac-Gel of respondent, even
though respondent has failed to prove that the ~
respondent is a proprietor of the said trademarkr~ r;
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along with copyright of artistic work because the
Hon'ble High Court of Bombay has declared the
deed of assignment null and void and the respondent has not challenged the order of the
Hon'ble High Court of Bombay till date. The
respondent is not owner of the said trade marks
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therefore the respondent has no right to file the
suit against the appellant. Learned Judge has not
considered the arguments of the appellant that
the respondent is not the owner of the said trade
marks along with copyright in artistic work. The
learned Judge wrongly considered this position in
affirmative to grant injunction which is
misconception of law and against the provision of
law.
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P. The Hon'ble Judge has erred in not appreciating
the authorities cited by. the appellant in
accordance with various settled principle laws laid
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down by the Courts In this type of cases. On the
contrary, the authorities cited by the respondent
which are not relevant to the case have been
considered. The settled principle, of law of passing
off action and infringement of copyright considered in the form of justice,
are not •
thOU9h~
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respondent is not having fit case of passing off action and infringement of copyright.
Q. The leerneo Judge have wrongly granted interim injunction under Order 39 Rules 1 & 2 in favour of
respondents as balance of convenience and prima
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facie case was not in respondents favour, learned
Judge have wrongly considered the important
factors of Order 39 Rule 1 & 2 granting interim
relief.
R. The learned Judge has not considered the facts
that if injunction is granted against the appellant,
appellant will suffer injury and damage because
the appellant is the proprietor of the said
trademarks with copyright in artistic work.
Appellant might have been suffering for which
they are not responsible because appellant have
not infringed any copy right of respondent artwork
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or have not passed off their goods as that of
appellant. The findings of learned Judge are
against the principle of natural justice and
. disregarded the provisions of Specific Relief Act.
o
s.
T.
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The learned Judge has wrongly appreciated the
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documents produced by the" respondent to
substantiate their claim of exclusive use and
proprietor of trade marks. However, these
documents are not sufficient to substantiate
respondent such claims and prima facie not
tenable in the eyes of law. And prima facie same
are not enough to grant interim relief.
The
judge
wrongly
held
that
has
respondent has prima-facie case and balance of
convenience is in favour of respondent. The Id
court also wrongly held that respondent will
supper irreparable loss if injunction is not granted
Infact due to such injunction being passed against
the appellant, the appellant has suffer huge loss
which cannot be compensated in terms of money.
U. The resppndent who is not a proprietor and owner
of trade marks Clobet-GM, Fungdid-B, and Enac-
Gel, even though learned Judge has wrongly
considered the arguments of respondent and
granted .. interim relief which is bad-In-law and
disregarded the provisions of law.
v.
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The Id judge failed to considered that respondent
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is guilty of suppresio veri and suggestio falsi and therefore not entitled to any relief either in suit or
in application for injunction.
The learned Judge has erred in appreciating the
facts a nd the evidences on the record.
X. The learned Judge has also erred in appreci'ating
the objection of appellant during the arguments.
On the contrary in every where in his order
learned Judge have wrongly mentioned that
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proprietary rights with regards to the above
referred three trade marks are vested with
respondents.
Y. The Learned Judge failed to appreciate that suit as
z.
well as injunction application filed by the
respondent is barred by delay, latches and
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acquiescence.
That unless the respondent proves his claim of
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proprietorship and prior use .of trade marks
Clobet-GM, Fungdid-8, and Enac-Gel along with
copyright in artistic work intothe plaint, injunction ~
I· ~0'
can not be granted against the appellant. "\
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AA. The learned Judge has erred in applying the
principle settled by the Hon'ble Supreme Court
and other Hon'ble High Courts and therefore, the
same order deserves to be quashed and set-aside
by this Hon'ble Court.
I
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BB. That learned Judge surprisingly trying to protect
the trade marks Clobet-GM, Fungdid-B, and Enac-
Gel along with copyright ln artistic work of
respondent as he is not a proprietor of the said
trademarks.
7. The appellant craves leave to add, alter, amend, vary, rescind or modtfvanv of the grQunds mentioned above.
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8. Therefore, appellant prays as under:
(A) Your Lordship be pleased to allow this appeal.
(B) On these grounds and circumstances those that may be urged at the time of hearing, this Hon'ble Court be pleased to quash and set aside the order passed below Exh.S that is injunction application in Regular Civil Suit No.29 of 2008 dated 28/10/2blO of the learned Additional District Judge, hhmedabad and allow this Appeal with
costs.
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(C) Your Lordships may pending the hearing and final
disposal of this appeal, be pleased to grant, adinterim relief in terms of Prayer A hereof,
, (D) Any other relief may deem fit, just, necessary and proper in the interest of the justice, case and nature and circumstances of the case may please be awarded in favour of the applicant.
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AND FOR THIS ACTS OF KINDNESS AND JUSTICE THE APPLICANT SHA,LL BE DUTY BOUND TO PRAY FOREVER.
Place: Ahmedabad Date:
(Law Office of H. K Acharya & Co.)
Advocates for the Appellant •
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A F F I D A V IT
I, Jayesh Mehta, a partner of appellant firm herein, aged adult, caste Hindu, Indian inhabitant, resident of Ahmedabad, do hereby solemnly affirm and verified on oath and state as under:
I have carefully gone through the contents of appeal and paragraph No.1 to ...... are facts within the knowledge of the
applicant. Paragraph No .... to are based on legal advice
and are grounds. Paragraph No (a) & ... (b) are the prayer
made before this Hon'ble Court which I believe to be true.
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Whatsoever contained above are true and correct to the best of my knowledge and information and nothing has been concealed therefrom.
Solemnly affirmed -at Ahmedabad on
this day of L 2 NO" 2010 ,2010 \\. ~ /
"~~ t- ~CL,§)Y<
'\
BOOK'NO ·G;TJ" ·
PAGE NO T I 6':"<ir6)"
SERIAL NO """ .. ".,, " ..
RECEIPT NO.C".l..o..:,,~.J...~.2. DATE ..... Z ... Z ... N;Q;IJ. ... 20UJ .. " ....