Bangalore District Court
Karnataka State Open University vs Sharada Vikas Trust on 6 December, 2019
IN THE COURT OF THE XIX ADDL. CITY CIVIL &
SESSIONS JUDGE AT BANGALORE CITY : (CCH.18)
Dated this 6th day of December, 2019.
Present
SRI.DINESH HEGDE, B.A.LL.B.,
XIX ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
O.S.NO.821/2018
PLAINTIFF : Karnataka State Open University,
Mukthagangothri,
Mysuru-570 006,
Rep.by its Registrar.
( By Sri.T.P.Rajendra Kumar
Sungay, Advocate)
-VS-
DEFENDANT : Sharada Vikas Trust,
No.451/1/14, 2nd Floor,
Lakshmi Complex, 10th Main,
4th Block, Jayanagar,
Bengaluru-560 011.
(By Sri.M.L.Santhosh, Advocate)
Date of Institution of the suit : 31/1/2018
Nature of the Suit : Injunction Suit
Date of commencement of recording
of evidence : 4/6/2018
2
O.S.No.821/2018
Date on which the Judgment was
pronounced : 6/12/2019
Year/s Month/s Day/s
Total Duration : 01 10 05
(Dinesh Hegde)
XIX Addl.City Civil & Sessions Judge,
Bangalore City.
JUDGMENT
The plaintiff has filed this suit against defendant for the relief of mandatory injunction restraining the defendant from using the name, logo, picture of the plaintiff university in the website of the defendant and also for permanent injunction restraining the defendant from using the name, logo, picture of the plaintiff university in its website, for court costs and for such other reliefs.
2. The case of plaintiff in nutshell is that:-
The plaintiff is a University established by the Government of Karnataka on 1/6/1996 under the 3 O.S.No.821/2018 provisions of Karnataka State Open Universities Act, 1992 for introduction and promotion of Open University and distance education system in the educational pattern of the State and for co-ordination and determination of standard of such systems. The territorial jurisdiction of the University extend to the entire State of Karnataka. The plaintiff University has been offering various courses under Open and Distance Learning mode through in-house system directly controlled by the plaintiff University, consisting of non- technical academic programmes both undergraduate and post-graduate courses and also through its Academic Collaborative Institutions. Distance Education Council (DEC) granted an institutional recognition initially for a period of one academic year during 2006- 07 and continued for a further period of five years from the academic year 2007-08 to 2012-13. During the year 2011, a Statute called Karnataka State Open University Academic Collaborative Statute, 2011 was 4 O.S.No.821/2018 framed by the plaintiff University, which has been duly assented by the Hon'ble Chancellor of the University. In view of framing of Statute, the plaintiff partnered with private institutions, firms and trusts in large scale under the name and style "Academic Collaborative Institutions(ACIs) to offer the courses/programmes of the plaintiff university through Distance Education by executing Memorandum of Understanding with them.
Thus, two-tier system of offering higher education namely admission of students directly by the university to the courses offered by it is called "in-house system"
and the admission of students through its Academic Collaborative Institutions system came in to existence.
3. The defendant is a Trust having its registered office at the cause title address established for the purpose of imparting education. During the year 2007, the defendant has approached the plaintiff and sought to become the Academic Collaborative Institution of the plaintiff university, to offer the courses offered by the 5 O.S.No.821/2018 plaintiff university through them and its study centers in the State of Karnataka. In this regard, the plaintiff after detailed deliberation, had agreed to enter in to a Memorandum of Understanding with the defendant Trust to offer certain courses which was being imparted by the plaintiff. In this regard, a Memorandum of Understanding was entered in to by the plaintiff and the defendant on 16/6/2007 whereby, the defendant Trust was permitted to offer BCA and MCA courses of 3 years duration and integrated MCA course of 5 years duration on the terms and conditions mentioned in the said Memorandum of Understanding, which has been duly signed by the plaintiff as well as the Managing Trustee of the defendant Trust. The duration of the said agreement is 5 years and the defendant was at liberty to admit the students in respect of the aforesaid 3 courses by itself of through its study centers which would be established by them. A non-refundable security deposit of Rs.3 Lakhs has been received by the plaintiff and in respect of 6 O.S.No.821/2018 tuition fees for various programmes, the plaintiff would be entitled to 25% of the total tuition fees plus registration fees and examination fees, whereas thee defendant was entitled to 75% of the total tuition fees and the late fees which may be charged by them. As per the terms of the Memorandum of Understanding, admission of the students which would be made by the defendant and its study centers would be approved by the plaintiff on receipt of the required fees and the contact classes and other practical classes would be carried out by the defendant themselves and the study materials would also be supplied by the defendants after obtaining the approval from the concerned Dean of the programme. The examination would also be conducted by the defendant Trust and the evaluation would also be carried out by them and the issuance of marks card would be carried out by the plaintiff based on the marks submitted by the defendant. Apart from the initial Memorandum of Understanding dtd:16/6/2007, the 7 O.S.No.821/2018 plaintiff and defendant have also entered in to 4 other Memorandum of Understandings dtd:23/10/2008, 30/10/2009, 22/9/2010 and ¾/2011 in respect of various courses mentioned therein and the duration of Memorandum of Understanding dtd:23/10/2008 and 30/10-2009 was 5 years (10 years for B.Tech. Courses), whereas in respect of the Memorandum of Understandings dtd:22/9/2010 and 13/4/2011, the period was 5 years.
4. Apart from the Memorandum of Understandings entered in to with the defendant above named, the plaintiff entered in to Memorandum of Understandings with several private academic collaborative institutions during the period from 2007 to 2013. The DEC has been taken over by UGC during the year 2009 and thereafter the UGC was taken control of all the open and distant learning programmes offered by the universities in the entire country and it has restricted the territorial jurisdiction of the open universities to their respect 8 O.S.No.821/2018 States apart from restricting the programmes to the regular courses which requires no approval of either AICTE or other central regulatory authorities and has raised objections to offer the engineering, medical, paramedical, technical courses by the academic collaborative institutions through the plaintiff University.
5. It is further averred in the plaint that an view of the restrictions imposed by UGC in respect of offering technical, medical and other professional courses and also restriction on territorial jurisdiction, the matter of recognition could not be finalized by UGC and there was continuous correspondences between the plaintiff and UGC in this regard. All of a sudden, the UGC by a public notice dtd:16/6/2015 has informed that the UGC has not continued its recognition to the plaintiff university beyond 2012-13 and further informed that no admission should be taken by the students in the absence of recognition including the professional/technical programmes. Since plaintiff had not received any 9 O.S.No.821/2018 communication rejecting its application seeking recognition after 2012-13 till issuance of public notice dtd:16/6/2015, the plaintiff and its collaborative institutions have made admissions for all courses for the academic years 2013-14, 2014-15 and also for 2015-16 as the said notice was issued in the month of June 2015, by which time, the process of admission was already commenced. Thereafter, the plaintiff by a notification dtd:1/7/2015 has withdrawn all the academic programmes offered through Academic Collaborative Institutions(ACIs) and again issued another notification on 5/9/205 withdrawing the academic programmes within the State of Karnataka offered by ACIs. That apart, the plaintiff issued public notices in National Dailies on 12/12/2015, 19/1/2016 and 15/4/2016 informing the students and public not to enroll or take admissions in any of the ACIs.
6. After issuance of public notices in print media, the University has also issued legal notices to all the ACIs 10 O.S.No.821/2018 including the defendant Trust on 12/5/2016 seeking explanation as to why Memorandum of Understanding entered in to with it should not be terminated. Thereafter, after considering the replies received from ACIs, including the defendant, the plaintiff issued notification dtd:4/6/2016 terminating the Memorandum of Understandings entered in to between the plaintiff and the defendant.
7. Even after termination of Memorandum of Understandings, it was noticed that the defendant continued to misuse the name of plaintiff university, logo, pictures in its website and continued its advertisement for admission of students to various courses, which has been objected by the UGC and as such, the plaintiff was forced to issue another legal notice dtd:22/10/2016 directing the defendant to discontinue the misuse the name of plaintiff university, logo, pictures in its website and remove the same from its website within 15 days, failing which action would be 11 O.S.No.821/2018 initiated against them. Thereafter, the plaintiff has also through a public notice dtd:17/12/2016 gave final opportunity to have their say in the matter about confirmation of termination of Memorandum of Understandings dtd:4/6/2016 by all the ACIs including the defendant herein and thereafter, by Circular dtd:27/1/2017, the plaintiff has withdrawn all the powers granted to the defendant pursuant to the Memorandum of Understanding. Inspite of issuance of legal notices and public notices, the defendant continues to use the name of the plaintiff university, logo,pictures in its website which was resulted in the plaintiff issuing another notification dtd:15/6/2017 to the defendant not to use the same.
8. If the defendant or its study centers are permitted to use the name of plaintiff university, logo, pictures in their website, the plaintiff would be put to great hardship as the UGC has refused to continue recognition for the academic year 2017-18. If the same are ordered to be 12 O.S.No.821/2018 removed from their website, no hardship would be caused to defendant as the Memorandum of Understandings entered in to between the plaintiff and defendant has already been legally terminated and the defendant has not challenged the same and therefore, the defendant has no right to use the name of plaintiff university, logo, pictures in its website. Hence, the suit and prays to decree the suit as prayed for.
9. After service of suit summons, defendant appeared through its counsel and filed written statement by contending that the suit filed by the plaintiff is not maintainable either in law or on facts and the same is liable to be dismissed. The defendant has contended that when the he received the termination and legal notice dtd:22/10/2016, the defendant has blocked the website i.e., www.sharadavikas.com and has stopped all the admission process and since then no admissions has been made and the allegations made by plaintiff is totally false and frivolous. The defendant has not 13 O.S.No.821/2018 received any legal notice dtd:17/12/2016 as falsely contended by plaintiff.
10. The defendant has further contended that he was totally kept in dark about the correspondence between the plaintiff and UGC and that subsequently, non- renewal of the permission to the plaintiff subsequently 2012-13 is totally a mismanagement on the part of the plaintiff in conducting the business with UGC, it is the duty of the plaintiff to keep the permissions, sanctions, approvals, valid for all academic period rather the plaintiff cannot seek that negotiations was underway with the UGC about the renewal of recognition and that burden cannot be shifted on the defendant, to cover the lapses by the plaintiff.
11. The defendant has further contended that even though the UGC did not renew the recognition since 2012-13, the plaintiff with malafide intention has suppressed the said fact and without any iota has 14 O.S.No.821/2018 accepted the admission fees and the examination fees and etc. submitted by the defendant which itself goes to show that the plaintiff has suppressed the fact that the plaintiff university was de-recognized by UGC under duress and pressures and now, the plaintiff without giving reasonable opportunity of being heard, has unilaterally canceled the Memorandum of Understanding entered with the defendant and now he is making false allegations that defendant is using the logo, name etc., of the plaintiff and filed this false and frivolous suit against the defendant. Hence, prays to dismiss the suit with exemplary costs.
12. Based on the above pleadings, the following issues were framed:-
ISSUES
1. Whether the plaintiff proves that it has terminated the Memorandum of Understanding with the defendant? 15
O.S.No.821/2018
2. Whether the plaintiff proves that the defendant continued to misuse the name of the plaintiff University, Logo and Pictures in the Website and continued its advertisement for admission of students to various courses?
3. Whether the plaintiff is entitled for the mandatory injunction?
4. Whether the plaintiff is entitled for the reliefs as claimed?
5. What order or decree?
13. Superintendent working in the Legal Cell of the plaintiff university is examined as P.W.1 and marked Ex.P.1 to Ex.P.18. Administrator and authorized signatory of the defendant Trust is examined as D.W.1 and no documents are marked on his behalf.
14. Heard the arguments and perused the records.
15. My findings on the above issues are as follows:- 16
O.S.No.821/2018 Issue No.1:- In the Affirmative; Issue No.2:- In the Negative;
Issue No.3:- In the Negative;
Issue No.4:- In the Negative;
Issue No.5:- As per the final order for the following:-
REASONS
16. ISSUE No.1 & 2:- These issues are taken up together as they require common discussion.
17. It is the specific case of the plaintiff that it is an University established by the Govt.of Karnataka under the provisions of Karnataka State Open Universities Act, 1992 by offering two-tier system of offering higher education namely, In-house-system and Academic Collaboratives Institutions System. The defendant is a Trust approached the plaintiff and sought to become a Academic Collaborative Institution System of the plaintiff university. As per the Memorandum of Understanding, the defendant started to to run Academic Collaborative Institution of the plaintiff by running courses of BCA 17 O.S.No.821/2018 and MCA. It is the further case of the plaintiff that due to withdrawal of recognition from the UGC, no admission should be taken by the students in the absence of recognition. Inspite of notice and termination of Memorandum of Understanding, the defendant has continued using the name, logo, picture of the plaintiff university in the website maintained by the defendant. Hence, the plaintiff filed suit for mandatory injunction. The case of the defendant that as soon as he received the notice of termination dtd:22/10/2016, he blocked the website and stopped all the admission processes and since then, no admissions has been made.
18. To prove the contention of the plaintiff, the Superintendent working under the plaintiff has been examined as P.W.1. He has reiterated the facts stated in the plaint. He relied upon 16 documents marked at Ex.P.1 to Ex.P.16. Ex.P.1 is the authorization letter issued by the Registrar of plaintiff authorizing P.W.1 to prosecute the above case. Ex.P.2 is the copy of a public 18 O.S.No.821/2018 notice dtd:16/6/2015 wherein, University Grants Commission issued a public notice on 16/6/2015 to the Karnataka State Open University, Mysore stating that despite the show cause dtd:10/12/2011 the university is continuing to offer programmes through Distance Learning Mode in violation of the UGC Policy. The general public, students and other state holders are cautioned through public notice about the territorial jurisdiction and validity of the recognition of its programmes.
19. Ex.P.3 is the copy of the notification dtd:1/7/2017 issued by the plaintiff calling upon all the educational institutions with whom the Memorandum of Understanding entered in to shall not make any fresh admissions to any course. Ex.P.4 is the notification dtd:5/9/2015 also in similar nature. Ex.P.5 to Ex.P.7 are the copy of the paper notification issued by the plaintiff.
20. Ex.P.8 is the copy of the notice dtd:12/5/2016 reveal that the plaintiff university issued notice to the 19 O.S.No.821/2018 defendant calling upon to give explanation as to why the Memorandum of Understanding entered in to with it should not be terminated. Ex.P.9 is the notification dtd:4/6/2016 reveal that the plaintiff has terminated the Memorandum of Understanding held with the plaintiff and defendant. Ex.P.10 is the copy of thee notice dtd:22/10/2016 wherein the plaintiff called upon the defendant to remove the website contents and e-mail account created in the name of the university and delete the photos. Ex.P.11 is the another notice dtd:17/11/2016 issued by the plaintiff calling upon the defendant since Memorandum of Understanding is void the said Memorandum of Understanding are considered to be not in existence. Ex.P.12 to Ex.P.16 are the paper publications and the notifications as well as the letter issued by the University Grants Commission.
21. Ex.P.17 & Ex.P.18 are the web-contents of the defendant reveal that the Sharadavikas Trust is in 20 O.S.No.821/2018 collaboration with Karnataka State Open University. Ex.P.17 & 18 reveal that it was taken the printout on 18/12/2017. However, the suit filed by the plaintiff is on 31/1/2018. The defendant has categorically stated that he has removed and blocked its website on 22/10/2016 itself and thereafter, it has not put any contents of the plaintiff university in its website www.sharadavikas.com.
22. In the cross-examination, P.W.1 has stated that on 1/7/2015, plaintiff issued notification under Ex.P.3 and the references No.1 to 5 mentioned in Ex.P.3 were not communicated to the defendant.
23. The defendant in his evidence by way of affidavit has reiterated the facts stated in the written statement and reiterated that the defendant's website has been blocked on 22/10/2016 itself and all the admission process has been closed. The evidence of D.W.1 remains unchallenged as the plaintiff did not cross- examine the D.W.1. Therefore, it is clear from the 21 O.S.No.821/2018 evidence of D.W.1 that as on the date of filing of the suit, there was no use of name, logo , picture of the plaintiff university of the website of the defendant. Therefore, restraining the defendant from using the name, loge, picture etc., of the plaintiff university does not arise. No doubt, the plaintiff has proved that it has terminated the Memorandum of Understanding with the defendant. But, the plaintiff has failed to prove that the defendant continued to misuse the name of the plaintiff university, logo and pictures in the website and continued its advertisement for admission of students to various courses. Hence, I answer Issue No.1 in the Affirmative and Issue No.2 in the Negative.
24. ISSUE No.3 & 4:- Both these issues are taken up together as they require common discussion.
25. The plaintiff though proved that it has terminated the Memorandum of Understanding with the defendant, has failed to prove that the defendant continued to 22 O.S.No.821/2018 misuse the name of the plaintiff university and its logo in their website maintained by the defendant. Therefore, the plaintiff is not entitled for the relief of mandatory injunction or any relief. Hence, I answer Issue No.3 & 4 in the Negative.
26. ISSUE No.5:- In view of findings on Issue No.1 to 4, I pass the following:-
ORDER Suit of the plaintiff is dismissed with costs. Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed and computerized by her, corrected and then pronounced by me in the open Court on this the 6th day of December, 2019.) (Dinesh Hegde) XIX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY ANNEXURE I. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 - Pradeepgiri.S. 23 O.S.No.821/2018
b) Defendant's side :
D.W.1 - M.D.Chandrashekar II. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 Authorization letter
Ex.P.2 Public notice dtd:16/6/2015
Ex.P.3 Attested notification dtd:1/7/2015
Ex.P.4 Attested notification dtd:5/9/2015
Ex.P.5 Attested copy of paper
publication dtd:11/12/2015
Ex.P.6 Attested copy of paper
publication dtd:10/1/2016
Ex.P.7 Attested copy of paper
publication dtd:15/4/2016
Ex.P.8 Legal notice dtd:12/5/2016
Ex.P.9 Notification of Termination of
Memorandum of Understanding
dtd:4/6/2016
Ex.P.10 Legal notice dtd:22/10/2016
Ex.P.11 Copy of legal notice
dtd:17/12/2016
Ex.P.12 Attested copy of paper
publication dtd:12/12/2015
Ex.P.13 Circular issued dtd:27/1/2017
Ex.P.14 Attested copy of paper
publication dtd:30/1/2017
24
O.S.No.821/2018
Ex.P.15 Notification of termination of
Memorandum of Understanding
dtd:15/6/2017
Ex.P.16 Copy of the meeting proceedings
of the University Grants
Commission dtd:20/11/2017
Ex.P.17 & Screenshots of the website of
Ex.P.18 the defendant institution
downloaded hard copies attested
by Registrar
(b) Defendant's side : - - NIL -
(Dinesh Hegde)
XIX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY GVU/-25
O.S.No.821/2018 6/12/2019 Plaintiff - RKST Defendant - MLS For Judgment Judgment pronounced in open court vide separate detailed judgment with the following operative portion:-
ORDER Suit of the plaintiff is dismissed with costs.
Draw decree accordingly.
(Dinesh Hegde) XIX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.