Supreme Court of India
Skyline Education Institute (Pvt) Ltd vs S.L.Vaswani & Anr on 5 January, 2010
Equivalent citations: AIR 2010 SUPREME COURT 3221, 2010 AIR SCW 628, (2011) 8 ADJ 95 (SC), (2011) 3 ESC 458, (2010) 1 WLC(SC)CVL 661, (2010) 2 ALLMR 427 (SC), (2010) 1 CLR 266 (SC), (2010) 1 ALL WC 684, (2010) 79 ALL LR 46, (2010) 2 GUJ LH 39, (2010) 1 UC 503, 2010 (1) SCALE 83, 2010 (2) SCC 142, (2010) 1 ALL RENTCAS 591, (2010) 3 RECCIVR 436, (2010) 3 CIVILCOURTC 445, (2010) 1 SCALE 83
Author: G.S. Singhvi
Bench: B.S. Chauhan, G.S. Singhvi, Tarun Chatterjee
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.1360-1361 OF 2005
Skyline Education Institute (India) ...Appellant
Private Ltd.
Versus
S.L. Vaswani and another ...Respondents
With
CIVIL APPEAL NO. 1362 OF 2005.
J U D G M E N T
G.S. SINGHVI, J.
1. These appeals are directed against order dated 6.10.2004
passed by the Division Bench of Delhi High Court whereby it
dismissed FAO(OS) No.212 of 2003 preferred by Skyline Education
Institute (India) Private Limited (hereinafter referred to as `the
appellant') against the order of the learned Single Judge who
refused to restrain Satilila Charitable Society and S.L. Vaswani
(hereinafter referred to as `the respondents') from using the name
`Skyline' as a part of their trading name in relation to their
activities in the field of education and/or as a trademark in
relation to any printed matter, including the course material,
literature, syllabus etc. and partly allowed FAO(OS) No.213 of
2003 preferred by the respondents insofar as the learned Single
Judge directed them not to start any new course similar to the
course run by the appellant, namely, graduate and post-graduate
courses in Management, Travel and Tourism and further directed
them to insert a note in the advertisement etc. that their
institute is in no way related to the appellant.
2. The appellant is incorporated under the Companies Act.
Although, the appellant's main objects, as specified in para `A'
of the Memorandum of Association, are to impart and train in all
areas, subjects, fields and disciplines of education, including
hospitality, tourism and business management; to act as
representative of various foreign educational institutions,
universities, organizations, bodies or any other type of
institutions for recruiting students and rendering other related
services; to establish and run in any part of India, colleges or
schools to impart education on such terms and conditions as may be
laid down by the Company from time to time but a closer look at
the incidental or ancillary objects enumerated in para `B' and
other objects enumerated in para `C' of the Memorandum of
Association shows that the appellant can engage itself in all
types of possible business activities.
3. Respondent No.1, Satilila Charitable Society is
registered under the Societies Registration Act. It is said to be
part of Skyline group of companies/concerns, the details of which
are given below:
i) M/s. S.K. Contracts (P) Ltd. (a company started in 1986)
ii) M/s. Skyline Construction Co. (a partnership firm
started in 1990)
iii) M/s. Skyline Constructions (a partnership firm started in
1993)
iv) M/s. Skyline Construction Engineers & Builders Co. (a
partnership firm started in 1999)
v) M/s. Skyline Contractors (P) Ltd. (a company started in
1999)
vi) M/s. Skyline Software (P) Ltd. (a company for imparting
education in software started in 2001)
4. The main object of respondent No.1 is to establish
colleges for higher technical education for various sections of
the community. In November, 2001, respondent No.1 acquired 13
acres of land in the Institutional complex, Greater NOIDA, U.P. at
a cost of Rs.5.25 crores for establishing a multi disciplinary
college. Thereafter, the respondents obtained permission from All
India Council for Technical Education (AICTE) and established an
institution with the name Skyline Institute of Engineering and
Technology. They also recruited teaching faculty, made admissions
in 4 disciplines and started five-year engineering course with
effect from 9.9.2002.
5. As soon as respondent No.1 issued an advertisement for
recruiting teachers, the appellant got served notice dated
31.1.2002 upon the respondents and called upon them to stop using
the word `Skyline' in the name of their institute by alleging that
the same was affecting its goodwill. Some dialogue appears to
have taken place between the functionaries of the appellant and
respondent No.1 but without any tangible result. Therefore, the
appellant filed Suit No.1553 of 2002 in Delhi High Court for grant
of permanent injunction restraining the respondents herein, their
officers, servants, agents, representatives, franchisees or any of
them from using the name `Skyline' as part of their trading name
in relation to the activities in the field of education and/or as
a trademark in relation to any printed matter, literature,
syllabus, etc. or in any other manner whatsoever. The appellant
further prayed for award of damages to the tune of Rs.5,01,600/-
and for issue of a direction to the respondents to give details of
the profits earned by them by the alleged wrongful use of the name
`Skyline' and deliver all printed material including syllabi,
course materials, stationery, blocks, dies, etc. bearing the name
`Skyline'.
6. In the plaint, the appellant averred that it was
established in 1996 on the lines of the previously existing and
highly successful Skyline College, Sharjaha, which was brain child
of Mr. Kamal Puri, an eminent educationist, who set up first
Skyline Institute in 1990 with the object of providing high
quality graduate and post-graduate level professional education
and training to the students. The appellant further averred that
Skyline Business School was established in 1997 as its division
with the object of imparting high quality education in the field
of management at under-graduate and post-graduate levels and in a
period of one decade it has acquired a substantial reputation and
good will on account of highly qualified and dedicated faculty,
the internationally competitive courses and scientific methodology
of imparting education. The appellant claimed that it has
affiliation with the University of Oxford, University of
Lincolnshire and Humberside, U.K., National American University,
USA and other bodies like International Air Transport Association,
Travel Agents Association of India, Confederation of Indian
Industry, Universal Federation of Travel Agents Association, etc.
and that these bodies have collaborated with the Skyline Business
School for their requirement of trained personnel in the travel
business. The appellant then averred that its four months diploma
course and the Skyline Business School's three years' bachelor
degree course in business administration have been advertised ever
since their inception and the applications submitted by it in 1997
and 1998 for registration of trademarks, Skyline Institute,
Skyline Medalist, Skyline Business School and Skyline Lead Faculty
in class 16 inter alia for printed matter, literature, stationery,
etc. are pending before the competent authority. The appellant
referred to an advertisement issued by Skyline Institute of
Engineering and Technology and pleaded that adoption of the name
`Skyline' by the respondents has caused deception and confusion in
the mind of the public necessitating filing of the suit for
permanent injunction. The appellant also filed an application
under Order 39 Rules 1 and 2 read with Section 151 of Code of
Civil Procedure (C.P.C.) for grant of temporary injunction
restraining the respondents, their officers, etc. from using
`Skyline' as a part of their trademark in relation to their
activities in the field of education, etc.
7. In the written statement filed by them, the respondents
pleaded that the appellant is running its institute illegally
without obtaining permission from statutory bodies like AICTE,
UGC, etc. and that it does not have affiliation with any
University. According to the respondents, there is no connection
between Skyline College based in UAE and the appellant's Skyline
Business School and that the courses conducted by Skyline Business
School are not approved by any competent body. The respondents
gave the details of their activities and averred that Skyline
Institute of Engineering and Technology was established to provide
high quality education to the students in the field of technical
education. The respondents asserted that the appellant cannot
claim monopoly over the word `Skyline' which is a general word and
is being used by as many as 32 companies operating in Delhi, 117
companies operating all over the country and worldwide there are
thousands of institutes/institutions, companies, firms, etc.
which are using that word as part of their name. The respondents
further pleaded that they were already running several
companies/firms with the name Skyline and there is no possibility
of deception and confusion among the students due to establishment
of Skyline Institute of Engineering and Technology. Another plea
taken by the respondents is that as per existing law no trademark
can be granted in respect of educational services and, as such,
the appellant does not have the locus standi to seek an order of
injunction against them more so because Skyline Institute of
Engineering and Technology was established in 2002 by spending
more than Rs.20 crores and the students have already taken
admission against 240 seats sanctioned by AICTE. The respondents
also alleged that the appellant was operating from the premises of
Laxman Public School, Hauz Khas pursuant to an agreement entered
into by Shri Kamal Puri in the name of Skyline Express. The
respondents also filed reply on similar lines to the application
for temporary injunction.
Findings of the Learned Single Judge
8. After considering the pleadings of the parties and
arguments of their counsel, the learned Single Judge opined that
the word `Skyline' being neither an invented nor specific word,
has to be considered a generic word more particularly when
thousands of persons and institutions are using the same as a part
of their trading name or business activities. The learned Single
Judge held that even a prior user of the name `Skyline' by the
plaintiff would not confer upon it an exclusive right to use that
name to the exclusion of others and pendency of the applications
for registration under the Trade Marks Act, 1999 is
inconsequential. The learned Single Judge then took cognizance of
the fact that while the appellant is neither approved by AICTE nor
affiliated with any university, the respondents have already
obtained the recognition/permission and affiliation from the
concerned statutory bodies and have spent huge amount for
establishing the institute and further that the first batch of the
students is already undergoing five-years course and held that the
appellant is not entitled to equitable and discretionary relief by
way of temporary injunction. While rejecting the argument that use
of the word `Skyline' by the respondents for the Institute of
Engineering and Technology established by them will create
confusion in the mind of the general public and the prospective
students who want to pursue their studies in the field of
engineering and technology, the learned Single Judge observed:
"In the opinion of this Court, merely by the use of the word
"Skyline" as a prefix in the name of the two institutes, there is
no likelihood of such a confusion because the full name of the
plaintiff institute is "Skyline Education Institute (India) Pvt.
Ltd." while that of the defendant is "Skyline Institute of
Engineering and Technology" used in defendant's name are
sufficient to indicate to all concerned that the defendant is not
the same institute as the plaintiff. In any case, care can be
taken to clarify such a confusion, even if there is any likelihood
of such a confusion."
9. Notwithstanding the above conclusion, the learned Single
Judge partly allowed the application filed by the appellant. The
operative portion of order dated 6.5.2003 passed by the learned
Single Judge reads thus:-
"In the result, the application is partly allowed and
till the disposal of the suit, the defendants are hereby
restrained from starting any new courses similar to the
courses run by the Plaintiff viz. graduate and post-
graduate education in management, travel and tourism.
The ex-parte ad-interim order dated 01.10.2002 is
modified to the extent that the defendants will be free
to make publicity/issue advertisements etc. in their
existing name for any courses in technical/Engineering
education provided the said advertisements contain a note
to the effect that the institute of the defendants is not
related to the Plaintiff's institute being run under the
name of "Skyline Educational Institute (India) Pvt.
Ltd.", in any way."
10. The appellant and respondents challenged the order of
the learned Single Judge by filing separate appeals. The Division
Bench expressed its agreement with the learned Single Judge that
the word `Skyline' is not a generic word but was an adoptive word
and observed:
"We also find no force in the argument of the counsel for
the respondent that the word `skyline' was not a generic
word and was an adoptive word as far as education is
concerned. A student who would like to go to an
educational institution, he is not a lay customer. If a
student likes to go to St. Stephens College in Delhi or
want to go to Sri Ram College of Commerce or Hindu
College, he will go to these colleges and not to other
although there may be similarity of names of other
colleges. When the learned single Judge came to the
conclusion that there is no similarity in the name of two
parties, appellant using the name `skyline' as a prefix
with the institute of technology and engineering and the
respondent using `skyline' business school', a student
would not get any deception by both names. A very large
number of institutes, firms and companies etc. are using
the word `Skyline' as part of their name which fact has
not been categorically denied by the respondent."
The Division Bench then observed that after having found
that the appellant has failed to make out a prima facie case and
that balance of convenience was not in its favour, the learned
Single Judge was not justified in directing the respondents not to
go ahead with the courses of BBA management and MBA management.
This is evinced from the following extracts of the order of the
Division Bench:
"Normally once all the ingredients like prima facie case,
balance of convenience, equity if not found in favour of
grant of injunction, injunction in any form ought not to
have been granted. At the same time, that does not mean
that Court in order to do justice cannot mould the relief
or can grant an injunction in terms not prayed for to do
justice between the parties. The concept of grant of
injunction also have to be seen in the light as to what
would be the loss suffered on account of an injury by
non-grant of such an injunction. The argument, which has
been raised before us that it was basically respondents
suit for grant of an injunction against the appellant
from using the word Skyline. Having come to the
conclusion that Skyline was a word which was used by a
very large number of people in India and abroad and it
was a generic word, we cannot appreciate as to how the
learned Single Judge has granted an injunction against
the appellant not to start courses in management. To say
the least, the present litigation is to have more
commerce in education and less education in commerce.
Private commercial houses by advertising fancy name of
foreign universities lure students in this country. All
this exercise is not in realm of imparting education but
knowing fully well that in India the name of a foreign
university is lucrative enough to get larger chunk of
money from the pockets of the parents. What is the value
of these degrees, whether they are permitted to do so or
not, we will advert later. Here is a classic case of the
respondent who got letters from the University of
Lincolnshire and Humberside, UK both dated 17th October,
1996 which too was for a period of five years only with
effect from 1st May, 1997. It as a certificate which the
respondent was to given in travel and tourism. However,
respondent started giving advertisements for education in
BBA (Hons.) with specialization in marketing or tourism.
One such advertisement is at page 516 of the paper book.
It was contended before us by Mr. Singh that on 11 th
March, 1998 they had also an arrangement of BBA Marketing
programme from the said university. At this stage, we
would not like to go to the question whether the
respondent could have represented that they could offer
courses in BBA Marketing or not, what is of relevant is
even if we accept the argument of learned counsel for the
respondent, they are `study centre' of a deemed
university, Manipal Academy of Higher Education, that is
also from the year 2003. The authorization to start
courses came in the year 2003, although it was contended
by the respondent that they have started courses from
2001. Was it justifiable on their part? Whether they
could do so? Was there any legal bar? All are these
issues which would be taken care of in the trial. Both
the parties would be at liberty to lead evidence and
argue the matter. At this stage, when the learned trial
Judge has not entertained the plea of the respondent from
prima facie case, balance of convenience and irreparable
injury to respondent, restraining the appellant not to go
ahead with their courses of BBA Management and MBA
Management after due approval from AICTE in comparison to
respondent being a `Study Center' only was without any
basis."
11. Shri Sudhir Chandra, learned senior counsel appearing
for the appellant argued that even though the word `Skyline' is
being used by several companies, institutions and organizations,
the same cannot be treated as a generic word and the contra
concurrent finding recorded by the learned Single Judge and the
Division Bench is legally unsustainable. Learned senior counsel
submitted that though the appellant has not got registration under
the Trade Marks Act, being prior user of the word `Skyline', it is
entitled to an order of injunction against the use of that word by
respondent No.1 as part of their educational activities and the
learned Single Judge and Division Bench committed serious error by
refusing to protect the appellant from illegal, unlawful and
unauthorised use of the word `Skyline' by the respondents. Shri
Sudhir Chandra pointed that the appellant is an affiliate of the
University of Lincolnshire and Humberside, U.K. and an approved
study center of Manipal University and argued that the High Court
committed an error by declining the appellant's prayer to restrain
the respondents from using the word `Skyline' with the Institute
of Engineering and Technology established by them. Learned senior
counsel emphasized that even an unregistered prior user can file
an action for passing off and the High Court committed serious
error by refusing relief to the appellant ignoring the fact that
the respondents established the Institute of Engineering and
Technology by prefixing the word `Skyline' with the sole object of
encashing the goodwill generated by the appellant and its sister
concern which is operating in UAE. In support of his arguments,
the learned senior counsel relied upon the judgments of this Court
in Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical
Laboratories 1965 (1) SCR 737, Ruston & Hornsby Ltd. v. The
Zaminidara Engineering Co. 1969 (2) SCC 727, N.R. Dongre and
others v. Whirlpool Corporation and another 1996 (5) SCC 714 and
Satyam Infoway Ltd. v. Sifynet Solutions (P) Ltd. 2004 (6) SCC
145.
12. Shri L.N. Rao, learned senior counsel for the
respondents supported the impugned order to the extent the
Division Bench rejected the appellant's prayer for restraining the
respondents from prefixing the word `Skyline' with the Institute
of Engineering and Technology established by them and argued that
this Court may nullify the effect of the direction given by the
learned Single Judge in its entirety. He submitted that the
discretion exercised by the High Court in declining the
appellant's prayer for injunction does not suffer from any legal
error and this Court may not interfere with the impugned orders
because the concurrent finding recorded by the learned Single
Judge and Division Bench on the issue of prima facie case is based
on correct appreciation of the factual matrix of the case and in
any case, equity is not in favour of the grant of injunction in
terms of the prayer made by the appellant.
13. We have thoughtfully considered the entire matter.
Before pronouncing upon the tenability or otherwise of the
appellant's prayer for restraining the respondents from using the
word `Skyline' for the Institute of Engineering and Technology
established by them, we consider it necessary to observe that as
the suit filed by the appellant is pending trial and issues raised
by the parties are yet to be decided, the High Court rightly
considered and decided the appellant's prayer for temporary
injunction only on the basis of the undisputed facts and the
material placed before the learned Single Judge and unless this
Court comes to the conclusion that the discretion exercised by the
High Court in refusing to entertain the appellant's prayer for
temporary injunction is vitiated by an error apparent or
perversity and manifest injustice has been done to it, there will
be no warrant for exercise of power under Article 136 of the
Constitution. In Wander Ltd. v. Antox India (P) Ltd 1990 (Supp.)
SCC 727, this Court was called upon to determine the scope of
appellate court's power to interfere with the discretion exercised
by the court of first instance in granting or refusing the prayer
for temporary injunction. The facts of that case were that in the
suit filed by it, respondent-Antox India (P) Ltd. had prayed for
restraining the appellant from using registered trade mark `Cal-
De-Ce'. The learned Single Judge of the High Court refused to
entertain the respondent's prayer but on reconsideration of the
matter the Division Bench passed an order of injunction. This
Court reversed the order of the Division Bench and observed:
"... In such appeals, the appellate court will not
interfere with the exercise of discretion of the court of
first instance and substitute its own discretion except
where the discretion has been shown to have been exercised
arbitrarily, or capriciously or perversely or where the
court had ignored the settled principles of law regulating
grant or refusal of interlocutory injunctions. An appeal
against exercise of discretion is said to be an appeal on
principle. Appellate court will not reassess the material
and seek to reach a conclusion different from the one
reached by the court below if the one reached by that
court was reasonably possible on the material. The
appellate court would normally not be justified in
interfering with the exercise of discretion under appeal
solely on the ground that if it had considered the matter
at the trial stage it would have come to a contrary
conclusion. If the discretion has been exercised by the
trial court reasonably and in a judicial manner the fact
that the appellate court would have taken a different view
may not justify interference with the trial court's
exercise of discretion."
14. The proposition of law laid down in Wander Ltd. v. Antox
India (P) Ltd (supra) was reiterated in N.R. Dongre v. Whirlpool
Corporation (supra) in which this Court considered the correctness
of an order of temporary injunction passed by the learned Single
Judge of the Delhi High Court in a suit filed by the respondents
to restrain defendants from manufacturing, selling, advertising or
in any way using the trade mark `Whirlpool' or any other trade
mark deceptively or confusingly similar to the trade mark
`Whirlpool' in respect of their goods. The claim of the
plaintiffs-respondents was based on prior user of the mark
`Whirlpool'. After considering the rival pleadings and material
placed before him, the learned Single Judge granted temporary
injunction. The Division Bench confirmed that order and dismissed
the appeal preferred by the appellant. This Court, declined to
interfere with the discretion exercised by the learned Single
Judge and Division Bench of the High Court and held:
"Injunction is a relief in equity and is based on
equitable principles. On the above concurrent findings,
the weight of equity at this stage is in favour of the
plaintiffs and against the defendants. It has also to be
borne in mind that a mark in the form of a word which is
not a derivative of the product, points to the source of
the product. The mark/name `WHIRLPOOL' is associated for
long, much prior to the defendants' application in 1986
with the Whirlpool Corporation, Plaintiff 1. In view of
the prior user of the mark by Plaintiff 1 and its trans-
border reputation extending to India, the trade mark
`WHIRLPOOL' gives an indication of the origin of the goods
as emanating from or relating to the Whirlpool
Corporation, Plaintiff 1. The High Court has recorded its
satisfaction that use of the `WHIRLPOOL' mark by the
defendants indicates prima facie an intention to pass off
the defendants' washing machines as those of the
plaintiffs or at least the likelihood of the buyers being
confused or misled into that belief."
15. A somewhat similar view was expressed in Cadila Health
Care Ltd. v. Cadila Pharmaceuticals 2001 (5) SCC 73.
16. The ratio of the above noted judgments is that once the
court of first instance exercises its discretion to grant or
refuse to grant relief of temporary injunction and the said
exercise of discretion is based upon objective consideration of
the material placed before the court and is supported by cogent
reasons, the appellate court will be loath to interfere simply
because on a de novo consideration of the matter it is possible
for the appellate court to form a different opinion on the issues
of prima facie case, balance of convenience, irreparable injury
and equity.
17. In the light of the above, we shall now consider whether
the impugned order is vitiated by an error of law apparent on the
face of the record or refusal of the High Court to grant
injunction in terms of the prayer made by the appellant has
resulted in manifest injustice. A little journey in the backdrop
of the case shows that the only ground on which the appellant
sought temporary injunction against the respondents was that the
word `Skyline' is a specific/distinct word and being a prior user,
it was entitled to seek a restraint against the respondents from
using that word in the name of the Institute of Engineering and
Technology established by them. The learned Single Judge, after
examining the rival pleadings and material placed before him
recorded a well reasoned finding that the appellant has failed to
make out a prima facie case. The learned Single Judge opined that
the word `Skyline' is a generic word because the same is being
used by thousands of persons and institutions as part of their
trading name or business activities. The learned Single Judge
noted that while the plaintiff is neither approved by AICTE nor
affiliated with any university, the respondents have obtained the
requisite recognition and affiliation from the concerned statutory
bodies and 240 students have already been admitted in the five
years course and held that grant of injunction in terms of the
prayer made by the appellant will be inequitable. The Division
Bench independently considered the entire matter and expressed its
agreement with the learned Single Judge that the appellant has
failed to make out a prima facie case for grant of injunction.
The Division Bench also agreed with the learned Single Judge that
the word `Skyline' was a generic word because it was being used by
a large number of people in India and abroad. The Division Bench
then held that after recording adverse findings on the issues of
prima facie case, balance of convenience and equity, the learned
Single Judge was not justified in directing the respondents not to
undertake in courses in management, tour and travels, etc. and
append a note in the advertisements that their institute has no
concern, whatsoever with the appellant's institution.
Accordingly, the Division Bench substantially vacated the modified
injunction order passed by the learned Single Judge.
18. In our opinion, the findings recorded by the learned
Single Judge and Division Bench on the crucial factors like prima
facie case, balance of convenience and equity are based on a
correct and balanced consideration of various facets of the case
and it is not possible to find any fault with the conclusions
recorded by them that it is not a fit case for restraining the
respondents from using the word `Skyline' in the name of the
institute established by them. It has not been disputed on behalf
of the appellant that the word `Skyline' is being used as trade
name by various companies / organizations / business concerns and
also for describing different types of institute/institutions.
The voluminous record produced by the respondents before this
Court shows that in India as many as 117 companies including
computer and software companies and institutions are operating by
using word `Skyline' as part of their name/nomenclature. In
United States of America, at least 10 educational/training
institutions are operating with different names using `Skyline' as
the first word. In United Kingdom also two such institutions are
operating. In view of this, it is not possible to agree with the
learned counsel for the appellant that the Skyline is not a
generic word but is a specific word and his client has right to
use that word to the exclusion of others.
19. There is another reason for declining the appellant's
prayer for grant of temporary injunction. The appellant is shown
to have started Skyline Business School in 1997 as one of its
division but has conveniently not mentioned that it had started
another institution under the aegis of Asian Educational Society
housed in the same building where the appellant claims to have its
registered office. After three years of starting Skyline Business
School, the Director of the appellant vide his letter dated
January 4, 2000 permitted the President, Asian Educational Society
to use the trade mark Skyline Business School, name and the logo
albeit without disclosing as to when Skyline Business School was
registered under the Trademarks Act, 1999. Thereafter, Skyline
Group's Asian Educational Society through its President, Shri
Kamal Puri entered into an agreement dated 9.12.2001 with Manipal
Academy of Higher Education (deemed university) for establishing a
branch campus at Skyline Business School, Delhi. Sikkim Manipal
University also approved Skyline Business School as a University
Study Center for taking management programme under distance
education despite the fact that the Skyline Business School is not
recognized or approved by AICTE/UGC. In 1996, University of
Oxford approved the appointment of a center in the premises of the
appellant at Laxman Public School, Hauz Khas Enclave, New Delhi
for Certification in Leisure Studies and in Travel and Tourism.
In 1997, Skyline Business School entered into a Memorandum of
Cooperation with University of Lincolnshire and Humberside, U.K.
whereby the latter agreed to offer its BBA (Hons.) Tourism course
through a center established at the appellant's campus. In large
number of advertisements issued in the name of the appellant or
Skyline Business School, it has not been made clear that they are
neither approved nor recognized by any of the statutory bodies
like, AICTE, UGC, etc. Of course, in some of advertisements, it
has been mentioned that the degrees/diplomas purported to be
awarded by the Skyline Business School are not recognized by
Government of India, State Government, UGC/AICTE. All this lends
sufficient credibility to the observations made by the Division
Bench of the High Court that the present litigation is to have
more commerce in education and less education in commerce and
gives an impression that functioning of the appellant is shrouded
in mystery and those seeking admission in the courses organised by
it may find themselves in serious trouble at any given point of
time because the degrees and diplomas awarded in the name of
foreign universities are not recognised by statutory
bodies/authorities in India.
20. Shri Sudhir Chandra may be right in his submission that
even an unregistered prior user of a name can institute action for
passing off and seek injunction against the subsequent user of the
same name by proving that misrepresentation by the defendant to
the public that the goods/services offered by him are that of the
plaintiff and such misrepresentation has caused harm to the
goodwill and reputation of the plaintiff or the plaintiff
demonstrates that it has suffered loss due to such representation,
but, in view of our conclusion that the appellant has failed to
make out a case for interference with the discretion exercised by
the High Court not to entertain its prayer for temporary
injunction, we do not find any valid ground to entertain and
accept the argument of the learned senior counsel. For the same
reason, we do not consider it necessary to discuss the judgments
on which reliance has been placed by Shri Sudhir Chandra.
21. Although, during the pendency of the suit, the appellant got
registration of trade marks `Skyline MEDALLIST' under No. 795085
and `Skyline Institute' under No. 795086 in class 16 and its
prayer for amendment of the plaint was granted by the High Court
on 24.8.2006, but, that by itself, is not sufficient for
entertaining the appellant's prayer for temporary injunction to
restrain the respondents from using the word `Skyline' as part of
the Institute of Engineering and Technology established by them.
22. We may now advert to C.A. No. 1362/2005. The
respondents' grievance is that after having reached the conclusion
that the learned Single Judge was not justified in restraining the
respondents from starting new courses in business management, etc.
and directing them to append a note in the advertisement that they
are in no way related to the appellant, the Division Bench should
have set aside all the directions impugned before it. We find
merit in the contention of the respondents. When the Division
Bench found that the learned Single Judge ought not to have given
direction restraining the respondents from starting new courses in
business management etc. and directed them to append a note in the
advertisement that they are not related to the appellant, then it
should have set aside the order of the learned Single Judge in its
entirety. The omission on the part of the Division Bench of the
High Court to do so calls for a corrective action by this Court.
23. In the result, Civil Appeal Nos.1360-1361 of 2005 are
dismissed and Civil Appeal No.1362 of 2005 is allowed and the
modified injunction granted by the learned Single Judge is vacated
in its entirety. The appellant shall pay Rs.50,000/- as cost of
unwarranted litigation thrust upon the respondents.
..........................J.
[ Tarun Chatterjee ]
..........................J.
[ G.S. Singhvi ]
..........................J.
[ Dr. B.S. Chauhan ]
New Delhi,
January 05, 2010
ITEM NO.1A COURT NO.13 SECTION XIV
(FOR JUDGMENT)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CIVIL APPEAL NO(s). 1360-1361 OF 2005
SKYLINE EDUCATION INSTITUTE (PVT) LTD. Appellant (s)
VERSUS
S.L.VASWANI & ANR. Respondent(s)
WITH Civil Appeal NO. 1362 of 2005
Date: 05/01/2010 These Appeals were called on for judgment today.
For Appellant in Mr. Hari Shankar K,Adv.
C.A. Nos.1360-1361/2009
& for Respondent in
C.A. No.1362/2005
For Respondent
in C.A. Nos.1360-1361/2009
& for Appellant in C.A.
No.1362/2005 Ms. Hetu Arora,Adv.
UPON hearing counsel the Court made the following
O R D E R
Hon'ble Mr. Justice G. S. Singhvi pronounced the judgment of the Bench comprising Hon'ble Mr. Justice Tarun Chatterje, His Lordship and Hon'ble Dr. Justice B. S. Chauhan.
Civil Appeal Nos.1360-1361 of 2005 are dismissed and Civil Appeal No.1362 of 2005 is allowed and the modified injunction granted by the learned Single Judge is vacated in its entirety. The appellant shall pay Rs.50,000/- as cost of unwarranted litigation thrust upon the respondents.
(Neetu Sachdeva) (Mithlesh Gupta)
Sr.P.A Court Master
(Signed non-reportable Judgment is placed on the file)