Delhi High Court
Triumphant Institute Of Management ... vs Aspiring Mind Assessment Pvt. Ltd. & ... on 13 May, 2014
Author: V.K. Shali
Bench: V.K. Shali
* HIGH COURT OF DELHI AT NEW DELHI
+ C.S. (OS) No.1058 of 2014
Decided on : 13th May, 2014
TRIUMPHANT INSTITUTE OF MANAGEMENT EDUCATION PVT.
LTD. ...... Plaintiffs
Through: Mrs. Pratibha M. Singh, Senior Advocate
with Mr. Tejveer Bhatia, Advocate.
Versus
ASPIRING MIND ASSESSMENT PVT. LTD. & ORS.
...... Defendants
Through: Mr. Saikrishan Rajagopal, Advocate.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (ORAL)
I.A. No.8156/2014 (under Order 39 Rule 4 CPC) & I.A No.6786/2014 (under Order 39 Rule 1 & 2 CPC)
1. By this application bearing No.8156/2014 filed under Order 39 Rule 4 CPC, the defendants are seeking vacation of ex parte ad interim injunction granted by this court in favour of the plaintiff on 16.4.2014.
2. The question to be decided by this order is as to whether the ex parte ad interim injunction order granted in favour of the plaintiff deserves to be continued or not once the defendant puts in appearance and makes an allegation that the plaintiff is guilty of suppression of material C.S. (OS) No.1058/2014 Page 1 of 25 facts before they landed in court. Once this issue is decided obviously it will take care of application under Order 39 Rule 1 & 2 CPC as well as an application under Order 39 Rule 4 CPC. But before dealing with the rival contentions in this regard, it may be pertinent here to give a brief background of the case.
3. The plaintiff filed a suit for permanent injunction against the defendants seeking a restraint against infringement of the trade mark and domain name 'AIMCAT' as well as restraint against passing off and rendition of accounts. Other consequential reliefs of delivery up, damages etc. were also sought because of alleged unfair competition and dilution of their trade mark. It was alleged that the plaintiff was the original inventor, registered proprietor and prior user of the trade mark 'AIMCAT'. The said trade mark has been coined from the expression 'ALL INDIA MOCK CAT TEST' and it was alleged that it has been used by the plaintiff exclusively, continuously and assertively since 2002. It was alleged that the said mark is used by the plaintiff qua its specialized coaching packages and test services for CAT exam.
4. It was alleged that defendants have now recently started using the mark 'AMCAT' which is visually, structurally and phonetically similar to C.S. (OS) No.1058/2014 Page 2 of 25 the plaintiff's mark AIMCAT. It was also alleged that defendants are also using the mark for a series of online employability assessment test amounting to clear infringement of the plaintiff's coveted rights under the statute as well as common laws.
5. The plaintiff had thereafter revealed about its organisation like the year when the activities were started, the number of offices spread for its activities in different towns. It was also stated that the forte of the organisation has been to conduct tests for IIT-JEE. It was also stated that turnover is from 2002-2003 gradually increasing to 10,665.74 crores in 2012-2013. The plaintiff also stated that its trade mark is registered in Class 16 and 41 of Schedule IV of the Trade Marks Act, which are reproduced as under :-
"16. .................. instructional and teaching material (except apparatus).............
41. Education; providing of training; entertainment; sporting and cultural activities."
6. On the basis of these averments made in the plaint and after hearing the learned senior counsel Mrs. Pratibha M. Singh, this court passed an ex parte ad interim injunction in favour of the plaintiff restraining the defendants, their principal officer, family members, C.S. (OS) No.1058/2014 Page 3 of 25 servants, agents, dealers, distributors, retailers, assignees, licensees and anyone acting for and on their behalf from using, advertising, promoting, selling or offering for sale in any manner whatsoever its services under the mark 'AMCAT' or any other title/name identical or deceptively similar to plaintiff's registered trademark or to use the said mark as a part of domain name in relation to educational services or in respect of any goods/services in any manner whatsoever so as to result in infringement of the plaintiffs rights in the registered trademark.
7. The application under Order 26 Rule 9 CPC read with Section 151 CPC was also allowed and local commissioners were appointed.
8. The defendants company, on being served, filed their reply to the application as well as an application under Order 39 Rule 4 CPC for vacation of an ex parte ad interim stay. The reason given by the defendants for this is that the defendants company uses the brand 'AMCAT' in relation to test the measure of job suitability, employability of the job seekers to provide them the feedback or their job skills, connect them to the matching jobs and also help the companies to hire appropriate candidates in this regard. It was alleged that they have developed a computer software programme for this purpose which evaluates skills, C.S. (OS) No.1058/2014 Page 4 of 25 language cognitive, personality and domain knowledge. This word was coined by them in 2008 and has been used by them since then and is registered under Class 35 of the Trade Marks Act. The full form of the 'AMCAT' was given as Aspiring Minds Computer Adaptive Test. Class 35 of Schedule IV of the Act is produced as under :-
"35. Advertising, business management, business administration, office functions."
9. I have heard the learned counsel for the defendants as well as Mrs. Pratibha M. Singh, the learned senior counsel for the plaintiff on the application under Order 39 Rule 4 CPC and have also gone through the record.
10. The main contention of Mr. Saikrishna, the learned counsel for the defendants seeking vacation of the ex parte ad interim order passed against the defendants has been on the ground that the plaintiff has been guilty of suppressing crucial material facts and making gross misrepresentation. In this regard the learned counsel made the following points :-
a) The plaintiff deliberately concealed from the court that the defendants are registered proprietors of its trade mark 'AMCAT' in C.S. (OS) No.1058/2014 Page 5 of 25 Class 35 of the Trade Marks Act, 1999. It was alleged that it was the duty of the plaintiff to have disclosed this crucial fact while approaching the court seeking permanent injunction in which they had claimed an ex parte ad interim injunction.
b) The mala fides of the conduct of the plaintiff was evident from the fact that the plaintiff deliberately produced only online status of the defendants' trade mark application while as they were silent on the valid registration of the defendants' mark 'AMCAT'.
c) The plaintiff also did not point out that the defendants being a registered trade mark holder of the word 'AMCAT' and, therefore, by virtue of Section 28 sub-Clause 3, the plaintiff was precluded from claiming infringement of their registered trade make 'AIMCAT'.
d) The plaintiff has failed to point out to this court that the registration of the defendant was under Class 35 which dealt with the test of determining the suitability of the candidate for employment of the nice classification while as the plaintiff's trade mark was registered under Class 16 and 41 of the said classification. It was contended that amendment to Rule 22 of the Trade Mark Rule 2013 had C.S. (OS) No.1058/2014 Page 6 of 25 abrogated the classification in Schedule IV and adopted a nice classification on international lines though it was a replica of the classification given in the Schedule but nevertheless, it was the duty of the plaintiff to have pointed out that the registration of the two trade names were under two different classes and there was hardly any occasion for the defendants to infringe the trade mark of the plaintiff.
e) The plaintiff has blatantly represented to the court by making averment that it acquired knowledge of the commercial activities of the defendants for the first time only in November, 2013 when the cause of action is alleged to have accrued to the plaintiff. It was stated by the defendants specifically that as early as on 3.5.2013, the plaintiff's representative had contacted the defendants for discussing the potential collaboration between the plaintiff and the defendants and an e-mail in this regard purported to have been sent by a representative of the plaintiff from Chennai was referred to. It was also contended that this e-mail has not been denied by the plaintiff. All that they have stated is that this e-mail was C.S. (OS) No.1058/2014 Page 7 of 25 inconsequential and written by a person who was not dealing with the legal matters of the plaintiff company.
11. The second argument of the learned counsel for the defendants was that there was no confusion for deception on the general public by the existence of both the marks in question. In this regard, a comparison of the two trademarks was drawn in the paper book and the distinction between the two marks was pointed out to show that there was striking dissimilarity between the two marks with regard to their getup, spelling, colour combination and overall visual comparison which cannot mislead any educated person who are the perspective customers of either of the two parties and, therefore, they would make an informed choice in their different fields.
12. Last but not the least, the learned counsel for the defendants Mr. Saikrishna urged that the suit filed by the plaintiff suffers from delay and acquiescence and, therefore, an ex parte ad interim injunction ought not to have been issued. It was contended that though the plaintiff in its averments has stated that the cause of action has accrued to them in November, 2013 but actually it arose to them in May, 2013 when the e- mail was written by them to the representative of the defendants for C.S. (OS) No.1058/2014 Page 8 of 25 collaboration and after having chosen to remain silent for almost a year, they had acquiesced to the user of the mark by the defendant and delay in any case was fatal to the grant of any ex parte ad interim injunction.
13. Mrs. Pratibha M. Singh, the learned senior counsel for the plaintiff has denied that there was any concealment or suppression of material facts or there was any gross misrepresentation made by the plaintiff on the basis of which an ex parte ad interim injunction was granted in their favour. In this regard, it was contended by her that the letter dated 3.5.2013 written by an official or a representative of the plaintiff stationed in Chennai wherein a proposal was given to the defendants for the purpose of having collaboration is totally inconsequential as it was not followed upto its logical end. It was further stated that at best the disclosure of this letter would have only shown that the cause of action has accrued to the plaintiff in May, 2013 instead of November, 2013 and if it is assumed that the cause of action would have accrued in May, 2013 then, the argument of delay would have been raised by the plaintiff. Such an argument would and could not have got any benefit to the defendant.
14. In this regard, the learned senior counsel contended that the Supreme Court in Midas Hygiene Industries Pvt. Ltd. Vs. Sudhir Bhatia C.S. (OS) No.1058/2014 Page 9 of 25 & Ors.; (2004) 3 SCC 90 has held that mere delay in bringing an action is not sufficient to defeat the grant of an injunction if the grant of such injunction becomes necessary and it is prima facie shown that the adoption of the trade mark by the defendants is identical and dishonest. It has been contended in the light of the judgment in Midas Hygiene's case (supra) ex facie the adoption of the mark by the defendants which is 'AMCAT' and is appearance wise and phonetically similar to the trade mark of the plaintiff in itself shows that there is not only infringement but also possibility of deception and confusion in the mind of public at large especially the perspective customers of the plaintiff.
15. So far as the question of registration of the trade mark of the defendants is concerned, the explanation which has been given by the learned senior counsel was that they had made online inquiries with regard to the status of the 'AMCAT' from the office of the Registrar of Trade Mark and such inquiries to the best of their knowledge revealed that the trade mark was not registered and their application was pending. The details of the application which were downloaded by the plaintiff had been placed on record. It has been contended that for want of this information, the plaintiff could not have known as to whether the trade C.S. (OS) No.1058/2014 Page 10 of 25 mark of the defendant was registered in class 35 or not and consequently no such averment was made before this court. With regard to Section 28 sub-clause 3, it was contended by Mrs. Singh, the learned senior counsel that as they were not aware of the registration of the mark of the defendant and, therefore, there was no question of Section 28 sub-clause 3 coming into operation.
16. So far as the abrogation or repeal of the classification given in Schedule IV of the Trade Marks Act, 1999 by nice classification is concerned, it was contended by the learned counsel that this is also inconsequential inasmuch as nice classification neither changes the class nor the principle but on the contrary it is only a replica of the earlier classification and, therefore, this at best can be attributed to be an inadvertent bona fide mistake on the part of the plaintiff which is of no consequence.
17. It was contended by the learned senior counsel that merely because pictorially there happens to be some difference in the two trade names, does not give a right to the defendant to use the trade name 'AMCAT' by them which is phonetically, spell wise and presentation wise similar to the trade name of the plaintiff as it is likely to cause confusion in the C.S. (OS) No.1058/2014 Page 11 of 25 mind of the public. It was also stated that the distinction which is sought to be drawn by the learned counsel for the defendants on account of the two programs being conducted by the plaintiff and the defendants on the ground that the program of the defendants is for determination of suitability of a candidate for employability is not different than training and the mock test which is being conducted by the plaintiff for the benefit of entrance to the management courses of Indian management institutes and since it is likely to cause confusion, therefore, the defendants deserve to be restrained and in any case, the defendants have adopted the mark much later than the registration of the plaintiff's mark and, therefore, under common law, the plaintiff is entitled to protection.
18. Lastly, with regard to delay and acquiescence, the learned senior counsel for the plaintiff has stated that there is no inordinate delay in coming to the court and moreover, in view of the judgment of the Supreme Court in Midas Hygiene's case (supra), delay cannot be treated to defeat the right of the plaintiff to get an ad interim injunction only on the ground of coming belatedly in court when the plaintiff is able to satisfy this court that the defendants are misusing the trade name of the plaintiff.
C.S. (OS) No.1058/2014 Page 12 of 25
19. I have thoughtfully considered the submissions made by the respective sides and have gone through the judgments. There is no dispute about the fact that the grant of an injunction is an equitable relief and before a party claims an equitable relief, he must show not only to the court that he has come to the court with clean hands but also that there has to be a complete disclosure of facts in the plaint. This duty is further enhanced on account of the fact where a prayer is made by the plaintiff for grant of an ex parte ad interim injunction. The importance of full disclosure of facts or rather the consequences of concealment and suppression of material facts has been underscored by the courts repeatedly. One of the judgment which has been cited by both the parties is from our own High Court in case titled Rana Steels vs. Ran India Steels Pvt. Ltd.; 2008 (4) AD (Delhi) 46 where the learned single judge of this court in para 30 observed as under :-
"It has been submitted on behalf of the defendant that the plaintiff had deliberately withheld and suppressed the factum of the defendant's registration from this Court and that had the full facts been disclosed, this Court would not have granted the ex parte ad interim injunction to the plaintiff. Suppression of facts is undoubtedly a good ground for refusal of the equitable relief of injunction. That is a principle which is well engrained in our judicial system. But, the question is -- was there any suppression C.S. (OS) No.1058/2014 Page 13 of 25 on the part of the plaintiff? First of all, the plaintiff's explanation is that the defendant's registration was in an entirely different class of goods with which the plaintiff is not concerned. Secondly, the plaintiff was not aware of the defendants registration under class 19. It, apparently, came to know of the same through the defendant's written statement filed in the present suit. Prima facie, I would tend to believe the plaintiff. There are reasons for this. It must be remembered that in 2005 the defendant had also filed and application for registration of the mark RANA turn under class 6. The plaintiff filed an opposition to the same. In the counter-statement to the plaintiff's said opposition, the defendant made no mention that it had applied for the same mark in relation to goods falling under class 19. The plaintiff was interested in goods and services under class 6 and not under other classes including class 19. Therefore, it is not unreasonable for the plaintiff to have not known about the defendant's registration under class 19. Moreover, after the filing of the written statement, from which the plaintiff allegedly derived knowledge of the defendant's registration, the plaintiff has filed a rectification application under Section 57 of the said Act before the Intellectual Property Appellate Board, Chennai seeking cancellation/removal of the defendant's registration on various grounds. These actions, the filing of the opposition to the defendant's application in relation to class 6 goods and the filing of the rectification application, clearly demonstrate that the plaintiff is quick to guard its rights flowing from its registration. The sequitur is that the plaintiff was unaware of the defendant's said registration and could not have reasonably been expected to have known about it."
C.S. (OS) No.1058/2014 Page 14 of 25
20. It may be pertinent here to mention that in this case, the plaintiff was a registered proprietor of the mark 'RANA' in relation to steel rolled products, C.T.D. bars, angles, flats, rounds, channels and girders falling under Class 6 and it had chosen to file a suit against the defendant who was the registered proprietor of a mark 'RANA tor' in respect of 'building material (steel)' falling under Class 19. The plaintiff filed a suit that the defendant had recently started using trade mark 'RANA tor' in respect of identical products in which an ex parte ad interim injunction was granted. The defendant filed an application for vacation of the ex parte ad interim injunction claiming that as the mark of the defendant was registered trade mark by virtue of Section 28 sub-clause 3 of the Act, there was a complete bar in respect of filing of a suit by one registered proprietor of a trade mark against another registered proprietor of the same or similar mark. In this case, the court ruled in favour of the plaintiff that there was no concealment in obtaining an ex parte ad interim order.
21. The maxim that 'he who seeks equity must do equity' meaning thereby that a plaintiff in his dealings with persons against whom relief is sought must act in a fair and equitable manner only then he is entitled to C.S. (OS) No.1058/2014 Page 15 of 25 injunction. The necessary corollary of this is that the plaintiff must disclose to the court complete and true facts especially the facts which may disclose the probable defence of the defendants or the plus points of the defendants. If these details are withheld by a party or a plaintiff and an ex parte injunction is obtained then it is going to be only short-lived and the party must be penalized for such misconduct by discontinuing the injunction granted in its favour.
22. Coming back to the facts of the present case, the defendants have made serious allegations against the plaintiff regarding suppression and concealment of material facts which, if disclosed, would have been perhaps considered by the court to be sufficient enough to disentitle the plaintiff to the benefit of grant of an ex parte ad interim injunction. These facts are firstly, that the plaintiff in the cause of action clause has specifically stated that they learnt about the commercial activities of the defendants only in the month of November, 2013 for the first time that the defendants are using the trade mark 'AMCAT' which is deceptively similar to their trade name of 'AIMCAT' and, therefore, they were constrained to issue a notice of cease and desist to which reply was given by the defendants without stopping the user of their trade name but as a C.S. (OS) No.1058/2014 Page 16 of 25 matter of fact the defendants have placed on record an e-mail purported to have been sent by a representative of the plaintiff from Chennai office requiring the defendants to have a collaborative agreement with regard to user of the trade name. It is, in my view, an important document which ought to have been disclosed by the plaintiff to the court as it not only discredits the averment made by the plaintiff that they acquired the knowledge only in the month of November, 2013 but also shows that they had knowledge about the user of the trade name 'AMCAT' way back in the month of May, 2013 itself. The explanation which is sought to be given by the plaintiff that even if the knowledge of the plaintiff is assumed from the date of the letter at best instead of stating in the plaint that cause of action would have accrued to them in November, 2013, it would have been urged by the plaintiff that the cause of action accrued to them in the month of May, 2013 and the knowledge would have been pre- dated by another five/six months or so and that difference of six months not having acquired the knowledge, could not have defeated the right of the plaintiff in terms of the Apex Court in Midas Hygiene's case (supra), does not convince the court.
C.S. (OS) No.1058/2014 Page 17 of 25
23. I do not accept this explanation given by the learned senior counsel for the plaintiff that the withholding of the letter dated 3.5.2013 is as simple as is sought to be presented by seeking the extension of date of knowledge only. This is only one of the pieces of information which, if seen in the background of other relevant facts, changes the complexion of the case of the plaintiff.
24. These facts are that the plaintiff has averred in the plaint that the defendants have simply applied for registration of their trade name 'AMCAT' while as the defendants in reply to the show cause notice sent to the plaintiff had specifically stated that the area of operation of the plaintiff and the defendants is totally different as they are meeting the requirements of different segments. The plaintiff was conducting training and mock tests in respect of candidates who were seeking admission to the management courses by way of CAT examination with their trade mark 'AIMCAT' which was registered in Class 41 as against the registration of defendants trade mark in Class 35 where they were conducting mock computer adaptive test in order to determine the suitability of a candidate for employment. The defendants were not conducting any training programmes for this. These tests are undertaken C.S. (OS) No.1058/2014 Page 18 of 25 by the perspective candidates seeking employment or for and on behalf of various organizations intending to recruit fresh candidates for employment and thus, their area of operation or what the defendants call as 'industry' was totally different and it is unbelievable that after having received the reply from the defendants that they were operating in a field of conducing the mock test in order to determine the suitability of a candidate for his employability that they would not have been able to find out the category or the class in which they were registered. The plaintiffs, in my view, were feigning ignorance deliberately to induce the court to pass an ex parte order. If they would have done a bit of effort, they would have known that the defendants are registered in Class 35. If they have not done so then they have done it at their own peril or otherwise the only probable inference which a reasonable person could try in such all circumstances that they were aware of the fact that the defendants were registered in Class 35 which was altogether a different class than the Class of 41 in which the plaintiff was registered. If we attribute this deemed knowledge to the plaintiff then obviously this information has been withheld by them which has to be seen in the context of withholding of the letter dated 3.5.2013 that it acquires C.S. (OS) No.1058/2014 Page 19 of 25 importance and thus, it becomes suppression of material facts by the plaintiff only with a view to score a march over the defendant.
25. The another aspect which becomes important as to why the withholding of registration by the plaintiff of the defendants in Class 35 acquires significance is because of Section 28 sub-clause 3 of the Trade Marks Act, 1999 which reads as under :-
"28. Rights conferred by registration.--
(1) ...........
(2) ............
(3) Where two or more persons are registered proprietors of trade marks, which are identical with or nearly resemble each other, the exclusive right to the use of any of those trade marks shall not (except so far as their respective rights are subject to any conditions or limitations entered on the register) be deemed to have been acquired by any one of those persons as against any other of those persons merely by registration of the trade marks but each of those persons has otherwise the same rights as against other persons (not being registered users using by way of permitted use) as he would have if he were the sole registered proprietor."
26. A perusal of the aforesaid Section clearly shows that if an action for violation or infringement of a trade mark is brought about by a party against another person or a defendant claiming infringement whose trade C.S. (OS) No.1058/2014 Page 20 of 25 mark is also registered though in a different class, such an action would not lie. Reliance in this regard is placed on P.M. Diesels Pvt. Ltd. Vs. Thukral Mechanical Works; PTC (Suppl.) (2) 863 (Delhi) which also deals with the concept of trafficking in trade mark by getting the trade mark AIMCAT registered the plaintiff cannot be permitted to scuttle the genuine and legitimate commercial activity of the defendant in a different field on the basis of perceived infringement of their trade mark when there contemporaneous conduct does not match their conduct, for example, no action for revocation of the trade mark of the defendant is initiated. It is stated during the course of argument and in the reply to the application the plaintiff reserves the right to initiate such an action.
27. Mrs. Singh, the learned senior counsel for the plaintiff has referred to an order passed in R.F.A. (OS) No.77/2014 to contend that an infringement action may lie against another registered proprietor if the conditions as stipulated in Section 124 of the Trade Mark Act, 1999 are satisfied.
28. I have gone through Section 124 of the Act. I feel that the only condition when the said section may come in operation is envisaged in Section 124 (1) (b) (ii) but that is also conditioned with the court forming C.S. (OS) No.1058/2014 Page 21 of 25 a prima facie view that the registration of the trade mark of either party is invalid while as in the instant case, it is neither the case of the plaintiff not that of the defendants that the trade mark of the opposite side is invalid. So Section 124 does not come into operation at all.
29. The aforesaid facts clearly show that the plaintiff has been prima facie guilty of suppression and concealment of material facts. Firstly, non-disclosure of letter dated 3.5.2013 purported to have been written by their official from Chennai and consequently wrongly making an averment in the cause of action clause that they got the knowledge about the activities of the defendants only in November, 2013 while as they had knowledge from May, 2013; secondly, non-disclosing the fact that the defendants were dealing in a different industry of taking Computer Adaptive Mock Test for determining the suitability of candidates for employment which falls in Class 35 of Schedule IV and not conducting any training program or taking tests for admission to CAT etc. as done by the plaintiff. Thirdly, non-disclosure of the registration of the trade mark of the defendants despite having the knowledge about the same and if not having knowledge of the same, they will be deemed to have the knowledge, as it was their responsibility to have conducted the complete C.S. (OS) No.1058/2014 Page 22 of 25 search thoroughly and placed the facts before the court and in taking any contemporaneous action of initiating any action for revocation of the trade mark of the defendants. Fourthly, the adoption of trade mark by the defendants cannot be said to be dishonest. Because of these reasons, I feel that the ex parte ad interim injunction granted in favour of the plaintiff deserves to the vacated.
30. In addition to the vacation of the ex parte ad interim injunction granted in favour of the plaintiff even on merits also if one sees the trademarks of the plaintiff and the defendants, there are distinctive features which have been reproduced by the defendants in their reply which go to show that as the conure of services of both the plaintiff and the defendants are educated people and there is no likelihood of any prospective customer being mislead so as to associate the trade mark of the defendants with that of the plaintiff. In this regard, the comparison of the true trademarks and their distinctive features are being reproduced as under :-
C.S. (OS) No.1058/2014 Page 23 of 25
Srl. Particulars Plaintiff Defendants No. 1. Trademark 2. Services Under the mark AIMCAT, Under the mark
the plaintiff provides special AMCAT, the defendant study packages and provides a series of classroom programmes for tests that are used to students aspiring for the measure job skills of a CAT exams. graduate and to get them recruited in jobs.
It has no connection whatsoever with the CAT exams.
The plaintiff provides The defendant does not
coaching and training provide any coaching
classes. or training classes.
The plaintiff's services are The defendants tests
available online and are are only accessible
accessible from any place from the Test Centres
organized by it and is
not directly accessible
online.
3. Customers The plaintiff's customers are The defendants'
students aspiring to crack the customers are
CAT exams and get graduates looking for
admissions in MBA colleges. employment and
Corporations like HCL,
Accenture Wipro, etc.
seeking to hire.
C.S. (OS) No.1058/2014 Page 24 of 25
31. The aforesaid facts would clearly show that even on merits, the plaintiff does not have a prima facie case and if it does not have the prima facie case obviously there is no question of balance of convenience being in favour of the plaintiff rather the balance of convenience is in favour of the defendants. Both the plaintiff as well as the defendants are operating in their own spheres. The plaintiff cannot be assumed to be suffering any irreparable loss in case stay is not granted as it can always be compensated in terms of money if it ultimately succeeds. It may also be stated that on merits also, the plaintiff is not entitled to any stay. I, therefore, vacate the ex parte ad interim stay dated 16.4.2014 even on merits.
32. The application of the plaintiff under Order 39 Rule 1 & 2 CPC accordingly stands dismissed and the application of the defendants under Order 39 Rule 4 CPC stands allowed and the ex parte ad interim order stands vacated. Expression of any opinion may not be treated as an expression on the merits of the case.
33. Dasti.
V.K. SHALI, J.
MAY 13, 2014/'AA' C.S. (OS) No.1058/2014 Page 25 of 25