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16. When it found that despite the expiry of Implementation Agreement on 22nd May 2009, MAIGPL was continuing to offer enrolment in WIU‟s courses, WIU on 3rd June 2009 filed the present suit against MAIGPL and AI seeking inter alia, a permanent injunction restraining MAIGPL and AI from representing to the public at large that they were offering WIU‟s courses and accepting fees for enrolment in respect of such courses. Permanent injunction was also sought to restrain MAIGPL and AI and from advertising WIU‟s courses and using its trade mark, trade name and logos thereby holding out that MAIGPL was still associated with WIU. Along with the suit WIU filed I.A. No.7849 of 2009 under Order XXXIX Rules 1 and 2 CPC for an interim injunction. The suit and application were listed before the Vacation Court on 10th June 2009 and thereafter on 12th June 2009 when summons were directed to issue in the suit and notice in the application returnable on 10th August 2009.

23. It is submitted on behalf of MAIGPL that the order dated 25th May 2009 passed by the learned Single Judge dismissing Modi‟s petition under Section 9 ACA is under challenge before the Division Bench. Since similar issues would arise for consideration in the said appeal, it is apprehended that any order passed by this Court in the present application for interim injunction might prejudice the outcome of the said appeal.

24. In the first place this Court wishes to deal with the application under Section 8 ACA based on the contention of MAIGPL that the suit is not maintainable in the present form particularly since there is an arbitration clause in the SHA. A similar contention raised in the petition under Section 9 ACA filed by Modi was rejected by a learned Single Judge of this Court by the judgment dated 25th May 2009. Although an appeal against the said judgment is stated to be pending, there is no interim order passed in the said appeal as of now. Therefore, this Court proceeds on the basis that the judgment dated 25th May 2009 still holds the field. It does appear prima facie that with WIU not being a party to the SHA, the arbitration Clause 11.4 thereof cannot be stated to be binding on WIU. Therefore this Court finds no merit in the application under Section 8 ACA. It is clarified that this is not intended to influence the outcome of the appeal filed by Modi against the judgment dated 25th May 2009 of the learned Single Judge.

27. There is force in the contention of the learned Senior counsel for WIU that by resisting the grant of an interim injunction restraining it from continuing to use the WIU trade property MAIGPL is in effect seeking the continuation of the Implementation Agreement and the Licence Agreement when both have been expressly terminated by the notice dated 22 nd April 2009 issued by WIU. The facts narrated show that even on 27th September 2007, when it appeared that there was going to be an issue about AICTE not approving the courses offered, WIU desired to terminate the Implementation Agreement. That move was deferred when Modi assured WIU that no such recognition was required. In the light of the subsequent developments and in particular AICTE‟s insistence that its approval is mandatory, Modi cannot possibly plead that WIU‟s withdrawal of its courses being offered by MAIGPL was wholly unexpected. The contention of MAIGPL that its substantial investment in the joint venture and the consequential losses it is likely to suffer if the termination of the agreements by WIU is allowed to become effective, are factors that should weigh against the grant of an interim injunction does not impress this Court. The contention of MAIGPL that it is prevented by the `non-compete‟ clauses from offering courses on its own is contested by WIU which has categorically stated in this Court through its counsel that it does not want to be present in India and will have no problem if MAIGPL offers courses of its own, as long as it makes no use of WIU trade property.

28. In the considered view of this Court all or any of the above factors urged by MAIGPL do not constitute a strong enough justification for MAIGPL to continue to sell application forms of WIU courses, and also collect the completed forms and fees from applicants, after 22nd May 2009. Much less is there any justification in law for MAIGPL after 22nd May 2009 to continue to hold out through advertisements in the print and electronic media and through hoardings that it is offering WIU courses. The fate of students who have applied till then is already taken care of in the Implementation Agreement itself. Therefore, any interim injunction restraining MAIGPL from selling or accepting application forms for WIU courses after 22 nd May 2009 will not prejudice the ones who have applied on or prior to that date. With the termination having become effective on 22nd May 2009 and the consequences thereof having been clearly spelt out in the Implementation Agreement, and carried into the SHA through the addendum, this Court is satisfied that the WIU has made out a prima facie case for grant of interim injunction.