Skyline Education Institute (Pvt) Ltd vs S.L.Vaswani & Anr

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)