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TMI Blog2005 (8) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... likely to cause confusion in the minds of the public which would be directly or indirectly associated with the plaintiffs Vivekanand Institutes and/or VETA and for other reliefs as stated therein. In the said suit, the three applications are filed in O.A. Nos. 344 to 346 of 2005 for the relief as stated therein. 3. Original Application No. 344 of 2005 is filed seeking an order of injunction restraining the respondents jointly and/or severally or through their agents servants or otherwise howsoever from in any manner passing off or attempting to pass off or causing, enabling others to pass off the services not of the applicants as and for the services of the applicants by use in connection therewith or in course of trade including materials, etc. under the brand name of Vivekananda English Academy or any other deceptively similar name or a colourable imitation of the applicants services that is likely to cause confusion in the minds of the public which would be directly or indirectly associated with the applicants Vivekanada Institutes and/or VETA. 4. The above application is filed contending that the second applicant had set up business of running an educational institut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... teach English. 6. The respondents/defendants resisted the application on the ground that the terms and conditions of the franchise agreements are applicable only for the currency of the agreements and not after the expiry of the term. It is further contended that the applicant-company having changed the name as Amoha Education Private Limited on and from 1-3-2004, they cannot complain that the respondents are using the word Vivekananda Institute . It is also contended that the respondents are using only the name Vivekananda English Academy and not Vivekananda Institute and the names are not identical and as such, the respondents need not be restrained from using the word Vivekananda English Academy . 7. The applicants have also filed other applications viz., O.A. Nos. 345 and 346 of 2005, seeking the relief as stated therein which were resisted by the respondents, the details of which would be dealt with hereinafter separately. 8. The learned Judge, by order dated 5-7-2005, passed an order granting relief in favour of the applicants which is under challenge in the above appeals. 9. The learned Senior Counsel for the appellants would contend that the applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . As regards the factual aspects are concerned, viz., the commencement of the business by the second applicant as a proprietary business during 1981 and subsequently conversion as a partnership firm during 1986 and thereafter the incorporation of the same as a private limited company during 1988 under the name and style of Vivekananda Kalvi Nilayam Private Limited and subsequent change of name on and from 1-3-2004 as Amoha Education Private Limited and a steady raise of turnover from 1988-89 to 2003-04 are concerned, the said facts are not disputed by the respondents. It is also not disputed by the respondents in the applications that the restrictive covenant was incorporated in the franchise agreements in Clause 4.1 and the franchise agreements came to be terminated during February 2005. Even though the name of the first applicant is changed as stated supra, it cannot be suggested that from the commencement of the business by the second applicant, it was named as Vivekananda Study Circle and later on Vivekananda Kalvi Nilayam and subsequently as Vivekananda Kalvi Nilayam Private Limited and the business was carried on in short in the name and style of Vivekananda I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. Equally, when the second applicant having used the name Vivekananda Institute right from the inception of its business from the year 1981 onwards and even after the change of names subsequently, the applicants continue to use the said term in the trade circle as well as with the general public, if the respondents are permitted to use the term Vivekananda English Academy , it would definitely cause confusion in the minds of the general public. In identical circumstances, in a judgment in Prakash Roadline Ltd. v. Prakash Parcel Service (P.) Ltd. PTC Suppl. (2) 177 (Delhi), it is held therein that when the defendant-company therein was floated by ex-directors and senior officers of the plaintiff, who are in the know of its business secrets and intended to exploit the same they were injuncted for the use of the word Prakash . Similarly, in a decision in Bhagvan Dass Gupta v. Shiv Shankar Tirath Yatra Co. (P.) Ltd. 2001 PTC 676 (Delhi), it is held therein that the person having prior, long and continuous use of such name has a preferential right to protect it and one cannot be oblivious of the fact that the defendant was under the employment of the plaintiff-company, who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gujarat Bottling Co. Ltd. v. Coca Cola Co. AIR 1995 SC 2372, which reads as follows : ". . . Section 42 of the Specific Relief Act, 1963, prescribes that notwithstanding anything contained in clause ( e ) of section 41, where a contract comprises an affirmative agreement to do a certain act, coupled with a negative agreement, express or implied, not to do a certain act, the circumstance that the Court is unable to compel specific performance of the affirmative agreement shall not preclude it from granting an injunction to perform the negative agreement. This is subject to the proviso that the plaintiff has not failed to perform the contract so far as it is binding on him. . . ." (p. 2388) Hence, the contention of the learned Senior Counsel in this regard cannot be countenanced. 18. Even though a further contention is urged by the learned Senior Counsel to the effect that the said clause is in violation of section 27 of the Contract Act, in the light of the decision of the Apex Court in Superintendence Co. of India (P.) Ltd. v. Krishan Murgai AIR 1980 SC 1717. In the above decision, the Apex Court held that unless a particular contract can be distinctly brought within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. 21. In the light of the above principles, if we consider the grievances of the applicants, we have no hesitation to hold that the applicants have established a prima facie case and the balance of convenience is in favour of the applicants. If the prayer for an interlocutory injunction is disallowed in the instant case, the applicants would necessarily suffer an irreparable injury, considering the fact that there is a phenomenal increase in the turnover of the business of the applicants from the years 1988-89 to 2003-04. If such an order of injunction is not granted and thereby if the respondents are allowed to carry on the trade by permitting them deceptively to make use of the term Viveka- nanda English Academy which is more or less similar to the trade name of the applicants Vivekananda Institute , there is every possibility for the general public to avail the services of the respondents by assuming that the said services are rendered by the applicants. If ultimately the suit is de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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