Full Text
HIGH COURT OF DELHI
Date of Decision: 23rd September, 2022
RAM KRISHAN AND SONS CHARITABLE TRUST..... Plaintiff
Through: Mr. Vierat K. Anand, Ms. Srishty Kaul, Mr. Kumar Shashank, Mr. Rishab Singh, Ms. Shrishti Bajpai &
Mr. Anant Singh, Advocates (M- 9717713067)
AND ORS & ORS. ..... Defendants
Through: Mr. Darpan Wadhwa, Sr. Advocate with Mr. Aman Dhyant, Ms. Kanchan Semwal & Mr. Amer Vaid, Advocates (M-9650279943)
Mr. M.A. Niyazi, Standing Counsel for CBSE (M-9810413706).
JUDGMENT
1. This hearing has been done through hybrid mode.
2. The present is a suit for permanent and mandatory injunction, as also damages, in respect of the Plaintiff’s trademark and logo ‘Banyan Tree School’. The case of the Plaintiff is that the Defendants herein continue to use the name ‘Banyan International School’ for their school situated in Jammu & Kashmir, despite five years having lapsed since they gave an undertaking to the Court to not use the said mark.
3. This dispute traces back to arbitration proceedings instituted by the Plaintiff against their ex-franchisees - the Defendants, seeking dissolution of the franchise agreement and restraining the Defendants from using the 2022:DHC:3907 Plaintiff’s mark. The award passed in the said proceedings dated 15th December, 2012, gave the following directions:
5. The stand of the Plaintiff, in the present suit, is that the Defendants have not taken any steps to change the name and continues to use the name ‘Banyan International School’, despite almost five years having lapsed since the above mentioned order. Accordingly, on 30th May, 2022, this Court had requested ld. Counsel for CBSE to be present in Court, who submitted that he would take instructions in the matter.
6. On the next date of hearing being 29th July, 2022, CBSE had handed over certain documents to the Court which showed that the CBSE had written to the Defendant-School on 8th December, 2017, calling upon the School to place before it a copy of the resolution for change of name along with an affidavit. According to the CBSE, no response was received from the School to that request. It was only on 19th July, 2022, when the CBSE wrote to the School through Mr. Harinder Mahajan, the Chairperson of the Shaurya Education Society that runs the School. Notably, this was after the orders of this Court, that the process for change of name in fact commenced. On the said date of hearing being 29th July, 2022, a reference was also made to a letter dated 1st September, 2017 which the Society had claimed to have written to the CBSE. However, none of the said letters were produced before the Court. In this background, this Court had, on 29th July, 2022, observed as under:
7. As per the above order dated 29th July, 2022, this Court directed CBSE to proceed with the name change of the Defendant-School, and to seek any requisite documents for the same expeditiously. It further directed the Defendant-School as also CBSE, to inspect and file affidavits disclosing the number of students enrolled in the School, fees paid, subjects offered, for the last five years that the School was in violation of the order.
8. Pursuant to the above directions, today, CBSE has filed an affidavit dated 21st September, 2022, giving the details of the steps taken towards change of the Defendant-School’s name from ‘BANYAN INTERNATIONAL SCHOOL’ to ‘SHAURYA INTERNATIONAL SCHOOL’. As per CBSE’s affidavit, the requisite fee for change of name, the forms, etc. have all been filed by the School now. The affidavit of the CBSE on this aspect reads as under: “ REGARDING CHANGE OF NAME
I. CBSE vide letter No.
CBSE/AFF/730058/legal/2017/1331413 dated: 08.12.2017 had called upon the defendant school to submit before it a copy of resolution passed by the school for change of name along with an affidavit in compliance of order dated 23.08.2017 passed by Hon'ble High Court with regards to change of school name from ‘Banyan International School’ to 'Shaurya International School’. Copy of the letter dated 08.12.2017 is annexed hereto as
ANNEXURE-A.
II. That as per the records available with CBSE no response or communication was received by CBSE from the defendant school in this regards till July 2022.
III. That the CBSE vide email dated 19.07.2022 wrote to defendant school by giving reference to telephonic conversation held on 18.07.2022 to submit all the documents required for the compliance of order dated 23.08.2017. A copy the email dated 19.07.2022 is annexed hereto as
ANNEXURE-B
IV. That the defendant school passed a resolution for change of name only on 18.07.2022 and they sent to CBSE a copy of resolution along affidavit on 19.07.2022 which was received by the CBSE on 25.07.2022. copies of resolution dated 18.07.2022 along with affidavit are annexed hereto as
V. That the CBSE vide email dated 17.09.2022 requested defendant school to remit the prescribed fees Rs. 1,87,500/-in Board's Account towards change of School name. Copy Email dated 17.09.2022 is annexed hereto as
ANNEXURE-D. Entire information formalities regarding change of name are available on CBSE website which is in public domain. The fee has been received on 19/9/2022 and the process is to be completed soon.”
9. Mr. Niyazi, ld. Standing Counsel appearing for CBSE, submits that now that the formalities have been completed, within the next two to three days, the change of name shall be approved by the CBSE.
10. On behalf of the school- Mr. Darpan Wadhwa, ld. Senior Counsel appears. Mr. Harinder Mahajan is also present in Court pursuant to the previous directions. Mr. Wadhwa, ld. Sr. Counsel, submits that with effect from 1st October, 2022, the name of the Defendant-School shall be changed to ‘SHAURYA INTERNATIONAL SCHOOL’ without any delay whatsoever. The implementation of this order shall be made on display boards, stationery, books, buses and in all the other places where the name ‘BANYAN INTERNATIONAL SCHOOL’ is used.
11. Insofar as the affidavit which was directed to be filed by the Defendant as per paragraph 9(iii) of the previous order is concerned, the Chairperson of the society has placed on record an affidavit, as per which, the total fee collected by the Defendant’s school for the years 2017-18, 2018-19, 2019-20, 2020-21 and 2021-22 is as under: Financial Year Annual Course Fee New Admission (in Rs.) 2017-18 1,48,33,341 2018-19 1,65,71,823 2019-20 1,31,54,818 2020-21 69,33,161 2021-22 1,15,19,229 Total 6,30,12,372
12. Further details relating to the details of students along with the subject codes opted for and the various affiliations/ extensions granted to the School have also been placed on record.
13. The statement of Mr. Harinder Mahajan- who is present in Court- has also been recorded today which shows that the Defendant-School had complete knowledge of the order dated 23rd August, 2017. He admits that the school did not follow up with CBSE for the change of name and has given certain reasons for the same in his statement. He apologises for this error.
14. Heard. The award dated 15th December, 2012, was clear to the effect that the Defendants could not use the impugned name after the termination of the franchisee agreement. In addition, the ld. Arbitrator awarded a monetary compensation of Rs. 1,11,72,250/- in favour of the Plaintiff, as is evident from the above award. Moreover, this Court also takes note that the order dated 23rd August, 2017 records that the damages awarded by the ld. Arbitrator had not been pressed by the Plaintiff, only on the ground that the Defendant-School would change its name immediately. Clearly, this has not happened and more than five years have passed since the change of name was to be given effect to. There was continuous violation by the Defendants of the order passed by this Court on 23rd August, 2017.
15. Today, it stands admitted by the Defendant-School that it has continued to use the name which was prohibited and failed to change it till date. In fact, communications have been placed on record showing that the Defendant-School sought extensions from CBSE for their affiliation as recently as 2020, in the same impugned name. While the follow up for affiliation was sought with promptness, the same alacrity has not been demonstrated for the change of name. The complete non-compliance over a period of five years cannot be brushed aside as merely an error.
16. Considering these facts, it was put to the Defendants as to whether the Defendants would be willing to compensate the Plaintiff in any manner, considering that during the continued violation of the previous order dated 23rd August, 2017, between 2017-22, approximately Rs.6,30,12,372/- has been collected by the Defendant-School in terms of annual course fees. The award also gave a substantial monetary compensation to the Plaintiff. The amount awarded of Rs. 1,11,72,250/- along with reasonable rate of interest would also be substantial as five years have elapsed.
17. Mr. Darpan Wadhwa, ld. Senior Counsel, has accordingly sought instructions from Mr. Mahajan, the Chairperson who is present in Court today, and agrees to pay a sum of Rs.50 lakhs as one time compensation to the Plaintiff and Rs.[5] lakhs as costs towards legal aid. This proposal is acceptable to the Plaintiff, from whom ld. Counsel for the Plaintiff, has taken instructions.
18. In view of the above facts and submissions, as also considering that the matter involves educational institutions, this Court deems it appropriate to dispose of the matter as amicably resolved on the following terms and conditions: i) The Defendants shall stand restrained from using the mark ‘BANYAN SCHOOL’, ‘BANYAN’ logo, ‘BANYAN INTERNATIONAL SCHOOL’ or any other mark or name identical or similar to the Plaintiff’s mark and names for its school or any other educational services or any other cognate and allied services. ii) The Defendants shall change the name of the Defendant-School from ‘BANYAN INTERNATIONAL SCHOOL’ to ‘SHAURYA INTERNATIONAL SCHOOL’ without fail, with effect from 15th October, 2022. The said change shall be effected in all places where the earlier name ‘BANYAN INTERNATIONAL SCHOOL’ was being used, including brochures, books, display boards, buses and stationery. It is made clear that with effect from this academic year i.e., 2022-23 itself, the name of the School shall be known as ‘SHAURYA INTERNATIONAL SCHOOL’ and students who pass out in 2023 shall be issued certificates in the new name of the said School; iii) The Defendants shall pay a sum of Rs.50 lakhs as monetary compensation towards the full and final settlement of the disputes raised in this suit, including the monetary compensation which was given in the award dated 15th December, 2012, and towards the noncompliance for the last five years. The said amount shall be paid in the following manner: Instalment Amount Payable (in Rs.) Deadline for Payment Payee First 15 lakhs 28th October, 2022 Plaintiff Second 10 lakhs 30th November, 2022 Plaintiff Third 10 lakhs 31st December, 2022 Plaintiff Fifth 15 lakhs 31st January, 2023 Plaintiff iv) Additionally, an amount of Rs.[5] lakhs shall be deposited with the Delhi High Court Legal Service Committee by 31st December, 2022 by the Defendants. v) Subject to the above payments being made, the Plaintiff agrees not to press for any other relief in the present suit, as also in its contempt petition being CONT. CAS.(C) 322/2022 titled Ram Krishan and Sons Charitable Trust v. Mr. Sneh Gupta & Ors. against the Defendants. If there is any violation of the present order, the Plaintiff is free to avail of its remedies in accordance with law for the purpose of recovery monetary compensation in terms of the award, as also simple/punitive damages from the Defendant. vi) CBSE shall approve the name change on or before 30th September, 2022.
19. The present suit stands decreed in the above terms. Decree sheet be drawn accordingly.
20. All pending applications are disposed of.
PRATHIBA M. SINGH JUDGE SEPTEMBER 23, 2022 Rahul/MS (Corrected & released on 26th September, 2022)