Pranic healing in India  the truth
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Legal status of All India Yoga Vidya Pranic Healing Foundation Trust

Legal status of All India Yoga Vidya Pranic Healing Foundation Trust

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  • 1. Pranic Healing in India- The Truth 1. INTRODUCTION “The great enemy of the truth is very often not the lie- deliberate, contrived and dishonest- but the myth- persistent, persuasive and unrealistic”. The above statement of the American President John F. Kennedy is but apt in relation to the scenario that the Pranic Healing Movement in India is facing today. Plethora of myth has been spread over the past more than three years in relation to various aspects of the Pranic Healing Movement in India, with the sole attempt of showing All India Yoga Vidya Pranic Healing Foundations Trust (“AIYVPHFT”) in bad light and to usurp the Pranic Healing Movement in India, with the sole attempt of monopolization. It is always easier to believe than to deny. Our minds are naturally affirmative. Therefore, it is but natural that a number of questions have arisen in the minds of the students of Pranic Healing in India as a result of false information that is being spread by persons with vested and selfish interests. The time has now come that complete facts are brought to the attention of the students of Pranic Healing in India. 2. BACKGROUND FACTS When our beloved Guru Grand Master Choa Kok Sui (“Master”) attained Maha Samadhi on 19th March, 2007, he did not leave any Will or document that would settle or administer his estate and other proprietary claims. Likewise, Master did not choose, named, anointed or even hinted any spiritual successor or head to his public charitable mission, philosophy, esoteric science and their allied/related activities. Under such circumstance, each of the entities that were created/established by Master are expected to follow/function per their respective Articles and Memorandums/Deeds of Incorporation/Deeds of Declaration as they have been since their inception. However, soon after Master attained Maha Samadhi, certain persons with vested and selfish interests have acted in an illegal, dishonest and dissolute manner and have indulged in various acts, as enumerated herein below, with the intention of hijacking the Pranic Healing Movement in India and also to undermine the authority of AIYVPHFT: i) In July 2008, C. Sundaram, the then President of AIYVPHFT, along with some other trustees of AIYVPHFT, which included Sriram Rajagopal (who has initiated the proceedings before the Hon’ble High Court of Delhi on behalf of the Privileged and Confidential Page 1 of 39
  • 2. Plaintiffs in that litigation) in an arbitrary manner and without the approval of the Board of Trustees of AIYVPHFT, decided to register, and did in fact register, a “Supplementary Deed” in respect of AIYVPHFT, which, in total contrast of the system of administration that existed for almost eleven (11) years, provided for the decision making of AIYVPHFT to vest in five (5) permanent trustees. There was refusal of accept the above-mentioned “Supplementary Deed” by Mr. C. Kailash, the current President of AIYVPHFT, and he insisted upon the immediate cancellation of the same. As a result of the said opposition, which was supported by the majority of Trustees of AIYVPHFT, and with great difficulty, a “Deed of Cancellation”, cancelling the above-mentioned “Supplementary Deed” was executed and registered by C. Sundaram; ii) In view of unprecedented protest to the above-mentioned actions on part of C. Sundaram, there was relentless pressure on him to step down as the President of AIYVPHFT. Consequently, C. Sundaram resigned as President of AIYVPHFT on 20th October, 2010. Subsequently, Mr. C. Kailash took over as the President of AIYVPHFT on 20th October, 2010, upon his unanimous election by the Board of Trustees of AIYVPHFT. That upon his assuming charge as the President of AIYVPHFT, Mr. C. Kailash sought the handing over of complete documents pertaining to the affairs of AIYVPHFT from C. Sundaram, Sriram Rajagopal and Sumi Lazar (who was acting as the General Manager of AIYVPHFT at the relevant time). However, no co-operation was received from them with regard to handing over of the said documents to the new management of AIYVPHFT. It is pertinent to mention that in spite of repeated requests, many important documents were withheld by them, presumably, as it is learnt now, with a view to create and fabricate predated document at a later date, if required to sustain their illegal design. As an example, in a resolution of June 2007, there is a discussion about return of FCRA registration by AIYVPHFT. It is common knowledge that Master wanted to return the FCRA registration, as he wanted to come back as a trustee of AIYVPHFT, for FCRA registration is not granted to trusts which have foreigners on their board. However, since Master never came back as a trustee of AIYVPHFT, the question of returning of the FCRA registration, after him leaving his body cannot and does not arise. This, by itself shows, that the said resolutions do not reflect the correct pictures, and illegal things were and are being done in the guise of the alleged “desire” of Master. The above-mentioned individuals are in a position to fabricate the document even today, claiming agreements and passage of letters between AIYVPHFT and any other organizations created by Master, which can be predated, as they were in supreme control of AIYVPHFT right from 1996 onwards. The fact that the above-mentioned individuals were in supreme control of Privileged and Confidential Page 2 of 39
  • 3. AIYVPHFT, and that they were managing the Pranic Healing show in India, is also established by the fact that the Certifications issued by AIYVPHFT mentioned that it is “affiliated” to World Pranic Healing Foundation Inc., without the existence of any agreement in this regard between the two organisations. It is also pertinent to mention that if Master desired any such “affiliation”, he would have spelled the same out in the Deed of Declaration of Trust in respect of AIYVPHFT or any of the Supplementary Deeds, which was not the case. Consequently, in the absence of any written direction from Master or any written agreement between AIYVPHFT and World Pranic Healing Foundation Inc., nothing much can be attributed to the mention of purported affiliation of AIYVPHFT to World Pranic Healing Foundation Inc., as appearing in some of the Certification issued by AIYVPHFT, and same was done at the whim and fancies of the above-mentioned individuals; iii) When the above-mentioned individuals, in active connivance with Institute of Inner Studies Inc., World Pranic Healing Foundation Inc., World Pranic Healing Foundation India, Christine Choachuy, Karen Choachuy, Catherine Choachuy and Jason Choachuy, saw their efforts to take control of AIYVPHFT thwart by active opposition from all quarters, which was viewed by them as a strong challenge to their supreme control of the Pranic Healing movement in India, they indulged in several other illegal acts to take control of the Pranic Healing activities in India. On 27th April, 2009, an unilateral announcement was made by World Pranic Healing Foundation Inc. that “as part of its strategic global plan”, World Pranic Healing Foundation Inc., has set up a private limited company in Bangalore, India, as a wholly owned subsidiary of World Pranic Healing Foundation Inc., which will enter into agreements with AIYVPHFT and other Pranic Healing Foundations, granting them rights to organise and conduct the Master’s courses in India. It was further declared that “[a]s a company, it can confidently enter into commercial activities and receive royalties, and ride out whatever changes there may be in local laws and regulations.” This company was incorporated as World Pranic Healing (India) Private Limited. It is pertinent to mention that above-mentioned individuals and entities have suppressed the above-mentioned real purpose of establishment of World Pranic Healing Foundation India Pvt. Ltd. and Institute for Inner Studies Publishing Foundation India Pvt. Ltd. from the Hon’ble High Court of Delhi, and have sought to misguide the Hon’ble High Court by stating that they were setup “only to ensure compliance with the amended Income Tax laws/rules in India”. In this regard, it is pertinent to mention that the said contention is belied by the notice dated 26th April, 2010 produced by these individuals and entities before the Hon’ble High Court of Delhi. First, the said notice clearly sets out the purpose behind issuance of the same. More particularly, paragraph 2 of the said notice Privileged and Confidential Page 3 of 39
  • 4. clearly specifies that since World Pranic Healing Foundation India had not maintained separate books of accounts in relation to income from sale and purchase of books, the conditions of Section 80G (5) (i) of the Income Tax Act, 1961 are not complied with which may render World Pranic Healing Foundation India ineligible for exemption under Section 80 G of the Income Tax Act, 1961. Second, the said notice was sent in April, 2010, whereas World Pranic Healing Foundation India Pvt. Ltd. and Institute for Inner Studies Publishing Foundation India Pvt. Ltd. were established in March 2009, and a letter of 2010 cannot, be the basis of establishment of two private limited companies in 2009. Similarly, another private limited company, by the name Institute for Inner Studies Publishing Foundation India Private Limited was also incorporated at the same time. It is pertinent to mention that a bare perusal of the documents of constitution of both World Pranic Healing Foundation India Pvt. Ltd. and Institute for Inner Studies Publishing Foundation India Pvt. Ltd. would demonstrate that the same were established with the sole object of exploitation of Master’s intellectual property for purely commercial purpose, in stark contrast to Master’s wish of the same being used for benefit of the public at large, through the public charitable organisations established by him. Having failed to open up a branch office in India in 1999, World Pranic Healing Foundation Inc., alongwith Institute for Inner Studies Inc., attempted to open up private operation is India, outside the extreme level of scrutiny to which the activities of a public charitable trust could be subjected to in India. The sole object of establishing the said companies was to take money, which all this while belonged to a public charitable organisation, outside India, without any scrutiny or need to obtain any regulatory permissions/approvals and possibly to stash the said money in tax heavens through incorporation of companies there. This fact is clear from a bare perusal of the Memorandum of Association of World Pranic Healing Foundation India Pvt. Ltd., which inter alia provides that the main object of the company is to collect royalties for organisations in India and in turn, pay royalty to World Pranic Healing Foundation Inc. This fact is further established by the other objects for which the said company was incorporated, i.e., to procure the recognition of the said company in or under the laws of any place outside India and to open branches and subsidiaries of the said company at any place in or outside India. This is further established by the fact that the shareholding of both World Pranic Healing Foundation India Pvt. Ltd. and Institute for Inner Studies Publishing Foundation India Pvt. Ltd. have been planned in such a manner that all shares (except one (1)) are owned by the World Pranic Healing Foundation Inc. in respect of World Pranic Healing Foundation India Pvt. Ltd. and similarly by Institute of Inner Studies Inc. in respect of Institute for Inner Privileged and Confidential Page 4 of 39
  • 5. Studies Publishing Foundation India Pvt. Ltd.. In this regard, Christine Choachuy had written to the current President of AIYVPHFT, Mr. C. Kailash, with a copy of the Board of Trustees of AIYVPHFT, on 10th December, 2009 thus: “The share-holding of World Pranic Healing India Private Limited was also carefully planned. All shares (except for 1 share) are owned by WPHF Manila. This means that no individual can benefit from profits or dividends. The only person who can get a share of profits or dividends is WPHF Manila.” The fact that World Pranic Healing Foundation India Pvt. Ltd. and Institute for Inner Studies Publishing Foundation India Pvt. Ltd. were established solely for business dealings is further established by the fact that the one of the main objects of Institute for Inner Studies Publishing Foundation India Pvt. Ltd., as set out in its Memorandum of Association is to publish books, etc. written by authors other than Master also. In respect of World Pranic Healing Foundation India Pvt. Ltd., it is verily believed that no resolution was passed by the Board of Trustees of World Pranic Healing Foundation India, authorising of taking action to divest World Pranic Healing Foundation India’s assets to World Pranic Healing Foundation India Pvt. Ltd. Stocks belonging to World Pranic Healing Foundation India were transferred to World Pranic Healing Foundation India Pvt. Ltd., without the knowledge, let alone the approval of the Board of Trustees of World Pranic Healing Foundation India. Similarly, it is verily believed that stocks belonging to World Pranic Healing Foundation India were transferred to Institute for Inner Studies Publishing Foundation India Pvt. Ltd., without the knowledge, let alone the approval of the Board of Trustees of World Pranic Healing Foundation India. No consideration was paid by World Pranic Healing Foundation India Pvt. Ltd. and Institute for Inner Studies Publishing Foundation India Pvt. Ltd. to World Pranic Healing Foundation India in respect of the above-mentioned transfer of stocks, which further establishes the real motives behind establishing the said two private companies. The abovementioned action to transfer the funds and valuable property belonging to World Pranic Healing Foundation India was in breach of the provisions of the Deed of Declaration of Trust in respect of World Pranic Healing Foundation India, which mandates that the funds of World Pranic Healing Foundation India shall be invested in those modes specified under the provisions of Section 13 (1) (d), read with Section 11 (5) of the Income Tax Act, 1961 and not for private purpose. iii) Sriram Rajagopal and C. Sundaram, on 3rd August, 2010 executed an Privileged and Confidential Page 5 of 39
  • 6. amendment to the Deed of Declaration in respect of World Pranic Healing Foundation India. In stark contrast to the very purpose for which World Pranic Healing Foundation India was established by Master, i.e., to assist AIYVPHFT in acting as a co-ordinating body for all Pranic Healing activities in the Indian subcontinent, an amendment was made to the object of World Pranic Healing Foundation India to the effect that one of its objects would be “to initiate Pranic Healing activities and encourage the formation of Pranic Healing Foundations in the Republic of India”. A further amendment to the effect that World Pranic Healing Foundation India would act as a “co-ordinating body for all Pranic Healing activities in India” was also made. It is pertinent to mention that by this amendment, World Pranic Healing Foundation India sought to enter the domain which was solely reserved for AIYVPHFT, by Master himself. 3. THE DELHI HIGH COURT LITIGATION However, when the said individuals and organizations saw that AIYVPHFT is continuing to further Master’s work in India, undaunted by their ill designs, and that too in a grand manner, surpassing them on all fronts, they instituted a Civil Suit before the Hon’ble High Court of Delhi against AIYVPHFT in September 2011 (“the Suit”). 3.1 Basis of the Suit The Plaintiffs [Institute of Inner Studies Inc., World Pranic Healing Foundation Inc., World Pranic Healing Foundation India, World Pranic Healing Foundation India Pvt. Ltd., Institute for Inner Studies Publishing Foundation India Pvt. Ltd., Christine Choachuy, Karen Choachuy, Catherine Choachuy and Jason Choachuy] filed the Suit for declaration and mandatory injunction against AIYVPHFT and others, inter alia, seeking a declaration that they are not authorised or assigned any rights from the Plaintiffs in the Suit to spread Pranic Healing techniques, practices, courses and other teachings invented by Master, and that they have no right to do so without authorisation from the Plaintiffs. The Plaintiffs further sought a decree of permanent injunction restraining AIYVPHFT and others from organising and continuing to organise workshops, training programmes, seminars and teachings of the Master’s courses, techniques, practices, and other teachings or any other similar representation thereof. The Plaintiffs also sought a decree of mandatory injunction against AIYVPHFT to return the materials pertaining to Master’s teachings, Pranic Healing, etc. to the Plaintiffs and to close down websites put up by or under authority of the AIYVPHFT. The Plaintiffs also filed an Application under Order XXXIX, Rules 1 and 2, read with Privileged and Confidential Page 6 of 39
  • 7. Section 151 of the Code of Civil Procedure, 1908 (herein after referred to as the “CPC”), (the “Interim Injunction Application”), inter alia, seeking a decree of ex parte interim injunction restraining AIYVPHFT from organising and continuing to organise workshops, training programmes, seminars and teachings of Master’s courses, techniques, practices, and other teachings or any other similar representation thereof. 3.2 The Interim Injunction Order When the Suit and the Interim Injunction Application were listed for hearing before the Hon’ble High Court of Delhi on 14th September, 2011, the Plaintiffs mislead the Hon’ble High Court and misrepresented facts, as is evident from a bare perusal of the Order passed by the Hon’ble High Court on the said date, which resulted in passing of the said order: “9. Learned senior counsel for the plaintiffs submits that plaintiff no.1 is a company incorporated in Philippines and was established by late Mr.Samson Lim Choachuy (Legal Name), revered as Master Choa Kok Sui, on 27.4.1987 (hereinafter referred to as "Master") to spread Pranic Healing, Archatic Yoga, Inner Teachings and Practices globally. Senior counsel further submits that plaintiff no.1 is the head institution, which controls the functioning of plaintiffs no.2 to 3 and also the functioning of plaintiffs no.4 to 6 established in India. Senior counsel next submits that the Master was a world renowned authority in the field of Pranic Healing and Esoteric Sciences of Pranic Healing. The Master was a spiritual guru, and an internationally read author of numerous books and manuals on the subject of Pranic Healing. The Master established plaintiff no.1 with the primary objective to engage in and carry on business of distribution, publishing books and printed material, to conduct workshops, seminars, lectures on Pranic Healing and Esoteric Sciences across the globe. 10. Learned senior counsel for the plaintiffs submits that defendants no.1 claims herself to be married to the Master on 31.12.2006 and also claims to be the legal heir of the Master along with plaintiffs no.7 to 10, however, the proceedings initiated by defendant no.1, in this regard, stand dismissed by the Regional Trial Court, Quezon City in Philippines, and the appeal filed by defendant no.1 also stands dismissed. Senior counsel further submits that Master during his life time had founded various organizations all over the world including in various parts of India and all the organizations are affiliated to, licensed by and duly authorised by the plaintiffs to spread the teachings of the Master and inter alia conduct the Master's courses, details of which have been extracted in para 26 of the plaint. Senior counsel next submits that all other organizations including the organizations arrayed as defendants no.3 to 14 are not authorised to carry on the courses of the Master or to use any other property, which is owned by the plaintiffs. Senior counsel also submits that any license or authority derived by defendants no.3 to 14 from defendants no.1 and 2 are illegal and without any legal force. 11. It is contended by learned senior counsel for the plaintiffs that 20 licensing agreements were executed by plaintiff no.2 on 25.9.2006 in Privileged and Confidential Page 7 of 39
  • 8. favour of defendant no.1 permitting defendant no.1 to promote, conduct, operate the courses of Master for a term of 20 years unless the licensing agreements were terminated before for any reasons. It is further contended that above mentioned licensing agreements prohibited defendant no.1 from transferring the rights granted to defendant no.1 to any other third party without prior consent of the licensor. Defendant no.1 was also prohibited from extracting and/or compiling materials from any of the Master's books, courses, lectures, CDs and/or any audio material. Defendant no.1 was also duty bound to protect the intellectual property of the Master. 12. Learned senior counsel for the plaintiff submits that defendant no.1 fully acknowledged the authority of plaintiff no.1 in respect of printed material, audio/video recorded materials obtained during the workshops or any session given by the Master. Senior counsel for the plaintiff has relied upon email dated 23.3.2007 sent by defendant no.1 to all the members of the Pranic family. Senior counsel further submits that all the licensed agreements executed in favour of defendant no.1 stand terminated on 17.5.2010 whereas defendants no.1 and 2 even after the termination of the licensed agreements are conducting unauthorized classes, publishing books and infringing the trade marks and copyrights, which vests in plaintiff no.1. Senior counsel next submits that after the termination of the licensed agreements, holding of such classes and distribution of material, etc., is without any authority. Senior counsel, in these circumstances, prays for ex parte ad interim injunction. 13. I have heard learned senior counsel for the plaintiffs and also perused the plaint, application and the documents filed along with the plaint. I am satisfied that it is a fit case for grant of ex parte ad interim injunction. Accordingly, till the next date of hearing, defendants no.1 and 2 are restrained from conducting the proposed Kriyashakti workshop and Pranic Feng Shui workshop in New Delhi in collaboration with defendant no.2 in September, 2011, and further defendants, their agents, assigns, affiliates, subsidiaries, servants, or any person or body claiming directly or indirectly through defendants no.1 and 2 and all the foundations, institutions, trusts, companies and other bodies functioning under the authority of defendants no.1 and 2 are restrained from organizing and continuing to organize workshops, training programmes, seminars and teachings of the Master's courses, techniques, distributing of CDs/DVDs, books, recording of the Master's courses and all other items loaned to defendant no.1 under the licensing agreements executed including instructor's manuals, unused certificates of participation and other documents relating to the licensed activities. It is made clear that in case any course or workshop is in progress, with a view to avoid any inconvenience to the person enrolled for the course, the same shall not be disturbed till the end of the course. Plaintiff shall comply with the provisions of Order XXXIX Rule 3 CPC within seven days from today.” As is evident from the bare perusal of the above Order, the entire basis on which the injunction was sought was that AIYVPHFT claims it rights from Charlotte Anderson, and that Charlotte Anderson is going to conduct a Kriyashakti and Pranic Feng Shui workshop in Delhi in collaboration with AIYVPHFT, which was a total misrepresentation of facts. First, AIYVPHFT were granted rights directly by Master, who had founded AIYVPHFT, and the question of claiming rights from Charlotte Anderson does not arise. Second, no Privileged and Confidential Page 8 of 39
  • 9. workshop was ever planned, let alone conducted by AIYVPHFT in collaboration with Charlotte Anderson, in Delhi, as alleged or at all. Consequently, the entire basis of the Suit was built on the edifice of falsehood and blatant lies. 3.3 AIYVPHFT’s Representation As noted English novelist and dramatist Henry Fielding has said: “[a]dversity is the trial of principle. Without it a man hardly knows whether he is honest or not.” Consequently, maintaining honesty to the cause propounded by our beloved Guru in these times of adversity, AIYVPHFT continued the sincere work to fulfill his vision in this epoch of trial, to uphold the Principles which our beloved Guru always advocated. With the said spirit AIYVPHFT strongly contested the Suit. After receipt of the notice from the Hon’ble High Court of Delhi that the matter is listed for hearing on 23rd November, 2011, AIYVPHFT entered appearance and filed an application under Order XXXIX Rule 4 of the CPC for vacation of the above-mentioned ex parte interim injunction Order passed by Hon’ble High Court of Delhi, being, I.A. No. 20143 of 2011, on 18th November, 2011. In the best interest of all the affiliated foundations, AIYVPHFT shared its above-mentioned pleading with all other defendant foundations before the same was filed in the Court. After that AIYVPHFT entered several appearances before Hon’ble High Court of Delhi on subsequent occasions and pursuant to the Order dated 8th February, 2012, filed its written submissions on the issues sought to be raised in support of vacation of the interim injunction, on 20th February, 2012. AIYVPHFT was the first party to file written submissions and complete arguments on the above aspect on 27th February, 2012. 3.4 AIYVPHFT’s Contentions on Merits AIYVPHFT raised the following contentions on merits of the case in its pleadings and written submissions filed before the Delhi High Court, supported by relevant documents and judicial precedents: 1. Willful disobedience of terms of the ex parte interim injunction Order passed by this Hon’ble High Court by the Plaintiffs 1.1. The Plaintiffs have indulged in illegal acts of threatening and brow beating the persons attending courses and workshops being conducted by the Defendants and also the persons who were involved in organising such courses and workshops. Privileged and Confidential Page 9 of 39
  • 10. 1.2 While passing the above-mentioned ex-parte interim injunction Order, the Hon’ble High Court of Delhi had made it clear in express terms that in case any course or workshop is in progress, with a view to avoid any inconvenience to the person enrolled for the course, the same shall not be disturbed till the end of the course. However, in blatant disregard of the above-mentioned directions passed by the Hon’ble High Court of Delhi, the Plaintiffs, through their agents and hired goons tried to disrupt the “Basic” course being conducted at the Meditation and Pranic Healing Centre at Mysore. 1.3 Further, the Plaintiffs carried out publications in various news papers, advertising about having secured the Order dated 14th September, 2011 passed by the Hon’ble High Court of Delhi. The Plaintiffs, through their agents, have also indulged in the illegal acts of threatening the general public in the guise of the said Order and have also indulged in representing to the general public that they have the unfettered rights in relation to the intellectual property that forms part of the Suit in the guise of the said Order. 1.4 It is also relevant to note that the Plaintiffs in the said newspaper publications did not deliberately use the words ex parte in relation to the Order dated 14th September, 2011 passed by the Hon’ble High Court of Delhi, thereby seeking to give an impression to the general public that the said Order was passed in the presence of AIYVPHFT and other defendants, with the intent of misleading the public, when the said Order was passed in their absence. 1.5 It is settled law that in cases where the plaintiff acts in an unfair and inequitable manner, as in the present case, he is not entitled to the discretionary relief of injunction. It is settled law that if the plaintiff in his dealings with the person(s) against whom the relief is sought has acted in an unfair or unequitable manner, he would not be entitled to the injunction. 1.6 Further, it is settled law that a party should not be compelled, owing to the default of the opposite party in purging his contempt, to be kept before the Court for an indefinite period, and consequently, till the time the defaulting party purges himself of the contempt, his action cannot be heard. 2. Lack of Jurisdiction 2.1 The Hon’ble High Court of Delhi does have the jurisdiction to adjudicate upon the subject matter of the Suit, and consequently the Suit is liable to dismissed at the Privileged and Confidential Page 10 of 39
  • 11. threshold and the ex parte interim injunction granted in terms of the Order dated 14th September, 2011, passed by Hon’ble High Court, ought to be vacated. 2.2 The trademarks and other intellectual property over which the Plaintiffs claim ownership rights, and which form the subject matter of the Suit, have been registered outside the territorial jurisdiction of the Hon’ble High Court of Delhi. Consequently, the Court does not have the jurisdiction to deal with the subject matter of the said marks and other intellectual property. 2.3 Further, AIYVPHFT has its office outside the territorial jurisdiction of the Hon’ble High Court of Delhi, and consequently, the Hon’ble High Court does not have the jurisdiction to restrain the activities being carried on by AIYVPHFT. The contention of the Plaintiffs that AIYVPHFT is carrying on its activities within the territorial jurisdiction of the Hon’ble High Court of Delhi through Defendant No. 3 (Delhi Foundation) is without substance. As a matter of fact, Defendant No. 3 is an entity totally separate and distinct from AIYVPHFT, having is separate constitution, and cannot be said to be acting on behalf of AIYVPHFT. In this regard, reference is made to Affidavit dated 7th February, 2012, filed on behalf of Defendant No. 3, wherein it has specifically been stated on behalf of Defendant No. 3 that it has no affiliation or association with AIYVPHFT and it is not under the control and supervision of AIYVPHFT. 2.4 Further, the Plaintiffs have not produced any material to establish any instance of sale of infringing goods by AIYVPHFT within the territorial jurisdiction of the Hon’ble High Court of Delhi. 2.5 In any event, in the Interim Injunction Application filed by the Plaintiffs, no allegation has been made against AIYVPHFT with respect to the organisation or conduct of any course/workshop within the territorial jurisdiction of the Hon’ble High Court of Delhi. Further, Defendant No. 1 (Charlotte Anderson) is not connected with AIYVPHFT. Consequently, the Hon’ble High Court of Delhi does not have the jurisdiction to pass any interim orders against AIYVPHFT, and the ex parte interim injunction granted in terms of the Order dated 14th September, 2011, passed by Hon’ble High Court, is liable to be vacated. 2.6 It is settled law that where there was no instance of sale of infringing goods and the defendant has no office or branch in Delhi, nor there was any pleading to that effect, the Hon’ble High Court of Delhi has no jurisdiction to entertain the suit and the ex parte interim injunction granted was vacated. Privileged and Confidential Page 11 of 39
  • 12. 2.7 Further, it is settled law that in a case where the court issued injunction in excess of jurisdiction or where there has been complete want of jurisdiction, the court should in appropriate cases exercise its inherent powers in the interest of justice and remedy the wrong. 3. AIYVPHFT has unfettered rights in relation to the Master’s intellectual property 3.1 Master established AIYVPHFT, as a Public Charitable Trust, by a Deed of Declaration of Trust dated 30th January, 1996, to further the object of advancement of Pranic Healing, for the benefit of the public. AIYVPHFT is the central coordinating body for all Pranic Healing activities in the entire Indian Sub-Continent. In the context of the Suit and the Interim Injunction Application filed by the Plaintiffs, it is pertinent to mention that as per Clause 3(g) of the Deed of Declaration of Trust in respect of AIYVPHFT, AIYVPHFT is expressly entitled to organize, conduct and provide training programs, seminars and workshops and to disseminate books, pamphlets and training material relating to meditation and the attainment of inner peace and harmony, Pranic Healing and other alternative forms of alleviating human ailments and through subsequent Deed of Amendment dated 6th August, 2003, Yoga as well. It is but obvious that Master had created AIYVPHFT, inter alia, to spread Pranic Healing and in this regard to disseminate his books, pamphlets and training material relating to meditation and the attainment of inner peace and harmony, Pranic Healing and other alternative forms of alleviating human ailments, without expecting royalty or monetary returns from or affiliating AIYVPHFT to/with any of the Plaintiffs. It is pertinent to mention that this unfettered right to disseminate his books, pamphlets and training material relating to meditation and the attainment of inner peace and harmony, Pranic Healing and other alternative forms of alleviating human ailments commenced in 1996 by/through Master himself at the time of setting up of AIYVPHFT, thus entitling AIYVPHFT to use and/or continue using for dissemination purposes Master’s works, books, pamphlets and training material relating to meditation and the attainment of inner peace and harmony, Pranic Healing and other alternative forms of alleviating human ailments, in perpetuity, without any approval, permission, sanction, license, assignment from either of the Plaintiffs, including Master’s legal heirs. 3.2 The Suit has not been instituted on grounds of any alleged breach of any express or constructive Trust created for public purposes, of a charitable nature, or where the direction of the Court is deemed necessary for the administration of any such Trust or that the original purpose of AIYVPHFT cannot be carried out at all or cannot be carried out according to the directions given in the instrument creating the Trust or that the original Privileged and Confidential Page 12 of 39
  • 13. purpose, in whole or in part, have since they were laid down ceased as being useless, but on an unsubstantiated and baseless allegation that AIYVPHFT is carrying out unauthorized activities of spreading Pranic Healing teachings, techniques, practices and courses invented by Master and organizing workshops, training programs, seminars in relation to Pranic Healing without authorization from the Plaintiffs and thus causing wrongful loss to the Plaintiffs and causing harm to the general public at large. A bare perusal of the Deed of Declaration of Trust in relation to AIYVPHFT itself would rebut, refute, negate each such statement, contention and allegation of the Plaintiffs and evidence/establish AIYVPHFT’s entitlement to carry out the activities of spreading Pranic Healing teachings, techniques, practices and courses invented by Master and organizing workshops, training programs, seminars in relation to Pranic Healing without the requirement of authorization from any of the Plaintiffs. 3.3 It is pertinent to mention that AIYVPHFT was establish as a public charitable trust, unlike Plaintiff No.’s 1 to 3, which were established by Master purely as business ventures, as is evident from the instruments of their incorporation. In fact, the Plaintiff No. 1 (Institute of Inner Studies, Inc.) was establish by Master in 1987 with the primary purpose carrying on the business of distributing and publishing of books and printed materials, to conduct workshops, seminars and lectures on the inner and deeper aspects of nature and man, and the same had no connection with Pranic Healing. However, the Plaintiffs, with the object of obtaining the interim injunction, has falsely submitted to this Hon’ble Court that the Plaintiff No. 1 was established by Master to “spread Pranic Healing, Archatic Yoga, Inner Teachings and Practices globally”. 3.4 It is settled law that interim injunction obtained by incorrect statement is liable to be vacated. 3.5 The Plaintiff No. 4 (World Pranic Healing Foundation India) was established as the “branch office” in India of the Plaintiff No. 3 (World Pranic Healing Foundation, Inc.), primarily to make investments in immovable property. In any event, the Plaintiff No. 4 was established to assist AIYVPHFT in acting as the central co-ordinating body for all Pranic Healing activities in the Indian sub-continent. This fact is admitted by the Plaintiffs in the Plaint. Further, the domain of the Plaintiff No. 4 with respect to Pranic Healing activities was limited to “the neighbouring countries and the Middle-East countries” 3.6 Since Master had established AIYVPHFT to further the object of advancement of Pranic Healing, for the benefit of the public, acting as the central coordinating body for all Pranic Healing activities in the entire Indian Sub-Continent, he had, at various points in time, granted various rights to AIYVPHFT in several of his works, to own and use the Privileged and Confidential Page 13 of 39
  • 14. same for furthering of Pranic Healing activities. Master had, additionally, granted AIYVPHFT the authority to protect the intellectual property rights in his above-mentioned works, in every manner, from all third parties in the Indian Sub-Continent. Master had not granted any such right, to protect his intellectual property to any other organisation in India. Master had granted rights to AIYVPHFT in the trademarks, like “Master Choa Kok Sui” and “Master Choa” in respect of which he was the registered proprietor, to own and use the same for furthering of Pranic Healing activities. AIYVPHFT has been using the above-mentioned rights from 1996 onwards. 3.7 Several amendments were carried out to the Deed of Declaration of the Trust in respect of AIYVPHFT, during the lifetime of Master. In terms of one of such amendments, carried out in terms of the Supplementary Trust Deed dated 29th May, 2002, the authors divested themselves of all proprietary rights in the properties which vested in AIYVPHFT on the date of the said amendment. The above-mentioned Supplementary Trust Deed provided for incorporation of the following clause in the Trust Deed: “(15) The authors declare that they have completely & finally divested themselves of all proprietary rights in the properties & assets of the Trust & also that all the income accruing or arising there from has been and shall be utilized for the benefit of the Trust & none of the donors or their legal heirs, executors, administrators, successors and assignees shall ever have or claim any proprietary rights therein.” 3.8 The effect of the above-mentioned amendment was to vest in AIYVPHFT the above-mentioned intellectual properties, in respect of which it was enjoying the rights on the said date, making it the lawful owner in respect of the same, to the exclusion of all others. The above-mentioned divesture the authors/founders of AIYVPHFT have become donors of all their proprietary rights in the properties and assets of AIYVPHFT and have expressly bound themselves, and their legal heirs, etc., with the stipulation that all the income accruing or arising there from is to be utilized for the benefit of AIYVPHFT and that none of the donors or their legal heirs, executors, administrators, successors or assignees would/could ever have or claim any proprietary rights therein. Further, the only propriety rights, belonging to Master, that vested in AIYVPHFT on the relevant date were intellectual property rights granted by him to AIYVPHFT. In this regard, it is pertinent to mention that the fact that AIYVPHFT did not own any physical property on the date on which Master divested all his rights in relation to his intellectual property, which AIYVPHFT was enjoying, with his express permission, on the said date, is admitted by the Plaintiffs in pleadings filed in the Suit. Privileged and Confidential Page 14 of 39
  • 15. 3.9 Under Indian Law, no trustee has any right over the assets and any other physical property of the trusts. In any event, the original Deed of Declaration of Trust dated 30 January, 1996, in relation to AIYVPHFT specifically provides thus: “8. In the event that the purpose and objectives of the Trust shall become impossible to attain the assets of the Trust shall in no circumstances be distributed among the Trustees but the same shall be transferred to another Trust, society, association, or institution whose objects and purposes are similar to those of this Trust. .. 10. The Trustees shall hold the properties of the Trust for the objects stated herein. No part of the funds/income of the trust shall be taken directly or indirectly by way of remuneration or otherwise by any of the Trustees.” [Emphasis added] 3.10 Similarly, the Supplementary Trust Deed in respect of AIYVPHFT dated 22nd December, 1999, provides thus: “1. That clause (8) in page No. 5 of the original Trust Deed be deleted and the following clause be inserted in its place: “That in the event of dissolution or winding up of the Trust, the assets remaining as on the date of dissolution shall under no circumstances be distributed among the trustees but the same shall be transferred to another charitable trust whose objects are similar to those of the trust and which enjoys recognition u/s. 80G of the Income tax Act 1961, as amended from time to time” 2. That the following clauses be added after clause (10) in page No. 5 of the original Trust Deed: …. (13) The Funds and Income of the Trust shall be solely utilized for the achievement of its objects and no portion of it shall be utilized for payment to the Trust or members by way of profit, interest dividend etc.” [Emphasis added] 3.11 The Deed of Declaration of Trust, and various Supplementary Trust Deeds in relation to AIYVPHFT having specifically provided that properties of AIYVPHFT would be held only for the objects for which it was established and that the assets, profits, interest, dividend, etc. of AIYVPHFT shall not be distributed amongst the Trustees (Master was himself a Trustee of AIYVPHFT at the relevant time), there was no occasion for Master to make specific relinquishment of his rights in the assets and physical properties in AIYVPHFT by the Supplementary Trust Deed dated 29th May, 2002. This Privileged and Confidential Page 15 of 39
  • 16. further establishes the fact that the above-mentioned relinquishment was in relation to the intellectual propriety, belonging to Master, which vested in AIYVPHFT on the relevant date, and were granted to AIYVPHFT by Master himself. In this regard, it is pertinent to mention that such a divesture of rights was never done by Master to/or in any other entity, thereby clearly intending, making and ensuring that AIYVPHFT, inter alia, remains unscathed in any manner from/by any influence, vested/personal interests or vice circumstances and continues to function undeterred in carrying out its objective of creation. It is also significant to note that soon after the above-mentioned divesture, Master withdrew himself as a trustee of AIYVPHFT, and never again became a trustee therein. It is significant to note that the above-mentioned divesture of rights, interests and claims was never recalled, revoked, amended, rescinded, annulled, invalidated or cancelled by the said authors/founders and continues to be so vested, absolute, final and subsisting with AIYVPHFT, an irrevocable Trust. The above-mentioned divesture was done by Master with the sole intention of ensuring that AIYVPHFT is an independent body not to be affected or hampered in any manner from achieving the purpose and objective of its very creation by any of the then existing Foundations/entities/persons as well as the future Foundations/entities/persons, the authors/founders of AIYVPHFT. In this context, it is pertinent to note that there is no document with the Plaintiffs, issued/created by Master that can nullify or negate the philosophical/public-benefit original intentions of Master, as detailed herein above, which plausibly would/could take effect post his leaving his body for the Plaintiffs to place the themselves at a higher footing to either deny/restrain/impede/ hamper/supervise/ determine AIYVPHFT from continuing to use for dissemination purposes Master’s works, books, pamphlets and training material relating to meditation and the attainment of inner peace and harmony, Pranic Healing and other alternative forms of alleviating human ailments or approve/authorize/ permit/sanction/license/assign AIYVPHFT in respect of the same. 3.12 “Trust” is an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another. The subject matter of a trust must be property transferable to the beneficiary, and it must not be merely beneficial interest under a subsisting trust. Further, the trustee, and consequently his heirs (not necessarily legal heirs) (Plaintiff No.’s 7 to 10) must not for himself or another set up or aids any title to the trust-property adverse to the interest of the beneficiary. In this regard, it is also pertinent to mention that Master had granted rights in the trademarks, in respect of which he was the registered proprietor, to AIYVPHFT, to own and use the same for furthering of Pranic Healing activities, and no title, adverse to that of AIYVPHFT could have been created by Master (or by his heirs now) in the said rights, which already vested in AIYVPHFT by virtue of its being a trust. Privileged and Confidential Page 16 of 39
  • 17. 3.13 AIYVPHFT has been using the above-mentioned rights granted to it directly by Master for the sole purpose for which it was established, duly acknowledging the name and efforts of Master and spreading his teachings, and no misuse of the same has been pleaded or established by the Plaintiffs. In this regard, it is most respectfully submitted that Master was very clear in his mind, thought and action, whereby he bifurcated public charitable purposes, Trust, philosophy, esoteric science and their allied/related activities distinctively from that of business, commercialization, remuneration, vestige of powers, et al., since the creation of respective different entities with different objectives, activity and purpose in both the realms. So too, were his conferment of rights and claims to properties, tangible and intangible, to and by these two distinct creations, viz., Public Charitable Trust and Commercial entities/enterprise), of Master. 3.14 AIYVPHFT has the undisputed rights in respect of intellectual property created by Master, some of which form the subject matter of the Suit. Further, admittedly, AIYVPHFT was entitled to royalty in respect of exploitation of various intellectual properties which form the subject matter of the Suit, which implies that rights in relation to the said intellectual properties belonged to AIYVPHFT. The above-mentioned facts have been suppressed by the Plaintiffs from the Hon’ble High Court of Delhi. 3.15 It is settled law that suppression of material facts by itself is a sufficient ground to decline the discretionary relief of injunction. A party seeking discretionary relief has to approach the court with clean hands and is required to disclose all material facts which may, one way or the other, affect the decision. A person deliberately concealing material facts from the court is not entitled to any discretionary relief and the court can refuse to hear such a person on merits. 4. No intellectual property rights over certain terms and terminologies 4.1 The Plaintiffs are claiming exclusive rights over certain terms, techniques and terminologies, works, etc. which are in existence since time immemorial and hence in the public domain, and over which no intellectual property rights, let alone any exclusive right, can be claimed by any individual/entity. The art of Pranic Healing and explanations thereof, according to manuscripts and books, is a form of yoga, dealing with mechanism of inner healing techniques, commonly known and used by healers and users of esoteric sciences. Admittedly, yoga, as an art and science, is prevalent and existing from time immemorial and are very ancient. All forms of yoga and terms and techniques, including the ones over which the Plaintiffs are seeking to lay an exclusive claim, are in the public domain. Privileged and Confidential Page 17 of 39
  • 18. 4.2 The terms and techniques developed by Master are merely an adaptation of yoga techniques and terms. No one can claim exclusivity over any form of yoga, including Pranic Healing, and the terms and techniques relating thereto. In this regard, reference is made to a books titled “The Science of Physic Healing” and “Hatha Yoga” written by Yogi Ramacharaka way back in 1906, which talk about the principles and practice of Pranic Healing, and various terms and techniques of Pranic Healing, including, Pranic Breathing, Pranic Treatments, Pranic Energy, Pranic Exercises, etc. It is pertinent to mention that Master, at page 8 his autobiographical work, “The Origin of Modern Pranic Healing and Arhatic Yoga”, makes a reference to the above-mentioned work. 4.3 Reliance is further placed upon a book (containing compilations of various representations to the ministries, yoga institutes, universities and the practices that are followed in various rehabilitation centres) titled “Yoga Vidya Pranic Healing”, published by AIYVPHFT, when its activities were being managed by its erstwhile President C. Sundaram (who is now associated with the Plaintiffs) and when Sriram Rajagopal (who has filed the Suit on behalf of the Plaintiffs) was also actively associated with AIYVPHFT, as a trustee and treasurer. Forward to the said book reads: “Yoga Vidya Pranic Healing is only a reiteration of a statement of fact. Prana vidya, the yogic technique of Pranic Healing is a form of therapy practiced in India, Tibet and China for a long time as an integral part of medical profession. The origin of Yoga Vidya is Sri Vidya….” 19. That further, C. Sundaram in the Preface of the said books writes: “Our whole Pranic Healing concept and procedures are based on our ancient Upanishads, Yoga, Meditation and Pranayama. We have attached the Taittiriya, Chandogya and Prasopanishad Upanishads which were written few thousands year back clearly explaining the Aura (the Bio Plasmic Body) as Pranamaya Kosa surrounding the Annamaya Kosa and various energy points. Chakras are explained in patanjali yoga. Various yoga literature deals with Praanayama and on Pranic Healing. The aura was explained by Dr. H.R. Nagendra in his book “Pranayama” coating (sic) various scientific and Upanishad aspects. Ashtanga Yoga, Twin Heart Meditation, Advanced Arhatic Yoga, Meditations and Pranayama are developed in a scientific form for healing purposes in Pranic Healing….. As far as 60 years back Swami Sivananda in his book “Science of Pranayama” has explained about Pranic Healing in which he also explains about distant healing and various characteristics of the chakras. His disciple SWAMI NIRANJANANANDA SAARASWATI in his book “PRANA PRANAYAMA PRANA VIDYA”, has written in a detailed way about “Pranic Healing as Prana Vidya. Pranic Healing is being conducted in varied forms in many countries throughout the world. It has long been known in India, Tibet and China, where the healers are an integral part of the medical profession.” Privileged and Confidential Page 18 of 39
  • 19. …. Master Choa Kok Sui has rediscovered all these from our ancient science and developed the Pranic Healing in a scientific and a simple way by adapting various Yoga techniques. OUR APPROACH IS HOLISTIC BASED ON YOGA PRINCIPLES AND IT COMPLIMENTS THE OTHER MAINSTREAM MEDICINES LIKE ALLOPATHIC, AYURVEDIC, ETC. The origin is Indian and we like to state Pranic Healing is nothing but Prana Vidya to spread yoga and pranayama as a part of Yoga Therapy….” 4.4 In their anxiety to somehow establish a cause of action for the Suit, the Plaintiffs have resorted to false hood, in as much as on one hand they assert that “Pranic Healing is an ancient system of energy medicine”, and on the other they, falsely, assert that Pranic Healing was “developed by the Master”. 4.5 In this regard, reference is also made to Section 9 of the Trade Marks Act, 1999 (herein after referred to as the “Act”), which, while providing for absolute grounds for refusal of registration, provides that the following marks should not be registered: a) which are devoid of any distinctive character, that is to say, not capable of distinguishing the goods or services of one person from those of another person; b) which consist exclusively of marks or indications which may serve in trade to designate the kind, quality, quantity, intended purpose, values, geographical origin or the time of production of the goods or rendering of the service or other characteristics of the goods or service; c) which consist exclusively of marks or indications which have become customary in the current language or in the bona fide and established practices of the trade. 4.6 In this regard it is also pertinent to mention that in order to substantiate their claim, the Plaintiffs have made a reference to an Order dated 17th December, 2010 passed by the Principal Munsif, Ernakulam (operation whereof has been stayed by the Hon’ble High Court of Kerala vide Order dated 5th September, 2011, in an appeal filed by the Defendant No. 12 [Kerala Foundation]), refusing the grant of ad-interim injunction in the suit filed by the Defendant No. 12 against one Dr. Joy Joseph and an affiliate of the Plaintiff No. 5 (Institute for Inner Studies Publishing Foundation India Pvt. Ltd.). It is pertinent to mention that in its Written Statement filed before the Principal Munsif, Ernakulam, Dr. Joy Joseph, an affiliate of the Plaintiff No. 5, has himself taken a plea that expressions like Privileged and Confidential Page 19 of 39
  • 20. “Yoga Vidya Pranic Healing” etc. are generic terms and no one can claim exclusive rights to the same. 5. Delay in institution of the Suit- Not a fit case for grant of interim injunction 5.1 The Plaintiffs have disentitled themselves for grant of the discretionary relief of interim injunction as a result of enormous and unexplained delay in filing the present Suit and applying for grant of ex parte interim injunction. It is the Plaintiffs own case that the Plaintiff No. 1 had withdrawn all support to AIYVPHFT effective 23 January, 2010. 5.2 The Plaintiffs were further aware that AIYVPHFT is continuing to exploit the rights granted to it directly by Master, which vested solely in it as has already been submitted herein above, even after the above-mentioned communication, however no action was taken by the Plaintiffs. It was only after a lapse of considerable period of time that the Plaintiffs filed the present Suit and also applied for grant of ex parte interim injunction. 5.3 It is settled law that delay in bringing the suit or applying for injunction would be a ground for refusing the same. As a corollary, it has been held that in a case for infringement of a trademark, there has been a delay of several months in filing the suit, and further the plaintiff failed to establish improper and sinister motive on part of the defendant, as in the present case, the court should refuse the grant of interim injunction. Further, it is settled law that where permissive use of a trademark is shown, as in the present case, interim injunction cannot be granted. 6. Assessment of claim in monetary terms: Interim injunction should not be granted 6.1 The Plaintiffs have themselves assessed their claim in terms of money, and therefore, in their own case, they can be compensated in monetary terms in relations to the claims made them. 6.2 It is settled law that in case of violation of intellectual property rights, where the plaintiff has itself assessed its claim in terms of money, temporary injunction would not be granted as the plaintiff’s claim can be ultimately compensated in terms of money, even if he succeeds in the long run. 7. Ex parte interim injunction order has the result of causing hardship and adverse repercussions and is against the balance of convenience which lies in Privileged and Confidential Page 20 of 39
  • 21. larger public interest 7.1 The ex parte interim injunction Order dated 14th September, 2011 has the result of causing undue hardship and adverse repercussions, which is disproportionate to the need for which the said Order has been passed. Since Master had established AIYVPHFT to further the object of advancement of Pranic Healing, for the benefit of the public, acting as the central coordinating body for all Pranic Healing activities in the entire Indian SubContinent, the same has undertaken several activities in this direction, right from 1996 onwards. The ex parte interim injunction order has the effect of stalling all of the said activities which AIYVPHFT has been carrying on in a lawful manner, and with the sole object of furthering the works of Master and to give realistic shape to this wishes. 7.2 It was the “Great Vision” of Master, as spelled out in his autobiographical work “The Origin of Modern Pranic Healing and Arhatic Yoga” that: “The target is to produce one Pranic Healer for every family. One Arhatic yogi for every one thousand people out of the present population of about seven billion people. The target is to produce seven million Arhatic yogis. Out of every ten Arhatic yogis one senior Arhatic yogi will be produced. A total of seven hundred thousand senior Arhatic yogis will be produced. Out of every one hundred senior Arhatic yogis the target is to produce one baby Arhat or seven thousand baby Arhats. Out of every hundred baby Arhats the target is to produce one fully matured Arhat or a great Arhat. Out of seventy great Arhats hopefully three Holy Masters or three Great Ones will be produced. If this can be dome within one hundred fifty years time the world will change, be transformed and progress beyond recognition. If this objective can be accomplished, we can have heaven on earth.” 7.3 AIYVPHFT has been profoundly working in the direction of giving a realistic shape to the above-mentioned “Great Vision” of Master, by spreading his teachings in India in an untiring manner, through the medium of devoted Pranic Healers. As a matter of fact, AIYVPHFT is producing the maximum number of Pranic Healing students, much larger in number that those produced by the Plaintiff No. 4 [World Pranic Healing Foundation India] or organisations affiliated to it. It was AIYVPHFT which gave Master maximum number of students and highest acceptance of Pranic Healing in India. This is established by the fact that in 2006, when Master has applied for the grant of the trademark “Prana Healing”, Sumi Lazar (who is now a close associate of the Plaintiffs), acting on behalf of Master, submitted an affidavit dated 7th March, 2006 to the Trade Marks Registry, Mumbai, wherein in order to establish the extent and spread of Pranic Healing in India, reliance was placed on the number of student and teachers produced by AIYVPHFT. 7.4 If the operation of the ex parte interim injunction is allowed to continue, the same would have the effect of putting the very existence of AIYVPHFT in danger, which was Privileged and Confidential Page 21 of 39
  • 22. established by Master himself to further the object of advancement of Pranic Healing, for the benefit of the public, acting as the central coordinating body for all Pranic Healing activities in the entire Indian Sub-Continent, as it is not possible to attain the objects for which AIYVPHFT was established without the use of various intellectual property created by Master. If AIYVPHFT is not allowed to put to use various rights granted to it by Master himself, from time to time, it would have an adverse effect on its functioning and achieving the purpose for which it was established by Master, which would result not only in great hardship, but would also lead to several adverse repercussions, which would against the balance of convenience, which in the present case lies in favour of larger public interest, which demands that Pranic Healing activities are carried on through AIYVPHFT, which is a public charitable organisation working for the benefit of the public at large, rather than through the Plaintiffs working solely for profit making and seeking to commercially exploit the intellectual property of Master, purely for the attainment of the said objective. 8. Plaintiffs do have any right in relation to Master’s works/ marks, etc. and have failed to protect the intellectual property of Master 8.1 The Plaintiffs have not produced a single credible document to show that the intellectual property of Master in issue has vested in them. No succession certificate has been produced to show that the names of Plaintiff No.’s 7 to 10 (Christine Choachuy, Karen Choachuy, Catherine Choachuy and Jason Choachuy) have actually been recorded by the appropriate authority in Philippines as the persons who have succeeded to the property, including the intellectual property in issue, of Master. In this context, it is pertinent to mention that in judicial proceedings filed by Charlotte Anderson before the Regional Trial Court of Quezon City, Philippines, the Plaintiff/Applicant No.’s 7 to 10 had argued that Charlotte Anderson did not have the capacity to file the above-mentioned proceedings, because her marriage to Master was null and void as there was no recording of the judgment of nullity of Master’s first marriage with the appropriate civil registry, in terms of Article 52 of the (Philippines) Family Code, 1987. If the said argument of the Plaintiff/Applicant No.’s 7 to 10 is to have credence, their claim as the “sole heirs” of Master without any validity, in as much as, in their own admission, in the eyes of law, Master’s first marriage continues to be in force and consequently, Master’s first wife would also have a right, similar to that of the Plaintiff/Applicant No’s. 7 to 10, in the properties of Master, which vested in him at the time of his leaving his body. For this reasons also, the right of the Plaintiff No.’s 7 to 10, and resultantly of the remaining Plaintiffs, in relation to several of Master’s works and other marks, etc. in issue, is in serious doubt. [Note: Consequently, the judgment of the Delhi High Court describes Privileged and Confidential Page 22 of 39
  • 23. Plaintiff Nos.7 to 10 as “the children and allegedly legal heirs of the Master.” [paragraph 2 (ix) of the Judgment at p. 4.] 8.2 Further, no assignment deed or licensing agreement entered into between Master and the Plaintiff No.’s 1 to 4 has been produced to show the grant of rights or license to the Plaintiff No.’s 1 to 4 to use Master’s intellectual property. As a matter of fact, no such agreements were ever executed. It is pertinent to mention, as would be evident from the case of AIYVPHFT to whom Master directly granted the rights in respect of his intellectual property, that Master always granted such rights in writing, as it is a requirement in law that assignment/licence of intellectual property has to be in writing, and he never used any intermediary for the purpose of licensing/assignment and always did so himself. 8.3 The Plaintiffs have purported to produce a “Transfer and Assignment Deed” dated 18 September, 2007 executed by Plaintiff No.’s 7 to 10 in favour of Plaintiff No. 1 in respect of certain trademarks. Plaintiff No.’s 7 to 10 did not have the right, on the day on which the above-mentioned assignment was made (and in fact they don’t even possess this right even today), to transfer rights in relation to the trademarks in issue to the Plaintiff No. 1. It is pertinent to mention that certificate for the registered trademarks record the legal name of Master, i.e., Samson L. Choachuy, as the proprietor of the said trademarks. Similarly, in relation to trademarks for which registration was pending on the date of the above-mentioned deed, applications for registration of the said trademarks was made in the name of the Master. 8.4 In terms of Section 37 of the Act, the power to assign a trademark has only been given to the person, whose name is entered, for the time being in the Register of Trademarks, a proprietor of the trademark. Section 37 of the Act reads thus: “37. Power of registered proprietor to assign and give receipts The person for the time being entered in the register as proprietor of a trade mark shall, subject to the provisions of this Act and to any rights appearing from the register to be vested in any other person, have power to assign the trade mark, and to give effectual receipts for any consideration for such assignment.” [Emphasis added] 8.5 No application was made, or at least none has been produced, for correction of the Trademarks Register, in respect of the trademarks in issue, to reflect the name of Plaintiff No.’s 7 to 10 as the proprietors of the said trademarks, in terms of Section 58 of the Act. Privileged and Confidential Page 23 of 39
  • 24. 8.6 Therefore, Plaintiff No.’s 7 to 10, whose names were not recorded as registered proprietors of the trademarks in issue in the Register of Trademarks, could not have made any assignment of the said trademarks in favour of Plaintiff No. 1 on the relevant date. In this regard, it is pertinent to mention that on 18th September, 2007, Plaintiff No.’s 7 to 10 submitted an affidavit to the Registrar of Trademarks (and not an application to record their names as the registered proprietors), stating that they do not have any objection to recording the name of Plaintiff No. 1 as the proprietors of the trademarks in issue. However, a bare perusal of the trademark certificates filed as part of the Suit documents would show that, in respect of trademarks registered after the date of the said affidavit, the Registrar of Trademarks did not give consideration to the above-mentioned affidavit and the trademarks were registered in the legal name of Master, i.e., Samson L. Choachuy. Further, in respect of the trademarks already registered on the date of the above-mentioned affidavit, the legal name of Master, i.e., Samson L. Choachuy continues to be on the Register of Trademarks as the registered proprietor of the said trademarks. 8.7 In relation to other intellectual property, in respect to which exclusive claim is sought to be made by the Plaintiffs, also no document has been produced to show that Plaintiff No. 1 is the owner of the intellectual property. Law mandates that any assignment if intellectual property has to be in writing, and consequently, the burden is on Plaintiff No. 1 to produce assignment, if any, in its favour in respect of other works of Master, in which intellectual property rights subsist, which burden it has miserably failed to discharge. 8.8 In any event, assuming for the sake of argument, without in any manner conceding, that Plaintiff No.’s 7 to 10 had the authority to execute the “Transfer and Assignment Deed” dated 18 September, 2007 in favour of Plaintiff No. 1 in respect of certain trademarks, the Plaintiff No. 1 can at best derive a right in relation to the same from the said date, in the absence of any other written document assigning the rights in relation to the same to the Plaintiff No. 1 by Master. Therefore also, AIYVPHFT is a bona fide prior user in respect of the trademarks and other intellectual property created by Master, in issue, and consequently, no interim injunction can be granted retraining AIYVPHFT from using the said marks. 8.9 In this regard, Section 33 of the Act, which deals with “Saving of Vested Rights”, provides in unambiguous words that if on the date on which a mark is registered in favour of a person, another person is using the same or similar trade mark, then the registration of the trade mark does not give the proprietor of the mark a right to claim an injunction against the other persons, who are using the trademark on the date of registration. 8.10 It is settled law that in order to be eligible for grant of injunctive relief, a party Privileged and Confidential Page 24 of 39
  • 25. should have a concluded right. Further, it is settled law that in order to enable the plaintiff to claim an order of injunction in a trademark infringement case, it will be necessary for him to prove his title and exclusive right to use the mark in issue. Law demands that the plaintiff has to prove legal injury in order to sustain a case for grant of ex parte interim injunction, and in order to prove legal injury the plaintiff must establish that he has got a legal right to do something and the opponent prevents him from exercising such right. It is settled law that the power to grant ex parte interim injunction is to be exercised cautiously to protect acknowledged rights, that to establish new and doubtful ones. It is settled law that ex parte interim injunction is never granted to establish new state of things, different from the state which existed at the date when the proceedings were instituted. 8.11 In those cases where the legal rights of the parties depend on facts that are in dispute between them, and the evidence available to the court at hearing of the application from grant of interim injunction is incomplete, i.e., it is given on an affidavit which has to be tested by oral cross-examination, the appropriate course for the court would be not to exercise its discretion to grant interim injunction on such incomplete and untested evidence. 8.12 In any event, it is most respectfully submitted that the Plaintiffs, who seek to make a claim in respect of the intellectual property created by Master, have miserably failed to protect the same from violation, etc. at various points in time. 8.13 As an example, the Plaintiffs make a reference of a “Kriyashakti” class held in Chennai on 23rd August, 2009, which was organised by the Yoga Vidya Pranic Healing Foundation of Tamil Nadu, i.e., the Defendant No. 8. In respect of the said class, the course fee charged to the participants was half the price of the agreed course fee prescribed in other parts of India. The Plaintiffs allege that in the said class, certificates which were not duly authorised were used. It was AIYVPHFT who implored the Plaintiff No. 1 to take up the matter seriously and initiate appropriate action. However, for reasons best known to the Plaintiff No. 1 herein, no such action was taken. In this regard, reference is made to the communications exchanged between the current President of AIYVPHFT, Mr. C. Kailash and the General Manager of the Plaintiff No. 1, Daniel Gorgonia on this subject, wherein Daniel Gorgonia clearly mentions that it was for AIYVPHFT to decide whether to allow the above-mentioned class to continue, and the Plaintiff No. 1 would act on the decision taken by AIYVPHFT. 8.14 In this regard, it is also pertinent to mention that the current President of AIYVPHFT, Mr. C. Kailash, vide his e-mail communication dated 26th August, 2009 addressed to Daniel Gorgonia has sought certain information for taking appropriate action Privileged and Confidential Page 25 of 39
  • 26. against the Yoga Vidya Pranic Healing Foundation of Tamil Nadu, i.e., the Defendant No. 8, which had gone ahead with the above-mentioned class, without authorisation. In response to the above-mentioned communication, Daniel Gorgonia sent an e-mail communication dated 6th September, 2009 to the Board of Trustees of AIYVPHFT, suggesting that it would be appropriate to deal with the situation in a simple manner than initiation of legal action. In the said communication, Daniel Gorgonia has further admitted that the all intellectual properties are registered in the name of Master, and that the same has not been legally transferred in the name of Plaintiff No.’s 7 to 10. 8.15 It is also pertinent to mention that in the above-mentioned communication dated 26th August, 2009, Mr. C. Kailash had requested for the following information: a) a certified copy of necessary documents which provide that the Plaintiff No. 3 or the Plaintiff No. 1 have the exclusive copyright and trademark on “Kriyashakti” workshop, territorially in India; b) copy of the document given by the Master to the Plaintiff No. 3, authorising it to issue licenses to AIYVPHFT, allowing it to conduct Master’s courses through its affiliate organisations, and power to withdraw the same; c) document(s) evidencing the legal power of the Plaintiff No. 1 to grant necessary licences for Master’s courses. 8.16 In the communication dated 6th September, 2009, sent by Daniel Gorgonia in response to the above-mentioned communication dated 26th August, 2009, except a few vague explanations, no concrete answers or documents were provided. The said communication dated 6th September, 2009 also spells out the true objective of establishing the Plaintiff No.’s 5 and 6, as has already been detailed herein above. It is stated thus: “No, WPHF India is a different type of organisation. It is a charitable trust and cannot engage in commercial activities, particularly licensing of intellectual properties. 1) The Ashram property is in the name of this Trust, and because of this it would be highly irresponsible to expose the WPHF India Trust to possible litigation and taxation inspections that might arise should it engage in licensing activities.” [Emphasis added] 8.17 That on the contrary, it is AIYVPHFT, which has, at several points in time, initiated legal proceedings to protect the intellectual property of Master from infringement. As an example, AIYVPHFT has file three (3) suits before the Hon’ble High Court of Privileged and Confidential Page 26 of 39
  • 27. Madras impugning various acts of infringement of several of Master’s works. It is pertinent to mention that in respect of two (2) of the above-mentioned suits, which were initiated by AIYVPHFT against one Adelfo Q Pe alias Del Pe, for infringement of copyrighted works of Master, when AIYVPHFT sought views from the Plaintiff No. 7 (Christine Choachuy) whether to continue or withdraw the said suits, there was no response received by AIYVPHFT, thereby implying that the so called legal heirs of Master are only interested in commercially exploiting the intellectual property of Master and have no interest in matters pertaining to infringement thereof by third parties. It is pertinent to mention that AIYVPHFT is continuing to pursue the above-mentioned suits for protection of intellectual property created by Master. 9. Plaintiffs are guilty of illegal, dissolute and dishonest conduct 9.1 The Plaintiffs have indulged in forum shopping. Prior to the institution of the present Suit, a directly and substantially similar Suit bearing No. O.S. No. 4291/2010 titled C. Sundaram v. All India Yoga Vidya Pranic Healing Foundations Trust, was filed against AIYVPHFT by the Plaintiffs, through C. Sundaram, who is a trustee in Plaintiff No.’s 3 and 4, before the Court of the City Civil Judge at Bangalore, seeking relief in the nature of a permanent injunction restraining AIYVPHFT from functioning independently in India. No relief, interim/temporary or permanent, has been granted in said proceedings. Since the Plaintiffs, through C. Sundaram, who is a trustee in Plaintiff No.’s 3 and 4, did not succeed in obtaining any relief in the above-mentioned suit, they have now approached the Hon’ble High Court of Delhi for the grant of substantially similar reliefs. 9.2 The Plaintiffs have suppressed the factum of filing of the above-mentioned suit from the Hon’ble High Court of Delhi, and the Plaint or the Interim Injunction Application does not even contain a whisper in this respect, and consequently, the Plaintiffs are guilty of fraud on the Court as well as on AIYVPHFT and they are guilty of criminal contempt. 3.5 Appearance by other defendants The other defendants in the Suit entered appearance on the following dates: Defendant Name Entered File Application for File Written Appearance Vacation of Submissions/Oral Stay/Reply to Submissions Interim Injunction Application Privileged and Confidential Page 27 of 39
  • 28. Charlotte Anderson 23 November, 2011 13 December, 2011/ Oral submissions 7 January, 2012 on 5 March, 2012 13 March, 2013 [Vakalatnama filed on 3 January, 2012] Delhi Foundation 21 November, 2011 21 November, 2011 Rajasthan Foundation 21 November, 2011 21 November, 2011 Oral submissions on 7 December, 2012 Karnataka Foundation 21 November, 2011 23 November, 2011 Oral submissions on 11 December, 2012 All the other defendants have substantially adopted the arguments and contentions put forth by AIYVPHFT in their replies/applications and written submissions. 3.6 Other relevant facts in relation to the Suit a) Though, AIYVPHFT, with utmost respect to the judicial order passed by the Hon’ble High Court of Delhi, followed the terms and conditions of the Order dated 14th September, 2011, in complete letter and spirit, some of the defendants openly defied the directions passed by the Hon’ble High Court of Delhi. As an example, despite the clear directions from the Hon’ble High Court of Delhi not to conduct Master’s courses, Charlotte Anderson continued to conduct the same and issue certificates for the same. When the said fact was pointed out by the Plaintiffs to the Hon’ble High Court of Delhi, the Hon’ble High Court of Delhi directed her to refrain from doing so. However, she still continued to issue certificates for the classes conducted by her, but without using Master’s name in relation to the said courses; b) Defendant No. 1 (Charlotte Anderson), Defendant 3 (Delhi Foundation headed by Ajay Pal), Defendant 11 (Rajasthan Foundation headed by Rahul Agarwal) and Defendant 14 (Karnataka Foundation headed by N.J. Reddy), i.e., all the contesting defendants, other that AIYVPHFT, expressed their desire to settle the matter with the Plaintiffs. Consequently, the Hon’ble High Court of Delhi, vide order Dated 30th January, 2012, Privileged and Confidential Page 28 of 39
  • 29. ordered thus: “The learned counsel appearing on behalf of the defendant No.1, 3, 11 and 14 state that they would be filing affidavits for giving terms of settlement without prejudice to their clients in order to resolve the dispute between the parties. In case the said terms are not acceptable to the plaintiffs, the matter be heard on merit on the next date of hearing. Learned counsel appearing on behalf of plaintiffs has accepted the suggestion given by the defendants.” [Emphasis added] Subsequently, Defendant 3 (Delhi Foundation headed by Ajay Pal), Defendant 11 (Rajasthan Foundation headed by Rahul Agarwal) and Defendant 14 (Karnataka Foundation headed by N.J. Reddy) also agreed that the matter be referred to mediation between them and the Plaintiffs. Consequently, the Hon’ble High Court of Delhi, vide Order dated 8th February, 2012, appointed a mediator. The said mediation process went on till October 2012, and it was only on 12th October, 2012, that Defendant 3 (Delhi Foundation headed by Ajay Pal), Defendant 11 (Rajasthan Foundation headed by Rahul Agarwal) and Defendant 14 (Karnataka Foundation headed by N.J. Reddy), along with the Plaintiffs, informed the Hon’ble High Court of Delhi that mediation was not successful. Consequently, after hearing Defendant 3 (Delhi Foundation headed by Ajay Pal), Defendant 11 (Rajasthan Foundation headed by Rahul Agarwal) and Defendant 14 (Karnataka Foundation headed by N.J. Reddy) on 16th November, 2012, 7th December, 2012 and 11th December, 2012, the Hon’ble High Court of Delhi reserved its judgment on 11th December, 2012. c) On 9th January, 2014, Defendant 3 (Delhi Foundation headed by Ajay Pal) filed an affidavit of Capt. K.V. Kunhikrishnan who is the “Vice Chairman and Trustee of Defendant No. 3” and gave an undertaking on behalf of Defendant No.3 that Defendant No. 3 has no intention to publish, distribute, reproduce or sell books written by Master including audio and video forms, CDs and to issue certificates in the name of Master except intellectual property right owner and in future, the course, books, review, practice, sessions and nurturing sessions conducted by Defendant No.3 would be based purely on the material available in the public domain and/or material which is licensed to usage to the Defendant No.3 by the owner of IPR. 4. THE JUDGMENT The Hon’ble High Court of Delhi delivered its Judgment on 10th January, 2014. Some of the important aspects and relevant paragraphs of the Judgment are extracted below: Privileged and Confidential Page 29 of 39
  • 30. a) “13. It is specifically alleged by all the Defendants that there is no Intellectual Property Rights over certain Terms and Terminologies. Defendants have placed on record large number of documents in support of their submission. The said documents reveals that the art of Pranic healing is a form of yoga, dealing with mechanism of inner healing techniques, commonly known and used by healers and users of esoteric sciences. Yoga, as an art and science, is prevalent and existing from time immemorial and are very ancient. All forms of yoga and terms and techniques, including the rights claimed by the plaintiffs thereon substantially, are in the public domain. The techniques developed by the Master are an adaptation of yoga techniques and terms. No one can claim exclusivity over any form of yoga, including Pranic Healing, and the terms and techniques relating thereto. Reference is made to books titled “ The Science of Physic Healing” and ‘Hatha Yoga” written by Yogi Ramacharaka way back in 1906, which talk about the principles and practice of Pranic Healing, and various terms and techniques of Pranic Healing including, Pranic Breathing, Pranic Treatments, Pranic Energy, Pranic Exercises, etc. The Master, at page 8 his autobiographical work, “The Origin of Modern Pranic Healing and Arhatic Yoga”, makes a reference to the abovementioned work book.” [Emphasis added] b) “73. I find that this case is an opportune time to discuss in detail the said concept of idea and expression dichotomy as the present case seek to prevent the implementation of facts and narrations stated in the book which are Asanas of Yoga on the premise that the said facts and narrations, descriptions of Asanas and techniques stated in Books authored by master are his copyright and thus the performance of the said works in physical form actions or performing such Pranic Healing Yoga Asanas must result in the copyright infringement. On the first blush, the argument is seemingly convincing considering the provisions of the Act and in the manner they are worded so as to include the performance of the work in public or communication of the work to the public unguided by the exposition of law relating to idea and expression. But once the said argument is tested from the glasses of idea expression distinction which sometimes the courts have to make in a given case, the answer becomes clearer and the shadow of doubt which exists in the mind proceeds to obliterate.” [Emphasis added] c) “98….the protection shall not be extended to include the monopoly right over the performance of the said Asanas of Yoga or Pranic Healing on the strength of the manner of the expression as stated in book as doing the same would be giving the monopoly right to the art or technique itself which is available in public domain from time immemorial which is also evident from the books available on record authored by Swami Ramachakra since 1906. 99. Even assuming the argument of the plaintiff is to be correct that there exists certain kind of novelty in the Modern Pranic Healing which as per the plaintiff is far removed from traditional Pranic Healing, still the protection available under the realm of the copyright is confined to the substantial copying of the language employed in the books authored by the master or the manner of explanation of Asanas, pictorial content contained in the book, arrangement and selection of contents and its setting thereof and not in the Asanas of Pranic Healing or performance of Pranic Healing Exercise following the law laid down in Baker (supra), Fiest (supra), Baigent (supra). This is due to the reason that even if there exists any novelty in such expression of the idea, the said novelty is not a sine qua non for conferring copyright and the copyright vests on the basis of originality. The said originality in the copyright sense as Privileged and Confidential Page 30 of 39
  • 31. indicate would imply the hard work, skill, judgment extended by the author towards creativity which emanate from author and not in innovative sense. The novel processes, methods, principles, manner of performing the art or exercise are all the realm of the Patents and not the copyright. Therefore, without testing the novelty in any appropriate art or technique and giving the monopoly over the performance art or exercising techniques which are apparently preexisting in the ancient history of India would be a serious intrusion in the Public domain. Thus, even if any kind of novelty exists in such Pranic Healing Asanas, the copyright in book cannot encompass such kind of protection in the manner sought for by the plaintiff. 100. It can also be argued simultaneously the Yoga as an art or technique is not prima facie patentable, thus rejecting the copyright claim would be rendering the plaintiff as remediless. The said argument would also not be correct in as much as what is not patentable cannot as a matter of necessary consequence becomes copyrightable. The grant of no protection over the art described in the book as against the manner of the description in the form of language etc is due to the separate reasons available in Copyright law including the applicability of idea expression dichotomy principle which sets out the boundaries between the idea and expression. Therefore, the ouster of the art or technique or method from the realm of the protection has really no connection with that of the Patent as such. The grant of the patent to such useful arts, methods in relation to novel inventions is an additional reasoning which prevents the subject matter to be copyrightable because the said subject may overlap with patent. That by itself does not mean that what is not patentable will become copyrightable. This is also applicable to historical facts, as the historical facts are neither copyrightable and cannot be patentable also.” [Emphasis added] d) “107. ….Therefore, the plaintiff in the instant case cannot be heard to say that the protection to performance of Pranic Healing techniques can be accorded on the basis of the copyright claim in the book describing, illustrating and compiling the exercises or Asanas of Pranic Healing.” [Emphasis added] e) “108. Now, the only limb of argument in support of the copyright claim in relation of performance of Asanas of Pranic Healing which is left over is the claim that the Asanas of Pranic Healing are the works of choreography as prescribed under the head of Dramatic work under the provisions of the Copyright Act. The defendant to counter this submission vehemently argued that there is no foundation which has been laid in the pleadings qua the protection of the Asanas of Pranic Healing as dramatic work and the court should therefore reject this argument straightway as afterthought. …. 112……But on careful understanding of the concept of the dramatic work as to what sort of the works are protected within the ambit of the dramatic work and after studying the pre-requisite requirements for calling any work as dramatic work, it may be concluded that the arts and exercises like Yoga, Pranic Healing Technique or daily routine exercises though appear to be choreographic work but they are as a matter of fact not a choreographic work. …. 114…..Thus, by applying the test enunciated and well settled by the authorities in England for the determining the work as a dramatic work, it can be said that Privileged and Confidential Page 31 of 39
  • 32. prima facie the Asanas of Yoga or Pranic Healing do not fall within the ambit of the dramatic work.” [Emphasis added] f) “116. In view of the above discussion, it can be said that the plaintiffs claim in the instant case too that Pranic Healing techniques are in the alternative protected as dramatic works under the provisions of the Copyright Act, 1957 prima facie appears to be untenable and the protection on the said count cannot be accorded towards the performance of the Asanas relating to Pranic Healing techniques.” [Emphasis added] g) “118. To sum up the prima facie conclusions arrived at the discussions which I have made so far relating to copyright claim raised by the plaintiff are: a) The copyright may exist in the language employed in the book, the narration of events and incidents prescribed therein in the manner done by the master and the sequential arrangement contained therein and the reproduction right or right to issuance of the copies available to the master or the person claiming to deriving title from them. b) The copyright in books, CDs and trade literature cannot be extended to include the exclusive right provided to master or plaintiffs to perform such Asanas of Yoga or implementing the art or Pranic Healing techniques prescribed in the books and CDS etc. c) The techniques of the Pranic Healing also do not cover within the ambit of the dramatic work as provided under the provisions of the Copyright Act, 1957. 119. In view of the said prima facie conclusions, let me now deal with case of the parties as per the facts of the present case: a) So far as the plaintiffs claim of copyright in relation to the books, trade literature, CD Roms is concerned, though the defendants dispute the said claim on manifold reasons stated in the written statements filed by them. However, all the defendants have stated during the course of arguments that at this interim stage they do not intend to reproduce the said works or using the said materials which are material reproduction of the plaintiff’s copyrighted books except defendant No.1 who has stated that she had jointly authored 9 book titles with the master and is accordingly entitled to use the said works in the same manner as that of the master. Therefore, excepting the defendant No.1, the case of whom I will deal hereinafter, all the other defendants can be conveniently restrained temporarily from using the literary works including books, their titles which are material reproduction of the plaintiffs works as claimed in the list of the works filed by the plaintiffs as Annexure A to the plaint. b) Plaintiffs claim of copyright in relation to performance of the Asanas of Modern Pranic Healing is prima facie untenable in view of the reasoning contained in the discussion mentioned above wherein the claim of the copyright in respect of book cannot be extended to the art or technique described in the book. c) The similar claim of the plaintiffs copyright in respect of performance of the Asanas on the premise of the dramatic work is prima facie unsustainable and no prima facie case in this respect has been made out by the plaintiffs. d) The copyright claim of the plaintiffs in respect of the performance of the Asanas of Pranic Healing has been resisted by the defendants by contending that the said Asanas lack originality in as much as the concept of the Pranic Healing finds Privileged and Confidential Page 32 of 39
  • 33. mentioned in the books which are predated and published prior to that of the books of the master including book of Swami Ramachakra since the year 1906 and others. The said challenge as to originality is further countered by the plaintiff by contending that there is a difference between the traditional Pranic Healing and Modern Pranic Healing. I have gone through the contents of the books relied upon by the defendants in order to raise such challenge as to originality. After going through the same, it can be said that prima facie, it appears that the techniques of Pranic Healing finds mentioned in the books shown by the defendants. Thus, the challenge raised by the defendants as to the originality quotient to resist the copyright claim is seemingly prima facie credible. However, it is a disputed question of fact in view of the plaintiffs response of difference between the Modern Pranic Healing and traditional Pranic Healing. The plaintiffs are to prove the same in trial. I may point out here that the finding as to the lack of originality is additional reasoning to support the finding as to prima facie non tenability of the copyright claim in the performance of Pranic Healing. This is due to the reason that the analysis done by me above clearly indicates that whether the compilation contained in the book is of novel facts or non novel facts, the important point to be borne in mind is that the copyright shall vest in the manner of description contained in the work like the language employed in the work, selection and arrangement of the incidents and their sequence and shall not extend to performance. Therefore, the novelty or lack of originality of the facts is though essential but not the whole basis of my finding as this is more of an idea expression problem. e) The contention of the defendant No.1 and other defendants that they are acting under the separate titles for one reason or other either as licensee or as an independent trust need not require determination at this stage in view of my finding that the copyright claim of the plaintiffs do not extend to the performance of Asanas of Yoga. In that view of the matter, the question of the defendants separate entitlements to impart Pranic Healing techniques is disputed question of fact and can be postponed uptil trial. f) The reliance of the plaintiffs on the judgment of Supreme Court in the case of Academy of General Education, Manipal (supra) in order to demonstrate the performance of the dramatic work is protectable and the dance is included within the realm of dramatic work is not applicable to the instant case as no one is disputing that the dance cannot be protected as dramatic and also the performance right is not included when it comes to protecting dramatic works. I have arrived at prima facie finding that Pranic Healing techniques or routine exercises are not covered within the ambit of dramatic works and thus the question of the right to restrain their performance does not arise in the instant case. The right of performance is separately curtailed due to idea and expression problem when it comes to protection of literary works. So both way, the exclusive right to perform or impart or to do Pranic Healing techniques in practice cannot be given solely to the plaintiffs. g) The argument of the plaintiffs by demonstrating some 13 new Asanas invented by the master and hence they are protectable is also meritless in view of my finding that the novelty of the art described in the book or literary work does not confer any copyright on the art or facts described therein. Thus, the said argument of novelty also does not aid the case of the plaintiffs. h) Similarly, the defendants have made submissions as to non availability of the deed of assignment in favour of the plaintiffs or complete devolution of title in favour of plaintiffs due to which the plaintiffs cannot assert their right against the defendants. Prima facie, I have found that there is no right of the plaintiffs qua the performances of the Asanas of Pranic Healing Techniques and so far as the books are concerned, the defendants (except defendant no. 1 Privileged and Confidential Page 33 of 39
  • 34. to the extent of the books co-authored by her) have made the statement that they do not intend to use the trade literature, CDs and books which are reproduction of the master. Under these circumstances, the question as to deed to assignment and devolution of title in favour of the plaintiffs at this juncture becomes inconsequential for the purposes of deciding the present application…. 120. These are the main contentions which have been raised by the parties in relation to the copyright claim. The question of comparison of the Master’s books and literatures and defendant’s literature does not arise in this case as the defendants except the defendant No.2 have made the undertaking that they do not intend to reproduce books and the literature of the Master in material form in the manner owned by the Master so that it may not infringe the copyright of the plaintiff. Only the plaintiffs have tried to compare the works incidents wise. However, the defendant No.2 did not satisfy the court on this aspect. The only plea taken by defendant No.2 is that there is divesting intellectual property rights which includes copyrights of the Master. The plaintiffs deny the said plea, it is thus disputed question of fact and no prima facie view can be formed on the basis of pleadings and material placed on record except to observe that tenabilities of the said plea would be examined in trial. The same cannot be accepted at this stage.” [Emphasis added] h) “135. So far as the rest of the books authored by master and other trade literature, CD Roms etc are concerned, the defendant No. 1 in her supplementary affidavit filed through her power of attorney holder namely Rajiv Bhargava filed on 7th February, 2012, it is said that the defendant No. 1 has not published any of the copyrighted books, manuals of the master and she intends to utilize the copyrighted works of the master only for teaching purposes of conducting the workshop. The said statements made by the defendant No.1 through her attorney are accepted and on that basis the defendant No.1 shall not reproduce the said books in material form and shall also not sell or distributed the books, CDs, manuals and other trade literature of the master in any manner. 136. ….Suffice it to say that there is no interim order which this court is passing on the performance of the Pranic Healing techniques and its imparting in any manner in practice. The parties may infer such prima facie findings as per their understanding on the subject and considering the nature of the work undertaken by them.” [Emphasis added] i) “137. Now, I shall proceed to decide the case of the plaintiffs in respect of the claim of the trade mark infringement as alleged by them. It has been argued that the plaintiffs are the registered proprietors of the trade mark PRANIC HEALING and the titles comprising the expression “PRANIC HEALING” as essential features in several classes…. 138. It has been alleged by the plaintiffs that the plaintiff being the registered proprietor of the trade mark comprising the expression PRANIC HEALING can prevent any third party misuse of the trade mark PRANIC HEALING. It has been argued that the trade mark PRANIC HEALING has acquired secondary significance vis-a-vis the plaintiffs due to its long standing use by the plaintiffs. 139. The defendants on the other hand argued that the expression PRANIC HEALING is publici juris and as such no monopoly can be claimed on the said Privileged and Confidential Page 34 of 39
  • 35. basis. It has been argued that there is no valid deed of assignment in favour of the plaintiffs in order to show title over the trade marks and thus the plaintiffs are estopped from claiming any trade mark infringement. It has been argued that the Pranic Healing as an expression cannot acquire any secondary significance qua the plaintiffs being generic expression. The defendants relied upon the material they have placed on record including the books and literature filed to challenge the originality to show that the expression Pranic Healing is the name of the concept or technique which is one of the facet of Yoga and has been part of the traditional knowledge of India. 140. I have considered the rival contentions of the parties on the aspect of the trade mark infringement and have also considered the material available on record. On going through the material available on record, it is apparent that the expression Pranic Healing has been used by Swami Ramachakra in his book as back as in the year 1906 prior the books and titles of the Master. The said Book of 1906 describes Pranic Healing as a concept derived from Prana which has been taken from Pranayam of Yoga and the said concept mainly means utilising the inherent energy prana or energy of life in all beings for self-healing. The said term Pranic Healing has been written prominently in the chapters of the book published more than a century ago by another Swami. The said book has also been relied by the defendants to attack the aspect of originality in the copyright claimed by the plaintiff. It is thus evident that it is not the master or the plaintiffs who have coined the term Pranic Healing and the same has been originated from somewhere else or probably from the public domain. 141. Section 18 of the Trade Marks Act clearly provide that any person claiming to be a proprietor of the trade mark can secure the trade mark registration and apply for the same. It is however required to be mentioned that the said claim of the proprietorship made by the plaintiff has to be truthful in as much as that it is the plaintiff who is the owner of the trade mark by adopting a trade mark which is inherently distinctive or the mark which is capable of distinguishing the goods and services of the one person from that of another. The trade marks which have secured by the plaintiffs in India are all secured post the year 2000 as is evident from the list. If the expression Pranic Healing was the name of the art or technique of Yoga in the year 1906 finding place in the books in the field of Yoga, it is prima facie appears to be highly doubtful as to how the said expression PRANIC HEALING is either inherently distinctive or for that matter capable of distinguishing the goods of one person from that of another. Having not made a truthful statement as to proprietorship of the mark PRANIC HEALING by the plaintiffs, the plaintiffs have secured the registration of the expression PRANIC HEALING from the Registrar of the trade mark without informing about the correct proprietorship of the mark applied for on the date of the application. The said act of withholding the information or making incorrect claim of the proprietorship of the mark in legal parlance is termed as committing fraud upon the register. …. 144. Applying the said proposition to the instant case, it can be seen that the expression PRANIC HEALING on the date of the application for the registration was prima facie non distinctive and was the name of the art or technique of doing exercise which was a facet of Yoga. The expression was not capable of distinguishing the services of the plaintiff from others due to its wide spread use in the field dating back from centuries ago. Thus, the registration of the expression PRANIC HEALING attracts serious objections under the provisions of Section 9 of the Act relating to lack of distinctive character. Furthermore, the plaintiff or the applicant has secured the registration by making false claim as to proprietorship in the trade mark registration which Privileged and Confidential Page 35 of 39
  • 36. prima facie vitiates the registration. Thus, this court can conveniently draw prima facie inference that the registrations obtained by the plaintiffs for the mark PRANIC HEALING are inconsequential. Prima facie, it appears to the court that it becomes generic name and cannot be protected being known as name of concept of Yoga at present. Even the Master was not the proprietor of the said expression “PRANIC HEALING”, hence at this stage, the plaintiffs are not entitled to claim the monopoly of the said words. 145. Therefore, prima facie no case has been made out by the plaintiffs for the infringement of the trade mark as the expression Pranic Healing is incapable of performing the function of the trade mark and the trade mark registration secured by the plaintiff is prima facie inconsequential. Accordingly, the court cannot proceed to grant interim injunction as prayed for by the plaintiffs on the strength of prima facie invalid registrations. So far as the secondary significance is concerned, once it is seen that the expression Pranic Healing has a wide spread use prior to the plaintiffs coming into picture, no amount of expenditure or investment can lead to distinctiveness of such an expression which is the name of the art or technique which has its roots embedded in ancient history of India can lead to secondary meaning identifying any singular proprietor like the plaintiffs. Accordingly, the trade mark infringement and passing off claims of the plaintiff on the premise of the use of the expression PRANIC HEALING by the defendants are prima facie not made out.” [Emphasis added] j) “146. Finally, I shall now proceed to discuss the principles governing the grant of interim injunction which are prima facie case, balance of convenience and irreparable loss and test the case of the plaintiffs on the same. The plaintiffs have failed to make out any prima facie case for the grant of injunction in relation to infringement of trade mark, passing off and the infringement of copyright qua the performance of the Asanas of Pranic Healing under the copyright. The balance of the convenience is of course is in favour of the defendants in absence of the any prima facie case of copyright infringement in relation to pranic healing techniques, concepts or any exercises of Yoga and Asanas and trade mark infringement and irreparable damage shall also ensue to the defendants if the plaintiff is granted the interim injunction in its favour without establishing a prima facie right over the trade mark and copyright. 147. The only prima facie case which has been made out by the plaintiff is towards the reproduction right of the books and other literature or issuance of copies or distribution of certificate by the defendants. The defendants have made the statement during the course of hearing (except 9 books for which rights have been claimed by the defendant No.1) they do not intend to replicate the literature, brochures, CDS Roms etc of the plaintiff which may cause infringement in the manner of expression by way of language or sequential incidents contained in the books and other literature. The defendants have further stated that they will not affiliate themselves with Master by issuing any certificate containing the name of the master or any way associate their institutes with the Master while running their training courses. Thus, the balance of the convenience and irreparable loss so far as these reliefs are concerned are in favour of the plaintiffs. The plaintiffs are therefore entitled to injunction restraining reproduction or distribution or selling of the copies of the books and literature etc. as per the directions given below subject to continuance of use of 9 books by the defendant No.1 as mentioned in the directions. 148. The directions as per the prima facie conclusions arrived at under the various heads of the discussions done above can be summarized as under: Privileged and Confidential Page 36 of 39
  • 37. a) The defendants, their agents, partners, directors, trustees or any one of them acting on their behalf directly or indirectly are temporarily restrained during the pendency of the proceedings from reproducing the contents of the books and the trade literature, brochures, CD Roms, manuals in the manner used by the Master in his books, literature and other material or copying the material in material or substantial form sequentially or incident wise which may cause infringement of the copyright in the said works and from selling, distributing, offering for sale any such books, CD Roms, recordings of master courses, brochures and other literary work authored by the Master or using the same at the time of teaching or imparting training of Modern Pranic Healing or Pranic Healing in their training programmes, workshop and also from issuing the certificate for conducting their training courses which contains the name of the Master namely Master Choa Kok Sui or use any material or write up which may suggest affiliation of the defendants with that of Master Choa Kok Sui in relation to their training programmes run in their training institutes and foundations. However, they are free to print, publish any book, printed material, brochures and certificates on the basis of material available in public domain which do not infringe the copyright of above of the Master. ….. c) And subject to condition (a), the defendants are free to perform the Asanas of Pranic Healing or Modern Pranic Healing techniques or impart training, practice, sessions, teachings, conduct workshops, in their respective institutes on Pranic Healing or Modern Pranic Healing of the master without using the literature of the plaintiffs or master as the plaintiffs have failed to establish any prima facie copyright claim over the performance of the art or techniques Pranic Healing be it under the head of compilation as a literary work or as a dramatic work within the meaning of the copyright Act. 149. The interim order dated 14th September, 2011 is modified by substitution of the aforementioned directions in place of the ones granted earlier.” [Emphasis added] 5. CONCLUSION A bare perusal of the above-mentioned Judgment given by the Hon’ble High Court of Delhi would make it evident that the Hon’ble High Court has, to a substantial, vindicated the stand adopted by AIYVPHFT. The essence of the said Judgment is as under: a) The copyright may exist in the language employed in the book, the narration of events and incidents prescribed therein in the manner done by the master and the sequential arrangement contained therein and the reproduction right or right to issuance of the copies available to the master or the person claiming to deriving title from them. b) The above-mentioned protection shall not be extended to include the monopoly right over the performance of the said Asanas of Yoga or Pranic Healing on the strength of the manner of the expression as stated in book as doing the same would be giving the Privileged and Confidential Page 37 of 39
  • 38. monopoly right to the art or technique itself. Therefore, the copyright in books, CDs and trade literature cannot be extended to include the exclusive right provided to master or plaintiffs to perform such Asanas of Yoga or implementing the art or Pranic Healing techniques prescribed in the books and CDS etc. c) The techniques of the Pranic Healing also do not cover within the ambit of the dramatic work as provided under the provisions of the Copyright Act, 1957. d) The exclusive right to perform or impart or to do Pranic Healing techniques in practice cannot be given solely to the plaintiffs, as claimed by them in the Suit. e) The defendants, including AIYVPHFT, have been restrained temporarily from using the literary works including books, their titles which are material reproduction of Master’s works primarily on the strength of the concession made by contesting defendants, other than AIYVPHFT, that at this interim stage they do not intend to reproduce the said works or using the said materials which are material reproduction of Master’s copyrighted books. f) In that view of the matter, the question of AIYVPHFT’s separate entitlements to impart Pranic Healing techniques is disputed question of fact and can be postponed uptil trial. g) The contention of non availability of the deed of assignment in favour of the plaintiffs or complete devolution of title in favour of plaintiffs due to which the plaintiffs cannot assert their right against AIYVPHFT, as raised by AIYVPHFT, would be decided in trial. h) The plea taken by AIYVPHFT that there is divesting intellectual property rights which includes copyrights of Master would be examined in trial. i) There is no interim order which the Hon’ble High Court of Delhi has passed on the performance of the Pranic Healing techniques and its imparting in any manner in practice. The parties may infer such prima facie findings as per their understanding on the subject and considering the nature of the work undertaken by them. j) Having not made a truthful statement as to proprietorship of the mark PRANIC HEALING by the plaintiffs, the plaintiffs have secured the registration of the expression PRANIC HEALING from the Registrar of the trade mark without informing about the correct proprietorship of the mark applied for on the date of the application. Privileged and Confidential Page 38 of 39
  • 39. The said act of withholding the information or making incorrect claim of the proprietorship of the mark in legal parlance is termed as committing fraud upon the register. The plaintiffs have secured the registration by making false claim as to proprietorship in the trade mark registration which prima facie vitiates the registration. Thus, the registrations obtained by the plaintiffs for the mark PRANIC HEALING are inconsequential, are not entitled to claim the monopoly of the said words. k) The plaintiffs have failed to make out any prima facie case for the grant of injunction in relation to infringement of trade mark, passing off and the infringement of copyright qua the performance of the Asanas of Pranic Healing under the copyright. The balance of the convenience is of course is in favour of the defendants in absence of the any prima facie case of copyright infringement in relation to pranic healing techniques, concepts or any exercises of Yoga and Asanas and trade mark infringement and irreparable damage shall also ensue to the defendants if the plaintiff is granted the interim injunction in its favour without establishing a prima facie right over the trade mark and copyright. l) AIYVPHFT and other Defendants are free to print, publish any book, printed material, brochures and certificates on the basis of material available in public domain which do not infringe the copyright of above of the Master. m) AIYVPHFT and other defendants are free to perform the Asanas of Pranic Healing or Modern Pranic Healing techniques or impart training, practice, sessions, teachings, conduct workshops, in their respective institutes on Pranic Healing or Modern Pranic Healing of the master without using the literature of the plaintiffs or master as the plaintiffs have failed to establish any prima facie copyright claim over the performance of the art or techniques Pranic Healing be it under the head of compilation as a literary work or as a dramatic work within the meaning of the copyright Act. Privileged and Confidential Page 39 of 39