The absence of service of summons does not nullify a decree if the defendant had knowledge of the proceedings and could have appeared and answered the claim. An amendment of the plaint may not necessitate fresh summons and notices to be issued to the defendants if the nature of the amendment is not substantive in nature. A belated attempt to set aside a decree may not be permissible if the defendant had knowledge of the proceedings and deliberately or negligently chose to absent themselves.

SANJAY KISHAN KAUL, J.

1. The appellant as plaintiff filed suit for a decree of permanent injunction against the four original defendants restraining them from passing off, rendition of accounts and commencing business under the mark “FLIGHT CENTER” or a mark/trade style deceptively similar to it which would amount to passing off qua the services being provided by the plaintiff and for rendition of accounts. The appellant alleged in the plaint that it is a reputed travel agency in India and had commenced business under the trading style of M/s. Flight Center Travels (P) Ltd. Its trademark/service mark “FLIGHT CENTER” offers various lucrative and affordable holiday packages apart from medical insurance schemes on travel abroad. The latter is in pursuance to its tie up with agencies such as M/s. Bajaj Allianz and ICICI Lombard. The website of the appellant is www.Flight center.co.in, which is a medium through which the services are offered. The appellant was accorded International Air Transport Accreditation (IATA) after fulfilling all norms in the year 1996 which permits it to issue international tickets for passengers travelling overseas on IATA member airlines. The appellant also claims to be an active member of various other travel organizations.

2. The appellant claims that it has sponsored sports events under the trademark/service mark and has, thus, been using the trademark/service mark FLIGHT CENTER in India since the year 1994 on extensive and continuous use and in support thereof filed bills and invoices since the year 1994. The proprietorship of the trademark/service mark is claimed by virtue of priority of adoption.

3. The appellant also claimed that it had also applied for registration of trademark/service mark in Class 39 under application No.1316760 which had been advertised in Trademark Journal No.1328 Supplementary (4) dated 28.2.2005. The revenue turnover commencing from the financial year 1995-1996 to 2004-2005 showing continuous growth to `4.51 crore has been set out.

4. The appellant alleged in the plaint that defendant No.2, M/s. F Cm Travel Solutions is a joint venture between defendant No.3, M/s. Flight Centre Limited, Australia and defendant No.4, M/s. Friends Globe Travels Limited. Defendant No.1 was the CEO of defendant No.2. We may notice here that in the appeal there are only two respondents. Defendant No.3 as respondent No.1 and defendant No.2 as respondent No.2 except referring to it as F Cm Travel Solutions (India) Private Limited. The appellant claims to have come to know about defendant No.3/respondent No.1 through a letter on 26.7.2005 sent by that party to the appellant through fax claiming to be a follow up of the letter dated 27.4.2005 alleged to have been sent to the appellant earlier, the receipt of which the appellant denied. In the said letter unsubstantiated allegations of passing off were made against the appellant qua the same trademark/service mark. The website of the plaintiff www.flightcenter.co.in was stated to be similarly designed to the website of defendant No.3/respondent No.1 www.flightcentre.com, an aspect denied by the appellant. It was alleged that the travel agency in India has been acquired by defendant No.3/respondent No.1. The aspect of joint venture came to the knowledge of the appellant from a report in the news daily Hindustan Times dated 5.3.2005. The appellant claimed that their business had commenced in India and, thus, a restraint against passing off was sought as it was likely to cause irreparable damage and injury to the appellant.

5. The order sheet of CS (OS) No.1193/2005 shows that summons in the suit and notice in the interim application were issued on 30.8.2005 for 5.10.2005 where after the matter was adjourned for settlement. The defendants in the suit were represented through a counsel from the inception. Since no settlement was arrived at, on 11.5.2006 they were directed to file the written statement which they failed to file. None appeare