Flight Centre Travels P. Ltd. Vs Rahul Nath and Ors

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Page 1 Wednesday, June 21, 2023

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2012 SCC OnLine Del 3080 : (2012) 190 DLT 367 : (2012) 116
AIC 780 : (2012) 3 Civ LT 97 : (2012) 50 PTC 517
In the High Court of Delhi

(BEFORE MANMOHAN SINGH, J.)
Flight Centre Travels P. Ltd. .…. Plaintiff

Ms. Sneha Jain, Adv.
Versus
Rahul Nath and Ors. .…. Defendants
Mr. Rajiv Dutta, Sr. Adv. with Ms. Ritu Bhall and Ms. Misha, Advs. for
D-3 and 4.
I.A. No. 9047/2011; I.A. No. 9048/2011; I.A. No. 9050/2011 and
I.A. No. 9055/2011 in CS (OS) No. 1193/2005
Decided on May 25, 2012
The Judgment of the Court was delivered by
MANMOHAN SINGH, J.:— By this order, I propose to decide the four
applications filed by the defendants No. 3 and 4, the details of which
are as under:
a. I.A. No. 9047/2011 filed by the defendant No. 3 under Order IX,
Rule 12 read with Section 151 CPC for setting aside ex-parte
judgment and decree dated 10.09.2010.
b. I.A. No. 9050/2011 filed by the defendant No. 3 under Section 5
of the Limitation Act, 1963 read with Section 151 CPC for
condonation of delay in filing the application under Order IX, Rule
13 CPC.
c. I.A. No. 9048/2011 filed by the defendant No. 4 under Order IX,
Rule 12 read with Section 151 CPC for setting aside ex-parte
judgment and decree dated 10.09.2010.
d. I.A. No. 9055/2011 filed by the defendant No. 4 under Section 5
of the Limitation Act, 1963 read with Section 151 CPC for
condonation of delay in filing the application under Order IX, Rule
13 CPC.
2. The facts of the case are that the plaintiff filed the present suit for
permanent injunction, restraining the defendants from infringing the
trade mark of the plaintiff, passing off and rendition of accounts etc.
3. When the matter was listed first time before Court on 30.08.2005,
the summons in the suit and notice in the application were issued to
the defendants. On 05.10.2005 counsel for the plaintiff as well as
counsel for the defendants No. 2 to 4 appeared and prayed for an
adjournment on the ground that the matter may be settled and on their
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request, the matter was adjourned to 30.01.2006. On 30.01.2006,

more time was sought by the counsel for the parties for getting the
matter settled. On 11.05.2006, counsel for the defendants stated that
she had no instructions with regard to settlement and the defendants
were directed to file the written statement and reply. Thereafter,
nobody appeared on behalf of the defendants on 19.07.2006,
18.08.2006 and 25.08.2006. Therefore, the defendants were proceeded
ex-parte on 25.05.2006 and the plaintiff led the ex-parte evidence by
filing the affidavit of Mr. Ajay Gupta.
4. On 07.12.2007, an application, being I.A. No. 14074/2007, under
Order VI, Rule 17 CPC was filed by the plaintiff for amendment of the
plaint, in view of the changed circumstances as the trade mark ‘Flight
Center’, which was being used by the plaintiff, was registered vide
Registration Certificate dated 18.08.2006. The application of the
plaintiff was allowed. By order dated 12.05.2008, the amended affidavit
of Mr. Ajay Gupta and the registration certificate were taken on record.
5. Vide ex-parte judgment dated 10.09.2010, the suit of the plaintiff
was partly decreed and the defendants were restrained from using the
trade mark ‘Flight Centre’ and or using the mark/trading style ‘Flight
Centre’ or any deceptive variant in any manner whatsoever in relation
to travel and tour services. So far as the rendition of accounts and the
payment of damages were concerned, the plaintiff was not able to
prove the same.
6. The defendants No. 3 and 4 have filed the present applications
under Order IX Rule 13 CPC for setting aside the ex-parte judgment
and decree dated 10.09.2010 along with the applications for
condonation of delay in the filing the same.
7. As far as limitation is concerned, it is stated by the defendants
No. 3 and 4 that in terms of Article 123 of the Limitation Act, 1963, as
no summons were properly served on the applicants, the limitation
would run from the date of the knowledge of the decree, which came to
the knowledge of the applicants only on 18.04.2011.
8. As per the applicants, there is two days delay in filing the
applications under Order IX, Rule 13 CPC. The same is condoned for the
reasons explained in the application.
9. The plaintiff's counsel referred the second proviso to Order IX,
Rule 13 CPC clearly provides that a decree may not be set aside on a
mere irregularity in service of summons, if, it can otherwise be shown
that the defendant had sufficient knowledge of the date of hearing and
the proceedings. It is submitted that it is not open to the applicants to
take the technical plea of alleged non-service of summons, when
admittedly they had knowledge of the proceedings and also knowledge
of the date of hearing. It is submitted that in any event lack of due
diligence and care on the part of the applicants and their counsel who
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represented them during the pendency of the suit shall not be allowed
to cause grave injustice and prejudice to the non-applicant. It is
submitted that if, the applicants are granted the relief claimed by them
then, it will give a free rein to the defendants to have a decree set-
aside on a mere technical ground of non-service.
10. It is also contended by the plaintiff that while the defendants
No. 1, 2 and 4 had been served with summons by ordinary process on
14.09.2005 and by registered AD on 27.09.2005, the service report of
defendant No. 3 was awaited. Counsel for the defendants entered
appearance on its behalf on three dates viz 05.10.2005, 30.01.2006
and 11.05.2006. On the first two occasions, the counsel for both the
parties had informed the Court that parties were attempting to settle
the matter. The fact that settlement talks were on, is further borne out
by the e-mails exchanged between the counsels for the parties. On
11.05.2006, when no settlement was forthcoming, the counsel for the
defendants sought time to file its reply to the application under Order
XXXIX, Rule 1 and 2 CPC. The Court also directed the defendants to file
written statement.
11. Plaintiff has also challenged the validity of additional affidavit
filed on 18.04.2012 by stating that the advocates Mr. N. Ganpathy, Mr.
Rohit Puri and Ms. Natasha, who ‘purportedly’ entered appearance in a
‘casual manner’, on 05.10.2005, 30.01.2005 or 11.05.2006, were not
authorized to do so, the applicant chose not to seek any explanation
from the concerned advocates for entering appearance on its behalf
before the High Court. It is alleged by the plaintiff that if, the
allegations made in the pleadings and the additional affidavit are to be
believed for setting aside the decree, then, it will tantamount to holding
that the concerned advocates who appeared before the Court on the
dates were guilty of appearing in the matter without instructions.
12. They are same the counsels representing defendant No. 3 in the
Share Purchase Agreements and who have filed application for
registration of the defendant No. 3's mark FLIGHT SHOP in 2007.
13. Following decisions are referred to by the plaintiff's counsel:
1. Sunil Poddar v. Union Bank of India; (2008) 2 SCC 326 : AIR
2008 SC 1006.
2. Sri Nath Agrawal v. Sri Nath, AIR 1981 All 400.
14. It has been held by a Division Bench of the Supreme Court in
Sunil Poddar (supra), that if, the Court is convinced that the defendant
had otherwise knowledge of the proceedings and he could have
appeared and answered the plaintiff's claim, he cannot put forward a
ground of non-service of summons for setting aside ex-parte order
passed against him by invoking Order IX Rule XIII of the Code.
15. The Allahabad High Court has also held in Sri Nath Agrawal
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(supra) that the summons is issued by the court after institution of a

suit requiring the defendant to appear before it on a particular date
mentioned therein … is based on the maxim audi alteram partem i.e.,
hear the other side or no one should be condemned unheard. The policy
appears to be that some method should be evolved to inform the
defending party about the claim made by the plaintiff and the date
fixed for the appearance of the defending party. It was further held that
it is significant to note that in Sub-clause (1) of Rule 1 (of Order V) the
word ‘may’ has been used instead of the word ‘shall’. It is because it is
not necessary to issue summons in all cases… A proviso now added in
1976 to Order V, Rule 1, CPC as proviso to the existing proviso also
shows that when a defendant appears after the summons has already
been issued, he can be directed by the Court to file his written
statement on the date of his appearance. This provision also authorizes
the Court to dispense with the service of the summons. The entire
scheme of the CPC in this regard aims at only one thing to obtain the
presence of the defendant to a claim and to provide full information
about the nature of the claim made against him and also of the date
when he is supposed to appear in Court to answer the claim. If the
defendant party appears before the Court after the registration of the
suit, and he is informed about the nature of the claim and the date
fixed for reply thereto, it must be deemed that the defendant has
waived the right to have a summons served on him. This can be seen
from the record and also from the subsequent conduct of that party.
The same legal position will arise when a party suo motu appears
before the Court before actual service of summons either himself or
through the counsel. In such a case, if some date is fixed for filing the
written statement and for hearing of the suit, it would rather be too
technical a view, to take that service of summons in the ordinary course
were still to be insisted upon and to hold that further proceedings in
the suit would take place only thereafter. This is neither the purpose
nor the way to look at various provisions of the Civil P.C. … It is not
possible for me to countenance a situation in which the defendant
though present in the Court and on all dates fixed therein, is still
allowed to insist that unless proper summons be served upon him he
should be deemed to be unaware of the proceeding.”
16. It has been informed by the counsel for the plaintiff that the
Allahabad High Court judgment has been approved in so far as question
of knowledge is concerned by the Apex Court in Siraj Ahmad Siddique
v. Shri Prem Nath Kapoor; (1993) 4 SCC 406, paras 14 and 15, and
Advaita Nand v. Judge, Small Causes Court, Meerut; (1995) 3 SCC 407,
paras 11 and 12.
17. It is stated by the plaintiff that applying the legal position laid
down in Sri Nath Agrawal (Supra), that when a party suo motu appears
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before the Court before actual service of summons either himself or

through the counsel… if some date is fixed for filing the written
statement and for hearing of the suit it would rather be too technical a
view to take that service of summons in the ordinary course were still
to be insisted upon and to hold that further proceedings in the suit
would take place only thereafter. This is neither the purpose nor the
way to look at various provisions of the CPC, the applicants are not
entitled to have the decree dated 10.09.2010 set aside on a mere
technical ground that of the alleged non-service of summons.
18. It is argued by the plaintiff's counsel that despite the fact that
the defendant No. 3, had knowledge of the proceedings, he also had
knowledge of the date of hearing of the suit and had entered
appearance through counsels on three dates and had even exchanged e
-mails, and attended meetings with the counsel for the non-applicant
regarding settlement of the matter. Therefore, the applications are
totally misconceived and liable to be dismissed with costs.
19. The main contention of the defendants No. 3 and 4 in their
applications is that the summons in the suit were not served upon
them at the time of institution of the suit and no notice was issued or
served on them at the time of the amendment of the suit in terms of
the provision of the Code of Civil Procedure, 1908. It has been
specifically mentioned by the defendant No. 4 in its application that no
specific service has been effected upon defendant No. 4 as it was only
defendant No. 1 who had received the summons on behalf of the
defendant No. 4, the then CEO of the defendant No. 4. The said
defendant No. 1 never informed about the summons to the Board of the
defendant No. 4.
20. It is an admitted position and matter of record that:
(a) There is service of summons served on defendant No. 3.
Defendant No. 4 has not been served personally. As per defendant
No. 4, defendant No. 1 has received the summons on its behalf
who had not informed about the same.
(b) While suit was pending, the plaintiff sought an amendment, even
then no fresh notice/summons were issued to the defendants
including the defendants No. 3 & 4 at the time of the amendment
of the plaint.
(c) There is no Vakalatnama/Memo of Appearance or any letter of
authority on behalf of either the defendants No. 3 & 4 on record.
21. I have heard the learned counsel for the parties and the record
of the case has also been examined.
22. As far as service of summons are concerned, as per record,
report reads as under:
i) Defendant No. 1, Rahul Nath was served on 14.09.1995 for the
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next date i.e. 5.10.2005.

ii) Defendant No. 2 M/s. FCm Travels Solutions, JC-43 Khirki Extn.,
Malviya Nagar, New Delhi was also served on 14.9.2005 through
defendant No. 1 at the same address as of defendant No. 1.
iii) Defendant No. 4 M/s. Friends Globe Travels Ltd. was served on
14.09.2005 through Rahul Nath, defendant No. 1.
iv) Defendant No. 3, whose address is at Australia, service report
was awaited.
23. The main contention raised by the plaintiff is that the said
defendants had knowledge of the suit on account of having held a
meeting with the plaintiff and plaintiff's counsel after the filing of the
suit. Further, the plaintiff places reliance on order sheets which refers
to defendants' being represented by some counsels during initial
hearings and copies of e-mails exchanged have been filed, for which
there is no dispute between the parties.
24. Under Order V, Rule 2 CPC, it is a mandatory requirement of law
that a copy of the summons along with the plaint and documents filed
therein are served on the defendant. This proposition was stated in a
recent judgment of Supreme Court of India in Nahar Enterprises v.
Hyderabad Allwyn Ltd., (2007) 9 SCC 466 as follows:
“When a summons is sent calling upon a defendant to appear in
the court and file his written statement, it is obligatory on the part of
the court to send a copy of the plaint and other documents
appended thereto, in terms of Order 5 Rule 2 CPC.
…The learned Judge did not address itself the question as to how
a defendant, in absence of a copy of the plaint and other documents,
would be able to file his written statement. The court, furthermore,
in our opinion, committed a manifest error insofar as it failed to take
into consideration that the summons having been served upon the
appellant after the date fixed for his appearance, it was obligatory on
its part to fix another date for his appearance and filing written
statement and direct the plaintiff to take steps for service of fresh
summons. This legal position is explicit in view of the provisions of
Order 9 Rule 6(1)(c) CPC….
The Court, therefore, committed an illegality in dismissing the
application for setting aside the ex parte decree. It was a fit case
where the court should have exercised its jurisdiction under Order 9
Rule 13 CPC.”
25. It is a settled proposition of law that if, under Order IX, Rule 13
CXPC, the defendant is able to show that summons were not duly
served on him, then the ex parte decree is liable to be set-aside. The
question of defendant's knowledge or no knowledge of the suit is not
relevant for the purpose of Order IX, Rule 13 CPC application seeking
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setting-aside of ex parte decree on the grounds of non-service of

summons. In this regard, the following judgments are referred by the
learned counsel appearing on behalf of defendants No. 3 & 4:—
(i) Ravi Bhushan Seth v. Meena Seth, reported in 2002 (50) BLJR
331
The High Court of Jharkhand was considering an application for
setting aside of ex-parte decree on the grounds of non-service of
summons. The plaintiff in opposition claimed that the defendant had
knowledge of the suit otherwise. Rejecting the contention, the High
Court emphasized the importance of proper compliance with the
provisions of the CPC relating to service of summons and observed
that substituted service could be ordered only when there was a
reason to believe that the defendant was deliberately keeping out of
the way for the purposes of the summons. The application for setting
aside of ex-parte decree was accordingly allowed.
(ii) Sambhunath Das v. Sirish Ch. Mohapatra, reported in AIR 1985
Orissa 215
The High Court of Orissa, while hearing a revision petition arising
out of an application seeking setting aside of ex-parte decree,
observed that on record, there was no proof of proper service having
been effected on the defendant, and further refused to disallow the
application for setting aside of exparte decree on the ground that the
defendant could be imputed with the knowledge of pendency of the
final decree proceedings by virtue of having participated in
Miscellaneious Case. Rejecting the contention, the High Court
observed:
“…It must be remembered that the Civil P.C. embodies
provisions conforming to the rules of natural justice and no order
adverse to a party can be passed without notice to him. It cannot
therefore, be held that the petitioner participated in the Misc.
Case so as to impute his knowledge of the final decree
proceeding. In this view of the matter the finding of the Courts
below that the petitioner having participated in Misc. Case No. 45
of 1976 had knowledge of the final decree proceeding cannot be
sustained.”
(iii) Radha Ballav Thakur v. Dayal Chand Bose, reported in AIR 1962
Orissa 15
In this judgment, the High Court of Orissa, considered the
application seeking setting aside of ex-parte decree in context of an
identical proviso to O. IX, R. 13 under the State Amendment as the
proviso to O. IX, R. 13 after the 1976 amendment to the CPC (i.e. to
the effect that an exparte decree shall not be set aside merely on the
ground of irregularity in service of summons, if the court is satisfied
that the defendant knew of the date of hearing in sufficient time to
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enable him to appear and answer the plaintiff's claim), and held as
follows:
“It is, however, clear that the provisions are to the effect that,
if the defendant is able to show that the summons were not duly
served on him, it is mandatory that the decree should be set
aside; the question of knowledge or no knowledge is not relevant
for the purpose of Order 9, Rule 13.
26. As far as the defendant No. 3 is concerned, nothing is on record
to show that summons have been served upon them. As per record,
service report is awaited except there was appearance recorded in Court
by the counsel on behalf of defendant No. 3, otherwise, he had
knowledge of the suit, which appears from the e-mails exchanged
between the parties and orders passed by the Court for settlement, if
any. But, the fact of the matter is that there is no service of summons
and vakalatnama on its behalf. Additional affidavit of David Smith,
Consultant and Power of Attorney Holder of the defendant No. 3 has
filed his affidavit. Para 4 to 8 of the affidavit reads as under:
“4. I state that to the best of my knowledge based on the record
of Defendant No. 3, no lawyer was authorized by Defendant No. 3 to
appear on behalf of the Defendant No. 3 before this Court in the
present proceedings. This is further evidenced from the fact that
there is no Vakalatnama/Memo of Appearance or any other proof of
authority to appear on behalf of the Defendant No. 3 which has been
filed on record of the Hon'ble Court. Any appearance on behalf of
Defendant No. 3 in the records of this Hon'ble Court, including that
on 05th October, 2005 when purportedly a lawyer is said to have
represented Defendant Nos. 2-4, ex facie appears to be inaccurate
recorded.
5. I state that to the best of my knowledge no lawyer was
authorized to appear on behalf of the Defendant No. 3 on 5th
October, 2005 or at any stage prior or later during the suit
proceedings. The Defendant No. 3 became aware of the proceedings
only after passing of the decree by way of the legal notice dated 13th
April, 2011 served upon by the counsel for the plaintiff on the
Defendant No. 3 herein.
6. In aforesaid context, I wish to emphasize herein that the
Defendant No. 3 is seeking setting aside of the ex-parte decree to
protect is valuable rights over is well-known, longstanding and
established trade mark FLIGHT CENTRE. The Defendant No. 3 is an
internationally well-known travel company that has its business
spread over several countries and continents.
7. The Defendant No. 3 is the largest traditional high street travel
agent in Australia carrying on its business since 1981, under the
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trade mark/name Flight Centre. The Defendant No. 3 has an

extensive global footprint of stores, creating an impressive
distribution network for travel suppliers (airlines, hotels, car rentals,
travel insurance and foreign currency requirements). The Defendant
No. 3 boasts of more than 2000 shops and business in 11 countries
including Australia, New Zealand, USA, Canada, UK, South Africa,
Hong Kong, India, China, Singapore and Dubai. In addition the
company's corporate travel management network, FCm Travel
Solutions extends to more than 40 other countries through strategic
licensing agreements with independent local operators.
Internationally, the company employs about 13000 consultants and
support staff.
8. In connection with its reputed and well-established business
and services, the Defendant No. 3 adopted the trade mark/name
FLIGHT CENTRE in 1981 and has been using the same since then all
over the world continuously and without interruption as its flagship
brand and an integral part of its trade and corporate name. As a
result of longstanding and extensive use on a global scale, the
Defendant No. 3 has earned substantial goodwill and reputation in
the trade mark/name FLIGHT CENTRE and the same is associated
with its business and services worldwide. Defendant No. 3 has prior
proprietary rights and is the first, honest and bona fide adopter and
the true owner of the trade mark/name FLIGHT CENTRE, with its use
being several years prior to that claimed by the plaintiff in respect of
its alleged business, and is known universally by the said
mark/name. The Plaintiff to the contrary is a small player even in
Indian market with an admitted turnover of only about Rs. 4.51
crores as against the Total Transaction Value turnover of AUD 12.2
billion of the Defendant No. 3 as recorded in the previous financial
year. Contrary to the claims of the plaintiff, it is in fact the plaintiff
which has usurped the trade mark/name of the Defendant No. 3 and
is seeking to pass off its services as part of the Defendant No. 3's
worldwide network of business of travel agents.”
27. In the present case, admittedly defendant No. 3 is the main
defendant who is claiming the ownership rights of the trade mark in
question being prior user of brand name FLIGHT CENTRE. It is
mentioned by the defendant No. 3 that at the time of institution of the
suit, defendant No. 1 was an independent corporate legal entity and an
agent of the defendant No. 3 and defendant No. 1 who received the
summons on behalf of defendant No. 4 had no interest in protecting the
rights and interest of defendant No. 3.
28. As per averments made in the plaint, defendant No. 2 is a joint
venture of defendant No. 3, defendant No. 1 is CEO of defendant No. 2
and they are carrying on business in the address given at New Delhi.
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29. It is also the matter of record that no fresh notice was issued to
the defendants at the time of filing and allowing the amendment to the
plaint. It is settled position of law that issuance of fresh notice at the
time of amendment of plaint is mandatory and any amendment allowed
without allowing an opportunity to the opposite party to contest the
same is negation of justice and illegal.
30. This principle has been affirmed by the Supreme Court of India
in a three Judge Bench decision in Ramnik Vallabhdas Madhvani v.
Taraben Pravinlal Madhvani, reported in (2004) 1 SCC 497 : AIR 2004
SC 1084 in the following manner:—
“Procedural aspect demands that on the amendment being
allowed, the opposite party has to be given a chance to respond to
the amended pleading and if the plea is contested, the court has to
give its decision thereon. Not affording an opportunity to the
contesting party to contest a plea, which has been allowed to be
amended, is negation of justice. In the present case the fact remains
that the amendment application of the plaintiff was allowed vide
order dated 16-12-1985 when on the same date the appeal against
the preliminary decree was disposed of and rate of interest going
even beyond what was permitted by way of amendment, was
awarded. The decree which was passed was for much more than
what the amendment allowed. The plaintiff had only sought leave to
amend the rate of interest as originally pleaded as 6% per annum to
13% per annum. This amendment was allowed. But in the decree
the Court allowed interest to be charged at the prevailing bank rate
of interest charged by nationalised banks from time to time on
commercial transactions during the relevant period. Thus the High
Court while allowing the prayer for amendment simultaneously
passed a decree not only based on the amended plea, but for
exceeding it. No amended pleadings were filed. No opportunity was
given to the defendants to contest the plea. A bare reading of Order
6 Rule 17 of the Code of Civil Procedure shows that amendment is of
a plea contained in the pleadings and the object of allowing the
amendment of pleadings is to determine the real questions in
controversy between the parties. This means that the parties have to
be given a chance to contest the questions in controversy and the
court has to give its decision ultimately on such contested issues.
This procedure was not followed in the present case. The procedure
followed is wholly illegal.
31. In the following decision, it is held that even if a party is ex
parte, and thereafter, if an amendment application is made, then that
must be served to the party concerned and if the party remains absent
despite notice, then the Court applying its discretion may pass an
appropriate order. Reliance is placed on the following judgment:—
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Jharkhand Mines and Industries Ltd. v. Nand Kishore Prasad,

reported in AIR 1969 Patna 228
The High Court of Patna while dealing with the effect of passing
of an ex-parte decree without service of notice at the time of the
amendment of the suit, held as follows:
“It was incumbent on the Court to see to it that the notice of
the amended plaint was served on the defendants of that suit.
The Code of Civil Procedure, in my opinion, casts a duty on the
court to see that the defendants are made aware of any
amendment in the plaint, whether the amendment be in regard
to the addition of parties or in regard to the contents thereof.
Unfortunately, the learned Subordinate Judge, who passed the
ex parte decree, did not direct any notices to be issued to the
defendants with a view to make them aware about the
amendment of the plaint. He should have issued such notices
and awaited the service report, and, if the defendants so
desired, granted them an opportunity to file a written
statement before putting up the suit for hearing and disposal,
whether ex parte or otherwise. On this ground alone, I am of
the opinion that the ex parte decree is vitiated and must be set
aside.”
32. Admittedly, no notice of amendment application was issued to
defendants No. 3 & 4, nor served upon them, nor any appropriate order
was passed in this regard.
33. As already mentioned, there is no Vakalatnama, Memo of
Appearance or Authority Letter on behalf of defendants No. 3 & 4 on
record. This is especially more so, in view of the fact that defendant No.
3 has already placed on record an additional affidavit dated 18.04.2012
stating on oath that no counsel was instructed to appear on behalf of
defendant No. 3 in the present suit proceedings.
34. The judgment of the Supreme Court of India in Sunil Poddar v.
Union Bank of India, (supra) is clearly distinguishable from the present
case. The said case involved a matter in which the defendants were
originally served with the summons in the suit and no notice was
served on them after the suit was transferred to the Debts Recovery
Tribunal. The ratio of the said judgment is not attracted in the present
case, where no summons were served on defendant No. 3 at all.
Moreover, the extracted parts of the judgment needs to be read in its
context, which relates to irregularity in service and not the case of no
service of summons at all.
35. The judgment of the High Court of Allahabad in Ram Adhar v.
Rama Kirat Tiwari, reported in AIR 1981 All 405 cited by the plaintiff,
has no relevance or application to the present case. The said judgment
was in context of the defendants in the proceedings having entered
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appearance before service of summons. In such circumstances, the

High Court naturally held that there was no need for service of the
summons.
36. There is no force in the submission of the plaintiff's counsel that
decree be not set aside if, it is a case of irregularity in the service of
summons. The present case does not fall in that category. As a matter
of fact, it is a case of non-service of summons. Thus, the contentions of
the plaintiff's counsel cannot be accepted.
37. In view of the aforesaid factual and legal position, the
applications for setting-aside the ex parte decree filed by defendants
No. 3 & 4 are liable to be allowed and the defendants No. 3 & 4 be
granted an opportunity to contest the suit on merits, otherwise, it will
result in grave injustice to the said defendant Nos. 3 and 4.
38. In view of the above, ex parte judgment and decree dated
10.09.2010 is set aside against the defendants No. 3 and 4.
39. All abovementioned applications are disposed of.
CS (OS) No. 1193/2005
40. Defendants No. 3 and 4 are granted four weeks time to file
written statement with an advance copy to the plaintiff who may file
replication within four weeks thereafter. List on 13.08.2012.
———
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Flight Centre Travels P. Ltd. Vs Rahul Nath and Ors

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SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.

Page 1 Wednesday, June 21, 2023

In the High Court of Delhi

Flight Centre Travels P. Ltd. .…. Plaintiff

request, the matter was adjourned to 30.01.2006. On 30.01.2006,

(supra) that the summons is issued by the court after institution of a

before the Court before actual service of summons either himself or

next date i.e. 5.10.2005.

setting-aside of ex parte decree on the grounds of non-service of

trade mark/name Flight Centre. The Defendant No. 3 has an

Jharkhand Mines and Industries Ltd. v. Nand Kishore Prasad,

appearance before service of summons. In such circumstances, the

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