Introduction
“With the internet, the question of ‘territorial’ jurisdiction gets complicated largely on account of the fact that the internet is borderless.”
A sentiment raised by Justice Muralidhar in 2010 still rings true in 2026 (has perhaps turned more complicated). While the journey of determining jurisdiction has taken several turns since then, it has now reached a new one with Hindustan Unilever Limited v Kwick Living (I) Private Limited.
The suit, filed in the DHC, sought a permanent injunction against the Defendant, Kwick Living, to prevent further broadcasting and publication of allegedly disparaging content on the products of Plaintiff, Hindustan Unilever, under the banner “War on What’s Hidden”. A preliminary objection concerning the jurisdiction of the DHC was raised. On the submission of rounds of arguments, the DHC came to the realization that the jurisprudence surrounding determination of internet jurisdiction has become convoluted which I will elaborate in this blog post. The Single Judge referred the question to a Larger Bench, but in response to an appeal against the Single Judge’s order, a Division Bench has clarified that on the facts of the present matter, the Single Judge has the jurisdiction to hear the matter, over which I will comment briefly. The blog post mainly addresses the question referred to the Larger Bench, i.e., determination of jurisdiction of acts on the internet.
The Confounding Course
The question of jurisdiction principally hinges on Section 20 of the Code of Civil Procedure (“CPC”), but in cases of trademark and copyright, Section 124 of the Trade Marks Act and Section 62 of the Copyright Act come into fold respectively.
Section 20 CPC permits suits to be instituted at the place where the defendant or one of the defendants reside, carry on business or personally work for gain, or where the cause of action arises wholly or in part (cause-of-action oriented). On the other hand, Sections 62 and 134 allow the plaintiff to institute a suit where the plaintiff “actually or voluntarily resides or carries on business or personally works for gain” – making these provisions plaintiff-friendly as it allows them to file suit at other locations.
The question arises how do these two set of provisions play together. The question turns contentious because of the non-obstante clause that Sections 62 and 134 contain – “notwithstanding anything contained in Section 20 of the Code of Civil Procedure”: whether this completely excludes Section 20 or does it still interfere, and if so, how?
In Sanjay Dalia, the issue of proliferation of jurisdiction resulted in the SC adjudicating on this matter. The Court elaborated that Sections 134 and 62 remove the impediment existing under Section 20 that a suit can be filed only where either the defendant resides, or carries on business, or the cause of action arises. The Court interprets the non-obstante clause not as excluding Section 20 CPC but instead as giving an additional forum for the plaintiff (para 20). However, the choice is not unrestricted. Sections 62 or 134 cannot be employed where the principal office and the cause of action are together elsewhere (paras 19-20). This is to address forum shopping by the plaintiff(s).
Following Dalia, the DHC Division Bench in Ultra Home Construction further narrowed the understanding of these provisions. It attempted to put Dalia into four matrices (para 13), which is reproduced below:
| Situation | Principal Office | Branch Office | Cause of Action | Forum |
| 1 | A | C | A | |
| 2 | A | B | A | A |
| 3 | A | B | B | B |
| 4 | A | B | C | A |
The point of contention was the third scenario, that in the event that the location of the subordinate office coincides with that of the cause of action’s, the place of principal office cannot be established as jurisdiction (para 18). In paragraph 47, Dalia states:
“No doubt about it that a suit can be filed by the plaintiff at a place where he is residing or carrying on business or personally works for gain. He need not travel to file a suit to a place where defendant is residing or cause of action wholly or in part arises. However, if the plaintiff is residing or carrying on business etc. at a place where cause of action, wholly or in part, has also arisen, he has to file a suit at that place…” (emphasis supplied)
The last line here does not necessarily imply that the principal office cannot ever be the place of suit, however, Ultra Home concretized that into the rule that only the coinciding place becomes the forum, not otherwise (para 13).
Ultra Home Construction has been later on criticised in Manugraph India Ltd. Though it is a BHC ruling, it recognized that the Explanation of Section 20 CPC cannot be ‘read into’ Sections 134 and 62 (para 33), and held the Ultra Home view to be incorrect (same in Ezeego One Travel).
Later in 2025, in Kohinoor Fields, the DHC expressed “reservations regarding the correctness” of Ultra Home. The Court categorically mentioned that as per Section 134, the plaintiff could sue the defendant at the location of their principal office, and holding otherwise amounts to “re-writing Section 134…which a Court cannot do” (para 20.5).
The reference also talks of Astral Limited. Now, Sanjay Dalia stated, “[the] right to institute suit at…a place has to be read subject to certain restrictions, such as in case plaintiff is residing or carrying on business at a particular place/having its head office and at such place cause of action has also arisen wholly or in part, plaintiff cannot ignore such a place under the guise that he is carrying on business at other far flung places also” (emphasis supplied). However, Dalia does not specifically address a situation where cause of action arises partly in subordinate office, but an implication can be assumed that the principal office will take precedence. To this, Astral allows both – principal and subordinate office – to be considered equally when cause of action arises at both the locations.
The trajectory is therefore striking. We started off with Dalia which sought to constrain a plaintiff’s choice-of-forum, and Ultra Home constrained it further, but progressively, this stringency seems to have loosened, thereby contradicting with the initial positions.
The Addition of Internet Jurisdiction
The aforementioned set of cases attempted to explain the interplay of the three provisions. A specific thread of cases dealt with how could jurisdiction be determined when content available online becomes accessible from anywhere.
The DHC considered this issue in Banyan Tree. Drawing from the frameworks adopted by other jurisdictions (explained here), the case put forth the ‘purposeful availement’ test. It held that mere accessibility cannot allow a court to exercise its jurisdiction (here), instead it needs to be established that: (a) there existed an intention to conclude a commercial transaction with users on the forum; (b) specifically targeted by the defendant; and accompanied by (c) an injury or harm to the plaintiff (para 58).
In WWE, the DHC established the understanding that the ‘purposeful availement’ test is to analyse solely ‘cause of action’, and not ‘carrying on business’ [para 8(a)]. Equating a virtual marketplace to a physical one, the Court adopted the test established in Dhodha House to determine whether a business is construed to be carried on in a particular jurisdiction. Not related to internet-based transaction, in Dhodha House, the Court interpreted that for “carrying on business”, there lies no requirement of physical presence, however, requires: (1) an agent who attends to such business; (2) in the strict sense of the term ‘agent’; and (3) the essential part of the business must take place within the alleged jurisdiction. The third requirement is satisfied when the transaction is completed in the said location (para 21). WWE construed the third requirement to require existence of a website over which a transaction could be concluded. This effectively diluted the Banyan Tree threshold (here; Kohinoor too recognized this in para 19.5), as purposeful targeting of the forum was no longer needed.
From here, the catalogue of cases diverges into two different streams: one, depending on “cause of action” under Section 20(c) CPC, and second, for “carrying on business” under Section 134(2) – this allowed the businesses to follow the second route for a more successful jurisdictional establishment (here).
Further dilution of Banyan took place in Nilesh Girkar where the DHC recognized that subscription services of OTT platforms make them interactive websites, “over which a commercial transaction could be concluded” (para 36), thus, allowing the court to exercise its jurisdiction. The DHC rejected Saket’s Commercial Court’s reasoning and opened a Pandora’s box that mere availability of the streaming services allows for a cause of action to arise in a particular jurisdiction. Surprisingly, while the Commercial Court referred to Banyan Tree, the DHC did not address it at all (!).
Burger King posits that “use” of a mark in the course of trade, could result in a cause of action under Section 20(c) CPC, and once Section 20 jurisdiction is established, there is no requirement of dealing with Section 134. As Justice Bhambhani points out in Kwick, this directly goes against the Dalia reasoning since the latter limits choice of forum while Burger King allows for pursuing the claim in multiple for a where such a use took place. Also, I believe, though Burger King did not concern an online commercial space, but its expansive construction of “use” could allow online use of the mark, wherever accessible, to result in jurisdiction of courts, thereby defeating Dalia’s reasoning of limiting the endless possibilities where suit can take place.
Interestingly enough, with the slew of judgments, in an attempt to accommodate the realities of digital commerce, the jurisprudence has come to a full circle moment – the mischief that Dalia attempted to battle, i.e., proliferation of jurisdiction, is the exact one we are facing today. Though, to much relief, it has been referred to a Larger Bench in the hopes of better clarity.
Thoughts on the DB Order
Before I conclude this post, it is worth closely looking at the DB order too (just a caveat: the DB does not delve into internet jurisdiction). The DB recognizes that Sections 20(a) CPC (carries on business) and 20(c) (cause of action) has been satisfied (para 9), without ever establishing the constituent elements.
My three cents on the order are: first, to establish Section 20(a), it relied on Respondent’s admission that HUL had GST registration in Delhi, and had declared its principal place of business at Naraina Industrial Area. While the latter could establish jurisdiction, GST registration in a particular location independently could not satisfy the requirement under S. 20(a). Second, the erection of hoardings carrying the advertisement campaign led to cause of action arising in Delhi. The phrase “cause of action” refers to the bundle of material facts that are integral to the claim made. While erection could establish jurisdiction, the discomfort here is with the jump, without any defensible reasoning, that the Court makes – the hoarding constitutes a cause of action. Third, to reach this determination, the DHC relied on facts which were not present in the plaint. The DB later asked for an amended plaint to be submitted.
It seems like a not-so-properly reasoned decision, leaving it to the Parties (and us) to plug the gaps.
