Critique: ABD Maestro v. Great Galleon — 15 Reasons the Judgment Is Erroneous

In a High Court, an Hon'ble Single Judge must follow a ruling of an Hon'ble Division Bench. If the Hon'ble Judge thinks the ruling is wrong, the only proper step is to send the question to a larger Bench. This judgment takes a third route. (“Per incuriam” means a ruling given in ignorance of a binding law or precedent; later courts need not follow such a ruling.) For most of these rulings, it says some case or point “was not pointed out” to the Hon'ble Division Bench, or was “not noticed” by it, and that the ruling therefore “may not be binding”, is “not treated to be binding precedent”, or does “not constitute binding precedent”. See the 13 Hon'ble Division Bench rulings and the exact words used for each (click to find out the exact reason for each departure, judgment-wise).

The Maestro judgment does not use the words “per incuriam”. But treating a ruling as not binding because some case or point “was not pointed out” to the Bench is the per incuriam rule in substance, and that is what the Supreme Court addressed.

Why this matters. The Supreme Court has said an Hon'ble Judge cannot use that label simply because some argument was not made. Para 110 mixes up an argument that was not made with an issue that was not decided. Whether offering goods or services through an interactive online platform reachable from Delhi amounts to “carrying on business” in Delhi was the very issue Kohinoor, Raju Kumar, Sauss and Adyar Gate decided. An Hon'ble Single Judge who disagrees with them can only refer the question, and another Hon'ble Judge of the Court (in HUL v Kwick Living) had already done so.

When this case was decided, three of the questions it answers had already been referred to a larger Bench of the High Court (HUL v Kwick Living, reference order, CS(COMM) 904/2026, 25.08.2026, para 53). A “reference” is an order asking a larger Bench to settle a question on which rulings conflict. An Hon'ble Judge in that position might wait. The Maestro judgment explains why it went ahead: in Ashok Sadarangani, the Supreme Court said a pending reference does not freeze other cases. That is right. But the same passage adds that, until the larger Bench decides, the existing rulings “continue to hold the field”: they must still be followed. The Maestro judgment quotes that very line, and then refuses to follow them.

Those existing rulings, all of Hon'ble Division Benches of the same Court, had held, in short:

• WWE v Reshma Collection (FAO(OS) 506/2013, 15.10.2014), para 24: a plaintiff whose own website concludes sales with customers in Delhi is, “to a certain extent, carrying on business at Delhi”.
• Kohinoor Seed Fields v Veda Seed Sciences (FAO(OS)(COMM) 66/2025, 03.12.2025): the WWE principle “would equally apply to carrying on a business by the defendant for the purpose of Section 20(a)” (para 19.6); registration of the mark in Delhi “unquestionably constitutes not just a part, but an indispensable part of the cause of action” (para 17.8); and availability of the infringing goods “across e-commerce websites, at Delhi” is part of the cause of action (para 20.3).
• Raju Kumar v Vinod Sah (FAO(COMM) 260/2025, 13.01.2026), para 20: “every virtual platform over which the defendant's goods or services would be available operates as a brick and mortar store present in every location where that website is accessible.”
• Sauss Home Products v Reckitt Benckiser (FAO(OS)(COMM) 145/2025, 07.02.2026), paras 61 and 62: as the appellant's product was available on the IndiaMart platform, “it could not be said that the appellant was not carrying on business within the jurisdiction of this Court.”
• ITC v Adyar Gate Hotels (FAO(OS)(COMM) 207/2025, 01.07.2026), para 98: “interactive accessibility is the key ... if it is possible to conclude a commercial transaction over the website, territorial jurisdiction would prima facie exist.”
• Tata Sons v Hakunamatata Tata Founders (FAO(OS)(COMM) 62/2022, 19.09.2022): “targeting” includes the “ability of the customers to undertake a commercial transaction on a website within a particular geography” (para 20); and “Mere looming presence of a website in a geography and ability of the customers therein to access the website is sufficient, in a given case” (para 22).
• Allied Blenders v R.K. Distillery (FAO(OS) 251/2016, 28.02.2017), para 21: the apprehension of a launch in Delhi, “on a demurrer, would constitute cause of action or at least a part of the cause of action”; and Allied Blenders v Prag Distillery (FAO(OS) 49/2017, 01.03.2017), para 8, to the same effect.
• Horlicks v Heinz India (FAO(OS) 86 and 87/2009, 23.10.2009), para 92(iii): “The principle of forum non conveniens does not apply to civil suits in India which are governed by the said Code”.
• RSPL v Mukesh Sharma (FAO(OS) 145/2016, 03.08.2016), para 10, and Chandra Kishore Chaurasia v R A Perfumery Works (FAO(COMM) 128/2021, 27.10.2022), para 8: an objection to territorial jurisdiction under Order VII Rule 10 “is to be decided on a demurrer, that is, by accepting all statements made in the plaint to be true” (Chaurasia).
• Hindustan Unilever v Kwick Living (FAO(OS)(COMM) 231/2026, 02.09.2026), para 9: on the admitted facts that the defendant's hoardings were put up in Delhi and that it had declared a principal place of business in Delhi to the GST authorities, “the conditions of Section 20(a) as well as 20(c) of CPC are duly satisfied in this case.”

See all 13, and the exact words the Maestro judgment used to depart from each.

Ashok Sadarangani was a petition to the Supreme Court to quash a criminal case after a settlement. The petitioners relied on three earlier rulings (B.S. Joshi, Nikhil Merchant and Manoj Sharma) whose correctness had been referred to a larger Bench in Gian Singh (para 23). The Supreme Court was asked to wait for that reference, and refused.

Why this matters. The case the Maestro judgment leans on allowed it to decide, but only on the footing that the existing Hon'ble Division Bench rulings stay binding. Instead, WWE, Kohinoor, and the Hon'ble Division Benches that applied WWE (Raju Kumar, Sauss, Adyar Gate) were not followed, though they are the rulings on the very questions referred at para 53.3. (Horlicks, RSPL, Chaurasia and the two Allied Blenders rulings are outside the reference; for them the ordinary rule in the previous error applies, with even more force.) The Supreme Court followed the precedents under reference; this judgment did not.

Under the Supreme Court's decision in Dhodha House (Supreme Court, 15.12.2005), a company “carries on business” in a place only if an essential part of its business happens there. In WWE, an Hon'ble Division Bench held that a plaintiff whose website concluded sales with customers in Delhi was, “to a certain extent, carrying on business at Delhi” for the special trade mark and copyright provisions. The Maestro judgment departs from WWE on two grounds: that it ignores, and is “in the teeth of”, Dhodha House; and that it is “irreconcilable” with two later rulings, Sanjay Dalia and Ultra Home. Neither ground survives the record, or the Maestro judgment's own reasoning.

Why this matters. On the first ground, the Maestro judgment's own para 20 accepts that WWE noticed Dhodha House, and WWE extracted the very Dhodha passages it is said to have ignored, then framed and answered the “essential part” question in Dhodha's own words. The Maestro judgment may think WWE reached the wrong answer, but that is a disagreement about how an Hon'ble Division Bench applied a Supreme Court ruling, not ignorance of it. On the second ground, the Maestro judgment calls WWE “irreconcilable” (para 118(a)), but its own reasoning reconciles it: it keeps WWE alive for one situation (para 80), and fits WWE's “deemed stores” into the branch-office rule from Sanjay Dalia and Ultra Home (para 81). Narrowing a ruling by reading it with later ones is reconciling it; and the four later Hon'ble Division Benches (Kohinoor, Raju Kumar, Sauss and Adyar Gate), all decided after Sanjay Dalia and Ultra Home, applied WWE; Kohinoor and Adyar Gate cite Ultra Home by name. A ruling that later Hon'ble Division Benches have applied, and that the Maestro judgment itself partly preserves, is not one an Hon'ble Single Judge can declare to no longer “govern the issue”. If the Hon'ble Judge thought WWE should be narrowed, the course was a reference, and one was already pending.

Kohinoor, Adyar Gate and Raju Kumar are later Hon'ble Division Bench rulings that followed WWE. Para 103 says Kohinoor is not binding because two things were “not pointed out”: that “WWE on facts may not be applicable” (WWE concerned the plaintiff's own website; Kohinoor concerned goods listed by others on third-party marketplaces), and that “WWE was and is no longer the authority holding the field” (because of Ultra Home and Sanjay Dalia). Both were before the Bench. Kohinoor heard and answered the first, and the passages the Maestro judgment itself quotes show the Benches knew of Ultra Home.

Why this matters. These Benches knew the cases and took a different view. That is disagreement, not ignorance, and an Hon'ble Single Judge cannot overrule an Hon'ble Division Bench for disagreeing.

Why this matters. Whether s.20 of the Code survives the merger doctrine decides whether a plaintiff can still sue where the defendant is. The Supreme Court's own words can be read either way, and the question was already before a larger Bench, so the right course was to leave it alone. The Maestro judgment does neither: it disclaims a finding and then gives one. The finding rests on para 13 of the Hon'ble Division Bench ruling, spoken where no s.20 option pointed elsewhere, read (at para 252) as showing the Supreme Court's “intent”, when the Supreme Court dismissed the appeals for “the aforesaid reasons mentioned by us” (para 53).

Forum non conveniens lets a court refuse a case because another court would be more convenient. In Horlicks, the plaintiffs had filed civil suits for disparagement in Delhi, and the Hon'ble Single Judge returned the plaints because the Bombay High Court was the more convenient court. The Hon'ble Division Bench reversed this, holding that “The principle of forum non conveniens does not apply to civil suits in India which are governed by the said Code” (para 92(iii)). The Maestro judgment departs from Horlicks on two grounds: two later Supreme Court decisions (para 268), and Horlicks not referring to an earlier Hon'ble Division Bench ruling, Sanjay Dalia (para 269).

Why this matters. To be fair to the Maestro judgment, its first ground is the right kind of reason: a later Supreme Court ruling can displace an Hon'ble Division Bench, and Krishna Veni Nagam does speak of “civil proceeding[s]”. The question is whether remarks made in a criminal appeal and in transfer petitions, where, on the Maestro judgment's own reading, the Supreme Court acting under s.25 “does not apply forum conveniens” (para 239), though it “noted the application of this doctrine to civil proceedings” (same para), are enough “in and of themselves” to set aside an Hon'ble Division Bench that decided the very question for civil suits under the Code. That is genuinely debatable, and a debatable conflict between an Hon'ble Division Bench and later Supreme Court remarks is for a larger Bench to resolve. The second ground does not hold on the Maestro judgment's own test: forum non conveniens arises “only when a forum is found to possess jurisdiction” (para 234), and in Sanjay Dalia it was conceded that Delhi had none. That Hon'ble Division Bench therefore did not apply the doctrine to a civil suit; it explained a statutory rule. Not referring to that explanation is no reason to say Horlicks “may not be termed as a precedent”. The same section of the Maestro judgment (para 246) also says Parliament “did not intend” a suit where only part of the cause of action arose, if part also arose where a party is. Clause (c) of s.20 of the Code contains no such condition, and Horlicks held that a court cannot add one by way of forum non conveniens.

Why this matters. An Hon'ble Single Judge may consider a point that an Hon'ble Division Bench never decided. An Hon'ble Single Judge may not add a condition that contradicts what the Hon'ble Division Bench did decide, at the same stage. If the demurrer standard in R.K. Distillery and Prag was thought too low, the proper course was a reference to a larger Bench.

The part of a judgment that decides the case (its “ratio”) binds later courts. A passing remark (“obiter”) does not. In para 20.3, Kohinoor gave three reasons why “a substantial part of the cause of action” arose in Delhi, one being that the defendant's goods were “available for sale and purchase, across e-commerce websites, at Delhi”. The Maestro judgment calls Kohinoor's observations on s.20(c) obiter, noting that Kohinoor had itself said WWE is not an authority on s.20(c) (para 194).

Why this matters. When a court expressly rests its decision on two or more grounds, each of them is part of the decision, not a side remark (Jacobs v London County Council [1950] AC 361, House of Lords). Para 20.3 lists online availability as one of the reasons the case was decided as it was.

Why this matters. An Hon'ble Division Bench gave reasons for holding that damage in passing off is part of the cause of action. An Hon'ble Single Judge who disagrees with those reasons must refer the question, not label the holding “dynamic effect” and set it aside.

Why this matters. On the usual understanding of per incuriam, a ruling is treated as given in ignorance of a statute only where that statute governs the question and would have changed the answer. On the Maestro judgment's own reasoning, the GST provisions would not have changed this answer. And while the reference was pending, the existing rulings “continue to hold the field”, as the Supreme Court said in the very passage the Maestro judgment quotes (para 28).

When a defendant objects at the very start of a case that the court has no jurisdiction, the court decides by assuming that what the plaint says is true. Proof comes later, at the trial. Lawyers call this deciding “on demurrer”. Two Hon'ble Division Benches, RSPL and Chaurasia, applied that rule. A footnote (fn 137, attached to para 220 in the forum non conveniens discussion, not in the demurrer section) says they “may not remain good law today”, without giving a reason; since both rulings rest on the demurrer rule (RSPL para 10; Chaurasia para 8), that is the natural reading. And the Maestro judgment holds that “Bald, unfounded, and empty narrations unsupported by any documents ought to be ignored”, giving as an example a plaint that says the goods are freely sold in Delhi but attaches no documents (Table 2, row 6). (Order VII Rule 10 of the Code returns a plaint to the proper court; Rule 11 rejects it outright. Manjula, below, is a Rule 11 case.)

Why this matters. The rule is the Supreme Court's own, and even the Supreme Court cases the Maestro judgment relies on say the same. Those cases (Arivandandam and Akbar Ali, quoted at paras 290 and 291, and Manjula) deal with plaints that are illusory, cleverly worded to get around a legal bar, or missing documents the plaint itself relies on. None of them lets a court, deciding jurisdiction at the threshold, disbelieve a specific pleaded fact merely because no document is attached to prove it, which is what Table 2, row 6 does. And para 288's reading of Dhodha House as confining Exphar “to its own facts” does not hold: Dhodha (paras 32 to 35) dealt only with Exphar's ruling on s.62(2), noting that “the questions which have been raised herein had not been raised in Exphar SA”. It said nothing about the demurrer rule. Two Hon'ble Division Bench rulings are written off in a footnote, in a footnote to a different part of the judgment, with only the word “today” as the reason.

A suit for infringement lies only for a registered mark; the statutory right comes from registration (ss.27(1) and 28 of the Trade Marks Act). The “cause of action”, which decides where a suit can be filed, includes the facts on which the right rests. So the Hon'ble Division Bench in Kohinoor held that registration in Delhi is part of the cause of action. The Maestro judgment holds the opposite. It says Kohinoor “may not be binding on this issue” because two writ cases were not shown to that Bench (para 165) (Alchemist v State Bank of Sikkim, 2007, and Union of India v Adani Exports, 2001: Supreme Court appeals from writ petitions, on whether part of the cause of action arose within a High Court's territory). Here “registration in Delhi” means the mark was registered at the Trade Marks Registry's Delhi office.

To be fair, the Maestro judgment's point is about place: “the factum of the trademark being registered at Delhi has nothing to do with the bundle of facts constituting the cause of action” (para 165). That registration is a material fact is clear; whether the place of registration is part of the cause of action is debatable. The objection here is to the method.

Why this matters. The two writ cases (Alchemist and Adani Exports) state a general test, and Kohinoor applied that same test. Alchemist even says, as quoted at para 164, that “even if a small fraction of the cause of action arises within the jurisdiction of the court, the court would have territorial jurisdiction”. So this is a disagreement on the merits, not a reason to ignore an Hon'ble Division Bench. The Maestro judgment's comparison with the place where a company is incorporated (para 165) also misses the point: the statutory right to sue for infringement is created by registration.

To explain why it will not follow an earlier Single Judge ruling, Allied v Agribiotech (Hon'ble C. Hari Shankar J. sitting singly; an interim order in I.A. 4397/2020 in CS(COMM) 166/2020, 15.10.2020), the Maestro judgment says Sanjay Dalia's point on a company's registered office “was not brought to the notice” of that Hon'ble Judge, and that the Shree Nath case on liquor licences “was not adequately canvassed”. The Agribiotech judgment shows the Sanjay Dalia passage quoted in full, the point about the Delhi “registrar's” address argued and decided, and Shree Nath and the excise-licence point both argued.

Why this matters. The first statement is incorrect: the passage was quoted, the point was argued, and the Court decided it should go to trial (para 41). The second is hard to sustain: Shree Nath and the excise point were argued by the defendant and answered by the plaintiff (paras 23, 24 and 26), though Agribiotech's findings do not discuss Shree Nath by name. (The Maestro judgment gives further reasons for not following Agribiotech at paras 92 and 95, including that it was an interim ruling.)

In Burger King (Hon'ble Prathiba M. Singh J., 2018 SCC OnLine Del 10881, 27.08.2018, a quia timet suit), an Hon'ble Single Judge held that, under s.20 of the Code, “cause of action arises in each and every place where there is any form of use of the said mark”, for infringement and passing off alike. Para 157 of the Maestro judgment calls these observations on both claims “additional observations”, because the quia timet finding “was sufficient” to decide the case. Yet para 26 names Burger King as a governing decision for infringement suits “in the offline world”. For passing off, para 158 prefers two earlier Single Judge rulings (Glen Raven, 1995, and Indovax, 2017) that it says were “not pointed out” to Burger King.

Why this matters. Burger King applied the “use” test to the facts and decided jurisdiction on it (paras 24 and 25), so it is not a side remark. A decision cannot govern infringement while its reasoning on the same point is called “additional”. Choosing between earlier and later Single Judge rulings is a recognised course, so that part is debatable; but if the rulings conflict, the cleaner answer is a reference.

To show that infringing goods are sold in a city, brand owners often have an investigator buy them there. Lawyers call these “trap” purchases. Banyan Tree, the leading Hon'ble Division Bench ruling on websites and jurisdiction, said a single trap purchase is not enough, that what is needed is “a real commercial transaction that the defendant has with someone not set up by the Plaintiff itself”, and that where the only evidence is a series of trap purchases, they must be shown to have been obtained by fair means. The Maestro judgment says that “as a rule”, such purchases “concoct” jurisdiction and ordinarily cannot be relied on, and it attributes this to Banyan Tree.

Why this matters. Read with its qualifier, para 25 is close to Banyan Tree: a trap set up “to concoct jurisdiction in a forum which otherwise has no jurisdiction” is not enough. But Banyan Tree also says that a series of trap purchases obtained by fair means, clearly pleaded and supported, can be relied on (para 57). Conclusion H(i) turns that into a rule that such purchases “as a rule” concoct jurisdiction and “ordinarily” cannot be relied on. Its second exception (H(ii): where sales are clearly taking place in the city and the investigator “merely provides evidence”) meets part of the concern, but not the fair series that Banyan Tree expressly allows.