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9. Before deciding I.A. No. 1950/2017 under Order XXXIX Rule 1 and 2 CPC this Court is required to first decide I.A. No. 3139/2017 under Order VII Rule 10 CPC.

10. According to the defendant this Court has no territorial jurisdiction to entertain the present suit for the reason the defendant neither has his registered office within the jurisdiction of this Court nor carries on any business within the jurisdiction of this Court. Further the plaintiff's registered office is in Mumbai which is also outside the territorial jurisdiction of this Court. As neither the cause of action arose in the territorial jurisdiction of this Court nor the defendant works for gain or profit within the territorial jurisdiction of this Court nor is the plaintiff having its registered office, the plaint is liable to be returned. According to the defendant the plaintiff has not even pleaded as to how despite Mumbai being the registered office of the plaintiff, its principal office is at Delhi. The case of the plaintiff is that due to the presence of the defendant on the website such as Zomato and Dine-Out, the defendant would invite the customers of the plaintiff to visit its outlet in Hyderabad is misconceived. It is stated that mere booking or placing an order through internet is insufficient to say that any transaction took place since the contract formation is not at the place of booking or ordering the product or service. Mere existence of a website without proof of 'the effect' does not clothe this Court with territorial jurisdiction to entertain the present suit. By posting false and fabricated trap reviews, plaintiff is trying to stifle the defendant and create false cause of action. Contention of plaintiff that the defendant is expanding pan India based on the application cannot be entertained for the reason mere filing of a trademark application does not provide the plaintiff with any cause of action to file the suit. Plaintiff's quia timet action is bereft of any necessary ingredients as there is no eminent danger, nature of the business of the plaintiff and defendant being such that no party can open a restaurant in any city overnight without necessary licenses. Thus present suit is liable to be rejected. The plaintiff prima facie having not shown the purposeful availment test, this Court having no territorial jurisdiction to entertain the suit is liable to return the plaint to be filed in the court of competent jurisdiction.

12. Responding to the contention of learned counsel for the defendant, learned counsel for plaintiff contends that the plaintiff's principal office for franchising and licensing of all its brands is in Delhi. The plaintiff does not have any office or branch in Hyderabad and carries on its business in Delhi through its office in Hauz Khas Village with 250 employees and through its various outlets. The defendant, to promote its business throughout India, has entered into a contract with Zomato.com which is a company having its office in Delhi. Zomato and Dine-Out are interactive restaurant guides through which reservations can be made at the outlets of the defendants from Delhi and the defendant can be contacted. The defendant intends to expand its operation pan India as is admitted by the defendant in its Linkedin profile. The present suit is maintainable before this Court as per the decision of the Division Bench of this Court in 227 (2016) DLT 320 Ultra Home Construction vs. Purushottam Kumar Chaubey.

18. Before analyzing the facts of the present case on the basis of the judgments noted above, it would be appropriate to note paragraphs dealing with territorial jurisdiction as under:

"61. This Hon'ble Court has the territorial jurisdiction to entertain the present suit on account of the fact that a part of the cause of action has arisen in Delhi. In this regard, it is submitted that the Defendant advertises and promotes its services on www.Zomato.com an interactive restaurant guide service through which reservations can be made from Delhi at the outlets of the Defendant and/or the Defendant can be contacted. This is done against a charge. Resultantly, through Zomato.com the Defendant is able to target customers in Delhi. In fact, from the reviews set out in paragraph 33 above, which are posted on Zomato.com it is apparent that the Defendant has successfully targeted parties in Delhi to its outlet, making them believe that the same is a part of the Plaintiff's 'SOCIAL' outlets. It is submitted that since the Plaintiff does not have a 'SOCIAL' outlet or a 'STONE WATER GRILL' in Hyderabad, a large part of the Defendant's clientele would be customers who are aware of Plaintiff's outlets in particular the 'SOCIAL' outlets in other locations such as those in Delhi. Hence, it is to be presumed that through websites such as Zomato, Facebook and Dine Out, the Defendant is able to target customers inter alia in Delhi and invite them to visit the Defendant's outlet in Hyderabad and also reserve a table at the Defendant's outlets in Hyderabad from Delhi. It may not be out of place to mention that on Zomato, DineOut and Facebook, there are pictures of the Defendant's outlet, the infringing beverage and food products served in the restaurant and indeed the menu card bearing the SOCIAL and STONE WATER brand of the Plaintiff. Even the phone number of the Defendant is displayed on the Zomato and DineOut website with an invitation to users to book a table with the Defendants. Additionally, Zomato has a telephone number listed on its website which is indicative that it has a base in Delhi, within the jurisdiction of this Hon'ble Court. A screenshot of the Zomato display is reproduced below. A screen shot of the website Dineout has been reproduced in paragraphs 32 and 42 hereinabove.

Additionally, the Plaintiff also carries on business in Delhi through the operations of its other outlets being SMOKE HOUSE DELI and MOCHA, which are located at multiple locations in Delhi.

19. Thus even if the defendant has been able to attract customers from other jurisdiction including by way of Zomato and Dine-Out, the services of the defendant cannot be availed unless the customers go to Hyderabad. Through Zomato and Dine Out the customers will only be able to invite a customer and resume a table at the restaurant of the defendant at Hyderabad. The commercial transaction would take place only on the customer availing the services of the defendant at Hyderabad. Claim of the plaintiff is that at least one customer through the website booked the table at defendant's restaurant from Delhi believing that it was a restaurant of the plaintiff. On the basis of a solitary transaction, through internet plaintiff cannot claim that cause of action having arisen at Delhi this Court will have territorial jurisdiction to entertain the suit. Facts pleaded in the plaint do not pass the tests laid down by the Division Bench of this Court in Banyan Tree Holding (P) Ltd. (supra).