2012 (11) TMI 123 - HC - Companies Law

Rigors u/s 599 of Co. s Act to prevent a co. to institute legal proceedings- Held that - Company will be establishing a place of business in India, if it has a specified or identifiable place at which it carries on business, such as an office, store house, godown or other premises having some concrete connection between the locality and its business. The word establish indicates more than occasional connection. This evidence amply establishes that the petitioner company has an established place of business in India. Admittedly, the provisions of Sections 592 to 594 have not been complied with. Section 599 creates a hurdle for such a foreign company to institute any legal proceedings . At this stage, learned counsel for the petitioner submits that the provisions of Section 599 are not mandatory; they are directory; on the payment of the requisite fee this irregularity can be cured. - petition not being maintainable is accordingly disposed of with liberty granted to the petitioner to file a fresh petition after curing the defects. Pending applications also stand disposed of. Period spent in pursuing this litigation be excluded for the purposes of limitation.

Summary

Issues:
1. Compliance with provisions of Sections 592 to 594 of the Companies Act by a foreign company with an established place of business in India.
2. Interpretation of Section 599 of the Companies Act regarding the prohibition on foreign companies from initiating legal proceedings.
3. Determination of whether a foreign company has an established place of business in India based on specific criteria.
4. Consideration of precedents and legal tests to determine the existence of an established place of business for foreign companies.

Analysis:
1. The judgment revolves around the compliance of Sections 592 to 594 of the Companies Act by a foreign company with an established place of business in India. The respondent contended that the petitioner, a foreign company, failed to comply with these provisions, citing Section 599 which prohibits such companies from initiating legal proceedings without compliance.

2. The petitioner disputed the respondent's position, leading to a detailed analysis by the court. The court noted that the petitioner, a foreign company, indeed had an established place of business in India, as evidenced by its operations and correspondences with its parent company in India.

3. The court referred to Section 591(1)(b) of the Companies Act, which deals with foreign companies established outside India but having a place of business within India. The judgment emphasized the necessity for such companies to adhere to Sections 592 to 594, failing which Section 599 acts as a legal hurdle for initiating proceedings.

4. Precedents such as Tumlare Software Services (P.) Ltd. India v. Magic Software Services and Cleveland Museum of Art v. Capricorn Art International SA were cited to determine the criteria for establishing a place of business for foreign companies. The court highlighted the need for a concrete connection between the business and a specific location in India.

5. The judgment concluded that the petitioner, a subsidiary of Dabur India Limited, had warehouses and godowns in India, indicating an established place of business. As compliance with Sections 592 to 594 was lacking, the court upheld the respondent's application, disallowing the present petition.

6. The court addressed the petitioner's argument regarding the directory nature of Section 599 and the curability of irregularities through payment of requisite fees. It noted the circular specifying fee requirements for foreign companies, allowing for curing of defects and granting liberty to file a fresh petition after compliance.

7. In summary, the judgment emphasizes the importance of foreign companies with established places of business in India complying with relevant provisions of the Companies Act to avoid legal impediments, while also providing an opportunity for rectification of irregularities through prescribed procedures.