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TMI Blog2012 (11) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - Co. Petition no. 212 OF 2006 and c.a. no. 1109 of 2008 - - - Dated:- 11-9-2012 - Ms. Indermeet Kaur, J. Sudhir Makkar and Ms. Meenakshi S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of Section 592 to 594 of the said Act failing which the hurdle of Section 599 prevents such a foreign company from initiating any legal proceedings in India. 4. Section 591 1(b) inter alia reads as under:- "591 (1)(b). companies incorporated outside India which have, before the commencement of this Act, established a place of business within India and continue to have an established place of business within India at the commencement of this Act." 5. Section 592, 593 and 594 contain the formalities which have to be complied with by such a company i.e. a foreign company who has established its place of business in India. Submission of the respondent being reiterated that the petitioner has an established place of business in Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umariya Tola, which is admittedly a place in India. There is also no dispute that the petitioner company has godowns and warehouses at Raxaul (page 266). 8. In Tumlare Software Services (P.) Ltd. India v. Magic Software Services [2001] 34 SCL 232 (Delhi) while considering the provisions of Section 591 of the Companies Act in the context as to whether a foreign company has an established place of business in India, the following extract would be relevant:- "As is apparent, the crux of the above provisions of Companies Act is that unless a Company has a specified or identifiable place at which it carries on business it cannot be said to have an established place of business that include office, storehouse, godown or any other kind of such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany 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." 12. In another case reported in Tovarishetvo Manufactur Liudvig Rabenek [1944] 2 All ER 556 the Court had gone to the length of holding that where the representatives of a foreign company were often coming and staying in a hotel in England for purchasing machinery, cotton etc., the foreign company had a place of business in England. 13. The application filed by the respondent has to be viewed and tested in this back ..... X X X X Extracts X X X X X X X X Extracts X X X X
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