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TMI Blog2024 (5) TMI 942X X X X Extracts X X X X X X X X Extracts X X X X ..... h the petitioner company, for the supply of CIF Kolkata Port casing material of desired specifications. The said purchase order was for an amount of US$ 738,380/-. It is stated that subsequent to the receipt of the purchase order, certain terms of the agreement as regards the charges of delayed payments were not agreeable to the petitioner company, and therefore, correspondence ensued between the parties and consequently, it was agreed vide e-mail dated 16.12.2014 that charges of 1% per month would be payable for delayed payments and liquidated damages were waived off. Thereafter, the respondent placed another purchase order bearing No. GDIL PO2014277 dated 24.12.2014, for the supply of casing material of a different specification, and said order amounted to US$ 199,466,50/-. 3. It is stated on behalf of the petitioner that it duly supplied the goods to the respondent company as per the purchase orders and raised certain invoices against the same dated 29.12.2014, 05.02.2015 and 15.02.2015 for a total amount of US$ 818,496.58/-. Further, it is stated that except the amount of US$ 147,111.66/-, paid by the respondent company in instalments, and the last payment having been made in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the parties to make submissions on the question 'whether the petitioner complied with the conditions as prescribed in Section 583 of the Companies Act, 1956, for the respondent is a foreign company not registered in India.' 7. It is pertinent to mention here that as per Section 2 (10) of the Companies Act, a company means a company as defined under Section 3. Section 3 defines a company under sub-Clause (i) to mean a company formed and registered under this Act or an existing company as defined in clause (2). Clause (2) pertains to existing companies which were incorporated under the earlier provisions pertaining to company matters. In the 1956 Act, Section 582 defines an "unregistered company" as under: "582. MEANING OF "UNREGISTERED COMPANY For the purposes of this Part, the expression "unregistered company" - (a) shall not include - (i) a railway company incorporated by any Act of Parliament or other Indian law or any Act of Parliament of the United Kingdom; (ii) a company registered under this Act; or (iii) a company registered under any previous companies law and not being a company the registered office whereof was in Burma, Aden or Pakistan immediately b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the company, or from him in his character of member, and notice in writing of the institution of the suit or other legal proceeding having been served on the company by leaving the same at its principal place of business or by delivering it to the secretary, or some director, manager or principal officer of the company or by otherwise serving the same in such manner as the [Tribunal] may approve or direct, the company has not, within ten days after service of the notice, - (i) paid, secured or compounded for the debt or demand ; or (ii) procured the suit or other legal proceeding to be stayed ; or (iii) indemnified the defendant to his satisfaction against the suit or other legal proceeding, and against all costs, damages and expenses to be incurred by him by reason of the same ; (c) if execution or other process issued on a decree or order of any court [or Tribunal] in favour of a creditor against the company, or any member thereof as such, or any person authorised to be sued as nominal defendant on behalf of the company, is returned unsatisfied in whole or in part ; (d) if it is otherwise proved to the satisfaction of the [Tribunal] that the company is unable to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the company will be getting their proper return on the amount lent or contributed. Ordinarily, the winding up of the company will be proceeding simultaneously in the various countries where it carried on business whenever the business of the company has ceased to be profitable and the company is reduced to a position in which it is not expected to make good its liabilities. 17. It is the company incorporated outside India which is really wound up as an unregistered company in this country. In fact, there is no separate unregistered company which is being wound up here. The various branch offices of the company in India cannot be deemed to be the branches of an independent unregistered company. Sub-section (3) of Section 271 itself says that the company incorporated outside India may be wound up as an unregistered company when it ceases to carry on business in India. Further, there are no separate creditors or contributories of the so called unregistered company. There are no separate creditors or contributories of the offices or branches of the company in India. All the creditors and contributories are really creditors and contributories of the company incorporated outside In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpanies, pending immediately before such date before any District Court or High Court, shall stand transferred to the Tribunal and the Tribunal may proceed to deal with such proceedings from the stage before their transfer: Provided that only such proceedings relating to the winding up of companies shall be transferred to the Tribunal that are at a stage as may be prescribed by the Central Government. Provided further that only such proceedings relating to cases other than winding-up, for which orders for allowing or otherwise of the proceedings are not reserved by the High Courts shall be transferred to the Tribunal [Provided also that]- (i) all proceedings under the Companies Act, 1956 other than the cases relating to winding up of companies that are reserved for orders for allowing or otherwise such proceedings; or (ii) the proceedings relating to winding up of companies which have not been transferred from the High Courts; shall be dealt with in accordance with provisions of the Companies Act, 1956 and the Companies (Court) Rules, 1959.] Provided also that proceedings relating to cases of voluntary winding up of a company where notice of the resolution by advertisem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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