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CHAPTER XXII

COMPANIES INCORPORATED OUTSIDE INDIA
 
 
379.Application of Act to foreign companies.

Where not less than fifty per cent. of the paid-up share capital, whether equity or
preference or partly equity and partly preference, of a foreign company is held by one or
more citizens of India or by one or more companies or bodies corporate incorporated in India,
or by one or more citizens of India and one or more companies or bodies corporate incorporated
in India, whether singly or in the aggregate, such company shall comply with the provisions
of this Chapter and such other provisions of this Act as may be prescribed with regard to the
business carried on by it in India as if it were a company incorporated in India.
 
 
 
380. Documents, etc., to be delivered to Registrar by foreign companies.

(1) Every foreign company shall, within thirty days of the establishment of its
place of business in India, deliver to the Registrar for registration—
(a) a certified copy of the charter, statutes or memorandum and articles, of the
company or other instrument constituting or defining the constitution of the company
and, if the instrument is not in the English language, a certified translation thereof in
the English language;
(b) the full address of the registered or principal office of the company;
(c) a list of the directors and secretary of the company containing such particulars
as may be prescribed;
(d) the name and address or the names and addresses of one or more persons
resident in India authorised to accept on behalf of the company service of process and
any notices or other documents required to be served on the company;
(e) the full address of the office of the company in India which is deemed to be its
principal place of business in India;
(f) particulars of opening and closing of a place of business in India on earlier
occasion or occasions;
(g) declaration that none of the directors of the company or the authorised
representative in India has ever been convicted or debarred from formation of companies
and management in India or abroad; and
(h) any other information as may be prescribed.
(2) Every foreign company existing at the commencement of this Act shall, if it has not
delivered to the Registrar before such commencement, the documents and particulars specified
in sub-section (1) of section 592 of the Companies Act, 1956, continue to be subject to the
obligation to deliver those documents and particulars in accordance with that Act.
(3) Where any alteration is made or occurs in the documents delivered to the Registrar
under this section, the foreign company shall, within thirty days of such alteration, deliver to
the Registrar for registration, a return containing the particulars of the alteration in the
prescribed form.
 
 
 
381.Accounts of foreign company.

(1) Every foreign company shall, in every calendar year,—
(a) make out a balance sheet and profit and loss account in such form, containing
such particulars and including or having annexed or attached thereto such documents
as may be prescribed; and
(b) deliver a copy of those documents to the Registrar:
Provided that the Central Government may, by notification, direct that, in the case of
any foreign company or class of foreign companies, the requirements of clause (a) shall not
apply, or shall apply subject to such exceptions and modifications as may be specified in that
notification.
(2) If any such document as is mentioned in sub-section (1) is not in the English
language, there shall be annexed to it a certified translation thereof in the English language.
(3) Every foreign company shall send to the Registrar along with the documents
required to be delivered to him under sub-section (1), a copy of a list in the prescribed form
of all places of business established by the company in India as at the date with reference to
which the balance sheet referred to in sub-section (1) is made out.
 
 
 
382.Display of name, etc., of foreign company.

Every foreign company shall—
(a) conspicuously exhibit on the outside of every office or place where it carries on
business in India, the name of the company and the country in which it is incorporated,
in letters easily legible in English characters, and also in the characters of the language or
one of the languages in general use in the locality in which the office or place is situate;
(b) cause the name of the company and of the country in which the company is
incorporated, to be stated in legible English characters in all business letters, billheads
and letter paper, and in all notices, and other official publications of the company;
and
(c) if the liability of the members of the company is limited, cause notice of that
fact—
(i) to be stated in every such prospectus issued and in all business letters,
bill-heads, letter paper, notices, advertisements and other official publications of
the company, in legible English characters; and
(ii) to be conspicuously exhibited on the outside of every office or place
where it carries on business in India, in legible English characters and also in
legible characters of the language or one of the languages in general use in the
locality in which the office or place is situate.
 
 
 
383.Service on foreign company.

Any process, notice, or other document required to be served on a foreign company
shall be deemed to be sufficiently served, if addressed to any person whose name and
address have been delivered to the Registrar under section 380 and left at, or sent by post to,
the address which has been so delivered to the Registrar or by electronic mode.
 
 
 
384.Debentures, annual return, registration of charges, books of account and their inspection.

(1) The provisions of section 71 shall apply mutatis mutandis to a foreign company.
(2) The provisions of section 92 shall, subject to such exceptions, modifications and
adaptations as may be made therein by rules made under this Act, apply to a foreign company
as they apply to a company incorporated in India.
(3) The provisions of section 128 shall apply to a foreign company to the extent of
requiring it to keep at its principal place of business in India, the books of account referred to
in that section, with respect to monies received and spent, sales and purchases made, and
assets and liabilities, in the course of or in relation to its business in India.
(4) The provisions of Chapter VI shall apply mutatis mutandis to charges on properties
which are created or acquired by any foreign company.
(5) The provisions of Chapter XIV shall apply mutatis mutandis to the Indian business
of a foreign company as they apply to a company incorporated in India.
 
 
 
385.Fee for registration of documents.

There shall be paid to the Registrar for registering any document required by the
provisions of this Chapter to be registered by him, such fee, as may be prescribed.
 
 
 
386.Interpretation

For the purposes of the foregoing provisions of this Chapter,—
(a) the expression “certified” means certified in the prescribed manner to be a
true copy or a correct translation;
(b) the expression “director”, in relation to a foreign company, includes any
person in accordance with whose directions or instructions the Board of Directors of
the company is accustomed to act; and
(c) the expression “place of business” includes a share transfer or registration
office.
 
 
387. Dating of prospectus and particulars to be contained therein.

(1) No person shall issue, circulate or distribute in India any prospectus offering
to subscribe for securities of a company incorporated or to be incorporated outside India,
whether the company has or has not established, or when formed will or will not establish, a
place of business in India, unless the prospectus is dated and signed, and—
(a) contains particulars with respect to the following matters, namely:—
(i) the instrument constituting or defining the constitution of the company;
(ii) the enactments or provisions by or under which the incorporation of
the company was effected;
(iii) address in India where the said instrument, enactments or provisions,
or copies thereof, and if the same are not in the English language, a certified
translation thereof in the English language can be inspected;
(iv) the date on which and the country in which the company would be or
was incorporated; and
(v) whether the company has established a place of business in India and,
if so, the address of its principal office in India; and
(b) states the matters specified under section 26:
Provided that sub-clauses (i), (ii) and (iii) of clause (a) of this sub-section shall not
apply in the case of a prospectus issued more than two years after the date at which the
company is entitled to commence business.
(2) Any condition requiring or binding an applicant for securities to waive compliance
with any requirement imposed by virtue of sub-section (1), or purporting to impute him with
notice of any contract, documents or matter not specifically referred to in the prospectus,
shall be void.
(3) No person shall issue to any person in India a form of application for securities of
such a company or intended company as is mentioned in sub-section (1), unless the form is
issued with a prospectus which complies with the provisions of this Chapter and such issue
does not contravene the provisions of section 388:
Provided that this sub-section shall not apply if it is shown that the form of application
was issued in connection with a bona fide invitation to a person to enter into an underwriting
agreement with respect to securities.
(4) This section —
(a) shall not apply to the issue to existing members or debenture holders of a
company of a prospectus or form of application relating to securities of the company,
whether an applicant for securities will or will not have the right to renounce in favour
of other persons; and
(b) except in so far as it requires a prospectus to be dated, to the issue of a
prospectus relating to securities which are or are to be in all respects uniform with
securities previously issued and for the time being dealt in or quoted on a recognised
stock exchange,
but, subject as aforesaid, this section shall apply to a prospectus or form of application
whether issued on or with reference to the formation of a company or subsequently.
(5) Nothing in this section shall limit or diminish any liability which any person may
incur under any law for the time being in force in India or under this Act apart from this
section.
 
 
 
388.Provisions as to expert’s consent and allotment.

(1) No person shall issue, circulate or distribute in India any prospectus offering
for subscription in securities of a company incorporated or to be incorporated outside India,
whether the company has or has not been established, or when formed will or will not
establish, a place of business in India,—
(a) if, where the prospectus includes a statement purporting to be made by an
expert, he has not given, or has before delivery of the prospectus for registration
withdrawn, his written consent to the issue of the prospectus with the statement
included in the form and context in which it is included, or there does not appear in the
prospectus a statement that he has given and has not withdrawn his consent as
aforesaid; or
(b) if the prospectus does not have the effect, where an application is made in
pursuance thereof, of rendering all persons concerned bound by all the provisions of
sections 33 and 40, so far as applicable.
(2) For the purposes of this section, a statement shall be deemed to be included in a
prospectus, if it is contained in any report or memorandum appearing on the face thereof or
by reference incorporated therein or issued therewith.
 
 
 
389.Registration of prospectus.

No person shall issue, circulate or distribute in India any prospectus offering for
subscription in securities of a company incorporated or to be incorporated outside India,
whether the company has or has not established, or when formed will or will not establish, a
place of business in India, unless before the issue, circulation or distribution of the prospectus
in India, a copy thereof certified by the chairperson of the company and two other directors of
the company as having been approved by resolution of the managing body has been delivered
for registration to the Registrar and the prospectus states on the face of it that a copy has
been so delivered, and there is endorsed on or attached to the copy, any consent to the issue
of the prospectus required by section 388 and such documents as may be prescribed.
 
 
 
390.Offer of Indian Depository Receipts.

Notwithstanding anything contained in any other law for the time being in force,
the Central Government may make rules applicable for—
(a) the offer of Indian Depository Receipts;
(b) the requirement of disclosures in prospectus or letter of offer issued in
connection with Indian Depository Receipts;
(c) the manner in which the Indian Depository Receipts shall be dealt with in a
depository mode and by custodian and underwriters; and
(d) the manner of sale, transfer or transmission of Indian Depository Receipts,
by a company incorporated or to be incorporated outside India, whether the company has or
has not established, or will or will not establish, any place of business in India.
 
 
 
391.Application of sections 34 to 36 and Chapter XX.

(1) The provisions of sections 34 to 36 (both inclusive) shall apply to—
(i) the issue of a prospectus by a company incorporated outside India under
section 389 as they apply to prospectus issued by an Indian company;
(ii) the issue of Indian Depository Receipts by a foreign company.
(2) The provisions of Chapter XX shall apply mutatis mutandis for closure of the
place of business of a foreign company in India as if it were a company incorporated in
India.
 
 
 
392.Punishment for contravention.

Without prejudice to the provisions of section 391, if a foreign company
contravenes the provisions of this Chapter, the foreign company shall be punishable with
fine which shall not be less than one lakh rupees but which may extend to three lakh rupees
and in the case of a continuing offence, with an additional fine which may extend to fifty
thousand rupees for every day after the first during which the contravention continues and
every officer of the foreign company who is in default shall be punishable with imprisonment
for a term which may extend to six months or with fine which shall not be less than twentyfive
thousand rupees but which may extend to five lakh rupees, or with both.
 
 
393.Company's failure to comply with provisions of this Chapter not to affect validity of contracts, etc.

Any failure by a company to comply with the provisions of this Chapter shall not
affect the validity of any contract, dealing or transaction entered into by the company or its
liability to be sued in respect thereof, but the company shall not be entitled to bring any suit,
claim any set-off, make any counter-claim or institute any legal proceeding in respect of any
such contract, dealing or transaction, until the company has complied with the provisions of
this Act applicable to it.
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