2 years ago (2016-08-20 12:30:37)

Loan to Director or Person in Whom Director is Intrested

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Advancing loan/Giving Guarantee or providing security in connection with a Loan to Director or Person in Whom Director is interested.

In accordance with provisions of sub-section (1) of section 185, Save as otherwise provided in this Act, a Company shall not, directly or indirectly, advance any loan, including any loan represented by a book debt, to any of its directors or to any other person in whom the director is interested or give any guarantee or provide any security in connection with any loan taken by him or such other person.

Key Considerations:

·         Effective Date- Section notified by MCA on 12.09.2013. Hence effective from 12.09.2013

·         No Company (except private companies satisfying the prescribed criteria and in exempted situations) shall, directly or indirectly advance any loan, give guarantee or provide security in connection with a loan to a Director or to any other person in whom director is interested. (Section 185(1))

·         To any other person in whom director is interested means- Company shall not provide loan to the following category of person:

·         Director of lending Company, Director of its holding Company, Partner or Relative of any such director.

·         Firm in which any director or relative is a partner

·         Private Company of which any such director is a director or member

·         Body Corporate at a general meeting of which not less than 25% of the total voting power is exercised or controlled by any such director, or by two or more such directors together.

·         Any Body Corporate, the Board of directors, managing director or manager, whereof is accustomed to act in accordance with the directions or instructions of the Board, or of any director or directors, of the lending company.

·         Exemptions:- Company may advance loan, give guarantee or provide security in connection with a loan in following situations:

1.       Private company which satisfies all the following criteria may advance loan, give guarantee or provide security in connection with a loan to a Director or to any other person in whom director is interested:

a.       In whose share capital no other body corporate has invested any money;

b.      If the borrowings of such a company from banks or financial institutions or anybody corporate is less than twice of its paid up share capital or fifty crore rupees, whichever is lower; and

c.       Such a company has no default in repayment of such borrowings subsisting at the time of making transactions under section 185. (MCA notification dated 5th June 2015)

2.       Loan given to Managing Director and Whole Time Directors-

a.       Loan given as a part of Conditions of service extended to all employees by the company; or

b.      Loan is pursuant to any scheme approved by special resolution at the Shareholders meeting.

3.       A company which in the ordinary course of its business provides loans or gives guarantees or securities for the due repayment of any loan and in respect of such loans an interest is charged at a rate not less than the bank rate declared by the Reserve Bank of India.

4.       Loan given by a holding company to its wholly owned subsidiary company or any guarantee given or security provided by a holding company in respect of any loan made to its wholly owned subsidiary company, if the loan is utilized by the subsidiary company for its principal business activities  Rule 10 of Companies (Meetings of Board and its Powers) Rules, 2014]

5.       Any guarantee given or security provided by a holding company in respect of loan made by any bank or financial institution to its subsidiary company, if the loan is utilized by the subsidiary company for its principal business activities [Rule 10 of Companies (Meetings of Board and its Powers) Rules, 2014]

Read More at: - Procedure under Companies Act 2013

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