Apart from Loans from Banks and NBFCs, companies do have options to borrow funds from shareholders or members. However, since funds are involved of the shareholders, therefore, company law contains detailed provisions related to loans and deposits from Member or shareholders. Companies are required to follow detailed procedure to obtain deposits and also are required to repay the same within committed time.
Part-1 of this article can be read here.
In continuation of last article, following are the additional provisions and rules applicable on borrowing from Members or shareholders:
1. Security Against Charge in case of Secured Deposits
- In case of secured deposit, every company shall provide for security by way of a charge on its assets excluding intangible assets of the company.
- Such charge is created for the due repayment of the amount of deposit and interest thereon.
- Amount of charge shall not be less than the amount remaining unsecured by the deposit insurance.
- Amount of deposit and interest thereon shall not exceed the market value of such assets as assessed by a registered valuer.
- The Company shall ensure that amount of security deposit and value of Deposit insurance is not less than amount of deposit and interest thereon.
2. Trustees for Secured Deposits
a. Appointment of Trustee for Depositors
- In case the company is inviting secured deposits, the company shall appoint one or more trustees for creating security for deposits.
- Such trustees shall be appointed prior to issuance of circular or Advertisement for inviting deposits.
- Prior written consent is required to be obtained from trustee prior to their appointment.
- Trust deed shall be executed in Form DPT-2 at least 7 days prior to issuing the circular or advertisement.
b. Persons can’t be appointed as Trustees
- As per Rule 7(3) of The Companies (Acceptance of Deposits) Rules, following person can’t be appointed as trustee including a company that is in the business of providing trusteeship services, if the proposed trustee -
- is a director, key managerial personnel or any other officer or an employee of the company or of its holding, subsidiary or associate company or a depositor in the company;
- is indebted to the company, or its subsidiary or its holding or associate company or a subsidiary of such holding company;
- has any material pecuniary relationship with the company;
- has entered into any guarantee arrangement in respect of principal debts secured by the deposits or interest thereon;
- is related to any person specified in clause (a) above
c. Removal of Trustee
- No trustee shall be removed after the issue of circular or advertisement and before the expiry of his term.
- However, he can be removed with the consent of all the directors present at a meeting of the board.
- Provided that in case the company is required to have independent directors, at least one independent director shall be present in such meeting of the Board.
d. Duties of Trustees
Every person appointed as trustee for secured deposit is required to fulfill following duties:
- Ensure that the assets against which charge is created alongwith amount of deposit insurance is sufficent to cover the repayment of the principal amount of secured deposit and interest thereon.
- Get Satisfied that circular or advertisement inviting deposits does not contain any information which is against the provisions of the Act;
- ensure that the company does not commit any breach of covenants and provisions of the trust deed;
- Take reasonable steps in case of any breach of covenants of the trust deed;
- Call meetings of deposits as and when required.
- Supervise the implementation of the conditions regarding creation of security for deposits and the terms of deposit insurance;
- Take necessary actions in case security becomes enforceable;
- Take necessary actions for protection of interest of depositors and to resolve their grievances.
e. Meeting of Depositors
The trustee shall call a meeting of all the depositors on-
- Receipt of request signed by atleast 1/10th of depositors in value for the time being outstanding;
- Happening of any event which is a default and which may affect the interest of depositors in opinion of trustee.
3. Register of Depositors
- Every company accepting deposits shall maintain a registered at its registered office wherein following information shall be entered of each depositor;
- name, address and PAN of the depositors;
- particulars of guardian, in case of a minor;
- particulars of the nominee;
- Deposit receipt number;
- date and the amount of each deposit;
- duration of the deposit and the date on which each deposit is repayable;
- Rate of Interest
- due date for payment of interest;
- Instructions for payment of interest and for non-deduction of TDS, if any;
- date or dates on which the payment of interest shall be made;
- particulars of security or charge created for repayment of deposits;
- 存款登记簿中的信息应在收据签发之日起 7 日内更新；
- 此类登记簿须自登记簿中最后一条记录所属的财政年度起至少保存 8 年。
4. 年度申报
- 适用本规则的每家公司均须在每年 6 月 30 日或之前向公司注册处提交 DPT-3 表格的年度申报。
- 此类申报应连同费用一并以 DPT-3 表格形式提交。
- 该表格应包含截至当年 3 月 31 日的信息，并经公司审计师正式审计，且审计师须就此提交声明。
5. 财务报表披露
- 除私营公司外，每家公司均应在财务报表中披露从董事处收到的款项。
- 每家私营公司均应在财务报表中披露从董事及董事亲属处收到的款项。
6. 不合规的后果
- 存款逾期还款的惩罚性利息
- 根据《公司（存款接受）规则》第 17 条，如果到期且已要求偿还的存款未获支付，公司应就逾期期间支付年利率为 18% 的惩罚性利息。
- 向法庭申请
- 若公司未能偿还存款或其利息，存款人可向法庭申请，要求法庭指令公司支付到期款项，或赔偿存款人因该等未偿还行为而遭受的任何损失或损害。
- 欺诈赔偿
- 如果接受存款的目的是为了欺诈存款人或出于任何欺诈目的，则公司中负责接受此类存款的每位管理人员均须对存款人遭受的损失或损害承担个人责任，且不设责任上限。
- 此外，因公司未能偿还存款而遭受损失的个人或群体可提起诉讼或采取法律程序。
- 违规处罚
- 如果任何公司违反《公司法》的规定接受或招揽存款，或者公司未能在规定期限内偿还存款或其利息，则：
- 除存款金额及利息外，公司还应被处以罚款，罚款金额为所接受存款金额的两倍或 1 亿卢比，以较低者为准。此外，此类罚款最高可达 10 亿卢比。
- 同时，每位违规的管理人员均可被判处最高 7 年监禁，并处以 250 万卢比以上、2 亿卢比以下的罚款。
- 此外，如果任何公司或任何其他人违反了本规则中未规定具体处罚措施的任何条款，公司及每位违规的管理人员均可被处以最高 5,000 卢比的罚款。若违规行为持续，自违规首日后，每日将额外加收最高 500 卢比的罚款。
7. 其他规定
a. 存款条款的变更
- 根据《公司（存款接受）规则》第 3(7) 条，公司不得保留自行变更存款条款的权利，以损害存款人的利益或使其处于不利地位。
b. 不得使用借入资金进行存款
- 除非收到存款人的声明，确认该存款并非使用其从他人处借入的资金，否则不得接受或续存任何存款。
c. Issuance of Depository Receipt to Depositor
- Upon acceptance or newel of deposit, every company shall issue to the depositor a receipt for the amount received by the company.
- Such receipt should be issued within 21 days from the date of receipt of money or realisation of cheque or date of renewal.
- Such receipt shall contain:
- the date of deposit;
- Name and address of the Depositor
- Amount received as deposits;
- Rate of Interest and
- the date on which the deposit is repayable.
