Are you need IT Support Engineer? Free Consultant

All About Acceptance Of Deposits From Members Of a Company

  • March 20, 2024
  • 40 Views

(A) TERMS & CONDITIONS OF ACCEPTANCE OF DEPOSITS FROM MEMBERS OF A COMPANY

A company (both private limited company & public limited company) may accept deposits from its members on the following terms & conditions:

(1) Tenure of deposits:

No company shall accept or renew any deposit, whether secured or unsecured, which is repayable on demand or upon receiving a notice within a period of less than six months or more than thirty-six months from the date of acceptance or renewal of such deposit:

Provided that a company may, for the purpose of meeting any of its short-term requirements of funds, accept or renew such deposits for repayment earlier than six months from the date of deposit or renewal, as the case may be, subject to the condition that-

(a) such deposits shall not exceed ten per cent. of the aggregate of the Paid-up share capital, free Reserves and securities premium account of the company, and

(b) such deposits are repayable not earlier than three months from the date of such deposits or renewal thereof.

(2) Acceptance  of Deposits in Joint Name etc.

Where depositors so desire, deposits may be accepted in joint names not exceeding three, with or without any of the clauses, namely, “Jointly”, “Either or Survivor”, “First named or Survivor”, “Anyone or Survivor”

(3) Rate of Interest & brokerage

No company shall invite or accept or renew any deposit in any form, carrying a rate of interest or pay brokerage thereon at a rate exceeding the maximum rate of interest or brokerage prescribed by the Reserve Bank of India for acceptance of deposits by non-banking financial companies.

Explanation:- For the purposes of this sub-rule, it is hereby clarified that the person who is authorised, in writing, by a company to solicit deposits on its behalf and through whom deposits are actually procured shall only be entitled to the brokerage and payment of brokerage to any other person for procuring deposits shall be deemed to be in violation of these rules.

(4) Limit

No company shall accept or renew any deposit from its members, if the amount of such deposits together with the amount of other deposits outstanding as on the date of acceptance or renewal of such deposits exceeds thirty five per cent of the aggregate of the Paid-up share capital, free Reserves and securities premium accountof the company.

“Provided that a Specified IFSC Public company and a private company may accept from its members monies not exceeding one hundred per cent. of aggregate of the paid up share capital, free reserves and securities premium account and such company shall file the details of monies so accepted to the Registrar in Form DPT-3.

Provided further that the maximum limit in respect of deposits to be accepted from members shall not apply to following classes of private companies, namely:-

 (i) a private company which is a start-up, for ten years from the date of its incorporation;

(ii) a private company which fulfils all of the following conditions, namely:-

(a) which is not an associate or a subsidiary company of any other company;

(b) the borrowings of such a company from banks or financial institutions or any body corporate is less than twice of its paid up share capital or fiffy crore rupees, whichever is less ; and

(c) such a company has not defaulted in the repayment of such borrowings subsisting at the time of accepting deposits

(B) PROCEDURE FOR  ACCEPTANCE OF DEPOSIT

(1) Pass  resolution in general meeting

(2)  Issue  circular to its members including therein a statement showing the financial position of the company, the credit rating obtained, the total number of depositors and the amount due towards deposits in respect of any previous deposits accepted by the company and such other particulars in Form DPT-1 by registered post with acknowledgement due or speed post or by electronic mode. The circular may be published in English language in an English newspaper and in vernacular language in a vernacular newspaper having wide circulation in the State in which the registered office of the company is situated. A certificate of the statutory auditor of the company shall be attached in Form DPT-1, stating that the company has not committed default in the repayment of deposits or in the payment of interest on such deposits accepted either before or after the commencement of the Act and in case a company had committed a default in the repayment of deposits accepted either before or after the commencement of the Act or in the payment of interest on such deposits, a certificate of the statutory auditor of the company shall be attached in Form DPT-1, stating that the company had made good the default and a period of five years has lapsed since the date of making good the default as the case may be. The circular or circular in the form of advertisement is issued on the authority and in the name of the Board of directors of the company. A circular or circular in the form of advertisement issued shall be valid until the expiry of six months from the date of closure of the financial year in which it is issued or until the date on which the financial statement is laid before the company in annual general meeting or, where the annual general meeting for any year has not been held, the latest day on which that meeting should have been held in accordance with the provisions of the Act, whichever is earlier, and a fresh circular or circular in the form of advertisement shall be issued, in each succeeding financial year, for inviting deposits during that financial year.

(3) Filing a copy of the circular along with such statement with the Registrar within thirty days before the date of issue of the circular; No circular or a circular in the form of advertisement shall be issued by or on behalf of a company unless, not less than thirty days before the date of such issue, there has been delivered to the Registrar for registration a copy thereof signed by a majority of the directors of the company as constituted at the time the Board approved the circular or circular in the form of advertisement, or their agents, duly authorised by them in writing.

(4) depositing, on or before the thirtieth day of April each year, such sum which shall not be less than twenty per cent. of the amount of its deposits maturing during the following financial year and kept in a scheduled bank in a separate bank account to be called deposit repayment reserve account;] The deposit repayment reserve account referred to in clause (c) of sub-section (2) shall not be used by the company for any purpose other than repayment of deposits.

(5) certifying that the company has not committed any default in the repayment of deposits accepted either before or after the commencement of this Act or payment of interest on such deposits and where a default had occurred, the company made good the default and a period of five years had lapsed since the date of making good the default] and

(6) providing security, if any for the due repayment of the amount of deposit or the interest thereon including the creation of such charge on the property or assets of the company:

Provided that in case where a company does not secure the deposits or secures such deposits partially, then, the deposits shall be termed as “unsecured deposits” and shall be so quoted in every circular, form, advertisement or in any document related to invitation or acceptance of deposits.

( C) EXEMPTIONS TO PRIVATE LIMITED COMPAMY

The following types of private limited companies are exempted from following the procedures as mentioned in point (2) to (5) given under the sub caption 

(B) PROCEDURE FOR  ACCEPTANCE OF DEPOSIT:

 A) which accepts from its members monies not exceeding one hundred per cent. of aggregate of the paid up share capital, free reserves and securities premium account; or

(B) which is a start-up, for five years from the date of its incorporation; or

(C) which fulfils all of the following conditions, namely:-

(a) which is not an associate or a subsidiary company of any other company;

(b) if the borrowings of such a company from banks or financial institutions or any body corporate is less than twice of its paid up share capital or fifty crore rupees, whichever is lower; and

(c) such a company has not defaulted in the repayment of such borrowings subsisting at the time of accepting deposits:

Provided that the company referred to in clauses (A), (B) or (C) shall file the details of monies accepted to the Registrar in in Form DPT-3.

(D) ACCEPTANCE OF LOAN FROM SHAREHOLDER

Loan from shareholder is a form of ‘deposit’ under the provisions of the Companies Act 2013.

A private Limited Company which is

  1. a start-up, for five years from the date of its incorporation; or
  2.  which fulfils all of the following conditions, namely:-

    (a) which is not an associate or a subsidiary company of any other company;

    (b) if the borrowings of such a company from banks or financial institutions or   any body  corporate is less than twice of its paid up share capital or fifty crore rupees, whichever is lower; and

   (c) such a company has not defaulted in the  repayment of such borrowings subsisting at the time of accepting deposits

can accept loan from the shareholders by following below mentioned procedure:

To Hold a Meeting of Board of Director u/s 179(3)

1 To Pass Board Resolution for Borrowing

2 To issue notice for calling of General Meeting u/s 73(2)

3 To Hold a Meeting of Shareholders u/s 73(2)

4 To Pass ordinary resolution to accept loan from shareholder

5 Company shall file e-form DPT-3 for such loan at the time of acceptance of same.

6 Company shall file e-form DPT-3 every year for such loan on or before 30th June.

D. PUNISHMENT FOR VIOLATION OF LAW :

a) The company shall, in addition to the payment of the amount of deposit or part thereof and the interest due, be punishable with fine which shall not be less than one crore rupees or twice the amount of deposit accepted by the company, whichever is lower rupees but which may extend to ten crore rupees; and every officer of the company who is in default shall be punishable with imprisonment which may extend to seven years and with fine which shall not be less than twenty-five lakh rupees but which may extend to two crore rupees,

b) Punishment for non filing of DPT-3: Rule 21

The Company and every officer of the company who is in default shall be punishable with fine which may extend to five thousand rupees and where the contravention is a continuing one, with a further fine which may extend to five hundred rupees for every day after the first day during which the contravention continues.

E. REMEDY FOR AGGRIEVD DESPOSITOR

Where a company fails to repay the deposit or part thereof or any interest thereon, the depositor concerned may apply to the National Company Law Tribunal for an order directing the company to pay the sum due or for any loss or damage incurred by him as a result of such non-payment and for such other orders as the Tribunal may deem fit.