LOANS, INVESTMENTS AND RELATED PARTY TRANSACTIONS

Transcription

1 LOANS, INVESTMENTS AND RELATED PARTY TRANSACTIONS Prepared by: Ms. Manisha Chaudhary, Advocate Mr. Karan Malhotra, Advocate Managing Partner Associate E 2, KAILASH COLONY, NEW DELHI / [email protected] WEBSITE: UKCA & PARTNERS 1

2 LOAN TO DIRECTORS (SECTION 185 ) Restrictions on giving loans etc. to directors have been extended in 2013 Act even to private companies. Section 185 of the Companies Act, 2013 seeks to provide the circumstances and manner in which a company shall advance any loan or provide any security in connection with the loan taken by any of its directors or any other person in whom he is interested. Section 185 of the Act of 2013 commences with a saving clause, stating that Save as otherwise provided in this Act a company cannot, directly or indirectly, advance any loan, including any loan represented by a book debt, to any of its directors or any other person in whom the director is interested ; or give any guarantee or provide any security in connection with any loan taken by its director or such other person. UKCA & PARTNERS 2

3 LOAN TO DIRECTORS The above restriction is not applicable to: Loan to a Managing Director or Whole Time Director which is as a part of the conditions of service extended by the company to all its employees or pursuant to any scheme approved by members by special resolution. 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 RBI. Further as per the Rule 10 (1) & (2) of the Companies (Meetings of Board and its Powers) Rules, 2014, any loan made 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 is exempted from the requirements under this section; and UKCA & PARTNERS 3

4 LOAN TO DIRECTORS 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 is exempted from the requirements under this section. Provided that such loans made are utilised by the subsidiary company for its principle business activities. Section 185 of the Act also defines the expression to any other person in whom director is interested as: (a) any director of the lending company, or of a company which is its holding company or any partner or relative of any such director; (b) any firm in which any such director or relative is a partner; (c) any private company of which any such director is a director or member; UKCA & PARTNERS 4

5 LOAN TO DIRECTORS (d) any body corporate at a general meeting of which not less than twenty five per cent. of the total voting power may be exercised or controlled by any such director, or by two or more such directors, together; or (e) 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. In case of contravention of this section, the Lending Company shall be punishable with a minimum fine of five lakh rupees but which may extend to twenty-five lakh rupees. The director or the other person to whom any loan is advanced or guarantee or security is given or provided in connection with any loan taken by him or the other person, shall be punishable with imprisonment UKCA & PARTNERS 5

6 LOAN TO DIRECTORS which may extend to six months or with fine which shall not be less than five lakh rupees but which may extend to twenty-five lakh rupees, or with both. It may be specifically noted that this section starts with the words save as otherwise provided in this Act. It is therefore incumbent to read Section 185 that to the extent permissible, this section is subject to Section 186 of the Act. (Bennet Coleman & Co. Vs. union Of India and Ors [1977]47CompCas92(Bom)) UKCA & PARTNERS 6

7 LOAN AND INVESTMENT BY COMPANY (SECTION 186 ) Section 186 of the new Act provides, that inter-corporate investments not to be made through more than two layers of investment companies, subject to the following exclusions: a company from acquiring any other company incorporated in a country outside India if such other company has investment subsidiaries beyond two layers as per the laws of such country; a subsidiary Company from having any investment subsidiary for the purpose of meeting of the requirement under any law framed under any law for the time being in force. layer in relation to a holding Company means its subsidiary or subsidiaries [Section 2(87) (d) of the Act]. UKCA & PARTNERS 7

8 LOAN AND INVESTMENT BY COMPANY Section 186 (which corresponds to section 372A of the earlier Companies Act, 1956) provides that no company shall directly or indirectly (a) give any loan to any person or other body corporate; (b) give any guarantee or provide security in connection with a loan to any other body corporate or person; and (c) acquire by way of subscription, purchase or otherwise, the securities of any other body corporate, exceeding 60% of its paid-up share capital, free reserves and securities premium account or 100% of its free reserves and securities premium account, whichever is more. Scope of this section is enlarged to include loans to persons other than body corporate. UKCA & PARTNERS 8

9 LOAN AND INVESTMENT BY COMPANY For transactions exceeding these limits, approval of members is required to be sought by a special resolution passed at a general meeting. No prior approval by special resolution is required where a loan or guarantee is given or security provided by a company to its wholly owned subsidiary company or a joint venture company, or acquisition is made by a holding company, by way of subscription, purchase or otherwise of, the securities of its wholly owned subsidiary company. [Rule 11 (1) of the Companies (Meetings of Board and its Powers) Rules, 2014] Provided that the Company is required to disclose in the Financial Statement the full particulars of the loan, guarantee given and security provided and its utilization. UKCA & PARTNERS 9

10 LOAN AND INVESTMENT BY COMPANY No investment shall be made or loan or guarantee or security given by the company unless: the resolution sanctioning it is passed at a meeting of the Board with the consent of all the directors present at the meeting the prior approval of the public financial institution concerned where any term loan is subsisting, is obtained. However the said prior approval of a public financial institution shall not be required where the aggregate of the loans and investments so far made, the amount for which guarantee or security so far provided to or in all other bodies corporate, along with the investments, loans, guarantee or security proposed to be made or given does not exceed the limit (specified in the previous slides), and UKCA & PARTNERS 10

11 LOAN AND INVESTMENT BY COMPANY there is no default in repayment of loan installments or payment of interest thereon as per the terms and conditions of such loan to the public financial institution. Section 186 (except Sub Section 1) of the Companies Act, 2013 does not apply to the following: Banking Company, Insurance Company, Housing Finance Company etc., Any Company whose main business of acquisition of shares or securities etc., No loan shall be given under this section at a rate of interest lower than the prevailing yield of one year, three year, five year or ten year Government Security closest to the tenor of the loan. Every Company shall maintain a register in Form MBP 2 and enter therein separately, the particulars of loans and guarantees given, securities provided and acquisitions made. UKCA & PARTNERS 11

12 LOAN AND INVESTMENT BY COMPANY No company which is in default in the repayment of any deposits accepted before or after the commencement of this Act or in payment of interest thereon, shall give any loan or give any guarantee or provide any security or make an acquisition till such default is subsisting Under this Section, transactions interse between some companies covered under Section 185 will be permissible, subject to compliance of this section. It is evident from the opening words of Section 186 which reads as without prejudice to the provisions contained in this Act. UKCA & PARTNERS 12

13 RELATED PARTY TRANSACTIONS Section 2 (76) of the 2013 Act, defines the term Related Party in widest possible manner to include: Firm in which a director manager or his relative is a partner Private company in which a director or manger is a director A public company in which a director or manager is a director or holds along with his relatives, more than 2% of its paid-up share capital Body Corporate, MD, Manager, is accustomed to act in accordance with the advice, directions or instructions of a director or manager Director/KMP and their Relatives Company Any person on whose advice, directions or instructions a director or manager is accustomed to act. UKCA & PARTNERS 13

14 RELATED PARTY TRANSACTIONS The definition of relative as defined under Section 2 (77) has undergone a change, and now covers only eight relationships: (1) Father (including the step-father) (2) Mother (including the step-mother) (3) Son (including the step-son) (4) Son s wife (5) Daughter (6) Daughter s husband (7) Brother (including the step-brother) (8) Sister (including the step-sister) UKCA & PARTNERS 14

15 RELATED PARTY TRANSACTIONS The Companies Act, 2013 vide Section 188 has made elaborate provisions to control such related party transactions and ensure that related party transactions are not used as a tool to divert resources and funds of the company for personal benefit of directors. Except with the consent of the Board of Directors given by a resolution at a meeting of the Board and subject to such conditions as may be prescribed, no company shall enter into any contract or arrangement with a related party with respect to (a) sale, purchase or supply of any goods or materials; (b) selling or otherwise disposing of, or buying, property of any kind; (c) leasing of property of any kind; (d) availing or rendering of any services; UKCA & PARTNERS 15

16 RELATED PARTY TRANSACTIONS (e) appointment of any agent for purchase or sale of goods, materials, services or property; (f) such related party's appointment to any office or place of profit in the company, its subsidiary company or associate company; and (g) underwriting the subscription of any securities or derivatives thereof, of the company: Provided that no contract or arrangement, in the case of a company having a paid-up share capital of not less than such amount, or transactions not exceeding such sums, as may be prescribed (next slide), shall be entered into except with the prior approval of the company by a special resolution. Provided further that no member of the company shall vote on such special resolution, to approve any contract or arrangement which may be entered into by the company, if such member is a related party. UKCA & PARTNERS 16

17 RELATED PARTY TRANSACTIONS A part from the above, a prior approval of the company through a special resolution shall be required in cases such as: Contract or arrangement in the case of a company having a share capital of 10 crores or more; A company shall not enter into a transaction or transactions, where the transaction or transactions to be entered into Sale, purchase or supply of any goods or materials directly or through appointment of agents exceeding twenty five percent of the annual turnover; availing or rendering of any services directly or through appointment of agents exceeding ten percent of the net worth; Selling or otherwise disposing of, or buying, property of any kind directly or through appointment of agents exceeding ten percent of net worth; UKCA & PARTNERS 17

18 RELATED PARTY TRANSACTIONS Remuneration for underwriting the subscription of any securities or derivatives thereof of the company exceeding one percent of the net worth. In case of wholly owned subsidiary, the special resolution passed by the holding company shall be sufficient for the purpose of entering into the transactions between wholly owned subsidiary and holding company. The agenda of the Board meeting at which the resolution is proposed to be moved shall disclose the name of the related party and nature of relationship; the particulars and material terms of the contract or arrangement, any advance paid or received for the contract or arrangement, if any etc. Interested Director shall not be present at the meeting during discussions on the subject matter of the resolution in which he is so interested. UKCA & PARTNERS 18

19 RELATED PARTY TRANSACTIONS The 2013 Act proposes that all related party transactions which are not in the ordinary course of business or not at arm s length basis should be approved by the Board. The expression arm s length transaction has been defined as a transaction between two related parties that is conducted as if they were unrelated, so that there is no conflictof interest. Requirement of obtaining Central Government approval for related party transactions has been dispensed away with. Every contract or arrangement entered into by a Company with a related party shall be referred to in the Board s report to the shareholders along with the justification for entering into such contract or arrangement. UKCA & PARTNERS 19

20 RELATED PARTY TRANSACTIONS Where any contract has been entered, and any loss has been occurred due to such contract, the company has power to initiate any proceeding against director or employee who has entered into such contract or arrangement. A company is now also allowed to proceed against a director or any other employee for recovery of any loss sustained by it as a result of a contract/ arrangement entered into by such person in contravention of the provisions of the Section 188. Thus the extensive reporting of related party transactions to the regulators and shareholders will entail transparency in the process. This may even lead to class action suit. UKCA & PARTNERS 20

21 DISCLOSURE OF INTEREST BY DIRECTOR (SECTION 184) Every director shall at the first meeting of the Board in which he participates as a director and thereafter at the first meeting of the Board in every financial year or whenever there is any change in the disclosures already made, then at the first Board meeting held after such change, disclose his concern or interest in any company or companies or bodies corporate, firms, or other association of individuals which shall include the shareholding, by giving a notice in writing in Form MBP 1. [Rule 9 (1) of the Companies (Meetings of Board and its Powers) Rules, 2014 ] Every director of a company who is in any way, whether directly or indirectly, concerned or interested in a contract or arrangement or proposed contract or arrangement entered into or to be entered into with a body corporate in which such director or such director in association with any other director, holds more than two per cent. shareholding of that body corporate, or is a promoter, manager, Chief Executive Officer of that body corporate; or UKCA & PARTNERS 21

22 DISCLOSURE OF INTEREST BY DIRECTOR with a firm or other entity in which, such director is a partner, owner or member, as the case may be, shall disclose the nature of his concern or interest at the meeting of the Board in which the contract or arrangement is discussed and shall not participate in such meeting: Provided that where any director who is not so concerned or interested at the time of entering into such contract or arrangement, he shall, if he becomes concerned or interested after the contract or arrangement is entered into, disclose his concern or interest forthwith when he becomes concerned or interested or at the first meeting of the Board held after he becomes so concerned or interested. A contract or arrangement entered into by the company without disclosure (as stated above) or with participation by a director who is concerned or interested in any way, directly or indirectly, in the contract or arrangement, shall be voidable at the option of UKCA & PARTNERS 22

23 DISCLOSURE OF INTEREST BY DIRECTOR the company. Nothing in this section (a) shall be taken to prejudice the operation of any rule of law restricting a director of a company from having any concern or interest in any contract or arrangement with the company; (b) shall apply to any contract or arrangement entered into or to be entered into between two companies where any of the directors of the one company or two or more of them together holds or hold not more than two per cent. of the paid-up share capital in the other company. It shall be the duty of the director giving notice of interest to cause it to be disclosed at the meeting held immediately after the date of the notice. [Rule 9 (2) of the Companies (Meetings of Board and its Powers) Rules, 2014 ] UKCA & PARTNERS 23

24 DISCLOSURE OF INTEREST BY DIRECTOR All notices shall be kept at the registered office and such notices shall be preserved for a period of eight years from the end of the financial year to which it relates and shall be kept in the custody of the company secretary of the company or any other person authorized by the Board for the purpose. [Rule 9 (3) of the Companies (Meetings of Board and its Powers) Rules, UKCA & PARTNERS 24

25 THANK YOU UKCA & PARTNERS