POSITION IN LAW: (a) Under the Companies (Acceptance of Deposit) Rules, 1975 “any amount raised by issue of debentures (including convertible debentures) secured by the mortgage of any immovable property of the company and that the market value of the immovable property secured is higher than the amount of debentures issued” is not considered to be a DEPOSIT. (b) Under Section 3(1)(d) of the Act, a Private Company is prohibited from accepting Deposit from persons other than its Directors, Members and their relatives. (c) Hence, the Private Company must issue Debentures only as a Secured Debenture.
03 November 2012
APPROVALS: The following approvals are required to be obtained by the Company: Approval Level/ Nature of approval Board /For issue of Debentures under Section 292(1)(b). Board :Creation Declaration of Trust Board :Appointment of Debenture Trustees (Section 117B) Board :Approval of Draft Trust Deed Board :Approval of the Form of Debenture Certificate. Letter from Trustees: Consent from the Debenture Trustees to act as Trustees.
No approvals are required to be obtained under Section 293(1)(a) and (d) since, the Section does not apply to Private Limited Companies, unless it is a Subsidiary of a Public Company.
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