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Urgent

Manisha (CA & CS) (161 Points)

20 January 2011

Greeting Members,

As per the Section 58A, in sub section 7(a) it is said that The provisions of this Section do not apply to Banking companies & Companies specified by Central Government, after consultation with RBI.

Can anyone tell me which are the "Companies specified by Central Government" in this behalf.

Also I wanted to know whether the section applies to NBFCs(not accepting deposits). Again whether an NBFC can accept unsecured loan from its shareholders and whether there is a limit for such a borrowing.

Please reply.

Its very urgent.

Thanks in advance

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6 Replies

Aman Jain (Company Secretary in Practice) (165 Points)
Replied 20 January 2011

Dear Manisha,

For Sec. 58A (7) (a)(ii) these are the small scale industries. (plz refer ramaiya for full detail)

Yes, Sec. 58A apply on NBFC's other than advertising rules.

A pvt. co. can accept unsecured loan from its shareholders whether its NBFC or Not.

with warm regards,

Aman Kumar Jain

LL.B., M.Com, ACS

AMAN JAIN & ASSOCIATES,
COMPANY SECRETARIES
B-15, SECOND FLOOR,
LAJPAT NAGAR-I,
NEW DELHI-110024
Mob. No. +91.97174.900.58
+91.93137.82.760

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Manisha (CA & CS) (161 Points)
Replied 20 January 2011

Originally posted by : Aman Jain
	For Sec. 58A (7) (a)(ii) these are the small scale industries. (plz refer ramaiya for full detail)

Dear Aman,

Can you plz. quote the details available in ramaiya as i m not having the book.

else please specify the page numbers so that i can refer it.

Thanks.

CA MAZHER MAJEED KHAN (business) (1644 Points)
Replied 20 January 2011

58A. Deposits not to be invited without issuing an advertisement
¹[58A. Deposits not to be invited without issuing an advertisement

(1) The Central Government may, in consultation with the Reserve Bank of India, prescribe the limits up to which, the manner in which and the conditions subject to which deposits may be invited or accepted by a company either from the public or from its members.

(2) No company shall invite, or allow any other person to invite or cause to be invited on its behalf, any deposit unless-

(a) such deposit is invited or is caused to be invited in accordance with the rules made under sub-section (1), ²[***]

(b) an advertisement, including therein a statement showing the financial position of the company, has been issued by the company in such form and in such manner as may be prescribed ³[ and]

⁴[(c) the company is not in default in the repayment of any deposit or part thereof and any interest thereupon in accordance with the terms and conditions of such deposit.]

(3)(a) Every deposit accepted by a company at any time before the commencement of the Companies (Amendment) Act, 1974 in accordance with the directions made by the Reserve Bank of India under Chapter IIIB of the Reserve Bank of India Act, 1934, shall, unless renewed in accordance with clause (b), be repaid in accordance with the ⁵[terms and conditions of such deposit].

(b) No deposit referred to in clause (a) shall be renewed by the company after the expiry of the term thereof unless the deposit is such that it could have been accepted if the rules made under sub-section (1) were in force at the time when the deposit was initially accepted by the company.

(c) Where, before the commencement of the Companies (Amendment) Act, 1974, any deposit was received by a company in contravention of any direction made under Chapter IIIB of the Reserve Bank of India Act, 1934, repayment of such deposit shall be made in full on or before the 1st day of April, 1975, and such repayment shall be without prejudice to any action that may be taken under the Reserve Bank of India Act, 1934 for the acceptance of such deposit in contravention of such direction.

⁶[(3A) Every deposit accepted by a company after the commencement of the Companies (Amendment) Act, 1988, shall, unless renewed in accordance with the rules made under sub-section (1), be repaid in accordance with the terms and conditions of such deposit.]

(4) Where any deposit is accepted by a company after the commencement of the Companies (Amendment) Act, 1974, in contravention of the rules made under sub-section (1), repayment of such deposit shall be made by the company within thirty days from the date of acceptance of such deposit or within such further time, not exceeding thirty days, as the Central Government may, on sufficient cause being shown by the company, allow.

(5) Where a company omits or fails to make repayment of a deposit in accordance with the provisions of clause (c) of sub-section (3), or in the case of a deposit referred to in sub-section (4), within the time specified in that sub-section,-

(a) the company shall be punishable with fine which shall not be less than twice the amount in relation to which the repayment of the deposit has not been made, and out of the fine, if realised, an amount equal to the amount in relation to which the repayment of deposit has not been made, shall be paid by the Court, trying the offence, to the person to whom repayment of the deposit was to be made, and on such payment, the liability of the company to make repayment of the deposit shall, to the extent of the amount paid by the Court, stand discharged;

(b) every officer of the company who is in default shall be punishable with imprisonment for a term which may extend to five years and shall also be liable to fine.

(6) Where a company accepts or invites, or allows or causes any other person to accept or invite on its behalf, any deposit in excess of the limits prescribed under sub-section (1) or in contravention of the manner of condition prescribed under that sub-section or in contravention of the provisions of sub-section (2), as the case may be,-

(a) the company shall be punishable,-

(i) where such contravention relates to the acceptance of any deposit, with fine which shall not be less than an amount equal to the amount of the deposit so accepted;

(ii) where such contravention relates to the invitation of any deposit, with fine which may extend to⁷[ten lakh rupees] but shall not be less than ⁸[fifty thousand rupees];

(b) every officer of the company who is in default shall be punishable with imprisonment for a term which may extend to five years and shall also be liable to fine.

(7)(a) Nothing contained in this section shall apply to -

(i) a banking company, or

(ii) such other company as the Central Government may, after consultation with the Reserve Bank of India, specify in this behalf.

(b) Except the provisions relating to advertisement contained in clause (b) of sub-section (2), nothing in this section shall apply to such classes of financial companies as the Central Government may, after consultation with the Reserve Bank of India, specify in this behalf.

⁹[(8) The Central Government may, if it considers it necessary for avoiding any hardship or for any other just and sufficient reason, by order, issued either prospectively or retrospectively from a date not earlier than the commencement of the Companies (Amendment) Act, 1974, grant extension of time to a company or class of companies to comply with, or exempt any company or class of companies from, all or any of the provisions of this section either generally or for any specified period subject to such conditions as may be specified in the order:

Provided that no order under this sub-section shall be issued in relation to a class of companies except after consultation with the Reserve Bank of India.]

¹⁰[(9) Where a company has failed to repay any deposit or part thereof in accordance with the terms and conditions of such deposit, the ¹⁰[Tribunal] may, if it is satisfied, either on its own motion or on the application of the depositor, that it is necessary so to do to safeguard the interests of the company, the depositors or in the public interest, direct, by order, the company to make repayment of such deposit or part thereof forthwith or within such time and subject to such conditions as may be specified in the order:

Provided that the ¹¹[Tribunal] may, before making any order under this sub-section, give a reasonable opportunity of being heard to the company and the other persons interested in the matter.

(10) Whoever fails to comply with any order made by the ¹¹[Tribunal], under sub-section (9) shall be punishable with imprisonment which may extend to three years and shall also be liable to a fine of ¹²[not less than rupees five hundred] for every day during which such non-compliance continues.]

¹³[(11) A depositor may, at any time, make a nomination and the provisions of sections 109A and 109B shall, as far as may be, apply to the nomination made under this sub-section.]

Explanation- For the purposes of this section, "deposit" means any deposit of money with, and includes any amount borrowed by, a company but shall not include such categories of amount as may be prescribed in consultation with the Reserve Bank of India.

Manisha (CA & CS) (161 Points)
Replied 21 January 2011

Thank you Mr. Khan.

I know the above quoted section.

But my query is not the whole section but specifically in respect of the section 58A (7)(a)(ii).

If you have any details regarding that, please do share.

Thanks in advance.

Aman Jain (Company Secretary in Practice) (165 Points)
Replied 21 January 2011

Dear Manisha,

please find the relevant notification which related to sec. 58A(7) (a) (ii)

But you have to say to your firm with you are associate, when you people doing such in-depth analysis on any subject matter then its required to have ramaiya sort of books.

In normal course, for raising deposits from public, a business enterprise, which is incorporated as public limited or private limited company, is required to make advertisement under the Section 58A of the Companies Act, 1956. But this requirement is not applicable to small-scale industrial units which fulfill the following conditions laid down by the Department of Company Affairs and vide notification No GSR 73(E), dated 2-2-1996, ie where (a) The paid-up capital of the company does not exceed Rs 25 lakh; (b) the company accepts deposits from not more than 100 persons; (c) their is no invitation to public for deposits; and (d) the amount of deposits accepted by the company does not exceed Rs 20 lakh or the amount of its paid-up capital, whichever is less.

For the purpose of this notification— (i) deposit has the same meaning in clause 9b0 of rule 2 of the Companies (Acceptance of Deposits) Rules, 1975, i.e. the deposit shall include any deposit of money with an include any amount borrowed not including amount received from the Central or the state government in any form or loan form banks or financial institutions from another company, employees of the company, security deposits, advance money from agents, promoters of the company, money raised through bonds or debentures.

(ii) A small-scale industrial unit means any industrial undertaking registered with the Directorate of Industries of Small Scale Industries, as the case may be, of the State Government and in respect of which the investment in plant and machinery is not in excess of Rs 60 lakh in value.

The investment limit of SSI has been raised to Rs 3 crore. Hence the stipulation of paid-up capital of the company will also have to change. The deposit by SSI can be raised only up to the extent of paid-up capital.

Deposits raised by SSI organised as limited companies are to be regulated under the Companies (Acceptance of Deposit) Rules, 1975.

These rules require a company to make advertisement in a newspaper to raise deposits in the prescribed application form, issue requisite receipts to depositors, maintain a register of deposits, and adhere to the provisions regarding the repayment of deposit.

Such companies are also required to maintain 15 per cent of the deposit amount as liquid assets in term of Rule 3A of the aforesaid Rules, 1975.

with warm regards,

Aman Kumar Jain

LL.B., M.Com, ACS

AMAN JAIN & ASSOCIATES,
COMPANY SECRETARIES
B-15, SECOND FLOOR,
LAJPAT NAGAR-I,
NEW DELHI-110024
Mob. No. +91.97174.900.58
+91.93137.82.760