Loan from Director or Shareholders

Short summary

In this editorial, the Author shall discuss about the concept of deposit in relation to the most common question between professionals i.e. if a Company accepts a loan from an Individual and such individual is a Director as well as a Shareholder of the Company, whether loan from such a person shall be considered as Loan from Shareholder of Loan from Director?

Loan from director

Definition of deposit mentioned under Deposit Rules state that, Loan received from the Directors of the Company shall be considered as Exempted Deposit. However, there is one condition that such loan shall be given out of his own funds not from borrowed funds.

Loan from shareholder

i. Under Companies Act, 1956 it was allowed to accept loan from the Shareholders and such loan considered as non-deposit.
ii. Under Companies Act, 2013 since 01st April, 2014 it was not allowed to accept deposit/ Loan from shareholder
iii. MCA issue Exemption notification for Private Limited Companies on 05th June, 2015 states that:

'Chapter V, clauses (a) to (e) of sub-section (2) of section 73, Shall not apply to a private company which accepts from its members monies not exceeding one hundred per cent, of aggregate of the paid up share capital and free reserves, and such company shall file the details of monies so accepted to the Registrar in such manner as may be specified.'

iv. MCA issue Exemption notification for Private Limited Companies on 13th June, 2017 states that:

'Chapter V, clauses (a) to (e) of sub-section (2) of section 73, Shall not apply to 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) 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 no default in repayment of such borrowings subsisting at the time of accepting deposits under this section.'

Process of acceptance of loan from director

Brief process of acceptance of Loan from Director of the Company.

1. To check whether exemption available with the Company or not.
2. Pass a Resolution in Board meeting for acceptance of Loan.
3. Call General Meeting
4. Pass Ordinary Resolution in General Meeting.
5. Declaration of own funds from Director.

Conclusion 

• If Company received loan from a person who is Director as well as shareholder of the Company on the date of acceptance of Loan then whether such loan shall be considered as Loan from Director or Loan from Shareholder totally depend upon the compliances done by the Company for acceptance of such loans.
• If Company has complied with provisions / compliances of Loan from Director then consider this as Loan from Director and show in 'particular not consider as deposit' in DPT-3.
• If Company has complied with provisions / compliances of Loan from shareholders than consider this as Loan from shareholder and show in 'deposit' in DPT-3.