Unsecured loan by pvt ltd

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Vasav S. Shah (Querist)
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13 August 2012 What would be the consequences if private company has taken unsecured loan from the person who are neither directors of the company nor their relative? What penalty can ROC maximum charge? What is the way to come out from the penalty?

CS Advocate Abhishek Goyal

CS Advocate Abhishek Goyal (Expert)
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14 August 2012 According to section 3(i)(iii)(d) a private company is prohibited from accepting deposits from persons other than its directors and their relatives. As per Companies Acceptance of deposit rules and explanation appended to section 58A, deposit includes unsecured loans.
So your company has violated the norms by accepting unsecured loans from other persons.

Ajay Mishra

Ajay Mishra (Expert)
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14 August 2012 Hi

1. Deposits in case of Private Limited Company

Private Company is prohibited to accept any invitation or acceptance of unsecured loans/deposits from the persons other than its members, directors or their relatives. Therefore a private company can accept deposits through private arrangement from its members, directors and their relatives.

Rule 2(b)(ix) exempt any unsecured loan money received from directors and shareholders from the definition of deposits. According to Rule 2(b)(ix), any amount received from members of a private company limited by guarantee are not exempt.

Rule 3 of Companies (Acceptance of Deposits) Rules, 1975 deal with the limit upto which a company can accept deposits/ loans. Private company exempted this limit.

For any invitation and acceptance of unsecured loan/deposits from relatives of directors and member, the company will have to file a statement in lieu of advertisement in accordance with the provisions of Rule 4A of the Companies (Acceptance of Deposits) Rules, 1975. The company will also have to file annual return of deposits in accordance with Rule 10.

2. Consequences of acceptance of deposit by Private Limited Company

If a private company acceptance an amount, which may be classified as deposit under section 58A read with Companies (Acceptance of Deposits) Rules, 1975, it will cease its status of a private company and has to make all the compliances for such deposits as per the requirement of said rules, as well as to comply with all the provisions as may be applicable on public limited company such as section 58A, 58AA, 58AAA, 81, 256, 257, 198, 268, 269, Schedule XIII, 274(i)(g), 295, 297, 300, 301, 372A, etc

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