Loan to directors, etc. (Section 185 of the Companies Act, 2013) :
Section 185 of the Companies Act, 2013 came into force on 12th September, 2013 which provides for Loan to directors, etc. According to this section:
(i) No company shall, directly or indirectly, advance any loan, including any loan represented by a book debt, to any of its directors or to any other person in whom the director is interested or give any guarantee or provide any security in connection with any loan taken by him or such other person.
(ii) Exceptions: The above restriction does not apply in the following circumstances:
(a) the giving of any loan to a managing or whole-time director—
(1) as a part of the conditions of service extended by the company to all its employees; or
(2) pursuant to any scheme approved by the members by a special resolution; or
(b) 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 Reserve Bank of India.
(c) 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 ; or
(d) Any guarantee given or security provided by a holding company in respect of any loan made by any bank or financial institution to its subsidiary company:
Provided that the loans made under clauses(c) and (d) are utilized by the subsidiary company for its principal business activities. [Inserted by the Companies(Amendment) Act, 2015]
(iii) The expression “to any other person in whom director is interested” means—
(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;
(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.
(iv) Penalty for contravention: If any loan is advanced or a guarantee is given or provided in contravention of the provisions of section 185, the following penalties shall be leviable-
(a) On Company: Minimum- 5 lakhs and maximum- 25 lakhs
(b) On defaulting director and 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:
Imprisonment- Maximum 6 months, or,
Fine- Minimum- 5 lakhs and maximum- 25 lakhs, or,
Both imprisonment and fine.
Thus, penalty is leveiable only on the company or director or person to whom the loan is given or guarantee or security is provided. However, all other persons who are knowingly a party to default has been kept outside the ambit of penalty clause of section 185.
The Companies (Meetings of Board and its Powers) Rules, 2014 has exempted the following from the ambit of section 185 provided the loans are to utilize by the subsidiary company for its principal business activities.
(1) 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
(2) 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.
Vide Notification no. G.S.R. 465(E), dated 5th June 2015, section 185 shall not apply to the Nidhis, provided the loan is given to a director or his relative in their capacity as members and such transaction is disclosed in the annual accounts by a note.
Vide Notification G.S.R 464(E), dated 5th June 2015, section 185 shall not apply to a private company-
(a) In whose share capital no other body corporate has invested any money;
(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 company has no default in repayment of such borrowings subsisting at the time of making transactions under this section.
Vide notification G.S.R. 463(E), dated 5th June 2015, section 185 shall not apply to Government company in case such company obtains approval of the Ministry or Department of the Central Government which is administratively in charge of the company, or, as the case may be, the state Government before making any loan or giving any guarantee or providing any security under the section.