ACCEPTANCE OF DEPOSITS BY CORPORATES – A REVIEW (PART - A) (Learning No. 8 )

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              Learning no.  8| Month: May, 2020

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ACCEPTANCE OF DEPOSITS BY CORPORATES – A REVIEW (PART - A)

INTRODUCTION

The concept “Deposit” comes under the genre of borrowing. But both these concepts are different in nature. From the layman point, it is defined as something which is received from another with an intention or promise to repay it or its equivalent in time bound manner. If borrowed thing is money, there normally exists an agreement to pay interest for its use. In simple words, deposit is an agreement for using the money.

HISTORY OF CORPORATE FIXED DEPOSIT

There has been a practice that many big corporates raise funds from the public by way of deposits at a higher rate of interest. Such fund raising is over and above traditional source of financing like share capital, debt capital, bank loan, bill discounting etc.

In the recent past, the company used to raise fund by way of deposit by offering higher interest rate compared to banker’s FD rate. In most of the cases, such companies were not in position to repay the principle and interest amount to the public due to various reasons like company became sick or liquidated. The need was felt to regulate the acceptance of deposits by the body corporates. Accordingly, Reserve Bank of India (“RBI”) had taken initial step to amend RBI Act, 1934 by amending Banking laws (Miscellaneous Provisions) Act, 1963 to provide power on RBI to regulate the acceptance of deposit by non banking institutions w.e.f. 01.02.1964. As a result of that, provision mandating advertisement in a prescribed form stating financial position of the Company seeking deposits from the public. Such statute also provides the central government to make rules in consultation with RBI in this regard.

Company prefer to accept deposit from the public due to various reasons like less interest, simple mode of raising funds, no securities need to be given. Accordingly, banking companies and NBFCs accepting deposits shall be regulated by RBI whereas Non Banking Non Finance Companies are regulated by Ministry of Corporate Affairs.

DIFFERENCE BETWEEN LOAN AND DEPOSIT

As per sec 143 of the Companies Act, 2013 (“the Act”), auditors shall inter-alia enquire upon “whether loans and advances made by the Company have been shown as deposits”. From these provisions, it is clear that both loans and deposits are different in nature and should be shown separately. As per definition under the Act, the term “Deposits” includes loan. So the deposit is exhaustive in nature.

There is a thin deviation between the concepts “Loan” and “Deposit”. The Company accept deposit at the instance and for the benefit of the person who deposit the money. Here, it is depositors who primarily the mover.  Not only that, the deposit is re-payable on demand of the depositor viz., pre-payment of deposits.

Loan is taken at the instance or for the benefit of the person requesting the money. Here, primary movers would be the borrowers. Loan is re-payable only when the obligation to repay the amount arises, as per the loan agreement. So there exists relationship between debtors and creditors.

REGULATORY FRAMEWORK GOVERNING ACCEPTANCE OF DEPOSIT

Sec 73 to 76A in chapter V of the Act deals with the acceptance of deposits and has to be read along with Companies (Acceptance of Deposits) Rules, 2014 (“Deposit Rules”). Before proceeding to understand the concept “Acceptance of Deposits”, we must first know the definition “Deposit”. The definition is exhaustive in nature which excludes certain items.

As per Rule 2 (1) (c) of the Deposit Rules, the term “Deposits” have been defined to include any receipt of money  by way of deposit or loan or in any other form by a company. It does not include such categories of amount as may be prescribed in consultation with the RBI. The above definition is inclusive definition and can be secured or unsecured.

Please note that private company can accept deposit from its members only. Whereas eligible public company can accept deposit from its members and public if it fulfills certain parameters, the details of which will be learned later in this article.

It was clarified through general circular no. 05/2015 that amounts received by private companies prior to 16^th April, 2O14 shall not be treated as 'deposits' under the Companies Act, 2013 (“the Act”) and Deposit Rules subject to the condition that relevant private company shall disclose, in the notes to its financial statement for the financial year commencing on or after 1^st April, 2014, the figure of such amounts and the accounting head in which such amounts have been shown in the financial statement. Any renewal or acceptance of fresh deposits on or after 1^st April, 2014, shall, however, be in accordance with the provisions of the Act and rules made thereunder.

THE AMOUNT THAT SHALL NOT BE CONSIDERED “DEPOSITS”:

The following categories of amount excluded from the definition “Deposit” (Rule 2 (1) (c) of Deposit rules):

     i.     any amount received from the Central Government or a State Government or local authority or statutory authority constituted under Act of Parliament/ state legislature, or any amount from any resources whose repayment is guaranteed by the Central Government or a State Government;

    ii.     any amount received from foreign Governments, foreign or international banks, multilateral financial institutions, foreign Governments owned development financial institutions, foreign export credit agencies, foreign collaborators, foreign bodies corporate, foreign citizens, foreign authorities or persons resident outside India;

   iii.     any amount received as a loan from any banking company;

  iv.     any amount received as a loan or financial assistance from public financial institutions or any regional financial institutions or insurance companies or scheduled banks;

    v.     any amount raised by issue of commercial paper or any other instruments in accordance of RBI guidelines or notifications;

  vi.     any amount received by a company from any other company;

 vii.     any amount received and held pursuant to an offer towards subscription to any securities, including share application money or advance towards allotment of securities pending allotment. Such amount so received shall be appropriated only against the amount due for allotment of the securities.

Please note that securities for which such amount was received, can’t be allotted within 60 days from the date of receipt of application money and such application money is not refunded within 15 days after expiry of 60 days, then such amount received shall be treated as deposit under deposit rules.

viii.     Any amount received from the person who is a director of the company or a relative of director of private company at the time of receipt of money subject to the declaration that the amount so deposited has been given from own’s fund and not from borrowings.

  ix.     Any amount raised by the issue of bonds or debentures secured by a first charge or a charge ranking pari passu with the first charge on any assets (excluding intangible assets), compulsorily convertible within 10 years;

    x.     Any amount raised by issue of unsecured non-convertible debentures not constituting charge on assets of the company and listed on the stock exchanges;

  xi.  Non-interest-bearing security deposit received from employee of the company to the extent not exceeding his annual salary under the contract of employment with the company;

 xii.     Any non-interest bearing amount received and held in trust;

xiii.     Any amount received in the course of business –

(a)    As an advance for the supply of goods or services provided that such advance shall be adjusted against supply of goods or services within 365 days of the receipt of advance.

Please note that the said amount is a subject matter of any legal proceedings before the court of law, the aforesaid limit shall not apply.

(b)    As an advance w.r.t. consideration for an immovable property provided such advance is adjusted against such property in accordance with the terms of the agreement;

(c)    As security deposit for the performance of the contract for supply of goods or services;

(d)   As advance under long term projects for supply of capital goods except item no. (b) above;

(e)    As advance towards consideration for providing future services in form of warranty or maintenance contract provided period for providing such services shall not exceed period prevalent under common business practice or 5 years from acceptance of services whichever is less;

(f)     As advance received which is allowed by any sectoral regulator;

(g)   As advance for subscription towards publication;

Please note that above amount received becomes refundable due to the reason that the company accepting the money does not have necessary permission to deal in goods or services for which amount is taken, then such receipt shall be deemed to be treated as deposit under deposit rules.

It is clarified that for the purpose of this sub-section, the amount shall be deemed to be treated as deposit on expiry of 15 days from the date it may become due for refund.

xiv.  Any amount by way of unsecured loan brought in by the promoters subject to the fulfilment of the following conditions:

(a)    the loan is brought in pursuance of the stipulation imposed by the lending institutions on the promoters to contribute such finance;

(b)    the loan is provided by the promoters themselves or by their relatives or by both; and

(c)    the exemption under this sub-clause shall be available only till the loans of financial institutions or bank are repaid and not thereafter;

 xv.     Any amount accepted by a Nidhi Company under sec 406 of the Act;

xvi.     Any amount received by way of subscription in respect of a chit under the Chit Fund Act, 1982;

xvii.     Any amount received by the company under any collective investment scheme;

xviii.  An amount of Rs. 25 lakh or more raised by a start-up company, by way of a convertible note (convertible into equity shares or repayable within a period not exceeding five years from the date of issue) in a single tranche, from a person;

xix.     Any amount received by a company from registered Alternate Investment Funds, Domestic Venture Capital Funds, Infrastructure Investment Trusts and Mutual Funds. 

DEPOSITORS

As per Rule 2 (1) (d) of the deposit rules ‘‘depositor’’ means,

     i.     any member of the company who has made a deposit with the company in accordance with the provisions of section 73 (2) of the Act, or

    ii.     any person who has made a deposit with a public company in accordance with the provisions of section 76 of the Act;

ELIGIBLE COMPANY 

As per Rule 2 (1) (e) of the deposit rules, "eligible company" means

·      a public company as referred to in Section 76 (1);

·      having a net worth of not less than Rs. 100 crores or a turnover of not less than Rs. 500 crores and

·      which has obtained the prior consent of the company in general meeting by means of a special resolution and

·      the said resolution has filed with the Registrar of Companies before making any invitation to the Public for acceptance of deposits.

·      such company, which is accepting deposits within the limits specified under Section 180 (1) (c), may accept deposits by means of an ordinary resolution;

EXEMPTED ENTITIES

Following companies are exempted from complying with provisions of deposit rules: -

(i)    a banking company;

(ii)   a NBFC as defined in the RBI Act, 1934 registered with the RBI;

(iii) a housing finance company registered with the National Housing Bank established under the National Housing Bank Act, 1987 and

(iv) a company specified by the Central Government under the proviso to section 73 (1) of the Act.

Now let us understand the provisions relating to acceptance of deposits by the Companies.

ACCEPTANCE OF DEPOSITS BY THE COMPANY FROM THE MEMBERS

Sec 73 of the Act says that a company (be it a private or public company) may accept or renew deposits from its members after complying with the following the provisions as set out below:

a.    to get approval from its members by a resolution in a general meeting.

b.    to issue a circular to its members including statements showing the financial position of the company and other details in form DPT-1 (As per Rule 4 of deposit rules)

c.    file such circular with RoC within 30 days before date of issue of circular.

d.   To deposit on or before April 30 every year, at least 20% of the amount of its deposits maturing during the following year and kept in a separate bank in a separate bank account with scheduled bank to be called “deposit repayment reserve account”. Rule 13 of deposit rules states that such amount shall not at any time fall below above percentage.

(Prior to Companies Amendment Act, 2017 (CAA, 2017) percentage of deposit amount to be transferred was 15% of the deposit amount maturing in a financial year and the financial year next following).

e.    To certify that it has not committed default in the re-payment of deposits accepted or payment of interest on such deposits. In case a default had occurred, the company made good the default and a period of 5 years had lapsed since date of making good default.

f.     To provide security if any, for the due re-payment of the amount of deposit or the interest thereon. If security is provided, charge must be created on the assets of the Company.

g.   To repay principle amount and interest in accordance with terms and conditions.

h.   Such other conditions as prescribed under deposit rules.

EXEMPTION TO PRIVATE COMPANIES

Conditions as given above as prescribed under Sec 73 2(1) (a) to (c) and (e) of the Act w.r.t. issue of circular, filing of the copy of such circular with RoC, depositing of certain amount and certification as to no default committed, shall not apply to private companies:

a.    Which accepts from its members monies not exceeding 100% of paid up capital, free reserves and securities premium account; or

b.    Which is a start up, for 5 years from the date of its incorporation

c.    Which fulfills all of the following conditions, namely:

(i)    Which is not an associate or a subsidiary company of another company;

(ii)   Borrowings is less than twice of its paid up share capital or Rs. 50 Crores, which is lower; and

(iii) Such a company has not defaulted in repayment of such borrowings subsisting at the time of accepting deposits under this section.

APPLICATION TO TRIBUNAL IF COMPANY FAILS TO REPAY

In case a company fails to repay deposit or part thereof or any interest thereon, concerned depositor may apply to the Tribunal for an order directing the company to pay the sum due or for any loss damage incurred by him as a result of such non-payment and for such other order as the Tribunal may deem fit.

ACCEPTANCE OF DEPOSITS BY THE ELIGIBLE COMPANY FROM THE PUBLIC

As we discussed about the definition “Eligible company” elsewhere in this article, Sec 76 of the Act says that such company can accept deposit from members and public subject to the following conditions: 

a.  Such company which is accepting deposit from public, is required to pass special resolution in the general meeting and file respective form with ROC. Please note that such company which is accepting deposits within the limit of Sec 180 (1) (c), may accept deposits by means of an ordinary resolution.

b.  Such other conditions as prescribed under Sec 73 (2) and deposit rules.

PUNISHMENT FOR FAILURE TO COMPLY WITH SEC 73 AND SEC 76

(write up on the subject “Acceptance of deposit by the corporates – A review (Part B)” shall be continued in learning no. 9. Enjoy learning)

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