Amended and updated notes on section 185 of Companies Act 2013. Detail discussion on provisions and rules related to loan to directors, etc.
Chapter XII (Sections 173–195) of the Companies Act, 2013 (CA 2013) deals with the provisions related to meetings of board and its powers. Section 185 of CA 2013 provides for loan to directors, etc.
Recently, we have discussed in detail section 184 (Disclosure of interest by director) of CA 2013. Today, we learn the provisions of section 185 of Companies Act 2013.
The provisions of section 185 are effective from 12-Sept-2013. You may refer Notification No. S.O. 2754(E) issued dated 12-09-2013. In this article, you will learn detail of the provisions of section 185 of the Companies Act 2013 read with the Companies (Meetings of Board and its Powers) Rules, 2014.
| Name of Act | The Companies Act 2013 |
|---|---|
| Enacted by | Parliament of India |
| Administered by | Ministry of Corporate Affairs (MCA) |
| Number of Chapters | 29 |
| Number of Sections | 484 (470-43+57) |
| Number of Schedules | 7 |
| You are reading: | |
| Chapter No. | XII |
| Chapter Name | Meetings of Board and its Powers |
| Section No. | 185 |
| Section Name | Loan to directors, etc. |
| Monthly Updated Edition | Company Law PDF |
Section 185 of Companies Act 2013: Loan to directors, etc.
Section 185 shall come into force on 12th September, 2013 vide Notification No. S.O. 2754(E) dated 12.09.2013.
(1) No company shall, directly or indirectly, advance any loan, including any loan represented by a book debt to, or give any guarantee or provide any security in connection with any loan taken by,—
(a) any director of company, or of a company which is its holding company or any partner or relative of any such director; or
(b) any firm in which any such director or relative is a partner.
(2) A company may advance any loan including any loan represented by a book debt, or give any guarantee or provide any security in connection with any loan taken by any person in whom any of the director of the company is interested, subject to the condition that—
- (a) a special resolution is passed by the company in general meeting:
- Provided that the explanatory statement to the notice for the relevant general meeting shall disclose the full particulars of the loans given, or guarantee given or security provided and the purpose for which the loan or guarantee or security is proposed to be utilised by the recipient of the loan or guarantee or security and any other relevant fact; and
- (b) the loans are utilised by the borrowing company for its principal business activities.
Explanation: For the purposes of this sub-section, the expression “any person in whom any of the director of the company is interested” means—
- (a) any private company of which any such director is a director or member;
- (b) 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
- (c) 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.
(3) Nothing contained in sub-sections (1) and (2) shall apply to—
- (a) the giving of any loan to a managing or whole-time director—
- (i) as a part of the conditions of service extended by the company to all its employees; or
- (ii) 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 rate of prevailing yield of one year, three years, five years or ten years Government security closest to the tenor of the loan; or
- (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 loan made by any bank or financial institution to its subsidiary company:
Provided that the loans made under clauses (c) and (d) are utilised by the subsidiary company for its principal business activities.
(4) If any loan is advanced or a guarantee or security is given or provided or utilised in contravention of the provisions of this section,—
- (i) the company shall be punishable with fine which shall not be less than five lakh rupees but which may extend to twenty-five lakh rupees;
- (ii) every officer of the company who is in default shall be punishable with imprisonment for a term which may extend to six months or with fine which shall not be less than five lakh rupees but which may extend to twenty-five lakh rupees; and
- (iii) the director or 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, shall be punishable with imprisonment which may extend to six months or with fine which shall not be less than five lakh rupees but which may extend to twenty-five lakh rupees, or with both.
Exception/ Modification/ Adaptation:
1) 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. – Notification No. G.S.R. 463(E) dated 5th June, 2015.
2) 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 a company has no default in repayment of such borrowings subsisting at the time of making transactions under this section. –Notification No. G.S.R. 464(E) dated 5th June, 2015.
3) In case of Nidhis, Section 185 shall not apply, 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. – Notification No. G.S.R. 465(E) dated 5th June, 2015.
4) In case of a Specified IFSC public company, in sub-section (1) of section 185, the Explanation, for clause (c), the following clause shall be substituted, namely: –
“(c) any private company of which any such director is a director or member in which director of the lending company do not have direct or indirect shareholding through themselves or through their relatives and a special resolution is passed to this effect;”. –Notification No. G.S.R. 08(E) dated 4th January, 2017.
5) In case of a Specified IFSC public company, in sub-section (1) of section 185, the Explanation, for clause (c), the following clause shall be substituted, namely: –
“(c) any private company of which any such director is a director or member in which director of the lending company do not have direct or indirect shareholding through themselves or through their relatives and a special resolution is passed to this effect.”. –Notification No. G.S.R. 09(E) dated 4th January, 2017