4.1 Introduction
4.2 5tatutory provisions for issue of debentures
4.3 Conditions for valid issue of debentures
4.4 Procedure relating to issue of debentures
4.5 Conversion of debentures into shares
4.6 Redemption of debentures
4.1 INTRODUCTION
Company can issue debentures to raise loan capital. It is the method of raising borrowed capital. A person purchasing a debenture is called as debenture holder of the company. He is creditor of the company. He is entitled to get interest at a fixed rate. Debentures can be issued at any time by all companies may be public or private. The power to issue debentures rests with the Board of Directors vide Section 292 of the Companies Act. Debentures may be issued at par, at a premium or at a discount.
Unit objectives:
After studying this chapter you will understand -
· Debentures as an important source of borrowed capital.
· The statutory provisions and procedure relating to issue of debentures
· Process of conversion of debentures into share.
· Procedure and methods of redemption of debentures.
Meaning and Definitions
Meaning :
The word debenture is derived from the Latin word, `Debere' which means 'to owe something to someone'. Debenture is an acknowledgement of debt issued by a company under its common seal. It also means that debenture is a proof of loan taken by the company on certain terms and conditions.
Definitions :
i) According to Section 82 of the Companies Act-'Debenture to any member of the company is a movable property, transferable in the manner provided by the Articles of Associations'.
ii) According to Oxford Dictionary `Debenture is a certificate issued by a company acknowledging that it has borrowed money on which interest is being paid.'
4.2 STATUTORY PROVISIONS RELATED TO ISSUE OF DEBENTURES
The legal provisions regarding the issue of debentures are as under :
i) Issue by public as well as by private companies : A Public company can issue debentures only after obtaining a certificate to commence a business. On the other hand, a private company can issue debentures immediately after incorporation.
ii) Power to issue under Section 292 (1) : The board of directors has the power to issue debentures, such right can be exercised by passing a resolution in the board meeting.
iii) Terms of issue and redemption : Debentures can be issued at par, at premium or even at a discount. Similarly debentures can be redeemed at par or at premium but debenture cannot be redeemed at a discount.
iv) Mode of issue : Debentures can be issued publicly by issuing a prospectus or. privately through private placements.
v) Voting right : According to the Companies Act, a company cannot issue debentures carrying voting right.
vi) Security against debentures : Now Companies can issue only secured debentures. Companies (Amendment) Act, 2000 prohibits issue of insecured debentures.
vii) Permission of SEBI : If the issue exceeds 1 crore, permission from SEBI has to be obtained.
viii) Register of debentures : Company must maintain a separate register of debenture holders. It must contain a) names, b) addresses c) occupation of debenture holders d) number of debentures allotted e) their distinctive numbers and f) the amount of debentures, etc.
4.3 CONDITIONS FOR VALID ISSUE OF DEBENTURES
The Company must follow the conditions which are specified in the Companies Act which are as follows -
1) A copy of `prospectus' must be filed with the Registrar by a public company when the debentures are to be issued to the general public.
But when company issues debentures privately a `statement in lieu of prospectus' is to be filed with the Registrar of Companies.
2) The amount which the company receives from applicants for debentures should be deposited in a schedule bank.
3) Allotment of debentures may be made by the Board of Directors.
4) Decision of allotment of debentures must be communicated to the applicant by sending a letter of allotment.
5) The total work of allotment must be completed within 120 days from the date of issue of prospectus.
6) `Debenture Certificate' must be delivered to the holder within 3 months of allotment.
7) Allotment must be absolute and unconditional and as per terms noted in the application form.
4.4 PROCEDURE RELATING TO ISSUE OF DEBENTURES
A company secretary is mainly related with entire process of issue of debenture. He has to complete all statutory formalities in proper order. The procedure of issuing debentures is as follows :
Procedure of Issue of Debentures
Board Resolution
¯
Resolution by share holders
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Consent of SEBI
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Approval of Stock Exchange
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Credit Rating
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Trust Deed
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Issue of Prospectus
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Receiving Applications and Alloting Debentures
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Issue of Debenture Certificate
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Register and Index of Debenture holders
1. Board Resolution : The Board of Directors is required to pass a resolution in the Board meeting. The resolution should clearly specify number of debentures to be issued, face value of debentures, rate of interest payable, terms of redemption, etc.
2. Resolution by share holders : If the issue of debentures exceeds the aggregate of paid up capital and free reserves, such resolution in the general meeting is required to be passed.
3. Consent of SEBI : Permission of SEBI is compulsory in case the issue of debentures exceeds Rs. 1 crore or more.
4. Approval of stock exchange : Approval of stock exchange is required to be taken before prospectus is issued to the public.
5. Credit Rating : As per the SERI guidelines of 2000, the company has to get its debenture rated by two recognized credit rating agencies such as CRISIL, CARE. It should be disclosed in the prospectus.
6. Trust Deed : The trust deed has to be executed between the company and the trustees. Trustees are those who can give guarantee of protecting interest of debenture holders and can redress the grievances of debenture holders, if any.
7. Issue of prospectus : Before issuing prospectus to the general public it has to be filed with the Registrar. The prospectus is an advertisement for the issue of debentures.
8. Receiving applications and Alloting debentures : The company must make the arrangement to receive applications along with application money through company's banker and debentures are to be allotted to the applicants by passing a suitable resolution in the board meeting.
9. Issue of debenture certificate : Debenture certificates are prepared by the secretary. They are signed by atleast two directors and issued to the investors within three months of date of allotment. The debentures are credited to demat account if debentures are in demateralised form.
10. Register and Index of Debenture Holders :-After the allotment of debentures is made, all details about of debenture holders are entered in the Register of Debenture holders. In case the number of debenture holders exceeds 50, the company is required to maintain Index of debenture holders.
Obtain application forrn of `Issue of Debentures' and practice to till it.
4.5 CONVERSION OF DEBENTURES INTO SHARES
Section 81 (3) of the Companies Act permits the issue of convertible debentures. It enables issue of shares to debenture holders in exchange of the amount due to them, where the terms of issue of debentures provide for such an exchange and such terms are approved both by the special resolution of the general meeting and by the Central Government.
Joint Stock Companies can issue either non-convertible or convertible debentures. Convertible debentures are further classified as
A. Fully convertible debentures (FCD)
B. Partly convertible debentures (PCD)
A. FCD: Fully convertible debentures are those which can be fully converted into equity shares after a specific period of time. The debenture holder becomes the member of the company on conversion of debentures. He becomes eligible for the shares and other rights of the shareholders. If conversion is made after 18 months but before 36 months of allotment, conversion is optional on the part of debenture holder.
B. PCD: Partly convertible debentures are those where part of debentures are converted into equity shares and remaining part continues to be debentures. On conversion of partly convertible debentures the debenture holder becomes a member of company and continues to remain as creditor till non-convertible portion is redeemed on maturity.
Provisions for conversion of debentures into shares
1. Prospectus / Letter of Offer : Prospectus of a company must contain time of conversion, rate of conversion and premium amount, if any.
2. Letter of Option : Letter of Option has to be issued to debenture holder giving details of option of conversion, conversion price, etc.
3. Filing of copy : A copy of letter of option has to be filed with the SEBI before issuing to the debenture holder.
4. Rate of conversion : The rate of conversion is usually fixed at the time of issue. In case premium price is not fixed at the time of issue and if amount of convertible debenture exceeds, T 50% Lacs, the debenture holder should be given option of compulsory redemption.
5. Rejection of conversion offer : In case debenture holder wishes to opt for redemption in place of conversion then it has to be paid within one month from the date of, option and the price must not be less than face value.
Procedure for conversion of debenture into share
1) Board Resolution : Resolution for conversion is passed in the board meeting. and is also approved by share holders and debenture holders. A Special resolution is passed to that effect. A copy of this resolution is to be filed with the Registrar of companies within 30 days of passing.
2) Letter of Option : A letter of option is sent to debenture holder and one copy of the same is filed with SEBI.
3) Allotment of shares : Once the debentures are converted into equity shares a letter of conversion is sent and debenture holders are requested to return debenture certificates.
4) Change in Register of Charges : Once the shares are allotted, company has to cancel the charges against asset, which were created at the time of issue of debentures, for which changes are required to be made in the Register of Charges.
5) Entry in Register of Members : Company is required to maintain a Register of Members in which the details about the share holders viz names, address, date of allotment, serial numbers of shares are entered.
6) Filing of Return of allotment : A Return of Allotment is filed with the Registrar of Companies within 30 days of allotment.
4.6 REDEMPTION OF DEBENTURES
As the debenture capital is borrowed capital, it has to be paid back. The repayment of debenture amount to debenture holder is called as redemption of debentures. Every company is required to create a `Debenture Redemption Reserve' for the purpose of redemption of debentures.
Provisions regarding redemption of debentures .
1) To create Debenture Redemption Reserve (DRR) : According to Section 117C of the Companies Act, the company is required to create DRR out of its profit every year until such debentures are redeemed. At least 50% amount of debentures issued should be redeemed from DRR. Remaining amount should be raised by issue of new equity shares or debentures.
2) Default in Repayment : In case the default in repayment is made by the company, the debenture holders can file a complaint with `Company Law Board'. The Company Law Board can direct the company to repay the principal amount of debenture with interest.
Unsecured debenture holders can file a suit in the court for repayment. Secured debenture holders can approach debenture trustees. The trustees can sell off the assets of the company and repay the amount or appoint a court receiver.
3) Penalty for Default : The person responsible for disobeying the order of Company Law Board, shall be fined more than Rs. 500/- per day of default, till default continues.
Procedure for redemption of debentures :
1) Board Meeting : Board meeting is held to pass a resolution to redeem the debentures.
2) Intimation about Redemption to debenture holders : Secretary has to send letter to debenture holders specifying the details of redemption. He also informs them to surrender debenture certificates.
3) Refund : A secretary informs the banker to make the repayment to debenture holders.
4) Change in Register of Debenture holders : Once the process of redemption is completed, the changes are made in the Register of Debenture holders.
5) Changes in the Register of Charges : The charges which were created on company's asset in favour of debenture holders are cancelled and accordingly the changes are made.
6) Intimation to Registrar of Companies : Company Secretary informs the Registrar about the details of redemption of debentures.
Methods of Redemption of Debentures :
Redemption of Debentures is possible by different methods.
1) Redemption after fixed period : A notice is given by the company to the debenture holder about redemption due. Debenture holders require to approach to company's banker to get the form of repayment. The debenture holders require to fill up the prescribed printed form and deposit the same along with debenture certificate in the company's office. On receiving these documents, banks shall make payments to the concerned debenture holders.
2) Redemption by Annual Instalments : In this method, company makes an arrangement to pay the interest, plus principal amount of debentures in annual instalment. Two coupons are attached to debentures. One coupon is for getting refund of annual instalment of principal amount and another one is for receiving payment of annual interest. Such coupons are to be signed and required to be deposited with the company's banker. Accordingly refund is made by the bank on behalf of the company.
3) Redemption by Draw Method : Company adopts lottery method for redemption. Debentures are divided in different lots, and each lot is taken in draw system. And that lot drawn is paid back after giving them intimiation regarding the payment. In this way all lots are refunded in order of draws.
4) Redemption by own purchase method : In this method, company purchases its own debentures from open market at a certain price. After purchasing it such debentures are cancelled. By this way debentures are gradually redeemed.
5) Redemption by fresh issue method : In this method old debentures are redeemed by issue of fresh debentures. The debenture holders get new debentures in place of old debentures.
Collect the Letter of Option, Letter of Conversion, Letter of Renewal and Letter of Redemption and go through them and update your knowledge.
SUMMARY
Debenture is .a document issued by company under its common seal as an evidence of debt.
Procedure of issuing debentures
The procedure of issuing debentures involves the following steps.
a) Board Resolution b) Resolution by, share holders c) Consent of SEBI d) Approval of Stock Exchange. e) Credit rating f) Trust Deed g) Issue of Prospectus h) Receiving Application and Alloting Debentures i) Issue of Debenture Certificates j) Register and Index of Debenture holders
Conversion of Debentures
Convertible Debentures are converted into equity shares on maturity.
Redemption of Debentures
Redemption of Debentures means making repayment of amount of Debenture after the specific period.
Key Terms
Debenture certificate : An acknowledgement of debt
Conversion of Debentures : Converting debentures into equity shares
Redemption of Debentures : Repayment of debenture amount
EXERCISE
Q.1 A Select the correct answer from the possible choices given below and rewrite the statements.
1. A company raises debt capital through the issue of ................
a) equity shares b) preference shares c) debentures
2. Power to issue debentures rests with ...............
a) chairman b) secretary c) Board of directors
3. Debenture certificate must be issued within ............... months of allotment.
a) 3 b) 6 c) 9
4. Fully convertible debentures are converted into ............... shares on maturity.
a) equity b) deferred c) bonus
5. The company has to obtain consent of .............. if issue of debenture exceeds Rs. 1 crore.
a) SEBI b) Registrar c) National Stock Exchange
6. In order to redeem old debentures the company issues ...............
(a) assets (b) public deposits (c) fresh debentures
Q.1 B Match the pairs.
Group A Group B
a. Debentures 1. Repaid at any time
b. Redeemable debentures 2. Proof of ownership
c. Convertible debentures 3. Repaid on maturity
d. Debenture trustees 4. Security about repayment
e. Secured debentures 5. Converted into equity
shares
6. Borrowed capital
7. Unsecured investment
8. Protects interest of debenture holders
9. Converted into stocks
10. Owned capital
Q.1 C Write a word or a term or a pharse which can substitute each of the following statements .
1. The person who has invested in the debentures of a company.
2. The authority who can issue debentures.
3. A certificate issued to the debenture holder after allotment of debentures.
4. The statement to be filed with Registrar at least 3 days before the allotment in case the debentures are issued privately.
5. The reserve created for the protection of interest of debenture holders.
6. An agreement to be executed with the trustees of debentures within 6 months if the debentures are secured.
Q.2 Write notes on.
1. Legal provisions for issue of debentures
2. Conditions for issue of debentures
3. Methods of redemption of debentures
Q.3 State, with reasons, whether the following statements are True or False.
1. Board of directors has power to issue debentures.
2. Debenture holders are the owners of the company.
3. Convertible debentures can be converted into equity shares.
4. Debentures are never redeemed by the company.
5. `Debenture Redemption Reserve' is created for redemption of deposits.
Q.4 Answer in brief.
1. State the provisions related to conversion of debentures.
2. State the procedure of redemption of debentures.
Q.5 Answer the following questions .
1. What is debenture ? Explain in detail procedure for issuing debentures.
2. Explain in detail the procedure for conversion of debentures.
5. DEPOSITS
5.1 Introduction
5.2 Invitation of deposits
5.3 Acceptance of deposits
5.4 Renewal of deposits
5.5 Repayment of deposits
5.6 Defaults and Remedies
5.1 INTRODUCTION
Joint Stock Company needs huge amount of capital. It satisfies its financial needs by two sources. One is external source and second is internal source. External sources are issuing of shares, debentures, borrowing loans from financial institutions and accepting deposits from the general public. Company can also issue bonus shares out of accumulated profit. It is an internal source.
Unit objective :
After studing this chapter you will understand.
Deposits as an important source of medium and short term capital.
The process of acceptance, renewal and repayment of deposits.
The provisions in case of default and remedies.
Deposit-Meaning and Definition
(a) Meaning : Deposit is a loan received by the company from an investor on certain terms and conditions about repayment of principal amount with interest. Deposits are accepted only by public companies. Private companies are restricted to accept the deposits from general public.
(b) Definition : According to Companies Act 1956 the term deposit means, 'Any deposit of money with the company and any amount borrowed by the company'.
Deposit includes :
(a) All types of deposits, public or private.
(b) Deposits collected from the public, members, employees and ex-employees of the company.
Deposit does not include any amount received from
a. Central or State Government, Foreign Government and local authority.
b. Any banking company or State Bank of India, Nationalized Bank and from a Co-operative bank.
c. Any other company or employee as an advance in course of business,
d. Its directors, their relatives or members.
Advantages of accepting deposits
1. The rate of interest payable on deposit is lower than the rate of interest on loan.
2. The deposit does not create charge on the assets of the company.
3. It is a simple method of financing; as it has very few legal complications and formalities to be fulfilled
4. Deposit holders are the creditors of the company. Company can collect huge amount of money without interference of deposit holders in the mangagerment of it.
'Depositors are not the owners of the company.' Comment on this statement
5.2 INVITATION OF DEPOSITS
Company can invite deposits according to the provisions which are laid down by Companies (Amendment) Act 1988 and Companies Rules 1975 which are as follows:
1. A company whose capital is less than Rs. 1 crore as their own fund is prohibited from inviting public deposits.
2. A company who has made default in repayment of any deposit or interest on such amount can't invite deposits.
3. A company can invite or accept deposits from the public only after the publication of an advertisement.
4. Company must issue an advertisement specifying the financial conditions, management structure and other specified details.
5. Advertisement inviting deposits must be published in one leading English newspaper and one regional newspaper in the area or state in which the registered office of the company is situated.
6. Advertisement inviting deposits is a prospectus and hence all provisions of Companies Act 1956 applicable to prospectus are applicable to such advertisements.
7. The advertisement must be issued in the name of Board of Directors of the company. The advertisement contains the following:
a. Name of the company
b. Date of incorporation of the company
c. The nature of business carried on by the company
d. Brief particulars of management of the company
e. Names, occupations of the directors and addresses
f. Profits and dividend declared in last 3 years by the company.
g. Declaration that the company has complied with provisions of the rules.
8. An advertisement must be signed by the majority of directors of the company and is valid for a period of 6 months.
9. A copy of the advertisement should be filed with the Registrar of Companies. In case, a company intends to raise deposits without issuing an advertisement, it is required to file a `Statement in lieu of Advertisement' with the Registrar of Companies.
5.3 ACCEPTANCE OF DEPOSITS
According to the provisions of- Companies (Acceptance of Deposits) Rules 1975 and amendments made thereafter, all companies except the companies doing banking and finance business can accept deposits.
There are some restrictions or limitations on the acceptance of such deposits.
1. A company can accept deposits up to 25% of the total of its paid up share capital and free reserve.
2. A company can accept the deposits in the form of
(i) Unsecured debentures
(ii) Deposits from its members and
(iii) Deposits guaranteed by the directors up to 10% of the total of its paid up capital and free reserves.
3. In all, a company can accept deposits up to 35% of the total of its share capital and free reserves.
4. A Government company can accept deposits up to 35% of paid up capital and free reserves.
5. The application for deposits must be made in the prescribed form supplied by the company only.
6. The depositor should give a declaration that the amount of deposits is not borrowed and not accepted as deposit by him from any other person.
7. According to the provisions of the Companies Act a private company cannot accept deposits from the general public. Such a company can only accept deposits from its share holders, directors, relatives.
8. A company cannot accept deposits payable on demand.
9. A company can accept deposits for a minimum period of 6 months and maximum period of 3 years i.e. 36 months.
10. On acceptance of deposits company must issue a deposit receipt within 8 weeks from the date of receipt of money to the depositors.
11. The maximum rate of interest payable on deposit is 12.5 percent per annum, as per the Companies Amendment Rules 2001.
12. Company can pay brokerage on deposits collected, through brokers, depending on period of deposits at the following rate;
a) up to 1 year-1% b) More than 1 year-1.5% c) More than 2 years-2%
13. Company accepting deposits must keep a Register of Deposits at the registered office of the company.
14. Company must file with the Registrar, a return of deposits duly certified by the auditor of the company on 31st March every year. A copy of such return must also be submitted to the Reserve Bank of India.
15. Any deposit received by a company against the provisions of the Act must be paid back by the company within 30 days of the deposits.
Secretarial duties related with invitation and acceptance of deposits
The secretary has to perform the following duties while inviting and accepting deposits
1. Board meeting : The Board of Directors meeting is arranged in which total amount of deposits to be raised is decided Board must seek the approval of the share holders in the General Meeting, if the deposits to be invited including, deposits already accepted exceed the limit of paid up capital and free reserves of the company.
2. Statutory requirements : The secretary has to ensure that all legal requirements have been fulfilled like
a. A company has net owned funds Rs. 1 crore or more
b. Total amount of deposit to be raised is not more than 25% of its paid up capital and free reserves.
3. Approve the advertisement : The Board should approve and adopt the text of Advertisement, inviting deposits. The Advertisement must contain -
i) The name of the company
ii) The date of incorporation
iii) Business carried out by the company
iv) Particulars of management
v) Names, addresses and occupation of directors
vi) Profits after the tax for the last three financial years, preceding the date of advertisement
vii) Dividends declared during the said 3 financial years
viii) The amount which the company can raise by way of advertisement
4. Resolutions passed : Resolution must be passed on the following matters
i) The names of newspaper in which the advertisement will appear
ii) Names of brokers to be appointed
iii) Opening of bank accounts for collection of deposits.
5. Publish the advertisement : The Secretary has to arrange for publishing the advertisement in one of the leading English newspaper and one of the regional paper, circulated in the state in which registered office of the company is situated. A copy of it is to be filed with the Registrar.
6. Prepare the Application Forms : The printed application forms to be prepared which have to be submitted by the intending depositors. Application forms must contain the declaration by the depositors that the money deposited in the company is not the money borrowed by them.
7. Statement in Lieu of Advertisement : If it is decided to accept deposits without invitation to the public, the secretary has to draft a statement in the lieu of advertisement and the copy of it is to be filed with the Registrar for registration.
8. Arrangement of issue a receipt : The secretary has to arrange to issue a receipt containing the prescribed details on acceptance of application.
9. Scrutiny of Application Forms : All application forms must be scrutinized. Only those application forms which are complete and correct in all respect are considered favourably for accepting deposit.
10. Depositors' List : The secretary has to prepare the list of depositors. A separate list of small depositors must be prepared.
11. Board resolution : The resolution by the Board of Directors is adopted for accepting the deposits and authorizing the secretary to issue the receipts.
12. Issue of Receipt : The receipt for every depositor is prepared by the secretary and it must be issued within 8 weeks from the date of receipt of money.
13. Register of Depositors : A separate Register of Depositors is prepared by the secretary and it is kept at the registered office of the company. This register must be preserved by the company for minimum period of 8 years from the financial year in which last entry is made.
14. Return of Deposits : The secretary has to prepare and file with the Registrar, a Return of Deposits for the period ending 31st March. A copy of `Return of Deposits' must also be sent to the Reserve Bank of India.
Obtain the advertisement for 'Acceptance of Deposits' and study it.
5.4 RENEWAL OF DEPOSITS
The depositor may renew the deposit on completion of the term of deposit. The term `Renew', implies, `to acquire again'. Accordingly the renewal of deposit means acceptance of the same deposits by the company for further period.
Thus the renewal of deposit refers to issuing new deposit receipt in cancellation of receipt for old deposit on maturity of old deposit on repayment. The depositor has to submit the application in writing to renew the deposit. He has to also give a declaration to the effect that the amount is not being deposited out of the funds acquired by him by borrowing or accepting deposits from any other person.
Secretarial duties related to Renewal of Deposits
1. Board Resolution : If the company intends to renew deposits instead of refunding it, the resolution in the Board Meeting in this regard is to be passed.
2. Approval from Depositors : The secretary has to prepare printed application forms for Renewal of Deposits and the same forms are to be sent to all depositors at least one month before the maturity date.
3. Renewal Receipts : After receiving the application form for renewal, the secretary has to prepare renewal receipts and are to be sent to the depositors.
4. Entries in Register of Depositors : The secretary has to make the entries of renewal of deposit in the Register of Depositors.
5.5 REPAYMENT OF DEPOSITS
Company accepts the deposit from the general public on certain terms and conditions. The deposit is accepted for a specific period which is specified in the advertisement. The rules pertaining to the repayment of deposits are also given in Companies (Acceptance of Deposits) Rules, 1975 revised from time to time are as under
(A) Maintenance of Liquid Assets : Every company should deposit or invest a sum not being less that 15% of the amount of its deposit in
i) A current account or other deposit account with any scheduled bank or
ii) In unencumbered securities of the central or any state government or
iii) In unencumbered securities mentioned in Section 20 (a), (d) and (e) of the Indian Trust Act 1882 or
iv) In unencumbered bond issued by the HDFC bank.
According to Section 20 (i) of the Indian Trust Act 1882, the amount so invested must be used only for repayment of deposits outstanding.
(B) Repayment of Deposits :
i) Every deposit received by a company should be repaid according to the terms and conditions of the deposits.
ii) Repayment made before 6 months is not allowed.
iii) Repayment made between 3 months and 6 months will be allowed without interest on the deposits.
iv) Repayment after six months will be given 2% less interest than the rate of interest applicable.
v) A company must intimate the depositors details of maturity, at least 2 months before the deposit.
vi) Problem companies are prohibited from making premature repayment. Problem company means a company suffering from lacunas in administrative, financial, legal aspects.
vii) Repayment can be made after lock-in-period of 6 months by normal companies.
viii) In case of death of depositors, premature repayment can be made during the lock-in-period.
5.6 DEFAULT AND REMEDIES
The provisions regarding Default and Remedies given under Companies (Acceptance of Deposits) Rules, 1975 as revised are as under -
a) Penalty for default in invitation of deposits : In case, if a company invites any deposit against the related provisions of the Act, it is punishable upto Rs. 10/- lac but not less than upto Rs. 50,000/- In case of invitation made against related provisions of the Act and Rules, every officer of the company who is in default is punishable with imprisonment upto 5 years and fine.
b) Repayment of Deposits : When a company has failed to repay deposits or part their of in accordance with the terms and conditions of such deposit, the tribunal may either on its own motion or on the application of depositor, direct by order to the company to make repayment of such deposit or a part their of within a specific time as specified in the order.
c) Penal Interest on Overdue deposits : Overdue deposits are the deposits matured and claimed. Penal rate of interest at 18% shall be paid on overdue deposits.
d) Deposit by Small depositors : Section 58 (AA) has been introduced to protect the interest of small depositors. A small depositor has been defined to mean a depositor who has deposited in a financial year a sum not exceeding Rs. 20000/-.in a company.
Every company which accepts deposit from small depositors must intimate to the Tribunal any default made by it in repayment of such deposits.
Penal action in case of small depositors
i) The penal rate of interest on overdue deposit shall be 20 percent per annum.
n) If the company i5 in default with the repayment of the deposit of small depositor, the company has to give an intimation on monthly basis on the date of default to the Company Law Tribunal. The Company Law Tribunal may,
1. Prohibit the company to accept further deposits.
2. Direct the company to state this fact of nonpayment in every advertisement.
3. Direct the company to state the total number of small depositors and amount due to them in advertisement. .
4. Direct the company to utilize the loan from bank for working capital for repayment to depositors.
5. Direct the company to add the act of non payment in further application form for accepting further deposits.
The default in acceptance and refund of deposit to a small depositor is considered as a cognizable offence under criminal procedure code if a central government makes a complaint in this regard.
SUMMARY
· Public Deposits constitute an important source of short term finance for companies. It has number of advantages like low cost, no charge on assets of company, few legal complications, flexibility _ in capital structure, etc.:
· Invitation of Deposits: For satisfying financial needs company can invite deposits from public, by issuing an advertisement. The advertisement must be published in prescribed format explaining the terms and conditions of deposit. The advertisement must be published in an English leading newspaper and a local newspaper.
· Acceptance of deposits: A company must give a receipt for the amount received by it. Company has to issue the fixed deposit receipt to the depositor once the deposit is accepted: There is a limit on maximum rate of interest payable on deposit i.e. 12.5% p.a. Every company accepting deposits must keep Register of Depositors at its registered office. Depositor should give a declaration that the funds deposited are not borrowed by him. A company should file return of deposits with the Registrar.
· Renewal of Deposits: The depositor may renew the deposits on completion of terms for which it was kept. The depositor is required to submit the application form in writing to the company's office to renew the deposit. .
· Repayment of Deposits : Company can repay the amount of deposit as per the terms and conditions for repayment. Company should maintain at least 15% of deposits in liquid form and use only for repayment of deposits.
· Deposits should not be repaid before a period of 6 months.
· Non repayment of deposits would attract penalty from Company Law Board.
· Default and Remedies: When the company fails to repay deposits or a part of it as per the agreed terms, the company law tribunal may direct by order to repay it and the tribunal may pass the order about such repayment.
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