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Loan To Directors – Section 185

Section 185 – Loan to directors, etc (Substituted by The Companies Act, 2017)

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 —

  1. Any director of company, or of a company which is its holding company or any partner or relative of any such director; or
  2. 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 –

  1. 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 utilized by the recipient of the loan or guarantee or security and any other relevant fact; and
  2. The loans are utilized 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—

  1. Any private company of which any such director is a director or member
  2. Any body corporate at a general meeting of which not less than 25% of the total voting power may be exercised or controlled by any such director, or by two or more such directors, together; or
  3. 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 –

  1. 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
  2. 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
  3. 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
  4. 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 utilized 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 utilized in contravention of the provisions of this section –

  1.  The company shall be punishable with fine which shall not be less than Rs 5 lakhs but which may extend to Rs 25 lakhs
  2. Every officer of the company who is in default shall be punishable with imprisonment for a term which may extend to 6 months or with fine which shall not be less than Rs 5 lakhs but which may extend to Rs 25 lakhs and
  3. 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 6 months or with fine which shall not be less than Rs 5 lakhs but which may extend to Rs 25 lakhs, or with both

Vide Notification No GSR 464 (E) dated 5th June 2015, section 185 shall not apply to a private company –

  1. In whose share capital no other body corporate has invested any money
  2. If the borrowings of such a company from banks or financial institutions or any other body corporate is less than twice of its paid up capital or Rs 50 crores, which is lower and
  3. Such a company has no default in repayment of such borrowings subsisting at the time of making transactions under this section.

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