Acceptance of Deposits- Ch V of CA,2013

CS M.Kurtrala Nathan , Last updated: 17 July 2014
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Definitions:

Deposit	Section 2(31) of CA,2013 “deposit” includes any receipt of money by way of deposit or loan or in any other form by a company, but does not include such categories of amount as prescribed in the rule 2(c) of Companies (Acceptance of Deposit) Rules,2014,in consultation with the RBI.
	Rule 2 (C) of CAD Rules,2014 (i) any amount received from the Central Government or a State Government, or any amount received from any other source whose repayment is guaranteed by the Central Government or a State Government, or any amount received from a local authority, or any amount received from a statutory authority constituted under an Act of Parliament or a State Legislature.
	(ii) any amount received from foreign Governments, foreign or international banks, multilateral financial institutions (including, but not limited to, International Finance Corporation, Asian Development Bank, Commonwealth Development Corporation and International Bank for Industrial and Financial Reconstruction), foreign Governments owned development financial institutions, foreign export credit agencies, foreign collaborators, foreign bodies corporate and foreign citizens, foreign authorities or persons resident outside India subject to the provisions of FEMA, 1999 (42 of 1999) and rules and regulations made there under;
	(iii) any amount received as a loan or facility from any banking company or from the State Bank of India or any of its subsidiary banks or from a banking institution notified by the Central Government under section 51 of the Banking Regulation Act, 1949 (10 of 1949), or a corresponding new bank as defined in clause (d) of section 2 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970) or in clause (b) of section (2) of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980 (40 of 1980) , or from a co-operative bank as defined in clause (b-ii) of section 2 of the RBI Act, 1934 (2 of 1934).
	(iv) any amount received as a loan or financial assistance from Public Financial Institutions notified by the Central Government in this behalf in consultation with the RBI or any regional financial institutions or Insurance Companies or Scheduled Banks as defined in the RBI Act, 1934 (2 of 1934
	(v) any amount received against issue of commercial paper or any other instruments issued in accordance with the guidelines or notification issued by the RBI
	(vi)any amount received by a company from any other company; (vii) any amount received and held pursuant to an offer made in accordance with the provisions of the Act towards subscription to any securities, including share application money or advance towards allotment of securities pending allotment, so long as such amount is appropriated only against the amount due on allotment of the securities applied for; (a) if the securities for which application money or advance for such securities was received cannot be allotted within sixty days from the date of receipt of the application money or advance for such securities and such application money or advance is not refunded to the subscribers within fifteen days from the date of completion of sixty days, such amount shall be treated as a deposit under these rules. (b) any adjustment of the amount for any other purpose shall not be treated as refund.
	(viii) Any amount received from a person who, at the time of the receipt of the amount, was a director of the company The director from whom money is received, furnishes to the company at the time of giving the money, a declaration in writing to the effect that the amount is not being given out of funds acquired by him by borrowing or accepting loans or deposits from others
	(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 referred to in Schedule III of the Act excluding intangible assets of the company or bonds or debentures compulsorily convertible into shares of the company within five years If such bonds or debentures are secured by the charge of any assets referred to in Schedule III of the Act, excluding intangible assets, the amount of such bonds or debentures shall not exceed the market value of such assets as assessed by a registered valuer;
	(x) any amount received from an employee of the company not exceeding his annual salary under a contract of employment with the company in the nature of non-interest bearing security deposit
	(xi) any non-interest bearing amount received or held in trust
	(xii) any amount received in the course of, or for the purposes of, the business of the company,- (a) as an advance for the supply of goods or provision of services accounted for in any manner whatsoever provided that such advance is appropriated against supply of goods or provision of services within a period of 365days from the date of acceptance of such advance. In case of any advance which is subject matter of any legal proceedings before any court of law, the said time limit of 365 days shall not apply (b)as advance, accounted for in any manner whatsoever, received in connection with consideration for property under an agreement or arrangement , provided that such advance is adjusted against the property in accordance with the terms of agreement or arrangement (c) as security deposit for the performance of the contract for supply of goods or provision of services (d) as advance received under long term projects for supply of capital goods except those covered under item (b) above If the amount received becomes refundable (with or without interest) due to the reasons that the company accepting the money does not have necessary permission or approval, wherever required, to deal in the goods or properties or services for which the money is taken, then the amount received shall be deemed to be a deposit under these rules. The amount shall be deemed to be deposits on the expiry of 15 days from the date they become due for refund. (xiii) any amount brought in by the promoters of the company by way of unsecured loan in pursuance of the stipulation of any lending financial institution or a bank subject to fulfillment of the following conditions, namely (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 hall be available only till the loans of financial institution or bank are repaid and not thereafter
	(xiv) any amount accepted by a Nidhi company in accordance with the rules made under section 406 of the Act (a) received by the company, whether in the form of instalments or otherwise, from a person with promise or offer to give returns, in cash or in kind, on completion of the period specified in the promise or offer, or earlier, accounted for in any manner whatsoever, or (b) any additional contributions, over and above the amount made by the company as part of such promise or offer shall be treated as a deposit;
Depositor	(i) any member of the company who has made a deposit with the company in accordance with the provisions 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	“eligible company” means a public company as referred to 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 also filed the said resolution with the Registrar of Companies before making any invitation to the Public for acceptance of deposits An eligible company, which is accepting deposits within the limits specified under section 180(1)(c), may accept deposits by means of an ordinary resolution
	fees” means fees as specified in the Companies (Registration Offices and Fees) Rules, 2014;
Form or e-form	Form” or ‘e-Form” means a form set forth in Annexure to these rules which shall be used for the matter to which it relates
Section	section” means section of the Act;
Trustee	“trustee” means the trustee as defined in section 3 of the Indian Trusts Act, 1882 (12 of 1882).

PROHIBITION ON ACCEPTANCE OF DEPOSITS FROM PUBLIC- SEC.73

No company shall invite, accept or renew deposits under this Act from the public except in a manner provided under this Chapter.

Exemption:

It shall apply to a company other than;

a. a Banking Company

b. a NBFC as defined in the RBI Act,1934 registered with the RBI

c. a Housing finance company registered with the National Housing Bank established under the National Housing Bank Act,1987

d. a Company specified by the Central government

A company may, subject to the passing of a resolution in general meeting and subject to Companies (Acceptance of Deposit)rules,2014 in consultation with the Reserve Bank of India, accept deposits from its members on such terms and conditions, including the provision of security, if any, or for the repayment of such deposits with interest, as may be agreed upon between the company and its members.

Conditions:

(a) issuance of a circular to its members including therein a statement showing the financial position of the company, the credit rating obtained, the total number of depositors and the amount due towards deposits in respect of any previous deposits accepted by the company.

(b) filing a copy of the circular along with such statement with the Registrar within 30 days before the date of issue of the circular;

(c) depositing such sum which shall not be less than 15% of the amount of its deposits maturing during a financial year and the financial year next following, and kept in a scheduled bank in a separate bank account to be called as deposit repayment reserve account;

(d) providing deposit insurance

(e) certifying that the company has not committed any default in the repayment of deposits accepted either before or after the commencement of this Act or payment of interest on such deposits; and

(f) providing security, if any for the due repayment of the amount of deposit or the interest thereon including the creation of such charge on the property or assets of the company:

In case where a company does not secure the deposits or secures such deposits partially, then, the deposits shall be termed as ‘‘unsecured deposits’’ and shall be so quoted in every circular, form, advertisement or in any document related to invitation or acceptance of deposits.

Apply to Tribunal:

Every deposit accepted by a company shall be repaid with interest in accordance with the terms and conditions of the agreement.

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

Terms and conditions of acceptance of deposits by companies:

SNo	Company	Terms & Conditions
1	No company referred to section 73(2) and no eligible company shall accept or renew any deposit, whether secured or unsecured, which is repayable on demand or upon receiving a notice within a period of less than six months or more than thirty-six months from the date of acceptance or renewal of such deposit. For the purpose of meeting any of its short-term requirements of funds, a company may accept or renew such deposits for repayment earlier than six months from the date of deposit or renewal, as the case may be,	Deposits shall not exceed 10% of the aggregate of the paid up share capital and free reserves of the company, and Deposits are repayable not earlier than three months from the date of such deposits or renewal thereof.
2	No company referred to section 73(2) shall accept or renew any deposit from its members.	If the amount of such deposits together with the amount of other deposits outstanding as on the date of acceptance or renewal of such deposit exceeds 25%. of the aggregate of the paid-up share capital and free reserves of the company
3	(a) No eligible company shall accept or renew any deposit from its members	If the amount of such deposit together with the amount of deposits outstanding as on the date of acceptance or renewal of such deposits from members exceeds 10% of the aggregate of the paid-up share capital and free reserves of the company;
3	(b) No eligible company shall accept or renew any other deposit	If the amount of such deposit together with the amount of such other deposits, other than the deposit referred to in clause (a), outstanding on the date of acceptance or renewal exceeds 25% of aggregate of the paid-up share capital and free reserves of the company
4	No Government company eligible to accept deposits under section 76 shall accept or renew any deposit	If the amount of such deposits together with the amount of other deposits outstanding as on the date of acceptance or renewal exceeds 35% of the aggregate of its paid up share capital and free reserves of the company
5	No company referred to section 73(2) or any eligible company shall invite or accept or renew any deposit in any form.	carrying a rate of interest or pay brokerage thereon at a rate exceeding the maximum RoI or brokerage prescribed by the RBI for acceptance of deposits by NBFCs

Where depositors so desire, deposits may be accepted in joint names not exceeding three, with or without any of the clauses, namely, “Jointly”, “Either or Survivor”, “First named or Survivor”, “Anyone or Survivor”.

The person who is authorised, in writing, by a company to solicit deposits on its behalf and through whom deposits are actually procured shall only be entitled to the brokerage and payment of brokerage to any other person for procuring deposits shall be deemed to be in violation of these rules.

The company shall not reserve to itself either directly or indirectly a right to alter, to the prejudice or disadvantage of the depositor, any of the terms and conditions of the deposit, deposit trust deed and deposit insurance contract after circular or circular in the form of advertisement is issued and deposits are accepted.

Form and particulars of advertisements or circulars.-

Issue circular:

Every company referred to section 73(2) intending to invite deposit from its members shall issue a circular to all its members by registered post with acknowledgement due or speed post or by electronic mode in Form DPT-1

Publish Circular:

The circular may be published in English language in an English newspaper and in vernacular language in a vernacular newspaper having wide circulation in the State in which the registered office of the company is situated.

Every eligible company intending to invite deposits shall issue a circular in the form of an advertisement in Form DPT-1 for the purpose in English language in an English newspaper and in vernacular language in one vernacular newspaper having wide circulation in the State in which the registered office of the company is situated.

Upload copy of Circular:

Every company inviting deposits from the public shall upload a copy of the circular on its website, if any.

File copy of Circular with Registrar:

No company shall issue or allow any other person to issue or cause to be issued on its behalf, any circular or a circular in the form of advertisement inviting deposits, unless such circular or circular in the form of advertisement is issued on the authority and in the name of the Board of directors of the company.

No circular or a circular in the form of advertisement shall be issued by or on behalf of a company unless, not less than thirty days before the date of such issue, there has been delivered to the Registrar for registration a copy thereof signed by a majority of the directors of the company as constituted at the time the Board approved the circular or circular in the form of advertisement, or their agents, duly authorised by them in writing.

Validity of Circular:

A circular or circular in the form of advertisement issued shall be valid until-

a. the expiry of six months from the date of closure of the financial year in which it is issued or

b. the date on which the financial statement is laid before the company in AGM or,

c. where the AGM for any year has not been held, the latest day on which that meeting should have been held in accordance with the provisions of the Act, whichever is earlier and

A fresh circular or circular in the form of advertisement shall be issued, in each succeeding financial year, for inviting deposits during that financial year.

The date of the issue of the newspaper in which the advertisement appears shall be taken as the date of issue of the advertisement and the effective date of issue of circular shall be the date of dispatch of the circular

Manner and extent of deposit insurance:

Enter into Deposit Insurance Contract:

Every company referred to section 73(2) and every other eligible company inviting deposits shall enter into a contract for providing deposit insurance at least 30 days before the issue of circular or advertisement or at least thirty days before the date of renewal, as the case may be.

The amount as specified in the deposit insurance contract shall be deemed to be the amount in respect of both principal amount and interest due thereon.

The Companies may accept the deposits without deposit insurance contract till the 31st March 2015

Details of Deposit Insurance Contract (DIC):

The deposit insurance contract shall specifically provide that in case the company defaults in repayment of principal amount and interest thereon, the depositor shall be entitled to the repayment of principal amount of deposits and the interest thereon by the insurer up to the aggregate monetary ceiling as specified in the contract.

In the case of any deposit and interest not exceeding Rs.20,000/-	The DIC shall provide for payment of the full amount of the deposit and interest
In the case of any deposit and the interest thereon in excess of Rs.20,000/-	The DIC shall provide for payment of an amount not less than Rs.20,000/-for each depositor

The amount of insurance premium paid on the insurance of such deposits shall be borne by the company itself and shall not be recovered from the depositors by deducting the same from the principal amount or interest payable thereon.

Default in Deposit Insurance Contract:

If any default is made by the company in complying with the terms and conditions of the deposit insurance contract which makes the insurance cover ineffective-

a. the company shall either rectify the default immediately or

b. enter into a fresh contract within thirty days and

In case of non-compliance-

a. the amount of deposits covered under the deposit insurance contract and interest payable thereon shall be repaid within the next fifteen days and

b. if such a company does not repay the amount of deposits within said fifteen days it shall pay 15% interest per annum for the period of delay and shall be treated as having defaulted and shall be liable to be punished in accordance with the provisions of the Act.

Creation of security:

Charge on assets:

Every company referred to section 73(2) and every eligible company inviting secured deposits shall provide for security by way of a charge on its assets as referred to in Schedule III of the Act excluding intangible assets of the company for the due repayment of the amount of deposit and interest thereon for an amount which shall not be less than the amount remaining unsecured by the deposit insurance

Assessment by Registered valuer:

In the case of deposits which are secured by the charge on the assets referred to in Schedule III of the Act excluding intangible assets, the amount of such deposits and the interest payable thereon shall not exceed the market value of such assets as assessed by a registered valuer.

The company shall ensure that the total value of the security either by way of deposit insurance or by way of charge or by both on company’s assets shall not be less than the amount of deposits accepted and the interest payable thereon.

For the purposes of proviso to sub-clause (ix) of clause (c) of sub-rule (1) of rule 2 and this sub-rule, it is hereby clarified that pending notification of sub-section (1) of section 247 of the Act and finalisation of qualifications and experience of valuers, valuation of stocks, shares, debentures, securities etc. shall be conducted by an independent merchant banker who is registered with the SEBI or an independent chartered accountant in practice having a minimum experience of ten years.

Security for Deposits:

The security (not being in the nature of a pledge) for deposits shall be created in favour of a trustee for the depositors on:

a. specific movable property of the company, or

b. specific immovable property of the company wherever situated, or any interest therein

Appointment of trustee for depositors

No company referred to section 73(2) or any eligible company shall issue a circular or advertisement inviting secured deposits unless the company has appointed one or more trustees for depositors for creating security for the deposits.

Obtain written consent

A written consent shall be obtained from the trustee for depositors before their appointment and a statement shall appear in the circular or circular in the form of advertisement with reasonable prominence to the effect that the trustees for depositors have given their consent to the company to be so appointed.

Execute Deposit Trust Deed:

The company shall execute a deposit trust deed in Form DPT-2 at least seven days before issuing the circular or circular in the form of advertisement.

Appointment of Trustee:

No person including a company that is in the business of providing trusteeship services shall be appointed as a trustee for the depositors, if the proposed trustee –

(a) is a director, key KMP or any other officer or an employee of the company or of its holding, subsidiary or associate company or a depositor in the company;

(b) is indebted to the company, or its subsidiary or its holding or associate company or a subsidiary of such holding company;

(d) has entered into any guarantee arrangement in respect of principal debts secured by the deposits or interest thereon;

(e) is related to any person specified in clause (a) above.

Removal of Trustee;

No trustee for depositors shall be removed from office after the issue of circular or advertisement and before the expiry of his term except with the consent of all the directors present at a meeting of the board.

In case the company is required to have independent directors, at least one independent director shall be present in such meeting of the Board.

Duties of trustees.:

It shall be the duty of every trustee for depositors to-

(a) ensure that the assets of the company on which charge is created together with the amount of deposit insurance are sufficient to cover the repayment of the principal amount of secured deposits outstanding and interest accrued thereon;

(b) satisfy himself that the circular or advertisement inviting deposits does not contain any information which is inconsistent with the terms of the deposit scheme or with the trust deed and is in compliance with the rules and provisions of the Act;

(d) take such reasonable steps as may be necessary to procure a remedy for any breach of covenants of the trust deed or the terms of invitation of deposits;

(e) take steps to call a meeting of the holders of depositors as and when such meeting is required to be held;

(f) supervise the implementation of the conditions regarding creation of security for deposits and the terms of deposit insurance;

(g) do such acts as are necessary in the event the security becomes enforceable;

(h) carry out such acts as are necessary for the protection of the interest of depositors and to resolve their grievances

Meeting of depositors:

The trustee for depositors shall call a meeting of all the depositors on-

(a) requisition in writing signed by at least one-tenth of the depositors in value for the time being outstanding;

(b) the happening of any event, which constitutes a default or which, in the opinion of the trustee for depositors, affects the interest of the depositors

Form of application for deposits:

No company shall accept, or renew any deposit, whether secured or unsecured, unless an application, in such form as specified by the company, is submitted by the intending depositor for the acceptance of such deposit.

The form of application shall contain a declaration by the intending depositor to the effect that the deposit is not being made out of any money borrowed by him from any other person.

Power to nominate:

Every depositor may, at any time, nominate any person to whom his deposits shall vest in the event of his death and the provisions of section 72 shall, as far as may be, apply to the nomination made under this rule.

Furnishing of deposit receipts to depositors.-

Every company shall, on the acceptance or renewal of a deposit, furnish to the depositor or his agent a receipt for the amount received by the company, within a period of twenty one days from the date of receipt of money or realisation of cheque or date of renewal.

The receipt shall –

- be signed by an officer of the company duly authorised by the Board in this behalf and

- state the date of deposit,

- the name and address of the depositor,

- the amount received by the company as deposit,

- the rate of interest payable thereon and the date on which the deposit is repayable.

Maintenance of liquid assets and creation of deposit repayment reserve account.

Every company referred to section 73 (2) and every eligible company shall on or before the 30th day of April of each year deposit the sum which shall not be less than 15 % of the amount of its deposits maturing during a financial year and the financial year next following, with any scheduled bank in a separate bank account to be called as “deposit repayment reserve account” and the amount so deposited shall not be utilised for any purpose other than for the repayment of deposits.

The amount remaining deposited shall not at any time fall below fifteen per cent. of the amount of deposits maturing, until the end of the current financial year and the next financial year.

Registers of deposits.

Every company accepting deposits shall maintain at its registered office one or more separate registers for deposits accepted or renewed, in which there shall be entered separately in the case of each depositor the following particulars;

Particulars of deposits:

(a) name, address and PAN of the depositor/s;

(b) particulars of guardian, in case of a minor;

(d) deposit receipt number;

(e) date and the amount of each deposit;

(f) duration of the deposit and the date on which each deposit is repayable;

(g) rate of interest or such deposits to be payable to the depositor;

(h) due date for payment of interest;

(i) mandate and instructions for payment of interest and for non-deduction of tax at source, if any;

(j) date or dates on which the payment of interest shall be made;

(k) details of deposit insurance including extent of deposit insurance;

(l) particulars of security or charge created for repayment of deposits;

(m) any other relevant particulars;

The entries shall be made within seven days from the date of issuance of the receipt duly authenticated by a director or secretary of the company or by any other officer authorised by the Board for this purpose.

The register shall be preserved in good order for a period of not less than eight years from the financial year in which the latest entry is made in the register.

General provisions regarding premature repayment of deposits.

Where a company makes a repayment of deposits, on the request of the depositor, after the expiry of a period of six months from the date of such deposit but before the expiry of the period for which such deposit was accepted, the rate of interest payable on such deposit shall be reduced by one per cent from the rate which the company would have paid had the deposit been accepted for the period for which such deposit had actually run and the company shall not pay interest at any rate higher than the rate so reduced

Exemption:

If the repayment of any deposit before the expiry of the period for which such deposit was accepted by the company is made solely for the purpose of—

(a) complying with the provisions of Terms and conditions of acceptance of deposit by companies.

(b) providing war risk or other related benefits to the personnel of the naval, military or air forces or to their families, on an application made by the associations or societies formed by such personnel, during the period of emergency declared under article 352 of the Constitution.

If a company referred to section 73(2) or any eligible company permits a depositor to renew his deposit, before the expiry of the period for which such deposit was accepted by the company, for availing of a higher rate of interest, the company shall pay interest to such depositor at the higher rate if such deposit is renewed in accordance with the other provisions of these rules and for a period longer than the unexpired period of the deposit.

If the period for which the deposit had run contains any part of a year, then, if such part is less than six months, it shall be excluded and if such part is six months or more, it shall be reckoned as one year.

Return of deposits to be filed with the Registrar:

Every company to which these rules apply, shall on or before the 30th day of June, of every year, file with the Registrar, a return in Form DPT-3 along with the fee as provided in Companies (Registration Offices and Fees) Rules, 2014 and furnish the information contained therein as on the 31st day of March of that year duly audited by the auditor of the company.

Penal rate of interest:

Every company shall pay a penal rate of interest of 18% per annum for the overdue period in case of deposits, whether secured or unsecured, matured and claimed but remaining unpaid.

Power of Central Government to decide certain questions.:

If any question arises as to the applicability of these rules to a particular company, such question shall be decided by the Central Government in consultation with the RBI.

Punishment for contravention:

If any company referred to section 73(2) or any eligible company inviting deposits or any other person contravenes any provision of these rules for which no punishment is provided in the Act, the company and every officer of the company who is in default shall be punishable with fine which may extend to Rs.5,000/- and where the contravention is a continuing one, with a further fine which may extend to Rs.500/- for every day after the first day during which the contravention continues.

Deposits – CA,1956 Vs CA,2013:

S.No	CA,1956	CA,2013
1	Definition: Section 58A of the companies Act,1956 defines deposit as,” any deposit of money with and includes any amount borrowed by a company but shall not include such categories of amount as prescribed in the rule 2(b) of CAD Rules,1975, in consultation with the RBI”.	As per Section 2(31) of the Companies Act,2013 “deposit” includes any receipt of money by way of deposit or loan or in any other form by a company, but does not include such categories of amount as prescribed in the rule 2(c) of CAD Rules,2014,in consultation with the RBI.
2	Conditions: There is no stringent conditions on accepting of deposits from members	It imposes stringent conditions even on accepting of deposit from members of the company.
3	Acceptance of Deposit: Every public company may accept deposits from the public subject to compliance with the CAD Rules,1975.	Only public company having Net worth of Rs.100 Crores or Turnover of Rs.500 Crores may invite, accept or renew deposit from the public. Other Companies may invite, accept or renew deposit only from its members.
4	Deposit Insurance: Insurance for deposit was not specified in the CA,1956	The Companies may accept the deposits without deposit insurance contract till the 31st March 2015

REPAYMENT OF DEPOSITS ETC.,. ACCEPTED BEFORE COMMENCEMENT OF THE ACT- SEC-74

Where in respect of any deposit accepted by a company before the commencement of this Act, the amount of such deposit or part thereof or any interest due thereon remains unpaid on such commencement or becomes due at any time thereafter, the company shall—

(a) file, within a period of three months from such commencement or from the date on which such payments, are due, with the Registrar a statement in Form DPT-4* of all the deposits accepted by the company and sums remaining unpaid on such amount with the interest payable thereon along with the arrangements made for such repayment, notwithstanding anything Contained in any other law for the time being in force or under the terms and conditions subject to which the deposit was accepted or any scheme framed under any law; and

(b) repay within one year from such commencement or from the date on which such payments are due, whichever is earlier.

*It has been clarified by MCA vide General Circular 27/2014 dated 30th June,2014 ,the time period for filing Form DPT-4 is extended up to 31st August,2014 without any additional fee in term of Section 403 of the act to enable the companies to file the statement with the Registrar.

Extension of time for repayment:

The Tribunal may on an application made by the company, after considering the financial condition of the company, the amount of deposit or part thereof and the interest payable thereon and such other matters, allow further time as considered reasonable to the company to repay the deposit.

Penalty:

If a company fails to repay the deposit or part thereof or any interest thereon or such further time as may be allowed by the Tribunal –

Company

Fine of Rs.1 Crore upto Rs.10 Crores

Officer in default

Imprisonment upto 7 years or

With fine of Rs,25 lakhs to Rs.2 Crores or

With both.

DAMAGES FOR FRAUD- SEC-75:

Where a company fails to repay the deposit or part thereof or any interest thereon or such further time as may be allowed by the Tribunal and it is proved that the deposits had been accepted with intent to defraud the depositors or for any fraudulent purpose, every officer of the company who was responsible for the acceptance of such deposit shall be personally responsible, without any limitation of liability, for all or any of the losses or damages incurred by the depositors and also liable under section 447 for fraud.

Any suit, proceedings or other action may be taken by any person, group of persons or any association of persons who had incurred any loss as a result of the failure of the company to repay the deposits or part thereof or any interest thereon.

Penalty:

Officer

Fraud:

Imprisonment for 6 months to 10 years and

Fine which shall not be less than amount involved in the fraud but which may extend to 3 times the amount involved in the fraud.

Fraud involves public interest:

Imprisonment shall not be less than 3 years.

ACCEPTANCE OF DEPOSITS FROM PUBLIC BY CERTAIN COMPANIES- SEC-76

A public company, having net worth of not less than Rs.100 Crores or turnover of not less than Rs.500 Crores, may accept deposits from persons other than its members subject to compliance with the requirements provided in section 73(2) and Companies (Acceptance of Deposit) rules,2014

Obtain rating from Credit Rating Agency:

Every company shall be required to obtain the rating (including its net worth, liquidity and ability to pay its deposits on due date) from a recognised credit rating agency for informing the public the rating given to the company at the time of invitation of deposits from the public which ensures adequate safety and the rating shall be obtained for every year during the tenure of deposits.

Create charge on assets:’

Every company accepting secured deposits from the public shall within 30 days of such acceptance, create a charge on its assets of an amount not less than the amount of deposits accepted in favour of the deposit holders in accordance with CAD, rules 2014.

Pursuant to provisions of section 76(2) of the Act, the provisions of sections 73 and 74 shall, mutatis mutandis, apply to acceptance of deposits from public by eligible companies.

In case of a company which had accepted or invited public deposits under the relevant provisions of the Companies Act, 1956 and rules made under that Act (hereinafter known as “Earlier Deposits”) and has been repaying such deposits and interest thereon in accordance with such provisions, the provisions of section 74(1)(b) of the Act shall be deemed to have been complied with if the company complies with requirements under the Act and these rules and continues to repay such deposits and interest due thereon on due dates for the remaining period of such deposit in accordance with the terms and conditions and period of such Earlier Deposits and in compliance with the requirements under the Act and these rules.

The fresh deposits by every eligible company shall have to be in accordance with the provisions of Chapter V of the Act and these rules.

Comments:

a. All private limited jewellers who run gold saving schemes for durations of more than a year, fall under the new Companies Act.

b. Jewellery companies have to treat the money collected through monthly instalment schemes for gold purchases as deposit.

c. Jewellers running their stores as sole proprietorships or partnership firms can still run savings schemes without any panic over the new regulations.

d. No deposit scheme should offer a return that is higher than what is permitted for NBFCs.

e. The Companies may accept the deposits without deposit insurance contract till 31st March 2015.

f. Companies which do not meet the requirements of the law but have deposits running, need to return the deposits to the public before April 1, 2015.

CS M.Kurthalanathan

Practising Company Secretary

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