Loan to
Director, relative, partner.
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The Companies Act, 1956 does not restrict Private Companies and
Banking Companies to give loans or guarantee or security to its directors.
The same view is taken towards the loans or guarantee or security made by a
holding Company to its subsidiary Company.
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According to Section 295 of the Companies Act, 1956, a Public Limited
Company or its subsidiary should obtain prior approval of the Central
Government for:
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Lending;
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Giving guarantee; or
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Providing security to
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i.
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Any Director of the Company;
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ii.
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Any Director of its holding Company;
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iii.
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Any partner or relative of a Director;
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iv.
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Any firm-in which the
Director/relative is a partner;
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v.
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Any Private Company- in which
such Director is a Director/ member;
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vi.
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Any Body Corporate- in which any
(such) Director (or two or more directors together) controls 25% of voting
power.
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vii.
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Any Body Corporate- The Board
of Directors, Managing Director or Manager of that body Corporate is accustomed
to act on the directions of the Board/any Director of the lending Company.
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Important
points:
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1. Section
295(1) is not applicable to a Government Company provided such Company has
obtained prior approval of the administrative ministry/Department of the
concerned State Government.
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2.
Application for giving loan, providing
security or guarantee connection with a loan shall be made to the Central
Government in Form 24AB.(Companies (Central Government’s) General Rules and
Forms, 1956)
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3.
As the offence under Section 295 is punishable
with fine or imprisonment, it is compoundable but with the permission of the
Court [Section 621A(2)]
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4.
Giving loan by a Company attracts the provisions of section
292. Therefore, Approval of Board by means of a resolution is
essential for the loans/guarantee/security given under Section 295.
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5.
Applicability of Section 372A is accompanying with Section 295
for the loans given to the persons viz. v, vi, and vii of the above given
list.
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6.
The Central Government has permitted the Companies granting
housing loans to their Managing Director and whole-time directors without the
approval of the Central Government, provided there is an existing house
loan scheme for employees.
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7.
This Section is not applicable for loans given
to members and employees of the Company.
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8.
Contravention to Section 295 leads to the
vacation of the office of the Director under Section 283.
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9.
This Section not come under the purview of Section
301 and hence need not be entered in the register, provided it does not
attract the provisions of Section 299.
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Case study
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There is no prohibition against a banking Company lending money to
concerns of which a Director of the bank is also a Director
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Re. Bank
of Commerce Limited(1947)
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A Company selling one of its flat to one of its directors on
receiving half the price in cash and agreeing to accept the balance in
installments does not amount to giving loan to the Director.
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Fridie
Ardeshir Mehta v. Union of India (1991)
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