SECTIONS 58A AND 58B
DEPOSITS NOT TO BE
INVITED WITHOUT ISSUING ADVERTISEMENT
Whether employees and
ex-employees could be regarded as persons not falling within the meaning of expression
"public" occurring in section 58A(1)
It has come to the notice of this
Department that some companies are under the mistaken impression that employees
and ex-employees are to be regarded as persons not falling within the meaning
of the expression "public" occurring under section 58A(1) and the
deposits accepted from the aforesaid categories of persons would be outside the
scope of the provisions of section 58A and the rules framed thereunder.
The matter has been examined in great detail and the
Department is advised that as per its normal connotation, the expression
"public" includes a section
of the public also. It is, of course,
permissible for the Legislature to exclude a certain section from the ambit of
the expression "public". As a
matter of fact, sub-section (1) of section 58A makes a distinction between the
public and members of the company.
However, neither sub-section(1) nor sub-section (2) of section 58A of
the Act excludes from its ambit the employees of the company. It is, therefore, reiterated that the
employees and ex-employees are also to be regarded as those falling in the
category of "public" and the deposit accepted from them would as much
attract the provisions of section 58A and the rules made thereunder as deposits
from other categories of "public".
CIRCULAR NO. 8/48/84 CL-X DATED 18.12.1984
Scope and provisions
of Companies (Acceptance of Deposits) Rules, 1975 explained.
Whether deposits received in joint names of director and
non-director/shareholder and non shareholder fall within the purview of rule
2(b)(ix). In superssion of this
Department's Circular No.32/76 [Letter No.4/20/76-CL-X and No.1/1/76 CL-V],
dated 28.9.1976, it is hereby clarified that the amount received by a company
in the joint names of a director and a non-director or in the case of a private
company in the joint names of shareholder and a non-shareholder will not fall
within the purview of rule 2(b)(ix). It
is also clarified that if all the partners of a lending firm are not directors
on the board of directors of the borrowing company, the deposits accepted from
such firms will not fall within the purview of rule 2(b)(ix).
CIRCULAR NO. 1/80[1/1/80-CL-V AND 7/33/78-CL-X], DATED
4.5.1980.
Whether amounts received by private company from its directors and
shareholders, are subject to limits specified in rule 3 - Query : As per rule 2(b) (ix), any amount
received from a person who, at the time of receipt of the amount, was a
director of the company or any amount received by a private company from its
shareholders, shall not be treated as deposits for the purpose of section
58A. In view of doubts as to the exact
scope and application of rule 3(2)(i), it may be clarified as to whether a
private company which accepts deposits only from its directors and shareholders
would have to comply with the limit of
15 per cent laid down in rule 3.
Answer : The
amounts received by a private company from its directors and shareholders are
not deposits within the meaning of rule 2(b)(ix) and hence not subject to the
limits specified in rule 3.
* LETTER NO. 1/101/75-CL/XIV, DATED 21.10.1976.
Whether amounts raised by issue of unsecured bonds or debentures which
have an option to convert them into shares are exempt from the purview of
deposits as defined in rule 2 (b)(x).
1. In terms of rule 2
(b)(x) the amounts raised by issue of bonds or debentures which have an option
to convert them into shares are exempted from the purview of deposits as
defined in sub-rule (b) of rule 2. The
following questions have been raised in regard to the true scope of exemption
contained in clause (x) of rule 2(b), namely:
(1) Whether debentures which are
partly convertible into shares should be treated as fully exempt from the
Deposits Rules or only such portion thereof as is convertible should be
exempted?
(2) Whether on the expiry of the
option for conversion, the convertible portion of the debentures in respect of
which no option as been exercised for conversion by the debenture-holders and
which continue to retain the character of unsecured debentures, should continue
to fall within the purview of deposits as defined in the Deposits Rules?
2. The matter has been
examined and this Department is advised that in the case of debentures which
are partly convertible into shares, only the convertible portion of the
debenture is exempt in terms of the provisions of rule 2(b) (x). Even in regard to the convertible portion of
debentures, once the period of conversion is over the unconverted portion of
debentures would acquire a character of loan and would fall within the
definition of deposits like other loans provided they are not secured by
mortgage of immovable property of the company in terms of clause (x) of rule
2(b). Similarly, where the period for
the exercise of option for conversion has expired, the convertible portion of
the debentures in respect of which no option has been exercised for conversion
by the debenture-holders, will acquire the character of loan and will fall
within the purview of deposits as defined in the Rules, if these debentures are
not secured in the manner mentioned above.
* CIRCULAR NO. 4/12/81-CL-X, DATED 30.3.1984
Whether amount of surplus in the profit and loss account
forms part of 'free reserve' as defined in rule 2(d). After re-examination of the matter in detail, it has since been
decided that the amount of "surplus" shown in the profit and loss
account carried forward under the heading "Reserve and surplus"
appearing in the balance sheet of a company, may be treated as part of
"free reserve" , as defined under the Rules, subject, of course, its
satisfying the condition that it arises by appropriation out of the profits of
the company.
* LETTER NO.3/1/80-CL-X, DATED 3.2.1982.
Whether capital redemption reserve is to be treated as
"free reserve" as defined in rule 2(d) - Capital Redemption Reserve
is to be treated as "free reserve" for the purposes of rule 2(d).
* LETTER NO.4/18/76-CL-XIV, DATED 29.12.1976.
Whether subsidy received under
Central Government Outright Grant or Subsidy Scheme, 1971 a "free
reserve" under rule 2(d). The
subsidy received under the Central Government
Outright Grant and Subsidy Scheme can be treated as "free
reserve" as defined in rule 2(d) of the Companies (Acceptance of Deposits)
Rules, if all the following conditions are fulfilled:-
i) the
subsidy under the "Central Government Outright Grant or Subsidy Scheme,
1971" is received in cash;
ii) the
subsidy is utilised for the purpose for which it is received; and
iii)
the period of 5 years from the commencement of production has lapsed and
the
subsidy has not become recoverable in
terms of conditions of the grant.
* LETTER NO.3/5/84-CL-X, DATED 5.12.1984.
Treatment of repayment of loans
secured by mortgage of assets - Earlier excluded from definition of deposits
but are included now. Query : What
treatment should be given in respect of repayment of loans secured by mortgage
of assets which were earlier excluded from the definition of
"deposit" under the Non-banking Non-financial Companies [Reserve
Bank] Directors, 1966, but which now under the Rules are included within the
definition of "deposit'?
Answer: The
amounts referred to in the first proviso to sub-para (2) of para 3 of the Directions, were "deposits"
within the meaning of para 2(f) though allowed to be accepted beyond the limits
specified in sub-para (2) of para 3.
Hence, acceptance of such amounts when the Directions were in force, was
acceptance of deposits in accordance with the Directions and hence their repayment
is governed by the provision of section 58A(3)(a).
* LETTER NO. 1/101/75-CL-XIV, DATED 11.11.1976
Whether retention of balance
payment of deposit amounts to renewal in terms of rule 3(1)(b) Query : The constituent company has incurred losses
in the last year and its paid-up capital and reserves have depleted. As a result, the deposits already accepted
by the company have crossed the maximum permissible limit prescribed under the
Rules. The deposits accepted by the
company are for a period exceeding six months.
There is no specific provision either under the Rules governing
acceptance of deposits or in the terms and conditions under which deposits have
been accepted by the company prohibiting a part payment by the company against the deposit amount to
those who are willing to accept the same.
The question that arises for consideration is whether the company
concerned can in such a case resort to part payments, both to satisfy the
depositors willing to accept such part payments as also to bring down the
deposits remaining with it within the limits prescribed by law. Incidentally, a question would also arise
whether by making such part payments and keeping the balance amount of
deposits, the company would have by implication renewed the balance amount of
deposits.
Answer: If the
deposits were accepted at a point of time when they were within limits, they
are to be repaid according to the date of maturity. If due to subsequent losses, etc., the deposits already accepted
exceed the limit, which has become reduced due to losses, there is no
contravention of the provisions of the Rules.
* LETTER NO. 3/17/79-CL-X, DATED 30.6.1979.
Ceiling on rate of interest on
deposit - Payment of interest on compound interest - Whether contravenes rule
3(1)(c). It has been decided in
consultation with the Department of Legal Affairs that the payment of compound
interest or payment of interest on Cumulative Time Deposit Scheme does not
contravene the ceiling on interest prescribed in the Rules. The Rules provide that no company shall accept/renew any deposit at a rate of
interest exceeding 15 per cent per
annum. The restriction is that at the
time of acceptance of deposits no company shall offer interest of more than 15
per cent. Moreover, the Rules do not
specify whether the interest should be simple or compound. the term "interest" is a generic
term which may be simple or compound.
* LETTER NO. 4/17/81, DATED 17.2.1982.
Whether amount of unprovided
depreciation from aggregate of paid up share capital and free reserves are to
be deducted for determining limits up to which deposits can be accepted in
terms of rule 3(2) - Rule 3(2) prescribes the limits up to which a non-banking
non-financial company can accept deposits. The limits of deposits are to be
computed with reference to aggregate of paid-up share capital and free
reserves. Explanation below rule 3
provides that in arriving at the aggregate of paid-up share capital and free
reserves of a company, there shall be deducted from the aggregate of paid-up
share capital and free reserves as appearing in the latest audited balance
sheet of the company, the amount of accumulated balance of loss, balance of deferred revenue
expenditure and other intangible assets, if any, as disclosed in the said
balance sheet.
While it is obvious
that the term "accumulated loss" should also include amount of
unprovided for depreciation, yet it has come to the notice of the
Department that in a couple of cases
companies have not deducted the amount of unprovided depreciation while
computing the permissible limits of deposits.
It is essential to deduct the amount of unprovided depreciation from the
aggregate of paid-up share capital and free reserves for determining the limits
up to which deposits can be accepted by them.
* LETTER NO. 4/28/81-CL-X, DATED 2.9.1981.
Whether share premium account to be treated as part of
company's paid-up share capital or free reserves in terms of rule 3(2) . Rule 3 provides that, for the purpose of
calculating the net owned funds of a company, the aggregate of its paid-up
capital and free reserves of the company shall be taken into account to enable
the company to take deposits within the ceiling laid down therein. It has been represented to the Department
that the amount shown in the share premium account in the balance sheet of a
company should form part of its
"free reserves" for the purpose of the said Rules. This question has been examined and it is
clarified that the balance shown in "share premium account" will be
treated as part of the company's paid-up share capital and not its "free
reserves" having regard to the provisions of section 78(1).
* CIRCULAR NO.3/77[1/1/77-CL-V AND 4/5/77-CL-XIV], DATED
15.4.1977.
Determination of paid-up share capital, for the
purposes of reckoning limits under sub-rule (2), under Explanation to rule 3 -
According to Explanation under rule 3, the permissible limits for acceptance of
deposits under rule 3(2)(ii) of the said Rules are required to be computed with
reference to the aggregate of the paid-up share capital and free reserves
appearing in the latest audited balance sheet of the company as reduced by the
amount of accumulated balance of loss,
balance of deferred revenue expenditure and other intangible assets, if any, as
disclosed in the said balance sheet.
This position was reiterated in the Department's letter No.3/18/81 -
CL-X, dated 27.8.1981 addressed to the Institute of Company Secretaries of
India wherein it was also clarified that any change arising after the date of
the relevant balance sheet has to be disregarded.
The question whether any change in the paid-up share
capital of the company occurring after the close of the financial year of the
company should or should not be taken
into account for the purpose of reckoning the limits under rule 3 has again
been examined. There are several
elements, other than the paid-up share capital, which go into the computation
of net worth on the basis of which the limits laid down under rule 3 for
acceptance of deposits are worked out.
By taking into account only the increase in the share capital of the
company and at the same time ignoring the other components of the net worth,
the position would get distorted.
In view of the position set out above, no change in the
provisions of Explanation below rule 3 which have been reiterated in the
Department's letter No.3/18/81-CL-X, dated 27.8.1981, is considered necessary.
*
LETTER NO.4 /12/84-CL-X, DATED 25.7.1984.
Requirement of depositing or investing 10 per cent
of deposits maturing during the year ending on 31st March next following in
terms of rule 3A - Query : Under rule 3A, a company is required to make deposit
/ investment, etc., within one month namely up to April 30 each year of 10 per cent of the deposits as
on March 31 each year, maturing within a year.
However, if any deposits are maturing within the following month of
April itself, the entire amount of deposit would be repaid before April
30. In such case, a view is expressed
that the deposit of 10 per cent of the amount outstanding on March 31 and
repayable within a year should not be required to be deposited in a separate
current account or invested in the manner stipulated in the said rule since the
deposit itself would be repaid within the following month itself, namely, by
April 30, 1980.
Answer: Rule
3A requires a company to deposit 10 per cent of the deposits maturing during
the year. This amount can be utilized
only for repayment of deposits and the amount is to be kept at the level of 10
per cent of the deposits maturing. Accordingly, there does not appear to be any
question of company not required to keep deposits if they have to pay some
deposits in April itself. However, in
case of doubt details of the particular case under reference with full facts
may be sent to the Department for consideration.
*
LETTER NO.3/13/80-CL-X, DATED 20.5.1980.
Requirement of advertisement for inviting deposits
in terms of rule 4(1) - Rule 4 requires every company, intending to invite or
allowing or causing any other person to invite deposits to issue an
advertisement for the purpose. A
question has been raised as to whether an intimation to a depositor on the eve
of maturity of his deposit indicating the date of maturity coupled with a
statement that the depositor may renew his deposit if deemed necessary would
amount to an invitation and hence call
for issue of an advertisement. This
Department has considered the matter and is of the view that such an intimation
would amount to an invitation and hence the company should company with the
requirements of sub-rule(1) of rule 4.
In short, there must be a valid advertisement in force which would
permit such an invitation.
*
CIRCULAR NO. 5[4/3/76-CL-XIV AND 1/1/76-CL-V], DATED 10.3.1976.
Query: A
company's accounts close on June 30, 1975.
If it advertises for deposits before this date, can it continue to
receive deposits from July 1, 1975 onwards till the balance sheet for the year
ended June 30, 1975 is audited? Further, if the above company has not
advertised for deposits prior to June 30, 1975, which is its accounts closing
date, can it advertise subsequent to July 1, 1975 giving the audited figures up
to June 1, 1974 only?
Answer : According to the existing provisions of the
Rules, an advertisement issued during the course of the financial year of a
company remains valid up to the close of that very financial year. The figures of the profits and dividends of
the company for the three financial years immediately preceding the date of an
advertisement are to be given in the advertisement as required under clauses
(f) and (g) of sub-rule (2) of rule 4.
*
LETTER NO.24/75-CL-XIV, DATED 2.7.1975.
A question has been raised as to whether the
advertisements in vernacular newspaper in language other than the vernacular
one is in compliance of rule 4(1). The
question has been examined in consultation with the Reserve Bank of India and
this Department is of the opinion that the intention behind rule 4(1) is that
the advertisement to be published in the vernacular newspaper should be in the
language of that paper, otherwise the very purpose of publication of the
advertisement in the vernacular newspaper will be defeated. The advertisement as required in rule 4(1)
should, therefore, be in the language of the vernacular newspaper.
*
CIRCULAR NO.1/79[1/179-CL-V AND 4/1/77 CL-XIV/XI/X], DATED 5.2.1979.
Query : Whether the text of advertisement in English
as provided by the board of directors which is being translated in the regional
language for publication in the regional language newspaper should also be
approved by the board of directors and for that matter the text of the
advertisement as translated in the regional language shall also be filed
with the Registrar of Companies before its publication in the regional
newspaper?
Answer : Rule 4(1) does not make any distinction in
treatment between English and regional language texts of advertisement. So both the texts should be given equal
treatment.
*
LETTER NO.4/1/77-CL.XIV/XI, DATED 31.3.1978.
Announcement about alterations in terms and
conditions of deposits - Whether amounts to invitation of deposits -Whether in
conformity with section 58A(2) read with rule 4(2) - Notice/advertisement
notifying merely alterations in the terms and conditions of deposits including
change in the rates of interest from a particular date is an amendment to the
statutory advertisement issued earlier and does not require to be in form
prescribed in rule 4(2). While making
announcement about alteration in the terms and conditions including the change
in the rates of interest on deposits, if the company, inter alia, invites
deposits by indicating, for example, that deposits were continued to be
accepted, that the higher rates would be applicable in case the existing
deposits were renewed or in case fresh deposits
were made, that necessary application forms for
accepting deposits were available with the company and/or its agents and so on,
such announcement tantamounts to invitation of deposits and require
advertisement in the form prescribed in rule 4(2) , failing which the advertisement is construed to be not in
conformity with the provisions of section 58A(2) and penal provisions of
section 58A(6)(a)(ii) read with section 58A(6)(b) become attracted.
*
LETTER NO. 4/26/79-CL-X, DATED 20.2.1981.
Requirement of delivering Registrar a copy of
advertisement for registration in terms of rule 4(4) - Under sub-rule (4) of
rule 4, it has been stipulated that no advertisement shall be issued by or on
behalf of a company unless , on or before the date of its issue, there has been
delivered to the Registrar for registration a copy thereof signed by every
person who is named therein as a director.
It may be noted that it would be treated as sufficient compliance with
the aforesaid provisions of the Rules, if the advertisement is signed by every
director or by his agent authorised in writing.
*
CIRCULAR NO. 23/75[1/14/75-CL-XIV], DATED 25.9.1975.
Circular No.23/75, dated 25.9.1975 [printed above] does
not necessarily envisage an agent being authorised by a director through a
power of attorney. The authorisation
may well be in the form of a letter signed by the director.
*
LETTER NO.4/3/77-CL-XIV, DATED 22.7.1977.
Provision
of rule 8 of Acceptance of Deposits Rules for reduction in rate of interest
payable
on deposits. Not
to be applicable in the event of conversion of deposit into secured
debentures. Rule 8 provides for
reduction in the rates of interest payable on deposits by 2 per cent in case
such deposits are repaid prematurely after the expiry of six months from the
date of its acceptance but before the expiry of the period for which such
deposits were accepted by a non-banking
non-financial company. This
rule, however, is not applicable if repayment of deposits is made solely for
the purpose of complying with provisions of (a) the Non-banking Non-financial
Companies [Reserve Bank] Directions, or (b) rule 3.
With a view to protect the interests of depositors,
the Central Government has decided that
the provision regarding reduction in the rates of interest as mentioned in rule
8shall also not be applicable in the event of conversion of deposits into
secured debentures, with the consent of the depositors, in accordance with the
guidelines issued by the Government of India from time to time regarding issue
of "rights" debentures.
*
PRESS NOTE, ISSUED BYTHE DEPARTMENT OF COMPANY AFFAIRS, DATED 22.3.1980.
Submission of return of deposits with the Registrar
under rule 10. Under rule 10 each
non-banking non-financial company holding deposits is required to file with the
Registrar of Companies, a return of deposits as on March 31 of a year in the
prescribed form, on or before June 30 of that year. A copy of this return of
deposits is required to be sent simultaneously to the Reserve Bank of India,
Department of Non-Banking Companies, Calcutta.
The returns of deposits are used by the Reserve Bank
of India for compiling annual surveys of deposits with the non-banking
corporate sector. The Reserve Bank of
India has reported to the Government that most of the companies do not furnish
copies of returns to the Reserve Bank of India within the prescribed time. According to the Reserve Bank, it receives
approximately 25 per cent of the returns before June 30 and another 25 per cent
after a delay of 9-12 months,. Upto
30.6.1980, the Reserve Bank of India is reported to have received only 8-12 such
returns as against about 4,000 returns expected to be received. Delays in submission of the returns of
deposits to the Reserve Bank resulted in inordinate delay in the publication of
the findings of the surveys in the Bank's Bulletin. Thus, the survey as on 31.3.1975 and 12976 were published in
October 1978 and December 1979, respectively, i.e., after a gap of three years
and this delay did attract criticism for the Bank.
In view of the position stated above, the Chambers
of Commerce are requested to direct their constituents to submit the returns of
deposits as on 31st March each year to the Registrar of Companies concerned and
the Reserve Bank of India well in time so as to reach them by 30th June of that
year. It may be noted that
non-submission of return of deposits by June 30 attracts penal provisions of
rule 11.
*
CIRCULAR NO 4/14/80-CL-X, DATED 5.8.1980.
Query
: Whether the return of deposits for the year ending March 31, 1978, should be
submitted in revised form?
Answer : The amendments in the form of return of deposits
are related to other amendments in the Companies [Acceptance of Deposits]
Amendment Rules 1978 which are effective from 1.4.1978. In view of this, return of deposits for the
year ending March 31, 1978, will have to be submitted in the old form which was
effective up to 31.3.1978.
*
LETTER NO.4/12/78-CL-XI, DATED 19.5.1978.
Query : Whether the return of deposits for the year
ending March 31, 1978, is required to be certified by the auditor of the
company before submission to the
Registrar of Companies?
Answer : The return of deposits for the year ending March
31, 1978 is due for submission between 1.4.1978 and 30.6.1978. As the requirement regarding certification
by the auditor is effective from 1.4.1978, the return of deposits for the year
ending March 31, 1978, will have to be got certified by the auditor of the
company before submission to the Registrar of Companies.
*
LETTER NO.4/12/78-CL-XI, DATED 19.5.1978.
Query : In terms of
rule 10 every company to which these Rules apply is required to submit a
return in the prescribed form. Under
rule 1(3), all companies which are not banking companies and not financial
companies are covered by the said
Rules. However, it is not clear
whether in the case of a non-financial company, which does not accept any deposits
within the meaning of the Rules, a nil return has to be filed. It can be stated, unless a company accepts a
deposit within the meaning of the Rules, the
Rules do not become applicable to that particular company and
consequently there is no need to submit a nil return.
Answer
: A nil return under rule 10 is not required to be submitted to the Registrar
of Companies.
*
LETTER NO.4/1/76-CL-XIV, DATED 5.2.1976.
Whether the management
charges could be paid in addition to the brokerage and would not be subject to
the limits set out in rule 3(1) (d) of the Companies (Acceptance of Deposits)
Rules 1975.
With reference to the above, I am directed to say
that the question as to whether the management charges/manager's fee could be
paid in addition to brokerage for
inviting deposits from the public by companies with reference to rule
3(1) (d) of the Companies [Acceptance of Deposits] Rules, 1975, has been
examined by the Department and it is felt that the charges paid to agents,
whether it is called service charges or manager's fees or any other such names,
would amount to payment of brokerage.
If such a brokerage is in excess of the rates specified in the Companies
[Acceptance of Deposits] Rules, 1975, it would be in contravention of rule
3(1)(d) of the Rules.
2. However, the companies may reimburse the actual
expenses incurred by the agents or managers such as advertising expenses,
printing charges, etc., but should not
pay additional remuneration to the agents as it would be against the interest of
the depositors.
*
LETTER NO.3/2/86-CL-X, DATED 14.10.1988.
Rules for repayment of
company deposits made stringent
As a measure of protecting the interests of depositors,
section 58A of the Companies Act, 1956, has been amended by the Companies
[Amendment] Act, 1988, to provide for
compulsory repayment of deposits, unless renewed in accordance with the
prescribed rules. The amended
provisions of sub-section (9) thereof empower the Company Law Board to take
cognizance of any case of non-repayment of deposits on maturity and to direct
the company to make repayment of such deposits within such time and subject to
such conditions, as may be specified in the order. Non-compliance with the orders of the Company Law Board would
attract penalty by way of imprisonment, which may extend to three years and
shall also be liable to a fine of not less than Rs.50 for every day till such
non-compliance continues. The amended
provisions shall come into force with effect from September 1, 1989.
2. The aggrieved depositors may make an application
(in triplicate) to the Company Law Board in the prescribed form, with an
application fee of Rs.50 at the following address:
1.
In respect of companies which have Company Law Board
their registered offices located in Northern Region Bench,
Delhi, Haryana, U.P., Punjab, 5th Floor,
"A" Wing,
Rajasthan, Himachal Pradesh and Shastri Bhavan,
Jammu & Kashmir. New Delhi - 110 001.
2.
In respect of companies which have Company Law Board,
their registered offices located in Eastern Region Benmch,
West Bengal, Orissa, Bihar, Assam, 9, Old Post Office
Meghalaya, Tripura, Manipur and Street (6th Floor),
Nagaland. Calcutta
700 001.
3.
In respect of companies which have Company Law Board,
their registered offices located in Southern Region
Bench,
Tamil Nadu,. Karnataka, Andhra Block I, V-Floor,
Pradesh, Kerala and Union Territory Shastri Bhavan,
of Pondicherry. 26, Haddows
Road,
Madras -600 006.
4.
In respect of companies which have Company Law Board,
their registered offices located in Western Region Bench,
Maharashtra, Madhya Gujarat, NTC House, 2 nd
Floor,
Pradesh, Goa, Daman and Diu. 16, N.M. Marg,
Ballard Estate,
Bombay - 400 038.
The Company Law Board (Bench) Rules, 1975 have been
amended. The application can either be
filed personally or may be sent by post.
3. It is clarified for the information of the
depositors that even the deposits, which had matured before the amended
provisions of section 58A of the Companies
Act, 1956, came into force but have not been repaid, would be covered by the
said amended provisions of law. It may
also be stated that the Company Law Board may, if it is satisfied, also pass
orders under section 58A(9) of the Companies Act, 1956, on its own motion.
*
LETTER NO.1/6/88-CL-V, DATED 29.8.1989.
Scope and extent of
application of section 58B explained.
I
am directed to say that certain doubts seem to exist with regard to the scope
and extent of application of the recently enacted section 58B. It has, therefore, been considered desirable
to clarify the position in this behalf.
Section
58B of the Act runs as follows:
"The provisions of this Act relating to a
prospectus shall, so far as many be, apply to an advertisement referred to in
section 58A."
The advertisement referred to in the above section
is the one required to be issued by the
companies for inviting or accepting deposits.
Such an advertisement is covered under the definition of
"prospectus' laid down in section 2(36), as amended recently. Accordingly, an advertisement for inviting
or accepting deposits is a prospectus and ordinarily all the provisions of the
Act, relating to prospectus automatically become applicable in relation to such
an advertisement. However, the words
"so far as may be" appearing in section 58B are significant in this
context. Having regard to these words,
the Central Government is of the opinion that wherever, in respect of certain
matters relating to advertisement, specific provision has been made in section
58A or in the Acceptance of Deposits Rules, the corresponding provisions in the
Act relating to prospectus would not apply to the advertisement. To illustrate, according to section 56(1),
every prospectus is required to contain information on the matters specified in
Schedule II. This requirement will not
apply to an advertisement for deposits because rule 4 prescribes the form in
which such an advertisement is required to be issued. The other provisions governing the prospectus, including those
relating to civil and criminal liabilities for mis-statements (sections 62 and
63), penalty for fraudulently inducing persons to make deposits with any
company (section 68), etc., will mutatis mutandis apply to the advertisement
for deposits.
*
CIRCULAR NO.1/47/75-CL-XIV, DATED 6.6.1975.