Whether All transaction to be report u/s 189 including sale, purchase and loan and advance covered u/s 185 & 186

    Posted By : Pankaj Panchal / Published on : 18-Jul-2018 12:48 PM / View : 164 / Comment : 1
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    Hello Ekta Pandey ji, you have written very nicely and much elaborating manner. I have a doubt regarding clause of Order 2016 in 3 (iii) and 3(iv). Whether Loan to Directors u/s 185 or loan & investment u/s 186 is required to be covered under clause 3(iii) "Whether the company has granted any loans, secured or unsecured to companies, firms, Limited Liability Partnerships or other parties covered in the register maintained under section 189 of the Companies Act, 2013. If so, whether the terms and conditions of the grant of such loans are not prejudicial to the company’s interest" or not. Whether contracts or arrangement constitute loan & advance u/s 188 or u/s 184(2) or only covers operational transaction like sale, purchase, leasing as specified u/s 188 only.
    Read more on : loan advance covered purchase sale transaction report including whether

    • Sir,

      Basically, considering your question i have come to the conclusion you have been struck with several queries.

      Just trying my best to resolve your problem through the below mentioned responses

      Query- Whether Loan to Directors u/s 185 or loan & investment u/s 186 is required to be covered under clause 3(iii)

      Ans.  As mentioned in my Article it has been specifically covered in the clause 3(iv) and if there is any discrepancy found or non compliance of any provision with respect to the respective section. Then, the above clause shall be attracted and adverse remarks have to be given with reason to be recorded.

      Query- "Whether the company has granted any loans, secured or unsecured to companies, firms, Limited Liability Partnerships or other parties covered in the register maintained under section 189 of the Companies Act, 2013.

      Sub-Section (1) of Section 189 clearly specifies the following:

      Every company shall keep one or more registers giving separately the particulars

      of All Contracts Or Arrangements to which sub-section (2) of section 184 or section 188 applies, in such manner and containing such particulars as may be prescribed and after entering the particulars, such register or registers shall be placed before the next meeting of the Board and signed by all the directors present at the meeting.

      Additionally,

      Ouery- If so, whether the terms and conditions of the grant of such loans are not prejudicial to the company’s interest" or not.

      Ans- The terms and condition of the grant of such loans may vary from case to case. But if the relevant provision has not been complied with under Companies act, 2013 then the director shall be held liable and punishment has been mentioned under sub-section (5) of section 188 of the Companies act, 2013 and such contract or arrangement, shall be voidable at the option of the company.

      Query- Whether contracts or arrangement constitute loan & advance u/s 188 or u/s 184(2) or only covers operational transaction like sale, purchase, leasing as specified u/s 188 only.

      Ans   'Arrangement' means any scheme, trust, grant, understanding, covenant, agreement, disposition, transaction and includes all steps by which it is carried into effect.

      Sec 188 covers all contracts or arrangement   with a related party with respect to-

      (a) sale, purchase or supply of any goods or materials;

      (b) selling or otherwise disposing of, or buying, property of any kind;

      (c) leasing of property of any kind;

      (d) availing or rendering of any services;

      (e) appointment of any agent for purchase or sale of goods, materials, services

      or property;

      (f) such related party's appointment to any office or place of profit in the company, its subsidiary company or associate company; and

      (g) underwriting the subscription of any securities or derivatives thereof, of the company:

       

      Further 184(2) of the act constitute ANY Contract or Arrangement entered into

      (a) with a body corporate in which such director or such director in association

      with any other director, holds more than two per cent. shareholding of that body corporate, or is a promoter, manager, Chief Executive Officer of that body corporate; or

      (b) with a firm or other entity in which, such director is a partner, owner or

      member, as the case may be,

       

      Thus, both the sections have their own interpretation with respect to the contract or arrangement entered into by the director or the company.

       

      Hope I am able to clear all your doubts now. Thank you.

      31-07-2018 / 09:09:17 AM
      Reply



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