issue of shares at a discount

Issue of shares at a discount is covered under section 53 of the companies act, 2013. A company cannot issue shares at a discount and any such issue shall be void. Subsequently vide the 2017 amendment, issue of shares at a discount was allowed for limited provisions of converting debt into shares pursuant to a statutory resolution plan or debt restructuring scheme in accordance with the guidelines of RBI. So basically the debt restricting scheme should be under the aegis of RBI. The statutory resolution plan can be under IBC also.

Now vide the 2018 Ordinance, contravention of this section has been made more stringent. Now where any company violates this section, the company and every officer who is in default shall be liable to a penalty which shall be equal to the amount raised through issue of shares at a discount of Rs.5 lakhs, whichever is LESS, AND the company shall also be liable to refund all the monies received with interest at the rate of 12% per annum to all the persons to whom the shares were issued.

The earlier provision was penalty of not less than Rs.1 lakh extending upto Rs.5 lakhs for the company and jail term for every officer which may extend to 6 months or with fine of not less than Rs.1 lakh but which could go upto Rs.5 lakhs or with both.

Now to end the confusion, the jail term has been removed for the officer in default but the penal fines has been increased considerably. 

conversion of public company into private company.

MCA has vide an amendment through the Companies Act (Ordinance), 2018 specified that conversion of a public company into a private company will require the approval of the central government,  which means basically it will be the RD office which will manage that. Hitherto it was with the Tribunal.

This is part of the ease of doing business initiative of the government, wherein they first make a provision as inordinately draconian and then keep on relieving the pressure bit by bit to make it seem as a great initiative. This should never have gone to the tribunal considering the kind of pressure and load that our NCLT have ever since its inception, it has been loaded with all and sundry kinds of judicial work.

All pending applications, will, however be handled by the Tribunal only.

regd office

MCA has introduced a new sub-section (9) in section 12 of the companies act, 2013 wherein it gives powers to the Registrar to visit any registered office of a company where it believes that there is no business going on in that premises, and in case there is default, i.e. he finds that there is actually no business or operations going on in that premises, he can take action for striking off the name of the company from the records of MCA.

This is a very draconian provision in the sense that it gives vast powers to a government official to strike off the name of the company where he believes that the company is not doing any business or operations in its registered office.

Therefore, compliance for companies to show that business or operations are taking place in their registered offices - name plate of the company on the outside of the regd office, copy of certificate of incorporation and other statutory licenses to be displayed prominently on the walls of the R/O, keeping books of accounts, statutory registers, original documents, licences, share certificates, common seal, invoice books, bank documents (passbook, cheque book etc.) etc. to be kept at the R/O. All official documents like letter heads should carry the name, CIN, registered office address, GST no., telephone no., e-mail id, website (if any).  

Payment Banks and Small Finance Banks

RBI has clarified that Payment Banks and Small Finance Banks are now allowed to access the call money market both as borrowers and lenders. This is allowed even while the process to get themselves included in the second schedule of the RBI Act, 1934. Second schedule are basically scheduled banks and includes commercials banks and co-operative banks.

The payment banks and small finance banks have to adhere to the prudential limits and other guidelines on call money market. They have to follow the master directions on money market instruments which can be found here.   Call money market includes the call/ notice/ term money market.

The RBI notification can be accessed here

Northern Wilderness

Northern Wilderness by Ray Mears is a fascinating adventure book going into the northern desolate part of Canada and its first explorers and adventurers. It starts with the description of the boreal forest and goes onto the fur trade which starts off and which in turn led to the formation of the Hudson Bay Company but quickly goes to the adventurers trying to locate the Northwest Passage, the strait which connects the Atlantic to the Pacific in the northern part of Canada. It quickly talks of the adventures of Samuel Hearne, Alexander Mackenzie (after whom the Mackenzie River is named), David Thompson, Captain James Cook, George Vancouver, John Jewitt and John Rae. Fascinating to read the contribution of these great men to the world. They were able to proceed further and survive the harsh winter because they adjusted to the life in the tundra just like the local people did. Goodreads 4/5

Eligibility criteria for sponsors - ARCs

RBI has released guidelines on the fit and proper criteria for the sponsors of the asset reconstruction companies.

Determinants of fit and proper status of sponsors of ARCs

In determining whether the sponsor is fit and proper, the Bank shall take into account all relevant factors, as appropriate, including, but not limited to, the following:

(i) The sponsor’s integrity, reputation, track record and compliance with applicable laws and regulations;

(ii) The sponsor’s track record and reputation for operating business in a manner that is consistent with the standards of good corporate governance, integrity, in addition to the similar assessment of individuals and other entities associated with the sponsor;

(iii) The business record and experience of the sponsor;

(iv) Sources and stability of funds for acquisition and the ability to access financial markets;

(v) Shareholding agreements and their impact on control and management of the ARC.

Continuous monitoring arrangements for due diligence in case of existing sponsors

(i) For the purpose of ensuring that all its sponsors are fit and proper, every ARC shall

(a) obtain within one month of the close of financial year a declaration from all its sponsors in Form I as specified in the schedule to these Directions;

(b) furnish a certificate in Form III, by the end of May every year, to the Reserve Bank on the changes in the status of the sponsor.

(ii) Every ARC shall examine any information on the sponsors which may come to its notice that may render such persons not fit and proper to hold such shares and shall immediately furnish a report on the same to the Bank.

Bank notification can be found here

Badhai Ho

Watched Badhai Ho with the wifey on Sunday. watching a movie in a cinema hall after a long time, that too a Hindi movie. The movie is quite good, a dry humour on the topic of late pregnancy when the children are already adults and working or studying and could become parents themselves. Small town north India, local dialects, decent acting by people, at least no over acting, decent dialogues and not many sentimental scenes which are the bane of Hindi movies. So the content is good, decent pace for the movie, not very preachy kind of movie and best of all super acting by veterans Neena Gupta and Surekha Sikri, both of them coming to the celluloid world after a long hiatus. Good to see them back.