Enshrined in the legislative fabric of the Companies Act, 2013, Section 186 delineates a comprehensive framework governing loans, guarantees, and investments orchestrated by companies. This statutory provision, underpinned by its commitment to financial prudence, endeavours to curtail the potential misappropriation of funds, thereby safeguarding the interests of both shareholders and creditors. This article offers an exhaustive exploration of the intricate contours of Section 186, meticulously unraveling its key provisions and elucidating their far-reaching implications.
Key Points under Section 186:
A company shall not make investment through not more than two layers of investment companies. This provision shall not affect:
- a company from acquiring any other company incorporated in a country outside India if such other company has investment subsidiaries beyond two layers as per the laws of such country;
- a subsidiary company from having any investment subsidiary for the purposes of meeting the requirements under any law or under any rule or regulation framed under any law for the time being in force.
No company shall directly or indirectly —
- give any loan to any person or other body corporate;
- give any guarantee or provide security in connection with a loan to any other body corporate or person; and
- acquire by way of subscription, purchase or otherwise, the securities of any other body corporate.
Exceeding sixty percent of its paid-up share capital, free reserves and securities premium account or one hundred per cent. of its free reserves and securities premium account, whichever is more.
1. Restriction on Inter-Corporate Loans and Investments:
Section 186 intricately delineates limits and restrictions incumbent upon companies when extending loans, guarantees, or investing in other entities. The salient provisions encompass:
- Companies are expressly prohibited from granting loans, providing guarantees, or securing loans in excess of 60% of their paid-up share capital, free reserves, and securities premium account collectively, or 100% of the aggregate of free reserves and securities premium account, whichever figure is more.
- Investments in the shares of other companies are constrained by analogous limits—60% of paid-up share capital, free reserves, and securities premium account combined, or 100% of free reserves and securities premium account, with the higher threshold being determinative.
- Noteworthy exemptions and relaxations are afforded to banking companies, housing finance companies, and government companies in their pursuit of loans, guarantees, and investments.
2. Approval by Board of Directors:
Prerequisite to any loan, guarantee, or investment surpassing the stipulated limits is the imperative of securing consent from all the directors present at the meeting. This approval is mandated to transpire through a resolution sanctioned in the crucible of a board meeting, thereby ensuring a deliberative and accountable decision-making process.
3. Approval of Shareholders:
Where aggregate of loan, guarantee, or investment already made or proposed to be made exceeds the stipulated limits then prior approval of shareholders by way of special resolution passed at the general meeting is required.
4. Approval of PFI
Prior approval of a public financial institution shall be required where the aggregate of the loans and investments so far made, the amount for which guarantee or security so far provided to or in all other bodies corporate, along with the investments, loans, guarantee or security proposed to be made or given exceed the limit as specified, and there is default in repayment of loan instalments or payment of interest thereon as per the terms and conditions of such loan to the public financial institution.
5. Disclosure in Financial Statements:
A paramount aspect of Section 186 is the compulsion placed upon companies to articulate explicit details of loans, guarantees, and investments undertaken during the fiscal year within their financial statements. This disclosure encompasses a comprehensive delineation of the transaction, encapsulating the quantum, purpose, terms, and conditions, as well as the rationale underpinning the board’s approval.
6. Exemptions for Certain Transactions:
Recognizing the exigencies of business operations, Section 186 extends exemptions for transactions within the ordinary course of business, engagements with wholly-owned subsidiaries, or joint venture company, or acquisition is made by holding company, by way of subscription, purchase or otherwise of its wholly-owned subsidiaries. Provided that the company shall disclose the details of such loans or guarantee or security or acquisition in the financial statement as provided u/s 186(4).
Section 186(3) shall not apply to Specified IFSC Public & Private Company, if a company passes a resolution either at meeting of the BOD or by circulation.
7. Penalty for Non-compliance:
The failure to adhere to the mandates of Section 186 invites punitive measures for both the company and its officers in default. The company shall be punishable with fine which shall not be less than twenty-five thousand rupees but which may extend to five lakh rupees and every officer of the company who is in default shall be punishable with imprisonment for a term which may extend to two years and with fine which shall not be less than twenty-five thousand rupees but which may extend to one lakh rupees.
Importance of Section 186:
The pivotal role of Section 186 in underpinning proper financial stewardship, fostering transparency, and fortifying accountability within corporate entities cannot be overstated. By circumscribing the latitude for undue risk-taking, unauthorized fund diversion, and the misuse of corporate resources, these provisions contribute significantly to the overarching goal of safeguarding the interests of shareholders, creditors, and stakeholders.
In essence, Section 186 of the Companies Act, 2013 stands as a sentinel, establishing crucial provisions and restrictions that govern the financial activities of companies. The confluence of limitations, mandatory board approvals, and rigorous disclosure requirements serves as a bulwark against financial impropriety, thereby upholding the integrity of the corporate financial landscape. It is incumbent upon companies to assimilate and adhere to the provisions of Section 186, not merely as a legal obligation but as a testament to their commitment to sound and ethical financial practices. The perpetuation of legal and ethical financial conduct remains the lodestar guiding companies through the labyrinth of corporate governance.