Incorporation, capital management and business




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32 The Reserve Bank of India Act, 1934
information and in such form and within such time as may be specified by the Bank from time to time.
(2) A banking company shall, notwithstanding anything to the contrary contained in any law for time being in force or in any instrument regulating the constitution thereof or in any agreement executed by it, relating to the secrecy of its dealings with its constituents, be bound to comply with any direction issued under sub section (1).
45D. Procedure for furnishing credit information to banking companies  (1) A banking company may, in connection with any financial arrangement entered into or proposed to be entered into by it, with any person, make an application to the Bank in such form as the Bank may specify requesting it to furnish the applicant with such credit information as may be specified in the application.
(2) On receipt of an application under sub section (1), the Bank shall, as soon as may be, furnish the applicant with such credit information relating to the matters specified in the application, as may be in its possession.
Provided that the information so furnished shall not disclose the names of the banking companies which have submitted such information to the Bank.
(3) The Bank may in respect of each application levy such fees, not exceeding twenty five rupees, as it may deem fit for furnishing credit information.

45E. Disclosure of information prohibited  (1) Any credit information contained in any statement submitted by a banking company under section 45C or furnished by the Bank to any banking company under section 45D, shall be treated as confidential and shall not, except for the purposes of this Chapter, be published or otherwise disclosed.
(2) Nothing in this section shall apply to—


  1. the disclosure by any banking company, with the previous permission of the Bank, of any information furnished to the Bank under section 45C;

  2. the publication by the Bank, if it considers necessary in the public interest so to do, of any information collected by it under section 45C. in such consolidated form as it may think fit without disclosing the name of any banking company or its borrowers;

  3. the disclosure or publication by the banking company or by the Bank of any credit information to any other banking company or in accordance with the practice and usage customary among bankers or as permitted or required under any other law:

Provided that any credit information received by a banking company under this clause shall not be published except in accordance with the practice and usage customary among bankers or as permitted or required under any other law.


(3) Notwithstanding anything contained in any law for the time being in force, no court, tribunal or other authority shall compel the Bank or any banking company to produce or to give inspection of any statement submitted by that banking company under section 45C or to disclose any credit information furnished by the Bank to that banking company under section 45D.
The Reserve Bank of India Act. 1934 33
45F. Certain claims for compensation barred  No person shall have any right, whether in contract or otherwise, to any compensation for any loss incurred by reason of the operation of any of the provisions of this chapter.
45G. Penalties  [Repealed by the Reserve Bank of India (Amendment) Act, 1974 (51 of] 974)].
CHAPTER III B

PROVISIONS RELATING TO NON BANKING INSTITUTIONS

RECEIVING DEPOSITS AND FINANCIAL INSTITUTIONS
45H. Chapter III B not to apply in certain cases  The provisions of this Chapter shall not apply to the State Bank or banking company as defined in section 5 of the Banking Regulation Act, 1949 (10 of 1949) or 1[a corresponding new bank as defined in clause (da) of section 5 of that Act or a subsidiary bank as defined in the State Bank of India (Subsidiary Banks) Act, 1959 (3R of 1959)] or a Regional Rural Bank or a cooperative bank or a primary agricultural credit society or primary credit society.
Provided that from the purposes Of' this Chapter, the Tamil Nadu Industrial Investment Corporation Limited shall not be deemed to be a banking company.
45 1. Definitions  In this chapter, unless the context otherwise requires—
(a) 2"business of a non banking financial institution" means carrying on the business of a financial institution referred to in clause (c) and includes business of a non banking financial company referred to in clause (f);
3(aa) "company" means a company as defined in section 3 of the Companies Act, 1956 (1 of 1956) and includes a foreign company within the meaning of section 591 of that Act;
(b) "corporation" means a corporation incorporated by an Act of any Legislature;
4[(bb) "deposit" includes and shall be deemed always to have included any receipt of money by way of deposit or loan or in any other form, but does not include—
(i) amount raised by way of share capital;

(ii) amount contributed as capital by partners of a firm;

(iii) amounts received from a scheduled bank or a co operative bank or any other banking company as defined in clause (c) of section 5 of the Banking Regulation Act, 1949 (10 of 1949);

(iv) any amount received from

(a) the Development Bank,

(b) a State Financial Corporation,

__________________________________

I Ins. by Act 23 of 1997, S.2. w.e.f. 9.1.1997.

2 Ins. by Act 23 of 1997, S.2, w.e.f. 9.1.1997.

3 Clause (a) renumbered as "(aa)" by Act 23 of 1997, S.2, w.e.f. 9.1.1997.

4 Subs. by Act 1 of' 1984, w.e.f. 15.2.1984.
34 The Reserve Bank of India Act, 1934
(c) any financial institution specified in or under section 6A of the Industrial Development Bank of India Act, 1964 (18 of 1964), or
(d) any other institution that may be specified by the Bank in this behalf;
(v) amounts received in the ordinary course of business, by way of 

(a) security deposit,

(b) dealership deposit,

(c) earnest money, or

(d) advance against orders for goods, properties or services;
(vi) any amount received from an individual or a firm or an association of individuals not being a body corporate, registered under any enactment relating to money lending which is for the time being in force in any State; and
(vii) any amount received by way of subscriptions in respect of a chit.
Explanation I 'Chit' has the meaning assigned to it in clause (b) of section 2 of the Chit Funds Act, 1982 (40 of 1982).
Explanation II  Any credit given by a seller to a buyer on the sale of any property (whether movable or immovable) shall not be deemed to be deposit for the purposes of this clause;
(c) "financial institution" means any non banking institution which carries on as its business or part of its business any of the following activities, namely:—
(i) the financing, whether by way of making loans or advances or otherwise, of any activity other than its own;

(ii) the acquisition of shares, stock, bonds, debentures or securities issued by a Government or local authority or other marketable securities of alike nature;

(iii) letting or delivering of any goods to a hirer under a hire  purchase agreement as defined in clause (c) of section 2 of the Hire Purchase Act, 1972 (26 of 1972);

(iv) the carrying on of any class of insurance business;

(v) managing, conducting or supervising, as foreman, agent or in any other capacity, of chits or kuries as defined in any law which is for the time being in force in any State, or any business, which is similar thereto;

(vi) collecting, for any purpose or under any scheme or arrangement by whatever name called, monies in lump sum or otherwise, by way of subscriptions or by sale of units, or other instruments or in any other manner and awarding prizes or gifts, whether in cash or kind, or disbursing monies in any other way, to persons from whom monies are collected or to any other person,


1[but does not include any institution, which carries on as its principal business

(a) agricultural operations; or

____________________________________

1. Subs. by Act 23 of 1997, S.2, w.e.f. 9.1.1997.
The Reserve Bank of India Act. 1934 35

(aa) industrial activity or";]


(b) the purchase or sale of any goods (other than securities) or the providing of any services; or
(c) the purchase, construction or sale of immovable property, so, however, that no portion of the income of the institution is derived from the financing of purchases, constructions or sales of immovable property by other persons;
1[Explanation  For the purposes of this clause, "industrial activity" means any activity specified in sub clauses (i) to (xviii) of clause (c) of section 2 of the Industrial Development Bank of India Act, 1964 (18 of 1964)].
(d) "firm" means a firm as defined in the Indian Partnership Act,1932 (9 of 1932); 2[***]

(e) "non banking institution" means a company, corporation or co operative society.3[***]

(f) 4["non banking financial company" means 
(i) a financial institution which is a company;

(ii) a non banking institution which is a company and which has as its principal business the receiving of deposits, under any scheme or arrangement or in any other manner, or lending in any manner;

(iii) such other non banking institution or class of such institutions, as the bank may, with the previous approval of the Central Government and by notification in the Official Gazette, specify.]
5[45 1A. Requirement of registration and net owned fund  (1) Notwithstanding anything contained in this Chapter or in any other law for the time being in force, no non banking financial company shall commence or carry on the business of a nonbanking financial institution without
(a) obtaining a certificate of registration issued under this Chapter; and

(b) having the net owned fund of twenty five lakh rupees or such other amount, not exceeding two hundred lakhs rupees, as the Bank may, by notification in the Official Gazette, specify.


(2) Every non banking financial company shall make an application for registration to the bank in such form as the bank may specify.
Provided that a non banking financial company in existence on the commencement of the Reserve Bank of India (Amendment) Act, 1997 shall make an application for registration to the bank before the expiry of six months from such commencement and notwithstanding anything contained in sub section (1) may continue to carry on the business of a non banking financial institution until a certificate of registration is issued to it or rejection of application for registration is communicated to it.
(3) Notwithstanding anything contained in sub section (1), a non banking financial company in existence on the commencement of the Reserve Bank of India (Amendment)
________________________________

1 Ins. by Act 23 of 1997, S.2, w.e.f. 9.1.1997.

2 Omitted by Act I of 1984, w.e.f. 15.2.1984.

3 Subs. by Act 1 of 1984, w.e.f. 15.2.1984.

4 Ins. by Act 23 of 1997, S.2 w.e.f. 9.1.1997

5 Ins. by Act 23 of 1997, S.3, w.e.f. 9.1.1997.
36 The Reserve Bank of India Act, 1934
Act, 1997 and having a net owned fund of less than twenty five lakh rupees may, for the purpose of enabling such company to fulfil the requirement of the net owned fund, continue to carry on the business of a non banking financial institution
(i) for a period of three years from such commencement; or

(ii) for such further period as the bank may, after recording the reasons in writing for so doing, extend,

subject to the condition that such company shall, within three months of fulfiling the requirement of the net owned fund, inform the bank about such fulfilment.
Provided that the period allowed to continue business under this sub section shall in no case exceed six years in the aggregate.
(4) The Bank, for the purpose of considering the application for registration, require to be satisfied by an inspection of the books of the non banking financial company or otherwise that the following conditions are fulfilled:


  1. that the non banking financial company is or shall be in a position to pay its present or future depositors in full as and when their claims accrue:

  2. that the affairs of the non banking financial company are not being or are not likely to be conducted in a manner detrimental to the interest of its present or future depositors:

  3. that the general character of the management or the proposed management of the non banking financial company shall not be prejudicial to the public interest or the interests of its depositors:

  4. that the non banking financial company has adequate capital structure and earning prospects:

  5. that the public interest shall be served by the grant of certificate of registration to the non banking financial company to commence or to carry on the business in India;

  6. that the grant of certificate of registration shall not be prejudicial to the operation and consolidation of the financial sector consistent with monetary stability, economic growth and considering such other relevant factors which the Bank may, by notification in the Official Gazette, specify; and

  7. any other condition, fulfilment of which in the opinion of the Bank, shall be necessary to ensure that the commencement of or carring on of the business in India by a non banking financial company shall not be prejudicial to the public interest or in the interest of the depositors.

(5) The Bank, after being satisfied that the conditions specified in sub section 14) are fulfilled, grant a certificate of registration subject to such conditions which it may consider fit to impose.


(6) The Bank may cancel a certificate of registration granted to a non banking financial company under this section if such company—


  1. ceases to carry on the business of a non banking financial institution in India; or




  1. has failed to comply with any condition subject to which the certificate of registration had been issued to it; or


The Reserve Bank of India Act. 1934 37
(iii) at any time fails to fulfil any of the conditions referred to in clauses (a) to (g) of sub section (4); or

(iv) fails—


(a) to comply with any direction issued by the Bank under the provisions of this Chapter; or

(b) to maintain accounts in accordance with the requirements of any law or any direction or order issued by the Bank under the provisions of this Chapter; or

(c) to submit or offer for inspection its books of account and other relevant documents when so demanded by an inspecting authority of the Bank; or
(v) has been prohibited from accepting deposit by an order made by the Bank under the provisions of this Chapter and such order has been in force for a period of not less than three months:
Provided that before cancelling a certificate of registration on the ground that the non banking financial company has failed to comply with the provisions of clause (ii) or has failed to fullfil any of the conditions referred to in clause (iii) the Bank, unless it is of the opinion that the delay in cancelling the certificate of registration shall be prejudicial to public interest or the interest of the depositors or the non banking financial company, shall give an opportunity to such company on such terms as the Bank may specify for taking necessary steps to comply with such provision or fulfilment of such condition:
Provided further that before making any order of cancellation of certificate of registration, such company shall be given a reasonable opportunity of being heard.
(7) A company aggrieved by the order of rejection of application for registration or cancellation of certificate of registration may prefer an appeal, within a period of thirty days from the date on which such order of rejection or cancellation is communicated to it, to the Central Government and the decision of the Central Government where an appeal has been preferred to it, or of the Bank where an appeal has been preferred, shall be final.
Provided that before making any order of rejection of appeal, such company shall be given a reasonable opportunity of being heard.
Explanations  For the purposes of this section—
(I) "net owned fund" means—
(a) the aggregate of the paid up equity capital and free reserves as disclosed in the latest balance sheet of the company after deducting therefrom—

(i) accumulated balance of loss;

(ii) deferred revenue expenditure; and

(iii) other intangible assets; and


(b) further reduced by the amounts representing (1) investments of such company in shares of

(i) its subsidiaries;

(ii) companies in the same group;

(iii) all other non banking financial companies; and


38. The Reserve Bank of India Act. 1934
(2) the book value of debentures, bonds, outstanding loans and advances (including

hire purchase and lease finance) made to, and deposits with 

(i) subsidiaries of such company and

(ii) companies in the same group;

to the extent such book value exceeds ten per cent, of
(a) above.
(II) "subsidiaries" and "companies in the same group" shall have the same meanings assigned to them in the Companies Act, 1956 (1 of 1956).]
1[45 IB.Maintenance of percentage of assets  (1) Every non banking financial company shall invest and continue to invest in India in unencumbered approved securities, valued at a price not exceeding the current market price of such securities, an amount which, at the close of business on any day, shall not be less than five per cent or such higher percentage twenty five per cent as the Bank may, from time to time and by notification in the Official Gazette, specify, of the deposits outstanding at the close of business on the last working day of the second preceding quarter.
Provided that the bank may specify different percentages of investment in respect of different classes of non banking financial companies.
(2) For the purpose of ensuring compliance with the provisions of this section, the bank may require every non banking financial company to furnish a return to it in such form. in such manner and for such period as may be specified by the Bank.
(3) If the amount invested by a non banking financial company at the close of business on any day falls below the rate specified under sub section (1), such company shall be liable to pay to the bank, in respect of such shortfall, a penal interest at a rate of three per cent per annum above the bank rate on such amount by which the amount actually invested falls short of the specified percentage, and where the shortfall continues in the subsequent quarters, the rate of penal interest shall be five per cent per annum above the bank rate on such shortfall for each subsequent quarter.
(4) (a) The penal interest payable under sub section (3) shall be payable within a period of fourteen days from the date on which a notice issued by the Bank demanding payment of the same is served on the non banking financial company and, in the event of a failure of the non banking financial company to pay the same within such period, penalty may be levied by a direction of the principal civil court having jurisdiction in the area where an office of the defaulting non banking financial company is situated and such direction shall be made only upon an application made in this behalf to the court by the Bank; and
(b) When the court makes a direction under clause (a), it shall issue a certificate specifying the sum payable by the non banking financial company and every such certificate shall be enforceable in the same manner as if it were a decree made by the court in a suit.
(5) Notwithstanding anything contained in this section. if the Bank is satisfied that the defaulting non banking financial company had sufficient cause for its failure to

___________________________________



1 Ins. by Act 23 of 1997, S.3, w.e.f. 9.1.1997.
The Reserve Bank of India Act. 1934 39
comply with the provisions of sub section (1), it may not demand the payment of the penal interest.
Explanation  For the purpose of this section 
(i) "approved securities" means securities of any State Government or of the Central Government and such bonds, both the principal whereof and the interest whereon shall have been fully and unconditionally guaranteed by any such Government;
(ii) "unencumbered approved securities" includes the approved securities lodged by the non banking financial company with another institution for an advance or any other arrangement to the extent to which such securities have not been drawn against or availed of or encumbered in any manner;
(iii.) "quarter" means the period of three months, ending on the last day of March, June, September or December.
45 IC. Reserve fund  (1) Every non banking financial company shall create a reserve fund and transfer therein a sum not less than twenty per cent of its net profit every year as disclosed in the profit and loss account and before any dividend is declared.
(2) No appropriation of any sum from the reserve fund shall be made by the non-banking financial company except for the purpose as may be specified by the bank from time to time and every such appropriation shall be reported to the Bank within twenty-one days from the date of such withdrawal.
Provided that the Bank may, in any particular case and for sufficient cause being shown, extend the period of twenty one days by such further period as it thinks fit or condone any delay in making such report.
(3) Notwithstanding anything contained in sub section (1), the Central Government may, on the recommendation of the Bank and having regard to the adequacy of the paid-up capital and reserves of a non banking financial company in relation to its deposit liabilities, declare by order in writing that the provisions of sub section ( 1) shall not be applicable to the non banking financial company for such period as may be specified in the order.
Provided that no such order shall be made unless the amount in the reserve fund under sub section (1) together with the amount in the share premium account is not less than the paid up capital of the non banking financial company.]
45J. Bank to regulate or prohibit issue of prospectus or advertisement soliciting deposits of money  The bank may, if it considers necessary in the public interest so to do, by general or special order 
(a) regulate or prohibit the issue by any non banking institution of any prospectus or advertisement soliciting deposits of money from the public; and
(b) specify the conditions subject to which any such prospectus or advertisement, if not prohibited, may be issued.]

40 The Reserve Bank of India Act. 1934

1[45JA.Power of Bank to determine policy and issue directions  (1) If the Bank is satisfied that, in the public interest or to regulate the financial system of the country to its advantage or to prevent the affairs of any non banking financial company being conducted in a manner detrimental to the interest of the depositors or in a manner prejudicial to the interest of the non banking financial company, it is necessary or expedient so to do, it may determine the policy and give directions to all or any of the non banking financial companies relating to income recognition, accounting standards, making of proper provision for bad and doubtful debts. capital adequacy based on risk weights for assets and credit conversion factors for off-balance-sheet items and also relating to deployment of funds by a non banking financial company or a class of nonbankino financial companies or non banking financial companies generally, as the case may be, and such non banking financial companies shall be bound to follow the policy so determined and the directions so issued.
(2) Without prejudice to the generality of the powers vested under sub section (1), the Bank may give directions to non banking financial companies generally or to a class (it' non banking financial companies or to any non banking financial company in particular as to—
(a) the purpose for which advances or other fund based or non fund based accommodation may not be made: and

(b) the maximum amount of advances or other financial accommodation or investment in shares and other securities which, having regard to the paid-up capital, reserves and deposits of the non banking financial company and other relevant considerations, may be made by that non banking financial company to any person or a company or to a groups of companies.]

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