As trusted advisors in the field of finance and governance, it’s crucial for Chartered Accountants (CAs) to ensure that their clients—whether startups, private companies, or public entities—adhere to the provisions of the Companies Act, 2013. One key section that every director and company owner must be aware of is Section 185, which governs the provision of loans, guarantees, and securities to directors by a company
In this article, we provide an in-depth overview of Section 185 and explain its importance in promoting corporate governance and preventing financial mismanagement.
In the corporate world, the relationship between a company and its directors is essential for effective governance and financial management. However, there are strict regulations to prevent any misuse of power or financial resources by the directors. One such regulation is Section 185 of the Companies Act, 2013, which governs the provision of loans, guarantees, and securities by company to its directors.
The section aims to safeguard the interests of shareholders and prevent conflicts of interest or financial mismanagement. By placing restrictions on loans to directors, the Act ensures that companies operate transparently and ethically, maintaining the trust of investors, employees, and other stakeholders.
- Under Section 185(1), a company is generally prohibited from granting loans, providing guarantees, or offering any form of security in connection with a loan to any of its directors or to any person in whom the director has an interest.
- This provision is designed to ensure that company resources are not misused for personal gain by those in positions of authority.
There are certain exceptions to these provisions under Section 185(2):
- If the company is in the business of lending or providing financial services, it can provide loans to its directors in the ordinary course of business, subject to prescribed conditions.
- In the case of private companies, a loan or guarantee to a director is permissible if it is authorized by a special resolution passed by the shareholders of the company.
Consequences of Non-Compliance
Failure to comply with Section 185 can result in serious consequences for both the company and the individuals involved:
- Penalties for the Company: The company may be liable for a fine ranging from ₹5 lakh to ₹25 lakh for breaching the provisions of this section.
- Penalties for the Director or Officer in Default: Any director or officer who is found to have defaulted in compliance with Section 185 could face a fine of ₹5 lakh to ₹25 lakh, or imprisonment for up to 6 months, or both.
How Can CA Firms Help Clients Ensure Compliance?
As a Chartered Accountant firm, we have a pivotal role in helping companies navigate the complexities of corporate compliance. Here’s how we can assist our clients in ensuring adherence to Section 185:
- Advisory Services: We provide clear guidance on the provisions of Section 185 and how it applies to your specific business structure. Whether you’re a public or private company, we help you understand the exceptions and how to implement them correctly.
- Legal Documentation: We assist in drafting the necessary board resolutions and shareholder approvals (special resolutions) that are required when granting loans or guarantees to directors or related persons, ensuring that all legal formalities are properly followed.
- Risk Mitigation: Our firm helps identify potential compliance risks associated with loans to directors and works proactively to mitigate those risks, including suggesting alternatives that align with regulatory requirements.
- Audit and Monitoring: We help companies implement systems for monitoring and auditing their transactions to ensure ongoing compliance with Section 185 and other relevant corporate laws.
For companies, directors, and professional advisors, Section 185 of the Companies Act, 2013 is a critical provision that demands careful attention. While it restricts the ability of companies to provide loans or financial assistance to directors, it also promotes ethical governance and protects the interests of stakeholders.
At Mukunda Shiva & Associates, we are committed to ensuring that your business complies with all regulatory requirements, including the provisions of Section 185. If you have any questions or need assistance in navigating the complexities of corporate law, feel free to reach out to our team of experienced Chartered Accountants. We are here to provide comprehensive solutions tailored to your specific needs.
Section 185 vs Section 186 — Loans & Investment Limits (At a Glance)
| Aspect | Section 185 — Loans to Directors | Section 186 — Inter-Corporate Loans/Investments |
|---|---|---|
| Scope | Restricts loans/guarantees/security to directors or persons in whom a director is interested to prevent conflict of interest.: | Regulates a company’s loans, guarantees, security and investments to other persons/bodies corporate; caps and approvals apply. |
| Core Rule | General prohibition on such assistance to directors/connected persons, save permitted exceptions. | Permissible up to limits; beyond limits needs special resolution. |
| Exceptions / When Allowed | • Lending companies may lend in the ordinary course of business (subject to conditions). • In private companies, permitted if authorized by special resolution. |
• Within internal limits: ≤ 60% of paid-up share capital + free reserves + securities premium or ≤ 100% of free reserves + securities premium, whichever is higher. • Beyond this: needs special resolution with particulars. • WOS/JV relaxations for some cases. |
| Board Approval | Board & shareholder approvals as per exception route (SR where applicable) | Board approval required; many transactions need consent of all directors present and filing/recording; SR if exceeding limits. |
| Pricing / Interest Floor | Not the focus of S.185 (it’s a conduct/eligibility restriction) | Loan interest cannot be below the prevailing Govt Security yield (closest tenor). |
| Register/Records | Maintain approvals/justification for permitted cases. | Maintain Register of Loans/Guarantees/Security/Investments; disclose in financials. |
| Non-Compliance | Company: ₹5–25 lakh fine. Officer/Director: ₹5–25 lakh fine and/or imprisonment up to 6 months. |
Penalties apply for breaches (incl. approval/interest/register failures) under S.186 & allied rules |
Notes: Section 185 items above are drawn from your current article’s text Section 186 limits/conditions are summarized from standard references.
Section 185 Decision Flow — From Loan Request to Consequences
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1) Loan Request Proposal to give loan/guarantee/security to a director or a connected person.➜Check Business Nature Is the company a lending business doing this in the ordinary course?
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2) Exception Check a) Ordinary-course lending company ✅
b) Private company with Special Resolution ✅➜If No Exception If no exception applies → Prohibited under Section 185. -
3) Approvals Put the item to the Board; obtain Special Resolution where required; draft resolutions and keep records.➜Proceed Controls Proceed only after approvals and conditions are fully documented.
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4) If Non-Compliant Company: ₹5–25 lakh fine.
Officer/Director: ₹5–25 lakh fine and/or imprisonment up to 6 months.
Section 185 Decision Flow — From Loan Request to Consequences
-
1) Loan Request
Proposal to give loan/guarantee/security to a director or a connected person. ➜ Is the company a lending business doing this in the ordinary course? -
2) Exception Check
a) Ordinary-course lending company ✅
b) Private company with special resolution ✅ ➜ If no exception applies → Prohibited under Section 185. -
3) Approvals
Put the item to the Board; obtain Special Resolution where required; draft resolutions & records. ➜ Proceed only after approvals and conditions are documented. -
4) If Non-Compliant
Company: ₹5–25 lakh fine.
Officer/Director: ₹5–25 lakh fine and/or imprisonment up to 6 months.
Section 185 FAQs
Can a company give a loan to its director?
What are the exceptions under Section 185?
What is the penalty for violating Section 185?
What is the difference between Section 185 and Section 186?
Section 185 is a conduct restriction focused on directors/connected persons (mostly prohibited, with narrow exceptions)
Section 186 governs a company’s broader inter-corporate loans, guarantees, security and investments—allowed within caps (e.g., ≤60% of paid-up capital + free reserves + securities premium or ≤100% of free reserves + securities premium, whichever is higher); beyond this needs a special resolution. Also prescribes an interest floor (not below nearest Govt Security yield) and register/board-consent requirements.