RBI/2010-11/497
A. P. (DIR Series) Circular No. 57
May 2, 2011
To
All Authorised Dealer Category - I banks
Madam / Sir,
Pledge of shares for business purposes
Under the extant FEMA regulations, powers have been delegated to the Authorised
Dealer Category – I (AD Category – I) banks to convey ‘no objection’ to the
resident eligible borrowers under the extant External Commercial Borrowings
(ECB) guidelines for pledge of shares held by the promoters, in accordance with
the Foreign Direct Investment (FDI) policy, in the borrowing company / domestic
associate company of the borrowing company as security for the ECB, subject to
certain conditions [c.f.
A. P. (DIR Series) Circular No. 1 dated July 11, 2008].
Pledge of shares in respect of all other FDI related transactions requires the
prior permission of the Reserve Bank.
- The extant FEMA regulations have since been reviewed and it has been decided
to further liberalise, rationalise and simplify the processes associated with
FDI flows to India and reduce the transaction time. Accordingly, it has been
decided to delegate powers to the AD Category – I banks to allow pledge of
shares of an Indian company held by non-resident investor/s in accordance with
the FDI policy in the following cases subject to compliance with the conditions
indicated below:
- Shares of an Indian company held by the non-resident investor can be pledged
in favour of an Indian bank in India to secure the credit facilities being
extended to the resident investee company for bonafide business purposes subject
to the following conditions :
- in case of invocation of pledge, transfer of shares should be in accordance with
the FDI policy in vogue at the time of creation of pledge;
- submission of a declaration/ annual certificate from the statutory auditor of
the investee company that the loan proceeds will be / have been utilized for the
declared purpose;
- the Indian company has to follow the relevant SEBI disclosure norms; and
- pledge of shares in favour of the lender (bank) would be subject to compliance
with the Section 19 of the Banking Regulation Act, 1949.
- Shares of the Indian company held by the non-resident investor can be
pledged in favour of an overseas bank to secure the credit facilities being
extended to the non-resident investor / non-resident promoter of the Indian
company or its overseas group company, subject to the following conditions :
- loan is availed of only from an overseas bank;
- loan is utilized for genuine business purposes overseas and not for any
investments either directly or indirectly in India;
- overseas investment should not result in any capital inflow into India;
- in case of invocation of pledge, transfer should be in accordance with the FDI
policy in vogue at the time of creation of pledge; and
- submission of a declaration/ annual certificate from a Chartered Accountant/
Certified Public Accountant of the non-resident borrower that the loan proceeds
will be / have been utilized for the declared purpose.
- Necessary amendments to the
Notification No. FEMA 20/2000-RB dated May 3,
2000, are being issued separately.
- AD Category - I banks may bring the contents of this circular to the notice
of their constituents and customers concerned.
- The directions contained in this circular have been issued under sections
10(4) and 11(1) of the Foreign Exchange Management Act, 1999 (42 of 1999) and
are without prejudice to permissions / approvals, if any, required under any
other law.
Yours faithfully,
(Meena Hemchandra)
Chief General Manager-in-Charge