Skip to main content

Regulating the Collective Investment Schemes in India

Collective Investment Scheme (“CIS”)- An investment scheme wherein several individuals come together to pool their money for investing in a particular asset(s) and for sharing the returns arising from that investment as per the agreement reached between them prior to pooling in the money.
Many companies especially in semi-urban and rural areas are accepting deposits in their firm’s name and also promising two to three times returns in two to four years without taking any legal permissions. These ponzi schemes are running on the false promise of doling out high returns to the gullible investors. Ponzi scheme may be treated as either a chit fund or a collective investment scheme. But then a further complication arises who will regulate a ponzi scheme???? Collective investment scheme as a subject for monitoring came under the SEBI ambit after amendment to the SEBI Act, however there are several exemptions for schemes such as chit funds, nidhi funds, co-operatives, NBFCS. They are exempted with a very on the idea was that those would be reporting at small level and there would be local level authorities who would be taking care of them. As at present, we don’t have a single regulator and  the innocent victims don’t know where to go after been cheated by ponzi schemes.
Entrepreneurs from rural regions wants to operate a legally recognized CIS for their locality get confuse in the web of these complex regulations which amends frequently. Earlier for registration of a Multi-State Credit Co-operative Society, you need to get approval from Central Government i.e. Ministry of Agriculture, Delhi, however after the Shardha scam in West Bengal, instead of making the regulations water tight to prevent further scams and frauds, Ministry of Agriculture issued a notification, where a multi-state society needs to get no objection certificate (“NOC”) from State Registrar, Co-operative for registration of a Multi-State Credit Co-operative Society and when these gullible societies reach to State Registrar, Co-operative, they simply refuse to give NOC on the ground that they are state employees and are not bound by any central ministry notification till the time it is been directed to them by their State Ministry.
And, the major motive behind this is to curb the registration of new multi-state credit co-operative society…. Will this solve the problem of ponzi schemes or will it increase them further???
Today, even nationalized banks had not been able to penetrate and make a stand to the rural market whereas people operating CIS via mechanism of multi-state credit cooperative societies in these regions had already established their network through their agents who come from the same locality.
Is there any way out to operate a legally recognize CIS???
In light of a lot of news relating to sham entities garnering funds through fraudulent investment schemes with promise of huge returns mainly in the name of property development and agriculture, SEBI’s regulations has been revised and strengthened.
The SEBI (CIS) Regulations specifically state that no entity can carry on or sponsor or launch a CIS without obtaining a certificate of registration from SEBI. The other regulations are as follows:
              i.        The CIS should be set up and registered as a public company registered under the provisions of the Companies Act, 1956/2013, and the memorandum of association should specify the management of the CIS as one of its objectives.
             ii.        The company at the time of registration as CIMC should have a minimum net worth of INR 5 crore (provided that at the time of making the application, the applicant should have a minimum net worth of INR 3 crore, which should be increased to INR 5 crore within three years from the date of grant of registration).
            iii.        iii. The offer document should disclose adequate information to enable investors to take informed decisions. The       offer document should also indicate the maximum and minimum amount expected to be raised. No scheme should be kept open for subscription for more than 90 days.
           iv.        Each scheme has to obtain a rating from a recognized CRA, and the projects to be undertaken should be appraised by an appraising agency.
            v.        The CIMC should obtain adequate insurance policy for the protection of the scheme’s property.
           vi.        Advertisements for every single scheme should conform to the SEBI’s advertisement code.
          vii.        The CIMC should issue unit certificates to all applicants whose applications have been accepted as soon as possible, but not later than six weeks from the date of closure of the subscription list; if the units are issued through a depository, a receipt in lieu of the unit certificate will be issued as per the provisions of the SEBI (Depositories and Participants) Regulations, 1996, and the byelaws of the depository.
         viii.        The units of every scheme should be listed immediately after the date of allotment of the units, and not later than six weeks from the date of closure of the scheme on each of the stock exchanges as mentioned in the offer document.
           ix.        A scheme should be wound up on the expiry of duration specified in the scheme or on the accomplishment of the purpose of the scheme. The scheme can also be wound up if the unit holders of a scheme holding three-fourth of the nominal value of the unit capital pass a resolution to that effect; if in the opinion of the CIMC, the purpose of the scheme cannot be accomplished, then through the approval of at least three-fourths of the nominal value of the unit capital of the scheme, the scheme can be wound up. However, for winding up the schemes, approval has to be obtained from SEBI. Further, if in SEBI’s opinion the continuation of the scheme would be prejudicial to the interest of the unit holders, then the scheme can be wound up. When a scheme is to be wound up, the trustee should give notice disclosing the circumstances leading to such a decision in a daily newspaper having nationwide circulation and in a newspaper published in the language of the region where the Collective Investment Management Company is registered.
            x.        The trustee should dispose of the assets of the scheme concerned in the best interests of the unitholders of that scheme. If the scheme is wound up because of any event that in opinion of the trustee requires the scheme to be wound up, then the proceeds realized should be utilized towards the discharge of such liabilities as are due and payable under the scheme, and after making appropriate provisions for meeting the expenses connected with such winding up, the balance should be paid to the unitholders in proportion to their unit holding.
           xi.        After completion of winding up, the trustees have to forward to SEBI and the unitholders the report on the steps taken for the realization of assets of the scheme, the expenses for winding up, and the net assets available for distribution to the unitholders, together with a certificate from the auditors of the scheme certifying that all the assets of the scheme have been realized, and the details of the distribution of the proceeds.
          xii.        The unclaimed money, if any, at the time of winding up should be kept separately in a bank account by the trustee for a period of three years for meeting investors’ claims, and thereafter, should be transferred to an investor protection fund, as may be specified by SEBI.
         xiii.        On behalf of the scheme, before the expiry of one month from the close of each quarter (i.e., March 31, June 30, September 30, and December 31), the CIMC should publish its unaudited financial results in one daily newspaper having nationwide circulation and in a regional newspaper of the region where the head office of the CIMC is situated.

If  you are interested in further details and inclined to know the procedure of CIS registration, click on the link below or contact us:





Comments

Popular posts from this blog

PSARA License: To Start a Private Security Agency Business in India

Private Security Agency business is one of the most sought and rapid growing business in India with huge demand and potential. Due to ever evolving demand for private security by industry & business segments, the Private Security Agency business is growing for more than 20% and there is still huge untapped market still wide open for the future ventures. Today in any and every aspect, private security has an important role to play, whether its transfer of cash to ATM, transportation of valuables or protection to key members of business conglomerates. Any Private Security Agency cannot commence its business and operations in India without procurement of license under Private Security Agencies (Regulation) Act, 2005 also known as PSARA License . PSARA License is obtained state wise & is valid for 5 years and had to be renewed after every 5 years. The government fees for PSARA License is as following: 1.        For one (1) District- Rs. 5,000/- 2.        For more th

Non-Banking Financial Companies (NBFC)

A Non-Banking Financial Company (NBFC) is a  company registered under the Companies Act, 1956 and is engaged in the business of loans and advances, acquisition of shares stock/bonds/debentures/securities issued by Government or local authority or other securities of like marketable nature, leasing, hire-purchase, insurance business, chit business but does not include any institution whose principal business is that of agriculture activity, industrial activity, sale/purchase/construction of immovable property. A non-banking institution which is a company and which has its principal business of receiving deposits under any scheme or arrangement or any other manner, or lending in any manner is also a non-banking financial company (Residuary non-banking company). Advantages of NBFC a)       it can provide loans and credit facilities, b)       it can trade in  money market instruments c)       it can do wealth management such as Managing portfolios of stocks and shares d)     

Investment Frauds by Investment Advisers

Today driven by the promise of higher returns than the saving accounts or fixed deposits, most of the small and retail investors are moving their investments under the guidance of Investment Advisers. “ Investment Advisers ” means any person, who for consideration, is engaged in the business of providing investment advice to clients or other persons or group of persons and includes any person who holds out himself as an investment adviser, by whatever name called. Investment Advisers who make public appearance or make recommendations or offer an opinion concerning securities or public offers through public media while making recommendations through public media are required to comply with the relevant applicable laws. What is an Investment Advice: - “ Investment Advice”  is an advice relating to investing in, purchasing, selling or otherwise dealing in securities or investment products, and advice on investment portfolio containing securities or investment products, whether

NCLT has Exclusive Jurisdiction for all the Company Matters

In deciding an appeal in the matter of MAIF Investment India PTE Ltd. v/s Ind-Barath Power Infra Limited & Ors ., Company Appeal (AT) No. 334 of 2018, NCLAT has reviewed and decided on the issue of exclusive jurisdiction of NCLT in all the company matters and to bar the jurisdiction of civil courts including   complex and contentious one. The appeal was against the order given by NCLT, Hyderabad, where the NCLT, Hyderabad bench declined to entertain the petition under Section 59 of the Companies Act, 2013 for seeking a rectification in the register of members. The alleged dispute involved conversion of compulsory convertible debentures without requisite consent and quorum. NCLT, Hyderabad dismissed the petition stating the reason that issue raised were complex or contentious issue which required the examination of the Arbitration Act, 1996 & Insolvency & Bankruptcy Code, 2016. While dismissing the petition, NCLT, Hyderabad had relied on Supreme Court’s 1998 judge

Types of Companies under New Companies Act-2013

With new testament of Corporate law in force has introduced several different types of companies with special features. ONE PERSON COMPANY (OPC) One Person Company is defined in Sub- Section 62 of Section 2 of The Companies Act, 2013, which reads as follows: 'One Person Company means a company which has only one member' It shall also be important to note that Section 3 classifies OPC as a Private Company for all the legal purposes with only one member. All the provisions related to the private company are applicable to an OPC, unless otherwise expressly excluded. Ø   Only a natural person who is an Indian citizen and resident in India- ü   shall be eligible to incorporate a One Person Company; ü   shall be a nominee for the sole member of a One Person Company. Ø   No person shall be eligible to incorporate more than a One Person Company or become nominee in more than one such company. Ø   No minor shall become member or nominee of the One Person Company

Legal Obligations of Technology Service Providers as Intermediaries

A database of millions of customers including their contact details are found freely accessible online and are available for sale at a very nominal price at various online social media platforms has brought a serious and basic question in focus- who all can be held responsible and accountable for such unauthorize and illegal acts? Prima facie , the person who is selling the database is responsible under the eyes of law, but do the technology services providers or the platform where such database is been listed, owes any obligation to the customers and can be held responsible for unauthorize acts by a third party on their platform? The technology service providers or the online platform operators are commonly known as “ Intermediaries ”. In India, these technology service providers or Intermediaries are governed by the provisions of Information Technology Act, 2000 (“ IT Act ”) along with Information Technology (Intermediaries Guidelines) Rules, 2011 (“ Intermediary Rules ”)

Nidhi Companies in India

This article enumerates the brief transaction procedure involved in the establishment of a Nidhi Company and the laws relating to Nidhi Company in force in India. It shall be noted that the activities described hereunder covers various relevant legislations, regulations and rules, for the time being in force in India and the legal entity has to obtain approval/register itself with Ministry of Corporate Affairs (“ MCA ”). Preface In the Indian financial sector, Nidhi Company refers to any mutual benefit society notified by the MCA. They are created mainly for cultivating the habit of thrift and savings amongst its members. The amount of business conducted by Nidhi Companies is not as big as commercial banks or deposit taking Non-Banking Finance Companies. Nidhi Companies are highly localized and mostly single office institutions. They are also referred to as mutual benefit societies, because they accept deposits and give loans to only their own members; and membership is limited