The
Indian microfinance sector witnessed rapid growth over last decade. A
microfinance institution acquires permission to lend through registration. Each
legal structure has different formation requirements & privileges.
Microfinance institutions in India are registered as one of the following
entities:
1.
Non Government Organizations
engaged in microfinance ( NGO-MFIs) comprised of societies and trust
2.
Cooperatives registered
under the conventional State-Level Cooperative Acts or Multi-State Co-operative
Societies Act 2002
3.
Section 25 Companies ( Not
for Profit)
4.
For Profit- Non banking
Finance Companies (NBFCs)
NGO- MFIs,
Cooperatives and Section 25 Companies
Microfinance
institutions operating as a non-profit company operate as either an NGO-MFI,
Co-operatives or Section 25 Company. Each is structured slightly differently in
terms of ability to accept equity investments and dividends. There exists
little regulation that applies to these structures, aside from registration
requirements.
NBFCs
For profit institutions, had to
incorporate under Indian Companies Act, 2013 and then get registration with
Reserve Bank of India.
MFIs
for non-profit
Societies Registration Act, 1860
(i) Name of the society is to be decided along with the draft
memorandum and rules and regulations of the society that is to be formed.
(ii) Minimum of seven (subscribers) to sign each page and
signatures to be approved by rubber stamp of a gazette officer or magistrate
1st class.
Other requisite documents need to
be filled with Registrar of Societies for registration under the Principal Act
or corresponding Acts enacted by various state governments:
(i) Covering letter requesting for registration along with list
of documents attached signed by all the subscribers to the memorandum or by a
person authorised by all of them to sign on their behalf.
(ii) Memorandum of Association in duplicate along with a certified
copy.
(iii) Rules and regulations/bye-laws in duplicate duly signed.
(iv) Affidavit on non-judicial stamp paper of appropriate value
sworn by the presidentor secretary of the society stating the relationship
between the subscribers. Theaffidavit should be attested by an oath
commissioner, notary public or magistrate1st class.
(v) Documentary proof such as house tax receipt, rent receipt in
respect of premisesshown as registered office of the society or no-objection
certificate from theowner of the premises.
The governing body of the society
will invest and funds and property of the society for the MFI business.
Indian Trust Act, 1882
The essential constituents of a
trust are
(i) three parties – the author, trustees and beneficiary;
(ii) declaration of a trust;
(iii) certainty of the subject matter of a trust; and
(iv) certainty of objects of the trust.
A charitable Trust is required to
invest or deposit its funds in the modes or forms specified under Section 11(5)
of the Income Tax Act. Besides, it must not hold any shares in a company (other
than a government company or corporation). If any part of its funds is not so
invested, the exemption under Section 11 would not be allowed.
Not-For-Profit Companies
registered u/s 25 of the Companies Act, 1956
An organisation given a license
under Section 25 of the Companies Act 1956, is set-up for the promotion of
commerce, science, art, religion, charity or any other useful purpose; and the
constitution of such company provides for the application of funds or other
income in promoting these objects and prohibits payment of any dividend to its
member.
MFIs
for Profit
Non-Banking Finance Company–
Micro-Finance Institutions (“NBFC-MFI”)
The mandatory requirements to be
fulfilled to operate as an NBFC are as follows:-
(i) Should be registered as a company under the Companies Act,
2013
(ii) To obtain a certificate of registration from Reserve Bank of
India (“RBI”)
(iii) Have Net Owned Funds (NOF) – shareholder equity +
internally-generated reserves of INR5 crores. NOF of INR 2 Crores required for
NBFC-MFIs in North-eastern states
If the MFI meets the above two
criteria, it can file an application for registration with the RBI’s Department
of Non-Banking Services. The Bank may, 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:–
(i) that the NBFC is or shall be in a position to pay its
present or future depositors in full as and when their claims accrue;
(ii) that the affairs of the NBFC are not being or are not likely
to be conducted in a manner detrimental to the interest of its present or
future depositors;
(iii) that the general character of the management or the proposed
management of the NBFC shall not be prejudicial to the public interest or the
interest of its depositors;
(iv) that the NBFC has adequate capital structure and earning
prospects;
(v) that the public interest shall be served by the grant of
certificate of registration to the NBFC to commence or to carry on the business
in India;
(vi) 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 RBI may, by notification in the Official Gazette, specify; and
(vii) any other condition, fulfillment of which in the opinion of
RBI, shall be necessary to ensure that the commencement of or carrying on of
the business in India by a NBFC shall not be prejudicial to the public interest
or in the interest of the depositors.
At present, in India there are two
models on which MFIs operates- Self Help Group (SHG) & Micro Finance
Institution (MFI) model i.e. not for profit & for profit.
MFIs serve 27 million clients &
have INR 183 billion crores loans outstanding in India.
Existing Regulatory Structure
Legal
Forms of MFIs
|
|||
Category
|
Type
of MFIs
|
Applicable
Law
|
|
Not
for Profit
|
NGO
MFIs
(Societies
& Trust)
|
Societies
Registration Act, 1860 and/or Indian Trust Act, 1882
|
|
Section
25 Companies
|
Companies
Act, 2013
|
||
For
Mutual Benefit
|
Co-operatives
|
State
Co-operative Societies Act or Multi-State Co-operative Societies Act, 2002
|
|
For
Profit
|
NBFC
|
Companies
Act, 2013 and registered with RBI
|
For profit MFIs account for over 80%
of total client outreach all the MFIs.
Existing Regulation:
- NBFCs (for profit)
Regulation
primarily prudential , not specific to microfinance
- Other Microfinance Institutions
No
regulation beyond registration which is often done at state level
- State Regulation
Some
MFIs are subject to state laws such as Money Lending Act
A
few states have passed ordinances restricting some microfinance practice
- Priority Sector Lending
MFIs
qualify for priority sector lending
- Funding Restrictions
NBFCs
cannot access External Commercial Borrowing
Minimum
Equity Investment is US$ 500,000 which can only account for 51% of company
The Micro Finance Institutions
(Development and Regulation) Bill 2011 is the proposed legislation to regulate
MFIs in India and the main features are as below:
- Designation of RBI as the sole regulator for all microfinance institutions
Power
to regulate interest rate caps, margin caps and prudential norms
All
microfinance register with RBI
- Formation of Micro Finance Development Council which will advise the central government on a variety of issues relating to microfinance
- Formation of State Advisory Council to oversee microfinance at the state level
- Creation of Micro Finance Development Fund for investment, training, capacity building and other expenditures as determined by RBI
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