A Comparison Of Mutual Benefit Financial Companies (Nidhi) Between India And California, USA
"There is no exercise better for the heart than reaching down and lifting
people up."-- John Holmes
In order to cast a brighter light on my topic, it is absolutely crucial to understand concepts like NBFCs, mutual benefit finance companies and how they evolved to where they are now, in the context of Europe and USA, their role in our society, features etc.
To start off, the main type of organizations explained here will be mutual insurance companies and mutual benefit societies. In that sense1, mutual societies are insurance companies run by their members for protecting them against property, personal, and social risks on a voluntary and non-compulsory basis. Mutual insurance companies deal with property and life risks, while mutual benefit societies protect their members against social risks such as illness, disability, and old age mainly.
Mutual organizations or mutual societies, often designated as mutuals, exist everywhere in the world, in developing as well as in industrialized countries, in a more or less institutionalized form. In a developing country, some mutual organizations appear as voluntary associations for gathering and pooling money to fund marriages, funerals, or a business start-up for one or several members (tontines).
Other mutuals pool voluntary work to afford water supplies or to build roads in rural areas (development self-help associations). In a developed country, mutual societies are businesses; they operate in the same markets as corporations and compete with them. They are formed on a voluntary basis to provide aid, benefits, insurance, credit, or other services either to their members or to a larger population. In many countries, mutual organizations have vast historical backgrounds reaching into the past.
Before large-scale government and employer health insurance, friendly societies played an important part in many people's lives. Friendly5 societies covered significant portions of many nations' populations, and some of these societies still exist today, although in a different form.
In some countries, they have been incorporated into the health system and become like insurance companies and lost their ceremonial aspect; in others they have taken on a more charitable or social aspect. Mutual aid was a foundation of social welfare in the United States until the early twentieth century.
Early societies not only shared material resources, but often advanced social values related to self-reliance and moral character. Many fraternal organizations were first organized as mutual aid societies.
Mutual benefit societies3 date back to ancient times, while mutual insurance companies are more recent. Some precursory mutual organizations could be found in Ancient Egypt (mutual assistance among stone cutters) or in the Roman Empire (the same among bricklayers). However mutual benefit societies are mainly descendants of the oldest part of the European nonprofit sector: they appeared in the Middle Ages as charitable brotherhoods (Continental Europe) or friendly societies (United Kingdom). Brotherhoods were fraternal societies in urban areas linked to the guilds and, therefore, restricted to the same craft, business, or trade.
Medieval guilds were an early basis for many Western benefit societies. A guild charter document from the year 1200 states:
To become a gildsman, …it was necessary to pay certain initiation fees, …(and to take) an oath of fealty to the fraternity, swearing to observe its laws, to uphold its privileges, not to divulge its counsels, to obey its officers, and not to aid any non-gildsman under cover of the newly-acquired 'freedom.'
This charter shows the importance of brotherhood, and the principles of discipline, conviviality, and benevolence. The structure of fraternity in the guild formed the basis for the emerging benefit societies. Joining such an organization, a member gained the "freedom" of the craft; and the exclusive benefits that the organization could confer on members.
These organizations helped the needy members of the guild in the case of illness of their families or the widow and the orphan in the case of death of the breadwinner; they served also as sociability and ceremonial places. Friendly societies fulfilled the same purposes but they were independent of the guilds and, therefore, more open than brotherhoods.
The corporatist system, on which the guilds and brotherhoods relied, became weaker but survived with the rise of the free market and modern industry in most European countries. In France, the 1789 Revolution suppressed both guilds and their social subsidiaries, the brotherhoods. Nevertheless, mutual benefit societies flourished during the nineteenth century in Europe, when industrial revolution and rural depopulation pauperized the working class and broke the traditional solidarity of the family or the village.
They were inspired by ideological currents such as utopist socialism (Owen, Proudhon) and the Fabian movement or solidarism (Bourgeois, Durkheim). Some of these mutuals were linked with the emerging labor unions and others were more middle-class oriented. Depending on the countries, the period, and the degree of recognition of the labor movement, they were either repressed or encouraged by the state. Whatever their form, mutual benefit societies were the forerunners of the welfare state.
Mutual societies detected first the main social risks: sickness, disability, and old age, that were covered later by a public social insurance scheme in Continental European countries and by a National Health service and pension funds in Anglo-Saxon and Nordic countries. During the twentieth century, modern welfare states challenged mutual benefit societies, which were forced to become either complements or agents of the compulsory social security schemes.
However, most of them keep their vanguard function. The forerunners of mutual insurance companies are more recent. They can be found in the second part of the nineteenth century when the progress of probabilistic mathematics transformed insurance in a modern industry. Farmers pooled their savings to protect themselves against risks of their property, bad weather and fires mainly, on a mutual basis.
Other mutual insurance companies for retailers and craftsmen followed, in competition with insurance corporations, but the dissemination of mutual insurance among the salaried population is more recent; it was in many countries a by-product of the post-World War II consumption society, especially with the compulsory insurance against car accidents and other damage to real estate property.
The second part of the nineteenth century and the beginning of the twentieth century is also the time when mutual forms of banking appeared in Europe either as mutual societies or cooperatives to pool the savings and afford credit to the part of the population who had no access to commercial banks because of their lack of guarantee. The Raiffeisen banks in Germany are the most emblematical, the savings and loans associations or the savings banks, the most widespread.
Ancient China, Egypt, Greece, and Rome had merchants' associations, cooperative loan societies, associations for visiting the sick and burying the dead, religious cults, and club-like groups. The medieval period saw the widespread development of merchant and craft guilds, occupation-based groups which provided to their members many benefits beyond those that were directly work-related.
For instance, "The French fraternities (confreries) . professed religious and charitable ends, celebrating holy services, aiding masters who were financially embarrassed, and attending to the funerals of the membership" (Lowie, 1948, p. 307). Confreries of winegrowers, originally formed for mutual support in bad crop years, took on general philanthropic activities such as supporting local hospitals and orphanages.
The same was true in China·, where "merchant and craft guilds not only regulated business and exercised jurisdiction over their members, but also kept streets and drains in order, organized fire brigades, and attended to poor relief
The demise of the guilds in Europe and England opened the way for the "friendly societies " which performed many of the functions that the guilds had. The early friendly societies were principally organized by workingmen in response to economic, social, and other needs. These workingmen's associations which originated in England and were later transplanted to the United States included such groups as the Independent Order of Oddfellows, the Ancient Order of Foresters, and the United Ancient Order of Druids.
As time went on, in both England and the United States, these groups became far more identified with the middle classes than with the working classes, but it is worth noting that they originally began for essentially the same reasons that American immigrant and minority MBOs began, to create an alternative social insurance and welfare system for the lower classes. American history sheds further light on the activities of voluntary associations including those we now term MBOs.
In the 17th and most of the 18th centuries, population dispersion and colonial status discouraged associational activity, with the important exception of alternative religious groups. But in the late 18th and 19th centuries, with the advent of political freedom, new constitutional and legal support for the right to associate, the rise of towns and cities, and the massive influx of immigrants, Americans created a wide variety of associations.
In addition to the host-society and largely upper-class-initiated philanthropic agencies to which nonprofit sector historians have given so much attention (e.g., the Red Cross, the YMCA, Jane Addams' Hull House, Dorothea Dix's mental health care work, private foundations, private 11 universities, Community Chest and United Way), Americans created thousands of mutual assistance agencies for self-improvement, companionship, protection against sudden economic loss, protection against discrimination, and a decent burial.
It is important to note that the great majority of 19th century MBOs4 were created by lower income and often discriminated-against groups that were far more vulnerable to financial vicissitudes than were members of the middle and upper classes. Neither the government nor host society charity provided a "safety net" for such people, 1who often could not get adequate assistance from established financial institutions.
For instance, in the latter part of the 19th century, blacks were designated by the Actuarial Society of America as one of 98 "special risk" categories, simply because of their race. These ethnic and minority fraternal associations were certainly "mutual benefit" in intent and operation, but their net effect was to promote the general welfare of dispossessed groups in the absence ·of government programs and in the face of indifference or discrimination from the upper classes.
The Mexican American mutualistas , mutual assistance groups in the African American community, the Ancient Order of Hibernians and the Sons of Italy and B'nai B'rith and the Ukrainian Workingmen's Association, in taking care of their own, turned potential recipients of philanthropy into agents of human welfare.
Other occupation-related MBOs developed during the 19th and early 20th centuries, including business leagues, trade associations, and professional associations such as the American Statistical Association (1839), the American Ethnological Society (1842), the American Medical Association (1847), the American Society of Engineers and Architects (1852), the American Entomological Society (1859), and the American Bar Association (1878).
These were clearly MBOs in that their main purpose was to provide a variety of benefits to their members, but they also performed and continue to perform public benefit functions, including research and development, education and training, publications and conferences for members and for the general public, and scholarship and fellowship programs.
Many of the features of benefit societies7 today have been assimilated into organizations that rely on the corporate and political structures of our time. Insurance companies, religious charities, credit unions, and democratic governments now perform many of the same functions that were once the purview of ethnic or culturally affiliated mutual benefit associations.
New technologies have provided yet more new opportunities for humanity to support itself through mutual aid. In modern Asia rotating credit associations organized within communities or workplaces were widespread through the early twentieth century and continue in our time. Habitat for Humanity in the United States is a leading example of shared credit and labor pooled to help low-income people afford adequate housing.
In post-disaster reactions, formal benefit societies often lend aid to others outside their immediate membership, while ad hoc benefit associations form among neighbors or refugees. Ad hoc mutual aid associations have been seen organized among strangers facing shared challenges at such disparate settings as the Woodstock Music and Arts Festival in New York in 1969, during the Beijing Tiananmen square protests of 1989, and for neighborhood defense during the Los Angeles Riots of 1992.
So, what is a Non-Banking Financial Company (NBFC)?
A Non-Banking Financial Company2 (NBFC) is a company registered under the Companies Act, 1956 engaged in the business of loans and advances, acquisition of shares/stocks/bonds/debentures/securities issued by Government or local authority or other marketable securities of a like nature, leasing, hire-purchase, insurance business, chit business but does not include any institution whose principal business is that of agriculture activity, industrial activity, purchase or sale of any goods (other than securities) or providing any services and sale/purchase/construction of immovable property.
A non-banking institution which is a company and has principal business of receiving deposits under any scheme or arrangement in one lump sum or in installments by way of contributions or in any other manner, is also a non-banking financial company (Residuary non-banking company).
What is difference between banks & NBFCs?
NBFCs lend and make investments and hence their activities are akin to that of banks; however there are a few differences as given below:
Within India, The Mutual Benefit Finance Companies also called as "Nidhis", are the non-banking finance companies that enable its members to pool their money with a predetermined investment objective. The main sources of funds are share capital, deposits from its members, deposits from the general public.
In other words, any company which has been notified by the Central Government as Nidhis under the section 620A of Companies Act, 1956 work as a mutual benefit finance company. These are one of the oldest forms of non-banking finance companies wherein the owners of the company are also its clients and pool their resources with the intent to secure loans at a low interest rate at the time the funds are required.
Often, the mutual benefit finance companies give loans to its members for several purposes such as marriages, child education, construction, repayment of old debts, etc. and offer several saving schemes. Also, it offers the credit facility to those members who are not able to raise funds from the commercial banks. Thus, the fundamental objective of Nidhis is to encourage members to save their money and secure loans at a considerable low-interest rate.
Like any other mutual-fund company, Nidhi also has the fund manager who invests the pooled funds of its members in the specific securities, bonds, shares and other money market instruments with an objective to maximize the returns for its members and reduce the risk of loss. The mutual company's profits are distributed among its members in the proportion of their individual contributions or exposures to the firm. Most often, the insurance companies are structured as the mutual benefit finance companies.
A California nonprofit mutual benefit corporation is a legal entity incorporated in California and governed by the California Nonprofit Mutual Benefit Corporation law.
It is a corporation, meaning that it exists as an entity separate from its founders and managers, it has independent filing requirements with federal and state authorities, it provides limited liability protection for its directors, officers, members, and other agents, and it can enter into contracts and obligations on its own behalf.
A nonprofit mutual benefit corporation is set up for the benefit of its members. Often groups of individuals or businesses seeking to advance a common goal will establish this type of corporation. For example, a homeowners' association, a chamber of commerce, a fraternal society, or a social club will likely choose a nonprofit mutual benefit corporation as their entity of choice.
Two of the major factors that distinguish a nonprofit mutual benefit corporation from other types of nonprofit and for-profit corporations are the following:
A nonprofit public benefit corporation is a type of nonprofit corporation usually used by organizations such as charities, schools, and hospitals with tax exempt status under6 section 501(c)(3) of the Internal Revenue Code. It must be formed for charitable or public purposes. If a nonprofit mutual benefit corporation is formed for such purposes, it is in violation of the laws that govern it and should restructure itself as a nonprofit public benefit corporation.
Mutual benefit finance companies are widely considered to be one of the most important and safest modes of investment which promote a thrifty lifestyle amongst its members and encourages savings for the mutual benefit of each other, leading to equitable progress of society in general. Nidhi Companies play a crucial role in helping the middle and lower-middle classes by providing them with financial services with minimum documentation and formalities.
For people with the low annual income, it is difficult to meet the minimum eligibility criteria of loans and other financial services due to which they are unable to fulfill their long-held dreams. Nidhi Companies provides a huge relief to these people by allowing them to deposit their savings and benefit from the returns at fixed durations.
Over the past century there has been a dramatic increase in the popularity of investment in mutual benefit finance companies, as the majority of Indians are financially vulnerable. Within the next few years, Nidhis are likely to become an important component in the Indian economy.
One of the main issues in what we know about mutual benefit finance companies is a lack of knowledge of how they function in foreign countries, which is ironic considering that these companies have originated from these countries. If we do not know how mutual benefit finance companies function abroad, how can we know their advantages and disadvantages and how they compare to Indian mutual benefit finance companies?
This paper seeks to address this issue by comparing the laws of mutual benefit finance companies between India and California, As this would lead to better clarity on the topic and we can ascertain how to improve our own mutual benefit finance companies. The aim of my research is to broaden current knowledge of the laws related to mutual benefit finance companies within India and California
OBJECTIVES:
POINT WISE COMPARISON OF LAWS RELATED TO MUTUAL BENEFIT FINANCE COMPANIES WITHIN INDIA AND CALIFORNIA (USA)
We shall now proceed to compare the two laws based on certain selected common points. Only Californian law articles relevant to comparison are selected as the law is quite massive in size.
FINDINGS AND SUGGESTIONS
For this comparative research paper, I had selected certain common elements to compare the two laws. To better understand, we must first understand the general nature of these laws.
The fifty American states are separate sovereigns, with their own state constitutions, state governments, and state courts. All states have a legislative branch which enacts state statutes, an executive branch that promulgates state regulations pursuant to statutory authorization, and a judicial branch that applies, interprets, and occasionally overturns both state statutes and regulations, as well as local ordinances.
They retain plenary power to make laws covering anything not preempted by the federal Constitution, federal statutes, or international treaties ratified by the federal Senate. Normally, state supreme courts are the final interpreters of state constitutions and state law, unless their interpretation itself presents a federal issue, in which case a decision may be appealed to the U.S. Supreme Court by way of a petition for writ of certiorari.
State laws have dramatically diverged in the centuries since independence, to the extent that the United States cannot be regarded as one legal system as to the majority of types of law traditionally under state control, but must be regarded as 50 separate systems of tort law, family law, property law, contract law, criminal law, and so on.
Whereas, The Indian constitution prescribes a federal structure of government, with a clearly defined separation of legislative and executive powers between the Federation and the States. Each State Government has the freedom to draft its own laws on subjects classified as state subjects. Laws passed by the Parliament of India, such as the companies act 2013 and the resulting Nidhi rules 2014, and other pre-existing central laws on subjects classified as central subjects are binding on all citizens.
By comparing the two laws we find the following differences. Indian Nidhi Rules 2014 is different from Californian legislatorial law in a number of respects.
(comparepointsof indian law specifically to american points then delete irrelevant american laws)
In the laws related to Directors, In Nidhi Rules 2014, . In contrast, in Californian legislatorial law:
After having read, reviewed and compared the two laws related to Mutual benefit corporations, The most interesting finding was that the Californian law, in comparison with the Indian law, was far more weighty, detailed and broad-gauged.
The Indian law with only 24 sections is far too miniscule in number and pathetic in range of power when compared to the more than 1800 individual articles present in the Californian law, which cover crucial areas such as dissolution, liability of members, mergers etc. Which are nowhere to be seen in the Indian law. My suggestion to our lawmakers would be to look at how the drafting of American corporate law is taking place and how it covers every single detail.
This is necessary because of the ever-increasing popularity of investing in a Nidhi company due to reasons like:
Thus, in order to encourage saving habits of Indian citizens, lawmakers need to create a stronger and more well-defined law than the current Nidhi rules 2014, which can instill confidence in the hearts of the common man.
CONCLUSION
In conclusion, this paper has investigated, compared and explained the differences between the Nidhi Rules 2014 and the Californian legislatorial law governing mutual benefit9 companies. The findings of this study indicate that the Indian Nidhi Rules is inefficient, weak and small in scope in comparison with the Californian law. And in my opinion, this shouldn't be the case. India is a country with a strong legal history and amazing lawyers and lawmakers.
What we should do is simply remake the mutual benefits law in accordance with the high standards of law seen in the west. After all, in the end these laws should benefit the common man in our country and encourage healthy saving habits. In the COVID 19 pandemic, many people lost their jobs and burned through their savings. They would've been more financially stable had they saved money.
Nidhi was introduced as an incentive to cultivate healthy saving and investing habits in India. This is also a way to increase the inflow of money into the Indian economy. In earlier times Indians used to keep their money with themselves and this caused poor circulation as well as stagnation of wealth.
By means of saving schemes, which are backed by the government, Indian citizens can allow their wealth to appreciate at higher interest rates and reap benefits such as tax exemption that certain savings schemes offer. Savings schemes cater to a wide demographic and encourage individuals to invest for various milestones of life such as retirement, children's higher education, their marriage etc.
They are ideal for long term wealth creation as they come with a certain lock-in period and offer good returns. Since they are not impacted by market volatility, they are safer investment options, ideal for the conservative Indian investor. Furthermore, the interest rates on various saving schemes are revised on a quarterly or half yearly basis, keeping up with the rising costs of living and inflation.
My research has highlighted the importance of the need for better drafting of laws. The strength of my paper lies in its comparison on the basis of select points. This research paper has gone some way towards enhancing our understanding of how the law exists in foreign countries and how we should emulate the high level of drafting used in these countries.
I hope that my research will be helpful to lawmakers as a source of inspiration and to the common man as a standard to which our country's law should be held to. My paper provides a springboard for future researchers to compare Indian laws to foreign ones, allowing us to identify our strengths and weaknesses, leading to an overall efficient law.
BIBLIOGRAPHY:
In order to cast a brighter light on my topic, it is absolutely crucial to understand concepts like NBFCs, mutual benefit finance companies and how they evolved to where they are now, in the context of Europe and USA, their role in our society, features etc.
To start off, the main type of organizations explained here will be mutual insurance companies and mutual benefit societies. In that sense1, mutual societies are insurance companies run by their members for protecting them against property, personal, and social risks on a voluntary and non-compulsory basis. Mutual insurance companies deal with property and life risks, while mutual benefit societies protect their members against social risks such as illness, disability, and old age mainly.
Mutual organizations or mutual societies, often designated as mutuals, exist everywhere in the world, in developing as well as in industrialized countries, in a more or less institutionalized form. In a developing country, some mutual organizations appear as voluntary associations for gathering and pooling money to fund marriages, funerals, or a business start-up for one or several members (tontines).
Other mutuals pool voluntary work to afford water supplies or to build roads in rural areas (development self-help associations). In a developed country, mutual societies are businesses; they operate in the same markets as corporations and compete with them. They are formed on a voluntary basis to provide aid, benefits, insurance, credit, or other services either to their members or to a larger population. In many countries, mutual organizations have vast historical backgrounds reaching into the past.
Before large-scale government and employer health insurance, friendly societies played an important part in many people's lives. Friendly5 societies covered significant portions of many nations' populations, and some of these societies still exist today, although in a different form.
In some countries, they have been incorporated into the health system and become like insurance companies and lost their ceremonial aspect; in others they have taken on a more charitable or social aspect. Mutual aid was a foundation of social welfare in the United States until the early twentieth century.
Early societies not only shared material resources, but often advanced social values related to self-reliance and moral character. Many fraternal organizations were first organized as mutual aid societies.
Mutual benefit societies3 date back to ancient times, while mutual insurance companies are more recent. Some precursory mutual organizations could be found in Ancient Egypt (mutual assistance among stone cutters) or in the Roman Empire (the same among bricklayers). However mutual benefit societies are mainly descendants of the oldest part of the European nonprofit sector: they appeared in the Middle Ages as charitable brotherhoods (Continental Europe) or friendly societies (United Kingdom). Brotherhoods were fraternal societies in urban areas linked to the guilds and, therefore, restricted to the same craft, business, or trade.
Medieval guilds were an early basis for many Western benefit societies. A guild charter document from the year 1200 states:
To become a gildsman, …it was necessary to pay certain initiation fees, …(and to take) an oath of fealty to the fraternity, swearing to observe its laws, to uphold its privileges, not to divulge its counsels, to obey its officers, and not to aid any non-gildsman under cover of the newly-acquired 'freedom.'
This charter shows the importance of brotherhood, and the principles of discipline, conviviality, and benevolence. The structure of fraternity in the guild formed the basis for the emerging benefit societies. Joining such an organization, a member gained the "freedom" of the craft; and the exclusive benefits that the organization could confer on members.
These organizations helped the needy members of the guild in the case of illness of their families or the widow and the orphan in the case of death of the breadwinner; they served also as sociability and ceremonial places. Friendly societies fulfilled the same purposes but they were independent of the guilds and, therefore, more open than brotherhoods.
The corporatist system, on which the guilds and brotherhoods relied, became weaker but survived with the rise of the free market and modern industry in most European countries. In France, the 1789 Revolution suppressed both guilds and their social subsidiaries, the brotherhoods. Nevertheless, mutual benefit societies flourished during the nineteenth century in Europe, when industrial revolution and rural depopulation pauperized the working class and broke the traditional solidarity of the family or the village.
They were inspired by ideological currents such as utopist socialism (Owen, Proudhon) and the Fabian movement or solidarism (Bourgeois, Durkheim). Some of these mutuals were linked with the emerging labor unions and others were more middle-class oriented. Depending on the countries, the period, and the degree of recognition of the labor movement, they were either repressed or encouraged by the state. Whatever their form, mutual benefit societies were the forerunners of the welfare state.
Mutual societies detected first the main social risks: sickness, disability, and old age, that were covered later by a public social insurance scheme in Continental European countries and by a National Health service and pension funds in Anglo-Saxon and Nordic countries. During the twentieth century, modern welfare states challenged mutual benefit societies, which were forced to become either complements or agents of the compulsory social security schemes.
However, most of them keep their vanguard function. The forerunners of mutual insurance companies are more recent. They can be found in the second part of the nineteenth century when the progress of probabilistic mathematics transformed insurance in a modern industry. Farmers pooled their savings to protect themselves against risks of their property, bad weather and fires mainly, on a mutual basis.
Other mutual insurance companies for retailers and craftsmen followed, in competition with insurance corporations, but the dissemination of mutual insurance among the salaried population is more recent; it was in many countries a by-product of the post-World War II consumption society, especially with the compulsory insurance against car accidents and other damage to real estate property.
The second part of the nineteenth century and the beginning of the twentieth century is also the time when mutual forms of banking appeared in Europe either as mutual societies or cooperatives to pool the savings and afford credit to the part of the population who had no access to commercial banks because of their lack of guarantee. The Raiffeisen banks in Germany are the most emblematical, the savings and loans associations or the savings banks, the most widespread.
Ancient China, Egypt, Greece, and Rome had merchants' associations, cooperative loan societies, associations for visiting the sick and burying the dead, religious cults, and club-like groups. The medieval period saw the widespread development of merchant and craft guilds, occupation-based groups which provided to their members many benefits beyond those that were directly work-related.
For instance, "The French fraternities (confreries) . professed religious and charitable ends, celebrating holy services, aiding masters who were financially embarrassed, and attending to the funerals of the membership" (Lowie, 1948, p. 307). Confreries of winegrowers, originally formed for mutual support in bad crop years, took on general philanthropic activities such as supporting local hospitals and orphanages.
The same was true in China·, where "merchant and craft guilds not only regulated business and exercised jurisdiction over their members, but also kept streets and drains in order, organized fire brigades, and attended to poor relief
The demise of the guilds in Europe and England opened the way for the "friendly societies " which performed many of the functions that the guilds had. The early friendly societies were principally organized by workingmen in response to economic, social, and other needs. These workingmen's associations which originated in England and were later transplanted to the United States included such groups as the Independent Order of Oddfellows, the Ancient Order of Foresters, and the United Ancient Order of Druids.
As time went on, in both England and the United States, these groups became far more identified with the middle classes than with the working classes, but it is worth noting that they originally began for essentially the same reasons that American immigrant and minority MBOs began, to create an alternative social insurance and welfare system for the lower classes. American history sheds further light on the activities of voluntary associations including those we now term MBOs.
In the 17th and most of the 18th centuries, population dispersion and colonial status discouraged associational activity, with the important exception of alternative religious groups. But in the late 18th and 19th centuries, with the advent of political freedom, new constitutional and legal support for the right to associate, the rise of towns and cities, and the massive influx of immigrants, Americans created a wide variety of associations.
In addition to the host-society and largely upper-class-initiated philanthropic agencies to which nonprofit sector historians have given so much attention (e.g., the Red Cross, the YMCA, Jane Addams' Hull House, Dorothea Dix's mental health care work, private foundations, private 11 universities, Community Chest and United Way), Americans created thousands of mutual assistance agencies for self-improvement, companionship, protection against sudden economic loss, protection against discrimination, and a decent burial.
It is important to note that the great majority of 19th century MBOs4 were created by lower income and often discriminated-against groups that were far more vulnerable to financial vicissitudes than were members of the middle and upper classes. Neither the government nor host society charity provided a "safety net" for such people, 1who often could not get adequate assistance from established financial institutions.
For instance, in the latter part of the 19th century, blacks were designated by the Actuarial Society of America as one of 98 "special risk" categories, simply because of their race. These ethnic and minority fraternal associations were certainly "mutual benefit" in intent and operation, but their net effect was to promote the general welfare of dispossessed groups in the absence ·of government programs and in the face of indifference or discrimination from the upper classes.
The Mexican American mutualistas , mutual assistance groups in the African American community, the Ancient Order of Hibernians and the Sons of Italy and B'nai B'rith and the Ukrainian Workingmen's Association, in taking care of their own, turned potential recipients of philanthropy into agents of human welfare.
Other occupation-related MBOs developed during the 19th and early 20th centuries, including business leagues, trade associations, and professional associations such as the American Statistical Association (1839), the American Ethnological Society (1842), the American Medical Association (1847), the American Society of Engineers and Architects (1852), the American Entomological Society (1859), and the American Bar Association (1878).
These were clearly MBOs in that their main purpose was to provide a variety of benefits to their members, but they also performed and continue to perform public benefit functions, including research and development, education and training, publications and conferences for members and for the general public, and scholarship and fellowship programs.
Many of the features of benefit societies7 today have been assimilated into organizations that rely on the corporate and political structures of our time. Insurance companies, religious charities, credit unions, and democratic governments now perform many of the same functions that were once the purview of ethnic or culturally affiliated mutual benefit associations.
New technologies have provided yet more new opportunities for humanity to support itself through mutual aid. In modern Asia rotating credit associations organized within communities or workplaces were widespread through the early twentieth century and continue in our time. Habitat for Humanity in the United States is a leading example of shared credit and labor pooled to help low-income people afford adequate housing.
In post-disaster reactions, formal benefit societies often lend aid to others outside their immediate membership, while ad hoc benefit associations form among neighbors or refugees. Ad hoc mutual aid associations have been seen organized among strangers facing shared challenges at such disparate settings as the Woodstock Music and Arts Festival in New York in 1969, during the Beijing Tiananmen square protests of 1989, and for neighborhood defense during the Los Angeles Riots of 1992.
So, what is a Non-Banking Financial Company (NBFC)?
A Non-Banking Financial Company2 (NBFC) is a company registered under the Companies Act, 1956 engaged in the business of loans and advances, acquisition of shares/stocks/bonds/debentures/securities issued by Government or local authority or other marketable securities of a like nature, leasing, hire-purchase, insurance business, chit business but does not include any institution whose principal business is that of agriculture activity, industrial activity, purchase or sale of any goods (other than securities) or providing any services and sale/purchase/construction of immovable property.
A non-banking institution which is a company and has principal business of receiving deposits under any scheme or arrangement in one lump sum or in installments by way of contributions or in any other manner, is also a non-banking financial company (Residuary non-banking company).
What is difference between banks & NBFCs?
NBFCs lend and make investments and hence their activities are akin to that of banks; however there are a few differences as given below:
- NBFC cannot accept demand deposits;
- NBFCs do not form part of the payment and settlement system and cannot issue cheques drawn on itself
- Deposit insurance facility of Deposit Insurance and Credit Guarantee Corporation is not available to depositors of NBFCs, unlike in case of banks.
Within India, The Mutual Benefit Finance Companies also called as "Nidhis", are the non-banking finance companies that enable its members to pool their money with a predetermined investment objective. The main sources of funds are share capital, deposits from its members, deposits from the general public.
In other words, any company which has been notified by the Central Government as Nidhis under the section 620A of Companies Act, 1956 work as a mutual benefit finance company. These are one of the oldest forms of non-banking finance companies wherein the owners of the company are also its clients and pool their resources with the intent to secure loans at a low interest rate at the time the funds are required.
Often, the mutual benefit finance companies give loans to its members for several purposes such as marriages, child education, construction, repayment of old debts, etc. and offer several saving schemes. Also, it offers the credit facility to those members who are not able to raise funds from the commercial banks. Thus, the fundamental objective of Nidhis is to encourage members to save their money and secure loans at a considerable low-interest rate.
Like any other mutual-fund company, Nidhi also has the fund manager who invests the pooled funds of its members in the specific securities, bonds, shares and other money market instruments with an objective to maximize the returns for its members and reduce the risk of loss. The mutual company's profits are distributed among its members in the proportion of their individual contributions or exposures to the firm. Most often, the insurance companies are structured as the mutual benefit finance companies.
A California nonprofit mutual benefit corporation is a legal entity incorporated in California and governed by the California Nonprofit Mutual Benefit Corporation law.
It is a corporation, meaning that it exists as an entity separate from its founders and managers, it has independent filing requirements with federal and state authorities, it provides limited liability protection for its directors, officers, members, and other agents, and it can enter into contracts and obligations on its own behalf.
A nonprofit mutual benefit corporation is set up for the benefit of its members. Often groups of individuals or businesses seeking to advance a common goal will establish this type of corporation. For example, a homeowners' association, a chamber of commerce, a fraternal society, or a social club will likely choose a nonprofit mutual benefit corporation as their entity of choice.
Two of the major factors that distinguish a nonprofit mutual benefit corporation from other types of nonprofit and for-profit corporations are the following:
- The assets of the corporation can only be distributed to members upon dissolution of the corporation, not during its operation.
- It can be established for any lawful purpose and is not limited to charitable or public purposes.
A nonprofit public benefit corporation is a type of nonprofit corporation usually used by organizations such as charities, schools, and hospitals with tax exempt status under6 section 501(c)(3) of the Internal Revenue Code. It must be formed for charitable or public purposes. If a nonprofit mutual benefit corporation is formed for such purposes, it is in violation of the laws that govern it and should restructure itself as a nonprofit public benefit corporation.
Mutual benefit finance companies are widely considered to be one of the most important and safest modes of investment which promote a thrifty lifestyle amongst its members and encourages savings for the mutual benefit of each other, leading to equitable progress of society in general. Nidhi Companies play a crucial role in helping the middle and lower-middle classes by providing them with financial services with minimum documentation and formalities.
For people with the low annual income, it is difficult to meet the minimum eligibility criteria of loans and other financial services due to which they are unable to fulfill their long-held dreams. Nidhi Companies provides a huge relief to these people by allowing them to deposit their savings and benefit from the returns at fixed durations.
Over the past century there has been a dramatic increase in the popularity of investment in mutual benefit finance companies, as the majority of Indians are financially vulnerable. Within the next few years, Nidhis are likely to become an important component in the Indian economy.
One of the main issues in what we know about mutual benefit finance companies is a lack of knowledge of how they function in foreign countries, which is ironic considering that these companies have originated from these countries. If we do not know how mutual benefit finance companies function abroad, how can we know their advantages and disadvantages and how they compare to Indian mutual benefit finance companies?
This paper seeks to address this issue by comparing the laws of mutual benefit finance companies between India and California, As this would lead to better clarity on the topic and we can ascertain how to improve our own mutual benefit finance companies. The aim of my research is to broaden current knowledge of the laws related to mutual benefit finance companies within India and California
OBJECTIVES:
- Compare and contrast Nidhi Rules 2014 and Californian mutual benefit law.
- Critique the shortcomings of Nidhi rules 2014
- Justify a complete overhaul in the current Nidhi Rules 2014
POINT WISE COMPARISON OF LAWS RELATED TO MUTUAL BENEFIT FINANCE COMPANIES WITHIN INDIA AND CALIFORNIA (USA)
We shall now proceed to compare the two laws based on certain selected common points. Only Californian law articles relevant to comparison are selected as the law is quite massive in size.
- DIRECTORS
- In India's Nidhi Rules 201410:
17. Rules relating to Directors:
- The Director shall be a member of Nidhi.
- The Director of a Nidhi shall hold office for a term up to ten consecutive years on the Board of Nidhi.
- The Director shall be eligible for re-appointment only after the expiration of two years of ceasing to be a Director.
- Where the tenure of any Director in any case had already been extended by the Central Government, it shall terminate on expiry of such extended tenure.
- The person to be appointed as a Director shall comply with the
requirements of sub-section (4) of section 152 of the Act and shall not have
been disqualified from appointment as provided in section 164 of the Act.
- In California's Legislature:
ARTICLE 1. General Provisions [7210 - 7215]
(Article 1 added by Stats. 1978, Ch. 567. ) 7210.
Each corporation shall have a board of directors. Subject to the provisions of this part and any limitations in the articles or bylaws relating to action required to be approved by the members (Section 5034), or by a majority of all members (Section 5033), the activities and affairs of a corporation shall be conducted and all corporate powers shall be exercised by or under the direction of the board.
The board may delegate the management of the activities of the corporation to any person or persons, management company, or committee however composed, provided that the activities and affairs of the corporation shall be managed and all corporate powers shall be exercised under the ultimate direction of the board.
ARTICLE 2. Selection, Removal and Resignation of Directors [7220 - 7225]
( Article 2 added by Stats. 1978, Ch. 567. )7220
- Except as provided in subdivision (d), (e), or (f), directors shall be
elected for terms of no longer than four years, as fixed in the articles or
bylaws. However, the terms of directors of a corporation without members may
be up to six years. In the absence of any provision in the articles or
bylaws, the term shall be one year. The articles or bylaws may provide for
staggering the terms of directors by dividing the total number of directors
into groups of one or more directors.
The terms of office of the several groups and the number of directors in each group need not be uniform. No amendment of the articles or bylaws may extend the term of a director beyond that for which the director was elected, nor may any bylaw provision increasing the terms of directors be adopted without approval of the members (Section 5034).
- Except as otherwise provided in the articles or bylaws, each director, including a director elected to fill a vacancy, shall hold office until the expiration of the term for which elected and until a successor has been elected and qualified, unless the director has been removed from office.
- Except as provided in subdivision (d), (e), or (f), directors shall be
elected for terms of no longer than four years, as fixed in the articles or
bylaws. However, the terms of directors of a corporation without members may
be up to six years. In the absence of any provision in the articles or
bylaws, the term shall be one year. The articles or bylaws may provide for
staggering the terms of directors by dividing the total number of directors
into groups of one or more directors.
- In India's Nidhi Rules 201410:
- MEMBERSHIP
- N India's Nidhi Rules 2014:
8. Membership:
- A Nidhi shall not admit a body corporate or trust as a member.
- Except as otherwise permitted under these rules, every Nidhi shall ensure that its membership is not reduced to less than two hundred members at any time.
- A minor shall not be admitted as a member of Nidhi: Provided that deposits
may be accepted in the name of a minor, if they are made by the natural or legal
guardian who is a member of Nidhi.
- IN CALIFORNIA'S LEGISLATURE:
ARTICLE 1. Issuance of Memberships [7310 - 7315]
( Article 1 added by Stats. 1978, Ch. 567. ) 7310.
- A corporation may admit persons to membership, as provided in its articles or bylaws, or may provide in its articles or bylaws that it shall have no members. In the absence of any provision in its articles or bylaws providing for members, a corporation shall have no members.
- In the case of a corporation which has no members:
- Any action for which there is no specific provision of this part applicable to a corporation which has no members and which would otherwise require approval by a majority of all members (Section 5033) or approval by the members (Section 5034) shall require only approval of the board, any provision of this part or the articles or bylaws to the contrary notwithstanding.
- All rights which would otherwise vest in the members to share in a
distribution upon dissolution shall vest in the directors.
- Reference in this part to a corporation which has no members includes a
corporation in which the directors are the only members.
No person may hold more than one membership, and no fractional memberships may be held, except as follows:
- Two or more persons may have an indivisible interest in a single membership when authorized by, and in a manner or under the circumstances prescribed by, the articles or bylaws subject to Section 7612.
- If the articles or bylaws provide for classes of membership and if the articles or bylaws permit a person to be a member of more than one class, a person may hold a membership in one or more classes.
- Any branch, division, or office of any person, which is not formed primarily to be a member, may hold a separate membership.
- In the case of membership in an owners' association, created in connection with any of the forms of development referred to in Section 11004.5 of the Business and Professions Code, the articles or bylaws may permit a person who owns an interest, or who has a right of exclusive occupancy, in more than one lot, parcel, area, apartment, or unit to hold a separate membership in the owners' association for each lot, parcel, area, apartment, or unit.
- In the case of membership in a mutual water company, as defined in Section 14300, the articles or bylaws may permit a person entitled to membership by reason of the ownership, lease, or right of occupancy of more than one lot, parcel, or other service unit to hold a separate membership in the mutual water company for each lot, parcel, or other service unit.
- In the case of membership in a mobilehome park acquisition corporation, as
described in Section 11010.8 of the Business and Professions Code, a bona fide
secured party who has, pursuant to a security interest in a membership, taken
title to the membership by way of foreclosure, repossession, or voluntary
repossession, and who is actively attempting to resell the membership to a
prospective homeowner or resident of the mobilehome park, may own more than one
membership:
- Except as provided in subdivision (b), or in its articles or bylaws, a corporation may admit any person to membership.
- A corporation may not admit its subsidiary (Section 5073) to membership.
- N India's Nidhi Rules 2014:
- PENALTIES
- IN INDIA'S NIDHI RULES 2014:
24. Penalty for non-compliance:
If a company falling under rule 2 contravenes any of the provisions of the rules prescribed herein, the company and every officer of the company who is in default shall be punishable with fine which may extend to five thousand rupees, and where the contravention is a continuing one, with a further fine which may extend to five hundred rupees for every day after the first during which the contravention continues. - IN CALIFORNIA'S LEGISLATURE8:
CHAPTER 18. Crimes and Penalties [8810 - 8817]
( Chapter 18 added by Stats. 1978, Ch. 567. ) 8810.
- Upon the failure of a corporation to file the statement required by Section 8210, the Secretary of State shall provide a notice of such delinquency to the corporation. The notice shall also contain information concerning the application of this section, and advise the corporation of the penalty imposed by Section 19141 of the Revenue and Taxation Code for failure to timely file the required statement after notice of delinquency has been provided by the Secretary of State. If, within 60 days after providing notice of the delinquency, a statement pursuant to Section 8210 has not been filed by the corporation, the Secretary of State shall certify the name of the corporation to the Franchise Tax Board.
- Upon certification pursuant to subdivision (a), the Franchise Tax Board shall assess against the corporation a penalty of fifty dollars ($50) pursuant to Section 19141 of the Revenue and Taxation Code.
- The penalty herein provided shall not apply to a corporation which on or prior to the date of certification pursuant to subdivision (a) has dissolved, has converted to another type of business entity, or has been merged into another corporation or other business entity.
- The penalty herein provided shall not apply and the Secretary of State need not provide a notice of the delinquency to a corporation the corporate powers, rights, and privileges of which have been suspended by the Franchise Tax Board pursuant to Section 23301, 23301.5, or 23775 of the Revenue and Taxation Code on or prior to, and remain suspended on, the last day of the filing period pursuant to Section 8210. The Secretary of State need not provide notice of the filing requirement pursuant to Section 8210, to a corporation the corporate powers, rights, and privileges of which have been so suspended by the Franchise Tax Board on or prior to, and remain suspended on, the day the Secretary of State prepares the notice for sending.
- If, after certification pursuant to subdivision (a) the Secretary of State finds the required statement was filed before the expiration of the 60-day period after providing the notice of delinquency, the Secretary of State shall promptly decertify the name of the corporation to the Franchise Tax Board. The Franchise Tax Board shall then promptly abate any penalty assessed against the corporation pursuant to Section 19141 of the Revenue and Taxation Code.
- If the Secretary of State determines that the failure of a corporation
to file a statement required by Section 8210 is excusable because of
reasonable cause or unusual circumstances which justify the failure, the
Secretary of State may waive the penalty imposed by this section and by
Section 19141 of the Revenue and Taxation Code, in which case the Secretary
of State shall not certify the name of the corporation to the Franchise Tax
Board, or if already certified, the Secretary of State shall promptly
decertify the name of the corporation.
(Amended by Stats. 2014, Ch. 834, Sec. 17. (SB 1041) Effective January 1, 2015.)
8811.
Any promoter, director, or officer of a corporation who knowingly and willfully issues or consents to the issuance of memberships or membership certificates with intent to defraud present or future members or creditors is guilty of a misdemeanor punishable by a fine of not more than one thousand dollars ($1,000) or by imprisonment in county jail for not more than one year or by both such fine and imprisonment.
(Added by Stats. 1978, Ch. 567.)
8812.
Any director of any corporation who concurs in any vote or act of the directors of the corporation or any of them, knowingly and with dishonest or fraudulent purpose, to make any distribution of assets, except in the case and in the manner allowed by this part, either with the design of defrauding creditors or members or of giving a false appearance to the value of the membership and thereby defrauding purchasers is guilty of a crime. Each such crime is punishable by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code, or by a fine of not more than one thousand dollars ($1,000) or imprisonment in a county jail for not more than one year, or by both that fine and imprisonment.
(Amended by Stats. 2011, Ch. 15, Sec. 42. (AB 109) Effective April 4, 2011. Operative October 1, 2011, by Sec. 636 of Ch. 15, as amended by Stats. 2011, Ch. 39, Sec. 68.) 8813.
- Every director or officer of any corporation is guilty of a crime if such director or officer knowingly concurs in making or publishing, either generally or privately, to members or other persons (1) any materially false report or statement as to the financial condition of the corporation, or (2) any willfully or fraudulently exaggerated report, prospectus, account or statement of operations, financial condition or prospects, or (3) any other paper intended to give, and having a tendency to give, a membership in such corporation a greater or lesser value than it really possesses.
- Every director or officer of any corporation is guilty of a crime who refuses to make or direct to be made any book entry or the posting of any notice required by law in the manner required by law.
- A violation of subdivision (a) or (b) of this section shall be
punishable by imprisonment in state prison or by a fine of not more than one
thousand dollars ($1,000) or imprisonment in the county jail for not more
than one year or both such fine and imprisonment.
(Added by Stats. 1978, Ch. 567.)
- Every director, officer or agent of any corporation, who knowingly receives or acquires possession of any property of the corporation, otherwise than in payment of a just demand, and, with intent to defraud, omits to make, or to cause or direct to be made, a full and true entry thereof in the books or accounts of the corporation is guilty of a crime.
- Every director, officer, agent or member of any corporation who, with intent to defraud, destroys, alters, mutilates or falsifies any of the books, papers, writings or securities belonging to the corporation or makes or concurs in omitting to make any material entry in any book of accounts or other record or document kept by the corporation is guilty of a crime.
- Each crime specified in this section is punishable by imprisonment in
state prison, or by imprisonment in a county jail for not exceeding one
year, or a fine not exceeding one thousand dollars ($1,000), or both such
fine and imprisonment.
(Added by Stats. 1978, Ch. 567.)
Every director, officer or agent of any corporation, or any person proposing to organize such a corporation who knowingly exhibits any false, forged or altered book, paper, voucher, security or other instrument of evidence to any public officer or board authorized by law to examine the organization of such corporation or to investigate its affairs, with intent to deceive such officer or board in respect thereto, is punishable by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code, or by imprisonment in a county jail for not exceeding one year.
(Amended by Stats. 2011, Ch. 15, Sec. 43. (AB 109) Effective April 4, 2011. Operative October 1, 2011, by Sec. 636 of Ch. 15, as amended by Stats. 2011, Ch. 39, Sec. 68.)
Every person who, without being authorized so to do, subscribes the name of another to or inserts the name of another in any prospectus, circular or other advertisement or announcement of any corporation, whether existing or intended to be formed, with intent to permit the document to be published and thereby to lead persons to believe that the person whose name is so subscribed is an officer, agent or promoter of such corporation, when in fact no such relationship exists to the knowledge of such person, is guilty of a misdemeanor.
(Added by Stats. 1978, Ch. 567.)
- IN INDIA'S NIDHI RULES 2014:
- INCORPORATION/FORMATION
- IN INDIA'S NIDHI RULES 2014:
4. Incorporation and incidental matters:
- A Nidhi to be incorporated under the Act shall be a public company and shall have a minimum paid up equity share capital of five lakh rupees.
- On and after the commencement of the Act, no Nidhi shall issue preference shares.
- If preference shares had been issued by a Nidhi before the commencement of this Act, such preference shares shall be redeemed in accordance with the terms of issue of such shares.
- Except as provided under the proviso to sub-rule (e) to rule 6, no Nidhi shall have any object in its Memorandum of Association other than the object of cultivating the habit of thrift and savings amongst its members, receiving deposits from, and lending to, its members only, for their mutual benefit.
- Every Company incorporated as a "Nidhi" shall have the last words 'Nidhi Limited' as part of its name.
- IN CALIFORNIA'S LEGISLATURE:
ARTICLE 2. Formation [7120 - 7122.3]
( Article 2 added by Stats. 1978, Ch. 567. )
- One or more persons may form a corporation under this part by executing and filing articles of incorporation.
- If initial directors are named in the articles, each director named in the articles shall sign and acknowledge the articles; if initial directors are not named in the articles, the articles shall be signed by one or more persons who thereupon are the incorporators of the corporation.
- The corporate existence begins upon the filing of the articles and
continues perpetually, unless otherwise expressly provided by law or in the
articles.
(Amended by Stats. 1983, Ch. 1085, Sec. 3.)
- In the case of an existing unincorporated association, the association may change its status to that of a corporation upon a proper authorization for such by the association in accordance with its rules and procedures.
- In addition to the matters required to be set forth in the articles pursuant to Section 7130, the articles in the case of an incorporation authorized by subdivision (a) shall set forth that an existing unincorporated association, stating its name, is being incorporated by the filing of the articles.
- The articles filed pursuant to this section shall be accompanied by a verified statement of any two officers or governing board members of the association stating that the incorporation of the association by means of the articles to which the verified statement is attached has been approved by the association in accordance with its rules and procedures.
- Upon the change of status of an unincorporated association to a corporation pursuant to subdivision (a), the property of the association becomes the property of the corporation and the members of the association who had any voting rights of the type referred to in Section 5056 become members of the corporation.
- The filing for record in the office of the county recorder of any county in this state in which any of the real property of the association is located, of a copy of the articles of incorporation filed pursuant to this section, certified by the Secretary of State, shall evidence record ownership in the corporation of all interests of the association in and to the real property located in that county.
- All rights of creditors and all liens upon the property of the association shall be preserved unimpaired. Any action or proceeding pending by or against the unincorporated association may be prosecuted to judgment, which shall bind the corporation, or the corporation may be proceeded against or substituted in its place.
- If a corporation is organized by a person who is or was an officer,
director or member of an unincorporated association and such corporation is
not organized pursuant to subdivision (a), the unincorporated association
may continue to use its name and the corporation may not use a name which is
the same as or similar to the name of the unincorporated association.
(Amended by Stats. 1981, Ch. 587, Sec. 26.)
- The Secretary of State shall not file articles setting forth a name in which "bank," "trust," "trustee," or related words appear, unless the certificate of approval of the Commissioner of Business Oversight is attached thereto.
- The Secretary of State shall not file articles pursuant to this part setting forth a name that may create the impression that the purpose of the corporation is public, charitable, or religious or that it is a charitable foundation.
- The name of a corporation shall not be a name that the Secretary of
State determines is likely to mislead the public and shall be
distinguishable in the records of the Secretary of State from all of the
following:
- The name of any corporation.
- The name of any foreign corporation authorized to transact intrastate business in this state.
- Each name that is under reservation pursuant to this title.
- The name of a foreign corporation that has registered its name pursuant to Section 2101.
- A name that a foreign corporation has assumed under subdivision (b) of Section 2106.
- A name that will become the record name of a domestic or foreign corporation upon a corporate instrument when there is a delayed effective or file date.
- The use by a corporation of a name in violation of this section may be enjoined notwithstanding the filing of its articles by the Secretary of State.
- Any applicant may, upon payment of the fee prescribed therefor in the Government Code, obtain from the Secretary of State a certificate of reservation of any name not prohibited by subdivision (c), and upon the issuance of the certificate the name stated therein shall be reserved for a period of 60 days. The Secretary of State shall not, however, issue certificates reserving the same name for two or more consecutive 60-day periods to the same applicant or for the use or benefit of the same person; nor shall consecutive reservations be made by or for the use or benefit of the same person of names so similar as to fall within the prohibitions of subdivision (c).
7122.3.
The Secretary of State shall not file articles for a corporation the name of which would fall within the prohibitions of Section 18104 of the Financial Code. This section shall not apply to articles filed for a corporation organized in accordance with Section 18100 of the Financial Code.
(Added by Stats. 1999, Ch. 453, Sec. 10. Effective January 1, 2000.)
- IN INDIA'S NIDHI RULES 2014:
- TITLE, PURPOSE AND APPLICATION
- IN INDIA'S NIDHI RULES 2014:
- Short Title and Commencement
- These Rules may be called Nidhi Rules, 2014.
- They shall come into force on the 1st day of April, 2014.
- Application.- These rules shall apply to:
- every company which had been declared as a Nidhi or Mutual Benefit Society under sub-section (1) of section 620A of the Companies Act, 1956;
- every company functioning on the lines of a Nidhi company or Mutual Benefit Society but has either not applied for or has applied for and is awaiting notification to be a Nidhi or Mutual Benefit Society under sub-section (1) of section 620A of the Companies Act, 1956; and
- every company incorporated as a Nidhi pursuant to the provisions of section
406 of the Act.
- Short Title and Commencement
- IN INDIA'S NIDHI RULES 2014:
- IN CALIFORNIA'S LEGISLATURE:
7110.
This part shall be known and may be cited as the Nonprofit Mutual Benefit Corporation Law.
(Added by Stats. 1978, Ch. 567.)
7111.
Subject to any other provision of law of this state applying to the particular class of corporation or line of activity, a corporation may be formed under this part for any lawful purpose; provided that a corporation all of the assets of which are irrevocably dedicated to charitable, religious, or public purposes and which as a matter of law or according to its articles or bylaws must, upon dissolution, distribute its assets to a person or persons carrying on a charitable, religious, or public purpose or purposes may not be formed under this part.
ARTICLE 2. Formation [7120 - 7122.3]
( Article 2 added by Stats. 1978, Ch. 567. ) 7120.
- One or more persons may form a corporation under this part by executing and filing articles of incorporation.
- If initial directors are named in the articles, each director named in the articles shall sign and acknowledge the articles; if initial directors are not named in the articles, the articles shall be signed by one or more persons who thereupon are the incorporators of the corporation.
- The corporate existence begins upon the filing of the articles and continues perpetually, unless otherwise expressly provided by law or in the articles.
- In the case of an existing unincorporated association, the association may change its status to that of a corporation upon a proper authorization for such by the association in accordance with its rules and procedures.
- In addition to the matters required to be set forth in the articles pursuant to Section 7130, the articles in the case of an incorporation authorized by subdivision (a) shall set forth that an existing unincorporated association, stating its name, is being incorporated by the filing of the articles.
- The articles filed pursuant to this section shall be accompanied by a verified statement of any two officers or governing board members of the association stating that the incorporation of the association by means of the articles to which the verified statement is attached has been approved by the association in accordance with its rules and procedures.
- Upon the change of status of an unincorporated association to a corporation pursuant to subdivision (a), the property of the association becomes the property of the corporation and the members of the association who had any voting rights of the type referred to in Section 5056 become members of the corporation.
- The filing for record in the office of the county recorder of any county in this state in which any of the real property of the association is located, of a copy of the articles of incorporation filed pursuant to this section, certified by the Secretary of State, shall evidence record ownership in the corporation of all interests of the association in and to the real property located in that county.
- All rights of creditors and all liens upon the property of the association shall be preserved unimpaired. Any action or proceeding pending by or against the unincorporated association may be prosecuted to judgment, which shall bind the corporation, or the corporation may be proceeded against or substituted in its place.
- If a corporation is organized by a person who is or was an officer, director or member of an unincorporated association and such corporation is not organized pursuant to subdivision (a), the unincorporated association may continue to use its name and the corporation may not use a name which is the same as or similar to the name of the unincorporated association.
- The Secretary of State shall not file articles setting forth a name in which "bank," "trust," "trustee," or related words appear, unless the certificate of approval of the Commissioner of Business Oversight is attached thereto.
- The Secretary of State shall not file articles pursuant to this part setting forth a name that may create the impression that the purpose of the corporation is public, charitable, or religious or that it is a charitable foundation.
- The name of a corporation shall not be a name that the Secretary of
State determines is likely to mislead the public and shall be
distinguishable in the records of the Secretary of State from all of the
following:
- The name of any corporation.
- The name of any foreign corporation authorized to transact intrastate business in this state.
- Each name that is under reservation pursuant to this title.
- The name of a foreign corporation that has registered its name pursuant to Section 2101.
- A name that a foreign corporation has assumed under subdivision (b) of Section 2106.
- A name that will become the record name of a domestic or foreign corporation upon a corporate instrument when there is a delayed effective or file date.
- The use by a corporation of a name in violation of this section may be enjoined notwithstanding the filing of its articles by the Secretary of State.
- Any applicant may, upon payment of the fee prescribed therefor in the Government Code, obtain from the Secretary of State a certificate of reservation of any name not prohibited by subdivision (c), and upon the issuance of the certificate the name stated therein shall be reserved for a period of 60 days. The Secretary of State shall not, however, issue certificates reserving the same name for two or more consecutive 60-day periods to the same applicant or for the use or benefit of the same person; nor shall consecutive reservations be made by or for the use or benefit of the same person of names so similar as to fall within the prohibitions of subdivision (c).
7122.3.
The Secretary of State shall not file articles for a corporation the name of which would fall within the prohibitions of Section 18104 of the Financial Code. This section shall not apply to articles filed for a corporation organized in accordance with Section 18100 of the Financial Code.
FINDINGS AND SUGGESTIONS
For this comparative research paper, I had selected certain common elements to compare the two laws. To better understand, we must first understand the general nature of these laws.
The fifty American states are separate sovereigns, with their own state constitutions, state governments, and state courts. All states have a legislative branch which enacts state statutes, an executive branch that promulgates state regulations pursuant to statutory authorization, and a judicial branch that applies, interprets, and occasionally overturns both state statutes and regulations, as well as local ordinances.
They retain plenary power to make laws covering anything not preempted by the federal Constitution, federal statutes, or international treaties ratified by the federal Senate. Normally, state supreme courts are the final interpreters of state constitutions and state law, unless their interpretation itself presents a federal issue, in which case a decision may be appealed to the U.S. Supreme Court by way of a petition for writ of certiorari.
State laws have dramatically diverged in the centuries since independence, to the extent that the United States cannot be regarded as one legal system as to the majority of types of law traditionally under state control, but must be regarded as 50 separate systems of tort law, family law, property law, contract law, criminal law, and so on.
Whereas, The Indian constitution prescribes a federal structure of government, with a clearly defined separation of legislative and executive powers between the Federation and the States. Each State Government has the freedom to draft its own laws on subjects classified as state subjects. Laws passed by the Parliament of India, such as the companies act 2013 and the resulting Nidhi rules 2014, and other pre-existing central laws on subjects classified as central subjects are binding on all citizens.
By comparing the two laws we find the following differences. Indian Nidhi Rules 2014 is different from Californian legislatorial law in a number of respects.
(comparepointsof indian law specifically to american points then delete irrelevant american laws)
In the laws related to Directors, In Nidhi Rules 2014, . In contrast, in Californian legislatorial law:
- In the laws related to Directors, In Nidhi Rules 2014, The Director of a
Nidhi shall hold office for a term up to ten consecutive years on the Board of
Nidhi. In contrast, in Californian legislatorial law, directors shall be elected
for terms of no longer than four years, as fixed in the articles or bylaws.
However, the terms of directors of a corporation without members may be up to
six years. In the absence of any provision in the articles or bylaws, the term
shall be one year. In Nidhi Rules 2014, The Director shall be eligible for
re-appointment only after the expiration of two years of ceasing to be a
Director and Where the tenure of any Director in any case had already been
extended by the Central Government, it shall terminate on expiry of such
extended tenure. . In contrast, in Californian legislatorial law, The articles
or bylaws may provide for staggering the terms of directors by dividing the
total number of directors into groups of one or more directors. The terms of
office of the several groups and the number of directors in each group need not
be uniform. No amendment of the articles or bylaws may extend the term of a
director beyond that for which the director was elected, nor may any bylaw
provision increasing the terms of directors be adopted without approval of the
members (Section 5034).
- In the laws related to Membership, In Nidhi Rules 2014, A Nidhi shall not
admit a body corporate or trust as a member and except as otherwise permitted
under these rules, every Nidhi shall ensure that its membership is not reduced
to less than two hundred members at any time. In contrast, in Californian
legislatorial law, No person may hold more than one membership, and no
fractional memberships may be held, except Any branch, division, or office of
any person, which is not formed primarily to be a member, may hold a separate
membership and Except as provided in subdivision (b), or in its articles or
bylaws, a corporation may admit any person to membership. plus, a corporation
may not admit its subsidiary (Section 5073) to membership.
- In the laws related to Penalties, In Nidhi Rules 2014, If a company falling
under rule 2 contravenes any of the provisions of the rules prescribed herein,
the company and every officer of the company who is in default shall be
punishable with fine which may extend to five thousand rupees, and where the
contravention is a continuing one, with a further fine which may extend to five
hundred rupees for every day after the first during which the contravention
continues. In contrast, in Californian legislatorial law, Upon the failure of a
corporation to file the statement required by Section 8210, the Secretary of
State shall provide a notice of such delinquency to the corporation. The notice
shall also contain information concerning the application of this section, and
advise the corporation of the penalty imposed by Section 19141 of the Revenue
and Taxation Code for failure to timely file the required statement after notice
of delinquency has been provided by the Secretary of State. If, within 60 days
after providing notice of the delinquency, a statement pursuant to Section 8210
has not been filed by the corporation, the Secretary of State shall certify the
name of the corporation to the Franchise Tax Board. Upon certification pursuant
to subdivision (a), the Franchise Tax Board shall assess against the corporation
a penalty of fifty dollars ($50) pursuant to Section 19141 of the Revenue and
Taxation Code. This particular law was just used as an example, as the rest of
the laws are given above. Californian law in the regards of penalties is far
more detailed and specific as compared to Indian laws, covering aspects not even
thought of in Indian laws such as fraud, dishonest reports with punishments that
also include imprisonment in a county jail for not more than one year.
- In the laws related to incorporation/formation, In Nidhi Rules 2014, A Nidhi
to be incorporated under the Act shall be a public company and shall have a
minimum paid up equity share capital of five lakh rupees. In contrast, in
Californian legislatorial law, One or more persons may form a corporation under
this part by executing and filing articles of incorporation. If initial
directors are named in the articles, each director named in the articles shall
sign and acknowledge the articles; if initial directors are not named in the
articles, the articles shall be signed by one or more persons who thereupon are
the incorporators of the corporation. Most importantly, The corporate existence
begins upon the filing of the articles and continues perpetually, unless
otherwise expressly provided by law or in the articles. In Nidhi Rules 2014, no
Nidhi shall have any object in its Memorandum of Association other than the
object of cultivating the habit of thrift and savings amongst its members,
receiving deposits from, and lending to, its members only, for their mutual
benefit. In contrast, in Californian legislatorial law, Members join a nonprofit
mutual benefit corporation to meet like-minded people and work toward an agreed
upon goal, such as improving a community, completing a project, growing a sport,
or just sharing interests. A Californian nonprofit mutual benefit corporation is
set up purely for the benefit of its members. Often groups of individuals or
businesses seeking to advance a common goal will establish this type of
corporation. For example, a homeowners' association, a chamber of commerce, a
fraternal society, or a social club will likely choose a nonprofit mutual
benefit corporation as their entity of choice. In Nidhi Rules 2014, Every
Company incorporated as a "Nidhi" shall have the last words 'Nidhi Limited' as
part of its name.
In contrast, in Californian legislatorial law, The Secretary of State shall not file articles setting forth a name in which "bank," "trust," "trustee," or related words appear, unless the certificate of approval of the Commissioner of Business Oversight is attached thereto. The Secretary of State shall not file articles pursuant to this part setting forth a name that may create the impression that the purpose of the corporation is public, charitable, or religious or that it is a charitable foundation. Lastly,
The name of a corporation shall not be a name that the Secretary of State determines is likely to mislead the public and shall be distinguishable in the records of the Secretary of State from all of the following:- The name of any corporation.
- The name of any foreign corporation authorized to transact intrastate business in this state.
- Each name that is under reservation pursuant to this title.
- The name of a foreign corporation that has registered its name pursuant to Section 2101.
- A name that a foreign corporation has assumed under subdivision (b) of Section 2106.
- To conclude my findings, In the laws related to title, purpose and application, In Nidhi Rules 2014. every company which had been declared as a Nidhi or Mutual Benefit Society under sub-section (1) of section 620A of the Companies Act, 1956; every company functioning on the lines of a Nidhi company or Mutual Benefit Society but has either not applied for or has applied for and is awaiting notification to be a Nidhi or Mutual Benefit Society under sub-section (1) of section 620A of the Companies Act, 1956; and every company incorporated as a Nidhi pursuant to the provisions of section 406 of the Act.
After having read, reviewed and compared the two laws related to Mutual benefit corporations, The most interesting finding was that the Californian law, in comparison with the Indian law, was far more weighty, detailed and broad-gauged.
The Indian law with only 24 sections is far too miniscule in number and pathetic in range of power when compared to the more than 1800 individual articles present in the Californian law, which cover crucial areas such as dissolution, liability of members, mergers etc. Which are nowhere to be seen in the Indian law. My suggestion to our lawmakers would be to look at how the drafting of American corporate law is taking place and how it covers every single detail.
This is necessary because of the ever-increasing popularity of investing in a Nidhi company due to reasons like:
- Nidhi Company works with the objective of increasing savings of its members.
- It is very easy to make donations and get loans from the company for its members
- The loans given to the members at a lower rate compared to the market rate hence it attracts the members to do more savings.
- The net owned fund ratio of Nidhi Company is 1:20. That means you invest 1 rupee and you will get a deposit of 20 rupees
- The investments in the Nidhi Company are secured ones. The risk of nonpayment of loans is less as compared to other finance businesses
Thus, in order to encourage saving habits of Indian citizens, lawmakers need to create a stronger and more well-defined law than the current Nidhi rules 2014, which can instill confidence in the hearts of the common man.
CONCLUSION
In conclusion, this paper has investigated, compared and explained the differences between the Nidhi Rules 2014 and the Californian legislatorial law governing mutual benefit9 companies. The findings of this study indicate that the Indian Nidhi Rules is inefficient, weak and small in scope in comparison with the Californian law. And in my opinion, this shouldn't be the case. India is a country with a strong legal history and amazing lawyers and lawmakers.
What we should do is simply remake the mutual benefits law in accordance with the high standards of law seen in the west. After all, in the end these laws should benefit the common man in our country and encourage healthy saving habits. In the COVID 19 pandemic, many people lost their jobs and burned through their savings. They would've been more financially stable had they saved money.
Nidhi was introduced as an incentive to cultivate healthy saving and investing habits in India. This is also a way to increase the inflow of money into the Indian economy. In earlier times Indians used to keep their money with themselves and this caused poor circulation as well as stagnation of wealth.
By means of saving schemes, which are backed by the government, Indian citizens can allow their wealth to appreciate at higher interest rates and reap benefits such as tax exemption that certain savings schemes offer. Savings schemes cater to a wide demographic and encourage individuals to invest for various milestones of life such as retirement, children's higher education, their marriage etc.
They are ideal for long term wealth creation as they come with a certain lock-in period and offer good returns. Since they are not impacted by market volatility, they are safer investment options, ideal for the conservative Indian investor. Furthermore, the interest rates on various saving schemes are revised on a quarterly or half yearly basis, keeping up with the rising costs of living and inflation.
My research has highlighted the importance of the need for better drafting of laws. The strength of my paper lies in its comparison on the basis of select points. This research paper has gone some way towards enhancing our understanding of how the law exists in foreign countries and how we should emulate the high level of drafting used in these countries.
I hope that my research will be helpful to lawmakers as a source of inspiration and to the common man as a standard to which our country's law should be held to. My paper provides a springboard for future researchers to compare Indian laws to foreign ones, allowing us to identify our strengths and weaknesses, leading to an overall efficient law.
BIBLIOGRAPHY:
- https://businessjargons.com/mutual-benefit-finance-companies.html
- https://vikaspedia.in/social-welfare/financial-inclusion/financial-literacy/non-banking-financial-companies
- https://sci-hub.se/10.1007/978-0-387-93996-4
- https://www.researchgate.net/publication/23530711_Mutual_Organizations_Mutual_Societies
- https://www.newworldencyclopedia.org/entry/Friendly_society
- https://en.wikipedia.org/wiki/501(c)_organization
- https://repository.usfca.edu/cgi/viewcontent.cgi?article=1032&context=pna
- https://leginfo.legislature.ca.gov/faces/codes_displayexpandedbranch.xhtml?lawCode=CORP&division=2.&title=1.&part=3.&chapter=6.&article=&goUp=Y
- https://www.hollandnonprofitlaw.com/forming-a-mutual-benefit-corporation
- https://taxguru.in/company-law/chapter-xxvi-nidhi-rules-2014-companies-act-2013.html
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