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Exercises · Q8

Q.What is meant by "minimum subscription"? Explain the legal consequences if minimum subscription is not received in a public issue.

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Minimum subscription is the minimum amount of capital which, in the Board of Directors' own assessment, the company must actually raise through a particular public issue in order to carry out the specific purposes the issue was launched for — typically the cost of the project or asset the funds are meant to finance, preliminary expenses, working capital needs, and repayment of money already borrowed for these purposes. This figure is not left to be guessed by investors; it must be disclosed in the prospectus itself, so that a prospective applicant knows in advance the threshold below which the company itself has said the issue would not achieve what it set out to do.

Section 39(1) of the Companies Act, 2013 converts this disclosed figure into a binding legal condition on the act of allotment. No allotment of any securities offered to the public for subscription can be made unless the amount stated in the prospectus as minimum subscription has actually been subscribed, and the sums payable on application for that amount have actually been received by the company, in a mode the Act permits. This is a mandatory pre-condition, not a mere target — a company that fails to reach it is simply not permitted, in law, to proceed with allotment at all, however much it might wish to salvage a partly successful issue.

Where minimum subscription is not received within the period prescribed under the Companies (Prospectus and Allotment of Securities) Rules, 2014, Section 39(3) requires the company to repay all the money received from applicants, without interest, within the time the rules specify. This obligation is not conditional on the company's convenience — the money genuinely belongs to applicants whose conditional offer to subscribe has, in effect, failed to mature into a completed allotment, and the company has no legal basis to retain it. If the company fails to repay within the time fixed, the consequence escalates: every officer of the company who is in default becomes personally liable to repay the amount, together with interest at the rate the rules prescribe (currently fixed at 15% per annum) for the period of the delay. This personal-liability backstop is a deliberate deterrent, ensuring that officers cannot simply let repayment slip because the company itself is short of ready cash — it puts the incentive to repay promptly on the individuals actually responsible for running the company. …

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