ACT, No. 42 OF 2011

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PARLIAMENT OF THE DEMOCRATIC
SOCIALIST REPUBLIC OF
SRI LANKA
FINANCE BUSINESS
ACT, No. 42 OF 2011
[Certified on 09th November, 2011]
Printed on the Order of Government
Published as a Supplement to Part II of the Gazette of the Democratic
Socialist Republic of Sri Lanka of November 11, 2011
PRINTEDAT THEDEPARTMENT OFGOVERNMENTPRINTING,SRILANKA
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Finance Business Act, No. 42 of 2011 1
[Certified on 09th November, 2011]
L.D.—O. 20/2010.
ANACTTO PROVIDE FOR THEREGULATION OF FINANCE BUSINESSAND TO
PROVIDE FOR MATTERS CONNECTED THEREWITH OR INCIDENTAL
THERETO
BE it enacted by the Parliament of the Democratic Socialist
Republic of Sri Lanka as follows:-
1. This Act may be cited as the Finance Business Act, Short title
No. 42 of 2011.
PART I
LICENSING OF FINANCE COMPANIES
2. (1) Subject to the provisions of section 3 of this Act, Carrying on
no person other than a person licensed under this Act shall finance business
and accepting
carry on finance business. deposits, without
authority, to be
(2) No person, other than a person licensed to carry on an offence.
finance business under this Act or a person exempted from
the application of the provisions of this Act in terms of
section 3, shall accept deposits.
(3) A person shall not be eligible to be licensed as a
finance company under this Act unless such person is a
company registered under the Companies Act, No. 7 of 2007,
and such company is not a company limited by guarantee, a
private company, an offshore company or an overseas
company within the meaning of the Companies Act, No. 7
of 2007.
(4) Any person who contravenes the provisions of
subsections (1) or (2) shall be guilty of an offence under this
Act.
2—PL 005688 — 4,090 (04/2011)
2 Finance Business Act, No. 42 of 2011
Non-application 3. The provisions of this Act shall not apply to and in
of provision of
relation to any bank licensed under the Banking Act, No. 30
this
Act to certain of 1988 or any institution, other than a finance company,
institutions. exempted in terms of section 76A thereof or a co-operative
society registered under a Statute of a Provincial Council, or
any other institution exempted from the application of this
Act by any written law for the time being in force.
Application for 4. An application for a licence shall be made in writing
a license.
to the Board in such form as may be prescribed by rules and
shall contain a declaration by the applicant company that
the particulars stated in the application are, to the knowledge
and belief of the applicant, true and accurate.
Licensing of 5. (1) Where an application is made to the Board for a
companies as
licence under this Act, the Board may require the Director to
finance
companies. make his recommendation in respect of the application and
the Director may call for information as he may consider
necessary and call for and examine or cause to be examined
books, records and documents of whatever description, of
the company applying for a licence and its holding company,
any subsidiary company, any associate company or any
subsidiary or associate company of its holding company or
any other company that in the view of the Director, has a
substantial financial interest or a significant management
interest in the company applying for a licence and shall
make his recommendation to the Board.
(2) The Board may, at any time prior to issuing of a licence
under subsection (3) to a company, cause such investigations
as it may deem necessary to satisfy itself as to the suitability
of the applicant company and may require the applicant
company to satisfy the Board on any matter relevant to the
suitability of the applicant company and in particular—
(a) the veracity and validity of the documents and
particulars submitted by the applicant company ;
Finance Business Act, No. 42 of 2011 3
(b) the financial status and history of the applicant
company;
(c) the academic and professional qualifications,
experience, financial standing and suitability of
the Board of Directors, the Chief Executive Officer
and key management personnel, as the Board may
deem necessary;
(d) the adequacy of the capital of the applicant
company or based on the information furnished by
the applicant company, the ability of such company
to raise adequate capital;
(e) the ability of the applicant company to cover all
obligations and liabilities that may be incurred in
the conduct of finance business of such company
and to comply with the provisions of this Act; and
(f) the applicant company’s compliance with the
provisions of this Act or any direction given
thereunder in relation to the application for a
licence under this Act.
(3) On consideration of an application made to the Board
and the recommendations of the Director under subsection
(1) and after such investigations under subsection (2) —
(a) if the Board is satisfied that—
(i) the applicant company has a core capital of
not less than two hundred million rupees or
such other higher amount as may be
determined by the Board in terms of
subsection (1) of section 17;
(ii) the applicant company has the ability to
comply with the directions and rules
applicable to finance companies; and
4 Finance Business Act, No. 42 of 2011
(iii) the issue of a licence to the applicant
company on the strength of the information
made available to the Board, would not be
detrimental to the interests of its creditors and
other stakeholders,
the Board may issue a license to the applicant
company as a finance company to carry on finance
business subject to such terms and conditions as
the Board may deem fit;
(b) if the Board is satisfied that the issue of a licence to
the applicant company would not be detrimental
to the interests of its creditors and other
stakeholders and that the applicant company has
the potential to fulfil the requirements specified in
sub-paragraphs (i) and (ii) of paragraph (a), the
Board may grant provisional approval subject to
such terms and conditions as the Board may deem
fit; or
(c) if the Board is satisfied that the issue of a licence to
the applicant company would be detrimental to the
interests of its creditors and other stakeholders or
to the interest and stability of the financial system,
the Board may reject the application and issue such
directions as it deems necessary.
(4) The provisional approval granted under paragraph
(b) of subsection (3) shall be valid for such period as may be
determined by the Board. The Board may in exceptional
circumstances extend the period of validity of a provisional
approval: Provided however, the period of validity of the
provisional approval shall not exceed eighteen months from
the date on which the provisional approval was granted under
paragraph (b) of subsection (3).
(5) An applicant company to whom a provisional
approval has been granted shall not commence finance
Finance Business Act, No. 42 of 2011 5
business before being issued with a licence under this Act.
Any prospectus or notice issued or any advertisement or
other publication made by such company shall not state the
fact that it has been granted provisional approval under
paragraph (b) of subsection (3) unless such disclosure is
required under any written law.
(6) The Board may, withdraw the provisional approval:
(a) if any information contained in the application for
a licence or any information submitted in
connection therewith by the applicant company is
found to be false, incomplete or incorrect; or
(b) if having regard to any information made available
to the Board it becomes apparent that the issue of a
licence to the applicant company is detrimental to
the interest and stability of the financial system.
(7) The Board having considered the fulfillment of terms
and conditions imposed under paragraph (b) of subsection
(3) and information received after granting provisional
approval and being satisfied that the licensing of the
applicant company would not be detrimental to the interests
of its creditors and other stakeholders or to the interest of
financial system stability may issue a licence to the
applicant company subject to such terms and conditions as
the Board may deem necessary:
Provided however, that the provisional approval shall
not bind the Board to grant a licence to the applicant
company.
(8) Upon the issuance of a licence to an applicant
company, the Board shall cause to be published in the
Gazette and in at least one Sinhala, Tamil and English daily
newspapers circulating in Sri Lanka, a notice informing the
public that a licence has been issued to such applicant
company authorizing it to carry on finance business.
6 Finance Business Act, No. 42 of 2011
(9) Any person who submits information in an application
for a licence or in any other document submitted in
connection therewith or in the course of any inquiry or
investigation conducted to ascertain the suitability of the
company to be issued with a licence under this Act, which is
false, incomplete or incorrect, shall be guilty of an offence
under this Act.
Licence fee. 6. Every finance company licensed under this Act, shall
pay an annual licence fee in such amount as may be
prescribed by rules.
Register of 7. (1) The Board shall keep and maintain in such form
finance as may be prescribed by rules a Register of Finance
companies
Companies licensed under this Act.
and
publication
of names of (2) The Board may from time to time cause to be published
finance a notice containing the names of finance companies licensed
companies.
under this Act, in a manner and form as the Board deems fit
and it may also include the supervisory rating of those
companies.
Exhibiting 8. Every finance company shall exhibit its licence at
the licence of all times in the principal office or place of business of such
finance
company. finance company and a copy of such licence at each of its
branches.
Duty of 9. (1) Where any finance company licensed under this
finance Act has ceased to carry on finance business, a notice of such
company to
notify Board cessation shall be given to the Board forthwith upon such
of cessation cessation by such company.
of finance
business. (2) On receipt of a notice of cessation under subsection
(1), the Board may issue to such finance company directions
for winding up or for divesting the finance business of the
finance company or for the settlement in such manner as
may be specified by the Board of the deposit liabilities of
the finance company and such other directions incidental
thereto.
Finance Business Act, No. 42 of 2011 7
(3) Where the Board has reasonable grounds to believe
that any finance company licensed under this Act is not
carrying on finance business, the Board may send to such
company a notice by registered post requiring such company
to furnish proof, within two weeks from the date of such
notice, that it has not ceased to carry on finance business.
After the expiration of two weeks from the date of such notice
or in the event of the company furnishing proof after
considering such proof, the Board may withdraw such notice,
or may issue to such finance company directions for winding
up or for divesting the finance business of the finance
company or for the settlement in such manner as may be
specified by the Board of the deposit liabilities of the finance
company and such other directions incidental thereto.
(4) Where a finance company fails to comply with
directions issued under subsections (2) or (3) within the
period specified by the Board, which period may be
extended by the Board in exceptional circumstances having
considered the steps taken by the finance company to
comply with such directions, the Board may require the
Director to file action for winding up of the finance company
and the provisions of section 32 shall apply thereto.
10. (1) A finance company shall have as part of its name, Use of the word
the word “finance”, “financing” or “financial” or any of its “finance”.
transliterations, or their equivalent in any other language.
Any finance company which does not have in its name, the
word “finance”, “financing” or “financial” or any of its
transliterations, or their equivalent in any other language in
its name, shall forthwith take such steps as are necessary to
change its name to include the word “finance”, “financing”
or “financial” or any of its transliterations or their equivalent
in any other language in its name, within six months from
the date of commencement of operation of this Act.
(2) No person other than a finance company and an
institution specified in subsection (6) shall, except with the
prior written approval of the Board, use the word “finance”,
8 Finance Business Act, No. 42 of 2011
“financing” or “financial” alone or in combination with
another word or any of its derivatives or its transliterations
or their equivalent in any other language, as part of the
name or the description or the business name of such person.
(3) Subject to the provision of subsections (1) and (6),
any person who uses the word “finance”, “financing” or
“financial” or any of its derivatives or its transliterations, or
their equivalent in any other language as part of the name or
the description or the business name of such person, unless
it has obtained the written approval of the Board, shall
change such name or such description or such business name
by deleting the word “finance”, “financing” or “financial”
or any of its derivatives or its transliterations, or their
equivalent in any other language, from such name or such
description or such business name within six months from
the date of commencement of operation of this Act.
(4) The Director may require the Registrar General of
Companies, the Registrar of Voluntary Social Service
Organizations, Registrars of Business Names of Sri Lanka
and any other relevant authority to furnish information of
the bodies corporate or unincorporate using the word
“finance”, “financing” or “financial” or any of its derivatives
or its transliterations, or their equivalent in any other
language, in the name or the description or the business
name of such bodies which are established or registered under
such authority and such Registrar or Authority shall furnish
the information as required by the Director.
(5) The Board may, in the public interest, where any person
uses the word “finance”, “financing” or “financial” or any of
its derivatives or its transliterations, or their equivalent in
any other language as part of the name or the description or
the business name of such person in contravention of the
provisions of this section and notwithstanding that any action
has been or is to be taken under the provisions of any other
section of this Act in respect of such contravention, publicise
by any means whatsoever :—
Finance Business Act, No. 42 of 2011 9
(a) in the case of an incorporated body of persons, the
name, description and address of such incorporated
body and the names and addresses of the directors
of such incorporated body;
(b) in the case of an unincorporate body of persons,
the name, description and address of such body
and if the Board thinks fit the names and addresses
of the members of such body; and
(c) in the case of an individual the name and address
of such individual and his description or business
name or both his description and business name,
and that such person is not authorized to use any of the
words “finance”, “financing” and “financial” or any of it
derivatives or its transliterations or their equivalent in any
other language as part of the name or the description or the
business name of such person.
(6) Nothing in this section shall apply to –
(a) a company which is required by the Board to
have as part of its name the word “finance”,
“financing” or “financial” or its
transliterations, or their equivalent in any
other language in its name;
(b) an association of finance companies formed
for the protection of their interests;
(c) a trade union registered under the Trade Union
Ordinance (Chapter 138), which is an
association or combination of workers who
are employees of a finance company;
(d) an institution in respect of which such usage
is established or recognized by law or
international agreement; and
10 Finance Business Act, No. 42 of 2011
(e) a body corporate which exclusively provides
educational or consultancy services.
(7) The Board may introduce a logo or a sign to be used
by every finance company. No person other than a finance
company shall use such logo.
Restriction on 11. (1) No company, proprietorship, partnership or other
use of entity shall without the prior written approval of the Director,
abbreviated
name or be registered under any written law with a name that contains
acronym of a as part of it, the abbreviated name or acronym of any finance
finance company:
company.
Provided however, the provision of this subsection shall
not be construed in such manner as would affect the powers
conferred on the Registrar General of Companies in terms of
section 7 and 10 of the Companies Act, No. 7 of 2007.
(2) No person other than the respective finance company
shall use the name, abbreviated name or acronym of a finance
company, in any of its advertisements promoting its business
without the prior written approval of the Director.
PART II
DIRECTIONS, RULES AND REQUIREMENTS ON FINANCE COMPANIES
Directions of the 12. (1) Notwithstanding the provisions of any other
Board. law, the Board may give directions to finance companies or
to any group or category of finance companies regarding
the manner in which any aspect of the business and corporate
affairs of such finance companies are to be conducted and,
in particular –
(a) the terms and conditions under which deposits may
be accepted by such companies, the maximum rates
of interest payable on such deposits, and the
maximum period for which deposits may be
Finance Business Act, No. 42 of 2011 11
accepted and the maximum amount that may be
deposited with a company in the name of one
person in one or more accounts;
(b) the terms and conditions under which any loan,
credit facility or any type of financial
accommodation may be granted by such
companies, the maximum rates of interest that may
be charged on such loans, credit facilities or other
types of financial accommodation, and the
maximum periods for which any such loan, credit
facility or other type of financial accommodation
may be granted;
(c) the maximum rates which may be paid to, or charged
by, such companies by way of commissions,
discounts, fees or other receipts or payments
whatsoever;
(d) the terms and conditions under which investments
may be made by such companies;
(e) the maximum permissible maturities for loans,
credit facilities or other types of financial
accommodation and investments made by such
companies, and the nature and amount of the
security that may be required or permitted for
various types of lending, credit and investment
operations;
(f) the form and manner in which books of accounts or
other records or documents are to be maintained by
such companies;
(g) the exclusion from the income of such companies
in whole or in part, unpaid interest in respect of
loans granted, if such loans have become overdue;
(h) the minimum ratio which the liquid assets of such
companies should bear to the total deposit
liabilities of such companies;
12 Finance Business Act, No. 42 of 2011
(i) the maintenance of cash balances by finance
companies with the Central Bank if so required by
the Board, and the minimum ratio of such cash
balances should bear to the deposit liabilities of
finance companies;
(j) conditions which should be applicable to
withdrawal by depositors of deposits before
maturity;
(k) prohibiting such companies from increasing the
amount of their loans, credit facilities, other types
of financial accommodation or investments;
(l) fixing the limits to the rate at which the amount of
any loans, investments or financial accommodation
made or granted by such companies may be
increased within specified periods;
(m) requiring such companies to decrease the amount
of their loans, investments or financial
accommodation to specified limits within a
specified period;
(n) the maximum percentage of the share capital in a
finance company which may be held –
(i) by a company, an incorporated body, or an
individual; and
(ii) in the aggregate by-
(a) a company and one or more of the
following:-
(aa) its subsidiary companies;
(bb) its holding company;
Finance Business Act, No. 42 of 2011 13
(cc) a subsidiary company of its
holding company; or
(dd) a company in which such
company or its subsidiary
company, or its holding
company, or a subsidiary
company of its holding company
has a substantial interest; or
(b) an individual and one or more of the
following:-
(aa) his relative;
(bb) a company in which he has a
substantial interest or in which
his relative has a substantial
interest;
(cc) a subsidiary company of such
company;
(dd) the holding company of such
company;
(ee) a subsidiary company of such
company’s holding company;
(ff) a company in which such
company, or its subsidiary
company, or its holding
company, or a subsidiary of its
holding company has a
substantial interest; or
(gg) an incorporated body, other than
a company, in which such
individual or his relative has a
substantial interest; or
14 Finance Business Act, No. 42 of 2011
(c) companies in each of which an
individual or a company as the case may
be, has either directly, indirectly or
beneficially a substantial interest or
significant management interest;
(o) the margins to be maintained by such companies in
respect of secured accommodations;
(p) restriction on the types of activities that may be
carried on by finance companies;
(q) payment to directors or employees of such
companies by way of salary, allowance, perquisites,
reimbursement of expenses, terminal benefits,
gratuity and other superannuation payments;
(r) the amount of core capital to be maintained by a
finance company;
(s) the academic and professional qualifications and
experience required of directors, the chief executive
officer and key management personnel of a finance
company;
(t) composition and the constitution of the quorum of
the Board of Directors of such companies;
(u) requirement for obtaining prior approval of the
Board for appointing, electing or nominating
directors of such companies;
(v) requirement for obtaining prior approval of the
Director for appointing the chief executive officer
of a finance company;
(w) terms, conditions and procedures to be followed by
such companies in the acquisition of real estate,
and pricing thereof;
Finance Business Act, No. 42 of 2011 15
(x) formation of subsidiary and associate companies
by such companies;
(y) submission of a bank guarantee by a finance
company for such value and on such terms as may
be determined by the Board to ensure the payment
of any penalty that may be imposed by the Board
under this Act.
(2) A direction issued under subsection (1) shall have effect
notwithstanding that such direction will require a finance
company to effect a change in the nature or amount of any of
its assets or liabilities, whether acquired or incurred before or
after the date of the coming into operation of this Act:
Provided that, a finance company required to effect a
change as stated above, shall be allowed a period of twelve
months from the date of such direction within which to
effect such change, or such longer period as may be granted
by the Board for such purpose.
(3) In order to comply with a direction issued to it under
paragraph (n) of subsection (1), a finance company may direct
a person holding shares in such finance company to reduce
within such period as specified in such direction, the number
of shares held by such person in such finance company,
whether such shares were acquired by such person before or
after the date of commencement of this Act. It shall be the
duty of such person to comply with such direction.
(4) The Board may in its discretion pay interest on any
cash balance maintained by a finance company in the Central
Bank in pursuance of a direction issued to it under paragraph
(i) of subsection (1), at such rate as may be determined by
the Board.
(5) The Board may give directions where necessary to
any finance company in particular on such matters as are
specified in subsection (1).
16 Finance Business Act, No. 42 of 2011
(6) In order to ensure the soundness of the financial
system, the Board may issue directions to holding
companies, subsidiaries and associate companies of finance
companies regarding the manner in which any aspect of the
business of such companies is to be conducted.
Monitoring 13. The Board may issue guidelines to the Director
the
relating to the manner of monitoring compliance with the
compliance
with directions issued under subsections (1) and (2) of section 12
directions. and authorize the Director to direct finance companies to
comply with such directions either forthwith or within such
period as may be specified by the Director.
Action on 14. (1) If any finance company fails to comply with any
failure to
direction issued under subsection (1) or (2) of section 12,
comply with
directions. the Director shall report such fact to the Board unless
otherwise provided for in any guidelines issued under
section 13 and the provisions in section 25 of this Act shall
apply in such event.
(2) If any finance company fails to comply with any
direction issued by the Director in terms of the guidelines
issued by the Board under section 13, the Director shall
report such fact to the Board and the provisions in section
25 of this Act shall apply in such event.
Directions to 15. The Director may with a view to ascertaining the
submit
manner in which business and corporate affairs of a finance
documents
and company are being conducted or for any other specified
information. purpose, direct any finance company to submit documents
and information in the manner, in such form and at such
intervals or at such times as shall be specified in such
direction.
Rules. 16. (1) The Board may make rules on any matter in
respect of which rules are authorized to be made under this
Act, or which is stated or required to be prescribed.
Finance Business Act, No. 42 of 2011 17
(2) In particular and without prejudice to the generality
of the powers conferred by subsection (1), the Board may
make rules in respect of all or any of the following matters:-
(a) licensing of finance companies and the annual
licence fees payable to the Board by finance
companies;
(b) the forms to be used under this Act;
(c) the regulation or the prohibition of the issue by
any finance company of any prospectus or
advertisement relating to any aspect of finance
business, and the conditions subject to which, any
such prospectus or advertisement may be issued.
(3) Every rule made by the Board under this Act shall be
published in the Gazette.
17. (1) The Board may, from time to time determine the Core capital
minimum amount of core capital that a company shall have
for licensing under this Act:
Provided however, such amount determined by the Board
shall not be less than two hundred million rupees.
(2) A finance company shall at all times maintain its core
capital at a level not less than the amount it had at the time
of being licensed as a finance company:
Provided however, that in the event the Board has issued
a direction stipulating a higher amount of core capital or
maintenance of core capital in relation to assets or liabilities
of a finance company in terms of section 12 of this Act, a
finance company shall maintain its core capital in conformity
with such direction.
18. (1) A finance company shall at all times maintain a Reserve Fund.
Reserve Fund. Every finance company shall after the
payment of tax in respect of each year, but before any
dividend is declared, transfer to the Reserve Fund such part
of its net profit as the Board may direct.
18 Finance Business Act, No. 42 of 2011
(2) A finance company shall not without the prior written
approval of the Board reduce or impair its capital or such
amount as is lying in its Reserve Fund.
Carrying on 19. A finance company shall at all times carry on its
business by business in such manner so as to safeguard the interests of its
finance
depositors and shall take all such measures as are reasonably
companies.
necessary to repay or pay on the due dates as the case may
be, the deposits or interest thereon to its depositors.
Failure to repay 20. (1) Where any finance company fails to repay a
deposit or pay deposit or fails to pay interest thereon to a depositor, on
interest to be an
demand or if a date of maturity is agreed upon at the time of
offence.
deposit, on or after such date of maturity, every director,
manager or secretary of such company shall be guilty of an
offence under this Act:
Provided however that, no such director, manager or
secretary shall be guilty of an offence if he proves that such
offence was committed without his knowledge, and that he
exercised all due diligence to prevent the commission of
that offence.
(2) Any depositor whose deposit and interest has not
been paid on demand or at maturity in terms of subsection
(1), may institute proceedings in the Magistrate’s Court in
terms of section 136 of the Code of Criminal Procedure Act,
No. 15 of 1979.
Disqualifications 21. (1) A person shall be disqualified from being
for holding appointed or elected, as the case may be, as a director, chief
certain posts in
executive officer, secretary or key management personnel
finance
companies. of a finance company or from holding such post if such
person-
(a) has been declared an undischarged insolvent or a
bankrupt, by any court in Sri Lanka or abroad;
(b) has been convicted by any court for an offence
involving moral turpitude;
Finance Business Act, No. 42 of 2011 19
(c) has been convicted by any court for any offence
under this Act or the Companies Act, No.07 of 2007;
(d) is a person against whom action has been taken by
the Board under section 51 of this Act;
(e) (i) is being subjected to any investigation or
inquiry in respect of an act of fraud, deceit,
dishonesty or other similar criminal activity,
conducted by the police, any regulatory or
supervisory authority, professional
association, commission of inquiry, tribunal,
or any other body established by law, in
Sri Lanka or abroad;
(ii) has been found guilty in respect of an act of
fraud, deceit, dishonesty or other similar
criminal activity, by any regulatory or
supervisory authority, professional
association, commission of inquiry, tribunal,
or any other body established by law, in Sri
Lanka or abroad, at any time during the
period of fifteen years immediately prior to
being so appointed or elected;
(f) (i) is being subject to court proceedings for an
offence involving an act of fraud, deceit,
dishonesty or other similar criminal activity;
(ii) has been convicted by any court for an offence
involving an act of fraud, deceit, dishonesty
or other similar criminal activity at any time
during the period of fifteen years immediately
prior to being so appointed or elected;
(g) has been removed or suspended by a regulatory or
supervisory authority from serving as a director,
chief executive or other officer in any bank, finance
company or corporate body in Sri Lanka or abroad;
registration has been suspe
20 Finance Business Act, No. 42 of 2011
(h) has been declared by a court of competent
jurisdiction to be of unsound mind;
(i) has been determined by the Board –
(i) as having carried on finance business-
(a) in contravention of subsection (1) of
section 2 of this Act; or
(b) in contravention of subsection (1) of
section 2 of the Finance Companies
Act, No. 78 of 1988 (prior to its repeal);
or
(ii) as having accepted deposits in contravention
of subsection (2) of section 2 of this Act; or
(j) has been a director, chief executive or held any
other position of authority in any body corporate
or unincorporate body which the Board has
determined as having carried on finance business
in contravention of subsection (1) of section 2 of
this Act or subsection (1) of section 2 of the Finance
Companies Act, No. 78 of 1988 (prior to its repeal)
or having accepted deposits in contravention of
subsection (2) of section 2 of this Act.
(2) If the Board so determines, any person who has been
a director, chief executive officer or held any other position
of authority in any bank, finance company or financial
institution whose licence or registration has been cancelled,
shall be disqualified from being appointed or elected as the
case may be, as a director, chief executive officer, secretary
or key management personnel of a finance comany or from
holding such post.
(3) Any person who acts as a director, chief executive
officer, secretary or key management personnel of a finance
company while being under any disqualification set out in
subsection (1), shall be guilty of an offence under this
Act.
ended or cancelled;
Finance Business Act, No. 42 of 2011 21
22. (1) The Director may require any director, manager, Declaration of
employee of a finance company to make a declaration of his assets and
liabilities.
assets and liabilities to the Director as at a date and in such
form as may be specified by the Director.
(2) In requiring a declaration under subsection (1) the
Director may also require the details of increase and decrease
in liabilities and acquisition and disposal of assets for a
particular period.
(3) For the purpose of this section “assets and liabilities”
means assets and liabilities within and outside Sri Lanka,
and includes immovable and movable property owned by
the declarent or a relative in whole or in part and any property
in which the declarent or a relative has a beneficial interest.
23. (1) Where an owner of a deposit or a holder of a Transfer of
valid Power of Attorney of the owner in respect of such dormant
deposits to a
deposit:- special account
in the Central
(a) has not transacted with the finance company either Bank.
by making a deposit or withdrawal; and
(b) has not had any correspondence with the finance
company,
for a period not less than ten years, such deposit shall be
considered to be a dormant deposit:
Provided, that in relation to a deposit owned by a person
who has not attained the legal age of majority the aforesaid
period of ten years in respect of such deposit shall commence
only upon such person attaining the legal age of majority.
(2) Any finance company holding any dormant deposit
referred to in subsection (1), shall make a report to the Board
stating the nature of the deposit in such manner and time as
may be required by the Board.
22 Finance Business Act, No. 42 of 2011
(3) The Board may direct a finance company to take such
action as it deems necessary in respect of dormant deposit
reported by such finance company. Notwithstanding
anything to the contrary in any other written law, all monies
in such deposit shall, if the Board so directs, be transferred
by the finance company to a special account in the Central
Bank and may be utilized by the Board for such purposes as
may be determined by the Board.
(4) Any dormant deposit included in the report of a
finance company and which does not fall under subsection
(3) shall be referred by the Board to the Minister who shall
issue such instructions as he considers appropriate in the
circumstances.
(5) Within thirty days from the submission of the report
required by subsection (2), the relevant finance company
shall publish a notice in at least one Sinhala, Tamil and
English daily newspapers circulating in Sri Lanka stating
the name of the owner and particulars with regard to such
deposit and shall dispatch, by registered post a notice to the
owner to his last known address containing particulars of
such deposit, provided that the Board may exempt the finance
company from the mailing of such notice upon the finance
company showing reasonable cause therefor.
(6) The Central Bank shall where any person furnishes
proof to the satisfaction of the Board, that any monies lying
to his credit in his name with any finance company or in the
name of a person from whom he derives title have been
transferred to a special account in the Central Bank under
subsection (3) subject to such terms, conditions or restrictions
as may be imposed in respect of such monies, by or under
any written law, repay to such person such monies, either
with interest payable on such monies up to the date of
repayment at such rate as the Board may, from time to time
determine or if the Board so determines without such
interest.
Finance Business Act, No. 42 of 2011 23
PART III
EXAMINATIONS AND SUPERVISORY ACTIONS ON
FINANCE COMPANIES
24. (1) The Director by himself, or by any officer of the Examination of
books and
Central Bank or any other person, authorized on that behalf accounts etc of
by the Director, may examine the books and accounts of finance
every finance company at least once in each examination companies.
period, and may make such further examinations in respect
of any specified finance company as the Director may deem
fit and for such purpose, may do one or more of the
following-
(a) require any finance company, or a director, secretary,
manager, employee, auditor, agent or contractor of
any finance company to furnish him within such
period and in such manner or form as he may specify,
information as he considers necessary;
(b) require any finance company or a director, secretary,
manager, employee, auditor, agent or contractor of
any finance company to produce for inspection
books, records, files, registers, and such other
documents, maintained in print, electronic or any
other form, of such finance company and to provide
authenticated copies in any form as required of such
books, records, files, registers and such other
documents;
(c) enter the premises or storage area of any finance
company, and notwithstanding anything to the
contrary in any other written law, examine books,
records, files, registers, and such other documents,
maintained in print, electronic or any other form,
of such finance company and may obtain copies,
authenticated or otherwise, in any form of such
books, records, files, registers and such other
documents:
24 Finance Business Act, No. 42 of 2011
Provided however, if the Director receives
reasonable information that the books, records, files,
registers and such other documents, maintained in
print, electronic or any other form, of a finance
company are kept at any place other than the places
specified above, the Director or any person
authorized by the Director shall have the power to
enter and examine such other place and examine
such books, records, files, registers and such other
documents and if necessary obtain copies,
authenticated or otherwise, thereof in any form as
required:
Provided further, if the Director believes that
there will be resistance or obstruction for such
entering or search or there will be concealment of
information, he may obtain a warrant from a
Magistrate to enable him or any person authorized
by the Director to enter upon and search such place
specified in such warrant and may take into custody
of the Director or the person so authorised any
books, records, files, registers and such other
documents, maintained in print, electronic or any
other form, and electronic devices containing
relevant information. The Director may when
entering upon, any such place obtain the assistance
of the office-in-charge of the police station within
whose area of jurisdiction such place is situated.
For the purposes of this paragraph any person
who is not an officer of the Central Bank when
entering the premises of such finance company shall
be accompanied by the Director or an officer of the
Central Bank authorized by the Director.
(d) require the holding company, any subsidiary or
associate company of any finance company, or any
subsidiary or associate company of the holding
company of any finance company, or any other
company that in view of the Director has a
substantial financial interest or significant
management interest in any finance company to
Finance Business Act, No. 42 of 2011 25
furnish information as the Director may consider
necessary and to produce for inspection books,
records, files, registers and such other documents,
maintained in print, electronic or any other form,
of such company at such time, date and place and
in a manner or form as the Director may specify
and to provide in any form as required,
authenticated copies of such books, records, files,
registers and such other documents;
(e) require any finance company or a director, manager,
employee, agent, contractor or secretary of any
finance company to submit the accounts of such
finance company, furnish such information and
produce such books, records, files, registers, and
such other documents, maintained in print,
electronic or any other form, for audit by an auditor
authorized by the Director;
(f) question and record statements of or if necessary
direct, any director, shareholder, secretary,
manager, employee, agent, auditor or contractor of
any finance company or of any other person who
may be acquainted with or is aware of or is in
possession of, information regarding the business
or corporate affairs of such finance company to
submit answers to the questions raised by way of
an affidavit or if necessary administer oath or
affirmation in accordance with the Oaths or
Affirmations Ordinance (Chapter 17) and cause
questions to be asked of and record or cause the
recording of statements;
(g) call for information by notice in writing from any
person who may be acquainted with or is aware of
or is in possession of or appears to have information
regarding the business or corporate affairs of any
finance company and if required summon such
person for an interview.
(2) A Report on such examination shall be furnished to
the Board by the Director after the examination is completed.
26 Finance Business Act, No. 42 of 2011
(3) The Board may recover the costs of such examination
from the finance company.
(4) It shall be the duty of every person to comply with
any requirement imposed on him under this section. Any
person who-
(a) fails to provide any information or produce for
inspection any book, record, file, register or such
other document, material or object required under
this section;
(b) fails to attend in person when summoned for an
interview;
(c) provides false, incomplete or incorrect or
misleading information, book, record, file, register
or such other document, material or object; or
(d) obstructs the Director or any other person
authorized by the Director under subsection (1)
in the performance of any function under
subsection (1),
shall be guilty of an offence under this Act.
(5) In this section “examination period” means a period
as may be fixed for the purpose by the Board.
Procedure to be 25. (1) Where the Board, on a report made under section
followed when 14 or subsection (2) of section 24 by the Director, is of the
Director is of
opinion that a finance company-
opinion that
finance
company is (i) is carrying on or is likely to carry on, its business
following following unsound or improper financial practices,
unsound which are detrimental to the interest of its depositors
practices. and other creditors; or
(ii) has contravened or failed to comply with any
provisions of this Act, or any direction, rule, order
or requirement made or imposed thereunder,
the Board may do one or more of the following-
Finance Business Act, No. 42 of 2011 27
(a) impose a penalty not exceeding five hundred
thousand rupees payable within such period as
may be specified by the Board;
(b) direct such finance company to cease any such
practice;
(c) direct such finance company to comply with the
provisions of this Act or direction, rule, order or
requirement made or imposed thereunder which
such finance company has failed to comply with,
forthwith or within such period as may be specified
by the Board;
(d) direct such finance company to take necessary
action to correct the conditions resulting from such
practice or contravention;
(e) publish the name of the finance company as a
finance company regarding which the Board has
serious supervisory concerns;
(f) appoint a person to manage the affairs of such
finance company with regard to the proper conduct
of the business of such finance company;
(g) appoint an officer of the Central Bank as its
representative in such finance company to monitor
the affairs of such finance company and carry on
such other functions on terms of reference as may
be determined by the Board;
(h) restrain any director, manager or controller of the
finance company from carrying out any function
in or in relation to the finance company;
(i) remove any director, manager or employee of the
finance company;
28 Finance Business Act, No. 42 of 2011
(j) re-organize the finance company, by arranging for
the increase of its capital or reconstituting its Board
of Directors or taking both such measures;
(k) require the reduction of the number of shares held
in the finance company by any person;
(l) provide for such arrangements as are necessary for
the amalgamation of the finance company with
another finance company or any other institution,
with the consent of such other finance company or
institution;
(m) notwithstanding the provisions of any other written
law, review any contract entered into by a depositor
with the finance company and vary the terms of
such contract, including the terms relating to
repayment, interest rates and charges where it
considers that such contract has been entered into
without due regard to the interests of depositors or
other creditors of the finance company or due regard
to prudent commercial practice;
(n) notwithstanding the provisions of any other written
law, review any agreement or contract entered into
by the finance company, with any person and if
upon such review, it appears to the Board that the
agreement or contract has been entered into without
due regard to the interest of the depositors and other
creditors of the finance company or without due
regard to prudent commercial practice, vary the
terms of such agreement or contract.
(2) Any finance company dissatisfied with a direction
given under paragraphs (b), (c) or (d) of subsection (1), may,
before the expiry of thirty days from the date of the issue of
such direction, appeal in writing to the Board and the Board
shall render its decision within thirty days of receipt of such
appeal.
Finance Business Act, No. 42 of 2011 29
(3) The Director may make an application to the
Magistrate to impound the passport of any director or key
management personnel of a finance company in an event
where such finance company has violated the provisions of
this Act and the Director has reasons to believe that such
director or key management personnel is responsible for
such violation.
PART IV
FINANCIAL STATEMENTS AND AUDIT OF FINANCE COMPANIES
26. Every finance company shall prepare at the Financial
statements of
expiration of each financial year a complete set of financial
finance
statements including- company.
(a) a balance sheet as at the end of such financial year;
and
(b) an income statement in respect of such financial
year.
27. (1) The balance sheet of a finance company shall Balance sheet of
set out the state of affairs of such company as at the end of finance
company.
the financial year to which such balance sheet relates.
(2) Unless the Board otherwise requires there shall be
shown in the balance sheet or in any statement annexed
thereto-
(a) capitalized expenses not represented by tangible
assets under separate headings, so far as they are
not written off;
(b) the market value of investments;
(c) the method adopted to value fixed assets if there
had been any valuation of such assets during the
financial year;
30 Finance Business Act, No. 42 of 2011
(d) the aggregate amounts of advances after the
provision for bad and doubtful debts;
(e) any increase or decrease in the provision for
depreciation, renewals, or diminution in the value
of fixed assets;
(f) the sources and application of funds;
(g) reserves, provisions and liabilities distinguishable
from each other;
(h) changes in equity;
(i) except in the case of the first balance sheet of the
finance company, the corresponding amounts at the
end of the immediately preceding financial year
for all items shown in the balance sheet.
Income 28. Unless the Board otherwise requires there shall be
statement of shown in the income statement of a finance company or in
finance
company. any statement annexed thereto-
(a) the amount charged to revenue by way of provision
for depreciation, renewals, or diminution in value
of fixed assets;
(b) the amount charged to revenue for Sri Lanka income
tax and other Sri Lanka taxation on profits and
distinguishable from such accounts, the amounts,
set aside, or proposed to be set aside, for liabilities
in respect of tax due in the current year of taxation
or a succeeding year;
(c) the aggregate amount of dividends paid or proposed
to be paid;
(d) the amount of remuneration of auditors;
Finance Business Act, No. 42 of 2011 31
(e) the amount charged to revenue representing the
aggregate amount of the emoluments of directors;
(f) the amount set aside or proposed to be set aside to,
or withdrawn from reserves;
(g) under separate headings, the profit or loss or the
income and expenses arising from transactions such
as are not usually carried on by the finance company
and are carried on owing to circumstances of an
exceptional or non-recurrent nature or by a change
in the basis of accounting;
(h) except in the case of the first income statement of
the finance company, the corresponding amount
for the immediately preceding financial year for all
items shown in the income statement.
29. (1) Every finance company shall transmit to the Transmission of
Director within three months after the closure of each balance sheet
and income
financial year –
statement of
finance
(a) the audited income statement of the company for company to the
that financial year; Director and
publication.
(b) the audited balance sheet of the company as at the
end of the financial year;
(c) the auditor’s report in respect of the documents
referred to in paragraphs (a) and (b) above; and
(d) the report by the directors relating to the state of
the affairs of the finance company attached to the
balance sheet.
(2) Every finance company shall publish at least once in
a Sinhala, Tamil and English daily newspapers circulating
in Sri Lanka within three months after the closure of each
financial year, the documents specified in paragraphs (a),
(b) and (c) of subsection (1).
32 Finance Business Act, No. 42 of 2011
(3) Every finance company shall exhibit documents
specified in paragraphs (a), (b) and (c) of subsection (1) in a
conspicuous place of each of its places of business until
those documents for the succeeding financial year are
prepared and exhibited.
(4) The Board may specify the form of the balance sheet
and income statement referred to in this section and where
such form is specified, the balance sheet and income
statement of every finance company shall be prepared in
such form.
(5) Every finance company shall publish its key financial
data and key performance indicators in respect of the period
of six months immediately following from the end of its
each financial year, in such form and within such period as
may be specified by the Director.
Auditing of 30. (1) The auditor of a finance company shall inspect
accounts. the accounts, the finances, the management of the finances
and the property of that finance company. The auditor shall
as far as possible, and where necessary, examine-
(a) whether the conduct of the affairs of the finance
company has been in accordance with the laws for
the time being in force relating to the conduct of
finance business by finance companies and rules
and directions issued by the Board;
(b) whether records relating to the acceptance of
deposits and maintaining of accounts are
satisfactory;
(c) whether the accounting systems, procedures, books,
records and other documents have been properly
and adequately designed from the point of view of
financial control purposes and from the point of
view of the presentation of information to enable
continuous evaluation of the activities of the finance
Finance Business Act, No. 42 of 2011 33
company and whether such systems, procedures,
books, records and other documents are in effective
operation;
(d) whether the accounts audited have been so designed
as to present a true and fair view of the affairs of the
finance company in respect of the period under
consideration due regard being had to principles
of accountancy, financing and valuation.
(2) The Board may having regard to the need to ensure
that competent and qualified auditors are engaged in
auditing the accounts of finance companies issue guidelines
in that respect to the Director who shall select from time to
time in accordance with such guidelines, such number of
qualified auditors to audit the accounts of finance companies
and transmit a list of the qualified auditors so selected to all
finance companies.
(3) The Board may issue directions regarding the rotation
of auditors of finance companies.
(4) It shall be the duty of each finance company to select
its auditors for the purpose of auditing its accounts from
and out of the list transmitted under subsection (2) and to
comply with directions issued in terms of subsection (3).
PART V
REGULATORY AND RESOLUTION ACTIONS ON
FINANCE COMPANIES
31. (1) Where the Director is satisfied after examination Suspension.
by himself or by any officer of the Central Bank or any other
person, authorized on that behalf by the Director, or upon
information received from the finance company, that it is
insolvent or is likely to become unable to meet the demands
of its depositors or that its continuance in business is likely
to involve loss to its depositors or other creditors, the Director
34 Finance Business Act, No. 42 of 2011
shall make a report accordingly to the Governor of the Central
Bank for submission to the Board; and if the Board, upon
review of the facts and circumstances, is of opinion that
action should be taken as hereinafter provided, the Board
may make an order directing the company forthwith to
suspend business and directing the Director to take charge
of all books, records and assets of the company, and to take
such measures as may be necessary to prevent the
continuation of business by the company.
(2) Any director, manager, secretary or employee of the
finance company or any other person having in his
possession or custody any books, records or assets of the
company, who fails to hand over the same to the Director or
to an officer of the Central Bank or to any other person,
authorized on that behalf by the Director, or any person who
obstructs or resists the Director or an officer of the Central
Bank or any other person, authorized on that behalf by the
Director from taking charge of any books, records or assets
of the company or from taking such other measures as the
Director may consider necessary to prevent the continuation
of business by the company, shall be guilty of an offence
under this Act.
(3) Where any loss or damage is incurred or is likely or
alleged to have been incurred by reason of any order made
in good faith under subsection (1) no action or proceeding
may be instituted in a court for securing review or revocation
of such order or recovery of such loss or damage unless it
can be proved that such order was not made in good faith.
(4) The Board may take such steps as it may consider
necessary for enabling the continuation of recovery of debts
of the finance company and for such purpose shall have the
power to open bank accounts in the name of the finance
company to enable the debtors to make payments to the
finance company.
(5) Any order of suspension made by the Board in respect
of any finance company under this section shall cease to
have effect upon the expiration of a period of six months
Finance Business Act, No. 42 of 2011 35
from the date on which it is made and it shall be the duty of
the Board as soon as practicable-
(a) make order permitting the company to resume
business, either unconditionally or subject to such
conditions as the Board may consider necessary in
the public interest, or in the interest of the depositors
and other creditors of the company; or
(b) cause the Director to make application as
hereinafter provided to a competent court for the
winding up of the finance company and notify such
company accordingly. Where a finance company
is so notified, the company shall not resume business
unless an order to do so is made by a Court,
without prejudice to the generality of the powers conferred
by paragraph (a) and notwithstanding anything to the
contrary in any other written law or the memorandum and
articles of association of the company, the Board may, as a
condition of permitting the company to resume business,
remove any director, manager or employee of such company
where it is of the view that the continuance of such director,
manager or employee in the company is detrimental to the
interests of its depositors and other creditors and appoint
any person as a director, manager or an employee of such
company.
(6) Notwithstanding anything to the contrary in any other
written law or the Memorandum and Articles of Association
of a finance company, the Board, may where an order has
been made by the Board under paragraph (a) of subsection
(5), do one or more of the following –
(a) make such arrangements as it considers necessary
for the amalgamation of the finance company with
another finance company or any other institution,
with the consent of such other finance company or
institution;
36 Finance Business Act, No. 42 of 2011
(b) re-organise the finance company by increasing its
capital and arranging for new shareholders;
(c) reconstruct the finance company in any manner as
it deems necessary in the interest of depositors and
other creditors of such finance company;
(d) appoint a person to manage the affairs of such
finance company with regard to the proper conduct
of the business of such finance company;
(e) restrain any director, manager or controller of the
finance company from carrying out any function in
or in relation to the finance company;
(f) remove any director, manager or employee of the
finance company;
(g) reconstitute the Board of Directors of the finance
company;
(h) review any contract entered into by a depositor with
the finance company and vary the terms of such
contract, including the terms relating to repayment,
interest rates and charges where it considers that
such contract has been entered into without due
regard to the interests of depositors or other
creditors of the finance company or due regard to
prudent commercial practice;
(i) review any agreement or contract entered into by
the finance company, with any person and if upon
such review, it appears to the Board that the
agreement or contract has been entered into without
due regard to the interest of the depositors and other
creditors of the finance company or without due
regard to prudent commercial practice, vary the
terms of such agreement or contract;
Finance Business Act, No. 42 of 2011 37
(j) direct any shareholder of the finance company to
divest or transfer the ownership of the shares owned
by him, to a person nominated by the Board, on
payment by such person of compensation as
follows:-
(i) where such shares are quoted, at the market
value thereof; or
(ii) where such shares are not quoted at a price
to be determined by a valuer nominated by
the Board.
(7) A shareholder who fails to comply with a direction
given to him under paragraph (j) of subsection (6) shall be
guilty of an offence under this Act.
32. (1) Where an order has been made by the Board Winding up.
under paragraph (b) of subsection (5) of section 31, the
Director shall make an application as hereinafter provided
to a competent court for the winding up of the finance
company.
(2) The Court may, on an application made by the
Director, order the winding up of the finance company and
accordingly the provisions of the Companies Act, No. 07 of
2007, relating to the winding up of companies subject to
the supervision of court shall, mutatis mutandis, apply to
the winding up of such company.
(3) If the court is of opinion, after such inquiry as it may
consider necessary, and after considering the submissions
of the Director, that the finance company is not insolvent, it
may make order permitting the finance company to resume
business, either unconditionally or subject to such
conditions as the Court may consider necessary in the public
interest or in the interest of the depositors and other creditors
of the company:
Provided, that the provisions of this subsection shall not
apply to a finance company which has made an application
38 Finance Business Act, No. 42 of 2011
to the Supreme Court in relation to an order made or
purported to have been made by the Board in terms of
subsection (5) of section 31 of this Act.
(4) The Director or any person authorized on that behalf
by the Board shall be appointed to be the liquidator for the
purposes of such winding up.
(5) Any costs, charges and expenses incurred in the
winding up of a finance company may be paid out of the
funds of the Central Bank where the Board considers it in
the public interest to do so, in the event such costs, charges
and expenses cannot be met out of the funds of such finance
company.
(6) Every order made by a competent court under this
section shall be subject to an appeal to the Supreme Court
and the provisions of the Civil Procedure Code (Chapter
101) relating to appeals in civil actions shall apply, mutatis
mutandis, in the case of any such appeal.
(7) Where the Director makes an application to Court for
winding up of the finance company under subsection (1) for
the continuity of legal proceedings it is deemed that the
original caption of the plaint shall be valid for all purposes
of law even if the Director who made the application to
court is no longer the head of the department of the Central
Bank to which the subject of finance companies has been
assigned.
(8) In this section ‘competent court’ in relation to any
finance company means a High Court established under
Article 154P of the Constitution for a Province, empowered
with civil jurisdiction by Order published in the Gazette
under section 2 of the High Court of the Provinces (Special
Provisions) Act, No. 10 of 1996, within the Province for
which such High Court is established, or where no such High
Court vested with such civil jurisdiction is established for
any Province, the High Court established for the Western
Province.
Finance Business Act, No. 42 of 2011 39
33. The Minister may make regulations with regard to Priority of
claims in
the priority of claims in a winding up of a finance company:
winding up.
Provided however, until any regulations are made
under this section the provisions of the Companies Act,
No. 7 of 2007 or any other applicable law to the extent that
such provisions are not inconsistent with the provisions of
this Act shall, mutatis mutandis, apply with regard to the
priority of claims in a winding up of a finance company.
34. (1) The Board may, after review of the facts and Board may take
over
circumstances upon the receipt of a report by the Director
administration
under section 31 as an alternative to taking action under and management
section 31, take over the administration and management of of a finance
such finance company for such period as may be determined company.
by the Board and shall publish a notice in the Gazette of
such take over. The Board may extend the original period of
take over and shall publish a notice of such extension in the
Gazette. The Board shall inform the Registrar General of
Companies of such take over and any extension thereto and
the Registrar General shall make a minute thereof in the
books relating to the company.
(2) Where the Board takes over the administration and
management of a finance company, the Board may do one
or more of the following –
(a) exercise, perform and discharge with respect to such
finance company all the powers, duties and
functions conferred or imposed on, or assigned to,
the Board of Directors of such company by or under
any written law or by the Articles of Association of
such company or imposed on or assigned to any
other person by the Articles of Association of such
company;
(b) enter into any agreement with any person for the
management of the finance company subject to such
conditions as may be agreed upon between the
40 Finance Business Act, No. 42 of 2011
Board and such person having regard to the interests
of the depositors and other creditors of the company
and in the public interest;
(c) make such arrangements as it considers necessary
for the amalgamation of the finance company with
another finance company or any other institution
with the consent of such other finance company or
institution;
(d) re-organise the finance company by increasing its
capital and arranging for new shareholders;
(e) reconstruct the finance company in any such
manner as it considers to be in the interest of
depositors and other creditors of such finance
company;
(f) remove any director, manager or employee of the
finance company;
(g) reconstitute the board of directors of the finance
company;
(h) direct any shareholder of the finance company to
divest or transfer the ownership of any shares owned
by him to a person nominated by the Board on
payment by such person of compensation
determined as follows-
(i) where such shares are quoted, at the market
value thereof; or
(ii) where such shares are not so quoted, at a price
to be determined by a valuer nominated by
the Board;
(i) notwithstanding anything to the contrary in any
other written law, review any contract entered into
by a depositor with the finance company and vary
the terms of such contract, including the terms
Finance Business Act, No. 42 of 2011 41
relating to repayment, interest rates and charges
where it considers that such contract has been
entered into without due regard to the interests of
depositors or other creditors of the finance company
or due regard to prudent commercial practice;
(j) notwithstanding anything to the contrary in any
other written law, review any agreement or contract
entered into by the finance company, with any
person and if upon such review, it appears to the
Board that the agreement or contract has been
entered into without due regard to the interest of
the depositors and other creditors of the finance
company or without due regard to prudent
commercial practice, vary the terms of such
agreement or contract.
(3) During the period for which the administration and
management of finance company is taken over by the Board,
every director, manager and secretary of such finance
company shall, unless expressly authorized to continue by
the Board, cease to exercise, perform and discharge any
powers, duties and functions with respect to such company.
(4) Where the administration and management of a
finance company is taken over by the Board, the Board may
where it considers it in the public interest to do so-
(a) arrange for or grant such financial accommodation
as it may consider necessary to the finance company
by way of loans or other accommodation, other than
by way of grants; and
(b) meet all costs, charges and expenses incurred in
the administration and management of the
company.
(5) That the Board may at any time after the taking over
of the administration and management of a finance company
under subsection (1) suspend the business of the company,
42 Finance Business Act, No. 42 of 2011
if it is of opinion, that it is in the interest of the public or of
the depositors to do so, or direct the Director to apply to
wind up the company, if on a report made by the Director or
any person authorized by the Board, it appears to the Board
that the company cannot be made viable and solvent within
a reasonable period of time. In the event of the Board
directing the Director to wind up the finance company, the
provisions of section 32 relating to winding up shall apply.
Protection from 35. Where the Board has taken over the administration
suit. and management of a finance company under section 34,
the Board shall not be liable or subject to any action or
proceedings in any court in respect of any loss or damage
suffered or incurred or alleged to have been suffered or
incurred by any person by reason of any act or thing done or
omitted to be done in good faith by the Board or in the
exercise of any power, duty or function conferred or imposed
on, or assigned to, the Board by or under subsection (2) of
section 34.
Vesting of 36. (1) Where the Board has taken over the
administration administration and management of a finance company under
and
section 34 the Board may, in order to take steps to safeguard
management of
finance the interest of the depositors or creditors vest the
company in administration and management of such finance company
person. in any person with the consent of such person and publish a
notice in the Gazette in that regard. The person on whom
the administration and management of such finance
company is vested shall exercise, perform and discharge with
respect to such finance company all the powers, duties and
functions conferred or imposed on, or assigned to the Board
of Directors of such company by or under any written law or
by the Articles of Association of the company or to any
other person by the Articles of Association of such company.
(2) Where the Board has vested the administration and
management of a finance company in any person the Board
may direct any shareholder of such finance company to divest
or transfer the ownership of any shares owned by him to a
Finance Business Act, No. 42 of 2011 43
person nominated by the Board on payment by such person
of compensation as follows-
(a) where such shares are quoted, at the market value
thereof; or
(b) where such shares are not quoted, at a price to be
determined by a valuer nominated by the Board.
(3) Any person in whom the Board vests the
administration and management of a finance company, may,
discharge such functions in accordance with the provisions
of this Act and the provisions of subsection (2) of section 34
shall, mutatis mutandis, apply in relation thereto:
Provide however, if it appears necessary the Board may
require such person to obtain the prior written approval of
the Board to exercise any of the powers or functions given
under subsection (2) of section 34 of this Act.
37. (1) Where the Board is satisfied that any finance Cancellation of
company has- licence of a
finance
company.
(a) failed to commence business within nine months
of the issue of the licence;
(b) failed to pay up any debts incurred by it, on such
debts becoming due;
(c) had petition or action for relief filed against such
finance company, and has had appointed in respect
of such finance company under any bankruptcy
law or any other written law which provides for
relief for debtors or which relates to debtors, a
liquidator, custodian or receiver;
(d) ceased to carry on finance business;
(e) continuously been violating or contravening the
provisions of this Act or any direction or rule issued
thereunder;
(f) failed to pay the annual licence fee; or
44 Finance Business Act, No. 42 of 2011
(g) carried on, or is carrying on, its business in a manner
likely to be detrimental to the interests of its
depositors and other creditors,
the Board may, give notice to the finance company that it
would cancel the licence issued to such finance company.
(2) A finance company may tender objections in writing
to the Board against the notice of cancellation under
subsection (1), within thirty days of the date of such notice,
giving reasons why the licence issued to it under section 5
should not be so cancelled.
(3) After the expiration of sixty days from the date of
the notice of the cancellation and after considering the
objections tendered to the Board under subsection (2), the
Board may withdraw such notice or cancel the licence
issued to the finance company, and such cancellations
shall take effect on the date of the decision of the Board to
cancel the licence or such other later date as the Board may
deem appropriate.
(4) The decision of the Board to cancel the licence shall
be notified to the finance company and the notification of
cancellation shall be published in the Gazette and in at least
one Sinhala, Tamil and English daily newspapers circulating
in Sri Lanka, informing the public that such company is no
longer authorized to carry on finance business.
(5) Where the licence of a finance company is cancelled
the Board shall remove the name of the finance company
from the register maintained under subsection (1) of section
7 and may issue such directions as it considers necessary,
including directions for winding up or require the Director
to apply for winding up of the company in which event the
provisions of section 32, except subsection (3) thereof, shall
apply.
(6) Where the finance company fails to comply with any
directions issued under subsection (5) within the time
Finance Business Act, No. 42 of 2011 45
specified by the Board, the Board may require the Director
to file action for the winding up of the finance company,
and the provisions of section 32, except subsection (3)
thereof shall apply.
PART VI
INSURANCE OF DEPOSITS
38. (1) The Board may notwithstanding anything in the Scheme of
Regulation of Insurance Industry Act, No. 43 of 2000, or Insurance of
Deposits.
any other written law, establish, maintain, manage and
control a scheme for the insurance of deposits held by finance
companies and require such companies to insure under such
scheme the deposits held by them.
(2) (a)The Board may authorize a body corporate
(hereinafter referred to as “authorized body corporate”) to
carry out all or any of the functions referred to in subsection
(1), subject to such terms and conditions, and in such event,
the provisions of the Regulation of Insurance Industry Act,
No. 43 of 2000 shall not apply to such body corporate for
such purpose.
(b) The Board may acquire and hold shares in the
authorised body corporate.
39. (1) Where a scheme for the insurance of deposits Application for
has been established, every finance company shall apply to insurance of
deposits.
the Board or to the authorised body corporate in the form
specified by the Board to insure under such scheme, the
deposits held by such finance company.
A finance company, the deposits of which have been insured
under such scheme is referred to as an “insured finance
company” in this Part of this Act.
(2) The Board or the authorised body corporate, at its
discretion, may accept or reject any application made under
subsection (1).
46 Finance Business Act, No. 42 of 2011
(3) Every applicant finance company shall pay an initial
fee to the Board or authorized body corporate as the case
may be, which shall be determined, from time to time by the
Board or the authorised body corporate with the concurrence
of the Board.
(4) An insured finance company shall pay a premium of
insurance to the Board or to the authorised body corporate
on its deposits.
(5) If an insured finance company makes any default in
the payment of any premium, it shall, for the period of such
default, be liable to pay to the Board or to the authorised
body corporate interest on the amount of such premium at
such rate as may be determined by the Board or the authorised
body corporate with the concurrence of the Board, having
regard to the losses likely to be incurred by the Board or the
authorised body corporate by such default.
Examination by 40. (1) The authorised body corporate may, at its
authorized body discretion, cause to examine the books and accounts of any
corporate.
insured finance company and the provisions of subsections
(1) and (4) of section 24 of this Act shall, mutatis mutandis,
apply to such examination.
(2) A copy of the examination report shall be submitted
by the authorised body corporate to the Director forthwith
after an examination.
Rules relating to 41. (1) Rules may be made by the Board or the authorised
deposit body corporate with the concurrence of the Board in respect
insurance.
of establishment and operation of a scheme of insurance of
deposits and in particular –
(a) the amount, the time at which and the manner in
which the insurance premium shall be paid by an
insured finance company;
(b) the interest which may be charged from an insured
finance company, where it makes default in the
payment of premia;
Finance Business Act, No. 42 of 2011 47
(c) any matter that is stated or is required to be
prescribed or determined under this Part of this
Act for the purpose of insuring depositors of finance
companies;
(d) record keeping requirements for an insured finance
company;
(e) reporting requirements for an insured finance
company;
(f) any other matter affecting, connected with or
incidental to the exercise, discharge or performance
of the powers, functions and duties of the Board or
the authorised body corporate under this Part of
this Act.
(2) Every rule made under this section shall be published
in the Gazette.
PART VII
ACTION AGAINST PERSONS CARRYING ON FINANCE BUSINESS OR
ACCEPTING DEPOSITS WITHOUT AUTHORITY
42. (1) For the purpose of ascertaining whether any Investigation.
person has carried on or is carrying on finance business or
has accepted or is accepting deposits from the public in
contravention of the provisions of section 2, the Director or
any officer of the Central Bank authorized on that behalf by
the Director may conduct an investigation and for that
purpose may do one or more of the following –
(a) require such person or a director, partner, member,
secretary, manager, employee, agent, contractor or
auditor of such person to furnish him within such
period and in such manner or form as he may specify,
such information as he may consider necessary;
(b) require such person or a director, partner, member,
manager, secretary, employee, agent, contractor or
auditor of such person to produce for inspection
48 Finance Business Act, No. 42 of 2011
books, records, files, registers and such other
documents, maintained in print, electronic or any
other form, relating to the business and corporate
affairs of such person at such place as specified and
to provide authenticated copies in any form as
required, of such books, records, files, registers and
such other documents;
(c) at any time enter or authorize any other person whose
services have been obtained by the Director for such
purpose, to enter the premises or storage area of
such person or any vehicle of such person or of any
director, partner, member, secretary, manager,
employee, agent, contractor or auditor of such
person which is at the premises of such person and
notwithstanding anything to the contrary in any
other written law examine or cause to be examined
such premises or storage area or vehicles and books,
records, files, registers and such other documents,
maintained in print, electronic or any other form,
found in such premises, storage area or vehicle
relating to the business and corporate affairs of such
person and if necessary obtain copies, authenticated
or otherwise, in any form as required, of such books,
records, files, registers and such other documents,
and take account of currency, bills of exchange,
corporate and government securities found in such
premises or storage area or vehicle or which may be
kept in safe custody in such premises or storage
area:
Provided further that, if the Director
receives reasonable information that the books,
records, files, registers and such other documents,
maintained in print, electronic or any other form,
relating to the business and corporate affairs of such
person are kept at any place other than the premises
or storage area of such person or any vehicle of
such person or of any director, partner, member,
Finance Business Act, No. 42 of 2011 49
secretary, manager, employee, agent, contractor or
auditor of such person which is at the premises of
such person, the Director or any person authorized
by the Director shall have the power to enter and
examine such place or vehicle and examine the
books, records, files, registers and such other
documents, and if necessary obtain copies,
authenticated or otherwise, thereof in any form as
required and take account of currency, bills of
exchange, corporate and government securities
found at such place.
(d) question and record statements of or if necessary
direct such person or a director, partner, member,
secretary, manager, employee, agent, auditor or
contractor of such person or any other person who
may be acquainted with or aware of or in possession
of information regarding the business or corporate
affairs of such person to submit answers to the
questions raised by way of an affidavit or if
necessary administer oath or affirmation in
accordance with the Oaths or Affirmations
Ordinance (Chapter 17) and cause questions to be
asked of and record or cause the recording of
statements ;
(e) require the holding company, any subsidiary or
associate company of such person, or any subsidiary
or associate company of the holding company of
such person, or any other company that in view of
the Director has a substantial financial interest or
significant management interest in such person to
furnish information as the Director may consider
necessary and to produce for inspection the books,
records, files, registers and such other documents,
maintained in print, electronic or any other form,
relating to its business and corporate affairs at such
time, date, place and in a manner or form as the
Director may specify and to provide in any form as
50 Finance Business Act, No. 42 of 2011
required, authenticated copies of such books,
records, files, registers and such other documents;
(f) call for information by notice in writing from any
person who may be acquainted with or is aware of
or is in the possession of or appears to have
information regarding the business and corporate
affairs of such person and if required summon such
person for an interview;
(g) take any other action which he may deem necessary
for the purpose.
(2) (a) Notwithstanding anything to the contrary in any
other written law, the Director may require the Inspector
General of Police or the Deputy Inspector General of Police
in charge of the Province or the Division to provide all
assistance as may be necessary in the circumstances in order
to carry on an investigation for the purposes of subsection
(1) and report the findings of such investigation to the
Director in such manner and within such time as he may
specify.
(b) The Inspector General of Police or the Deputy
Inspector General of Police in charge of the Province or the
Division may order the Assistant Superintendent of Police
of the division or the Officer in Charge of the relevant police
station to carry on an investigation for the purposes of
subsection (1), and such officer shall, in addition to the powers
he may lawfully exercise, have the power to do mutatis
mutandis any act specified in paragraphs (a) to (g) of
subsection (1).
(c) The Director may request the assistance of any
Divisional Secretary to carry on an investigation for the
purposes of subsection (1) and such Divisional Secretary
shall assist the Director in such manner and within such time
as he may specify.
(3) The Director shall, where he has reasons to believe
that a person has carried on or is carrying on finance business,
or has accepted or is accepting deposits, report such fact to
the Board.
Finance Business Act, No. 42 of 2011 51
(4) The Board shall, after considering the report of the
Director under subsection (3) and after giving the person in
respect of whom the report is submitted an opportunity of
being heard, determine whether such person has carried on
or is carrying on finance business or has accepted or is
accepting deposits in contravention of the provisions of
section 2, and shall if determined that such person has carried
on or is carrying on finance business or has accepted or is
accepting deposits in contravention of the provisions of
section 2, notify such determination, in writing, to such
person accordingly. Any notice required to be given by the
Board under this section including the notice regarding the
hearing, shall be deemed to be served if dispatched by
registered post to the last known address of such person.
(5) Where in any prosecution instituted under this Act,
any question arises as to whether any person has carried on
or is carrying on finance business or has accepted or is
accepting deposits, a certified copy of the minutes of the
meeting of the Board regarding the determination that such
person has carried on or is carrying on finance business or
has accepted or is accepting deposits shall be admissible in
evidence and shall be prima facie evidence of the facts stated
therein.
(6) The Board may along with or after the notification of
its determination under subsection (4) issue to such person
directions as it considers necessary, including directions to
divest the business of such person to a person specified by
the Board or to repay the deposit liabilities or to make an
application within a specified period of time to a competent
court for winding up and it shall be the duty of such person
to comply with such directions.
(7) In the event of issuing directions under subsection
(6) to divest the business of such person, the Board may
notwithstanding provisions to the contrary in any other
written law –
(a) review any contract entered into by a depositor with
such person and may vary the terms of such contract,
52 Finance Business Act, No. 42 of 2011
including the terms relating to repayment, interest
rates and charges where it considers that such
contract has been entered into without due regard
to the interests of depositors or other creditors of
such person or without due regard to prudent
commercial practice;
(b) review any agreement or contract entered into by
such person with any other person and upon such
review, if it appears to the Board that the agreement
or contract has been entered into without due regard
to the interest of the depositors and other creditors
of such person or without due regard to prudent
commercial practice, vary the terms of such
agreement or contract.
(8) (a) Where such person fails to comply with the
directions issued under subsection (6), the Board may take
such steps as it considers necessary including the winding
up of such person or to take action to declare such person as
insolvent by a court.
(b) In the event of winding up of a company, the provisions
of section 32 other than the provisions of subsection (3)
thereof shall mutatis mutandis apply.
(c) In the event of winding up of a body of persons other
than a company, the provisions of section 32 other than the
provisions of subsections (2) and (3) thereof shall mutatis
mutandis apply and the value of the assets and liabilities of
such body of persons shall be ascertained in such manner
and upon such basis as the liquidator thinks fit. The
competent Court may at any time after making a winding up
order authorize the liquidator to realize all assets and may
require any person to pay, deliver, convey, surrender or
transfer forthwith or within a specified time to the liquidator
any money, property or books and other documents in his
hands to which such body of persons is entitled. A scheme
for the purpose of winding up of such body of persons shall
Finance Business Act, No. 42 of 2011 53
be prepared by the liquidator and submitted for confirmation
to the competent court and the winding up of such body of
persons shall be carried out according to the scheme.
(9) The Board may take such steps as it considers necessary
to recover the money and property of such person determined
in terms of subsection (4) and the provisions of section 51 of
this Act shall mutatis mutandis apply in respect of such
recovery.
(10) The Board may publish a notice in at least one
Sinhala, Tamil and English daily newspapers circulating
in Sri Lanka, that the person referred to in the determination
has carried on or is carrying on finance business or has
accepted or is accepting deposits in contravention of
the provisions of section 2. Where such person is a body
of persons, such notice may include, if that body of
persons is:-
(i) a body corporate the names and addresses of
directors of such body corporate;
(ii) a firm the names and addresses of partners of that
firm; and
(iii) an unincorporate body other than a firm, the names
and addresses of members of such body and officers
of that body.
(11) It shall be the duty of every person to comply with
any requirement imposed on him under this section and any
person who-
(a) fails to provide any information or produce for
inspection any book, record, file, register or such
other document, material or object required under
this section;
(b) fails to attend in person when summoned for an
interview;
54 Finance Business Act, No. 42 of 2011
(c) provides false, incomplete or incorrect or
misleading information, book, record, file, register
or such other document, material or object; or
(d) obstructs the Director or any other person
authorized by the Director under subsection (1) or
the Inspector General of Police or the Deputy
Inspector General of Police in charge of the Province
or the Division or any Divisional Secretary required
or requested to assist the Director in carrying out an
investigation by him, or any other person authorized
by the Inspector General of Police or the Deputy
Inspector General of Police or the Divisional
Secretary, as the case may be, in the performance of
any function under subsection (1) of this section,
shall be guilty of an offence under this Act.
Court order to 43. Where any person fails to provide information,
compel a person book, record, file, register or such other document or material
to provide
or object or provides false, incorrect or incomplete
information and
books. information, book, record, file, register or such other
document or material or object when required in terms of
subsection (1) of section 42 or section 46, the Director or
any person authorized by the Director may make an
application to the appropriate Magistrate for the issuance of
an order –
(a) authorizing any person named in the application
to inspect the books, records, files, registers and
such other documents maintained in print, electronic
or any other form, material or object of the person
who has failed to comply with the requirement made
in terms of subsection (1) of section 42 or section
46; or
(b) requiring the person who has failed to comply with
the requirement made in terms of subsection (1) of
section 42 or section 46, or a director, partner,
member, secretary, manager, employee, agent,
contractor or auditor of such person as may be
named in the order, to produce the books, records,
Finance Business Act, No. 42 of 2011 55
files, registers and such other documents
maintained in print, electronic or any other form,
material or object of such person, to a person and at
a place specified in the order.
44. (1) The Director may at any time where a person is Issue of
being investigated in terms of subsection (1) of section 42, Freezing Order.
issue an order (hereinafter referred to as a “Freezing Order”)
for any one or more of the following:-
(a) prohibiting such person from disposing assets of
such person or any part thereof;
(b) prohibiting such person from entering into any
transaction or class of transactions as may be
determined by the Director;
(c) prohibiting such person from soliciting or
mobilizing deposits;
(d) prohibiting any transaction in relation to any
account, property or investment as may be
determined by the Director.
(2) The Director may at any time where a body of persons
is investigated in terms of subsection (1) of section 42, issue,
if such body of persons is-
(i) a body corporate, on any director, or manager
of that body corporate;
(ii) a firm, on any partner of that firm;
(iii) an unincorporate body other than a firm, on
any member of such body, or any officer of
that body responsible for its management and
control,
a Freezing Order for any one or more of the following:-
(a) prohibiting such person from disposing assets of
such person or any part thereof;
56 Finance Business Act, No. 42 of 2011
(b) prohibiting such person from entering into any
transaction or class of transactions as may be
determined by the Director;
(c) prohibiting such person from soliciting or
mobilizing deposits;
(d) prohibiting any transaction in relation to any
account, property or investment as may be
determined by the Director.
(3) Subject to the provisions of section 45, a Freezing
Order issued under subsections (1) and (2) shall not be in
force for a period exceeding seven days of the issuing thereof.
Confirmation of 45. (1) The Director after issuing a Freezing Order under
Freezing Order the provisions of section 44 shall within the period during
and impounding
which the Freezing Order is in force, make an application to
of passports.
the High Court seeking confirmation of such Freezing Order
and also if the circumstances so necessitates, request an
extension thereto.
(2) Where the High Court is satisfied that there are
sufficient reasons for issuance of such Freezing Order, the
court may confirm the Freezing Order and if it is satisfied
there are sufficient reasons for extension thereof may grant
extensions for such periods as it considers appropriate.
(3) (a) The Director may at any time where a person is
investigated in terms of subsection (1) of section 42, make
an application to the relevant Magistrate’s Court to impound
the passport of such person so investigated.
(b) In an event where the person investigated in terms of
subsection (1) of section 42 is a body of persons, it shall be
lawful for the Director to make an application or applications
as may be necessary to impound the passport –
(i) if that body of persons is a body corporate, of
any director, or manager of the body
corporate; and
Finance Business Act, No. 42 of 2011 57
(ii) if that body of persons is a firm, of any partner
of that firm; and
(iii) if that body of persons is an unincorporate
body other than a firm, of any member of such
body, or any officer of that body responsible
for its management and control.
46. (1) The Director may call for information by notice Information of
in writing in such manner and as at such date as he may assets and
liabilities of a
specify of the assets and liabilities of a person regarding person under
whom an investigation has commenced in terms of investigation.
subsection (1) of section 42 from such person or from any
other person who may be acquainted with or aware of or
appears to have information regarding the assets and
liabilities of such person.
(2) Where such person is an individual, information of
the assets and liabilities of his spouse, children and parents
may also be called.
(3) Where such person is a body of persons, information
of the assets and liabilities of:—
(a) the Directors, managers and employees of a body
corporate;
(b) the Partners of a firm;
(c) the Members of an unincoporate body other than a
firm,
and of their spouses, children and parents may also be called.
(4) Where the Director has information that assets of such
person has been transferred, gifted, assigned or disposed of
in any manner to any other person the Director may call for
information of the assets and liabilities of such other person.
58 Finance Business Act, No. 42 of 2011
(5) In requiring information under subsection (1), ( 2), (3)
or (4), the Director may also require the details of increase
and decrease in liabilities and acquisition and disposal of
assets for a particular period.
(6) For the purpose of this section “assets and liabilities”
means assets and liabilities in and outside Sri Lanka, and
includes immovable and movable property owned by a
person or his relative in whole or in part and any property in
which such person or his relative has a beneficial interest.
Police and 47. The Director may require any officer in charge of a
Divisional police station or the relevant Divisional Secretary to furnish
Secretaries to
him with information regarding any person residing or having
provide
information. his place of business within the limits of the relevant police
division or the Divisional Secretary’s Division as the case
may be, in order to facilitate an investigation in terms of
section 42 of this Act, and such officer in charge of a police
station or such Divisional Secretary shall make every
endeavour to furnish the information required by the
Director.
Prohibition of 48. (1) No person, other than a person licensed under
advertising this Act to carry on finance business or any bank or institution
soliciting
exempted in terms of section 3 of this Act, shall advertise by
deposits without
authority. any means, in any manner whatsoever, either directly or
indirectly, soliciting deposits.
(2) Where the Director is of the opinion that an
advertisement made by a person contravenes the provisions
of subsection (1), the Director may send a notice to such
person requiring him to refrain from publishing
advertisements soliciting deposits.
(3) The notice referred to in subsection (2) shall be deemed
to have been served on the person referred to in the notice if
such notice was sent by registered post-
(a) to the address given in the advertisement;
Finance Business Act, No. 42 of 2011 59
(b) if such person is an individual to such person’s
place of business or residential address;
(c) if such person is a body corporate, to such person’s
place of business or registered address; or
(d) if such person is an unincorporate body, to such
person’s place of business or to the addresses of
partners or members of such body.
(4) If any person fails to comply with the notice sent by
the Director in terms of subsection (2), the Director may
make an application in writing to the Magistrate’s Court
within whose jurisdiction such person’s place of business is
situated or to, within whose jurisdiction the registered
address, residential address or the address given in the
advertisement is situated.
(5) (a) The application made by the Director in terms of
subsection (4) shall contain the following matters: –
(i) that he is the Director for the purposes of this Act;
(ii) that the advertisement referred to in the notice
issued in terms of subsection (2), is in his opinion
intended directly or indirectly for the purpose of
soliciting deposits;
(iii) that in terms of subsection (2) a notice was issued
to the person named in the application, who in his
opinion, is the advertiser of the advertisement
referred to in subparagraph (ii);
(iv) that the advertiser is not a person authorized by
subsection (1) to publish an advertisement soliciting
deposits; and
(v) that the advertiser failed to comply with the
requirements contained in the notice issued in
terms of subsection (2);
60 Finance Business Act, No. 42 of 2011
(b) The application shall contain a prayer for the making
of an order directing the advertiser who is named in the
application to forthwith refrain from advertising, in any
manner, either directly or indirectly soliciting deposits.
(6) Every application made under subsection (4) shall be
supported by an Affidavit confirming the matters set forth in
such application and shall be accompanied by a copy of the
advertisement referred to in the notice issued in terms of
subsection (2) and a copy of such notice.
(7) Upon receipt of an application made under subsection
(4), the court shall, forthwith issue on the advertiser named
in the application-
(a) a conditional order restraining him from publishing
the advertisement in respect of which the
application is made, and also restraining him from
publishing by any means whatsoever any further
advertisements soliciting deposits, until the
conclusion of the Court proceedings or until such
time the Court may consider fit; and
(b) summons requiring him to appear and show cause
on the date specified in such summons (being a
date not later than two weeks from the date of issue
of such summons) as to why an order restraining
him from advertising, in any manner, either directly
or indirectly soliciting deposits, should not be
issued.
(8) If the person on whom the summons were issued under
subsection (7) fails to appear in court on the date specified
therein or informs the court that he has no cause to show, the
court shall make the conditional order issued under
subsection (7) hereof a final order restraining the advertiser
from publishing advertisement in respect of which the
application is made, and also restraining him from publishing
by any means whatsoever any further advertisements
soliciting deposits.
Finance Business Act, No. 42 of 2011 61
(9) If a person on whom summons have been served under
subsection (7) appears on the date specified therein and
informs court that he has cause to show as to why an order
should not be issued prohibiting him from advertising, in
any manner, soliciting deposits, the court may proceed to
hear and determine the matter.
(10) (a) At such inquiry under subsection (9) the advertiser
on whom summons under subsection (7) have been served
shall not be entitled to contest any of the matters stated
in the application under subsection (4) except that he has
not made the advertisement referred to in the application or
he had made such advertisement in accordance with any
written law under which he is permitted to do so and such
permission is in force and not revoked or otherwise rendered
invalid.

(b) It shall not be competent to the Magistrate’s Court to
call for any evidence from the Director in support of the
application under subsection (4).
(11) If after inquiry the Magistrate is unable to conclude
on the evidence adduced before him that the person showing
cause is entitled to advertise soliciting deposits, the
Magistrate shall make the conditional order issued under
subsection (7) hereof, a final order restraining the advertiser
from publishing advertisement in respect of which the
application is made, and also restraining him from publishing
by any means whatsoever any further advertisements
soliciting deposits. If such person shows cause to the
satisfaction of the court, the Magistrate shall set aside the
conditional order issued under sub section (7).
(12) Where a Court has made, in pursuance of any
application under subsection (4), an Order directing a person
to stop forthwith advertising in any manner, soliciting
deposits, the Court shall along with such Order make all
such orders as are necessary to ensure that the Order of
restraint is effectively enforced.
62 Finance Business Act, No. 42 of 2011
Media 49. Any media institution shall, before publishing an
institutions to advertisement which solicits deposits, verify from the
verify before
publishing relevant advertiser whether he is authorised under this Act
advertisements to accept deposits.
soliciting
deposits.
Publication of 50. (1) The Director may send a notice to any media
advertisements
institution requiring such institution to refrain from
soliciting
deposits without publishing advertisements soliciting deposits by a person
authority is an specified in such notice.
offence.
(2) Any person who contravenes the provisions of
subsection (1) shall be guilty of an offence under this Act.
PART VIII
OFFENCES AND PENALTIES
Action to be 51. (1) If the Board, on consideration of a report of the
taken regarding
Director, is of the opinion that any past or present director,
wrongful gain.
chief executive officer, manager, employee, agent or a
contractor of a finance company has by an act or omission
caused a-
(a) wrongful gain for himself or for any other person of
any money or property belonging to such finance
company; or
(b) wrongful loss to the finance company,
the Board may notwithstanding that any action has also
been taken under this Act or any other law, require such
director, chief executive officer, manager, employee, agent,
contractor or any other person referred to in paragraph (a) to
repay, restore to or compensate the finance company, the
money or property so wrongfully gained or caused to
wrongfully lose, with interest on such money or property at
such rate as the Board may think fit and within such period
of time as may be specified by the Board.
Finance Business Act, No. 42 of 2011 63
(2) Where any person referred to in subsection (1) fails to
repay, restore to or compensate the finance company, the
money or property referred to in that subsection, the Board
may-
(a) direct such person to disclose to any officer
authorized by it within a specified time, the value,
nature and whereabouts of any monies, properties
or other assets –
(i) owned by such person; or
(ii) in which such person has a beneficial
interest; or
(iii) acquired or purchased or held or
possessed, by a relative of such person or
any other person, in trust for such person,
including the properties and other assets
disposed in any manner whatsoever, as at
a specified date or within a specified
period.
(b) require such person to furnish an affidavit
enumerating all movable or immovable property
owned or possessed by such person at any time, or
at such time as may be specified by the Board stating
the date on which each of the properties enumerated
was acquired and whether the acquisition was by
way of purchase, gift, bequest, inheritance or
otherwise;
( c) require any other person to furnish an affidavit –
(i) enumerating all movable or immovable
property owned or possessed at any time, or
at such time as may be specified by the Board
by such person, where the Board has
reasonable grounds to believe that such
information can assist an investigation into
the affairs of a finance company;
64 Finance Business Act, No. 42 of 2011
(ii) containing particulars of such other matters
which in the opinion of the Board are relevant
to such investigations;
(d) require the chief executive officer of any bank in
Sri Lanka or any finance company as the case may
be to produce within such time as may be specified
in the notice, any book, document or cheque of the
bank or any book, document or certificate of the
finance company containing entries relating to the
account of such person or to furnish as so specified,
certified copies of such entries;
For the purpose of this paragraph, “document” shall
include details of any safe deposit box.
(e) notwithstanding the provisions to the contrary in
any written law, require the Commissioner-General
of Inland Revenue to furnish, as specified in the
notice, all information available to him relating to
affairs of such person and to produce or furnish as
specified in the notice, any document or certified
copy of any document relating to such person, which
is in the possession or under the control of the
Commissioner-General of Inland Revenue;
(f) invite the public by any means whatsoever to furnish
to a person authorized by it, any information
required in terms of paragraph (a);
(g) serve a notice on the chief executive officer of any
bank or finance company to freeze the accounts
and safe deposit boxes of such person, whether held
individually or jointly, up to an amount specified
by the Board.
Every notice issued under this paragraph shall be
in force for a period specified in such notice which
period shall however not exceed ninety days and
during the period a notice issued under this paragraph
is in force any transfer of funds in contravention to
the notice shall be void and of no effect;
Finance Business Act, No. 42 of 2011 65
(h) serve a notice on any person referred to in subsection
(1), or on a relative or other person holding property
or assets in trust for the first mentioned person, or
on any other person holding property or assets
purchased or acquired by the improper utilization
or misapplication of monies attributable to the
funds of the finance company, prohibiting the
transfer by such person, relative of such person, or
other person, of possession, ownership or any
interest in any properties or other assets specified
in that notice, and also requiring such person to
submit to the Director:—
Every notice issued under this paragraph shall be
in force for a period specified in such notice which
period shall however, not exceed ninety days and
during the period a notice issued under this paragraph
is in force any transfer of ownership, possession or
other interest in any property or assets specified in
such notice shall be void and of no effect;
(i) in the case of immovable property the copies
of deeds relating to the title of such property;
(ii) in the case of a motor vehicle, a copy of the
Certificate of Registration issued by the
Commissioner of Motor Traffic, in respect of
that motor vehicle;
(iii) in the case of movable property other than
motor vehicles copies of documents in proof
of ownership.
(i) serve a copy of the notice referred to in paragraph
(h) on any relevant authority including in the case
of immovable property, on the Registrar of Lands,
in the case of motor vehicles, on the Commissioner
of Motor Traffic, in the case of shares, stocks and
debentures of any company, on the Registrar
66 Finance Business Act, No. 42 of 2011
General of Companies and the Secretary of the
relevant finance company and where applicable on
the Director General of any stock exchange licensed
under the Securities and Exchange Commission of
Sri Lanka Act, No. 36 of 1987 and in the case of
Government securities on primary dealers appointed
in terms of Registered Stock and Securities
Ordinance, (Chapter 420) and Local Treasury Bills
Ordinance, (Chapter 417);
(j) require any authority on whom a copy of a notice
referred to in paragraph (i) is served, to register such
notice in the appropriate books or records in the
custody of such authority and during the period,
that a notice is in force, the Registrar of Lands,
Commissioner of Motor Traffic and Registrar
General of Companies and any other relevant
authority on whom a copy of such notice has been
served under paragraph (i) shall not register any
deed or instrument of transfer or other document of
title relating to the property or assets specified in
that notice;
(k) require any person or authority referred to in
paragraphs (d) and (i) to furnish such information
as he may have in his possession or custody relating
to the assets of any person or relative of a person,
referred to in paragraph (a);
(l) (i) before the expiration of the period specified in
notices served under paragraphs (g) and (h), the
Director may make an application by way of
summary procedure to the District Court having
jurisdiction in the district within which any
property specified in such notices is situated,
for an order authorizing the seizure and sale of
such property, and for a writ of execution for
seizure and sale of such property;
Finance Business Act, No. 42 of 2011 67
(ii) the District Court upon application made to it
under sub-paragraph (i) of this paragraph and
being satisfied that such past or present director,
chief executive officer, manager, employee,
agent, contractor or any other person referred to
in subsection (1) has by an act or omission caused
a wrongful gain for himself or for any other person
of any money or property belonging to the
company or wrongful loss to the company shall
direct the chief executive officer of any bank or
finance company to deposit the amount specified
by the Board in the notices issued under
paragraph (g) in the District Court, out of the
funds in the accounts of such person, whether
held individually or jointly, and the District
Court shall direct a writ of execution to issue to
the Fiscal authorizing and requiring him to seize
the deposits so made;
(iii) the District Court upon application made to it
under sub-paragraph (i) of this parahraph and
being satisfied that such past or present director,
chief executive officer, manager, employee,
agent, contractor or any other person referred
to in subsection (1) has by an act or omission
caused a wrongful gain for himself or for any
other person of any money or property belonging
to the company or wrongful loss to the company
shall direct a writ of execution to issue to the
Fiscal authorizing and requiring him to seize
and sell-
(a) any property or assets owned by such
director, chief executive officer,
manager, employee, agent or
contractor of the finance company or
any other person or persons so gained
wrongfully; or
68 Finance Business Act, No. 42 of 2011
(b) any property or assets held in trust by a
relative or any other person for such
director, chief executive officer,
manager, employee, agent or contractor
of the finance company; or
(c) any property or assets acquired or
purchased with monies attributable to
the assets of the finance company;
(iv) the provisions of sections 217 to 297 of the
Civil Procedure Code shall, mutatis mutandis,
apply to the seizure and sale of any property
under a writ of execution issued under sub
paragraphs (ii) and (iii) of this paragraph;
(v) any sum realized by the seizure and sale of
any property under this paragraph shall be
applied by the court-
(a) firstly, in payment of the costs and
charges incurred in seizing, keeping
and selling such property;
(b) secondly, in satisfaction of the amount
determined by court to be attributable
to the finance company, referred to in
sub paragraph (ii) of this paragraph,
and the balance shall be paid to the owner of
the property seized.
(vi) where any money is seized in terms of sub-
paragraph (ii) of this paragraph it shall be
applied by the court in satisfaction of the
amount determined by court to be attributable
to the finance company, referred to in sub
paragraph (ii) of this paragraph, and the
balance shall be repaid to the person to whom
such money is due.
Finance Business Act, No. 42 of 2011 69
(3) Any past or present director, chief executive officer,
manager, employee, agent or contractor of a finance company
who has by an act or omission caused a-
(a) wrongful gain for himself or for any other person,
of any money or property belonging to the
company; or
(b) wrongful loss to the company;
shall be guilty of an offence under this Act.
52. (1) Any person, who being a director, secretary, chief Offences by a
executive officer, manager, officer, employee or auditor of a director,
secretary, chief
finance company-
executive
officer,
(a) fails to take all reasonable steps to secure manager,
compliance by that finance company with the officer,
requirements of this Act; employee or
auditor of a
finance
(b) fails to comply with any direction issued or rule company.
made by the Board under the provisions of this
Act;
(c) fails to comply with any direction issued or
requirement made by the Director under the
provisions of this Act;
(d) fails to take all reasonable steps to secure the
correctness of any statement submitted by such
finance company under the provisions of this Act;
(e) makes a false entry in any book, record, file, register
or such other document or statement relating to the
business affairs, transactions, conditions, assets or
liabilities or accounts of such finance company or
causes such entry to be made;
(f) omits to make an entry in any book, record, file,
register or such other document or statement
70 Finance Business Act, No. 42 of 2011
relating to the business affairs, transactions,
conditions, assets or liabilities or accounts of such
finance company or causes such entry to be omitted;
(g) alters, abstracts, conceals, erases or destroys any
entry in any book, record, file, register or such other
document, or statement relating to the business
affairs, transactions, conditions, assets or liabilities
or accounts of such finance company or causes any
such entry to be altered, abstracted, concealed,
erased or destroyed; or
(h) maintains multiple sets of books, records, files,
registers, or such other documents for the purpose
of concealing the true condition of such finance
company,
shall be guilty of an offence under this Act.
(2) In any prosecution instituted against a person under
subsection (1), it shall be a defence to prove that he had
reasonable grounds to believe that another person was
charged with the duty of securing compliance with the
requirements of this Act or with the duty of ensuring that the
statements in question were accurate and that such person
was competent and in a position to discharge that duty.
Offences by 53. (1) Where an offence under this Act is committed
persons. by a person, such person shall be guilty of an offence.
(2) Where an offence under this Act is committed by a
person that is–
(a) a body corporate, every director, manager, or
secretary of that body corporate;
(b) a firm, every partner of that firm; or
(c) an unincorporate body other than a firm, every
member of such body,
shall be guilty of such offence:
Finance Business Act, No. 42 of 2011 71
Provided however, that no person shall be deemed to be
guilty of an offence if he proves that the offence was
committed without his knowledge and that he exercised all
due diligence to prevent the commission of that offence.
54. Where proceedings are instituted in High Court or Hearing and
Magistrate Court under the provisions of this Act for the decision on
applications
offences under this Act, the court shall give priority to the
made under this
disposal of such cases. Act.
55. Any person who abets, conspires or attempts to Abetting to
commit an offence under this Act shall be guilty of an offence commit an
and shall be punishable in the same manner as punishable offence is an
offence.
for the substantive offence under this Act.
56. (1) Any person who is guilty of an offence under Penalties.
subsection (4) of section 2 of this Act shall be liable on
conviction after trial before the High Court to imprisonment
of either description for a term not exceeding five years or to
a fine not exceeding five million rupees or to both such
imprisonment and fine and to settle liabilities of such person
to depositors and other creditors under the supervision of
court:
Provided however, that any person who is found guilty
of an offence under subsection (4) of section 2 by application
of the provisions of subsection (2) of section 53 of this Act
shall settle the liabilities of the relevant body corporate or
the unincorporate body as the case may be, in such manner
and in such extent as the Court may direct:
Provided further, that the court may direct the debtors of
such person or of the relevant body corporate or the
unincorporate body as the case may be, to repay their debts
in such manner and within such time as the court may direct.
(2) Any person who is guilty of an offence under
subsection (9) of section 5, subsection (1) of section 20,
subsection (4) of section 24, subsections (2) and (7) of
72 Finance Business Act, No. 42 of 2011
section 31, subsection (11) of section 42, subsection (3) of
section 51 or subsection (1) of section 52 of this Act shall be
liable on conviction after trial before a Magistrate to a fine
not exceeding three million rupees or to imprisonment of
either description for a term not exceeding three years or to
both such fine and imprisonment.
(3) Any person who is guilty of an offence under
subsection (2) of section 21 and subsection (2) of section 50
of this Act shall be liable on conviction after trial before a
Magistrate to a fine not exceeding one million rupees or to
imprisonment of either description for a term not exceeding
one year or to both such fine and imprisonment.
(4) Any person who contravenes or fails to comply with
any provisions of this Act or any rule, direction, order or
requirement made or imposed thereunder other than where
such contravention or failure constitutes an offence in terms
of subsections (1), (2) and (3), shall be guilty of an offence
under this Act and shall be liable on conviction after trial by
a Magistrate, to a fine not exceeding one million rupees or
to imprisonment of either description for a term not
exceeding one year or to both such fine and imprisonment.
Application of 57. (1) A director, manager or secretary of a body
funds for corporate or a partner or a member of an unincorporate body
payment of fine.
ordered to pay a fine shall be guilty of an offence under this
Act, if he applies any funds of such body corporate or
unincorporate body, as the case may be, for the payment of
such fine or part thereof.
(2) Any person who commits an offence under subsection
(1) of this section shall be liable on conviction after trial by
a Magistrate to a fine not exceeding one million rupees or to
imprisonment of either description for a term not exceeding
three years or to both such fine and imprisonment and to
restore to such body corporate or unincorporate body an
amount equivalent to the amount of funds he utilized from
such body corporate or unincorporate body to pay the fine.
Finance Business Act, No. 42 of 2011 73
58. (1) No person aggrieved by any determination or Provision for
appeals from
decision made, direction issued, requirement imposed or
certain orders.
purported to have been made, issued, or imposed under
section 5 or section 12 or subsection (2) of section 25 or
paragraph (b) of subsection (5) or sub section (6) of section
31 or section 34 or section 36 or section 37 or section 42 or
section 51 or who apprehends that he would be affected by
any act or any step taken, or proposed to be taken or
purporting to be taken under any such section shall be
entitled to a permanent or interim injunction, an enjoining
order, a stay order or any other order having the effect of
staying, restraining, or impeding the Board from giving effect
to such order.
(2) (a) The jurisdiction conferred on the Court of Appeal
by Article 140 of the Constitution shall in relation to any
determination, decision, direction, or requirement or purported
determination, decision ,direction, or requirement under
sections referred to in subsection (1), be exercised by the
Supreme Court and not by the Court of Appeal.
(b) Every application invoking the jurisdiction referred
to in paragraph (a) shall be made within one month of the
date of commission of the act in respect of which or in
relation to which, such application is made and the Supreme
Court shall hear and finally dispose of such application
within two months of the filing of such application.
(3) Nothing contained in subsection (1) shall affect the
powers which the Supreme Court may otherwise lawfully
exercise in respect of any application made under Article
126 of the Constitution or in the exercise of the jurisdiction
referred to in subsection (2).
(4) The Supreme Court shall before making any order
whether interim or final against the Board, in the exercise of
the jurisdiction conferred on it by this section, afford the
Board an opportunity of being heard.
74 Finance Business Act, No. 42 of 2011
PART IX
GENERAL
Fund. 59. (1) There shall be a fund called Enhancing Public
Awareness on Financial Matters Fund.
(2) All fines received under this Act shall be credited to
the Fund and the money lying to the credit of such Fund
may be utilized for the purposes and in a manner as may be
determined by the Board from time to time.
(3) The amount lying to the credit to the Depositors’ Relief
Fund of the Central Bank as at the date of coming into
operation of this Act shall be transferred to the Enhancing
Public Awareness on Financial matters Fund.
Authority to 60. (1) Subject to and in accordance with such rules, if
represent and any, as may be made by the Board in that behalf, the Board
delegation of
may in writing authorise any officer of the Central Bank to
powers.
represent the Board for any of the purposes of this Act, so
however, that the Board shall remain and continue to remain
to be responsible for any act or thing done or omitted to be
done by such officer in representing the Board under such
authorisation.
(2) The Board may in writing delegate to any officer of
the Central Bank any of its powers under this Act, so
however, that the Board shall remain and continue to be
responsible for any act or thing done or omitted to be done
by such officer in the exercise of such powers delegated to
him.
Maintenance of 61. (1) Every director, manager, officer, employee and
secrecy. agent of any finance company and of any body corporate
authorized in terms of paragraph (a) of subsection (2) of
section 38 shall observe strict secrecy in respect of all
transactions of the finance company, its customers and the
Finance Business Act, No. 42 of 2011 75
state of accounts of any person and all matters relating thereto
and shall not reveal any such matter except –
(a) when required to do so by a court of law or by the
person to whom such matter relates, in the
performance of the duties of such director, manager,
officer, employee and agent; or
(b) in order to comply with any of the provisions of
this Act or any other written law:
(2) Every director, manager, officer, employee and agent
of any finance company and of any body corporate
authorized in terms of paragraph (a) of subsection (2) of
section 38 shall sign a declaration pledging himself to
observe strict secrecy in accordance with subsection (1).
(3) The provisions of subsections (1) and (2) shall not
prohibit a finance company from providing in good faith to
another finance company on request an opinion or reference
relating to a customer in accordance with customary
practices in the finance industry.
62. Notwithstanding anything to the contrary in section Finance
61 of this Act or section 77 of the Banking Act, No.30 of companies and
banks to inform
1988 every director, manager, officer, employee and the Director of
agent of any finance company or of any bank shall inform persons
the Director in writing of any customer of such finance carrying on
finance business
company or bank with respect to whom he has reasonable
or accepting
suspicion of carrying on finance business or accepting deposits without
deposits from the public in contravention of section 2 of authority.
this Act.
63. Every member of the Board, the Director, and any Members of the
officer authorized by the Board or the Director under Board, Director,
authorized
this Act shall be deemed to be public servants, within officers deemed
the meaning of and for the purposes of the Penal Code to be public
(Chapter19). servants.
76 Finance Business Act, No. 42 of 2011
Director, 64. The Director or any officer authorized shall be
authorized
deemed to be public officers within the meaning of section
officers deemed
to be public 136 of the Code of Criminal Procedure Act, No. 15 of 1979
officers. for the purpose of instituting proceedings in respect of
offences under this Act:
Provided however, in respect of an offence committed in
contravention of the provisions of section 2 of this Act the
Board may request the Attorney General to consider
instituting criminal proceedings.
Offences to be 65. Notwithstanding anything to the contrary in the
cognizable and Code of Criminal Procedure Act, No.15 of 1979 every offence
bailable.
under this Act shall be a cognizable and bailable offence
within the meaning and for the purpose of the Code.
Pre-condition 66. (1) No prosecution shall be instituted in any court
for prosecution.
against the Board or a member thereof or the Director or any
officer or servant of the Central Bank or any other person
who is authorized under the provisions of this Act to carry
out any duty or function, by reason of any act done or
purported to be done, or omitted to be done under this Act or
any direction, order or requirement made or imposed
thereunder unless the prior written sanction of the Attorney-
General has been obtained for such prosecution.
(2) Any expenses incurred by a member of the Board, the
Director or any officer or servant of the Central Bank in any
suit or prosecution brought against such person before any
court in respect of any act which is done or purported to be
done or omitted to be done by such person under this Act or
any direction, order or requirement made or imposed
thereunder, as the case may be, shall, if the court holds that
such act was done in good faith, be paid out by the Board
unless such expenses are recovered by him in such suit or
prosecution.
Finance Business Act, No. 42 of 2011 77
67. (1) Where the Director is satisfied, after examination Providing
by himself, or by any officer of the Central Bank or any temporary
financial
other person, authorized on that behalf by the Director, of
assistance &
the affairs of any finance company, or upon information guarantees by
received from the finance company that it would be in the the Board.
interest of depositors to provide temporary financial
accommodation to such finance company, the Director shall
report accordingly to the Board and the Board may grant a
loan or advance to a commercial bank from the Medium and
Long Term Credit Fund established under section 88E of the
Monetary Law Act (Chapter 422), for the purpose of lending
to such finance company on such terms and conditions as
may be determined by the Board.
(2) The provisions of section 88A to 88E of the Monetary
Law Act shall, mutatis mutandis, apply to any loan or
advance granted to a commercial bank under the provisions
of subsection (1).
(3) The Board may guarantee loans, advances or other
accommodation granted to a finance company by credit
institutions operating in Sri Lanka.
(4) In this section “credit institution” means-
(a) any bank licensed under the Banking Act, No.
30 of 1988;
(b) any finance company licensed under this Act;
(c) any agency or institution acting on behalf of
the government (whether established by any
written law or otherwise) which grants loans and
advances or makes investments or accepts
deposits from the public;
(d) any other person declared by the Minister in
charge of the subject of Finance, by Order
published in the Gazette, to be a banking
institution for the purposes of Monetary Law
Act (Chapter 422); and
78 Finance Business Act, No. 42 of 2011
(e) any such society registered under the Co-operative
Societies Law, No 5 of 1972.
Directions of the 68. The Minister may give to the Board general or
Minister.
special directions in writing for the purpose of giving effect
to the principles and provisions of this Act and the Board
shall give effect to such directions.
Regulation of 69. (1) The Minister may make regulations in respect of
the Minister.
matters required by this Act to be prescribed or in respect of
which regulations are authorized to be made.
(2) Every regulation made by the Minister shall be
published in the Gazette and shall come into operation on
the date of such publication or on such later date as may be
specified in the regulation.
(3) Every regulation made by the Minister shall, as soon
as is convenient after its publication in the Gazette, be
brought before Parliament for approval.
(4) Every regulation which is not so approved shall be
deemed to be rescinded as from the date of such disapproval
but without prejudice to anything previously done
thereunder. Notification of the date on which any regulation
is deemed to be rescinded shall be published in the Gazette.
Power to call for 70. Where an investigation or an examination has been
information to
commenced or a litigation has been instituted in terms of
find out the
whereabouts of this Act, notwithstanding the provisions of any other written
a person. law, the Director shall have power to call for information by
notice in writing, for the purpose of finding the whereabouts
of a person who is subject to such investigation, examination
or litigation, from:-
(a) the Telecommunication Regulatory Commission
of Sri Lanka or any one or more of
telecommunication service providers or internet
service providers regarding the telephone or internet
usage of such person including the location from
Finance Business Act, No. 42 of 2011 79
which he has made use of the service so provided,
whether frequently or at any given time; and
(b) any bank or a finance company regarding the
transactions made by such person with such bank
or finance company including the branch or
automated teller machine location from which he
has transacted, whether frequently or at any given
time.
71. (1) The Finance Companies Act, No 78 of 1988 is Repeal and
hereby repealed. savings.
(2) Notwithstanding the repeal of the Finance Companies
Act, No 78 of 1988, every regulation, notice, order, rule,
guideline or direction issued, requirement imposed,
determination or delegation made under the repealed Act
and in force on the day preceding the date of commencement
of this Act shall in so far as such regulation, notice, order,
rule, guideline, direction, requirement, determination or
delegation is not inconsistent with the provisions of this
Act, be deemed to be a regulation, notice, order, rule,
guideline, direction, requirement, determination or
delegation issued, imposed or made, as the case may be,
under the provisions of this Act.
(3) Companies registered under the Finance Companies
Act, No. 78 of 1988 which are carrying on finance business
on the day preceding the date of commencement of this
Act, shall, with effect from the date of commencement of
this Act, deemed to be finance companies licensed under
this Act.
(4) All actions, procedings or matters instituted in terms
of Finance Companies Act, No. 78 of 1988 and pending in a
Magistrate Court or District Court on the day preceding the
date of commencement of this Act, shall from and after the
date of commencement of this Act be heard and determined
by the said Magistrate Court or District Court in terms of the
provisions of this Act.
80 Finance Business Act, No. 42 of 2011
This Act to 72. In the event of any conflict or inconsistency between
prevail over the provisions of this Act and the provisions of any other
other laws.
written law, the provisions of this Act shall prevail.
Deposit. 73. (1) For the purposes of this Act, “deposit” means a
sum of money paid on terms under which it will be repaid,
with or without interest or a premium, and either on demand
or at a time or in circumstances agreed to by or on behalf of
the person making the payment and the person receiving it,
subject to subsections (2) and (3).
(2) In any of the following instances a sum of money paid
on terms specified in subsection (1) shall not be a deposit for
the purposes of this Act:-
(a) a sum of money paid by way of a loan or investment
in a debt instrument including a hybrid debt
instrument by –
(i) the Central Bank;
(ii) a bank licensed under the Banking Act,
No. 30 of 1988, a finance company within
the meaning of this Act and a person
exempted from the licensing requirement of
the said Acts;
(iii) a person specifically authorized to lend
money under any written law;
(iv) the Government, a Provincial Council or a
local authority;
(v) any other source where repayment is
guaranteed by the Government;
(vi) a foreign government;
(vii) the International Bank for Reconstruction
and Development, the International
Development Association, the International
Finance Corporation, the Asian Development
Bank, or any other multilateral lending
institution; and
Finance Business Act, No. 42 of 2011 81
(viii) any other institution that may be specified
by the Board in this regard.
(b) a sum of money paid by way of a loan or
subscription to shares by one company to another
at a time when the first mentioned company is a
subsidiary of the other or both are subsidiaries of
another company or the first mentioned company
is the holding company of the other or the same
individual is the majority shareholder controller of
both of them;
(c) a sum of money which is paid by a person who, at
the time when it is paid, is a relative of the person
receiving it or is a director of the person receiving
it or is a relative of a director of the person
receiving it:
Provided however, that a sum of money
received, other than by way of borrowings or
subscription to shares, by a finance company within
the meaning of this Act shall amount to a deposit;
For the purpose of this paragraph, “a relative”
in relation to any individual means the spouse, the
children, or the parent of such individuals;
(d) a sum of money paid to a person authorised to carry
on insurance business under the Regulation of
Insurance Industry Act, No. 43 of 2000, for the
purpose of carrying on authorized insurance
business;
(e) subject to subsection (3), a sum of money paid as
subscription to shares;
(f) a sum of money subscribed to bonds or debentures
secured by the mortgage of any asset of a company
provided that the total value of such bonds or
debentures shall not exceed the market value of
such asset of the company;
82 Finance Business Act, No. 42 of 2011
(g) a sum of money subscribed to hybrid debt or
subordinated debt, provided that the underlying
debt instrument is a security listed on a stock
exchange licensed under the Securities and
Exchange Commission of Sri Lanka Act, No. 36 of
1987;
(h) subject to subsection (3), a sum of money paid by
way of security for the performance of a contract or
by way of security in respect of loss which may
result from the non-performance of a contract;
(i) subject to subsection (3), a sum of money subscribed
to hybrid debt or subordinated debt, the minimum
maturity period of which is not less than sixty
months;
(j) subject to subsection (3), a sum of money paid to a
person only on particular occasions on terms
specified in subsection (1); and
(k) a sum of money paid in a transaction, the nature of
which may be as specified by the Board by
notification in the Gazette.
(3) The Board may determine whether a sum of money
transacted as specified in paragraphs (e), (h), (i) and (j) of
subsection (2), is a deposit for the purposes of this Act, having
regard to the frequency of those occasions and to the
characteristics thereof.
Interpretation. 74. In this Act, unless the context otherwise requires-
“associate company” when used in relation to a
particular company means a company in which
such particular company holds not less than
twenty per centum and not more than fifty per
centum of the paid up ordinary share capital;
Finance Business Act, No. 42 of 2011 83
“Board” means the Monetary Board of the Central
Bank of Sri Lanka established under the
Monetary Law Act, (Chapter 422);
“capital” means the paid up capital of a company;
“capital funds” in relation to a finance company means
paid up capital and permanent free reserves and
includes, if so determined by the Board, the face
value of unsecured debentures and other loan
bonds, which in the event of the winding up of a
finance company or the return or reduction of
capital shall rank after and be subordinated to
deposits and other borrowings of the finance
company;
“Central Bank” means the Central Bank of Sri Lanka
established under the Monetary Law Act,
(Chapter 422);
“commercial bank” means a licensed commercial bank
within the meaning of the Banking Act, No. 30
of 1988;
“core capital” means the aggregate of the following:-
(a) issued and fully paid up ordinary shares or
common stock and in the case of partly paid
shares or stock the paid up amount:
Provided however, any shares issued
against reserves, surpluses, retained profits
which are not eligible to be included in core
capital in terms of directions issued by the
Board from time to time shall not be included
in core capital:
Provided further, in calculating core
capital in regard to a company applying for a
84 Finance Business Act, No. 42 of 2011
licence under this Act issued ordinary shares
shall be considered as paid up only if they
are issued for cash;
(b) issued and fully paid up non-cumulative, non
redeemable preference shares where the
payment of dividends could be reduced or
waived off permanently in the event of profit
being inadequate to support such payment
in part or full:
Provided however, in deciding core
capital in regard to a company applying for a
licence under this Act, issued non-
cumulative, non redeemable preference shares
shall be considered as paid up only if they
are issued for cash;
(c) the excess of issue price over the par value of
the ordinary shares, common stock or non-
cumulative, non-redeemable preference
shares, if applicable;
(d) amount lying to the credit of a reserve fund
maintained in terms of subsection (1) of
section 18 of this Act;
(e) disclosed reserves in the form of general or
other free reserves created or increased by
appropriation of retained earnings, share
premia or other realized surpluses as shown
in the last audited statement of accounts;
(f) accumulated profit or loss as shown in the
last audited statement of accounts:
Provided however, retained profits
arising from the revaluation of investment
properties, shall not be included;
Finance Business Act, No. 42 of 2011 85
(g) subject to any direction that may be issued
by the Board any profit earned or loss
incurred since the closing date of the last
audited accounts including any surplus or
loss after tax, arising from the sale of fixed
and long term investments; and
(h) any other capital element that meets the
requirements stipulated by the Board from
time to time;
“dependent child” shall mean a child who is under the
age of eighteen years; or a child under the age of
twenty five years who is unmarried and
unemployed, or a child, irrespective of age, who
suffers from a physical or mental disability that
renders him incapable of earning his livelihood;
“Director” means the head of the department of the
Central Bank to which the subject of finance
companies has been assigned and includes an
acting director;
“finance business” means the business of acceptance
of deposits, and
(a) the lending of money; or
(b) the investment of money in any manner
whatsoever; or
(c) the lending of money and the investment of
money in any manner whatsoever;
“finance company” means a company licensed under
this Act to carry on finance business;
“holding company” shall have the same meaning
assigned to the term in the Companies Act,
No. 7 of 2007;
86 Finance Business Act, No. 42 of 2011
“key management personnel” means a person having
authority and responsibility for planning,
directing and controlling the activities of any
finance company directly or indirectly
including any director (whether executive or
otherwise) of such company;
“legal age of majority” shall have the meaning
assigned to it under the Age of Majority
Ordinance (Chapter 66);
“liquid assets” means-
(a) cash in hand;
(b) balances in a current or deposit account in a
commercial bank, free from any bankers’ lien
or charge;
(c) Sri Lanka Government Treasury Bills and
Treasury Bonds, maturing within one year,
free from any lien or charge;
(d) Sri Lanka Government Securities maturing
within one year and free from any lien or
charge;
(e) Central Bank of Sri Lanka securities maturing
within one year and free from any lien or
charge;
(f) cash balance, if any, maintained with the
Central Bank of Sri Lanka; and
(g) such other assets as may be determined by
the Monetary Board of the Central Bank of
Sri Lanka;
“loan” includes any advance or the deferment of
payment on any sale or the deferment of payment
in a transaction relating to a hire purchase
agreement or a leasing agreement;
Finance Business Act, No. 42 of 2011 87
“Provincial Council” means a Provincial Council
established for a Province by virtue of Article
154A of the Constitution;
“qualified auditor” means—
(i) an individual who being a member of the
Institute of Chartered Accountants of Sri
Lanka or of any other Institute established
by law, possesses a certificate to practice as
an Accountant issued by the Council of such
Institute; or
(ii) a firm of Accountants of which each of the
resident partners being a member of the
Institute of Chartered Accountants of Sri
Lanka or of any other Institute established
by law possesses a certificate to practice as
an Accountant issued by the council of such
Institute;
“relative” in relation to an individual means spouse
or dependent child of such individual;
“subsidiary company” shall have the same meaning
assigned to the term in the Companies Act,
No. 7 of 2007;
“substantial interest” –
(a) in relation to a company, the holding of a
beneficial interest by another company or an
individual or his relative, whether singly or
taken together, in the shares thereof, the paid
up value of which exceeds ten per centum of
the paid up capital of the company or the
existence of a guarantee or indemnity for a
sum not less than ten per centum of the paid
up capital given by an individual or his
relative or by another company on behalf of
such company;
88 Finance Business Act, No. 42 of 2011
(b) in relation to a firm, the beneficial interest
held therein by an individual or his relative,
whether singly or taken together, which
represents more than ten per centum of the
total capital subscribed by all partners of the
firm or the existence of a guarantee or
indemnity for a sum not less than ten
per centum of that capital given by an
individual or the spouse, parent or child of
the individual on behalf of such firm;
“wrongful gain” means gain by dishonest, fraudulent
or unlawful means of property to which the
person gaining is not legally entitled;
“wrongful loss” means the loss by dishonest, fraudulent
or unlawful means of property to which the
person losing it is legally entitled.
Sinhala text to 75. In the event of any inconsistency between the
prevail in case Sinhala and Tamil texts of this Act the Sinhala text shall
of inconsistency.
prevail.

Finance Business Act, No. 42 of 2011 89
Annual subscription of English Bills and Acts of the Parliament Rs. 885 (Local), Rs. 1,180
(Foreign), Payable to the SUPERINTENDENT, GOVERNMENT PUBLICATIONS BUREAU, DEPARTMENT OF
GOVERNMENT INFORMATION, NO. 163, KIRULAPONA MAWATHA, POLHENGODA, COLOMBO 05 before 15th
December each year in respect of the year following.
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