Calcutta, March 8: Non-bank finance companies (NBFCs) have welcomed the Centre’s decision to allow access to the Sarfaesi Act, which facilitates the recovery of non-performing assets without court intervention.
Sarfaesi, or the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, enables banks to expedite recovery and improve credit behaviour.
The NBFCs registered with the RBI and having an asset size of Rs 500 crore and above (considered as systemically important) will be eligible to access the provisions of the act.
According to industry players, the move will create a level-playing field with banks. It will not only help to improve the pace of recovery of bad assets but also keep a check on non-performing asset (NPA) levels.
CARE ratings has estimated the gross NPA level of the NBFCs to be in the range of 5.8-6.1 per cent of advances by 2018 from around 3.4 per cent in 2014.
The government’s decision comes after the RBI last year announced tougher provisioning and liquidity norms for the NBFCs to bring them on a par with banks.
The RBI, however, did not allow the NBFCs access to the Sarfaesi Act in its revised framework.
The NBFCs as well as industry associations had, therefore, asked the finance ministry to consider their demand for access to the act.
“Allowing NBFCs access to the Sarfaesi Act is a big plus for players like us. All this while, NBFCs lacked a level-playing field vis-à-vis banks,” said Hemant Kanoria, chairman and managing director of Seri Infrastructure Finance.
He said the asset quality of the sector had been under stress over the last few years because of a weak operating environment and recovery remained a challenge.
The NBFCs so far had to depend on civil courts where litigation went on for years.
Under the Sarfaesi Act, the total time taken to recover the loan will come down to a few weeks or months, depending on the cases, he said.
Laxmi Narsimham, chief financial officer of Magma Fincorp, said the decision would benefit NBFCs engaged in immovable properties such as mortgage, infrastructure finance and small and medium enterprises more than those that finance movable assets such as commercial vehicles and construction equipment.
“The recovery time will certainly come down to a great extent,” he said.
Sri C P S Rama Chary garu, Practiced law in City Civil Courts, Industrial Tribunal & High Court of AP for about 9 1/2 years. Served in Law Department of Andhra Bank for about 23 years. Retired Presiding Officer ( DRT3 at Chennai ).
||STAGE WISE ACTION
||Sarfaesi Act poroceeds on the basis that borrower created security interest in favour of bank and his liability stood crystalised on account of his default and his account is classified as NPA
||Sec.13(2): Where any borrower, who is under a liability to a secured creditor under a security agreement, makes any default in repayment of secured debt or any instalment thereof, and his account in respect of such debt is classified by the secured creditor as non-performing asset, then, the secured creditor may require the borrower by notice in writing to discharge in full his liabilities to the secured creditor within sixty days from the date of notice failing which the secured creditor shall be entitled to exercise all or any of the rights under subsection(4)
||Initiation of action begins on service of demand notice
||The opinion Supreme Courtin Mardia Chemicals Ltd. &Anr. Vs. Union of India &Ors.:AIR 2004 (4) SCC 311)that the demand notice is show cause is clarified by Supreme Court in (Transcore Vs. Union of India &Anr. AIR 2007 SC 712) as initiation of action
||How to calculate the quantum of claim amount in the demand notice
||Please ensure that, the balance outstanding in the bank’s book and the un-debited portion of interest accrued but not reflected in the bank’s book (on account of status of the loan account as NPA) are added and incorporated in the demand notice. The Authorised Officer (for short “A.O.”) need not approach any Court or Tribunal for determination of the quantum of amount of claim.
||Demand notice and its contents:
||i). Please ensure that the demand notice covers all the details of the facilities granted to the borrower(s), dues and securities and measures to be taken in the event of default as stated in the guide and all the borrowers are addressed correctly as per the records.ii). The Act or the Rules have not prescribed any format of demand notice.
||Whether action under RDDB & Fi Act 1993 or a suit/ claim already filed in civil court/drt/transferred from civil court, saves limitation for initiating action under SARFAESI Act
||Action under RDDB & FI Act 1993 or a suit/claim already filed in civil court/DRT/transferred from civil court, does not save limitation for taking action under SARFAESI Act.
||Whether action initiated under SARFAESI Act 2002 saves limitation for filing claim for recovery of the unrealised portion of debt.
||How many demand notices a secured creditor can issue
||There is no bar. Any number of notices can be issued provided the security interest sought to be enforced is not barred by limitation.
||No application. Action under the Act can be taken any number of times if the secured debt or security interest is not barred by limitation.
||Service of demand notice: Please note changes in the addresses of the borrowers if any before addressing the demand notice. Change of address of borrower(s) must be obtained in writing. Oral information is not reliable as it is construed as not born out of record. Servedemand notice as contemplated in Rule 3 of Security Interest (enforcement) Rules 2002.
||3(1) The service of demand notice shall be made by delivering or transmitting at the place where the borrower or his agent, empowered to accept the notice or documents on behalf of the borrower, actually and voluntarily resides or carries on business or personally works for gain, by registered post with acknowledgement due, addressed to the borrower (or his agent empowered to accept the service) or by Speed Post or by courier or by any other means of transmission of documents like fax message or electronic mail service.
||ii). Procedure where borrower avoids service of demand notice or for any reason notice could not be served.
||Proviso to Rule 3(1):Where authorised officer has reason to believe that the borrower or his agent is avoiding the service of the notice or that for any other reason, the service cannot be made as aforesaid, the service shall be effected by affixing a copy of the demand notice on the outer door or some other conspicuous part of the house or building in which the borrower or his agent ordinarily resides or carries on business or personally works for gain and also by publishing the contents of the demand notice in two leading newspapers, one in vernacular language, having sufficient circulation in that locality.Evidence of this exercise is to be reduced to writing (record panchanama).
Preserve full page of the relevant Newspapers as the same are required in evidence.
||iii) Service of notice to wife of borrower is sufficient service
||If borrower’s marital relationship is not judicially separated or dissolved by order of competent court
||iv). If borrower is abody corporate
||Rule 3(2): Where the borrower is a body corporate, the demand notice shall be served on the registered office or any of the branches of such body corporate as specified under sub-rule (1).
||v). The manner of service of any notice Rule 3(3) of S.I.(E) Rules
||Rule 3(3): Any other notice [i.e. Possession notice under 13(4) of SARFAESI Act or Rule 8(6) of S.I.(E) Rules] in writing to be served on the borrower or his agent by authorised officer, shall be served in the same manner as provided in Rule 3.
||See Sec.2 (2) of SARFAESI Act.
||According to Section 2(1)(f) of SARFAESI Act “borrower” means any person who has been granted financial assistance by any bank or financial institution or who has given any guarantee or created any mortgage or pledge as security for the financial assistance granted byany bank or financial institution and includes a person who becomes borrower of a securitisation company or reconstruction company consequent upon acquisition by it of any rights or interest of any bank or financial institution in relation to such financial assistance
According to Sec.2(2) of the Act the Words and expressions used and not defined in this Act but defined in the Indian Contract Act, 1872 (9 of 1872) or the Transfer of Property Act, 1882 (4 of 1882) or the Companies Act, 1956 (1 of 1956) or the Securities and Exchange Board of India Act, 1992 (15 of 1992) shall have the same meanings respectively assigned to them in those Acts.
||Inspection of secured assets
||It is advisable to inspect the secured asset(s) and find out its/their status / situation.
||Computation of 60 days
||The date of service of the demand notice or publication of the demand notice after affixing it (as stated in the proviso to Rule 3(1) of S.I.(E) Rules) and the 60th day to be expired are to be excluded for computing the 60 days.
||Representation/Objection: against the demand notice Sec13 (3A).
Communication of reply is mandatory in both the events.
|After service of the notice if the borrower makes any representation or objection against the demand notice the A.O. should immediately send it to the secured creditor who in turn should send a reply or advise the A.O. to communicate reply to the borrower within “fifteen days” (recent amendment substituted for one week) of receipt of such representation or objection by registered post with AD or Courier. Evidence of communication is to be preserved for evidence.
Representation: seeking for extension of time for payment or OTS.
Objection: Challenging the validity of the demand notice on various grounds.
||PROCEDURE FOR TAKING POSSESSION OF MOVABLE SECURED ASSETS
||Taking symbolic possession of movable secured assets is not permissible in law. Procedure for taking possession of movable secured assets is different from the procedure relating to the immovable secured assets.
||i). In case the secured assets are movable, the A.O. has to take possession of them in the presence of two witnesses and draw a panchanama, as nearly as possible as given in Appendix-I [ See Rule 4(2) of S.I.(E) Rules](Evidence to be preserved).
||ii). After taking possession of the movable secured assets, the A.O. has to record ‘Inventory Report’ as per Appendix–II [See Rule 4(1) of S.I.(E) Rules] and deliver it or caused to be delivered it to the borrower any person entitled to receive on behalf of borrower. In the inventory report the A.O. has to mention the name of the person appointed by him in whose custody the secured assets are preserved.
||To take care to preserve movable secured assets which owner of ordinary prudence would take. In case of factories or stores the secured creditor has to entrust the same for custody of an authorised person or approved re-possessors / security persons.
||A.O. has to take insurance cover if necessary until sale is completed. Comprehensive policy with a clause to pay the sum assured to the company which would discharge the insurance company against adverse claim of borrower if any.
||CIRCUMSTANCES FOR IMMEDIATE SALE
||There are two circumstances for immediate sale of movable secured assets.1. If movable secured assets are subject to speedy or natural decay
2. or the expense of keeping such property in custody is likely to exceed its value, the authorised officer may sell them at once.
(Issue sale notice but need not wait for expiry of 30 days of the sale notice).
AO has to record reasons if necessary by drawing a panchanama in this regard.
||PLANT AND MACHINERY ATTACHED TO EARTH
||Plant and machinery should be treated as part of the immovable secured asset if they are fastened to the earth with cement and concrete as on the date of taking possession. In the possession notice (Appendix-IV) the same must be mentioned specifically giving brief description of the particulars of the machinery vide separate annexure attached to it.
||PLANT AND MACHINERY IF DETACHED FROM EARTH
||If Plant and machinery are detachable from earth as on the date of taking possession then A.O. has to record ‘Inventory Report’ as per Appendix–II [See Rule 4(1) of S.I.(E) Rules] and deliver it or caused to be delivered it to the borrower any person entitled to receive on behalf of borrower. In the inventory report the A.O. has to mention the name of the person appointed by him in whose custody the secured assets are preserved.
||VALUATION OF MOVABLE SECURED ASSETS
||After taking possession under sub-rule (1) of rule 4 and in any case before sale, the authorised officer shall obtain the estimated value of the movable secured assets and thereafter, if considered necessary, fix in consultation with the secured creditor, the reserve price of the assets to he sold in realisation of the dues of the secured creditor.
||REQUIREMENTS TO MOVE CMM/DMFOR ASSISTANCE
||1. Application making a request to render assistance.2. List with copies of documents.
3. Affidavit disclosing all the particulars.
||PROCEDURE IN CASE OF IMMOVABLE SECURED ASSETS
||Take possession of immovable secured asses (whether symbolic or physical), serve possession notice (Appendix-IV) under Sec.13(4) read with Rule 8(1) and(2), obtain acknowledgment of service, affix it to secured asset and publish it in two leading newspapers(one in vernacular) having sufficient circulation in the locality.
||If borrower refuses to acknowledge service of the possession notice, then the AO may send it by registered post /courier and preserve evidence and the same may be recorded at the foot of the possession notice and obtain signature of two witnesses.
||VALUATION OF IMMOVABLE SECURED ASSETS BY APPROVED VALUER
|Rule 8(5) of S.I.(E) Rules contemplates valuation of immovable secured assets by approved valuer before effecting sale.
||1.Registered under Sec.34AB of Wealth Tax Act 1957
2.Approved by the Board of the
||Valuation minus 15% or 20%See Swastic Agency Vs. State Bank of India
||SALE NOTICE-PERSONAL Rule 8(6)
||The Authorised Officer shall serve to the borrower a notice of thirty days for sale of the immovable secured assets, under sub-rule (5)
||SERVICE OF SALE NOTICE
||Sale notice must be served in the same manner as the demand notice and possession notice are served in the same manner as contemplated in the sub rule(1) of Rule 3 of S.I.(E) Rules 2002. See Rule 3(3) demanding the borrowers to pay the debt as demanded in the demand notice and possession notice together with interest
||PUBLICATION OF SALE NOTICE
||If the sale of such secured asset is being effected by either inviting tenders from the public or by holding public auction, the secured creditor shall cause a public notice in two leading newspapers one in vernacular language having sufficient circulation in the locality by setting out the terms of sale, which shall include, –(a) the description of the immovable property to be sold, including the details of the encumbrances known to the secured creditor
(a) the description of the immovable property to be sold, including the details of the encumbrances known to the secured creditor;
(b) the secured debt for recovery of which the property is to be sold;
(c) reserve price, below which the property may not be sold;
(d) time and place of public auction or the time after which sale by any other mode shall be completed;
(e) depositing earnest money as may be stipulated by the secured creditor;
(f) any other thing which the authorised officer considers it material for a purchaser to know in order to judge the nature and value
of the property.
||AFFIXTURE OF SALE NOTICE
||Every notice of sale shall be affixed on a conspicuous part of the immovable property and may, if the authorised officer deems it fit, put on the website of the secured creditor on the Internet.
||SALE BY OTHER METHODS
||Sale by any methods other than public auction or public tender, shall be on such terms as may be settled between the parties in writing.
||SALE CANNOT BE EFFECTED BEFORE EXPIRY OF THIRTY DAYS
||No sale of immovable property under these rules shall take place before the expiry of thirty days from the date on which the public notice of sale is published in newspapers as referred to in the proviso to sub-rule (6) or notice of sale has been served to the borrower.
||IDENTIFICATION OF SUCCESSFUL BIDDER
||A bidder who has offered highest prize shall be identified as successful bidder and he has to deposit 25% of the bid amount immediately
||CONFIRMATION OF SALE BY SECURED CREDITOR
||The sale shall be confirmed in favour of the purchaser who has offered the highest sale price in his bid or tender or quotation or offer to the authorised officer and shall be subject to confirmation by the secured creditor
||SALE BELOW RESERVE PRIZE
||No sale shall be confirmed, if the amount offered is less than the reserve price
||PAYMENT BY BIDDER IN WHOSE FAVOUR THE BID IS CONFIRMED
||The balance amount of purchase price payable shall be paid by the purchaser to the authorised officer on or before the fifteenth day of confirmation of sale of the immovable property or such extended period as may be agreed upon in writing between the parties.
||Bidder cannot appoint nominee for obtaining sale certificate
||FORFEITURE AND RESALE OF SECURED ASSET
||In default of payment within the period mentioned in sub-rule (4), the deposit shall be forfeited and the property shall be resold and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it may be subsequently sold.
||CONSENT OF BORROWER
||If the authorised officer fails to obtain a price higher than the reserve price, he may, with the consent of the borrower and the secured creditor effect the sale at such price.
||PARTIPATION OF THE BORROWER IN THE PROCESS OF SALE AS TENDERER/BIDDER
||Borrower can participate as tenderer / bidder to purchase the secured asset in the process of sale
||PARTIPATION OF THE BORROWER IN THE PROCESS OF SALE AS SPECTATOR OR WITNESS
||Borrower cannot participate as spectator or witness in the process of sale
||On confirmation of sale by the secured creditor and if the terms of payment have been complied with, the authorised officer exercising the power of sale shall issue a certificate of sale of the immovable property in favour of the purchaser in the Form given in Appendix V to these rules.(Note: The sale is caused under the Act in “as it is what it is and where it is basis. Hence the S.I.(E) Rules devised the sale certificate. Sale Certificate does not contain any indemnity clause as in case of sale deed and the rule “sans recourse” is not applicable to the sale i.e. the secured creditor is not answerable for any defects in the title to the secured asset sold). The sale certificate shall be the prima facie evidence of title of the purchaser
||The purchaser has to deposit the encumbrances if any in respect of the secured asset sold. Where the immovable property sold is subject to any encumbrances, the authorised officer may, if he thinks fit, allow the purchaser to deposit with him the money required to discharge the encumbrances and any interest due thereon together with such additional amount that may be sufficient to meet the contingencies or further cost, expenses and interest as may be determined by him.
||NOTICE TO PERSONS INTERESTED IN THE AMOUNT OF (CROWN DEBTS) ENCUMBRANCES
||On such deposit of money for discharge of the encumbrances, the authorised officer shall issue notices to the persons interested in or entitled to the money deposited with him and take steps to make, the payment accordingly
||NON PRIORITY DUES
||The following are not crown debts:1.Electricity dues
2.Custom & Excise Duty
3.Income Tax dues prior to creation of mortgage
||PAMENT OF SURPLUS TO THE PURCHASER
||Provided that if after meeting the cost of removing encumbrances and contingencies there is any surplus available out of money deposited by the purchaser such surplus shall be paid to the purchaser within fifteen day, from date of finalisation of the sale.
PTI Jan 28, 2015, 09.49PM IST
NEW DELHI: Supreme Court today upheld the constitutional validity of an amendment in the provision of the securitisation law which authorises the creditor to classify the account of a borrower as Non Performing Assets (NPA) in accordance with RBI guidelines and directions.
The apex court passed the judgement while dealing with the amended definition of the expression ‘NPA’ under Section 2(1)(o) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, 2002.
A bench of justices J Chelameswar and S A Bobde disposed of a bunch of petitions while directing the borrowers to pay costs to the respective creditors at one per cent of the amount outstanding on the date of the notice.
While upholding the validity of the amendment brought out in 2004, the bench said “the submission that the amendment of the definition of the expression ‘non-performing asset’ under Section 2(1)(o) is bad on account of excessive delegation of essential legislative function, in our view, is untenable and is required to be rejected”.
In its 52-page judgement, the apex court noted that to make any attempt to define the expression ‘non-performing asset’ valid for millions of cases of loan transactions of various categories, lent or made by different categories of creditors, would “not only be an impracticable task but could also simply paralyse the entire banking system”.
It would thereby produce results which would be counter- productive to the object and the purpose sought to be achieved by the Act, the court said.
“Realising the same, Parliament left it to the Reserve Bank of India and other Regulators to prescribe guidelines from time to time in this regard. The RBI is the expert body to which the responsibility of monitoring the economic system of the country is entrusted under various enactments like the RBI Act, 1934, the Banking Regulation Act, 1949.
Various banks like State Bank of India, National Housing Bank, which though are bodies created under different laws of Parliament enjoying a large amount of autonomy, were still subject to the overall control of the RBI,” the bench said.
By: Indu Bhan | New Delhi | January 29, 2015 5:00 am
Dismissing appeals filed by around 60 companies, the Supreme Court on Wednesday upheld the amendment to the Securitisation Act that gave power to every financial institution to decide a period after which a bad loan can be declared as a non-performing asset (NPA).
Before the 2004 amendment to the Securitisation Act and Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002 (Sarfaesi Act), RBI was the regulator for the banking, non-banking and securitisation institutions for deciding the period after which loans could be treated as NPA. Till 2004, RBI had set the NPA period for banks at 90 days and at 180 days for NBFCs.
Power Finance Corporation has a six-month period to classify an asset as an NPA. Besides, there are a few other institutions like Exim Bank, National Housing Bank under NHB Act, Nabard, Rural Electrification Corporation and Indian Railway Finance Corporation who are governed by their own regulations.
The promoters of around 60 companies had moved the Supreme Court questioning every financial institutions power to decide its own NPA period, saying it is a violation of right to equality. They had also challenged the RBI’s competence to regulate all banking and NBFCs in this regard. A bench headed by Justice J Chelameswar, while dismissing the appeals, asked the distressed companies to pay 1% of their loan outstanding amount to the lenders as costs.
The ruling came on two batches of petitions against the high courts of Gujarat and Madras as both the courts have differed on the issue. The Gujarat High Court while striking down the powers of different regulators in defining NPAs (under Section 2(1)(o)(a) of the Securitisation Act, 2002) had restored the power of the RBI to decide the period after which the bad loan can be called as an NPA.
However, the Madras High Court while rejecting petitions of various companies and individuals, including Deccan Chronicle Holdings and Marg, had upheld the constitutionality of Section 2(1)(o) of the Act and the guidelines issued by the RBI on the classification of assets as NPAs. Interestingly, Delhi High Court had upheld this 2004 amendment in the
Challenging the Gujarat HC’s April order that termed the decision of Parliament to take away the power from RBI as wrong, the promoters and companies had alleged that its prudential norms defy the right to equality under Article 14 of the Constitution of India.
Questioning the reason for the difference of NPA periods among financial firms, they argued that the 2002 Act should be applied uniformly across all borrowers and challenged the RBI guidelines on income recognition, provisioning and asset classification under prudential norms as being unconstitutional.
“The RBI guidelines are discriminatory, arbitrary, unreasonable and ultra vires the Securitisation Act and that the definition of the NPA as per RBI is contrary, distinct and contradictory to the definition of the NPA under the Central Act, and hence, the same is unconstitutional,” senior counsel Soli Sorabjee had argued.
Debtors of various banks who have appealed against the Madras HC’s order said that issuing guidelines relating to asset classification is essential legislative function and, therefore, it cannot be delegated. They argued that the guidelines issued by the RBI cannot be used for defining NPAs and there should be a separate legislation in this regard.
Sarfaesi Act gives powers to seize and desist to the banks under which the banks need to send a notice in writing to the defaulting borrower requiring it to discharge its liabilities within 60 days. In case the borrower fails to comply with the notice, the bank can take either take possession of the security for the loan, sell or lease or assign the right over the security or appoint any person to manage the same.
The Prime Minister, Shri Narendra Modi, today called upon India’s banking sector to establish banks which rank among the top banks of the world.
He was speaking at Gyan Sangam – the Bankers’ Retreat in Pune. He said it was perhaps the first time that banks had given tasks to the Prime Minister through a presentation. He said the Gyan Sangam reflected team spirit and a collective will to address issues. He described Gyan Sangam as a unique initiative.
He said the objective in this bankers’ retreat was to find solutions to problems, and this was the first step towards catalyzing transformation. He said informal discussions helped achieve meeting of minds, which in turn enabled strategic goal setting.
The Prime Minister appreciated the efforts of the banks in successfully implementing Pradhan Mantri Jan Dhan Yojana. He said this is going to have multiple effects. He said the Jan Dhan Yojana would help redefine goal setting among banks, due to enhanced confidence levels following the success of the programme.
The Prime Minister said 7 crore families had benefited from direct cash transfers of LPG subsidy in just three days since January 1st. He said this represented one-third of all families India. He said such achievements should boost confidence.
The Prime Minister said the banking sector of a country mirrors its economic rise. Japan and China had banks in the top ten banks of the world during their economic rise.
The Prime Minister said banks would be run professionally, and there would be no interference. But accountability was essential. He said the Government had no vested interest, and public sector banks can derive strength from this fact.
However, the Prime Minister said India is a democracy. He said he is against political interference, but supports political intervention, in the interest of the people. He said political intervention will enable the voice of the common man to reach such institutions.
The Prime Minister said this also highlighted the issue of poor financial literacy in the country. He said today even the common man needed financial literacy. He called upon banks to take the lead in encouraging competitions on financial literacy in schools, much like mock Parliament competitions.
The Prime Minister said banks should develop dedicated teams to fight cyber crime.
The Prime Minister said that with 81% of branches and 77% of deposits, the net profits should improve from current levels of 45%.
The Prime Minister called for developing common strengths among the 27 public sector banks. He suggested this could be done in areas such as software, and advertising. He gave the example of number portability in the telecom sector in this regard. He said this would improve the customer-centric focus of banks. The Prime Minister said public sector banks, as a team, should also be conscious of the direction in which the country is moving, and work towards simplifying procedures to facilitate the common man.
The Prime Minister also called upon banks to trust the common man.
The Prime Minister said the Swachhta Abhiyan has caught the imagination of the younger generation. He called upon each public sector bank to help develop 20,000 to 25,000 Swachhta entrepreneurs. He also asked banks to prioritize loans to students as this would be a very productive investment for the country. He said the country needs skill development for its youth in a big way, and banks need to take the lead in this.
The Prime Minister asked public sector banks to set goals for the 75th anniversary of independence in the country in 2022. He said he had resolved to provide housing for all by 2022, and banks had a huge opportunity here, as 11 crore houses were required.
The Prime Minister said banks should redefine parameters for success. For instance, let them prioritize loans to enterprises which will generate more employment, he said.
The Prime Minister called for an end to lazy banking, and asked banks to take on a proactive role in helping the common man.
The Prime Minister said that as part of Corporate Social Responsibility, banks should take up one sector each year to play a positive role.
Governor of Maharashtra Shri Vidyasagar Rao, Chief Minister of Maharashtra Shri Devendra Fadnavis, Finance Minister Shri Arun Jaitley, MoS Finance Shri Jayant Sinha, RBI Governor Shri Raghuram Rajan, and Secretary Financial Services Shri Hasmukh Adhia were present on the occasion.
United Bank of India (UBI) declared Kingfisher Airlines, Mallya himself and three directors of the company – Subhash R Gupte, Ravi Nedungadi and Anil Kumar Ganguly – as wilful defaulters.
Kingfisher Airlines in July 2014 moved the Calcutta High Court, two months after the bank had in May 2014 identified it and Mallya as wilful defaulters. The court last week dismissed the plea, paving the way for UBI to declare the company and its chairman wilful defaulters.
Last Tuesday the Supreme Court on rejected a plea by Kingfisher Airlines against being declared a wilful defaulter, saying it has become infructuous as the Grievance Redressal Committee of Union Bank of India has already passed an order.
A borrower is classified as a wilful defaulter in any of the following events:
- When there is a default in repayment obligations by the unit (company/individual) to the lender even when it has the capacity to honour the said obligations. There is deliberate intention of not repaying the loan.
- When the funds have been siphoned off and not been utilized for the purpose for which it was availed. Further, no assets are available which justify the usage of funds.
- When the asset bought by the lenders funds has been sold off without the knowledge of the bank/lender.
- The funds are not utilized for the specific purpose for which finance was availed but have been diverted for other purposes.
- Further, in cases where a letter of comfort or guarantees furnished by group companies of wilfully defaulting units are not honoured when they are invoked by the lender, then such group companies are also considered to be wilful defaulters.
The decision to tag a borrower as a willful defaulter is the harshest step a bank can take upon any borrower.
Identifying and Declaring wilful defaulters
Bankers have an internal committee, headed by an executive director that examines cases of wilful defaults. The credit monitoring or recovery departments give their reports on borrowers deemed to have defaulted wilfully to this committee. The committee examines the efforts made by the bank to recover the dues, the repayment capacity of the borrower, end use of the funds before identifying an individual as wilful defaulter. The decision taken on classification of wilful defaulters is well documented and supported with evidence
Once a borrower is identified as a wilful defaulter, the bank sends him/her a notice with the reasons for the same. The borrower is generally given 15 days to make a representation against the decision to the grievance redressal committee. This committee is either headed by the chairman and managing director or by the executive director who is not part of the panel on identification of wilful defaulters. The bank declares a borrower wilful defaulter if he fails to offer a proper explanation or avoids the grievance redressal committee hearing repeatedly despite notices.
Banks also send their list of wilful defaulters to RBI, Securities and Exchange Board of India (Sebi) and Credit Information Bureau India (Cibil). This is aimed at preventing wilful defaulters from accessing capital markets and borrowing from other banks and financial institutions. The penal measures include the following:
- No additional facilities will be granted to listed wilful defaulters by banks and financial institutions
- Promoters of companies that have been identified for siphoning of funds, misrepresentation of accounts and fraudulent transactions will be debarred from institutional finance for floating new ventures for a period of five years
- Legal process against wilful defaulters will be initiated. Lenders may initiate criminal proceedings also
- Banks will adopt a proactive approach for a change of management of the willfully defaulting borrower unit.
- Wilful defaulters will not be allowed to take up board positions in any company
Banks need not report cases
- Where outstanding amount due is below Rs 25 lakh and
- Where lenders/Banks have agreed for a compromise settlement and the borrower has fully paid the compromised amount.
ICRA an independent investment information and credit rating agency estimates that public sector bank’s gross non-performing assets (NPAs) to stand at up to 4.7 per cent at the end of this financial year, compared with 4.4 per cent at the end of FY14 it expects public sector banks’ gross NPAs to be at 4.4-4.7% as on March 31, 2015.
Fresh non-perfoming assets or NPAs of public sector banks are estimated to be at 3.5% of advances during the quarter ended June’14, according to a study by ratings firm Icra. Their gross NPAs increased by 20 basis points (bps) to 4.6% during the quarter. Asset quality of private sector banks too continued to remain under pressure as their NPAs also increased by 20 bps to 2.0% during the quarter.
However, there was a significant drop in the number of fresh cases of loans being refered to the corporate debt restructuring or CDR Cell for restructuring during the first of FY’15.
“The rate of generation of fresh NPAs remained elevated for public sector banks (3.5 per cent) and, as result, their gross NPAs increased by 20 basis points to 4.6 per cent in the first quarter of FY15. During the same quarter, the NPAs of private banks increased by 20 basis points to two per cent,”
The Icra study notes that the level of NPAs in the banking system gets understated as a sizeable amount of loans are sold to asset reconstruction companies or ARCs. It says that the gross NPA percentage would have been higher by 20-30 bps if there were no sales to ARCs . But sale of NPAs to ARCs is expected to decline in the rest of the current financial year ending March’15 as the Reserve Bank of India has prescribed that ARCs must invest and hold 15% in Security Receipts (SRs) as against 5% earlier.
The Department of Financial Services in the finance ministry is considering to incorporate in the Sarfaesi Act the ‘principle of first to register’ a lien on the assets of defaulting companies.
The registration has to be with the Central Registry of Securitisation Asset Reconstruction and Security Interest of India (Cersai) set up to eliminate instances of multiple lending on the same property.
According to the changes proposed by the government in the Sarfaesi Act, whoever registers their charge on an asset first with the designated central registry will get priority over others in recovering the dues by attaching the assets. Since lenders practically are the first to do such registration (at the time of giving the loan), this would in most cases lead to their lien getting precedence.
The Income Tax Departments role in Recovery by lenders
Currently, the out-of-the-court mechanism under Sarfaesi Act allows secured creditors to take possession of the assets of a firm under liquidation if their dues are not paid within two months of raising demand. However, in practice, tax authorities and municipal corporations often attach the assets of a defaulting company beforehand, which comes in the way of lenders recovering their dues.
The tax departments draw the powers to attach from their respective laws – Income Tax Act, Central Excise Act and the like. As per the new proposal, the provisions of Sarfaesi Act of 2002, which is a relatively new law, will prevail over those of older statutes and will effectively protect the interest of lenders without any amendment to any other law.
The proposed amendments also include a provision to classify central and state authorities handling income tax, excise and value added tax as well as municipal corporations as secured creditors, so that the moment a taxpayer defaults, the authorities would need to register their charge on the assets. However, if the company has already taken a loan, the lender would have already registered his charge on the assets, giving the tax authorities only second charge on the assets.
Currently, secured creditors include banks, financial institutions, debenture trustees appointed by banks, securitisation companies, asset reconstruction companies and any other trustee holding security. “These changes to the Sarfaesi Act will be a huge leapfrog in terms of reforms in this area. States which agree to this provision may soon be perceived as more investor friendly and therefore would see greater lending by banks and financial institutions,” said an expert in bankruptcy laws.
The changes are in line with international best practices followed by the UK, US, Australia and Canada.
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