Need for the new law
Financial indiscipline is the hallmark of Indian industry. The ever-growing Non Performing Assets ('NPA'), a fine euphemism coined to describe the bad loans, prompted the passing of the Recoveries of Debts due to Banks and Financial Institutions Act, 1993 whereby a special Debt Recovery Tribunal ('DRT') was set up for the recovery of NPA. However, this could not speed up the recovery on one hand and on the other the strict civil law requirements rendered almost futile the attachment and foreclosure of the assets given as security for the loan. Further, the balance sheets of the banks and financial institutions were turning red due to heavy mandatory provisions for NPAs .
Realizing that every fifth borrower is a defaulter, the Government was under pressure to make adequate provisions for the recovery of the loans and also to foreclose the security. The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ('the Securitisation Act') aims to achieve these twin objectives besides providing for a broad legal framework for asset securitisation and asset reconstruction.
Scheme of the Act
The Securitisation Act contains 41 sections in 6 Chapters and a Schedule. Chapter 1 contains 2 sections dealing with the applicability of the Securitisation Act and definitions of various terms. Chapter 2 contains 10 sections providing for regulation of securitisation and reconstruction of financial assets of banks and financial institutions, setting up of securitisation and reconstruction companies and matters related thereto. Chapter 3 contains 9 sections providing for the enforcement of security interest and allied and incidental matters. Chapter 4 contains 7 sections providing for the establishment of a Central Registry, registration of securitisation, reconstruction and security interest transactions and matters related thereto. Chapter 5 contains 4 sections providing for offences, penalties and punishments. Chapter 6 contains 10 sections providing for routine legal issues.
The salient features of the Securitisation Act are as under:
- Incorporation of Special Purpose Vehicles viz. Securitisation Company and Reconstruction company.
- Securitisation of Financial Assets.
- Funding of securitisation.
- Asset Reconstruction.
- Enforcing security interest i.e. taking over the assets given as security for the loan.
- Establishment of Central Registry for regulating and registering securitisation transactions.
- Offences & Penalties.
- Boiler - plate provisions.
- Dilution of provisions of SICA.
- Exempted transactions
Incorporation & Registration of Special Purpose Companies
The Securitisation Act proposes to securitise and reconstruct the financial assets through two special purpose vehicles viz. 'Securitisation Company ('SCO')' and 'Reconstruction Company (RCO)'. SCO and RCO ought to be a company incorporated under the Companies Act,1956 having securitisation and asset reconstruction respectively as main object.
The Securitisation Act requires compulsory registration of SCO and RCO under the Securitisation Act before commencing its business. Further a minimum financial stability requirement is also provided by requiring SCO and RCO to possess owned fund of Rs.2 crore or up to 15% of the total financial assets acquired or to be acquired. The RBI has the power to specify the rate of owned fund from time to time. Different rates can be prescribed for different classes of SCO and RCO. Existing SCO and RCO are also required to get registered under the Securitisation Act. The application for registration will have to be made to RBI.
The SCO or RCO which has obtained the registration certificate under the Securitisation Act shall be a Public Financial Institution within the meaning of Section 4A of the Companies Act, 1956.
Besides it's core business of securitisation and asset reconstruction a SCO/RCO may perform the following functions:
- Acting as recovery agent on behalf of any bank or financial institution.
- Acting as manager1 to manage the secured assets the possession of which has been taken over by the secured creditor.
- Acting as receiver if appointed by any Court or Debt Recovery Tribunal.
A SCOO or RCOO, which is carrying on any other business other than that of securitisation or asset reconstruction before commencement of the Securitisation Act, has to discontinue such other business within one year from the commencement of the Securitisation Act.
Securitisation of financial Assets
Under the Securitisation Act only banks and financial institutions can securitise their financial assets pertaining to NPAs with a securitisation company. Securitisation means, according to the Securitisation Act, acquisition of financial assets by any securitisation company or reconstruction company from any financial institution or banks. The necessary funds for such acquisition may be raised from 'qualified institutional buyers ('QIB')'2, by issuing security receipts3 representing undivided interest in such financial assets or other wise.
Financial assets are as under:
- A claim to any debt or receivables or part thereof, whether secured or unsecured.
- Any debt or receivables secured by, mortgage of, or charge on, immovable property.
- A mortgage, charge, hypothecation or pledge of movable property.
- Any right or interest in the security whether full or part underlying such debt or receivables.
- Any beneficial interest in property, whether movable or immovable, or in such debts, receivables, whether such interest is existing, future, accruing, conditional or contingent.
- Any financial assistance.
The much-needed legal framework for the securitisation of financial assets has been made by the enactment of the Securitisation Act. Securitisation of financial assets is a financial tool for the lenders to securitise their future cash flows from the secured assets and thus to release their funds blocked in them. In the hands of the SCO and RCO the secured assets become "merchandise", realisation of which gives them their return. This aspect brings in the much-needed expertise in adept handling in realisation of the secured assets. The legal impediments of normal civil law procedure to foreclose the mortgaged assets have thus been effectively removed by empowering the enforcement of the secured assets.
Securitisation of financial assets may take some time to fructify as it requires sound accounting principles also for which standards to be prescribed. In other words there should be accounting framework, as well, besides legal framework.
Acquisition of Rights and interests in financial assets.
This is the main part of securitisation. Section 5 provides for the acquisition of rights or interests in financial assets of any bank or financial institution by SCO / RCO, notwithstanding any thing contrary contained in any agreement or any other law for the time being in force, in either of the following manner:
- Issuing a debenture or bond or any other security in the nature of debenture, as consideration agreed upon by a SCO /RCO and bank/financial institution, incorporating therein the terms and conditions of issue.
- Entering into an agreement with bank/financial institution for the transfer of such financial assets on such terms and conditions as may be agreed upon.
Upon acquiring the financial assets from the bank/financial institution, the SCO/RCO steps into the shoes of the lender qua the borrower. The Securitisation Act has provided for all necessary rights and powers for SCO/RCO to realize the financial assets from the borrower.
Funding of Securitisation.
The SCO/RCO may raise the necessary funds, for the acquisition of financial assets, from the QIB by issuing a security receipt. Security receipt is exempted from compulsory registration under the Registration Act. Security receipts issued by any SCO or RCO shall be "securities" within the meaning of Section 2(h)(ic) of the Securities Contracts (Regulation) Act, 1956.
A Scheme of acquisition has to be formulated for every acquisition detailing therein the description of financial assets under acquisition, the quantum of investment, rate of return assured etc. Further separate and distinct accounts have to be maintained in respect of each scheme of acquisition. Realizations made from the financial assets have to be held and applied towards the redemption of investments and payment of assured returns.
In the event of non-realization of financial assets, the QIB holding not less than 75% of the total value of the security receipts issued, are entitled to call a meeting of all QIB and pass resolution and every such resolution is binding on the SCO/RCO.
A SCO or RCO may, according to the guidelines prescribed by RBI, carry out asset reconstruction in any one of the following manners:
- Taking over the management of the business of the borrower.
- Changing the management of the business of the borrower.
- Selling or leasing of a part or whole of the business of the borrower.
- Rescheduling of the payment schedule of the debt.
- Enforcing the security interest.
- Entering into settlement with the borrower for the payment of debt.
However, the above measures are subject to the provisions contained in any other law for the time being in force.
Enforcing 4Security Interest
The second objective of the Securitisation Act is to provide for the enforcement of security interest i.e. taking possession of the assets given as security for the loan. Section 13 of the Securitisation Act contains elaborate provisions for a lender (referred to as 'secured creditor') to take possession of the security given by the borrower. The sum and substance of the provisions are as under:
- The Lender has to send a notice of demand, giving details of the amount payable and the secured assets5 intended to be enforced in the event of non payment, to the defaulting borrower to discharge his liabilities.
- No borrower, after the receipt of the demand notice, shall transfer the secured assets in whatsoever manner without prior written consent from the lender.
- The Borrower has to discharge the liabilities within 60 days from the date of receipt of notice of demand.
- In the event of non payment of demand by the borrower, the lender may take any one or more of the following measures:
- Taking possession and / or management of the secured assets of the borrower with a right to transfer the same by way of lease, assignment or sale for realising the secured asset.
- Appointing any person as manager to manage the secured assets the possession of which has been taken over.
- Asking any person, who has acquired any of the secured assets from the borrower and owes money to the borrower, to pay so much of the money which is sufficient to pay the secured debt.
- Any transfer of secured assets made by the lender shall be deemed to be made by the owner of such secured asset.
- If the borrower pays all the dues together with all costs, charges and expenses incurred by the lender before the date fixed for the sale of the secured assets, the lender shall not transfer or sell the secured assets.
- When the are more than one lender or joint financing, the approval of lender(s) representing not less than 75% of the amount due is required to take any steps to enforce the security interest and such approval is binding on all the lenders.
- In the case of a corporate borrower under liquidation the sale proceeds from the secured assets shall be distributed as per Section 529A of the companies Act, 1956.
- In the event of lender opts to realise his security instead of relinquishing his security and proving his debt, may retain the sale proceeds of his secured assets after depositing the workmen's dues with the Liquidator.
- If the sale proceeds of the secured assets are not fully satisfying the debt due, the lender may file a claim before the DRT or before a competent court for the recovery of the shortfall.
- The lender also has an option to proceed against any of the guarantors or sell the pledged assets without taking any measures against the borrower.
- The lender can take the assistance of the Chief Metropoliton Magistrate or District Magistrate, as the case may be, in taking possession of the secured assets from the borrower.
- If any person, including the borrower, is aggrieved by any of the measures adopted by the lender, he may prefer an appeal to the DRT within 45 days by depositing atleast 75% of the claim of the lender. The decision of the DRT is further appealable to an Appellate Tribunal.
- The lender can initiate any proceedings to enforce the security interest unless his claim of the financial asset is made within the period prescribed under the Limitation Act, 1963.
Enforcement of security interest has taken a flying start. It is pertinent to mention here that ICCI (having NPA of Rs.6918 Crore) and IDBI (having NPA of Rs.13297 Crore) has already taken measures under the Securitisation Act, against 20 corporate houses, to enforce their security interest6. Many banks and financial institutions may follow suit.
Establishment of a Central Registry
The functions relating to securitisation, asset reconstruction and creation of security interest is sought to be administered and regulated by a Central Registry. Branch offices of the Central Registry may be established as and when the need is required. A Central Registrar shall head the Registry. The functions of the Central Registry are as under:
- Particulars relating to securitisation of assets, reconstruction of financial assets and creation of security interest are entered in a record called Central Register.
- The records can be kept in electronic form also i.e. in floppies, diskettes etc.
- The particulars of every transaction of securitisation, asset reconstruction or creation of security interest shall be filed within 30 days of the transaction by SCO, RCO or the lender as the case may be.
- Modifications made in the security interest registered with the Registry are to be filed within 30 days of such modification.
- Satisfaction of security interest is required to be filed with the Registry within 30 days of satisfaction.
- Records maintained at the Central Registry are open to inspection for any person on payment of the prescribed fee.
Offences & Penalties
Following are the offences prescribed under the Securitisation Act:
- Default in filing particulars of transactions relating to asset securitisation, asset reconstruction and creation of security interest.
- Default in filing particulars of modification.
- Default in giving intimation of particulars satisfaction.
- Non-compliance of RBI directives by SCO and RCO.
- Contravention, including attempt to contravene and abetting in contravention, of any of the provisions of the Securitisation Act or any rules made thereunder.
Following are the penalties prescribed in the Securitisation Act:
- For default in filing particulars of transactions mentioned above, every company and every officer of the company or every lender or officer of the lender shall be punished with a fine which may extend to Rs.5000/- for every day during which the default continues.
- For non-compliance of RBI directives every company and every officer of the company shall be punished with a fine which may extend to Rs.5, 00,000/-; and for continuing offence an additional fine of Rs.10, 000/- for every day during which the default continues.
- For contravention of any provisions of the Securitisation Act, the punishment is imprisonment for a term which may extend to one year, or with a fine, or with both.
Only a Metropolitan Magistrate or Judicial magistrate of the First Class has powers to take cognizance and try an offence under the Securitisation Act.
The following are the general provisions of the Securitisation Act:
- The matters, over which DRT or Appellate Tribunal has jurisdiction under this Securitisation Act, shall not be tried by any Civil Court.
- The provisions of the Securitisation Act shall override the provisions of other laws or any instruments.
- However the provisions of the Securitisation Act are in addition to and not in derogation of the following enactments:
- The Companies Act, 1956.
- The Securities Contracts (Regulation) Act, 1956.
- The Securities and Exchange Board of India Act, 1992.
- The Recovery of Debts due to Banks and Financial Institutions Act, 1993.
- The Central Government has powers to make rules for carrying out the provisions of the Securitisation Act.
- Since the Central Registry is not yet established, the provisions relating to the Central Registry shall be applicable after the setting up of the Central Registry.
Dilution of provisions of SICA.
The protective umbrella of registering with BIFR under Sick Industrial Companies (Special Provisions) Act 1985('SICA'), which has hitherto encouraged industrial sickness, has been removed by inserting two provisos in Section 15 of the SICA.they are as under:
- After the commencement of the Securitisation Act, where any SCO or RCO has acquired financial assets, no reference shall be made to BIFR.
- After the commencement of the Securitisation Act, any pending reference before BIFR shall come to an end where secured creditors, representing not less than 75% of the value of the amount outstanding, have taken any measures to recover their secured debts under the provisions of the Securitisation Act.
The following transactions are exempted from the provisions of the Securitisation Act:
- Lien on any goods, money or securities given under the Contract Act,1872.
- Pledge of movables under the Contract Act,1872.
- Creation of security on aircraft.
- Creation of security interest on vessel.
- Conditional sale, hire-purchase or lease in which no security interest is created.
- Rights of unpaid seller under the Sale of Goods Act,1930.
- Non attachable properties under the civil Procedure Code.
- Security interest on an amount less than or equal to Rs.1 lakh.
- Security interest created on agricultural land.
- Amount due is less than 20% of the principal sum and interest thereon.
1Under section 13(4) (c) of the Securitisation Act.
2A financial institution, insurance company, bank, State Financial Corporation, State Industrial Development Corporation, Trustee or any AMC on behalf of any mutual fund, provident fund, gratuity fund or pension fund, FIIs registered with SEBI or any other body corporate specified by SEBI.
3Security receipt means a receipt or other security, issued by a securitisation company or reconstruction company to any qualified institutional buyer pursuant to a scheme, evidencing the purchase or acquisition by the holder thereof, of an undivided right, title or interest in the financial asset involved in securitisation.
4"Security interest" means right, title and interest of any kind whatsoever upon property, created in favour of any secured creditor and includes any mortgage, charge, hypothecation, assignment other than those specifically excluded.
5"Secured asset" means the property on which security interest is created.
6Source: The Economic Times dt.19/07/2002.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.