The Enforcement of Security Interest and Recovery of Debt Laws and Miscellaneous Provisions (Amendment) Bill, 2016 (the "Debt Recovery Bill") passed by the Lok Sabha on August 1, 2016 and the Rajya Sabha on August 9, 2016 is a welcome reposition of the existing framework dealing with recovery of debts due to banks and financial institutions. It paves the way for much needed reforms thereby streamlining the process of creditors individually taking action against the defaulting debtor.
With a staggering 7,686 willful loan defaulters, 69,659 pending cases, a statistic that was further compounded by the much publicized case of Vijay Mallya, where the liquor baron defaulted on amount close to 9,400 crores, the Union Finance Minister, Arun Jaitley introduced the Debt Recovery Bill in the Parliament back in May of this year.
The Debt Recovery Tribunals (DRT) were initially set up by the Recovery of Debts due to Banks and Financial Institutions Act, 1993 for the purpose of speedy recovery of debts due to banks and financial institutions. The idea behind setting up of DRTs was to transfer cases out of the civil courts and provide technical expertise. To begin with, DRT's were successful to a large extent in recovering substantial parts of bad debts. However, this hurried piece of legislation had some lacunas and their progress began to deteriorate due to delaying tactics by large and powerful borrowers, limited accountability and inadequate infrastructure. In order to address these shortcomings, the Union Finance Minister introduced the Enforcement of Security Interest and Recovery of Debts Laws and Miscellaneous Provisions (Amendment) Bill, 2016 (the "Debt Recovery Bill") in the Lok Sabha on May 11, 2016 to strengthen the DRTs and expedite the resolution of stressed assets.
DEBT RECOVERY BILL - KEY HIGHLIGHTS
The Debt Recovery Bill seeks to amend four laws: (i) Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI), (ii) Recovery of Debts due to Banks and Financial Institutions Act, 1993 (RDDBFI), (iii) Indian Stamp Act, 1899 and (iv) Depositories Act, 1996.
AMENDMENTS TO SARFAESI ACT
Time limit for District Magistrate: The time limit of thirty (30) days, subject to extension of sixty (60) days, has been provided for a District Magistrate to assist a secured creditor to take possession over a collateral, against which a loan has been provided, upon a default in repayment. This allows creditors to sell the collateral security and recover the outstanding debt without the intervention of a court or a tribunal.
Management of Company: The Debt Recovery Bill empowers the District Magistrate to assist the banks to convert their outstanding debt into equity shares and hold a stake of 51% or more in the company, thereby taking over the management of a company in case of default of the company to repay its loans.
Central Database: The Debt Recovery Bill creates a central database to integrate records of property registered under various registration systems including registrations made under Companies Act, 2013, Registration Act, 1908 and Motor Vehicles Act, 1988. The move will provide a better picture of assets to the existing and potential creditors.
Sponsor of an ARC: The Debt Recovery Bill requires the Reserve Bank of India (RBI) to determine a 'Fit and Proper' criteria for a sponsor of an ARC to have a majority holding or a controlling stake in the company.
Empowering the Reserve Bank of India: The Debt Recovery Bill empowers the Reserve Bank of India to conduct an audit and carry out an inspection of the ARC. The RBI may penalize a company if the company fails to comply with any directions issued by it.
Registration of collateral with Central Database: The Debt Recovery Bill provides that unless collateral is registered with the central registry, secured creditors will not be able to take possession over it.
Priority of creditors: The Debt Recovery Bill provides that the creditors, after registration of security interest with the Central Registry, will have priority over others in repayment of dues.
Power of DRT to restore assets: The Act allows the DRT to restore a secured asset or management of a business to the borrower, after examining facts related to the case. The Bill expands the provision of allowing the DRT to restore a secured asset or management of a business to the borrower to any person other than a borrower after examining certain circumstances related to tenancy or lease right before restoring possession of such secured assets to any person.
AMENDMENT TO INDIAN STAMP ACT
Exemption of Stamp Duty: Concerns relating to the functioning of Asset Reconstruction Companies (ARCs) have been expressed in the past years relating to limited number of buyers and capital entering the ARC business market due to high transaction costs involved in the transfer of assets in favour of ARCs due to payment of high stamp duties.
Therefore, the Debt Recovery Bill seeks to amend the Indian Stamp Act, 1899 thereby exempting the payment of stamp duty on transfer of financial assets in favour of ARCs. The benefit will be applicable only if the asset has been transferred for the purpose of securitization or reconstruction.
AMENDMENTS TO RDDBFI ACT
Jurisdiction: The Bill seeks to empower the banks to file cases in tribunals having jurisdiction over the area of bank branch where the debt is pending.
Retirement Age increased: The retirement age of Presiding Officers of the DRTs increased from 62 to 65 years and that of the Chairpersons of the Appellate Tribunals from 65 to 67 years. Thus, the bill proposes to make the officers eligible for reappointment.
Electronic form: The bill provides that certain procedures including presentation of claims by parties and summons issued by tribunals under the Act will be undertaken in electronic form.
Modes of Debt Recovery: The Bill inserts a provision which allows the creditor to take possession of a collateral security against which the debt was given. The Committee observed that lending against intangible assets (such as goodwill of a company) is evolving, and the central government should also be allowed to notify other modes of debt recovery.
Presiding Officers and Chairmen: The Bill allows Presiding
Officers of tribunals established under other laws (such as the
National Company Law Tribunal) to also perform functions of
Presiding Officers of DRTs. Similarly, it allows Chairmen of
Appellate Tribunals established under other laws to additionally
perform functions of Chairmen of DRATs.
Close at the heels of the announcement made in the Union Budget in February 2016, the Government had released Press Note 4 of 2016 dated May 6, 2016 liberalizing foreign entry norms in asset reconstruction companies (ARCs) registered with the Reserve Bank of India (RBI) by allowing 100% foreign direct investment (FDI) under the automatic route in ARCs. It had then proposed amendments to bring the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI) in sync with the dispensations provided under Press Note 4 by introducing the Enforcement of Security Interest and Recovery of Debt Laws and Miscellaneous Provisions (Amendment) Bill, 2016 (Proposed Amendment) in the Lower House of Parliament.
The Rajya Sabha finally passed the Debt Recovery Bill on August 9, 2016 thereby strengthening the DRTs and enabling computerized processing of cases to expedite resolution of stressed assets. The overhaul is a welcome change which will help banks to recover over INR 8 lakh crore of stressed assets and bad loans faster. The changes will allow corporate bond and debenture trustees to use provisions of the loan foreclosure law. The Bill is important for implementation of the Bankruptcy Code as well. The object of the amendments proposed in the Bill is to improve the ease of doing business and facilitate investment leading to higher economic growth and development.
While the Bankruptcy Code provides for collective action of creditors, the proposed amendments to the SARFAESI and DRT Acts seek to streamline the processes of creditors individually taking action against the defaulting debtor. In view of the ongoing problem of Vijay Mallya's debt recovery and Financial dispute wherein the banks realized that they could not recover from the assets pledged by Vijay Mallya, the Bill recognizes and addresses the need of the Central Government to recover the debts from supplementary sources such as intangible assets (such as goodwill, Intellectual Property Rights) of the company.
The impact of these changes on debt recovery scenario in the country, and the issue of rising NPAs will only become clear in due course of time. Though the effort is commendable, it all boils down to systematic and appropriate implementation of the provisions.