SURF EASY WITH SARFAESI

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1 [2017] 78 taxmann.com 313 (Article) [2017] 78 taxmann.com 313 (Article) SURF EASY WITH SARFAESI RITUNJAY GUPTA Associate, J. Sagar Associates KUNAL MIMANI Associate, J. Sagar Associates 'Ease of Doing Business in India', a utopian concept till a few years ago, is attempted to be made a reality under Prime Minister Narendra Modi's governance. His speeches, including the one addressed to the nation from the ramparts of the Red Fort, to mark the 70th year of Independence for India, still reverberate in the corridors of business and commercial circles, boosting investor confidence and alleviating age old concerns of 'doing business' in India. The Enforcement of Security Interest and Recovery of Debt Laws and Miscellaneous Provisions (Amendment) Bill, 2016 (Bill No. 144 of 2016) and Act, 2016 (No. 44 of 2016) (referred to as the "Amendment Act" hereinafter)is a step in this direction. Shri Arun Jaitley, Union Cabinet Minister for Finance, in his speech delivered in the Lok Sabha on August 1, 2016, vehemently backing the Amendment Act remarked "We cannot have a banking system where people take loans and do not repay. The banks must also be empowered to take effective legal action against the defaulters.these two principle laws, Securitisation and DRT are also steps in that direction." The Statement of Objects and Reasons attached to the Amendment Bill lends testimony to the fact that the Amendment aims to ameliorate the execution of business activities and facilitate investment leading to higher economic growth and development. The Amendment Act, being approved by both Houses of Parliament and incorporating the recommendations of the Joint Parliamentary Committee, was published in the official Gazette of India on August 16, It amends the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ("SARFAESI Act") and the Recovery of Debts due to Banks and Financial Institutions Act, 1993 ("DRT Act"), and makes consequential changes to the Indian Stamp Act, 1899 and the Depositories Act, On September 1, 2016, the Central Government notified majority of the provisions of the Amendment Act. In this piece, we primarily focus on the alterations brought about in the SARFAESI Act and its impact on the current debt enforcement landscape. The SARFAESI Act, as enacted, focused on allowing secured creditors to take possession over a collateral against which a loan had been provided to the borrower, upon a default in repayment by the borrower. The objective of the Act was to facilitate speedier recovery of debts by banks and financial institutions. However, currently about 70,000 cases are pending before the Debt Recovery Tribunal involving more than 5 Lakh about:blank 1/5

2 Crores worth of Non Performing Assets ("NPA") and stressed assets. The present reforms assume significance in the above backdrop. Key Amendments Scope of Borrowers and Creditors Widened and Introduction of Debt Securities The scope of secured creditors has been expanded to include (a) debenture trustees appointed in respect of debt securities listed in accordance with SEBI laws (for example non convertible debentures and bonds), (b) banks and financial institutions that have interest in any asset given on hire or financial lease or conditional sale, and (c) banks and financial institutions that have a right to any intangible asset (such as intellectual property rights) or a license or assignment of such intangible asset. Importantly, on August 5, 2016, the Ministry of Finance specifically notified Non Banking Financial Companies ("NBFCs") with asset size of more than Rs. 500 Crores as 'financial institutions' to whom the SARFAESI Act will be applicable (i.e. being secured creditors under the Act). The definition of borrowers has been widened to include persons who have raised funds through issuance of debt securities. Integration of records of security interests with Central Registry for enforcement The Amendment Act seeks to integrate the registration records of property/ any security interest created on such property, including registration records maintained under the Companies Act, 2013, the Registration Act, 1908, the Merchant Shipping Act, 1958, the Motor Vehicles Act, 1988, the Patents Act, 1970 and the Designs Act, 2000, with the records of the Central Registry set up under sub section (1) of section 20 of the Act. All secured creditors will have to register the security interest(s) created in their favour by the borrower with the Central Registry, for enforcing the same under the Act. On registration, as aforesaid, the debts due to any secured creditor will be paid in priority to all other debts and other revenues, taxes etc. payable to the Central Government or State Government or local authority. Further, on registration, the claim of such secured creditor will have priority over any subsequent security interest created upon such property and over any transfer of such property following such registration. Enforcement of Security Interest and Role of District Magistrate/ Chief Metropolitan Magistrate A secured debt, relating to a borrower who has raised money through issuance of debt securities,will not have to be classified as an NPA before the same is enforced.on default, the debenture trustee will be entitled to enforce the security interest in the same manner as provided under the Act. Where a secured creditor(s) or an Asset Reconstruction Company ("ARC") has converted part of its debt into shares of the borrower company and thereby acquired controlling interest in the said company, such secured creditor(s) or ARC will not be required to restore management of the business to such borrower company upon payment of the balance debt. The SARFAESI Act allows secured creditors to take assistance of the District Magistrate/ Chief Metropolitan Magistrate, if so required, to take possession of the secured asset upon a default in about:blank 2/5

3 repayment of the loan. The Amendment now provides that this process will have to be completed within 30 days; or for sufficient reasons, within a period not exceeding 60 days. Jurisdiction of Debt Recovery Tribunal (DRT) The Amendment Act has very rightly amended the marginal heading of Section 17from 'Right to appeal' to 'Application against measures to recover secured debts'. Pertinently, Section 17 Application is the initial action which is brought before the Debt Recovery Tribunal ("DRT"), raising grievance against the action or measures taken by the secured creditor under Section 13. In fact, the proceedings under Section 17 of the Act are in lieu of a civil suit, which remedy is ordinarily available but for the bar under Section 34 of the SARFAESI Act. The Amendment clarifies that the DRT which would have jurisdiction for the purpose of Section 17 includes the DRT within the local limits of whose jurisdiction: (a) the cause of action arises, (b) the secured asset is located, or (c) the branch or any other office of a bank or financial institution maintaining an account in which the debt claimed is outstanding. Asset Reconstruction Company (ARC) Framework and Widening Control of RBI The individual definitions of 'securitisation company' and 'reconstruction company' have been substituted by and integrated into the definition of 'asset reconstruction company'. Previously, only 'qualified institutional buyers' (such as banks, financial institutions, insurance companies etc.), as defined under the Principal Act, were permitted to purchase security receipts issued by ARCs for purposes of securitization of financial assets. With the Amendment, the term 'qualified institutional buyers' has been replaced by the term 'qualified buyers'. Pursuant to such change, non institutional investors have been included within the scope of eligible buyers of security receipts for purposes of asset securitization. The RBI has been empowered to, inter alia, (a) carry out audit and inspection of ARCs; and (b) appoint additional directors and observers on the board of directors of such ARCs. Exemption from Stamp Duty Any agreement/ document executed for transfer or assignment of rights or interests in financial assets of any bank/ financial institution in favour of the ARC, for purposes of asset reconstruction/ securitization, has been exempted from payment of stamp duty. Key areas that have not been addressed While a much needed impetus has been provided to debt recovery and enforcement laws with the said Amendment Act (and the Insolvency Code), the Legislature still falls short of addressing the following practical concerns of secured creditors: Adherence to 13(2) Notice a Moral Obligation On default being committed by the borrower, be it in relation to interest payment or principal repayment, the secured creditor is required to serve a notice on the borrower in terms of Section 13(2) of the Act ("13(2) Notice"). In case the borrower fails to discharge his liabilities (in full) to the secured creditor within 60 days of service of the aforesaid notice, the secured creditor is entitled to resort to measures provided under Section 13(4) of the Act, viz., taking possession of the secured asset or taking over the management of the borrower etc. about:blank 3/5

4 What if the borrower, in order to defraud the creditor, starts disposing of his secured asset within the 60 days' timeframe? What if the value of the underlying security is diminished by the time the secured creditor acquires possession of the same? The looming threat of the underlying security being wasted away, still gives nightmares to secured creditors operating with negative balance sheets, even after the Amendment. While Section 13(13) of the Act does provide that the borrower shall not transfer (by way of sale, lease or otherwise, other than in the ordinary course of its business) any of its secured assets after receipt of the 13(2) Notice, without the prior written consent of the secured creditor. It is an understood fact that the prohibition under Section 13(13) is more of a moral obligation. The secured creditor is empowered to appoint a manager to manage the secured asset taken over by the creditor; however, this power is available only after the lapse of the aforesaid 60 days' notice period. The secured creditor is more concerned about recovery; and the deterrent in the form of fine and/or imprisonment for breach of any provisions of the Act by the borrower is of little comfort to it. Enforcement of Pledge Still Outside the Purview of the Act Pledge of movables, for example, over shares of the borrower company or of its affiliates and associate companies, is one of the favored security interest created by the borrower under the Loan Agreements today. However, despite the Amendment, pledge of movables (within the meaning of Section 172 of the Indian Contract Act) is still excluded from the purview of the Act (Section 31 of the SARFAESI Act). Therefore, the enforcement process for pledge continues to be subject to the risk of protracted litigation in Indian Courts. Dichotomy of Laws and Forums The DRT and the Appellate Tribunals were established under the DRT Act. As per the DRT Act, for recovery of debt from a borrower, a bank or financial institution needs to make an application to the DRT having jurisdiction over the borrower's area of residence or business or, post Amendment, over the area of bank branch where the debt is pending. Pertinently, such applications can be made by only those financial institutions that have been notified by the Central Government in this respect and to which the DRT Act has been made applicable. On the other hand, under the SARFAESI Act, the banks and financial institutions can make an application to the DRT only for recovery of balance dues, after exhausting other remedies available under the Act, such as sale of secured assets of the borrower. Further, the provisions of the SARFAESI Act are extended to only those financial institutions that have been notified by the Central Government in this regard. What about the financial institutions (example NBFCs) to whom the applicability of the SARFAESI Act have be extended by notification, but have not yet been notified for purposes of the DRT Act? What happens when such financial institutions are unable to sell the secured assets of the borrower company? Will they be left without any remedy, since they cannot make an application for recovery to the DRT under the SARFAESI Act as well as the DRT Act? Clarity is sought on the road map they are required to adhere to. about:blank 4/5

5 Additionally, according to the Insolvency Code, all corporate insolvency and winding up cases will be adjudicated by the National Company Law Tribunal; whereas all individual recovery cases will still be referred to the DRT. The existence of multiple laws and multiple forums for dealing with recovery of debt of secured creditors will result in prolonging disputes, spawning confusion and creating opportunity for protracted litigation the very problem the Legislature sought to resolve through the current slew of legislative reforms. Concluding Remarks While the reforms are a step in the right direction, considering there is still some room for improvement, and that the amended legislation still lacks teeth, in practical terms, one would hope the Legislature addresses such concerns and shortcomings soon. Till such time, we would look to the Indian Courts for the added guidance and support to secured creditors for enforcement of security interests in India. It is befitting to conclude with a passage from the Judgement of the Supreme Court, of the Bench comprising of Chief Justice of India V.N. Khare, Justice Brijesh Kumar and Justice Arun Kumar, (delivering its judgment in Mardia Chemicals Ltd. v. Union of India and [2004] 51 SCL 513 (SC), on the challenge to the constitutionality of the SARFAESI Act) "The effect of some of the provisions may be a bit harsh for some of the borrowers but on that ground the impugned provisions of the Act cannot be said to be unconstitutional in view of the fact that the object of the Act is to achieve speedier recovery of the dues declared as NPAs and better availability of capital liquidity and resources to help in growth of the economy of the country and welfare of the people in general which would subserve the public interest." about:blank 5/5

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