Case BriefsSupreme Court

Supreme Court: In a case where it was argued before the Court that an offence under Section 138 of the Negotiable Instruments Act was not made out as the dishonourment alleged is of the cheques which were issued by way of ‘security’ and not towards discharge of any debt, the bench of MR Shah and AS Bopanna*, JJ has held that a cheque issued as security pursuant to a financial transaction cannot be considered as a worthless piece of paper under every circumstance and that there cannot be a hard and fast rule that a cheque which is issued as security can never be presented by the drawee of the cheque.

The Court explained that ‘security’ in its true sense is the state of being safe and the security given for a loan is something given as a pledge of payment. It is given, deposited or pledged to make certain the fulfilment of an obligation to which the parties to the transaction are bound.

“If in a transaction, a loan is advanced and the borrower agrees to repay the amount in a specified timeframe and issues a cheque as security to secure such repayment; if the loan amount is not repaid in any other form before the due date or if there is no other understanding or agreement between the parties to defer the payment of amount, the cheque which   is   issued   as   security   would   mature   for presentation and the drawee of the cheque would be entitled to present the same. On such presentation, if the same is dishonoured, the consequences contemplated under Section 138 and the other provisions of N.I. Act would flow.”

When a cheque is issued and is treated as ‘security’ towards repayment of an amount with a time period being stipulated for repayment, all that it ensures is that such cheque which is issued as ‘security’ cannot be presented prior to the loan or the instalment maturing for repayment towards which such cheque is issued as security.

Further, the borrower would have the option of repaying the loan amount or such financial liability in any other form and in that manner if the amount of loan due and payable has been discharged within the agreed period, the cheque issued as security cannot thereafter be presented. Therefore, the prior discharge of the loan or there being an altered situation due to which there would be understanding between the parties is a sine qua non to not present the cheque which was issued as security. These are only the defences that would be available to the drawer of the cheque in a proceedings initiated under Section 138 of the N.I. Act. Therefore, there cannot be a hard and fast rule that a cheque which is issued as security can never be presented by the drawee of the cheque. If such is the understanding a cheque would also be reduced to an ‘on demand promissory note’ and in all circumstances, it would only be a civil litigation to recover the amount, which is not the intention of the statute.

“When a cheque is issued even though as ‘security’ the consequence flowing therefrom is also known to the drawer of the cheque and in the circumstance stated above if the cheque is presented and dishonoured, the holder of the cheque/drawee would have the option of initiating the civil proceedings for recovery or the criminal proceedings for punishment in the fact situation, but in any event, it is not for the drawer of the cheque to dictate terms with regard to the nature of litigation.”

[Sripati Singh v. State of Jharkhand, 2021 SCC OnLine SC 1002, decided on 28.10.2021]


Counsels

For appellant: Advocate M.C. Dhingra

For respondents: Advocate Raj Kishor Choudhary and Keshav Murthy


*Judgment by: Justice AS Bopanna

Know Thy Judge | Justice A. S. Bopanna

Experts CornerPramod Rao

The advent of Covid-19 brought home the fragility of life in a way that none in living memory had considered. Both the first wave and the second wave, and the impending third wave, make it all too clear that taking safeguards (masks, frequent hand wash or use of sanitisers) and precautions (taking both the doses of the vaccine) are all too necessary lest life or health will be in severe jeopardy.

 

It is also a time that compels contemplating taking “precautions” to reduce the impact of what the survivors, successors and legal heirs may face after the death of an individual in relation to personal finances and financial assets of such individuals. Nominations have long been considered the panacea both for the individuals and their survivors/successors, and for the institutions that provide nomination facilities. Another initiative often considered is opting for the joint ownership of financial assets, so that the surviving joint owners can access financial assets notwithstanding untimely demise.

 

Both these approaches serve to bypass the daunting and time-consuming process of obtaining succession certificate or court orders (in case of intestate succession) or probate or letters of administration [in case of the testamentary instrument (will) being available], and to reduce, remove or eliminate submission of cumbersome paperwork for enabling access.

 

Your columnist examines the legal and regulatory regime governing nominations and joint ownership of three popular financial assets and their nuances.

(a) Current accounts, savings accounts and fixed deposits with banks.

(b) Safe custody and safety lockers with banks.

(c) Depository or demat accounts.

(d) Mutual funds holdings.

 


Nomination facility in current accounts, savings accounts and fixed deposits with banks


The aggregate of balances in current and savings accounts, as well as fixed deposits in India stands at Rs 153.1 trillion as of 31-3-2021, and represents a sizable amount of money saved or in transit (to be saved or spent). It also represents the most safe savings instrument (barring rare exceptions) in the country.

 

Nomination facility is encoded in a statutory provision viz. Section 45-ZA of the Banking Regulation Act, 1949, added in 1985 to ease the release of deposits to the nominee specified by the depositor upon death of the depositor. The section governs credit balances in savings accounts and current accounts, and to fixed deposits with banks. The norms for access to articles kept in safe custody with banks[1] and safety lockers[2] also follow principles and norms applicable for deposits (unless otherwise noted).

 

Individuals who jointly own and operate bank accounts or deposits are also permitted to make nominations. Nominations can only be made when the deposits are held in an individual capacity, and not in a representative capacity (including as a holder of an office or otherwise).

The forms as prescribed are part of the Banking Companies (Nomination) Rules, 1985.[3]

 

If the nominee is a minor, the depositor can choose while making the nomination to appoint another individual (who is a major), to receive the amounts on behalf of the nominee (during the minority of the nominee) in the event of the death of the depositor.

 

A depositor can vary or cancel the nomination during the tenure of the deposit. Banks are required to provide acknowledgment of nominations to the depositor, and register the nomination, cancellation or variation in its records.

 

The key benefit that nominations provide to banks is that they receive a full discharge of the liability in respect of the deposit on making payment of the monies to the nominee[4].

 

It is important to note that while the nominee is legally entitled to receive the money from the bank, the nominee does not constitute the successor or inheritor of such sums. The successors or legal heirs (either in terms of the will executed by the depositor, or as per the personal laws of succession governing the depositor who dies intestate) are entitled to claim their rightful share from the nominee[5].

 

Many a time one sees claimants (claiming to be legal heirs or successors of a deceased depositor) serve notice of their claim or interest to the bank. As such[6], a bank is not bound to receive such notice nor is bound by such notice even when it has been expressly delivered to it. Only and only if a decree, order, certificate or other authority from a court of competent jurisdiction relating to such deposit is notified or served on the bank, is the bank required to take due note of such decree, order, certificate or other authority[7].

 

Table 1: Current and savings accounts, fixed deposits, safe custody and safety lockers

In the event of: Transmission in favour of:
Nomination provided Nomination not provided
Death of single holder Nominee Legal heirs (as per succession certificate/probate/letters of administration)
Death of one of the joint holders Surviving joint holder(s) Surviving joint holder(s)
Death of all the joint holders Nominee Legal heirs (as per succession certificate/probate/letters of administration)

 

A further element which bears consideration is that in terms of the current law, the nomination by a bank depositor is limited to a single individual[8]. This is in contrast to several other financial assets which permit multiple nominees and/or even specification of allocation (in percentages) among such multiple nominees.

 

Hence, it appears that almost by design the bank or the nominee, or both could be placed in a situation of having to deal with the legal heirs, successors and claimants, and which could also lead to litigious situations.

 

It is your columnist’s view that Section 45-ZA of the Banking Regulation Act (and consequently the Rules thereunder) should be amended to facilitate depositors being able to specify multiple nominees (together with percentage allocation of the money among them). This would help bank deposits keep pace with the approach adopted for other financial assets. Such a change would allow the depositors to specify, as far as possible, their legal heirs as nominees together with the percentage allocation among them. It would help reduce or remove possible friction and burden that the nominee carries in having to deal with the legal heirs, successors and claimants.

 

A separate thought is for banks to facilitate nominations being done on their internet banking sites or mobile banking apps. There has been a (mis)apprehension on account of the prescribed forms requiring signatures (construed as wet or physical signatures): this has led to banks hesitating in digitalisation of the nomination process.

 

In fact, the provisions of the Information Technology Act of 2000 and the various mechanisms specified therein for concluding contracts, can extend to the nomination forms being completed and submitted through authenticated means (such as internet banking or mobile banking apps) and will be legal, valid and effective (just as the transactions conducted over such internet banking sites or mobile banking apps). Adoption of such means – Aadhaar-based eSign, or OTP-based confirmation or simply undertaking the nomination after authentication of credentials of the internet banking site or mobile banking app – would also mean that requirement of witness if any can be dispensed with.

 

In respect of articles kept in safe custody or kept in the safety lockers, one item worthy to call out as a difference (from treatment of deposits) is that the bank, before returning any articles to the nominee or prior to removal of contents of the safety locker by the nominee, is required to prepare an inventory of such articles. The nominee is required to sign a copy of such inventory, and is entitled to receive a copy of the inventory.

 


Joint ownership and operation of current and savings accounts, fixed deposits, articles in safe custody and safety locker


Almost all financial assets are capable of joint ownership. One critical aspect, especially relevant for ease of access to financial assets, is the treatment of joint ownership and of joint operation of such financial assets on the death of one of the joint owners.

 

One key benefit is the rule of survivorship, which specifies that the surviving joint owners get the legal title to the asset. It would of course beg the question then why is nomination permitted and encouraged for jointly owned accounts: it is for the remote contingency of all the joint holders perishing simultaneously or together, that nomination becomes relevant.

 

In terms of practicality, in case of current or savings accounts, it is the mode of operation which also determines the ease.

 

For instance, specifying “either or survivor” or “anyone or survivor” enables any one of the account holders jointly owning an account to access the account even upon death of any of the account holder/s. Specifying “former or survivor” allows the first account holder to operate the account during her lifetime and upon her death, the survivor to operate the account. “Latter or survivor” works in pretty much similar way, where the second account holder operates the account in her lifetime and upon her death, the first account holder can operate the account.

 

If however, the mode of operation has been specified as joint, then it requires all account holders during their lifetime to jointly provide the instructions or sign cheques. Upon death of one of the account holders, the right to operate such a joint account will stand revoked or suspended. Such surviving account holders would need to establish a separate account to receive the proceeds from the joint account.

 

Accordingly, the choice of mode of operation is highly important, and certain choices, as above, can provide ease of access to the survivors and allow the continuing operation of an account upon death of one of the account holders.

 

In terms of the rule of survivorship, the surviving account holders (under all modes of operation) get a legal title to the balance in the account, and the bank gets a good discharge from such surviving account holders.[9] Nomination, if any made, for such joint accounts has no relevance, unless all the joint account holders are no more.

 

It is all too necessary to call out that just as in the case of nominees, while the surviving account holder/s are legally entitled to receive the money from the bank, the survivors may not constitute the successors or inheritors of such sums. The successors or legal heirs (either in terms of the will executed by the deceased account holder, or as per the personal laws of succession governing the deceased who dies intestate and subject to the arrangements among the joint holders) are entitled to claim their rightful share from the survivors[10].

 

It is your columnist’s view that the choices in the mode of operation that bank accounts provide is worthy of emulation across other financial assets. Several of the financial assets straitjacket the joint ownership, and hinder the ease of access to joint owners and survivors.

 

Summary of reforms recommended for current accounts, savings accounts, fixed deposits, articles in safe custody and safety lockers

Permit multiple nominees (doing away with current limitation of one nominee).
Permit specification of allocation of percentage of among multiple nominees.
Facilitate e-nominations (over internet banking or mobile banking apps).
Placing a deadline for all holders of current accounts/savings accounts/fixed deposits that are presently without nominations to provide nominations.

Nomination facility in depository or demat accounts


 

With a growing number of investors in the equity markets, or those holding bonds and debentures or even sovereign gold bonds, having a depository account (more popularly referred to as “demat account”) with a depository participant (which in turn are linked to either of the two securities depositories[11] licensed by the Securities and Exchange Board of India SEBI) is a given. The total count of demat accounts stood at 55 million plus as of 31-3-2021[12], with Rs 518.83 trillion constituting the total value of securities held in such demat accounts.

 

Nomination is possible for demat accounts. There is flexibility to specify up to three nominees, and in case of multiple nominees, the demat account holder/s can specify the percentage of share of each nominee. In the event percentage allocation is not specified, the presumption of equal division among the nominees applies.

 

Individuals who jointly own demat accounts are also permitted to make nominations. Nominations can be made only by individuals, and only individuals/natural persons can be specified as nominees[13].

 

A minor can be a nominee, subject to the name and address of the guardian being provided.

 

The prescribed forms require photographs of the nominee and other details to help identify and give effect to the nomination. Additionally, the form requires a witness for nomination.

Nominations can be varied or cancelled and fresh nominations made.

 

The key benefit that nominations provide to depositories and depository participants is that they receive a full discharge of the liability upon the transmission of the securities balances in the demat account to the nominee.

 

It is important to note that while the nominee is legally entitled to receive the transmission of the securities balance in the demat account, the nominee does not constitute the successor or inheritor of such securities. The successors or legal heirs (either in terms of the will executed by the demat account holder, or as per the personal laws of succession governing the demat account holder who dies intestate) are entitled to claim their rightful share from the nominee[14].

 

Table 2: Depository or demat accounts

In the event of: Transmission in favour of:
Nomination provided Nomination not provided
Death of single holder Nominee(s) Legal heirs (as per succession certificate/probate/letters of administration)
Death of one of the joint holders Surviving joint holder(s) Surviving joint holder(s)
Death of all the joint holders Nominee(s) Legal heirs (as per succession certificate/probate/letters of administration)

 

As can be noted, the demat accounts permit more than one nominee (though imposes a limit of three nominees). It permits percentage allocation among the nominees for all the securities held in demat account (in the aggregate and not individually).

 

One reform to consider would be to do away with the limitation of three nominees. It would facilitate demat account holders being able to specify multiple nominees without limitation (while continuing with the percentage allocation of the money among them). Such a change would allow the demat account holders to specify, as far as possible, their legal heirs as nominees together with the percentage allocation among them. It would help reduce or remove possible friction and burden that the nominees carry in having to deal with the legal heirs, successors and claimants. Nonetheless, flexibility of having up to three nominees is certainly better than one.

 

Another limitation is the manner in which nominations along with the percentage allocations takes effect: such nominations and allocations apply across the securities balances held in the demat account, and securities-wise nominations or allocation are not currently possible. Hence, if there are multiple sets of shares and securities held, the nomination and percentage allocation uniformly cuts across all the shares and securities. A potential reform to consider is facilitating nominations and percentage allocation at the level of each security held in the demat account. Such a possibility, it must be noted, exists for physical shares and securities.

 

A few recent changes[15] that have been made by SEBI which regulates depositories and depository participants that provide demat accounts, in respect of nomination, are important to consider:

 

  • On and from 1-10-2021, investors opening new demat accounts have a choice of providing nomination or opting out of making a nomination. Due formats have been prescribed for either course, and for changes to or cancellation of nominations made.

Indeed, while the regulator has provided a choice of making nomination or opting out of making a nomination, it is your columnist’s view that it would be particularly foolish and indeed downright mean for demat account holders to not use the nomination facility. It would leave the survivors and successors facing a needless, time-consuming and daunting process of obtaining a succession certificate or court orders (in case of intestate succession) or probate or letters of administration, with attendant costs and efforts. Having chosen to invest and open a demat account, it would be prudent and practical to utilise the nomination facility.

  • All existing eligible demat account holders are required to make a choice of providing nomination or opting out of making a nomination on or before 31-3-2022, failing which no debits can be made to the demat account, effectively freezing trading of securities held therein.

Such a missive is a much-needed measure. Lack of nomination impacts both the survivors, successors and inheritors as well as the depositories and depository participants. Both bear the burden of having to arrange for (and receive) duly notarised copy of succession certificate or an order of a court of competent jurisdiction (when the demat account holder has not left a will) or duly notarised copy of probate or letter of administration (when the demat account holder did execute a will). Either course is a daunting court process, which the survivors, successors or inheritors face. For the depositories and depository participants, when there is no nomination, then good discharge can be achieved only by receiving such documents.

  • A key change has been dispensing with the witnessing of the nomination form in the following circumstances:

(a) Nomination form signed under wet signature of the demat account holders.

(b) Online nomination form signed using e-Sign facility.

Witness signature is however required when the demat account holders affix thumb impression (in lieu of signatures).

It is your columnist’s view that such a measure is quite laudatory and appreciable: it removes the friction of the depository participant or the investor having to arrange for an independent witness, and provides due privacy to investors affixing wet signatures or using e-Sign facility. In respect of investors affixing thumb impressions, perhaps if could be nudged instead to use e-Sign facility (which also relies on biometric identification), would also have the same benefit. Notably, most other financial assets also do not require witnessing of the nomination form and this measure brings demat accounts in line with the same.

 


Joint ownership and operation of demat accounts


Individuals can jointly own demat accounts, subject to a limit of three joint owners. A minor cannot be one of the joint owners[16].

 

In keeping with the recommendation of lifting the limit of number of nominees, it would be appropriate to also recommend lifting the limit of number of joint owners of a demat account.

 

In case of death of any one joint owner, the rule of survivorship will be applicable. To briefly recap, this means that the surviving joint owners get the legal title to the balances in the demat account. It is noted that while the surviving account holder/s are legally entitled to receive the securities balances in the demat account, the survivors may not constitute the successors or inheritors of such securities. The successors or legal heirs (either in terms of the will executed by the deceased demat account holder, or as per the personal laws of succession governing the deceased who dies intestate and subject to the arrangements among the joint holders) are entitled to claim their rightful share from the survivors[17].

 

When the surviving demat account holders provide a notarised death certificate of the deceased account holder, the depository participant would proceed to freeze the demat account, and transmit the balances to the demat account of the surviving demat account holders.

 

This presumably preserves the record of holdings, transactions and of the demat account holders (including the deceased account holder) in the records of the depository, and fresh records are created for the surviving demat account holders and their transactions.

 

This perhaps is a key difference between joint bank accounts and joint demat accounts: the former is a running account, capable of being operated (subject to the mode of operation) even upon the demise of one of the joint holders, while the demat account is closed upon death of one of the joint holders. A reform worthy of consideration is treating the demat account as a running account, the way bank accounts are: so demise of a joint owner should not mean closure of the demat account (with attendant transmission of the balances to the demat account of the surviving demat account holders). Rather, the surviving demat account holders should be allowed to continue operations in the same demat account.

 

Jointly owned demat accounts also have a very limited scope on mode of operation: the depositories require that all joint holders authorise the transactions.

 

Practically, the first holder or main holder could be conducting the transactions, especially in case of online transactions. Additionally, reliance is possibly placed on a letter of authority or power of attorney given by all the joint owners of the demat account holders.

 

As mentioned earlier, the multiple choices in the mode of operations that bank accounts provide is worthy of emulation for demat accounts. Limiting the mode of operation to only jointly by all the demat account holders, and allowing practices to develop wherein parties rely upon a letter of authority or a power of attorney from all the demat account holders can be thought of as an inefficient and poor workaround. Rather, just as banks facilitate different types of modes of operations, the two depositories could upgrade their systems to provide the same or similar facility.

 

Summary of reforms recommended for depository or demat accounts

Permit multiple nominees (doing away with current limitation of three nominees).
Permit ability to specify nominations and percentage allocation at the level of each security held in the demat account (from current account level nomination and allocation being feasible).
Removal of choice of opting out from making nomination.
Permit multiple joint owners (doing away with current limitation of three joint owners).
Permitting jointly held demat accounts to become a running account by surviving demat account holders after the death of one of the joint holders (doing away with closure of demat account and transfer of balances to demat account held by surviving holders).
Permitting multiple modes of operation for jointly held demat accounts

(either or survivor, anyone or survivor, former or survivor, latter or survivor, joint).


Nomination facility in mutual funds


 

Investments in mutual fund schemes have grown by leaps and bounds, and particularly post demonetisation. The current corpus under management of mutual funds is at Rs 31.4 trillion as on 31-3-2021.

 

Nomination is possible for mutual fund holdings. Nomination made by a mutual fund investor is applicable for units held in all the schemes under the respective folio/account and gets rescinded on redemption of such units or its transfer.

 

There is flexibility to specify up to three nominees, and in case of multiple nominees, the mutual fund investor can specify the percentage of share of each nominee with such allocation/share being required to be in whole numbers without any decimal. In the event percentage allocation is not specified, the presumption of equal division among the nominees applies.

 

Individuals who are joint investors in mutual fund (irrespective of the mode of operation) are also permitted to make nominations, being required to do so jointly.

 

Nominations can be made only by individuals. Non-individuals including a society, trust, body corporate, partnership firm, karta of Hindu Undivided Family, a power-of-attorney holder and/or guardian of minor mutual fund investor cannot nominate.

 

Nominations can be in favour of individuals/natural persons, and also the Central Government, State Government, a local authority, any person designated by virtue of his/her office or a religious or charitable trust can be specified as nominees. This is an expanded set of eligible nominees (distinct from nominations permitted for bank accounts or demat accounts).

 

A minor can be a nominee, subject to the name and address of the guardian being provided.

 

Nominations can be varied or cancelled, and fresh nominations made.

 

Uniquely, there is a specification of consequences in case of death of a nominee. In the event of the nominee(s) predeceasing the mutual fund investor(s), the nomination is automatically cancelled. In case of multiple nominations, if any of the nominee is deceased at the time of claim settlement, that nominee’s share would be distributed equally amongst the surviving nominees.

 

Transmission of units in favour of the nominee(s) constitutes valid discharge of the asset management company, the trustee company and the mutual fund. It is important to note that while the nominee is legally entitled to receive the units, the nominee does not constitute the successor or inheritor of such units. The successors or legal heirs (either in terms of the will executed by the mutual fund investor, or as per the personal laws of succession governing the mutual fund investor who dies intestate) are entitled to claim their rightful share from the nominee[18].

 

To claim the units after the death of a unit holder, the nominee has to complete the necessary formalities, such as completion of KYC process, along with proof of death of the unit holder, signature of the nominee duly attested, furnishing of proof of guardianship in case the nominee is a minor, and such other document as may be required for transmitting the units in favour of the nominee(s)[19]. One key element, which appears to be excessive or contributing to avoidable friction is requirement of attestation of nominee’s signatures. When the transmission amount is up to Rs 2 lakhs, the attestation by a Bank Manager is required in a prescribed form, and when the transmission amount is more than Rs 2 lakhs, the attestation by a notary public or a Judicial Magistrate, First Class (JMFC) is required. Attestation requirements also extend to various documents including bank passbook/bank statement, death certificate and so on, all of which appear excessive and could be dispensed with.

 

It is also important to note that when units in mutual fund schemes are held in a depository or a demat account, the nomination details provided to the depository/depository participants will be applicable to such units and govern the transmission.

Table 3: Mutual fund folios/accounts

In the event of: Transmission in favour of:
Nomination provided Nomination not provided
Death of single holder Nominee(s) Legal heirs (as per succession certificate/probate/letters of administration)
Death of one of the joint holders Surviving joint holder(s) Surviving joint holder(s)
Death of all the joint holders Nominee(s) Legal heirs (as per succession certificate/probate/letters of administration)

 

As can be noted, the mutual funds permit more than one nominee (though imposes a limit of three nominees). It permits percentage allocation among the nominees for the units held in the folio/account (in the aggregate and not individually).

 

One reform to consider would be to do away with the limitation of three nominees. It would facilitate mutual fund investors being able to specify multiple nominees without limitation (while continuing with the percentage allocation of the money among them). Such a change would allow the mutual fund investors to specify, as far as possible, their legal heirs as nominees together with the percentage allocation among them. It would help reduce or remove possible friction and burden that the nominees carry in having to deal with the legal heirs, successors and claimants. Nonetheless, flexibility of having up to three nominees is certainly better than one.

 

One further reform to consider is doing away with a choice not to furnish a nomination. As previously noted, it is your columnist’s view that it would be particularly foolish and indeed downright mean for mutual fund investors to not use the nomination facility. It would leave the survivors and successors facing a needless, time-consuming and daunting process of obtaining a succession certificate or court orders (in case of intestate succession) or probate or letters of administration, with attendant costs and efforts. Having chosen to invest and create assets in form of units of mutual fund schemes, it would be prudent and practical to utilise the nomination facility.

 

Finally, enabling e-nomination facilities could greatly boost specifying nominee(s). Either the mutual fund industry and AMFI – the Association of Mutual Funds in India – could harness the provisions of the Information Technology Act of 2000 and the various mechanisms specified therein for concluding contracts, for completion of the nomination forms and submission through authenticated means and will be legal, valid and effective. Adoption of such means – Aadhaar-based eSign, or OTP-based confirmation or simply undertaking the nomination after authentication of credentials of the internet site or mobile app of the AMC – would also mean that requirement of witness if any can be dispensed with. Alternatively, SEBI could specify e-nomination norms for mutual funds akin to the norms specified for demat accounts.

 


Joint ownership and operation of mutual fund investments


Individuals can jointly own units in mutual fund schemes, subject to a limit of three joint owners.

 

In keeping with the recommendation of lifting the limit of number of nominees, it would be appropriate to also recommend lifting the limit of number of joint owners of units in mutual fund schemes.

 

In case of death of any one joint owner, the rule of survivorship will be applicable. To briefly recap, this means that the surviving joint owners get the legal title to the units of the mutual fund scheme. While the surviving joint holders are legally entitled to the units of the mutual fund scheme, the survivors may not constitute the successors or inheritors of such units. The successors or legal heirs (either in terms of the will executed by the deceased joint holder, or as per the personal laws of succession governing the deceased who dies intestate and subject to the arrangements among the joint holders) are entitled to claim their rightful share from the survivors[20].

 

Akin to bank accounts, the folios/accounts and the units held in such folios/accounts continue to operate without any issue, and only the details of the holders – nominees in case of sole mutual fund investor, or the surviving joint holder/s – get updated.

 

Mutual funds permit “either or survivor” mode of operation when investments are jointly held, thereby providing flexibility for the investors in transacting. The exception is making nominations, which have to be jointly made.

 

Summary of reforms recommended for mutual fund investments

Permit multiple nominees (doing away with current limitation of three nominees).
Removal of choice of opting out from making nomination.
Permit multiple joint owners (doing away with current limitation of three joint owners).
Removal of attestation requirement for signatures of nominees or of documents submitted by nominees regardless of amounts that are to be transmitted.

 


Concluding remarks


As would be appreciated, there are very many similarities (and the differences are less apparent) in the nomination facilities, and joint holdings of financial products. These similarities and differences can have significance for orderly claim by nominee or survivors, and due discharge of the financial institutions. In many senses, the system may be efficacious, but quite tedious, time consuming, and also containing many pain points, friction and overall stressful to the nominees and claimants navigating the process. The financial institutions which have to process such claims also are hidebound to adhere to rules framed in a different era and time, running the risk of not securing due discharge and/or regulatory reprimands or penalties if deviate from such rules.

 

For anyone who has lost a loved one and is coping with an unfamiliar and difficult process, aggravated by the circumstances Covid-19 has brought, if financial sector regulators and financial institutions can consider reforms for further easing the pain, the friction and the efforts that survivors make in accessing the financial assets of the deceased, it would be highly commended and appreciated.

 

Adopting the best features regarding nominations or joint holdings as outlined above for each type of financial product would appear the easiest way forward.

 

Additionally, a few of the limitations – number of joint owners or number of nominees – most likely come from a technology system design perspective, where the record-keeping capability or capacity perhaps acted as the reason for the limits. In case of bank accounts, it is in fact coded into the statute. In real life and for assets such as real estate or physically held securities, such limits do not apply. The technology and systems should accordingly adapt and be upgraded to enable individuals and families to deal with financial assets in the mode, manner and extent that they desire.

 

It is time for society to be fair-minded to its financial consumers and their nominees, successors and survivors at the time they most need solace and support.


†  Group General Counsel at ICICI Bank. His Linkedin profile can be accessed HERE

Disclaimer: Views in this article are his personal views.

*Vanaj Vidyan, student of RMLNLU has assisted in the research of the article.

[1] Governed by S. 45-ZE of the Banking Regulation Act, 1949.

[2] Governed by S. 45-ZE of the Banking Regulation Act, 1949.

[3] See <HERE>; Vide Noti. No. S.O. 264(E), dated March 29, 1985, published in the Gazette of India, Extra., Part II, S. 3(ii), dated 29th March, 1985, pp. 10-18.

[4] S. 45-ZA(4) of the Banking Regulation Act, 1949.

[5] Proviso to S. 45-ZA(4) of the Banking Regulation Act, 1949; also specification in the will that the nominee is the beneficiary can obviate challenges or issues from arising.

[6] S. 45-ZB of the Banking Regulation Act, 1949.

[7] Proviso to S. 45-ZB of the Banking Regulation Act, 1949.

[8] In case of jointly operated lockers i.e. by two or more individuals jointly, such hirers may nominate one or more persons to whom, in the event of the death of such joint hirer or hirers, the bank may give, jointly with the surviving joint hirer or joint hirers, access to the locker and liberty to remove the contents of such locker.

[9] Banks as such do not take notice of any rival claimants to the monies even if notified though would take note of a decree, order, certificate or other authority from a court of competent jurisdiction relating to such money if is duly notified or served on the bank.

[10] Specification in the will that the joint owners or surviving joint holders are the beneficiaries can obviate challenges or issues from arising.

[11] NSDL: National Securities Depository Ltd., and CDSL: Central Depository Services (India) Ltd.

[12] 55,127,436 as of 31-3-2021 for the detail oriented.

[13] Akin to nominations for bank accounts excluding non-individuals.

[14] Specification in the will that the nominee/s is the beneficiary/ies can obviate challenges or issues from arising.

[15] See <HERE>.

[16] On account of minors incapacity to enter into contracts.

[17] Specification in the will that the joint owners or surviving joint holders are the beneficiaries can obviate challenges or issues from arising; one other potential challenge that should be considered is how the surviving joint holders get along (or do not), and hence segregating securities into distinct demat accounts with one joint holder each could be a better approach (unless securities level nomination is permitted).

[18] Specification in the will that the nominee/s is the beneficiary/ies can obviate challenges or issues from arising.

[19] See Here

[20] Specification in the will that the joint owners or surviving joint holders are the beneficiaries can obviate challenges or issues from arising; one other potential challenge that should be considered is how the surviving joint holders get along (or do not), and hence segregating the mutual fund holdings into distinct folios with one joint holder each could be a better approach.

Case BriefsSupreme Court

Supreme Court: In a case where a bank manager had sanctioned and disbursed loans without following the due procedure contemplated under law, the 3-judge bench of Ashok Bhushan, R. Subhash Reddy* and MR Shah, JJ has held that

“When the procedural guidelines are issued for grant of loans, officers/employees are required to follow the same meticulously and any deviation will lead to erosion of public trust on the banks.”

Background

In the present case, there were allegations against a manager of Lakhimi Gaolia Bank of misappropriation, disbursing loans irregularly in some instances to (a) units without any shop/business; (b) more than one loan to members of same family etc.

Based on the findings recorded by Enquiry Officer, the disciplinary authority had tentatively decided to impose punishment of compulsory retirement and had issued a show cause notice to the manager to which he responded that “due to work pressure some operational lapses have occurred”.  Further, if the bank has sustained any loss due to his fault, he is ready to bear such loss from his own source.

Thereafter, the disciplinary authority imposed the punishment of compulsory retirement.

The decision of the disciplinary authority was challenged on the ground that even before tentative conclusion is arrived at by the disciplinary authority, the enquiry report has to be served upon him.

Analysis

After Enquiry Officer records his findings, it is always open for the disciplinary authority to arrive at tentative conclusion of proposed punishment and it can indicate to the delinquent employee by enclosing a copy of the enquiry report.

The argument that even before tentative conclusion is arrived at by the disciplinary authority, the enquiry report has to be served upon him, was not accepted by the Court as there is no such proposition laid down in the judgment of this Court in the case of Managing Director, ECIL,   Hyderabad (supra).  In the aforesaid judgment of this Court it is held that

“delinquent employee is entitled to a copy of the enquiry report of the enquiry officer before the disciplinary authority takes a decision on the question of guilt of the delinquent. Merely because a show cause notice is issued by indicating the proposed punishment it cannot be said that disciplinary authority has taken a decision.”

In the present case, along with the show cause notice itself enquiry report was also enclosed.  Hence, it cannot be said that the procedure prescribed under the rules was not followed by the bank.

Further, it is well settled that if the disciplinary authority accepts the findings recorded by the Enquiry Officer and passes an order, no detailed reasons are required to be recorded in the order imposing punishment.  The punishment is imposed based on the findings recorded in the enquiry report, as such, no further elaborate reasons are required to be given by the disciplinary authority.

The Court also refused to accept the argument that the punishment imposed is disproportionate to the gravity of charges. The charges framed against the appellant in the departmental enquiry are serious and grave.

“If we look at the response, in his letter dated 16.08.2005, to the show cause notice issued by the disciplinary authority, it is clear that he has virtually admitted the charges, however, tried to explain that such lapses occurred due to work pressure. Further he went to the extent of saying – he is ready to bear the loss suffered by the bank on account of his lapses.”

If the manager of a bank indulges in such misconduct, as is evident in the present case and the findings of the enquiry officer, it indicates that such charges are grave and serious.

“The manager of a bank plays a vital role in managing the affairs of the bank. A bank officer/employee deals with the public money. The nature of his work demands vigilance with the in¬built requirement to act carefully. If an officer/employee of the bank is allowed to act beyond his authority, the discipline of the bank will disappear. When the procedural guidelines are issued for grant of loans, officers/employees are required to follow the same meticulously and any deviation will lead to erosion of public trust on the banks.”

Inspite of proved misconduct on such serious charges, disciplinary authority itself was liberal in imposing the punishment of compulsory retirement and hence, the Court refused to hold that the punishment imposed in the disciplinary proceedings on the appellant, is disproportionate to the gravity of charges.

[Boloram Bordoloi v. Lakhimi Gaolia Bank, 2021 SCC OnLine SC 65, decided on 08.02.2021]


*Judgment by: Justice R. Subhash Reddy

Know Thy Judge| Justice R. Subhash Reddy

Appearances before the Court by

For appellant: Advocate Parthiv Goswami, 

For Bank: Rajesh Kumar

Hot Off The PressNews

Positive Pay System for Cheque Truncation System (CTS)

The concept of Positive Pay involves a process of reconfirming key details of large value cheques. Under this process, the issuer of the cheque submits electronically, through channels like SMS, mobile app, internet banking, ATM, etc., certain minimum details of that cheque (like date, name of the beneficiary/payee, amount, etc.) to the drawee bank, details of which are cross-checked with the presented cheque by CTS. Any discrepancy is flagged by CTS to the drawee bank and presenting bank, who would take redressal measures.

National Payments Corporation of India (NPCI) shall develop the facility of Positive Pay in CTS and make it available to participant banks. Banks, in turn, shall enable it for all account holders issuing cheques for amounts of ₹50,000 and above. While availing of this facility is at the discretion of the account holder, banks may consider making it mandatory in case of cheques for amounts of ₹5,00,000 and above.

Only those cheques which are compliant with the above instructions will be accepted under dispute resolution mechanism at the CTS grids. Member banks may implement similar arrangements for cheques cleared/collected outside CTS as well.

Banks are advised to create adequate awareness among their customers on features of Positive Pay System through SMS alerts, display in branches, ATMs as well as through their website and internet banking.

Positive Pay System shall be implemented from January 01, 2021.


Reserve Bank of India

[Press Release dt. 25-09-2020]

Cabinet DecisionsLegislation Updates

Scheme of Amalgamation

The Union Cabinet has given its approval to the Scheme of Amalgamation of Lakshmi Vilas Bank Limited (LVB) with DBS Bank India Limited (DBIL).

On 17.11.2020, to protect depositors’ interest and in the interest of financial and banking stability, on RBI’s application under section 45 of the Banking Regulation Act, 1949, LVB had been under a moratorium for a period of 30 days. In parallel, RBI, in consultation with Government, superseded the Board of Directors of LVB and appointed an Administrator to protect the depositors’ interest.

After inviting suggestions and objections from the public and stakeholders, RBI prepared and provided a scheme for the bank’s amalgamation for the Government’s sanction, well in. advance of the end of the period of moratorium so that restrictions on withdrawal faced by the depositors are minimised. With the approval of the scheme, LVB will be amalgamated with DBIL from the appointed date, and with this there will no further restrictions on the depositors regarding the withdrawal of their deposits.

DBIL is a banking company licenced by RBI and operating in India through wholly-owned subsidiary model, DBIL has a strong balance sheet, with strong capital support and it has the advantage of a strong parentage of DBS, a leading financial services group in Asia, with presence in 18 markets and headquartered and listed in Singapore. The combined balance-sheet of DBIL would remain healthy even after amalgamation and its branches would increase to 600.

The speedy amalgamation and resolution of the stress in LVB is in line with the Government’s commitment to a clean banking system while protecting the interests of depositors and the public as well as the financial system.


Cabinet

[Press Release dt. 25-11-2020]

Case BriefsSupreme Court

Supreme Court: The 3-Judge Bench of Arun Mishra, B.R. Gavai and Krishna Murari, JJ., set aside the NCLAT’s Order with regard to the appointment of Resolution Professional.

Question for Consideration

Whether an ex-employee of the ‘Financial Creditor’ having rendered services in the past, should not be permitted to act as ‘Interim Resolution Professional’ at the instance of such ‘Financial Creditor’, regard being had to the nature of duties to be performed by the ‘Interim Resolution Professional’ and the ‘Resolution Professional’?

NCLT’s position

State Bank of India (Financial Creditor) had filed an application under Section 7 of the Insolvency and Bankruptcy Code, 2016 with regard to initiation of Corporate Insolvency Resolution Process before the National Company Law Tribunal, Delhi.

NCLT on noting the objection regarding the proposed ‘Interim Resolution Professional’ — Shailesh Verma directed the Financial Creditor to perform it’s statutorily mandatory obligation by substituting the name of the ‘Resolution Professional’ to act as an ‘Interim Resolution Professional’ in place of Shailesh Verma as it was of the view that Shailesh Verma having worked with the State Bank of India for 39 years before his retirement in 2016, there was an apprehension of bias and was unlikely to act fairly and could not be expected to act as an Independent Umpire.

NCLAT’s position

Aggrieved with the above position, Financial Creditor preferred the appeal before NCLAT on the ground that the proposed ‘Interim Resolution Professional’ Shailesh Verma fulfils the requirement for appointment as ‘Interim Resolution Professional’/ ‘Resolution Professional’ under the ‘I&B Code’ and admittedly bears no disqualification.

NCLAT opined that the apprehension of bias expressed by the ‘Corporate Debtor’ qua the appointment of Shailesh Verma as proposed ‘Interim Resolution Professional’ at the instance of the Appellant — ‘Financial Creditor’ cannot be dismissed offhand and the Adjudicating Authority was perfectly justified in seeking his substitution.

——————————————————————————-

Supreme Court’s position

In the above background, Bench observed at the outset that, NCLAT’s approach was not correct that merely Resolution Professional who remained in the service of SBI and is getting pension was disentitled to be Resolution Professional.

Solicitor General, Tushar Mehta as well as Senior Counsel, Krishnan Venugopal agreed for the appointment of new Resolution Professional by NCLT.

Hence, the Bench held that new Resolution Professional be appointed by the NCLT in accordance with the provisions of the Insolvency and Bankruptcy Code, 2016.

While concluding the order, Court stated that the change of Resolution Professional shall not reflect adversely upon the integrity of Resolution Professional concerned, who has been replaced.

Since the impugned order does not reflect the correct approach, the same shall not be treated as a precedent.[State Bank of India v. Metenere,  2020 SCC OnLine SC 837, decided on 19-08-2020]


Also Read:

[SC ALERT] NCLAT’s decoder on appointment of a person as Resolution Professional: Will an ex-employee of Financial Creditor be eligible for appointment? Read on

Op EdsOP. ED.

We are living in a digital age, much more so after the onset of Covid-19. Business, meetings, interaction, banking, even education has shifted to online mode. Every person is accessing and sharing so much of data that it is very scary as one never knows who hands your data lands up in.

With this, concerns about data privacy have become more important than ever before in everyone’s mind.

Data can be classified into two categories as personal and non-personal. With the advancement of digital technology, there is a tremendous upsurge in storage, handling and processing of data by companies and humans in digital format.

It reflects the need to establish distinct regulatory mechanism for handling and processing of personal and non-personal data to preserve the confidentiality and secrecy of such data.

The Central Government is on course to develop a mechanism for regulating the collection, storage and usage of personal data and non-personal data separately.

Work on the non-personal data bill is going in parallel with the Personal Data Protection Bill, 2019. The Central Government had constituted a panel to develop a draft report on non-personal data governance.

The prime job of panel is to perform extensive research and to study all vital aspects associated with governance and regulation of non-personal data.

According to the draft report, non-personal data means data which is not personal. The panel has submitted its report to Central Government for review. The Central Government has invited comments from general public along with all stakeholders concerned by 13-8-2020 in this regard.

The idea of seeking comments from public is to give final shape to draft in progress to address all concerns and issues related to non-personal data in a comprehensive method.

An interesting outcome of the research by panel is that companies with largest data pools are unbeatable and have techno-economic advantages over small-medium companies.

According to available statistics, few startups established during the period (1990-2000) has emerged as larger corporations with economic capacity of USD 1 trillion market due to their stronghold in collection and analysis of users’ data.

Some interesting facts about larger corporations:

(a) 60% of internet advertising market in the United States is being dominated by Google and Facebook.

(b) 37% of online e-commerce market controlled by Amazon in United States.

These statistics reflects the power of right collection and processing of data.

According to the draft report, companies which are gathering and collecting data beyond certain limits will come under the ambit of a “data business” and have to register as “data business” in India. Such companies need to report the method of data collection and mode of data usage to regulatory authority.

Development of a data sharing framework is critical to:

(a) address and resolve privacy concerns in a timely manner;

(b) condense the side effects related to non-personal data processing; and

(c) generate social, public and economic value creation.

Establishment of data sharing platform reflects in transparency in data usage and handling, quantify efficiencies and better quality services.

It is expected that sharing of non-personal data could encourage companies to come up with new and innovative services and products to cater the needs of public at large.

Establishment of regulatory authority is a decisive connection in non-personal data governance – such authority should be empowered with the right set of legal and administrative tools to monitor data sharing acts of companies, collection and reviewing of data from companies and to resolve data privacy-related disputes.

Certain companies are misusing the data for their benefit causing considerable data privacy issues to the users — it is about time to develop distinct laws and mechanism for handling, processing and usage of personal and non-personal data to curb misuse of personal and non-personal data by companies.

Inception of separate laws for regulation of personal and non-personal data along with right implementation would result in:

(a) streamline the process of data handling and collection;

(b) make companies collecting and processing data more accountable and responsible;

(c) improve transparency standards in collection and usage of data; and

(d) provide more control to users on the aspect of collection and usage of their data.


*Bhumesh Verma is Managing Partner at Corp Comm Legal and can be contacted at bhumesh.verma@corpcommlegal.in. **Paruchuri Baswanth Mohan, Research Associate and can be contacted at  paruchuribaswanthmohan@gmail.com

New releasesNews

Banking And Negotiable Instruments – Law and Practice

by P. Vasantha Kumar

Overview:

The learned author has written the book with the objective to make the non-law and non-commerce readers grasp the subject-matter with ease. A thorough and up-to-date exposition of the law and practice of banking. The author has put forth in this work, his intense and deep study of the subject of Banking Law and his 30 years of experience in the banking industry.

 The book is divided into nine parts. The author has used short sentences, brief paragraphs and numbered lists to highlight key points for a more comprehensive and complete understanding of the subject matter.

Notable features include:

  1. Discusses at length banking law’s interaction with FEMA and Insolvency and Bankruptcy Law in separate chapters.
  2. Important topics of Customer Service, KYC, Negotiable Instruments and Payment Systems are discussed in detail.
  3. Discusses the details regarding RBI regulations on FEMA, 1999.
  4. The topic of “Operational Risk” is explained in detail with examples.
  5. Details of Insolvency and Bankruptcy Code, 2016, Banking Regulation Act, 1949 has been discussed in separate chapters.
  6. Provides paraphrased Court rulings for easy understanding of law points.
  7. Written in simple and lucid manner.

Bonus Feature: Two informative articles by Industry Leader Pramod Rao: 

  • “How Banking Business Works: A Banking Lawyer’s perspective” and
  • “Bounced Cheques: A commercial Problem needs a Commercial Solution”

Get your copy here:

Banking And Negotiable Instruments – Law and Practice by P. Vasantha Kumar

Case BriefsSupreme Court (Constitution Benches)

Supreme Court: The 5-judge bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ has held that

“’banking’ relating to co­operatives can be included within the purview of Entry 45 of List I, and it cannot be said to be over inclusion to cover provisions of recovery by co­operative banks in the SARFAESI Act.”

The judgment of the Court came in a reference made in view of conflicting decisions in Greater Bombay Coop. Bank Ltd. v. United Yarn Tex (P) Ltd., (2007) 6 SCC 236, Delhi Cloth & General Mills Co. Ltd. v. Union of India, (1983) 4 SCC 166, T. Velayudhan Achari v. Union of India, (1993) 2 SCC 582 and Union of India v. Delhi High Court Bar Association, (2002) 4 SCC 275.

Holding that Co­operative bank’s entire operation and activity of banking are governed by a law enacted under Entry 45 of List I, i.e., the BR Act, 1949, and the RBI Act under Entry 38 of List I, the bench said,

“recovery of dues would be an essential function of any banking institution and the Parliament can enact a law under Entry 45 of List I as the activity of banking done by co­operative banks is within the purview of Entry 45 of List I. Obviously, it is open to the Parliament to provide the remedy for recovery under Section 13 of the SARFAESI Act.”

The Court further explained that the main aspect of the activity of the cooperative bank relating to banking was covered by the BR Act, 1949, and the Reserve Bank of India Act, which legislations are related to Entries 45 and 38 of List I of the Seventh Schedule. The aspects of ‘incorporation, regulation and winding up’ are covered under Entry 32 of List II of the Seventh Schedule.

“In our opinion, the activity of banking by such bankers is covered by Entry 45 of List I considering the Doctrine of Pith and Substance, and also considering the incidental encroachment on the field reserved for State is permissible.”

It further said that by enacting the SARFAESI Act, Parliament does not intend to regulate the incorporation, regulation, or winding up of a corporation, company, or co­operative   bank/cooperative society. It provides for recovery of dues to banks, including co­operative banks, which is an essential part of banking activity. The Act, hence,  in no way trenches on the field reserved under Entry 32 of List II and is a piece of legislation traceable to Entry 45 of List I.

In a 159-pages long verdict, the 5-judge concluded,

  • The co­operative banks registered under the State legislation and multi­State level co­operative societies registered under the Multi­State Co­operative Societies Act, 2002 (MSCS Act, 2002) with respect to ‘banking’ are governed by the legislation relatable to Entry 45 of List I of the Seventh Schedule of the Constitution of India.
  • The co­operative banks run by the co­operative societies registered under the State legislation with respect to the aspects of ‘incorporation, regulation and winding up’, in particular, with respect to the matters which are outside the purview of Entry 45 of List I of the Seventh Schedule of the Constitution of India, are governed by the said legislation relatable to Entry 32 of List II of the Seventh Schedule of the Constitution of India.
  • The co­operative banks involved in the activities related to banking are covered within the meaning of ‘Banking Company’ defined under Section 5(c) read with Section 56(a) of the Banking Regulation Act, 1949, which is a legislation relatable to Entry 45 of List I. It governs the aspect of ‘banking’ of co­operative banks run by the co­operative societies. The co­operative banks cannot carry on any activity without compliance of the provisions of the Banking Regulation Act, 1949 and any other legislation applicable to such banks relatable to ‘Banking’ in Entry 45 of List I and the RBI Act relatable to Entry 38 of List I of the Seventh Schedule of the Constitution of India.
  • The co­operative banks under the State legislation and multi­State co­operative banks are ‘banks’ under section 2(1)(c) of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The recovery is an essential part of banking; as such, the recovery procedure prescribed under section 13 of the SARFAESI Act, a legislation relatable to Entry 45 List I of the Seventh Schedule to the Constitution of India, is applicable.
  • The Parliament has legislative competence under Entry 45 of List I of the Seventh Schedule of the Constitution of India to provide additional procedures for recovery under section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 with respect to cooperative banks. The provisions of Section 2(1)(c)(iva), of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, adding “ex abundanti cautela”, ‘a multi­State co­operative bank’ is not ultra vires as well as the notification dated 28.1.2003 issued with respect to the cooperative banks registered under the State legislation.

[Pandurang Ganpati Chaugale v. Vishwasrao Patil Murgud Sahakari Bank Ltd,  2020 SCC OnLine SC 431 , decided on 05.05.2020]

Case BriefsSupreme Court

Supreme Court: Holding the Reserve Bank of India [RBI] Circular issued on 12.02.2018 ultra vires Section 35AA of the Banking Regulation Act, 1949, the bench of RF Nariman and Vineet Saran, JJ directed,

“all actions taken under the said circular, including actions by which the Insolvency Code has been triggered must fall along with the said circular.”

Salient features of the RBI Circular

  • restructuring in respect of borrower entities de hors the Insolvency and Bankruptcy Code, 2016 can only occur if the resolution plan that involves restructuring is agreed to by all lenders, i.e., 100 per cent concurrence.
  • With respect to debts with an aggregate exposure of INR 2000 crore and over on or after 01.03.2018, if default persists for 180 days from 01.03.2018, or if the date of first default is after 01.03.2018, then 180 days calculated with effect from that date, lenders shall file applications singly or jointly under the Insolvency Code within 15 days from the expiry of the aforesaid 180 days.

“In short, unless a restructuring process in respect of debts with an aggregate exposure of over INR 2000 crore is fully implemented on or before 195 days from the reference date or date of first default, the lenders will have to file applications as financial creditors under the Insolvency Code.”

Power to issue the RBI Circular

The Court noticed that the sources of power for issuance of the aforesaid circular have been stated to be Section 35A of the Banking Regulation Act read with the Central Government’s circular dated 05.05.2017, Sections 35AA and 35AB of the said Act, and Section 45L of the Reserve Bank of India Act, 1934.

Section 35A of the Banking Regulation Act

“When resolution through the Code is to be effected, the specific power granted by Section 35AA can alone be availed by the RBI. When resolution de hors the Code is to be effected, the general powers under Sections 35A and 35AB are to be used. Any other interpretation would make Section 35AA otiose.”

Explaining that ‘default’ would mean non- payment of a debt when it has become due and payable and is not paid by the corporate debtor, the Court said that what is important to note is that it is a particular default of a particular debtor that is the subject matter of Section 35AA.

“It must also be observed that the expression “issue directions to banking companies generally or to any banking company in particular” occurring in Section 35A is conspicuous by its absence in Section 35AA. This is another good reason as to why Section 35AA refers only to specific cases of default and not to the issuance of directions to banking companies generally, as has been done by the impugned circular.”

Section 45L of RBI Act

The Court noticed that the impugned RBI circular nowhere said that the RBI has had due regard to the conditions in which and the objects for which such institutions have been established, their statutory responsibilities, and the effect the business of such financial institutions is likely to have on trends in the money and capital markets.

“There is nothing to show that the provisions of Section 45L(3) have been satisfied in issuing the impugned circular.”

Severing Non-Banking institutions from Banking Institutions

The impugned RBI circular applied to banking and non-banking institutions alike, as banking and non-banking institutions are often in a joint lenders’ forum which jointly lend sums of money to debtors. Such non-banking financial institutions are, therefore, inseparable from banking institutions insofar as the application of the impugned circular is concerned.

“It is very difficult to segregate the non-banking financial institutions from banks so as to make the circular applicable to them even if it is ultra vires insofar as banks are concerned.”

Ruling

“the impugned circular will have to be declared as ultra vires as a whole, and be declared to be of no effect in law.”

[Dharani Sugars and Chemicals Ltd. v. Union of India, 2019 SCC OnLine SC 460, decided on 02.04.2019]

Case BriefsSupreme Court

Supreme Court: The bench of Abhay Manohar Sapre and Indu Malhotra, JJ  has held that there cannot be a uniform qualification or/and disqualification for the Board of Directors under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970.

Background of the case:

The case at hand related to the nomination of a Director from the workman/employee category falling in clause (e) of Section 9(3) of the Act and as well as to his/her disqualification for being nominated as a Director in that category Section 9(3) of the Act provides for composition of Board of Directors and also provides as to who can be nominated as Directors in the Board of Directors. Clauses (a) to (i) of sub­section (3) of Section 9 of the Act sets out various categories from which   one Director from each of such categories is nominated in the Board of Directors. Clause(e) deals with a category of workman/employee Director whereas clause(f) deals with a category of officer/employee Director for their nomination in the Board of Directors.

On Distinction between Clauses (e) and (f) of Section 9(3) of the Act:

Both the categories of employees are different as per the perusal of the clauses (e) and (f) of Section 9(3) of the Act that:

  1. One is worker/employee category as defined under Section 9(3)(e) and the other is officer/employee category as defined under Section 9(3)(f) of the Act.
  2. It is for the legislature to decide as to what qualifications and disqualifications should be prescribed for various categories of the employees for their nomination on the post of Director.
  3. There lies a distinction between the worker and the officer. The former, i.e., worker is defined under Section 2(s) of the Industrial Disputes Act, 1947 and is governed by that Act whereas the latter, i.e., officer is not governed by the Industrial Disputes Act but is governed by separate service rules. Both these categories of employees, therefore, cannot be equated with each other and nor can be placed at par for providing equal qualification or/and disqualification for their nomination as a Director in the Board of Directors.
  4. Article 14 of the Constitution applies inter se two equals and not inter se unequals.
  5. The nominee worker/employee has only a right under the Act to be appointed as Director from the category of worker/employee in terms of Section 9 (3)(e) of the Act provided the concerned nominee whose name is recommended by the Union fulfils the qualifications laid down in Clause 3(2)(iii) of the Scheme but not beyond it.

On Uniform Qualification/Disqualification for Board of Directors under Section 9(3) clause (a) to (i):

The Board of Directors consists of persons coming from different fields. There cannot, therefore, be a uniform qualification or/and disqualification for such persons. Indeed, the qualifications and disqualifications are bound to vary from category to category and would depend on the post, experience and the stream from where a person is being nominated as a Director. Moreover, the qualification and disqualification has to be seen prior to his/her becoming a Director and not after his/her appointment as a Director.

[Federation of Bank of India Staff Unions v. Union of India, 2019 SCC OnLine SC 302, decided on 01.03.2019]

Business NewsNews

The government is considering a nationwide single GST registration process for the aviation, banking and insurance sectors. A single registration will potentially solve a majority of the compliance problems that services companies have been complaining about. They now have to register themselves and file GST returns in every state or union territory (UT) they operate in. But the change will require the approval of the GST Council, the top decision-making body under the new tax system, where states are expected to oppose it fearing revenue loss as they have done when the proposal had come up before.

While goods-producing industries were used to making multiple state-wise returns for value-added tax under the previous regime, this is a new requirement for services companies, which complain it as a cumbersome process involving lot of paperwork and manpower. For instance, since most airlines have pan-India operations and sales offices, they have to make about 30 registrations. In each territory, they have to file two returns every month: GSTR1 on outward supply or sale and GSTR 3B, which is a summary of all transactions and credits. With two more being added — GSTR 2 on inward supply or purchase and GSTR 3on reconciliation or credits to be claimed from the government — the number of returns that an airline has to file is set to increase to 120 a month, or 1,440 a year.

There are other fears as well. Inter-company transactions in some sectors could attract transfer pricing issues. In such cases, the company will have to pay tax. There could be problems also over tax assessment due to reassignment of work within the tax authorities. The government has assigned GST assessing officers from a combined pool of officials who previously dealt with sales tax, excise or VAT. Some of them, especially those working in state governments, may not be familiar with the way services industries operate. Earlier, state officials dealt primarily with manufacturing companies, collecting VAT. The central government collected excise tax as well as services tax from industries like aviation and financial services. Service providers, which were previously assessed only at the central level, are also assessed by state officials under GST. A common registration system, with a centralized filing of returns, will significantly cut compliance costs and complexities, a key issue that almost all of corporate India has raised about the tax structure that combines several indirect taxes into one.

[Source: The Economic Times]

Case BriefsSupreme Court

Supreme Court: Dealing with the matter where it was contended that a Sale Notification issued under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) was in infraction of Section 187 of the Tripura Land Revenue and Land Reforms Act, 1960, the Court held that the dominant legislation being the Parliamentary legislation, the provisions of the Tripura Act of 1960 would be invalid. It is the provisions of the Act of 2002, which do not contain any embargo on the category of persons to whom mortgaged property can be sold by the bank for realisation of its dues that will prevail over the provisions contained in Section 187 of the Tripura Act of 1960.

Applying the test of ‘dominant legislation’ on the encroachment in the present case, the Court, explaining the difference between the Central and State Law, said that the provisions of the Act of 2002 enable the bank to take possession of any property where a security interest has been created in its favour, specifically, Section 13 of the 2002 Act enables the bank to take possession of and sell such property to any person to realise its dues. The purchaser of such property acquires a clear title to the property sold, subject to compliance with the requirements prescribed. Section 187 of the Tripura Act of 1960, on the other hand, prohibits the bank from transferring the property which has been mortgaged by a member of a scheduled tribe to any person other than a member of a scheduled tribe.

The bench of Ranjan Gogoi and Abhay Manohar Sapre, JJ, hence, said that sale of mortgaged property by a bank is an inseparable and integral part of the business of banking. So long there did not exist any parallel Central Act dealing with sale of secured assets and referable to Entry 45 of List I, the State Act, including Section 187, operated validly. However, the moment Parliament stepped in by enacting such a law traceable to Entry 45 and dealing exclusively with activities relating to sale of secured assets, the State law, to the extent that it is inconsistent with the Act of 2002, must give way. [UCO Bank v. Dipak Debbarma, 2016 SCC OnLine SC 1391, decided on 25.11.2016]