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 BriefsHigh Courts

Karnataka High Court: A Division Bench of Abhay S. Oka, CJ and M. Nagaprasanna, J. dealt with issue of powers which can be conferred on the Court-appointed Administrator for recovery proceedings.

The instant Writ Petition was filed under Articles 226 and 227 of the Constitution of India praying to issue a writ in the nature of mandamus by constituting a team of Auditors to conduct Forensic Audit of accounts and all transactions of Respondent 7 from the year 2010 till 31-12-2020 at the earliest and to constitute a Special Investigation Team headed by High Ranking Officer to investigate the role of every person involved or connected to Respondent 8 Society both by Respondent 2 and by Respondent 5, 6 and 9 being monitored by this Court and submit report thereby.

The present matter deals with the issue of powers which can be conferred on the Court-appointed Administrator of Sri Guru Sarvabouma Souharda Credit Co-operative Limited (for short “the Credit Co-operative”) The said Credit Co-operative is registered under Section 4 of the Karnataka Souhardha Sahakari Act, 1997 (for short “Act of 1997”). Various allegations have been made about several financial irregularities, acts of misappropriation, acts of embezzlement of funds and creation of fictitious accounts to the extent of 500.00 Crores in relation to the Credit Co-operative. It also deals with the cause of the investors of Sri Guru Raghavendra Sahakara Bank Niyamitha (for short “the said Co-operative Bank”) in which the said Credit Co-operative has invested an amount of about Rs 235.00 Crores which it seeks to recover.

In the order of appointment of an administrator for the said credit cooperative, Court observed

“The State Government has appointed a Competent Authority in accordance with sub-section (1) of Section 5 of the said Act of 2004. However, the powers, duties and functions of the Competent Authority under the said Act of 2004 are well defined. The Competent Authority has not been empowered to look after the day-to-day functioning of the Credit Co-operative.

There is no one who can effectively deal with the investors. Therefore, the question is whether a retired Senior Bank Official can be appointed as an Administrator who will ensure that the day-to-day activities of the Credit Co-operative will continue.”

The order also proposed two names out of which Shri K.S. Shyam Prasad, Retired Deputy General Manager, Canara Bank was appointed as an Administrator and it was observed that what powers can be exercised by the retired Bank Officer who is appointed as the Administrator. The Court observed “To enable the Court to decide the said question, we propose to direct the Administrator to take charge of the Credit Co-operative and to examine the records of the said Credit Co-operative. After examining the records and after making a study of the situation at the grass root level, the Administrator will submit a report to this Court stating what according to him are the immediate steps required to be taken for restoring the functioning of the said Credit Co-operative”

The Court observed that apart from the fact that the Court appointed Administrator, it cannot create new liabilities, the act of renewal of the Fixed Deposits may give a false hope to the investors. Therefore, it was proposed to permit the Administrator to renew the Fixed Deposits of the investors on the requisition in writing submitted by each investor stating that he or she is fully aware that even if the Fixed Deposit is renewed, and that there is no guarantee that the principal amount and interest will be paid by the said Credit Co-operative to him/her. Moreover, the investor will have to give undertaking not to make any personal claim against the Administrator on the basis of the renewed Fixed Deposits.

Other powers granted to the Administrator of Sri Guru Sarvabouma Souharda Credit Co-operative Limited, Mr K.S. Shyam Prasad are:

  1. To continue day-to-day functioning of the said Credit Co-operative without creating any liability except the liabilities which are permitted under this order;
  2. The administrator shall be empowered to initiate recovery proceedings against the borrowers of the said Credit Co-operative by issuing notices and by filing appropriate proceedings in accordance with law on behalf of the said Credit Co-operative. For that purpose, the Administrator shall be entitled to engage services of Advocates;
  3. In the event, any borrower comes forward to repay the loan amount, after obtaining a specific leave of this Court, the Administrator shall be entitled to accept the amount due and payable from the borrower, execute necessary documents and issue provisional discharge certificate. The amount received from the borrowers shall be credited to the account of the said Credit Co-operative in the name of the Competent Authority under the said Act of 2004;
  4. We permit the Administrator to accept the upto date amount due and payable from Shri Sreepathi Herele P, to execute necessary registered document of cancellation of mortgage and to issue discharge certificate subject to compliance with the conditions as suggested by the Administrator in his report. The amount received from the said borrower shall be credited to the account of the Competent Authority under the said Act of 2004;
  5. On the request in writing made by any member of the Credit Co-operative holding Fixed Deposits for renewal of the Fixed Deposits, the Administrator is permitted to renew the Fixed Deposits provided the person holding the Fixed Deposit, gives a written undertaking stating that he or she is fully aware that even if the Fixed Deposit is renewed, there is no guarantee that the principal amount and interest will be paid by the said Credit Co-operative. The investor shall also give an undertaking that he will be entitled to receive the principal amount of Fixed Deposit and interest only to the extent permitted under the orders of the Special Court under the said Act of 2004. The investor of the Fixed Deposit will also give an undertaking not to make any personal claim against the Administrator on the basis of the renewal of the Fixed Deposit. Only after such undertakings in writing are given by the investor and after making due inquiry about the genuineness of the Fixed Deposit receipt, the Administrator shall renew the Fixed Deposits;
  6. The Administrator shall submit a report to the Competent Authority under the said Act of 2004 containing details of the amounts payable as on today towards arrears of the salary of the staff, arrears of rent in respect of office premises, arrears of electricity, water and maintenance charges in respect of the office premises, internet charges, sundry expenditures incurred on running of the office. He will also submit an estimate of the amount required per month for meeting the aforesaid expenditure for running the office of the said Credit Co-operative. The Administrator shall also submit an ad hoc estimate of the amount required towards Advocate’s fees. As soon as the details are received, the Competent Authority shall be immediately make an application to the Special Court for permitting the Competent Authority to release the aforesaid amounts to the Administrator. The Special Court shall pass an order on the applications/report submitted by the Competent Authority within maximum period of one month from the date of filing of the report/application by the Competent Authority;
  7. We direct the ED to apply to the Competent Court under the Prevention of Money Laundering Act, 2002, for permitting the said Credit Cooperative toe its office premises for running its office. If such an application is made, the said Court shall decide the same at the earliest;
  8. It will be open for the Administrator to make a requisition for conduct of statutory audit or re-audit of the accounts of Credit Co-operative;
  9. We direct that the Administrators of both the Co-operative Bank and the said Credit Co-operative shall hold regular meetings to sort out various issues arising between two entities;
  10. In the event the Administrator of the Credit Co-operative needs further directions, he will submit a report to the Court through the learned Additional Government Advocate, who will immediately move the Court on the basis of the said report for necessary directions.

The matter will be next heard on 18-08-2021.[K.R. Narsimha Murty v. Secretary Ministry of Co-operative Societies, Writ Petition No. 7350 OF 2020 (GM-RES-PIL), decided on 23-07-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances

IN W.P. NO. 7350 OF 2020

Mr. Sushal Tiwari, Advocate for applicant on I.A.No.12/2020;

Mr. V. Sreenidhi, AGA for R-1 & R-3 to R-6;

Mr. Manmohan P.N. for R-12;

Mr. R.V.S. Naik and Mr. V. Vinay Giri Advocate for R-2 and R-10;

Mr.  Rajesh S.V., Advocate for intervenors;

Mr. A.M. Vijay, Advocate for intervenors;

Mr. Madhukar Deshpande, Advocate for R-11;

Mr. Abhinav R, Advocate for impleading applicant on I.A.No.7/2020;

Mr. S.P.Shankar and Mr. B.V. Malla Reddy, Advocate for impleading applicant on I.A.No.11/2020; R-7 and R-8 are served;

Mr. Halesha R.G., Advocate for impleading applicant on  I.A.No.13/2020;

Mr. Shyam Prasad, Administrator 

IN W.P. NO. 8674 OF 2020

Mr. Satyanand B.S. for petitioners

Mr. V. Sreenidhi, for R-1, R-2, R-4 to R-6 & R-10;

Mr. R.V.S. Naik, Mr. V. Vinay Giri, Advocate for R-3;

Mrs. Vani H, Advocate for R-7

Case BriefsTribunals/Commissions/Regulatory Bodies

Securities and Exchange Board of India (SEBI): Soma Majumder, Adjudicating Officer, imposed a 25 crore penalty on Yes Bank Ltd. (YBL), and separate penalties on the three senior executives of its private wealth management team for perpetrating fraud on its customers by influencing them to alter their investment positions from fixed deposits (FD) to risky AT-1 bonds.

In the pertinent matter, the Bank was allegedly involved in the sale of AT1 bond fraudulently, which started in 2016 and continued till 2019. It appeared that YBL wanted to free up ‘shelf space’ for institutional investors to subscribe to further capital of YBL. Therefore, the Noticees devised a devious scheme to dump the AT1 bonds on their hapless customers acted through its employees including the three senior executives to perpetrate such fraudulent acts on its hapless and unsuspecting customers, some of whom were influenced to even alter their investment positions from FDs to these risky AT1 bonds. In order to do that, the Noticees highlighted the AT1 bonds as earning high interest vis-à-vis the FDs. The omission on the part of the Noticees to forward the relevant documentation to the investors customers indicated suppression of material facts and thus misrepresentation Some of the customers also closed the FDs and used the money to buy the AT1 bonds.

Noticee 1 had put forth 52 submissions and Noticee 2 had put 15 additional submissions.

While addressing the demand of the Noticees to cross-examine the complainants, it was held that, “…I note that while the impugned complaints have been the basis of initiation of investigation by SEBI, the charges in the SCN have been alleged on the basis of the detailed fact-finding which investigation conducted. Cross-examination is meant for assisting the Noticees to rebut the evidence against them while contesting the matter. However, since the complaints of the investors are not primarily relied upon in this proceedings, the question of cross-examination does not arise and hence no prejudice is caused to the Noticees by not acceding to their request for cross-examination…”.

The tribunal after looking into all the submissions so made, took note of all the evidences, documents and the proximate facts and circumstances, and was thus of the opinion that “It is clear that to further their own cause, the Noticees devised a scheme to purposely suppress the risk factors of the AT-1 bonds and to highlight the attractive features and also distorted and misrepresented the material facts, so that their customers could be influenced to invest in these risky bonds, some of who also shifted their investments from FDs to these bonds. It is clear that the Noticees had an intention to defraud the customers while making the sales pitch to their customers which is why they did not institute any of the aforesaid safeguards. It cannot be a matter of coincidence that such a large number of customers, i.e. 1311, were influenced and induced to invest in these risky bonds…”.

It further observed that, “It is seen from the facts of the instant case that these AT-1 bonds were ‘down sold’ in order to make ‘shelf space’ for the Institutional Investors to subscribe to further capital which may be issued by the YBL. So it was in the interest of Noticee1 to make shelf space and make the Institutional investors to subscribe to further capital and therefore Noticee 1 decided to facilitate the down selling of these AT-1 bonds…”.

It also took note of the fact that I note that initially, AT1 bonds were allowed to be issued only to institutional investors. Thereafter, vide its circular dated September 01, 2014, RBI allowed Banks to issue AT1 Bonds to individual investors but also mandated issuers to appropriately disclose to the investors, the unique features along with the risks associated with the bonds. And therefore, the issuer had the fiduciary duty to make sure that the features and risks of the instrument were known to the investors. And the difference between a subordinated bond and a fixed deposit should have been made clear while highlighting that it is not covered by deposit insurance.

Therefore the Tribunal exclaimed that,“ I conclude that the AT-1 bonds were sold to the customers of YBL by the Noticees without adopting adequate safeguards to protect their interests and without sufficient due diligence”. “…I conclude that the allegation that Noticees 1 to 4 violated Regulations 3(a), 3(c), 3(d) and 4(1) of PFUTP Regulations and Sections 12A(b) & 12A(c) of the SEBI Act and Noticees 1 and 2 also violated Regulation 4(2)(s) of PFUTP Regulations, read with Explanation (1) to Regulation 4(2) of PFUTP Regulations stands established. Further, Noticees 3 and 4 have submitted that the amendment to Section 4(2)(s) of PFUTP Regulations came into effect only in February 2019 after they had left the employment of YBL…”.

Resultantly a penalty of 25 crores was imposed on Yes Bank Ltd. a penalty of Rs 1 crore on Vivek Kanwar, head of private wealth management, and Rs 50 lakh each on Ashish Nasa and Jasjit Singh Banga.[Yes Bank Limited, In re, Order/SM/MG/2021-22/11306-11309, decided on 12-04-2021]

COVID 19Hot Off The PressNews

Upon requests for urgent listing of cases having been made telephonically to Registrar of this Appellate Tribunal from various persons, who were unable to physically file the same on account of complete lockdown declared by Government with effect from 25th March, 2020.

In view of the above, Bench comprising of Justice Bansi Lal Bhat (Actg. Chairperson) and Justice Anant Bijay Singh] Member (Judicial) and Dr Ashok Kumar Mishra] Member (Technical) takes suo moto cognizance of the unprecedented situation arising out of spread of COVID19 virus declared a pandemic.

Having regard to the hardships being faced by various stakeholders as also the legal fraternity, which go beyond filing of Appeals/ cases, which has already been taken care of by the Hon’ble Apex Court by extending the period of limitation with effect from 15th March, 2020 till further order/s in terms of order dated 23rd March, 2020 in Suo Motu Writ Petition (Civil) No(s).03/2020, inasmuch as certain steps required to be taken by various Authorities under Insolvency and Bankruptcy Code, 2016 or to comply with various provisions and to adhere to the prescribed timelines for taking the ‘Resolution Process’ to its logical conclusion in order to obviate and mitigate such hardships, this Appellate Tribunal in exercise of powers conferred by Rule 11 of National Company Law Appellate Tribunal Rules, 2016 r/w the decision of this Appellate Tribunal rendered in “Quinn Logistics India Pvt. Ltd. v. Mack Soft Tech Pvt. Ltd. in Company Appeal (AT) (Insolvency) No.185 of 2018” decided on 8th May, 2018 do hereby order as follows: –

(1) That the period of lockdown ordered by the Central Government and the State Governments including the period as may be extended either in whole or part of the country, where the registered office of the Corporate Debtor may be located, shall be excluded for the purpose of counting of the period for ‘Resolution Process under Section 12 of the Insolvency and Bankruptcy Code, 2016, in all cases where ‘Corporate Insolvency Resolution Process’ has been initiated and pending before any Bench of the National Company Law Tribunal or in Appeal before this Appellate Tribunal.

(2) It is further ordered that any interim order/ stay order passed by this Appellate Tribunal in anyone or the other Appeal under Insolvency and Bankruptcy Code, 2016 shall continue till next date of hearing, which may be notified later.

The above order is to be circulated to all all benches of NCLT, New Delhi.

In Re Competition Act, 2002, this Appellate Tribunal do hereby order as follows: –

(1) That interim direction / stay order passed in all competition Appeals shall continue until further order.

(2) In the event of expiry of period of Fixed Deposits, the concerned bank shall renew the same for further period of six months.

In Re National Company Law Appellate Tribunal Rules, 2016 do hereby order as follows: –

(1) It is ordered that any interim order/ stay order passed by this Appellate Tribunal in anyone or the other Appeal under the Companies Act, 2013 shall continue till next date of hearing, which may be notified later.

[Suo Moto – Company Appeal (AT) (Insolvency) No. 01 of 2020, Order dt. 30-03-2020]