Legal and Regulatory Aspects ICAI Indore Dt.24.01.2014 Contents Banking Law & Practice Banking Regulation Act Banking Laws (Amendment) Act, 2012 Types of charges over securities ( Transfer of Property Act, Indian Contract Act, SARFAESI) Credit Information Companies (Regulation) Act, 2005 Negotiable Instruments Act Anti Money Laundering & Know Your Customer - Key Aspects and elements of AML KYC Banking Law and Practice Several enactments - Banking Regulation Act, 1949 - Reserve Bank of India Act, 1934 - Banking Companies (Acquisition and Transfer of Undertakings) Act,1970 & 1980 - SBI Act, 1955 & SBI (Subsidiary Banks) Act, 1959 - RRB Act, 1976 - Companies Act, 1956 - Negotiable Instruments Act, 1881 - Prevention of Money Laundering Act, 2002 - Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - Credit Information Companies Act - Recovery of Debts due to Banks - Transfer of Property Act Regulations Banking Regulation Act, 1949 Banking Regulation Act, 1949 Definition of banking & banking company Licensing Permitted business Prohibited business RBI’s powers Control over management Definitions Banking means “ accepting, for the purpose of lending or investment, of deposits of money from the public, repayable on demand or otherwise, and withdrawal by cheque, draft, order or otherwise” {Section 5(b)} Banking company “means any company which transacts the business of banking in India” - Explanation excludes manufacturing and trading company {Section 5 (c)} Use of the word “bank”, ”banker”, “banking” or “banking company” - Section 7 Permitted business Can carry on business permitted u/s 6 - Borrowing, lending, bill discounting, etc. • Buying, selling and dealing in bullion • Buying and selling of foreign exchange • Traveller’s cheques • Letters of credit • Underwriting and dealing in shares, debentures, etc. • Safe deposit • Collecting and transmitting of money and securities • Undertaking/ executing trusts - Activities that are incidental/ conducive to the promotion/ advancement of its business - Central Govt. empowered to notify permitted business Act overrides memorandum, articles, etc. Prohibited business Trading prohibited vide Sec 6 Non-banking assets – Sec 9 - Immoveable property can only be held for own use - Other – disposed within 7 years • RBI can give additional 5 year extension Restriction on nature of subsidiary companies – Sec 19 - Permitted business u/s 6 - Carrying on banking outside India - Credit information business - Other business with RBI and CG approval Licensing RBI empowered to issue & cancel licences - Section 22 criteria • Solvency • Affairs/ management not detrimental to depositor and public interest • Adequate capital structure and capital prospects • Public interest will be served • Grant of licence not prejudicial to operation and consolidation of banking system • Foreign banks – home country does not discriminate against Indian banks • Other conditions specified by RBI - New bank licencing requirements Branch licencing u/s 23 Returns Section 24 - Monthly return of assets in India - DTL on reporting Friday Section 25 - Quarterly return of assets and liabilities at the close of business on the last Friday of every quarter Section 27 - Monthly return on Asset & Liability position as on last Friday - RBI empowered to direct banks to furnish information within a specified time frame - RRBs also need to submit a copy to NABARD Section 26 - Return of unclaimed deposits Section 31 - Three copies of annual returns to be submitted to RBI Inspection Section 35 - Inspect books • Also on direction of CG • Copy of report to be given to bank • Empowers RBI Inspecting officer to examine bank officials under oath - Also empowers RBI to carry out a scrutiny Powers of RBI Sec 35A – Power to give directions Sec 35B – Prior RBI approval required for appointment of Chairman, MD, CEO or director Sec 36 – Further powers and functions of RBI - Caution/ give advice regarding certain transaction/ class of transactions - Call for meeting of directors, depute its officer to board meeting, appoint observer, etc - Report on Trend and Progress in Banking in the country Powers of RBI – Control over management Sec 36AA – Power to remove managerial and other persons from office - Appeal lies with Central Government Sec 35B – Power to appoint additional directors Other important provisions Sec 14 – Prohibition of charge on unpaid capital Sec 15 – Prohibition on payment of dividend unless intangible assets written off Sec 17 – Creation of reserve fund Sec 18 – Maintenance of cash reserve ratio Sec 20 – Restrictions on loans and advances Sec 24 – SLR Applicability of BR Act Nationalised Banks - Banking Companies (Acquisition and Transfer of Undertakings) Act,1970/1980; - Section 51 of BR Act makes specific sections applicable Regional Rural Banks - Regional Rural Banks Act, 1976 - Section 51 of the BR Act Cooperative Banks - Cooperative Societies Act. 1912 or the respective Co-operative Socieities Act of the state concerned - Part V of the B R Act – BR (AACS) Act Some important RBI instructions in context of BR Act Master Circular - Loans & Advances – Statutory and other restrictions - Branch authorisation - Cash Reserve Ratio and Statutory Reserve Ratio Others - Restriction on drawdown of reserves - Guidelines on declaration of dividend Banking Laws (Amendment) Act Passed by Parliament in Dec 2012 Some highlights - Voting rights • 26% from existing 10% in private sector banks • 10% from existing 1% in public sector banks - Prior approval for voting rights/ shareholding more than 5% - Power to RBI to supersede entire board of banks - Power to call for information from associate and group companies - Depositor Education and Awareness Fund - Primary cooperative societies to be licenced by RBI - Preference shares - Naionalised banks can issue bonus shares - Joint inspections of associates with sectoral regulator Laws relating to securities and modes of charging Transfer of Property Act, 1882 Indian Contract Act, 1872 SARFAESI Overview of charges Creation of a right in favour of the creditors Nature of security Types of security Kind of Charge Defined in Act Immoveable property Land and building Mortgaage Sec 58, Transfer of Property Act Actionable claims (i.e. unsecured debts) Book debts, term deposit receipts, etc. Assignment Sec 130, Transfer of Property Act Moveable property/ goods Plant & machinery, stocks, vehicles, etc. Pledge/ hypothecation/ lien Pledge-Sec 172 Indian Contract Act Hypothecation – Sec 2(n) SARFAESI Paper securities Shares, debentures, MF, bonds Lien Sec 170 and 171Indian Contract Act Personal guarantee Promoters & 3rd party guarantees Personal liability Sec 126 Indian Contract Act Kinds of charges – Fixed v/s Floating Fixed charge - created on properties such as land and buildings, plant and machinery - Identity does not change - Credit consent required for disposal - Debtor retains ownership and possession Floating charge - Created on assets that undergo change - Security allowed to be used in ordinary course of business unless charge crystallises Kinds of charges Pari Passu charge - Several creditors- typically in consortium accounts - Equal priority Exclusive charge - To one creditor - No intervention of other creditors First charge - First right over the proceeds from the security charged Second charge - Rights subject to those of first charge holder Mortgage Dealt with in Transfer of Property Act, 1882 - “A mortgage is the transfer of interest in specific immoveable property, for the purpose of securing the payment of money advanced or to be advanced by way of loan, on existing or future debt or the performance of an engagement which may give rise to pecuniary liability”- Section 58 Types - Simple - Conditional sale - Unsufructuary mortgage - English mortgage - Equitable Mortgage - Anomoalous morgage Simple Mortgage “Without delivering possession of the mortgaged property, the mortgager binds himself personally to pay the mortgage money and agrees, expressly or impliedly, that in the event of his failing to pay according to his contract, the mortgagee shall have a right to cause the mortgaged property to be sold by a decree of the court in a suit and the proceeds of the sale to be applied so far as may be necessary in payment of the mortgage money” [Sec 58(b)] Intervention of court required Mortgagee has no right to get any payments out of the rents and produce of the mortgaged property Mortgagee not put in possession of the property Registration is mandatory Conditional Sale “The mortgager ostensibly sells the mortgaged property on the condition that: (a) on default of payment of the mortgage money on a certain date, the sale shall become absolute, or (b) on such payment being made the sale shall become void, or (c) On such payment being made, the buyer shall transfer the property to the seller” [Sec 58(c)] Sale is ostensible – not real If money not paid ostensible sale shall become absolute – Court decree required No personal liability for repayment of the loan Unsufructuary mortgage “mortgage transaction in which (a) the mortgager delivers possession expressly, or by implication binds himself to deliver possession of the mortgaged property to the mortgagee, and (b) Authorises the mortgagee to retain such possession until payment of the mortgage money and to receive the rents and profits accruing from the property or any part of such rents and profits and to appropriate the same in lieu of interest, or in payment of the mortgage money, or partly in lieu of interest and partly in payment of the mortgage money” [Sec 58(d)] Mortgagee in actual legal possession of the property, till dues are repaid Mortgage has the right to receive rents and profits accruing from the property No personal liability of the mortgager No time limit specified English mortgage “mortgagee binds himself to repay the mortgaged property absolutely to the mortgagee, but subject to the provision that he will retransfer it to the mortgagee upon payment of the mortgage money as agreed” [Sec 58(e)] Personal covenant to pay on a specified date notwithstanding the absolute transfer of property to the mortgagee Absolute transfer - Subject to reconveyance in event of repayment Court decree for sale Equitable mortgage “where a person delivers to a creditor or his agent documents of title to immoveable property, with the intent to create a security thereon, the transaction is called a mortgage by deposit of title deeds” [Sec 58(f)] Deposit of title deed with intention to secure debt - Original deed not required but recommended - Saves on stamp duty Deposit at notified places only - Independent of location of the property Anomalous mortgage “a mortgage which is not a simple mortgage, a mortgage by conditional sale and Unsufructuary mortgage and English mortgage or a mortgage by deposit of title deeds within the meaning of this section” [Sec 58(g)] Should satisfy the basic definition of mortgage Should not fall in the earlier categories Usually a combination of two mortgages Mortgages- Other key aspects Registration requirements - Registration required for mortgages other than equitable mortgage – Sec 59 - Indian Registration Act- Sec 23 - required within 4 months of execution - Companies Act, 1956-Sec 125- within 30 days of execution Priority of mortgages - First in point of time has better title – Sec 48 - Amongst registered instruments- date of execution - Registered has priority over unregistered • Exception is deposit of title deeds Mortgages-Other key aspects Enforcement - Code of Civil procedure - Jurisdiction based on location of property - Preliminary decree - Final decree - Sale Which Mortgage would you prefer? Mortgage Personal Liability Possession Simple Mortgage Conditional Sale Unsufructuary Mortgage English Mortgage (Court decisions) (Deposit of title deeds) Equitable Mortgage Assignment Transfer of actionable claim - Claim to debt other than debt • secured by mortgage of immoveable property • Hypothecation/ pledge of moveable property not in possession Key features - Should be in writing - Due notice to be given to the debtor - Assignor cannot give better title - Eg LIC policies used as security Pledge “Pledge is the bailment (delivery) of goods as security for payment of a debt or performance of a promise” (u/s 172 of Indian Contracts Act) Key aspects - Delivery of goods • Need not be physical delivery • May be constructive delivery – eg handing over keys of godown • Can only be on existing goods- not on future goods - Pawnor – borrower who gives the goods as security - Pawnee- lender who takes the goods as security - Ownership retained with pawnor - Possession with pawnee • Possession may be parted with against Trust Receipt • Right to retain or sell goods where pawnor makes default in payment • Notice to sell required to be given • Right of pledge prevails over any other dues including Government dues except workers wages Hypothecation Defined in SARFAESI, 2002 (Sec 2(n)) - Charge upon moveable property - Existing/ future - Without delivery – possession with borrower Drawbacks - Risk of fraud- multiple charges on same property - Erosion of security value Precautions - Periodic stock statements - Registration of charge - Notice of charge - Insurance of property Lien General Lien - Creditor’s right to retain property of debtor - Possession in ordinary course of business - Limited to possession of property – not to sell Banker’s lien - General lien+ right to sell - Applicable to negotiable instruments and credit balances - Not applicable to safe deposit, for sale Other aspects relating to Contracts Proposal and acceptance Consideration - Exemption Free consent Capacity to contract - Sound mind - Not disqualified from entering into a contract - Minor contract Stamping of documents Stamp duty – tax levied on documents - Originated in Netherlands – 1624 - France (1654), Denmark (1657), Prussia (1682) Key aspects - Amount of duty - Type of stamp used - Cancellation of stamp - Time of stamping and execution - Place of stamping and execution Consequences - Admissibility as evidence - Adjudication Law of limitation Period within which suit can be filed - Bars to remedies - Original right may continue to be exercisable Right of action revived by - Fresh set of documents - Acknowledgement of debt • Writing, signed, stamped and addressed to lender - Part payment authorised by the borrower Power of Attorney Types - General v/s special Registration of power of attorney Precautions - Scope of powers - Agent acting within the scope of powers - Confirmation of validity SARFAESI Act, 2002 Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - Coverage - Securitisation and reconstruction of financial assets - Enforcement of security interest without court intervention - Central Registry SARFAESI - Coverage Effective since June 21, 2002 - Retrospective coverage - Applicable to whole of India including J&K - Also covers notified Housing Finance Companies - Sec 31 - • Lien and pledge • Aircrafts, shipping vessels • Conditional sale, hire purchase, contract where no security interest created • Financial asset<=Rs.1 lakh • Agricultural land • Amount due<20% of the Principal +Interest Mardia Chemicals case – Supreme Court • Sec 17(2) – unconstitutional- arbitrary, oppressive and unreasonable • Subsequent amendment SARFAESI – Securitisation/ Reconstruction Companies Registration with RBI - Guidelines issued by DNBS - Minimum owned fund of Rs100 crore/ 15% of financial assets to be acquired – whichever is lower Acquisition of financial assets - Scheme wise - Funded by investors – QIBs - Issuance of Security Receipts - Managed by trust SARFAESI – Enforcement of security interest No need for court intervention - Overriding effect over provisions of Transfer of property Act - Notice mandatory - - • 60 days notice • Details of amount payable and secured asset intended to be enforced • Borrower prohibited from transferring assets SC Guidelines in Mardia case • Borrower can raise objections • Bank to apply mind while answering objections • Response to borrower within one week • Rejection of objections cannot be appealed to DRT Can appeal to DRT – deposit of 50% of the amount due Can seek help of District Magistrate/ Chief Metropolitan Magistrate SARFAESI – Enforcement of security interest Recourse available to lender - Possession of secured asset - Management of secured asset - Appoint person as manager of secured assets - Require from any person who has acquired the secured asset from the borrower to pay the amount due to the extent of the secured asset Appropriation of proceeds - Expenses->Dues->Balance to debtor - If winding up – dues of workman have pari passu charge Consortium accounts – multiple secured creditors - Creditors representing ¾ of outstanding dues have to agree Recent amendment- bank may purchase at auction [13(5A)] SARFAESI – Enforcement of security interest Safeguards - Inventory of property taken into possession - Take care of property as owner of ordinary prudence – insure if necessary - Expedite sale if subject to speedy decay - Possession notice - - • affixation at outer door/ conspicuous place • Publication in 2 leading newspapers including one vernacular Auction • 30 days notice – publication in 2 leading newspapers incl. vernacular • Valuation to fix reserve price Appeal to DRT - Compensation • Within 45 days of measures being initiated • 50% to be deposited- DRT may reduce to 25% SARFAESI - CERSAI Sec 25 Company promoted by Government & PSU banks Maintains registry of - Securitisation of financial assets - Reconstruction of financial assets - Creation of security interests Registration additional – not substitute for existing requirements Records available for search Minimisation of frauds due to multiple borrowing on same security Recovery of Debts due to Banks and Financial Institutions Act, 1993 Coverage - Applicable to whole of India except J&K - Debt > Rs. 10.00 lakhs Constituted Debt Recovery Tribunals for speedy recovery - Established by Central Government - Single member – Presiding Officer - Appeal against DRT order lies with DRAT • Chairperson - Jurisdiction of civil courts (other than HC/SC) barred Credit Information Companies (Regulation) Act, 2005 Credit Information Companies(Regulation) Act, 2005 Objective- regulation of credit information companies Registration - Compulsory registration with RBI • - Existing companies to apply within 6 months Conditions • Minimum capital – Rs. 30 crore (authorised), Rs.20 crore(issued) • Management not prejudicial to interests of users, clients or borrowers, credit information companies • Additional conditions at discretion of RBI - RBI may determine cap on maximum number of credit information companies - RBI may cancel registration - Appeal lies with Central Government RBI Powers Registration and cancellation Frame policy and regulations Give directions Inspection Appoint observers Supersede board – appoint administrator Specify maximum fee Recommend exemption and rules Management of Credit Information Companies Management - Chairman (whole time)/ Managing Director - 50% of board with specialised knowledge • Public administration, law, banking, management, finance, accountancy and information technology - RBI empowered to supersede board – appoint Administrator Functions Permitted businesses - Collect information on trade, credit and standing of borrowers of member credit institutions - Provide • Information to specific users, credit institutions • Credit scoring - Research projects - Other business specified by RBI Membership - Credit institutions to become members - Compulsory to be member of at least one - Bound to give information Disclosure of credit information restricted Information Privacy Principles Accuracy and secrecy of credit information Alteration of credit information - Credit information to be supplied by credit institutions - Borrower may request updation Fine for unauthorised access Credit Information Companies Regulations, 2006 Specified users - Member credit institutions (specified in Act itself) • Banks, Financial Institutions, NBFCs, credit card companies, housing finance company, state financial corporation - Insurance companies - Cellular phone service providers - Rating agency - Broker - Trading member of recognised commodity exchange - SEBI - IRDA Forms of business Privacy principles Maximum fee and charges - Membership - Rs.15.00 lakh - Providing credit information report- Rs.500 for individuals, Rs. 5,000 for other borrowers/ specified users Principles 1. Care in collection of credit information 2. Data security and secrecy 3. Access and modification 4. Data collection limitation 5. Data use limitation 6. Data accuracy 7. Archiving and length of preservation Credit Information Companies Credit Information Bureau (India) Ltd, Equifax Credit Information Services Pvt. Ltd Experian Credit Information Co. of India Pvt. Ltd, Highmark Credit Information Services Pvt. Ltd. Reporting of wilful defaulters Wilful default - Default in meeting obligations • Despite capacity to repay • Diversion of funds • Siphoning of funds • Sale of assets Diversion - Short term loans used for long term purposes - Purchasing assets other than those for which the loan was sanctioned - Transferring to subsidiaries group companies - Investments of funds in equity/ debti without lender’s permission - Shortfall in deployment vis-à-vis disbursal Reporting of wilful defaulters Penalties - No additional facilities - Legal process - Proactive towards change of management - Covenant- prohibiting directors from wilful defaulters Quarterly reporting - Suit filed - Rs. 25 lakh and above Monitoring end use Negotiable Instruments Act, 1881 Negotiable Instruments Act, 1881 Brought in to - Encourage use of negotiable instruments - Improve credibility of negotiable instruments Important aspects - Definitions - Negotiation v/s transfer by assignment - Presumption of consideration - Endorsement - Payment in due course - Holder in due course Definitions – Negotiable Instrument What is a negotiable instrument (Sec 13) - Promissory note (Sec 4) • Unconditional signed undertaking to pay a certain sum of money - Bill of exchange (Sec 5) • Unconditional signed order by maker • Directing a certain person to pay a certain sum of money • To a certain person/ bearer - Cheque (Sec 6) • Bill of exchange • Drawn on banker • Payable on demand • Includes image of cheque NB. All are to be in writing Definitions - Holder Holder (Sec 8) - Person entitled in his own name to possession - Entitled to receive/ recover amount due Holder in due course (Sec 9) - On consideration becomes • Possessor – bearer instruments • Endorsee/Payee – order instruments - No cause to believe that title defective Cheques Cheques - Crossing – Special vs general - Order v/s Bearer - Protection to • Paying banker for payment in due course – Sec 128 • Collecting banker for receiving payment for customer in good faith & without negligence – Sec 131 • Cheques payable to order subsequently endorsed - Sec 85 So what is the difference? Crossing of Cheques General Crossing (Sec 123) - Two parallel transverse lines - Payment only through banker (Sec 126) Special Crossing (Sec 124) - Name of the banker also mentioned - Payment only through banker whose name is mentioned (Sec 126) Liability to true owner continues if not paid through a bank (Sec 129) Protection to paying and collecting bankers Protection to paying banker - Sec 128 – protection for payment in due course • Same rights and same position if the cheque had been paid to and received by the true owner thereof Protection to collecting banker • Sec 131 • Good faith and without negligence • No liability if title proves defective Payment in due course Payment in accordance with - Apparent tenor of the instrument - Good faith - Without negligence - No reasonable ground for believing that possessor of NI not entitled for to receive payment Order and Bearer Cheques Order - Drawn payable to order - If endorsed by/behalf of payee, drawee discharged by payment in due course Bearer - Expressed payable to bearer - Discharge by payment to bearer • Irrespective of subsequent endorsements - Endorsement in blank – • payable to bearer even if originally payable to order Account Payee Not provided in the NI Act Developed as practice RBI instructions - January 23, 2006 - Limited exemptions to cooperative societies - Demand drafts over Rs.20,000 (AML aspect) Anti Money Laundering Know Your Customer AML & KYC Background - June 1998 – UN call on member states to adopt national money laundering legislation - Prevention of Money Laundering Act, 2002 Objective • Prevent banks from being used by criminals for money laundering and terrorist activities Key aspects Customer - Account holder/ business relationship - Beneficial owner - Any person connected to the transaction which can cause significant reputational/ other risks to the bank/FI General guidelines - Confidentiality of customer information - Remittances over Rs.50,000 – only by debit to customer’s account/ cheque - Tenor of instrument reduced to 3 months - Adherence to provisions of Foreign Contribution (Regulation) Act, 2010 Elements of KYC Policy Customer Acceptance Policy Customer Identification Procedures Monitoring of Transactions Risk Management Customer Acceptance Policy No accounts in fictitious/ benami names Parameters for categorising customers based on risk perception Documentation to be collected Not to open/ close accounts where due diligence not possible Circumstances where agency/ fiduciary capacity allowed Background checks Product wise/ geography wise controls Profile of each customer Examples of customers requiring higher due diligence Non Resident customers High Net Worth individuals Politically exposed persons & their relatives Companies having close family shareholding/firms with sleeping partners Non face to face customers Trusts, charities, NGOs, etc receiving donations - Exemption for NGOs promoted by UN Customer Identification Procedure Policy should be specified for various stages - Initiating the relationship - Carrying out a financial transaction - Doubts about veracity of data Natural persons - Identity of customer - Address - Photograph Legal persons/ entities - Legal status - Authorised persons - Ownership and control structure Unique Customer Identification Code (UCIC) Avoid undue hardship to customers Customer identification requirements – Indicative Guidelines Walk in customers Salaried employees Trustee accounts Companies and firms Accounts managed by professional intermediaries Politically exposed persons Non face-to-face customers Proprietary concerns Simplified KYC Targeted at low income groups - urban and rural poor Limits - Balance not to exceed Rs.50,000 - Total credits not to exceed Rs.1,00,000 Simplified KYC procedure - Introduction from another account holder with full KYC - Other documents that satisfy the bank about the identity Money Mules Third parties act on behalf of criminals Recruited through - Spam emails - Advertisements on genuine websites/ newspapers - Social networking sites Banks advised to strictly adhere to guidelines on KYC/AML Monitoring of transactions Understanding of normal and reasonable pattern of activity Monitoring dependent upon the risk classification of the account Special attention to large and complex transactions Threshold limits Cash transactions Risk Management Board to ensure effective KYC,AML system in place Role of audit and compliance mechanisms Quarterly review before Board Cash Transaction Report Suspicious Transaction Report Screening & training of employees Thank you