Money & Banking
How banks misuse SARFAESI Act provisions for loan recovery
The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act 2002 is a powerful instrument in the hands of the banks and financial institutions (FIs) as secured creditors. This Act helps them enforce securities held as collateral to loans disbursed by them should such loans turn out as non-performing assets (NPAs) during the currency of the loan without interference from the Courts. Section 13 of the Act gives power to the secured creditor even to evict the tenant. It is our observation that the banks have been overenthusiastic in taking recourse to SAFRAESI Act provisions as a first resort of recovering the micro, small and medium enterprises (MSME) loans, mostly violating guidelines of Reserve Bank of India (RBI).
 
The entire process under the Act involves several factors of fairness and technicalities. During our interactions with the borrowers and banks in the State Level Inter-institutional Sub-committee (SLIIC), we have noticed the banks jumping into coercive actions throwing overboard the due processes.  It is surprising that tech-savvy systems of banks have not put in the measured timelines before pressing the red button to put the credit traffic of the MSMEs on halt. 
 
RBI’s timelines are as follows:
  • If the account does not reflect credits into the account, 90 days preceding the date of balance sheet of the firm. Temporary deficiencies like late/ non-submission of stock statements or balance outstanding exceeding the drawing power, non-renewal of limits should not get categorised as NPA. 
  • If the borrower does not pay three instalments continuously after 90 days but up to 12 months the account becomes sub-standard and NPA. Section 13 (2) empowers the Bank/ FI to serve a notice to the borrower for taking possession of the assets held as security for the money lent by it. But there is precursor to this action: the Bank/FI shall serve notice to the borrower to discharge his full liabilities within 60 days from the date of notice that should also detail out the legal consequences and penal provisions. 
 
Going by these two directions under the Act, the borrower should be getting at least 17 months’ time before the Bank could proceed against the defaulting MSMEs. 
 
If the borrower becomes a ‘wilful defaulter’ as defined by the RBI Master Circular on wilful defaulters vide RBI circular (RBI/2014-15/73 DBR.No.CID.BC.57/20.16.003/2014-15 dated July 1, 2015) SARFAESI Act proceeding can be issued even without notice to the borrower.
 
Who is a wilful defaulter?
  • Deliberate non-payment of the dues despite adequate cash flow and good net worth; 
  • Siphoning off of funds to the detriment of the defaulting unit; 
  • Assets financed either not been purchased or been sold and proceeds have been misutilised; 
  • Misrepresentation / falsification of records; 
  • Disposal / removal of securities without bank's knowledge; 
  • Fraudulent transactions by the borrower. 
 
Banks/ FIs throwing overboard these norms, classify all the MSME NPAs as wilful defaulters to apply the SARFAESI lever. As per the Act, valuation of the asset has to be done and notify that valuation to the borrower before issuing public notice for auction of property. Bank has to give 30 days’ notice to the borrower regarding its right to proceed against the mortgaged property if he does not pay up the entire principal and interest.  
 
However, we have noticed that in most cases all the above timelines are followed more in breach with impunity by the banks. For example, a public sector bank (PSB) branch in Jammikunta proceeded with sale of property within 15 days of declaring the asset as NPA. They have also fixed a reserve price without consulting the impugned borrower or without taking into consideration any objections raised by the borrowers as required under section 13 (3) (A) and proceed for auction of the properties. This is the case with most collateralised MSME NPAs. On top of this, in Jammikunta, the bank has also engaged agents for enforcing coercive recovery measures.  
 
In quite a few other cases, the banks sold off assets to asset restructuring companies (ARCs). Here the process is that the bank bundles a few NPAs and sells them off at a discount, which is not disclosed either to the borrower or to the SLIIC sub-committee. Although it may be in order for the bank to entertain request of the enterprise under one-time settlement (OTS) within the rules of the RBI, its preference is to transfer to ARC at a far lesser price than OTS would have got to the bank. 
 
What is ARC and how does this operate?
 
All transactions of securitisation, reconstruction and creation of security interest shall be registered with a Central Registry maintained with the Union Government. Within 30 days of securitising the asset, details of securities have to be filed with the central registry by paying the required fees.
 
RBI has issued guidelines in 2003 on the form of offer and details to be incorporated therein. The most usual form is the Security Receipt (SR) and an agreement with the originator to continue to service the assets of the securitisation. It can also take the form of a debenture at no less than 1.5% above the Bank Rate. The ARC should notify a separate scheme for each financial asset acquired or proposed to be acquired. Scheme-wise the account shall be maintained. Although Security Receipt is a tradable receipt among the investor institutions there is no such evidence thus far. 
 
Realisation of the asset is held and applied towards redemption of the investments as assured while issuing the security receipt. It acts like a trustee managing the assets and does not become the owner of the assets. ARC can sell or lease out the assets for realising the value of the assets. The recovered amount of the discounted price of the asset will be shared between the Bank and ARC in 85:15. For example, if a loan of Rs100 lakh is sold for Rs60 lakh to the ARC and the ARC realises only Rs50 lakh on sale or the entire armoury at its command, the Bank will get Rs42.50 lakh for fully wiping out the account from its books. Once the asset is sold off, it ceases to be NPA in its books. 
 
If the intention of the Bank were to recover as much as possible from the stressed asset, it would be wise to explore OTS as first option within the RBI guidelines. We have noticed that in no more than 5% of cases that this option is exercised as the bonafides in OTS transaction is suspect. It would be prudent on the part of the RBI to ensure that the OTS option is exhausted before going for securitisation and sale of the asset.
 
The other option is to seek the Banking Ombudsman’s intervention as Arbitrator to settle the distressed asset closure in cases where either the borrower or the bank has reason to believe that a mutually agreed price of the loan would be a better option than proceeding against the asset under SAFRAESI Act. 
 
(K Manicka Raj (IAS), is Director of Industries, Government of Telangana and B Yerram Raju  is Adviser, MSE Facilitation Council, Department of Industries, Government of Telangana. The opinions expressed are personal.)

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COMMENTS

anugu peddyreddy

3 months ago

I am one of the victim of a case under the jammikunta case

Jagjeet Singh

3 months ago

Lets go to the root of the issue. 70% of the public sector bank money is stuck in the hands of just less then 100 borrowers where assets available are less then 25% and as rightly said by Mr sha they are given the privelage of 5/25 years restructuring. When they banks cant recover a penny from them. The banks start attacking where the assets are highly valuable abd the loan amount is very small. Irrespective of the fact that the company /person was a good borrower or not. In the companies where the banks have leant thisands if crores deposit interest every month so save their own balance sheet. This is the reason the DRTs have become are flooded with OA against thosands of SME, honest, poor borrowers. Are we allowing indian banking system to suck the blood of indians. While the libor is less then 1%.The rate of interest in china is around 4% to business. Are we not killing indian business for the sake of these 100 odd borrowers. At ine side we say make in india programme and killing the SME abd honest business who are the backbone bone of indian enterprise. We have started importing from ganesha to turbines from china valuing 40 lac crore every year. When indians can head google and microsoft, cant we manufacture all what are we importing from china.

Growth Idea Lab

4 months ago

Dear M.GopalKrishna, Mr. Balkrishna Gupta, Mr. N.K Padhi and Mr. Parimal Shah and Mr. Pawar.
The problem of NPA in MSME sector is similar to elephant and six blind man story.
Yes, because of asset quality review by RBI, Skeletons have tumbled out and it is probably very good in long term interest of economy, banks and entrepreneurs.
May be Mr. Gupta may be aware that from 2000 RBI has given time to time, various directives for effective handling of sick MSME units for revival but various stake holders like banks, Central and State Govt. have treated with lip sympathy and did not work in tandem.
Now RBI, in March 2015 policy have given detailed guidelines and as per my knowledge, as on today, no bank has initiated actions to implement the same. I hope all my learned friends may be able to lay hands on the same.
I think Mr. Gupta seems to be very senior banker and/or exposed to happening at higher ends of the spectrum and for Mr. Padhi, from SMA0 to various actions, it will take 17 months or more, if the unit is to be revived.
Also, in case of SARFAESI act on also, it may take 6 to 12 months.
To take physical possession of properties /security.
As I am consultant working for revival of sick MSME units in Telangana.
I have fist hand knowledge and I can claim, in the cases which I am handlings, many of or I can dare to say all of guidelines by RBI are neglected by about six banks with which I deal and in spirit, delay of decision making, peace meal information seeking and transfer of officers at branch level are few of reasons to increase the sickness in MSME.

Gopalakrishnan T V

4 months ago

The authors seem to be very authentic and well informed of the practices being pursued by banks in the case of MSMEs. The bankers have lost the human touch and the system generated actions are vigorously pursued thereby ignoring the finer aspects of the interpretations of various guidelines. The bankers are anxious and overenthusiastic to show some actions of follow up of NPAs without application of mind and SMEs and MSMEs become easy victims. Had the banks been showing same enthusiasm with corporates and major defaulters , Vijaya Mallya type of loans would have been very minimum and the balance sheets of banks would have been very healthy and strong. MSMEs have multitude of problems and despite their sincere efforts and commitments , they often fail to get justice from various institutions on time and for them the ease of doing business is perhaps the most difficult area. Banks seldom have a humane approach in the matters of MSMEs and Sarfaesi Act has become very handy and a tool to harass them . What the authors have highlighted is the problems meted out to MSMEs and not the spirit behind the applicability of SARFAESI Act. Banks should know as to how to use their rationale and discretion before they are after MSMES. They cannot be singled out to suit the conveniences of banks taking advantage of the handicaps of the MSMES to harass them.

Bal krishna Gupta

4 months ago

The "Article" is highly misleading and mischievous in as much as it is misinforming and generalising a few incidences as the general practice. The first officer being a middle level IAS officer has very limited exposure to the menace and depth of NPA menace in Banks ant the other author is just using hearsay as the truth. Had the bankers been misusing the provisions of SARFAESI Act 2002 so blatantly, the total stressed assets of Indian banks would not have been at the level of around Rs. 6,00,000 crore (around 8% of total advances) by now. In case of Micro SMEs there is no question of application of SARFAESI Act as there is no requirement of mortgage of immovable property.
Banks give quite a reasonable time to borrowers to bring their loan accounts to order. Only when despite personal visits, legal notices under the Act remain ineffective the banks resort to action for taking possession of the secured Assets. Even after taking possession adequate time is given to the borrowers to regularise their loan accounts. Sale of NPAs to ARCs happen at a verylate stage-after a gap of 2-3 years of its becoming NPA, the borrower not being interested in clearing the outstandings or regularising the NPA. For the bankers, NPAs are a double whammy.
They no longer can earn interest income.
But still have to make provision from their profits. This results in lower interest on deposits to its customers. NPAs also restrict the money supply for fresher loans as well as affect the general morale of the bankers to lend more. The article reads more like a thesis ofn SAFAESI Act 202 rather than a fair and balanced opinion piece. It does more harm to Indian banking by portraying it as a villain without providing data or showing an understanding of the extent of the NPA problem. PSU banks posted a net loss of Rs 17,991 Cr in 2016 as against net profit of Rs 30,869 Cr in FY 2015 mainly becasue of rising NPAs. The Editor is requested to not make light of th menace and while publishing such immature and ill founded articles get a peer review done.

Six banks have posted negative credit growth.


REPLY

B. Yerram Raju

In Reply to Bal krishna Gupta 4 months ago

As regards the other aspects the banks have been found to be ignoring Project finance norms while lending to the MSMEs, save exceptions. Banks have sanctioned and released Term Loan for installing Plant and Machinery and the Cash Credit for working capital simultaneously. While the interest accruals during the project implementation period, i.e., until commercial production commences, need to be capitalised, they were found to be debiting the interest applied quarterly to the cash credit account with the result the entrepreneur is left dry just before going for commercial production. This resulted in many accounts becoming NPAs even before the commencement of commercial production. We have live cases with us to prove this. In fact, we are thankful to Money Life for bringing these issues to the notice of public and for generating this healthy debate. Bankers have been referring RBi guidelines in the SLIIC fora and other official meetings and when we asked them to cite the referece to the guidelines they drew blank and they referred to their H.O or cited that the system has declared the account NPA. The system responds the way the basic norms are fed into it. Until the present Governor took firm stand many banks were basking under the systemic NPAs as the reason. If banks do development lending as per the RBI instructions and doing due diligence of the entrepreneurs and not swearing by the systemic appraisals based on the CA-led balance sheets the industries would not have come to this pass.

B. Yerram Raju

In Reply to Bal krishna Gupta 4 months ago

The article is neither misleading nor with misinformation. As Chairman of SLIIC- Sub-committee and as Chairman of MSE Facilitation Council, Mr Manick Raj and Dr Yerram Raju the co-author are absolutely well informed on the subject. As regards NPA definition and classification of assets, the author is advised to go through the RBI Master Circular:RBI/2015-16/101 DBR.No.BP.BC.2/21.04.048/2015-16 dated July1, 2015; second, these days systems are dictating the decisions and several banks represent on the forums where decisions are to be taken, through officers who will not take a decision either way. The cases quoted are live and discussed and forwarded for necessary action as the Manager concerned has exceeded his brief in telephoning to the relatives of the borrowers who as guarantors happen to be staying in a foreign country threatening with impounding passports etc within fifteen days of declaration of asset as NPA and this has been proved as per records. Several borrowers have complained of excesses.

NK Padhi

4 months ago

I do not know how the 17 month period has been calculated by the senior officers of Govt of Telangana. An account becomes NPA when a payment is overdue by 90 days. As a retired officer of a bank, I have not come across any one who wants to mark an account as NPA and go for litigation for it is well-known that banks are the losers when they go to the Court. No Court allows a bank any transgressing the guidelines of SARFAESI. It has become very fashionable to blame banks for anything and everything.

Parimal Shah

5 months ago

This is how a well intention-ed 5/25 scheme was misused and all the banks NPAs were hidden. The skeletons tumbled out when Asset Review was done by the RBI. That is why RR did not get extension. Modiji, hope you know this. This is another kind of crony capitalism. Why trouble MSMEs when Large business houses are most of the time willful defaulters?

Parimal Shah

5 months ago

This is one of the breeding grounds for corruption in high place and at high value.
The bank and the ARC can be cahoots and so called sale value could be less than actual market value - the difference being pocketed by both with mutual understanding.

P L Despande pawar

5 months ago

Article lacks depth.Definition of NPA is wholly incorrect.
No doubt, Banks are harassing hapless MSM enterprises.
RBI must lay down guidelines for initiating Section 13(2) action. There should be representatives of Govt( industries deptt) & MSME industries'Assns. in any mechanism devised for the purpose.
Otherwise, you will have genuine msme entrepreneurs resorting to suisides.

REPLY

B. Yerram Raju

In Reply to P L Despande pawar 4 months ago

Please go through the RBI Master Circular on Prudential Norms and Classification of Assets - RBI/2015-16/101 DBR.No.BP.BC.2/21.04.048/2015-16 dated July1, 2015 and our definition of NPA is correct. There is overenthusiasm on the part of banks these days to proceed against the borrowers without giving reasonable opportunity, handholding of MSEs as required under the guidelines, calling mere postponement of instalments or interest just by a few months as restructuring of asset etc. Banks can recover their assets also by offering the non-discretionary OTS as approved by the Bank's own Board approved policy. This is an option scarcely addressed to recover the NPAs of MSEs.

B. Yerram Raju

In Reply to P L Despande pawar 4 months ago

Please go through the RBI Master Circular on Prudential Norms and Classification of Assets - RBI/2015-16/101 DBR.No.BP.BC.2/21.04.048/2015-16 dated July1, 2015 and our definition of NPA is correct. There is overenthusiasm on the part of banks these days to proceed against the borrowers without giving reasonable opportunity, handholding of MSEs as required under the guidelines, calling mere postponement of instalments or interest just by a few months as restructuring of asset etc. Banks can recover their assets also by offering the non-discretionary OTS as approved by the Bank's own Board approved policy. This is an option scarcely addressed to recover the NPAs of MSEs.

MEDCHEM INTERNATIONAL LTD

In Reply to B. Yerram Raju 3 months ago

The PSU banks have declared M.S.M.Es in high growth revision proof industries, which had over 15 year banking relation and a 6 year satisfactory annual loan enhancements and timely repayment for 2 years 3 months, the loan was declared NPA when only one EQI payment was paid on 94th day, beyond 90 day dead line. The reason for delayed payment was due to bank denying drawings of the Export Packing Credit (working capital) in the 90 day period, which has delayed export production and the resultant delay in receiving inward remittance. The MSME has more than 200% fixed assets, and in addition the working capital is secured with hypothecation stocks and export receivables and also backed by GoIs ECGC guarantee. (Loans are secured more than 300%). The MSME is a 100% EoU. Once the bank stops funding for lack of foresight, the borrower suffers with slow down in production, which triggers slow down of business. The businesses also suffer a big opportunity cost of losing out potential business, potential profit, loss of employment (retrenchment of employees due to bank's stoppage of working Capital). When bank's actions have forced MSMEs sick, how can they be in a position to settle loans through OTS !? As per RBI EoUs to be funded by banks with Forex funding at LIBOR+2%. Though we got forex funding of working capital for 6 months, which was paid by us intime. Inspite of two EDs of bank assured of Forex funding of working capital, the bank did not provide forex funding. The EPC export packing creditclimit was funded at 11.5%, (at 9.5%) higher than LIBOR.Telangana SLIIC which is represented by RBI member and there were case by case analysis. The banks lacked attitude towards MSMEs, inspite of the huge interest earned by them (banks lend to big corporates at 6% to 8%, while charging 12% % to 26% to MSMEs). The RBI quarterly empowered committee meetings are limited to only to review statistics, but do not address MSME greviences. Even repeated visits to R.BI's SME, Ombudsman, ARC cells have proved futile. For Bankers trying to defend banks actions need to look at reality. MSME entrepreneurs have also worked relentlessly to contribute to the national economy. It's a pity, banks do not treat them with respect.

MEDCHEM INTERNATIONAL LTD

In Reply to B. Yerram Raju 3 months ago

The PSU banks have declared M.S.M.Es in high growth revision proof industries, which had over 15 year banking relation and a 6 year satisfactory annual loan enhancements and timely repayment for 2 years 3 months, the loan was declared NPA when only one EQI payment was paid on 94th day, beyond 90 day dead line. The reason for delayed payment was due to bank denying drawings of the Export Packing Credit (working capital) in the 90 day period, which has delayed export production and the resultant delay in receiving inward remittance. The MSME has more than 200% fixed assets, and in addition the working capital is secured with hypothecation stocks and export receivables and also backed by GoIs ECGC guarantee. (Loans are secured more than 300%). The MSME is a 100% EoU. Once the bank stops funding for lack of foresight, the borrower suffers with slow down in production, which triggers slow down of business. The businesses also suffer a big opportunity cost of losing out potential business, potential profit, loss of employment (retrenchment of employees due to bank's stoppage of working Capital). When bank's actions have forced MSMEs sick, how can they be in a position to settle loans through OTS !? As per RBI EoUs to be funded by banks with Forex funding at LIBOR+2%. Though we got forex funding of working capital for 6 months, which was paid by us intime. Inspite of two EDs of bank assured of Forex funding of working capital, the bank did not provide forex funding. The EPC export packing creditclimit was funded at 11.5%, (at 9.5%) higher than LIBOR.Telangana SLIIC which is represented by RBI member and there were case by case analysis. The banks lacked attitude towards MSMEs, inspite of the huge interest earned by them (banks lend to big corporates at 6% to 8%, while charging 12% % to 26% to MSMEs). The RBI quarterly empowered committee meetings are limited to only to review statistics, but do not address MSME greviences. Even repeated visits to R.BI's SME, Ombudsman, ARC cells have proved futile. For Bankers trying to defend banks actions need to look at reality. MSME entrepreneurs have also worked relentlessly to contribute to the national economy. It's a pity, banks do not treat them with respect.

MEDCHEM INTERNATIONAL LTD

In Reply to B. Yerram Raju 3 months ago

The PSU banks have declared M.S.M.Es in high growth revision proof industries, which had over 15 year banking relation and a 6 year satisfactory annual loan enhancements and timely repayment for 2 years 3 months, the loan was declared NPA when only one EQI payment was paid on 94th day, beyond 90 day dead line. The reason for delayed payment was due to bank denying drawings of the Export Packing Credit (working capital) in the 90 day period, which has delayed export production and the resultant delay in receiving inward remittance. The MSME has more than 200% fixed assets, and in addition the working capital is secured with hypothecation stocks and export receivables and also backed by GoIs ECGC guarantee. (Loans are secured more than 300%). The MSME is a 100% EoU. Once the bank stops funding for lack of foresight, the borrower suffers with slow down in production, which triggers slow down of business. The businesses also suffer a big opportunity cost of losing out potential business, potential profit, loss of employment (retrenchment of employees due to bank's stoppage of working Capital). When bank's actions have forced MSMEs sick, how can they be in a position to settle loans through OTS !? As per RBI EoUs to be funded by banks with Forex funding at LIBOR+2%. Though we got forex funding of working capital for 6 months, which was paid by us intime. Inspite of two EDs of bank assured of Forex funding of working capital, the bank did not provide forex funding. The EPC export packing creditclimit was funded at 11.5%, (at 9.5%) higher than LIBOR.Telangana SLIIC which is represented by RBI member and there were case by case analysis. The banks lacked attitude towards MSMEs, inspite of the huge interest earned by them (banks lend to big corporates at 6% to 8%, while charging 12% % to 26% to MSMEs). The RBI quarterly empowered committee meetings are limited to only to review statistics, but do not address MSME greviences. Even repeated visits to R.BI's SME, Ombudsman, ARC cells have proved futile. For Bankers trying to defend banks actions need to look at reality. MSME entrepreneurs have also worked relentlessly to contribute to the national economy. It's a pity, banks do not treat them with respect.

Maruti Suzuki's Q1 net profit up 23%
Passenger car maker Maruti Suzuki on Tuesday reported a rise of 23 per cent in its net profit for the first quarter (Q1) of 2016-17.
 
The company's net profit stood at Rs 1,486.2 crore for the quarter ended June 30, 2016 - up from Rs 1,208.1 crore in the corresponding period of 2015-16.
 
"The profit in the quarter was helped by a higher turnover, material cost reduction, higher non-operating income and lower depreciation," the automobile manufacturer said in a statement.
 
"Adverse foreign exchange movement reduced profits to some extent."
 
The passenger car major's net sales during the quarter under review stood at Rs 14,654.5 crore -- up 12.1 percent from Rs 13,078.3 crore for the quarter ended June 30, 2015.
 
Maruti Suzuki sold 348,443 vehicles during the quarter under review, logging a growth of 2.1 per cent over the similar period of the previous fiscal. 
 
The company's sales in the domestic market grew by 5.4 per cent to 322,340 units. However, exports during the quarter plunged by 26.7 per cent to 26,103 units. 
 
"The growth in the first two months of the quarter had been 10.2 per cent but the unfortunate incident of fire at a key vendor of the company resulted in lower sales in June 2016," the statement said.
 
"The company hopes to recover the lost sales during the course of the year."
 
Disclaimer: Information, facts or opinions expressed in this news article are presented as sourced from IANS and do not reflect views of Moneylife and hence Moneylife is not responsible or liable for the same. As a source and news provider, IANS is responsible for accuracy, completeness, suitability and validity of any information in this article.

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Talent retention top priority in second half of 2016: Survey
The top human resource priority for organisations in the second half of the year will be the retention of talent, a survey revealed on Tuesday.
 
In the survey conducted by India's leading C Level executive search firm Executive Access, 37 per cent organisations said that given the concerns around the quality of talent available and acquisition of talent they will now focus on retaining talent to curtail attrition levels. 
 
"Companies are working smartly as they have realised that the way to retain talent is not by merely giving more money as the GEN Y workforce needs are changing rapidly," said Ronesh Puri, Managing Director, Executive Access. 
 
"To stay in the competition, an organisation needs to develop an innovative programme custom made to a candidates long term aspirations in order to help secure a sense of loyalty," Puri added.
 
Apart from retaining talent, growing the top line (13 per cent) and adapting to new technology (12 per cent) were the other two sectors that organisations wanted to lay emphasis on in the second half of the year. 
 
Disclaimer: Information, facts or opinions expressed in this news article are presented as sourced from IANS and do not reflect views of Moneylife and hence Moneylife is not responsible or liable for the same. As a source and news provider, IANS is responsible for accuracy, completeness, suitability and validity of any information in this article.

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