Indian banks & NPAs – IV: SARFAESI Act and its impact
Public sector banks themselves must handle their NPAs by strengthening their recovery departments to minimize the role of borrowers and their cohorts masquerading as experts who derive undue benefits from a well intentioned scheme. This is the concluding part of a four-part series
The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, (SARFAESI Act) was born out of the Narasimham Committee-II recommendations after some modifications. Asset reconstruction companies are set up, and registered with the Reserve bank of India (RBI) as a securitisation company (SC) and reconstruction company (RC) to acquire distressed secured financial assets (both moveable and immovables).
The banks which transfer the assets are paid off by way of security receipts (SRs), debentures, bonds, etc as stipulated in the Act, which are subscribed to by only Qualified Institutional Investors and redeemed in due course of time, some of which would mature soon. These are treated as non-SLR securities and their valuations, provisions against fall in value, etc, are to be done as per the rules applicable to any other non-SLR security.
ARCs are deemed to be the lenders and have all the rights of the original lending banks. There are 14 ARCs in India, some of them promoted by some banks coming together; the first one was ARCIL, sponsored by SBI, ICICI Bank, IDBI Bank and PNB.
The underlying idea of bringing into fruition ARCs under SARFAESI Act is to enable banks to clean up their balance sheets, pass on the burden of recovery to an agency which could give full-time attention to realize a higher amount than what the borrower is willing to offer and thus generally help faster resolution of NPA.
Where the assets are charged to several banks under multiple banking arrangements, ARCs endeavour to aggregate them to help better realisation from the eventual buyers which individual banks might not be able to get. In the case of security charged to a consortium of banks, once 75% of lenders (by value) agree to sell the assets to ARCs, other members do not have option to differ.
Despite the apparent advantages of transfer of assets to ARCs, banks, after the initial period now seem reluctant to pass on the NPAs to them for various reasons. There is a feeling that ARCs’ offer price is low and worse still that the assets are sold by them eventually to original promoters of the companies or their relatives in some “sweet heart deal” as they know the value of the assets especially of the land and buildings. Besides, bank officials have a fear that if the realisation of NPAs is low, they could be questioned on the deals struck with ARCs.
In a meeting called by the Central Vigilance Commission (CVC) in May 2010, and attended by CMDs of some banks, the Indian Banks Association (IBA) and CBI officials expressed the opinion that “some ARCs were found to be directly helping the defaulter in getting back the properties by paying very low amounts to banks and thereafter mark up and sell the property back to the borrower”.
It is well-known that sale of land involves considerable portion of consideration being in paid by way of unaccounted money. Yet another reason for the luke-warm relationship with ARCs is that banks which are mostly working capital lenders do not always have a charge on fixed assets and the ARCs have not been enthusiastic about selling off current assets.
What is more, the banks have found that when they issue notices to borrowers under SARFAESI Act, the response is much better. The amount of recoveries done under the Act has been significantly higher comparatively speaking than under BIFR, and faster.
The one major problem the banks experience in pursuing SARFAESI permitted action is that an aggrieved party, generally the borrower, can make an application to a DRT and get a stay order on sale which is not difficult to obtain. Nevertheless, the banks have felt use of SARFAESI has been more effective than other legal provisions.
The bank officials feel that by strengthening the recovery department, they can show greater success than by handing over NPAs to ARCs. All said and done, the loyal bank officials definitely have greater commitment to the health of their bank than the ARCs.
The imperceptible trust deficit between the banks and the ARCs could be inferred from the fact that the SBI referred just six cases with claims of Rs40 crore to an ARC during 2010-11 though its bad loans were about Rs40,000 crore. (Source: The Economic Times, 13 March 2012). SBI is one of the sponsors of the first and the largest ARC viz. ARCIL.
Officials of various banks in the recovery departments state that the ARCs, with their high profile directors, have become a strong lobby to advocate larger flow of business to them from the banks. Coincidentally perhaps, in May 2012, the ministry of finance (Department of Financial Services) directed all public sector banks to designate one or more ARCs as their “authorised officer to take up recovery of loss assets on behalf of banks on commission basis”.
It would have been appropriate, say, for the RBI to have studied/ audited the financials and methods of operations of the ARCs and the reasons for the existing trust deficit between banks and ARCs before the ministry issued this direction. Besides, the definition of authorised officer given in the SARFAESI Act does not include ARC, though it can be an agent.
The distinction between the two seems to have been made purposefully in the Act and therefore it seems a bit odd that the ministry directed the banks to designate the ARCs as authorised person instead of as agents. This confusion needs to be cleared.
The role of an agent is governed by Contract Act; banks being the principal become liable for acts of omission and commission of the agent as such. There is no reason for banks to undertake such an onerous responsibility. It is difficult to escape the feeling that ARCs are perpetuating their existence with some help from the finance ministry.
Even as the government was planning to introduce a bill in 2001-02 to assign the BIFR responsibilities to the National Company Law Tribunal, the RBI took a proactive measure of introducing in August 2001 “Corporate Debt Restructuring (CDR)” scheme. The objectives are, “to ensure timely and transparent mechanism for restructuring of corporate debts of viable entities through an orderly and coordinated restructuring programme outside the purview of BIFR, DRT and other legal proceedings”.
CDR is a well known mechanism to tackle incipient sickness/possible delinquency of a loan and restore viability of operations adversely affected by external and internal factors in the least disruptive manner by minimizing the losses to the creditors, the concerned corporate and other stakeholders. In India this is applicable to corporates with loan exposure of Rs10 crore or more to the banks.
CDR is not a part of any statute. However legal strength is provided by certain prescribed agreements between creditors and between borrowers and the lenders. The CDR scheme has laid down pretty elaborate system for appraisal, monitoring and reporting to various levels of authorities.
A CDR package envisages certain sacrifices and concessions to be given by lenders to the corporate concerned which could be also obligated to bring in additional equity and bind itself to the terms of the package and covenants. The package needs the approval of a majority (called ‘super majority’) of at least 75% (by value) of the lenders in which case the minority of lenders has to fall in line. In contrast, under the BIFR dispensation, the minority cannot be forced to follow the majority.
CDR is a ‘success’ if one were to judge it by the statistics of progress: As at March 2012, the CDR cell approved 292 cases and another 41 are in advanced stage of approval, involving an aggregate amount of Rs1.86 lakh crore of debt. The number of cases referred each year has been moving up and in 2011-12 it reached the highest figure of 87 cases with a debt of Rs68,000 crore.
Yet lenders are not celebrating this record and perhaps the RBI may be feeling the “Winner’s curse”. Reasons are not far to seek. In practice, it appears that some lenders in league with ARCs or the promoters have referred the cases to CDR cell to avoid immediate classification of the loans as non-standard in their books.
The promoters of large corporations being influential prefer the CDR route to salvation than facing SARFAESI action by the lenders. Considering the large amount of debt sought to be restructured with not inconsiderable sacrifices by lenders, one would have demanded a more careful approach in referring the cases under CDR scheme.
One quick action to remedy the current situation of handling NPAs will be to divest DRTs of all company cases and hand them over to the National Company Law Tribunal (the relative Act was passed in 2002 but some amendments are yet to be approved) to be set up in replacement of BIFR to deal with not only sick undertakings but also such of those cases which now are dealt with by CDR mechanism beyond a certain debt level of say, Rs100 crore.
CDR as a non–statutory and voluntary method can remain open for smaller corporates. Given freedom of action and without the fear of vigilance enquiries imbued with hindsight, public sector banks themselves must be able to handle substantially their NPAs by strengthening their recovery departments. That could minimize the role of the borrowers and their cohorts masquerading as experts in tackling NPA problem and deriving undue benefits from a well intentioned scheme at the cost of lenders, just as they wore down the BIFR and the DRTs.
(A Banker is the pseudonym for a very senior banker who retired at the highest level in the profession.)
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