Will it stop wilful default this time?

The notification of the Reserve Bank of India (RBI)—that individuals and companies who fail to honour guarantees provided to wilful defaulters can also be charged with ‘wilful default’—is welcome and long overdue. Especially since the notification says that the ‘group concept’ will come into play when persons, or entities, do not honour guarantees to companies within a group. This is a huge step forward. For the 30 years that we have been reporting on business and finance, there has been endless debate about applying the ‘group concept’ to bad loans, especially when there is deliberate mismanagement of companies in a group. After all, corporates grow when new entities in a group (sister companies and subsidiaries) piggy-back on the parent’s goodwill to raise funds.  

But RBI has also said that the new norms would apply prospectively; this means that all the games companies played in the past will have no consequences. In India, corporate guarantees, including personal guarantees of well-known industrialists, had a magical way of disappearing from loan conditions after fund-raising needs were met, or the going got tough. Some of the most respected corporate groups in India have used this trick to evade responsibility for loss-making entities.

The change in loan conditions could not have happened without the active collusion of lenders which means that RBI’s new norms will also work only if the regulator puts in place a system to monitor crucial changes in loan conditions. Vijay Mallya, recently declared a wilful defaulter by United Bank of India (UBI) in connection with Kingfisher Airlines, also escapes the new provisions. While most industrialists used to keep room to wiggle out of the personal guarantee, the flamboyant Mr Mallya wanted to be different. He went to court to fight for the right to pay himself and UB Holdings a fat fee for the loan guarantees provided to Kingfisher. It is a mystery why lenders are still fighting shy to invoke that guarantee.

RBI governor, Dr Raghuram Rajan, recently said that the “wilful-defaulter tag is a powerful weapon in the hands of creditors for resolving distressed assets.” Indeed, it is; but a weapon is powerful only if used correctly and effectively.

One recalls that RBI, bankers and government officials were just as gung-ho about the SARFAESI Act (Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act) 2002 which was touted as the ultimate statute to end the bad loan problem by giving banks a powerful recovery mechanism.
 
Strangely, RBI has never been called to explain why the monumental failure of SARFAESI was not anticipated or how just 50 corporates have run up a combined default of about Rs40,000 crore under its watch. If 33 debt recovery tribunals (DRTs) under SARFAESI failed to deliver (as of March 2012, there were 67,000 cases involving over Rs1,36,000 crore pending before the DRTs), will the new norms make a difference? After all, companies will still misuse the judicial system to delay any recovery action.