Successfully reported this slideshow.
We use your LinkedIn profile and activity data to personalize ads and to show you more relevant ads. You can change your ad preferences anytime.

Banking law module_2_2012


Published on

prof. O.V. Nandimath

Published in: Business, Economy & Finance
  • Be the first to comment

Banking law module_2_2012

  1. 1. Indian banking sector – its evolution & development PART III
  2. 2. • British brought the modern concept of banking to India • But the concept of „banking‟– was known to us – Banking was used in synonymous with money lending – Vedic literature records the details of banking transactions – Manusmrithi speaks about – deposits, pledge, loans and interest rates etc., – Sons ‘pious obligation‟ – to discharge the loan of the father
  3. 3. The beginning of Indian „modern banking‟ • Bank of Hindustan in 1770 [when Alexander & Co., agency house started] • The Bank of Calcutta [ established by East India Company in 1806] • The break-through in 1860 – introduction of limited liability to banks
  4. 4. The interim period of 1906 to 1913 • The influence of „swadeshi movement‟ – the following banks were started – – – – – Peoples Bank of India Ltd., The Bank of India Ltd., The Central Bank of India Ltd., Indian Bank Ltd., The Bank of Baroda Ltd., • The period ended with the crash of 191317 overtaking these initiatives
  5. 5. Establishment of Imperial Bank • Three presidency banks of Calcutta, Bombay and Madras were merged into Imperial Bank • Vide the Imperial Bank of India Act, 1920 • The same became State Bank of India later
  6. 6. Establishment of Reserve Bank of India • It was given the right of note issue • Was also to act as „bankers bank‟ – the function which it took-over from Imperial Bank • However, Imperial Bank was allowed to operate as the agent of RBI, especially in those places where RBI had no branches • Initially RBI was a shareholder‟s bank – but was nationalized in 1948
  7. 7. Establishment of State Bank of India • Vide State Bank of India Act, 1955 [which overtook Imperial Bank] – The bank which commands approximately 25% of total banking sector business – With highest bank network in India
  8. 8. SBI Subsidiaries • SBI (Subsidiary Banks) Act, 1959 – – – – – – – The Bank of Bikaner The Bank of Indore The Bank of Jaipur The Bank of Mysore The Bank of Patiala The Bank of Travancore The Bank of Hyderabad
  9. 9. The banking scenario @ 60s • Overall mismanagement of banks • Major chunk of advances to – Large; – Medium; and – Big industrial houses only • Uncovered priority sectors like – Small scale industries; – Agriculture; – Exports etc.,
  10. 10. The banking scenario @ 60s • Composition of bank management – Industrialist directors – Conflicting interests with their ventures – Indiscriminate lending to their „own‟ industrial establishments
  11. 11. The immediate response • Introduction of „social control‟ • Approach – Establishment of National Credit Council (NCC) – Legislative Control through amendment to the Banking Regulation Act, 1949
  12. 12. Professional banking board • Sec. 10A • At least 51% of directors shall be possessing „special knowledge, practical experience‟ in – – – – – – – – – Accountancy; Agriculture & rural economy; Banking; Cooperation; Economics; Finance; Law; Small Scale Industry Any other matter (in the opinion of RBI useful)
  13. 13. Further “provided that, out of aforesaid number of directors, not less than two shall be persons having special knowledge or practical experience in respect of agriculture and rural economy, cooperation or small-scale industry”
  14. 14. Other mandates • Directors shall not have substantial interest – In any other company, except S.25 company – Any firm (carrying trade, commerce or industry, except small scale industry) • Restriction on tenure – For continues period of eight years (not applicable to Chairman) – Not to be re-elected for four years – if he is removed from his office as „chairman‟ or „whole-time director‟
  15. 15. Mandate of „whole time chairman‟ • S.10B – the objective was to curb industrialist‟s encroachment over bank management • There shall be „whole-time‟ chairman or „managing director‟ to manage the bank • He shall have special knowledge & practical experience in any of the following – – – – Working of the bank Finance Economics Business administration
  16. 16. Restriction on loans • S.20 – no loans or advances on the security of banks own shares • No loan or advance, to – Any of its directors; – Any firm; or – Any company (except its own subsidiary or S.25 company); or – Any individual – Provided the director is interested in such entity as partner, manager, employee or guarantor etc.,
  17. 17. Miscellaneous • Additional powers were conferred on RBI – to supervise and enforce „social control‟ initiative • Punishment provided for – Obstructing any person from entering or leaving a bank; – Holding demonstrations within the bank; and – Acting to undermine the depositors‟ confidence in a bank
  18. 18. Era of nationalization starts • July 19, 1969 – 14 major banks nationalized • 1980 – 6 more banks were nationalized • Nationalization was perceived as a major step in achieving the socialistic pattern of society
  19. 19. Modalities of nationalization • The official point – “public ownership of major banks will help most effectively the mobilization and development of national resources and its utilization for productive purposes in accordance with the plans and priorities” • The preamble [of the first ordinance, 1969] – “in order to serve better the needs of development of the economy in conformity with the national policy and objectives”
  20. 20. Criticism levied against nationalization • 168 days [from 1.2.69 to 19.7.69] are too short period to declare „social control‟ did not work – From June 1968 to March 1968 credit to • Agriculture increased from Rs.30 crores to Rs.97 crores; • Small scale industries from Rs.167 crores to Rs.222 crores • The step was determined by political tussles and was result of inter-party struggle
  21. 21. Criticism levied against nationalization • The banking industry is not nationalized in some of socialistic countries (ex. Norway, Sweden, Finland and Denmark etc.,) • Public control would leave the door open for corruption and favoritism • Because of lack of competition the „quality of banking‟ service will diminish gradually
  22. 22. Legal mode • Saturday, July 19, 1969 – Banking Companies (Acquisition and Transfer of Undertaking) Ordinance, 1969 was passed – 14 major banks (with deposit of Rs.50 crores or more) were purported to be transferred to 14 new body corporate viz. „corresponding new banks‟ – The machinery of management – Compensation package for shareholders
  23. 23. Legal mode • Monday, July 21, 1969 – Ordinance was challenged before SC • Before it was heard (on August 9, 1969) – Banking Companies (Acquisition and Transfer of Undertakings) Act, 1969 was passed (which repealed the ordinance) • The act was also challenged in the SC – interim injunction was granted against the operation of the Act
  24. 24. Legal mode • Decision on February 10, 1970 – 10:1 decision by majority • The act is within the legislative competence; but void due to the following reasons – Only restricted 14 banks were selected – this a „hostile discrimination‟; – Although these 14 were allowed to do other business – sans assets, staff, premises and even names that was not possible hence – unreasonable restriction – The principle of determination of compensation was illusory and irrelevant
  25. 25. Post SC decision • February 14, 1970 – Another Ordinance promulgated • This was followed by the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 • March 31, 1970 – The Act receives President‟s assent • Most of provisions were deemed to have come into force from July 19, 1969 • The enactment stood the test of constitutionality
  26. 26. “the branch network which was 8262 in June 1969 expanded to 60000 by 1992 with major expansion (80%) in rural areas. The average number of people served by a branch came down from 60000 to 11000. the development of credit is more widely spread all over the country as against only in advanced states. In 1969 deposits amounted to 30% and advances to 25% of the GDP…”
  27. 27. “…deposits grew from a figure of Rs.4669 crores in June 1969 to Rs.2,75,000 crores on 31.3.1993. More than 45% of the total credit was directed to the priority sector. More than 45% of the total deposits were used by the government to fund its five year plans…”
  28. 28. Era of nationalization ends • With the recommendations of Narasimaham Committee being accepted by the Government • Which also started the entry of foreign banks on Indian soil
  29. 29. What were the recommendations? • Overall emphasis upon „de-regulation‟ • No further nationalization to be adhered to • No distinction between „public‟ and „private‟ sector banks • Control of banking sector to be centralized (not to be divided between RBI and Department of Banking) • SLR and CRR should be reduced to prudent levels
  30. 30. What were the recommendations? • Concessional lending to be phased out • The capital base of banks should meet international standards • The appointment of the Chief Executive of the banks to be de-politized
  31. 31. Bank regulation
  32. 32. Why regulate bank? “the business of banking is fraught with dangers, arising principally from the instability in the world economy and from human error or misjudgment. Like any other enterprise, a bank may be overtaken by events or may be governed unwisely. Bank failures are, therefore no novelty. It is interesting that Bank of England itself faced serious financial problems within two years of its foundation in 1964” - Sir John Clapham, The Bank of England – A History, CUP, 1994
  33. 33. „standing‟ & „stability‟ “two matters have to be consistently watched in order to avoid disruption to the system. The first may be loosely described as the general standing of institutions carrying on banking business. One way of achieving this object is to enact laws that regulate banking transactions. The other is to impose restrictions on the free entry of firms into the mail line of banking business. The second matter that needs to be regulated is the stability of individual banks. This involves the introduction of measures to ensure that banks are able to meet their liabilities” – Elinger‟s Modern Banking, 4th Edn.
  34. 34. Recent past • Crash of world economy of 1929-33 (interim periods of world war) • Banking crises of UK during 1973-76 – „life boat operation‟ – Similar crises in Germany • Recent „melt-down‟
  35. 35. Few other points • • • • • Systemic risk Prevention of fraud Money laundering & terrorism Consumer protection Competitive (or antitrust) policy
  36. 36. Banking regulation in India
  37. 37. Banking • „Banking‟ means the 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 – S. 2(b)
  38. 38. Essential functions • Acceptance of public deposits • Lending or investment or such deposits; and • Agency functions
  39. 39. Permissible banking business • Sec. 6(1) • About 15 elements – – – – – – – – Borrowing, raising or taking up money; Lending – with or without security; Issuance of letters of credit, travelers cheques Dealing in bullion and specie Dealing in stocks and shares Underwriting Providing of safe deposit vaults Collecting and transmitting of money and securities
  40. 40. – Acting as agents of the government – Transact any kinds of guarantee and indemnity business – Undertake and execute trusts – Acquire, construct and maintain any building for its own purpose – Do all such things which are incidental or conducive to the promotion or advancement of the business of the company – Do any other business specified by the Central Government as the lawful business of banking company
  41. 41. • Further – Sec. 8 – prohibits specifically a banking company from engaging directly or indirectly in trading activities and undertaking trading risks
  42. 42. Organization • Dual control – For entry – For expansion
  43. 43. Entry license • Sec. 22 • Criteria – The capacity of the company to pay its present and future depositors – Whether there is anything to indicate – the permit would affect the interests of the depositors detrimentally – Impact upon the public interest – Company‟s capital structure and its adequacy – Other „banking facilities‟ available in the proposed area – Such other condition which RBI considers relevant
  44. 44. • Additional conditions for foreign banks – Whether carrying of business by the company in India will be in pubic interest – Whether the government or the law of the country in which the company is incorporated discriminates in any way against banking companies registered in India; and – Whether the company complies with the provisions of the BR Act as applicable to foreign companies
  45. 45. • The grant of license is a discretionary administrative function – Shivabhai v RBI, AIR 1986 Guj. 19 • Licence granted may be cancelled – Sec. 22(4)
  46. 46. Expansion • To open new branches – RBI sanction is mandatory • Sec. 23 • While grant of such licences RBI may impose appropriate conditions • There are exceptions
  47. 47. Capital & reserves • Sec. 12(1) – Subscribed capital of a banking company shall not be less than half of its authorized capital; – Paid up capital shall not be less than half of its subscribed capital – If the capital structure is changed then these proportions shall also be changed, with in two years
  48. 48. Capital composition • Narasimham Committee has recommended for public issue • Hence, the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970/1980 were amended – To enable public to subscribe to the capital of the nationalized banks up to 49% of their total capital • The State Bank of India Act, 1955 was also suitably amended to raise public funds
  49. 49. Restriction on voting rights • No shareholder (of the nationalized bank) other than the Central Government shall be entitled to exercise voting rights in respect of any shares held by him in excess of one percent of the total voting rights of all the shareholders of the corresponding new bank (s. 12(2)) • The limit was raised from 1% to 10% with effect from 31.3.1994
  50. 50. • S. 13 • A banking co. shall not pay out directly or indirectly by way of commission, brokerage, discount or remuneration in any form in respect of shares issued by it. • It restricts the amount that may be paid by a banking company as commission etc. on the issue of shares.
  51. 51. • S. 15 • Prohibits payment of dividend by any banking co. until all of its capitalized expenses have been completely written off. • It is inappropriate when capitalized expenses are outstanding
  52. 52. Exceptions • The depreciation in the value of its investments in approved securities, where such depreciation has not been capitalized • The depreciation in the value of its investments in share etc., where adequate provision for depreciation has been made to the satisfaction of the auditor • The bad debts, where adequate provision has been made to the satisfaction of the auditor
  53. 53. Reserve funds • Sec. 17 • Creation of reserve fund (not applicable to foreign banks) – To be created out of profit – Not less than 20% of the profits have to be transferred to the reserve fund (before any dividend to be declared) – However, the Central Government (on the recommendation of RBI) may exempt the bank for certain period of time
  54. 54. • For foreign banks – there is no mandate • But the foreign banks – Shall deposit with RBI – 20% of their profits each year – The amount may be in cash or unencumbered approved securities
  55. 55. Cash reserves • Sec. 42 (RBI Act) – cash reserve to be maintained by the Scheduled Bank (as to be determined by RBI from time to time) • Sec. 18 – (for non scheduled banks) at least 3% of its demand and time deposits in India • Non scheduled banks are required to submit a monthly statement to the RBI
  56. 56. Maintenance of liquid assets • Sec. 24 – mandatory maintenance of liquid assets not less than 25% of the net demand and time liabilities. • Not exceeding 40% of its total demand and time liabilities in cash, gold or unencumbered approved securities • RBI will prescribe details (Statutory liquidity ratio)
  57. 57. Annual accounts & audit • Sec. 29 • Mandate to prepare final accounts (at the end of each financial year) • The Balance Sheet and Profit & Loss Account have to be prepared in accordance with the formats prescribed in III Schedule
  58. 58. Audit & auditors • Sec. 30 • The Balance Sheet and Profit & Loss Accounts have to be audited – Audit by a person duly qualified to audit – The appointment, reappointment or removal of an auditor – to be done with the prior approval of the RBI
  59. 59. The audit report • Sec. 227 of Companies Act – (regarding the powers, functions and duties) are all applicable to Banking Companies as well • Some additional information to be provided – Whether or not transactions of the company as noticed by him were within the powers of the company – Whether or not returns from branches were adequate for the audit – Any other matter which the auditor considers necessary to bring to the notice of the shareholders of the company
  60. 60. Publication of final accounts • Sec. 31 r/w Rule 15 [of Banking Regulation (Companies) Rules, 1949 • Final accounts are to be published in a news paper, within a period of six months • Three copies of final accounts are to be submitted to RBI (within 3 months) • Sec. 220 of Companies Act – Final accounts and auditors report to the Registrar of Companies
  61. 61. Special audit • Sec. 30(1B) • The RBI may order for special audit – Such order may relate to any transaction or class of transactions; or – Such period or periods as RBI may specify in the order – The RBI appoints such auditor (or can ask the regular auditor) – The directors are binding upon the auditor of the banking company – and to make report directly to RBI by furnishing the copy to the bank)
  62. 62. • S.35 RBI‟s Powers of Inspection • S.35A RBI‟s Powers to issue directions a. in the public interest / banking policy b. to prevent the affairs conducted in a manner detrimental to the interest of the depositors / prejudicial to the interests of the banking co. c. to secure proper management
  63. 63. Amalgamation • Voluntary amalgamation – U/sec. 44A
  64. 64. • Procedure – Scheme has to be prepared & the same to be placed before the shareholders (notice to all shareholders is must) – Seeking sanction from the shareholders with 2/3rd majority – Dissenting share holders may take out their share value – Then the scheme has to be presented to RBI – On sanction of RBI the amalgamation may happen
  65. 65. Compulsory amalgamation • Induced or forced by RBI – U/Sec. 45 • RBI recommends to the Central Government
  66. 66. Merger of bank and NBFC • Amalgamations are governed by Ss. 391 to 394 of the Companies Act, 1956 • The scheme of amalgamation has to be approved by the High Court • June 2004 – Banks were advised to obtain the approval of RBI after the scheme of amalgamation is approved by its board before it is submitted to the HC for approval
  67. 67. Amalgamation by government • Central Government may order for amalgamation of two banks – after due consultation with the RBI – u/sec. 396 of Companies Act, 1956
  68. 68. Winding up • Suspension of business and winding up – Sec. 37 • Winding up by the High Court – Sec. 38 • Voluntary Winding up – Sec. 44
  69. 69. Suspension of business • When the bank is temporarily unable to meet its obligations • Procedure – – – – The bank to apply to HC u/s 37 The report of the RBI be enclosed If not the court can take action, by calling the report If satisfied the court can (with conditions) for all proceedings to stay for fixed term not exceeding six months – On passing of the moratorium order, the court may appoint a special officer to take custody and control of the assets, books etc., of the bank
  70. 70. Winding up by the HC • To be initiated by RBI – by applying for winding up – Inability to pay debts – If RBI is asked by the Central Government to make an application – Failure to comply with requirements of Sec. 11 – If the bank becomes incapable of carrying out the banking business – by rejection or cancellation of license – Failure to comply with the requirements of the BR Act other than Sec. 11 and continuance of such failure beyond the period specified by RBI in this behalf
  71. 71. • Additional grounds for RBI – A compromise or arrangement sanctioned – can‟t be worked satisfactorily with or without modification; or – The returns, statements and information given by the bank under the Act show that it can‟t pay its debts; or – The continuance of the banking company is prejudicial to the interest of the depositors • Once applied by RBI – the court is bound to allow the application [Palai Central Bank Case, AIR 1962 SC 1371]
  72. 72. Voluntary winding up • Not possible unless RBI certifies • The HC during this stage intervene (i) by itself; or (ii) by the application of RBI – And may order for continuation of the business for some time – It may even supervise the winding up proceedings