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Andhyarujina panel for more teeth to DRTs

The T R Andhyarujina Committee has suggested extensive legal changes to confer larger powers on debt recovery tribunals for expeditious disposal of claims of banks and financial institutions.

It also said that banks and financial institutions have a case to special treatment for guarantees in the amended provisions of Section 28 of the Indian Contract Act 1997.

This particularly concerns guarantees to the government, under which claims can be enforced even up to 30 years causing banks and financial institutions to keep securities and margins for long periods.

The committee has formulated specific proposals to give effect to the suggestions made by the Narasimham Committee on banking sector reforms.

The committee under the chairmanship of T R Andhyarujina, senior Supreme Court advocates and former Solicitor General of India, has submitted four reports.

One is on the debt recovery tribunals. The second is on the recent amendment to Section 28 of the Indian Contract Act 1997. The third is on powers for taking possession and sale of securities without intervention of court to banks and financial institutions. The fourth is a law for securitisation.

The committee consisted of M Damodran, joint secretary for banking at the ministry of finance, A P Agarwal, additional legal advisor at the ministry of law and justice, V K Bhasin, additional legislative counsellor, S H Bhajani, executive director at the ICICI, N L Mitra, director at the Bangalore-based National Law School of India University, Shardul Shroff, solicitor, and N V Deshpande, legal adviser at the Reserve Bank of India.

In its report on the debt recovery tribunals or DRTs, the committee said even after the recent amendment to the recovery of debts to banks and Financial Institutions Act 1993, or DRT Act, extensive changes are required to confer larger powers on the tribunals for the expeditious disposal of claims of banks and financial institutions.

The committee recognised the need for expertise in the personnel of the tribunal in view of complex transactional matters such as project financing, securitisation and new kinds of debt instruments involving high stakes, which will come up in future before these tribunals.

It said the government might have to consider changing the set up of the tribunals in future to include members having expertise in such matters. The status and personnel of the tribunal should be upgraded in the meantime.

The committee has also recommended that conflicts of jurisdiction experienced between the working of the winding up court under the Companies Act and the jurisdiction of the BIFR under Sick Industrial Companies Act 1985 should be clarified.

The tribunal should be given the authority to allow banks and financial institutions to serve the parties with summons for urgent orders.

It further recommended that the central government should be invested with the power to make regulations for a uniform procedure to be adopted by all the tribunals in the country.

The committee has suggested that government may consider conferring the powers of contempt of court on the tribunals for effective implementation of their orders.

If the tribunals are to function smoothly, it must be ensured that infrastructure requirements are expeditiously provided to them.

For this purpose, the committee recommended that the DRT Act should be amended to cast an obligation on the RBI to constitute an infrastructural fund for the tribunals to ensure and facilitate and administrative and infrastructural requirements of the tribunals.

In its report on the amendment made to Section 28 of the Contract Act in 1997, the committee has stated that the banks and financial institutions have a case to have a special treatment for guarantees in the amended provisions of Section 28, particularly guarantees to government under which claims can be enforced even up to 30 years causing the banks and financial institutions to keep securities and margins for log periods.

It recommended a reasonable period to be provided to the bank to enforce their rights under the guarantee after a specified event, which would extinguish or discharge the banks from their liability under a guarantee.

In its report on the powers of taking possession and sale of securities without the intervention of court, the committee has recognised that the right of private sale of movable and immovable property should be conferred to banks and financial institutions for speedy recovery as have been conferred upon land development banks and state finance corporations.

For this purpose, a new law may incorporate power of sale without intervention of the court in cases where the mortgagees are banks and financial institutions with proper safeguards.

Such a special law would also define a charge by way of hypothecation, floating charge and crystallisation of the floating charge into the rights and obligations of the hypothecator and hypothecatee with power of sale without the intervention of the court to banks and financial institutions.

The law should provide for the setting up of a new registry jointly by the banks and financial institutions for registration of mortgages and hypothecation charges in place of the present obsolete and dilatory office of sub-registrar of assurance which are presently keeping records of transfers.

In its report on securitisation, the committee has recognised that it was time to examine the methodology of facilitating the modern concept of securitisation, which contemplates dealings in a new genre of commercial property.

The committee has examined the essential ingredients of a securitisation transaction and suggested a draft bill for undertaking such transactions.

It said that only with a new law there could be effective securitisation in a present dynamic field in which the development of law must assist the business world in achieving its goals.

UNI

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