As per Reserve Bank India, has defined the term “willful defaulter” paving the way for banks to acquire assets of defaulting companies through the Securitisation Ordinance and reduce their non-performing assets faster.
“The Securitisation Ordinance gives the right to banks to acquire assets of willful defaulters. There was a demand that the law should not be harsh for non-willful defaulters, who should be distinguished from willful defaulters. The term willful defaulter has been defined by RBI now,” Indian Banks Association (IBA) chairman Dalbir Singh said at a Bankers-Borrowers meet at PHDCCI here today.
According to RBI, a willful defaulter is one who has not used bank funds for the purpose for which it was taken and who has not repaid loans despite having adequate liquidity.
The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Ordinance were termed “draconian” by a section of the industry, which had sought clarification on the definition of willful defaulters.
RBI had constituted two working groups to come up with the detailed guidelines of securitisation of assets and for asset reconstruction companies.
Singh, also chairman of the Central Bank of India, sought to allay fears of non-willful defaulters saying, “Bankers will never ever misutilise the ordinance.”
However, the IBA chief warned corporate and asked them to be disciplined in repaying bank loans in time as the government was committed to making income recognition norms in line with international standards.
The international standards classify an asset as NPA if the company “fails to pay interest within 90 days as against the Indian norm of 180 days”.
1. Introduction
Pursuant to the instructions of the Central Vigilance Commission for collection of information on willful defaults of Rs.25 lakhs and above by RBI and dissemination to the reporting banks and FIs, a scheme was framed by RBI with effect from 1st April 1999 under which the banks and notified All India Financial Institutions were required to submit to RBI the details of the wilful defaulters. Willful default broadly covered the following:
a) Deliberate non-payment of the dues despite adequate cash flow and good net worth;
b) Siphoning off of funds to the detriment of the defaulting unit;
c) Assets financed either not been purchased or been sold and the proceeds have been misutilised;
d) Misrepresentation / falsification of records;
e) Disposal / removal of securities without bank’s knowledge;
f) Fraudulent transactions by the borrower.
Accordingly, banks and FIs started reporting all cases of willful defaults, which occurred or were detected after 31st March 1999 on a quarterly basis. It covered all non-performing borrowal accounts with outstanding (funded facilities and such non-funded facilities which are converted into funded facilities) aggregating Rs.25 lakhs and above identified as willful default by a Committee of higher functionaries headed by the Executive Director and consisting of two GMs/DGMs. Banks/FIs were advised that they should examine all cases of willful defaults of Rs 1.00 crore and above for filing of suits and also consider criminal action wherever instances of cheating/fraud by the defaulting borrowers were detected. In case of consortium/multiple lending, banks and FIs were advised that they report willful defaults to other participating/financing banks also. Cases of willful defaults at overseas branches were required to be reported if such disclosure is permitted under the laws of the host country.
2. Guidelines issued on wilful defaulters
Further, considering the concerns expressed over the persistence of willful default in the financial system in the 8th Report of the Parliament’s Standing Committee on Finance on Financial Institutions, the Reserve Bank of India, in consultation with the Government of India, constituted in May 2001 a Working Group on Wilful Defaulters (WGWD) under the Chairmanship of Shri S. S. Kohli, the then Chairman of the Indian Banks’ Association, for examining some of the recommendations of the Committee. The Group submitted its report in November 2001. The recommendations of the WGWD were further examined by an In House Working Group constituted by the Reserve Bank. Accordingly, the Scheme was further revised by RBI on May 30, 2002.
The above scheme was in addition to the Scheme of Disclosure of Information on Defaulting Borrowers of banks and FIs introduced in April 1994, vide RBI Circular DBOD.No.BC/CIS/47/20.16.002/94 dated 23 April 1994.
2.1 Definitions of willful default
The term “willful default” has been redefined in supersession of the earlier definition as under:
A “wilful default” would be deemed to have occurred if any of the following events is noted :-
(a) The unit has defaulted in meeting its payment / repayment obligations to the lender even when it has the capacity to honor the said obligations.
(b) The unit has defaulted in meeting its payment / repayment obligations to the lender and has not utilized the finance from the lender for the specific purposes for which finance was availed of but has diverted the funds for other purposes.
(c) The unit has defaulted in meeting its payment / repayment obligations to the lender and has siphoned off the funds so that the funds have not been utilized for the specific purpose for which finance was availed of, nor are the funds available with the unit in the form of other assets.
(d) The unit has defaulted in meeting its payment / repayment obligations to the lender and has also disposed off or removed the movable fixed assets or immovable property given by him or it for the purpose of securing a term loan without the knowledge of the bank/lender.
2.2 Diversion and siphoning of funds
The terms “diversion of funds” and “siphoning of funds” should construe to mean the following:-
2.2.1 Diversion of funds, referred to at para 2.1(b) above, would be construed to include any one of the underrated occurrences:
(a) Utilization of short-term working capital funds for long-term purposes not in conformity with the terms of sanction;
(b) Deploying borrowed funds for purposes / activities or creation of assets other than those for which the loan was sanctioned;
(c) Transferring funds to the subsidiaries / Group companies or other corporate by whatever modalities;
(d) Routing of funds through any bank other than the lender, bank or members of consortium without prior permission of the lender;
(e) Investment in other companies by way of acquiring equities / debt instruments without the approval of lenders;
(f) Shortfall in deployment of funds via-à-is, the amounts disbursed / drawn and the difference not being accounted for.
2.2.2 Siphoning of funds, referred to at para 2.1 (c) above, should be construed to occur if any funds borrowed from banks / FIs are utilized for purposes un-related to the operations of the borrower, to the detriment of the financial health of the entity or of the lender. The decision as to whether a particular instance amounts to the siphoning of funds would have to be a judgement of the lenders based on objective facts and circumstances of the case.
The identification of the willful default should be made keeping in view the track record of the borrowers and should not be decided on the basis of isolated transactions/incidents. The default to be categorized as wilful must be intentional, deliberate and calculated.
2.3 cutoff limits
While the penal measures indicated at para 2.5 below would normally be attracted by all the borrowers identified as wilful defaulters or the promoters involved in diversion / siphoning of funds, keeping in view the present limit of Rs. 25 lakh fixed by the Central Vigilance Commission for reporting of cases of wilful default by the banks/FIs to RBI, any wilful defaulter with an outstanding balance of Rs. 25 lakh or more, would attract the penal measures stipulated in para 2.5 below. This limit of Rs. 25 lakh may also be applied for the purpose of taking cognizance of the instances of ‘siphoning’ / ‘diversion’ of funds.
2.4 End-use of Funds
In cases of project financing, the banks / FIs seek to ensure end use of funds by, inter alia, obtaining certification from the Chartered Accountants for the purpose. In case of short-term corporate / clean loans, such an approach ought to be supplemented by ‘due diligence’ on the part of the lenders themselves, and to the extent possible, such loans should be limited to only those borrowers whose integrity and reliability are above board. The banks and FIs, therefore, should not depend entirely on the certificates issued by the Chartered Accountants but strengthen their internal controls and the credit risk management system to enhance the quality of their loan portfolio.
Needless to say, ensuring end-use of funds by the banks and the FIs should form a part of their loan policy document for which appropriate measures should be put in place. The following are some of the illustrative measures that could be taken by the lenders for monitoring and ensuring end-use of funds:
(a) Meaningful scrutiny of quarterly progress reports / operating statements / balance sheets of the borrowers;
(b) Regular inspection of borrowers’ assets charged to the lenders as security;
(c) Periodical scrutiny of borrowers’ books of accounts and the no-lien accounts maintained with other banks;
(d) Periodical visits to the assisted units;
(e) System of periodical stock audit, in case of working capital finance;
(f) Periodical comprehensive management audit of the ‘Credit’ function of the lenders, so as to identify the systemic-weaknesses in the credit-administration.
(It may be kept in mind that this list of measures is only illustrative and by no means exhaustive.)
2.5 Penal measures
In order to prevent the access to the capital markets by the wilful defaulters, a copy of the list of wilful defaulters (non-suit filed accounts) and list of wilful defaulters (suit filed accounts) are forwarded to SEBI by RBI and Credit Information Bureau (India) Ltd. (CIBIL) respectively.
The following measures should be initiated by the banks and FIs against the wilful defaulters identified as per the definition indicated in paragraph 2.1 above:
a) No additional facilities should be granted by any bank / FI to the listed wilful defaulters. In addition, the entrepreneurs / promoters of companies where banks / FIs have identified siphoning / diversion of funds, misrepresentation, falsification of accounts and fraudulent transactions should be debarred from institutional finance from the scheduled commercial banks, Development Financial Institutions, Government owned NBFCs, investment institutions etc. For floating new ventures for a period of 5 years from the date the name of the wilful defaulter is published in the list of wilful defaulters by the RBI.
b) The legal process, wherever warranted, against the borrowers / guarantors and foreclosure of recovery of dues should be initiated expeditiously. The lenders may initiate criminal proceedings against wilful defaulters, wherever necessary.
c) Wherever possible, the banks and FIs should adopt a proactive approach for a change of management of the willfully defaulting borrower unit.
d) A covenant in the loan agreements, with the companies in which the banks / notified FIs have significant stake, should be incorporated by the banks / FIs to the effect that the borrowing company should not induct a person who is a promoter or a director on the Board of a company which has been identified as a wilful defaulter as per the definition at paragraph 2.1 above and that in the case, such a person is found to be on the Board of the borrower company, it would take expeditious and effective steps for removal of the person from its Board.
It would be imperative on the part of the banks and FIs to put in place a transparent mechanism for the entire process so that the penal provisions are not misused and the scope of such discretionary powers are kept to the barest minimum. It should also be ensured that a solitary or isolated instance is not made the basis for imposing the penal action.
2.6 Guarantees furnished by group companies
While dealing with wilful default of a single borrowing company in a Group, the banks / FIs should consider the track record of the individual company, with reference to its repayment performance to its lenders. However, in cases where a letter of comfort and / or the guarantees furnished by the companies within the Group on behalf of the willfully defaulting units are not honored when invoked by the banks / FIs, such Group companies should also be reckoned as wilful defaulters.
2.7 Role of auditors
In case any falsification of accounts on the part of the borrowers is observed by the banks / FIs, and if it is observed that the auditors were negligent or deficient in conducting the audit, they should lodge a formal complaint against the auditors of the borrowers with the Institute of Chartered Accountants of India (ICAI) to enable the ICAI to examine and fix accountability of the auditors.
With a view to monitoring the end-use of funds, if the lenders desire a specific certification from the borrowers’ auditors regarding diversion / siphoning of funds by the borrower, the lender should award a separate mandate to the auditors for the purpose. To facilitate such certification by the auditors the banks and FIs will also need to ensure that appropriate covenant in the loan agreements is incorporated to enable award of such a mandate by the lenders to the borrowers / auditors.
2.8 Role of Internal Audit / Inspection
The aspect of diversion of funds by the borrowers should be adequately looked into while conducting internal audit/inspection of their offices/branches and periodical reviews on cases of wilful defaults should be submitted to the Audit Committee of the bank.
2.9 Reporting to RBI / Credit Information Companies
Banks/FIs should submit the list of suit-filed accounts of wilful defaulters of Rs.25 lakh and above as at end-March, June, September and December every year to a credit information company which has obtained a certificate of registration from RBI in terms of Section 5 of the Credit Information Companies (Regulation) Act, 2005 and of which it is a member. Reserve Bank of India has, in exercise of the powers conferred by the Act and the Rules and Regulations framed there under, granted Certificate of Registration to (i) Experian Credit Information Company of India Private Limited, (ii) Equifax Credit Information Services Private Limited, (iii) High Mark Credit Information Services Private Limited and (iv) Credit Information Bureau (India) Limited (CIBIL) to commence/carry on the business of credit information. Banks/FIs should, however, submit the quarterly list of wilful defaulters where suits have not been filed only two RBI in the format given in Annex 1. Credit Information Companies have also been advised to disseminate the information pertaining to suit filed accounts of Wilful Defaulters on their respective websites.
Explanation
In this connection, it is clarified that banks need not report cases where
(i) Outstanding amount falls below Rs.25 lakh and
(ii) In respect of cases where banks have agreed to a compromise settlement and the borrower has fully paid the compromised amount.
3. Grievances Redressal Mechanism
Banks/FIs should take the following measures in identifying and reporting instances of wilful default:
(i) With a view to imparting more objectivity in identifying cases of wilful default, decisions to classify the borrower as wilful defaulter should be entrusted to a Committee of the higher functionaries headed by the Executive Director and consisting of two GMs/DGMs as decided by the Board of the concerned bank/FI.
(ii) The decision taken on classification of wilful defaulters should be well documented and supported by requisite evidence. The decision should clearly spell out the reasons for which the borrower has been declared as wilful defaulter vi’s-à-vi’s RBI guidelines.
(iii) The borrower should thereafter be suitably advised about the proposal to classify him as wilful defaulter along with the reasons therefor. The concerned borrower should be provided reasonable time (say 15 days) for making representations against such decision, if he so desires, to a Grievance Redressal Committee headed by the Chairman and Managing Director and consisting of two other senior officials.
(iv) Further, the above Grievance Redressal Committee should also give a hearing to the borrower if he represents that he has been wrongly classified as wilful defaulter.
(v) A final declaration as ‘wilful defaulter’ should be made after a view is taken by the Committee on the representation and the borrower should be suitably advised.
4. Criminal Action against Wilful Defaulters
4.1 J.P.C. Recommendations
Reserve Bank examined, the issues relating to restraining wilful defaults in consultation with the Standing Technical Advisory Committee on Financial Regulation in the context of the following recommendations of the JPC and in particular, on the need for initiating criminal action against concerned borrowers, viz.
a. It is essential that offenses of breach of trust or cheating construed to have been committed in the case of loans should be clearly defined under the existing statutes governing the banks, providing for criminal action in all cases where the borrowers divert the funds with malafide intentions.
b. It is essential that banks closely monitor the end-use of funds and obtain certificates from the borrowers certifying that the funds have been used for the purpose for which these were obtained.
c. Wrong certification should attract criminal action against the borrower.
4.2 Monitoring of End Use
Banks / FIs should closely monitor the end-use of funds and obtain certificates from borrowers certifying that the funds are utilized for the purpose for which they were obtained. In case of wrong certification of the borrowers, banks / FIs may consider appropriate legal proceedings, including criminal action wherever necessary, against the borrowers.
4.3 Criminal Action by Banks / FIs
It is essential to recognize that there is scope even under the existing legislations to initiate criminal action against wilful defaulters depending upon the facts and circumstances of the case under the provisions of Sections 403 and 415 of the Indian Penal Code (IPC) 1860. Banks / FIs are, therefore, advised to seriously and promptly consider initiating criminal action against wilful defaulters or wrong certification by borrowers, wherever considered necessary, based on the facts and circumstances of each case under the above provisions of the IPC to comply with our instructions and the recommendations of JPC.
It should also be ensured that the penal provisions are used effectively and determinedly, but after careful consideration and due caution. Towards this end, banks / FIs are advised to put in place a transparent mechanism, with the approval of their Board, for initiating criminal proceedings based on the facts of the individual case.
5. Repeating names of Directors
5.1 Need for Ensuring Accuracy
RBI / Credit Information Companies disseminate information on non-suit filed and suit filed accounts respectively, as reported to them by the banks / FIs and responsibility for reporting correct information and also accuracy of facts and figures rests with the concerned banks and financial institutions. Therefore, banks and financial institutions should take immediate steps to up-date their records and ensure that the names of the current directors are reported. In addition to reporting the names of current directors, it is necessary to furnish information about directors who were associated with the company at the time the account was classified as a defaulter, to put the other banks and financial institutions on guard. Banks and FIs may also ensure the facts about directors, wherever possible, by cross-checking with Registrar of Companies.
5.2 Position regards Independent and Nominee directors
Professional Directors who associate with companies for their expert knowledge act as independent directors. Such independent directors apart from receiving director’s remuneration do not have any material pecuniary relationship or transactions with the company, its promoters, its management or its subsidiaries, which in the judgment of the Board may affect their independent judgment. As a guiding principle of disclosure, no material fact should be suppressed while disclosing the names of a company that is a defaulter and the names of all directors should be published. However, while doing so, a suitable distinguishing remark should be made clarifying that the concerned person was an independent director. Similarly the names of directors who are nominees of government or financial institutions should also be reported, but a suitable remark ‘nominee director’ should be incorporated.
Therefore, against the names of Independent Directors and Nominee Directors, they should indicate the abbreviations “IND” and “Nom” respectively in brackets to distinguish them from other directors.
5.3 Government Undertakings
In the case of Government undertakings, it should be ensured that the names of directors are not to be reported. Instead, a legend “Government of ——– undertaking” should be added.
5.4 Inclusion of Director Identification Number (DIN)
In order to ensure that directors are correctly identified and in no case, persons whose names appear to be similar to the names of directors appearing in the list of wilful defaulters, are wrongfully denied credit facilities on such grounds, banks/FIs have been advised to include the Director Identification Number (DIN) as one of the fields in the data submitted by them to Reserve Bank of India / Credit Information Companies.
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