The Supreme Court today stayed the Orissa High Court order for a Central Bureau of Investigation (CBI) probe into the alleged Rs 25 lakh crore derivatives scam. A Bench headed by Chief Justice KG Balakrishnan issued notices to the parties involved on appeals moved by the Fixed Income Money Market & Derivatives Association (Fimmda), the Indian Banks Association (IBA) and several others challenging the high court judgement. The court had ordered a probe into “mis-selling” of derivatives contracts in 2007 and 2008. Notices will also be sent to the CBI, the Reserve Bank of India and the government of India.

The high court, in December last year, had ordered an inquiry into contracts sold by some banks to those seeking to use them as a hedge against currency fluctuations. The derivatives-holders were caught on the wrong foot when the rupee appreciated during the period.

Fimmda represents a large number of scheduled and nationalised banks, including State Bank of India and public financial institutions such as LIC, Exim Bank, Nabard and IDFC. It also represents primary dealers and insurance companies that provide derivatives facilities as hedging and risk management tools for entities, including exporters and importers.

Counsel Harish Salve submitted before the Bench that the high court order would affect the entire financial sector as everyone was under the CBI scanner. He said individual instances of irregularities might be there, but it should not be a cause to hold the entire sector responsible. KK Venugopal, counsel for the IBA, lamented that the banks were rendered vulnerable by the order of the high court.

Reports suggest that the CBI has already launched an inquiry into 22 banks — including State Bank of India, HDFC Bank, HSBC Bank, Citibank, ICICI Bank, ABN Amro, Axis Bank and Barclays — for violations of the Foreign Exchange Management Act.

According to Fimmda, these transactions, either in two or multiple currencies, are specifically permitted by RBI. These are monitored by RBI and issues are resolved among RBI, regulators and banks.

When the rupee depreciated against the dollar, causing losses to some exporters who had booked derivatives contracts, a large number of civil suits were filed by them across the country seeking to avoid their contractual liabilities. According to Fimmda, a public interest petition was filed in the high court to support them, contending that these transactions constituted a scam.

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January 2021