It is known that while some loan transactions with the Bank like Housing Loan, Educational Loan etc. are very simple, some commercial loan transactions are very complex in nature. The Bank may provide various loan facilities to the Borrower and most of these commercial loans are complex to understand and these loans infact involve many complexities. When a Businessmen or a Corporate gets various loan facilities and if there is a default or allegation of default with regard to a particular loan facility, the Bank proceeds against the borrower and claims for the settlement of entire outstanding debt in respect of all facilities. The Banks use the provisions of “Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act)” which appear to be draconian in some cases while the Act is justified from another angle. Irrespective of the long standing relation of creditor and borrower, in some cases, the Bank may be unreasonable towards a borrower and may insist for recovery of the entire outstanding dues even if the borrower commits a default in respect of only one facility among many other facilities extended to the same borrower. The Bank may say that they will proceed ‘borrower-wise’ in classifying any Account as ‘Non-performing Asset’ and proceed with the recovery process under the provisions of SARFAESI Act, 2002. Banks or the officers concerned do exercise some discretion in this regard while the Bank or the officers are left with no discretion in respect of few other cases. The Bank has to follow the RBI guidelines and the RBI circulars having binding nature from to time. It is known that the Banks should follow the guidelines of ‘Asset Classification’ prescribed by the Reserve Bank of India in classifying any loan account as ‘Non-performing Asset’. The guidelines never intended to unnecessarily and unreasonably harass the borrowers. The guidelines refers to the significance of looking at ‘risk factor’, the ‘value of security’, track record of the borrower and even getting the loan Account updated though Bank usually follows their internal guidelines.
In some cases, the borrowers do not want to litigate the issues with the Bank and may try their level best to get the default rectified and may try to get the account settled finally under ‘One-time Settlement Scheme’. The Bank or the officers concerned in most of the cases maintain written or oral communication with the borrowers when there is default. The borrowers, in-turn, explains their difficulties in view of their long standing relationship with the Bank and may seek some relaxation and may seek indulgence of the Bank to rectify the default in repayment. This communication or negotiation happens before classifying any loan Account as “Non-performing Asset” and even after the classification of account as NPA and before initiating the proceedings under the provisions of SARFAESI Act, 2002. In some cases, the borrowers negotiate with the Bank for rectifying the default or for a ‘final settlement’ even after the issuance of demand notice by the Bank under section 13 (2) of the Act. This is the reason as to why there is delay on the part of the Bank in proceeding with the recovery under the provisions of SARFAESI Act, 2002 even after the issuance of demand notice under section 13 (2). When a borrower intends to avoid litigation, he may listen or act upon the oral understanding with the officials. Sometimes, the understanding for ‘rectification of default’ or ‘settlement of loan’ can be in writing also. While the ‘rectification of default’ is oral in most of the cases, the ‘final settlement of the account’ is in writing normally.
‘Settlement of Default of Debt/Regularisation’:
It is frequently alleged now-a-days by the borrowers that the Bank or the officers of the Bank agrees for the ‘settlement for rectification of default’, receives the money from the borrower and later-on, insists for the full settlement of the outstanding due. Inspite of updating the loan account, the Bank may choose to proceed under the provisions of SARFAESI Act, 2002 and may say that they are acting on the basis of classification and they never agreed for ‘regularizing the loan account’. This happens even after the demand notice issued under section 13 (2). Even after the demand notice, the borrower can negotiate with the Bank and the Bank may receive some substantial amount of money in-between and even then, suddenly may choose to proceed with the issuance of notice under section 13 (4). These are the usual allegations from the borrowers against the Bank when it comes to ‘regularization of loan accounts’. The allegation in some cases is that the Banks goes back from their promise and in some cases, the Bank is not co-operating for regularization as even the RBI guidelines refer to the regularization if other factors like the track-record, risk-factor, value of security etc. are justified. Another thing is that the intention behind giving notice to the borrower under section 13 (2) of the Act is to invite objections if any. Law mandates the Bank to give a reasoned reply to the objections raised by the borrower under section 13 (3A). But, what happens is that the Banks agree for some kind of settlement either orally or in writing even after the issuance of notice under section 13 (2). Later on, after a gap of some one year and when the borrower makes the substantial payment, the Bank acts upon the demand notice and issues a possession notice under section 13 (4) of the Act. This is infact incorrect. If something notable has taken place with regard to the recovery of loan after the issuance of notice under section 13 (2) and if the Bank is silent in acting on section 13 (2) for a considerable time in view of the payments made by the borrower, then, it is incumbent upon the Bank to issue the demand notice afresh taking note of subsequent developments and this fresh demand notice under section 13 (2) of SARFAESI Act can give an opportunity to the borrower to include his objections afresh without taking a direct recourse to an appeal to Debt Recovery Tribunal (DRT) or without having to approach the High Court seeking intervention at times. But, this is not happening. In most of the cases, unless the Debt Recovery Tribunal sets the SARFAESI proceedings aside, the Banks do not issue demand notice twice under section 13 (2) and instead acts upon the demand notice issued earlier irrespective of time gap or lapse. These are the usual problems being faced by the borrowers in getting his or their account regularized or updated. The borrowers are infact left with no remedy in these cases as the scope of powers of DRT under section 17 of the Act does not include the power to give direction to the Banks to agree for regularization. These kinds of cases mostly come to High Court and the High Courts usually issues suitable directions noting the interests of the Bank and the rights and plight of the borrower.
‘Settlement of Debt/One-time Settlements’:
The second issue is with regard to ‘final settlement of debts’. In many cases, Banks are going back from their promise of ‘one-time settlement’. The Banks agree for ‘final settlement of account’ with the borrower. The Banks may ask the borrower to give an offer letter in a format and with some averments and then, the Banks will agree for settlement. When the substantial amount is paid, the Banks may say and are saying in most of the cases that the RBI guidelines do not allow them to get the account settled under ‘One-time Settlement’. Again, the Banks may say that the borrower has not disclosed all the facts with the Bank while coming forward with the ‘One-time Settlement Proposal’. Once the settlement proposal is agreed, the Banks will be very silent till the substantial amount is deposited with the Bank and finally, they can say that they do not have right to go for ‘settlement’ or can blame the borrower that he has not disclosed the whole facts. These things do happen regularly now-a-days. The DRT normally do not look into these issues and the DRT may at best, look at the procedural irregularities if any and even the disputes pertaining to outstanding are not entertained as such though the DRT can look into those issues. The DRT normally goes with the stand taken by the Bank unless the Bank is apparently wrong in their approach. Public Sector Banks should concentrate on the recovery of money and at the same time, can not harass the borrowers who are willing to get their accounts regularized or willing to get their account finally settled. Even, the RBI guidelines hint at this. When there is security lying with the Bank and when original documents are with the Bank, the Banks pressurize the borrowers with all kinds of things and using the provisions of SARFAESI Act, 2002 to their advantage. The DRT in these cases proves to be ineffective and the borrower is not entitled to approach the Civil Court in these cases in view of the bar under section 34 of SARFAESI Act, 2002. Though there is a scope for the Civil Court to entertain even the SARFAESI related matters in some cases in a limited sense pursuant to the Mardia Chemical’s case, it is very difficult to persuade the Civil Court with regard to its jurisdiction in SARFAEI matters and this can be attributed to the lack of expertise on the part of the Civil Courts with the Securitisation Law.
When there is a borrower willing to get his account regularized and willing for settlement, the Banks can not harass those borrowers. In most of the cases, where the borrowers allege wrong treatment or breach of promise on the part of Banks with regard to ‘settlement for regularization’ and ‘final settlement of outstanding due’, the borrowers do approach the High Court and in most of the cases, High Courts do justice to the Petitioner or the borrower keeping the interests of the Bank and borrowers in view. High Courts are very careful in interfering with the SARFAESI proceedings initiated by the Banks as it can not be seen as an alternative to the Debt Recovery Tribunals (DRTs). But, in fit cases, the High Courts may not agree with the arguments of the Banks with regard alternative forum and may exercise the jurisdiction under Article 226 of Constitution of India.
The issue as to whether the Banks can go back from the ‘settlement of default’ or ‘settlement of loan’ will depend upon the facts of the case and especially the contents of written offer and agreement by the Banks.
Note: the views expressed are my personal.
V.DURGA RAO, Advocate, Madras High Court.
Email: [email protected]