Tag: #ReservebankofIndia

Introduction

Money is a major factor in people’s lives in the modern world. With the transition from cash to banknotes to credit-rated playing cards, there is a clear rise in financial fraud. It has become necessary for third parties to help with transaction processing, buyer-seller mediation, storage of products and cash, money transportation, and even revenue accumulation to deal with these intricate currency structures. Banks have a right to fulfil this intermediate role, and bankers are mediators. As the variety of these intermediaries grew over time, more government regulation was required to monitor, regulate, and change their operations.

To date, there is no proper definition of attempted financial institution fraud by anyone. For gifts, the section under the IPC protects against fraud, concealment, forgery, embezzlement, breach of belief, criminal conspiracy, etc. It is used in all bank fraud cases. There is no proper section that deals with financial institution fraud and finds standards for committing and punishing such fraud. While these financial frauds cause substantial damage and loss to financial institutions and banks, they are not called scammers in India. Things are exploding right now and the types of these scams are increasing tremendously with our growing knowledge of the times. In 2001, after massive fraud such as Harshad Mehta fraud, vanishing agency rip-off, plantation company fraud, NGO fraud, mutual budget fraud, and Ketan Parekh rip-off.

As the economy slows, frauds increase

Financial institutions have seen a startling seven-fold surge in fraud instances in only five years.

90% of total fraud sums and 55% of total fraud coverage are attributable to Public Sector Bank (PSB) fraud. This year, there was more PSB fraud. A recent Rajya Sabha probe, according to the finance minister, revealed a very high amount of PSB fraud.

The State Bank of India registered the biggest loss due to the order in which bank losses occurred. Following it are the Baroda Bank with Rs 8,273 crore and the Punjab National Bank with Rs 10,822 crore. According to documents published in 2017 by the National Criminal Records Bureau (NCRB), the number of charges for financial offenses (as defined by the Indian Penal Code, or IPC) has increased to 111. Here, an economic crime includes offenses like ATM-related fraud, counterfeiting, and banknote forgery. White-collar crime has been dubbed the epicentre of Jaipur, and Chennai has been claimed by several leases.

Reporting also leads to an expansion of the fraud’s scope. Cases were thoroughly documented, and her RBI put up a Central Fraud Registry to aid with case monitoring. Additionally, the RBI commanded that any defective goods with costs exceeding Rs. 500 crores be checked for potential fraud. These offenses don’t just affect big banks; they also affect little institutions.

In general, slowing down might make these scams worse. According to one theory, it might be attractive to further reduce fraud as a corporation expands and fights to get out of a more debt-ridden scenario. PNB recently reported a bank quarter scam involving DHFL accounts for Rs. 3,688.58 billion. These frauds come in an increasing variety. The RBI detected fraud in financial institutions in 2019 of Rs 71,500, although state-owned banks were responsible for 90% of these losses.

There are no codified laws prohibiting such fraud in overseas prisons, therefore instead of filing cases with police/CBI courts, there is no legal structure in place for such situations. In FY’22, banking frauds totaling more than 100 crores significantly decreased. In private and public regional banks, there were 118 fraud cases in FY22 compared to 265 in 2020–21. Banks reported fraud cases totaling 41,000 crores in 2021–22, down from 1.05 lakh crore the year before. This shows a dramatic decrease in frauds involving amounts exceeding 100 crores in the banking sector. Professional figures show that the number of fraud cases in private and public regional banks decreased from 265 in 2020–21 to 118 in FY22.

According to statistics, the overall number of fraud cases involving above $100 crores for public region banks (PSBs) reduced to 80 from 167 in FY’21, while for private region creditors, such cases decreased to 38 in FY’22 from 98 in FY’21. For PSBs, the overall amount has decreased from 65,900 crores in FY 21 to 28,000 crores. The discount for non-public regional banks is from 39,900 crores to 13,000 crores in FY’22.

The RBI has been taking numerous actions to detect frauds, including enhancing the effectiveness of the Early Warning System (EWS) framework, strengthening the governance and response system for fraud, enhancing statistics evaluation for tracking transactions, and establishing a dedicated Market Intelligence (MI) Unit for frauds. Public sector banks (PSBs) saw a decrease in fraud cases from 167 in FY2021 to 80 in FY2021, while private sector lenders saw a decrease from 98 cases in FY2021 to 38 instances in FY2022.

From £65.9 trillion in FY21 to £28 trillion in PSB, it has decreased cumulatively. The cut for private banks for FY2022 is between Rs. 39,900 and Rs. 13,000.

RBI Steps to check fraud cases

To check for fraud, the RBI will improve the effectiveness of its Early Warning System (EWS), strengthen its fraud governance and response system, expand data analytics to monitor transactions, and develop a dedicated Market Intelligence (MI)

Use of Artificial Intelligence

The rapid development of technology has opened up a new criminal arena. Cybercrime is currently a hot topic in India. Not surprisingly, India ranked third in the world for the number of reported cybercrimes in 2020, and the majority of these cases (up to 45% of cybercrimes) were online financial fraud. There are many online scams these days, including:

Phishing – Scammers propagate links via messages, attachments, advertisements, and other media to redirect their clicks to fake pages identical to their original website such as banks, e-commerce platforms, social media, etc.

Vishing/Telegraphic Fraud – Scammers posing as representatives of banks, corporations, insurance agencies, governments, etc. Contacting people via phone or other media to obtain information such as passwords, OTPs, and PINs. Get unauthorized access to your account by tricking or persuading.

Malicious Apps – Scammers encourage you to download unknown apps via installed messages, ads, giveaways, etc., thereby gaining access to the target device and stealing OTPs and already stored information such as credentials.

ATM skimming – ATMs are installed with a device that can copy data from the target ATM card and a PIN that can be used to withdraw money.

SIM card cloning – Scammers can clone their SIM (Subscriber Identity Module) card of a registered mobile number linked to a bank account to steal and scam a target’s identity.

QR Code Scam – Scammers can trick a target into scanning her malicious QR (quick response) code, which allows them to surreptitiously access the target’s device and retrieve information.

Surprisingly, following the introduction of Covid-19, the number of instances of financial fraud committed online has risen. These con artists use deception to get victims to test their medication as one method of catching tartar. Financial institutions are investing more than $217 billion in AI and machine learning (ML) solutions to address this issue. According to estimates, the deployment of such technologies cut down on investigation time by 70% and increased fraud detection accuracy by 90%.

Here are some ways AI and ML can be integrated into banking systems to keep consumers safe:

Numerous IT firms, including Teradata and Datavisor, are developing customized AI fraud detection tools for banks. AI software analyses consumer transaction patterns, create profiles using such information and may spot anomalous behavior. Uncanny Vision offers artificial intelligence (AI) monitoring at businesses and ATMs to track human behavior and notify you in case of questionable conduct. To confirm identity, biometric security scans a person’s distinctive biometric print, such as a finger, thumb, or retina. Using multi-factor authentication, Know Your Customer (KYC) integrates all data, including biometrics, to thwart illegal access. Security software alerts users to illicit app downloads that haven’t been verified by the user and could harm the device. Every minute, email platforms like Gmail find millions of spam messages that, if not deleted, might target users. Software that recognizes spam and fraud calls, like the True Caller app, alerts you in advance. Similar apps are also used by some insurance firms to identify probable fraudulent claims.

In addition to being secure and quick, using AI to fight fraud also improves user experience, offers individualized solutions, and lowers expenses and the possibility of human error. AI is a self-learning program that instantly updates and modifies itself to offer the most practical and successful answers.

The Bottom Line

While the progressive liberalization process has given the Indian banking industry a fresh coat of paint, it has also presented some significant obstacles. Fraud and a spike in her NPA are two of them. The banks involved have not suffered losses as a result of the fraudulent activity afflicting the financial sector, but their credibility has been further damaged.

Cases of bank fraud have increased recently in India. In India, bank fraud is frequently regarded as one of the costs of conducting business, but since liberalization, its prevalence, complexity, and associated expenses have all skyrocketed. Regulatory issues are affecting bank profitability and, consequently, the Indian economy.

References

1. Akansha Barua, Emerging Economic Frauds in Banking Sector, LawBhoomi(22 July 2022) Available at: https://lawbhoomi.com/emerging-economic-frauds-in-banking-sector/
2. The Editor, Banking frauds of over ₹100 crore see significant decline in FY’22, The Hindu(4 July, 2022) Available at: https://www.thehindu.com/business/Economy/banking-frauds-of-over-100-crore-see-significant-decline-in-fy22/article65595269.ece
3. Pushpita Dey, ‘Banking Frauds Using Communication Devices Rose By More Than 65% Post Covid’ (Outlook India, 18 December 2021) https://www.outlookindia.com/website/story/business-news-bankingfrauds-using-communication-devices-rose-by-more-than-65-post-covid/405699 (22 Septl 2022)
4. Internet Crime Complaint Center, Internet Crime Report 2020 (2021) 17 https://www.ic3.gov/Media/PDF/AnnualReport/2020_IC3Report.pdf
5. PYMNTS, ‘How AI And Machine Learning Can Address Banks’ Fraud-Fighting Weaknesses’ PYMNTS, 09 July 2021) https://www.pymnts.com/fraud-prevention/2021/ai-ml-banks-fraud-fighting/  (22 September 2022)
6. Shruti Sinha,BANKING FRAUDS: REFORMS BY GOVERNMENT AND ARTIFICIAL INTELLIGENCE,VOL. 1 ISSUE 3,Journal of Legal Research and Juridical Sciences,ISSN (O): 2583-0066 Available at: https://jlrjs.com/wp-content/uploads/2022/04/8.-Shruti-Sinha-1.pdf

This article has been written by Jay Kumar Gupta. He is currently a second-year BBA LL.B.(Hons.) student at the School of Law, Narsee Monjee Institute of Management Studies, Bangalore.

Introduction

One of the primary players in India’s journey to prevailing in quick structure its economy has been the banking sector. Since our present legal framework for business exchanges has not stayed aware of developing strategic policies and monetary sector changes. This outcome in an extended recuperation of defaulted advances and an expansion in the number of nonperforming resources held by banks and monetary organizations. The Central Government laid out the first and second Narasimham Committees, as well as the Andhyarujina Committee, to look at banking sector changes. These committees surveyed the need for changes in the legal framework in these sectors. These committees, among others, have proposed new regulations for securitization that would permit banks and monetary organizations to take care of protections and sell them without the requirement for judicial activity.¹

In light of these suggestions, the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI) were passed by the Parliament on December 17, 2002. The motivation behind this act is to permit banks and financial organizations to expeditiously recover cash progress. The Act licenses banks and financial organizations to sell sold property to recover outstanding obligations that poor person been paid for quite a long time in spite of various updates. Non-performing assets (“NPA”) in the records of banks and financial foundations must be dealt with in much the same way. The property being referred to could be a private or business property that has been sold with a bank or financial establishment as security for the assets progressed. Before the execution of the SARFAESI Act, distressed parties, like banks or financial establishments, would record a common recuperation claim in common court, and the interaction would delay for quite a long time in light of the fact that the common suit was battled by the two sides. Considering this, the law-making body chose to enact regulation that would permit such nonperforming assets (NPAs) to be quickly settled, permitting the bank to reinvest the recuperated reserves. Banks and financial foundations will save time by not recording a claim in common court, which would regularly be an extensive strategy.² Unstable advances, credits under $100,000, and obligations that are under 20% of the underlying guideline are excluded from the resolution. This regulation allowed the arrangement of resource reconstruction organizations (ARCs) and the offer of non-performing assets by banks to ARCs. Without the assent of a court, banks are approved to take responsibility for the property and sell it.

Objective and Applicability

It’s a legal framework that governs securitization transactions. Security interests can be implemented without the support of a court. The Act encourages banks and financial institutions to manage their assets to successfully deal with NPAs, asset reconstruction, and asset securitization organizations are being established. This Act empowers banks and financial institutions to seize hypothecated or mortgaged assets to recover nonperforming assets (NPAs). Without the participation of the court, the SARFAESI Act enables the following recovery channels for NPAs: securitization, asset reconstruction, and security enforcement.

The following topics are covered under the Act:

• The Reserve Bank of India regulates and registers Asset Reconstruction Companies (ARCs). Facilitating the securitization of banks’ and financial institutions’ financial assets, with or without the use of underlying securities.
• The ARC supports the consistent transferability of financial assets by issuing bonds, debentures, or any other instrument as a debenture to buy financial assets from financial organizations and banks.
• By entrusting the Asset Reconstruction Companies with the task of raising cash through the sale of security receipts to eligible buyers, the Asset Reconstruction Companies will be able to obtain funds.
• Facilitating the reconstruction of financial assets obtained when exercising securities enforcement authorities, management change powers, or other powers intended to be placed on banks and financial organizations.
• The borrower’s account is classified as a non-performing asset following the Reserve Bank of India’s instructions or guidelines released from time to time.
• In this case, the officials authorized shall exercise the rights of a secured creditor in line with the Central Government’s laws.
• An appeal to the relevant Debts Recovery Tribunal and a second appeal to the Appellate Debts Recovery Tribunal against any bank or financial institution’s activity.
• The Central Government may establish or compel the establishment of a Central Registry to register securitization, asset reconstruction, and security interest formation transactions.
• Applicability of the proposed legislation to banks and financial institutions initially, with the Central Government empowered to expand the proposed legislation’s application to non-banking financial enterprises and other organizations.
• The proposed regulation does not apply to security interests in agricultural lands, loans under one lakh rupees, or circumstances where the borrower repays 80% of the loan.

Asset Reconstruction

Asset Construction is covered by RBI regulations and legislative provisions under the SARFAESI Act, 2002. It consists of the following:

• The fundamental definition of “asset reconstruction” is the process of transforming nonperforming assets (NPAs) into performing assets.
• It all starts with a specialist Asset Reconstruction Company purchasing defective assets, including hypothecated assets, and financing them by issuing Bonds, Securities, and cash.
• The Asset Reconstruction Company takes over or changes the management of the borrower’s business, sells or leases a part or all of the borrower’s firm, and reschedules the borrower’s debt payments using this approach.

Working of Security Enforcement

The SARFAESI Act gives banks and financial institutions the authority to enforce their securities. The procedure begins with the Debtor being given a 60-day notice period to pay the owing amount. If the outstanding dues are not paid within the required term, the Banks and FI’s have the authority to enforce their SECURITY INTEREST by taking the following steps:

• Banks and financial institutions have the legal right to take ownership of the secured property.
• Banks and financial institutions have the option of selling or leasing such property or assigning the right to security.
• Appointment of a “Manager” to oversee the aforementioned security.

It can approach the borrower’s debtors for payment of the borrower’s debts.

Landmark Cases

M/S Transcore vs Union of India & Anr³
The appellant is M/s Transco, while the respondent is Union of India and Anr. This case is of general interest since it brings up a public approach issue about whether the principal stipulation to Section 19(1) of the DRT Act, 1993 (added by the Amending Act No.30 of 2004) is a condition that should be met prior to utilizing the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The respondent (Indian Overseas Bank) recorded activity with the DRT in Chennai for the recuperation of duty from the appellant in Civil Appeal No. 3228 of 2006. In 2005, the Respondent gave a Possession Notice to the appellant under segment 13(4) of the Act, expecting him to reimburse his duty of Rs. 4.15 crores (around) in addition to premium inside sixty days, and expressing that the appellant had neglected to do as such and that the bank had claimed the undaunted properties recorded in the timetable to the Notice, which was then sold. In any case, a common allure has been recorded, and the sale deal has been deferred.

In this case, the Supreme Court reasoned that pulling out a case forthcoming before the DRT is definitely not essential for utilizing the SARFEASI Act. This choice has settled the lawful issue encompassing the send-off of simultaneous procedures under the SARFAESI Act. The allure/I.A. made by the appellant in this Court is excused, yet the allure/I.A. is presented by the banks/FIs. is allowed with no expense’s choice. Besides, the choice in the Transcore case permitted banks and monetary foundations to start systems under both the SARAESI Act and the DRT Act simultaneously. The court likewise held that segment 13(2) of the SARFAESI Act is a notification of interest expecting activity to be directed inside the time expressed and not a simple show-cause notice. At the point when a notice is given to the indebted person it is adequately evident, that borrower has neglected to put in his time and his record is classed as NPA. The obligation is distinguished and the record is delegated a nonperforming resource (NPA) under RBI rules. Prior to the bank/FI can summon Section 13(4) of the SARFAESI Act, the requirements of Section 13(2) of the SARFAESI Act should be met. Following the culmination of Section 13(2) conditions, the bank or FI would be qualified to assume responsibility for the borrower’s gotten resources or make different moves. For this situation, the possibility of the political race doesn’t matter in light of the fact that the Act is a beneficial solution for the DRT Act. They are joined to frame a solitary cure; henceforth the possibility of the political race doesn’t have any significant bearing. The SARFAESI Act gives an additional cure that isn’t in a struggle with DRT. The SARFAESI Act was intended to safeguard the bank/premium FI’s in monetary resources that it claims because of an agreement or the use of customary regulation standards. Segment 13 of the SARFAESI Act intends to recuperate reserves utilizing a non-adjudicatory way. Under the SARFAESI Act, a got resource is one in which the borrower makes revenue for the bank/FI and the SARFAESI is determined exclusively on that premise. The reason for adding the stipulation to Section 19(1) of the DRT Act is to bring the arrangements of the DRT Act, the SARFAESI Act, and Order XXIII CPC into the arrangement.⁴

Mardia Chemicals Ltd. vs Union of India⁵
Here, the protected authenticity of SARFAESI was addressed, especially Sections 13, 15, 17, and 34, on the grounds that they are erratic and outlandish. Whenever the Act became real, IDBI Bank gave a notification to Mardia. Mardia defaulted-spoke to the court, where a progression of comparable petitions was assembled and tended to as a solitary case. The appellant battled that section 13 of the SARFAESI Act gives full freedoms to banks and monetary establishments while overlooking the privileges of defaulters. Likewise, borrower interest was not thought about by any means in Section 13. Besides, the borrowers had no right of direction or response to an adjudicatory technique. Section 17(2) of the Act expressed that the defaulter should store 75% of the sum to like and allure the sum was inordinate and subsequently restricted admittance to the legal plan of action of allure maybe a suggested bar had been made/to this, respondent battled that few different regulations accommodated such preconditions/Pet contended that those were for the claim and not for the use of first occurrence/respondent attempted to invalidate that by expressing that The strategy for assuming control over the business and the board of an element, especially a firm, was canvassed in Section 15 of the 15. The appellant likewise fought that section 34 was indistinguishable from Section 34 of the RDB Act, which announced that DRTs have selective locale, i.e., no respectful court will give any request or order against a bank practicing privileges under the Act. SARFAESI was pointless on the grounds that there was at that point a regulation managing this subject issue, and a few regulations were not expected to deal with a similar topic. It was additionally brought up that the most inconvenient obligation section somewhere in the range of 25,000 and 1 lakh dollars-didn’t require separate regulations.

For this situation, the Supreme Court held that the Parliament’s prevalence in concluding the requirement for regulation is underlined. The association between the RDB Act and SARFAESI was dismissed since the last option manages the exceptionally specific issue of nonperforming resources (NPAs) (among different contrasts, for example, the last option managing got leasers). Accordingly, it really depends on Parliament to conclude regardless of whether regulation is required. Section 13 was viewed as intrinsically authentic by the Court. The got bank is just practicing his privilege on the grounds that the default that prompted the sec 13 measure may be viewed as a “second default”- NPA + 60 days additional chance to reimburse following notification. Prior to the 2016 Amendment, Section 13 recognized the Right of Redemption it might be said. Rule 8 and 9 of the SI Rules expressed that the bank should serve a notification affirming the offer of gotten property and that the borrower might take care of the commitment and recover ownership any time before the genuine deal. While the Supreme Court affirmed the section’s legality, it pushed it difficult for borrowers to reserve the privilege to the portrayal. The Supreme Court decided Section 17(2) to be inconsistent and requested that the heading be modified from “claim” to “application.”⁶

Pandurang Ganpati Chaugale v. Vishwasrao Patil Murgud Sahakari Bank Ltd⁷
“‘Banking’ relating to cooperatives can be included within the purview of Entry 45 of List I, and it cannot be said to be over inclusion to cover provisions of recovery by cooperative banks in the SARFAESI Act,” a five-judge bench of Justices Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah, and Aniruddha Bose, has held in this case. The ruling of the Court came in a reference made in light of contradictory decisions in Greater Bombay Coop. Bank Ltd. v. United Yarn Tex (P) Ltd.⁸, Delhi Cloth & General Mills Co. Ltd. v. Union of India⁹, T. Velayudhan Achari v. Union of India¹⁰, and Union of India v. Delhi High Court Bar Association¹¹.

The seat held that the whole situation and banking action of helpful banks is represented by a regulation authorized under Entry 45 of List I, i.e., the BR Act, 1949, and the RBI Act ordered under Entry 38 of List I, saying that “recuperation of duty would be a fundamental capacity of any banking foundation, and the Parliament can sanction a regulation under Entry 45 of List I as the action of banking done by agreeable banks is inside the domain of Entry 45 of List I.” Obviously, under Section 13 of the SARFAESI Act, Parliament has the position to endorse the solution for recuperation.” The Court likewise clarified that the principal part of the matter of the agreeable bank connecting with banking was covered by the BR Act, 1949, and the Reserve Bank of India Act, such regulations are connected with Entries 45 and 38 of List I of the Seventh Schedule. The parts of ‘joining, regulation and twisting up’ are covered by Entry 32 of List II of the Seventh Schedule. “As we would see it, such bankers’ banking movement is covered by Entry 45 of List I, which considers the Doctrine of Pith and Substance, as well as the passability of accidental infringement on the field held for the State.” The court reasoned that disturbing ‘banking,’ the regulation connecting with Entry 45 of List I of the Seventh Schedule of the Constitution of India administers cooperative banks enrolled under State regulation and multi-State level cooperative social orders enlisted under the Multi-State Cooperative Societies Act, 2002 (MSCS Act, 2002). The cooperative banks run by cooperative social orders enrolled under State regulation for ‘joining, regulation, and ending up,’ specifically, to issues that are outside the domain of Entry 45 of List I of the Constitution of India, are administered by the said regulation connected with Entry 32 of List II of the Constitution of India. The significance of ‘Banking Company’ is characterized under Section 5(c) read with Section 56(a) of the Banking Regulation Act, 1949, which is a regulation associated with Entry 45 of List I. It manages the ‘banking’ part of co-employable social orders’ banks. The Banking Regulation Act, 1949, and some other regulation appropriate to helpful banks interesting in ‘Banking’ in Entry 45 of List I, and the RBI Act appealing to Entry 38 of List I of the Seventh Schedule of the Constitution of India, deny agreeable banks from participating in any movement except if they conform to the arrangements of the Banking Regulation Act, 1949, and some other regulation relevant to such banks engaging to ‘Banking’ in Entry 45 of List I. Under section 2(1)(c) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, state-contracted helpful banks and multi-state agreeable banks are alluded to as “banks.” The recuperation component laid out under section 13 of the SARFAESI Act, regulation connected with Entry 45 List I of the Seventh Schedule to the Constitution of India is pertinent on the grounds that recuperation is a significant part of banking.¹²

Amendment to the SARFAESI Act

The Enforcement of Security Interest and Recovery of Debts Laws and Miscellaneous Provisions (Amendment) Bill, 2016, was introduced in Parliament to amend four laws: the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI), the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (RDDBFI), the Indian Stamp Act, 1899, and the Depositories Act, 1996. When secured creditor defaults on a loan, the SARFAESI Act permits secured creditors to seize the collateral used to finance the transaction. This procedure is carried out with the help of the District Magistrate and does not necessitate the involvement of courts or tribunals. The District Magistrate must finish this process within 30 days, according to the Bill. Furthermore, the Bill authorizes the District Magistrate to assist banks in assuming management of a company if it is unable to repay loans. This will be done if the banks convert their outstanding loans into equity shares and hold a 51 percent or greater ownership in the company as a result.

The Act establishes a single registry to keep track of secured asset transactions. The bill establishes a consolidated database that will allow property records from diverse registration systems to be integrated into one central registry. This contains registrations made under the Companies Act of 2013, the Registration Act of 1908, and the Motor Vehicles Act of 1988. Secured creditors will not be able to take possession of collateral unless it is registered with the central registration, according to the bill. Furthermore, after the registration of a security interest, these creditors will have priority over others in the repayment of their debts.¹³

Conclusion

With the recent judgment made by the Supreme Court of India, all state and multi-state cooperative banks will now be subject to the SARFAESI Act of 2002. Banks can now sell and seize defaulters’ properties to recover their debts, because of the Supreme Court’s crucial decision. The court bench also recognized a 2003 notification that cooperative banks are covered by the SARFAESI Act and are entitled to seek redress. Cooperative banks had to go to court to recover their dues before this notification was written. The Supreme Court went on to say that this decision was made to eliminate delays in collecting dues because cooperative banks are required to resort to civil courts under the Cooperative Societies Act to do so. The court also held that co-operative banks that engage in banking activities are subject to Sections 5 (c) and 56 (a) of the Banking Regulation Act of 1949, which are laws related to List I Entry 45. (Union List).¹⁴ After the judgment made by the Court regarding this issue, experts hope that it would bring the much-needed reforms in the cooperative banks sector, which has been subjected to bankruptcy and corruption. They also believe that it would bring large-scale implications.

References:

1. SARFAESI ACT, 2002- Applicability, Objectives, Process, Documentation, cleartax.in https://cleartax.in/s/sarfaesi-act-2002 
2. An overview of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI), Arun Bapat, iPleaders https://blog.ipleaders.in/overview-securitisation-reconstruction-financial-assets-enforcement-security-interest-act/
3. 2006(5) CTC 753(SC)
4. M/S Transcore vs Union of India & Anr, Darshika Rughani, Pro Bono India https://probono-india.in/research-paper-detail.php?id=415 
5. Case No.: Transfer Case (civil) 92-95 of 2002
6. Constitutional Validity of SARFAESI Act of 2002 tested under ‘Mardia Chemicals vs. UOI’, Shubham Phophalia, taxguru  https://taxguru.in/finance/constitutional-validity-sarfaesi-act-2002-tested-mardia-chemicals-vs-uoi.html
7. 2020 SC 431
8. (2007) 6 SCC 236
9. (1993) 2 SCC 582
10. (1983) 4 SCC 166
11. (2007) 6 SCC 236
12. SARFAESI Act applicable to Cooperative Banks: Constitution Bench, Prachi Bharadwaj, SCC Online https://www.scconline.com/blog/post/2020/05/05/sarfaesi-act-applicable-to-cooperative-banks-constitution-bench/ 
13. The Enforcement of Security Interest and Recovery of Debts Laws and Miscellaneous Provisions (Amendment) Bill, 2016, PRS India https://prsindia.org/billtrack/the-enforcement-of-security-interest-and-recovery-of-debts-laws-and-miscellaneous-provisions-amendment-bill-2016#:~:text=Amendments%20to%20the%20SARFAESI%20Act,intervention%20of%20courts%20or%20tribunals.
14. What is SARFAESI Act? Jagran Josh https://www.jagranjosh.com/general-knowledge/sarfaesi-act-1588850144-1

This article is written by Arryan Mohanty, a student of Symbiosis Law School.