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Sep 06
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the indian authorities

How Indian Authorities, Yet Again, Failed to Make a Difference in Its NPA Crisis Approach

By Economy, Banking, Others No Comments

Indian Authorities Failed to Make a Difference in NPA Crisis

The second wave of the COVID-19 pandemic ushered in an era of disintegrating companies, arduous acquisition battles, and heated arguments in courtrooms. While most companies struggled to stay afloat, those with deep pockets jumped onto the acquisition and organic growth bandwagon.

A giant that swore by this mindset was the Piramal Group whose resolution plan for Rs 37,250 for debt-ridden Dewan Housing Finance Limited (DHFL) received a conditional nod from the Nation Company Law Tribunal (NCLT), which subsequently received pompous and overwhelming approval from 94% creditors.  

Despite being one of India’s largest mortgage lenders, DHFL’s tainted history of unwise financial handlings led to it being the first financial services company to be notified for insolvency resolution under Section 227 of the Insolvency and Bankruptcy Code, 2016 by the Reserve Bank of India.

The case itself poses an exception, as the corporate insolvency resolution process under the Insolvency and Bankruptcy Code by the Reserve Bank of India is not applicable to financial service providers or banks. Therefore, the government’s action regarding the insolvency proceedings of financial service providers to enable the insolvency process of DHFL, which had defaulted on payment obligations, comes across as an exception to the Code.

The NPA crisis in India is an archaic evil eating into the mighty edifice of India’s banking sector. However, the government’s sheepishly reluctant attitude to deal with the burgeoning crisis is indeed one of the factors that have led to the digging of the grave of the mighty financial sector of India. Statistically, India’s bad debts amount to 11% of the total lending, whereas corporate bad debts constitute 56% of the total bad debts of nationalized banks. 

With another financial unit succumbing to the NPA crisis owing to governance concerns and payment defaults, India’s financial monitoring framework is ripe for reform and to nurse its post-pandemic financial system to health. The official perspective seems to maintain that the government looked after the vulnerable small and midsize firms during the pandemic.

This, according to the official authorities, has been done by guaranteeing fresh bank loans and mortgages under RBI. Consequently, this belligerent view has been supported by the low take-up rate for the RBI’s one-time restructuring offer. Given low consumer confidence and crippled economic growth due to partial lockdowns, the NPA crisis is doomed to materialize sooner or later.

According to the authorities, the NPA crisis can be dealt with later but what exactly is the question? Given, the DHFL’s insolvency, the financial system is doomed to fail given its failure to combat the NPA crisis. 

Papering over an economy-wide solvency problem by flooding the financial system with high liquidity is not only risky but also fatal for financial stability. It is to be noted, that the same strategy of incessant capitalization of the financial sector by the Indian authorities has time and again proved to be a concocted measure in vain, as NPAs of the financial sectors have never plummeted in recent history.

Even if they have, it is due to the practice of writing off loans from the accounting books in order to clean the financial records of the organization. But it is also something that the monetary authorities want to continue indefinitely which does little to help the bankrupt organizations. Alternatives, however, in the case of India are scarce.

This is due to the fact that India doesn’t have good tools to deal with insolvency. The 2016 bankruptcy law, had been reeling under the pressure even before the pandemic had struck. Liquidation, the outcome in most bankruptcy cases, has led to creditors recovering only 15%. This gross inefficiency can be scrutinized when compared with the global average of 80%.

Given all the detestable conditionalities against the government’s liquidity approach, the government extended the same regime to failing shadow banks. Dewan Housing Finance Corp., as aforementioned, is a mortgage lender whose controlling shareholders are currently in judicial custody on charges of accounting fraud and misappropriation of funds.

Talking about the archaic process adopted by the Indian authorities to settle DHFL, has left the suitors groaning about how shabbily the process was being run. With how the acrimonious contest shaped up, it’s certain that when the buyers control the reins, it will have to go through a lengthy legal challenge and will turn out expensive for creditors.

Clearly, due to all the aforementioned reasons, the task at hand is much more than filling the hole left by the $2.5 billion alleged fraud by Dewan’s former owners. With the government’s pro spending budget and increase in expenditure due to the vaccination campaign, bankruptcy in the financial sector is likely to wreak havoc on the monetary and political goals of the Indian authorities with the DHFL precedent.

 

Tags: dewan housing finance limited, nclt full form, dewan housing finance corporation ltd, income tax authorities in india, nclt hearing, nclt case laws, constitution of nclt, dhfl housing finance limited, indian authorities, indian tax authorities

Sep 03
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debt collections financial planning

Humanising Debt Collections: A Fair Practices Code For ARCs

By Economy, Banking, Others No Comments

Humanising Debt Collections – A Fair Practices Code For ARCs

While the depiction of the Indian stressed asset market is often painted to look dismal, global globalization has put the screws on government and regulators to take decisive action. In a similar vein, India’s bad debt headache was alleviated with the inception of the SARFAESI Act, allowing banks to recover monies without judicial intervention. Despite that, the problem of mounting non-performing assets grew multi-fold thereby enhancing the prominence and aggression of Asset Reconstruction Companies (ARC) in financial circles.

Need for Fair Practice Codes

In wake of the mounting NPAs, the banking sector is under immense pressure to get its house in order. Realizing this, banks resorted to offloading bad debts from their loan books onto ARCs thereby leading to a massive reduction in their distressed assets. However, during this exercise banks made no provisions for these bad loans in their books, and bore no losses in case of defaults. This issue led to the intervention by RBI in form of the Fair Practice Code to ensure transparency in form of cash transactions.

Maintaining Transparency

Another reason for the need for the Code was that the sale of assets conducted by ARCs-in spirit-emerged to be no different from the sale of assets by state finance corporations or others vested with similar special powers of recovery. There have been many instances wherein ARCs sold assets through ‘private auctions’, and simply served a notice to the borrower. In this procedure, no account of the sale proceeds, description of the buyer or competing bidders, information on how the asset was sold, or expenses on the sale was provided to borrowers.

At this juncture, the RBIs notification will ensure transparent and non-discriminatory practices in terms of the acquisition of assets. To curb the issues and unclear process of assets being sold to bidders where there is no trace of information of who these individuals are, the invitation to participate in the auction will be made public.

This will also provide transparency in the way how many assets were being sold. The Boards involvement to make sure these rules are being held up is of utmost importance. When dealing with buyers Section 29A of the IBC must guide the process. The inclusion of Section 29A rendered persons contributing to defaults of the corporate debtor or other incapacities or are a related party, declares such parties as ineligible for submission of resolution plan and thereby preventing such persons from gaining control of the corporate debtor under the Code.

Simply put, the provision safeguards creditors of the company against unscrupulous persons whose aim is not a revival of the corporate debtor, but to reward themselves by undermining the objective of the Code. 

Thus, the notification aims to address issues of transparency and borrowers being kept in the dark during such sale of assets while keeping a check on the aggressive sale of assets by the banks and easy purchase by the ARCs. On contrarian grounds, FPC under the new regime would inadvertently restrict the enforcement action taken by ARCs.

Maintaining the spirits of Section 29A of the IBC or delving into investor control diminishes the powers conferred upon the ARC drastically. Moreover, it is pertinent to note that a regulatory directive from the central bank perhaps cannot have an overriding effect on legislations enacted to facilitate debt recovery, under the SARFAESI Act or the RDDB Act. 

Also, the sale of assets was not transparent and was far too commonly done at prices that do not represent fair values. Thus, these malpractices by the ARCs forced the RBI to come up with Fair Practice Codes to ensure transparency in transactions and keep a check on their practices. Under the notification, ARCs are entitled to release all securities on the repayment of dues.

If the right of set-off is exercised, then a notice to the buyer must be sent with information regarding the full particulars of the remaining claim and the conditions under which ARCs are entitled to retain the securities till the relevant claim is settled or paid.

Ethical Recovery Processes

Hereafter, ARCs must ensure adequate training to staff to deal with customer matters appropriately. This will prevent or mitigate unlawful and uncivilized harassment inflicted upon debtors in the name of debt recovery processes. In the spirit of this Code, ARCsmust establishes a code of conduct for Recovery Agents and also holds the company accountable in case of breaches by their Agents.

A compulsory set up of a proper Grievance Redressal within the company should be constituted by ARC. The officer’s name designated for that redressal must be mentioned during the process. Such machinery will prove to be a step towards settlement of issues subsisting between the ARCs and the borrowers or the banks.

In addition to this, initiatives to address the absence of a poor secondary market have been taken up. In the intention to outsource an activity, a suitable outsourcing policy needs to be established, a delegation of authority depending on risks and materiality, and systems to monitor and review the operations of these activities.

Conclusion 

Overall, the RBI’s guidelines reward assertive steps yet ethical recovery practices are strides in the right direction. This move will rationalize recent trends in the industry and prove advantageous to various stakeholders in the stressed asset sector, including defaulting borrowers. In light of the new guidelines, ARCs are likely to change their bidding strategy and cherry-pick deals backed by ‘hard’ assets reducing the number of deals.

At the heart of the ‘Fair Practices Code guidelines is the protection of debtors by humanizing the recovery process while striking an optimum balance between lender-borrower interests in the recovery framework. With an emphasis on compliances, transparent and non-discriminatory practices in the acquisition of assets, and the required release of securities upon repayment of dues, the FPC guidelines may collectively help insulate debtors from the clutches of the sale process.

Adherence to these guidelines will place these bad bank sponges on a game-changing pathway leading to reduced NPAs thereby reviving stressed assets in the banking sector and the Indian economy one step at a time, however not without some enforcement hiccups. 

 

Tags: fair practices, arc code, the debt collector, debt collections, commercial debt collection, credit collection services, debt recovery, debt management and collections system, debt collection services, commercial debt, credit collection

Sep 03
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pre pack paradigm

Digitisation of Courts

By Corporate Law, Others No Comments

Digitisation of Courts in India

Digitisation of Courts: The spread of an influenza-like infection plummeted without an alert carrying the world to an extraordinary halt. One fine morning, the boundaries overseeing our regular activities were redesigned exemplarily. The world wound up in a smooth situation, with an obscure infection that radiated in the Wuhan city of China arriving at most nations over the globe.

The rising number of contaminations and announced passings struggled governments unfit to locate a likely answer for tackle the falling apart situation. The quick activities embraced to handle the situation included the fixing of worldwide outskirts, heightening clinical offices, shutting of destinations with enormous network presentation, and eventually authorization of an encompassing shutdown organizing soundness of the residents over other significant contemplations. 

India has been no special case in the continuous undertakings. The epic coronavirus first set in quite a while feet in our nation toward the beginning of March. In the long run, there were plenty of measures started trying to check the spread, with the desire for having the option to oppose the diseases arrive at the age.

The activity of global flights was ended, shopping centers, cafés, and instructive foundations were closed, the open social occasion was precluded, and lastly on March 24th, across the nation lockdown was declared to be employable for the following 21 days initially. Except for clinical administrations and fundamental utilities, the different business foundations needed to shut down physical working with prompt impact. 

In accordance with the progressing improvements, with the announcement of the COVID-19 as a pandemic, the Indian legal executive ended up in a fix. At first with the expanding fear of the spread of the infection in the nation, the activity of the Courts all through the country was combined with preventive measures. There was a breaking point put on the section of lawyers alone in the Court excepting disputants, except if called for by the Court.

The premises were in effect normally disinfected, the temperature of all ingoing staff was being checked, and social removing was being rehearsed overwhelmingly. In any case, the declaration of the lockdown fundamentally implied that the Courts must be closed in the wake of the rising contaminations. In the given situation, could equity be let to endure while the world was destined to spread an obstruct infection? Maybe, not. 

In the event that the Courts were to be shut uncertainly, sitting tight for standardization of the circumstance, the result presumably would have caused harm unrecoverable. The Courts would be been troubled over-limit prompting further overabundances and postponement during the time spent administering equity. The effect of such a shutdown would be grave on fundamentally two fronts, the criminal equity framework and matters identifying with life and individual freedom of people.

It is the obligation of the Court to secure the privileges of the residents, in all the unstable circumstances may be. Remembering such cardinal contemplations, the conceivable way out to adjust the wellbeing worries just as proceed with the way toward apportioning equity was shown up by the shrewd salvage looked for from the “E-Courts Project”. 

This denotes the beginning of another time throughout the entire existence of the Indian Judiciary. There was a significant update in the whole Court structure with the procedures currently being done by video conferencing and the coming of the e-documenting system. At a fundamental crossroads, the possibility of virtual courts should be commended as a hearty system concocted to moderate the obstructions got by the pandemic.

There are a few advantages of hearing by means of video conferencing including no prerequisite of physical nearness wherein parties do go miles to be available face to face under the steady gaze of courts and simultaneously, it will be cost and time viable for the gatherings’ point of view just as the legal executive.

Above all, this will decrease carbon impression. Video conferencing ought to be made discretionary in all courts the nation over for a wide range of issues. Digitalization will lessen the humongous number of pendency of cases under the steady gaze of courts and will be a successful solution for deferred equity. 

Openness is the center capacity of the conveyance of equity. The nature of settling in the court will not be of utility if equity can’t be gotten to by individuals in any case. Thus, the current emergency would be an extraordinary open door for the digitalization of Courts in India. It can likewise help diminish a gigantic excess of cases under the steady gaze of the courts.

In the present-day situation, there can be numerous troubles looked at in the down-to-earth ramifications of virtual courts. Numerous individuals and disputants may confront trouble in exploring a digitalized equity framework that could be controlled by some pragmatic preparation.

Besides, it is a desperate need that the National Informatics Center to make a stage that incorporates highlights of video conferencing and e-recording to supplant the utilization of any outsider exclusive programming for the release of basic open capacities like mediation. As it were, making a cutting-edge equity stage will be brimming with difficulties yet note that this is the initial move towards digitalization of the court framework in a progression of many.

 

Tags: equity framework, digitalization of courts, digitisation of courts, digitization in courts

Sep 02
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multiplicity of actions

Multiplicity of Actions: Has Arbitration Gone Awry?

By Others No Comments

Multiplicity of Actions

With the globalization and formalization of the economy, financial institutions across the country are engaging in arbitration, now more than ever before. The year 1996 ushered in an era of alternative dispute resolution attracting creditors to embrace the then-novel mode of recovery.

In the wake of a worldwide economic downturn with plummeting stock markets and plunging GDPs, alternative dispute resolution has resurfaced as a buzzword and ray of hope in financial circles of lenders. However, the problem of multiplicity of proceedings vitiates the purpose of alternative dispute resolution mechanisms and usurping power from arbitral tribunals.

In a recent judgment, the courts recognized the issue of vitiation of the objective of alternative dispute resolution due to multiple proceedings regarding the same subject matter amongst the same parties. In the case of Gammon India Ltd. & Anr. v. National Highways Authority of India, Gammon India entered into a contract with NHAI for the construction and expansion of a highway in Odisha, but when the dispute arose between the parties a major problem cropped up, wherein three separate disputes between the parties were referred to three separate tribunals in 2005, 2007 and 2008 respectively.

Both the parties were dissatisfied with the functioning and the timelines of the other party which became a major contributing factor to multiple arbitral proceedings. Disappointed with the second arbitral award Gammon India approached the Delhi High Court for a conclusive decision, however, they held that while there is a right to invoke multiple arbitrations, it should be strictly avoided in general as well as particularly in cases where there are overlapping issues.

Emulating the High Court’s decision to strictly avoid multiple proceedings, courts on multiple occasions have ordered for consolidation of three arbitration proceedings into one. The principle of consolidation of arbitration should thereby, be followed uniformly in order to avoid the multiplicity of proceedings, which essentially is against the objectives of ADR methods. In addition to this, the Supreme Court held that all the disputes in which arbitration is invoked by a party must be referred at once.

The principle of Res Judicata should also be applicable to arbitration proceedings which would thereby, bar parties to invoke arbitration on a similar matter to another arbitral tribunal that is already under consideration by a particular tribunal. In this context, the importance of an anti-arbitration injunction also increases in order to restrain parties from invoking arbitration which may lead to a multiplicity of proceedings.

In light of the above principle, civil courts have the power to grant an anti-arbitration injunction to restrain arbitral proceedings; however, these judgments make it abundantly clear that all civil courts need to review the facts and circumstances of each case before taking a decision to grant an anti-arbitration injunction. Considering all these factors in tandem, there are measures laid down by various courts to avoid the multiplicity of arbitration proceedings in India.

The major objective of taking recourse to the ADR methods has always been the speedy and efficient disposal of cases. Moreover, these arbitration proceedings are often time and cost-saving and expeditious as compared to the conventional method of litigation.

The Courts have provided much clarity on an issue that had garnered awareness yet had remained unanswered till yet. Therefore, in accordance with the view laid down by the court in this case, the multiplicity of proceedings should be avoided at all times since it is directly in contravention with the objectives and would vitiate the purpose of ADR.

In theory, India has in place a modern, efficient Arbitration Act. However, in practice, numerous instances of multiple proceedings initiated against the same counterparty are not in tune with the letter or spirit of the Act. India is on the track to establishing confidence in its legal system which is the fundamental condition for any country to become an international arbitration venue.

Needless to say that Delhi High Court and Supreme Court judgments have taken a stringent stance in terms of multiple proceedings. Hopefully, these decisions will create more awareness on the part of litigants and discourage them from indulging in a frivolous multiplicity of proceedings regarding the same subject matter.

Theories and laws when blended with practicality would address concerns in the near future and increase the popularity of arbitrations and build the institutional capacity in the country thereby making a resolution in India, a reality.

 

Tags: arbitration, arbitration proceedings, anti arbitration injunction, multiplicity of actions, arbitration proceedings in india, arbitration act, international arbitration, the arbitration, international court of arbitration, arbitration law, mediation and arbitration

Sep 02
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environmental impact

Media and Entertainment Industry During COVID-19

By Others No Comments

Media and Entertainment Industry During COVID Pandemic

The COVID-19 pandemic has halted the acme functioning of almost all the sectors including the media and entertainment sector. Central, as well as various state governments, have resorted to measures like enforcing lockdowns and curfews to curtail the rapid transmission of the pandemic. Curtailment of mass mobility and nationwide lockdown for over 4 months now has brought numerous production houses, cinema theatres, and sports stadiums on the brink of a shutdown.

Film sets are autonomous in the sense that they employ everyone from movie stars to daily wagers; clearly surviving the lockdown is easier for some more than others. Film sets are autonomous in the sense that they employ everyone from movie stars to daily wagers; clearly surviving the lockdown is easier for some more than others.

However, the government’s lack of interest in cushioning this industry has been vociferously criticized by industry experts. Losses faced in light of the pandemic have been gargantuan but economic relief packages are an epitome of disproportionate and inadequate satiation of bubbling problems. Besides, the benefits of the package have not trickled down to the smaller players in the industry.

Due to a lack of adequate redressal measures by the government, various organizations like inter alia the Producers Guild of India, Indian Films and Television Director’s Association have announced their own relief packages to the people who are in dire straits in an industry severely hit by the pandemic with no safety net in sight.

Industry experts anticipated the industry to grow to $34 billion by 2021, but the sinking economic status of most countries worldwide will invariably hamper the progress of the industry. Apart from the lockdown measures, loss of revenue through lack of commercial advertisements and restrictions on shooting has hurled the industry into a financial crunch.

This has also been a major bone of contention for the players in this industry as the government has taken no measures to ensure a rebound in the number of commercial advertisements. To generate awareness on this issue, the UK government and some Indian private companies have been proactively participating in campaigns demonstrating the importance of commercial advertisements as a bread earner for many.

However, the government has not adequately addressed this issue thereby making it imperative to ensure the sustainable functioning of this sector even after the COVID-19 dust settles.

In a slew of changes witnessed during the pandemic, this industry has witnessed a mass adoption of OTT platforms, like Amazon, Netflix, and Hotstar who have been frontrunners in providing high-quality entertaining content for the large user base. Lack of government backing has led to creative methods of survival, including exclusive movie releases on OTT platforms.

Therefore, with the onset of COVID-19 and the financial repercussions that have emerged wherefrom a call for a more proactive approach and redressal mechanisms by the government. Admittedly, the government has introduced measures to tackle some economic problems but they have addressed peripheral issues rather than resolving the problem that lay at the core.

The rising prevalence and user base of OTT platforms have propelled the I&B Ministry to promulgate a light-touch regulatory regime bringing print, television, radio, film, and digital media under the media and entertainment industry. A uniform all-encompassing framework aims to provide a level playing field to all media platforms, but a heavily regulated structure may hamper the industry’s ease of doing business thereby affecting the existence and effectiveness of such a regime in attaining its primary objective.

Currently, bodies like the Press Council of India and the News Broadcasting Standards Authority’s powers to govern the media industry lack the necessary teeth, due to the absence of review, enforcement, and penalization powers regarding violation of their guidelines. Thus, the proposed move is indicative of the right mindset, however, the government must be wary of an overly regulated regime, which may prove to be counterintuitive to the sustainable development and regulation of different media platforms under a single regulatory framework.

The mass transition from TV to OTT platforms has coerced the film industry to gear up for shoots while adhering to numerous government-mandated restrictions. Given that filmmakers see the gathering of units in cities like Mumbai and Delhi as unfeasible for the coming few months, the action may shift to green zones and small towns in, say, Kerala, Goa, or Assam making them the new destinations for Bollywood.

Further, companies are setting strict age limits for crew members as those over 60 years of age or with compromised health conditions are most vulnerable to COVID-19. The filmmakers will be required to creatively shoot scenes requiring large crowds or outdoor public settings or may even be supported with visual effects. With the contraction of the economy, salary cuts for movie stars may also be on the cards.

Recently, the entertainment sector evinced many of the movies solely beings released on these OTT platforms. Therefore, the onset of COVID-19 and the financial repercussions that have emerged thereof on the media and entertainment industry call for a more proactive approach and redressal mechanisms by the government.

Admittedly, the government has introduced various measures to tackle these economic problems but these have addressed peripheral issues rather than resolving the problem from the core. Focussing on measures of recovering commercial advertisements, which act as a major source of revenue for this industry should be a priority for the government.

The pandemic has invariably hurled media players, big and small, in dire straits. However, inadequate government measures to sustain the sinking industry have propelled media players to adopt a creative and unconventional approach to stay afloat until the COVID-19 dust settles, literally, which some industry experts predict may have a lasting impact on the preferences of the viewers in the long haul.

Realizing this mass transition from TV to OTT platforms, numerous players have rushed to OTT platforms to help sustain their production houses and ultimately maintain the industry’s wellbeing. On the other hand, the government’s endeavor to provide a safety net to the media and entertainment industry albeit inadequate and derisory in proportion to the quick-changing dynamics of the industry and preferences of its users has paved the way for each industry participant and player to move a step closer to Atma Nirbhar Bharat.

Tags: media and entertainment, digital entertainment, entertainment media,
global media and entertainment, media and entertainment companies, media and entertainment industry trends 2021, communications media and entertainment, global entertainment market, media and entertainment industry

Sep 01
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franklin templeton fiasco

Why Franklin-Type Fiasco Might Repeat- Mutual Funds And The Emerging Indian Economy

By Economy, Others No Comments

Franklin Templeton Fiasco

One of the recent announcements that shook D-street was the winding up of 6 debt schemes by Franklin Templeton, one of India’s top 10 mutual fund houses. The move has resulted in about ₹30,000 Crore of investor money being locked up, nowadays better known as Quarantined! The novel Franklin Templeton crisis, as some experts state has resulted in a state of flux being experienced by the mutual fund industry, the repercussions of which could be a systemic crisis for investors around the world. From a domestic standpoint, there are various concerns regarding a possible ripple effect across domestic financial markets.

As in the case of Franklin Templeton, the redemption of investments and purchases were barred by the fund house which is likely to be emulated by other fund houses in light of eroding the value of mutual funds viciously interlinked with the virus-induced liquidity crisis. Realizing the catastrophic consequences of the downturn, ₹50,000 crores was assigned by RBI exclusively to all commercial banks for lending to mutual fund houses.

RBI’s rationale for this move was the containment of a liquidity crunch that may give further shocks to the mutual fund market. The Franklin Templeton fiasco is an indication of the probable extent of its impact on MF Houses and the central bank’s move is a step in the right direction for preserving the financial stability in such unprecedented times.

However, the most taxing question is whether the Franklin Templeton fiasco can strike again, the answer to which is unfortunately affirmative. When the COVID-19 pandemic struck, Franklin Templeton (FT) faced redemptions which, is not an issue if redemptions are matched with inflows. As redemptions rose, FT borrowed funds to meet redemption requests but it kept increasing at an unfathomable pace ultimately shattering the Fund.

Similarly, with mass unemployment and a global liquidity crisis, Mutual Funds are likely to see redemption requests higher than ever before. On the other hand, Mutual Funds may fail to raise money through the sale of investments due to the rising illiquid investment portfolio leading to the FT fiasco.

The repetition of such as fiasco is attributable to several factors. At the outset, the Mutual Fund industry is riddled with systemic flaws. While some believe the problem is external (propelled by the COVID-19 outbreak), it cannot be denied that FT undertook high risks which pushed them off the ledge when the outbreak struck.

Besides, several other Mutual Funds have been trying to swing for the fences with recent news confirming that Mutual Funds have acted like reckless lenders and not as prudent investors, which underscores the systemic flaws of the industry.

Clearly, “investments are subject to market risk” and one must read the offer document carefully to learn what happens to your investment in worst-case scenarios. The menace of misinformation in the market coupled with financial illiterate investors looking to make a quick buck fall prey to a mis-spelling of Mutual Funds. SEBI’s role has been primarily in the form of disclosure-based regulation, which requires listed securities to reveal all associated risks. But these disclosures are dense, full of jargon, and voluminous, which often is beyond the understanding of an average investor.

For seasoned investors, high YTM returns raise a red flag of credit risks lurking in the scheme emphasizing the principle of “Caveat Emptor” (buyer beware). Clearly, buyers should have conducted due diligence before investing, but it is shocking to watch how quickly FT’s schemes have gone down the tube. 

What’s worse is FT’s CEO pointing fingers at SEBI rather than implicating the company’s own greed and mismanagement, which was an appalling move. Zeroing in on investors who had parked their money in FT funds, are eagerly waiting for FT to lift the lockdown on their hard-earned money! In addition to this, the lack of accountability of credit rating agencies is appalling.

However, investments are made based on the ratings of assets done by such agencies. Customarily, when Funds blow up, it breaks down investor confidence and goodwill of the industry at large. However, Funds abdicate their responsibility to rating agencies who have no accountability to them. This perverse flaw is indicative that some responsibility must be assigned to rating agencies for ratings, such as FT that blow up without warning.  

Presently, it is neither realistic nor desirable for SEBI to micro-monitor transactions. But the heart of the problem can be fixed. The Mutual Fund industry’s income is a percentage of funds it collects, however with a change to the incentive, the problem could be resolved. Adoption of a system that disincentivizes or makes the objective of asset gathering less attractive, and encourages the Mutual Funds fiduciary role as a trustee of other people’s money.

For instance, if fees earned by Mutual Funds were linked to the returns on investment or other outcomes, then it could change the behavior towards one that is investor-centric. The current legislative and policy frameworks and regulatory practices in India are leading to all kinds of circuitous forms of lending through inter-corporate debt, MFs, and multiple layers of intermediation.

Therefore, this is a good time to revisit these legislative and institutional frameworks and reform them. While legislators and regulators attempt to address these issues, retail investors are eagerly awaiting the return of their hard-earned money, as their funds remain quarantined with FT making us wonder if Mutual Funds Sahi Hai?

 

India Law Services Mumbai

Tags: emerging indian economy, mutual fund industry, domestic financial markets, franklin templeton, franklin templeton mutual fund, franklin templeton investments, franklin templeton funds, franklin templeton stock, franklin templeton growth fund, franklin templeton fiasco

Sep 01
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zeroed down

India Retaliates: Zeroed Down To Mobile Applications

By Others No Comments

India Retaliates: Zeroed Down To Mobile Apps

In the wake of the face-off with Chinese forces in Ladakh, near the Indo-China border, a heated clash on June 15 that left 20 Indian soldiers dead, the Indian government placed a blanket ban on numerous Chinese Apps as the first salvo against China. Even before that confrontation, India’s policy toward Chinese internet companies was growing hostile. Relying on inputs from intelligence agencies that have seen visible traits of compromising on users’ privacy, the action is a welcome move.

Undeniably, the popular Chinese apps had been hurting the sentiments of domestic producers who breathe with sighs post the announcement. Losing Indian consumers on apps like Tiktok and Likee would leave a deep dent in Chinese revenue. The government aims at mandatory data storage within the country and the ban will facilitate mulling such an idea. Stealing and transmitting unduly unauthorized user data to servers located outside of India hereafter can be prevented to a great extent.

The notification is expected to be followed by instructions for ISPs to disable these applications. Users are likely to see a quick message that access to the applications has been restricted at the request of the government. However, while this will affect apps like TikTok and UC News that require live streaming for any purpose, users can still continue to use scripts that don’t require an active internet connection to use. But more downloads of these apps, like CamScanner, are likely to close on the Google Play Store and Apple App Store.

In what is assumed to be a befitting response to the misadventures of Beijing, substantive measures ahead are awaited. The government’s extremely resolved dexterity to hit China on multiple fronts has been well proven. While the standoff remains on the ground, the digital counterstrike has perhaps begun.

The way China does not permit operations of businesses from outside their territory, India has absolved such tactics to pressurize through varied mediums. It’s possible that only a small fraction of apps operating in India have secret backdoor access granted to spies and other data gatherers in Beijing. But that itself can wreak havoc.

Under the Section 69A, such restriction stems from the power of the state listed under Article 19(2) of the Indian Constitution (such as ensuring nation or public order) however such restrictions should not be arbitrary, and any dissimilarities in the treatment of the person of different classes, if any, between all the persons should be reasonable to ensure it doesn’t violate the Article 14.

The Government has relied on Rule 9 of Blocking Rules 2009, which implies that these restrictions are based on an assumption of emergency, and this rule could be used to impose a ban without any prior hearing to the intermediary who is subject to the impositions of restrictions.

The Government has seemed to use ambiguity on the term ‘Emergency’ under section 69A of the IT Act since it fails to validate any justifications provided in their press release and state proper grounds for such restrictions on those applications. Still, under the rules, however, the Government is under no obligation to disclose the order as per the requirement of ‘confidentiality under Rule 16 of the Blocking rules regarding blocking requests, complaints received, and actions are taken.

However, this brings forward the issue of the insufficiency of Indian laws to protect the data privacy of the user and excessive transmission of information through unauthorized access to the data of a user, which is not only limited to Chinese Apps.

While this ban goes against the general trend of international trade, and e-commerce, and affects local employment; data security threats leading to auxiliary health and safety concerns of Indians far override the former effects. Thus it appears that the Indian government had to side with the lesser of the evil and eliminate the larger threat, which is data security.

A Chinese embassy spokesperson stated that India’s measure selectively and discriminatorily aims at certain Chinese apps on ambiguous and far-fetched grounds, and runs against fair and transparent procedure requirements prescribed by the WTO.

However, it is unlikely that any court in India will disagree with the government’s ban and order to conduct an inquiry before banning the apps, especially in light of rising tensions with our neighbors. Thus along with stronger data protection frameworks, and secure digital infrastructure we require deeper cooperation between like-minded countries in fighting rising threats from across the borders.

In its counter to the Chinese virus, India’s restrictive FDI policy and followed by the blanket ban on Chinese apps shall be strides taken in the right direction. While India’s restrictive stance may lead put the incomes of many at stake, the ban was necessary at a time of increasing tensions with China given the threat to national security and public order.

While this ban goes against the general trend of international trade, and e-commerce, and affects local employment; data security threats leading to auxiliary health and safety concerns of Indians far override the former effects. Thus it appears that the Indian government had to side with the lesser of the evil and eliminate the larger threat.

 

Tags: Zeroed Down, mobile applications, zeroed down meaning, phone application

Sep 01
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national education policy 2020

National Education Policy, 2020

By Others No Comments

National Education Policy in India

The National Education Policy 2020 may provide a runway for the education sector to take off despite the challenges posed on account of the pandemic. The announcement of the NEP attracted criticism from industry experts, but it may place India on the global map as a sought-after educational haven of the world.

The National Education Policy 2020 replaces the old education policy which was framed in 1986 and ushering in an era of new educational reforms. This is the first policy that seeks to unshackle students from the tyranny of administrative constraints with multiple-choice, multidisciplinary learning, and multiple chances. However, the policy has been scrutinized and dissected by industry experts and thus has witnessed conflicting views. 

The policy aims to create a robust digital infrastructure in the education sector that ensures uninterrupted learning even during unprecedented circumstances. The National Education Technology Forum (NETF) will be established for ensuring that the technology is integrated adequately and efficiently into the education process and to ensure the enhancement of access to education to all sections of the society even in these tumultuous times.

Various contours of this policy aim to radically improve the Gross Enrolment Ratio in higher education and to achieve the objective of 100% youth literacy. Moreover, the said policy has also been predicted to reduce the social and economic gap between students, which has magnified in wake of the pandemic.

A system that promotes meritocracy, equal opportunity and equity is good, but there lies a gap between theory and practice. In addition to this, the NEP elucidates the need for homeschooling and multi-language learning whereby until the 5th grade and in exceptional circumstances, no later than 8th grade, the model of education shall be in the mother tongue/local language of the student.

Despite the all-encompassing façade of the new policy, its success shall be put through a skeptical lens with rising concerns for the students during higher education and in their professional journeys. It is particularly problematic in light of the right of the people to move from one state to another since the inter-state movement shall result in the change of the local language and the mode of education.

The policy has also been criticized due to the legal complexities surrounding the applicability of two operative policies namely The Right to Education Act, 2009 and the New Education Policy, 2020. Certain provisions such as the age of starting schooling will need to be deliberated upon, in order to resolve any conundrum between the statute and the recently introduced policy in the longer run.

Against this backdrop, it is pertinent to note that past attempts at parliamentary legislation under the erstwhile regulatory setup have not been successful. The failure can be attributed to the role of regulators and the intended legislative changes being out of alignment, as in the case of the Foreign Educational Institutions (Regulation of Entry and Operations) Bill, 2010, which lapsed; and the proposed Higher Education Commission of India (Repeal of University Grants Commission Act) Act, 2018 which remained did not reach the Parliament.

The contours of NEP are expected to revise the regulatory avatar of the Higher Education Commission of India (“HECI”) being set up with a wide role in Indian higher education. The HECI is likely to have four verticals under its umbrella, including

a) the National Higher Education Regulatory Council, intended to be a single point regulator for the higher education sector;

b) the National Accreditation Council, which will deal with the accreditation of institutions;

c) Higher Education Grants Council, which will be tasked with carrying out funding and financing of higher education; and

d) General Education Council, the final vertical, is expected to have a more academic based-role, as it will frame expected learning outcomes for higher education programs.

Foreign universities coming into the country will also fall under the purview of this framework. While the Universities Grants Commission and the All India Council for Technical Education have played a major role in this direction until now, questions pertaining to the role of the UGC and AICTE remain unanswered under the new policy.

It is evident that NEP 2020 provides a fresh canvas to paint on and opens up avenues for home-schooling and foreign universities alike, in India. For the new policy to succeed a combination of a staunch intent to move out of comfortable doldrums and facilitate increased involvement of foreign universities and increased literacy levels is a must.

While this objective is expected to see a significant regulatory overhaul for its successful implementation, it would lay a successful path ahead for institutions as well as the student community and place India on the map as an educational haven.

Tags: national education policy 2020, national education 2020, national education, national education policy india, new education policy 2020, new education policy, education policy 2020

Aug 31
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rbi monetary policy, hfc lending

RBI Monetary Policy Committee: A Pathway towards Normalcy?

By Economy, Banking, Others No Comments

RBI’s Monetary Policy Committee

Sluggish growth, increasing vulnerability of financial institutions, mounting NPAs, non-convergence working between financial and real sectors, and poor monetary transmission continue to haunt the economy despite the Reserve Bank of India’s (RBI) intensive financial stability measures. With financial and monetary stability being RBI’s core objective, the apex bank is geared towards the restoration of equilibrium in these unprecedented times.

The Monetary Policy Committee (MPC) of RBI announced that interest rates would remain unchanged thereby taking an accommodative stance towards its policies. Amid the recent inflation in retail consumer prices, RBI also said that it would ensure that this rise in inflation remains within its targets and control. The repo rate currently stands at 4.0% and the reverse repo rate at 3.35%.

The decision indicates that MPC would monitor dynamics for a durable reduction in inflation before the policy rates are lowered again and patiently await to use its remaining monetary ammunition. On the surface, this appears to have a balancing effect between financial stability and growth support in light of the current challenges posed by the COVID-19 Pandemic.

The existing disconnect between our economy and the financial market indicates that RBI would be watchful of the current inflation as well as the existing exuberance in the markets. RBI is now prioritizing strain felt by the economy and tackling the challenges to the growth of the economy with the containment of retail inflation.

Central Banks’ MPC could be seen as judicial in their approach, playing it safe while maintaining the status quo of the current rates with the scope of further monetary action even after this apparent pause. Current rates could be accommodating enough to allow for such a break without unwarranted consequences. It also allows them to monitor the existing risks associated with Food Inflation as well as the Cost-Push pressure due to fuel price rises.

MPCs’ approach was a cautious step showing concerns over the evolution of uncertain inflation trajectory while supporting the growth prospects that could be available as and when this trajectory allows. The decision to maintain this status quo could be based upon their short-term outlook towards inflation in the current uncertainty because of cost-push factors and existing supply constraints.

RBIs’ accommodating stance with the current backdrop of diminished growth and subsequent expectation of a reduction in inflation over a medium-term period puts the current policy in congruence with the current market expectations and provides them with further space for easing of monetary measures to revive the economic growth during COVID-19.

RBIs’ step towards allowing some form of restructuring facility to the banks facing trouble in restructuring the loans without classifying them as Non-Performing Assets (NPA), could be seen as a positive step that could further ease the stress on Banking systems.

This new resolution framework could be seen as an additional systematic undertaking to tackle the stress induced by the COVID-19 Pandemic. Additionally, RBI has also recognized the need for this facility for standard accounts facing difficulties while restructuring, and this facility has also been extended to SMEs, corporations, and personal loans providing each segment with proper & necessary safeguards.

Addressing the MSME sector, which has been deeply impacted by this Pandemic, the reasonably anticipated scheme for restructuring this sector could provide them with additional support & relief in this tumultuous time. Addressing the concern regarding liquidity in this Pandemic faced by MSME could facilitate an amended system and platform for the banks.

This restructuring of the loan scheme could be seen as a breather to already liquidity-strapped financial sectors, already facing concerns over the asset quality issue. An expert committee under KV Kamath could overlook and provide recommendations regarding the scheme’s details and restructuring plans. This could give the MSME, companies as well as individuals better safeguard in this liquidity crisis during the Pandemic.

To improve the flow of credit and enhance liquidity additional measures were announced by RBI to accelerate the growth of the economy. RBI also focused on measures that could deepen the digital payment facilities among all others.

These announcements could harmonize market risk associated with capital charge treatment of investment by banks in debt instruments and ETFs as well as Debt Mutual Funds and prediction for improvement in the bond market, as there could be higher participation by banks in the bond markets over a while.

Additionally, a measure relating to increasing the sanctioned loan to value ratio (LTV) for gold loans to 90 percent by March 31, 2021, is an effort to mitigate the impact of COVID-19 on households at a micro-economic level however this move fails to soothe deeper wounds aggravated on account of the virus-induced financial distress.

Additional liquidity facilities provided to NABARD and NHB will further support the credit push in the economy. RBI has continued to focus on also bringing down borrowing costs for all.

In light of India’s sluggish economic growth, uncertain external demand, and rising inflation, the developmental and regulatory measures announced by RBI adopts a prudent approach to upholding the current policy rates in existing circumstances.

Their strategy could be seen to be in perfect conformity with the currently developing state of the economy while keeping enough headroom for future changes. However, it remains to be seen how much relief will be provided, and what will be the take-up for this resolution mechanism.

 

Tags: rbi’s monetary policy, rbi monetary, bi monthly monetary policy, recent monetary policy of rbi, rbi monetary policy 2021, rbi monetary policy committee

Aug 31
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legal due diligence

Competition or Unlawful Contractual Interference: The Line Continues To Remain Blurred

By Corporate Law, Others No Comments

Competition or Unlawful Contractual Interference

The formalization and maturation of the nation’s business ecosystem have led to a competitive environment ripe for conflict. With growing competition between multinational companies, the tendency of organizations to indulge in anti-competitive practices amounting to Tortious Interference has increased manifold.

Thus, the judiciary is swamped with causes of action for interference with contract or business relations. In light of an adversarial legal system and predatory business environment, the promulgation of a robust and comprehensive law relating to economic torts becomes essential, especially one that recognizes that contractual obligations are sacrosanct and cannot be skewed to a party’s advantage.

The premise of capitalism of free, fair competition without interference from excessive government regulations vis-à-vis courts’ power to enforce contracts and protect against wrongful predatory conduct may be considered as crossing the line into Tortious Interference with another’s contract. Moreover, the court’s inability to establish a coherent, uniform body of law concerning interference claims indicates that the issue may continue to persist and haunt businesses for a long.

In recent years much commercial litigation has involved claims for Tortious Interference with contractual or other business relations. In a recent decision of Inox Leisure Limited vs. PVR Limited, the Delhi High Court further blurred the demarcation between freedom to trade and unlawful contractual interference, as the judgment placed a restraint on the freedom to trade if the person causes a breach or interferes with contractual performance.

Unfortunately, the law in India pertaining to the tort of interference with contractual relations has not particularly evolved with few cases to demonstrate the Indian courts’ view on this aspect. Moreover, this question has not been placed before the Supreme Court to date. With orders passed on the aspect of Tortious Interference, the issues are very fact-based and do not provide an adequate overview of jurisprudence on Tortious Interference, as did the ruling in Inox Leisure Limited vs. PVR Limited.

In theory, all contracts qualify for protection from unreasonable interference. In recent times, non-competition contracts are a recurrent source of litigation in this area of law. The employer in these contracts requires an employee to sign an agreement prohibiting the employee from working for a competitor in the same geographic market. The judiciary has encouraged free trade and the absence of impediment in performing any business activity throughout the country under Section 27 of the Contract Act.

Taking a similar viewpoint, the court in Modicare Limited Vs. Gautam Bali held that Section 27 of the Contract Act makes every agreement by which anyone is restrained from exercising a lawful profession, trade, or business of any kind – unenforceable.

Thus, even if the defendants or any of them, under their agreement with the plaintiff, had undertaken not to carry on or be involved in any capacity in any business competing with the business of the plaintiff, even after leaving employment with/association of the plaintiff, the said agreement, owing to Section 27 would be void and unenforceable and the plaintiff on the basis thereof could not have restrained any of the defendants from carrying on any business or vocation, even if the one which the defendant had agreed not to carry on.

Therefore, as observed from past rulings, it’s no surprise that courts are reluctant to provide an injunction that places a cap on doing a business activity or to approach the client of a competitor company as in many cases it deprives an employee of meaningfully pursuing a livelihood.

This decision clears the way for businesses to enter into such agreements so long as the restraints promote competition and do not violate the rule of reason. Given the vague and ambiguous standards, it remains to be seen how courts will apply the interplay of Section 27 of the Contract Act and Article 19(1)(g) of the Constitution to address the multitude of possible business-to-business agreements and their effects on free-market competition.

Ultimately, the door is seemingly wide open for varied commercial collaborations with accompanying restraints on trade, which no doubt will require greater scrutiny on their economic justification to balance against worker mobility and competitiveness.

Tags: tortious interference with contract, interference with contractual relations, elements of tortious interference with contract, unlawful competition, contractual interference, tortious interference with contractual relations