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VINOD KOTHARI's new book
Now
selling all over the country
SECURITISATION,
ASSET RECONSTRUCTION
AND
ENFORCEMENT
OF SECURITY INTERESTS
Incisive commentary on the law and rules with comprehensive introduction to securitisation, asset reconstruction and enforcement of security interests
2010 edition
This treatise is the first comprehensive and incisive coverage on the Indian law of securitisation, asset reconstruction and enforcement of security interests. Besides dealing threadbare with the provisions of the law, the book provides the reader a thorough grasp of the concepts of securitisation, asset management and the rights of a secured lender.
Highlights:
- Deals thread-bare with each section of this sensitive piece of law, exploring the intricacies, anomalies, and giving appropriate comparative view of common law, civil law and law in other countries.
- Contains all subordinate law available to date: rules, directions, etc., with comments where required.
- Part I contains thorough conceptual introduction to each of the three products: securitisation, asset reconstruction, and enforcement of security interests.
Publication details
Year of publication: July, 2010
Number of pages: xci+ 1170
Size: Royal
Binding: Hard bound with colour jacket
Price: In India Rs 1695/-
ISBN NO. 978-81-8038-635-0
Academy of Financial Services
(A not-for-profit company licensed
under sec. 25 of Companies Act, 1956)
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PART I : INTRODUCTION TO SECURITISATION, ASSET RECONSTRUCTION AND ENFORCEMENT OF SECURITY INTERESTS
Chapter 1: INTRODUCTION TO SECURITISATION 3
Basic meaning of securitisation: 4
Asset securitisation: 5
What is an asset-backed security? 7
Legal preference by isolation: 8
Capital market window: 9
Use of special purpose vehicles: 9
Some definitions of securitisation: 9
Securitisation of receivables: 10
Quick guide to Jargon: 11
Securitisation and structured finance: 13
SOME QUICK Features of securitisation: 14
What receivables are securitisable: 14
Creation of security: 15
Special purpose vehicle: 15
Re-distribution of risks: 16
Rating 17
Securitisation as a tool of risk management: 17
Securitisation and credit derivatives: 18
Synthetic securitisation: 18
Economic impact of securitisation: 19
-1 Facilitates creation of markets in financial claims: 19
-2 Disperses holding of financial assets: 19
-3 Promotes savings: 19
-4 Reduces costs: 20
-5 Diversifies risks: 20
-6 Focuses on use of resources, and not their ownership: 20
-7. Smoothens impact of recession: 20
The alchemy of securitisation: is the sum of parts more than the whole? 21
The alchemy of structured finance: 21
Structured finance: 21
Lower costs due to higher leverage 22
Capturing scale and volume efficiencies 23
risks and benefits of securitisation: 23
Abdication of credit: 25
Trading on thin capital: 25
Increases opacity of banks: 27
The case of Superior Bank 27
Cross-sector risk transfers: 28
Monetary policy sterilised: 29
MODUS-OPERANDI OF SECURITISATION BRIEFLY EXPLAINED 29
FEATURES OF SECURITISATION OF RECEIVABLES: 32
-1 Mode of asset-based financing: 32
-2 Mode of structured financing: 33
-3 Securitisation of claims against third parties: 33
-4 Recourse features: 34
-5 Asset features: 34
1. Asset should represent cashflows: 34
2. Quality of the receivables: 35
3. Diversification of the portfolio: 35
4. Size of individual receivable: 36
5. Maturity composition of the receivables: 36
6. Periodicity of payments: 36
7. Homogeneity of the assets: 36
8. No executory clauses: 37
9. Capacity to assign: 37
10. Independence from the originator: 37
11. Assets should be free of withholding taxes/ pre-paid taxes: 37
-6 Issuer features: 38
1. Receivables as major assets: 38
2. Financial and organisational strength: 39
-7 SPV features: 40
-8 Investor features 41
Securitisation and factoring: 41
Securitisation and ring fencing: 42
Asset classes: 43
broad types of securitisation structures: 45
Cash versus synthetic structures: 47
True sale versus secured loan structures: 47
Pass-through versus collateral structure: 48
Discrete trust versus master trust: 48
Direct portfolio transfers: 49
Pass-through structure 50
Steps in a pass through transaction 51
Nature of pass through certificates: 52
Difficulties in the pass through structure: 53
Refinements in the pass through structure: 54
PAY-THROUGH STRUCTURE: 55
Collateralised mortgage obligation bonds: 59
Refinements in CMO structure: 61
Revolving assets securitisation: 63
Future flows securitisation: 64
Advantages of securitisation for the issuer 71
1.Lower cost 71
2Alternative investor base 72
3.Perfect matching of assets and liabilities 72
4.Makes the issuer-rating irrelevant 72
5.Multiplies asset creation ability: 72
6.Allows higher funding: 73
7.Off-balance sheet financing: 73
8.Helps in capital adequacy requirements: 73
9.Improves capital structure 74
10.Better opportunity of trading on equity with no increased risk: 74
11.Extends credit pool: 74
12.Not regulated as a loan: 74
13.Reduces credit concentration: 75
14.Avoids interest rate risk: 75
15.Arbitraging by repackaging: 75
16.Arbitraging on liquidity and term structure: 75
advantages to the investors: 76
1.Better Security: 76
2.Good ratings: 77
3.Rating resilience: 77
4.Better matching with investment objectives: 77
5.Good spreads: 77
6.Few instances of default: 77
7.Moral responsibility: 78
8.Better matching with investment objectives: 78
Threats in securitisation: 78
1. Costly source: 78
2. Uneconomical for lower requirements: 78
3. Passes on data-base to investors: 79
4. Leaves the entity with junk assets: 79
chapter 2: Introduction to
Asset Reconstruction Companies 81
Asset Reconstruction, Asset management and resolution companies: 82
The idea of asset reconstruction in India: 83
The problem of non-performing loans: 85
Stock problem and flow problem: 88
Approaches to Resolution: Creditor-led approach versus AMC approach: 89
Bank-led approach: 89
The AMC approach: 89
Models of Asset management Companies: 91
AMC models : based on ownership: 91
AMC models: based on multiplicity: 93
AMC models: Based on Resolution approach: 93
Asset Management Companies: Global experience: 94
United States of America: 94
Mexico: 95
Japan: 95
Korea: 96
Malaysia: 96
Thailand: 97
Indonesia: 97
China: 98
APENDIX 1: Important Features of the Thailand Asset Management Corporation Law 99
Who can transfer assets to TAMC 99
Legal effect of the transfer of NPLs to TAMC: 99
Pricing of NPLs for purchase by TAMC: 100
Powers granted to the TAMC in respect of the debt: 101
Debt Restructuring 101
Business Restructuring 101
The Disposition of Collateral: 102
Appendix 2: Important features of the Pengurusan Danaharta Nasional Berhad Act 1998 103
CHAPTER 3: Introduction to Enforcement of Security Interests 111
Move for a modern law on secured transactions: 112
EBRD's Core principles of law on secured transactions: 113
ADB's project for Asian countries: 115
Essential principles of security enforcement law
as per World Bank working paper: 116
Security Enforcement law in India: 120
Security interests on immovable property: 121
Mortgages: 121
Ingredients of a mortgage: 121
Types of mortages: 122
Rights of the mortgagee: 123
Charges: 124
Security interest in specific movable property: 125
Pledge: 126
Hypothecation: 127
Floating charges or security interest in general property: 129
Floating charges in case of a going concern: receivership 130
Floating charges in case of winding up: 131
PART II: SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002
Section Index 135
Preamble 137
Legislative History #9; 138
Chapter I
Preliminary
section 1: Short title, extent and commencement 139
Scope of the law: 140
Three-in-one: 140
Object of the legislation: enabling or regulatory? 141
Operation of the law: prospective or retrospective? 142
Section 2: definitions 142
sub-section (1)
(a) Appellate Tribunal 142
(b) Asset Reconstruction 143
Operation of the law: prospective or retrospective? 142
Wanders miles away: 143
A short history of the word "asset reconstruction": 144
(c) Bank
Bank and "banking companies" 145
(d) banking company 146
Importance of the definition: 146
Meaning of "banking company" 146
(e) board 147
A definition of no use: 147
(f) borrower 147
Significance of the definition: 148
Meaning of "borrower": 148
Guarantors and security providers: 149
Guarantors as primary borrowers? 149
Meaning of guarantor and security provider: 149
Borrower of securitisation company or reconstruction company: 151
Continued relation a must: 151
Assignment of borrower relationship: 151
(g): Central registry 151
(h): Corresponding new bank 152
(i) Debts recovery tribunal: 152
(j) default 153
Significance of the definition: 153
Connection with the NPA guidelines of the RBI: 153
Elements of default: 153
NPA classification in case of banks: 155
NPA classification for non-banking financial companies: 156
Prudential regulations in case of financial institutions: 157
What if the RBI Directions/ guidelines are not applicable: 157
In case of guarantors: 157
(k): Financial asistance 157
Significance of the definition: 158
Comprehensive or inclusive? 158
Loan or advance granted: 158
Originated loans: 159
Subscription to bonds or debentures: 159
Guarantees given/ letters of credit provided: 160
Other credit facilities: 160
(l): Financial asset 162
Words of different import: financial asset,
financial assistance, secured debt, any debt: 162
Significance of the definition: 163
Meaning of "financial asset": 163
UNCITRAL model law: 164
Accounting standards definition: 165
First limb: Any debt or receivable: 165
Debt and receivable: 166
Receivables as actionable claims: 166
Second limb: "any includes.." 167
Clause (i): Fractional interests in receivables: 167
Clause (ii): Debt secured by mortgage of immovable property: 169
Clause (iii): mortgage, charge, hypothecation or pledge of movable property: 170
Clause (iv): security interests underlying receivables: 170
Clause (v): any beneficial interest in property, etc: 171
Beneficial interest in property may clash with Trusts law 172
Assignability of Future flows: 172
Assignability of conditional receivables: 174
Clause (vi): Any financial assistance: 175
(m) financial institution 175
Significance of the definition: 176
Legislated part: 176
To be notified part: 178
Are housing finance companies "finance companies"? 179
(n): hypothecation 179
Relevance of the definition: 180
Hypothecation means a charge: 180
Movable property, existing or future: 182
Without delivery of possession of the movable property: 182
And includes floating charge, etc: 183
Exceptions under sec 31: 183
(o): non-performing asset 183
(p): notification 184
(q): Obligor 184
Significance of the definition: 184
Meaning of obligor: 184
(r): originator 184
(s): prescribed 185
(t): Property 185
Was this required? 186
General meaning of property: 186
Impact of the definition: 186
(u): qualified institutional buyer 187
(v): reconstruction company 188
(w): registrar of companies: 189
(x): Reserve bank 189
(y) scheme 189
(z) : securitisation 190
Asset reconstruction and securitisation mixed up 191
A definition that leads nowhere: 191
What is securitisation: 191
Mode of raising funds: 192
Any originator: 193
(za): securitisation company 194
Qualifications of a Special purpose vehicle: 194
Is "securitisation company" an SPV, or the entity behind the SPV? 197
(zb): security agreement 197
(Ir)relevance of the definition: 198
(zc): Secured asset 198
Relevance of this definition: 198
Secured asset in case of floating charges: 198
Rulings in case of Brumark and Cosslett: 199
How to tell a floating charge: 199
When does a floating charge crystallize: 200
Application of this law to floating charges: 200
(ZD): SECURED CREDITOR 201
Meaning of "secured creditor" 201
Debenture trustee: 202
(ZE): SECURED DEBT 203
"Secured debt" and "financial assistance" 203
(zf): security interest 203
Right, title or interest: 203
Created: 204
Mortgage: 204
Assignment for security: 205
Other than those specified in sec 31: 205
(zg): security receipt 206
Security receipts and "undivided interest" 206
Receipt or other security: 207
Undivided interest: 207
Security receipts as securities: 208
Transferability of security receipts: 208
(zh): sponsor 210
Sponsor and originator: 210
Legal equity and economic equity: 210
(zi): State Bank of India 211
(zj): subsidiary bank 211
sub-section (2) 211
Respectively assigned 211
Chapter II
Regulation of Securitisation and Reconstruction of
Financial Assets of Banks and Financial Institutions
SECTION 3: Registration of securitisation companies or reconstruction companies 212
SUB-section (1) 212
Business of securitisation 212
Business of asset reconstruction: 214
No securitisation company... 215
Is a securitisation company an SPV? 216
Does an SPV have to be a securitisation company? 216
Net worth requirement: 217
Provisions for existing companies: 218
sub-section (2) 219
sub-section (3) 219
Preconditions for registration as also continued registration: 220
Condition (a) : No losses 221
Condition (b) : Ability to pay periodical returns and redeem investments: 222
Arrangement for realisation of financial assets: 222
Ability to pay returns and redeem investments: 222
Condition (c): Professional expertise of directors: 223
Condition (d): Independent directors: 223
Condition (e): Clean directors: 224
Condition (f): independent company: 224
Condition (g): Prudential norms: 225
sub-section (4) 225
sub-section (5) 226
sub-section (6) 226
section 4: Cancellation of certificate of registration 227
SUB-SECTION (1) 227
SUB-SECTION (2) 230
sub-section (3) 230
section 5: Acquisition of rights or interest
in financial assets 231
sub-section (1) 231
Purport of the section: 231
The sweep of the non-obstante clause: 232
Notwithstanding the agreement: 232
Notwithstanding any other law: 232
Financial assets of banks/ financial institutions: 233
By issuing a debenture: 233
Does the debenture-route help? 234
By entering into an agreement: 235
Transfers by oral or executory agreements: 235
sub-section (2) 236
Mandatory provision: 236
Shall be deemed to be the lender: 236
Modification of charge: 238
sub-section (3) 238
Purport of the provision: 238
Against or in favour of 239
sub-section (4) 239
Continuation of legal proceedings: 239
section g: notice to obligor and discharge
of such obligor 240
sub-section 1 240
Obligor Notification: 240
Obligor notification under common law: 241
Obligor notification under the present law: 242
Notice to concerned registering authortiy: 243
Sub-section (2) : Effect of notice: 244
Obligor notice with retention of servicing: 244
Sub-section (3) : Effect of no-notice: 244
"Shall forthwith be made over or delivered" 245
Co-mingling: 246
Section 7: Issue of security by raising of receipts or funds by securitisation company or reconstruction company 247
sub-section (1) 247
Purport of the section: 247
Issue of security receipts: 247
Issuance of security receipts: 247
After acquisition of the financial assets: 248
Other than by offer to public: 248
sub-section (2) 249
Is sub-section (2) independent of sub-section (1): 249
Schemes for acquiring financial assets: 249
The question of ring-fencing: 250
Various classes under a scheme: 250
sub-section (3) 251
Investors' rights: 251
Investor meetings in case of bonds: 251
Investor meetings in case of pass-through certificates: 252
Investor meetings in case of security receipts: 252
In the event of non-realisation: 253
75% of QIBs: 253
In case of demat securities: 255
sub-section (4) 256
section 8: exemption from registration of
security receipt 256
Purport of the section: 256
Registration of the transfer of financial assets: 257
section 9: measures for asset reconstruction 258
Powers of securitisation companies/ asset reconstruction companies: 258
The basic issue: can the statute give more than the parties intended? 259
For the purposes of asset reconstruction: 260
Section 9 or section 13? 261
Sec. 9 (a) : Change or takeover of management of the borrower: 261
Change in management: 262
Takeover of management: 263
Sec 9 (b): Sale or lease of business of borrower: 263
Sec 9 (c) : Rescheduling of payments: 265
Sec. 9 (d): Enforcement under section 13: 265
Section 9 (e): Settlement of dues payable by the borrower: 265
Section 9 (f): Right to take possession: 265
Right of appeal: 265
section 10: other functions of securitisation company or reconstruction company 256
Any business other than that of.. 267
Business of the securitisation company: 267
Business of reconstruction company: 268
Recovery agent: 268
Asset manager: 268
Receivership: 269
Sub-section (2) : any other business with RBI approval: 269
Existing companies: 269
section 11: resolution of disputes 270
Purport of the section: 270
Implication of arbitration agreement: 270
Parties covered by this section: 271
Section 12: power of reserve bank to
determine policy and issue directions 272
Chapter III: Enforcement of security interest
Section 13: enforcement of security interest 273
sub-section (1) 273
Significance of this Chapter: 273
Significance of this section: 273
Enforcement of security interests: 273
Notwithstanding sec. 69/69A of TP Act: 275
Scope of the non-obstante clause: 275
The spirit of a security interest: sec. 67 of TP Act: 276
Claim for money: 277
Suit for foreclosure: 277
Suit for sale: 277
Mortgage of public facilities: 278
Enforcement in case of joint interests: 278
In case of other security interests: 278
Impact of the present law on common law principles: 278
Choice of remedies 279
Enforcement of Security Interests Rules: 279
sub-section (2) 280
Elements of action under this section: 280
60 days' Notice in writing: 281
sub-section (3) 282
Contents of the notice: 282
sub-section (4) 283
Significance of the sub-section: 283
Discharge of liability in full 283
Measures to recover the secured debt: 284
Measures in case of a company under liquidation: 284
Measures in case of floating charges: 284
Clause (a) : Takeover of possession of secured assets: 286
Manner of taking over possession: 286
Procedure under Civil Procedure Code: 287
Effect of taking over of possession: 290
Clause (b): Takeover of management of assets: 290
Clause (c) : Appointment of manager: 291
Clause (d) : Right to attach receivables on sale of secured assets: 292
Sale of the asset by the secured creditor: 292
Duties of the secured creditor: 293
Proper care of the secured asset 293
Duty to get the best price: 294
Effect of actions under sec. 13 (4): 296
sub-section (5) 297
sub-section (6) 298
Can there be a sale without possession? 297
Nature of sale by the creditor: 298
Manner of making the sale: 298
Who can be the buyer? 299
sub-section (7) 300
Action has been taken against a borrower: 300
All costs, charges and expenses: 300
Money shall be held in trust: 300
Question of priorities: 301
sub-sectiOn (8) 304
Equity of redemption: 304
sub-section (9) 305
Purport of this sub-section: 306
Multiple security interests on the asset: 308
Will this section apply where the "secured lender" is not a "secured creditor"? 309
Three-fourths in value: 309
Effect of the agreement among secured creditors: 310
Distribution rules for companies not in liquidation: 311
Distribution rules for companies in liquidation: 311
Rights of a secured creditor to stay outside winding up: 312
Sale of assets when company is in winding up: Sanction of Court required? 312
At what point of time does sec. 529A apply to the secured creditor: 314
Pari passu charge under sec. 529A: 314
First proviso: 315
Second to fifth proviso: 316
Dues of the secured creditor versus dues of the Crown: 317
sub-section (10) 318
Jurisdiction for the application: 318
Form and manner prescribed: 318
Powers of the Tribunal: 319
sub-section (11) 319
Purport of this sub-section: 319
Proceeding against the guarantor: 320
Sale of pledged assets: 321
sub-section (12) 321
Rules: 321
sub-section (13) 322
Freeze on secured assets: 322
Effect of contravention: 323
section 14: Chief Metropolitan Magistrate or District Magistrate to assist secured creditor 324
Purport of the section: 324
section 15: manner and effect of takeover
of management 326
A section out of place, out of nexus: 327
Appeal: 328
section 16: No compensation for loss of office 328
section 17: right of appeal 329
Elevating a lender to the status of an authority? 329
Post facto appeal? 330
Who can appeal: 331
Jurisdiction of the Debt Recovery Tribunal: 331
Sub-section (2): Deposit money before you appeal: 332
section 18: appeal to appellate Tribunal 334
section 19: right of borrower to receive
compensation 335
Chapter IV: Central Registry
section 20: central registry 335
Date of applicability: 336
An innocuous provision: 336
What all will be registered: 337
Sub-section (4): 337
section 21: central registrar 337
section 22: registrar of securitisation,
reconstruction and security interest transactions 338
section 23: filing of transactions of securitisation, reconstruction and security interest 339
Filing of particulars: 339
Securitisation transactions: 339
Asset Reconstruction transactions: 340
Creation of security interests: 340
Delayed filing: 342
section 24: modification of security interest
registered under this Act 342
section 25: securitisation company etc to
report satisfaction of security interest 343
Drafting blemishes: 343
section 26: right to inspect particulars 344
Chapter V: Offences and penalties
section 27: Penalties 345
section28: penalties for non-compliance
of direction 346
section 29: Offences 346
section 30: Cognizance of offence 346
Chapter VI: Miscellaneous
Section 31: Provisions of the Act
not to apply in certain cases 347
Scope of the exclusion provisions: 347
Clause (a): Statutory Liens: 348
Clause (b): Pledge of movables: 348
Clause (c) : Creation of security in aircrafts: 348
Clause (d): Vessels: 349
Clause (e): Conditional sale, hire purchase, lease, or unsecured contracts: 349
Clause (f): Rights of an unpaid seller: 350
Clause (g): Properties not liable to attachment under CPC: 350
Clause (h): Security interest for financial assets upto Rs. 1 lac: 352
Clause (i): security interest in agricultural land: 353
Clause (j) : Amount due being less than 20%: 353
section 32: protection of action taken in good faith 354
section 33: offences by companies 355
section 34: civil court not to have jurisdiction 356
Ouster of Civil jurisdiction: 356
Right of other concerned persons to approach Courts: 357
Right of appeal against reconstruction companies: 357
section 35: The provisions of this Act to
override other laws 358
Non-obstante clause: 358
Section 36: limitation 359
section 37: application of other laws not barred 359
section 38: Power of the central
government to make rules 359
section 39: certain provisions of the Act apply after.. 360
section 40: power to remove difficulties 361
section 41: the amendments of certain
other enactments 361
section 42: repeal and savings 361
The schedule 362
Appendix 1: Model clauses in
constitutional documents of SPVs 365
Memorandum of Association 365
Articles of Association: 365
Appendix 2; FAS 140 requirements for qualifying spes 368
appendix 3: S&P legal criteria for
special purpose entities 373
PART III: SUBORDINATE LAW
The security interest (enforcement) rules 385
(1) short title and commencement 385
(2) definitions 386
(3) demand notice 387
(4) Procedure after issue of notice 388
(5) valuation of movable secured assets 391
(6) sale of movable secured assets 391
(7) Issue of certificate of sale 393
(8) sale of immovable secured assets 393
(9) Time of sale, issue of sale certificate, delivery of possession, etc 395
(10) appointment of manager 396
(11) procedure for recovery of shortfall 397
Forms 399
Draft of the application form for registration of securitisation/reconstruction company 412
Draft of general guidelines for
securitisation/ reconstruction companies 432
Draft of prudential norms for securitisation/ reconstruction companies 441
PART IV: REFERENCE LAW
Relevant extracts from
Transfer of Property Act 1882 449
THE RECOVERY OF DEBTS DUE TO BANKS AND FINANCIAL INSTITUTIONS ACT, 1993 463
Debt Recovery Tribunal (Procedure) Rules, 1993 482
Debts Recovery Appellate Tribunal
(Procedure) Rules, 1994 492
INDEX OF CASES 503
INDEX OF STATUTory instruments 508
SUBJECT INDEX 514
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