Co-operative banks can invoke SARFAESI Act, seize and sell defaulters’ assets to recover dues, says SC

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May 6, 2020 8:24 AM

The SARFAESI Act, which is now rarely being used after the Insolvency and Bankruptcy Code has come into existence since 2016, allows banks to seize, take control, manage and sell assets of defaulting borrowers without the intervention of any court/tribunal and also ensures speedy recovery.

supreme court of India, supreme court ruling, sarfesi act, supreme court sarfesi act ruling, co-operative banks India, co-operative banks powersThe apex court rejected the stand of defaulters that Parliament lacks legislative competence to regulate financial assets.

In a landmark judgment, a Supreme Court five-judge Constitution Bench on Tuesday ruled that cooperative banks can use the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act for recovery of debts from its defaulters and can seize and sell their assets to recover dues.

Holding that co­operative banks, registered under state-specific acts and multi-state level co­operative societies registered under the Multi­ State Co­operative Societies Act, come under the SARFAESI Act 2002, a bench led by Justice Arun Mishra, unanimously ruled that ‘Parliament has legislative competence under to provide additional procedures for recovery (of debts) under SARFAESI Act with respect to co-operative banks’.

The SARFAESI Act, which is now rarely being used after the Insolvency and Bankruptcy Code has come into existence since 2016, allows banks to seize, take control, manage and sell assets of defaulting borrowers without the intervention of any court/tribunal and also ensures speedy recovery.

SC lawyer Vikas Mehta, who appeared for some defaulters, told FE that ‘too much power has been allowed to the cooperative societies who would now be able to recover loans both under the state law and also the central law viz. SARFAESI. Whereas under Lists I and II, the Constitution provides for distinct fields of legislative entries for the state legislature and Parliament and once there is already a valid law made by the state referring to its own field, there should not be a parallel parliamentary law on same topic.”

Upholding the central government notification of January 28, 2003 which brought co-operative societies within the purview of the Act, the bench held that co-operative banks are ‘banks’ for the purposes of Section 2(1)(c) of the SARFAESI Act and the recovery procedure is also applicable to such banks and there is no clash with the Banking Regulation Act, 1949.

“We are of the opinion that recovery of dues would be an essential function of any banking institution… the recovery is an essential part of banking; as such the recovery procedure prescribed under Section 13 of the SARFAESI Act, a legislation relatable to Entry 45 List I of the Seventh Schedule to the Constitution, is applicable,” the judgment stated, adding that co-operative banks cannot carry on any activity without compliance of provisions of the banking Act and any other legislation applicable to such banks and the RBI Act.

According to the judges, ‘the co­operative banks are involved in banking activities and they accept money from the public, repayable on demand or otherwise and withdrawal by cheque, draft, order or otherwise. Merely by the fact that lending of money is limited to members, they cannot be said to be out of the purview of banking. They perform commercial functions. A society shall receive deposits and loans from members and other persons. They give loans also, and it is their primary function. Thus, they are covered under ‘banking’ in Entry 45 of List I.”

The apex court rejected the stand of defaulters that Parliament lacks legislative competence to regulate financial assets related to the non­banking activity of a co­operative society as they are expressly excluded from the purview of Entry 43 of List I. They had argued Sarfaesi Act, which is the central legislation, was not applicable to cooperative banks formed under state law, as there already was a mechanism for recovery under those state legislations. Also, the Act was applicable to ‘a company engaged in banking, and not a cooperative society engaged in banking’.

The judgment came in view of several conflicting decisions on the issue.

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