Ideally, this is a provision that mustn’t be used, but given the intent to hide the group’s financials, it is a fit case for such action.
When the NSEL payments crisis first broke several years ago, even as the Bombay High Court set up a committee headed by a retired judge to receive and dispose off assets and settle dues—it had attached properties worth over `5,000 crore at one point—the government ordered the merger of NSEL with its parent FTIL. Since FTIL had large cash reserves and owned various investments that were easily liquidated, the government felt this would be one way to ensure that those whose money was stuck would get some of it back. This was a move fraught with problems—and the Serious Frauds Investigation Office (SFIO) has just said many of the brokerages involved were also guilty, not just NSEL—one of which was the issue of limited liability that is the bedrock of how companies are run in India and the world over; that is, the liability of promoters is limited to the equity capital in the company. By forcing an NSEL-FTIL merger, FTIL’s liability was being extended to way beyond its equity investment in NSEL. If this became a precedent, other firms, too, could be held liable for losses of their subsidiaries and this would hit investments. The move, however, had an ideological parent in the Maharashtra Protection of Interest of Depositors (MPID) Act—firms defraud investors and promoters siphon off funds, the argument went, so unless the promoters’ properties are attached, those duped have no chance of getting back their money.
It is precisely on these grounds that the government has now approached the Mumbai bench of the National Company Law Tribunal (NCLT) to attach the properties of nine former senior executives of IL&FS. The counsel for one of them, former vice-chairman Hari Sankaran, argued that the funds—IL&FS has run up debt of over `1 lakh crore—were not siphoned off by the former executives, but went into the creation of assets like roads and power plants that got into financial difficulties. In itself, the argument is a powerful one, namely, all business failure cannot be automatically assumed to be fraud. Indeed, if business losses are to be equated with fraud, most entrepreneurs would find themselves being
investigated for fraud.
While this means MPID-type solutions, which involve attaching the properties of promoters/executives, have to be done after a lot of deliberations, the case of IL&FS is quite different. As this newspaper has pointed out, several infrastructure projects run by IL&FS were prone to padding of costs due to the manner in which they were structured. Further, as the SFIO report, and the initial findings of the Uday Kotak committee that is trying to dispose off the company and/or its assets showed there was a deliberate attempt to hide the group’s debt and precarious financial position. This was done through the layering of companies, parking of debt in unlisted subsidiaries, evergreening of loans, dressing up of accounts and willful violation of various prudential norms put in place by RBI. The SFIO report also details how the IL&FS Employees Trust, that owns part of IL&FS, was being used to benefit just a handful of senior executives instead of the entire employee base. Indeed, while these executives have listed out their assets to the SFIO—Ravi Parthasarathy has declared moveable assets of `99 crore and 4 properties while Arun Saha’s assets are `59 crore and 9 immovable properties (bit.ly/2ASDWQd)—the SFIO needs to investigate whether these executives are holding assets in a benami form as well. Just as the government tightened NCLT norms to prevent willful defaulters from buying back their firms, it needs to ensure IL&FS’s top executives pay for the havoc they have wrought on the country’s financial system.