Mentoassociates.com – Legal Articles

With many fly by night finance companies raking in moolah, at the cost of innocent investors offering them dream interest rates for their deposits, it is ideal to see what are the legal requirements for an NBFC.

NBFC stands for Non Banking Financial Company.

Non-Banking Financial Company (NBFC) is a company registered under the Companies Act, 1956 and is engaged in the business of loans and advances, acquisition of shares/stock/bonds/debentures/securities issued by Government or local authority or other securities, leasing, hire-purchase, insurance business, chit business but does not include any institution whose principal business is that of agriculture activity, industrial activity, sale/purchase/construction of immovable property.

 An RNBC (Residuary Non-banking Company) is a non-banking institution which is a company and which has its principal business of receiving deposits under any scheme or arrangement or any other manner, or lending in any manner and not being an Investment, Asset Financing, Loan Company.

 An NBFC cannot operate without obtaining a certificate of registration from the Reserve bank Of India. The said company shall have a net owned fund of Rs 2,00,00,000/-. 

NBFCs registered with RBI have been reclassified as
(i) Asset Finance Company (AFC)
(ii) Investment Company (IC)
(iii) Loan Company  (LC).

All NBFCs are not entitled to accept public deposits. Only those NBFCs holding a valid Certificate of Registration with authorization to accept Public Deposits can accept/hold public deposits. Further there is a ceiling on acceptance of Public Deposits.

The NBFCs are allowed to accept/renew public deposits for a minimum period of 12 months and maximum period of 60 months. They cannot accept deposits repayable on demand. The deposits with NBFCs are neither insured nor their repayment guaranteed by RBI.

Presently, the maximum rate of interest an NBFC can offer is 12.5%. The interest may be paid or compounded at rests not shorter than monthly rests.

If an NBFC defaults in repayment of deposit, the depositor can approach Company Law Board or Consumer Forum or file a civil suit in a court of law to recover the deposits. However there is no Ombudsman for hearing complaints against NBFCs

Housing Finance Companies, Merchant Banking Companies, Stock Exchanges, Companies engaged in the business of stock-broking/sub-broking, Venture Capital Fund Companies, Nidhi Companies, Insurance companies and Chit Fund Companies are NBFCs but they have been exempted from the requirement of registration with RBI.

Any person who is an individual or a firm or unincorporated association of individuals cannot accept deposits except by way of loan from relatives, if his/its business wholly or partly includes loan, investment, hire-purchase or leasing activity or principal business is that of receiving of deposits under any scheme or arrangement or in any manner or lending in any manner.

The Government of Karnataka in its 2007-08 budget has introduced several changes in the stamp duty levied on various instruments .These are effective from 1-04-09.Some of them are discussed below:
1. Stamp duty on sale transaction of all immovable properties has been reduced form 7.5% to 6%.The cess on stamp duty will be 10% and surcharge for properties situated within corporation limits will be 2% and within village Panchayaths will be 3%.
2. Sale agreements not involving possession of property. Presently the stamp duty varies from Rs 10 to Rs 200/-.Now the same is increased to .25% of the value of the agreement.
3.  Joint Development Agreements: 1% of the value involved.
4. GPA for Joint development: 1% of the value involved.
5. Other GPAs: Rs 200/-(Presently Rs 100/-)
5. Lease
a. Up to 5 years: 1% on the value of security deposit and average annual rent
b. Above 5 years and  up to 10 years: 2% on the value of security deposit and average annual rent
c. Above 10 years and up to 30 years: 4% on the value of security deposit and average annual rent
d. For a period above 30 years : 6% of the market value.
5. For duplicate registration: Rs 500/-(Instead of Rs 50/-)
6. Release: 6% instead of present 2.5% and 3.75%

In this period of economic recession lakhs of employees face the threat of lay off and retrenchment. People often mistake retrenchment for lay off. Even though in common parlor people use the latter term more often, what actually happens in the case of most of the employees is retrenchment or termination from service.

The Industrial Disputes Act, 1947 defines retrenchment as “termination by the employer of the service of a workman, for any reason whatsoever”. The following are not instances of retrenchment.
a.Termination as a form of punishment by way of disciplinary action.
b.Voluntary retirement of the workman.
c.Retirement of the workman on reaching the age of superannuation.
d.Termination of the service as a result of the non renewal of the contract of the employment.
e.Termination on the ground of continuous ill health.

For the retrenchment of a workman who has been employed for a minimum period of one year continuous service, the following conditions shall be met with by the employer:
a.The workman shall be given one month’s notice in writing, indicating the reason for retrenchment, or wage equivalent to the period of notice.
b.The workman shall be paid compensation equivalent to 15 days average pay, for every completed year of continuous service.
c.Notice in the prescribed manner shall be served on the appropriated authority.

Employees working in factory, mine, oilfield, plantation, port, railway company, shops and establishments where 10 or more persons are employed are eligible for gratuity. Normally gratuity is to be paid to an employee after termination of his service, if he has rendered continuous service of not less than 5 years. If termination is due to death or disablement, then 5 years service is not required.

The amount of gratuity is calculated at the rate of 15 days wages for every completed year of service. However the maximum gratuity amount shall not exceed Rs 3,50,000/-.

Keeping in view inflation and spiraling prices, the Union Government decided to amend the relevant provisions, namely Sec 4 of the Act. While it was found that an amount computed at the rate of 15 days wages was a small amount, the said amendment seeks to enhance the same to 30 days wages. The Bill was introduced in the Rajya Sabha in November 2012 and is yet to be passed in the Rajya Sabha. Following the President’s Assent, the Bill will become an Act and come into force on a date decided by the Government and notified in the official gazette.

Employers of establishments where gratuity is applicable are supposed to obtain insurance for their liability for payment towards gratuity. They also need to register the establishment with the Controlling authority. The employer is also duty bound to display an abstract of the act and rules in English and language understood by the majority of the employees in a place near the main entrance.

Each employee who has completed one year of service shall make a nomination, within 30 days of the completion of one year service.  If he or she has a family, then the nomination shall be made to a family member and not to a third party. The employee needs to apply for gratuity within 30 days of it becoming payable.

An employer who   makes a false statement or false representation with respect to any gratuity matter is liable for punishment with imprisonment up to 6 months or fine up to 1000 rupees or both.

The Payment of Gratuity (Amendment) Act, 2010, has increased the gratuity limit from 3.5 lakhs to 10 lakhs and the same is tax free. The same is applicable for both private and public sector employees. The enhancement is with effect from 24-05-10, and the same is calculated based on the date of retirement/resignation and not on the date of receipt of the amount. Section 10(10) 0f the income tax contains the provisions relevant to tax implications of gratuity.

Once the Act becomes applicable, it continues even if the number of employees falls below ten.
The formula for the calculation of gratuity = (Last drawn basic salary +DA) x 15/26 x number of years of service.
As per the decision in of Madras High Court in   Mettur Beardsell Limited, Madras Vs. Regional Labour Commissioner (Central), Madras & others reported in 1998 LLR 1072 (Mad. HC), an employee who has completed at least 240 days of service in the fifth year will be eligible for gratuity.

The Reserve Bank of India has issued guidelines dated 24-04-08 to Commercial banks with respect to the employment of recovery agents by them for the purpose of loan recovery. These include:

a. Banks should inform the borrower the details of recovery agency while forwarding default cases to the recovery agency.

b. The agent shall carry a copy of the notice and the authorization letter from the bank along with the identity card issued to him by the bank or the agency.

c. Banks should ensure that there is a tape recording of the calls made by recovery agents to the customers, and vice-versa. Banks shall intimate the customer that the conversation is being recorded.

d. The details of the recovery agency engaged by banks may also be posted on the bank’s website.

e. Where a complaint has been lodged by a borrower, banks should not forward cases to recovery agencies till they have finally disposed of the complaint.

f. In cases where the subject matter of the borrower’s dues is pending before courts, banks should exercise utmost caution, in referring the matter to the recovery agencies.

g. Each bank should have a mechanism whereby the borrowers’ grievances with regard to the recovery process can be addressed. The details of the mechanism should also be furnished to the borrower.

h. All recovery agents shall undergo a certificate course introduced by Indian Institute of Banking and Finance (IIBF).

i. In case of complaints against the Recovery agents, the Reserve Bank may consider imposing a ban on a bank from engaging recovery agents in a particular area. Similar supervisory action could be attracted when the High Courts or the Supreme Court pass strictures or impose penalties against any bank or its agents with regard to the recovery process.
 

From the initial days of Credit Card operations in India, there have been reports of tussle between Card issuing banks and credit card holders regarding the debt repayment. The reserve Bank of India has issued several guidelines to the card issuing institutions for the reddressal of grievances of the card holders. These include:

a.A time limit of 60 days needs to be given by the bank to the customers to prefer their complaints.

b.The card issuing bank shall constitute Grievance redressal machinery within the bank and the name and contact number of the designated officer shall be mentioned on the credit card bills.

c.The grievance redressal procedure of the bank/NBFC and the time frame for responding to the complaints shall be placed on the bank’s website. There should be a system of acknowledging customer’s complaints for follow up such as complaint number /docket number even if the complaints are received on phone.

d.If the customer does not get a satisfactory response from the bank, within 30 days period, then he has the right to approach the concerned banking ombudsman to redress his grievances. The bank shall be liable to compensate the customer for the loss of his time, expenses, financial loss etc.

Apart from the above RBI guidelines the customers have the right to file criminal complaints against the banks and the recovery agents if their acts amount to criminal offenses like intimidation, abuse, use of force assault etc. Also the customer can approach the consumer courts to redress his grievance.