Securitization in India – SARFAESI Act, 2002

The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 or SARFAESI Act, 2002 allows banks and financial institutions to auction properties (residential and commercial) when borrowers fail to repay their loans. The Act aims at speedy recovery of defaulting loans and to reduce the mounting levels of Non-performing Assets of banks and financial institutions.

As stated in the Act, it has “enabled banks and FIs to realise long-term assets, manage problems of liquidity, asset-liability mismatches and improve recovery by taking possession of securities, sell them and reduce non performing assets (NPAs) by adopting measures for recovery or reconstruction.”

The SARFAESI Act, 2002 has been largely perceived as facilitating asset recovery and reconstruction. The Act has been passed based on the recommendations of Narasimham Committee I and II and Andhyarujina Committee constituted by the Central Government for the purpose of examining banking sector reforms and to consider the need for changes in the legal system in respect of these areas. The provisions of the Act would enable the banks and financial institutions to realize long-term assets, manage problems of liquidity and asset liability mismatches and to improve recovery by exercising powers to take possession of securities, sell them and reduce non-performing assets by adopting measures for recovery or reconstruction.

Provisions of the SARFAESI Act, 2002

The Act has made provisions for registration and regulation of securitization companies or reconstruction companies by the RBI, facilitate securitization of financial assets of banks, empower SCs/ARCs (Securitisation Companies and Asset Restructuring Companies) to raise funds by issuing security receipts to qualified institutional buyers (QIBs), empowering banks and FIs to take possession of securities given for financial assistance and sell or lease the same to take over management in the event of default.… Read the rest

Legal and Regulatory Framework for Mutual Funds in India

Securities and Exchange Board of India (SEBI) is the apex regulator of Indian capital markets. Issuance and trading of capital market instruments and regulation of capital market the intermediaries is under the purview of SEBI. SEBI is the primary regulator of mutual funds in India. SEBI has enacted the SEBI (Mutual Funds) Regulations, 1996, which provides the scope of the regulation of mutual funds in India. It is mandatory that mutual funds should be registered with SEBI. The structure and the formation of mutual funds, appointment of key functionaries and investors, investment restrictions, compliance and penalties are all defined under SEBI Regulations, Mutual funds have to send a seven-year compliance reports to SEBI. SEBI is also empowered to periodically inspect mutual fund organizations to ensure compliance with SEBI regulations. SEBI also regulates other fund constituents such as AMCs, Trustees, Custodians, etc.

Reserve Bank of India capital adequacy(RBI) is the monetary authority of the country and is also the regulator of the banking system. Earlier bank sponsored mutual funds were under the dual regulatory control of RBI and SEBI. Money market mutual funds which invested in short-term instruments were also regulated by the RBI. These provisions are no longer in vogue. SEBI is the regulator of all mutual funds. The present position is that RBI is involved with the Indian mutual fund industry, only to the limited extent of being the regulator of the sponsors of bank-sponsored mutual funds. Specifically if the sponsor has made any financial commitment to the investors of the mutual funds, in the form of guaranteeing assured returns, such guarantees can no longer be made without the prior approval of the RBI.… Read the rest

Employees’ Provident Funds Scheme, 1952

Introduction:-

Every worker wants security & maintenance for old age. The provident Fund act-1952 deals with provident funds relating to only Govt., railways and local authorities. Therefore, it was considered desirable to introduce a private scheme for industrial workers. As a result, the provident fund act 1952 was passed which initially provided for payment of pension fund to employees in industries specified in schedule-1.

Definitions:

Employee Definition:
“Employee” as defined in Section 2(f) of the Act means any person who is employed for wages in any kind of work, manual or otherwise, in or in connection with the work of an establishment, and who gets wages directly or indirectly from the employer and includes any person employed by or through a contractor in or in connection with the work of the establishment.

Membership:
All the employees (including casual, part time, Daily wage contract etc.) other then an excluded employee are required to be enrolled as members of the fund the day, the Act comes into force in such establishment.

Basic Wages:
“Basic Wages” means all emoluments which are earned by employee while on duty or on leave or holiday with wages in either case in accordance with the terms of the contract of employment and witch are paid or payable in cash, but dose not include

a. The cash value of any food concession;

b. Any dearness allowance (that is to say, all cash payment by whatever name called paid to an employee on account of a rise in the cost of living), house rent allowance, overtime allowance, bonus, commission or any other allowance payable to the employee in respect of employment or of work done in such employment.… Read the rest

Workers Compensation Act, 1923

The Workers Compensation Act, aims to provide workmen and/or their dependents some relief in case of accidents arising out of and in the course of employment and causing either death or disablement of workmen. It provides for payment by certain classes of employers to their workmen compensation for injury by accident. The latest amendment to the Act was made in 1984.

Object and scope of the Act:

The passing of the Act in 1923 was the first step towards social security of workmen. The main objective of the Act is to provide for the payment of compensation by certain classes of employers to their workers for injury by accident.

The theory of Act is that “The cost of the product should bear the blood of the workmen”.

The Act came into force on the first day of July, 1924. The growing complexity of industry with increasing use of machinery and consequent dangers to workmen rendered it advisable that they and their families should be protected, as far as possible, from hardship arising from accidents. Keeping in view this fact an Act called the Workmen’s Compensation Act was passed which came into force on 1st July 1924.it applies to the whole of India except the state of Jammu & Kashmir. The Act provides for cheaper & quicker disposal of disputed relating to compensation through special tribunals than possible under the Civil Law. The Act looks upon compensation as relief to the workmen & not as damages payable by the employer for a wrongful act.… Read the rest

The Payment of Wages Act, 1936

The Payment of Wages Act, 1936 is a central legislation which has been enacted to regulate the payment of wages to workers employed in certain specified industries and to ensure a speedy and effective remedy to them against illegal deductions and/or unjustified delay caused in paying wages to them. It applies to the persons employed in a factory, industrial or other establishment, whether directly or indirectly, through a sub-contractor.

The Central Government is responsible for enforcement of the Act in railways, mines, oilfields and air transport services, while the State Governments are responsible for it in factories and other industrial establishments.

The basic provisions of the Act are as follows:

The person responsible for payment of wages shall fix the wage period up to which wage payment is to be made. No wage-period shall exceed one month.
All wages shall be paid in current legal tender, that is, in current coin or currency notes or both. However, the employer may, after obtaining written authorization of workers, pay wages either by cheque or by crediting the wages in their bank accounts.

All payment of wages shall be made on a working day. In railways, factories or industrial establishments employing less than 1000 persons, wages must be paid before the expiry of the seventh day after the last date of the wage period. In all other cases, wages must be paid before the expiry of the tenth day after the last day of the wage period. However, the wages of a worker whose services have been terminated shall be paid on the next day after such termination.… Read the rest

The Payment of Bonus Act, 1965

The practice of paying bonus in India appears to have originated during First World War when certain textile mills granted 10% of wages as war bonus to their workers in 1917.  In certain cases of industrial disputes demand for payment of bonus was also included.  In 1950, the Full Bench of the Labour Appellate evolved a formula for determination of bonus.  A plea was made to raise that formula in 1959.  At the second and third meetings of the Eighteenth Session of Standing Labour Committee (G. O.I.) held in New Delhi in March/April 1960, it was agreed that a Commission be appointed to go into the question of bonus and evolve suitable norms.  A Tripartite Commission was set up by the Government of India to consider in a comprehensive manner, the question of payment of bonus based on profits to employees employed in establishments and to make recommendations to the Government.  The Government of India accepted the recommendations of the Commission subject to certain modifications.  To implement these recommendations the Payment of Bonus Ordinance, 1965 was promulgated on 29th May, 1965.  To replace the said Ordinance the Payment of Bonus Bill was introduced in the Parliament.

The Bonus Formula:

The Bonus Formula was first evolved in the case of Mill Owners Association, Bombay v. Rashtriya Mill Mazdoor Sangh, Bombay, (1950). The formula, which came to be known as ‘the Full Bench Formula or the Available Surplus Formula is as follow:

“As both labour and capital contribute to the industrial concern it is fair that labour should derive some benefit if there is surplus after meeting prior or necessary charges.… Read the rest