Finance | October – December 2023

Regulatory Updates

New Scale-based regulatory regime for NBFCs

RBI issued the Master Direction- RBI (NBFC-Scale Based Regulation) Directions, 2023 (“NBFC Directions“) on 19 October 2023 to streamline its earlier layered categorisation of NBFCs.

The NBFC Directions have sought to divide NBFCs into 4 categories based on their size, activity and perceived riskiness. Thus, Base Layer NBFCs shall include non-deposit taking NBFCs with assets size less than INR 1,000 crore, NBFCs Peer to Peer Lending Platforms, Non-Operative Financial Holding Company, NBFC-Account Aggregator and NBFCs not utilizing public funds or having any customer interface. Middle Layer NBFCs shall comprise of all deposit-taking NBFCs, non-deposit taking NBFCs with assets size of INR 1,000 crore & above, Housing Finance Companies, Infrastructure Debt Fund NBFCs, core investment companies etc. Upper Layer NBFCs shall be specifically identified by RBI, and RBI may move an Upper Layer NBFC in case of a notable increase in its potential systemic risk, to Top Layer NBFC.

The previous categorisation of NBFCs based on acceptance of deposits and the nature of activities continues to be in force. The NBFC Directions have introduced 4 layers of regulations to govern 4 NBFC categories and categorised NBFCs of the same group or having common promoters, basis their combined asset size.

Revised framework for large corporates (equity/debt listed) for mandatory issuance of debt securities

SEBI by its circular dated 19 October 2023 revised its existing mandate to large corporates regarding raising a minimum 25% of their incremental borrowings in a financial year through issuance of debt securities.

Large corporates (“LCs”) are listed entities (except for Scheduled Commercial Banks) which as on the last day of the financial year:

have their specified securities or debt securities or non-convertible redeemable preference shares listed on a stock exchange; and

have outstanding long-term borrowings of at least INR 1,000 crore, with some exclusions; and

have a credit rating of “AA”/ “AA+”/”AAA” relating to unsupported/unstructured bank borrowing or plain vanilla bonds.

As per the circular, LC shall raise not less than 25% of its qualified borrowings through issuance of debt securities in the financial years subsequent to the financial year in which it is identified as an LC over a contiguous block of three years. The framework is applicable with effect from 1 April 2024 for LCs following April-March as their financial year and from 1 January 2024 for LCs following January-December as their financial year.

The circular also prescribes incentives such as reduction in annual listing fees to LCs having a surplus in requisite borrowings and disincentives to LCs having a deficit.

Amendment in scope of investment by an IIO under IFSCA framework

The International Financial Services Centres Authority (“IFSCA“) (Investment by International Financial Services Centre Insurance Office) (Amendment) Regulations, 2023 notified on 25 October 2023 amends the IFSCA (Investment by International Financial Services Centre Insurance Office) Regulations, 2022 (“Principal Regulations”). The Principal Regulations provides for a framework in accordance with which an IFSC Insurance Officer (“IIO“) incorporated under IFSC or registered with IFSC, shall make investment of assets. The following amendments have been introduced:

the IIO was earlier permitted to invest in India, through the foreign portfolio investment route. The terms ‘foreign portfolio investment’ have now been omitted thereby broadening the scope of investment routes, which will now be through an extant regulatory framework laid down by RBI or SEBI.

IIOs investing its retained premium in domestic tariff area, have been exempted from the exposure limits to bonds, debt instruments, equity, immovable property and infrastructure assets, provided such investment is done to comply with IRDAI (Re-insurance) Regulations, 2018. The mode and manner of investments made by such IIOs shall continue to be in accordance with the Principal Regulations. This was introduced pursuant to IRDAI (Re-insurance) (Amendment) Regulations 2023, which inter alia, enable IIO to invest 100% of retained premium, emanating from insurers in India, in the domestic tariff area to be at par with foreign reinsurance branches.

Appointment of Whole-Time Directors in private sector banks and wholly owned subsidiaries of foreign banks

RBI vide notification dated 25 October 2023 directed the private sector banks and wholly owned subsidiaries of foreign banks to appoint at least 2 whole time directors (“WTDs”) on their boards including the Managing Director and Chief Executive Officer. The bank’s board can determine the strength of WTDs basis the operational scale, business complexity and other pertinent considerations. The banks must submit request for WTD appointments under the Banking Regulation Act, 1949, within 4 months of the said notification, and banks lacking the relevant provisions in their articles of association for such WTD appointment should first seek RBI approval for required amendments.

Framework for compensation to customers for delayed updation/ rectification of credit information

On 26 October 2023, RBI issued a circular with a compensation framework for delayed updation/rectification of credit information by the credit institutions (“CIs“) and credit information companies (“CICs“). Key features are follows:

Complainants are entitled to compensation of INR 100 per calendar day in case a complaint is not resolved (i.e. until a rectified credit information report has been sent to the complainant) within 30 calendar days from initial filing with a CI/CIC. However, this 30 days’ period is an overall timeline and compensation would also be payable in the following scenarios: (a) CI shall pay compensation if it fails to send updated credit information to CICs by making appropriate edits or otherwise within 21 calendar days of being informed by the complainant or CIC; and (b) CIC shall pay compensation if it fails to resolve the complaint within 30 calendar days of being informed by the complainant or CI, despite the CI having furnished the updated credit information to the CIC within 21 calendar days as above.

Rejection of a complaint must be accompanied by appropriate reason.

Compensation for delay in resolution beyond 30 days from filing of complaint, will be paid by defaulting CI/CIC (shared proportionately as per the circular).

Compensation is to be credited within 5 working days of resolution of the complaint.

The compensation framework does not apply to specified complaints regarding computation of the credit score/credit score model, complaints pending in other fora etc.

RBI Directions to regulate Information Technology related practices of regulated entities

RBI has issued the Reserve Bank of India (Information Technology Governance, Risk, Controls and Assurance Practices) Directions, 2023 on 7 November 2023 (effective from 1 April 2024) focusing on information technology (“IT“) governance including strategic alignment, risk management, resource management, performance management and business continuity/ disaster recovery management. The key aspects of the said directions are:

Applicability: These will apply to all commercial banks (except local area banks), NBFCs (excluding core investment companies), credit information companies and All India Financial Institutions (collectively, “REs”).

Board approved policies: REs shall put in place board approved strategies and policies related to IT, information assets, business continuity, information security, cyber security (including incident response and recovery management/ cyber crisis management).

Committees of Board: REs shall establish IT Strategy Committee and IT Steering Committee focusing on, inter alia, overall strategy of the RE towards accomplishment of its business objectives and business continuity and disaster recovery process respectively.

IT Services Management: REs shall prepare a robust IT service management framework to support their information systems and infrastructure for operational resilience of their entire IT environment.
Data Migration Controls: REs shall formulate a data migration policy specifying a systematic process for data migration, ensuring data integrity, completeness and consistency.

Audit Trails: Every IT application which can access or affect critical or sensitive information, shall have necessary audit and system logging capability and should provide audit trails.

Framework for transfer of unclaimed amounts in respect of listed non-convertible securities

SEBI introduced a framework on 8 November 2023 (effective from 1 March 2024) to standardize the process to be followed by an entity to transfer unclaimed amounts to escrow account in relation to interest, dividend, redemption amount for listed non-convertible securities that has not been claimed within 30 days from its due date of payment. The issuer is now required to pay default interest @ 12% p.a. for any default in transferring such amounts to the escrow account within 7 days from the date of expiry of the said period of 30 days. The issuers are now required, to make certain information available on its website regarding such unclaimed amounts, and to formulate policies regarding the claim process for investors and for verification of claims by the issuer. Procedure to be followed by listed entities excluding companies, for transfer of unclaimed amount lying in the escrow account to the investor protection and education fund and claim thereof by an investor is also detailed in this framework.

Increased risk weightage for credit – aimed at personal loans and digital lending

RBI has issued revised measures on 16 November 2023 regarding consumer credit exposure and bank-NBFC credit relations, with following key updates:

Consumer credit: Increase in risk weight for consumer credit of commercial banks and NBFCs from 100% to 125%, excluding specific categories like housing loans, education loans, vehicle loans and loans secured by gold and gold jewellery. Further, credit card receivables for both scheduled commercial banks and NBFCs will also attract elevated risk weights of 150% and 125% respectively.

Bank credit to NBFCs: Increase in risk weight of credit by scheduled commercial banks to NBFCs by 25 percentage points for exposures where the current risk weight based on the NBFC’s external rating falls below 100%, with some exceptions.

Credit standards: Regulated entities are mandated to implement board approved limits for various sub-segments under consumers credit, especially unsecured consumer credit exposures. All top-up loans against depreciating movable assets are to be classified as unsecured for credit evaluation, prudential limits and exposure purposes.

Regulation of investments in AIFs to address evergreening of loans

To curb the evergreening of loans and misuse of Alternative Investment Funds (“AIF”) route, RBI has issued an advisory on 19 December 2023 to regulated entities (“REs“) directing them as follows:

not to make investments in any scheme of AIFs which has a downstream investment directly or indirectly in a debtor company to which RE has or previously had a loan or investment exposure anytime in the preceding 12 months.

liquidate their investments within 30 days from the date of downstream investment by the AIF (or date of the circular for existing investments), if REs are investors of such an AIF scheme. Failure to so liquidate within the prescribed time limit, would require the RE to make 100% provision on such investments.

Any investment by REs in the subordinated units of any AIF scheme with a ‘priority distribution model’ shall be subject to full deduction from RE’s capital funds.

Enabling Card-on-File Tokenisation through Card Issuing Banks

This RBI, through a directive dated 20 December 2023, granted card-issuing banks and institutions, the authority to provide card tokenization services to their customers. Card-on-File (CoF) token earlier could only be created through merchant’s application or webpage. The new directive will allow debit and credit card holders to tokenize their cards for multiple merchant sites by going through a single process which is available through mobile banking and internet banking channels.

RBI issues Government Securities Lending Directions, 2023

RBI has issued the RBI (Government Securities Lending) Directions, 2023 on 27 December 2023 to enable the lending and borrowing of government securities (“G-Secs“). The key elements of the guidelines are:

GSL Transaction: G-Secs may be lent by the owner to a borrower, for a fee, on collateral of other G-Secs, for a specified time.

Eligible securities: G-Secs issued by the central government (including securities obtained through repo transaction) excluding treasury bills will be eligible for lending/borrowing. G-Secs issued by state/central government including treasury bills are eligible for placing as collateral in such lending/borrowing.

Eligible borrowers/ lenders: Entities eligible to participate in repo transactions in G-Secs or otherwise approved by RBI are eligible as lenders. Entities that are eligible to undertake short sale transactions are eligible borrowers.

Tenor: The minimum tenure of a GSL transaction would be 1 day while the maximum tenor shall be the maximum period prescribed to cover short sales as per the Directions on ‘Secondary Market Transactions in Government Securities – Short Selling’ dated 25 July 2018.

Modification to the regulatory regime for online bond platform providers

SEBI has, vide itscircular dated 28 December 2023, modified the provisions of Chapter XXI of the
master circular for issue and listing of non-convertible securities, securitised debt instruments, security receipts, municipal debt securities and commercial paper, which deals with the registration and regulatory framework for Online Bond Platform Providers (“OBPPs“). Below are some key changes introduced:

Products/ Securities/ Services offered: SEBI has now permitted OBPPs to provide such other products/ securities/ services (in addition to the existing ones) that are regulated by a financial sector regulator viz. SEBI, RBI, IRDAI or Pension Fund Regulatory and Development Authority. In addition to such products/ securities/ service being governed by the respective regulators, OBPPs are required to offer these under a different tab on its online bond platform or other website/ platform.

Disclosures on website: Disclosure requirements of OBPPs have been updated based on the products/ securities/ services offered and the corresponding financial regulator having jurisdiction over the same.

MHP for transfer of loans exempted for transfer of receivables in factoring

RBI vide a notification dated 28 December 2023 amended Master Direction – Reserve Bank of India (Transfer of Loan Exposures) Directions, 2021, to exempt the minimum holding period requirement in case of transfer of receivables arising from factoring business provided the residual maturity of the receivables at the time of transfer is not more than 90 days and proper credit appraisal of the drawee has been conducted by the transferee in accordance with the aforementioned directions.

Penal Charges in Loan Accounts: Extension of Timeline

RBI vide notification dated 29 December 2023 has extended the timeline for REs for implementation of instructions for charging penal charges (instead of penal interest) on fresh loans and existing loans. As per the notification, REs shall ensure the implementation of instructions: (i) in case of fresh loans from 1 April 2024; and (ii) in case of existing loans, on the next review/ renewal date falling on or after 1 April 2024, but not later than 30 June 2024.

Master Direction – Reserve Bank of India (Internal Ombudsman for Regulated Entities) Directions, 2023

In order to harmonize the Internal Ombudsman (“IO”) mechanism applicable to various regulated entities to strengthen their grievance redressal mechanism, on 29 December 2023, RBI notified the Master Direction – Reserve Bank of India (Internal Ombudsman for Regulated Entities) Directions, 2023 (“Directions“). It integrates the erstwhile RBI ombudsman schemes. The Directions are applicable to banks, non-banking financial companies, credit information companies, non-bank system participants and any regulated entity specifying certain thresholds.

The Direction brings uniformity in matters such as timeline for escalation of complaints to the IO, exclusions from complaints escalated to the IO, temporary absence of the IO, minimum qualifications for appointing the IO, and updation of reporting formats. It also introduces the post of Deputy Internal Ombudsman (who will assist the IO) depending on volume of complaints.

Case Summaries

NCLT Hyderabad: AAI as a statutory body excluded from the scope of ‘Corporate Person’

On 23 November 2023, in the matter of M/s Akash Electrotek Engineers Pvt Ltd. vs. M/s NCC Limited and M/s Airport Authority of India, the National Company Law Tribunal, Hyderabad (“NCLT“), dismissed a petition by an operational creditor seeking to initiate corporate insolvency resolution process (“CIRP“) against M/s NCC Limited, and M/s Airport Authority of India (“AAI“), for the alleged default in discharging the debt due in lieu of certain services provided.

The NCLT, held that AAI being a statutory body created under Airport Authority of India Act, 1944, did not qualify as a ‘corporate person’ under Section 3(7) of Insolvency and Bankruptcy Code (“IBC“) and thus, proceedings under IBC could not be initiated against them. Further, referring to facts of the case, NCLT averred that CIRP proceedings under IBC could not be initiated (i) until dues had been crystallized; (ii) as a tool for recovery for non-payment of services rendered; and (iii) without specifying who actually is responsible for the debt incurred.

For more information contact:

Jhinook Roy
Practice Head – Finance
jhinook.roy@veritaslegal.in

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