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Banking – Law & Practice RELEVANT FOR DECEMBER, 2019 SESSION ONWARDS STUDY MATERIAL PROFESSIONAL PROGRAMME BANKING – LAW & PRACTICE MODULE 3 ELECTIVE PAPER 9.1 i © THE INSTITUTE OF COMPANY SECRETARIES OF INDIA TIMING OF HEADQUARTERS Monday to Friday Office Timings – 9.00 A.M. to 5.30 P.M. Public Dealing Timings Without financial transactions – 9.30 A.M. to 5.00 P.M. With financial transactions – 9.30 A.M. to 4.00 P.M. Phones 011-45341000 Fax 011-24626727 Website www.icsi.edu E-mail [email protected] Laser Typesetting by AArushi Graphics, Prashant Vihar, New Delhi, and Printed at M P Printers/June 2019 ii PROFESSIONAL PROGRAMME BANKING – LAW & PRACTICE In the contemporary perspective, Indian economy is considered as the one of the fastest growing and emerging economies in the world. Contributing to its high growth are many critical sectors including Agriculture, Banking Industry, Capital Market, Money Market, Financial Services and many more. Among all, ‘Banking Sector’ has unarguably been one of the most distinguished sectors of Indian economy. Indeed, the development of any country depends on the economic growth, the country achieves over a period of time. This confirms the very fact that the role of financial sector in shaping fortunes for Indian economy has been even more critical, as India since independence has been equally focussed on other channels of growth too along with resilient industrial sector and the domestic savings in the government instruments. This prompted India to majorly depend on sectors for its dynamic progression. Considering the fact that banking sector plays a significant role in the economic empowerment and global growth of the country, a balanced and vigil regulation on Banking Sector has been always mandated to ensure the transparent run of this sector while avoiding any tantamount of fraud and malpractices injurious to the interest of investors, stakeholders and country as a whole. Therefore a robust regulatory regime has been established in India along with the presence of Reserve Bank of India to regulate the conduct and day to day affairs of banking sector. In the phase, where plethora of Laws, Regulations and Rules are the guiding the conduct of Banking Industry towards good governance, the role of Company Secretaries become much vivacious to meet the challenges of a more dynamic business and regulatory environment on one side and to ensure timely compliance on other side. Considering the role of Company Secretaries in the Banking Sector as well as supporting the idea of all-rounded development of our professional brigade, this subject under the title of Banking Laws and Practice serve a one spot resource of understanding basic features of Banking and Banking Industry along with providing a detailed account of laws and regulation governing the banking industry in the country. With this objective in mind, a number of procedures have also been included at relevant places. Besides, as per the Company Secretaries Regulations, 1982, students are expected to conversant with the amendments to the law made up to six months preceding the date of examination. The legislative changes made upto June 30, 2019 have been incorporated in the study material. However, on one hand, where the subject of Banking Laws and Practice is inherently fundamental to understand the basics and advanced principles related to Banking Industry and on the similar end it is subject to the refinement of Legislation, Rules and Regulations. Henceforth, it becomes necessary for every student to constantly update with legislative changes made as well as judicial pronouncements rendered from time to time by referring to the Institute’s monthly journal ‘Chartered Secretary’, E-Bulletin ‘Student Company Secretary’ as well as other legal and professional journals along with the aid of reference books related to the subject. In the event of any doubt, students may write to the Directorate of Professional Development, Perspective Planning and Studies of the Institute for clarification. Although due care has been taken in publishing this study material, the possibility of errors, omissions and /or discrepancies cannot be rules out. This publication is released with an understanding that the Institute shall not be responsible for any errors, omissions and /or discrepancies or any action taken in that behalf. Should there be any discrepancies, errors or omissions noted in the study material, the Institute shall be obliged, if the same is brought to its notice for issue of corrigendum in the e-Bulletin ‘Student Company Secretary’. iii PROFESSIONAL PROGRAMME – BANKING – LAW & PRACTICE Banking sector plays a vital role in the development of the economy of a country and day by day the importance of bank is increasing in everybody’s daily life. There are various risks like Credit Risk, market risk, operational risk, business risk etc. faced by the Banks. A banking professional working in a bank or providing any service related to the banking sector can reduce the risks associated with bank by gaining appropriate knowledge of banking. A career in banking and finance is one of the most lucrative career options one can choose these days. Changes in the banking environment make it necessary for banking staff to equip themselves with the banking skills and knowledge in the financial sector. Banks are a subset of the financial services industry. It is a financial institution that provides banking and other financial services to their customers. A bank is generally understood as an institution which provides fundamental banking services such as accepting deposits and providing loans. The banks safeguards the money and valuables and provide loans, credit, and payment services, such as checking accounts, money orders, and cashier’s cheques and some banks also offer investment and insurance products. Due to their critical status within the financial system and the economy, banks are subject to stringent regulations. Small Banks Payment Bank Reserve Bank of India Act, 1934 The RBI Act was enacted with an objective of constituting Reserve Bank of India to regulate issue of bank notes, to keep reserves to ensure monetary stability, to operate currency and credit system. This Act is the basis for constitution, powers, and functions of RBI. This act does not regulate banking directly though section 18 and 42 of RBI Act are used in regulating credit. In broad sense, RBI Act deals with Incorporation, Capital, Management, Business of RBI itself, Central Banking Functions, Collection and furnishing of information, Regulating Non-Banking Institution receiving deposits and financial institutions, Prohibition of Acceptance of deposits by unincorporated bodies, Regulation of transactions in derivatives, money market instruments, securities etc., Joint mechanism, Monetary Policy, General Provisions, Penalties along with Schedule I and II. iv The RBI Act was amended several times in the past to expand the powers of RBI. The last amendment to RBI Act was done in February, 2016 to provide for a Monetary Policy Committee (‘MPC’), to maintain price stability under an overall objective of growth. The task of the MPC would be fixing the benchmark policy rate (repo rate) to control and contain inflation within the specified target level. The Committee-based structure is expected to bring in value addition and transparency in this area of policy decisions. MPC will hold meetings at least four times a year and publish the decisions after each such meeting. Credit Conrtols Statutory Cash Reserve Liquidity Ratio Financial Ratio (Sec 42 of Directives Moral Suasion (Sec 24 of BR Accomodation RBi Act) Act) Rate Policy General Credit Selective Credit Re Discounting/ (Bank Rate & Control Control (BR Act Refinancing Sec 21 and Sec Repo) 35 A) Diverse Role of A Company Secretary : The role of Company Secretary in the banking company derives from the nature of assignments performed by him/her in that organization. While it is a statutory requirement to engage/employ on whole-time basis a Company Secretary for the banking company set up under the Companies Act 2013 and having a Banking Licence to carry on banking business under the Banking Regulation Act 1949, the other banking companies irrespective of their nature of corporate entities such as commercial banks, Regional Rural Banks, Non Banking Finance Companies, Development Finance Institutions will be better placed where professionally qualified Company Secretaries are employed in view of their diversified knowledge in legal and related fields. It is indeed an arduous task for the Board of Directors to see that not only the shareholders, but also the other stakeholders, viz. the customers, suppliers, investors, employees and the society at large, are benefited by the result of excellent management practices, so as to justify the survival and sustenance of the organization. The role of a Company Secretary, being a Principal Officer of the organization, in the banking sector, is crucial, since he acts as a facilitator in the entire corporate management process, to ensure that the corporate entity is run on sound management principles and practices. The role of the Company Secretary in different management hierarchy, varies from the positions held in the organization and the functions looked after by him/her. Company Secretary’s functions encompass a wide spectrum of duties and responsibilities, which, if laid down, would be a never ending list. However, for the sake of brevity and to be precise, some of the important tasks, generally entrusted to a Company Secretary and satisfactorily discharged by him/her in the banking organizations, are enumerated below. Adherence to Regulatory Guidelines Company Secretaries in the Banking Companies formed either under the Companies Act 1956 or any other legislation(s) and having Banking Licence from RBI under the Banking Regulation Act 1949, have to discharge onerous responsibility not only to ensure compliance with the various statutory provisions as a Principal Officer, but also to ensure fulfilment of the requirements of various allied Statutes, Rules, Regulations issued by statutory authorities/Govt.
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