One of the objectives of the Finance Resolution and Deposit Insurance Bill, 2017 (‘Bill’ for short) is for the establishment of Resolution Corporation for protection of consumers of specified service providers and of public funds for ensuring the stability and resilience of the financial system.
Establishment
Chapter II of the Bill deals with the establishment of Resolution Corporation and its functions and powers.
The Central Government shall establish a Corporation by name of the Resolution Corporation by means of a notification. The Corporation shall be a body corporate, having perpetual succession and a common seal with power to acquire, hold or dispose of property, both moveable and immovable and to contract and shall by the said name sue or be sued.
The Head office of the Corporation shall be at Mumbai. The Corporation may establish its offices at other places in India.
Management
The general superintendence, direction and management of the affairs of the Corporation shall vest in the Members of the Corporation. The Corporation may exercise all powers and do all acts and things which may be exercised by the Corporation.
Members
The Corporation shall consist of the following members to be appointed by the Central Government-
- A Chairperson;
- One officer of the Government of India in the Ministry of Finance – ex officio;
- One member to be nominated by the Reserve Bank of India – ex-officio;
- One member to be nominated by the Securities and Exchange Board of India – ex-officio;
- One member, to be nominated by the Insurance Regulatory and Development Authority of India – ex-officio;
- Such number of whole time members, not exceeding three, as may be decided by the Central Government; and
- Two independent members.
Qualification
The Chairperson and other Members shall be persons of ability, integrity and standing, who have expertise in finance, economics, risk management, or regulation, supervision, resolution of financial firms, law or public policy in the areas of financial services.
Selection of Members
The Chairperson and other Members, other than ex-officio Member, shall be appointed after obtaining the recommendation of a selection committee, consisting of-
- Cabinet Secretary – Chairperson;
- A Secretary to the Government of India to be nominated by the Central Government – Member;
- Three experts of repute from the field of finance, law, management, insolvency and related subjects, to be nominated by the Central Government – Members.
A person shall not be qualified for appointment as the Chairperson or a Member other than an ex-officio Member, if at the time of appointment, such person-
- has been appointed twice as a Member;
- shall not be able to serve a term of at least three years before reaching the age of retirement; or
- holds or has held, in three years preceding such appointment, any position which is likely to conflict with his duties as a Member.
Tenure
The term of the office of the Chairperson and other Members (other than ex-officio Members) shall be five years and shall be eligible for reappointment. The Chairperson or a Member shall not hold office after he has attained the age of sixty five years. An independent Member appointed shall not hold office after he has attained the age of seventy years.
Salary and allowances
The salaries and allowances payable to and other terms and conditions of the Chairperson and other Members (other than an ex-officio Members) shall be such as may be prescribed.
Restriction on future employment
The Chairperson and other Members shall not, for a period of two years from the date on which they cease to hold office as such, except with the previous approval of the Central Government, accept-
- any employment under the Central Government or any State Government; or
- any appointment under a specified service provider.
Removal of Members
The Central Government may remove the Chairperson or a Member from office, if he-
- has been adjudged as insolvent;
- has become physically or mentally incapable of acting as a Member;
- has been convicted of an offence, which in the opinion of the Central Government involves moral turpitude;
- has so abused his position as to render his continuation in office detrimental to the public interest; or
- has acquired such financial or other interest as is likely to affect prejudicially his functions as a Member.
No Member shall be removed unless he has been given a reasonable opportunity of being heard in the matter.
Powers of Chairperson
The Chairperson shall have the powers of general superintendence and control in respect of all administrative matters of the Corporation and may also exercise such other powers, except as powers of officers, as may be delegated to him by the Corporation.
Meetings
The Corporation shall meet at such times and places and observe such rules of procedure in regard to the transaction at its meetings (including quorum at such meetings) as may be specified by regulations made by the Corporation. If the Chairperson is unable to attend the meeting, for any reason, any other Member chosen by the Members present at the meeting, shall preside at the meeting. All questions which come up before the meeting shall be decided by a majority of votes of Members present and voting. In the event of equality of votes, the Chairperson or in his absence, the person presiding shall have a casting vote.
Restriction for members in meeting
Any Member, who is a director of a company and who as such director has any direct or indirect pecuniary interest in any matter coming up for consideration at a meeting of the Corporation, shall, as soon as possible after relevant circumstances have come to his knowledge, disclose the nature of his interest at such meeting and such disclosure shall be recorded in the proceedings of the Corporation. The Members shall not take any part in any deliberation or decision of the Corporation with respect to that matter.
Vacancies etc,, not to invalidate proceedings
No act or proceeding of the Corporation, shall be invalid merely by reason of-
- any vacancy in or any defectin the constitution of the Corporation;
- any defect in the appointment of a person as a Member; or
- any irregularity in the procedure of the Corporation not affecting the merits of the case.
Powers and functions of Corporation
1. To appoint officers and employees
- The Corporation may appoint such officers and employees as it considers necessary for the efficient discharge of its function.
- The salaries and allowances payable to, and other terms and conditions of service of such officers and employees shall be specified by the regulations made by the Corporation.
- It shall be lawful for the Corporation to utilize and for the appropriate regulator to make available, the services of such employees of the appropriate regulator on such terms and conditions as may be agreed upon between the Corporation and the appropriate regulator.
2. Functions of officers
The Corporation may make regulations consistent with the provisions of this Act and the rules made there under for authorizing its officers to carry out any functions.
3. Powers and functions
The Corporation shall have the following powers and functions-
- provide deposit insurance to banking institution;
- specify the criteria for classification of a specified service provider into one of the categories of risk to viability;
- act as an administrator for the specified service provider which has been classified in the category of critical risk to viability;
- exercise powers in relation to certain termination rights in respect of specified service provider;
- act as a liquidator for a specified service provider against which an order of liquidation has been made;
- any other powers and functions as may be prescribed.
4. Powers of Civil Court
While exercising the powers, the Corporation shall have the same powers as are vested in a Civil court under the Code of Civil Procedure,1908 while trying a suit, in respect of the following matters-
- the discovery and production of books of account and other documents, at such place and such time as may be specified by regulations made by the Corporation;
- summoning and enforcing the attendance of persons related to the specified service provider at any place;
- inspection of any books, registers and other documents of any person related to the specified service provider at any place;
- issuing of commissions for the examination of witnesses or documents;
- sharing of information or ordering disclosures as may be specified by regulations made by the Corporation; and
- any other matter as may be prescribed.
5. Powers of Investigations
If the Corporation has reasonable grounds to believe that-
- the activities of a specified service provider are being conducted in a manner detrimental to the interest of the consumers; or
- any person or entity related to the specified service provider has violated any of the provisions of the Act or the rules made there under
it may, by an order in writing, direct any person mentioned in the order to investigate the affairs of such specified service provider or person or entity related to the specified service provider and to report its finding thereon to the Corporation.
The expression ‘related to the specified service provider’ is defined clause 2(27) of the Bill as-
- a director or a partner of the specified service provider or a relative of director or partner of the specified service provider;
- a key managerial personnel of the specified service provideror a relative of the key managerial personnel of the specified service provider;
- a LLP or a partnership firm in which a director, partner or manager of the specified service provider or his relative is a partner;
- a private company in which a director, partner or manager of the specified service provider is a director and holds along with his relatives, more than 2% of its share capital;
- a public company in which a director, partner or manager of the specified service provider is a director and holds along with his relatives, more than 2% of its paid up share capital;
- any body corporate whose board of directors, managing director or manager, in the ordinary course of business, acts on the advice, directions or instructions of a director, partner or manager of the specified service provider;
- any LLP or a partnership firm whose partners or employees in the ordinary course of business, act on the advice, directions or instructions of a director, partner or manager of the specified service provider;
- any person on whose advice, directions or instructions, a director, partner or manager of the specified service provider is accustomed to act;
- a body corporate which is a holding, subsidiary or an associate company of the specified service provider, or a subsidiary of a holding company for which the specified service provider is a subsidiary;
- any person who controls more than 20% of voting rights in the specified service provider on account of ownership or a voting agreement;
- any person who can control the composition of the board of directors or corresponding governing body of the specified service provider;
- any person who is related to the specified service provider on account of-
- participation in policy making process of the specified service provider;
- having more than 2 directors in common between the specified service provider and such person;
- interchange of managerial personnel between the specified service provider and such person; or
- provision of essential technical information to, or from, the specified service provider.
6. Powers of pending investigation
The Corporation may authorize any of its Members to carry out any of the following measures-
- restrain a specified service provider from carrying out such business activities as it thinks fit;
- restrain any office bearer of a specified service provider from acting as such;
- impound and retain the proceeds in respect of any activity of a specified service provider which is under investigation;
- provisionally attach, by an order, for a period not exceeding 30 days, any assets of a specified service provider or any person related to a specified service provider, where it has reason to believe that such specified service provider or any person related to specified service provider has violated any of the provisions of this Act or the rules or regulations made there under.
- direct a specified service provider or any person related to such specified service provider in any manner not to dispose of or alienate an asset forming part of an activity which is under investigation.
7. Search and seizure
If the Corporation, in consequence of information in its possession, has reason to believe that-
- any person related to a specified service provider required to produce any books, accounts or other documents in his custody or control or failed to produce such documents; or
- any person to whom a requisition to produce any books, accounts or other documents has been or might be issued will not, or wouldnot, produce any books, accounts or other documents which shall be useful for, or relevant to, an investigation; or
- a contravention of any provision has been committed or is likely to be committed by a specified service provider; or
- any claim which is due to be settled has been or is likely to be rejected or settled at an amount lower than a reasonable amount; or
- any books, accounts, papers, receipts, vouchers, survey reports or other documents, belonging to a specified service provider are likely to be tampered with, falsified or forged,
it may authorize an officer to-
- enter and search any building or place where he has reason to suspect that such books, accountsor other documents are kept;
- break open the lock of any box, locker, safe, almirah or other receptacle where the keys are not available;
- seize all or any such books, accounts or other documents, found as a result of such search;
- place marks of identification on such books, accounts or other documents or make or cause to be made extracts or copies there from.
8. Power to enter premise sand inspect etc.,
Where any officer or agent of the Corporation or of the appropriate regulator, duly authorized in writing by the Corporation or the appropriate regulator thinks necessary so to do for ensuring the compliance with the provisions of the Act, he may-
- enter any premises where a specified service provider carries on business;
- inspect any equipment, including any computer system or other documents at such premises; and
- call upon any employee of such specified service provider or any other person working in such premises to furnish such information or documents as may be required by such officer.
9. Constitution of Committees
The Corporation may, for the efficient discharge of its functions, constitute such committees, as it may deem fit, consisting of a Chairperson and such other members as may be specified by the regulations made by the Corporation.
