While expanding the scope for regulated entities (REs) which can classify borrowers as wilful defaulters, broadening the definition of wilful default, and refining the identification process, the draft master directions issued by Reserve Bank of India (RBI) mandates a review and finalisation on wilful default aspects within six months after the loan is classified as a non-performing asset (NPA). A wilful defaulter or any entity with which a wilful defaulter is associated will not get any additional credit facility from any lender, RBI says, adding wilful defaulters will not be eligible for restructuring of credit facility. In the circular, RBI also addresses the treatment of wilful default loans sold to asset reconstruction companies (ARCs) and their status under the Insolvency and Bankruptcy Code (IBC).
In a release, RBI says, "The instructions on wilful defaulters have been revised after a review of the extant instructions and consideration of various judgments, orders from the Supreme Court and high courts (HCs), as well as representations and suggestions received from banks and other stakeholders."
The primary objective of these directions is to provide for a non-discriminatory and transparent procedure while complying with the principles of natural justice for classifying a borrower as a wilful defaulter by the lenders. The directions also aim to put in place a system to disseminate credit information about wilful defaulters for cautioning lenders to ensure that further institutional finance is not made available to them," it added.
According to the master directions, a wilful default by a borrower will be deemed to have occurred when the borrower defaults in meeting payment or repayment obligations to the lender. It will also be applicable if the default is noticed when the borrower has the capacity to honour the obligations, diverted or siphoned off the funds availed under the credit facility from a lender or disposed of immovable or movable assets given for securing the credit facility without the knowledge of the lender or failed to its commitment to infuse equity despite having the ability as a precondition to the loan.
RBI defines a wilful defaulter as a borrower or guarantor who has committed a wilful default and the outstanding amount is Rs25 lakh and above, or as may be notified by the central bank from time to time. Where the borrower committing the wilful default is a company, its promoters and the director/s associated at the time of default, and in case of an entity other than companies, persons who are in charge and responsible for the management of the affairs of the entity would be classified as wilful defaulters, it says.
RBI says the lender shall examine the 'wilful default' aspect in all accounts with an outstanding of Rs25 lakh and above and complete the process of classification or declaring the borrower as a wilful defaulter within six months of the account being classified as NPA.
"Based on the facts and circumstances of each case, lenders can examine whether criminal action against wilful defaulters under the provisions of the applicable law is warranted," RBI says, adding, "...the lenders should formulate a non-discriminatory board-approved policy that clearly sets out the criteria based on which the photographs of persons classified and declared as wilful defaulter will be published."
While making wilful defaulters ineligible for restructuring of credit facility, RBI, however, says in cases where the existing promoters are replaced by new promoters and the borrower company is totally delinked from such erstwhile promoters or management, lenders may take a view on restructuring such accounts based on their viability, without prejudice to the continuance of criminal action against the erstwhile promoters or management.
RBI says comments or feedback from REs and other stakeholders should be submitted by 31 October 2023 through email (wdfeedback@rbi.org.in) with the subject line 'Feedback on Master Direction – Treatment of Wilful Defaulters and Large Defaulters.'
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