SEBI Wants ‘Difficult To Recover’ Tag For Untraceable Defaulters And Cases Facing Parallel Proceedings
Capital market regulator Securities and Exchange Board of India is planning to attach a 'difficult to recover' tag for individual defaulters who are found to be 'untraceable' as also for cases facing parallel proceedings by other agencies or in various courts and tribunals.
The proposal, likely to be discussed at SEBI’s board meeting next week, is aimed at the better utilisation of resources towards cases with higher chances of recovery, a senior official said.
This separate 'difficult to recover' category is for cases where recovery of penalties and other dues from defaulters proves to be virtually impossible and the amount involved is not found to be worth an attempt beyond a point. However, SEBI can initiate or continue its prosecution proceedings against the defaulters even after such a segregation and recovery procedure can be reopened in case there is any change in the prevailing parameters regarding the defaulter.
The regulator is now considering a modification to its policy on 'difficult to recover' dues to include the criteria of 'untraceable' for individuals and 'parallel proceeding barring recovery', the official said. In the case of individuals, the existing policy provides for this classification for a person who has died leaving behind no assets and those who are alive but have no attachable assets or have become insolvent.
However, the income tax department rules for 'difficult to recover' cases have two more categories -- individuals who are untraceable and those who have left India. The official said that SEBI did not include these categories earlier as it did not have enough data with respect to the cases involving untraceable individuals, while the final category became redundant after the promulgation of the Fugitive Economic Offenders Act.
However, its analysis of pending recovery cases has now shown that many cases involving untraceable individual defaulters are fit for being declared 'difficult to recover'. In the case of companies, this classification applies to those having gone into liquidation or insolvency proceedings or are defunct, as also entities whose directors, promoters, partners or representatives have no attachable assets.
Regarding foreign companies, this category includes those having no presence, place of business, management, representative or attachable assets in India. The SEBI has got powers to recover money from various entities by way of passing orders for a refund of money to investors, disgorgement of funds to be distributed to investors, and also collect fees and penalties levied by it.
Since getting the recovery powers in 2013, SEBI has initiated recovery proceedings against a large number of defaulters, but it has experienced difficulties during the execution of these proceedings in certain cases. According to officials, difficulties mainly arise due to the defaulter being insolvent or financially unsound without having any attachable assets or being a company whose assets or directors/ promoters are not traceable, as also individual defaulters being untraceable.
In some cases, the dues remain unrecovered even after executing all modes of recovery. Earlier, SEBI norms did not provide for declaring any unrecovered dues as 'difficult to recover' and therefore all the proceedings used to remain in force along with other recoverable cases, thus hindering optimal utilisation of resources for cases with better chances of recovery, officials said.
In 2018, SEBI had formulated this policy, after taking cues from the procedure followed by the income tax department, following extensive consultations with the Finance Ministry, the Reserve Bank of India and the Corporate Affairs Ministry, but it has always been made clear that it should not be seen as "scaling down or writing off" of the dues.
Out of 2,500 recovery orders passed by SEBI so far, as many as 1,790 recovery certificates were pending (at end of November 2019). Out of these, 136 were found fit to be declared 'difficult to recover', though not a single case has been put in that category as yet because the final verification of the steps is being carried out by newly appointed recovery officers prior to any such categorisation.
Out of the total 1,790 pending cases, the maximum number of 1,308 cases are pending at a stage after attachments of a bank, demat and mutual fund accounts as the funds or securities available are not sufficient. Also, 301 of them are 'defunct' (17 percent) and 254 have been found to be 'untraceable' (14 percent).
Besides, the 136 cases that are fit to be treated as 'difficult to recover', as many as 97 are 'untraceable' for reasons including of failure to serve demand notice despite best efforts, non-availability of demat or bank account details, non-existence of right address and even personal account number details being unavailable.
Besides, SEBI is also proposing a 'difficult to recover' tag for cases facing 'parallel proceedings' before various judicial and quasi-judicial fora such as National Company Law Tribunal, special courts, debt recovery tribunals, as also cases where stay on recovery has been granted by high courts or the supreme court, or where parallel attachment has been done by agencies like enforcement directorate, tax department, employees' provident fund organisation, etc.
Out of the total 1,790 pending recovery cases, SEBI found that parallel proceedings were pending in 90 cases with some facing multiple litigations. In cases where insolvency and bankruptcy proceedings have commenced, SEBI has no scope of recovery as the Insolvency and Bankruptcy Code prevails over the SEBI Act.