Nedumpilli Finance Company Limited v. State of Kerala & Ors.
V. RAMASUBRAMANIAN, J.
1. The question as to whether Non-Banking Financial Companies
(for short “NBFCs”) regulated by the Reserve Bank of India, in terms
of the provisions of Chapter III-B of the Reserve Bank of Indi a Act,
1934 (hereinafter referred to as “RBI Act”) could also be regulated by
State enactments such as Kerala Money Lenders Act, 1958 (hereinafter
referred to as “ Kerala Act ”) and Gujarat Money Lenders Act, 2011
(hereinafter referred to as “ Gujarat Act”) , has arisen for our
consideration in these appeals, with the Kerala and Gujarat High Courts
taking opposite views.
2. We have heard the learned counsel for the respective pa rties,
the learned senior counsel appearing for the State of Kerala, the learned
standing counsel appearing for the State of Gujarat and the learned counsel
appearing for RBI.
FACTUAL MATRIX
3. A brief sojourn into the factual matrix may provide the setting,
in the context of which, the above question of law has arisen. It goes as
follows:-
KERALA
3.1 The legislature of the State of Kerala passed the Ke rala Act,
1958, with the professed object of providing for the regulation and control
of the business of money lending in the State of Kerala. The statement
of objects and reasons spelt out, that by passing the said enactment, “it
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was intended to regulate the interest to be charged by money lenders
and to provide protection to borrowers ”. At the time when this Act
was enacted, the concept of non-banking financial companies was n ot
very familiar in India. Therefore, the Reserve Bank of India and the
Parliament had not stepped in to regulate financial companie s which
were not banks or banking companies.
3.2 It appears that after the mushroom growth of NBFCs, the
Government of Kerala started insisting upon NBFCs to take a license
under the Kerala Act, failing which penal consequences were threatened.
Therefore, after unsuccessfully approaching the Government of Kerala
for exemption, NBFCs filed a batch of writ petitions on the f ile of the
High Court of Kerala.
3.3 A learned Judge of the High Court of Kerala dismissed the
batch of writ petitions and the said order was confirmed by the Division
Bench of the High Court. Therefore, NBFCs operating in t he State of
Kerala have come up with the above batch of appeals.
3.4 All the appeals, by the NBFCs operating in the State of Kerala,
arise out of writ petitions seeking a declaration that NB FCs registered
under the RBI Act will not come within the purview of the Kerala Act.
Apart from several appeals, there is also a petition in Transfer Petition
(Crl.) No.359 of 2015, filed by the Chief Executive Officer of one NBFC
by name Bajaj Finance Limited, seeking a transfer of the quash petition
pending on the file of the High Court of Kerala under Section 482 of the
Code of Criminal Procedure praying for quashing an FIR register ed
under the Kerala Act.
GUJARAT
3.5 The Bombay Money Lenders Act, 1946, which was applicable
in the State of Gujarat, was sought to be invoked by the Registrar in the
office of the Prevention of Money Lenders, against NBFCs operating in
the State of Gujarat, in the year 2009. Challenging the action so initiated,
NBFCs filed a batch of special civil applications before the High Court
of Gujarat. When it was pending, the decision of the Kerala High Court
came. But disagreeing with the view taken by the Kerala High Court, a
learned Judge of the Gujarat High Court quashed the notices issued to
the NBFCs under the Bombay Money Lenders Act, by a judgment dated
13.01.2010.
NEDUMPILLI FINANCE COMPANY LIMITED v. STATE OF
KERALA & ORS. [V . RAMASUBRAMANIAN, J.]
3.6 Thereafter, the legislature of the State of Gujarat pa ssed the
Gujarat Act, 2011 (Gujarat Act 14 of 2011) which received the assent of
the Governor on 6.04.2011 and was published in the Gujarat Government
Gazette on 8.04.2011.
3.7 Therefore, a fresh batch of special civil application s were
filed, seeking a declaration that the provisions of the Gujarat Act 14 of
2011 are not applicable to NBFCs registered under the RBI Act. The
Division Bench of the High Court allowed the special civil applications
holding that Gujarat Act 14 of 2011 is ultra vires the Constitution for
legislative incompetence, to the extent that it seeks to have control over
NBFCs registered under the RBI Act. A consequential directi on was
also issued by the Gujarat High Court restraining the State Government
from applying the provisions of the Gujarat Act against NBFCs registered
under the RBI Act. Therefore, the State of Gujarat has co me up with
Civil Appeals.
Scheme of Kerala Act, Gujarat Act and RBI Act
4. In the background of the facts narrated above, the lega l issue
arising for consideration has to be resolved by looking at the scheme of
the two State enactments, the scheme of RBI Act and th e relevant
Entries in the appropriate List of the Seventh Schedule, to which these
enactments can be traced.
4.1 List-I of the Seventh Schedule to the Constitution contains
three entries which may be taken note of. They are:-
(i) Entry No.38 : Reserve Bank of India
(ii) Entry No.43 : incorporation, regulation and winding up of
trading corporations including banking, insurance and
financial corporations but not including cooperative societies.
(iii) Entry No.45 : Banking
4.2 List II (State List) of the Seventh Schedule contains an
entry in Entry No.30, which reads: “money lending and money lenders;
relief of agricultural indebtedness ”.
4.3 Therefore, any State enactment regulating the business of
money lending and intended to afford protection to borrowers, may fall
under Entry No.30 of List-II. But at the same time any parl iamentary
enactment dealing with incorporation, regulation and winding up of
financial corporations, would fall under Entry No.43 in List-I.
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4.4 Therefore, at the outset, it is clear that the competence of the
legislatures of the States of Kerala and Gujarat to en act a law for the
regulation of the business of money lending cannot be questioned, a s
their power is traceable to Entry 30 of List-II of the Seventh Schedule.
But at the same time, we will have to see whether afte r the enactment
of a law by the Parliament for the incorporation and regulation of financial
corporations, such financial corporations would continue to be regulated
also by the State enactments, on the ground that they may also fall within
the definition of the expression “ money lenders ” under the State
enactments.
4.5 For finding an answer to the above question, it may be useful
to take a bird’s eye view of the scheme of the Kerala and Gujarat State
enactments.
Broad scheme of Kerala Act
4.6 In a way, the Kerala Act is a legacy of the Madras Pawn
Brokers Act, 1943, whose provisions continued to be in force in the
Malabar District, even after the States Reorganisation Act, 1956, until it
was repealed by Kerala Money Lenders (Amendment) Act 33 of 1963.
4.7 As seen from the statement of objects and reasons, the only
object of the Kerala Money Lenders Act was to afford pro tection to
borrowers from unscrupulous money lenders who advanced usurious
loans. Though it was proclaimed in the statement of objects, in general
terms, that it was intended to regulate the business of money lending, the
Act was primarily intended only to cover one aspect of the business of
financing.
4.8 Section 2(7) of the Kerala Act, defines a “money lender ” as
follows:-
“2. Definitions. xxx xxx xxx
(7) “money-lender” means a person whose main or subsidiary
occupation is the business of advancing and realising loans
or acceptance of deposits in the course of such business a nd
includes any person appointed by him to be in charge of a
branch office or branch offices or a liaison office or any
other office by whatever name called, of his principal place
of business and a pawn broker, but does not include-
(a) a bank or a co-operative society; or
NEDUMPILLI FINANCE COMPANY LIMITED v. STATE OF
KERALA & ORS. [V . RAMASUBRAMANIAN, J.]
(b) the Life Insurance Corporation of India establis hed
under section 3 of the Life Insurance Corporation Act,
1956 (Central Act 31 of 1956); or
(bb) the Industrial Credit and Investment Corporatio n of
India Limited incorporated under the India Companies
Act, 1913 (7 of 1913);
(c) the Industrial Finance Corporation established u nder
section 3 of the Industrial Finance Corporation Act ,
1948 (Central Act 15 of 1948); or
(d) x x x x
(e) the State Financial Corporation established unde r
section 3 of the State Financial Corporation Act, 1951
(Central Act 63 of 1951); or
(f) any institution established by or under an Act o f
Parliament or the Legislature of a State, which grants
any loan or advance in pursuance of the provisions of
that Act or,
(g) any other institution in the public sector, whet her
incorporated or not exempted by the Government by
notification.
Explanation I.—Where a person, who carries on in the State
of Kerala the Business of advancing and realising l oans is
resident outside the State, the agent of such person r esident
in the State shall be deemed to be the money-lender in respect
of that business for the purposes of this Act.
Explanation II.— For the purposes of this Clause, clause (7A),
Proviso to sub-section (1) of section 3, clause (a) of sub-
section (3) of section10, [section 16B] and section 17, the
word “person” shall include “a firm or a joint family;””
4.9 As seen from the definition, 7 different types of business entities
are excluded from the definition of the expression “money lending”. A
financial corporation which is not a bank and which is otherwise known
as NBFC, is not listed as one of the entities excluded from the definition
of the expression “money lender”.
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4.10 A bank is excluded from the definition of the expression
“money lender”, by virtue of clause (a). But the word “bank” is defined
in Section 2(1A) as follows:-
“Sec. 2 (1A) “bank” means-
(i) a banking company to which the Banking Regulatio n
Act, 1949 (Central Act 10 of 1949), applies;
(ii) the State Bank of India constituted under the State Bank
of India Act, 1955 (Central Act 23 of 1955);
(iii) a subsidiary bank as defined in clause (k) of section of
the State Bank of India (Subsidiary Banks) Act. 1939
(Central Act 38 of 1959);
(iv) the Industrial Development Bank of India establis hed
under the Industrial Development Bank of India Act,
1964 (Central Act 18 of 1964);
(v) a corresponding new bank constituted under section 3
of the Banking Companies (Acquisition and Transfer
of Undertakings) Act, 1970 (Central Act 5 of 1970);
(vi) a Regional Rural Bank established under the Regional
Rural Banks Act, 1976 (Central Act 21 of 1976);
(vii) a corresponding new bank constituted under section 3
of the Banking Companies (Acquisition and Transfer
of Undertakings) Act, 1980 (Central Act 40 of 1980);
(viii) the Export Import Bank of India established under th e
Export Import Bank of India Act, 1981, (Central Act 28
of 1981);
(ix) the National Bank for Agriculture and Rural
Development established under the National Bank for
Agriculture and Rural Development Act, 1981 (Central
Act 61 of 1981);
(x) the Industrial Reconstruction Bank of India established
under the Industrial Reconstruction Bank of India Act,
1984 (Central Act 62 of 1984);
4.11 The Banking Regulation Act, 1949 defines a “ banking
company” under Section 5(c) as follows:-
NEDUMPILLI FINANCE COMPANY LIMITED v. STATE OF
KERALA & ORS. [V . RAMASUBRAMANIAN, J.]
“5. Interpretation –
xxx xxx xxx
(c) “banking company” means any company which transacts
the business of banking in India;
Explanation. - Any company which is engaged in the
manufacture of goods or carries on any trade and wh ich
accepts deposits of money from the public merely fo r the
purpose of financing its business as such manufactu rer or
trader shall not be deemed to transact the business of banking
within the meaning of this clause;”
4.12 The word “banking” itself is defined in Section 5(b) of the
Banking Regulation Act, 1949 as follows:-
“5. Interpretation –
xxx xxx xxx
(b) “banking” means the accepting, for the purpose of lendi ng
or investment, of deposits of money from the public, repay able
on demand or otherwise, and withdrawal by cheque, d raft,
order or otherwise ;”
4.13 By virtue of the definition of the word “banking” contained
in Section 5(b) of the Banking Regulation Act, 1949, an institut ion or
business entity which does not accept deposits of money from the public,
either for the purpose of lending or for the purpose of investment, will
not be a banking company. While a banking company may be involved in
both the business of accepting deposits and lending money, a financial
institution which is engaged only in the business of lending, may not be
covered by the definition of the expression “banking company” under
the Banking Regulation Act, 1949.
4.14 Since NBFCs which do not accept deposits from the public
do not come within the purview of the Banking Regulations Act, t he
Reserve Bank of India Act, 1934 had to step in. To make things mo re
clear that there is no duplication of control, Section 45-H of the RBI Act
states that the provisions of Chapter III-B shall not apply to a Banking
Company as defined in Section 5 of the Banking Regulation Act.
4.15 But the definition of “ money lender ” in the Kerala Act
excludes only a “bank” to which the Banking Regulation Act applies. It
does not exclude a non banking institution from the definition. Therefore,
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the Kerala State authorities started claiming and technically rightly so,
that NBFCs are not excluded from the definition of “ moneylender”.
Though the NBFCs claimed that under clause (f) of sub-sec tion (7) of
Section 2, “ any institution established by or under an Act of
Parliament or the Legislature of a State” are excluded from the
definition of the expression “ money-lender ” and that NBFCs are
established under a Parliamentary enactment, this argument was found
by the State to be based on a convoluted logic. We also thin k that the
State was right in thinking so, since NBFCs are not established by or
under an Act of Parliament or the legislature of a State.
Incorporation/registration of a business entity und er an Act of
Parliament or the Legislature of a State, is completely different from
being established by or under an Act. For instance, all companies are
incorporated under the Companies Act. But a corporation like the L IC
of India, is established under the LIC of India Act. Th erefore, the
appellants were not right in claiming that they fall under the exclusion
clause in clause (f) of sub-section (7) of Section 2. Keeping this aspect
in mind, let us now see the scheme of the Kerala Act.
4.16 The scheme of the Kerala Act is:-
(i) To make it obligatory for a money lender to obtain a licence
under the Act;
(ii) To prohibit any person from carrying on or continuing the
business of money lending without licence;
(iii) To prevent money lenders from charging interest at a ra te
higher than the rate prescribed under the Act;
(iv) To prevent money lenders from giving any gifts,
commissions or presents other than the interest provided in
Section 4(2) to any depositor;
(v) To enable the debtor to deposit the money due in respect of
a loan, into any Court having jurisdiction to entertain a suit
for recovery of the loan and to seek the recording of full or
part satisfaction of the loan;
(vi) To make it mandatory for money lenders to keep books of
accounts and to give receipts;
(vii) To make it compulsory for a pawn broker to issue a pawn
ticket, the possession of which will give rise to a presumption
that the holder of the pawn ticket has a right to redeem the
pledge;
NEDUMPILLI FINANCE COMPANY LIMITED v. STATE OF
KERALA & ORS. [V . RAMASUBRAMANIAN, J.]
(viii) To prescribe the procedure for redemption of pledge, sa le
of pledge and compensation for depreciation of pledge;
(ix) To appoint inspectors with certain powers of inspection and
search;
(x) To empower the licensing authority to demand additional
security from the money lender, if there is excess of liabilities
over the assets of the money lenders at any time; and
(xi) Providing for cancellation of licence, forfeiture of sec urity
and imposing penalty for violation of the provisions of the
Act.
5. Gujarat Act
5.1 The Gujarat Act defines a “money lender”, in Section 2(10)
to mean “ an individual, a HUF, a company, a pawn-broker or
unincorporated company (i) who/which carries on the busine ss of
money lending in the State or (ii) who/which has his principal or
subsidiary place of such business in the State” .
5.2 The expression “ business of money lending ” is defined in
Section 2(3) to mean “ the business of advancing loans, whether in
cash or kind and whether or not in connection with or in addition to
any other business and includes the business of payment of loan by
an agreement under any law for the time being in force ”.
5.3 By virtue of the aforesaid definitions, the application of the
Gujarat Act to any business entity/individual revolves around the definition
of the word “loan”. It is defined in Section 2(9) as follows:
“loan” means an advance whether of money or in kind, at an
interest, with or without security, and includes ad vance,
discount, money paid for or on account of or on behalf of or
at the request of any person, or the forbearance to require
payment of money owing on any account whatsoever, a nd
every agreement under any law for the time being in force
(whatever its terms or form may be) which is in substance or
effect a loan of money, but does not include –
(a) a deposit of money or other property in a Gover nment
post office, a bank, a company or a co-operative societ y;
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(b) a loan to, or by, or a deposit with any society or association
registered under the Societies Registration Act, 1860, or any
other enactment relating to a public, religious or charit able
object;
(c) a loan advanced by the State Government or by any local
authority authorized by the State Government;
(d) a loan advanced to a Government employee from a fund,
established for the welfare or assistance of Govern ment
employees and which is sanctioned by the State Government;
(e) a deposit of money with or a loan advanced by a
cooperative society;
(f) an advance made to a subscriber to, or a depositor in, a
provident fund from the amount standing to his credit in t he
fund in accordance with the rules of the fund;
(g) a loan to or by an insurance company as defined in the
Insurance Act, 1938;
(h) a loan advanced by a Government company as defined in
the Companies Act, 1956;
(i) an advance made bona fide by any trader carryin g on
any business, other than money-lending, if such advan ce is
made in the regular course of such business;
(j) a loan advanced by the National Bank for Agricu lture
and Rural Development established under the National Bank
for Agriculture and Rural Development Act, 1981;
(k) a loan advanced by the Export-Import Bank of In dia
established under the Export-Import Bank of India Act, 1981;
(l) a loan advanced by the Small Industries Development Bank
of India, established under the Small Industries Development
Bank of India Act, 1989;
(m) a loan advanced by the National Housing Bank,
constituted under the National Housing Bank Act, 1987 ;
(n) a loan advanced by State Financial Corporations
established under the State Financial Corporations Act, 1951
; and
NEDUMPILLI FINANCE COMPANY LIMITED v. STATE OF
KERALA & ORS. [V . RAMASUBRAMANIAN, J.]
(o) a loan advanced by any institution - (1) established by o r
under an Act of Parliament or the legislature of a State, whi ch
grants any loan or advance in pursuance of the provi sions
of that Act, or (2) notified in this behalf by the State
Government, in consultation with the Reserve Bank;
5.4 By virtue of the aforesaid definitions, the authorities under the
Gujarat Act sought to apply the provisions of the Act to NB FCs also.
Therefore, it is essential that we look at the scheme of the Act.
5.5 The broad scheme of the Gujarat Act is :
(i) To provide for the registration of money lenders;
(ii) To prohibit any person from carrying on the business of
money lending without a valid certificate of registration in
respect of the area concerned;
(iii) To empower the Registrar General, Registrar and other
officers appointed under the Act to require the production
of records and documents and to carry out searches and
seizures;
(iv) To mandate every money lender to keep and maintain
proper books of Accounts and other registers;
(v) To make it obligatory for money lenders to file yearly
statement of accounts of each of the debtors;
(vi) To prohibit the disposal of any article taken by a money
lender from a debtor as a bond, pledge or security for the
loan advanced, for a period of two years from the date
stipulated for financial repayment of the loan;
(vii) To regulate the powers of the Civil Court while deci ding
the suits to which the Act applies, so that the Court is satisfied
that the provisions of the Act are complied with;
(viii) To curtail the power of the Court to award interest in a sum
greater than the principal of the loan due on the date of the
decree;
(ix) To empower the Court to allow payment of the decreta l
amount by instalments;
(x) To empower the Court even to reopen past transactions;
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(xi) To enable the borrower to deposit the amounts due in
respect of a loan into Court;
(xii) To empower the State Government to fix the maximum
rate of interest, for any local area or class of business;
(xiii) To prohibit money lenders from receiving from the debtor,
any amount by way of costs, charges or expenses;
(xiv) To make it obligatory for the money lender to provide
advance information, whenever the loan is assigned to a
third party;
(xv) To prohibit money lenders from accepting any promissory
note, acknowledgment, bond or other writing which does
not state the actual amount of loan or which states the
amount wrongly or which contains erasures or over-writing;
and
(xvi) To provide for penalties for contravention of the provisions
of the Act.
5.6 It may be of interest to note that Section 39 of the Gujarat Act
contains a very strange provision which reads as follows:-
“Notwithstanding anything contained in this Act or any other
law for the time being in force, no money lender shall rec over
the principal of the loan advanced by him or the in terest
thereon either in part or in whole except in cash.”
5.7 Though we are not concerned with the validity of such a
provision we could not resist the temptation to take note of t he said
provision which is in the teeth of Section 269-SS of the Income Tax Act,
1961.
6. Role of RBI, the scheme of Chapter III-B of the RBI A ct
and the Regulatory measures taken by RBI from time to time
6.1 As observed by this Court in Internet and Mobile Association
of India vs. Reserve Bank of India 1, “the role of a Central Bank
such as the Reserve Bank, in an economy, is to mana ge (i) the
currency; (ii) the money supply and (iii) interest rates”. One of the
objects the Reserve Bank of India Act, 1934 as spelt out in its preamble
1 (2020) 10 SCC 274
NEDUMPILLI FINANCE COMPANY LIMITED v. STATE OF
KERALA & ORS. [V . RAMASUBRAMANIAN, J.]
is “to operate the currency and credit system of the coun try to its
advantage ”.
6.2 Therefore, in contrast to the state enactments regulating the
business of money lending, whose one-eyed focus is only the protection
of borrowers, the RBI Act takes a holistic approach to the business of
banking, money lending and operation of the currency and credit system
of the country. But when RBI Act was enacted, the business of banking
and finance was not as complicated as it later turned out to be.
6.3 In the early 1960s, the Government found it necessary to
regulate institutions which were not banks, but which were carrying on
other businesses allied to banking. Therefore, a bill to am end the RBI
Act, The Banking Companies Act, 1949, and the State Bank of India
(Subsidiary Banks) Act, 1959 was introduced in November, 1963. The
Statement of Objects and Reasons spelt out that the existing enactments
relating to banks did not provide for any control over such ba nks or
institutions and that therefore it was felt necessary that the RBI should
be enabled to regulate the conditions on which deposits may be accepted
by non-banking companies or institutions, for the purposes of ensuring
more effective supervision and management of the monetary and credit
system by the Reserve Bank. One of the important objects spelt out in
the Statement of Objects and Reasons reads as follows:-
“The Reserve Bank should also be empowered to give to any
financial institution or institutions directions in respect of
matters, in which the Reserve Bank, as the central banking
institution of the country, may be interested from the poin t of
view of the control of credit policy”
Clause (5) of the Notes on Clauses accompanying the Bill rea d
as follows:-
“Clause 5.-A new Chapter is proposed to be introduced in the
Reserve Bank of India Act for enabling that bank to obtain returns
and information from (a) certain financial institutions, namely, firms,
companies or other bodies corporate which are financing tra de,
industry, commerce or agriculture, or are carrying on as a part of
their business the acquisition of shares, stocks, bonds, debentures
or other securities, or are engaged mainly in the financing of hire-
purchase transactions and (b) non-banking institutions accepting
deposits from members of the general public. The objects in view
are to provide for-
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(i) the supervision and control of the financial institutions
mentioned above in the interests of better or more effective control
of credit, and
(ii) the regulation of the business of acceptance of deposits
by these and other non-banking institutions, in the public interest.
The Reserve Bank will be empowered to provide, by general or
special order, for the forms in which returns and information are
to be furnished to it, and also to give directions to any class of
institutions or to any institution in particular for the purpo ses
specified. The Reserve Bank will also be enabled to car ry out
inspections, where necessary, for carrying out the purpose s of
the new Chapter.”
6.4 Accordingly, the Banking Laws (Miscellaneous Provisions Act),
1963, was enacted, amending the provisions of the aforesai d three
Parliamentary enactments. It was by this amendment which cam e into
force on 01.02.1964 that Chapter III-B was inserted in RBI Act. T he
Chapter heading for this Chapter read as, “Provisions Relating to Non-
Banking Institutions Receiving Deposits and Financial Institu tions”.
However, this Chapter III-B was made inapplicable under Section 45-H
to a banking company as defined in Section 5 of the Banking Companies
Act, 1949. Section 45-I defined a ‘ financial institution ’ under clause
(c) to mean any non-banking institution which carries on the business of
financing or the business of acquisition of shares, stocks etc ., or the
business of hire-purchase transactions.
6.5 Chapter III-B as it was introduced by the Banking L aws
(Miscellaneous Provisions Act), 1963, contained no spell-binding or path-
breaking provisions. Broadly, Chapter III-B as it was originally introduced
in 1963, (i) empowered RBI to regulate or prohibit the issue of prospectus
or advertisement soliciting deposits of money; (ii) empowered the RBI
to collect information from non-banking institutions about deposits and
to give directions; (iii) empowered the RBI to call for information from
financial institutions and to give directions, for the purpose of regulating
the credit system of the country; (iv) obliged the non-banking institutions
to furnish statements to the RBI; (v) provided for inspection by RBI;
(vi) prescribed penalties for any violation and conferred overriding effect
to Chapter III-B over other laws.
6.6 After the introduction of Chapter III-B under Act 55 of 1963,
three amendments which are not relevant for our purpose, were made
NEDUMPILLI FINANCE COMPANY LIMITED v. STATE OF
KERALA & ORS. [V . RAMASUBRAMANIAN, J.]
to the provisions contained in Chapter III-B, under Act 51 of 1974, Act
21 of 1976 and Act 1 of 1984.
6.7 Post the insertion of Chapter III-B under Act 55 of 1963, the
working of non-banking financial intermediaries came to be reviewed
by two study groups, one under the chairmanship of Dr. Bhabhatos h
Datta in 1971 and another under the chairmanship of Shri James Raj in
1975. Certain recommendations were made by these two study groups.
Thereafter, the issue was considered by three other committees namely,
(i) the Committee to Review the Working of the Monetary Syst em
(Chakravarty Committee-1985); (ii) the Working Group on the Money
Market (Vaghul Committee-1987); and (iii) the Committee on the
Financial System (Narasimham Committee-1991).
6.8 Those reports and various socio-economic and political factors
led to the liberalisation of the economy in 1991. The liberalisation of the
economy saw the growth of non-banking financial services sector in
India accompanied by a corresponding growth in the number of NBFCs
offering a diversified range of financial services and products. Therefore,
a need was felt for rationalisation of the regulatory framework for these
companies keeping in view the trend towards liberalisation of economy
in general and the financial sector in particular. In order to make an in-
depth study of the role of NBFCs and to suggest regulatory and control
measures to ensure healthy growth and operations of these companies,
RBI constituted a Working Group under the Chairmanship of Dr. A.C.
Shah, in May, 1992. The terms of reference of the Working Group in
simple terms2 were:-
(i) To review the role of various categories of non-banking
financial intermediaries;
(ii) To review the provisions of the RBI Act, 1934; Non-Banking
Financial Companies (Reserve Bank) Directions 1977,
Miscellaneous Non-Banking Companies (Reserve Bank)
Directions, 1977; Residuary Non-Banking companies
(Reserve Bank) Directions, 1987; The National Housing
Bank Act, 1987 and The Housing Finance Companies
(NHB) Directions, 1989;
2 Report of the Working Group on Financial Companies C.R. 483 submitted in
September, 1992
1029
(iii) To enquire into the methods of operation of non-banking
financial intermediaries and to recommend measures for
ensuring their orderly growth and in particular, the eligibility
criteria for their entry, growth and exit, their viability, capital
adequacy, liquidity ratio, debt equity ratio, credi t
concentration ratio, disclosure requirements and oth er
prudential norms;
(iv) To consider the adequacy of the supervision and control of
RBI over such institutions and suggest measures for further
strengthening them;
(v) To examine the adequacy of protection to deposit ors’
money; and
(vi) To make recommendations on any other related matter.
6.9 The Working Group chaired by Dr. A.C. Shah, took note of
the fact that the total number of NBFCs which stood at 7063 in 1981
increased to 24,009 by 1990 and that there were different categories of
NBFCs operating in the country such as loan companies, investm ent
companies, hire-purchase finance companies, equipme nt leasing
companies, mutual benefit finance companies, miscellane ous finance
companies, miscellaneous non-banking companies, residuary non-banking
companies and housing finance companies. This Working Group actually
recommended in paragraph 6.72 of its Report that though NBFCs were
being regulated by the directions issued under Chapter III-B of the RBI
Act and Chapter-V of the NHB Act, it would be better to enact a separate
legislation. The Working Group went to the extent of recomme nding
that such a legislation should be put under Schedule IX of the Constitution.
6.10 All the above led to the promulgation of the Reserve Bank of
India (Amendment) Ordinance, 1997 on 09.01.1997. Subsequently, a bill
was introduced which became the Reserve Bank of India (Amendment)
Act, 1997. This Act completely revamped Chapter III-B by ame nding
the definition provision in Section 45-I and inserting certain new provisions
such as Section 45-IA, 45-IB, 45-IC, 45-JA, 45-MB, 45-MC etc. After
the amendment made to Chapter III-B by Act 23 of 1997, this Chapter
has become a complete Code in so far as NBFCs are conc erned. This
can be seen from various provisions of Chapter III-B, which is summarized
in the form of a table for easy reference as follows:-
NEDUMPILLI FINANCE COMPANY LIMITED v. STATE OF
KERALA & ORS. [V. RAMASUBRAMANIAN, J.]
1031
6.11 The above scheme of Chapter III-B of the RBI Act shows
that the power of intervention available for the RBI over NB FCs, is
from the cradle to the grave. In other words, no NBFC can carry on
business without being registered under the Act and a NBFC which
takes birth with the registration under the Act is liable to be wound up at
the instance of the RBI. The entire life of a NBFC from t he womb to
the tomb is also regulated and monitored by RBI.
6.12 At this juncture it may be ideal to extract some of the relevant
provisions of Chapter III-B.
6.13 A Non-banking financial company is defined in clause (f) of
Section 45-I as follows:-
NEDUMPILLI FINANCE COMPANY LIMITED v. STATE OF
KERALA & ORS. [V. RAMASUBRAMANIAN, J.]
“45-I.
(f) “non-banking financial company” means –
(i) a financial institution which is a company;
(ii) a non-banking institution which is a company and
which has as its principal business the receiving of
deposits, under any scheme or arrangement or in any
other manner, or lending in any manner;
(iii) such other non-banking institution or class of such
institutions, as the Bank may, with the previous
approval of the Central Government and by
notification in the Official Gazette, specify.”
6.14 Section 45-JA which gives power to the RBI to determine
the policy and issue directions, reads as follows:-
“45JA. Power of Bank to determine policy and issue
directions. — (1) If the Bank is satisfied that, in the public interest
or to regulate the financial system of the country to its advantage
or to prevent the affairs of any non-banking financial compa ny
being conducted in a manner detrimental to the interest of the
depositors or in a manner prejudicial to the interest of th e non-
banking financial company, it is necessary or expedient so to do, it
may determine the policy and give directions to all or any of the
non-banking financial companies relating to income recognition,
accounting standards, making of proper provision for bad and
doubtful debts, capital adequacy based on risk weights for assets
and credit conversion factors for off balance-sheet items and also
relating to deployment of funds by a non-banking financial company
or a class of non-banking financial companies or non-banking
financial companies generally, as the case may be, and such non-
banking financial companies shall be bound to follow the policy so
determined and the direction so issued.
(2) Without prejudice to the generality of the powers vested
under sub-section (1), the Bank may give directions to non-banking
financial companies generally or to a class of non banking financial
companies or to any non-banking financial company in particular
as to—
1033
(a) the purpose for which advances or other fund based
or non-fund based accommodation may not be made;
and
(b) the maximum amount of advances or other financial
accommodation or investment in shares and other
securities which, having regard to the paid-up capital,
reserves and deposits of the non-banking financial
company and other relevant considerations, may be
made by that non-banking financial company to any
person or a company or to a group of companies.”
6.15 Section 45-K which empowers the RBI to collect information
reads as follows:-
“45K.Power of Bank to collect information from non-
banking institutions as to deposits and to give directions .–
(1) The Bank may at any time direct that every non-banking
institution shall furnish to the Bank, in such form, at such intervals
and within such time, such statements information or particulars
relating to or connected with deposits received by the non-banking
institution, as may be specified by the Bank by general or special
order.
(2) Without prejudice to the generality of the power vested
in the Bank under sub-section (1), the statements, information or
particulars to be furnished under sub-section (1), may relate to all
or any of the following matters, namely, the amount of the deposits,
the purposes and periods for which, and the rates of interest and
other terms and conditions on which, they are received.
(3) The Bank may, if it considers necessary in the public
interest so to do, give directions to non-banking institutions either
generally or to any non-banking institution or group of non-banking
institutions in particular, in respect of any matters rela ting to or
connected with the receipt of deposits, including the rates of interest
payable on such deposits, and the periods for which deposits may
be received.
(4) If any non-banking institution fails to comply with any
direction given by the Bank under sub-section (3), the Bank may
prohibit the acceptance of deposits by that non-banking institution.
NEDUMPILLI FINANCE COMPANY LIMITED v. STATE OF
KERALA & ORS. [V. RAMASUBRAMANIAN, J.]
1[***]
(6) Every non-banking institution receiving deposits shall, if
so required by the Bank and within such time as the Bank may
specify, cause to be sent at the cost of the non-banking institution
a copy of its annual balance-sheet and profit and loss account or
other annual accounts to every person from whom the non-banking
institution holds, as on the last day of the year to which the accounts
relate, deposits higher than such sum as may be specified by the
Bank.”
6.16 Section 45-L empowers RBI to call for information and to
give directions. It reads as follows:-
“45L. Power of Bank to call for information from financial
institutions and to give directions.—(1) If the Bank is satisfied
for the purpose of enabling it to regulate the credit system of the
country to its advantage it is necessary so to do, it may—
(a) require financial institutions either generally or any
group of financial institutions or financial institution in
particular, to furnish to the Bank in such form, at such
intervals and within such time, such statements,
information or particulars relating to the business of such
financial institutions or institution, as may be specified
by the Bank by general or special order;
(b) give to such institutions either generally or to any such
institution in particular, directions relating to the conduct
of business by them or by it as financial institutions or
institution.
(2) Without prejudice to the generality of the power vested
in the Bank under clause (a) of sub-section (1), the state ments,
information or particulars to be furnished by a financial institution
may relate to all or any of the following matters, namely, the paid-
up capital, reserves or other liabilities, the investments whether in
Government securities or otherwise, the persons to whom, and
the purposes and periods for which, finance is provided and the
terms and conditions, including the rates of interest, on which it is
provided.
1035
(3) In issuing directions to any financial institution under
clause (b) of sub-section (1), the Bank shall have due regard to
the conditions in which, and the objects for which, the institution
has been established, its statutory responsibilities, if any, and the
effect the business of such financial institution is likely to have on
trends in the money and capital markets.”
6.17 One of the most important provisions contained in Chapter
III-B is Section 45-Q. It reads as follows:-
“45Q. Chapter IIIB to override other Laws.—The provisions
of this Chapter shall have effect notwithstanding a nything
inconsistent therewith contained in any other law for the time
being in force or any instrument having effect by virtue of a ny
such law.”
6.18 It is too long in the day to dispute the fact that the directions
issued by RBI are statutory in character and binding on all NBFCs. It is
so, in respect of the directions issued both under the RBI Act and under
the Banking Regulation Act.
6.19 Once it is found that Chapter III-B of the RBI Act provides
a supervisory role for the RBI to oversee the functioning of NBFCs,
from the time of their birth (by way of registration) till the time of
their commercial death (by way of winding up), all activities of
NBFCs automatically come under the scanner of RBI. As a
consequence, the single aspect of taking care of the i nterest of the
borrowers which is sought to be achieved by the State enactments
gets subsumed in the provisions of Chapter III-B.
Regulations/Master Circulars/Directions issued by R BI
from time to time
6.20 Apart from the provisions of Chapter III-B, the regulations,
directions and Master Circulars issued by RBI from time to time, also
bind the NBFCs. There is a long list of Regulations/directions or Master
Circulars issued by RBI from 1977 onwards, which shows that e ven
before the 1997 Amendment to the RBI Act, some kind of control was
exercised by RBI over NBFCs. After the 1997 amendment, every aspect
of the business of NBFCs, including loans, is covered by Master Circulars/
Directions issued by RBI. In other words, the only field occupied by the
NEDUMPILLI FINANCE COMPANY LIMITED v. STATE OF
KERALA & ORS. [V. RAMASUBRAMANIAN, J.]
State enactments stand appropriated by the Master Circulars/Directions.
For demonstrating that even the subject of grant of loans is covered by
these Master Circulars/Directions, we present in the Tab le below, the
relevant circulars/directions.
1037NEDUMPILLI FINANCE COMPANY LIMITED v. STATE OF
KERALA & ORS. [V. RAMASUBRAMANIAN, J.]
Since the Regulations, Master Circulars and Directions issued by
RBI are binding on NBFCs, it is clear from the above that all aspects of
NBFCs are regulated by RBI and nothing is left untouched. However ,
there are certain categories of NBFCs, which may be exempt, by RBI
itself, in exercise of the power conferred by section 45-NC of th e Act,
from the application of the provisions of RBI Act. Let us also take note
of them now.
NBFCs Exempt from RBI Act
6.21 Section 45-NC of the RBI Act confers power upon the RBI
to declare by notification in the Official Gazette, that any or all of the
provisions of Chapter III-B shall not apply to a NBFC or any class of
NBFCs, either generally or for a specified period, sub ject to such
restrictions, limitations and conditions. In exercise of the power so
conferred, RBI has been issuing Master Directions from time to time. A
Master Direction issued on 25.08.2016, updated as on April 01, 2022
lists various categories of NBFCs exempt from the application of certain
1039
specified provisions of Chapter III-B. This is for the reason that some of
those exempted companies are regulated by other regulatory bodies.
For instance, Housing Finance Institutions are regulated by the National
Housing Bank; Merchant Banking companies, Venture Capital Fun d
Companies and the like are regulated by SEBI; Nidhi com panies and
mutual benefit companies are regulated by the Ministry of C orporate
affairs; Chit Fund companies are regulated by State Governments; and
Insurance Companies are regulated by IRDA. We are not concerned in
this case with the exempted companies, as the dispute on hand is confined
only to NBFCs registered under the RBI Act.
Is Chapter III-B a complete code?
7. To find out whether NBFCs registered under Chapter III-B of
the RBI Act and regulated by RBI could still be controlled by the State
enactments, because of the definition of the expression “money lender”,
we may first have to see whether Chapter III-B of the R BI Act is a
complete code or not. In Integrated Finance Company Limited vs.
Reserve Bank of India and Others 3, this Court held in para 47 of the
Report that “Chapter III-B of the RBI Act is a complete code in itself”.
7.1 We have seen that no NBFC can commence or carry on
business without obtaining the certificate of registration under the Act.
We have also seen that their continuation in business would depend upon
compliance with certain prescriptions found in the RBI Act as well as
the circulars/directions issued by RBI. The RBI has t he power to
supersede the Board of Directors of a NBFC and has power eve n to
wind up a NBFC. Thus the supervision and regulation of NBFCs, by the
RBI, is from the time of birth till the time of death. If a statutory
enactment which provides for such a type of control and supervision is
not a complete code in itself, we do not know what else coul d be a
complete code.
7.2 It was argued by Mr. Jaideep Gupta, learned senior couns el
appearing for the State of Kerala that the Reserve Bank of I ndia does
not control the rate of interest charged by NBFCs on the loans advanced
by them and that, therefore, a State enactment which seeks t o control
this aspect, namely, the rate of interest cannot be said to be repugnant.
According to the learned senior counsel, a statutory enactment w hich
does not deal with such an important issue as the r ate of interest
3 (2015) 13 SCC 772
NEDUMPILLI FINANCE COMPANY LIMITED v. STATE OF
KERALA & ORS. [V. RAMASUBRAMANIAN, J.]
chargeable on the loans, cannot be said to be a complete code in itself.
Reliance was placed by the learned senior counsel in this r egard on a
Constitution Bench decision of the Supreme Court in Deep Chand vs.
State of U.P 4.
7.3 But we do not agree. NBFCs which play a very vital role in
contributing to the financial health of the country and whose operations
are controlled by RBI with the avowed object of operating the currency
and credit system of the country to its advantage, have as their life line,
the income received by way of interest on the loans advanced. Therefore,
to say that RBI has no say in such a matter of vital interest, will strike at
the very root of the statutory control vested in RBI.
7.4 It may be true that many times RBI may not be controlling the
rate of interest charged by NBFCs on the loans advanced by them. It
does not mean that they have no power to step in. The power to determine
policy and issue directions, available under Section 45-JA can always be
invoked by RBI.
7.5 However, it was contended by Mr. Jaideep Gupta, learned
senior counsel for the State of Kerala that the power of the R BI under
Section 45-JA to determine the policy and give dire ctions, are
circumscribed by the words “relating to income recognition, accounting
standards, making of proper provision for bad and doubtful debts,
capital adequacy based on risk weights for assets a nd credit
conversion factors for off balance-sheet items and also r elating to
deployment of funds ”.
7.6 But we do not think that the words “relating to” appearing in
Section 45-JA(1) can be taken to restrict the power of RBI to give
directions, only in relation to the matters mentioned after t he words
“relating to”. The items mentioned after the words “ relating to” can
only be taken to be illustrative and not exhaustive. This is for the reason
that the power conferred by Section 45-JA is both for determining the
policy and for issuing directions.
7.7 Moreover, Sub-section (1) of Section 45-JA deals only with
the powers in general. This is made clear by the wo rds “without
prejudice to the generality of the powers vested unde r sub-Section
(1)”, appearing in sub-Section (2) of Section 45-JA.
4 AIR 1959 SC 648
1041
7.8 In any case, Section 45L(1)(b) confers power upon the R BI
to give directions to NBFCs “ relating to the conduct of business by
them”. Therefore, to say that RBI has no power in respect of s uch an
important aspect, may not be correct. The fact that RBI generally leaves
it to the market forces to determine the rate of intere st, without any
direct intervention, is not something that could be taken advantage of by
the State of Kerala to step in and prescribe the maximum rate of interest
chargeable by NBFCs on the loans advanced by them.
7.9 In Deep Chand (supra), the Constitution Bench of this Court
reiterated three important tests of inconsistency or repugnancy, namely,
(i) whether there is direct conflict between the two provisions; (ii) whether
Parliament intended to lay down an exhaustive Code in respect of the
subject matter replacing the Act of the State legislature; and (iii) whether
the law made by Parliament and the law made by State legislature occupy
the same field. Therefore, more than supporting the case of t he State,
Deep Chand (supra) actually supports the case of the NBFCs, as we
have found that Chapter III-B is a complete code in itself.
Doctrine of Eclipse, conflict and repugnancy
8. As indicated by the Constitution Bench in Deep Chand (supra),
a law may be valid when made, but a shadow may be cast on it by
supervening constitutional inconsistency or superven ing existing
statutory inconsistency. Assuming that the Kerala Act was valid in its
application to NBFCs when it was made, on the ground that the business
of money lending is traceable to Entry 30 of List II, it has to give way for
the parliamentary enactment. The moment the Parliament stepped in
to codify the law relating to registration and regulati on of NBFCs,
by inserting certain provisions in Chapter III-B of th e RBI Act, the
same would cast a shadow on the applicability (even assumi ng it is
applicable) of the provisions of the Kerala Act to NBFC s registered
under the RBI Act and regulated by RBI.
8.1 In Innoventive Industries Limited vs. ICICI Bank and Anr.5,
this Court was concerned with a professed conflict between the
Insolvency and Bankruptcy Code, 2016 and the Maharashtra Relief
Undertakings (Special Provisions) Act, 1958. After taking note of Section
107 of the Government of India Act, 1935 and Article 254 of the
Constitution, this Court analysed the Constitutions of other jurisdictions
5 (2018) 1 SCC 407
NEDUMPILLI FINANCE COMPANY LIMITED v. STATE OF
KERALA & ORS. [V. RAMASUBRAMANIAN, J.]
on the question of inconsistency of laws and summarized the propositions
of law as follows:
“51. The case law referred to above, therefore, yields the following
propositions :
51.1. Repugnancy under Article 254 arises only if bot h the
Parliamentary (or existing law) and the State law are referable to
List III in the Seventh Schedule to the Constitution of India.
51.2. In order to determine whether the Parliamentary (or existing
law) is referable to the Concurrent List and whether the Sta te
law is also referable to the Concurrent List, the doctrine of pith
and substance must be applied in order to find out as to where in
pith and substance the competing statutes as a whole fall. It is
only if both fall, as a whole, within the Concurrent List, that
repugnancy can be applied to determine as to whethe r one
particular statute or part thereof has to give way to the other.
51.3. The question is what is the subject-matter of the statutes in
question and not as to which entry in List III the competing statutes
are traceable, as the entries in List III are only fields of legislation;
also, the language of Article 254 speaks of repugnancy not merely
of a statute as a whole but also “any provision” thereof.
51.4. Since there is a presumption in favour of the validity of
statutes generally, the onus of showing that a statute is repugnant
to another has to be on the party attacking its validity. It must not
be forgotten that that every effort should be made to reconcil e
the competing statutes and construe them both so as to avoid
repugnancy—care should be taken to see whether the two do not
really operate in different fields qua different subject-matters.
51.5. Repugnancy must exist in fact and not depend upon a mere
possibility.
51.6. Repugnancy may be direct in the sense that th ere is
inconsistency in the actual terms of the competing statut es and
there is, therefore, a direct conflict between two or more provisions
of the competing statutes. In this sense, the inconsistency m ust
be clear and direct and be of such a nature as to bring the two
Acts or parts thereof into direct collision with each other, reaching
a situation where it is impossible to obey the one without disobeying
1043
the other. This happens when two enactments produce different
legal results when applied to the same facts.
51.7.Though there may be no direct conflict, a State law may be
inoperative because the Parliamentary law is intended to be a
complete, exhaustive or exclusive code. In such a case, the State
law is inconsistent and repugnant, even though obedience to both
laws is possible, because so long as the State law is referab le to
the same subject-matter as the Parliamentary law to any extent,
it must give way. One test of seeing whether the sub ject-matter
of the Parliamentary law is encroached upon is to find out whether
the Parliamentary statute has adopted a plan or scheme w hich
will be hindered and/or obstructed by giving effect to the State
law. It can then be said that the State law trenches upon the
Parliamentary statute. Negatively put, where Parlia mentary
legislation does not purport to be exhaustive or unqualified, but
itself permits or recognises other laws restricting or qualifying the
general provisions made in it, there can be said to be no repugnancy.
51.8. A conflict may arise when Parliamentary law and State law
seek to exercise their powers over the same subject-matter. This
need not be in the form of a direct conflict, where one says “do”
and the other says “don’t”. Laws under this head are repugnant
even if the rule of conduct prescribed by both laws is identica l.
The test that has been applied in such cases is based on the principle
on which the rule of implied repeal rests, namely, that if the subject-
matter of the State legislation or part thereof is identical with that
of the Parliamentary legislation, so that they cannot both stand
together, then the State legislation will be said to be repugnant to
the Parliamentary legislation. However, if the State legislation or
part thereof deals not with the matters which formed the subject-
matter of Parliamentary legislation but with other and dis tinct
matters though of a cognate and allied nature, ther e is no
repugnancy.
51.9. Repugnant legislation by the State is void only to the extent
of the repugnancy. In other words, only that portion of the State’s
statute which is found to be repugnant is to be declared void.
51.10.The only exception to the above is when it is found that a
State legislation is repugnant to Parliamentary legislati on or an
existing law if the case falls within Article 254(2), and Presidential
NEDUMPILLI FINANCE COMPANY LIMITED v. STATE OF
KERALA & ORS. [V. RAMASUBRAMANIAN, J.]
assent is received for State legislation, in which c ase State
legislation prevails over Parliamentary legislation or an existing
law within that State. Here again, the State law must give way to
any subsequent Parliamentary law which adds to, amends, varies
or repeals the law made by the Legislature of the State, by virtue
of the operation of Article 254(2) proviso.”
8.2 In Innoventive Industries Limited (supra), this Court
considered almost all earlier decisions starting from Zaverbhai Amaidas
vs. State of Bombay6; Tika Ramji vs. State of U.P.7, Deep Chand vs.
State of U.P and so on and so forth. In sum and substance, this Court
held that repugnancy under Article 254 would arise only if both the
Parliamentary law and the State law are referable to List-I II.
8.3 Once it is clear that the RBI Act is traceable only to the
Entries in List-I and the State enactments are traceable only to an Entry
in List-II, the question of repugnancy under Article 254 does not arise,
as has been held in Innoventive Industries Limited. But in cases of
this nature, Article 246(1) would squarely apply. Article 246(1) reads as
follows:-
“246.Subject-matter of laws made by Parliament and by the
Legislatures of States: -
(1) Notwithstanding anything in clauses (2) and (3), Parliament
has exclusive power to make laws with respect to any of the
matters enumerated in List I in the Seventh Schedule (in this
Constitution referred to as the “Union List”).”
8.4 In UCO Bank and Another vs. Dipak Debbarma and
Others8, a sale Notification issued under the Securitisation Act wa s
challenged on the ground that it constituted an infraction of Tripura Land
Revenue and Land Reforms Act, 1960. This Court found that the
Securitisation Act is traceable to Entry-45 of List-I and the Tripura Act
is traceable to Entries 18 and 45 of the State List. After referring to the
Constitution Bench decision in State of West Bengal and Others vs.
Committee for Protection of Democratic Rights, West B engal and
Others9 and other decisions, this Court held that the Securitisation Act,
6 AIR 1954 SC 752
7 AIR 1956 SC 676
8 (2017)2 SCC 585
9 (2010) 3 SCC 571
1045
being a Parliamentary legislation is the dominant legislation. To come to
the said conclusion, this Court referred to the non-obstante clause in
Article 246(1).
8.5 Many times, this Court has invoked the doctrine of eclipse, in
relation to pre-constitutional laws with reference to Article 13(1) of the
Constitution. But in later years, this doctrine came to be used even in
different contexts. For instance in Kailash Sonkar vs. Smt. Maya Devi10,
this Court invoked the doctrine of eclipse to hold that when a person is
converted to Christianity or other religion, the original cas te remains
under eclipse and that as soon as during his life time he is reconverted to
the original religion, the eclipse disappears and the caste automatically
revives.
Is the argument of Conflict, a mirage?
9. It was argued on behalf of the State that without pointing out
any area of conflict between the two enactments the NBFCs cannot
invoke either Article 246 or Article 254.
9.1 But the above argument has no substance. Once it is admitted
that the RBI Act is traceable to an entry in List-I, Article 246(1) comes
into play. In any case, there are also areas of conflict. The Kerala Act,
for instance, empowers the debtor under Section 8(1) to dep osit the
money due to money lender, into a Civil Court. Section 8(2) empowers
the Civil Court to pass orders recording full or part satisf action of the
loan.
9.2 But the jurisdiction of the Civil Court stands ousted by Section
34 of the Securitisation Act, 2002. By virtue of a notification bearing No.
S.O.856(E) dated 24th February, 2020, issued in exercise of the powers
conferred by Section 2(1)(m)(iv), the Central Government have specified
such NBFCs as defined in Section 45-I(f) of the RBI Act having assets
worth rupees one hundred crore and above to be entitled for enforcement
of security interest in secured debts of Rupees fifty lakhs and above.
This Notification was issued in supersession of the earlier notifications.
Therefore, it is clear that certain NBFCs are entitled to enforce security
interest without the intervention of the Civil Courts and the r emedy of
the borrower lies only before the Debt Recovery Tribunal. T his is one
major area of conflict, which can be readily pointed out.
10 (1984) 2 SCC 91
NEDUMPILLI FINANCE COMPANY LIMITED v. STATE OF
KERALA & ORS. [V. RAMASUBRAMANIAN, J.]
9.3 We have taken the above example only as a sample, for testing
the validity of the argument of the learned counsel for the State and we
find that the question of conflict does not go to the rescue of the State.
Overriding Effect
10. Section 45-Q which we have extracted elsewhere confers
overriding effect upon Chapter III-B, over other laws. There fore, the
States of Gujarat and Kerala cannot contend that the laws ma de by
them are in addition to the provisions of Chapter III-B.
10.1 Though it was contended by the learned counsel appearing
for the State of Gujarat that the Gujarat Act exempts NBFCs registered
under the RBI Act from seeking registration under the Gujarat Act, we
do not think that the same would go to the rescue of State o f Gujarat.
Under Section 5(2) of the Gujarat Act, NBFCs registere d under the
RBI Act are deemed to have been registered under the Gujar at Act.
Therefore, all other provisions of the Gujarat Act are sought to be applied
to NBFCs operating in the State of Gujarat. The other provisions of the
Gujarat Act include the (i) power of search and seizure; (ii) requirement
to maintain certain books and registers and to furnish statem ents; and
(iii) the mandate not to dispose of any article taken from a debtor as a
pawn, pledge or security, before a period of two years f rom the date
stipulated for final payment, etc. The Gujarat Act also emp owers the
Civil Court under Section 30 to reopen certain transactions and to limit
the interest recoverable. Section 32 of the Gujarat Act empowers the
borrower to deposit the money before a Civil Court and the civil Court to
assume jurisdiction of the adjudication of the dispute.
10.2 Interestingly, Gujarat Act, 2011 tacitly recog nizes the
regulation of NBFCs under the RBI Act. Yet the State got the assent of
only the Governor.
Conclusion
11. In view of the above, we are of the considered opinion tha t
the Kerala Act and the Gujarat Act will have no application to NBFCs
registered under the RBI Act and regulated by RBI. Therefore , all the
appeals filed by NBFCs against the judgment of the Kerala High Court
are allowed. Likewise the appeals filed by the State of Gujar at against
the judgment of the Gujarat high Court are dismissed.
11.1 As a consequence, Transfer Petition (Crl.) No.359 of 2015,
shall also stand allowed and the First Information Report filed a gainst
1047
the officer of the NBFC for violation of the provisions of the Kerala Act
shall stand quashed.
11.2 An application for impleadment has been filed by one Mr .
Davidson Dharmaraj in Civil Appeal No.5238 of 2012, claiming that he
has lodged a criminal complaint against the appellant and its officers in
the Civil Appeal, namely M/s. Muthoot Finance Private Limi ted, for
alleged offences under the Indian Penal Code, but relying upon the
provisions of the Tamil Nadu Pawn Brokers Act and the rules framed
there under and that any decision rendered in the appeals arising out of
the decisions of the Kerala and Gujarat High Courts may have an impact
on his criminal complaint. Though we have not examined the provisions
of the Tamil Nadu Pawn Brokers Act and the Tamil Nadu Money
Lenders Act, the principles of law laid down herein, would apply equally
to these State enactments also. Therefore, the application for impleadment
namely I.A. No.2 of 2015 is dismissed.
11.3 There will be no order as to costs.
Ankit Gyan Appeals disposed of.
(Assisted by : Tamana, LCRA)
NEDUMPILLI FINANCE COMPANY LIMITED v. STATE OF
KERALA & ORS. [V. RAMASUBRAMANIAN, J.]