- Banking companies play a leading role in stimulating and stabilizing the growth of an economy of a country, hence failure of banks have a great impact than the failure of firms in other sectors. As a result, banks are subject to more intense regulations than in any other sectors and the state is more pro-active in intervening to prevent bank failures. According to Fidler, when a customer deposits money in a bank account, he does not deposit the money; but he lends it to the banker. The relationship between the banker and customer is therefore the contractual relationship of debtor and creditor.
- A bank regulation can be said to have a single goal; the prevention of bank failure. Banking business is regulated in many ways. Regulation through licensing, prescribing the competency of management, determining capital adequacy, restrictions on the nature of business and various other matters which aim to ensure that the interest of the depositors are protected and banks will ensure financial stability. Despite such regulatory control there are clear evidences of bank failure in India.
- Mergers and Acquisitions are a significant process through which financial service industries accomplish the preferred economic growth. Motive for merger in the banking sector is for cost reduction, rationalization of branch networks, investment in new technologies and process, income increase, risk reduction, diversification, and strengthening of the strategic position. In India, originally the Banking Regulation Act, 1949 did not contain any provisions for mergers and acquisition among banking companies. Banking laws (Amendment) Act, 1950 for the first time recognized the right to voluntary amalgamation of banking companies by inserting Section 44A to the Banking Regulation Act, 1949. It conferred power to the Reserve Bank of India to sanction the scheme of amalgamation between banking companies. Mergers and acquisitions governing the banks are not uniform in nature. In some cases, RBI needs to sanction scheme, whereas in the compulsory merger under Section 45 of Banking Regulations Act, 1949, RBI needs to prepare the scheme and the same will be presented before the Central Government for its sanction. Amalgamations of two or more corporations either in the public interest or in order to secure proper management of any of the corporation is recognized by our Constitution. As far as the merger of private banking Companies in India, the Banking Regulation Act plays an important role and it protects the rights guaranteed under Art.14 and 19 of the constitution. Constitutional validity of the Banking Regulation Act was challenged in Shivkumar Tulsian and others v. Union of Indiawherein the Bombay High court held that section 45 is in conformity with the constitutional provisions of Art 19 and 14. Until 1950 the amalgamation of banking companies were governed by the Companies Act, 1913. Section 44A of the Banking Regulation Act lays down the procedure for the amalgamation of private sector banking companies. The scheme containing the terms of amalgamation is to be approved by a majority in number representing two thirds in value of the shareholders in the general meeting. A dissenting shareholder is entitled to receive the value of his shares as may be determined by the Reserve Bank of India. The Reserve bank has to sanction the scheme after the shareholders’ approval. On such sanction, the assets and liabilities of the bank are transferred to the transferee company. The major distinction between Merger under the Companies Act and Banking Regulation Act is that the scheme of amalgamation of companies under the companies Act has to be sanctioned by the tribunal. Whereas Under the Banking Regulation Act, voluntary amalgamation of bank mergers has to be approved only by the Reserve bank of India and it is the sole authority in all matters relating to the banking companies. As stated by the Supreme Court in Joseph Kuruvila Vellikunnel v. Reserve Bank of India, that the banking companies cannot be compared with the ordinary companies as in a banking company, depositor’s interest is paramount and in India RBI is an expert body in determining and protecting the best interest of banking companies.
- BANK MERGERS: REGULATORY REGIME IN INDIA
- Regulatory frame work for Bank mergers in India: The commercial banks as a group form the preponderant part of the organized banking system and fall into four classes based on their method of establishment and pattern of ownership. These are banks in the public sector, banks in the private sector, foreign banks and regional rural banks. The mergers and acquisitions regulations in the Indian Banking sector can be broadly placed as per the nature of the entities involved and of the mergers, into several categories, viz., (a) Voluntary amalgamation between private sector banks (b) Compulsory amalgamation of a private sector banks (c ) Acquisition of banking companies by the central government in Part IIC of the Banking Regulation Act,1949 (d) Merger between public sector banks (e) Merger of a Non –Banking Financial Company(NBFC) with a private sector bank (f) Merger among co-operative banks (g) Merger between Regional Rural Banks (h) Mergers of State Bank of India and its associates. There are four categories restructuring of Banking Companies under the Banking Regulation Act,1949 (a) Voluntary Amalgamation(b) Compulsory Amalgamation (c) scheme of arrangement between banking company and its creditors (d) Acquisition of banking companies by the Central Government under Part-IIC of the Banking Regulation Act,1949.
- Jurisprudential basis for the recognition of special provisions for the restructuring of banking Companies under the Banking Regulation Act,1949: Prior to 1960, the amalgamation of banks could be only in terms of section 44A of the Banking Regulation Act, 1949, on a voluntary basis. In order to accelerate the process of integration, additional statutory and regulatory powers for the reconstruction or compulsory amalgamation of banks were inserted by the amendment of the Act, 1960. Banking Companies (Second) Amendment Bill,1960 proposed for the introduction of Section 45 and Section 44A (7) to the Banking Regulation Act,1949.
- Voluntary Amalgamation of Banking Companies: Merger between two private sector banking companies is governed by Section 44A of the Banking Regulation Act, 1949. In this regard the Madras High court in Bank of Madura, Shareholders Welfare Association v Governor, Reserve Bank of India and Others, has held that the provisions of the Banking Regulation Act constitute a complete code in themselves on the amalgamation of banking companies. S. 44A of the Banking Regulation Act, 1949 provides that no banking company shall be amalgamated with another banking company, notwithstanding anything contained in any law, unless the scheme for amalgamation has been placed in draft before the shareholders of both companies. Approval of the scheme is required by means of a resolution of two-thirds of the majority of the shareholders present in either company , in a meeting specifically called for the purpose of amalgamation. Once this scheme has been approved in due compliance with the requirements under Section 44A (2), it should be submitted to the Reserve Bank of India for sanction. Once sanctioned by the Reserve Bank, it is binding on all the shareholders and the companies. However, Section 44 A (3) protects the rights of the dissenting shareholders who have either voted against the scheme or have given notice of such dissent in writing. Reserve Bank of India determines the value of shares to be paid to dissenting shareholders. Section 44 A of the Banking Regulation Act, 1949 shows that it departs from the provisions of the Companies Act, 1956 in primarily two aspects, namely (1) the High court is not given the power to grant its approval to the scheme for merger of banking companies instead the Reserve Bank , which is the central bank of the country and supreme regulatory authority in banking supervision and ( 2) The Reserve Bank of India is also empowered to determine the market value of shares of the shareholders who has voted against the scheme of amalgamation . The banking Regulation Act enables the dissenting shareholder to obtain from the banking company concerned the market value of his shares as determined by the Reserve Bank of India under S. 44A (3 ). In Bank of Madura Shareholders Welfare Association v. Governor, Reserve Bank of India, it was held that if the shareholders were aggrieved that the market value of shares of both the companies had not been determined properly, it was always open to it to get the market value evaluated by the Reserve Bank of India and that the court would not go into the question whether the share exchange ratio adopted in the scheme was fair or not.
- Scope of S. 44-A of the Banking Regulation Act, 1949: The provision of Section 44A of the Banking Regulation Act, 1949 comes into effect only if the transferor and transferee are both banking companies within the meaning of The Banking Regulation Act, 1949. Since Nationalized banks, Co-operative banks, Regional Rural Banks and State Banks of India are governed by the separate statutes, the merger provisions of the Banking Regulation Act and the Companies Act, 1956 is not applicable to it. IndusInd Enterprises and Finance Ltd v. IndusInd Bank Ltd., the issue was whether prior permission of Reserve Bank of India is necessary for amalgamation of a scheme under the Banking Regulation Act, 1949. The case concerned with the merger between a banking company and a non –banking Company. Bombay high court held that no prior sanction of RBI is necessary for the amalgamation of non-banking finance company with banking company.
- Share valuation during merger under Section 44A: The difficulty in arriving at share valuation was discussed in detail in In Re: ICICI Ltd, where a scheme was prepared for the amalgamation between ICICI Capital Services Ltd. and ICICI Personal Financial Services Ltd. with ICICI Bank Ltd. The petitioner and two other companies are the transferor companies and they are to be amalgamated with the ICICI Bank Ltd., the transferee company. Petitioners two main objection were. 1) The approval of the RBI was not sought for a scheme of amalgamation as the transferee was a banking company 2) Valuation of shares was not arrived at properly. To the first question court held that the objection has no substance, in as much as, the provisions of section 44A come into play only in case the transferee and transferor, both the companies are Banking Companies. In the said case, though the transferee company is a banking company, none of the transferor companies are banking companies. The objection did not sustain. While deciding that case, the court referred Piramal Spg & Wvg. Mills Ltd, and cited what was there as that the valuation of shares is a technical matter which requires considerable skill and expertise. There are bound to be differences of opinion as to what the correct value of the shares of any given company is, simply because it is possible to value the shares in a manner different from the one which has been adopted in a given case, it cannot be said that the valuation which has been agreed upon is unfair. Court thus held that what is important is that all shareholders of both companies have unanimously accepted the valuation which has been arrived at by the auditors of the transferor and transferee companies, under these circumstances, the application cannot be rejected on the ground that the valuation of shares is unfair to the shareholders of the transferor-company.
- PROCEDURE OF COMPULSORY AMALGAMATION OF PRIVATE SECTOR BANKS:
- Under section 45 of the Banking Regulation Act, RBI has the power to force the merger of a weaker bank with a stronger Bank. The scheme is in public interest or in the interest of the depositors of the distress bank or to secure proper management of a banking company, or in the interest of the banking system. In case of a banking company in financial distress, which has been placed under the order of moratorium, under sec45 (2) of the Act, on an application made by the Reserve bank to the central government, the Reserve bank can, for the foregoing reasons, frame a scheme of amalgamation for transferring the assets and liabilities of such distressed bank to a much better and stronger Bank. Such a scheme framed by the RBI is required to be sent to the banking companies concerned, for their suggestions or objections, including those from the depositors, shareholders and others. After considering the same, RBI sends the final scheme of amalgamation to the central government for sanction and notification in the official gazette. The notification issued for compulsory amalgamation also under section 45 of the Act is also required to be placed before the two houses of parliament. Most of the amalgamations of the private sector banks in the post-nationalization era were induced by the Reserve Bank in the larger public interest, under Section 45 of the Act. In all these cases, the weak or financially distressed banks were amalgamated with the healthy public sector banks. The over-riding principles governing the consideration of the amalgamation proposals were: (a) protection of the depositors’ interest; (b) expeditious resolution; and (c) avoidance of regulatory forbearance.
- Judicial Review under Section 45: Scope of Judicial Review under section 45 of the banking Regulation was discussed in Davis Kuriape v. Union of India. wherein Court held that when a scheme is framed under Section 45 for amalgamation, judicial review thereof is permissible only to a very narrow extent. Particularly when a dispute or difference arising with regard to the equivalence of experience has been decided by the Reserve Bank in exercise of its powers under the second proviso to Section 45(5)(i), the High Court in writ jurisdiction cannot sit in appeal over such Judgment. It can only interfere in extreme cases of arbitrariness or unreasonableness. As to the criteria adopted for judging the equivalence of experience in two different banks which are being amalgamated, the Reserve Bank being an expert body in banking operations would the best judge. The High Court is neither equipped, nor capable of handling such a delicate task which requires expertise and deep knowledge of banking operations.
- Acquisition of Banking Companies by the Central Government under Part IIC of the Banking Regulation Act, 1949: Part-II C of the Banking Regulation Act, 1949 deal with the acquisition of the undertakings of banking companies by the Central government. Part IIC of the Banking Regulation Act was added at a time, when government decided to acquire the control of privately operated banking companies. It was in the year 1968 the Banking companies (Acquisition and transfer of undertaking) ordinance was issued and which became the Bank Nationalization Act in the year 1969. It is to be noted that for the government to exercise the power to acquire the private banking companies Part -IIC was added. Section 36AE does not confer suo-moto power to the Central government to acquire the business of a banking company. A report by RBI is essential and RBI is entitled to submit the report only if the banking company has failed to conform to its directions under section 21 or under Section 35A or if it was managed in a manner detrimental to the interest of its depositors.
- Restrictions on Acquisition of shares or voting rights in Banking Companies: Banking Laws (Amendment) Act, 2012 inserted section 12B to the Banking Regulation Act, 1949. It imposes cap on acquisition of shares or voting rights in the banking companies. If an individual or company acquires more than five percentage of the total paid up share capital or voting rights, without the permission of the central government, it would be detrimental to the interest of the banking company and in turn prejudice the public interest. Section 3 (2D) of the Banking companies (Acquisition and Transfer of Undertakings) Act, 1970, states that the ―shares of every corresponding new bank not held by central government shall be freely transferable. A proviso to the section 3(2D) states that if at any time an individual or company shall not hold more than twenty percent of the total paid up share capital of the company.
- Amalgamation of NBFCs with Banking Companies: Chapter –III B of the Reserve Bank of India Act, 1934 confers powers to the Reserve bank to regulate the Non- banking companies and financial institution ‘s deposit taking business. In addition to the same, there are number of guidelines issued by RBI to regulate the working of Non-Banking Financial Companies. The latest among the same is the Revised Regulatory Guidelines for NBFCs issued in Nov 10, 2014. In India, merger between banks and non-banking companies are sanctioned by High court under Ss. 232-234 of the Companies Act, 2013. There is no provision in the Banking Regulation Act that states that the banks need to get prior approval of RBI before approaching the court. Reserve bank of India has issued guide line and directions to be followed by banking companies in case of merger or acquisition between a bank and non-banking financial institutions. RBI direction on Acquisition of NBFCs states that Prior written approval of the Reserve Bank would also be required before approaching the Court or Tribunal under Section 391-394 of the Companies Act, 1956 or Section 230-233 of Companies Act, 2013 seeking order for mergers or amalgamations with other companies or NBFCs.
- Amalgamation of Public sector Banks: In the case of public sector banks, i.e., nationalized banks, the statutory frame work differs wherein the provisions of the Banking Regulation Act do not apply. The amalgamation of public sector bank is governed by section 9(1)(c) of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 & 1980, which is known as the Bank Nationalization Act. It authorizes the central government to prepare a scheme of amalgamation in consultation with RBI for the transfer of one bank to another corresponding new bank. The scheme framed under there will be placed before both the houses of parliament for approval.
- Merger of co-operative banks: Law and Procedure: Most of the States in India have enacted Co-operative Societies Act and it deals with provisions governing merger. Registrar of the co-operative societies supervises the merger scheme of co-operative banks. Even though mergers/amalgamations of Co-operative banks come within the purview of concerned State Government, prior approval from the Reserve Bank is required for obtaining No Objection Certificate. Reserve bank of India has issued two guidelines on the issue of merger to the Co-operative banks in the year 2005 and 2009. RBI ‘s 2005 guideline allow co-operative banks to merge with any other co-operative banks or banks registered under the Multi-state co-operative societies Act. It also states the procedures of such merger as An application for merger giving the proposed scheme will have to be submitted by the banks concerned to the Registrar of Cooperative Societies/Central Registrar of Cooperative Societies. The acquirer bank will also forward a copy of the scheme to the Reserve Bank along with the draft scheme, valuation report and other information relevant for consideration of the scheme of merger. the Reserve Bank issued another set of guidelines in January 2009 for merger/acquisition of UCBs having negative net worth as on End-March 2007. According to the new guidelines, the Reserve Bank would also consider scheme of amalgamation that provides for (i) payment to the depositors under section 16(2) of the Deposit Insurance and Credit Guarantee Corporation Act, 1961; (ii) financial contribution by the transferee bank; and (iii) sacrifice by large depositors. The process of merger/amalgamation requires the acquirer bank to submit the proposal along with some specified information to Registrar of Cooperative Societies/Central Registrar of Cooperative Societies and the Reserve Bank.
- RBI’S POLICY ON MERGER OF BANKING COMPANIES
- RBI as an expert body in regulating banks in India has been recognized by the courts through various judgments. In Peerless General Finance and Investment co. Ltd v. R.B.I ,the Supreme court held that the Reserve Bank plays an important role in the economy and financial affairs of the country and its main role is to regulate the banking industry .The supervisory functions of the RBI have helped a great deal in improving the standard of banking in India to develop on sound lines and to improve the methods of their operation. As mentioned before, the Banking Regulation Act, 1949 provide for two types of mergers Forced and Voluntary mergers. The Forced mergers are initiated by the RBI. The main objective is to protect the interest of the depositors of the weak bank. When a bank has shown symptoms of sickness such as huge NPAs and substantial erosion of net worth, RBI has intervened and merged the weak bank with the strong bank. The Procedures of both voluntary and compulsory mergers under the Banking Regulation Act is applicable only to the Private Sector Banking Companies. Merger of Public Sector banks viz., the Nationalized Banks and State Bank of India and its associates are being governed by the separate statutes. Consolidation of Regional Rural banks are governed by the Regional Rural Banks Act, 1976.
- Role of RBI in Compulsory Merger of Private Sector Banking Companies: Under S. 45 of the Banking Regulation Act, 1949, Reserve Bank of India is empowered to apply to the central Government for suspension of business by a banking company and to prepare a scheme of reconstruction or amalgamation. It provides for a compulsory amalgamation of a banking company with any other banking company, without the consent of creditors or members. A moratorium has to be declared by the central government prior to a scheme prepared by the RBI. During the period of Moratorium RBI for the interest of the various stakeholders and to secure proper management of the banking company may prepare a scheme of amalgamation or merger. The scheme prepared by the RBI shall be sent in draft to the banking company and also to the transferee bank and any other banking company concerned in the amalgamation. It further provides that the scheme so finalized by the Reserve Bank of India should be filed before the Central Government which may sanction the scheme with or without modifications.
- Jurisdiction of High Court in Bank Mergers: An interesting conflict arose before the High Court of Allahabad671 in this respect where the petitioner challenged an order of moratorium passed by the Central Government under section 45(2) of the Banking Regulation Act,1949, and a scheme prepared under Section 45(4) by RBI , on the grounds that there had previously been a High Court order under Section 153 of the Companies Act which sanctioned an arrangement by the shareholders and creditors of the bank for the continuance of the bank and satisfaction of the liabilities. The Contention of the appellant was that Section 45 cannot operate to nullify the orders passed by the high court under the jurisdiction conferred on it by the Companies Act. The court ruled that such reading went against the wording ofs.45 which expressly stated that it operated notwithstanding all other laws, and dismissed the appeal. Jurisdiction of the High Court and the power of judicial review with regard to RBI ‘s decision on schemes of amalgamation are severely limited in many aspects. The maintenance of a distinction between the jurisdiction of the High court and RBI under Banking Regulation Act, 1949 was clarified by the Supreme Court in the decision of Himalayan Bank Ltd v. Roshan Brothers . In this case it was held that a petition presented to the High court by a bank currently under a sanctioned scheme of amalgamation under Ss.45M and 45B of the Banking Regulation Act, could be entertained, as the High court retained jurisdiction to pass orders under section 392 read with section 391 of the Companies Act. In such cases, the court pointed out that the scheme of amalgamation was not a substitute or an alternative mode of liquidation, but rather was an alternative to liquidation itself.
- Bank Mergers: CCI v. RBI: Reserve Bank of India sought an exemption from CCI scrutiny of bank mergers through the Banking Laws (Amendment) Bill, 2011. Section 2A of the Bill provided that ―Notwithstanding anything contrary contained in Section 2 of the Banking Regulation Act, 1949, nothing contained in Competition Act, 2002, shall apply to any banking company, the State Bank of India, any subsidiary bank, any corresponding new bank or any regional rural bank or cooperative bank or multi-state cooperative bank in respect of the matters relating to amalgamation, merger, reconstruction, transfer, reconstitution or acquisition under respective Acts. Through this amendment, though the Reserve Bank of India (RBI) tried to remove the scrutiny of competition commission of India over bank mergers it could not succeed. Ministry of corporate affairs issued a notification on 8th January 2013, by which Central Government exempted mergers under section 45(forced mergers) of the Banking regulation Act, 1949 from the applicability of section 5 and 6 of the Competition Act, 2002 in public interest for a period of five years, but the voluntary mergers among the banking sector requires the prior approval of CCI.
The basic reason for the regulation of banking company is that it is
an institution wielding enormous responsibilities to the depositor ‘s money and
to mitigate the risk of failure of a banking institution is the responsibility
of the regulators. Bank mergers are no exception to it. Competition commission
is responsible for preventing abuse of dominance position of any company or
enterprise in the market so as to avoid the practices having adverse effect on
the competition. Competition commission ‘s role is not confined to any specific
sector of business or service in India, but it is the regulator of all kinds of
services and business where it is likely to have an effect on free competition
in the market. Thus, it is appropriate to confer power to the CCI to regulate
the bank mergers. CCI is concerned about the anti-competitive agreements and
abuse of dominant position in the market. It can look into all types of
business activities. Its power is not confined to any specific sector. However,
considering the numerous types of banking companies in India and RBI, being the
regulator of bank merger, it is suitable to appoint a committee of persons
under the chairmanship of RBI governor to study the competition law aspects of
bank mergers. The usual method of assessing the completion aspects of other
industries should not be applied to banking companies. Public interest and
depositor ‘s interest must be given an overriding effect over the market
requirement of competition in bank mergers. Further, it is appropriate to amend
the existing provisions of the bank mergers under the Banking Regulation
Act,1949, so as to include the specific powers of CCI in respect of bank
mergers of different nature of banking companies .Though, there are difference
in the nature of banking companies , total number of banks are in each sector
is few, hence the consolidation in banking business should be viewed very
seriously, as it may shrink the market for banking and the interest of the
customers of banking companies will be affected.
Contributed by – Kulin Dave
 P.J.M. Fidler, “Sheldon and Fidler’s Practice and Law of Banking” 11th Edition (1982)
 Section 22 of the Banking Regulation Act, 1949
 Section 10A-10D of the Banking Regulation Act, 1949
 Section 12 of the Banking Regulation Act, 1949
 Section 6 of the Banking Regulations Act, 1949
 Article 31A(c) of the Constitution Of India 1949
  68 Com Cas 720(Bom)
 AIR 1962 SC 1371
 Section 44A of the Banking Regulation Act, 1949
 Section 45 of the Banking Regulation Act, 1949
 Section 44B of the Banking Regulation Act,1949
 Section 36AE to 36AJ of the Banking Regulation Act,1949
 (2001)105 ComCas. 663(Mad).
 Section 44A( 2) of the Banking Regulations Act, 1949
 Section 44 A( 3 ) of the Banking Regulation Act, 1949
 (2001)105ComCas.663 (Mad)
 S. 5(c ) ― Banking company means any company which transacts the business of banking in India
 2003 ( 4 ) BomCR 482
 2002(4)Bom CR450
  50 Comp Cas.514
 Section 45(2) to (15)of the Banking Regulation Act,1949
 ILR 2002(1) Kerala 311
 The Maharashtra State (co-operative) societies Act, 1960 Section 17
 ( 1999) 2 SCC 343
 Section 45 of the Banking Regulation Act, 1949
 Section 44A of the Banking Regulation Act, 1949
 Chawla Bank Ltd v.Reserve Bank of India and Ors.,(1970) 40ComCas 15(All)
 (1961)31ComCas 33
 S.O.E (93)08012013 also in http://www.mca.gov.in/Ministry/pdf/Lok_sabha_ques_W_2013_1295.pdf