By Tarun Agarwal, Student at Institute of Law, Nirma University
The Additional Tier 1 (AT 1) Bondholders of Yes Bank have filed a case in the Madras High Court challenging the legal validity of the Master Circular issued by the RBI. The circular allowed to write down the AT 1 bonds worth Rs 8,415 crore completely after a scheme of reconstruction of Yes bank was approved by the government and the RBI.
The bondholders have challenged the circular on various grounds that it is contrary to the provision of Companies Act 2013, the Indian Contract 1872, Banking Regulation Act 1949, and Transfer of Property Act 1882 and violates the Fundamental rights given under the Constitution of India. On 30th September 2020, the division bench of the Madras High Court set aside the plea of investors and upheld the validity of the circular issued by the RBI.
Capital Adequacy is of paramount importance to the stability of the financial system, both globally and India. In order to promote the same, the Basel Accord was set up by the Basel Committee on Bank Supervision (BCBS). It has provided three series recommendations on the banking regulations that are Basel I, Basel II and Basel III.
Basel III norms (also titled as Basel III: A Global Regulatory Framework for Resilient Banks and Banking System or Basel III Capital Regulations) were set out after the global financial crisis in 2008, to strengthen the bank balance sheets. Basel III Capital Regulations lay out the elements of capital (commonly referred as regulatory capital) for capital adequacy purpose and specify the different types of equity, preferred capital or debt instrument that would be counted in what manner for such purpose. Regulatory Capital are broadly:
The RBI being one of the institutional representatives on the BCBS has implemented BASEL III norms in April 2013 in form of Master Circular to ensure that the financial institutions have enough capital to absorb the unexpected losses. Master Circular consists of consolidated guidelines which were published in 2015.
|CRAR also known as Capital Adequacy Ratio (CAR) is the ratio of a bank’s capital to its risk. The ratio is used to prevent commercial banks from taking excess leverage and becoming insolvent in the process.|
Master Circular stipulates that the banks are required to maintain a minimum Pillar 1 of Capital to Risk – weighted Asset Ratio (CRAR) of 9% on an ongoing basis.
|PDIs are debt funds with no maturity date. The issuer keeps paying interest forever till the company dissolves or till the investor holds the bond.|
To achieve the expected CRAR, the circular allows the bank to issue Going-concern capital which has the capacity to absorb the losses without triggering the bankruptcy. In case of going concern capital, the first instrument that needs to be issued by the bank is AT 1 capital rather than CET 1 capital. AT 1 capital is direct, unsecured and subordinated debt in the issuing bank and it rank below to the claim of all creditors and above the common equity with no fixed repayment. The instruments that qualify as AT 1 capital are Perpetual Non-Cumulative Preference Shares (PCNPS) and Perpetual Debt Instrument (PDI).
On 23rd December 2016, Yes Bank Limited issued AT 1 (PDI) bonds for an aggregate sum of Rs 3,000 crore and again on 18th October 2017, for a sum of Rs 5,415 crore.
The important criteria for inclusion of PDI as AT 1 capital are:
- Perpetual duration i.e. without a put option
- Subordinate status to deposit or ordinary form of debt
- Call option after a minimum of 5 years, subjected to stipulated conditions, including the prior approval of RBI
- Loss absorbency at pre-specified trigger point or at point of Non-availability (PONV) either by conversion to common equity or partial or complete write down.
|The PONV Trigger event is the earlier of: I) a decision that a permanent write-off without which the Bank would become non-viable, as determined by RBI; and II) the decision to make a public sector injection of capital without which bank would have become non-viable as determined by authority.|
These bonds were issued as per the Master Circular to fulfil the obligations under the Basel Committee Charter. The petitioners have invested in AT 1 bonds that were issued in 2017 through the secondary market at higher consideration than the face value of the bonds.
On 5th March 2020, RBI imposed the moratorium owing to the sharp rise in NPA resulting in the financial inability of Yes Bank to raise the capital. Thereafter a “Yes Bank Limited Reconstruction Scheme 2020” was approved by the Central Government dated March 13, 2020, and was placed in public. The administrator of Yes Bank communicated to NSE and BSE on 14th March 2020, that as per Basel III regulations, section 45 of Banking Regulation Act 1949 (which was invoked by the RBI) and notified scheme “the bank is deemed to be non-viable or approaching non-viability and accordingly triggers for a write-down of certain Basel III – AT 1 bond issued by bank has been triggered. Such bonds need to be written down permanently before any reconstruction is undertaken.”
After this several investors filed a case in the SC but SC declined to accept the petition by stating that the issue can be raised before the concerned high court. The petitioners have filed a case in the Madras High Court pursuant to the said communication dated 14th March 2020.
Issues before the Court
- Whether the Master Circular has been issued without authority or jurisdiction inasmuch as Basel III Capital Regulations have not been enacted as law as per Article 253 of Constitution?
- Whether the AT1 bonds constitute capital or debt instruments?
- Whether the AT1 Bonds violates Companies Act 2013, Contract Act or any other legislation?
Issue 01 – The division bench of Madras High Court while appreciating the arguments from the petitioner and the defendant held for the first issue that: Basel III Capital Regulations do not qualify as treaty or convention as defined under Article 2(1) (a) of the Vienna Convention, rather it is a report prepared by BCBS under the Basel Charter. Therefore, Master Circular is not a measure to implement international law. The court further stated that the validity of the Master Circular should be tested under Indian law and not with respect to Article 253 of Constitution of India.
The court also observed that section 21 and section 35-A of the Banking Regulation Act 1949, empowers the RBI to issue direction in the form of Master Circular to enhance the capital adequacy of banks by raising the CRAR and ensuring that it is maintained at a level consistent with the financial stability of the bank. Therefore, it cannot be stated that the Master Circular is without jurisdiction.
Issue 02 – For the second issue, the court while determining the nature and character of AT 1 bonds held that AT 1 bonds were reflected as borrowing and not share capital, in the balance sheet of the Yes Bank and this aligns with Master Circular. Moreover, if AT 1 bonds qualify as share capital then they have to fall within the scope of Section 43 of Companies Act 2013 or section 12 of BR Act which provides for only two forms of share capital that are equity and preference. Further, the permanent write-down would have to comply with the reduction of share capital requirements under Section 66 of Companies Act 2013. The court viewed that as per the reason aforesaid, AT 1 (PDI) bonds constitute regulatory capital but not share capital for purposes of CA 2013.
Additionally, the court stated that AT 1 bonds do not constitute debenture as defined in 2(30) and section 71 of Companies Act, 2013. Rather they are a form of borrowing wherein the only enforceable debt obligation is the payment of the coupon rate provided it is not written down. The court accepted that AT 1 bonds are not required to satisfy the requirements of CA 2013 to the extent of inconsistency with the Master Circular.
Issue 3 – For the last issue, the court held that differential treatment meted out to AT 1 bonds with other forms of debt is a reasonable classification with a strong rational nexus to the object of the Master Circular. Thus, Article 14, 19 and 21 of the Constitution are not violated.
The court also rejected the argument that it violates section 23 of Indian Contract Act by mentioning that AT 1 bond play a vital role in ensuring that banks satisfy CRAR requirements so that public interest could sustain in the financial institutions. For Section 25 of the Contract Act, the court stated that AT 1 bonds are perpetual debt instruments that provide for a coupon rate. According to the facts of the case, the predecessors-in-title of the Petitioners received interest and the Petitioners may have received interest at least on 18th October 2018.
The court concluded that Master Circular does not violate any legislation and further RBI was authorized to issue the Master Circular in terms of the Banking Regulation Act 1949.
The rapid rise in NPA and subsequent fall of capital are the major concern for all kinds of banking institutions in India. To deal with the problem to some extent the RBI implements certain measures in the form of Master Circular to bring uniformity in the banking structure and to protect the interest of the public. Therefore, the aforesaid observation of the court is the fair amount of reasoning given to uphold the validity of the circular.
The only concern of the present case is that the court failed to take cognizance of the manner in which these bonds were sold to the investors. The investor alleged that some of these bonds were sold with no mention of the risk involved and in other cases under the garb of Super FDs, which offer safety and relatively higher return compared with regular FDs, by Yes Bank executives. The misselling of the instrument is much problematic when the retail investor like petitioner gets lured by the high interest and there are high chances that these investors would not read the information memorandum.
The court could have warned and given direction to RBI regarding the handling of such risky instruments but the bench accepted the arguments given by RBI that ‘bondholders agreed to the conditions specified in Information Memorandum’ and ‘higher return comes with higher risk’.
The misselling of the instruments is not new in India wherein the AT 1 bonds is another example in which the retail investors are being targeted by the sellers. The RBI needs to clearly differentiate between individuals and high net worth individuals to whom such risky instruments can be issued by banks. The RBI needs to think about road rules for retail investors differently as compared to road rules for institutions. The regulator should also frame guidelines in which it is the sheer responsibility of the seller to explain the risky points to the borrowers to avoid market failure. Another thing RBI could do to protect the interest of the individuals is by colour coding the instruments. For eg. AT1 bonds being high-risk instruments can be coded as red, FDs as low-risk instruments can be coded as green. Lastly, it is the responsibility of RBI to protect investors through banking channels from being mis-sold unsuitable products.
 To calculate CRAR, the eligible total capital would consist of CET 1 and AT1 capital and this would constitute numerator and denominator would consist of Credit Risk Weighted Asset (RWA) + Market Risk RWA + Operational Risk RWA.
 The write-down of any CET 1 capital shall not be required before a write-down of any AT 1 capital instrument.
 PTI, SC refuses to entertain plea against writing down of AT-1 bonds by Yes Bank, FINANCIAL EXPRESS (Dec. 28, 2020, 10:00 AM), https://www.financialexpress.com/industry/banking-finance/sc-refuses-to-entertain-plea-against-writing-down-of-at-1-bonds-by-yes-bank/2107470/.
 Annexure 4, RBI Master Circular (Dec. 28, 2020, 10:00 AM), https://rbidocs.rbi.org.in/rdocs/notification/PDFs/58BS09C403D06BC14726AB61783180628D39.PDF