Reserve Bank of India Vs Samruddhi Saving and Investment (I)

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2025:CGHC:10089-DB

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Reserved on : 28.01.2025 Delivered on : 28 .02.2025

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COMA No. 1 of 2018

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1 - Reserve Bank Of India A Body Established Under Reserve Bank Of India Act, 1934, Through Its Authorized Signatory Shri Amit Kumar, Assistant General Manager, Department Of Non Banking Supervision, Reserve Bank Of India, Bhopal, Having Its Central Office At Central Office Building, Shaheed Bhagat Singh Road, Fort, Mumbai, 400001, And Regional Office At Hoshangabad Road, Bhopal, M. P., District : Bhopal, Madhya Pradesh

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... Appellant

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versus

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1 - Samruddhi Saving And Investment (I) Ltd. A Company Registered Under The Companies Act, 1956, And Having Registered Office At B 4/b5, Garchaz Complex, Jail Road, Raipur, Chhattisgarh, And Corporate Office At 181, Gotmare Complex, North Bazar Road, Gokulpeth, Nagpur, 10., District : Nagpur, Maharashtra

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---- Respondent

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For Appellant : Mr. B.P. Sharma and Mr. Pushp Kumar Gupta, Advocates For Respondent : Mr. Neelesh M. Gaidhane, Advocate

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DB: Hon'ble Smt. Justice Rajani Dubey and

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Shri Justice Narendra Kumar Vyas

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C.A.V. JUDGMENT

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Per, Narendra Kumar Vyas, Judge

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This appeal has been preferred by the appellant-Reserve Bank

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of India being aggrieved with the Order dated 24.11.2017 passed by Single Bench of this Court in Company Petition No. 2/2004 whereby the learned Single Judge has dismissed the petition on the count that petition for winding up under Section 45-MC of the Reserve Bank of India Act, 1934 read with provisions of the Banking Regulation Act,1956 is not maintainable.

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The brief facts as reflected from the record are that the appellant/RBI is a statutory regulating authority for Non-Banking Financial Companies (NBFCs) empowered under Chapter III B of the Act (as amended by the Reserve Bank of India (Amendment) Act, 1997) for issuing certificate of registration to NBFCs, prescribing Prudential Norms, issuing Directions, prohibiting NBFCs from accepting deposits, filing winding up petitions etc. The respondent Company has been carrying on the business of receiving deposits under different schemes and was classified by the RBI as a Residuary Non Banking Company (RNBC). The respondent Company has been issued a memo dated 19th December, 1992 advising the company of its classification as a RNBC is required to comply with the RBI directions contained in Residuary Non Banking Companies (Reserve Bank) Directions 1987. The respondent Company submitted an application dated 4th July, 1997 to the appellant for grant of registration certificate acknowledging itself to be a RNBC which was rejected by the appellant vide its order dated 28.10.1999 and 02.11.1998. It is further case of the appellant that the respondent's net owned fund was revealed negative in

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the inspection conducted in the month of November, 2001, as such it was disqualified to carry on the business of Non Banking Financial Company under Section 45-IA of the Act of 1934, consequently, prohibitory order dated 14.10.1998 was issued and a show cause notice was also issued as to why its application for grant of certificate of Registration be not rejected. The respondent submitted its reply. The respondent was inspected and it was found that respondent was still accepting deposits even after prohibitory order, therefore, the appellant rejected the application filed by the respondent.

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Being aggrieved, the respondent filed W.P. No. 5131 of 1998 before the High Court of Madhya Pradesh challenging the prohibitory order. The said petition was disposed off on 24.09.2001 with a direction to the appellant that the competent authority who has passed the prohibitory order shall examine the case and pass a reasoned order since various technical issues are involved in the case and till the matter is decided restrained the respondent from withdrawing any amount or accepting any deposits till the matter is decided by the higher forum with the appellant. Pursuant to the direction passed by the Hon’ble High Court of Madhya Pradesh, the Assistant General Manager, Reserve Bank of India, Bhopal passed a reasoned order on 10.12.2001 and held that the respondent is not entitled to accept money from the public. Thereafter, the appellant filed company petition before this Court for winding up of respondent company under Section 45-MC of the Act of 1934 read with the

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provisions of the Act of 1956 registered as Company Petition No. 2 of 2004 for appointment of Official Liquidator of the respondent to wind up as per the Companies Act, 1956.

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Learned Single Judge vide the impugned order found that though the appellant is under obligation to grant registration certificate under the provisions contained in Section 45-IA (1)(a) of the Act of 1934, but the respondent's application for grant of registration has been rejected by express order of the RBI on 28.10.1999. Thus, it would not satisfy the meaning of NonBanking Financial Company for the purpose of Section 45-MC of the Act of 1934. It has also been held that the company petition can be filed under Section 45-MC of the Act of 1934 only against a Non-Banking Financial Company, accordingly dismissed the petition. Being aggrieved with the same, the appellant has filed present Company Appeal.

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Learned counsel for the appellant would submit that the order passed by the learned single judge is bad in law and contrary to the facts, circumstances and records in holding that the application for winding up is not maintainable under Section 45 MC of the RBI Act. He would further submit that Section 45 MC is a special provisions for winding up and it cannot be replaced by the circular dated 02.07.2012 issued under Section 35 A of the Banking Regulation Act. Learned Single Judge has wrongly assumed that the appellant is not authorised to file the petition and erred in holding that the Petition under Section 45 MC of the Act can only be filed against a Non-Banking Financial Company

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and would pray for setting aside the impugned order dated 24.11.2017. To substantiate his submission he would refer to the judgments of Nagarjuna Finance Ltd. Vs. Reserve Bank of India Hyderabad and Others {2010 SCC OnLine AP 1355}, M/s Himachal Gramin Sanchalka Ltd. and Anr. vs. Reserve Bank of India & Others {Company Appeal No. 2 of 2003}, Prudential Capital Markets Ltd. vs. Reserve Bank of India {2003 SCC OnLine Cal 839}, Reserve Bank of India by its General Manager vs. Tulunadu Finance and Developments Ltd. {2017 SCC OnLine Kar 5476}, Official Liquidator of Piramal Financial Services Ltd. vs. Reserve Bank of India {(2004) 118 Comp Cas 27} and Predential Capital Markets Ltd. vs. Reserve Bank of India {2003 SCC OnLine Cal 311}.

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Learned counsel for the respondent would oppose the appeal mainly contending that the appeal is not maintainable as respondent is not a NBFC and also the properties of the respondent are attached under the Maharashtra Protection of Interest of depositors in financial establishments Act, 1999. He would further submit that as per Section 483 of the Companies Act, 1956 the present appeal is not maintainable. The companies Act provides winding up by Court under Chapter II of Part II. The Company Petition was filed in year 2004, as such, the Companies (Second Amendment ) Act, 2002 will be applicable which provides that scope of Section 483 is restricted to proceedings commenced before 2002 whereas the company petition for winding up has been filed on 27.01.2004. He would

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further submit that the respondent is not NBFC company as the appellant itself has rejected the application for registration as NBFC therefore, the proceeding under Section 45-MC of the RBI Act, 1934 is not maintainable. He would further submit that the respondent has not been issued any license under Section 22 of the Banking Regulation Act as such, it cannot be considered as a Banking Company, therefore, provisions of the Reserve Bank of India Act are not applicable. He would further submit that if according to the petitioner the activitity of respondent is detrimental to the public interest, application under the Companies Act can be filed for winding up of the financial company. He would further submit that the properties of the company have already been attached under the Maharashtra Protection of Interest of Depositors Act, 1999 in the year 2003 and the proceedings are going on, therefore, the purpose of petition has already been achieved. As such, no fruitful purpose will be achieved in the present proceeding and would pray for dismissal of the appeal. To substantiate his submission he would refer to the judgments of S. Bagavathi vs. State of Tamilnadu {(2007) 2 M.L.J. 526}, Gannesh Bank Kurundwad Ltd. vs. The Union of India and others {J.T. 2006 (8) S.C. 132}, K.K. Baskaran vs. State of Tamilnadu {(2011) 3 SCC 793}, M/s New Horizon Sugar Mills vs. Govt. of Pondicherry {Manu/SC/0796/2012, Nedumpilli Finance Company ltd. vs. State of Kerela and Others {2022 (7) SCC 394} and Central Bank of India vs. Ravindra and Others {Manu/SC/0663/2001}.

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We have heard learned counsel for the parties and perused the record with utmost satisfaction.

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The submission made by the learned counsel for the appellant is that learned Single Judge while dismissing the company petition has taken into consideration the circular dated 02.07.2012 issued by the Reserve Bank of India and recorded its finding that as per paragraph 1.1 which provides terminology used in the circular and has considered Sub-clause (a) and (b) and has held that since the respondent is not a registered NBFC therefore, the company petition for winding up is not maintainable is misconceived and deserves to be rejected by this Court as the Learned Single Judge has only referred the circular but has not given any finding on the issue whether in view of circular dated 02.07.2012, the respondent company cannot be held to be NBFC or not. But the learned Single Judge has taken into consideration the provisions of the Reserve Bank Act and the Banking Regulation Act, 1949. Thus, the foundation of submission made by the learned counsel has lost its significance whether winding up petition is maintainable or not. Now this Court is examining the provisions of the Act to ascertain whether a Financial Institution whose registration has already been declined by the RBI can be considered as NBFC to fall within the jurisdiction of the RBI for the purpose of winding up. To decide the issue raised in the appeal, the provisions necessary for adjudication of this case are extracted below:-

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The Reserve Bank of India Act, 1934

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45A. Definitions .—In this Chapter, unless the context otherwise requires,—(a) “banking company” means a banking company as defined in section 5 of the Banking Regulation Act, 1949 and includes the State Bank of India, any subsidiary bank as defined in the State Bank of India (Subsidiary Banks) Act, 1959 (38 of 1959), any corresponding newbank constituted by section 3 of the Banking Companies (Acquisition and Transfer of Undertakings)Act, 1970 (5 of 1970), and any other financial institution notified by the Central Government in this behalf]

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45H. Chapter IIIB not to apply in certain cases. —The provisions of this Chapter shall not apply tothe State Bank or a banking company as defined in section 5 of the 2[Banking Regulation Act, 1949 (10 of1949)] or a corresponding new bank as defined in clause (da) of section 5 of that Act or a subsidiary bank as defined in the State Bank of India (Subsidiary Banks) Act, 1959 (38 of 1959)] or a Regional Rural Bank or a cooperative bank] or a primary agricultural credit society or a primary credit society]:Provided that for the purposes of this Chapter, the Tamil Nadu Industrial Investment Corporation Limited] shall not be deemed to be a banking company.

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45-IC. Reserve fund .—(1) Every non-banking financial company shall create a reserve fund thetransfer therein a sum not less than twenty per cent.of its net profit every year as disclosed in the profitand loss account and before any dividend is declared.

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(2) No appropriation of any sum from the reserve fund shall be made by the non-banking financial company except for the purpose as may be specified by the Bank from time to time and every such appropriation shall be reported to the Bank within twenty-one days from the date of such withdrawal:

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Provided that the Bank may, in any particular case and for sufficient cause being shown, extend the period of twenty-one days by such further period as it thinks fit or condone any delay in making such report.

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(3) Notwithstanding anything contained in sub-section (1), the Central Government may, on there commendation of the Bank and having regard to the adequacy of the paid-up capital and reserves of anon-banking financial company in relation to its deposit liabilities, declare by order in writing that the provisions of sub-section (1) shall not be applicable to the non-banking financial company for such periodas may be specified in the order:

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Provided that no such order shall be made unless the amount in the reserve fund under sub-section (1)together with the amount in the share premium account is not less than the paid-up capital of the non-banking financial company.]

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45MB. Power of Bank to prohibit acceptance of deposit and alienation of assets .—(1) If any non-banking financial company violates the provisions of any section or fails to comply with any direction or order given by the Bank under any of the provisions of this Chapter, the Bank may prohibit the non-banking financial company from accepting any deposit.

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(2) Notwithstanding anything to the contrary contained in any agreement or instruments or any law for the time being in force, the Bank, on being satisfied that it is necessary so to do in the public interest or in the interest of the depositors, may direct, the non-banking financial company against which an order prohibiting from accepting deposit has been issued, not to sell, transfer, create charge or mortgage or deal in any manner with its property and assets without prior written permission of the Bank for such period not exceeding six months from the date of the order.

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45MC. Power of Bank to file winding up petition. —(1) The Bank, on being satisfied that a non-banking financial company— (a) is unable to pay its debt; or

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(b) has by virtue of the provisions of section 45-IA become disqualified to carry on the business of a non-banking financial institution; or

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(c) has been prohibited by the Bank from receiving deposit by an order and such order has been in force for a period of not less than three months; or

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(d) the continuance of the non-banking financial company is detrimental to the public interest orto the interest of depositors of the company,may file an application for winding up of such nonbanking financial company under the Companies Act,1956 (1 of 1956).

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(2) A non-banking financial company shall be deemed to be unable to pay its debt if it has refused orhas failed to meet within five working days any lawful demand made at any to its offices or branches and the Bank certifies in writing that such company is unable to pay its debt.

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(3) A copy of every application made by the Bank under subsection (1) shall be sent to the Registrar of Companies. (4) All the provisions of the Companies Act, 1956 (1 of 1956) relating to winding up of a company shall apply to a winding up proceeding initiated on the application made by the Bank under this provision.

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45S. Deposits not to be accepted in certain cases. —(1) No person, being an individual or a firm or an unincorporated association of individuals shall, accept any deposit—

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(i) if his or its business wholly or partly includes any of the

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activities specified in clause (c) of section 45-1; or

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(ii) if his or its principal business is that of receiving of deposits under any scheme or arrangement or in any other manner or lending in any manner:Provided that nothing contained in this sub-section shall apply to the receipt of money by an individual by way of loan from any of his relatives or to the receipt of money by a firm by way of loan from the relative or relatives of any of the partners.

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(2) Where any person referred to in sub-section (1) holds any deposit on the 1st day of April, 1997which is not in accordance with sub-section (1), such deposit shall be repaid by that person immediatelyafter such deposit becomes due for repayment or within three years from the date of such commencement,whichever is earlier:

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Provided that if the Bank is satisfied on an application made by any person to the Bank that such person is unable to repay a part of the deposits for reasons beyond his control or such repayment shall cause extreme hardship to him, it may, by an order in writing, extend such period by a period not exceeding one year subject to such conditions as may be specified in the order.

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(3) on and from the date of 1st day of April, 1997, no person referred to in sub-section (1) shall issue or cause to be issued any advertisement in any form for soliciting deposit.

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Explanation.—For the purposes of this section, a person shall be deemed to be a relative of another if, and only if,—

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(i) they are members of a Hindu undivided family; or

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(ii) they are husband and wife; or

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(iii) the one is related to the other in the manner indicated in the List of Relatives below:—

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List of Relatives1. Father, 2. Mother (including step-mother), 3.Son (including stepson), 4. Son’s wife,5. Daughter (including step-daughter), 6. Father’s father, 7. Father’s mother,8. Mother’s mother, 9. Mother’s father, 10. Son’s son, 11. Son’s son’s wife, 12. Son’sDaughter 13. Son’s Daughter’s husband, 14. Daughter’s husband, 15. Daughter’s son,16. Daughter’s son’s wife, 17. Daughter’s daughter, 18. Daughter’s daughter’shusband. 19. Brother (including step-brother), 20. Brother’s wife, 21. Sister (includingstep-sister), 22. Sister’s husband]

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The Section 45I(f) Chapter IIIB provides definition of NBFC

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which has been inserted by the Act 23 of 1997 (w.e.f.

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09.01.1997) which reads as under :-

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Section 45I(f) in The Reserve Bank of India Act, 1934

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(f)“non-banking financial company” means—

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(i)a financial institution which is a company;

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(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;

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(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.

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Section 45I(A) provides requirement of registration and net

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owned fund which reads as under :-

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45-IA. Requirement of registration and net owned fund. —(1) Notwithstanding anything contained in this Chapter or in any other law for the time being in force, no non-banking financial company shall commence or carry on the business of a nonbanking financial institution without—

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(a) obtaining a certificate of registration issued under this Chapter; and

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(b) having the net owned fund of twenty-five lakh rupees or such other amount, not exceeding hundred crore rupees, as the Bank may, by notification in the Official Gazette, specify:Provided that the Bank may notify different amounts of net owned fund for different categories ofnon-banking financial companies.

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(2) Every non-banking financial company shall make an application for registration to the Bank in such form as the Bank may specify:Provided that a non-banking financial company in existence on the commencement of the Reserve Bank of India (Amendment) Act, 1997 (23 of 1997) shall make an application for registration to the Bank before the expiry of six months from such commencement and notwithstanding anything contained insub-section (1) may continue to carry on the business of a nonbanking financial institution until a certificate of registration is issued to it or rejection of application for registration is communicated to it.

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(3) Notwithstanding anything contained in sub-section (1), a nonbanking financial company in existence on the commencement of the Reserve Bank of India (Amendment) Act, 1997 (23 of 1997) and having a net owned fund of less than twenty-five lakh rupees may, for the purpose of enabling such company to fulfill the requirement of the net owned fund, continue to carry on the

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business of a non-banking financial institution—(i) for a period of there years from such commencement; or(ii) for such further period as the Bank may, after recording the reasons in writing for so doing,extend,subject to the condition that such company shall, within three months of fulfilling the requirement of the net owned fund, inform the Bank about such fulfillment

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Provided that the period allowed to continue business under this sub-section shall in no case exceed six years in the aggregate.

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(4) The Bank, for the purpose of considering the application for registration, may require to be satisfied by an inspection of the books of the non-banking financial company or otherwise that the following conditions are fulfilled:—

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(a) that the non-banking financial company is or shall be in a position to pay its present or future depositors in full as and when their claims accrue;

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(b) that the affairs of the non-banking financial company are not being or are not likely to be conducted in a manner detrimental to the interest of its present or future depositors;

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(c) that the general character of the management or the proposed management of the non-banking financial company shall not be prejudicial to the public interest or the interests of its depositors;

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(d) that the non-banking financial company has adequate capital structure and earning prospects;

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(e) that the public interest shall be served by the grant of certificate of registration to the non-banking financial company to commence or to carry on the business of India;

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(f) that the grant of certificate of registration shall not be prejudicial to the operation and consolidation of the financial sector consistent with monetary stability, and economic growth considering such other relevant factors which the Bank may, by notification in the Official Gazette,specify; and(g) any other condition, fulfilment of which in the opinion of the Bank, shall be necessary to ensure that the commencement of or carrying on of the business in India by a non-banking financial company shall not be prejudicial to the public interest or in the interests of the depositors.

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(5) The Bank may, after being satisfied that the conditions specified in subsection (4) are fulfilled,grant a certificate of registration subject to such conditions which it may consider fit to impose.

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(6) The Bank cancel a certificate of registration granted to a nonbanking financial company under this section if such company—

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(i) ceases to carry on the business of a non-banking financial institution in India; or

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(ii) has failed to comply with any condition subject to which the certificate of registration had been issued to it; or

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(iii) at any time fails to fulfil any of the conditions referred to in clauses (d) to (g) of sub-section(4); or

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(iv) fails—(a) to comply with any direction issued by the Bank under the provisions of this Chapter; or

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(b) to maintain accounts in accordance with the requirements of any law or any direction or order issued by the Bank under the provisions of this Chapter; or

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(c) to submit or offer for inspection its books of account and other relevant documents when so demanded by an inspecting authority of the Bank; or

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(v) has been prohibited from accepting deposit by an order made by the Bank under the provisions of this Chapter and such order has been in force for a period of not less than three months:

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Provided that before cancelling a certificate of registration on the ground that the non-banking financial company has failed to company with the provisions of clause (ii) or has failed to fulfil any of the conditions referred to in clause (iii) the Bank, unless it is of the opinion that the delay in cancelling the certificate of registration shall be prejudicial to public interest or the interest of the depositors or the non-banking financial company, shall give an opportunity to such company on such term as the Bank may specify for taking necessary steps to comply with such provision or fulfilment of such condition:Provided further that before making any order of cancellation of certificate of registration, such company shall be given a reasonable opportunity of being heard.

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(7) A company aggrieved by the order of rejection of application for registration or cancellation of certificate of registration may prefer an Appeal, within a period of thirty days from the date on which such order of rejection or cancellation is communicated to it, to the Central Government and the decision of the Central Government where an appeal has been preferred to it, or of the Bank where no appeal has been preferred, shall be final:

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Provided that before making any order of rejection of appeal, such company shall be given are asonable opportunity of being heard.

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Explanations.—For the purposes of this section,—(I) “net owned fund” means—

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(a) the aggregate of the paid-up equity capital and free reserves

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as disclosed in the latestbalance-sheet of the company after deducting there from—

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(i) accumulated balance of loss;

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(ii) deferred revenue expenditure; and

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(iii) other intangible assets; and

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(b) further reduced by the amounts representing—(1) investments of such company in shares of—

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(i) its subsidiaries;

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(ii) companies in the same group;

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(iii) all other non-banking financial companies; and

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(2) the book value of debentures, bonds, outstanding loans and advances (including hire-purchase and lease finance) made to, and deposits with,—

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(i) subsidiaries of such company; and

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(ii) companies in the same group,to the extent such book value exceeds ten per cent. of (a) above.

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(II) “subsidiaries” and “companies in the same group” shall have the same meanings assigned to them in the Companies Act, 1956, (1 of 1956).]

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From perusal of proviso to Sub Section 2 of Section 45IA it is

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quite vivid that a NBFC which is in existence on the commencement of the Reserve Bank of India (Amendment) Act, 1997 shall make an application for registration to the Bank before the expiring of six months from such commencement and notwithstanding, anything contained in the sub-section I may continue to carry on the business of a NBFC until a certificate of registration is issued to it or rejection of application is communicated to it. In the present case the registration of the respondent as NBFC by the RBI has also aready been rejected.

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The Section 45MC provides for winding up a NBFC, thus, it is incumbent upon the RBI to exercise its power of winding up of a

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NBFC which is registered with the RBI. The judgment referred to by the appellant in case of Prudential Capital (Supra) does not provide that the petitioner of that case was registered with the RBI. As such, the judgment cited by the appellant is not applicable in the present facts of the case. The further reliance cited by the appellant in Official Liquidator (Supra) is also distinguishable on the facts that the judgment was related to Section 441, 531 and 531A of Companies Act, 1956, therefore, not applicable to the present facts of the case. Similarly, the judgment of Tulundu Finance (Supra) also does not deal with the controversy involved in this case. The judgment of M/s Himachal Gramin (Supra) also does not deal with the facts involved in the present case as in this case the Division of the High Court while considering the provisions of Section 45MB, 45MC, 45IA, 45IB, 45IC, 45JA has held that the RBI Act shows the power of intervention is available for the RBI over NBFCs from cradle to the grave and has held that in other words no NBFC can carry on business without being registered under the Act and an NBFC which takes birth with the registration under the Act is liable to be wind up at the instance of RBI. It has also been held that entire life of an NBFC from the womb to the tomb is also regulated and monitored by the RBI. So far as legal preposition is concerned, it is not in dispute but whether NBFC who is not registered with the RBI can be regulated by RBI has not been dealt in the judgment. Similarly, the judgment of Hon’ble Supreme Court in case of Nedumpilli Finance (Supra)

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also held that the Chapter IIIB of RBI Act, 1934 is complete Code governing the regulations of NBFC and no company can commence or carry on business without obtaining the certificate of registration under the Act. The Hon’ble Supreme Court in paragraph 53, 54, 55, 57,61, 62 has held as under :-

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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, subject 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 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 Fund Companies and the like are regulated by SEBI; Nidhi companies and mutual benefit companies are regulated by the Ministry of Corporate 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.

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To find out whether NBFCs registered under Chapter IIIB 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 IIIB of the RBI Act is a complete code or not. In Integrated Finance Company Limited vs. Reserve Bank of India and Others3, this Court held in para 47 of the Report that “Chapter IIIB of the RBI Act is a complete code in itself”.

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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 the power to supersede the Board of Directors of a NBFC and has power even 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 could be a complete code.

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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.

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Moreover, Subsection (1) of Section 45JA deals only with the powers in general. This is made clear by the words “without prejudice to the generality of the powers vested under subSection (1)”, appearing in subSection (2) of Section 45JA.

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62 In any case, Section 45L(1)(b) confers power upon the RBI to give directions to NBFCs “relating to the conduct of business by them”. Therefore, to say that RBI has no power in respect of such an important aspect, may not be correct. The fact that RBI generally leaves it to the market forces to determine the rate of interest, 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.

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Thus from the above legal position and considering the provisions of the RBI Act it is quite vivid that unless the NBFC is registered with the RBI it cannot start its function and simultaneous cannot initiate proceedings for winding up of the respondent company it has no registration with the RBI as held by the Hon’ble Supreme Court in case of Nedumpilli Finance (Supra).

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Thus, from the scheme of the Act and law on the subject, it is quite vivid that no NBFC can commence or carry on business without obtaining the certificate of registration under the Act. The RBI has the power to supersede the Board of Directors of a NBFC and has power even 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 but the there is no provision

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which provides that if NBFC is not registered with the RBI then winding up of proceeding as per the provisions of 45MC of the Act can lye. The Act does not provide any mechanism for winding up of NBFC which is not registered with the RBI. Therefore, the Company Petition for winding up in view of provisions contained is not maintainable. Even otherwise, in the garb of imposture of literal construction which provides a court to interpret the words of a statute according to their plain and ordinary meaning, without adding or subtracting anything from the text therefore, the provisions of the RBI Act for winding up of the respondent company which is not registered with RBI cannot be applied. As such, learned Single Judge has not committed any illegality or irregularity in dismissing the company petition warrants interference by this Court.

¶139

Consequently, the instant company appeal deserves to be and is hereby dismissed.

¶140

Sd/Sd/( Rajani Dubey) (Narendra Kumar Vyas) JUDGE JUDGE

¶141

Deshmukh

¶142

KISHORE KUMAR DESHMUKH

¶143

Digitally signed by KISHORE KUMAR DESHMUKH Date: 2025.02.28 16:46:52 +0530

Reserve Bank of India v. Samruddhi Saving and Investment (I)

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Reserve Bank of India v. Samruddhi Saving and Investment (I)

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