-An analysis of the current scenario
By Simran Jalan (email@example.com)
What is factoring?
Receivables form a major part of the current assets of a company and management of such receivables is the most important concern for the company. Factoring is a financial option for the management of receivables. It is a tool to obtain quick access to short-term financing and mitigate risks related to payment delays and defaults by buyers. In the process of factoring, the seller sells its receivables to a financial institution (“Factor”) at a discount. After the sale, there is an immediate transfer of ownership of the receivables to the factor. In the due course of time, either the factor or the company, depending upon the type of factoring, collects payments from the debtors. Factoring helps the company to improve the cash flows and cover the credit risk of the company. The following chart depicts the factoring process: Read more
By Simran Jalan (firstname.lastname@example.org)
The Reserve Bank of India (RBI), in its press release on ‘Statement on Developmental and Regulatory Policies’ dated August 1, 2018, sets out various policy measures. One of the initiatives introduced relates to co-origination of loans by the banks and NBFCs for lending to the priority sector.
Before delving into the initiative, we shall briefly discuss the concept of priority sector and priority sector lending (PSL).
Categories of priority sector
Priority Sector category includes agriculture; micro, small and medium enterprises; export credit; education; housing; social infrastructure; renewable energy and others.
According to the Master Circular – Priority Sector Lending- Targets and Classification issued by RBI, the total priority sector lending (PSL) for domestic scheduled commercial banks (excluding Regional Rural Banks and Small Finance Banks) should be 40% of Adjusted Net Bank Credit or Credit Equivalent Amount of Off- Balance Sheet Exposure, whichever is higher. Further, there are also sub-targets specifically for agriculture, micro enterprises and weaker sections.
Commercial banks are required to meet the PSL requirement specified in the aforesaid circular. However, banks neither have the outreach nor the inclination to reach out to the communities living in geographically remote areas. The banks are even unable to perform credit evaluation or credit underwriting of the borrowers falling under the priority sector category due to lack of outreach. Consequently, apart from direct funding, banks have been exploring several options for meeting the minimum requirement:
- On-lending: In this structure the loan is sanctioned by banks to eligible intermediaries for onward lending only for creation of priority sector assets.
- Direct Assignment: Banks enter into transaction with NBFCs for assignments/ purchase of pool of assets representing loans under various categories of priority sector, as prescribed under the aforesaid circular.
- Business Correspondent: Commercial banks intending to increase their outreach have been engaging the services of BCs. Such NBFCs or other eligible entities provide various services such as identification of borrowers, collection, recovery, follow-up and such other ancillary services. The loans under various categories of priority sector are originated in the books of the bank through the assistance of BC.
- Co-lending: Both banks and NBFCs enter into a co-lending arrangement, whereby the exposure on the borrower is in a pre-decided ratio.
Though, there are existing regulations on direct assignment as well as appointment of BC, currently the co-lending arrangement is not regulated under any existing guidelines of RBI.
Co-lending regulations awaited
As per the press release, RBI shall be coming up with such guidelines wherein schedule commercial banks (excluding regional rural banks and small finance banks) may co-originate loans with systematically important non-deposit taking NBFC for fulfilling their mandatory priority sector lending requirement.
Under the co-lending arrangement, there would be joint contribution of credit by both lenders at the facility level. The said arrangement shall also involve sharing of risks and rewards between the banks and NBFCs, as per their mutual agreement. The risks and rewards could be shared equally or in a proportion which shall be predefined.
This step is taken by RBI to provide a competitive edge for credit to the priority sector and to mitigate the challenges faced by the banks on priority sector loans. The NBFCs operates on low cost infrastructures and have reach to the remote locations. Coming together with NBFCs shall definitely assist the banks to meet their PSL requirements with ease.
The guidelines have not yet been issued and it is expected that RBI shall come out with its regulations for governing such co-lending arrangement by the end of September 2018. In consequence, there can be a decline in the direct assignment arrangement undertaken by banks. The reason being that in co-lending there is joint origination and the risk and rewards are shared in a mutually agreed proportion, however, in case of direct assignment, the NBFC transfers the loan portfolio and has no residuary interest left. Such difference can lead to a decline in the direct assignment transactions undertaken by banks with NBFCs.
By Vishes Kothari (email@example.com)
With the proliferation of retail lending NBFCs offering a variety of traditional and disruptive products, there has been the frequent question about NBFCs being able to issue credit cards.
This question leads onto various further questions- for example, is a credit ‘card’ facility in virtual form also a credit card? Hence it appears that one must first examine what exactly is the defining feature of a credit card. This note intends to explore this pertinent question.
Credit Card: Defining features
There is no direct definition of the credit card to be found in Indian laws and regulations issued by the RBI. This is because before the advent of new technologies resulting in new products, it was generally quite clear as to what was meant by a credit card facility. A card meant what looked like a card – the piece of plastic that one would keep in one’s pocket or wallet. However, technological advancements have completely changed that perception.
In UK law, one finds a definition of a credit card in The Credit Cards (Merchant Acquisition) Order 1990. This regulation provides:
“credit card” means a payment card the holder of which is permitted under his contract with the issuer of the card to discharge less than the whole of any outstanding balance on his payment card account on or before the expiry of a specified period (subject to any contractual requirements with respect to minimum or fixed amounts of payment), other than:
(a) a payment card issued with respect to the purchase of the goods, services, accommodation or facilities of only one supplier or of suppliers who are members of a single group of interconnected bodies corporate(1) or who trade under a common name,
(b) a payment card with respect to which the payment card account is a current account, or
(c) a trading check;
“payment card” means a card, the production of which (whether or not any other action is required) enables the person to whom it is issued (“the holder”) to discharge his obligation to a supplier in respect of payment for the acquisition of goods, services, accommodation or facilities, the supplier being reimbursed by a third party (whether or not the third party is the issuer of the card and whether or not a fee or charge is imposed for such reimbursement);
A credit card has thus been defined by an exclusion principle- it is all those payment cards which a user can use to ‘discharge obligations’ (i.e. make payments) with the exception of debit cards, cheques and cards which can be used at the outlet of only a single brand/store.
Thus, the credit card appears to have been defined by its ability to claim credit from the issue to make payments to a third party, via the use of the card.
This definition appears quite convenient to apply to the Indian financial services sector.
Who can issue credit cards?
Prior approval of the RBI is not necessary for banks desirous of undertaking credit card business either independently or in tie-up arrangement with other card issuing banks.
In the case of NBFCs, the RBI vide Master Direction DNBR. PD. 008/03.10.119/2016-17 dated September 01, 2016, has stipulated that only the following types of NBFCs are permitted to issue credit cards with the prior approval of the RBI:
- Issue of Credit Card
Applicable NBFCs registered with the Bank shall not undertake credit card business without prior approval of the Bank. Any company including a non-deposit taking company intending to engage in this activity requires a Certificate of Registration, apart from specific permission to enter into this business, the pre-requisite for which is a minimum net owned fund of ₹ 100 crore and subject to such terms and conditions as the Bank may specify in this behalf from time to time. Applicable NBFCs shall not issue debit cards, smart cards, stored value cards, charge cards, etc. Applicable NBFCs shall comply with the instructions issued by Bank to commercial banks vide DBOD.FSD.BC.49/ 24.01.011/ 2005-06 dated November 21, 2005 and as amended from time to time.
It seems clear that the RBI intends to make the eligibility criteria very steep by putting in place the requirement for an NOF of 100 crores. Moreover, the issuance of credit cards can only happen via approval route.
The case of virtual credit-cards
New technologies have led to the development of various new products and variants of traditional credit card facilities. One such development is the possibility of having ‘virtual credit cards’ which function via a downloadable app or other software and eliminate the need for a plastic card altogether. The question arises that are such virtual cards to be considered as ‘credit cards’ and hence, is it that only the NBFCs eligible to issue credit cards may issue the virtual variants?
A literal reading of the definition/regulations above would, of course, imply that the credit card refers to a plastic card. Hence once could conclude that any NBFC can issue virtual ‘credit cards’ as it does not involve the use of a card at all.
In our opinion, this is not in keeping with the spirit of the law. Restrictions have been placed to restrict the NBFCs which can issue credit cards as this facility is a sensitive facility which is offered to and used by members of the lay public. If by merely changing the actual form of the credit card, i.e. by making it a downloadable app or any other virtual form, if one could circumvent all the checks and balances that have been put into place on who can issue credit cards, then that would not be in keeping with the spirit of the law/regulations.
In our view the regulation applies not only to potential credit card issuers but instead to credit facility issuers- i.e. issuers wanting to issue credit card-like instruments, whatsoever may be their actual form. Hence we would hold that only those NBFCs which are eligible to issue credit cards are eligible to issue virtual credit cards.
There have appeared on the market another type of card – the ‘EMI Cards’.
While a credit card facility involves the user having an instrument which gives him access to an on-tap revolving line of credit, the EMI Card is a card with a pre-approved loan. When the user of the card presents the Card at third party merchant outlet, the Card converts the purchase payment into EMI payments payable to the card issuer. Hence the card acts like a pre-approved loan. Usually no interest rates are charged from the user of the card, instead there the card issuer has an arrangement with the merchant (perhaps a commission arrangement). Such cards might also come with an annual subscription fee charged from the user.
In an EMI card the issuer of the instrument is able to regulate the expenses for which the holder can make payments using the EMI card, unlike in case of a credit card, where the issuer has no control over the places where the card is being used. The issuer of an EMI card can reject a loan request as per the agreement under which the card is issued, even when there is unused balance on the card, whereas in case of credit card the issuer cannot reject a payment request if there is unused balance on the instrument.
An EMI card is an instrument which is mostly used to finance purchase consumer goods by the holder of the card, whereas credit card are being used to pay for any kind of expenses of the holder.
The issuer of an EMI card is able to have greater control over its usage by the holder as compared to a credit card issuer.
Hence in a credit card, while the user taps into a new loan each time he avails of credit via using the card facility, an EMI card is an instrument which activates a loan up to a certain pre-approved limit.
Because the EMI Card is not a credit facility, it would follow that the usual restrictions applicable to the issuance of credit cards would not be applicable here. However, the distinction between a traditional credit card and a so-called EMI card is too thin to be visibly clear. Therefore, there is a strong possibility of the regulations on credit cards getting surpassed by entities promising loan facilities via cards. While the need for regulatory clarity is clear, in the meantime, issuers have to be able to evidence their ability to control the facility, such that the card does not become a surrogate for a credit card.