Chandigarh act 018 of 2002 : The Blhar Protection of interests of depositors (in fiinancial establishments) Act 2002

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('l ) This Act may be called the Bihar Protection of Interests of Depositors (in Financial Establishments) Act, 2002.

(2) lt shall exlend to whole of the State of Bihar

(3) lt shall come idv-'io force at once.

AN

ACT

27

In this Aci unless the context otherwise requires^:

(a) "Competent Authority" means the Competent Authority appointed under sanction 5;

(b) Designated Court means the Designated Court constituted under section 6:

(c) "deposit" includes and shall be deemed always to have included any receipl of money or acceptance of any valuable commodity by any Financial Establishment to be returned after a specified period or otherwise, either in cash or in kind or in the form of specified service with or without any benefit in the form ol interest, bonus, profit or in any other form, but does not include -

(i) amount raised by way of share capital or by way of debenture, bond or any other instrument covered under the guidelines given, and regulations made, by the "SEB|", established under the Securities and Exchange Board of India Act, 1992 (15 of 1992);

(ii) amount contributed as capital by partners of a firm;

(iii) amounls received from a scheduled bank or a co- operative bank or any other banking company^as delined in clause (c) of section 5 of the Banking Regulation Act, '1949 : ('10 of 1949);

(iv) Any amount received from -

(a) the Industrial Development Bank of India

(b) a State Financial Corporation,

28

(c) any financial institution specified in or under section 6A of the industrial Development Bank of lndia Act, 1964;

amount received in the ordinary Course of business by way ot -

(a) security daposit

(b) dealership deposit

(c) eamest money

(d) advance against order for goods or services:

any amount received tro m an individual or a firm or an association of individuals nor being a body corporate, regi9iered under any enaclmenl relating to money lending which is for time being in force in the State; and

any amount received by way of subscriptions in respect of Chit.

Explanation - | :

"Chit" has the meaning as assigned to it in clause (b) of section 2 of the Chit Funds Act, 1982; Explanalion - ll :

Any credit given by a seller to a buyer on the sale of any property (whether moveable or immovable) shall not be deemed to be deposit for the pu.pose of this ctause.

29

1949.

(e) "Government" means the Government ot Bihar (0 "prescribed" means prescribed under the Rules.

3. Fraudulent default by Financial Establishment^:

Where any Financial Establishment, having fraudulently or dishonestly, defaults in repayment of any deposit on maturity along with any benefit in the form of interest, bonus or protit, or in any other form as promised or fraudulently or dishonestly fails to reltder service as assured againsl the deposit, the Financial Establishment and every person including the promoter, partner, director, manager or any other person or any employee responsible for the management of or conducting the business or affairs of such Financial Establishment shall, on convention,^be punished with imprisonment for term up to ten years and with fine up to one lakh of rupees or where such default relates to a quantiflable sum ot money twice amount of such sum. whichever is more:

30

For the purpose of this section, a Financial Establishment, which commits default in repayment of any deposit with such benefits in the term of interest, bonus, profit or in any olher term as promised or falls lo render any specified service agreed against the deposit with an intention of causing wrongful gain to one person on wrongful loss to another pe6on or commits such defaults due to its inability arising out ot impracticable of commercially not viable promises made while accepting such deposit or arising out of deployment of money or assets acquired out of the deposits in such a manner as it involves inherent risk in recoveing the same when needed, shall be deemed to have committed a default or failed to render the specific seMce, traudulently.

Explanation - ll :

When a question arises whether any Financial Establishment has committed fraudulent default within the meaning ot this section, ihe Courl shall presume that such Financial Establishment has committed the default fraudulently.

3l

29

(1) Notwithstanding any thing contained in any other law for the time being in force.

(i) where upon complaints received from^the depositors or othenvise the Govemment is salisfied that any Financial Establishment has failedi

(a) to return the deposit after maturity on demand by lhe depositor; or

(b) to pay interest or other assured benefits; or

(c) to provide the service promised against such deposit: or

(ii) where the Government has reason lo believe that any Financial Establishment is acting in a manner detrimental to the interest of the depositors with an intention to defraud them and^if the Govemment^is satisfied that such Financial Establishment is not likely to return the deposits or make payment of interest or other benefits assured or to provide ihe services againsl the deposit is received, the Government may, in order to protect the interest of the depositors of such Financial Establishments, after recording reasons, in writing, issue an order

b) publlshing it in the Ofticial GazettE, attaching the money or other property believed to have been acquired by such Financial Establishmeht either^it its own name or in the name any other person

30

On the publication of the order under sub-section (i) atl the properties and assets ol the Financial Establishment and the persons mentioned therein shall forlhwith vest in the Competent Authority appointed by the Govemmenl, pending further order from the Designated Court.

Save and otherwise specially provided in any other law lhe attachment shall be made in the manner provided for attachment of property in execution of a decree under order 2'1 Rules 43, 43A, 46,47,49,50, 51 and 54 of the Code of Civil Procedure.

5. Appointment, Duties and Power of Competent Authority :

('l) The covernment may while issuing the order under sub-section ('1) of section 4, appoint any of its officers not below the rank of the Collector as the Competent Authority to exercise control over the moneys and the properties attached by the Government under section 4 of a Financial Establishment.

(21

(3)

33

(3)

On receipt of order of appointment, the Competent Authority shall take such necessary actions as^are necessary or expedient for taking physical possession of all the moneys and assets of the concemed financial establishment expeditiously and the Competent Authority shall have all the powers which are necessary for lhe aforesaid purpose.

The Competent Authority shall apply within thirty^days from the date ot the publication of the said Order, to lhe Designated Court, supported by one or more affidavits stating the grounds on which the Govemment^has issued the said order under section 4 and the amount of money or other property believed to have^been acquired out ot the deposits and the details, if any, ot persons in whose name such property is believed to have been invested or acquired or any other propeny attached under section 4, for such further orders as found necessary

(4) The competent Authority may aiso make an applic'ltion to^any Designated Court or any other judicial forum/ authority constituted or entrusled with the po'/€rs under any other State Government Law for adjudicating any issue or subject matter pertaining to any money^or property of a Financial Establishment under similar enactment in respect of money and property belonging to Financial Establishment or person notified under thi6 Act situated within the territorial jurisdiction of^that authority for appropriate orders to give effect to be orovisions of this Act.

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(a) require assistance of any police authority or any other authority or person and on such requisition il shall be the duty of the police authority or such other authority or person to extend necessary assistance;

(b) open bank accounts in any scheduled commercial bank and credit all moneys realised and operate the bank accounts while dealing with the money received in his capacity as Competent Authority;

(c) require any person believed to be in possession or control over any money or assets of lhe financial establishment, to furnish necessary information, to hand over possession of such assets to the Competent Authority and such person shall comply with the requisition without any loss of time;

(d) appoint legal practitioner or Chartered Accountant or any other person whose services are necessary tor taking possession of assets and realisation of the assets of the financial establishment:

(e) sell, receive, lransfer, endorse, negotiate or otheMise deal with any marketable security or negotiable instrument belonging to or in the control ot the financial establishment and give proper dascharge tor lhe same;

35

(g) make payment as per the orders passed by the Designated Court from out of the bank accounts' ano

(h) do all and every acis and deeds which would^be necessary for the speedy realisation of the assets of the financial establishment

Provided that the sales and transfers ot movable DroDerties should not be done before the Designated Court has passed made the order of attachment issued by the Government absolute or has issued a revised attachment order under Section-S.

(6) The Competent Authority shall make applications trom time to time to the Designated Courl seeking permission to make payments^to the depositors trom out of the money realised. While making such applications, the Competent Authority shall assess the liabality to the deDositors and the other liabilities and in case the money realized or realizable is not sufficient to meet the entare tiability, make a submission to the Designated Court seeking permission for making part payment to^the depositors and to other credito6 and disburse^the money as^per the order of the Designated Court'

34

Forthe purpose of this section, the expression "tinancial establishment" includes the directors, promoters, managers or member of said establishment or any other person whose property or assets have been a$ached under section 3.

6. Assessmont of assets and deposit liabilities :

(1) Within thirty days from the date ot his appointment, the Competent Authority shall assess the deposit liabilities and the assets ofthe financial establishment and submit the statement thereof to the Designated Court.

(2) The Competent Authority, thereafter, shall issue notice either individually or by means of etfective media publication, inviting the claims by secured creditors, if any, and also the depositors of the financial establishment to submit their claims with proper proot to establish the same.

(3) Every notice under sub section (2) sent to or deemed to have been sent to claimants shall state that if the statement or claim is not sent to the Competent Authority before the expiry of the period of one month from the date of notice the claims shall not be treated as claim entitled to be paid under the provision of this

(4) Every notice sent to a secured creditor shall require him to value the security before the expiry of the period of one month from the date of the notice and such

37

(5) lf the claimant fails to comply with the notice as per the sub section (4), such security shall be valued by the Competent Authority in his best judgment.

7. Designated Court :

(1) For the purpose of this Act, the Government may, with the concurrence of the Chief Justice ofthe Patna High, Court, by notiflcation in the Official Gazette, conslitute one or more Designated Courts in the cadre of Subordinate Judge including Assistant sessions Judge for such area or areas or for such case or ciass^or group of cases, as maybe specified in the notification.

(2) No court, including the court constituted under the Presidency Towns Insolvency Act, 1909 and the Provincial Insolvency Act. '1920, other than^the Designated Court, shall have jurisdiction in respect of any matter to which the provisions of this Act are invoked.

(3) Any pending case in any other court to which the provisions of this Act apply shall, on the date of publication ot this Act, sland transferred to the Designated Court.

38

(1) Upon receipt of an application under section 5, the Designated Court shall issue to the Financial Establishment or to any other person whose property is attached and vested in the Competent Authority by the Government under section 4, a notice accompanied by copy of the application arid of affidavits and the evidence, if any recorded, calling upon the said Establishment and the said person to show cause on a date to be specified in the notice, why the order of altachment should not be made absolute.

(2) The Designated Court shall also issue such notice to all other persons represented to it as having or being likely to claim any Interest or title in the property of the Financial Establishment of the person to whom the notice is issued under sub-section (i), calling upon all such persons to appear on the same date as that specified in the notice and make objection if they so desire to the attachment of the property or any portaon thereof, on the ground that they have interest in such property of portion thereof.

(3) Any person claiming an interest in the property attached .^{or any} portion thereof may, notwithstanding that^no notice has been seNed uDon him under this section, make an objection as aforesaid to the Designated Court at any time bgfore an order is passed under suGsection

(4) or sub-section (6).

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(5)

The Designated Court shall, if no cause is shown and no objection is received under sub-section (3), forthwith pass an order making the order of attachment absolute, and assue any direction as may be necessary for realisation ofthe assets attached and for the equitable distribution among the deposjtors of the money realized from out of the property attached.

lf cause is shown or any objection is made as aforesaid, the Designated Court shall proceed to investigate the, same and in so doing, as regards the examination of the parties and in all other respect, the Designated Court shall, subject to the provisions of this Acl, follow the summary procedure as contemplated under order 37 of the Civil Procedure Code, 1908 and exercise all the powers of a court in hearing a suit under the said Code and any person making on objection shall be required to adduce evidence to show that at the date of the attachment he had some interest in the property attached.

After investigation under suFseclion (5), the Designated Court shall pass an order either making the order of attachment passed under sub-section (1) of section 4 absolute or varying it by releasing a portion of the property from attachment or cancelling the order of attachment:

tsrovided that the Designated Court shalt not retease from attachment any interest, which it is satisfied that the Financlal Establishment or the person relened to in

(6)

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(7) Where an application is made by any person duly authorised or constituted or specified by any other State Govemment under similar enactmenl empowering^him to exercise control over any money or the property attached by that Government, the Designated Court shall exercise all its powers as if application is made underthis Act and pass appropriate orders of directions on such aDolication.

9. Powe6 of the D€signated court regarding rcalbation or assets and payment to depositoB :

(1) The Designated Court shall have all the powers^for giving eftecl to the provisions of this Act.

(2) Without prejudice to the generality of sub section^(1), the Designated Court may-

(a) give any direction to the Competent Aulhority as it deems fit, for effective implementation of the provisions of this Act;

(b) approve the statement of dues of the financial establishment due from varaous debtors, assessment of the value of the assets of the financisl establishment. finalise the list of the deoositors and their respective dues. 4l

39

approve the necessary expenditure to be incurred by the Competent Authority lor taking possession and realisation of the assets of linancial establishmenti

order for payment to the depositors by the Competent Authority or order for proportionate payment to the depositors in the event ofthe money so realised is not sufficient to meet the entire deposit liability; and

pass any order which the Designated Couri deems fit for realisation of the assets of the company and repayment to the depositors of the financial establishment or on any matter or issue incidental thereof.

ExDlanation:

Forthe purpose of this seclion, the expression 'linancial- establishment" includes the directors, promoters, manage6 or member of said estabiishment or any other person whose property or assets have been attached under section 3.

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(1) Where the assets available fol attachment of a Financial Establishmenlor other oerson referred to in section⁴ are found to be less than the amount or value which such Financial Establishment ls required to re-pay 1o the depositor and where the Designated Court is satistied by affidavit or otheMise, that there^is reasonable cause for believing that the said Financial Establishment has transferred (whether after the commenc€ment 2f this Act or not) any of the property otherwise than in good faith and for adequate consideration the Oesignated Court may by notice require any transferee of such property (whether or not he received the property directly from the said Financial Establishment) to appear on a date to be specifiedⁱⁿ the notice and show cause why so much of the transferee's property as is equivalent to the proper value of the property transferred should not be attached.

(2) Where the said transferee does not appear and show cause on the specified date, or where after investigation in the manner provided in sub-section (5) of section 7, the Designated Court is satisfied that the transfer of the property to the said transferee was not in good faith and for adequate consideration, the Designated Court shall order the attachment of so much of the^said transferee's property as is in the opinion of the Designated Court equivalent to the proper value of the property transferred.

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Any Financial Establishment or person whose property has been or is proposed to be attached under this Act may, at any time, apply to the Designated Court for permission to grve securily in lieu of such attachment and where the secunty offered and given is, in the opinion ot the Designated Court, satisfactory and sufficient, it may cancel the order of attachment or, as the case may be, retrain from passing an order of attachment.

Administration of property attached :

(1) The Designated Court may, on the application of any perscin interested in any property attached and vested in the Competent Authority, give an opportunity to the person concerned of being heard and make such order as the Designated Court considers just and reasonable for-

(a) Providing from such of the property attached and vested in the Competent Authority as the applicant claims an interest in, such as may be reasonably necessary for the majntenance of the applicant and of his family, and tor the expenses connected with the defence of the applicant where criminal proceedings have been instituted against him in the Designaled Court under sectjon 3; and

(b) Safeguarding so far as may be practicable the interests of any business affected by the attachment, and in particular, the interests of anv panners in such business.

12.

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('l) An appeal shall lie against the final order passed by the Designated Court in connection with and relatjon to the attachment before the High Court of lhe area concerned within 60 days from the date of the final order

(2) Any person convacted on a triat held by the Designated Court may appeal to the High Court of the area concerned.

'14. Special Public Prosecutor and Special Government Pleade.s :

The Government may, by order appoirit one or more Advocates of not having less than 7 years practice as Speclal Public Prosecutor/Special covernment pleader in consultation with the District and Sessions Judge of the concerned District for the purpose of conduction the cases in the Designated Court.

15. Procsdute and powers of designate.d Court regarding offences :

(1) The Designated Court may, on perusal of the police report of the facts constituting an offence under thjs Act 01 upon a complaint made by an officer authorized an this behalf b!, the State Government, take cognizance of the offence without the accused being committed to it for trial.

45

(3) The Designated Court will exercise the power of remand with regard to person foMarded to it as provided under Sections 167 and 309 of the Code of Criminal Procedure, 1973.

(4) The Designated Court, while trying the otfence under this Act, may also try an offence other than the offence under this Act with which, the accused may be charged at the same trial under Code ol Criminal Procedure,

1973.

(5) (a) The offence punishable under this Act shall^be cognizable.

(b) Subject to the provision contained under this^Act the provision with regard to bail as provided under Chapter n(xlll of the Code of Criminal Procedure shall apply except the provision of grant of anticipatory bail as provided under Section 438 of the Code of Criminal Procedure.

'16. Act to override other laws :

Save as otherwise provided in this Act, the provisions of this Act shall.have effect not withstanding anything inconsistent therewith contained in any other law for the time being in force or any custom or usage.

46

No suit or other proceedings shall lie against the Government

", *J*rn*"" **ority or an oificer or employee of the

;;;;;;' anvthins which is in sood faith done^or

intended to be done under this Act

'18. Powei to make rules^:

(1) The State Govemment may' by notification in the Ofiicial Gazette, make rules to carry out the purpose of^this Act.

(2) Every Ru,e made:l'l^'T ffisr:i":; lli;i"";1i1 as may be' after it is maoe'

l-t"t"i"gi"t"tu'"' "'ttile

it is in session for a to"lT:',::

otiii'tv i"v"' *n'"n rnay be comprised in one sessron,

;r in two successive sessions'

and if' belore the-exPrrY

ii *" """t'on

in which it is so laid or the

sessron

*t"i'"'"t, following' both Houses agree in making

"", t"O't'""t'"n in the Rules or both Houses agree

that the Rules should not be made' and notify their decision to that effect in the Otficial Gazette' the^rule

"n"'i Uorn tn" date of publication of such decisionⁱⁿ

the Ofncial Gazette' have etfect only in such modified form or be of no effecl' as the case may be'^so

however' that any such modification or annulment shall

be without prejudice to rne validity ol anything previously don€ or omitted to be done under that rule'

47

lf any difficulty ads$ in giving effecl to the povisirns of this Acl, the Govemment may, as occagion arises, by ordgr, do anything, not inconsistent with the provbions of lhis Acl, which appears to it to be necessary lo remove lhe difficulty.

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DEPARTIUIENT OF INSTITUTIONAL FINANCE &

PROGRAMIE IIIPLEUENTATION

Dated 28.02.2004

No. 365 - In exercise ot the powers conterred by section¹⁸ ol the Bihat Proteclion ol Interests of Depositots (in Financial Establishm€nts) Act, 2002 (Bihar Act 18 of 2002), the state Governmeni of Bihar hereby makes the tollowing rules, namely -

1, Short titls - Ertont end Commoncement^:

(1) These rules may be called thE Bihar Protection of lntEresls of Depositors (in Financial Establishments) Rules, 2004.

(2) lt shall extend to whole of the State of Bihar

(3) lt shall come in torce at once.

53

In these rules, unless the context otherwise requares^:

(b) "Competent Authority" means the officer appointed as the Compeleni Authority by the Govemment under Section 5(1) ot the Acl.

(c) The "Collecto/' means collector of any district and it also includes Additional Collector as authorized^by the State Governmeni in this behalf.

(a) "Act" means the Bihar Depositors (in Financial (Bihar, Act 18 ot 2002). Complaints :

The Collector ot a District shall receive the complaints from any under sub-section (1) of section shall torward the same together Protection of lnterest of Establishments) Act, 2002 also be competent to

person in his District

4 of lhe Act and he

with his report to the

3.

Governmenl as soon as oossible.

4. Power to bsue order of attachment :

('l) An order of attachment of any establishment to be issued by the Government under seciion 4 of the Act shall be issued by an Officer not below the rank of a Secretary to Governmenl in the Department of Institutional Finance and Programme lmplementation-

56

5. Examination of Complainant and witnesses :

('l) Upon the publication of the order ot attachment of money or other property by Government Officer under sub-rule (1) of rule 4 such officer shall immediately foMard copies of all the relevant papers and his report relaling to such attachment order to the Competent Authority.

(2) The Competent Authority may examine the complainant and witnesses, if any, and such examinalion proceedings shall be recorded in writing.

(3) The Competent Authority shall have power to examine any person or oftice bearer or employees of the Financial Establishment who, in his opinion, is competent to give any inlormation about the Financial Establishment in respect of which the attachment o.der has been issued bv the Government.

55

UDon the oublication of the attachment order by^the Government and, on the receipt of relevant papers and other record from the Government, the Competent Authorrty shall immediately prepare a register, recording detailed account and description of all the money and properties attached and vested in him under sub-section (2) of seclion 4 of the Acl, and shall, as far as may be practicable, administer the said money and properties in the^best interest of the Depositors and the Financial Establishment' as he deems^fit.

7. Right of Competent Authority to require information:

(1) The Competent Authority shall have power to call for or require any information about the Financaal Establishment or its office bearers including lhe oromoter, director, partner or manager or members ot such Financial Establishment or direct any office or authority of the Government or a local authority or any other person, to furnish such informat,on^as may be required, and such Financial Establishment or its office bearer or promoter, director, partner or manager or members of such Financial Establishment or office or authority ot the Government or local

56

(3)

Where the Competent Authority is satisfied or has reason to believe that a person in respect ot whom an ac'tion is contemDlated under ihe Act, has absconded or is likely to abscond or^is con@aling himself the Competent Authority shall immediately make a report in writing to the Designated Court.

9. Power of Competent Authority to soll or dispose of property :

(1) Where any property attached and vested in the Competent Authority under the provisions of the Acl is subject to speedy and natural decay and if it is expedient to dispose it, the Competent Authority^may, after obtaining permission of the Designated Court, sell or otherwise dispose of the said property and shall include the sell proceeds in the account of lhe Financial Establishment.

(2) The Competent Aulhority shall, afler disposing of the said property under sub-rule (1) report the same to the Designated court.

58

(1) All money or property attached by the Government and vested in the Competent Authority under^the provisions of the Act shall be sealed by the Competent Authority and shall be in the custody ol the Competent Authority.

(2) The Competent Authority shall maintain the record of all the income received and the expenditure incurred on attachment of the property and management^and disposal of the same, and furnish the details of the same to the Designated Court from time to^time The Competent Authority shall render such assislance to the Special Public Prosecutor/Special Government Pleader in conducting lhe cases in the Designated Court as may be required.

Bv the order and in the name of Govemor of Bihar sd'/-

(Arbind Prasad)

(Secretary to Govemment)

11.

61

(ftbind Prasad) (E€clddfy b Gor€nment) Patna, D'at0bd : 2Z.O2.2OM (Secr€tary to Govemment) Pah3, Oa$ed : 28.02.2m4

I

I

t

" : :^. Coot 1ot*rd"o to - Chi.f Secretary, Bihar, patna/Dirsc{or 'Generel of Police, Patna/All S€cretary/All Head of ths ,D€partmenuAll Dislrlct Magist de/All Supeilntenilent-of Police for informalion and necassary aclion.

'^\V ;e''ooo

, (AFind Pmsa4)

62

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