The National Bank for Financing Infrastructure and Development Act, 2021
Chapter IV ACTIVITIES OF INSTITUTION
Finance202148 sections7 chapters
Chapter IV ACTIVITIES OF INSTITUTION
17. Functions and powers of Institution.
Statutory text
- (1) The Institution shall perform the following functions and exercise the following powers, namely:--
- (i) form subsidiaries or joint ventures or branches, in India or outside India, for carrying out its functions; and enter into any arrangement with such subsidiary company or joint venture or branch including for financing any such subsidiary company or joint venture or branch or guaranteeing any of their liabilities or make any other arrangement which may seem desirable to the Board;
- (ii) co-ordinate its operations and the operations of various institutions engaged in the field of infrastructure finance and maintain expert staff to study problems relating to infrastructure finance and be available for consultation to the Central Government, the Reserve Bank and the other institutions engaged in the field of infrastructure finance;
- (iii) set up trusts under the Indian Trusts Act, 1882 (2 of 1882) for establishment of funds for such nature as would assist in financing of infrastructure projects located in India, or partly in India and partly outside India, including real estate investment trusts and infrastructure investment trusts;
- (iv) support the development of a deep and liquid market for bonds, loans and derivatives for infrastructure financing including facilitating electronic and negotiated markets infrastructure, investor protection, adjudication infrastructure, etc.;
- (v) lend and invest in infrastructure projects located in India, or partly in India and partly outside India, including by underwriting credit, securitisation of its receivables, including by way of any pass through certificate or direct assignment, transfer or novation, or by means of innovative financial tools including transactions secured by receivables from project;
- (vi) extend loans and advances to any company or statutory corporation or trust or any financial institution funding infrastructure, for the purposes of providing financial assistance for infrastructure projects located in India, or partly in India and partly outside India;
- (vii) take over or refinance existing loans extended by a lender for infrastructure projects located in India, or partly in India and partly outside India;
- (viii) transfer loans and advances granted by it, with or without the securities, to trusts, for consideration;
- (ix) set aside loans or advances held by the Institution and issue and sell securities based upon such loans or advances so set aside in the form of debt obligations, trust certificates of beneficial interest or other instruments, by whatever name called, and act as a trustee for the holders of such securities;
- (x) assign securities issued to the Institution;
- (xi) subscribe to or purchase, underwrite, acquire, hold or sell stocks, shares, bonds, debenture stocks, debt securities, obligations and securities, commercial papers, certificates of deposit or debentures issued or guaranteed by any company or trust or registered society or co-operative society or association or the Central Government or any State Government or any financial institution funding infrastructure, to facilitate financing of infrastructure projects in India, or partly in India and partly outside India, or to facilitate deepening of bond market for infrastructure financing;
- (xii) borrow or raise money by way of loans or otherwise both in rupees and foreign currencies or secure the payment of money by the issue and sale of debentures, debenture stocks, bonds, obligations, mortgages and securities of all kinds, either perpetual or terminable and either redeemable or otherwise and charge or secure the same by trust deed, or otherwise on the undertaking of the Institution including its authorised or issued capital, or upon any specific property and rights, present or future, of the Institution or otherwise, howsoever;
- (xiii) borrow money from the Central Government, scheduled banks, financial institutions, mutual funds, any class of persons, and from any other institution or authority or organisation notified by the Central Government, on such terms and conditions as may be agreed upon and accept short term loans only for managing asset liability mismatches and not for any other business purpose;
- (xiv) buy or sell, or enter into such other dealings in foreign exchange as may be necessary for the discharge of its functions;
- (xv) issue participation certificates or debt securities, and promote and facilitate securitisation of loan portfolio of companies and other entities engaged in the development and financing of infrastructure and create and develop a secondary market for the securitised receivables including by way of acting as an intermediary;
- (xvi) lend money with or without security and make advances upon, hold in trust, issue, buy, sell or otherwise acquire or dispose of on commission or otherwise any of the securities or investments or act as an agent for any of the like purpose;
- (xvii) lend to or invest in or acquire professional or technical services of companies operating in the infrastructure domain across the life cycle of projects; (xviii) act as an intermediary in respect of transactions or services relating to debt securities issued by infrastructure companies and financial institutions for financing infrastructure projects located in India, or partly in India and partly outside India, including by way of extension of credit enhancement facilities;
- (xix) take an active role in negotiations and discussions with various Government authorities and stakeholders for effective dispute resolution in the field of infrastructure financing;
- (xx) apply for, receive, accept, administer and manage grants, aids, subsidies, funds or donations, etc., from national and international sources including World Bank, New Development Bank, Japan International Cooperation Agency, United States Agency for International Development, Kreditanstalt für Wiederaufbau, European Investment Bank, Asian Development Bank, International Finance Corporation and other organisations and agencies, and organise and facilitate foreign participation in infrastructure development projects;
- (xxi) issue guarantee, letters of comfort, or letters of credit for loans or credit arrangements made, or, debentures or bonds issued, by any financial institution funding infrastructure projects in India, or partly in India and partly outside India;
- (xxii) borrow money from the Reserve Bank repayable on demand or on the expiry of fixed periods not exceeding ninety days from the date on which the money is so borrowed against the security of stocks, funds or securities (other than immovable property) in which a trustee is authorised to invest trust money by any law for the time being in force in India; (xxiii) borrow money from the Reserve Bank against bills of exchange or promissory notes arising out of bona fide commercial or trade transactions maturing within five years from the date of the borrowing;
- (xxiv) convert any debt it has extended to a borrower into equity; and
- (xxv) any other kind of business or undertake any other kind of activity which the Central Government in consultation with the Reserve Bank may authorise.
- (2) In furtherance of sub-section (1), the Institution, either by itself or through its subsidiaries or joint ventures or in association with others, may carry out the following functions, namely:--
- (a) organise and facilitate participation from the Central Government, public sector, private sector and institutional investors from India or overseas in infrastructure development projects located in India, or partly in India and partly outside India;
- (b) provide facilities for training, for dissemination of information and the promotion of research including the undertaking of studies, researches, techno-economic and other surveys in the field of infrastructure development and it may for the said purposes make loans or advances or grants including grants by way of provision for fellowships and chairs to any institution;
- (c) provide technical, legal, marketing and administrative assistance to any person engaged in infrastructure development activities;
- (d) provide consultancy services in the field of infrastructure development, project structuring, capital structuring or operations subsequent to commissioning and other related matters in or outside India;
- (e) act as trustees of any deeds constituting or securing any debentures, debenture stocks, or other securities or obligation and undertake and execute any other trusts, and also undertake the office of or exercise the powers of executor, administrator, receiver, treasurer, custodian and trust corporation;
- (f) acquire an undertaking including the business, assets and liabilities of any institution the principal object of which is the promotion or development of infrastructure financing for projects located in India, or partly in India and partly outside India;
- (g) act as a financial intermediary for the purpose of promotion, financing and development of infrastructure projects and facilities located in India, or partly in India and partly outside India, through developing and disseminating appropriate financial instruments, negotiating loans and advances of all nature, and formulating schemes for mobilisation of resources;
- (h) structure proposals and negotiate agreements, with the proponents of infrastructure projects and with investors in infrastructure projects located in India, or partly in India and partly outside India;
- (i) open any account in any bank in or outside India or make any agency arrangement with, or act as an agent or correspondent of, any bank or other institution in or outside India; and
- (j) do such other acts and things as may be incidental to, or consequential upon, the exercise of its powers or the discharge of its duties under this Act or any other law for the time being in force, including sale or transfer of any of its assets.
- (3) The Central Government may, on a request being made to it by the Institution, guarantee the bonds, debentures and loans issued by the Institution as to the repayment of principal and the payment of interest at such rate, terms and conditions as may be agreed by the Central Government.
Chapter IV ACTIVITIES OF INSTITUTION
18. Prohibited business.
Statutory text
- (1) The Institution shall not make any loan or advance on the security of its own bonds or debentures.
- (2) The Institution shall not make loans or advances to any person or body of persons of which any of the directors of the Institution is a proprietor, partner, director, employee or guarantor, or in which one or more directors of the Institution hold substantial interest.
- (3) Sub-section (2) shall not apply to any borrower if any director of the Institution is nominated by the Institution or the Central Government as director on the Board of such borrower or is elected on the Board of such borrower by virtue of shares held in the borrower by the Institution. Explanation.-- For the purpose of this section, “substantial interest” in relation to a borrower, means the beneficial interest held by one or more of the directors of the Institution or by any relative of such director as defined in clause (77) of section 2 of the Companies Act, 2013 (18 of 2013) whether singly or taken together, in the shares of the borrower, and the aggregate amount paid-up on which either exceeds fifty lakhs rupees or two per cent. of the paid-up share capital of the borrower, whichever is lesser or such other threshold as may be prescribed.
Chapter IV ACTIVITIES OF INSTITUTION
19. Related party transactions.
Statutory text
- (1) Except with the consent of the Board and subject to such conditions as may be prescribed, the Institution shall not enter into any contract or arrangement with a related party with respect to--
- (a) sale, purchase or supply of any goods or materials;
- (b) selling or otherwise disposing of, or buying, property of any kind;
- (c) leasing of property of any kind;
- (d) availing or rendering of any services;
- (e) appointment of any agent for purchase or sale of goods, materials, services or property;
- (f) such related party's appointment to any office or place of profit in the Institution, its subsidiaries or joint ventures or associate companies;
- (g) underwriting the subscription of any securities, or derivatives thereof, of the Institution: Provided that no contract or arrangement involving transactions exceeding such sums as may be specified by regulations, shall be entered into except with the prior approval in the general meeting of the shareholders: Provided further that no shareholder shall vote in such general meeting to approve any contract or arrangement which may be entered into by the Institution, if such shareholder is a related party: Provided also that nothing in this sub-section shall apply to any transactions entered into by the Institution in its ordinary course of business, other than transactions which are not on an arm's length basis: Provided also that the requirement of approval under the first proviso shall not be applicable for transactions entered into between the Institution and its wholly owned subsidiary, if any, whose financial statements are consolidated with the Institution and placed before the shareholders at the general meeting for adoption. Explanation.--In this sub-section,--
- (a) the expression "office or place of profit" means any office or place--
- (i) where such office or place is held by a director, if the director holding it receives from the Institution anything by way of remuneration over and above the remuneration to which he is entitled as director, by way of salary, fee, commission, perquisites, any rent-free accommodation, or otherwise;
- (ii) where such office or place is held by an individual other than a director or by any firm, private company or other body corporate, if the individual, firm, private company or body corporate holding it receives from the Institution anything by way of remuneration, salary, fee, commission, perquisites, any rent-free accommodation, or otherwise;
- (b) the expression "arm's length transaction" means a transaction between two related parties that is conducted as if they were unrelated, so that there is no conflict of interest.
- (2) Every contract or arrangement entered into under sub-section (1) shall be referred to in a report made by the Board to the shareholders, along with the justification for entering into such contract or arrangement.
- (3) Where any contract or arrangement is entered into by a director or any employee, without obtaining the consent of the Board or approval by a resolution in the general meeting of the shareholders under sub-section (1) and if it is not ratified by the Board or, as the case may be, by the shareholders at a meeting within three months from the date on which such contract or arrangement was entered into, such contract or arrangement shall be voidable at the option of the Board or, as the case may be, of the shareholders and if the contract or arrangement is with a related party to any director, or is authorised by any other director, the directors concerned shall indemnify the Institution against any loss incurred by it.
- (4) Without prejudice to anything contained in sub-section (3), it shall be open to the Institution to proceed against a director or any other employee who had entered into such contract or arrangement in contravention of the provisions of this section for recovery of any loss sustained by it as a result of such contract or arrangement.
- (5) Any director or employee of the Institution who had entered into or authorised a contract or arrangement in violation of the provisions of this section, shall be liable to pay penalty of a sum of up to twenty-five lakh rupees.
Chapter IV ACTIVITIES OF INSTITUTION
20. Performance review of Institution.
Statutory text
- (1) The performance of the Institution shall, once in every five years, be reviewed by an external agency to be appointed by the Central Government.
- (2) The external agency shall review the performance of the Institution for the last five years with respect to the purpose and objectives of the Institution as set out in section 4 and shall take into account such key performance indicators as may be prescribed.
- (3) The external agency shall submit a report of its findings to the Board which shall forward a copy thereof along with action taken, if any, pursuant to such report to the Central Government within a period of three months from the date of receipt of the report.
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