CERSAI

Central Registry of Securitisation Asset Reconstruction and Security Interest of India is a company licensed under section 25 of the companies act, 1956 and is registered by the Registrar of companies, New Delhi.

The company is a Govt company with a share holding of 51% by the Central Govt and selected public sector banks and national housing bank are also the share holders of the company.

The object of the company is to maintain and operate a Registration system for the purpose of registration of transactions of securitization, asset reconstruction of financial assets and creation of security interest over property, as contemplated under Chapter IV of the Securitisation and Reconstruction of financial assets and Enforcement of Security Interest Act, 2002.(SARFAESI ACT, 2002).

The registration would be applicable to transactions of security interest over property created to secure loans and advances from the banks and financial institutions as defined under the SARFAESI ACT.

The company is providing the platform for filing registrations of transactions of securitization, asset reconstruction and security interest by the banks and financial institutions.

Any person can also search and inspect the records maintained by the Registry on payment of fees prescribed under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (Central Registry) Rules, 2011

Issuance of Digital Signature – CERSAI has given deadline for issuance for Digital Signatures to all Bankers.- from TCS.

As per the latest letter from CERSAI (19^th March, 2012), the new online system would permit the users to upload the details of security interest in the new format only from 1^st April, 2012.

As per the letter from CERSAI (14^th March 2012), The GOI, Ministry of Finance has advised the banks to file the particulars of transactions of security interest over property created on or before 31^st March 2011 with CERSAI before 31^st March 2012.

As per the letter from CERSAI(30^th December 2011), data in respect of transactions of creation/modification/satisfaction of security interest and securitization or reconstruction of financial assets on or after March 2011 is being reigistered in the central registry system in accordance with the Govt notification.

SARFAESI ACT

The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002

The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, allows banks and financial institutions to auction properties (residential and commercial) when borrowers fail to repay their loans. It enables banks to reduce their non-performing assets (NPAs) by adopting measures for recovery or reconstruction.

When do properties fall under this Act?

If a borrower defaults on repayment of his/her home loan for six months at a stretch, banks give him/her a 60-day period to regularise the repayment, that is, start repaying. On failure to do so, banks declare the loan an NPA and auction it to recover the debt.

Central Registry CERSAI setup by RBI under SARFAESI Act to prevent Property Fraud

Central Registry, a long awaited financial sector demand fulfilled with RBI notification and govt gazette notification in pursuant to the announcement made by the Finance Minister in the budget speech for 2011-12, Government of India, Ministry of Finance.

The Reserve Bank of India (RBI) in a notification on 19 May 2011 announced the operationalisation of a central registry that will have details of all properties against which loans have been taken.

With existence of central registry, it would be virtually impossible for a borrower to raise loans twice against the same property or raise loans using forged documents.

In the past, there have been instances where borrowers have forged the title deed and borrowed money from multiple banks by giving duplicate documents (title deed) as security for home loan. As a result, when the borrower defaults on the loan, many banks would make claim for the same house.

Towards this end-The Central Registry of Securitisation Asset Reconstruction and Security Interest of India (CERSAI)-a government company licensed under the Companies Act.1956, has been incorporated to operate and maintain the Central Registry under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act).

Initially transactions relating to securitisation and reconstruction of financial assets and those relating to mortgage by deposit of title deeds to secure any loan or advances granted by banks and financial institutions, as defined under the SARFAESI Act, are to be registered in the Central Registry. The records maintained by the Central Registry will be available for search by any lender or any other person desirous of dealing with the property.

RBI said that the records maintained by the Central Registry will be available for search by any lender or any other person desirous of dealing with the property. Availability of such records would prevent frauds involving multiple lending against the security of same property.

Availability of such records would prevent frauds involving multiple lending against the security of same property as well as fraudulent sale of property without disclosing the security interest over such property, the RBI said in a statement.

RV Verma, chairman and managing director, National Housing Bank, has been given additional charge as the registrar of the Central Registry for three months, and he will also be the managing director and CEO of CERSAI.

As per Govt notification Central Registry established at Indian Banks’ Association, Delhi Local Chapter Address : Central Registry of Securitisation Asset Reconstruction and Security Interest of India, 5 th Floor, MTNL Telephone Exchange Building,8, Bhikaji Cama Place, New Delhi – 110066, Telephone Number: 011-26176847, 011-26176855, 011-26176856, Website: www.cersai.org.in

Banks do register mortgage by deposit of title deeds of immovable property with CERSAI. The very first page of the form for uploading the details in CERSAI asks you to create charge and in the drop down menu of 'Asset Type' there is only one option namely "Immovable Property". It does not differentiate agricultural property. In the page of uploading descripttion of property also, the term 'agricultural property' is not found. A financial asset includes any beneficial interest in property whether movable or immovable in the Sarfaesi Act. What I understood from CERSAI is that it is only meant to keep a register of all mortgages by deposit of title deeds. And no where we can find the definition of the term 'agricultural land', 'agricultural property', 'agricultural purpose' in the legislation. CERSAI is not meant for the purpose of enforcement of security interest. It is only a platform for compulsory registration of all mortgages with banks and Co-operative banks of immovable property. Section 31[i] which excludes the provisions of Sarfaesi Act to agricultural land is only meant in the case of Enforcement of security interest. In such case the bank can have other options. Even if an agricultural loan is granted for agricultural purpose and mortgage of agricultural land is there CERSAI has to be done as registration of mortgages is compulsory. Dont get confused by registration in CERSAI with Enforcement under Sarfaesi. Even in future the legislation strictly forms a specific provision in that regard, first it has to define what is agricultural land and there also must be a mechanism to know whether it is used for agricultural purpose. Then also in the future after availing loan it can be converted for other purpose. So it doesnt mean that bank cannot initiate SARFAESI Action only because at the time of granting the loan the land was agricultural and it was not registered with CERSAI.

Registration of Mortgages with Cersai by Banks

Section 20 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act(hereinafter referred as Sarfaesi Act) directs the Central Government to set up a Central Registry for the purpose of registration of every transaction of securitisation and reconstruction of financial assets and creation of security interest under the Sarfaesi Act. In plain words, every mortgage of immovable property for securing a loan is to be registered with the Central Registry of Securitisation Asset Reconstruction and Security Interest of India (hereinafter referred as CERSAI).

As per the directive of the Sarfaesi Act, the CERSAI was set up vide Government notification and it is now located in New Delhi.

Registration Process.

After every mortgage of immovable property, the details has to be registered with the CERSAI by going to the website www.cersai.org.in after remitting prescribed fees. This has to be done within thirty days of creation of mortgage by deposit of title deeds. You may need to enter the borrower's name, his details, property details, loan details, guarantor's details etc. After successfully submitting the informations you will get an Asset ID. This should be saved for future modification of transactions. The officers of the Banks need a member user identification number and password to enter the website.

Important Details

PIN code or ZIP code of the domicile address of the borrower, guarantor, charge holder/bank, registry of title deeds, property etc is needed. Permanent Account Number is mandatory. In case of absence of PAN numbers, a dummy PAN number can be used. Account Number is also important. Like wise the limit of loan, survey number of property, extent, date of registration of title deed etc is important. Taluka, Tehsil, District, State etc are important. The borrowers' name is important. There are so many things which I may discuss in another post. Non-mandatory things like Date of Birth of borrower, guarantor, their phone numbers etc is also there.

Time limits and Fees

The registration of every transaction of mortgage should be done within thirty days. Otherwise you will be required to pay additional fee for registration. The fee limit for loans below five lakh rupees are two hundred and fifty rupees and for limits more than five lakhs, the fee is five hundred. This is same in the case of future modification also.For condonation of delay, the fee limits are two thousand five hundred for limits below five lakh rupees and five thousand for limits above five lakh rupees.

Priority of Charges

The registration in Cersai will not affect the existing charge created over the property by operation of other enactments. This is clearly stated in Section 20 of the Sarfaesi Act.

1. Applicability of the Registration System:
The Provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) are applicable to secured creditors as defined by section 2(1)(zd) of the Act. In terms of the definition following categories of secured creditors are governed by the SARFAESI Act:
(i) Banks
(ii) Financial Institutions
(iii) Debenture Trustee appointed by any bank or financial institution
(iv) Securitisation Company (SC) or Reconstruction Company (RC)
(v) Any other trustee holding securities on behalf of a bank or financial institution.
In terms of the definition of bank and financial institution contained in section 2(1)(c) and (m), the Central Government has powers to declare any other bank or financial institution as a bank or financial institution for the purposes of the provisions of the SARFAESI Act. In exercise of the above powers the Central Government has declared certain banks and housing finance companies as financial institutions for the purposes of the SARFAESI Act, by issue of Notifications as under:
a) Notification No.SO105(E) dated 28.01.2003 declaring Co-operative Bank as defined in clause (cci) of section 5 of the Banking regulation Act, 1949 as 'bank' for the purposes of SARFAESI Act.
b) Notification No.So.1282(E) dated 10.11.2003 declaring certain Housing Finance Companies registered under section 29A of the National Housing Bank Act, 1987, as 'financial institutions' for the purposes of SARFAESI Act.
c) Notification No.SO 1275(E) dated 30.10.2003 declaring Asian Development Bank as 'financial institution' for the purposes of SARFAESI Act.
d) Notification No.SO772(E) dated 17.05.2007 declaring Regional Rural Banks as defined in clause (f) of section 2 of the Regional Rural Banks Act, 1976 as 'bank' for the purposes of SARFAESI Act.
All such entities are secured creditors for the purposes of SARFAESI Act and are required to register security interest by way of mortgage by deposit of title deeds with the Central Registry of Securitisation Asset Reconstruction and Security Interest of India (CERSAI). IN addition to debenture trustees referred to in the definition of secured creditors there are certain trustee companies holding securities on behalf of banks and financial institutions. Such trustee companies are also secured creditors for the purposes of the SARFAESI Act and are governed by the requirements of the Registration System.

2. What types of Security Interests are required to be registered with CERSAI?
The Central Government has notified the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (Central Registry) Rules, 2011 (Central Registry Rules) with effect from 31st March 2011. In terms of the provisions of the said Rules, the Forms have been prescribed for the purposes of registration of following transactions with CERSAI:
(i) Creation of mortgage by deposit of title deeds in favour of secured creditors: Form-I
(ii) Satisfaction of Charge : Form-II
(iii) Securitisation or Reconstruction of Financial Assets: Form-III
(iv) Satisfaction of Securitisation or Reconstruction of Financial Assets : Form-IV
It can be seen from the provisions of the Central Registry Rules that no Forms have been prescribed for registration of charges other than mortgage by deposit of title deeds. Hence for the present, the secured creditors are required to file particulars of only equitable mortgages with CERSAI.

3. Registration of Securitisation and Reconstruction Transactions:
Banks and financial institutions undertake securitisation of healthy assets, but such securitisation may not be under the provisions of the SARFAESI Act. The assignment of loan receivables with or without the benefit of underlying securities is done in favour of a Special Purpose Vehicle (SPV), using the provisions of the Indian Trust Act, 1882. Such assignment of loan receivables may not be in favour of any SC or RC registered under the provisions of section 3 of the SARFAESI Act. Such securitisation transactions are therefore not required to be registered with CERSAI. If any SC or RC registered under the SARFAESI Act is acquiring loan receivables for securitisation or asset reconstruction, such transactions are required to be registered in Form-III prescribed under the Central Registry Rules. It needs to be noted that registration of transactions of securitisation or reconstruction has no relevance with creation of mortgage by deposit of title deeds. There could be cases where securitisation or reconstruction is undertaken in respect of loan receivables which are unsecured or secured by security interest other than mortgage by deposit of title deeds. All such transactions of securitisation or reconstruction are required to be registered with CERSAI. In many cases, such securitisation or reconstruction transactions would relate to a bundle of loans consisting of many loan accounts acquired from any bank or financial institution. In such cases, satisfaction of the securitisation / reconstruction transaction will have to be filed with CERSAI after all the accounts contained in such bundle of loans are satisfied or otherwise closed. It is not necessary to file any Form for Satisfaction, if only part of such loan portfolio acquired by SC/RC is settled and recovered.
It is not necessary that the loans acquired by SC/RC for the purpose of securitisation or reconstruction or secured by mortgage by deposit of title deeds. However, any SC/RC registered with Reserve Bank of India is also a secured creditor for the purposes of SARFAESI Act. Hence, if in the process of reconstruction of any loans acquired by SC/RC, a mortgage is created in favour of SC/RC to secure the reconstructed loans or any further finance granted to the borrower, such mortgage created in favour of SC/RC will have to be registered by filing Form-I with the CERSAI.

4. Effective Date of the Registry System:
The Government notifications of establishing the Central Registry and prescribing the Central Registry Rules as well as for appointment of the Central Registrar are all dated 31st March 2011. The Registration System has therefore become effective from 31st March 2011 and all security interests by way of creation of mortgage by deposit of title deeds as also transactions of securitisation and asset reconstruction on and after 31st March 2011 are required to be registered. The relevant Rules have not been given retrospective effect and hence transactions of mortgages or securitisation or asset reconstruction undertaken prior to 31st March 2011 are not required to be registered. If in any loan accounts there is a release and re-deposit of title deeds on or after 31st March 2011 amounting to creation of mortgage, such transaction will require registration.

5. Equitable mortgages in favour of trusts/trustee companies
As stated above, the definition of secured creditor under the SARFAESI Act includes trustee acting on behalf of any bank or financial institution and is a secured creditor for the purposes of SARFAESI Act. In cases where equitable mortgages are created in favour of a trustee or a trustee company, Form-I should be filed by such trustee and in para 7 of Form-I, name of the charge holder may be stated as under:
'..... Trustee Company acting on behalf of ...... Bank and ..... Financial Institution'. (The names of the Banks and Financial Institutions on whose behalf the trustee is holding the securities may be indicated after the name of the trustee / trustee company).

6. As of now there is a requirement to file Form 8 under the Companies Act for creation or modification of charge u/s. 125-128. Does the filing of equitable mortgage before this Registry in any way affect this requirement for ROC filing or registration under the Registration Act, 1918?
The Central Registration system established under the SARFAESI act is in addition to and supplemental to other registration system already in operation under other laws such as the Companies Act 1956 or Registration Act, 1918. The registration under the SARFAESI Act does not in any way affect or change the requirement of registration under other laws. Please refer to sub-section (4) of section 20 of the SARFAESI Act.

7. Whether registration fees attract Service Tax and whether TDS is required to be deducted from the advance remittance by the HFCs.
The registration fees are payable as required under the Central Registry Rules 2011 framed in exercise of powers conferred on the Central Government under Section 23 read with Section 38 (2) (d) of the SARFAESI Act, 2002. The fees which is being collected by the Central Registry from the banks and financial institutions is an advance towards the fees to be paid to the Government for registration. When the particulars of mortgages are filed with the registry the fees will be debited to the advance already collected. In our views no TDS/ST is payable in respect of such payments which are charges payable to the Govt. The amount of advance is linked to registrations required to be filed by the Bank or Financial Institution. Once the Central Registry installs the Payment Gateway for payment of fees for registration there will be no requirement of payment of advance.

MEANING AND DEFINITIONS

1. Short title and commencement.-(1) these rules may be called the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (Central Registry) Rules, 2011.

(2) They shall come into force on the date of their publication in the Official Gazette.

2. Definitions.-

(1)   In these rules, unless the context otherwise requires,-

(a) “Act” means the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002);

(b) “Central Register” means the register kept and maintained under section 22 of the Act;

(c) “Central Registrar” means a person appointed as such under sub-section (1) of section 21 of the Act;

(d) “Central Registry” means the Central Registry set up under section 20 of the Act;

 (e) “Transaction” means any transaction of securitisation of financial assets or reconstruction of financial assets or security interest created over the property and modification and satisfaction of any security interest over property.

(2)   Words and expressions used in these rules and not defined shall have the meaning respectively assigned to them in the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002); or the Information Technology Act, 2000 (21 of 2000), as the case may be.

3. Maintenance of Central Register

(1) A Central Register shall be kept for the purpose of maintaining records of registration of transactions relating to securitisation, reconstruction of financial assets and security interest created over properties, under the Act.

(2) All electronic documents, required to be signed by the Central Registrar under the Act or rules made thereunder, shall be authenticated through his digital signature.

4. Manner in which particulars of Transaction are to be filed with the Central Registry.-

(1) Particulars of every transaction of securitisation or reconstruction of financial assets and satisfaction of such transaction on realisation of the financial assets or creation, modification or satisfaction of any security interest required to be registered under sections 23, 24 and 25 of the Act, shall be filed in such Forms as may be specified by the Central Government from time to time as hereinafter provided.

(2) Particulars of every transaction of securitisation and reconstruction of financial assets and creation, modification or satisfaction of security interest by way of mortgage by deposit of title deeds shall be filed in Form I, Form II, Form III or Form IV, as the case may be, and shall be authenticated by a person specified in the Form for such purpose by use of a valid digital signature.

(3) The Central Government may specify Forms for filing particulars of creation, modification or satisfaction of security interest other than mortgage by deposit of title deeds by amendment to these rules from time to time.

(4) If any security interest being created in favour of two or more lenders, the details as to inter se priority amongst them and whether they hold it on a pari passu or subordinate basis shall be required to be specified:

Provided that if the ranking of security is not available, the Central Registrar may allow such time, not exceeding sixty days from the date of application, for the same to be furnished by the secured creditors.

5. Time limit for registration and condonation of delay

(1) The particulars of every transaction referred to in sub-rule (1) of rule 3 shall be filed the Central Registrar within a period of thirty days from the date of such transaction.

Serial Number	Nature of transaction to be Registered	FORM No.	Amount of fee payable
(1)	(2)	(3)	(4)
1.	Particulars of creation or modification of Security Interest in favour of secured creditors	FORM I	500 for creation and for any subsequent modification of Security interest in favour of a secured creditor for a loan above 5 lakh. For a loan upto 5 lakh, the fee would be 250 for both creation and modification of security interest.
2.	Satisfaction of any existing Security Interest	FORM II	250
3.	Particulars of securitisation or reconstruction of financial assets	FORM III	1000
4.	Particulars of satisfaction of securitisation or reconstruction transactions	FORM IV	250
5.	Any application for information recorded / maintained in the Register by any person	----	50
6.	Any application for condonation of delay up to 30 days	----	Not exceeding 2500 in case of creation of security interest for a loan up to 5 lakh and not exceeding 5000 in all other cases.

(2) In cases where there is a delay in filing the particulars of transaction for registration or modification or satisfaction within the time specified in sub-rule (1), the Central Registrar, on an application in specified form, stating the reasons for delay not exceeding thirty days from next following the period of thirty days provided in sub-rule (1) may allow filing of the particulars of transaction on payment of additional fees as specified in these rules.

6. Inspection of records of Central Register

The particulars of any transaction kept in the Central Registry shall be open for inspection to any person through the website of the Central Registry and during the business hours at the Central Registry on payment of fee specified in rule 7:

Provided that the Central Registry may allow the inspection to be carried out through such person, authorised by it in this behalf.

7. Fees

Every Form for registration of any transaction relating to security interest over any property and every request for inspection of any record maintained by the Central Registry shall be accompanied by a fee specified in the Table given below to be paid to the Central Registry in such manner as may be specified from time to time.