Supersession of Bond Terms by State Legislation Disallowed

In
Kalyan Janta Sahakari Bank v.
State of Gujarat
, a division bench of the Gujarat High Court was
concerned with whether a legislation passed by the Gujarat State Legislature
can unilaterally alter the terms of an issue of bonds by the government company
to the detriment of the bond investors. The Court answered in the negative by
striking down the legislation on grounds of lack of legislative competence of
the State Legislature. While the case was decided predominantly within realm of
constitutional law, it has immense implications for securities regulation and
protection of bond contract terms.
In
1994, the Sardar Sarovar Narmada Nigam Limited (SSNNL), a government company,
issued deep discount bonds (DDBs) to various investors. Under the terms of the
DDBs, they were issued at a deep discount of Rs. 3,600 per bond, which was
redeemable at the face value of Rs. 1,11,000 at the end of 20 years. The
prospectus also provided for a “put option” to the investors who could seek
early redemption of the bonds at the end of the 7th, 11th
and 15th years. Although there was no corresponding “call option”
available with SSNNL under the prospectus, the same was introduced by the
Gujarat State Legislature through its enactment of the Sardar Sarovar Narmada
Nigam Limited (Conferment of Powers to Redeem Bonds) Act, 2008 (the “Act”). The
Act carried out the role of inserting a new condition into the bond terms by
which SSNNL was conferred the power to redeem the DDBs at a date prior to the
expiry of their term. In other words, the bondholders were subjected to a call
option available to SSNNL through subsequent legislation even though such an
option was not available as part of the prospectus and bond terms that SSNNL
and the bondholders had contractually agreed to. Moreover, the early redemption
foisted upon the bondholders was on less favourable terms than if they had held
on to the DDBs until the end of the original term as set out in the prospectus.
The legislation had the effect of altering the contractual terms of the bonds
without the consent of the bondholders who were a contracting party. The
question arose as to whether such legislative supersession of bond terms was
permissible under law.
After
a detailed analysis of constitutional law, and particularly issues pertaining
to legislative competence, the Gujarat High Court found that the state
legislature lacked the competence to pass the legislation, which was held to be
unconstitutional and was therefore struck down. The High Court found that the
legislative competence was not traceable to any of the entries in the State
List under the Constitution. Although it could arguably draw some source from
matters in the Concurrent List, the Court found that in pith and substance it
can be traced to matters in which Central laws are already in operation,
including the Securities Contracts (Regulation) Act, 1956, the Securities and
Exchange Board of India Act, 1992 and the Companies Act, 1956, as these provide
for a framework for issue and trading of securities, including government
securities of the present kind.
After
holding the Act to be unconstitutional, the Court refused to grant any
consequential relief to the bondholders. This was on the ground that such
relief required the Court to go into evidentiary matters and also those
relating to limitation and other legal considerations, which would be within
the domain of a civil court. Hence, the affected bondholders’ remedies were
stated to lie in a civil court before which they are to initiate proceedings.
Moreover, the Court also stated that such recourse would be available to
bondholders only if they had received early repayment from SSNNL under protest,
and not otherwise. However, the Court stayed the operation of its judgment for
eight weeks, and it
has been reported
that the bondholders are likely to initiate an appeal to
the Supreme Court on account of their inability to obtain consequential relief
from the Court.
This
decision as well as the dispute that gave rise to it in the first place offer
important lessons. First, it is one
among several instances where contractual terms between parties, especially
when one happens to be the state or a government company, are subsequently
unilaterally altered to the detriment of a private counterparty. This occurs
when the state enters into a contract that it subsequently finds carried terms
that were unfavourable to it, and seeks to renege on that contract citing
public interest. In the present case too, the preamble to the Act cited “public
interest” as a ground for seeking the alter the terms of the DDBs because, due
to declining interest rates, it became financially unviable for SSNNL to
maintain the DDBs until the end of the original term. Ideally, a “call option”
ought to have been set out in the terms of the prospectus so as to deal with
such a situation. But, the Government sought to address such an inadequacy by
subsequent legislation when it discovered that continuing with the bonds became
financially untenable. The problem lies in the fact that such a decision is
unilateral and does not include the consent of the counterparty, being the
bondholders. At the same time, such issues are not novel, and do arise in the
case of various types of government contracts, which often tend to end up in
litigation like the present one. On this occasion, it was questions over legislative
competence that came to the rescue of the bondholders.
Second, as for the High Court’s resistance to deciding on the
merits of the various bondholders’ claims, that is perhaps understandable as it
ought to be undertaken through a civil court. However, it appears from the news
report cited above that the bondholders would like to seek consequential relief
through the writ jurisdiction of the court given that a civil suit is likely to
be beset by delays and costs.


Third, given that the High Court came to the conclusion that the
individual claims of the bondholders must be asserted before a civil court, it
is somewhat surprising that it has also sought to limit the type of claims that
may be so asserted, in that only bondholders who have received payments in
protest are entitled to do so. There does not seem to be any reasoning or
rationale provided for the same. To that extent, the bondholders (whether or
not they have protested) may be justified in making a claim for relief,
particularly because the entire legislation was found to be unconstitutional.
There is no reason why some bondholders’ rights become unavailable by virtue of
a legislation that has been struck down to be unconstitutional.

About the author

Umakanth Varottil

Umakanth Varottil is an Associate Professor at the Faculty of Law, National University of Singapore. He specializes in corporate law and governance, mergers and acquisitions and cross-border investments. Prior to his foray into academia, Umakanth was a partner at a pre-eminent law firm in India.

Add comment

Subscribe to Blog via Email

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Recent Posts

Topics

Recent Comments

Archives

web analytics