Dr. Gamini Fernando
By Romesh Abeywickrema
The dispute between People's Bank and Yashodha Holdings (Pvt.) Ltd. of local businessman Yasasiri Kasturiarachchi, which has been deadlocked for over nine years, since May 1996, appears to be reaching a settlement as the result of a report submitted in early September by a banking law expert agreed to by both parties.
The report whilst finding fault with the People's Bank for the manner in which it has maintained records under a previous management has recommended a settlement on the basis of a Rs. 100 million payment by Yasasiri Kasturiarachchi to the bank.
Letter to IGP from Dixon Nilaweera
Copy of confidential report forwarded to the President sent to Gamini Fernando by Nilaweera
The report titled "Inquiry Into The Dispute Between The People's Bank And Yashodha Holdings (Pvt.) Ltd," is by Dr. Wickrema Weerasooria, an expert in bank law with several books to his credit.
People's Bank had granted facilities in the period 1991 upto 1996 to Yashodha Holdings to import and sell sugar, cement, rice and other commodities. These credit facilities in the form of 444 import bills amounting to about Rs. 8.6 billion had been suspended in May 1996. By then, Yashodha Holdings had deposited with People's Bank upto Rs. 17.2 billion. With deposits of over Rs. 17 billion, the People's Bank had yet neglected and failed to recover its credit facilities of Rs. 8.6 billion. The parties ended up in court. The bank filed several legal actions claiming Rs. 2.4 billion as capital and another Rs. 4.2 billion as interest. The customer (Yashodha Holdings) filed a separate legal action against People's Bank claiming Rs. 6 billion as damages. Both cases are still pending before the Commercial High Court of Colombo.
In between the civil actions by each party claiming monies due to each other, a criminal action had been filed by the CID against Yashodha Holdings and its Chairman and Managing Director, Yasasiri Kasturiarachchi. The criminal action by the CID was on the basis that Kasturiarachchi defrauded the People's Bank - a state sector institution and therefore government property (money). It was alleged that the fraud had been committed by irregular shipments of sugar to the tune of nearly Rs. 600 million. This criminal case had been filed in December 1998.
On that occasion Kasturiarachchi had obtained anticipatory bail under the Bail Act of 1997. This was the first time in Sri Lanka's history that an accused person had applied for and obtained such anticipatory bail. legal Counsel who appeared for Kasturiarachchi in the application for anticipatory bail was President's Counsel, K.N. Choksy. Subsequently, when the criminal trial was taken up by the Colombo High Court, Kasturiarachchi (for whom President's Counsel Tilak Marapone appeared) was discharged and acquitted by the High Court Judge because the state counsel representing the CID submitted that he had no evidence to go on with the case. Dr. Weerasooria's report now finds that this criminal case was politically motivated and was without any foundation.
Current inquiry report
The current inquiry and report by Dr. Wickrema Weerasooria came after a request for a joint audit by Kasturiarachchi to the Finance Ministry. In April 2002, Charita Ratwatte as Finance Ministry secretary had recommended to the People's Bank that a joint audit be conducted to see whether the dispute could be settled. The bank agreed to such a joint audit and the audit commenced in June 2003 and went on for seven to eight months. That audit had given a clearer picture of the transactions and the dispute between the parties. However, the joint audit was not conclusive, because the senior partner of the audit firm representing the customer, Yashodha Holdings (Pvt.) Ltd, Tissa Fernando had not agreed with certain submissions by the People's Bank based on the working sheets and documents produced by the audit.
Having come so far, the impasse between the two parties was then referred to the Prime Minister. The Prime Minister had suggested that the current position of the disputed area be examined by an independent banking law expert acceptable to both parties. Advisor to the Prime Minister, R. Paskaralingam was asked to speak to both the parties and settle on a person as a kind of arbitrator or mediator. The suggestion was also made that if both parties so desired, they could opt for a banking law expert from abroad. Finally, both Yashodha Holdings (Pvt.) Ltd. and the People's Bank agreed to an inquiry and report by Dr. Wickrema Weerasooria, who is also involved in the financial sector law reforms in the country.
Both parties also agreed that this inquiry and report was to be conducted "without prejudice" to the court cases now pending between them. After over six weeks of inquiry commencing in late July, in mid-September, Dr. Weerasooria submitted his report containing 17 chapters of nearly 200 pages.
Without any reservations, Dr. Weerasooria's report finds that People's Bank has been grossly negligent in the operations of the customer's accounts and have only themselves to blame if they now allege that monies are owing to it from the customer.
The report also finds that Yashodha Holdings had obtained facilities only for import of sugar and cement, and a few shipments of rice. The bulk of the facilities was for import of sugar and cement. Yashodha had not borrowed to purchase factories, buy land or for working capital. The entire credit facilities of Rs. 8.6 billion was utilised for 432 trade bills. The total bills came to 444 bills but the customer had paid fully from its account for 12 bills and had borrowed only to clear shipments on 432 trade bills.
Also, the trade bills were for short terms of 30, 60 or 90 days. Hence, the entire transaction was limited to very short term borrowings. During this period when the facilities amounted to Rs. 8.6 billion, the customer had paid in to its account Rs. 17.2 billion - over double the amount lent by the bank. But People's Bank ended up by alleging that it was owed Rs. 2.2 billion by the customer.
In Chapter Eight of his report entitled "A Summary Of The Negligence Of The People's Bank And Yashodha Holdings In Operating The Account," Dr. Weerasooria states :-
"This is not a complicated case - except that in my view, mainly during the period August 1994 to mid 1996, the People's Bank by its gross negligence and a lack of ownership of responsibility at a very senior level or at board level to oversee the operations of the customer's account, brought upon itself the current situation. No doubt, as I will show, the customer was also very much to blame. The customer's negligence is referred to in banking law as 'contributory negligence.'
"Admittedly, this dispute relates to 444 trade bills. The majority of them, over 75% were for import of sugar. About 20% for cement and the balance for other food stuffs and consumables, mainly rice.
"The total rupee amount loaned by the bank to the customer to clear the goods imported on the 444 trade bills was approximately, Rs.8.6 billion. There is no dispute whatsoever between the parties about the number of trade bills (444) and their value.
"The period of this banker-customer relationship for the settlement of the 444 trade bills was a very short one, unlike a normal banker-customer relationship which lasts very much longer. Normally, trade bills are settled within 30 days or 60 days and exceptionally in 90 days.
"The bank's facilities to Yashodha were for no other purpose. Yashodha did not with the facilities given by the Bank -
(a) buy land
(b) buy houses
(c) set up factories
"Next, according to the customer (Yashodha Holdings) with all the cash and cheques deposited by it together with other credits due to it, it had placed with the bank during this period of their banking relationship a sum of approximately Rs.17.2 billion.
"Also, of the 444 trade bills, 22 bills on which Yashodha Holdings imported in 1990-1991 were fully paid and settled by the customer with its own funds and not one cent of the bank was used to pay for those 22 bills which amounted to Rs.22.5 mn. Thus, my inquiry relates to the bank having to get paid for only 432 (out of 444) import bills the customer negotiated through the bank - amounting to a little over Rs. 8.6 billion."
It is also significant that the bank had required and the customer had agreed unconditionally that the bank had the right to deduct from the customer's account - irrespective of the banker's normal right of set-off and combination of accounts - all monies - capital and interest due to it on account of these transactions.
Thus, the People's Bank that had received Rs.17.2 billion with which it could have paid off the value of the 432 import bills of Rs.8.6 billion plus interest thereon for the facilities granted, with all the legal right to do so, has now, according to the bank, suffered a non-performing debt loss of about Rs. 2.4 billion (which with interest comes to about Rs.4.5 billion).
How could this have happened? How did the bank fail to recover Rs. 8.6 billion (the capital) plus its interest when the customer had banked with it Rs. 17.2 billion and had expressly agreed that the bank recover all its due (capital plus interest) from its account."
"This, basically, in a nutshell, is the dispute which is the subject of my inquiry.
"In a well-known statement about banks, which is now often quoted, Professor James Galbraith, the well-known Nobel Prize winning American economist and author of several books said - I am bewildered, mesmerised and appalled at the way banks make money.
"As a person actively involved in the law and practice of banking for over 35 years and having studied over 1000 cases where banks were sued by customers (which is the common case) and where banks sued their customers (which is uncommon), I never really understood the real truth of what Professor Galbraith said until I came to inquire into this dispute between the People's Bank and Yashodha Holdings (Pvt.) Ltd."
No political influence
Dr. Weerasooria's report also finds that no political influence was brought to bear on the People's Bank to grant facilities to Yashodha Holdings. It also finds that there was no fraud or wrongdoing in the operation of the accounts between the bank and the customer over the five year period. As regards the bank's negligence, the report fixes all responsibility and blame on the bank's chairman and board of directors of the period after the change of government in August 1994. In Chapter eight of the report, Dr. Weerasooria states
"In my view, the only board of the People's Bank who must bear real responsibility for this alleged debt is the board appointed after the change of government in August 1994 and who functioned as a board until the beginning of 2000."
Two individuals are identified by the report for this sorry state of affairs - the People's Bank's negligence. Firstly, Chairman, People's Bank from August 1994, Dr. Gamini Fernando, and secondly, Chief Manager People's Bank Corporate Branch that opened and operated the Yashodha Holdings accounts, George Silva.
Chairman Dr. Gamini Fernando was a Central Bank economist. As a political appointee, he had been selected as chairman by Chandrika Kumaratunga when she assumed the finance portfolio as well as being Prime Minister in August 1994. Dr. Gamini Fernando had been associated with the PA political campaign before the general elections of August 1994. He was later asked to step down as chairman of the bank in the late 1990s.
The report also finds that George Silva, chief manager corporate branch had no proper knowledge of import/export transactions. At best he was only good at marketing and public relations. The report states that even senior staff at the bank were surprised how George Silva came to be appointed as chief manager of the corporate branch with no one to supervise or overlook his work.
As one officer had told the inquiry "George Silva had not seen a letter of credit or import bill of any big value before."
George Silva, as chief manager of the bank's corporate branch only had authority to grant facilities upto Rs. 3 million but had always exceeded his authority and granted facilities on his own from Rs. 10 million to Rs. 250 million. George Silva had also been warned by the bank and punished on two occasions for exceeding his authority. This had happened just prior to his appointment as chief manager, corporate branch. He was dismissed by the bank in 1996 but not on the Yashodha Holdings issue.
Different chapters of Dr. Weerasooria's report deals with difference issues of relevance to the dispute. Firstly, the general public's perceptions and speculation was that Yashodha Holdings enjoyed the political patronage of former President D.B. Wijetunge and that the People's Bank was influenced to grant these credit facilities. Chapter six of the report deals with this issue. It states:
"The public perception in Sri Lanka is that Yasasiri Kasturiarachchi was well known to former President D.B. Wijetunge and that the credit facilities that Kasturiarachchi was able to obtain from People's Bank for his sugar and cement imports was because of the influence used by President Wijetunge.
"That was the view that I had also formed until I began inquiring into this dispute.
"At my inquiry, I put this issue to the bank's team very openly and very bluntly by the pointed question:
"Did D.B. Wijetunge as prime minister or president or in any other capacity influence the People's Bank to grant credit facilities to Yashodha Holdings or help in any other way etc.?
"The answer was in the negative. No officer of the bank asserted or suggested that former President Wijetunge exerted any influence - political or otherwise in this matter at any time.
"In examining whether Kasturiarachchi used political influence to get facilities from the People's Bank - especially the assistance of President Wijetunga - it is very significant to note that Yashodha Holdings' business with the bank of importing sugar, cement and rice, although it commenced in the latter part of 1991, the bulk of it was done after the change of government in mid 1994 with Chandrika Kumaratunga as prime minister and finance minister and subsequently as president and finance minister."
"I have shown in chapter eight that of the 444 trade bills operated through the People's Bank more than half (238 trade bills) were financed after the change of government to a People's Alliance (PA) administration under Kumaratunga."
"Far from obtaining any political or external influence to assist him with his banking operations with the People's Bank, my inquiry shows that Yasasiri Kasturiarachchi suffered unprecedented political victimisation at the hands of President Kumaratunga and in my view the President's intervention in discrediting Kasturiarachchi was one, if not the main cause, of the downfall of Yashodha Holdings and its trading which ultimately resulted in its collapse and in this dispute. I refer to these matters in chapter nine of my report."
In Chapter Seven the report deals with the issue of fraud:
"The senior bank staff that appeared before me at my inquiry were unanimous that there was no fraud or misappropriation involved in this account and I so hold. I came to this conclusion because I made it a point to ask the bank staff the specific question as follows:
"Do any one of you, collectively or individually feel that there were fraudulent activity or transactions involved in these accounts? The answer was No.
"After examining all the evidence, I am satisfied beyond doubt (and the bank did not contest this view in any way) that there was no fraud or misappropriation or misuse of funds in relation to the Yashodha bank accounts and operations with the People's Bank - either by the customer or by any of the bank's staff.
"On the other hand, in my inquiry, I found that the People's Bank had been negligent in the operations of the account and its transactions with its customer and in my view, it is because of this negligence that this loan portfolio deteriorated to enter the non-performing loan category. The customer also was guilty of contributory negligence. But negligence, however great is not fraud. I deal with the negligence issue in Chapter Eight of my report."
The report also notes that the Yashodha account was the largest ever in Sri Lanka's banking history. The report states in Chapter Eight;
"Yashodha's volume of imports of sugar, cement and rice was so large that the company became the largest customer in Sri Lanka's entire banking history for the past 150 years. No single customer - ever traded to such a large extent - all on import bills. No single customer ever deposited such large sums to its accounts in the bank. And, regrettably for the bank, no single customer ever got such large facilities without adequate security for its borrowings.
"At my inquiry, the bank's team, in confirming that Yashodha Holdings was the largest customer of the bank in its history, also told me that the Yashodha bank account was larger than even the accounts of (i) Ceylon Petroleum Corporation (ii) Ceylon Electricity Board and (iii) Paddy Marketing Board. Also, these three latter accounts were those of state sector institutions and therefore 'guaranteed' by the government Treasury, while the Yashodha Holdings account was a pure private sector account. Yashodha's imports were also so large in money terms that they were even reflected in the annual reports of the People's Bank."
Chapter Eight of the report summarises main areas of negligence on the bank's part as follows:
"All banking law and practice was in the People's Bank's favour. They had the right to deduct all monies due to it from the customer's account in which admittedly there was over Rs. 17 billion as against a liability of Rs. 8.6 billion plus interest and charges.
"The bank had a right of set-off. It had a right of appropriation. It had a right to combine any of the customer's seven accounts and even the savings account. It was the bank's duty to protect and safeguard its lending. The bank was unable to show any document or refer me to any instance where the customer had contested or challenged a bank debit to protect its lending.
"As a banking lawyer who has over the past 25 years studied many cases involving bankers' negligence, I highlight the following as some of the major areas of the People's Bank's negligence.
No proper/adequate management at corporate branch. No qualified/experienced officers who could have managed the bank's (and Sri Lanka's) largest customer.
No proper /adequate supervision of corporate branch activity by senior management.
Not crediting of pledge loans/short term loans/trust receipt facilities to customer's current account with reciprocating debits. This omission was one of the main reasons for this dispute. If the customer's current account had reflected the bank's credit facilities, there could have been no further argument by the customer disputing such facilities.
No loan accounts opened where the pledge loans/short term loans etc. were identified.
Paying other liabilities of the customer without first recovering the liabilities due to the bank on the 444 trade bills. This recovery by the bank should have been its first and only priority. The customer had deposited over Rs.17 billion in its accounts to enable such recovery.
"The bank as the lender should have, at all times, protected 'its risk' and recovered from the customer's accounts on a daily/monthly basis all its outstandings. The customer was depositing enough money daily for such recovery. No one at the corporate branch saw to this. Rather, the bank paid out monies from the customer's accounts to meet 'other commitments' some of which were not connected with the 444 trade bills. The bank must
Accept liability for this negligence. They cannot cry over milk which they themselves spilt!
Exceeding single borrower limit as laid down by the Banking Act and not taking steps to rectify this.
Not taking adequate security from customer to safeguard its lending.
Not examining and satisfying itself of the customer's right to borrow.
The bank had also maintained at the corporate branch several other accounts relating to several other associated/subsidiary companies of Kasturiarachchi. This they should not have done because these companies/subsidiaries were separate distinct legal entities from Yashodha Holdings (Pvt.) Ltd. These accounts of different companies at the same branch confused the operations of this account."
Chapter Nine of the report is entitled "Political Victimisation Of Yashodha Holdings' Banking Facilities By Presidential Intervention, The Central Bank Inquiry, The Criminal Prosecution And Trial By Media Of Yashodha
This chapter exhaustively examines how President Chandrika Kumaratunga had identified Yasasiri Kasturiarachchi even during the PA election campaign in 1994, and had pursued him thereafter and ultimately put an end to the banking and other credit facilities that Yashodha Holdings (Pvt.) Ltd., had with the People's Bank and with other banks after the People's Bank's suspended lending to it. The President's dislike of Kasturiarachchi was compounded when in August 1995, he contested and won election as Basnayake Nilame of the Kataragama Maha Devale.
A sample of the media/newspaper attacks on Yashodha by the President is also given in this chapter which outlines the following:
President Kumaratunga's political victimisation and harassment of Yashodha
The Inland Revenue Department raiding Yashodha offices in early 1995 and taking away all relevant documents and disabling him from examining the true state of affairs of his transactions with the People's Bank. (This could not have happened unless orders came from "higher quarters.")
The President's visit to People's Bank chairman's office in April 1996, sitting on the chairman's chair and calling for the "Yashodha files" after which facilities to Yashodha ceased.
The Central Bank inquiry of October 1998 which was clearly on the President's directive.
The referral of the Central Bank inquiry report to the chairman, People's Bank on October 28, 1998 which resulted in the "interdiction of nine senior staff including the general manager."
The referral of the Central Bank report to the IGP and the complaint to the CID in mid December 1998 by the secretary, Finance and Planning Ministry.
The steps taken by the CID to impound Kasturiarachchi's passport and to arrest him and lock him up for defrauding 'state property' and Kasturiarachchi obtaining anticipatory bail.
The criminal prosecution of Kasturiarachchi in the Colombo High Court and his acquittal.
"In my view far from thinking of contesting the alleged indebtedness to the People's Bank, Kasturiarachchi was at that time 'running for his life' and trying to keep himself and his family alive and sane - being continuously 'gunned down' by state power under Presidential directions. The Inland Revenue Department, Central Bank, Finance and Planning Ministry, IGP, the CID - were all pursuing him. What a situation to be in!
"In the People's Bank Annual Report for 2001 (page 5) the bank's CEO quite rightly states that to be profitable, the bank must assert its independence and not be subject to the views of persons like 'members of parliament; local politicians and other influential people.' In Yashodha's case, it was just the opposite. The customer was heavily subject to such influences, as shown above! There was political interference not against the bank but against the customer."
Chapter 12 of the report examines the claims of both the parties and what should be a fair and reasonable settlement in the legal background. Here the report points out that the People's Bank has lent without any security whatsoever so that even if they succeed in any legal action, the judgement will remain "a paper decree" of no money value.
Dr. Weerasooria also finds that the bank was uncertain of the actual amounts it alleges is due to it and states in Chapter 12 as follows:
"I have no hesitation in holding that until the joint audit which commenced in mid-2002 at the suggestion of the Secretary, Finance Minsitry, the People's Bank was unsure of Yashodha Holdings' alleged debt and came up with different amounts at different times. President Kumaratunga of course had her own figures as to how much was owed by Yashodha. The Central Bank inquiry hit upon another figure. The Chairman, People's Bank (Dr. Gamini Fernando) spoke of another figure and in 1999 an investigating team of the bank in a memorandum to the board arrived at still another figure.
"The overall impression I got at my Inquiry is that the bank was never really sure about the actual liability of Yashodha but have at various times clutched at various figures and presented them as being outstanding by Yashodha. Only after the joint audit which commenced in June 2002, did a clearer picture emerge."
Bad and doubtful debts
Dr. Weerasooria's report also shows that the Auditor-General had seriously contested the bank's annual report of 1997 on the provisioning made for bad and doubtful debts. The bank had charged only Rs. 600 million while the Auditor-General said the correct figure should have been Rs. 10,744 million. Dr. Gamini Fernando was the bank's chairman then. As regards the fair and reasonable amount due, the report closely examined the working sheets signed by both parties at the joint audit and concludes that a capital sum due to the bank, the amount should be Rs. 800 million and no more.
Next, the report goes in to the interest and commission charged by the bank and states as follows:
"i. Penal interest has been charged and recovered by the bank from the customer.
ii. Interest has been charged over the agreed/reasonable amount, which I hold should be 23%. (This 23% is also the amount referred to in the letter dated February 28, 1997 from Dr. Gamini Fernando as chairman, People's Bank to Yasasiri Kasturiarachchi as chairman of the customer, Yashodha Holdings.
iii. Interest has been charged which was not due as per agreement with the customer for the extension of short term and pledge loans.
iv. Amounts charged as bank charges and commissions.
v. Amounts charged by the People's Bank from the customer on accounts of monies paid by the bank on certain gurarantees amounting to Rs. 82 million."
Giving valid reasons , the report disallows the exorbitant charge of Rs. 939 million, which included penal interest levied by the bank as interest. Basically the report holds, that the facilities, all very short term loans of 30, 60 or 90 days and no more. Also the customer had on a daily basis deposited very large sums to the bank totaling over Rs. 17.2 billion. In these circumstances, no penal interest was justified. The report noted that an audit done by a major audit firm on this same matter had also stated that penal interest was not justified. The report accordingly holds that the interest of Rs. 939 million was excessive and unjustified and reduces it to Rs. 300 million.
Next, the report disallows a sum of Rs 82 million charged as payment on certain guarantees on the grounds that such guarantees were unconnected to the trade bills.
The bank's charge of Rs 85 million as commissions is also reduced by Rs. 35 million. The report shows that the People's Bank exerted no time or effort because all money deposited by the customer came in cheques of Sampath Bank. The People's Bank staff merely sat back and took the Sampath Bank cheques into their accounts. They spent no time or effort to justify a charge of Rs.85 million as bank charges and commissions. This was too excessive.
Long outstanding dispute
The final sum which the report finds as recoverable for the customer to pay the bank to settle this long outstanding dispute is Rs. 100 million.
The report concludes by stating that the current board of the bank bears no responsibility for this fiasco but they have an obligation to see that the dispute is settled. If the dispute is not settled, litigation will continue and will take several years to end because whoever wins the legal cases, there will also be appeals to higher courts.
In those circumstances only the lawyers involved in these cases will benefit - not the disputing parties. Another significant feature emphasised in the report is that as the bank has taken no security, any judgement in the bank's favour will be unenforceable and will remain worthless 'paper judgements.'
In a witty remark, the report states "bank's love paper; they do their business on paper; so here I hope the bank will not be satisfied with a paper decree!"
Note of the Auditor General
The provision required for bad and doubtful debts of the bank amounted to Rs. 10,744 million as at December 31, 1997 and resultant charge to profit and loss account would have been Rs. 5,735 million. However, the bank had decided to charge only Rs. 600 million to the profit and loss account resulting in an overstatement of profit for the year by Rs. 5,135 million and an overstatement of its assets by Rs. 5,135 million.