LAW RELATING TO NEGOTIABLE INSTRUMENTS ACT

Continued

NEGOTIATION

Negotiation may be defined as the process by which a third party is constituted the holder of the instrument so as to entitle him to the possession of the same and to receive the amount due thereon in his own name. According to section 14 of the Act, when a promissory note, bill of exchange or cheque is transferred to any person so as to constitute that person the holder thereof, the instrument is said to be negotiated. The main purpose and essence of negotiation is to make the transferee of a promissory note, a bill of exchange or a cheque the holder there of.

Negotiation thus requires two conditions to be fulfilled, namely: 1. There must be a transfer of the instrument to another person; and 2. The transfer must be made in such a manner as to constitute the transferee the holder of the instrument.

Handing over a negotiable instrument to a servant for safe custody is not negotiation; there must be a transfer with an intention to pass title.

MODES OF NEGOTIATION

Negotiation may be effected in the following two ways: 1. Negotiation by delivery (Sec. 47): Where a promissory note or a bill of exchange or a cheque is payable to a bearer, it may be negotiated by delivery thereof. Example: A, the holder of a negotiable instrument payable to bearer, delivers it to Bs agent to keep it for B. The instrument has been negotiated.

MODES OF NEGOTIATION

2. Negotiation by endorsement and delivery (Sec. 48): A promissory note, a cheque or a bill of exchange payable to order can be negotiated only be endorsement and delivery. Unless the holder signs his endorsement on the instrument and delivers it, the transferee does not become a holder. If there are more payees than one, all must endorse it.

ASSIGNMENT

Bills, notes and cheques represent debts and as such have been held to be assignable without endorsement. Transfer by assignment takes place when the holder of a negotiable instrument sells his right to another person without endorsing it. The assignee is entitled to get possession and can recover the amount due on the instrument from the parties thereto. Of the two methods of transfer of negotiable instruments discussed, transfer by negotiation is recognised by the Negotiable Instrument Act.

NEGOTIATION AND ASSIGNMENT DISTINGUISHED

1. Negotiation requires delivery only to constitute a transfer, whereas assignment requires a written document signed by the transferor.

2. Consideration is always presumed in the case of transfer by negotiation. In the case of assignment consideration must be proved.
3. In case of negotiation, notice of transfer is not necessary, whereas in the case of assignment notice of the transfer must be given by the assignee to the debtor.

NEGOTIATION AND ASSIGNMENT DISTINGUISHED

4. The assignee takes the instrument subject to all the defects in the title of the transferor. Ifthe title of the assignor was defective the title of the assignee is also defective. However, in case of negotiation the transferee takes the instrument free from all the defects in the title of the transferor. A holder in due course is not affected by any defect in the title of the transferor. He may therefore have a better title than the transferor.
5. In case of negotiation a transferee can sue the third party in his own name. But an assignee cannot do so.

IMPORTANCE OF DELIVERY IN NEGOTIATION

Delivery is a voluntary transfer of possession from one person to another. Delivery is essential to complete any contract on a negotiable instrument whether it be contract of making endorsement or acceptance. The property in the instrument does not pass unless the delivery is fully completed. Section 46 of the Act provides that a negotiable instrument is not made or accepted or endorsed unless it is delivered to a proper person. For instance, if a person signs a promissory note and keeps it with himself, he cannot be said to have made a promissory note; only when it is delivered to the payee that the promissory note is made.

IMPORTANCE OF DELIVERY IN NEGOTIATION

Delivery may be actual or constructive. Delivery is actual when it is accompanied by actual change of possession of the instrument.
Constructive delivery is effected without any change of actual possession.

ENDORSEMENT

The word endorsement in its literal sense means, writing on the back of an instrument. But under the Negotiable Instruments Act it means, the writing of ones name on the back of the instrument or any paper attached to it with the intention of transferring the rights therein. Thus, endorsement is signing a negotiable instrument for the purpose of negotiation. The person who effects an endorsement is called an endorser, and the person to whom negotiable instrument is transferred by endorsement is called the endorsee.

ESSENTIALS OF A VALID ENDORSEMENT

The following are the essentials of a valid endorsement: 1. It must be on the instrument. The endorsement may be on the back or face of the instrument and if no space is left on the instrument, it may be made on a separate paper attached to it called allonage. It should usually be in ink.
2. It must be made by the maker or holder of the instrument. A stranger cannot endorse it.

ESSENTIALS OF A VALID ENDORSEMENT

3. It must be signed by the endorser. Full name is not essential. Initials may suffice. Thumb-impression should be attested. Signature may be made on any part of the instrument. A rubber stamp is not accepted but the designation of the holder can be done by a rubber stamp.

ESSENTIALS OF A VALID ENDORSEMENT

4. It may be made either by the endorser merely signing his name on the instrument (it is a blank endorsement) or by any words showing an intention to endorse or transfer the instrument to a specified person (it is an endorsement in full). No specific form of words is prescribed for an endorsement. But intention to transfer must be present. When in a bill or note payable to order the endorsees name is wrongly spelt, he should when he endorses it, sign the name as spelt in the instrument and write the correct spelling within brackets after his endorsement.

ESSENTIALS OF A VALID ENDORSEMENT

5. It must be completed by delivery of the instrument. The delivery must be made by the endorser himself or by somebody on his behalf with the intention of passing property therein. Thus, where a person endorses an instrument to another and keeps it in his papers where it is found after his death and then delivered to the endorsee, the latter gets no right on the instrument.

ESSENTIALS OF A VALID ENDORSEMENT

6. It must be an endorsement of the entire bill. A partial endorsement i.e. which purports to transfer to the endorse a part only of the amount payable does not operate as a valid endorsement.
If delivery is conditional, endorsement is not complete until the condition is fulfilled.

WHO MAY ENDORSE?

The payee of an instrument is the rightful person to make the first endorsement. Thereafter the instrument may be endorsed by any person who has become the holder of the instrument. The maker or the drawer cannot endorse the instrument but if any of them has become the holder thereof he may endorse the instrument. (Sec. 51).
The maker or drawer cannot endorse or negotiate an instrument unless he is in lawful possession of instrument or is the holder there of. A payee or endorsee cannot endorse or negotiate unless he is the holder there of.

DIFFERENT TYPES OF ENDORSEMENTS

1.Blank (or general) : No endorsee is specified in an endorsement n blank. t contains only the bare signature of the endorser. A bill so endorsed becomes payable to bearer. SPECIMEN: Motilal Poddar
2. Special (or n full) : In such an endorsement, in addition to the signature of the endorse rthe person to whom or to whose order the instrument is payable is specified. SPECIMEN: Pay to B, Batliwala or order. S. Shroff

DIFFERENT TYPES OF ENDORSEMENTS

3. Restrictive : Such an endorsement has the effect of restricting further negotiation and transfer of the instrument. SPECIMEN: 1. Pay to A only S. Mukerjee 2. For the account of A only N. Aiyar
4. Conditional or qualified endorsement: Such an endorsement combines an order to pay with condition. SPECIMEN: Pay to A on safe receipt of goods. V. Chopra

DIFFERENT TYPES OF ENDORSEMENTS

5. Sans Recourse : By adding these words after the endorsement, the endorser declines to accept any liability on the instrument of any subsequent party. Sometimes where an endorser who so excludes his liability as an endorser afterwards becomes the holder of the same instrument. In such a case, all intermediate endorsers are liable to him.
6. Sans Frais : These words when added at the end of the endorsement, indicate that no expenses should be incurred on account of the bill.

DIFFERENT TYPES OF ENDORSEMENTS

7.Forged endorsement: The case of a forged endorsement is slightly different. If an instrument is endorsed in full, it cannot be negotiated except by an endorsement signed by the person to whom or to whose order the instrument is payable, for the endorsee obtains title only through his endorsement. If an endorsement is forged, the endorsee acquires no title to the instrument even if he is a bonafide purchaser. On the other hand, if the instrument is a bearer instrument or has been endorsed in blank, and there is a forged endorsement the holder gets a good title because holder in such a case derives title by delivery and not by endorsement. Bankers are specially protected against forged endorsement under section 85 of the Act.

DIFFERENT TYPES OF ENDORSEMENTS

8. Facultative: When it is desired lo waive certain right, the appropriate words are added to indicate the fact, e.g., notice of dishonor dispensed with.

EFFECTS OF ENDORSEMENT

The legal effect of negotiation by endorsement and delivery is:

1. to transfer property in the instrument from the endorser to the endorsee. 2. to vest in the latter the right of further negotiation, and

3. a right to sue on the instrument in his own name against all the other parties (Section 50).

CANCELLATION OF ENDORSEMENT

When the holder of a negotiable instrument, without the consent of the endorser destroys or impairs the endorsers remedy against prior party, the endorser is discharged from liability to the holder to the same extent as if the instrument had been paid at maturity (Section 40).

NEGOTIATION BACK

Negotiation back is a process under which an endorsee comes again into possession of the instrument in his own right. Where a bill is re-endorsed to a previous endorser, he has no remedy against the intermediate parties to whom he was previously liable though he may further negotiate the bill.

RIGHTS AND LIABILITIES OF PARTIES

Continued

By: - Gaurav Chettri

RIGHTS AND LIABILITIES OF PARTIES

Holder in due course gets the following right under the Act: 1.Holder in due course can file a suit in his own name against the parties liable to pay. He is deemed prima facie to be a holder in due course(Sec118). 2.Every prior party to the instrument is liable to a holder in due course until the instrument is duly satisfied(Sec36).

RIGHTS AND LIABILITIES OF PARTIES

3.Even if the negotiable instrument is made without consideration, if it gets into the hand of the holder in due course, he can recover the amount on it from any of the prior parties thereto. 4.The person liable cannot plead against the holder in due course that the instrument had been lost or was obtained by means of an offence or fraud or for an unlawful consideration(Sec58).

RIGHTS AND LIABILITIES OF PARTIES

5. The validity of the instrument as originally made or drawn cannot be denied by the maker or drawer of a negotiable instrument or by acceptor of a bill of exchange for honor of the drawer(Sec120).

6. The other parties liable to pay cannot plead that the delivery of the instrument was conditional or for a specific purpose only(Sec46).

LIABILITY OF PARTIES:

1.Liability of drawer: The drawer of a bill of exchange or a cheque is bound, in case of dishonor by the Drawee or acceptor thereof to compensate the holder provided due notice of dishonor has been given to, or received by the drawer. The drawer or maker of a promissory note is personally responsible to the holder thereof. The liability of a drawer arises only when he has received the notice of dishonor from the holder. Omission of the notice would discharge the drawer form the liability on the negotiable instrument. Drawer may exclude the liability by adding the words 'without recourse 'on the instrument.

LIABILITY OF PARTIES

3.Liability of acceptor in case of forged instrument:

An acceptor of a bill of exchange, already indorsed is not relieved from liability by reason that such an endorsement is forged, if he knew or had reason to believe the endorsement is forged, when he accepted the bill. The effect of this section is that if the Drawee has no knowledge of forging while accepting the bill, he is relieved from liability. However, if he has knowledge that the endorsement is forged and yet he accepts the bill, he cannot plead forgery after such acceptance. He will be liable to pay the amount to the holder and also to the real owner.

LIABILITY OF PARTIES

2. Liability of a maker of promissory note and acceptor of a bill In the absence of a contract to the contrary, the maker of a promissory note and the acceptor before maturity of a bill of exchange are bound to pay the amount thereof at maturity according to the apparent tenor of the note or acceptance, respectively. The acceptor of the bill of exchange at or after maturity is bound to pay the amount thereof to the holder on demand. Indefault of such payment as aforesaid, such maker or acceptor is bound to compensate any party to the note or bill for any loss or damage sustained by him and caused by such default.

CROSSING OF CHEQUES

By: - Kajal Kumar Modal

CHEQUES CROSSED GENERALLY

A Cheque is crossed generally when: 1. It has to transverse parallel lines marked across its face; or 2. It bears an abbreviation & Co. between he traverse parallel lines; or 3. It bears the word Not Negotiable between the two parallel lines (Sec. 123)

A cheque crossed generally will be paid to the banker through which it is presented. It is a direction to the Drawee banker to pay the sum only through a banker. where a cheque is generally crossed, the banker on who m it is drawn shall not pay it otherwise than to a banker.

CHEQUE CROSSED SPECIALLY. (SEC 124 & 126)

Where a cheque is crossed by two parallel transverse lines and the name of the banker is written between the two parallel lines, with or without words, not negotiable it is called special crossing(sec.124). It may be noted that two transverse lines are not necessary in special crossing. The banker on whom it is drawn shall not pay it otherwise than to a banker to whom it is crossed, or his agent for collection (sec 126.).It will paid only when presented by the banker.

CONTD.

Any cheque issued in two names banker and party to whom it is be credited will not fall on the category of cheque which must be issued on the name of one party. The name of the party to whom it is be credited is the payee and the barker whose name appears on the cheque is the collecting banker only.

CONT.

PAYMENT OF CHEQUE CROSSED SPECIALLY MORE THAN ONCE: (SEC 127)

A cheque cannot be crossed more than once specially, except the banker on whom it is crossed specially can crossed it again to his agent for purpose of collection only. If the cheque is crosses specially more than once, the banker has a right to refuse payment thereof.

CHEQUES CROSSED A/C. PAYEE:

Often cheques are crossed with two parallel transverse lines and in between the two parallel lines the words a/c payee or a/c payee only are written. This means that the proceeds of the cheque are to be credited to the account of the payee only. This type of crossing is called restrictive crossing . Insertion of words a/c payee do not restrict its negotiability. It serves a good protection to drawer from loss or theft.

SPECIMENS OF CHEQUE CROSSED A/C PAYEE OR RESTRICTIVE CROSSING

CHEQUE BEARING NOT NEGOTIABLE

A cheque crossed generally or specially may bear additional words not negotiable. A person taking a cheque crossed generally or specially bearing in either case of words not negotiable shall not have and shall not be capable of giving a better title to the transferee than that which the person from whom he took it had.

CROSSING AFTER ISSUE (SEC 125)

Crossing of cheque other than that authorized by the act is unlawful. The following crossings are permissible. 1. Where a cheque is uncrossed, the holder may cross it generally or specially. 2. Where a cheque is crossed generally, the holder may crossed it specially. 3. Where a cheque is crossed generally or specially ,the holder may adds the words not negotiable. 4. Where a cheque is crossed specially, the banker to whom it is crossed may again cross it specially to another banker or his agent, for collection.

CONT

A crossed bearer cheque can be negotiated by delivery and, therefore, this is not absolutely safe. The crossed cheque can be negotiated by endorsement and delivery only, which affords greater safety than a crossed bearer cheque. A cheque cannot be crossed specially more than once. There is only one exception to this rule, for eg. only special crossing may require second crossing and that too only in one case, for eg. Where such a crossing is made, a banker may once again cross it in favour of his agent for collection. The banker has a right to refuse payment where a cheque is crossed more than once.

DISHONOR OF CHEQUE

By: - Raj Roy

WHEN BANKER IS JUSTIFIED IN DISHONOURING OF THE CHEQUE:

1. Funds are not properly applicable to the payment of the cheque. For example, funds are subject to a lien, or bankers is entitled to set-off. 2. Cheque is irregular or ambiguous cheque. 3. Customer becomes insolvent 4. Death, lunacy or insolvent of the customer and the banker has notice of the same. 5. Post-dated cheque is presented before its ostensible date. It is payable on the date mentioned on it but not before although it is negotiable before the due date of payment.

CONTD..

7. If the drawers signature does not tally with his specimen signature. If signatures on cheque or at least that of one of joint signatures to cheque are not or is not genuine, there is no mandate on bank to pay. 8. If the banker is not holding sufficient funds of the drawer unless the banker has agreed to honour the cheque without sufficient funds. 9. Cheque presented beyond the period of six months from the date of issue.

CONTD..

10. If the customer countermands payment and communicates the same to the bank properly. If the banker pays in spite of drawer countermanding payment, the banker cannot debit the amount to the account of the drawer. Customer should countermand payment by notice in writing to the banker giving correct particulars of the cheque. Telegraphic message is not sufficient. The banker must receive the notice of it before paying the cheque in ordinary course. 11. Holder gives notice to the banker of loss of cheque.

CONTD..

11. If the cheque is not presented within the usual banking hours. 12. Where the cheque is drawn of another branch office of the same bank where the customer dose not have an account.
13. Where a garnishee order has been issued by Court attaching customers balance [ Garnishee is a person liable to pay the debt on behalf of the judgement debtor. ]

BANKER CUSTOMER RELATIONSHIP

By : - Deepak Kumar Singh

WHAT IS BANKING

Banking has been defined as Accepting for the purpose of lending or investment of deposits or investment from he public, repayable on demand or otherwise and withdrawal by cheque, draft, order or otherwise.

WHAT IS BANKER AND CUSTOMER?

A banker is a dealer in capital or more properly a dealer in money. He is intermediate party between the borrow and the lender. He borrows from one party and lends to another. A customer is a person who maintains an account with the bank, without taking into consideration the duration and frequency of operation of his account.

GENERAL RELATIONSHIP

Debtor and creditor When a customer deposit money with the bank, the bank then is the debtors and the customer is the creditors. Creditor and debtors
If customer is advanced loan then the banker become creditor and customer is debtor.

CONTD..

Principal and agent The customer(principal) deposits cheque, drafts, dividends for collection with the bank.
He also gives written instructions to the bank to purchase securities, pay insurance premium, installment of loan etc on his behalf. When the bank performs such agency services, he becomes an agent of his customers.

CONTD..

Bailer and Bailment relationship A bailment relationship is the delivery of goods in trust. A bank may accept the valuables of his customers such as jewellery, documents, securities for safe custody.
In such cases the customer is the bailer and the bank is bailee, which charges a very small amount for safe custody of valuables.

CONT.

Pawner and pawnee When a customer pledge goods and documents as security for advance he then become pawner(pledger) and the bank becomes the pawnee(pledgee).
The pledged goods are to be returned intact to the pawner after the debt is repaid by him.

MORTGAGER AND MORTGAGEE

When a customer pledges a specific immovable property with the bank as security for advance, the customer becomes mortgager and the banker is mortgagee.
Banker as a trustee The bank also acts as executor, attorney and guarantor for his customer.

RIGHTS AND DUTIES OF THE CUSTOMER TOWARDS THE BANKER.

Rights of customers: A customer who has deposited money can draw cheque on his account up to to the extent of his credit balance or according to overdraft limit sanctioned by the bank.
A customer has the right to sue the bank for compensation if the bank fails to maintain secrecy of the account or wrongful dishonor of his cheque.

DUTIES OF CUSTOMER

It is the duty of the customer to present cheques and other negotiable instruments during business hour of the bank. The instruments of credit should be presented by the customer with in due date from their dates of issue.
A customer must keep the cheque books issued by the bank in safe custody. In case of theft or loss or forge in the account of the cheque issue by him, it is duty of the customer to report the matter immediately to the bank.

RIGHT AND DUTIES OF THE BANKER TOWARDS CUSTOMER

Duties or obligation of a banker To honor a customer cheque The banker is to honor the cheque of customers provided the cheque are properly drawn, customer has balance to his credit, the loan contract has been signed or there is no legal bar attaching to customer fund. It is the duty of the bank to abide by the standing orders of the customers in making periodical payment on his behalf such as club, library, insurance premium etc.

SECRECY OF THE CUSTOMER ACCOUNT

The bank owes a contractual duty not to disclose the customers financial position without his consent. However the obligation of secrecy is not considered on the following occasions. a. When banker is required to give evidence in the court. b. When there is national emergency and disclosure is essential in the public interest. c. When there are clear proofs of treason to state.

RIGHTS OF A BANKER

Right to set off: It is a right of the banker to adjust his outstanding loans in the name of the customer from his credit balance of any of the account he is maintaining with the bank.
Right to charge interest, commission etc. Right to lien A banker has the right to retain the property belonging to customer until the debt due from him has been paid.

DISCHARGE OF PARTIES FROM LIABILITIES

By : - Abhijeet Dhoble

DISCHARGE OF PARTIES FROM LIABILITY

Discharge of instrument and discharge of parties from liability is not the same. A party may be discharged from liability, but the instrument may be yet in existence as the rights and obligations of the other parties still exist, It is only when the party ultimately liable on the instrument is discharged. Discharge of one or more parties to the instrument does not, therefore, discharge the instrument.. Discharge from liability may be effected by operation of law or by agreement between the parties [Union of India v. Kishorilal AIR 1959 SC 1362]. Parties may be discharged form liability on a negotiable instrument in any of the following ways:

1. BY PAYMENT [SEC. 82(C)]

When a maker, acceptor or endorser makes payment on an instrument in due course to the person entitled to receive payment in accordance with the apparent tenor of the instrument in good faith and without negligence, discharges the parties to the instrument

2. BY CANCELLATION [SEC. 82(A)]

When the holder or his agent cancels or strikes out the name of the acceptor or indorser with intention to discharge him, such party is discharged from liability to the holder and to all subsequent parties. Cancellation by mistake does not discharge the party. It must be intentional. Cancellation must be legible and apparent on the face of the instrument.

3.BY RELEASE [SEC. 82(B)]

Where the holder discharges or releases the maker, acceptor or indorser, such party receiving notice of discharge is discharged to the holder and to all subsequent parties. Holder may, therefore, discharge any one of the parties by agreement, renunciation or by accord and satisfaction.

3.BY DEFAULT OF THE HOLDER:

a) Allowing Drawee more than 48 hours: (Sec. 83) By this all previous parties not consenting to such allowance are thereby discharged from liability to such holder. b) Parties not consenting to qualified or limited acceptance: (Sec. 86) If the holder of a bill exchange accept qualified acceptance, all previous parties whose consent to such qualified acceptance is not obtained are discharged, unless the holder gives a notice thereof and the parties give their assent to such qualified acceptance.

CONTD..

C) Delay in presentment of cheque and drawer damaged thereby: (Sec. 84) When the holder of the cheque does not present the cheque for payment with in a reasonable time of its issue and the drawer suffers actual damage, the drawer is discharged to the extent of such damage. D) Delay in presentment for payment: - When the instrument is not presented for payment with in reasonable time. E) Failure to give notice of dishonour: - When the holder fails to give notice of dishonour to all previous parties where necessary.

5. BY MATERIAL ALTERATION [SEC. 87 - 89]

Any material alteration of a negotiable instrument renders the same avoid as against any one who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out common intention of the original parties. Any such alteration if made by endorsee discharges the indorser from all liability to him in respect of the consideration thereof. Material alteration without consent of the other parties thereto renders the alteration void and discharges the parties to the instruments because by alteration the identity of the instrument is destroyed. Accidental alteration does not render a document invalid.

6. HOLDER DESTROYING INDORSERS REMEDY: [SEC. 40]

Where a holder of a negotiable instrument without consent of the indorser, destroy or impairs the indorsers remedy against a prior party, the indorser is discharged from his liability to the holder to the same extent as if the instrument had been paid at maturity.

7. DRAFT INDORSED BY PAYEE: [SEC. 85 (A)]

Where any draft, that is, an order to pay money, drawn by one office of a bank upon another office of the sane bank for a sum of money payable to order on demand, purports to be endorsed by or on behalf of the payee, the bank is discharged by payment in due course. Draft are drawn by one branch of a bank upon its another branch. The account of the customer is debited ad the amount is transferred to another branch of bank on which the draft is drawn. When payment is made by the branch office of the bank upon which it is drawn, to the payee or to the person endorsed by the payee, the bank is discharged.

8. DISCHARGE OF DRAWEE (BANKER) OF A CHEQUE: [SEC. 85]

Where a cheque is payable to order the Drawee is discharged by payment in due course. Where a cheque is originally expressed to be payable bearer, the Drawee is discharged by payment in due course to the bearer thereof. Banker will be Discharged only when payment is made in due course.

9. BY OPERATION OF LAW

Parties to the instrument are also discharged by operation of law under following circumstances: I. By an order of the insolvency Court discharging the insolvent. II. When debt under the bill is merged into the judgement debt. III. By Remedy becoming time-barred.

CAMPUS OVERVIEW

Ahmedabad

Kolkata

Mumbai

907/A Uvarshad, Gandhinagar Highway, Ahmedabad 382422.

Infinity Benchmark, 10th Floor, Plot G1, Block EP & GP, Sector V, Salt-Lake, Kolkata 700091.

Goldline Business Centre Linkway Estate, Next to Chincholi Fire Brigade, Malad (West), Mumbai 400 064.