Category: Bangalore University B.com Notes

There is acute shortage of capital. People lack initiative and enterprise. Means of transport are undeveloped. Industry is depressed. The commercial banks help in overcoming these obstacles and promoting economic development. The role of a commercial bank in a developing country is discussed as under.

Financing Industry:

The commercial banks finance the industrial sector in a number of ways. They provide short-term, medium-term and long-term loans to industry. In India they provide short-term loans. Income of the Latin American countries like Guatemala, they advance medium-term loans for one to three years. But in Korea, the commercial banks also advance long-term loans to industry.

In India, the commercial banks undertake short-term and medium-term financing of small scale industries, and also provide hire purchase finance. Besides, they underwrite the shares and debentures of large scale industries. Thus they not only provide finance for industry but also help in developing the capital market which is undeveloped in such countries.

Mobilising Saving for Capital Formation:

The commercial banks help in mobilising savings through network of branch banking. People in developing countries have low incomes but the banks induce them to save by introducing variety of deposit schemes to suit the needs of individual depositors. They also mobilise idle savings of the few rich. By mobilising savings, the banks channelise them into productive investments. Thus they help in the capital formation of a developing country.

Financing Agriculture:

The commercial banks help the large agricultural sector in developing countries in a number of ways. They provide loans to traders in agricultural commodities. They open a network of branches in rural areas to provide agricultural credit. They provide finance directly to agriculturists for the marketing of their produce, for the modernisation and mechanisation of their farms, for providing irrigation facilities, for developing land, etc.

They also provide financial assistance for animal husbandry, dairy farming, sheep breeding, poultry farming, pisciculture and horticulture. The small and marginal farmers and landless agricultural workers, artisans and petty shopkeepers in rural areas are provided financial assistance through the regional rural banks in India. These regional rural banks operate under a commercial bank. Thus the commercial banks meet the credit requirements of all types of rural people.

Financing Trade:

The commercial banks help in financing both internal and external trade. The banks provide loans to retailers and wholesalers to stock goods in which they deal. They also help in the movement of goods from one place to another by providing all types of facilities such as discounting and accepting bills of exchange, providing overdraft facilities, issuing drafts, etc. Moreover, they finance both exports and imports of developing countries by providing foreign exchange facilities to importers and exporters of goods.

Financing Employment Generating Activities:

The commercial banks finance employment generating activities in developing countries. They provide loans for the education of young person’s studying in engineering, medical and other vocational institutes of higher learning. They advance loans to young entrepreneurs, medical and engineering graduates, and other technically trained persons in establishing their own business. Such loan facilities are being provided by a number of commercial banks in India. Thus the banks not only help inhuman capital formation but also in increasing entrepreneurial activities in developing countries.

Financing Consumer Activities:

People in underdeveloped countries being poor and having low incomes do not possess sufficient financial resources to buy durable consumer goods. The commercial banks advance loans to consumers for the purchase of such items as houses, scooters, fans, refrigerators, etc. In this way, they also help in raising the standard of living of the people in developing countries by providing loans for consumptive activities.

Help in Monetary Policy:

The commercial banks help the economic development of a country by faithfully following the monetary policy of the central bank. In fact, the central bank depends upon the commercial banks for the success of its policy of monetary management in keeping with requirements of a developing economy.

Thus the commercial banks contribute much to the growth of a developing economy by granting loans to agriculture, trade and industry, by helping in physical and human capital formation and by following the monetary policy of the country.

According to Sec. 5 of the Banking Regulation Act, 1949, a banking company means the accepting, for the purpose of lending or investment, of deposits of money from the public, repayable on demand or otherwise and withdrawn by Cheque, Draft, Order, or otherwise.

In short, a banking company means and includes any company which carries on the business or which transacts the business of banking in India. Therefore, any company which is engaged in trade or manufacture, which accepts deposits of money from the public for the purpose of financing its business only, shall not be deemed to carry on the business of banking.

No company can use as part of its name any of the words bank, banker or banking other than a banking company and, at the same time, no company can carry on business of banking in India unless and until it uses at least one of such words as part of its name.

Licensing of Banking Companies:

According to Sec. 22, no company shall carry on banking business in India unless it holds a license issued by the Reserve Bank of India.

If the following conditions are satisfied, the Reserve Bank of India may grant a license:

(i) “That the company is or will be in a position to pay its present and future depositors in full as their claims accrue;

(ii) That the affairs of the company are not being or are not likely to be conducted in a manner detrimental to the interests of its present or future depositor;

(iii) That, in the case of a foreign banking company, the carrying on of a banking business by such company in India will be in the public interest, that the Government or law of the country of its origin does not discriminate against Indian banking companies carrying on business in that country, and that it complies with all the requirements of law applicable to it”.

Area of Business of Banking Companies:

Sec. 6 of the Banking Regulation Act, 1949, lays down that the following business may also be carried on by a banking company, in addition to the usual banking business:

(a) Acting as agents for any government or local authority or any other person or persons; the carrying on of agency business of any description including the clearing and forwarding of goods, giving of receipts and discharges and otherwise acting as an attorney on behalf of customers, but excluding the business of a managing agent of a company;

(b) Contracting for public and private loans and negotiating and issuing the same;

(c) Selecting, insuring, guaranteeing, underwriting, participating, in managing and carrying out of any issue, public or private, of state, municipal or other loans or of shares, stock, debentures or debenture stock of any company, corporation or association and of lending of money for the purpose of any such issue;

(d) Carrying on and transacting every kind of guarantee and indemnity business;

(e) Managing, selling and realizing any property which may come into the possession of the company in satisfaction or part satisfaction of any of its claims;

(f) Acquiring or holding and generally dealing with any property, or title or interest in any such property which may form the security or part of the security for any loans or advances or which may be connected with any such security;

(g) Undertaking and executing trusts;

(h) Undertaking the administration of estates as executor, trustee or otherwise;

(i) Establishing and supporting associations, institutions, funds, trusts, and convenience for the benefit of employees, ex-employees, their dependents and the general public;

(j) Acquiring, constructing, maintaining and altering any building or works necessary for the purpose of the banking company;

(k) Selling, improving, managing, developing, exchanging, leasing, mortgaging, disposing-off or turning into account or otherwise dealing with all or any part of the property and rights of the company;

(l) Acquiring and undertaking the whole or any part of the business of any person or company when such business is of a nature enumerated or described in Sec. 6.

(m) Doing such other things as are necessary for the efficient conduct of the above-named business, such as acquisition, construction, alteration etc. of any building or works necessary or convenient for the purpose of the company; and

(n) Any other form’ of business which the Central Government may notify in the Official Gazette.

As such, other types of business are prohibited by a banking company.

Cancellation of License:

The Reserve Bank of India may cancel a license if:

(i) The company ceases to carry on banking business in India;

(ii) The company at any time fails to comply with any of the conditions on which the license was granted; or

(iii) At any time, any of the conditions, on the satisfaction of which the Reserve Bank of India granted the license, has not been fulfilled.

Debit cards offer the convenience of a credit card but work differently. Debit cards draw money directly from your checking account when you make the purchase. They do this by placing a hold on the amount of the purchase. Then the merchant sends in the transaction to their bank, and it is transferred to the merchant’s account. It can take a few days for this to happen, and the hold may drop off before the transaction goes through.

You will have a personal identification number (PIN) to use with your debit card at stores or ATMs. However, you can also use your debit card without a PIN at most merchants. You will sign the receipt like you would with a credit card. Below are some other facts regarding debit cards.

• You won’t pay interest on your purchases.
• Your credit history will be unaffected by debit card spending.
• Paying with debit will take the money from your account pretty much immediately.

How Do Debit Cards Work?

Your debit card is basically like a plastic check: When you make a purchase, it takes the money directly out of your bank account. So, if you try to spend 500 but only have 250 in your account, your transaction will be declined.

Because the money is taken from your account as soon as you swipe, you won’t get a bill and you won’t pay interest. You might, however, face overdraft fees if you spend more money than is in your account.

Debit cards also work as ATM cards, allowing you to take cash directly out of your bank account.

Credit Card

A credit card is a card that allows you to borrow money against a line of credit, otherwise known as the card’s credit limit. You use the card to make basic transactions, which are reflected on your bill; the bank pays the merchant, and later, when you receive your bill, you pay the bank.

You will be charged interest on your purchases. To avoid paying interest, don’t carry a balance over from month to month. Credit cards have high-interest rates, and your credit card balance and payment history can affect your credit score.

Below are other facts about credit cards:

• The bank decides your credit limit based on your credit history.
• Generally, you no longer have to sign for in-person credit card purchases.
• You will owe interest on your purchases if not paid off in 30 days.

How Do Credit Cards Work?

Your credit card, unlike a debit card, is like a loan: When you open a credit card, you’re approved for a certain line of credit.

Also known as a credit limit, a line of credit is how much you can spend before your card is “maxed out” and can no longer be used for purchases. Your credit limit is based on your credit history and income; the stronger those are, the more the financial institution trusts you and the higher your credit limit will be.

Each month, you’ll get a bill for the amount you spent. Though you’re only required to cover the minimum payment (and not the whole balance) by the due date, you’ll pay interest on whatever amount remains. Because credit card interest rates are usually very high, we recommend paying your bill in full each month to avoid interest fees completely.

The Joint Hindu Family Business or the Hindu Undivided Family (HUF) is a unique form of business organization found only in India. Nowhere else in the world is this a legal form of business entity.

The Joint Hindu Family Business or the Hindu Undivided Family (HUF) is a unique type of business entity. It is governed and dictated by the Hindu Law, which is one of the several religious laws prevalent in India.

Any person born into the family (boy or girl) up to the next coming three generations is a part of the HUF. These members are the co-parceners. The head of such a Joint Family Business is the eldest member of the family, the “Karta”. He is the main person responsible for the business and the finances.

Features of a Joint Hindu Undivided Family

1. Formation

To begin a Hindu Undivided Family there must be a minimum of two related family members. There must be some assets, business or ancestral property that they have inherited or will eventually inherit. The formation of a HUF does not require any documentation and admission of new members is by birth.

2. Liability

The liability of all the various co-parceners is only up to their share of the property or business. So they have limited liability. But the Karta being the head of the HUF has unlimited liability.

3. Control

The entire control of the entity lies with the Karta. He may choose to confer with the co-parceners about various decisions, but his decision can be independent. is actions will be final and also legally binding.

4. Continuity

The HUF can be continued perpetually. At the death of the Karta, the next eldest member will become the Karta. However, keep in mind a Hindu Undivided Family can be dissolved if all members mutually agree.

5. Minority

As we saw earlier the members are eligible to be co-parceners by the virtue of their birth into the family. So in this case, even minor members will be a part of the HUF. But they will enjoy only the benefits of the organization.

Advantages of the Joint Hindu Undivided Family

• A Hindu Undivided family is comprised of family members running a business. Like any other organisation, there is scope for disagreements and conflicts. But since the Karta has absolute power and takes all decisions by himself, it will lead to effective management.
• Just like a company, the existence of a HUF is perpetual. The death or retirement of one member of even the Karta will not affect it, and it will continue on.
• Since the co-parceners do not have any effective control over the management of the HUF, and all power lies with the Karta, the liability of the members has also been limited to only their share of the property. This keeps the balance between power and responsibility.
• Also since all members of the HUF are relatives and members of the same family, there is a sense of loyalty and cooperation. The trust among members is also there and leads to overall cooperation.

Disadvantages of the Joint Hindu Undivided Family

• No outside members other than family members can be introduced to the HUF. This makes it very difficult to get additional capital from the market. With limited capital, the chances of expansion are very low. It limits the scope of the business.
• While the Karta has all the power he also has the burden of unlimited liability. This may make him overly cautious and timid in his business dealings. In turn, the business could suffer. Another factor is that he may even be held responsible for the actions of other members.
• Also, the absolute dominance of the Karta overall business and financial decisions make cause conflict among the HUF. His decisions and business acumen may be questioned by other members, and cause issues within the HUF.
• Another issue may be that the Karta may not be the most qualified person to lead the business. The position is given to the senior most family member, whether he is the most qualified or not is not taken into consideration.

Finding and opening a bank account can seem intimidating given the sheer number of options out there. Fortunately, most banks and credit unions follow a straightforward process similar to the one described below. Getting your account open is just a matter of picking a bank, providing certain details, and funding your account. Once the formalities are done, you can start using your account—and save time and money.

Choose a Bank or Credit Union

You might already know where you want to bank even if you don’t know how to open an account there. If not, shop around. Start by finding the best match for your immediate need (a checking account or savings account, for example). As you compare institutions, be mindful of account usage restrictions and fees that can eat into your savings.

There are three basic categories of financial institutions:

Banks, including community banks and big banks: These might be well-known brands in your local community (or nationwide). They offer most of the basic services you need. Local and regional banks tend to have more friendly fee structures, but it may be possible to get fees waived at big banks.

Credit unions: A credit union is a customer-owned financial institution that provides many of the same services and products that banks provide. If you join one of these not-for-profit institutions, you’ll often enjoy competitive rates because they’re not necessarily trying to maximize profits. But that’s not always the case so review fee schedules carefully.

Online banks and credit unions: These institutions operate entirely online. There’s no branch to visit (or pay for), and you’ll handle most service requests yourself. If you’re comfortable with your computer or mobile device and performing basic banking transactions an online bank can help you reduce your fees, earn higher interest rates on savings accounts, and even get free checking.

You don’t have to pick just one type of bank. For example, it’s wise to open an online bank account and keep your brick-and-mortar bank to keep your fees low and maintain the ability to visit a bank in the event of a financial emergency.

Visit the Bank Branch or Website

The easiest way to open an account is to visit the institution’s website. Search for the bank online, or visit the website listed on the bank’s marketing materials (be careful when you type in the web address impostor sites with similar names may exist).

The advantage of opening accounts online is that you can do it at any time, from anywhere. But if you’re only comfortable opening accounts in person, show up at the branch during business hours. Before you leave the house, have the following items ready:

• Your government-issued ID (such as a driver’s license, passport, or military ID)
• Your Social Security Number
• Your physical and mailing address
• An initial deposit (if required)

Pick the Product You Want

Once you settle on the bank where you want to open an account, you’ll generally have a variety of account types and services to choose from, including:

• Checking accounts: Use these for making payments and receiving direct deposits.
• Savings accounts: These accounts allow you to earn interest.
• Money market accounts: These products sometimes earn slightly more interest than savings accounts (while maintaining your access to cash).
• Certificates of deposit (CDs): These products can earn much more than savings accounts but require you to lock up your funds for a certain period.
• Loans: You can take out one of several types of loans (auto, home, personal loans, for example).

Within one of the above categories, a bank may offer multiple products, each with a different name and level of service. Premium accounts that come with more features have correspondingly higher fees (like monthly service fees, ATM fees, and overdraft fees) and higher thresholds to avoid the service fee.

Pick the option that has a mix of features and fees that meet your needs and budget. For example, if you’ll keep a low balance in the account, you may want to open a bank account with no or low fees.

When viewing a bank’s products online, you might have to drill down to the product that is right for you. For example, you might have to click “Open an Account,” and then click “Checking” and peruse the options for free checking. If you open your accounts in person, chat with a banker to find the best account for your needs. Of course, you’ll only want to bank where your money is protected by FDIC insurance (or NCUSIF coverage if you use a credit union).

Provide Your Information

As you open a new bank account, you’ll need to provide sensitive information to the bank. To protect themselves and comply with regulations such as the Patriot Act, banks can’t open an account without verifying your identity.

You’ll need to provide simple details like your name, birthday, and mailing address, as well as identification numbers (in the United States, this is most likely your Social Security Number). You’ll also be asked to present a valid government ID (such as a driver’s license or passport).

If you’re opening a bank account online, you’ll type this information into a text box. If you set up your accounts in person, be prepared to hand your ID to the banker, who will probably photocopy it.

Your Financial History

You don’t need a squeaky clean history for a bank account, but it helps. Many banks check your credit to see if you’ve had problems repaying loans in the past. These credit checks are usually “soft” pulls that do not damage your credit but it’s best to ask, if you’re concerned. You don’t necessarily need good credit to get a bank account, but having bad credit can sometimes lead to denials.

Consent to the Terms

You’ll have to agree to abide by certain rules and accept responsibility for certain activities in your accounts. When you open an account at a bank, you form a relationship based on an important subject: your money. Therefore, you should know what you’re getting into. If you open bank accounts online, you’ll complete this step by clicking the “I Agree” (or similar) button and moving on to the next step.

Under 18?

If you’re under 18 years old, you’ll need somebody over age 18 to open the account with you. You still might be able to use a debit card and online banking, and you can eventually get your own account. But banks need at least one adult on an account to get you started.

Joint Accounts

If you’re opening a joint account of any kind, you’ll need the personal information for all of the account holders and a signature from each of them. It’s best to get everybody together in one place to complete the application.

Although disclosures have improved over time, there are a lot of important details buried in the fine print when opening a bank account. In particular, you’ll want to know about any fees applicable to your account, and when your funds will be available for withdrawal.

In addition to bank agreements, federal law dictates your rights and responsibilities as an account holder. For example, if somebody takes money out of your account fraudulently, you might be protected against losses. However, you may need to report the withdrawal quickly for full protection.

Print, Sign, and Mail (If Required)

If you’re opening a bank account online, you may have to print, sign, and mail a document to the bank before the account is opened. Some banks use electronic disclosure and consent to make the banking relationship legally binding you can do everything online. Others still require a signed document to open an account. Until they receive the documents, your account is not active.

Fund Your Account

If you’re opening a checking or savings account, you’ll often need to make an initial deposit into the account. Sometimes, this is required as part of the opening process, and other times, you can do it after the account is up and running. There are several ways to fund your account:

• Deposit cash: It should be available for spending with your debit card by the next day.
• Deposit a check or money order: The funds should be available within a few business days after you make the deposit.
• Set up direct deposit with your employer: Instead of getting a paycheck, your earnings will be sent directly to your new account.
• Transfer funds electronically: Move money from an external bank account to make your initial deposit.

The term customer of a bank is not defined by law. Ordinarily, a person who has an account in a bank is considered as its customer. Banks open accounts for different types of customers like an individual, partnership firm, Trusts, companies, etc. While opening the accounts the banker has to keep in mind the various legal aspects involved in opening and conducting those accounts and also practices followed in conducting those accounts. Normally, the banks have to deal with following types of customers.

Types of customers

1. Individuals

An individual can be a person holding a bank account for personal use. Such customers must comply with existing regulations and bankers must ensure that they do not open and use bank accounts for illegal purposes. The customer should be properly introduced to the bank. The introduction is necessary for terms of banking practice and also for the purpose of protection.

(i) Minors

A minor is a person who has not completed eighteen years of age. Any contract entered by minor is void and is not enforceable by law. This prevents minor to acquire property, dispose property or enter into any type of agreement. Guardian means a person having the care of the person of a minor or of his property or both person and property. Guardians may be categorised into following three types:

• Natural guardian
• Testamentary Guardian
• Legal Guardian appointed by a court

(ii) Joint account

A joint account is an account which is opened by two or more persons jointly. It’s simply a joint debt such an account is opened by them for the convenience of the operation of the account as well as for the withdrawal of money after the death of any one of them.

(iii) Married Woman

A married woman is competent to enter a valid contract. Therefore banker opens an account in the name of a married woman. In the case of a debt taken by a married woman her husband shall not be liable except in the following circumstances:

• If she borrows money for the necessities of her life
• If she borrows for the necessaries of her household
• If she acts as an agent of her husband.

(iv) Pardanasheen Women

A paid ana sheen woman observes complete seclusion in accordance with the custom of her own community. She does not deal with the person other than the members of her own family. As she remains completely secluded as the presumption in law. The banker should take due precaution in opening an account in the name of a park ana sheen woman. As the identity of such a woman cannot be ascertained, the banker generally refuses to open an account in her name.

(v) Illiterate Person

Illiterate persons cannot sign their names and hence the bankers take their thumb impression as a substitute for signature and a copy of their recent photograph. The application form and photograph should be attested by an approved witness. For withdrawing money he must attend personally and affix his thumb impression in the presence of an official of the bank for identification.

2. Joint Hindu family

Joint Hindu family it’s an undivided family which comprises of all male members descended from a common ancestor. A Joint Hindu Family is a family which consists of more than one member possesses ancestral property & carries on family business. The senior male member is called “Karta” and other male members as “coparceners”. Karta manages the whole business of the family and the liability is unlimited whereas coparceners have limited liability. Coparceners can be appointed as managers. The Karta has the power to mortgage and pledges the property of JHF for raising the loan.

3. Joint stock companies (Limited Liability Companies)

If a company is registered under companies Act has a legal status independent of the shareholders. A company is an artificial person who has a perpetual existence with limited liability and the common seal.

• Memorandum
• Articles of Association
• Certificate of Incorporation
• Resolution passed by the Board to open account
• Name and Designation of person who will operate the account with details of restriction placed on them

These are the essentials documents required to open an account.

4. Unincorporated Associations

Banks open accounts of unincorporated associations and clubs started for purposes of Sports, Recreation, Promotion of Fine Arts, and Education etc. Accounts are opened for reliable and reputed parties. These unincorporated associations have no legal entity. While opening an account in the name of association the bank makes detailed inquiry in the existing rules and regulations governing such associations. All usual formalities for opening the account are adhered by the bank. Bank also obtains the certified copy of the resolution passed by the Governing Body for an opening of the account in the bank and names of the office bearers authorised to open and to operate the account on behalf of the association duly certified by the Chairman are obtained.

5. Societies, Clubs and Associations

A society gets legal entity only when it is incorporated under Company’s Act. Bylaws of the society, clubs and association contain rules, regulations or conduct and activities of the association. While opening account the banks obtain following from the clubs:

• Copy of the bylaws
• Copy of resolution passed by the managing committee regarding opening and conduct of account
• Certificate of registration in original
• A list of the Managing Committee members
• Copies of resolutions for electing them as Committee members duly certified by the Chairman.

Bank keeps a copy of all the above-mentioned documents for its record.

6. Partnership Firms

A partnership is a relationship between persons who have agreed to share the profits of a business carried on by all or any of them acting for all. Since a firm is not a person is not entitled to enter into the partnership with another firm or Hindu undivided family or individual. Therefore banks do not an open account where a firm is a partner of another firm. As per the Indian Partnership Act, the minimum number of partners can be two and maximum twenty. The number of partners is restricted to 10 if the partnership firm carries out business for banking. Minors can be admitted as the partner only to the benefits of the partnership.

7. Trustees

Trusts are created by the settler through executing a Trust Deed. A trust account can be opened after obtaining and scrutinising the trust deed. The Trust account has to be operated by all the trustees jointly unless provided in the trust deed. A cheque favouring the Trust shall not be credited to the personal account of the Trustee. According to the Indian Trusts Act, a ‘trust’ is an obligation annexed to the ownership of property, and arising out of a confidence responded and accepted by the owner or declared and accepted by him for the benefit of another and the owner. The person who responses the confidence is called the author of the trust. The trustee is the person in whom the confidence is responded. The person for whose benefit the trust is formed is called beneficiary.

The customers of banks consist of millions of private individuals, hundreds of thousands of small businesses formed as private limited companies. Some persons like the minors, drunkards, lunatics and insolvent are not competent to enter into valid contracts. Some persons like agents, trustees, executors, etc. who act on behalf of others, have limitations on their powers. Thus requires extra care to ensure that their accounts are conducted in accordance with the provisions. These are the major types of customers that come under banking operations.

Types of Account Holders

Accounts of Individuals

Individuals generally open transaction accounts like Savings accounts or Current accounts. It has already been mentioned that any adult person/individual competent to contract can open any account with any bank after observing usual formalities provided that the bank is satisfied about his identity, respectability and desirability. On many occasions, identity is ascertained by the passports, voter identity cards (ID), certificates of ward commissioners, employer’s certificates, and tax identification numbers (TIN) etc. They are required to furnish passport size photograph and an introduction from an acceptable person. Normally individuals either singly or jointly are allowed to open Savings account.

Joint Accounts

Accounts are allowed to be opened in two or more names (individuals). Documents required are similar to those applicable to the individual accounts. In case of joint accounts, generally ‘Either or Survivorship’ instructions are obtained in hand writing of the account holders concerned under their signatures. In such cases account may be operated by anyone of them. In the event of death of either one, survivor can operate the account. In the absence of instructions otherwise in the ‘Either or Survivorship’ declaration, the balance of the joint, account is payable to the survivor and the legal representatives of the deceased joint account holder if there is no nomination.

Accounts of Sole Proprietorship

The sole proprietorship concerns do not enjoy any legal status. Hence they are treated like individuals by the banks. While opening a new Current account, the owner is required to produce the trade license, certificate from Chamber of Commerce, Tax Identification number (TIN) and Value Added Tax (VAT) registration number as may be applicable or similar other document. In case of savings accounts, documents required are similar to those applicable to individual accounts.

Accounts of Partnership Firms

A partnership account is allowed to be opened by the banks on production of trade license and other documents evidencing the partnership business. If it is registered partnership it is required to produce registration number and partnership deed. If not, a standard partnership letter supplied by the banks is required to be signed by all the partners of the ‘firm’ in their individual capacities. Account may be in the name of the ‘firm’. But legally firm does not have any existence. Hence partners jointly and severally have to bear all the responsibilities.

The partnership deed or partnership letter is thoroughly studied by the banks to ascertain the names and addresses of all the partners and nature of business. The names of the partners authorized to operate the account on behalf of the firm including the authority to draw, endorse and accept bills, mortgage and sell property belonging to the firm etc are also ascertained from the Deed or Letter. Banks also ascertain the position of the firm on retirement or death or insolvency of any of the partners.

Negotiable Instruments are written contracts whose benefit could be passed on from its original holder to a new holder. In other words, negotiable instruments are documents which promise payment to the assignee (the person whom it is assigned to/given to) or a specified person. These instruments are transferable signed documents which promises to pay the bearer/holder the sum of money when demanded or at any time in the future.

As mentioned above, these instruments are transferable. The final holder takes the funds and can use them as per his requirements. That means, once an instrument is transferred, holder of such instrument obtains a full legal title to such instrument.

Negotiable instruments are transferable in nature, allowing the holder to take the funds as cash or use them in a manner appropriate for the transaction or according to their preference. The fund amount listed on the document includes a notation as to the specific amount promised and must be paid in full either on-demand or at a specified time. A negotiable instrument can be transferred from one person to another. Once the instrument is transferred, the holder obtains a full legal title to the instrument.

These documents provide no other promise on the part of the entity issuing the negotiable instrument. Additionally, no other instructions or conditions can be set upon the bearer to receive the monetary amount listed on the negotiable instrument. For an instrument to be negotiable, it must be signed, with a mark or signature, by the maker of the instrument the one issuing the draft. This entity or person is known as the drawer of funds.

Examples of Negotiable Instruments

One of the more common negotiable instruments is the personal check. It serves as a draft, payable by the payer’s financial institution upon receipt in the exact amount specified. Similarly, a cashier’s check provides the same function; however, it requires the funds to be allocated, or set aside, for the payee prior to the check being issued.

Money orders are similar to checks but may or may not be issued by the payer’s financial institution. Often, cash must be received from the payer prior to the money order being issued. Once the money order is received by the payee, it can be exchanged for cash in a manner consistent with the issuing entity’s policies.

Traveler’s checks function differently, as they require two signatures to complete a transaction. At the time of issue, the payer must sign the document to provide a specimen signature. Once the payer determines to whom the payment will be issued, a countersignature must be provided as a condition of payment. Traveler’s checks are generally used when the payer is traveling to a foreign country and is looking for a payment method that provides an additional level of security against theft or fraud while traveling.

Other common types of negotiable instruments include bills of exchange, promissory notes, drafts, and certificates of deposit (CD).

Types of Negotiable Instruments

1. Promissory notes

A promissory note refers to a written promise to its holder by an entity or an individual to pay a certain sum of money by a pre-decided date. In other words, Promissory notes show the amount which someone owes to you or you owe to someone together with the interest rate and also the date of payment.

For example, A purchases from B INR 10,000 worth of goods. In case A is not able to pay for the purchases in cash, or doesn’t want to do so, he could give B a promissory note. It is A’s promise to pay B either on a specified date or on demand. In another possibility, A might have a promissory note which is issued by C. He could endorse this note and give it to B and clear of his dues this way.

However, the seller isn’t bound to accept the promissory note. The reputation of a buyer is of great importance to a seller in deciding whether to accept the promissory note or not

2. Bill of exchange

Bills of exchange refer to a legally binding, written document which instructs a party to pay a predetermined sum of money to the second(another) party. Some of the bills might state that money is due on a specified date in the future, or they might state that the payment is due on demand.

A bill of exchange is used in transactions pertaining to goods as well as services. It is signed by a party who owes money (called the payer) and given to a party entitled to receive money (called the payee or seller), and thus, this could be used for fulfilling the contract for payment. However, a seller could also endorse a bill of exchange and give it to someone else, thus passing such payment to some other party.

It is to be noted that when the bill of exchange is issued by the financial institutions, it’s usually referred to as a bank draft. And if it is issued by an individual, it is usually referred to as a trade draft.

A bill of exchange primarily acts as a promissory note in the international trade; the exporter or seller, in the transaction addresses a bill of exchange to an importer or buyer. A third party, usually the banks, is a party to several bills of exchange acting as a guarantee for these payments. It helps in reducing any risk which is part and parcel of any transaction.

3. Cheques

A cheque refers to an instrument in writing which contains an unconditional order, addressed to a banker and is signed by a person who has deposited his money with the banker. This order, requires the banker to pay a certain sum of money on demand only to to the bearer of cheque (person holding the cheque) or to any other person who is specifically to be paid as per instructions given.

Cheques could be a good way of paying different kinds of bills. Although the usage of cheques is declining over the years due to online banking, individuals still use cheques for paying for loans, college fees, car EMIs, etc.  Cheques are also a good way of keeping track of all the transactions on paper. On the other side, cheques are comparatively a slow method of payment and might take some time to be processed.

The Negotiable Instruments (Amendment) Bill, 2017

The Negotiable Instruments (Amendment) Bill, 2017 has been introduced in the Lok Sabha earlier this year on Jan 2nd, 2018.  The bill seeks for amending the existing Act. The bill defines the promissory note, bill of exchange, and cheques. The bill also specifies the penalties for dishonor of cheques and various other violations related to negotiable instruments.

As per a recent circular, up to INR 10,000 along with interest at the rate of 6%-9% would have to be paid by an individual for cheques being dishonored.

The Bill also inserts a provision for allowing the court to order for an interim compensation to people whose cheques have bounced due to a dishonouring party (individuals/entities at fault). Such interim compensation won’t exceed 20 percent of the total cheque value.

Transactions are a very important part of businesses. There are many documents which are required for these transactions. These documents are used for transactions as well as transferring from one person to the other. Thus, these documents in business terms are called the negotiable instrument. Cheques, bill of exchange, bank draft, etc are some of the examples of these instruments.

Negotiable Instrument, in law, a written contract or other instrument whose benefit can be passed on from the original holder to new holders. The original holder (the transferor) must countersign the instrument (as in the case of a cheque) or merely deliver it (as in the case of a bank note) to the new holder; the new holder is then entitled to the benefit of the instrument (in the case of a cheque, to the money from the bank; in the case of the bank note, to the sum promised on the note).

According to section 13 of the Negotiable Instruments Act, 1881, a negotiable instrument means “Promissory note, bill of exchange, or cheque, payable either to order or to bearer”.

Major features of negotiable instruments are;

1. Easy Transferability

A negotiable instrument is freely transferable. Usually, when we transfer any property to somebody, we are required to make a transfer deed, get it registered, pay stamp duty, etc. But, such formalities are not required while transferring a negotiable instrument. The ownership is changed by mere delivery (when payable to the bearer) or by valid endorsement and delivery (when payable to order). Further, while transferring it is also not required to give a notice to the previous holder.

2. Title

Negotiability confers absolute and good title on the transferee. It means that a person who receives a negotiable instrument has a clear and undisputable title to the instrument. However, the title of the receiver will be absolute, only if he has got the instrument in good faith and for a consideration. Also the receiver should have no knowledge of the previous holder having any defect in his title. Such a person is known as holder in due course.

3. Must be in writing

A negotiable instrument must be in writing. This includes handwriting, typing, computer print out and engraving, etc.

4. Unconditional Order

In every negotiable instrument there must be an unconditional order or promise for payment.

5. Payment

The instrument must involve payment of a certain sum of money only and nothing else. For example, one cannot make a promissory note on assets, securities, or goods.

6. The time of payment must be certain

It means that the instrument must be payable at a time which is certain to arrive. If the time is mentioned as ‘when convenient’ it is not a negotiable instrument. However, if the time of payment is linked to the death of a person, it is nevertheless a negotiable instrument as death is certain, though the time thereof is not.

7. The payee must be a certain person

It means that the person in whose favor the instrument is made must be named or described with reasonable certainty. The term ‘person’ includes individual, body corporate, trade unions, even secretary, director or chairman of an institution. The payee can also be more than one person.

8. Signature

A negotiable instrument must bear the signature of its maker. Without the signature of the drawer or the maker, the instrument shall not be a valid one.

9. Delivery

Delivery of the instrument is essential. Any negotiable instrument like a cheque or a promissory note is not complete till it is delivered to its payee. For example, you may issue a cheque in your brother’s name but it is not a negotiable instrument till it is given to your brother.

10. Stamping

Stamping of Bills of Exchange and Promissory Notes is mandatory. This is required as per the Indian Stamp Act, 1899. The value of stamp depends upon the value of the pronote or bill and the time of their payment.

11. Right to file suit

The transferee of a negotiable instrument is entitled to file a suit in his own name for enforcing any right or claim on the basis of the instrument.

12. Notice of transfer: It is not necessary to give notice of transfer of a negotiable instrument to the party liable to pay.
13. Presumptions

Certain presumptions apply to all negotiable instruments, for example consideration is presumed to have passed between the transferor and the transferee.

14. Procedure for suits

In India a special procedure is provided for suits on promissory notes and bills of exchange.

15. Number of transfer

These instruments can be transferred indefinitely till they are at maturity.

16. Rule of evidence

These instruments are in writing and signed by the parties, they are used as evidence of the fact of indebtness because they have special rules of evidence.

17. Exchange

These instruments relate to payment of certain money in legal tender, they are considered as substitutes for money and are accepted in exchange off goods because cash can be obtained at any moment by paying a small commission.