Study Material 1
Study Material 1
Study Material 1
Promissory note is defined by Section 4 of the Negotiable Instruments Act. A promissory
note is an instrument in writingcontaining an unconditional undertaking, signed by the maker,
to pay a certain sum of money only to or to the order ofa certain person or to the bearer of the instrument.
An instrument to be a promissory note must possess the following elements :
(1) It must be in writing: Mere verbal promise to pay will not do. The method of writing
is important,but it must be in a media that can not be altered easily.
(2) It must contain an express promise or clear undertaking to pay: A promise to pay
cannot beinferred; it must be express. A mere acknowledgement is not enough. The following are notpromissory notes, as there is no promise to
(a) “Mr. A.I.O.U. Rs. 500”.
(b) “I am liable to pay you Rs. 1,000”.
(c) “I have taken from you Rs. 150; whenever you ask for it; I have to pay” But the following is apromise to pay:
(a) “I promise to pay Ram or order Rs.1,500.”
(b) “Ram, I owe you Rs. 1,500 and promise to pay the same for value received.” (c)
“I promise to payRam 1,500 at Kanpur.”Although the promise to pay may be opposed to public policy and unenforceable, once
a promissory note is executed the promise to pay is performed because a promissory note
amounts in law to paymentand what vitiates a promise does not vitiate a payment.
(3) The promise to pay must be unconditional: We have seen before that an instrument,
to be negotiable,must contain an unconditional promise or order. So a promise to
pay contained in a note must beunconditional. A conditional undertaking destroys
the negotiable character of an otherwise negotiableinstrument. But a promise to pay
at a particular place or after a specified time or on the happening of anevent which
must happen is not conditional. For example, I promise to pay B Rs.50 seven days after C’s death isnot conditional, for
C is certain to die some time or the other.
(4) The maker must Sign the promissory note: The person who draws the instrument and
signs it is knownas the maker and the person to whom the promise is made is called
the payee. The instrument will becomplete only when it is signed by the maker even
when it is written by him and his name appears in thebody of instrument. Signature
may be in any part of the instrument, and may be expressed by a thumb markor any other mark, if the executant is illiterate.
(5) The maker must be a certain person: The note itself must show clearly who is the
person engaginghimself to pay, Where the promisors are more than one they may
bind themselves jointly or jointly andseverally but not in the alternative.
(6) The payee must be certain: A promissory note must contain a promise to pay to
some person orpersons ascertained by name or designation or to their order. A
promissory note made payable to themaker himself it nullity but if such a note is endorsed by him, it becomes payable to bearer and is valid.
(7) The sum payable must be certain and the amount must not be capable of contingent
additions orsubstractions. Thus, if A promises to pay Rs.500 and all other sums
which shall become due to him or topay 180 and all fines according to rules, the instrument is not a promissory note.
(8) Payment must be in legal money of the country. Thus an agreement to pay money
or grain or todeliver 100 tons of iron is not a promissory note.
(9) A bank note or a currency note is not a promissory note within the meaning of this
section. They areexpressly excluded from the definition, as they are treated as money and not merely securities for money.
A promissory note or a draft cannot be made payable to bearer, no matter whether it is payable on demandor after a certain period.
(10) Other matters of form like number, place, date etc., are usually found given in notes, but they are notessential in law.
Specimens of a Promissory Note
Rs.500.00 Delhi
November 4,
November 4, 1998
On
On demand
demand (or
(or six
six months
months after
after date)
date) I promise
promise to
to pay
pay Ram
Ram or
or order
order the
the sum
sum of
five hundred
five hundred rupees
rupees with
with interest
interest atat 6 per
per cent
cent per
per annum
annum until
until payment.
Sd/ -
Sd/
Stamp
Gopal
Gopal is
Gopal is maker
maker and
and Ram
Ram is
is the
the payee.
Rs.500.00 Delhi.
Rs.500.00 Delhi.
Novv. 4,
No 4, 1998
On demand
On demand I promise
promise to
to pay
pay Ram
Ram the
the sum
sum of
of five
five hundred
hundred rupees
rupees onl
onlyy.
Sd/ -
Sd/
Gopal
Stamp
A promissory note must bear the stamp duty as required under the Indian Stamp Act. It is better if the stampsaffixed al-
e cancelled by the maker’s signature. Suit can not be maintained on an unsufficient stamped promissorynote.
BILL OF
BILL OF EXCHANGE
Definition
According to Section 5 of the Negotiable Instruments Act, A bill of exchange is an
instrument in writing containingan unconditional order, signed by the maker, directing a
certain person to pay a certain sum of money only to, or tothe order of, a certain person or
to the bearer of the Instrument. The definition of Bill of Exchange is very similar tothat of a promissory note and for most purposes the rules
which apply to notes are in general applicable to bills.The fundamental ingredients are the same. The drawer like the makers
must be certain, the order to pay must beunconditional, the amount of Bill and the payee and the drawer, must be certain and the contract must be in writing.
The maker of a note corresponds to the acceptor of a bill, and when a note is endorsed it is exactly similar to abill, for then
it is an order by the endorser of the note upon the maker to pay the endorsee. The endorser
is, as itwere, the drawer, the maker, the acceptor and the endorsee is the payee. But a bill
differs from a note in someparticulars.The usual form of a bill of Exchange is given below:
Rs.700.00 Delhi
November 4,
November 4, 1998
Three months
Three months after
after date
date paypay to
to me
me oror Bearer/or
Bearer/or order order the
the sum
sum of
of rupees
rupees seven hundred
hundred only
only for
for value
value received.
To Sultarl
Sultarl Singh
Ch. Ch.
Ch. Ch. Delhi
Sd/ -
Sd/
Stamp
X Y Z
Here Sultan
Here Sultan Singh
Singh is
is the
the drawee
drawee and
and X Y Z is
is the
the drawer
drawer or
or maker
maker of
of the
the bill.
119
Rs.500.00 Delhi
November 4,
November 4, 1998
Three months
Three months after
after date
date pay
pay to
to Ram
Ram or
or order
order the
the sum
sum of
of five
five hundred
hundred rupees
rupees for value
value received
received .
To
Sultan Singh
Sultan
Sd/ -
Sd/
Stamp
Esplanade Road. X. Y Z Delhi.
Here X.Y.Z. is the drawer, Ram is the payee and Sultan Singh is the drawee.
Essentials of
Essentials of a Bill
Bill of
of Exchange
1. It must be in writing and may be in any language.
2. It must be an order to pay by the drawer to the drawee.
3. The order to pay must be unconditional. If the order to pay is conditional, the bill of exchangebecomes invalid.
4. There are three parties in a bill of exchange. (a) Drawer: The personwho makes the bill.
(b) Drawee: The person who is ordered to pay or on whom the bill is drawn.
(c) Payee: The person who is to receive the payment.
5. The bill must be signed by the drawer otherwise it will become an inchoate instrument.
6. The order to pay must be of a certain sum and it must be in money only.
7. The payee and drawee must be certain.
8. It must be properly stamped under the Indian Stamp Act.
Distinction between
Distinction between Bill
Bill and
and Note
The below given differences are enumerated from the above meanings of both the instruments—
(1) In a note there are only two parties - the maker and the payee. In a bill there are
three partiesnamely, drawer, drawee, and payee; though two out of three capacities
may be filled by one andthe same person. In a bill the drawer is the maker who
orders the drawee to pay the bill to aperson called the payee or to his order. When the drawee accepts the bill he is called the acceptor.
(2) A note cannot be made payable to the maker himself, while in a bill the drawer and payee ordrawee and payee may be the same person.
(3) A note contains an unconditional promise by the maker to pay to the payee or his
order; in a billthere is an unconditional order to the drawee to pay according to the drawer’s directions.
(4) A note is presented for payment without any prior acceptance to the maker. A bill payable aftersight must be accepted by the drawee or some o
before it can be presentedfor payment.
(5) The liability of the maker of a note is primary and absolute, but the liability of the
drawer of a billis secondary and conditional. He will be liable only if the bill is not
accepted or paid by the drawer.
(6) The maker of the note stands in immediate relation with the payee. while the maker or drawer of anaccepted bill stands in immediate relation with the a
(7) Foreign bills must be protested for dishonour when each protest is required to be
made by the lawof the country where they are drawn but no such protest is necessary in the case of the note.
(8) When a bill is dishonoured, due notice of dishonour is to be given by the holder to
the drawer andthe intermediate indorsers, but no such notice need be given in the
case of a note .
Types
ypes of
of Bill
Bill of
of Exchange
A bill of exchange may be an Inland bill or a Foreign bill. Originally, bill was a means
by which a trader in onecountry paid a debt in another country without the transmission of coin. An Inland bill is drawn and payable in India or drawn in
India upon some person resident in India, even though it is made payable in a foreign country. A bill which isnot Inland is a Foreign Bill (Sec. 12).
Accommodation Bill
Accommodation
Legitimately speaking, an accommodation bill is not a bill as such. It is simply a mode of accommodating a friend inbusiness. For example, A may
be in want of money and
approach his friend B and C who, instead of lending themoney directly, propose to draw an‘Accommodation Bill’ in his favour. A promises to reimburse C b
the billis up (which is generally 3 months). If the credit of B and C is good, this device enables A
to get an advancefrom his banker at the commercial rate of discount. The real debtor in this
case is not C, the acceptor, but A the payeewho has engaged to find the money for its ultimate
payment, and A is here the principal debtor and the others merelysureties. Thus, as between
the original parties to the bill the one who would prima facie be principal is in fact, thesurety
whether he be drawer, acceptor or indorser, that bill is an accommodation bill.
Rights to
Rights to Duplicate
Duplicate Bill
Where the bill is not overdue but has been lost, the person who was holder of it may
apply to the drawer, to givehim another bill of the same tenor, giving security to the drawer
if required, to indemnify him against all personswhatever in case the bill alleged to have been
lost shall be found again. If the drawer refuses to give such duplicate billmay be compelled
to do so by means of a suit. Holder is the person who can ask for a duplicate.
Bank Draft
Bank
A demand draft is a bill of exchange drawn by a bank on another bank, or by itself on
its own branch, and is anegotiable instrument. It is like a cheque but differs in certainrespects.
First, it can be drawn only by a bank onanother bank and not by a private individual
as in the case of cheques. As against a cheque, it cannot becountermanded easily either by
its purchaser or by the bank to which it is presented. Finally, it cannot be madepayable to
bearer. These days it is a popular mode of making payments. Banks charge a nominal amount of commissionfor this service.
Bill in
Bill in Sets
Foreign bills are generally drawn in sets of three each. According to S. 132, bill of
exchange may be drawn inparts, each part being numbered and containing a provision that
it shall continue to be payable so long as the otherpart remains unpaid. All the parts together
make a set but the whole set constitutes one bill and is extinguished whenone of the parts, if a separate bill, would be extinguished.The bills are
drawn in sets, in foreign trade in order to facilitate prompt and easy
presentation for acceptance and payment. It also reduces the risk of loss in course oftransit.
HUNDI
As stated earlier in this chapter, the negotiable instrument act covers only three types of
instruments, viz. promissorynote, bill of exchange and cheque. Hundi is not given in the
definition of a negotiable instrument in the act. Hundi isone of the oldest instrument prevalent
in Indian business world. Hundis are governed by local usages or customs butwhere the act
is contrary to the customs, the local usages or customs will apply. But in the absence of any
usages orcustoms, the provisions of this act will apply.The word Hundi is derived from the Sanskrit word ‘Hund’, which meansto ‘collect’.
Hundi is generally drawn in a vernacular language according to Indian mercantile common
law andcustoms. It is sometimes drawn as a promissory note.Sometimes, a hundi is accompanied by ZIKRI CHIT. The zikri chitis written by the
drawer or any other prior party and addressed to some respectable person requesting him to honour-the hundi if it is dishonoured for non-
payment or for any other reason. Thus it serves as a letter of protection.
Types
ypes of
of hundis
1. Darshni Hundi : It is payable at sight or on demand. No days of grace are allowed.
2. Nam Jog Hundi : It is payable to the person named in it or to his order. It is also called
as ‘farmanjog hundi’. It canbe negotiated by endorsement and delivery alone like a bill of exchange.
3. Muddati Hundi : It is payable after the expiry of a fixed period. Days of grace are allowed as per localcustoms .
4. Jawabi Hundi : The person who has to remit the money writes a letter to the payee.
The payee directshim to make the payment on his order. Once the payee has obtained
payment after the arrival of theletter, he sends his reply (jawab) for the receipt of payment.
Through this method money can be passed onfrom one place to another place. For example,
Anand in Delhi owes Rs. 10,000 to Bihari in Kanpur, Rarn inMeerut owes Rs.10,000 toAnand in Delhi, Ram wants to make payment to Anand. Anand write
to make payment to Bihari and send the ‘jawab’ intimating him the payment to Bihari.
Similarly Bihari is alsorequested to send reply soon after he is paid by Ram.
5. Shah Jog Hundi : The word shah means a person of repute and wealth. This hundi is
an instrumentpayable to bearer, negotiable by delivery alone and payable only to a shah. A
shah Jog hundi passes fromperson to person by delivery only, sirlce no endorsement is
needed. The shah after making due enquiriesregarding its validity will present it to drawee
for final settlement. In case of any fraud, the shah is bound torefund the amount of hundi with interest.
6. Dhanijog Hundi : It is payable to the holder or to the bearer but the payer must ensure that its paymentis being made to the real owner of hundi.
7. Nishanjog Hundi : Where the drawer does not write the name of the payee but simply
parts a privatecode on the hundi which a drawee should decipher before making payment.
This is payable only when thepayee produces a person to the drawee who identifies the payee.
8. Jokhmi Hundi : It is drawn by the seller upon the buyer in lieu of the price of goods sold. The buyer accepts it for payment conditional upon the
receipt of goods bought. It is some sort of combination of bill of exchange and insurancepolicy. Strictly speading it can not be
placed in the category of a negotiable instrument because it is conditional.
9. Khoti Hundi : It is a hundi whose genuineness is in doubt or which is a forged one.10. Khoka Hundi : It is ahundi whose amount has been paid.
CHEQUES
A cheque is a bill of exchange drawn on a specified banker and not expressed to be
payable otherwise than ondemand. It is like a bill of exchange always drawn on a bank
payable on demand. Therefore, it must satisfy all therequirements of a bill (section 6).It must be in writing and signed by the drawer. It should contain an
order to a specified banker to pay a certain sum of money to a particular person or to his order or to the bearer ondemand.
Distinction between
Distinction between Bills
Bills and
and Cheques
1. A cheque is always drawn on a banker, while a bill may be drawn on anyone, including a banker.
2. A cheque’s payment is made when it has been demanded whereas in case of a bill its
nature may besuch that payment has to be made on demand or after the expiry of a certain period after date or sight.
3. In case of a cheque a bearer can get payment on demand but a bill's payment can not be demanded by the bearer.
4. Acceptance of bill is necessary for the demand of its payment, in case of cheque
acceptance isnot required and is aimed for quick payment.
5. In case of bills ordinarily a provision for grace days is made (which is generally of
3 days) whereas in case of cheques no such grace is allowed.
6. In the absence of presentment of a bill for payment the liability of bill’s drawer
ceases, whereasliability of cheque’s drawer ceases when the delay caused in presentment for payment results in damages.
7. Notice must be served when the bill is dishonoured, but when a cheque is not honoured, no such notice is necessary.
8. A cheque being a revocable order the authority may be revoked by countermanding
payment, andis determined by notice of the customer’s death or insolvency. In case of a bill the position is different, itcan not be revoked.
9. A cheque may be crossed to secure its payment, no such crossing can be done in case of a bill.
Liability of
Liability of a Banker
A banker is one whose business is to honour cheques drawn upon him by persons and
for whom he receives money oncurrent accounts. If a person opens a current account by depositing certain money with the banker, a relationship
of creditor and debtor emerges between the customer and the banker and the banker undertakes to honour thecheques drawn
by the customer so long it has sufficient funds to the credit of the customer. If a banker
withoutjustification, fails to obey his customer’s mandate which is issued in the form of a
cheque, he will be liable tocompensate the drawer for any loss or damage suffered by him.
But the payee or the holder of the cheque has nocause of action against the banker as the
obligation to honour cheques is only towards the drawer.The customer may,however, be awarded very heavy damages, if he proves loss of credit
on account of the dishonour, and the rule is thesmaller the amount of a cheque dishonoured
the larger the amount the damages.There are numerous cases in whichthe banker must refuse to honour his customer’s cheques :
1. When customer countermands payment. When a customer after issuing a cheque, issues
instructions not tohonour a cheque, the banker must not pay it. If the bank pays it, he will be liable to make good the customer’sloss.
2. When banker receives notice of customer’s death. Notice of customer’s death terminates banker’s authorityto honour cheques.
3. When customer becomes insolvent. When a customer has been adjudged an insolvent,
all his assetsvest in the Official Assignee or the Court, and the banker must thereafter refuse to pay his cheques.
4. When banker receives notice of customer’s insanity, he must not honour his cheques.
5. When the banker receives a garnishee order from the court relating to the customer’s
money, the bankershould not honour cheques drawn against the customer’s account.
6. The banker should not honour his customer’s cheques after the customer has given
notice of assignment ofthe credit balance of his account.
7. When the holder ’s title is defective, and banker comes to know of the defect.
8. When the banker comes to know that the customer is drawing cheques for unlawful purposes.
9. When the banker has received a notice from the customer for closing the account.
When banker may refuse payment. In the following cases the banker may, if he likes, refuse tohonour the cheques :
1. Where the cheque is post-dated and is presented before the date noted on it. The banker
is required topay the cheque on the date which the cheque bears and not before. In fact, payment before that date ismade by the banker at his own risk, fo
bearing an earlier date, the banker cannot debit the customer’s account with the amount of the post-datedcheque.
2. Where the banker has not got sufficient funds of the drawer with him.
3. Where the funds in the hands of the banker are not properly applicable to the payment
of the customer’s cheque.For example, the funds are held by the customer in trust, and the
cheque is issued in breach of trust, the bankermay refuse to pay.
4. Where the cheque is of doubtful legality. The banker may refuse to pay if the cheque
is irregular orambiguous, materially altered or drawn in a doubtful legality.
5. Where the cheque is presented after office hours.
6. Where the cheque is presented at a branch where the customer has no account or where his account isoverdrawn.
7. Where some persons have joint account and the cheque is not signed by all jointly,
or by the survivors of them. Butif the cheques are payable to Either or survivor then thechrque signed by any of the two parties will be sufficientfor payme
8. Where the cheque has been allowed to become stale, i.e., it has not been presented for
payment within a reasonabletime after the date mentioned in it. In India, a cheque presented6 months or more after the date is regarded as state.
Crossing
ossing of
of Cheques
A cheque is either an “Open cheque” or a “crossed cheque”. An open cheque is uncrossed
and can be presented by thepayee to the banker on whom it is drawn and will be paid over
the counter. An open cheque is, however, liable togreat risk in course of circulation. It may
be stolen or lost and the finder may get it cashed. In order to avoid the lossesincurred by open
cheques getting into the hands of wrong parties the custom of crossing was introduced.
A Crossing is a direction to the paying banker to pay the money generally to a banker
or to a particular banker, asthe case may be, and not to pay to the holder across the counter.
A banker paying a crossed cheque over the counterwill be liable to the customer if the holder
turns out to be a person not entitled to pet payment. The object ofcrossing is to secure
payment to a banker so that it could be traced to the person receiving the amount of the cheque.
There are two types of crossing - General and Special. To these may be added another type-
Restrictive crossing. Ageneral crossing is one where a cheque bears across its face two
transverse lines with or without the words “andcompany” or “& Co.” or two parallel
transverse lines with or without the words “not negotiable”. If a cheque iscrossed generally;
the paying banker shall pay only to a banker.A special crossing is defined thus: “Where a chequebears across its face an addition of
the name of a banker, either with or without the word “not negotiable” thataddition shall be
deemed a crossing and the cheque shall be deemed to be crossed specially and to be crossed
to thatbanker.” In a general crossing the parallel transverse lines are necessary although in
a special crossing they need notbe there. But in the later case, the name of the banker is
essential to whom or to whose collecting agent alone thepayment will be made. Restrictive crossing have been adopted by commercial usage in order
of a their
obtaining payment. They consist in addition to the general or special crossing the words‘Account Payee’only. Such crossing vvarn the collecting banker
credited only to the account of thepayee, of the party named.
If a cheque is made payable to a payee and to him only, it becomes non-transferable in
the strict sense. He is theonly person who can get payment. But where a cheque is crossed
and bears the word ‘not negotiable’ it is transferable, but it loses its special feature of
negotiability. Such a cheque is like any goods, the transferee ofwhich does not get a better
title than that of the transferor, the transferee for value and in good faith is not aholder in
due course.A cheque may be crossed by the drawner or by the holder. The holder may add the words‘notnegotiable’ to a crossing. The word not negotiable r
it should not be negotiatedfurther.
Examples of
Examples of Crossing
A. General
General Crossing
ossing (Sec.
(Sec. 123)
(i) Two parallel transverse lines with or without the words ‘& Co.’ across the face of a cheque.
& Co.
(ii) Two parallel transverse lines across the face of a cheque with the words ‘not negotiable’.
Not
Negotiable
B. Special
B. Special Crossing
ossing (Sec.
(Sec. 124)
State
Two parallel transverse lines across the face of a cheque with the name of a banker.
Bank of
India State
Not
Bank of
Negotiable
India
C. Restrictive
C. Restrictive Crossing
Addition of words ‘account payee only’ to the words general or special crossing.
A/c A/c
Not
Payee Payee
Negotiable
Only Only
Who can
Who can dodo crossing
According to Section 125 following persons can cross a cheque :
1. The drawer-generally or specially.
2. The holder who gets an uncrossed cheque can subsequently cross it. If he gets a
generallycrossed cheque, he may cross it specially. To generally or specially crossed cheques, he may add thewords ‘not negotiable’.
3. Where a cheque is specially crossed to a banker the holder may again cross it specially toanother bank or to his agent for collection.
4. Where a cheque is crossed specially the banker to whom it is crossed may again
cross it specially to another bank or his agent, for collection.
Protection
rotection of of Paying
Paying Banker
The paying banker is in a privileged position as regards the payment of his customer’s
cheques. According tosection 85 where a cheque payable to order signifies to be indorsed by
or on behalf of the payee, the banker isdischarged by payment in due course. He can debit
the account of the customer with the amount even though theendorsement of the payee turns
out subsequently to have been forged, or the agent of the payee without authorityindorsed it
on behalf of the payee. It would seem that the payee includes indorsers. This protection is
grantedbecause a banker cannot be expected to know the signatures of all persons in the
world. He is only bound to knowthe signatures of his own customers. Therefore the forgery of drawer’s signature will not ordinarily protect thebanker, but
may debit the customer’s account, if he can show that the forgery wasintimately connected
with the negligence of the customer and was the proximate cause of loss. With regard to
bearer cheques the rule is ‘once a bearer cheque always a bearer cheque’. Therefore, where
a cheque is originallyexpressed by the drawer himself to be payable to bearer. The banker
may ignore any indorsements on the cheque.He will be discharged by payment in due course.
But a cheque that becomes bearer by a subsequent indorsement in the blank is not covered by this section (Section85).
Collecting Banker: By Sec.131, where a banker in good faith and without negligence
receives paymenton behalf of a customer of a cheque crossed generally or specially to himself
and the customer has no titleto the cheque, the banker is protected against the claims of true owner. The banker will be protected onlyif he proves that :
(i) the cheque collected by him was crossed before it reached his hands,
(ii) the cheque was presented by or on behalf of the customer and that he received payment forthe customer.
(iii) he acted in good faith and without negligence in collecting the money due on the
cheque.Therefore, if he collects an uncrossed cheque or a crossed cheque for a non-customer, he gets no protection.
Instrument payable on demand — The following instruments are payable on demand :—
1. A cheque is always payable on demand.
2. A note or bill in which no time for payment is specified.
3. A note or bill expressed payable “on demand”, or “at sight”, or “on presentment”.
Instrument whichare not payable on demand are expressed to be payable at certain period ‘after sight’ or ‘after date’, or afterhappening of ‘an event’ which is
60 days after date, or 90 days after
the death of A, and payment can be demanded on presenting it on itsmaturity.Sometimes it may happen that an instrument is so worded that it can be int
as a bill ofexchange or as a promissory note. Such an instrument is called an Ambiguous
Instrument, and the holder may treat iteither as a bill or a promissory note. A bill drawn by
an agent on his principal, or by one branch of a bank on anotheris an ambiguous instrument
and the holder may treat it as a bill or a note.Again, it may happen that a person signsand delivers to another a paper stamped in
accordance with the law relating to negotiable instrument, and eitherwholly blank or having
written thereon an incomplete negotiable instrument, he is said to issue an Inchoate Instrument.
He thereby gives authority to the holder of the instrument to make or complete up on it a
negotiable instrument, for any amount not exceeding the amount covered by the stamp.A signs a promissory note without stating the amountpayable, put
it and hands it to his clerk B for making certain purchases and asks him to put theamount.
B purchases goods worth Rs.400 but puts Rs.500 in the note. The note is negotiated to C, who
takes in goodfaith and for value. C can recover Rs.500 from A.Maturity of an Instrument- The maturity of a bill of exchange or apromissory note is the
date on which it falls due. An instrument payable at a specified period after sight, or after date
orafter the happening of a certain event is entitled to three days of grace. Such a bill matures
or falls due on the lastday of grace, and must be presented for payment on that day. If it is
dishonoured, a suit can be filed on the nextday after maturity.When a note or bill is expressed to be payable at a stated number of months after sight,
or afterdate; or after certain event, the period of payment terminates on the day of the month
which corresponds with thedate of the instrument, or with the date of acceptance of the bill
be accepted, or, presented for sight or noted orprotested for non-acceptance. If the month in
which the period would terminate has on corresponding day, theperiod shall be held to
terminate on the last day of such month. If the date of maturity falls on a public holiday, the
instrument is payable the preceding business day. Thus, if a bill is at maturity on a Sunday, it will be deemed due onSaturday and not on Monday.
The Instruments entitled to days of grace are :
(a) A bill of exchange or promissory note payable at a specified day. (b) A bill or note payableafter sight,
(c) A bill or note payable at a certain period after date, and
(d) A bill or note payable at a certain period after the happening of a certain event. The Instruments which are not entitled to days of grace :
(a) A cheque,
(b) A bill or note payable at sight or on presentment or on demand and
(c) A bill or note in which no time is specified.
Parties to
Parties to a Bill
Bill of
of Exchange
1. The Drawer: the person who draws the bill.
2. The Drawee: the person on whom the bill is drawn.
3. The Acceptor: the person who accepts the bill. Generally, the drawee accepts the bill, but stranger may accept on behalf of the drawee.
4. The Payee: one to whom the sum stated in the bill is payable. Either the drawer or any otherperson may be the payee.
5. The Holder is either the original payee or any other person to whom the payee has
endorsed thebill. In case of the bearer bill, any bearer is the holder.
6. The Endorser: when the holder indorses the bill to anyone else he becomes the endorser.
7. The Endorsee is the person to whom the bill is endorsed.
8. Drawee in case of need: Besides the seven parties, another person called the drawee
in case ofneed, may be introduced at the option of the drawer. The name of such
a person is added to thebill so that when the bill is dishonoured either by non- acceptance or by non-
payment, the billmay be accepted or paid.
9. Acceptor for Honour: a person who voluntarily becomes a party to a bill as an acceptor to savethe honour of the drawer at any indorser.
Parties
Parties to
to a Promissory
Promissory Note
1. The Maker: the person who makes or executes the note promising to pay the amount stated therein (Debtor).
2. The Payee: one to whom the note is payable (Creditor).
3. The Holder: is either the payee or some to whom he may have endorsed the note.
4,5. The Endorser and Endorsees: Same as in the case of a bill.
Parties to
Parties to a Cheque
1. The Drawer: the person who draws the cheque.
2. The Drawee is always the drawer’s banker on whom the cheque is drawn.
3,4, The payee, Holder, Indorser and Indorsee: same as in the case of a bill of exchange
5&6 or promissory note.
Holder and
Holder and Holder
Holder in
in due
due course
A holder of negotiable instrument is a person who is entitled to be legally in possession
of the instrument and torecover or receive the amount due thereon from the parties to the instrument (Sec.8). A
person who has obtainedpossession of the instrument by illegal means,
e.g. by theft, or under a forged indorsement, is not a holder. He cannotrecover amount from the parties thereto.A holder in due course is a person who
obtained possession of the instrument for valuable consideration before its maturity, (i.e. before the amount mentioned in it becomespayable),
and had no cause to believe that any defect existed in the title of the person from whom he
derived title (Sec.9)It follows from the above that a person is a holder in due course if:
(a) he has obtained the instrument for valuable consideration. Where the instrument is
obtained by gift or byillegal means, the holder can not become a holder in due course.
(b) he has obtained the instrument complete and regular in all respects.
(c) he has become the holder before its maturity.
(d) he has obtained the instrument in good faith. Good faith simply means that a person
takes the instrument without sufficient cause to believe that any defect existed in the
title of the person fromwhom it is received. So where an instrument was torn into
pieces and then pasted or the amount on the billwas erased, it should have arouse
suspicion and the holder may not be called holder in due course.
Special Rights
Special Rights or
or Privileges
Privileges of of a Holder
Holder in
in due
due course
According to Sec.53 of the Act, once a negotiable instrument passes through the hands
of a holder in due course, itgets cleansed of all defects, unless he himself was a party to fraud
or illegality committed regarding the instrument.Therights of a holder in due course can be summed up as follows :
1. He gets a good title to the instrument even though the title of the transferor is
defective. Thus,he may get a better title than that of the transferor; e.g. if A steals a bill from B and endorses to C,a holder due course, C can recov
B, although A cannot recover from B.
2. Every prior party to a negotiable instrument is liable thereon to a holder in due course untill theinstrument is duly satisfied.
3. A holder in due course can sue all the parties liable to pay in his own name.
4. The holder in due course gets a good title even though the instrument was originally
and inchoatestamped instrument and the transferor completed the instrument for a
sum greater than what wasintended by the maker. He can recover the full amount
provided the stamps affixed were sufficientto cover the amount.
5. Where a bill is drawn payable to drawer’s order in fictitious name and endorsed by
the same asdrawer’s signature, the acceptor cannot plead, by way of defence, then the bill is drawn in fictitiousname.
6. In the eyes of the law, every holder is a holder in due course unless proved otherwise.
7. Even though between the immediate parties to an instrument it was caused by fraud
etc., oncethe instrument passes through the hands of a holder in due course, it is
purged of all defects, andany person acquiring it takes it free of all defects, unless he was himself apart to the fraud.
8. The maker of promissory note, the drawer of bill of exchange or cheque, and
acceptor of abill for the honour of the drawer, in a suit thereon by the holder in due
course, is not permitted todeny the validity of the instrument as originally made or drawn. (A minor can plead minority).
9. The indorser of a negotiable instrument, in a suit thereon by the holder in due
course, course,is not allowed to deny the signature or the capacity to contract of any prior party to the instrument.
10. In case of forged instrument, a holder in due course will get no title because it
amounts tocomplete absence of title rather than a mere defect in title. (Sec.58).
Payment in
Payment in due
due course
The payment of a negotiable instrument should be made to the right person by the payjng
banker or the acceptor of thebill, otherwise the latter shall be responsible for the same. The payment of a negotiable instrument is not withoutcertain risks.
provided the payment
is made as required in the Act. Such payment is called as payment in due course.According toSection 10 “payment in due course” is payment in accord
apparent tenor of the instrument in good faith and without negligence to any person in
possession thereof under circumstances which do not afford areasonable ground for believing
that he is not entitled to receive payment of the amount mentioned therein.
A payment in due course has the following essential features :
1. The payment should be made according to the true intentions of the parties to the
negotiableinstrument, as is apparent from the document itself. Payment may be
made either in cash or through aclearing house or by a draft. If the banker makes payment of a post-
dated cheque before the datementioned therein or pays a crossed cheque at the counter, then he acts against the true intentions of thedrawer and
hence the payment will not be treated as payment in due course.
2. The payment should be made in good faith and without negligence. The banker
should made thepayment in the good faith, i.e., honestly and not fraudulently. He should take all necessary precautions andact as a reasonable person w
particular circumstances of a case.
3. Payment must be made to the person in possession of the instrument in circumstances which do notarouse suspicion about his title to posses the inst
payment thereof. The payment of theorder cheque should be made to the right
person after proper identification. Sometimes the appearanceand behaviour of the
person presenting the cheque at the counter may arouse a suspicion in the mind of
the banker about the validity of the formers’ authority to receive payment.
Capacity of
Capacity of Parties
Parties (who
(who can
can be
be parties
parties to
to negotiable
negotiable instrument)
The capacity to make draw, accept, negotiate and indorse a negotiable instrument depends
upon the capacity to enterinto contracts. Therefore, every person competent to contract may
incur liability by becoming a party to a negotiableinstrument. Thus, a minor , lunatic or a drunken person does not incur liability and can not become a party
negotiable instrument, but he can acquire rights under it. So if a cheque is drawn in favour of a minor , i.e., he is
a payee, he can recover the amount stated in the cheque. Also the absence of capacity of one
or more of the partiesto a negotiable instrument in no way diminishes the liability of the
competent parties.A draws a cheque in favour ofB, a minor. B endorses it in favour of C, who in turn
endorses it in favour of D. The cheque is dishonoured by thebank. D can recover from C and
A, but not from B, the minor; and C can recover from A but not from B.An insolventperson cannot draw, make, accept or indorse a negotiable instrument, alth
holder in due course, the letter can recover from all parties,
except the insolvent.A corporation or companycan incur liabilities under a negotiable instrument if it is so
empowered by its memorandum of association. A tradingcompany has, however an implied authority to execute a negotiable instrument, while a non-
trading company has no such implied authority.The Karta or manager of Joint Hindu Family can bind the Joint Family by executing a
negotiableinstrument, provided the transaction is for the benefit of the family or is for legal necessity.
Liability of
Liability of Parties
1. The maker of a promissory note and the acceptor of a bill of exchange are primarily responsible for thepayment due.
2. The drawer of a bill or cheque is bound in case of dishonour by the drawee or
acceptor thereof, tocompensate the holder, provided due notice of dishonour has been given to, or received by the drawer.
In consequence, the maker of a note, the drawer of a cheque, the drawer of a bill until
acceptance, and the acceptorare respectively liable on the instrument as principal debtor. Theother parties i.e., the intermediate indorses anddrawer of a b
thereon as sureties for the maker, drawer or acceptor.In between partiesare liable as sureties, each prior party is also liable thereon as a
principal debtor in respect of each subsequentendorsement.A draws a bill payable to his own order on B, who accepts it. A afterwards indorses the
bill to C, C to Dand D to E. As between E and B, B is the principal debtor, and A, C and
D are his securities. As between E and A, Ais the principal debtor and C and D are his
sureties. As between E and C, C is the principal debtor and D is hissurety.The maker of a note and the acceptor before maturity of a bill are bound to p
amount at maturity tothe holder. The acceptor of a bill at or after maturity must pay the
amount to the holder on demand. The drawer ofa cheque (i.e., the paying banker) must pay
it when presented for payment if the drawer has sufficient funds to hiscredit with the banker.