CHARGING OF SECURITIES AND DOCUMENTATION.

Compiled by Md. Abu Zafar Shamsuddin

Security for bank advance has no doubt been reduced to secondary importance in the present context particularly for priority sector advances but it is still very important to influence the decision of banks in conventional advances. Reserve Bank of India has also stipulated certain quantitative restrictions on the banks' power to grant clean advances. Banks have prescribed their own formats for documentation for various types of advances and the borrowers in almost all the cases have to execute those documents without any choice. It would never be advantageous to know the general characteristics of securities, methods of their charging and documentation procedures adopted by the banks. The securities may primarily be divided in two categories as under

Primary security. Collateral security.

1.

What is the difference between primary security and collateral security?

Primary security is the asset created out of the credit facility extended to the borrower and / or which are directly associated with the business / project of the borrower for which the credit facility has been extended. Collateral security is any other security offered for the said credit facility. For example, hypothecation of jewellery, mortgage of house, etc.

The assets created by the borrower from the credit facilities granted by the bank form the primary security for the bank advance as a matter of rule. The bank invariably obtains a charge over those assets. Similarly, other assets on which the advance is primarily based even if it is not created from the credit facilities granted by the bank will also be taken as primary security. BASIC CHARACTERISTICS OF SECURITIES AND CONCEPT OF MARGIN The securities acceptable to banks either as primary or collateral must have certain, basic characteristics as under: Ascertainment of value. . Marketability. . Stability in value. . Ascertainment of title and transferability. Durability. . TYPES OF CHARGES Security is obtained by the bank as an additional cover against default by the borrower in repayment of bank's dues. Charging of security means making such security available to the bank and involves certain formalities. Charging should be legal and perfect so that it is possible to realise the security if such a need arises. There are six different modes of charging a security as under:

Pledge. Pledge is bailment of goods by the debtor to the creditor with an intention to create a charge thereon as security for the debt. It has a legal backing as per the Indian Contract Act, 1872 wherein the definition of pledge and bailment and also the rights and liabilities of all the parties to pledge have been clearly spelt out. Important conditions to be complied with for constitution of a valid pledge are: There should be bailment of goods which implies that goods should be delivered the debtor (pledger) to the creditor (pledgee). The delivery may nevertheless be actual physical delivery or constructive delivery as in case of documents of title to goods. The bailment must be by the debtor or on behalf of the debtor. The delivery of goods must be with an intention of the parties to create security for die debt or performance of a promise. In pledge the ownership of the goods remain with the borrower whereas physical control over these goods will be exercised by the bank. The borrower has a right to get the goods returned to him after payment of debt created here against. This mode of charge may be considered as an ideal one for the bank as it has full control over the security and can even realise it without any legal process merely by serving a notice on the borrower. The borrower however, is put to great disadvantage as he losses coned over the goods and the account involves operational difficulties. Generally the raw material or finished goods or stock in-trade etc. not immediately required by the borrower may be offered to the bank for pledge.

Hypothecation. Pledge takes away control over the goods from the borrower which may not be practicable as the borrower would require certain goods under his control to continue its manufacturing and/or trading activities. An equitable charge in favour of the bank over the goods is created in such cases without parting with the possession of the goods. A charge on a property for a debt where neither ownership nor possession is passed on to the creditor is known as hypothecation charge Hypothecation agreements obtained by banks generally have a clause under which hypothecation can be converted into a pledge at, a later date.

Assignment. Assignment means transfer of a right, property or debt by one person to another person. The person transferring the right is known as assignor and the person to whom the right is transferred is known as assignee. The assignment may be legal in which case the assignor must give a written notice of the assignment stating the name and address of the assignee to the debtor or may he equitable where no such notice is sent. This form of charge is generally adopted for charging of book debts, monies due from Government (supply bills) and life insurance policies etc. Banks generally go in for legal assignment and insist for obtaining an acknowledgement of assignment from the debtor. Mortgage. Mortgage is a mode of charge associated with immovable property. Immovable property has been defined by Section 3(26) of General Clauses Act, 1887 as under:

Immovable property shall include land, benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth". Section 4 of General Clauses Act, 1887 further provides that the above definition of immovable property shall hold good under the Transfer of Property Act, 1882 as well. Section 3 of Transfer of Property Act, 1882 provides that immovable property does not include standing timber, growing crops or grass. It also provides explanation to the term "attached to the earth" which means: (a) rooted in the earth, as in case of trees and shrubs, (b) (b) imbedded in the earth, as in case of walls or buildings, or (c) (c) attached to what is so imbedded for the permanent enjoyment of that to which it is attached. A similar definition of immovable property has been given by Section 2(6) of the Registration Act, 1908 as under: Immovable property' includes land, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of land and things attached to the earth or permanently fastened to anything which is attached to the earth but not standing timber, growing crops nor grass". A point in case may arise in respect of machinery. Machinery which is not permanently attached to the earth and can be shifted to other place will not be considered as immovable property. But if a machinery is permanently attached to the earth in, a manner that it cannot be removed from there, it shall be considered as immovable property. Section 58 of 'Transfer of Property Act, 1882 defines mortgage as a transfer of an interest in a specific immovable property for the purpose of securing an existing or future debt. The person transferring the interest is known as 'mortgagor' and the person to whom the interest is transferred is known as 'mortgagee'. Indian law recognises six different types of mortgages out of which the two most acceptable form of mortgages are discussed hereunder :

Mortgage by deposit of title deeds or equitable mortgage. Section 58(f) of the Transfer of Property Act, 1882 defines equitable mortgage as mortgage created by depositing title deeds of an immovable property to secure a debt, existing or future. Three basic conditions to constitute a valid equitable mortgage are (i) (ii) (iii) the debt. Delivery of title deeds (original) by the mortgagor to the bank. Existence of a debt, existing or future. Intention of the mortgagor to create a mortgage on that property to secure

No equitable mortgage can be created if any of the above three conditions' is not complied with.

Lien. Lien means the right of the creditor to retain the goods or securities of the debtor, which are in his possession until the debt due from the debtor is paid. It does not require any specific agreement to support this right. The lien may be general which confers the right to retain any goods for a general balance of account or it may be particular lien where goods can be retained by the creditor for a particular debt only. The person exercising general lien has only a right to retain the goods till the dues are paid and may not be able to sell those goods.

Negative Lien The borrower may sometime be having non-encumbered assets which are not charged to the bank as security. The borrower is thus free to deal with these assets and may even sell them if he so desires. To restrict this right of the borrower, bank may sometimes request him to give an undertaking to the effect that he will neither create any encumbrance on these assets nor sell them without the previous permission of the bank so long as the advance continues. This type of an undertaking obtained by the bank is known as 'Negative Lien'. Negative lien is in the form of a personal assurance or undertaking which has binding effect but confers no right on the bank to proceed against the property itself and thus creates no encumbrance or charge on the property.

Set Off. Set off is the right of combining of accounts between a debtor and a creditor so as to arrive at a net balance payable to one or the other. Set off in relation to bank means his right to apply the credit balance in customer's account towards liquidation of debit balance in another account of the customer provided both the accounts are maintained by him in the same capacity. The right may not be considered as absolute and the bank may be required to give a notice for exercising his right of set off. The right of set off can be applied by the bank only if the following conditions are met: (a) The liability of the borrower is for a sum which is certain, (b) The repayment of debt is due, and (c) Both the accounts are held by the customer in the same capacity. The right of set off should, however, not be exercised arbitrarily and a notice for combining the accounts must invariably be served by the bank on the customer.

Fixed Charge : A fixed charge is a mortgage on a specific fixed-asset (such as a parcel of land) to secure the repayment of a loan. In this arrangement the asset is signed over to the creditor and the borrower would need the lender's permission to sell it. The lender also registers a charge against the asset which remains in force until the loan is repaid. Floating Charge: A floating charge is mortgage on an asset that changes in quantity or value from time to time (such as an inventory), to secure the repayment of a loan. In this arrangement, no charge is registered against the asset and the owner of the asset can deal in it as usual. If a default occurs, or the borrower goes into liquidation, the floating asset 'freezes' into its

then current state 'crystallizing' the floating charge into a fixed charge and making the lender a priority creditor. A floating charge is not as effective as a fixed charge but is more flexible.
What is meant by Parri Passu Charge?

Parri Passu is derived from Latin for 'with equal progress'. The phrase is used to indicate simultaneous and equal change or to describe similar ranking of securities or lenders; for example, when a new issue of shares is made, they could be said to rank pari passu, ie, equally with existing shares for the purposes of dividend payments. A common agreement between joint lenders is a pari passu clause under which, in the event of a shortfall, they agree to share equally whatever is available. The use of "Pari Passu" when creating a charge means that when company Y goes into dissolution, the assets over which the charge has been created will be distributed in proportion to the creditors' respective holdings. Therefore, if the Bank X has tendered a loan facility of 60 million PKR while another creditor, say Z, has tendered 40 million PKR, the recovery after selling assets of Company Y to which joint pari passu charge attached, shall be distributed in the ratio of 6:4 amongst X and Z. Where preferential rights attach to assets of the company, the preferential creditors rank higher in the distribution stakes i.e. they are paid in priority to other creditors of the company