Other Negotiable Instruments
Besides Cheques, bankers also handle Promissory Notes, Bills of Exchange, and Bank Drafts as Negotiable Instruments.
Negotiable Instruments:
Section 13 of the Negotiable Instruments Act 1881says, “A Negotiable Instrument means A Promissory Note, Bill of Exchange, or Cheque payable either to order or to bearer”. Section 4, 5, and 6 of the Negotiable Instruments Act have defined all the three instruments separately in details.
Negotiation:
According to section 14 of the above Act, Negotiation is, “When a promissory Note, bill of Exchange, or Cheque is transferred to any person, as to constitute that person the holder thereof , the Instrument is said to be Negotiated.
Characteristics of Negotiability
An Instrument is said to be Negotiable by virtue of the following characteristics.
(i) Transferrable by Delivery, or by Endorsement—it means to entitle it holder to receive the money mentioned in it, or recover the same from all or any of the parties to it by suing in his own name.
(ii) It constitutes a person as “holder in due course” who “holds the negotiable instrument free from any free from any defect of title of prior parties and free from defenses available to prior parties among themselves, and may enforce payment of the instrument for the full amount thereof against all parties liable thereon. (Section 53-A, Negotiable Instrument Act 1881)
Quasi—Negotiable Instruments
Those Instruments, which can be transferred by Endorsement and delivery but the transferee get a better title that of the transferor. It cannot be classified as Negotiable Instrument and the Negotiable Act is not applicable.
Defective Title:
According to section 9 of the Negotiable Instruments Act says, “That a title of a person to a promissory-note, bill of exchange, or a Cheque is Defective when he is not entitled to receive the amount due thereon by reason of the, Provision of section 58, which provides that no person is entitled to receive the amount of the Instrument for following reasons;
The reasons;
1. A person is finder of an instrument lost by another, or
2. He has obtained it from the maker, drawer, acceptor or holder by means of an offence, or fraud, or for an illegal consideration, and or
3. Any person who claims it through such person who is not entitled to receive its amount. Promissory Note: section
4 of the Act describes this instrument as under, “Promissory-note is an instrument in writing (not being a bank note or a currency note) containing an unconditional undertaking signed by the maker, to pay on demand or at a fixed or determinable future time, a certain sum of money only, to, or to the order of a certain person, or to the bearer of the Instrument”.
Essential features of A Promissory Note
According to the definition the Promissory Note should be of the following characteristics;
(i) It must be an unconditional written promise,
(ii) It must be signed by the maker called “Promisor”,
(iii) It must contain a promise to pay a certain sum in money only,
(iv) The money should be payable to, or to the order of a certain person, or to the bearer of the Promissory-note,
(v) The amount promised in the promissory-note must be payable on demand or at a fixed or a determinable future time.
Under section 25 of the SBP Act 1956, they are not merely money securities, but are themselves as good as cash or any other legal tender in the country; and the amount expressed therein is guaranteed by the Federal Government.
A promissory-note is incomplete until it has been delivered to the payee or the bearer.
• The sum promised in promissory-note can be made payable by stated installments;
• The promissory-note may be made by two or more makers who may be liable thereon jointly and severally, according to its tenor.
Promissory-note made payable at a bank:
When presented for payment at a bank, the banker would be justified in paying it when due and debiting it to the Maker's account; but the banker will be liable in the event of a forged endorsement on the promissory-note.
Bills of Exchange
Section 5 of the Negotiable Instruments Act 1881, defines a bill of Exchange as
“An Instrument in writing containing an unconditional order, signed by the Maker, directing a certain person to pay on demand or at a fixed or determinable future time, a certain sum of money only, to, or to the order of a certain person or to the bearer of the Instrument” Essential requirements for a Bill of Exchange under Section 5 of the Act are;
(i) A bill of Exchange must be in writing and signed by the drawer,
(ii) It must contain an unconditional order or direction;
(iii) The direction should be to pay a certain sum in money only;
(iv) The drawee should be directed to pay on demand or at a fixed or determinable future time;
(v) The amount should be payable to or to the order of a certain person or the bearer of the Instrument.
Parties to A Bill of Exchange: Section 7 of the Negotiable Instruments Act 1881, describes three basic parties in A Bill of Exchange.
• Drawer:- Every person capable of contracting under section 11 of the Contract Act may become the Drawer, Drawee, Acceptor, Endorser, Payee or Endorser.
Section 30 of the Act says, when a person signs a bill of exchange as the drawer, he is assured that on due presentment it will be honored and paid according to tenor.
2. Drawee:- is a person on whom the bill is drawn and who has been directed to pay. A bill may be addressed to two or more Drawees.
3. Payee or Endorser:- Payee is a person to whom or to whose order the promissory note or bill has been made payable. A Bill may be payable to two or more payees, jointly or severally Types of Bills: There are many types of Bills, such as follows;
• Sent Bill or Bills for Collection: when bills are handed over to a bank that may be collected when due, and the proceeds credited to the customer account.
• Bill Negotiated: also called bills discounted, are those for which the banker has given value at once, without waiting for the proceeds after collection.
• Bills Retied: when a bill is withdrawn from circulation or taken up before it due, it is said to be retired. But it must not be discharged or cancelled.
• Bills in Set: section 132 of the Negotiable Instruments Act 1881 says, “when bills of exchange drawn in two or more parts, they are called bills in set”.
• Rebate: the allowance made to an accepter or other person liable on the bill who retires his acceptance before it is due.
Presentment for Acceptance Section 61 and 62 provides the following explanation and guidance in this regard;
(a) Presentment is necessary when it is payable, or when it expressly stipulates its presentment for acceptance. Under section 105, the presentment must be made within a reasonable time after the bill is made.
(b) The presentment must be made by the holder of the bill or his duly authorized agent.
(c) Presentment must be made to the Drawee, or to the duly authorized agent, or to the legal representatives, or to the assignee in case he has ben declared Insolvent.
(d) Presentment is not necessary when the bill is payable on demand or on a fixed future date or when payable at sight.
(e) If the bill is directed to drawee at a particular place, it must be presented at that place.
Non-Acceptance of the Bill of Exchange
Section 131-Gof the Negotiable Instruments Act 1881, describes that presentment for acceptance is not necessary and the Bill of Exchange should be treated as Dishonored by Non-acceptance in the following situation.
(a) When the Drawee is dead or Insolvent or is a fictitious person or a person not having the capacity to contract by bill of exchange.
(b) If the Drawee cannot be found on the specified place when the date is due for presentment,
(c) Where, after exercise of reasonable diligence, such presentment cannot be effected.
(d) Where, although the presentment has been irregular, acceptance has been refused on some other ground. In any of the above scenarios, the Bill should be treated as Dishonored by non-acceptance under section 91 of the Act.
Presentment For Payment of Bills of Exchange
Section 64 of the Negotiable Instruments Act 1881 says, “the presentment for payment should be made by holder by his agent to the acceptor, or of demand and sight Instrument to the Drawee. The provisions of the Act are as under;
• Section 65 lays down that it should be made during the usual hours of business and if a banker, within banking hours.
• Section 66, says that the presentment for payment of the Bill made payable at a specified period after date or its sight, should be made at maturity.
• Section 68, 69, and 70 say, that presentment should be made on the very same place specified in the Bill. If place not specified, then at the known place of business or the residence.
Date of Payment of Bills
A bill of exchange may be payable; (a) On demand on sight or (2) at a fixed or determinable future time. Section 19 of the Act 1881, says a promissory-note or a bill of exchange is payable on demand, when;
i) It is expressed to be payable “On Demand” or “at Sight” or “On Presentment”.
(ii) No time for payment is specified in the Instrument.
(iii) The Promissory-note or Bill of Exchange is accepted or endorsed after it is overdue. The object of expression of time in these terms is not to delay or withhold payment, but it means that the payment must be made or endorsed after it is overdue.
Banking Law & Practice Lecture No. 15
Bills of Exchange: (Cont.”)
Otherwise than on Demand:
Maturity:
When Day of maturity is Holiday: Section 23 of the Act further specifies, that
• Where a BE or PN is to be payable at a stated number of months after date or sight, the stated period should terminate on the day of month which corresponds with the day on which Instrument is dated or presented for acceptance or sight.
• If the month in which the period would terminate has no corresponding day, the period shall be held to terminate on the last day of such month.
• When an Instrument (Section 24) is made payable a certain number of days after date or after sight or after certain event, the time of payment is determined by the number of days from the date on which it was made.
Maturity.... and Persons Receiving Payment
• When the date of Maturity is public holiday, section 25 provides that, “the Instrument shall be deemed to be due on the next business day”. (Sundays, Gazette and Bank Holidays). Persons Receiving Payment: Holder: Section 8 of the Act 1881, defines, “The Holder of a PN or BE, or Cheque means the Payee or Endorsee, who is in possession of it, or bearer thereof, but does not include a beneficial owner claiming through a Benamidar”.
• When any of the above Instruments is lost, and not found again or is destroyed, the person in possession of it or bearer thereof at the time of such loss or destruction, shall be deemed to continue to be its holder.
• Generally, a holder is the person to whom an Instrument is payable and who has got title to the Instrument. Such a person is entitled to enforce payment. It means that the unlawful possession of a bearer Instrument, does not constitute a Holder.
Holder in Due Course
Section 9 and 58 of the Act, define “Holder in Due Course” as under, “it means any person who for consideration becomes the possessor of a PN, or NE, or Cheque if payable to bearer, or the payee, or endorsee thereof, if payable to order, before it became overdue, without notice that the title of the person from whom he derived his own title was defective”(section 9. Section 58 further explains that,
“When a PN, BE, or Cheque has been lost, or obtained by means of an offence, or fraud, or for an unlawful consideration, neither that person, nor the possessor or endorsee is entitled to the amount due, unless such possessor or endorsee is, or some person through whom he claims, was a holder thereof in due course”
The above definitions lay down some basin and important qualifications for a “Holder in Due Course”.
1. He must be a holder, i.e., he must be a payee or endorsee, or bearer and in possession of the Instrument, so that he may sue in his own name.
2. He must be holder for consideration. It means that consideration should have been given at sometime in the claim between him and the party, liable to pay. The consideration may be past or present, or it may be adequate or inadequate.
3. Should be the holder of Instrument before it is overdue, an Instrument is overdue, when it is in circulation for an unreasonable length of time, while in other cases it is overdue at the expiry of the date of payment.
4. The holder is believed to have obtained/acquired the Instrument from the existed holder with no defect in the title. It means he shall have not received from a person who not entitled for payment.
Payment of Bills By Bankers
When a drawee accepts a bill payable at a place other than that of his business or private address, the BE is said to be “Domiciled” at the place of payment. In this situation the paying banker must consider the following points;
• The instrument presented for payment is a bill of exchange,
• It must be properly stamped,
• Accepter's signature is genuine, for, a forged signature does not constitute a Bill,
• The Bill is due,
• The amount in figures and words tallies,
• All material alterations and endorsements have been achieved,
• The acceptor has not countermanded payment, or be dead or be Bankrupt.
Dishonor of Bills of Exchange
A BE may be dishonored by Non-acceptance or by Non payment. Section 91of the Act reads as follows, “A bill of exchange is said to be dishonored by nonacceptance when the Drawee or one of the several Drawees not being partners, make default in acceptance upon duly required to accept the bill, or where presentment is executed and the bill is not accepted”.
It means when a bill is duly presented for acceptance and is not accepted, within the meaning of the above section, the person presenting it, must treat it as “Dishonored” by non-acceptance. Under section 131-H of the Act says, “when a BE is dishonored by non-acceptance, an immediate right of recourse against the drawer and endorsee, accrues to the holder, and no presentment for payment is necessary”.
Bill Dishonored; Notice of Dishonor; and Mode of Notice
Section 92 of the Act says, “A bill is dishonored by Non-payment, when it is duly presented for payment which is refused or cannot be obtained or when payment is excused and the bill is Overdue and Unpaid”.
Notice of Dishonor:
Notice of dishonor is necessary against Drawer and Endorsee but not against the Acceptor. Notice shall be given to all the liable parties severally, thereon, or to those who are jointly held liable thereon, in accordance with section 93 of the Act.
Mode of Notice:
Notice may written or verbal, or partially written and verbal. It must inform the addressed party, either in express terms or by reasonable intendment that the Instrument has been dishonored, and in what way, and that he will be held liable thereon under section 94 of the Act.
The notice must be given, “within a reasonable time after Dishonor at the place of business or, (in case, such party has no place of business), at the residence of the party for whom it is intended”. Notice is not required when;
(i) In spite of due and reasonable diligence notice cannot be served on the party,
(ii) Notice is waved,
(iii) Drawer and Drawee are the same person,
(iv) Drawer is a fictitious person or has no capacity to contract,
(v) The bill is presented to the Drawer himself, and
(vi) When the bill has been accepted or made for accommodation for the Endoresor.
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