means a bank whose name is included in the second schedule of RBI Act 1934. Banker & Customer Relationship Banker – As per the Banking Regulation Act, 1949 (Sec 5 c), a banker is a person undertaking business of banking. Banking - As per the Banking Regulation Act, 1949 (Sec 6), banking means accepting deposits from public, for the purpose of lending, repayable of demand or otherwise withdrawable by cheque, draft, order or otherwise.
Customer - A person who opens account with bank
Negotiable Instruments Act, 1881 Passed in 1881 Came into effect from March 01, 1882 As per section 13, an NI means and includes promissory note, bill of exchange, demand draft and cheque. Under section 137 of Transfer of Property Act, the following documents of Title to goods are negotiable: (i) Bill of lading (ii) Railway receipts (iii) Dock warrant (iv) Warehouse receipt Certain other instruments are also negotiable on the basis of usage, practice and various court judgments, e.g., govt. promissory note, certificate of deposits, commercial paper. General Relationship between Banker and Customer 1. Debtor and Creditor (When customer deposits money or takes credit) 2. Trustee and Beneficiary (when a bank receives valuales for safe custody) 3. Banker as agent (when a bank buys or sells securities on behalf oh customers) Banker’s Obligations Duties of the bank i. Duty to honour cheques of customers (as per NI Act) ii. Duty to maintain secrecy of accounts Duty to honour cheques of customers • Section 31 of the Negotiable Instruments Act, 1881 imposes a statutory obligation upon the banker to honour the cheques of the customers Duty to maintain secrecy of accounts • Section 13 of the Banking Companies Act, 1970, requires a banker not to divulge any information relating to the affairs of the customers, except in special circumstances • Banker’s duty of secrecy is legal • It is extended to all transactions that go through the account and securities offered in that respect • Duty is not discontinued even when customer is dead or account is disclosed • Obligation is extended to the information obtained from various sources (regarding customer’s account / financial position) Rights of Bankers i. Right of lien ii. Right of set-off iii. Right of appropriation iv. Right to charge Interest and Commission Right of lien • A lien is the right to retain the property belonging to a debtor until he has discharged a debt due to the retainer of the property • A general lien confers a right to retain goods not only in respect of debts incurred in connection with a particular transaction but also in respect of any general balance arising out of the general dealing. (u/s 171 of Indian Contract Act) • In case of particular lien (u/s 170 of Indian Contract Act), the creditor gets the right to retain possession only of goods or securities for which the dues have arisen and not for other dues. Features of Banker’s General Lien i. Banker has a right of general lien ii. Lien is not available on deposits, since deposits are neither goods nor securities iii. Implied pledge and right of sale iv. When the banker exercises his right of general lien, he gets protection from section 409 or 420 of Indian Penal Code v. Lien can be used by giving a reasonable notice period vi. The right is available for goods and securities that are in the name of the borrower or in the name of guarantor vii. The right can be exercised when the goods and securities are entrusted to the bank in the capacity of a debtor- creditor Right of set-off • Set-off refers to ‘combining to two or more accounts for final settlement of accounts’ • E.g. an overdraft and a fixed deposit • The essential condition is that one of such accounts must show a debit balance and the other a credit balance Conditions for set-off • The relationship should be that of debtor- creditor and creditor-debtor simultaneously • Right can be exercised only after sending a prior notice to the depositor • The loan should be certain, determined and due and the customer has defaulted. • The account must be in the same name and capacity Right of appropriation • Applicable when a debtor has several debts with a creditor (bank) • Under the Indian Contract Act, 1872 i) u/s 59, Express instruction by debtor ii) u/s 60, Omission by debtor to intimate (bank at its discretion can apply the payment to any lawful debt due) iii) u/s 61, payment shall be applied in order of time Right to charge Interest and Commission • Bank is entitled to charge interest on loans • Also entitle to charge commission for services rendered to his customer Garnishee order • An order issued by a court, on the request of a judgement creditor for attachment of funds of the judgement debtor available with his bank. • The bank’s obligation to pay cheques is suspended temporarily if the balance is less than the amount of order Stages of Implementation of Garnishee order I) Order Nisi – on receipt of order Nisi, bank stops honouring customer’s cheque and the customer is informed. At this stage the bank recovers its own dues first and subsequently informs the court about remaining balance II) Order Absolute – on receipt of this order, bank remits funds to the court, without production of passbook or issuing any receipt. Applicability of Garnishee order i) Relationship should be of debtor and creditor ii) Accounts should be held in the same capacity in which the order is issued iii) All accounts are attached including saving, current, credit balance in cashcredit or overdraft, FDRs due or not due. Attachment order • Issued by Govt. authorities for recovery of Govt. dues (e.g. income tax attachment order) • Applicable for all accounts where garnishee order is applicable • On receipt of order, the informs the customers, recovers its own dues and payment is made to authorities