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A hand out on

NEGOTIABLE INSTRUMETNS

Submitted By
BHANU PRAKASH SHARMA G 158906
SINDHUJA PULI - 158935

INTRODUCTION:
The term negotiable instrument means written document transferable by delivery.
According to sec. 13(1) of the Act defines a negotiable instrument thus A negotiable
instrument means a promissory note, bill of exchange and cheque payable either to order or
to bearer.
According to Justice Willis defines a negotiable instrument as A negotiable instrument is
one, the property in which is acquired by anyone who takes it bona fide, and for value not
withstanding any defect of title in the person from whom he took it.
According to Thomas, A negotiable instrument is that document, which is, by a legally
recognized custom of trade or law, transferable by delivery or endorsement and delivery in
such circumstances that:
(A) The holder of it for the time being may sue on it in his own name, and
(B) The property in it passes free from equities, to a bona fide transferee for value not
withstanding any defects in the title of the transferor.
CHARACTERISTICS OF NEGOTIABLE INSTRUMENT:
1. Free transferability or easy negotiability:

Negotiable instrument is freely transferable from one person to another


without any formality.

The property (right of ownership) in these instruments passes by either


endorsement and delivery (in case it is payable to order) or by delivery merely (in
case it is payable to bearer) and no further evidence of transfer is needed.

2. Title of holder is free from all defects:

A person who takes negotiable instrument bona-fide and for value gets the
instrument free from all defects in the title. The holder in due course is not affected by
defective title of the transferor or of any other party.

3. Transferee can sue in his own name without giving notice to the debtor:

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A bill, note or a cheque represents a debt, i.e., an actionable claim and


implies the right of the creditor to recover something from hid debtor

The creditor can either recover this amount himself or can transfer his right
to another person

In case he transfers his right, the transferee of a negotiable instrument is


entitled to sue on the instrument in his own name in case of dishonour, without giving
notice to the debtor of the fact that he has become holder.

In case of transfer or assignment of an ordinary actionable claim (i.e., a


book debt evidenced by an entry by the creditor in his account book, under the
transfer of property act, notice to the debtor is necessary in order to make the
transferee entitled to sue in his own name.

4. Presumptions:
Certain presumptions apply to all negotiable instruments:
Section 118 and 119 lay down the following presumptions:
(a) For consideration: that every negotiable instrument, was made, drawn, accepted,
endorsed or transferred for consideration.
(b) As to date: that every negotiable instrument bearing a date was made or drawn on such
date.
(c) As to time of acceptance: that every bill of exchange was accepted within a reasonable
time

after its date and before its maturity.

(d) As to transfer: that every transfer of a negotiable instrument was made before its
maturity
(e) As to time of endorsements: that the endorsements appearing upon a negotiable
instrument were made in the order in which they appear thereon.
(f) As to stamps: that a lost promissory-note, bill of exchange or cheque was duly stamped.
(g) As to a holder in due course: that every holder of a negotiable instrument is holder in
due course (this presumption would not arise where it is proved that the holder has obtained
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the instrument from its lawful owner, or from any person in lawful custody thereof, by means
of an offence, fraud or for unlawful consideration and in such a case the holder has to prove
that he is a holder in due course
(h) As to dishonor: that the instrument was dishonored, in case a suit upon a dishonored
instrument is filed with the court and the fact of protest is proved.
PROMISORY NOTE:
According to sec 4, A promissory note is an instrument in the writing (not being a banknote
or currency note) containing an unconditional undertaking signed by the maker, to pay a
certain sum of money only to, or to the order of, a certain person to the bearer of the
instrument.
The person who makes the promise to pay is called the MAKER. He is the debtor and must
sign the instrument. The person who will get the money is called PAYEE.
ESSENTIALS OF PROMISORY NOTES:
1.

It must be in writing:

A promissory note has to be in writing. An oral promise to pay does not become a promissory
note. The writing may be on any paper or book.
Illustrations: A signs the instruments in the following terms:

I promise to pay B or order Rs. 500

I acknowledge myself to be indebted to B in Rs. 1, 000 to be paid on


demand, for value received

Both the above instruments are valid promissory notes.


2. It must contain a promise or undertaking to pay:

There must be a promise or an undertaking to pay

The undertaking to pay may be gathered either from express words or by


necessary implication

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A mere acknowledgement of indebtedness is not a promissory note, although it


is valid as an agreement and may be sued upon as such

Illustrations: A signs the instruments in the following terms:

Mr. B I owe you Rs. 1,000

I am liable to pay to B Rs. 500

The above instruments are not promissory notes as there is no undertaking or promise to pay.
There is only an acknowledgement of indebtedness.

Where A signs the instrument in the following terms:

I acknowledge myself to be indebted to B in Rs. 1, 000, to be paid on


demand, for value received, there is a valid promissory note.

The promise to pay must be unconditional:

A promissory note must contain an unconditional promise to pay

The promise to pay must not depend upon the happening of some uncertain
event, i.e., a contingency or the fulfillment of a condition

Illustrations: A signs the instruments in the following terms:

I promise to pay B Rs. 500 seven days after my marriage with C

I promise to pay B Rs. 500 as soon as I can

The above instruments are not valid promissory notes as the payment is made
depending upon the happening of an uncertain event which may never happen and as
a result the sum may never become payable
4. It must be signed by the maker:

It is imperative that the promissory note should be duly authenticated by the


signature of the maker

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Signature means the writing or otherwise affixing a persons name or a mark


to represent his name, by himself or by his authority with the intention of authenticating
a document

5. The maker must be a certain person:

The instrument must itself indicate with certainty who is the person or are the
persons engaging himself or themselves to pay

Alternative promisors are not permitted in law because of the general rule that
where liability lies no ambiguity must lie

6. The payee must be certain:

Like the maker the payee of a pro note must also be certain on the face of the
instrument

A note in favor of fictitious person is illegal and void

A pro note mad payable to the maker himself is a nullity, the reason being the
same person is both the promisor and the promise

7. The sum payable must be certain:

For a valid pro note it is also essential that the sum of money promised to be
payable must be certain and definite

The amount payable must not be capable of contingent additions or


subtractions

Illustrations: A signs the instruments in the following terms:

I promise to pay B Rs. 500 and all other sums which shall be due to him

I promise to pay B Rs. 500, first deducting thereout any money which he may
owe me
The above instruments are invalid as promissory notes because the exact amount to be
paid by A is not certain

BILLS OF EXCHANGE
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Section 5 of the Negotiable Instruments Act defines a Bill of Exchange as follows:


A bill of exchange is an instrument in writing containing an unconditional order, signed by
the maker, directing a certain person to pay a certain sum of money only to, or to the order of,
a certain person or to the bearer of the instrument.
Illustration:
Mr. X purchases goods from Mr. Y for Rs. 1000/Mr. Y buys goods from Mr. S for Rs. 1000/Then Mr. Y may order Mr. X to pay Rs. 1000/- Mr. S which will be nothing but a bill of
exchange.
There are three parties involved in a bill of exchange:
(i) The Drawer: The person who makes the order for making payment.
(ii) The Drawee: The person to whom the order to pay is made. He is generally a debtor of
the drawer.
(iii) The Payee: The person to whom the payment is to be made.
The drawer can also draw a bill in his own name thereby he himself becomes the payee. Here
the words in the bill would be Pay to us or order.
In a bill where a time period is mentioned, just like the above specimen, is called a Time Bill.
But a bill may be made payable on demand also. This is called a Demand Bill.
Essentials of a bill of exchange:
1. It must be in writing
2. It should be an order to pay to a certain person.
3. There should contain an unconditional order.
4. The drawer, drawee and payee must be certain.
5. It should be signed by the drawer.

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6. The sum payable must be certain.


7. The bill must contain an order to pay money only.
8. It should be in the form of an order to the drawee.
9. IT must be properly stamped.
10. There are certain other formalities such as number, date, consideration etc. which are
usually found in a bill .but they are not essential in law.
DIFFERENCE BETWEEN THE PROMISSORY NOTE AND A BILL OF
EXCHANGE:
Promissory Note

Bill Of Exchange

1.Parties:

There are two parties: Maker


and payee.

There are three Parties :


Drawer, Drawee and payee.

2. Nature of payments:

It contains an unconditional
promise to pay.

It contains an unconditional
order to pay.

3. Payee:

It cannot be made payable to


the maker, who is debtor. The
maker and the payee cannot
be same person.

The drawer and the payee


may be the same person.
Drawer can order the drawee
to pay the money to drawer to
pay the money to drawer
himself.

4. Acceptance:

It requires no acceptance as it
is signed by the person who is
liable to pay.

The drawer of a bill of


exchange is generally creditor
of the drawee and, therefore,
it must be accepted by the
drawee before it can be
presented for payment.

5. Liability:

The liability of the maker of


the note is primary and
absolute.

The liability of the drawer


(maker) of a bill is secondary
and conditional. When the
acceptor fails to pay the
money he comes liable.

6. Notice:

When a pro-note is
dishonored, it is not necessary
to give notice of dishonor to
the maker.

Notice of dishonor must be


given by the holder to all the
prior parties to the bill.

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Promissory Note

Bill Of Exchange

7. Payable to bearer:

A pro-note cannot be drawn


payable to bearer.

It can be so drawn provided it


is not drawn payable to
bearer on demand.

8. Protest:

Dishonor of pro-note protest


is not necessary

A foreign bill must be


protested if such a protest is
necessary according to law of
the place, where it is drawn.

9. Sets:

Pro-note cannot be drawn in


sets.

Bills can be drawn in sets.

CHEQUE
According to Sec 6, A cheque is a bill of exchange, drawn on a specified banker and not
expressed to be payable otherwise than on demand.
ESSENTIAL features of a cheque: A cheque is a Bill of exchange
It contains an unconditional order to pay a certain sum of money only
A drawee is always a bank
It must be signed by the drawer
The order must be to pay money only
A cheque involves three parties viz., drawer, drawee and payee
A cheque is always payable on demand and it cannot be made payable after a fixed
period of time.
Acceptance of the cheque by the bank is not required
Difference between cheque and bill exchange:
Points
1. Drawer

Cheque

Bill of Exchange

It is always by a Bank

It can be drawn upon an


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individual or aswellas bank


2. Payable on Demand

It is always payable to bearer


on Demand

It need not always be payable


on Demand

3. Acceptance

Doesnot require an
acceptance

Requires acceptance of
drawee

4. Stamp

Doesnt require a Stamp

RequiresStamp

5. Grace of days

It doesnt entitled to three


days of Grace

A bill, unless payable on


demand is entitled to 3 days of
grace

6. Crossing

It can be crossed

It cant be crossed

7. Notice of Dishonor

It is not required

It is usually required

8. Form

Its fixed form is honoured by


Bank

There is no fixed form

CROSSING OF CHEQUES:
The cheques are of two types:
1. Open cheque: payment of a cheque is made at the counter of the banker on its
presentation. The open cheque is liable to a great risk in the course of circulation .since
an open cheque is payable to the bearer, it involves a risk of payment to any person, if it
lost. In order to avoid such risk and to protest the interest of the genuine holder, the
system of crossing the cheques was introduced.
2. Crossed cheque: Payment is obtained only through a banker. That is, the payee or the
holder, having an account in the bank, has to deposit the crossed cheque for collection,
and draw the money when the cheque is collected and the proceeds are credited to his
account. It is only with a view to avoiding ay such risk of fraud that businesses men
introduced the device of crossing.
Thus, crossing of a cheque may be defined as, direction to the drawee banker to pay the
money on a crossed cheque through a banker, so that the party getting the payment of crossed
cheque may be easily traceable.
TYPES OF CROSSING:
There are two types of crossing:
GENERAL CROSSING :
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According to Sec 123,


Where a cheque bears across its face, an addition of the words and
company or any abbreviation thereof, between two parallel transverse lines, or of two
parallel transverse lines simply, either with or without the words not negotiable, that
addition shall be deemed to be a crossing, and the cheque shall be deemed to be crossed
generally. A cheque is said be crossed when two parallel transverse lines, or without any
words, are drawn on the left hand top corner of the cheque. It is relevant to state that such
lines are essential for general crossing and may not be drawn in case of special crossing.
Special crossing:
According to Sec 124,where a cheque bears across its face, an addition of the name of a
banker, with or without the words Not Negotiable, that addition shall be deemed a crossing,
and the cheque shall be deemed to be crossed specially, and to be crossed to that banker
Further, Sec 126, para 2 states where a cheque is crossed specially the banker on whom it is
drawn shall not pay it otherwise than to whom it is crossed, or his agent for collection.

References:

R.S.N.Pillai Bagavathi, a book on Legal Aspects of Business (PG:328-336).

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