JAIIB - Legal & Regulatory Aspects of Banking - Mod - A - Regulations and
Compliance
Unit - 1 : Legal Framework of Regulation of Banks
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Banking means acceptance of deposits of money from the public for lending or investment.
Such deposits may be repayable on demand or may be for a period of time as agreed to, by
the banker and the customer, and may be repayable by cheque, draft or otherwise.
Apart from banking, banks are authorised to carry on other business as specified in Section 6
of the Banking Regulation Act.
Banks are, however, prohibited from undertaking any trading activities.
Banks are constituted as companies registered under the Companies Act, 1956, statutory
corporations constituted under Special Statutes or Co-operative societies registered under the
Central or State Co-operative Societies Acts. The extent of applicability of the regulatory
provisions under the Banking Regulation Act and the Reserve Bank of India Act to a bank
depends on the constitution of the bank.
Reserve Bank of India is the central bank of the country and the primary regulator for the
banking sector.
The government has direct and indirect control over banks. It can exercise indirect control
through the Reserve Bank and also act directly in appealsarising from decisions of the Reserve
Bank under the various provisions of the Banking Regulation Act.
In public sector banks like the State Bank of India and its subsidiaries, nationalised banks and
the regional rural banks, 50% or more of their shares are held by the Central Government.
Central Government has substantial control over the management of these banks. Only
certain provisions of the BR Act are applicable to these banks as indicated in that Act.
Co-operative banks operating in one state only are registered under the State Co-operative
Societies Act and are subject to the control of the State Government as also the Reserve
Bank.
In the case of non-banking business of the banks, they are subject to control by other
regulatory agencies.
Constitution Of Bank
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Banks in India fall under one of the following categories:
1. Body corporate constituted under a special statute;
2. Company registered under Companies Act, 1956 / foreign company
3. Cooperative Society registered under a central and state enactment on cooperative
societies.
Reserve Bank as Central Bank
The Reserve Bank was constituted under Section 3 of RBI Act. The Central Govt holds the
whole capital of RBI.
1. Regulating the issue of bank notes
2. Keeping of reserves for ensuring monetary stability
3. Generally to operate the currency and credit system of the country to its advantage.
RBI: Regulator and Supervisor
1. Power to License
2. Power to appointment and removal of banking boards/personnel
3. Power to regulate the business of banks
4. Power to give directions
5. Power to inspect and supervise banks
6. Power regarding audit of banks
Government as a Regulator of Banks
The Reserve Bank is primary regulator of banks. But Central govt. has also been conferred
extensive powers under the RBI Act and the BR Act either directly or indirectly over the
banks.
Unit - 2 : Control Over Organisation Of Banks
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A company wanting to commence banking business requires prior licence from the Reserve
Bank.
The Reserve Bank has the discretion to reject licence or approve the licence on such
conditions as it thinks fit. Before granting licence, Reserve Bank has to be satisfied by
inspection or otherwise of the suitability of the company for licence.
A licence once given may also be cancelled after giving the bank an opportunity to be heard.
Further, for opening new branches or shifting branches outside a city, town or village,
permission of the Reserve Bank is required.
Banking companies have to have minimum capital and reserves as specified in the Banking
Regulation Act. The shareholders of a banking company are entitled to dividends only after all
the capitalised expenses are written off.
The commission or brokerage payable on selling shares is restricted to two and half per cent
of the paid-up value of the shares.
The board of directors of a bank has to be constituted with persons having special knowledge
or experience in accountancy, banking, economics, law, etc., as stipulated. The directors
should not have substantial interest in other companies or firms.
The maximum period of office is limited to eight years continuously.
Authorized Capital the maximum limits of share capital which a company is authorised to have
under its Memorandum.
Paid-up Capital The amount of share capital of a company is subscribed and paid-up.
Subscribed Capital The amount of share capital of a company, which is issued and subscribed.
The Reserve Bank is empowered to reconstitute the board, if the board is not properly
constituted. Every banking company should have a full-time chairman (or a full-time
managing director, if there is no fulltime chairman) with the specified qualifications.
The Reserve Bank has powers to remove the chairman and appoint a suitable person in his
place in certain cases. The Reserve Bank also has powers to remove the directors or
managerial personnel or other employees of banking companies.
The principles of corporate governance including the 'fit and proper' criteria for directors apply
to banking companies as well as public sector banks.
A Temporary branch for less than 30 days in a town where a bank has an existing branch
does not require permission from RBI.
Unit - 3 : Regulation Of Banking Business
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The Banking Regulation Act empowers the Reserve Bank to issue directions to banking
companies in public interest, in the interest of banking policy and in the interest of depositors.
Section 21 provides for the issue of directions to regulate loans and advances by banking
companies. This may be done by regulating the purposes of lending, margins in respect of
secured loans, rate of interest and terms and conditions of lending.
Section 35A gives wide general powers to issue directions. The Reserve Bank issues
directions from time to time under Section 21 (read with Section 35 A) regulating acceptance
of deposits and lending.
Under Section 21A of the Act, the rate of interest on loans and advances contracted
between a bank and its customer is not liable to be reopened by a court of law.
Section 20 of the Act imposes restrictions on loans and advances to directors, and
companies and firms in which directors are interested as director, partner, etc.
A banking company which is a scheduled bank has to maintain a certain percentage of the
time and demand liabilities as cash reserve with the Reserve Bank under Section 42 of the
Reserve Bank of India Act, as notified by the Reserve Bank from time to time.
Failure to do so renders the banking company liable to penalty. For non-scheduled banking
companies, Section 18 of the BR Act provides for cash reserve.
Banking companies have also to maintain a certain percentage of their demand and time
liabilities in liquid assets as stipulated under Section 24 of the BR Act. These assets may be
maintained to the extent and in the form and manner as notified by the Reserve Bank. Apart
from this, banking companies are required to maintain such assets in India at not less than
seventy five per cent of demand and time liabilities as at the close of business of the last
Friday of every quarter.
Banking companies also have to transfer to the reserve fund twenty per cent of their annual
profits as disclosed in the profit and loss account.
Regulation of credit to different sectors of the economy is known as Selective Credit Control.
While General Credit Controls operate on the cost and volume of credit, Selective credit
controls aim at regulating the distribution or direction of bank resources to particulars sectors
of the economy.
Selective Credit Control seeks to influence the demand for credit by
i. Making borrowing costly for certain purposes, which are relatively inessential
ii. By imposing stringent conditions on lending for such purposes
iii. By giving concessions for certain desired types of activities
The tools employed for exercising selective credit control are
i. Minimum margins for lending against selected commodities
ii. Ceiling on the levels of credit
iii. Charging minimum rate of interest on advances against specified commodities Scheduled
Banks
A scheduled bank is a bank included in the second schedule of the RBI Act. Section 42(6) of
the Act. RBI may include any bank in the second schedule
if it satisfies the following requirements.
a. It has paid-up capital and reserves of an aggregate value of not less than Rs. 5 Lakhs.
b. It satisfies the Reserve Bank that it affairs are not conducted in a manner detrimental to
the interests of depositors; and
c. It is
(1) State cooperative Bank
(2) A company defined in section 3 of the companies act
(3) An institution notified by central govt.
Cash Reserve : The penalty which is payable by a banking company which is scheduled
bank for failure to maintain cash reserve in any week for the first time is 3% of over bank
rate. For 2nd time 5% over bank rate.
Unit - 4 : Returns, Inspection, Winding Up, Mergers & Acquisitions
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Every banking company has to prepare its balance sheet and profit and loss account annually
as at the end of the calendar year or at the end of twelve months as on a date notified by the
Central Government.
The accounts have to be audited by auditors duly qualified to be auditors of companies.
Three copies of the balance sheet, profit and loss account and the auditor's report have to be
submitted as returns to the Reserve Bank and to the Registrar of Companies.
Banking companies have also to furnish other returns like return on maintenance of cash
reserve, maintenance of liquid assets, etc.
The Reserve Bank is authorised to inspect or conduct, scrutiny of banking companies, their
books and accounts.
The Board for Financial Supervision set up by the Reserve Bank by statutory regulations
framed under the Reserve Bank of India Act supervises the affairs of banking companies.
The Government may acquire the undertakings of banking companies in certain circumstances
based on a report from the Reserve Bank.
The Central Government may also order moratorium on banking companies on the application
of the Reserve Bank. During moratorium, the Reserve Bank may prepare a scheme for
amalgamation, which may be sanctioned by the Central Government. Such an amalgamation
scheme will have overriding effect on any laws, agreements, etc.
The Reserve Bank may also apply to the High Court for winding up of a banking company
when it is not able to pay its debts and also in certain other circumstances.
The Reserve Bank of India Act and the Banking Regulation Act impose certain penalties for
contravention or default committed by banking companies or other persons.
Board for Financial Supervision
It is constituted by RBI. The board consists of Chairman (Governor of RBI), Vice Chairman
(one of the Dy. Governor of RBI), Four directors from the Central Board. The board performs
functions and exercises the powers of supervision and inspection under the RBI Act and the
BR Act.
The board meets at lease once in a month. Three members of whom one Chairman / vicechairman
shall form a quorum for the meeting.
Unit - 5 : Public Sector Banks and Cooperative Banks
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The public sector banks, namely, State Bank and its subsidiaries, the Nationalised banks and
the regional rural banks are statutory corporations (or body corporate) established under
special statutes.
State Bank and its subsidiaries
State Bank and its subsidiaries, as Nationalised banks, are commercial banks engaged in the
business of banking and other forms of business permissible for banking companies.
State Bank Of India was established under Section 3 of the State Bank Of India Act, 1955 for
taking over the undertaking of the Imperial Bank Of India. The majority of shares are held by
Reserve Bank. Although shares are freely transferable, the Reserve Bank cannot transfer the
shares if such transfer would result in reducing its holding below 50% of the issued capital.
No shareholder other than Reserve Bank can exercise voting rights above 10%.
The chairman and Managing Director are appointed for a period not exceeding 5 years and
are eligible for reappointment. Their services can be terminated by the Central Govt. by giving
3 months notice or notice pay in lieu thereof after consultation with the Reserve Bank.
The State Bank and its subsidiaries and the Nationalised banks also act as agents of the
Reserve Bank to transact the banking business of the Central Government.
Subsidiary Banks
SBH State Bank of Hyderabad Act, 1956
SBS Saurashtra State banks(amalgamation) Ordinance, 1950
All other banks State Bank Of India (Subsidiary Banks) Act, 1959
The majority of shares are held by State Bank Of India. Shares are freely transferable as
provided in Section 18 of the Act, However State Bank is not entitled to transfer the shares if
such transfer would result in reducing its shareholding to less than 50%.
Management of Subsidiary Bank
The Board consists of Chairman of the State Bank (ex-officio chairman), Managing Director
and other directors. The state bank appoints Managing Director after consulting the board of
subsidiary bank and with the approval of Reserve Bank.
Business of Subsidiary Bank
A subsidiary bank has to act as a agent of State Bank under Section 36 of the SBI Subsidiary
Act.
Regional Rural Banks
They were first set up in 1975 under the RRB Ordinance 1975. The ordinance was later
replaced by RRB Act, 1976. Section 3 of the RRB Act authorised Central Govt. to establish
RRB by notification in the official gazette at the request of Sponsor Bank.
Issued Capital ratio (50:35:15) (Cental Govt:SponsorBank:state govt.)
The regional rural banks are also commercial banks but operating in limited local areas to
cater to rural industries, trade, farmers, artisans, etc.
Nationalised Banks
The Bank Nationalisation Act 1970 and Banking companies (Acquisition and Transfer of
Undertaking) Act 1980. Transferred the undertaking of existing private banks to the
corresponding new banks popularly knows as Nationalised banks.
Paid-up Capital – Originally entire Paidup Capital was held by Central govt., some of these
banks have recently made public issue of shares, but the Central Govt. still holds majority of
shares in all these banks. The Shares other than those held by the Central Govt. are freely
transferrable.
SBI Act 4 Divide capital into shares of Rs.10 each instead of Rs.100
Restriction on voting rights (being 200 shares only) was modified upto 10 % of the Issued
Capital and restriction on dividend deleted BC(A&T) 3 Authorised Capital of Rs.1,500 crore
divided into shares of Rs.10 each.
The Banking Companies (Acquisition and Transfer of Undertakings)
All public sector banks are governed by their respective, statutes and the rules, regulations or
schemes made under these statutes. In addition to this, these banks are also governed by
certain provisions of the Banking Regulation Act as stipulated in Section 51 of that Act. The
provisions of the Reserve Bank of India Act are also applicable to them.
Cooperative Banks
A Cooperative Bank is a cooperative society engaged in the business of banking.
The co-operative banks, functioning in one state only are registered under the state laws on
co-operative societies.
The co-operative banks operating in more than one state, are registered under the multi-state
Co-operative Societies Act. The Banking Regulation Act is applicable to co-operative banks as
provided in Section 56 of that Act with certain modifications. For this purpose, a co-operative
bank means a state co-operative bank, Central co-operative bank and a primary co-operative
bank.
While, the constitution of the bank is governed by the co¬operative laws, the business of
banking undertaken by them is regulated by the Reserve Bank under the BR Act.
a. If a cooperative bank operates in only one state the state law applies and in case
cooperative banks operates in more than one state then the Central Act applies.
b. A cooperative bank means a state cooperative bank, central cooperative bank and a
primary cooperative bank.
A cooperative bank shall not grant any loans and advances as under :
a. Loans and advances against its own shares.
b. Unsecured loans or advances to any of its directors
c. Directors interest
d. Unsecured loans and advances in which the Chairman managing agent etc.
JAIIB - Legal & Regulatory Aspects of Banking - Mod - B - Legal Aspects of
Banking Operations
Unit – 6 : Case Laws on Responsibility of Paying Bank
Negotiable Instruments Act, 1881
Section Description
31 The banker is bound to pay the cheques drawn by customer i,e, to
honor his customer’s mandate
10,85,89,128 Grants protection to paying banker
6 Cheque is defined as bill of exchange. Protection to Paying Banker if
payment is in due course
10 Payment In Due Course
85 Grants protection to a Paying banker, but it is not absolute
Banker can seek protection under section 85 only where payment has
been made to the holder, his servant or his agent, i.e. payment must be
made in due course.
Payment to a person who had nothing to do with the firm or a payment
to an agent of the bank would not be payment in due course.
89 Payment of instrument on which alternation is not apparent The material
alteration on both the cheques are visible and since they were not
authenticated by the drawers initials, the payment made by the bank
was not according to apparent tenor of the instrument and as such bank
cannot claim
protection under section 89
When the customers Signature on the cheque is forged there is no
mandate to the bank to pay. As such banker is not entitled to debit the
customers account on such forged cheque
In a Joint account if one of the signature is forged then there is no
mandate and banker cannot make payment.
244A Indian companies Act : An official liquidator was required to open an
account with a bank and pay therein moneys received by him in the
course of the liquidation
Paying bank was bound to keep an ultraviolet ray lamp and to scrutinize
the cheqUnit – 7 : Case Laws on Responsibility of Collecting
Bank
Statutory Protection to Collecting Bank
Section 131 of the NI Act grants protection to a collecting
banker
1. Non-liability of a banker receiving payment of cheque
2. Conditions for protection
Duties of Collecting Bank
1. Duty to open account with references
2. Duty to follow up the reference where the referee is not known
3. Duty to Ensure Crossing : It is duty of the banker to ensure that the
cheque is crossed specifically to himself and if the cheque is crossed to
some other banker they should refuse to collect it. Similarly where the
cheque is crossed to a specific account then crediting the same to
another account without necessary enquiry’s would make him liable on
the grounds of negligence.
4. Duty to verify the instruments / any apparent defect in the
Instruments
5. Duty to take into account the state of customers account
6. Negligence of Collecting Bank in Collecting Cheques Payable to Third
parties.
Unit – 7 : Case Laws on Responsibility of Collecting Bank
Statutory Protection to Collecting Bank
Section 131 of the NI Act grants protection to a collecting
banker
1. Non-liability of a banker receiving payment of cheque
2. Conditions for protection
Duties of Collecting Bank
1. Duty to open account with references
2. Duty to follow up the reference where the referee is not known
3. Duty to Ensure Crossing : It is duty of the banker to ensure that the
cheque is crossed specifically to himself and if the cheque is crossed to
some other banker they should refuse to collect it. Similarly where the
cheque is crossed to a specific account then crediting the same to
another account without necessary enquiry’s would make him liable on
the grounds of negligence.
4. Duty to verify the instruments / any apparent defect in the
Instruments
5. Duty to take into account the state of customers account
6. Negligence of Collecting Bank in Collecting Cheques Payable to Third
parties.
ue under the said lamp.
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Unit – 7 : Case Laws on Responsibility of Collecting Bank
Statutory Protection to Collecting Bank
Section 131 of the NI Act grants protection to a collecting banker
1. Non-liability of a banker receiving payment of cheque
2. Conditions for protection
Duties of Collecting Bank
1. Duty to open account with references
2. Duty to follow up the reference where the referee is not known
3. Duty to Ensure Crossing : It is duty of the banker to ensure that the cheque is crossed
specifically to himself and if the cheque is crossed to some other banker they should refuse to
collect it. Similarly where the cheque is crossed to a specific account then crediting the same
to another account without necessary enquiry’s would make him liable on the grounds of
negligence.
4. Duty to verify the instruments / any apparent defect in the Instruments
5. Duty to take into account the state of customers account
6. Negligence of Collecting Bank in Collecting Cheques Payable to Third parties.
Unit – 8 : Different Types of Borrowers
Minor
A minor is a person who has not attained the age of 18 years. A person will become major at
the age of 18 whether guardian is natural or appointed by a court of law.
Guardians: There can be three types of guardians.
Natural guardians like father, mother.
Testamentary Guardian: A Guardian appointed by Will (Vasiyat). Natural guardian may appoint
somebody to act as guardian after his or her death through will. But such guardian will come into
picture only on the death of natural guardian (in case of Hindus on the death of father as well as
mother).
Legal guardians: A Guardian appointed by Court. If neither natural or testamentary guardian then
appointed by court.
When guardian of a Hindu minor ceases to be a Hindu or he becomes a hermit or sanyasi he
ceases to be natural guardian.
As per section 11 of the Indian Contract Act, 1872 a minor is not competent to enter into a
contract andthe contract entered into by him is void ab-initio.
Types of Borrowers
Individual
Partnership Firm
Hindu Undivided Family : Joint Hindu Family is governed basically by two schools of thought. They
are Dayabhag and Mitakshara schools
Companies
Statutory Corporations
Trusts and Cooperative Societies
Accounts of Visually Challenged (Blind) Persons
A visually challenged person is competent to the contract like any other person.
Signature or thumb impression of the blind person should be attested by an independent witness to the
effect that all terms and conditions were properly explained to the blind person in his presence.
Cash deposit and withdrawal by blind person should be handled by the officer of the bank.
RBI has advised banks to ensure that all the banking facilities such as cheque book facility including
third party cheques, ATM facility, Net banking facility, locker facility, retail loans, credit cards etc.
are invariably offered to the visually challenged without any discrimination.
Accounts of Illiterate Persons
An illiterate person is competent to contract like any other person.
Cheque book is not issued to illiterate depositor for cash payments.
Cheque book can be issued formaking statutory payments, post dated cheques for repayment of
instalments of loan. In such cases, the cheques will be crossed account payee and thumb impression of
the illiterate depositor will be verified on such cheques at the time of issue of cheque book by
competent authority of the bank.
Joint accounts
Either or Survivor (E or S): It means anyone can operate the account till both are alive. After the death
of either of them, the bank can pay the balance to the survivor without any formality.
To be operated jointly: Account will be operated by both jointly till both are alive and, if one of the
two expires, the bank would pay the final balance to the survivor, along with all the legal heirs of the
deceased.
Jointly or by Survivors: Account can be operated by both / all the person jointly during their lifetime
and, in the event of death of any one, the balance is payable to the surviving persons jointly
Former or Survivor: in such accounts, till the first named person is alive, the second named person has
no right to withdraw/operate the account. After the death of the first named person, the payment will
be made to second named person.
Partnership Firms
Partnership is governed by Indian Partnership Act 1932.
Partnership is created by agreement.
Partnership is created to run a business for profit.
Minimum number of partners is 2 and maximum can be 10 for banking business and 20 for other
business.
Who can become a partner: An individual, partnership firm, limited company.
Who cannot become a partner: Minor, insolvent, insane cannot become partner because they are not
competent to contract.
Though a minor cannot become partner, he can be admitted for sharing the benefits.
As per Supreme Court Judgement, HUF cannot become partner as HUF cannot be liable for action of
others.
Trust cannot become partner because partnership is established for business.
A partnership firm is registered with registrar of firms.
Registration of a partnership firm is optional. It is not necessary that the firm be registered. But an
unregistered firm can not file suit against others for recovery of its debt whereas others can file suit
against the firm.
Liability of a partner: Every partner is liable, jointly with all other partners and also personally, for all
acts of the firm while he is a partner. His liability is unlimited.
Operational Aughority: In Partnership accounts operation authority is given by all partners.
Any change in the operational authority is also with the consent of all partners.
Partner cannot delegate authority.
Every partner including a sleeping partner has authority to stop payment of a cheque issued by another
partner of the firm but revocation can be done only as per operational authority.
Death of a partner: On the death of a partner, the partnership is dissolved.
The cheques signed by the deceased, insane or insolvent partner will be paid after obtaining consent of
surviving partners.
If the account is in credit, operations are allowed for winding up of the firm.
It the account is in debit, operations in the account should be stopped to retain liability of the deceased
/insolvent partner or his/her estate and to avoid operations of the Clayton's rule.
Limited Companies
A limited company is an artificial person with perpetual succession incorporated under the Companies
Act.
Company is a legal person, created through process of incorporation for which Registrar of
Companies issues Certificate of
Incorporation.
Shareholders are owners of the Company and directors are agents of the company to manage
company.
A limited company may be private limited or public limited.
Members in a private limited company: minimum 2; maximum excluding employees can be 50.
Members in a public limited company: minimum 7 and there is no ceiling on maximum number.
Number of Directors: A private limited company should have minimum 2 directors whereas a public
limited company should have minimum 3 directors. No limit on maximum number of directors. In a
public limited company, if directors are more than 12, permission from central govt required.
Public company: When minimum 51% shares with government.
Documents for opening the account: Memorandum of Association, Articles of Association, Certificate
of Corporation, Certificate of Commencement of Business (only for public limited companies) and
Board Resolution. No introduction is required as Certificate of Incorporation is enough introduction.
However, KYC norms to be applied on all persons authorized to operate
the account.
Memorandum of Association: It contains name of the Company, its authorised capital, registered
office and liability of shareholders, objects of the company etc.
Ultra Vires: Anything done by the directors beyond the objects stated in the memorandum of
association is calledultravires
The directors can not delegate their authority to any other person.
In case a director dies, the cheques signed by him presented for payment can be paid if these are dated
prior to his death.
If a director stops authority of other director it is of no use. Bank will allow operations as per Board
Resolution.
Common Seal of the Company is to be affixed on documents as per Articles of Association or Board
Resolution.
Cheque favouring company should not be credited to the personal account of the director. Such
cheques should not be paid in cash. These should be credited to the account of company only.
Hindu Undivided Family (HUF) : HUF is neither a legal person nor a natural person. It is
not created by agreement_ It is not incorporated under any Act. It is from a common
ancestor and membership is by birth or adoption.
The eldest member of family is the Karta and others are co parceners. Daughter can also be Kerta.
Seniormost member continues to be Karta even when he/she lives outside India.
Operational authority to operate the account is with Karta
Karts can appoint any other coparcener or third party to conduct business of HUF and/or operate the
account.
Co parcener can not stop payment of the cheque unless he is authorized to operate the account.
Karta is personally liable.
The liability of a co parcener is limited up to his share in the firm. He is not liable personally.
HUF can not be partner as per Supreme Court Judgement.
Trusts :
Trusts can be of two types - private trusts where beneficiaries are certain specified individuals or
groups and public trusts where beneficiary is public at large.
Private trusts are governed by Indian Trust Act, 1882, public trusts are governed by Public Trusts Act
of the concerned state.
The docuinent creating a trust is called 'trust deed'. Public Trusts are registered with the Charity
Commissioner.
The operation and other aspects of the bank account are to be conducted as per the Trust Deed. If trust
deed is silent about operational authority, all trustees have to operate the account jointly.
Stop- payment will be as per operational authority. Revocation of stop payment as per operational
authority.
Trustees can't delegate their powers to an outsider even by mutual consent.
Loan to a trust Loan can be allowed provided it is permitted by Trust Deed and it is for the purposes of
Trust.
On the death of a trustee, the trust property is passed on to the next trustee while in the event of death
of sole trustee or last surviving trustee, the court can appoint a trustee.
Death or insolvency of a trustee does not affect the trust property and the bank can pay cheques issued
by the deceased trustee prior to his death.
Clubs and Societies
For opening account of Clubs and Societies bank will require Certificate of Registration, Bye laws of
the Society, and resolution of Managing Committee or Executive Committee.
Operational Authority will be as per resolution of Managing Committee.
Change in Operational authority as per resolution of Managing Committee.
Stop payment and revocation of stop payment as per Operational Authority.
Cheque signed by the secretary or treasurer or president of society and presented after his death can be
paid if otherwise in order.
Unit – 9 : Types of Credit Facilities
Types of Credit Facilities
Fund Based Credit Facilities
Cash Credits / Overdrafts – Cash credit /Overdraft is an arrangement by which a banker allows his
customer to borrow money up to a certain limit.
Term Loans -
Bill Finance
Non-Fund based Credit Facilities
Bank Guarantee
Letter of Credit Facility
Rule in Clayton’s Case
Discharge of debit items by subsequent credits was enunciated in a case called Clayton’s case.
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Unit – 10 : Indemnities
Indian Contract Act
Section Description
124 Contract of Indemnity : A contract by which one party promises to save
the other from loss caused by him by the conduct of the promisor himself, or
by the conduct of any other person.
Person giving the promise is called the Indemnifier and the person whom
the promise is made is called the Indemnified or Indemnity Holder.
125 Rights of an Indemnity Holder when sued : The promisee in a contract
of Indemnity, acting within the scope of his authority, is entitled to recover
from the promisor – All damages which he may be compelled to pay in any
suit, all costs, all sums.
Above Rights of an Indemnify Holder is subject to:
His acting within the scope of his authority
He does not contravene the specific directions of the promisor
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Unit – 11 : Bank Guarantees
Guarantee is defined in section 126 of Indian Contract Act.
There are three parties to a contract of guarantee namely principal debtor, creditor and
surety.
The liability under guarantee is a contingent liability and surety is liable on default by the
principal debtor.
Once there is a default, the liability of the surety is co extensive with the principal debtor.
That is he is equally liable as principal debtor.
When a guarantor makes payment on being called by the creditor, he becomes entitled to all
rights and remedies which creditor had against the principal debtor. This right of the surety is
called Right of Subrogation.
When guarantee is issued for a single transaction it is called specific guarantee and when it
is issued for series of transactions it is called continuing guarantee.
Deferred payment guarantee is issued when the applicant purchases machine etc on
instalment basis.
Deferred payment Guarantee is just like financial guarantee.
The difference between Deferred payment guarantee and term loan is due to outlay of funds.
Various Types of Bank Guarantees
Financial Guarantee: These are guarantees issued by banks on behalf of the customers,
in lieu of the customer being required to deposit cash security or earnest money.
Performance Guarantee: These are guarantees issued by banks on behalf of its customers
whereby the bank assures a third party that the customer will perform the contract entered
into by the customer as per the conditions stipulated in the contract, failing which bank will
compensate the third party up to which the amount specified in the guarantee.
Deferred Payment Guarantee: Under this type of the guarantee, the banker guarantees
payment of installments over a period of time. This type of the guarantee is required when
the customer on credit purchases goods/machinery and payment is to be made in installments
on specified dates. A deferred payment guarantee constitutes an undertaking on the part of
the bank to make payment of deferred installments to the seller (beneficiary) on due dates in
the event of default by the customer (buyer).
Statutory Guarantee: These are guarantees issued by banks favoring Courts and other
statutory authorities guaranteeing that the customer will honor his commitments imposed on
under law, failing which bank will compensate to the extent of the amount guaranteed.
Issuance of Bank Guarantee – Precautions to be taken
The liability of the bank under a guarantee depends on two fundamental criteria’s, the
amount guaranteed and the period of the guarantee.
Amount Guaranteed
Period of Guaranteed
Claim period in a guarantee: The claim period is usually few months more than the validity
period of the guarantee. If a validity period, then the beneficiary can at least of invoke the
same on the next day.
Difference between Indemnity and Guarantee
Contract of Indemnity Contract of Guarantee
There are 2 parties
(Indemnifier and Indemnified)
There are 3 parties
(Debtor, Creditor/Beneficiary, Surety)
Risk is contingent Liability is subsisting
The Indemnifier is required to make
good
the loss as soon as it occurs
The Surety’s liability is secondary and the
principal debtor is primarily liable
There are only two parties to a contract
of
indemnity
There are at least three parties in the contract
of Guarantee
An indemnity is for the reimbursement
of a loss
Guarantee is only security to the creditor
……………………………………………………………………………………………………………
Unit – 12 : Letter Of Credit
A Letter of credit is a form of guarantee given by banks on behalf of its customer.
Parties to a Letter Of Credit
Applicant-Buyer-Importer-Opener : He is the person who applies to bank for Letter of
Credit
Issuing Bank : The bank which opens the Letter Of Credit on the request of applicant/Buyer.
Beneficiary-Exporter-Seller : The person who is entitled to receive the benefit under
Letter of Credit.
Advising Bank / Notifying Bank : The bank in the Beneficiary/Exporters Country through
which the letter of credit is advised to the beneficiary.
Negotiating Bank : The bank in the Beneficiary/Exporters Country which negotiate the bills
(i.e. make payments on the bills drawn by the seller and accepts the documents.) If the LC
specifies a bank then that bank is the Negotiating Bank and is also called the Nominated
Bank / Paying Bank. If the LC however does not specify the bank, than any bank can be
negotiating bank.
Confirming Bank : The advising bank is only required to advise the credit to the beneficiary.
If however in addition to advising the credit the advising bank were to confirm it, then the
advising bank will also become confirming Bank.
Reimbursing Bank : It is the bank which is appointed by the Issuing Bank to make
reimbursement to the Negotiating, Paying or confirming Bank.
Types of Letter of Credit
Acceptance Credit : Ordinary Letters of Credits are usually sight credits, i.e. immediate
payment should be made of the bills drawn by the beneficiary. Such letters of credit under
which usance bills can be drawn is an Acceptance Credit or Time Credit.
Revocable Credit : A revocable LC is a credit that can be amended / cancelled by the
issuing bank without prior notice to the beneficiary. However, if any negotiating bank has
acted on the credit prior to receipt of the notice of amendment/cancellation then the issuing
bank is bound to reimburse the negotiating bank.
Irrevocable Credit : is a credit that can neither be amended nor cancelled without the
consent of the beneficiary.
Confirmed Credit : If a bank advising the credit to beneficiary adds its own confirmation to
the credit, then the credit would be called a confirmed credit. Only irrevocable credit can be
confirmed
With Recourse and without Recourse Credits : when beneficiary draws a bill under a LC
he is liable if the drawee fails to make payment. These kind of bills are called recourse LCs.
The beneficiary can exclude liability by adding to the bill following words “without recourse”
Transferable Credits : As such the rights under an LC cannot be transferred and is vested
in the beneficiary. A transferable credit is one under which the beneficiary can transfer his
rights to third parties. Unless specifically stated an LC is not transferable.
Back-To-Back Credits : The beneficiary in whose favour an LC is issued uses the same to
obtain another credit from his (beneficiary’s ) bank in favor of the supplier. There are three
banks involved in this type of LC. (Issuing Bank, Advising Bank, Third bank which issued an
ancillary credit against the security of the original credit.
Anticipatory Letter of Credit
Red Clause Letter of credit - In a usual LC transaction the beneficiary will be entitled to
receive payment only on his handing over the documents and bills drawn under the LC to the
negotiating bank. However in certain credits the beneficiary will be entitled to get and
advance of the price. These credits contains a “Red Clause” which authorises an intermediary
bank to make an advance to the beneficiary before shipment.
Green Clause Letter Of Credits –This is refinement of the “Red Clause”. This type of LC
not only permits preshipment advance but also permits advances to the exporter to cover
storage at the port of shipment.The Red Clause and Green Clause credit are called
Anticipatory Credits.
Revolving Letter of Credit : In this type of credit though amount is fixed, it can be
renewed as soon as the earlier bills have been paid.
Documents Under a Letter Of Credit
Bill of Exchange : In a LC transaction the rights to draw a bill is conferred only on the
beneficiary. The bill amount should be within the limit fixed in the Letter of credit.
Invoice : All the details mentioned in the invoice must tally with those mentioned in the
Letter of credit.
Revocable Credit
Where the credit terms can be unilaterally altered or cancelled by the issuing bank.
Revolving Credit
Where the amount is fixed but can be utilised again and again as and when the earlier bills
drawn are paid.
Transferable Credit
Where rights under an LC can be transferred to third parties.
Red Clause Credit
Where the beneficiary is entitled to advance payment before production of documents
Green Clause Credit
Credits where in addition to advance payment, the beneficiary is entitled to payment of
storage / warehousing charges.
Unit – 13 : Deferred Payment Guarantee
Deferred Payment: Payment by installments of the price of goods or service without interest.
Deferred Payment Guarantee: A is an unconditional and irrevocable guarantee issued by the
bank assuring payment in installments and interest on due dates. DPGs are usually insisted
upon when capital goods are imported and seller/exporter requires an additional assurance
that the instalment payment allowed by him to the buyer/importer is met.
Unit – 14 : Laws Relating to Bill Finance
Classification of Bills
Inland Bills : Bills drawn or made in India and made payable in, or drawn upon any person
resident in India. It may be made payable in a foreign country.
Foreign Bills: Bills drawn outside India and made payable in or drawn upon any person
resident in any country outside India / resident in India
Demand Bills: Section 19 : It is an instrument payable on demand and no time for payment
is specified therein. Demand Bill is otherwise called sight bill.
Usance Bills: Bill Payable after sight : a bill payable otherwise than on demand. It specifies
normally a time for payment of the value it represents.
Clean Bills: is a bill of exchange drawn as per requirements of NI Act and is not supported
by documents of title of goods.
Documentary Bills: A bill of exchange accompanying documents of title of goods. These
bills are drawn to claim price of goods supplied.
Bills drawn with an instruction to deliver against payment/D.P. Bills - In a transaction of supply of
goods, a seller draws a bill on the buyer and sends the same to his banker along with document of title
of goods like bill of lading etc. The seller instructs the banker to deliver the bill and documents of title
of goods only when buyer pays the price of goods.
Bills drawn with instruction to deliver against acceptance / D.A.Bills – An usuance bill supported by
document of title of goods bearing an instruction that the documents can be delivered, if the buyer
accept the bill of exchange
Various Categories Of Bill Finance
Bill Purchase facility is granted in the case of demand bills
Bill Discount is granted in the case of usance bills
Advance against Bills for Collection: When the bank advances against the bills, which are in
course of collection, the facility is known as advance against bills for collection.
NI Act 1881
Section Description
5 Bill of exchange is defined as “ instrument in writing containing an
unconditional
order signed by maker directing a certain person to pay certain sum of money
only
to, or to the order of a certain person or to the bearer thereof
7 Drawer, Drawee and Payee
8 Holder of Bill of exchange means a person entitled in his name to possess the
bill
and recover the amount presented by Bill.
9 Holder in Due Course means any person who for consideration become the
possessor of the bill
10 Payment in Due Course means payment in accordance with tenor of the bill of
exchange to the holder or holder in due course in good faith and without
negligence
11 Inland bills
12 Foreign Bills
14 Negotiation : When a bill is transferred to any person so as to entitle him to
claim
the amount represented by bill, then such transfer is called Negotiation
15 Endorsement: If the holder of instrument signs the bill of exchange for the
purpose
of transferring it, such signing is called Endorsement.
19 Demand Bills
30 Liability of Drawer
32 Liability of Acceptor/Drawee of Bill
35 Liability of Endorser
79 Interest rate specified
80 Interest when no rate is specified
……………………………………………………………………………………………………………
Unit – 15 : Various Types Of Securities
The requisites of a good and acceptable security are as follows:
The borrower should have a good title to the security.
It should be easily and freely transferable.
It should not have any encumbrance or liability for, e.g., partly paid shares.
It should be easily marketable.
It should not be liable to wide price fluctuations.
Its value should be easily ascertainable.
Its storing should not be difficult.
It should be durable.
It should be easily transportable.
Various Kinds of Securities
Land/Real Estate
Stocks and Shares
Debentures
Goods
Trust Receipts
Life Policies
Gold Loan
Book Debts
Fixed Deposits
Supply Bills
Vehicle Financing
Unit – 16 : Law Relating to Securities and Modes of Charge-I
Mortgage
Section 58 of the Transfer of Property Act, 1882 defines “ A mortgage is the transfer of
interest in specific immoveable property, for the purpose of securing the payment of money
advanced or to be advanced by way of loan, on existing of future debt or the performance of
an engagement which may give rise to a pecuniary liability”
1. Simple Mortgage: Section 58(B)
The mortgagee has no power to sale without Court Intervention
No right to get any payments out of the rents
Not in possession of the property
Registration is mandatory.
2. Mortgage by conditional sale : 58 (c)
The sale is ostensible and not real
If the money is not paid on the agreed date, the ostensible sale will become absolute upon
the mortgagor applying to the court and getting a decree in his favour.
The mortgagee can sue for foreclosure, but not for sale of the property.
There is no personal covenant for repayment of the debt and therefore bankers do not prefer
this type of the mortgage.
3. Usufructuary Mortgage: 58(d)
The mortgagee is put in possession of the mortgaged property. Here by possession means
legal possession not a physical possession.
The mortgagee has the right to received rents and profits accruing from the property.
He mortgagee cannot sue the mortgagor for repayment of the debt., sale or foreclosure of
the mortgaged property.
If the mortgagor fails to bring a suit for redemption within 30 years, the mortgagee becomes
absolute owner of the property.
Banker do not prefer this form of mortgage for the following reasons
There is no personal covenant to repay the debt.
It will take very long time to recovery money through this process
4. English Mortgage : 58(e)
It provides personal covenant
There is an absolute transfer of the property in favour of the mortgagee. Property shall be
reconveyed to the mortgagor in the event of repayment of mortgage money.
The mortgagee can sue the mortgagor for the recovery of the money.
5. Mortgage by deposit of title deeds / Equitable Mortgage 58(f)
Where a person in any of the towns notified by the govt. concerned may, delivers to a
creditor or his agent documents of title to immoveable property, with intent to create a
security thereon, the transaction is called a mortgage by deposit of title deeds.
6. Anomalous Mortgage – 58(g)
It is combination of two mortgages:
Simple and usufructuary mortgage
usufructuary mortgage accompanied by conditional sale
Unit – 17 : Law Relating to Securities and Modes of Charge-II
Pledge
Mortgage
Hypothecation
Banker’s Lien
Set-Off
Pledge Mortgage
Pledge required only a limited interest in the
property and ownership remains with the
right of pledger.
Here the legal ownership passes to
mortgagee.
Of course subject to the mortgagor to
redeem
the property
The Pawnee has “special property” in the
goods decree of pledged
The mortgage as a rule, takes decree of a
Court of Law before having recourse
against the property mortgaged.
Pawnee has no right to foreclosure In certain cases, the mortgagee can
foreclose the property.
Pawnor – The person whose goods are bailed
Pawnee – The person who takes the goods for security
Pledge means bailment of goods for the purpose of securing a payment of debt or an
obligation.
A valid pledge can be created by owner of goods or a mercantile agent
A constructive pledge involves only delivery of keys of the warehouse.
Under the Contract of pledge the Pawnee can sell the goods pledged after notice or retain the
goods and file a suit for recovery of debt.
Hypothecation Mortgage
The mortgage of moveable property is
called Hypothecation
Mortgage relates to immoveable property
There is only obligation to repay the money
and no transfer of interest
There is transfer of interest.
……………………………………………………………………………………………………………
Unit – 18 : Registration And Satisfaction Of Charges
Charge is used to mean any form of security for debt.
Types of Charges
i. Fixed Charge – is also called Specific Charge. It extends over a specific property.
ii. Floating Charge – means a charge
that floats over the present and future property of the company
that does not restrict the company from assigning the property subject to third persons,
whether by way of sale or security.
that on happening of an event or contingency crystallises as a fixed charge.
Procedure for Registration Of Charge
Effect of Non-Registration Of Charges
Section 125 of the Companies Act provides that the charge created by the company over the
properties, if not registered would not be valid against the liquidator and any creditor of the
company.
JAIIB - Legal & Regulatory Aspects of Banking - Mod - C - Banking Related
Laws
Unit – 19 : Introduction to SARFAESI Act, 2002
1. Banks and Financial institutions lend money by obtaining security, except for the category
of clean loans. The security obtained is to act as a protection for the money advanced and in
the case of need, the money can be realised by the sale of securities.
2. The lender's rights over the securities, both moveable and immoveable, for realisation of
the amount advanced, were limited and less effective since they were required to take help of
the legal system which was taking unduly long time to complete prior to the passing of the
SARFAESI Act, 2002. This Act introduced major changes in the legal framework for the
recovery of dues by laying hands on the securities.
3. The Act is a major step in financial sector reforms. It has brought a legal framework for the
following important activities in the credit market:
(a) Securitisation of financial assets.
(b) Reconstruction of financial assets.
(c) Recognition of any 'interest' created in the security for due repayment of a loan as a
'security interest', irrespective of its form and nature but when it is not in the possession of
the creditor.
(d) Power to enforce such a security for the realisation of money due to banks and the
financial institutes in the event of a default, without the intervention of the Courts.
(e) Enabling provisions for the setting up a central registry for the purpose of registration of
transactions of securitisation, reconstruction and the creation of the security interest.
4. The Act extends to whole of India including the State of Jammu & Kashmir. It is effective
from 21 June, 2002. The Act is applicable also to housing finance companies whose names
are notified by the Central Government for such applicability.
5. The provisions of the Act, relating to enforcement of the security interest, applies to cases
in which the security interests are created for due repayment of financial assistance. The Act
has presupposed a simple thing, that there is an obligation on the part of the borrowers to
repay loans and if they are unable to repay, then the securities for the loans are liable to be
sold for the recovery of loans. The Act has retrospective application, i.e., it applies for loans
and securities created prior to the Act coming into operation of the Act.
Unit – 20 : Definitions at SARFAESI ACT, 2002
1. Preamble – An act to regulate Securitisation and reconstruction of financial assets and
enforcement of security interest and for matters connected therewith or incidental thereto
2. Appellate Tribunal – Any person aggrieved by the order passed by DRT can file an appeal
to the authority called as Appellate Tribunal.
3. Asset Reconstruction -
4. Bank – All the banking companies, Nationalised banks, Cooperative banks and RRBs
5. Board – SEBI under SEBI Act 1992.
6. Borrower – granted financial assistance, given guarantee, has
7. Central Registry – All the transactions of asset Securitisation, reconstruction as well as
transactions of creating security interest will have to be registered with this authority.
8. Debt Recovery Tribunal – these tribunals deal with the cases of recovery of debts. Above
Rs. 10 Lakh due to banks and financial institutions.
9. Default
10. Financial Assistance
11. Financial Asset - a claim to any debt or receivables and includes :
1. A claim to any debt or receivables or part thereof whether secured or unsecured, or
2. Any debt or receivable secured by mortgage of or charge on immovable property or
3. A mortgage, charge, hypothecation or pledge of moveable property, or
4. Any right of interest in the security, whether full or part, securing debt, or
12. Financial Institution
13. Hypothecation
14. Non-Performing Asset
15. Originator
16. Obligor – Borrower or any other person liable to pay to the bank
17. Property
18. Qualified Institutional Buyer
19. Reconstruction Company
20. Scheme
21. Securitisation
22. Securitisation Company : The minimum capital requirement is Rs.200 Crore at the time of
registration, and these companies are required to maintain minimum capital adequacy ratio of
15% of total asset acquired or Rs.100 crore whichever is less. It is company registered under
companies act 1956 for the purpose of securitisation. The company also needs registration
with
RBI.
23. Security Agreement means an agreement, instrument or any other document under which
security interest is created.
24. Secured Asset means property on which security interest is created. The powers given by
SARFAESI Act for enforcement of securities are against secured assets only.
25. Secured Creditor
26. Secured Debt means a debt which is secured by any security interest.
27. Secured Interest – Any right, title and interest of any kind whatsoever upon the property
created in favour of any secured creditor is called as secured Interest.
28. Security Receipt
29. Sponsor is a person holding not less than 10% of the paid up equity capital of
securitisation company.
1. When any bank or financial institutions creates a charge against property, with which
authority the transaction will have to be registered under the SARFAESI Act, 2002 – With the
Central Registry
2. When the provisions of SARFAESI Act, 2002 can be invoked for proceeding against the
charged property – When there is default in repayment and the bank declares the account as
NPA.
3. Acquisition of financial asset from the originator is the main function of securitisation
company.
4. If the borrower does not pay within 60 days after notice by the secured creditor the
creditor can take possession of the security.
5. Enforcement of SARFAESI Act only if security is not in possession of the bank and financial
institution.
Unit – 21 : Regulation of Securitisation and Reconstruction of Financial Assets of
Banks and Financial Institutions
Registration of Securitisation Company Or Reconstruction Company
- can commence or carry business if
1. Obtain certification of registration from RBI
2. It has the owned funds not less than 2 Crores
Cancellation of Certificate of Incorporation
1. The company ceases to carry on the business
2. The company ceases to receive or hold any investment from a qualified institutional buyer.
3. The company fails to comply with any of the conditions subject to which the certificate of
registration was granted
4. Fails to comply with RBI directions.
5. Fails to maintain accounts in accordance with directions issued by RBI.
6. Fails to give accounts and documents to RBI for inspection.
Asset Reconstruction means acquisition of any right or interest of any bank of financial
institution in any financial asset for the purpose of realisation.
Securitisation Company needs registration from RBI for commencement of business.
Right of acquisition of financial asset by Securitisation Company/RC is subject to the prior
agreements or contracts about the asset. (False)
Acquisition of financial asset by Securitisation Company/RC is with the liability also over such
asset. (False)
The four documents involved in the Securitisation Transaction
Offer Document – Full details of financial asset, loan details of bank etc.
Debenture – A debenture for payment of consideration to be paid to the bank or financial
institution for acquisition asset from it.
Agreement – it is with originator to continue to service the assets.
Security Receipt – It is in favour of investors.
Any direction issued by the RBI under SARFAESI Act has Statutory effect and is binding on
the parties concerned.
After application of SARFAESI Act existing companies have to get registered within six months
from commencement of the Act
Unit – 22 : Enforcement of Security Interest
When Immoveable property is obtained as security by way of Mortgage, for its sale and
realization of money court intervention is required. Similarly in case of moveable property
, except the pledged security, court intervention is required.
The SARFAESI Act empowers bank and financial institutions to enforce securities in the
event of default of borrower without intervention of either civil court or the DRT.Manner and
Effect of Takeover of Management
No Compensation to the directors for loss of office
Right to Prefer Application to DRT
Any person, including borrower, aggrieved by the any of the measures taken by the SC or his
authorised officer for taking possession of the security may apply to the DRT with prescribed
fees within 45 Days.
If application by borrower, he has to deposit 50% of the amount claimed in the notice under
Section 13(2) of the SARFAESI Act.
The DRT has to dispose of the application within 60 Days. If not possible, then DRT has to
record reasons for delay but such delay should not be beyond 4 Months. If any such
application is not disposed within 4 Months, the aggrieved party can prefer an application to
the Appellate Tribunal for seeking early disposal of the application.
Appeal to Appellate Authority
Any person aggrieved by any order by the DRT under can prefer appeal along with the
prescribed fees to the Appellate Tribunal within 30 Days from the date of the receipt of the
order of the DRT. Different fees for borrower’s appeal and appeal by any other than borrower.
The borrower has to deposit 50% of the debt claimed by the SC. The Tribunal has power to
reduce this amount up to 25%.
Right of Borrower for Compensation and Costs
1. If the DRT /AT as the case may be, on the appeal holds that
The possession of secured asset by the SC is not in accordance with the provisions of the Acts
or Rules
The SC should return such secured asset to the concerned borrower, with compensation and
cost as may be determined by DRT/AT.
2. No pecuniary limit is fixed by the Act for the Appellate Jurisdiction.
If any Person contravenes or attempts to contravenes provisions of the SARFAESI Act or rules
there under he shall be punishable with imprisonment for a term which may extend to one
year or with fine or with both.
Section 12 : RBI is statutorily empowered to issue directions to the SC/RC. If any such
company fails to comply with any of the directions issued by the RBI then such company is
punishable with fine not exceeding 5 Lakh rupees for the default. In case of further
continuation of the offence additional fine is up to Rs. 10 thousand per day of default can be
imposed.
Section 31 : Exclusions of possessory securities to which act is NOT APPLICABLE
1. A Lien on any goods, money or security given by or under the Indian Contract Act, 1872.
2. A pledge of moveable within meaning of Section 172 of the Indian Contract Act, 1872.
3. Any conditional sale, hire-purchase or lease or any other contract in which security interest
has been created.
4. Any rights of unpaid seller.
5. Any security interest for securing repayment of any financial asset not exceeding Rs. 1
Lakh rupees.
6. Any security interest created on agricultural land.
Section 20, 21 to 27 that provide for registration of security interest created, satisfaction of
charge created.
Unit – 23 : Central Registry
Besides the SARFAESI Act following other laws require registration of charge created in the
property.
1. Registration Act, 1908
2. Companies Act, 1956
3. Merchant Shipping Act, 1958
4. Patents Act, 1970
5. Designs Act, 2000
A record shall be maintained at the central register at the head office of the central register in
which transactions relating to
1. Securitisation of Financial Assets
2. Reconstruction of Financial Assets
3. Creation of security interests shall be maintained.
Under the SARFAESI act filing of details of transactions of securitisation, reconstruction and
creation of security interest is required to be filed with the Central Register is 30 days after
the date after the date of transaction or creation of security.
Modification also have to be filled within 30 days
Satisfaction of Charge 30 days
Unit – 24 : Offences and Penalties
OFFENCES
If any person:
1. contravenes, or
2. attempts to contravene, or
3. abets the contravention of the provisions of the SARFAESI Act or rules made thereunder,
he shall be punishable with imprisonment for a term, which may extend to one year or with a
fine
or both.
COGNISANCE OF OFFENCES
Section 30 provides that cognisance of the offence under the SARFAESI Act shall be taken by
the Metropolitan Magistrate or the Judicial Magistrate of First Class only. No Court below rank
than this can take cognisance of such offences.
PENALTIES
Section 23 of the Act provides for filing of the particulars of charge created. Section 24 has
provides for modification of the charge filed and the Section 25 has provides that the
satisfaction of the charge has to be intimated to the central registrar. If the securitisation or
reconstruction company or the secured creditor fails to perform any of the duties as stated
above, the company and the officers concerned for the default, as per provisions of this
section, are punishable with a fine that may extend to five thousand rupees for each day
during which the default continues.
PENALTIES FOR NON-COMPLIANCE OF DIRECTIONS OF RESERVE BANK OF INDIA
Under the Section 12 of the SARFAESI Act, the Reserve Bank of India is statutorily
empowered to issue directions to the securitisation or reconstruction company. If any such
company fails to comply with any of the directions issued by the Reserve Bank of India, then
such company is punishable with a fine not exceeding Rs. 5 lakh for the default. In case of
further continuation of the offence, an additional fine up to Rs. 10,000 per day of the default
can be imposed.
Unit – 25 : Miscellaneous Provisions
Non-applicability of SARFAESI Act
(i) A lien, on any goods, money or security given by or under the Indian Contract Act, 1872 or
the Sale of Goods Act, 1930 or any other law for the time being in force.
(ii) A pledge of movable, within the meaning of Section 172 of the Indian Contract Act, 1872.
(iii) Creation of security interest in any vessel as defined within the meaning of Section 3(55)
of the Merchant Shipping Act, 1958.
(iv) Creation of security in any aircraft as defined in Section 2 of Aircraft Act 1934.
(v) Any conditional sale, hire-purchase or lease or any other contract in which no security
Interest has been created.
(vi) Any rights of unpaid seller under Section 47 of the Sale of Goods Act, 1930.
(vii) Any properties not liable for attachment or sale under the first proviso to Section 60(1) of
the Civil Procedure Code, 1908.
(viii) Any security interest for securing repayment of any financial asset not exceeding one
lakh rupees
(ix) Any security interest created in agricultural land
(x) Any case, in which the amount due is less than twenty per cent of the principal amount
and
interest thereunder.
Securities not in possession of the bank or financial institutions are only covered by this act.
Civil courts not to have jurisdiction, jurisdiction has conferred to DRT and AT.
Section 36 SARFAESI Act :The action has to be taken within 3 years from date on which a cause o
Unit – 26 : Purpose, Extent, Definitions, Establishment and Powers
Award means an award passed by the Banking Ombudsman in accordance with this
scheme.
Authorised Representative means a person duly appointed and authorised by a
complainant or a party to an arbitration proceeding, as the case may be, to act on his
behalf and represent him, before Banking Ombudsman.
Banking Ombudsman means any person appointed under the scheme.
Review Authority is the Dy. Governor in charge of Rural Planning and Credit
Department of the RBI, who shall review the award of the Banking Ombudsman and shall
be responsible for implementing any such award as per the scheme.
Settlement means an agreement reached by the parties either by conciliation or
mediation by the Banking Ombudsman
Banking Ombudsman
1. Minimum age of the person 65 years.
2. Appointment may be made for period of 3 years but the same is extendable for 2
years.
3. May be removed by giving three months notice/by paying three months emoluments.
4. Banking Ombudsman is appointed by a committee of 3 Dy. Governers of RBI and the
additional secretary, Finance.
5. The object of introducing the Banking Ombudsman Scheme, 2002 to enable resolution
of complaints relating to banking services.
6. Banking ombudsman resolve the dispute between banks or between bank and its
customer by arbitration reference if both the parties to the complaint agree for such
reference for arbitration and ifvalue of the claim does not exceed Rs. 10 lakhs.
Unit – 27 : Procedure For Redressal Of Grievance
Grounds of Complaint
A Complaint on any of the following grounds alleging deficiency in banking service may
be filed with the Banking Ombudsman having the jurisdiction:
1. non-payment/inordinate delay in the payment/collection of cheques
2. non-acceptance, without sufficient cause, of small denomination notes
3. non-issue of drafts
4. non-adherence to prescribed working hours
5. failure to honour guarantee/LC commitments by banks.
6. claims in respect of unauthorized/fraudulent withdrawals.
7. complaints from exporters in India.
8. Complaints from NRI having account in India.
Loans and Advances
9. non-observance of RBI directives on interest rates
10. delay in sanction. disbursement of Loan
11. non-acceptance of application for loans without giving valid reasons.
Procedure For Filing Complaint
1. before making complaint to the BO, must be made written representation to the bank
and either the bank rejected the complaint or the complainant had not received any reply
within one month after the bank recd. the complaint.
2. The complaint should be made before one year after the cause of action has arisen.
Power To Call For Information
Settlement Of Complaint By Agreement Award by the Banking Ombudsman
1. If the complaint is not settled by agreement within one month from the date of the
receipt of the complaint or such further period, He may pass an award after giving the
parties reasonable opportunity to present their case.
2. A copy of the award shall be sent to the complainant and the bank named in the
complaint. An award shall not be binding on bank unless complainant gives its letter of
acceptance within 15 days from the date of the receipt of the award. If the complainant
does not accept the award and fails to furnish the letter of acceptance within such time
without making any request for extension of time to comply with m the Banking
Ombudsman shall reject such requests.
3. The bank shall within one month from the date of receipt by it, of the acceptance in
writing of the award by the complainant comply with award and intimate the compliance
to the BO.
4. If the bank disagree, bank must intimate BO within one month from the date of the
receipt of copy of the Award to file the review petition.
5. The BO shall report to the RBI, review authority, about the non-compliance by any
bank of an Award. On receipt of such reports Review Authority will pass necessary
orders.
6. The maximum amount BO can award for compesation is Rs.10 lakhs.
Rejection Of the Complaint
1. The banking ombudsman may reject the complaint at any stage if it appears to him
that the complaint made is:
(i) frivolous, vexatious, mala-fide; or
(ii) without any sufficient cause; or
(iii) that it is not pursued by the complainant with reasonable diligence; or
(iv) prima facie, there is no loss or damage or inconvenience caused to the complainant;
or
(v) beyond the pecuniary jurisdiction of the banking ombudsman under the scheme
2. The banking ombudsman may reject a complaint at any stage, if after consideration of
the complaint and evidence produced before him the banking ombudsman is of the
opinion that the complicated nature of the complaint requires consideration of elaborate
documentary and oral evidence and the proceedings before the banking ombudsman are
not appropriate for adjudication of such a complaint.
The decision of the banking ombudsman in this regard shall be final and binding on the
complainant of the bank.
Review Authority
1. Any person aggrieved by the award has the right to prefer an appeal against the
award before the appellate authority within forty-five days form the date of receipt of the
award. The appellate authority is empowered to allow a further period not exceeding
thirty days on his being satisfied that the appellant had sufficient cause for not preferring
the appeal in time. In case the appeal is by the bank, the filing of appeal should have
been with the previous sanction of the Chairman or in his absence the Managing Director
or Executive Director or the Chief Executive Officer or any other officer of equal rank.
2. The appellate authority after giving the parties a reasonable opportunity of being
heard, may pass the following orders:
(a) dismiss the appeal; or
(b) allow the appeal and set aside the award; or
(c) remand the matter to the banking ombudsman for fresh disposal in accordance with
such directions as the appellate authority may consider necessary or proper; or
(d) modify the award and pass such directions as may be necessary to give effect to the
award so modified; or
(e) pass any other order as it may deem fit.
The order of the appellate authority has also the same effect as that of the award of the
banking ombudsman.
Unit – 28 : Preliminary
1. The Preamble to the DRT act describes the act as, ‘An act to provide the
establishment of tribunals for expeditious adjudication and recovery of debts due to
banks and financial institutions and for matters connected therewith .
2. The act is applicable to whole of India except J&K
3. Appellate Tribunal is established for the purpose of preferring appeal against the order
passed by the Tribunal.
4. Application
5. Appointed Day
6. Chairperson
7. Debt
8. Financial Institution
9. Presiding Officer means the presiding officer of the DRT appointed under subsection(1)
of Section 4
10. Recovery Officer appointed by the Government
Unit – 29 : Establishment of Tribunal and Appellate Tribunal
The central government is empowered to establish one or more tribunal to be known
as Debt Recovery Tribunal.
Composition of Tribunal
The tribunal consists of one person called as Presiding Officer and the appointment is
done by the central govt. by issuing notification.
Debt Recovery Tribunal Appellate Tribunal
Presiding Officer : District Judge Chairperson : High Court Judge, Presiding
officer of a DRT for at least 3 years.
Presiding officer holds officer for a term of
5 years or until he attains the age of 62 years
whichever is earlier.
Chairperson holds officer for a term of 5
years or until he attains age of 65 whichever is
earlier.
Recovery Officer
The staff so appointed shall work under the
general superintendence of the presiding
officer.
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Unit – 30 : Jurisdiction, Powers and Authority of Tribunals
1. Whenever the Tribunal or the Appellate Tribunal is established from its appointed day,
i.e., date from which they function is declared in the notification, they exercise
jurisdiction, powers and authority to entertain and decide applications or appeals, as the
case may be, from the banks and financial institutions for and about recovery of debts
due to them.
2. Chairperson of Appellate Tribunal is given general power of superintendence and
control over the Tribunals under his jurisdiction. The chairperson can transfer any
application from any
Presiding Officer within his jurisdiction to any other Presiding Officer within his
jurisdiction, on Receiving application for transfer of case or even on his own motion.
However before such transfer, he has to give notice to the parties and hear them. He
also has power of appraising work of presiding officers, under his control.
BAR OF JURISDICTION OF CIVIL COURTS
1. From the date of establishing the Tribunal, i.e., the appointed day, no court or other
authority shall have any jurisdiction, powers or authority to deal within any way in
recovery cases above Rupees ten lakh. Thus the Civil Courts or any other authority will
loose and will not have the jurisdiction for cases where due amount recoverable is above
Rupees ten lakh by banks and financial institutions.
However, this is not applicable to High Courts and Supreme Courts exercising jurisdiction
under Articles 226 and 227 of the Constitution.
2. The relevant date of bar of jurisdiction by the court or other authority is not the date
when this Act came into application. The date is since when the Tribunal is established
having jurisdiction in that particular area. In Bhanu Construction Company Ltd. vs Andhra
Bank [2002] 37 SCL 769, a question came whether the order passed by a Civil Court after
coming into force of the DRT Act but before establishing the Tribunal is valid on
jurisdiction point or not. The Supreme Court held that order passed by the Civil Court
prior to establishment of a Tribunal but after commencement of DRT Act was well within
the jurisdiction of the Civil Court.
Unit – 31 : Procedure Of Tribunals
A person who has to file appeal before the Appellate Tribunal has to pay 75% of the debt
ordered by the DRT.
Bank has to file application for recovery of loan taking into consideration jurisdiction and
cause of action.
DRT
Act
Description
19(1) Application for recovery to Tribunal within local limits of whose jurisdiction
19(2) Recovery of the debt is from same person, any other bank also has to recover
debt,
they may join.
19(3) No need to pay the fee, if Case is transferred from Civil Court to Tribunal
19(4) On receipt of application under sub-section(1) or (2) the Tribunal has to issue
summons to the defendant requiring him to show cause within 30 days of the
service of summons as to why the relief prayed for should not be granted
19(5) The Defendant has to present written statement at or before first hearing or
within such time as the Tribunal may permit.
19(6) defendant has to claims any amount on first hearing from the applicant and to
have
setoff against the applicant’s demand with ascertained sum of money
19(7) When written statement contains claim and set off, the written statement has
the same effect as a plaint in a cross-suit.
19(8) Counter claim
19(9) Counter claim has the same effect as a plaint in cross-suit so as to enable the
Tribunal to pass a final order in respect of both the original and Counter Claim.
19(10) The applicant is at liberty to file a written statement to the counter claim of the
defendant within such period may be fixed by the Tribunal
19(11) Counter Claim to be disposed as an Independent action.
19(12) The Tribunal may pass interim order against the defendant to debar him from
transferring, alienating, or otherwise dealing with or disposing of any
property/asset
without the permission of the Tribunal
19(13
A and
B)
Tribunal Dispose of the property, Damage to the property, remove/whole any
part of the property
19(14) When the applicant wants that the properties of the defendant should be
attached.
19(15) The Tribunal can pass conditional attachment order.
19(16) If any attachment order is passed without complying the requirements of
Subsection (13), then such order is void.
19(17) The Tribunal has power to pass interim orders, attachment orders etc. If there
is any
breach of the orders, the Tribunal may order that the properties of the person
guilty
of the breach of the order be attached and person be detained in civil prison for
a term not exceeding 3 months.
19(18) appoint a receiver of any property
- remove any person from the custody/possession of property
- confer powers to receiver.
- appoint a commissioner for preparation of an inventory of the property of the
defendant or for sale thereof
19(19) If the recovery certificate is granted against a company, the Tribunal may order
that
the sale proceeds of such company be distributed among the Secured Creditors
as provided in Section 529A of the Companies Act.
19(20) Pass interim or final order for payment of amount including interest thereon
19(21) The tribunal is required to send copy of every order by it to the applicant and
the defendant.
19(22) Issue a Certificate of Recovery to the recovery officer for recovery of the
amount of
debts.
19(23) Sending Certificate of Recovery to other tribunals if it is local limits of other
jurisdiction
19(24) Application received by the tribunal for recovery of debt shall be disposed of
finally
within 180 days
19(25) The tribunal may make such orders and give such directions as may be
necessary
Appeal to the Appellate Tribunal
1. Any person aggrieved by the order passed by DRT, may appeal to an Appellate
Tribunal.
2. The appeal is required to be filed within 45 days from the date on which copy of the
order is received. At the time of filing appeal Section 21 of the DRT Act 75% of the
amount shown as due in the order required to be deposited by the appellant.
3. Appellate Tribunal should disposed off the appeal within 6 months.
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Unit – 32 : Recovery Of Debts Determined By Tribunal and Miscellaneous
Provisions
Review of the Order/Recovery Certificate – within 60 days of passing the order or issuing
the certificate.
A company is under winding up process. Whether High Court permission is required to a
Bank to proceed against it before DRT - No, as the DRT Act being a special Law having
overriding effect over other laws.
Recovery Officers appointed under DRT Act can attach and sale movable as well as
immovable property of the person against whom order is passed even it the property is
not charged to the creditor.
If the recovery certificate has clerical / arithmetical mistake Presiding Officer of the
Tribunal can correct the same.
Unit – 33 : The Bankers’ Books Evidence Act 1891
Certified Copy means when the books of the bank
Maintained in Written Form, a copy of any entry in such books together with a certificate
written at the foot of such copy mentioning that
1. it is true copy of such entry
2. that such entry made in ordinary course of business
maintained in Electronic Form
maintained in Mechanical Form
Unit – 34 : Lok Adalats
LOK ADALATS
Lok Adalt is similar to a civil court which can be organized by the State Authority, the
Distt. Authority, the Supreme Court Legal Service Committee or High Court Legal Services
Committee, at such intervals and places as deemed appropriate. The Lok Adalts are
created under Legal Services Authority Act 1987.
Jurisdiction and types of case : A Lok Adalt has jurisdiction to determine and arrive at a
compromise or settlement between the parties to the dispute. It deals with the cases
where (a) the parties to the dispute agree to refer the issue to Lok Adalt; (b) one of the
parties approaches the Lok Adalt and Lok Adalt is satisfied that there are chances of
settlement. In such case, the Adalt issues notice to the other party; (c) in the opinion of
the Lok Adalt, the cognizance of the dispute can be taken. Cases that cannot be taken
up: The offences, which are compoundable under any Law, cannot be brought within the
purview of the Lok Adalt.
This means that the Lok Adalt has no authority of its own to pass judgements.
Awards of Lok Adalt: Their awards are in the form of consent decrees. NO appeal lies
against such Awards which is binding on all parties.
Procedure and powers: Civil Procedure Code is applicable which means the Lok Adalt can
send summons, take evidence on oath, initiate exparte proceedings, and determine court
procedures. Where compromise is not reached: The case shall be returned back to the
court from which the reference was received for continuing with the case, there.
1. RBI GUIDELINES ON LOK ADALTS With a view to making increasing use ;of the forum
of Lok Adalats to settle banking disputes involving smaller amounts, RBI during April
2001 advised banks and financial institutions to follow the following guidelines for
implementation: Amount - Cases involving an amount up to Rs.20 lakh (RBI enhanced it
from Rs.5 lac, Aug 03, 2004) may be referred to Lok Adalats.
2. Borrowers : All NPA accounts (other than time barred), both suit filed and non-suit
filed, which are in "doubtful" and "loss" category. No cut off date is suggested since Lok
Adalat is an on-going process.
3. Settlement Formula : The settlement formula would be flexible. Certain essential
parameters, as under, should be kept in view:
a. A decree should be sought from the Lok Adalat for the principal amount and interest
claimed in the suit, and after full payment of decree amount, a discharge certificate
should be issued by the bank / financial institution.
b. The repayment period should be within one to three years.
c. The negotiated agreement with the borrower should contain a default clause in terms
of which if borrower does not pay installments due regularly, within the repayment
period, entire debt will fall due for payment & bank may initiate legal proceedings.
d. The Officers representing the institutions should have sufficient powers to accept the
compromises worked out within the policy framework laid down by the Board of Directors
of each institution, while attending Lok Adalat and should respond pro-actively to the
suggestion of the Presiding Officer of the Lok Adalat.
DRT LOKADALATS
Banks can take up matters where outstanding exceed the ceiling of Rs.20 lac, with Lok
Adalats organised by the Debt Recovery Tribunals / Debt Recovery Appellate Tribunals.
Supreme Court has suggested that personal loan cases up to Rs.10 lac should preferably
settled through Lok Adalats.
Organisational arrangements
The individual banks and fmancial institutions should be more pro-active and should take
the responsibility of organising Lok Adalats. The institutions should get in touch with
State / District / Taluk level Legal Services Authorities for organising Lok Adalats. The
banks should report the progress to RBI, at quarterly intervals within one month from the
quarters ending March, June, September and December. Reserve Bank of India monitors
the progress made by the institutions in effecting recovery under the scheme.
Unit – 35 : Preamble, Extent and Definitions
The agencies appointed under Consumer Protection Act are quasi-judicial in nature
Consumer Protection Act is not enacted to protect the manufacturing conditions of the
Industries.
Voluntary Consumer association can file a complaint on behalf of consumer.
A consumer who has purchased goods for resale, cannot file complaint.
‘A’ has purchased a draft from a bank favoring ‘B’. The draft is last in transit and for
duplicate draft in lieu for first bank need some formalities to be completed by ‘A’. Can ‘B’
file a consumer case against the formalities as at is delaying payment to him.
No, as he is not consumer of the bank and is not taking any service from the bank.
“Complainant “ means
i. a consumer
ii. any voluntary consumer association
iii. the Central Govt / state Govt.
iv. one or more consumers
v. in case of death of parnter, his legal hair or representive.
Complaint means
1. an unfair trade practice or a restrictive trade practice.
2. the goods brought are defective
3. the services availed, hired suffer from deficiency
4. over priced
“Consumer” means any person who,
1. buys any goods for a consideration which has been paid or promised to be paid
2. under any system of deferred payment
3. includes any user of such goods
4. hires or avails any service
Consumer Dispute means a dispute where the person against whom complaint has
been made, denies or disputes the allegations contained in the complaint
Defect means any fault, imperfection, shortcoming or inadequacy in the quality,
quantity, potency, purity or standard.
Deficiency = Defect
Unit – 36 : Consumer Protection Councils
District CPC
Chairman – Collector of the district.
Meeting at least once in a year
State CPC
Chairman – Minister in charge of the consumer affairs in state govt.
Members – not exceeding 10 appointed by centre govt.
Meeting at least Twice in a year
National CPC
Chairman – Minister in charge of the consumer affairs in central govt.
Meeting at least Twice in a year
Unit – 37 : Consumer Disputes Redressal Agencies
District State National
Established by State Govt State Govt Central Govt
President
(Qualified to
be)
District Judge High Court Supreme Court
Other
Members
(One Woman)
2 2 2
Member
Qualification
35 years of age
Bachelor’s Degree
Term For a term of 5
years or up to the
age of 65 years
For a term of 5
years or up to the
age of 67
years
For a term of 5
years or up to the
age of 70 years
Jurisdiction Does not exceed
Rs. 20 Lakhs.
Rs.20 Lakhs -
Rs.1 Crore
Appeal against
the order of
District Forum
Exceeds Rs. 1
Crore Appeal
against the order
of the
State Commission
Admissibility within 21 days
from the date of
receipt
Once the complaint
admitted to District
forum, cannot be
transferred to any
other court or
tribunal
Appeal
(50%
amount or
whichever is
less)
Appeal to state
commission:
Payment of
amount : 20,000
Appeal to
National
Commission :
Payment of
amount:
Rs. 35,0000
Appeal to Supreme
Court : Payment :
Rs. 50,000
Dismissal of
Frivolous
complaints
If the district forum, state commission, national commission finds that
complaint instituted before it is frivolous, it shall dismiss the
complaint. And order the complainant to pay Rs. 10,000
Penalties Where trader or a person against the whom the complaint is made
fails or omits to comply with any order made by the commissions, he
shall be punishable with imprisonment for a term 1 month to 3 years
or with fine Rs. 10,000 or with both
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Unit – 38 : Limitations of Suits, Appeals and Applications
It is absolutely necessary that every suit or application or appeal shall have to be made within
the period of limitation. Section 3 of the Limitation Act declares that every suit instituted,
appeal preferred, and application made after the prescribed period shall be dismissed
although limitation has not been set up as a defence. A suit is instituted when the plaint is
presented to the proper officer in the court. In the case of set off or counterclaim, they shall
be treated as a separate suit and shall be deemed to have been instituted:
(a) in the case of a set off, on the same date as the suit in which the set off is pleaded;
(b) in the case of a counterclaim, on the date on which the counter-claim is made in court.
Computation of the period of limitation
(a) When the period of limitation expires on a day when the court is closed, the suit, appeal
or
application may be instituted, preferred or made on the day when the court reopens.
(b) Any appeal or any application other than execution petitions may be admitted after the
prescribed period, if the appellant or applicant makes out sufficient cause for not preferring
the appeal or application within the period of limitation.
(c) In computing the period of limitation, the day from which such period is to be reckoned,
shall be excluded. The computation of the period of limitation for filing appeal shall exclude
the
day on which the judgment complained was pronounced and the time taken for obtaining a
copy of the decree, sentence or order appealed. Time required for obtaining a copy of the
order or award shall be excluded while computing the time limit for filing revision or review
application or an application to set aside the award.
(d) For an application for execution of decree, the period during which the institution or
execution has been stayed by injunction or order, the day on which the order was issued or
made and the day on which it was withdrawn shall be excluded.
(e) For filing any suit of which notice has to be given, or for which the previous consent or
sanction of the Government or any other authority is required, in accordance with the
requirements of any law for the time being in force, the period of such notice, or the time
required for obtaining such consent or sanction shall be excluded.
(f) In computing the period of limitation for any suit, the time during which the defendant has
been absent from India and from the territories outside India under the administration of the
Central Government shall be excluded.
ACTS GIVING RISE TO FRESH PERIOD OF LIMITATION
There are two instances which will give rise to fresh period of limitation. In these cases the
period of limitation will be computed as if the starting point is the happening of the instances.
1. Where before the expiration of the prescribed period for a suit or application in respect of
any property or right, an acknowledgement of liability in respect of such property or right has
been made in writing signed by the party against whom such property or right is claimed, or
by any person through whom he derives his title or liability, a fresh period of limitation shall
be computed from the time when the acknowledgement was so signed.
2. Where payment on account of a debt or of interest on a legacy is made before expiration
of the prescribed period by the person liable to pay the debt or legacy or by his agent duly
authorised in this behalf, a fresh period of limitation shall be computed from the time when
the payment was made. In this case 'debt' does not include money payable under a decree or
order of a court.
Unit – 39 : Income Tax, Commodity Transaction Tax, Service Tax
INCOME TAX
The law relating to taxation of income is governed by Income Tax Act 1961. This Act
envisages taxation of income of an assessee on the basis of his
(a) Residence;
(b) Place of source of income.
Meaning of Income
The definition of 'income' is inclusive and not exhaustive in nature. Thus no precise definition
as to what constitutes income.
Assessee and Assessment year
The income accruing, or arising, to a person (called 'Assessee') is taxed on the basis of
'Assessment Year'. The term Assessment Year represents the period of 12 months beginning
from 1st April every year. The income arising in the 'previous year' is taxed in the assessment
year. Previous year is the financial year immediately preceding the assessment year of an
assessee.
Under IT Act - Other applications are:
(a) Quoting PAN for opening a/c, purchase of DD, Term Deposit above Rs. 50,000.
(b) Declaration in Form 60 and 61.
(c) Repayment of T. Deposit above Rs. 20,000 by pay-order
(d) Reporting high value transactions - above Rs. 1 lakh
Income Tax Act, 1961 envisages taxation of income under following heads:
1. Salaries
2. Income from house property
3. Profits and gains from business or profession
4. Capital gains
5. Income from other sources
SERVICE TAX
Service Tax was introduced by Finance Act, 1994.
Initially it covered just 3 services, viz., telephone, general insurance and stock broking.
No Separate Act exists for Service Tax.
Over the years, amendments have been made to the Finance Act and various other services were
brought within the ambit of service tax.
There will be no service tax if the turnover does not exceed Rs. 10 lakh. If the turnover exceeds this
limit, the person providing the services covered will have to pay service tax.
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JAIIB - Legal & Regulatory Aspects of Banking - Mod - D : Commercial
Laws with Reference to Banking Operations
Unit – 40 : Meaning and Essentials of A Contract
MEANING OF CONTRACT
Contract means an agreement enforceable by law. It has two major constituents:
1. An agreement between two persons or more.
2. The agreement must be enforceable by law (i.e. the rights and obligations
arising out of it).
KEY COMPONENTS TO FORM A CONTRACT
When one person signifies to another person, his willingness to do or not to do
something, with a view to obtaining the consent of that other person, he is said to
make a proposal.
When a person to whom the proposal is made, signifies his assent (consent), the
proposal is said to be accepted.
A proposal becomes a promise when it is accepted. The person making the
proposal is called the 'promisor'. The person accepting the proposal is called
'promisee'.
ESSENTIALS OF A VALID CONTRACT
Proposal and Acceptance
There must be a lawful proposal by one party and the other party must accept the
proposal.
An Agreement may be Oral or Written
While an agreement may be Oral or Written, under certain laws an agreement is
required to be in writing only and is also required to be registered and attested. If
such formalities are not complied with, then the agreement cannot be enforced
before a court of law.
The Contract Act defines consideration as under.
When, at the desire of the promisor, the promisee or any other person
• has done or abstained from doing, or
• does or abstains from doing, or
• promises to do or to abstain from doing something.
Unit – 41 : Contracts of Indemnity
A Contract of Indemnity is a contract by which one party promises to save the
other from loss likely to be caused to him. This loss can be, either by the conduct
of the promisor himself or by the conduct of any other person.
RIGHTS OF INDEMNITY HOLDER
The indemnity holder (i.e. the promisee or the person who is indemnified) has the
following rights when sued (i.e. when a legal action is taken against the person
who has indemnified).
The promisee is entitled to recover from the promisor, in respect of the matter to
which the promise to indemnify applies:
1. All damages which he may be compelled to pay in any suit.
2. All costs which he may be compelled to pay in any suit.
3. All sums paid in compromise, not contrary to indemnity.
Unit – 42 : Contracts Of Guarantee
A 'Contract of Guarantee' is a contract to perform the promise, or discharge the
liability, of a third person in case of latter's default. A guarantee may be either
oral or written. The question whether a particular contract is a contract of
indemnity or guarantee has to be decided by examining the language of the
documents entered into between the parties and the nature of transaction.
PARTIES TO THE CONTRACT
The person who gives the guarantee is called the 'surety'.
The person in respect of whose default the guarantee is given is called the
'principal debtor'.
The person to whome the guarantee is given is called 'creditor/beneficiary'.
Unit – 43 : Contracts Of Bailment
A 'bailment' is the delivery of goods by one person to another for some purpose.
When the purpose is accomplished, the goods are to be returned or otherwise
disposed of according to the direction of the person delivering them.
The person delivering the goods is called the 'bailor'.
The person to whom they are delivered is called the 'bailee'.
MEANING OF BAILMENT
When one person delivers to another, certain goods to be used for a certain
purpose, the contract is known as a contract of bailment. Here, the contract will
specify the time for which the goods will remain with the person taking them.
Also, the person who gives the goods can direct the other either to return the
goods after the requisite time has expired or, direct him to dispose off the goods
in a particular manner.
BAILOR BOUND TO DISCLOSE TO BAILEE
The bailor is bound to disclose to the bailee faults in the goods bailed
(a) of which the bailor is aware,
(b) and which materially interfere with the use of them,
(c) or expose the bailee to extraordinary risk;
and if he does not make such disclosure, he is responsible for damage arising to
the bailee directly from such faults. If the goods are bailed for hire, the bailor is
responsible for any damage whether he was aware of the existence of such faults
in the goods bailed or not.
Unit – 44 : Contracts of Pledge
The bailment of goods as security for payment of a debt or performance of a
promise is called 'pledge'. The bailor is in this case called 'pawnor'. The bailee is
called 'pawnee'.
NATURE OF PLEDGE
(a) If the pawnor makes default in payment of the debt in respect of which the
goods were pledged, the pawnee may bring a suit against the pawnor and retain
the goods pledged as a security (or) he may sell the goods pledged, after giving
notice of the sale to the pawnor.
(b) If the proceeds of such sale are less than the amount due, in respect of the
debt, the pawnor is still liable to pay the balance. If the proceeds of the sale are
greater than the amount so due,
the pawnee shall pay over the surplus to the pawnor.
Unit – 45 : Contracts Of Agency
An agent, is a person employed to do any act for another person or to represent
another person in dealings with some third person.
The person for whom such act is done (or who is represented) is called the
principal.
MEANING OF AGENCY
The person should be authorised to do an act for a person in such a manner, as
to bind that person, i.e. to make him answerable for such acts done on his behalf.
The agent creates contractual relations between two separate persons when he
enters into a contract on behalf of one of the parties.
NORMAL RULES OF CONTRACT
The contract between the principal and his agent is a contract in itself and that is
also governed by the normal rules of contract.
PERSONS TO BE MAJORS AND OF SOUND MIND
Any person who is a major according to the law of which he is subject, and who is
of sound mind, may employ an agent. Any person can become an agent, if he is a
major and of sound mind.
CONSIDERATION
No consideration is necessary to create an agency.
AUTHORITY OF AN AGENT
The authority of an agent may be expressed or implied. An authority is said to be
expressed, when it is given by words spoken or written. An authority is said to be implied
when it is to be inferred from the circumstances of the case.
Unit – 46 : Meaning and Essentials Of a Contract Of Sale
MEANING OF CONTRACT OF SALE OF GOODS
A contract of sale of goods is a contract under which the seller transfers or agrees
to transfer the property in goods to the buyer for a price. When the property in
the goods is transferred from the seller to the buyer, the contract is called a sale.
FEATURES OF CONTRACT OF SALE OF GOODS
(a) Bilateral: contract: A sale involves two persons - The buyer and the seller.
(b) Money consideration: The consideration for a sale of goods must be money,
called the price
payable for the transfer of goods. It cannot be a barter, where goods are
exchanged for goods.
(c) Moveable property: The Sale of Goods Act covers only the sale of moveable
goods and not immoveable property like land and building. The contracts relating
to transfer of immoveable property are governed by the Transfer of Property Act
and not Sale of Goods Act.
(d) No particular form: The Sale of Goods Act does not make it mandatory to
enter into written contracts for the sale of goods. However, if any particular law
provides for sale of certain types of goods to be done by a contract in writing,
then that law has to be complied and the contract has to be in writing.
The contract may be oral or written or can be implied by the conduct of the
parties. A contract of sale is made by an offer to buy or sell goods for a price and
the acceptance of such offer.
The contract may provide for:
• Immediate delivery of the goods immediate payment of the price.
• For the delivery or payment by instalments.
• Postponement of delivery or payment.
Unit – 47 : Conditions and Warranties
CONDITION
If the stipulation agreed to between the parties is essential to the main purpose of
the contract and is of such a nature that if the stipulation is breached (i.e.
violated/not complied) then a party to the agreement would have a right to treat
the contract as repudiated (cancelled) then such a stipulation is known as a
condition.
WARRANTY
On the other hand, a warranty is a stipulation collateral to the main purpose of
the contract. The breach of such a stipulation gives rise to a claim for damages
only. The parties cannot reject the goods and treat the contract as repudiated.
1. In a contract of sale of goods conditions and warranties may be either
expressed or implied.
2. Expressed conditions and warranties are those, which are expressly stated in
the contract.
3. Implied conditions and warranties are those, which the law implies into every
contract of sale of goods.
4. However, such implied conditions and warranties can be excluded by the
parties to the contract if they agree expressly on these issues.
Caveat Emptor (Buyer beware)
Caveat means a warning, a caution. According to the doctrine of caveat emptor,
the person who buys goods must keep his eyes open, his mind active and be
cautious while buying the goods. In other words, the buyer must examine the
goods thoroughly. Later on, if the goods do not serve his purpose or he depends
upon his own judgement and he makes a bad choice, he cannot blame the seller
for selling him such goods. The Sale of Goods Act also enshrines doctrine by
stating that 'There is - ( implied warranty or condition as to the quality or fitness
of goods for any particular purpose' except in cases specifically explained above.
Unit – 48 : Unpaid Seller
The seller of goods is deemed to be an 'unpaid seller',
(a) When the whole of the price has not been paid or tendered;
(b) When the payment for the goods is received in the form of a cheque or other
negotiable instrument and the same is dishonoured for financial or other reasons
Unpaid seller's rights against the goods
(a) a lien on the goods for the price while he is in possession of them;
(b) in case of insolvency of the buyer, a right of stopping the goods in transit after
he has parted with the possession of them;
(c) a right of resale.
If the property in goods has not passed to the buyer, the unpaid seller also has a
right of withholding delivery of the goods.
Unpaid seller's lien
The unpaid seller of goods (who is in possession of them), is entitled to retain
possession of them until payment of the price is made in the following cases:
(a) if the goods have been sold without any stipulation as to credit;
(b) if the goods have been sold on credit, but the term of credit has expired;
(c) if the buyer becomes insolvent.
The unpaid seller of goods loses his lien thereon:
(a) when he delivers the goods to a carrier or other bailee for the purpose of
transmission to the buyer without reserving the right of disposal of the goods;
(b) when the buyer or his agent lawfully obtains possession of the goods;
(c) by waiver of lien.
Unit – 49 : Definition, Meaning and Nature Of Partnership
Partnership is the relation between persons who have agreed to share the profits
of a business carried on by all or any of them acting for all.
Persons, who have entered into partnership with one another are called
individually 'partners' and collectively a 'firm' and the name under which their
business is carried on is called the firm's name.
The contract between the partners may be oral or written.
• The partnership must be formed to carry on some lawful business.
• The business must be carried on to earn and share the profits and returns of the
business.
• There must be a mutual relation of 'agency' between the partners.
TYPES OF PARTNERSHIP
1. Partnership at will
Where no provision is made by a contract between the partners for the duration
of their partnership or for the determination (i.e. the termination or end) of the
partnership – the partnership is known as 'partnership at will'
2. Partnership for a fixed period
When two or more persons enter into a partnership agreement for a fixed period
of time, it is known as a partnership for a fixed term
3. Particular partnership
Such partnership is entered into, for completing a particular job or assignment
taken up by two or more persons jointly and to share the profits arising there
from.
Unit – 50 : Relations of Partners to One Another
The partners should not make secret profits. They have to be just and faithful to
each other.
They must render true accounts of the business and full information of all things
affecting the firm to all the partners or their legal representatives.
Every partner is bound to indemnify the firm for any loss caused to the
partnership firm by his fraud, in the conduct of the business of the firm.
The partners of a firm can decide their mutual rights and duties and change them
from time to time with the consent of all the partners. This may be implied (i.e.
understood by the dealings between them/ with outsiders) or may be expressed
(i.e. specifically discussed and made clear).
THE CONDUCT OF THE BUSINESS
Subject to a contract between the partners (i.e. the agreement and understanding
arrived between themselves)
(a) every partner has a right to take part in the conduct of the business;
(b) every partner is bound to attend diligently to his duties in the conduct of the
business;
(c) any difference arising as to ordinary matters connected with the business can
be
decided by a majority of the partners and every partner has a right to express his
opinion before the matter is decided. However, no change can be made in the
nature of the business without the consent of all the partners.
(d) every partner has a right to have access to and to inspect and copy any of the
books of the firm.
MUTUAL RIGHTS AND LIABILITIES
Subject to a contract between the partners (i.e., the agreement and
understanding arrived between themselves),
(a) a partner is not entitled to receive remuneration for taking part in the conduct
of the business;
(b) the partners are entitled to share equally in the profits earned and liable to
contribute equally to the losses made by the firm;
(c) where a partner is entitled to interest on the capital subscribed by him such
interest is to be paid only out of profits of the firm;
(d) Interest at 6 per cent on extra amount paid by the partner;
(e) the firm has to indemnify a partner in respect of payments made and liabilities
incurred by him:
(i) in the ordinary and proper conduct of the business, and
(ii) in doing such act in an emergency, for the purpose of protecting the firm from
loss;
(f) similarly, a partner has to indemnify the firm for any loss caused to it by his
wilful neglect in the conduct of the business of the firm.
Unit – 51 : Relations of Partners to Third Parties
An act done by a partner to carry on the kind of business done by the firm (in the
usual way) binds the firm. This authority of a partner to bind the firm is called his
'implied authority'.
A partner is the agent of the firm for the purpose of the business of the firm.
An act done by a partner to carry on the kind of business done by the firm (in
the usual way) binds the firm. This authority of a partner to bind the firm is
called his Implied Authority. The partners in a firm may by mutual agreement
amongst themselves, extend / restrict the implied authority of any partner.
Every partner is liable jointly with all other partners and also severally for all
acts of the firm while he is a partner.
Holding Out when a person who is not at all partner in a firm, either
represents himself, or knowingly permit himself to be represented , as a
partner in a firm and as a result of this, he induces others to give credits to
the firm, he is known as a partner holding out.
A transfer by a partner of his interest in the firm does not entitle the person
to whom the interest is transferred (transferee) to interfere in the conduct of
the business but entitles the transferee only to receive the share of profits of
the transferring partner and the transferee has to accept the account of
profits agreed by the partners.
The implied authority of a partner does not empower him to
(a) submit a dispute relating to the business of the firm to arbitration (i.e. for
settlement by an independent person other than the parties to the dispute);
(b) open a banking account on behalf of the firm in his own name;
(c) compromise or relinquish (give up) any claim by the firm;
(d) withdraw a suit or proceeding filed on behalf of the firm;
(e) admit (accept) any liability in a suit or proceeding against the firm;
(f) acquire immoveable property on behalf of the firm;
(g) transfer immoveable property belonging to the firm; or
(h) enter into partnership on behalf of the firm.
Unit – 52 : Minor Admitted to the Benefits of Partnership
The minor has a right to share the property and profits of the firm as may be
agreed upon by the partners and the minor can have access to the accounts of
the firm.
Only the minor's share is liable for the acts of the firm but the minor is not
personally liable for the acts of the firm and the liabilities arising there from.
The minor may or may not take legal action (by filing suit) against the partners
for payment of his share of the property or profits of the firm except when
severing (ending) his connection with the firm.
At any time within six months of his attaining majority, or of his obtaining
knowledge that he had been admitted to the benefits of partnership (whichever
date is later) the person may give public notice to the effect whether he has
elected to become a partner or not.
This notice determines his position as regards the firm.
However, if he fails to give such notice, he shall become a partner in the firm on
the expiry of the said six months.
Where such a person becomes a partner (either because he elected to do so or
because he failed to take a decision and six months have elapsed since he
attained majority):
(a) his rights and liabilities as a minor continue up to the date on which he
becomes a partner but he also becomes personally liable to third parties for all
acts of the firm done since he was admitted to the benefits of partnership, and
(b) his share in the property and profits of the firm shall be the share to which he
was entitled as a minor.
If such person elects not to become a partner:
(a) his rights and liabilities shall continue to be those of a minor up to the date on
which he given public notice that he does not want to become a partner;
(b) his share shall not be liable for any acts of the firm done after the date of the
notice; and
(c) he shall be entitled to sue the partners for his share of the property and
profits.
Unit – 53 : Dissolution Of Firm
A firm can be dissolved with the consent of all the partners or in accordance with
a
contract between the partners.
COMPULSORY DISSOLUTION
A firm is dissolved:
(a) if all the partners (except one) are adjudicated insolvent; or
(b) by the happening of any event which makes it unlawful for the business itself
to be carried on or the event makes the business unlawful if it carried on in
partnership.
However, if the partnership firm is carrying on more than one separate
businesses, the illegality of one or more does not cause the dissolution of the
firm. The firm can continue to carry on its lawful adventures and undertakings.
54.4 DISSOLUTION ON THE HAPPENING OF CERTAIN CONTINGENCIES
A firm is dissolved in the following circumstances. To avoid dissolution in these
cases, the partners should expressly agree that the firm shall not be dissolved in
these circumstances:
(a) if the partnership is constituted for a fixed term, then by the expiry of that
term;
(b) if the partnership is constituted to carry out one or more adventures or
undertaking, then by the completion thereof;
(c) by the death of a partner; and
(d) by the adjudication of a partner as an insolvent.
54.5 DISSOLUTION BY THE COURT
At the suit of a partner the court may dissolve a firm on any of the following
grounds:
(a) that a partner has become of unsound mind;
(b) that a partner (other than the partner suing for dissolution) has become
permanently incapable of performing his duties as partner;
(c) that a partner (other than the partner suing) is guilty of conduct which is likely
to affect prejudicially the carrying on of the business;
(d) that a partner (other than the partner suing) wilfully or persistently commits
breach of agreements in relation to the management of the affairs of the firm or
the conduct of its business or it is not reasonably practicable for the other
partners to carry on the business in partnership with him, because of his conduct
with respect to the business;
(e) that a partner (other than the partner suing) has transferred the whole of his
interest in the firm to a third party;
(f) that the business of the firm cannot be carried on except at a loss; or
(g) on any other ground which renders it just and equitable that the firm should
be dissolved.
Unit – 54 : Effect of Non-Registration
The partner's may or may not enter into a partnership deed and may decide to
have an oral partnership if they have a strong understanding amongst
themselves.
Even if a partnership deed is entered into by the partners they may not opt for
registration of the partnership firm.
The provisions of the Section 69 are briefly stated hereunder:
A partner of an unregistered firm cannot enforce by way of a suit, any right
available to him under the Partnership Act or a right conferred by a contract
amongst the partners against the partnership firm or any partner thereof.
Similarly an unregistered firm cannot enforce by way of a suit, any right arising by
a contract against any third party.
Due to the provision which is stated in the Section 69, a majority of the
partnership firms decide to register the firm to avoid future hassles and
complexities on solving issues amongst the partners as well as with third parties.
Unit – 55 : Definition and Features of Company
A company formed and registered under this Act, or an existing company'. An
existing company means a company formed and registered under any of the
former Companies Acts.
FEATURES OF A COMPANY
(a) Registration
A company has to be compulsorily registered under the Companies Act, 1956.
(b) Artificial Legal Person
A company is an artificial legal person which is created by law and can be
dissolved by the law alone. It is invisible, intangible and exists only in the eyes of
the law. It enjoys many rights of a natural person. A company may enter into
contracts in its own name, and it can acquire and dispose property and can be
fined under the provisions of the law for violation of law
(c) Independent corporate personality
A company, after incorporation is in law a single person, it has a distinct legal
personality. By incorporation under the Companies Act, 1956 the company is
vested with a corporate personality which is independent of and different from the
members who compose it.
(d) Limited liability
Limitation of liability is an advantage of incorporation of a company. Since under
company law, the existence of a company is different from its own members and
directors and a company leads its own business existence and since it is itself the
owner of its assets and has its own liabilities, the members of the company are
not bound to contribute anything more than the nominal value of the shares held
by them and their liability ends there even though there may be creditors who
may be claiming crore of rupees from the company.
(e) Perpetual succession
An incorporated company never dies. It is a legal entity with perpetual succession.
The insolvency or death of members does not affect the continued existence of
the company. In spite of a total change in the members of the company, the
company will remain the same entity. Members may come and members may go
but the company goes on forever.
(f) Separate property
On incorporation the company becomes the owner of its capital and assets. The
company is capable of holding property in its own name.
(g) Transfer of shares
The Companies Act, 1956 states that shares or other interest of any member in a
company shall be moveable property, transferable in the manner provided by the
articles of association. A shareholder may sell his shares in the open market and
get back his money without changing the capital of the company.
(h) Common Seal
As a company is an artificial legal person, it is not capable of signing documents
for itself. Law provides for a common seal with the name of the company
engraved on it as a substitute for its signature. Any document bearing the
common seal of the company is legally binding on the company. However a
common seal cannot be affixed by any director.
(i) Corporate veil
Although a company is a separate legal entity distinct from shareholders in reality
it is an association of persons who are the beneficial owners of all the corporate
property.
DISTINCTION BETWEEN A COMPANY AND PARTNERSHIP
(a) Registration
Registration of a company is compulsory under the Companies Act, 1956.
Registration of a partnership is not compulsory under the Indian Partnership Act,
1932.
(b) Number of members/partners
Minimum of two and maximum of fifty in case of a private company and a
minimum of seven and no limit on maximum number of members in case of public
company. Minimum number of two persons is required to form a partnership. The
maximum number is ten for banking business and twenty for any other business.
(c) Legal status
A company has a legal existence separate from its own members and is viewed as
a separate legal person from its members. A firm does not have, a separate legal
existence different from its own partners.
(d) Ownership of property
The property of the company is owned by the company itself and not its members
as the company has a separate legal existence. The property of the firm is owned
by the partners themselves and not by the firm as a firm does not have a
separate legal existence different from its own partners.
(e) Management
The company is managed by a board of directors elected by the shareholders. A
partnership is managed by the partners except the dormant and sleeping
partners.
(f) Perpetual existence
A company has a perpetual existence.
A partnership does not have a perpetual existence.
(g) Contracts
A member of the company can contract with the company. A partner cannot
contract with the partnership firm.
(h) Liability
Except in case of a company with unlimited liability, the liability of the members of
the company is limited. The liability of partners in a partnership is unlimited.
(i) Transfer
A transferee of shares in a company becomes a member of the company and the
consent of all members is not required to become a member. A person can
become a partner in a partnership firm with the consent of all the partners.
(j) Death
The death of any or all members of the company does not determine (end) the
existence of the company. Death of a partner dissolves the partnership unless the
partnership deed provides otherwise.
(k) Agency
The members of a company are not the agents of each other or of the company.
Every partner of a firm is an agent of the other.
Unit – 56 : Types Of Companies
CLASSIFICATIONS OF COMPANIES THE BASIS MODE OF
INCORPORATION
1. Statutory Company
2. Registered under the Companies Act, 1956
CLASSIFICATIONS OF COMPANIES ON THE BASIS OF LIABILITY
1. Company limited by shares
2. Company with unlimited liability
3. Company limited by guarantee
CLASSIFICATIONS OF COMPANIES ON THE BASIS OF PUBLIC INTEREST
1. Private company
2. Public company
3. Government company
4. Foreign company
Unit – 57 : Memorandum Of Association & Articles Of Association
Memorandum of Association
The first step in the formation of a company is the preparation of the
memorandum of association. It is a document of great significance as it embodies
the fundamental rules regarding the constitution and scope of activities of a
company. The purpose of memorandum of association among others is to enable
the member's creditors and those who deal with the company to know the
permitted scope of its activities.
Various clauses of the memorandum of association :
a. Name clause
b. Registered office clause
c. Objectives Clause
d. Liability clause
e. Capital clause
f. Association or subscription clause
ARTICLES OF ASSOCIATION
Articles of Association is the second important document of a company. It consists
of a set of rules/ regulations and bye laws made by the company for internal
management of the company and for carrying out the objects of the company
embodied in its memorandum of association.
The Companies Act, 1956 requires that the articles of association must be filed
together with the memorandum of association by the following kind of companies:
• Unlimited company
• Company limited by guarantee
• Private company limited by shares
Unit – 58 : Doctrines of Ultra vires/Constructive Notice/Indoor
Management
Doctrines of Ultra vires
When a company exercises its powers to promote and/or realise any of its
objectives stated in the memorandum of association, it is intra;vires (i.e. within
the powers of) the company. However, any other act of the company which is
outside the scope of the objects clause of the memorandum of association is
known as ultra vires (i.e. beyond the powers of) the company.
Constructive Notice
It is the duty of every person who deals with a company to inspect its public
documents, i.e. its memorandum of association and articles of association and
make sure that his contract is in accordance with their provisions.
However, whether a person has actually read them or not he shall be in the same
position as if he had read them.
In other words, he will be presumed to have knowledge of the contents of these
documents and to have understood them according to their proper meaning. This
kind of presumed notice is known as constructive notice. This is known as the
doctrine of constructive notice.
Indoor Management
A person who deals with the company is deemed to have read and understood
the registered public documents such as the memorandum of association and
articles of association, etc., to see that his contract with the company is not
inconsistent with them.
But he is not bound to inquire into the regularity of the company's internal
functioning or the internal management of the company. Hence if his contract is
consistent with the public documents, the company is bound. He will not be
affected by any irregularity in the internal management of the company. This is
known as the doctrine of indoor management.
Unit – 59 : Membership of Company
According to the Companies Act, 1956 the term member of a company means:
• The subscribers of the memorandum of association.
• Every other person who agrees in writing to become a member of a company
and whose name is entered in its register of members.
• Every person holding equity share capital of a company and whose name is
entered as beneficial owner in the records of the depository shall be deemed to be
a member of the concerned company.
VARIOUS MODES OF BECOMING A MEMBER OF A COMPANY
(a) By Subscribing to Memorandum of Association
(b) Membership by Allotment of Shares
(c) Transfer of Shares
(d) Transmission of Shares
(e) Membership by Acquiescence
(f) Joint Membership
Who can be Members of a Company
1. Any person competent to Contract - Every person who is competent to
contract can become member of company
2. Minor and persons of Unsound Mind – cannot be member, as they are
incompetent to contract
3. Company as Member – As a company is a legal person it can become a
member of another company.
4. Partnership Firm – Since a partnership is not a legal person, it cannot buy
shares in its own name and thus become member of the company.
5. Registered Society – can hold shares in a company
6. Non-Residents – A NRI cannot become a member without complying with
the requirements of the FEMA 1999 and without permission of RBI.
7. Fictitious Persons – Any person whom makes an fictitious name an
application to a company, induces a company to allot or register any transfer of
shares to him or any other person in a fictitious name, shall be punishable with
imprisonment for a term which may extend to 5 years.
CESSATION OF MEMBERSHIP IN A COMPANY
The membership in a company ceases in case of any of the following:
1. If a member transfers his shares to another person.
2. If a member's shares are forfeited.
3. If the shares are sold pursuant to a decree of a Court.
4. If the member surrenders his shares to the company where such surrender is
permitted.
5. If he rescinds the contract to take the shares, e.g. on the ground of
misrepresentation in the
prospectus.
6. If a member is adjudicated insolvent (shares and other properties of an
insolvent vest in the Official Receiver or Assignee).
7. On the death of a member: However, the estate of the deceased member,
remains liable until the shares are registered in the name of his legal
representative.
8. If redeemable preference shares are redeemed.
9. If the company is being wound up. In such a case a member remains liable as
a contributor and is also entitled to share in the surplus assets, if any.
Unit – 60 : Prospectus
PROSPECTUS
The Companies Act, 1956 defines a prospectus as any document described or
issued as a prospectus and includes any notice, circular, advertisement or other
document inviting deposits from the public or inviting offers from the public for
the subscription or purchase of any shares in, or debentures of a body corporate.
Prospectus means a document by which a company solicits funds from the public
for its capital either by way of shares, debentures or deposits.
It is very clear that private companies cannot issue a prospectus to raise funds
from the public. It is prohibited under the articles of association of the company.
It is necessarily the public companies who issue the prospectus.
In the following cases even though shares are offered to the public, issue of
prospectus is not required:
(a) When a person is invited to enter into an underwriting
agreement/arrangement to purchase/subscribe the shares.
(b) When the shares are offered only to the existing shareholders or debenture
holders of the company.
(c) When the shares or debentures offered are in all respect uniform with the
shares or debentures previously issued and listed on a recognised stock exchange.
COMPLIANCE WITH RESPECT TO PROSPECTUS
(a) Time of issue of Prospectus: A prospectus can be issued only after the
incorporation of the
company.
(b) Contents of the Prospectus: Section 56 read with Schedule II of the
Companies Act, 1956
stipulates the mandatory provisions that are to be stated in the prospectus.
(c) Date of publication: Section 55 states that a prospectus must be dated and
this ensures a prima facie evidence of the date of its publication.
(d) Signature of every director on the Prospectus: A prospectus must be signed by
every person
(d) Application form with a Prospectus: Every application form for shares must be
accompanied by a copy of the prospectus except for the application forms issued
to underwriters and existing shareholders and debenture holders.
(f) Statements by expert in Prospectus: A prospectus including a statement
purporting to be made by an expert cannot be issued unless he has given his
written consent to the issue thereof and he has not withdrawn such consent
before the delivery of a copy of the prospectus for registration to the Registrar of
Companies and a statement that he has given and has not withdrawn his consent
as aforesaid appears in the prospectus.
(g) Registration of the Prospectus: Before the issue of a prospectus the same
must be delivered to the Registrar of Companies for registration with the
documents which are stipulated under the Companies Act, 1956, e.g. the consent
of the expert, copy of contracts relating to appointment and remuneration of the
managerial personnel, etc.
Unit – 61 : Directors
The management of the company needs to be entrusted with a professional body,
i.e., the board of directors.
The ownership and management of the company is thus bifurcated.
The board of directors control the day-to-day working and management of the
company as well the long-term strategic planning of the company.
Every public company must have at least three directors.
A public company having
(a) a paid-up capital of Rs. 5 crore or more;
(b) one thousand or more small shareholders can elect a director from small
shareholders.
Unless the articles provide for the retirement of all directors at every annual
general meeting, at least two-thirds of the total number of directors of a public
company, or of a private company which is a subsidiary of a public company, have
to be
(a) Persons whose period of office is liable to determination by retirement by
rotation;
(b) Appointment by the company in general meeting.
A company can have a maximum number of twelve directors and to increase this
number, the approval of Central Government is required.
The board of directors can appoint directors by passing a resolution if such a
power exists in the articles. Such directors are known as additional directors and
they hold office only up to the date of the next annual general meeting of the
company.
Every public company, or a private company which is a subsidiary of a public
company, having a paid-up share capital of Rupees five crore must have a
Managing or Whole time Director or a Manager
Vacation Of Office By Directors
The office of a Director becomes automatically vacant if
he fails to obtain qualification Shares
he is found to be unsound mind by the Court
he is adjudged an insolvent
he is convicted by Court
he fails to pay any call in respect of Shares
he is removed by shareholders by passing resolution.
……………………………………………………………………………………………………………
Unit – 62 : Foreign Exchange Management Act, 1999
FERA: The main objective of the Foreign Exchange Regulation Act, 1973
(FERA) was to:
consolidate and amend the law,
regulate certain payments,
dealing in foreign exchange,
the import and export of currency, for the conservation of the foreign
exchange resources of the country,
and finally the proper utilization of this foreign exchange so as to promote
economic development of the Company.
FEMA: The object of enacting Foreign Exchange Management Act, 1999(FEMA) is
toconsolidate and amend the law relating to foreign exchange with the objective
of facilitating external trade and payments and for promoting the orderly
development and maintenance of foreign exchange market in India.
Regulation and Management of Foreign Exchange
1. Deal transfer any foreign exchange / foreign security to any person other than
an authorised person
2. makes any payment to any person resident outside India.
3. Receive any payment on behalf of any person resident outside India
4. Enter into any financial transaction in India in relation to a right to acquire any
asset outside India by any person.
Powers of RBI with Respect to Authorised Persons
1. To appoint authorised person deals in foreign exchange.
2. RBI has the power to inspect the authorised persons so appointed to ensure
that the said person complies with all the rules
and regulations of RBI.
Contravention, Penalties, Adjudication and Appeals(585)
1. An adjudicating Authority can enquire contravention under FEMA only if
complaint is filed by Central Government.
2. Adjudicating Authority has to endeavour to dispose off the complaints within
one year from the date of receipt of the complaint.
Penalty can be levied up to thrice the sum involved in such contravention where
such amount is quantifiable or upto Rs.2 Lakh. Where the amount is not
quantifiable and where such contravention is a continuing one, further penalty of
Rs.5 thousand per day
Unit – 63 : Transfer Of Property Act, 1882
Mortgage is a transfer of an interest in specific immoveable property as a
security for the repayment of a monetary liability.
The transferor is called Mortgagor. The transferee is called a Mortgagee
Types Of Mortgage
Simple Mortgage does not deliver possession of the mortgaged property
mortgagor himself personally to pay the mortgage
money
in the event of his failing to pay, the mortgagee shall
have right to get the
mortgaged property sold and recover his dues
Mortgage By
Conditional Sale
The mortgagor apparently sells the mortgaged property
to the mortgagee with the condition that on default of
payment on a certain date the sale becomes absolute,
the sale shall becomes void, the buyer(mortgagee) shall
transfer the property to seller(mortgagor)
Usufructuary
Mortgage
Gives possession
To retain such possession until payment of mortgagemoney
To receive rents and profits arising from the property
Appropriate the same towards payment of interest or
mortgage-money or both
English Mortgage The Mortgagor binds himself to repay the mortgagemoney
on a certain date and transfers the mortgaged
property absolutely to the mortgagee
Subject to the condition that he will re-transfer it to the
mortgagor upon payment of the mortgage-money
The power of sale without intervention of Court if
money not paid
Mortgage by
Deposit of Title
Goods
The Mortgagor delivers documents of title
With intent to create a security thereon
The delivery of documents of title is done in a town
specified by state govt.
A mortgage other than a mortgage by deposit title deeds can be effected only in
terms of a mortgage deed duly signed by the mortgagor and attested by at least
two witnesses.
The essentials of valid Equitable Mortgage is debt, deposit of title deeds and
intention as security.
Leases of Immoveable Property
A lease is a transfer of a right to enjoy the property for a certain time on in
perpetuity (that is forever), in consideration of a price paid or promised, to be
given periodically to thetransferor by the transferee.
A lease for Agriculture/manufacturing purpose is deemed to be a year to year
lease. This lease can be terminated by the lessor/lessee by giving 6 months notice
to one another.
A lease for any other purpose is deemed to be a lease from month to month. It
can be terminated by giving 15 days notice to one another.
Unit – 64 : The Right to Information Act, 2005
The Right to Information Act, 2005 was enacted with intent to provide for setting
out the practical regime of right to information for citizens to secure access to
information under the control of public authorities, in order to promote
transparency and accountability in the working of every public authority.
This Act extends to whole of India except the State of Jammu & Kashmir.
Central Government is the appropriate authority if the concerned public authority
is established, constituted, owned, controlled or substantially financed by funds
provided directly or indirectly by that Government or the Union Territory
Administration.
It is the State Government, if the concerned public authority is established,
constituted, owned,
controlled or substantially financed by funds provided directly or indirectly by that
Government.
'Central Information Commission' means the Central Information Commission
constituted by the Central Government.
'Central Public Information Officer' means the Central Public Information Officer
designated by the public authority and includes a Central Assistant Public
Information Officer.
'Information' means any material in any form, including records, documents,
memos, emails, opinions, advices, press releases, circulars, orders, logbooks,
contracts, reports, papers, samples, models, data material held in any electronic
form and information relating to any private body which can be accessed by a
public authority under any law for the time being in force.
'Public authority' means any authority or body or institution of self Government
established:
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by the State Legislature;
(d) by notification issued or order made by the appropriate Government and
includes any
(i) body owned, controlled or substantially financed;
(ii) non-Government organisation substantially financed, directly or indirectly by
funds provided
by the appropriate Government.
'Right to information' has been defined in an inclusive manner. It means the right
to information accessible under this Act which is held by or under the control of
any public authority and includes the right to:
(i) inspection of work, documents, records;
(ii) taking notes, extracts or certified copies of documents or records;
(iii) taking certified samples of material;
(iv) obtaining information in the form of diskettes, floppies, tapes, video cassettes
or in any other electronic mode or through printouts where such information is
stored in computers or in other device.
'State Information Commission' means the State Information Commission
constituted by the State Government under this Act.
Unit – 65 : Right to Information and Obligations of Public Authorities
OBLIGATIONS OF PUBLIC AUTHORITIES
PIOs (Public Information Officers) are officers designated by the public authorities
in all administrative units or offices under it to provide information to the citizens
that request for information under the Act. Any officer, whose assistance has been
sought by the PIO for the proper discharge of his or her duties, shall render all
assistance, whenever demanded.
PROCEDURE FOR OBTAINING INFORMATION
PIO shall deal with requests from persons seeking information and where the
request cannot be made in writing, to render reasonable assistance to the person
to reduce the same in writing.
If the information requested for is held by or its subject matter is closely
connected with the function of another public authority, the PIO shall transfer,
within five days, the request to that other public authority and inform the
applicant immediately.
PIO may seek the assistance of any other officer for the proper discharge of
his/her duties.
PIO, on receipt of a request, shall as expeditiously as possible, and in any case
within thirty days of the receipt of the request, either provide the information on
payment of such fee as may be prescribed or reject the request for any of the
reasons specified in 8.8 or 8.9 of the Act.
Where the information requested for concerns the life or liberty of a person, the
same shall be provided within forty-eight hours of the receipt of the request.
DISPOSAL OF REQUEST
(a) If the PIO fails to give a decision on the request within the period specified, he
shall be deemed to have refused the request.
Where a request has been rejected, the PIO shall communicate to the requester -
(i) the reasons for such rejection,
(ii) the period within which an appeal against such rejection may be preferred,
(iii) the particulars of the appellate authority.
PIO shall provide the information in the form in which it is sought unless it would
disproportionately divert the resources of the public authority or would be
detrimental to the safety or preservation of the record in question.
If allowing partial access, the PIO shall give a notice to the applicant, informing:
(a) that only part of the record requested, after severance of the record
containing information which is exempt from disclosure, is being provided;
(b) the reasons for the decision, including any findings on any material question of
fact, referring to the material on which those findings were based;
(c) the name and designation of the person giving the decision;
(d) the details of the fees calculated by him or her and the amount of fee which
the applicant is
required to deposit; and
(e) his or her rights with respect to review of the decision regarding nondisclosure
of part of the information, the amount of fee charged or the form of
access provided.
If information sought has been supplied by a third party or is treated as
confidential by that third party, the PIO shall give a written notice to the third
party within five days from the receipt of the request and take its representation
into consideration.
Third party must be given a chance to make a representation before the PIO
within ten days from the date of receipt of such notice.
(b) Payment of fees
As per the Right to Information (Regulation of Fee and Cost) Rules, 2005, the
application shall be accompanied by a fee of rupees ten. It may be paid in cash
against proper receipt or by demand draft or a banker's cheque or by Indian
Postal Order. The instrument is payable to the accounts officer of the public
authority.
(c) Disposal of the request
Where the application is received by another public authority or the information is
more closely connected with the functions of another public authority, the
application shall be transferred to that other public authority within five days from
the date of the receipt of the application and inform the applicant about the
transfer.
If the application relates to the public authority receiving it, the information shall
be provided as expeditiously as possible but within thirty days.
If the information sought concerns the life or liberty of a person, the same shall
be provided within forty-eight hours of the receipt of the request.
The applicant is required to pay the charges for providing the information. The
rules prescribe the charges for computing the cost. The charges are computed at
the following rates:
(a) rupees two for each page in A-4 or A-3 size paper created or copied;
(b) actual charge or cost price of a copy in larger size paper;
(c) actual cost or price for samples or models; and
(d) for inspection of records, no fee for the first hour and a fee of rupees five for
each fifteen
minutes or fraction thereof thereafter.
(d) Third Party information
Third party means a person other than the citizen making a request for
information and includes a public authority. Where a Central Public Information
Officer intends to disclose any information or record or part thereof which relates
to or has been supplied by a third party and has been treated as confidential by
that third party, the Central Public Information Officer shall
within five days from the date of receipt of the request give a written notice to
such third party that he intends to disclose the information.
(e) Rejection of the request
The request for Information may be rejected where such a request for providing
access would involve an infringement of copyright subsisting in a person other
than the State.
Where a request has been rejected, the Central Public Information Officer shall
communicate to the person making the request the reasons for such rejection, the
particulars of the appellate authority and the period within which an appeal
against such rejection may be preferred.
(f) Information exempt from disclosure
The Act lists certain categories of information that is exempt from disclosure.
These include:
(a) information, the disclosure of which would prejudicially affect the sovereignty
and integrity
of India;
(b) disclosure of information expressly forbidden by law or may constitute
contempt of court;
(c) disclosure of which would cause a breach of privilege of Parliament or of the
State Legislature;
(d) information relating to commercial confidence, trade secrets or intellectual
property;
(e) information available to a person in his fiduciary relationship;
(f) information received in confidence from foreign government;
(g) information, the disclosure of which would endanger the life or physical safety
of any person;
(h) information which would impede the process of investigation or apprehension
or prosecution of offenders;
(i) cabinet papers including records of deliberations of the Council of Ministers,
Secretaries and other officers.
APPEAL
The Central Government has the powers to constitute a body known as the
Central information commission. The State Governments have the power to
constitute for the State a body known as the State Information Commission to
administer the provisions of the Act where the State Government is the
appropriate authority.
The Central Information Commission (also the State Information Commission
wherever it has the jurisdiction) has been empowered to receive and inquire into
a complaint from any person
(a) who has been unable to Central Public Information Officer; or his application
for information or appeal was refused to be received by the Central Assistant
Public Information Officer;
(b) who has been refused access to any information requested under this Act;
(c) who has not been given a response to a request for information;
(d) who has been required to pay a fee which he considers unreasonable;
(e) who believes he has been given incomplete, misleading or false information;
(f) in respect of any other matter under this Act.
Any person who does not receive a decision within the time specified (normally
thirty days) or is aggrieved by a decision of the Central Public Information Officer
may within thirty days from the expiry of such period or from the receipt of such
decision.
Unit – 66 : The Prevention of Money Laundering Act, 2002
Under the Prevention of Money Laundering Act (PMLA), 2002, Section 12 there
are certain obligations on banks to preserve and report customer account
information, for which RBI has issued directives (during Jan 2006) u/s 35A of
Banking Regulation Act 1949 & Rule 7 of Prevention of Money laundering Rules as
under:
Maintenance of records of transactions : cash transactions of above Rs.10
lac or its equivalent in foreign currency; series of cash transactions connected to
each other, of- below Rs.10 lakh or its equivalent in foreign currency within a
month and the aggregate value of such transactions exceeds rupees ten lakh;
cash transactions in forged or counterfeit currency notes or bank notes and where
any forgery of a valuable security has taken place; suspicious transactions in cash
or otherwise.
Preservation of records : Banks should maintain, for at least 5 years from the
date of cessation of transactions between the bank and the client, all necessary
records of transactions, both domestic or international, which will permit
reconstruction of individual transactions (including the amounts and types of
currency involved if any) so as to provide, if necessary, evidence for prosecution
of persons involved in criminal activity. As regards, the documents these are to be
preserved for 10 years.
Reporting to Financial Intelligence Unit-India Banks are to report information
relating to cash and suspicious transactions to the Director, Financial Intelligence
Unit-India (FIU-IND), New Delhi (details of reports given above). KNOW YOUR
CUSTOMER (KYC) KYC guidelines issued by RBI u/s 35(A) of B R Act (and Rule 7
of Prevention 1 Money Laundering Rules) keeping in view the recommendation of
Financial Action Task Force.
Objective: Preventing use of banks by criminals for money laundering purposes.
Accordingly the banks are required to verify the identity and address of the
customers and do proper verification. Accordingly:
Banks to obtain introduction, identity of the customer and do proper
verification before opening the account.
Small depositors: Simplified criteria of identification and introduction to
followed where the balance shall not exceed Rs.50000 and transactions in a
year does not exceed Rs.1 lac and withdrawal not more than Rs.10000 per
month. In these cases the certification of address and photograph by the
introducer enough. However, if the amount of total credit exceed Rs.80000 or
balance exceeds Rs.40000, notice to be sent to the customer.
PERIODICAL UPDATION OF KYC SIMPLIFIED: The Reserve Bank has
revised its earlier instructions on periodical updation of 'Know Your Customer'
(KYC) and has advised banks as follows:
a) They should continue to carry out on-going due diligence with respect to the
business relationship with every client and closely examine the transactions in
order to ensure that they are consistent with their knowledge of the client, his
business and risk profile and, wherever necessary, the source of funds.
b) Full KYC exercise should be done at least every two years for high risk
individuals and entities.
c) Full KYC exercise should be done at least every ten years for low risk and at
least every eight years for medium risk individuals and entities.
d) Positive confirmation (obtaining KYC related updates through
email/letter/telephonic conversation / forms / interviews / visits, etc.), should be
completed at least every two years for medium risk and at least every three years
for low risk individuals and entities.
e) Fresh photographs should be obtained from minor customers on their
becoming major.
Risk review of customers: Risk review should be done periodically net less
than once in 6 months ( 15th of May / Nov.
Banks to keep a record of cash transactions above Rs.10 lac.
Banks to send report of these transactions to Financial Intelligence Unit of
India. Cash transaction report: CTR (covering amount above Rs.10 lac of
single transaction of total of all transactions within a month) for each month
to be sent by 15th of the next month. Individual transactions below Rs.50000
not to be reported. Suspicious transaction report (STR). to be submitted
within 7 working days of occurrences.
Banks to maintain records of transactions for a period of min 10 years from
date of transaction. Record of documents to be kept for min 10 years from
date of termination of relationship.
Banks to issue TCs, DDs, MTs and TTs for Rs.50000 and above only by debit
to customers' account.
Due diligence to be ensured for transactions of Rs.50000 and above in case
non-customer transactions.
Banks are to appoint a Sr. Mgmt. Officer, to be designated as Principal Office
responsible for monitoring and reporting.
Unique Customer Identification Code to be allotted to all new customers.
Features of Basic Saving Bank account (RBI Aug 10, 2012):
(1) it is subject to normal KYC compliance. Account opened as a small account,
attracts conditions applicable to small a/c
(2) it is normal banking service available to all.
(3) No min balance
(4) No max no. of deposits but max no. of withdrawals 4 in a month including
ATM
(5) No other account is allowed to be opened along with such account. If already
opened, it is to be closed within 30 days.
Customer Identity Document: Passport, PAN card, Voter I-Card, driving
license, Identity card to bank's satisfaction, UIDAI letter, and letter of recognized
public authority. (NAREGA job card for opening Small Accounts only)
Address Documents: Telephone bill, bank a/c statement, electricity bill (even in
name of relative with whom living), letter of recognized public authority, ration
card, letter from employer, UIDAI letter, rent agreement is registered with Govt. /
Registration Authority
Imp: If identity document contains address, separate document not to be taken.
Introduction: It is not to be insisted upon (RBI - Dec 10, 2012)
Unit – 67 : Information Technology Act, 2000
Cyber Law in India is based on Information Technology Act 2000 which extends to
whole of India. The Act has been drawn on the lines of Model Law on Electronic
Commerce adopted in 1996 by UN Commission on International Trade Law
(UNCITRAL). The Act has been amended wef Oct 27, 2009.
The major provisions of the Act are:
Electronic records or contracts - The law of evidence is traditionally based on
paper based records and oral testimony. The Act provides legal treatment to users
of electronic communication similar to other paper based or oral testimony means.
In other words, the Act has legalised the electronic contracts to make them legally
enforceable. Records can be kept in an electronic form.
Electronic form means information generated, sent, received or stored in media,
magnetic, optical, computer memory, micro film etc. In the eyes of law, written
records also mean electronic records.
Digital signature -Digital signature is defined as `authentication of an electronic
record by a subscriber, by means of an electronic method or procedure, in
accordance with the provisions of the Act'. The Act has provided legal recognition
to digital signatures. Where any information
or any other matter is required to be authenticated by affixing signature, such
requirement shall be deemed to be satisfied if the information is authenticated by
Digital signatures.
(The term Digital Signatures has been substituted by Electronic Signatures)
Submission of information in electronic form: Customers can now furnish
information to banks through electronic means for opening of accounts or for
other transactions. Such applications or information, if authenticated by way of
digital signatures, shall be deemed to have been properly submitted.
Receipt or payment of charges through electronic means : Banks can
make payment or receive payments or other charges by way of electronic means.
Publication of rules in electronic form: Rules, regulations, orders, bye-laws or
notifications can now be issued or published in electronic form or in paper form.
The date of publication of such documents shall be deemed to be the date of first
publication of such matter.
Keys for digital signature – For the purpose of creating a digital signature
and also for the purpose of verification of the digital signature by the Certifying
Authority, there is a pair of keys called private key and public key respectively,
under a system known as Asymmetric Crypto system.
Authentication of electronic records – A person (called subscriber) can
authenticate an electronic record by affixing his digital signature with the help of a
'private key'.
Issue of digital certificate: Where a person wants a digital certificate, it may
make an application to a Certifying authority (CA) for issue of the certificate. The
CA shall issue the certificate after satisfying itself that
(a) the applicant holds the private key corresponding to the public key to be listed
in the digital signature certificate
(b) applicant holds the private key capable of generating a digital signature and
(c) the public key to be listed in the certificate can be used to verify a digital
signature affixed by the private key held by the applicant.
Retention of electronic records – The requirement of any law prescribing
retention of records for a particular period, shall be considered to have been met,
when the records are kept in electronic form.
Computer crimes or Cyber crimes: A person is deemed to have committed a
cyber crime where: he secures access to a computer system
(a) where he downloads or copies data base or information from a computer
system where he introduces computer virus into a computer system
(b) where he damages a computer system where he disrupts a computer
system (l) where he causes denial to a computer system to any authorized
person ) where aperson intentionally conceals, destroys or alter any computer
source document for a computer program or source.
Computer virus – means any instruction, information, data or program that
destroys, damages, degrades or spoils the performance of a computer system.
Confiscation – Where. any computer system, floppies, CDs, tape drives etc.
causes contravention of any provisions of the Act, these are liable to be
confiscated.
Penalties – The Act provides for penalties for violation of the provisions of the
Act as under:
Sec 43: (a) Unauthorised access –damages by way of compensation to the
person so affected.
(b) Introduction of virus and malicious code damages by way of
compensation to the person so affected.
(c) Denial of access - damages by way of compensation to the person so
affected.
Data theft – Fine up to Rs.2 lac and/or imprisonment up to 3 years (Sec 65).
Section 66 - If any person, dishonestly or fraudulently, does any act referred to
in section 43, he shall be punishable with imprisonment for a term which may
extend to 3 years or with fine which may extend to Rs.5 lac or with both.
Section - 66A. Any person who sends, by means of a computer resource or a
communication device,
(a) any information that is grossly offensive or has menacing character; or
(b) any information which he knows to be false, but for the purpose of causing
annoyance, inconvenience, danger, obstruction, insult, injury, criminal
intimidation, enmity, hatred or ill will, persistently by making use of such
computer resource or a communication device,
(c) any electronic mail or electronic mail message for the purpose of causing
annoyance or inconvenience or to deceive or to mislead the addressee or recipient
about the origin of such messages, shall be punishable with imprisonment_ for a
term which may extend to 3 years and with fine.
Hacking - Hacking is an offence and one will have to pay a fine of up to Rs.2 lac
or undergo imprisonment up to three years for hacking.
Hacking means knowingly or intentionally concealing, destroying or altering or
causing another, to destroy or alter any computer code used for a computer
programmer or computer system or computer network.
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