Monday, 16 July 2018

Rights of Set-Off



  Rights of Set-Off

The right to combine two accounts is known as set-off.
The right of Set-off is Banker’s discretion.


Right Of Set-Off

1.    The Same name and the same right
2.    Debts due but not future or contingent debts
3.    The debts must be a sum certain absolute before exercising the right of Set-Off
4.    No agreement to the contrary
5.    Banker’s discretion

6.    Right of Set-Off and Garnishee Order


Right of Appropriation

While paying in monies a customer has a right to direct his banker that such payment may be appropriated against a particular debt. If it is not made clear by the Customer, in such cases the banker may exercise his right for appropriation and may apply same in payment of any debt.

Rule in Claytons’ Case

The first item on the debit side of the account is discharges or reduced by the first item on the credit side. The credit entries in the account adjust or set-off the debit entries the debit entries in the chronological order.




Rights of Banker

Lien means right of the creditor to retain possession of goods / securities owned by the debtor till the debt is paid. Lien is of two kinds
Special Lien – Where the rights conferred on the creditor confines to particular

goods, it is called Special Lien.
General Lien – When the right applies to all goods it is called general Lien.

Banker’s General Lien is not applicable in following Safe Custody Articles

Documents / Money Deposited for specific purpose Securities/Valuables left through oversight at the bank’s premises

Immature Debts
Stolen goods
.

Mandates



  Mandates

A Mandate is an authority given by the account holder in favour of a third person to do certain acts on his behalf. This is issued by the account holder to his bank. Salient Features

It is unstamped letter signed by the customer
The signature of the person so authorized should be appended in the letter of mandate.
It is for short and temporary period.

In case of joint account holders – all the partner must signed the mandate.

Power of Attorney  is a stamped Document.

There are two types of Power of Attorney
·         Special Power of Attorney – It is for a single transaction

·         General Power of Attorney – empowers an agent to act in more than one transaction.

·         Power of attorney is a stamped document and generally executed in the presence of Notary Public/ Magistrate of a Court of government officials

·         The bank should obtain the original power of attorney for perusal and copy of the same is retained for record purposes.

·         The power of attorney holder must sign as Per Pro-

Attachment Orders

Those issued by the court, called Garnishee orders and
Those issued by Revenue Authorities.

Garnishee Orders

They are issued by a court in favor of judgment of creditors. A garnishee order is issued by two stages

Order Nisi – Freeze or stop all the txns in the debtor account.
Order absolute -

What is Attachable And What is Not?

Amount Specified and Unspecified

Debts due and accruing

Payment of Cheques and Garnishee Order
Right of Set-off and Garnishee Order

Unclear effects, Subsequent Credits and Undrawn overdrafts – Credit into account subsequent to the receipt of the Garnishee Order are not attachable, because the order can attach only debts due or accruing at the time of the

receipt of the order by the banker.
Joint Accounts - If the order is issued for the attachment of A’s deposits, the deposits held jointly by A and B cannot be attached, if the account is operated

.

by either or survivor.But if    it is former or survivor (and A is the former) and
money belongs to clearly to the former alone, then it can be attached even if the attachment order mentions only the ‘A’ s name only..

Liquidator if the company is in liquidation, the accounts of the liquidator cannot be attached by a fresh garnishee order because money held by the bank was not debts due to the company, but to the liquidator.



Procedure to be followed by the Bank on Receipt of the GARNISHEE ORDER

Banker must freeze the account and advise the court the full details.
All submission to the court should be done through the bank’s counsel.
If the order is specific, the amount, in excess can be permitted to be withdrawn.
For handling subsequent credits, it may be preferable to open a new account.

Banker – Customer Relationship


Banker – Customer Relationship

Relation
Bank
Customer
Deposit account
Debtor
Creditor
Banks lend a money to Customer
Creditor
Debtor
Safe custody of articles
Bailee
Bailor
Safe deposit locker
Lessor
Lessee
Remittances, Collection Of Cheques, bills etc on
Agent
Principal
behalf of the customers


Issue of duplicate draft, FD receipts
Indemnified
Indemnifier

/ Indemnity


Holder


Acceptance of deposits should be for the purpose of lending and investment. The deposit should be accepted from public

Acceptance of deposit should be in money.
Deposit repayable to depositors on demand or otherwise.
The deposits may be withdrawable by cheque, draft order or otherwise.


Obligation to Pay Cheques (34)

It is a statutory obligation of the banker, having sufficient funds of the drawer in

his hands properly applicable to the payment cheque duly presented.
Bank’s liability for wrongful dishonor of cheque
The above obligation to pay the cheques is not unconditional. The conditions under which banker may refuse payment of a cheque
Funds properly applicable
The cheque is not properly applicable
The cheque has become stale is post-dated.
The cheque is presented at a branch other than one where it is payable.

Cheque is crossed and is presented for cash payment.

Cheque is received after
Drawer signature differs

Amount of the cheque as stated in figures and words differs.

.

Bank’s Obligation to Maintain secrecy of Accounts

Disclosures permitted by Law and Practice

Precautions to be adopted while disclosing the Information.

Furnishing of o Opinion

Control over Organisation of Banks


 Control over Organisation of Banks

Which Authority to grant licence for establishing a new Bank in India RBI

The following factors are taken into account while considering an application for starting new bank of India
1.    Information about promoters/promoter group
2.    Source of funding of the Capital
3.    Professional management support
4.    Geographical area to be serviced

5.    business mix
6.    Types of economic activities to be performed
7.    Profitability of the operations

Name the authorities which control the functioning of cooperative banks.
Reserve Bank
Branch  licensing  area  of  operations,  exposure  norms,

interest rates etc.
State Govt.
Incorporation  and  registration  of  Cooperative  Banks,

Management audit, amalgamation, liquidation / winding up


Branch expansion within the district does not require permission of RBI.

Foreign Banks: Foreign banks are allowed to operate through branches only. A new foreign bank is required to bring in minimum assigned capital of US $ 50 million, minimum capital adequacy ratio 9% on aggregate risk weighted assets of their Indian Operations.

How are Regional Rural Bank formed – Under Section3 of the RRB Act, 1976 a sponsor bank has to apply to the Central Govt. (50:35:15) (Central Govt : Sponsor Bank : State Govt) subscription ratio of the .

Specific permission of RBI is required for closure of branches in Rural Areas.

To accept Non Resident Foreign Currency deposits at specific branches, permission has to be obtained from RBI.

Banks are allowed to Setup Subsidiaries to undertake business authorized under
section 6(1) of the BR Act, 1949. Aggregate Investment in all the subsidiaries shall not exceed 20% of the Banks’ PaidUp Capital

Three-tiers of Organisational Structure

Branch, LHO/Zonal Office, Head Office

Srinivas Kante

Minimum Paid Up Capital – Capital Requirements (21)

(Section 11 of BR Act, 1949)
Incorporated In India
A i.     For a banking company incorporated in India having place of business in more than one state

ii.    If any such place or place of business is or are situated in the City of Mumbai Or Kolkata or both

B ii.    If all places of business in one State but none of which in Mumbai City or Kolkata

v.   For principal place of business


The actual requirement of the Capital is determined by the size of business of each bank. The Present Minimum Capital Adequacy Ratio (CRAR) is 9% comprising of Tier I and Tier II capital and unallocated reserves.


Tier I Capital


Tier II Capital

Paid  Up
Capital,  Statutory
Undisclosed
reserves
and
cumulative
Reserves,
and
other
perpetual preference shares

disclosed free reserves, if
Revaluation Reserves


any and



General Provisions and Loss Reserves
Capital

Reserves
Hybrid Debt Capital Instruments

representing

surplus
Subordinated Debt


arising
out
of
sale




proceeds of assets







Authorised Capital of each public sector bank cannot be less than Rs. 1500 crores.

To establish a new private sector bank, the minimum Paid-Up Capital of Rs.
200 crores.
Foreign Investors are permitted to hold up to 10% of Paid-Up capital of banks established in India.
Shareholders of commercial banks can exercise one vote for every share held by them. However, no person can exercise more than 10% of total voting rights of shareholders of the bank. The above restriction on voting rights does not apply to GOI in respect of holding of shares.

As far as Cooperative Bank is concerned, each share holder can exercise only one vote, irrespective of number of shares held by him.