UNIT 25 DISHONOUR AND DISCHARGE OF NEGOTIABLE INSTRUMENTS MODULE - 7

Transcription

1 UNIT 25 DISHONOUR AND DISCHARGE OF NEGOTIABLE INSTRUMENTS MODULE - 7

2 UNIT 25 DISHONOUR AND DISCHARGE OF NEGOTIABLE INSTRUMENTS Dishonour and Discharge of Structure 25.0 Introduction 25.1 Unit Objectives 25.2 Dishonour of 25.3 Dischange of the Instrument and the Parties 25.4 Test Questions 25.5 Practical Problems 25.0 INTRODUCTION Law relating to promissory notes, bills of exchange, cheques and other negotiable instruments is categorized in India under the Act, It lays down the definition for promissory note, bill of exchange, cheque, foreign instrument and negotiable instrument. According to the provisions of this Act, in India, every person capable of contracting, according to the law to which he is subject, may bind himself and be bound by making, drawing, accepting, endorsing, delivering and negotiating of a promissory note, bill of exchange or cheque and every person capable of binding himself or of being bound, may so bind himself or be bound by a duly authorized agent acting in his name. In this unit, you will learn about dishonour of negotiable instruments and dishonour of the instrument and the parties UNIT OBJECTIVES Understand the cases in which a bill of exchange is said to be dishonored by non acceptance Know the effect of dishonour Understand the legal provisions regarding the notice of dishonour Note the meaning of the terms noting and protest Be familiar with the various ways in which one or more parties to a negotiable instrument is are discharged from liability 25.2 DISHONOUR OF NEGOTIABLE INSTRUMENTS A negotiable instrument may be dishonoured by (i) non-acceptance or (ii) non-payment. As presentment for acceptance is required only in case of bills of exchange, it is only the bills of exchange which may be dishonoured by non-acceptance. Of course any type of negotiable instrument promissory note, bill of exchange or cheque may be dishonoured by nonpayment Dishonour by Non-acceptance A bill of exchange is said to be dishonoured by non-acceptance in the following cases: 1 1 Section 91 Self-Instructional Material 297

3 Dishonour and Discharge of 1. When the drawee or one of several drawees (not being partners) makes default in acceptance upon being duly required to accept the bill. It may be recalled that the drawee may require 48 hours time (exclusive of public holidays) to consider whether he will accept or not (Sec. 63). 2. Where the presentment for acceptance is excused and the bill is not accepted, i.e., remains unaccepted. 3. Where the drawee is incompetent to contract. 4. Where the drawee makes the acceptance qualified. 5. If the drawee is a fictitious person or after reasonable search cannot be found (Sec. 61). It is important to note that where a drawee in case of need is named in a bill of exchange, the bill is not dishonoured until it has been dishonoured by such drawee (Sec. 115) Dishonour by Non-payment A promissory note, bill of exchange or cheque is said to be dishonoured by non-payment when the maker of the note, acceptor of the bill or drawee of the cheque makes default in payment upon being duly required to pay the same (Sec. 92). Also, a promissory note or bill of exchange is dishonoured by non-payment when presentment for payment is excused expressly by the maker of the note or acceptor of the bill and the note or bill remains unpaid at or after maturity (Sec. 76) Effect of Dishonour As soon as a negotiable instrument is dishonoured (either by non-acceptance or by nonpayment) the holder becomes entitled to sue the parties liable to pay thereon. The drawer of cheque, maker of note, acceptor and drawer of bill and all the indorsers are liable severally, and jointly to a holder in due course. 2 The holder must, however, give notice of dishonour to all parties against whom he intends to proceed. He may (at his option) also have the instrument noted and protested before a notary public Notice of Dishonour Notice of dishonour means formal communication of the fact of dishonour. It is given to the party sought to be made liable and, therefore, it serves as a warning to the person to whom the notice is given that he could now be made liable. Such a notice also serves the purpose of enabling the person so notified to protect himself against his prior parties. Notice by whom? Notice of dishonour must be given by the holder or by some party to the instrument who remains liable thereon (Sec. 93). Further, any party receiving notice of dishonour must also transmit the same within a reasonable time to all prior parties in order to render them liable to himself. He cannot sue any prior party to whom he has not transmitted the notice unless that party has received due notice from the holder or some other party to the instrument (Sec. 95). It may be noted that where a number of persons are required to give notice to certain persons it is not necessary that all of them must give the notice. If some of them have given notice of dishonour, the other persons can take advantage of the same. Notice of dishonour can also be given by the duly authorised agent of the person who is bound to give notice. When an instrument is deposited with an agent for presentment and is dishonoured the agent can himself give notice to prior parties on behalf of the holder. But it is not obligatory on him to do so. He may give notice to his principal within the same time 298 Self-Instructional Material 2 For further details about the liability of parties to a negotiable instrument refer to Unit on negotiable instrument.

4 as if he were the holder and the principal may then give notice to parties to whom he wants to hold liable. The principal is also entitled to a further like period to give notice of dishonour (Sec. 96). Notice to whom? Notice of dishonour must be given to all parties (other than the maker of a note, acceptor of a bill or drawee of a cheque) to whom the holder seeks to make liable or to their duly authorised agents. Where there are two or more persons jointly liable as drawers or indorsers, notice to any one of them is sufficient. No notice need be given to the maker of a note, or acceptor of a bill or drawee of a cheque who are the principal debtors and have themselves dishonoured the instrument (Sec. 93). In case of death of a person, notice must be given to his legal representative, or, where he has been declared an insolvent, it must be given to his Official Assignee (Sec. 94). When the party to whom notice of dishonour is despatched is dead, but the party despatching the notice is ignorant of his death, the notice is sufficient to bind the estate of the deceased (Sec. 97). Thus if the fact of death is known to the holder a notice addressed to the dead person is a nullity. In such a case notice must be addressed to his legal representative. Mode of giving notice. According to Section 94 the notice of dishonour may be oral or written. If it is written it may be sent by post. A notice duly addressed and posted is good even though it may be miscarried. The notice may be in any form but the language used must indicate that the instrument has been dishonoured and in what way dishonoured, and that the recipient will be held liable thereon. It should be given within a reasonable time after dishonour, at the place of business or (in case such party has no place of business) at the residence of the party for whom it is intended. What is reasonable time? In determining what is a reasonable time for giving notice of dishonour, regard shall be had to the nature of the instrument, the usual course of dealing with respect to similar instruments and the distance between the parties, and, in calculating such time, public holidays shall be excluded (Sec. 105). Section 106 further provides that if the holder and the party to whom notice of dishonour is given carry on business or live (as the case may be) in different places, such notice shall be deemed to be given within a reasonable time if it is despatched by the next post or on the day next after the day of dishonour. If the said parties carry on business or live in the same place, such notice is within reasonable time if it is despatched in time to reach its destination on the day next after the day of dishonour. If a party who receives the notice of dishonour is to transmit the same to his own prior parties, the transmission is within reasonable time if he transmits it within the same time after its receipt as he would have had to give notice if he had been the holder (Sec. 107). When notice of dishonour is unnecessary. Notice of dishonour is not necessary, i.e., the parties are liable without any notice of dishonour in the following cases mentioned in Section 98: 1. When it is dispensed with by the party entitled to the notice. For example, where the indorser while signing in that capacity adds the words notice of dishonour waived, no notice of dishonour is required. 2. When the drawer of a cheque has countermanded payment, no notice of dishonour is required to charge the drawer. 3. When the party charged could not suffer damage for want of notice. For example, when the cheque is dishonoured because the drawer had closed his account with the banker, 3 or in case of accommodation bills, no notice of dishonour to the drawer is required. 4. When the party entitled to notice cannot, after due search, be found; or the party bound to give notice is, because of some justifiable reason (e.g., death, accident or serious illness), unable to give it. Dishonour and Discharge of 3 Punjab National Bank vs lqbal Singh, (1962), Punjab, 158. Self-Instructional Material 299

5 Dishonour and Discharge of 5. When the drawer also happens to be the acceptor. 6. In the case of a promissory note which is not negotiable. Since such a note is not negotiable, the payee ought not to indorse it, and if it is indorsed, the indorsee cannot have any claim against the maker of the note or the indorser. Therefore no one is prejudiced for want of notice. 7. When the party entitled to notice promises to pay unconditionally the amount due on the instrument after dishonour and with full knowledge of facts. Consequences of not giving notice of dishonour. Any party to a negotiable instrument (other than the maker of a note, acceptor of a bill or drawee of a cheque) to whom notice of dishonour is not sent by the holder is discharged from his obligation under the instrument and cannot be sued by the holder, unless the circumstances are such that no notice of dishonour is required to be sent. The drawer or indorser who has not received notice is discharged not only on the bill or note but also in respect of the original consideration (Mohd. Raffi vs Qazi Mahzar 4 ) Noting Noting is the authentic and official proof of presentment and dishonour of a negotiable instrument. The question of noting does not arise in the case of dishonour of a cheque because in such a case the bank, while refusing payment, returns back the cheque giving reasons in writing for the dishonour of the same, and that itself acts as an authentic evidence of the fact of dishonour. Even in the case of inland bills or notes noting is not compulsory (Sec. 104). According to Section 99, when a promissory note or a bill of exchange has been dishonoured by non-acceptance or non-payment, the holder may cause such dishonour to be noted by a Notary Public 5 upon the instrument, or upon a paper attached thereto, or partly upon each. For this the holder takes the bill or note to the notary public who makes a demand for acceptance or payment upon the drawee or acceptor or maker formally and on his refusal to do so notes the same on the bill or note. Thus noting means recording the fact of dishonour on the dishonoured instrument or on a paper attached thereto for the purpose. Noting must be made within a reasonable time after dishonour and must specify: (i) the date of dishonour; (ii) the reason assigned for such dishonour; and (iii) the notary s charges Protest Protest is a formal certificate of dishonour issued by the notary public to the holder of the bill or note, on his demand (noting is merely a record of dishonour on the instrument itself) (Sec. 100). Check Your Progress 1. What do you understand by dishonour by nonacceptance. 2. What do you understand by dishonour by nonpayment? 3. Notice of dishonour is not necessary in certain cases. Elucidate. 300 Self-Instructional Material Protest for better security. Such protest can be made in the case of bills only. When the acceptor of a bill of exchange has become insolvent, or his credit has been publicly impeached, before the maturity of the bill, the holder may, within a reasonable time, cause a Notary Public to demand better security of the acceptor, and on its being refused, may within a reasonable time cause such facts to be noted and certified as aforesaid. Such certificate is called a protest for better security (Sec. 100, Para 2). It may be noted that in spite of such a protest the holder shall have to wait till the date of maturity to take any action against the acceptor, drawer or indorsers. The only advantage of protest for better security is that it enables the bill to be accepted for honour, for Section 108 provides that when a bill of exchange has been noted or protested for non-acceptance or for better security, the same can thereafter be accepted for honour. 4 I.L.R. (1936), Lah Notary Public is an officer appointed by Government for the purpose of noting and protesting as laid down in Act.

6 Noting and protest of inland bills or notes is not compulsory, but foreign bills must be protested for dishonour if so required by the law of the place where they are drawn (Sec. 104). Contents of protest (Sec. 101). The protest must contain the following particulars: 1. The instrument itself or a literal transcript of the instrument and of everything written or printed thereupon. 2. The name of the person for whom and against whom the instrument has been protested. 3. The fact and the reasons for dishonour, i.e., a statement that payment or acceptance, or better security, as the case may be, was demanded by the notary public from the person concerned and he refused to give it or did not answer, or that he could not be found. 4. The place and time of dishonour. 5. The signature of the Notary Public. 6. In the case of acceptance for honour or payment for honour, the names of the persons by whom and for whom it is accepted or paid. Dishonour and Discharge of 25.3 DISCHARGE OF THE INSTRUMENT AND THE PARTIES The term discharge in relation to negotiable instruments has two connotations, viz., (1) discharge of the instrument, and (2) discharge of one or more parties from liability on the instrument Discharge of the Instrument A negotiable instrument is said to be discharged when it becomes completely useless, i.e., no action on that will lie, and it cannot be negotiated further. After a negotiable instrument is discharged the rights against all the parties thereto comes to an end, and no party, even a holder in due course, can claim the amount of the instrument from any party thereto. Discharge of the party primarily and ultimately liable on the instrument results in the discharge of the instrument itself. For example, in the following cases the instrument is deemed to be discharged: 1. When the party primarily liable on the instrument (i.e., the maker of the note, acceptor of the bill or drawee bank) makes the payment in due course to the holder at or after maturity (Sec. 78). A payment by a party who is secondarily liable does not discharge the instrument because in that case the payer holds it to enforce it against prior indorsers and the principal debtor. 2. When a bill of exchange which has been negotiated is, at or after maturity, held by the acceptor in his own right, the instrument is discharged (Sec. 90). 3. When the party primarily liable becomes insolvent, the instrument is discharged and the holder cannot make any other prior party liable thereon. Notice that in the case of insolvency, the acceptor or maker is unable to pay and it is only on refusal to pay that the instrument is deemed to be dishonoured and prior parties can be made liable thereon. Similarly, an instrument stands discharged when the primary party liable is discharged by material alteration in the instrument (Sec. 87), or by lapse of time making the debt time barred under the Limitation Act. Self-Instructional Material 301

7 Dishonour and Discharge of 302 Self-Instructional Material 4. When the holder cancels the instrument with an intention to release the party primarily liable thereon from the liability, the instrument is discharged and ceases to be negotiable (Sec. 82) Discharge of One or More Parties A party is said to be discharged from his liability when his liability on the instrument comes to an end. When only some of the parties to a negotiable instrument are discharged, the instrument continues to be negotiable and the undischarged parties remain liable on it. Thus, the discharge of one or more parties to an instrument does not discharge the instrument and the rights under it can still be enforced against those parties who continue to be liable thereon. One or more parties to a negotiable instrument is/are discharged from liability in the following ways: 1. By cancellation [Sec. 82(a)]. When the holder of a negotiable instrument deliberately cancels the name of any of the party (by drawing a line through the name) liable on the instrument with an intent to discharge him from liability thereon, such party and all indorsers subsequent to him, who have a right of action against the party whose name is so cancelled, are discharged from liability. Thus, if the maker s or acceptor s name has been cancelled the liability of all other parties to the instrument, who must have obviously become parties thereto subsequent to the maker or acceptor and as such must be in the position of sureties to him, comes to an end, which in effect discharges or cancels the instrument itself. But if the name of an indorser has been cancelled then all the indorsers subsequent to him will be discharged but those prior to him will remain liable. Section 40 contains a similar provision, according to which if the holder, without the consent of the indorser, destroys or impairs the indorser s remedy against a prior party, the indorser is discharged from liability. It is important to note that where the cancellation is done under a mistake, or without the authority of the holder it would be inoperative and will not discharge any party. 2. By release [Sec. 82 (b)]. If the holder of a negotiable instrument releases any party to the instrument by any method other than cancellation of names (i.e., by a separate agreement of waiver, release, or remission), the party so released and all parties subsequent to him, who have a right of action against the party so released, are discharged from liability. 3. By payment [Sec. S2(c) and 78]. When the party primarily liable on the instrument makes the payment in due course to the holder at or after maturity, all the parties to the instrument stand discharged, because the instrument as such is discharged by such payment. 4. By allowing drawee more than 48 hours to accept (Sec. 83). If the holder of a bill of exchange allows the drawee more than forty eight hours 6, exclusive of public holidays, to consider whether he will accept the same, all previous parties not consenting to such allowance are thereby discharged from liability to such holder. 5. By taking qualified acceptance (Sec. 86). If the holder of a bill agrees to a qualified acceptance all prior parties whose consent is not obtained to such an acceptance are discharged from liability. 6. By not giving notice of dishonour. Any party to a negotiable instrument (other than the party primarily liable) to whom notice of dishonour is not sent by the holder is discharged from liability as against the holder, unless the circumstances are such that no notice of dishonour is required to be sent. 6 According to Section 63 the drawee is entitled to be allowed a period of 48 hours at the most (exclusive of public holidays) to consider whether he will accept the bill or not.

8 7. By non-presentment for acceptance of a bill (Sec. 61). When a bill of exchange is payable certain period after sight, its holder must present it for acceptance to the drawee within a reasonable time after it is drawn. If he makes a default in making such presentment the drawer and all indorsers who were liable towards such a holder are discharged from their liability towards him. 8. By delay in presenting cheque (Sec. 84). It is the duty of the holder of a cheque to present it for payment within reasonable time of its issue. 7 If he fails to do so and in the meanwhile the bank fails causing damage to the drawer, the drawer is discharged as against the holder to the extent of the actual damage suffered by him. 9. By material alteration. Any material alteration of a negotiable instrument renders the same void, i.e., discharges the instrument itself, and all parties thereto at the time of making such alteration and not consenting to the change are discharged from liability thereon (Sec. 87). But persons who become parties to the instrument after the alteration are liable under the instrument as altered. In other words, those who take an altered instrument cannot complain (Sec. 88). It is worth noting that the material alteration of the instrument discharges all the parties liable thereon at the time of making such alteration, and it makes no difference whether the alteration is for the benefit or detriment to any party to the instrument 8 or whether it is made by the holder of the instrument or by a stranger while the instrument was in the custody of the holder, because the party in custody of the instrument is bound to preserve it in its integrity (Davidson vs Cooper 9 ) But alteration made by a stranger without any negligence on the part of the holder does not affect the liability of the parties there to (Guorochandra vs Krushna Charana 10 ). What constitutes a material alteration? It is not every alteration that necessarily would affect the validity of an instrument or the rights of parties thereto. Only when the alteration is material, the validity of the instrument or the rights of parties would come in for question. The Act is silent on the question what constitutes a material alteration? Courts in India have, therefore, followed the English Common Law and held that anything which has the effect of altering the legal relations between the parties or the character of the instrument or the sum payable amounts to a material alteration. 11 The following are the examples of material alteration: (i) Any alteration of the date, the sum payable, the time of payment and the place of pslyment. 12 (ii) Alteration by the addition of a new party to the instrument (Gardener vs Walsh 13 ). (iii) Alteration of the rate of interest (Verco Pvt. Ltd. vs Newandram 14 ). (iv) Tearing off the material part of the instrument. Alterations not vitiating the instrument. There is no material alteration so as to vitiate the instrument in the following cases, as they do not prejudice the rights and liabilities of the parties thereto: (i) Alteration made for the purpose of correcting a mistake or a clerical error. (ii) Alteration made to carry out the common intention of the original parties (Sec. 87). 7 See Sections 64, 72 and Rampadarath vs Hari Narain, A.I.R. (1965), Pat (1844),,, 13 M. & W A.I.R. (1941), Madras Banking Laws Committee Report on Law, 1975, p Sec. 64(2) of the (English) Bills of Exchange Act, (1885), 5E.&B A.I.R. (1974), Madras 4. Dishonour and Discharge of Check Your Progress 4. Enumerate the cases in which a negotiable instrument is deemed to be discharged. 5. Explain the terms noting and protest as per used in the context of dishonour of a bill of exchange. Self-Instructional Material 303

9 Dishonour and Discharge of (iii) Alteration made before the instrument is issued. (iv) Alteration made with the consent of the parties liable on the instrument. (v) Conversion of bearer cheque into an order cheque. (vi) Filling blanks in the case of inchoate or incomplete instruments (Sec. 20). Thus, putting a date on the undated cheque by the payee does not amount to material alteration rendering the instrument void (Bhaskaran Chandrasekharan vs Radhakrishnan 15 ). (vii) Conversion of blank indorsement into an indorsement in full (Sec. 49). (viii) Making qualified acceptance (Sec. 86). (ix) Crossing of an uncrossed cheque (Sec. 125). (x) Alteration which is the result of an accident, e.g., mutilation by washing, ravages by white ants or rats, document torn by a child, document burnt in part by the hot end of a cigarette (Hongkong and Shanghai Banking Corpn. vs Lo Lee Shi 16 ). Payment of instrument on which alteration is not apparent. Sometimes, a negotiable instrument is materially altered but does not appear to have been so altered, for example, a cheque is drawn for Rs. 500 with space left before the amount in both words and figures and the payee fraudulently alters the amount of Rs. 3,500 which is not apparent. In such cases, if the person or banker liable to pay makes the payment according to the apparent tenor and otherwise is due course, then he will be discharged from liability and such payment cannot be questioned by reasons of the instrument having been altered [Sec. 89(1)]. Where the cheque is an electronic image of a truncated cheque, any difference in apparent tenor of such electronic image and the truncated cheque shall be a material alteration and it shall be the duty of the bank or the clearing house, as the case may be, to ensure the exactness of the apparent tenor of electronic image of the truncated cheque while truncating and transmitting the image [Sec. 89(2). 17 Any bank or a clearing house which receives a transmitted electronic image of a truncated cheque, shall verify from the party who transmitted the image to it, that the image so transmitted to it and received by it, is exactly the same [Sec. 89(3)] By negotiation back of a bill. When a bill of exchange comes back to the acceptor by process of negotiation and he becomes its holder, it is called as negotiation back. If a bill of exchange which has been negotiated is, at or after maturity, held by the acceptor in his own right, all rights of action thereon are extinguished (Sec. 90) TEST QUESTIONS 1. In what different ways may a negotiable instrument be dishonoured? What are the duties of a holder of a dishonoured bill? 2. How and when should a notice be served on a bill being dishonoured by either non-acceptance or non-payment? Under what circumstances is notice of dishonour unnecessary? 3. When are bills of exchange, promissory notes or cheques said to be dishonoured? Who should give notice of dishonour and to whom? 304 Self-Instructional Material 15 (1998) 30 CLA (Snr.) 58 (Ker.). 16 (1928), A.C. 181 (P.C.). 17 Inserted by the (Amendment and Miscellaneous Provisions) Act, 2002, w.e.f Ibid.

10 4. What is the difference between discharge of a negotiable instrument and discharge of a party to a negotiable instrument? When is a negotiable instrument said to be discharged? Give examples. 5. What are various ways in which one or more parties to a negotiable instrument is/are discharged from liability? Discuss. 6. In what manner is the liability of a drawer, acceptor and indorser of a negotiable instrument discharged? 7. Explain the meaning of material alteration in a negotiable instrument. What is effect of such alteration? Dishonour and Discharge of 25.5 PRACTICAL PROBLEMS Attempt the following problems, giving reasons: 1. P draws a bill on Q payable three months after sight. It passes through several hands before R becomes its holder. On presentation by R, Q refuses to accept. Discuss the duties and rights of R on the bill. [Hint. On dishonour of the bill by non-acceptance, it is the duty of R, the holder, to give notice of dishonour to all prior parties. He may also have the instrument noted and protested. Thereafter R is entitled to make P, the drawer of the bill, liable as principal debtor and the intervening indorsers liable as sureties.] 2. A drew a cheque for Rs 5,000 in favour of B on 1st January, 2004, and gave it to him on the same day. The cheque was presented for payment on the 5th June, In the meantime the bank had failed in May Discuss the legal position of B s recourse against A and the Bank for recovering the amount. [Hint. As B presented the cheque for payment after more than five months, which cannot be considered as reasonable period, and the drawer suffered loss due to this long delay, the drawer is discharged from his liability to the extent of the actual damage suffered by him. B, however, can claim as a creditor in the insolvency of the bank for the balance.] 3. A bill payable three months after date is altered to a bill payable three months after sight by the holder. The acceptor refuses to make payment. Can the holder enforce its payment against the acceptor or the drawer? [Hint. No, the holder cannot enforce the payment of the bill against any party thereto as the bill has been materially altered. Material alteration renders the instrument void.] Self-Instructional Material 305

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