Anil Yadav Final Project of Banking Law

GENERAL RELATIONS BETWEEN BANKER AND CUSTOMER

–A LEGAL

PERSPECTIVE

PROJECT ON

GENERAL RELATIONS BETWEEN BANKER AND BANKER AND CUSTOMER – A – A LEGAL PERSPECTIVE

SUBMITTED TO: PROF. DR . Y. PAPA RAO FACULTY OF BANKING LAW(OPTIONAL)

SUBMITTED BY: A NIL YADAV YADAV R OLL OLL NO. 13 SECTION. C 7TH SEMESTER : B.A. L.L.B (HONS.)

HIDAYATULLAH NATIONAL LAW UNIVERSITY RAIPUR

HIDAYATULLAH NATIONAL LAW UNIVERSITY, RAIPUR

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ACKNOWLEDGEMENTS

I, Anil Yadav, feel myself highly elated, as it gives me tremendous pleasure to come out with work on the topic General . General Relati Relati ons betwe betwee en Bank er and Cu stomer tomer – A L egal Perspective Perspective Words fail to express my deep sense of glee to my teacher, Prof. Y. Papa Rao who enlightened me with his beautiful work on this topic. I would like to thank him for guiding me in doing all sorts of researches, suggestions and having discussions regarding my project topic by devoting his precious time. I thank H.N.L.U for providing Internet facilities. And lastly I thank my friends and all those who have helped me in the completion of this project.

Thanking you, Anil Yadav SEMESTER-VII


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METHODOLOGY

Methodology used in this project work is both Doctrinal and Secondary electronic research. This project work contains extensive research work on General Relati ons between Ban ker . This project is based on theoretical study as well. and Cu stomer – A L egal Perspective

PREFACE

The purpose of this paper work is to bring out the gist of the whole concept in a lucid, precise and orderly manner. I have made a strenuous effort to give a comprehensive treatment to the subject Gener al Relati ons between Ban ker an d Customer – A L egal Perspective which is of considerable importance as it is considered to be a very widely discussed concept. The authorities that have been relied upon and used as source material have been duly referred to and acknowledged in the footnotes. A select Bibliography has also been appended to the project. The mode of research has been subjective analytical. Secondary sources are referred to in the course of research. In the completion of this work my teachers specially subject faculty Prof. Dr. Y. Papa Rao, have been a constant source of inspiration and encouragement to me. I must sincerely thank them for their support.


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TABLE OF CONTENT:

1. Introduction.......................................................................................5 2. Banker-Customer Relationship..........................................................6 3. General Relationship..........................................................................7 4. Special Relationship...........................................................................8 5. Termination of relationship between a banker and a customer...........12 6. Duties of a banker...............................................................................12 7. Rights of a banker...............................................................................16 8. Conclusion..........................................................................................19 9. References...........................................................................................20


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INTRODUCTION The relationship between a banker and a customer depends on the activities; products or services provided by bank to its customers or availed by the customer. Thus the relationship between a banker and customer is the transactional relationship. Bank‟s business depends much on the strong bondage with the customer. “Trust” plays an important role in bu ilding healthy relationship between a banker and customer.

Definition of a ‘Banker’

Hulsbury‟s Laws of England states, “ A banker is individual , partnership or corporation, whose sole or predominating business is banking, that is, the receipt of money on current or deposit account, and t0he payment of cheques drawn by and the collection of cheques paid in by a customer.” According to section 3 of the NI Act, 1881, banker includes any person acting as a banker and any post office savings bank. According to section 5(b) of the Banking Regulation Act, 1949, banking means the accepting, for the purpose of lending or investment, of deposits of money from the public, repayable on demand or otherwise, and withdrawable by cheque, draft, order or otherwise. To sum up a banker is who 1)

Take deposit account

2)

Take current accounts

3)

Issue and pay cheques

4)

Collect cheques crossed and uncrossed for his customers.

Money lender is not considered as a banker as mere lending does not constitute banking business. Banker is an institution which borrows money by accepting deposits from the public for the purpose of lending to those who are in need of money.


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Who is a ‘Customer’?

The term Customer has not been defined by any act. The word „customer‟ has been derived from the word „custom‟, which means a „habit or tendency‟ to-do certain things in a regular or a particular manner‟s . In terms of Sec.131 of Negotiable Instrument Act, when a banker receives payment of a crossed cheque in good faith and without negligence for a customer, the bank does not incur any liability to the true owner of the cheque by reason only of having received such payment. It obviously means that to become a customer account relationship is must. Account relationship is a contractual relationship.

Banker-Customer Relationship

Banking is a trust-based relationship. There are numerous kinds of relationship between the bank and the customer. The relationship between a banker and a customer depends on the type of transaction. Thus the relationship is based on contract, and on certain terms and conditions. These relationships confer certain rights and obligations both on the part of the banker and on the customer. However, the personal relationship between the bank and its customers is the long lasting relationship. Some banks even say that they have generation-togeneration banking relationship with their customers. The banker customer relationship is fiducial relationship. The terms and conditions governing the relationship is not be leaked by the banker to a third party.

Classification of Relationship

The relationship between a bank and its customers can be broadly categorized in to General Relationship and Special Relationship. If we look at Sec 5(b) of Banking Regulation Act, we would notice that bank‟s business hovers around accepting of deposits for the purposes of lending. Thus the relationship arising out of these two main activities are known as General Relationship. In addition to these two activities banks also undertake other activities mentioned in Sec.6 of Banking Regulation Act. Relationship arising out of the activities mentioned in Sec.6 of the act is termed as special relationship.


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General Relationship Debtor-Creditor: The general relationship between banker and customer is that of a debtor

and creditor i.e. borrower and lender‟. In F oley v. Hi ll 1 , Sir John Paget remarks, “The relationship of a banker and customer is primarily that of debtor and creditor, the respective positions being determined by the existing state of account. Instead of the money being set apart in a safe room, it is replaced by the debt due from the banker. The money deposited with him becomes his property, and is absolutely, at his disposal, and, save as regards the following of the trust funds into his hands, the receipt of money by a banker from or on account of his customer constitutes him merely the debtor of the customer with „super added‟ obligation to honour his customer‟s cheques drawn upon his balance, in so far the same is sufficient and available”. 2 In Shanth i Prasad Jain v. Dir ector of E nf orcement, F oreign Ex change Regulati on , the SC

held that the banker and customer relationship in respect of the money deposited in the account of a customer with the bank is that of a debtor and a creditor. On the opening of an account a banker assumes the position of a debtor. The money deposited by the customer with the bank is in legal terms lent by the customer to the banker who makes use of the same according to his discretion. The creditor has the right to demand back his money from the banker, and the banker is under an obligation to repay the debt as and when he is required to do so. A depositor remains a creditor of his banker so long as his account carries a credit balance. But he does not get any charge over the assets of his debtor/banker and remains an unsecured creditor of the banker. Since the introduction of deposit insurance in India in 1962 the element of risk of the depositor is minimized as Deposit Insurance and Credit Guarantee Corporation undertakes to insure the deposits upto a specified amount. Banker‟s relation with the customer is reversed as soon as the customer‟s account is overdrawn. Banker becomes creditor of the customer who has taken a loan from the banker and continues in that capacity till the loan is repaid. As the loans and advances granted by a

1

(1848) 2 H LC 28). AIR 1964 SC 1023=1963 Supp. (1) SCR 514.

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banker are usually secured by the tangible assets of the borrower, the banker becomes a secured creditor of his customer. 2. Creditor – Debtor: Lending money is the most important activities of a bank. The

resources mobilized by banks are utilized for lending operations. Customer who borrows money from bank owns money to the bank. In the case of any loan/advances account, the banker is the creditor and the customer is the debtor. The relationship in the first case when a person deposits money with the bank reverses when he borrows money from the bank. Borrower executes documents and offer security to the bank before utilizing the credit facility. In addition to opening of a deposit/loan account banks provide variety of services, which makes the relationship more wide and complex. Depending upon the type of services rendered and the nature of transaction, the banker acts as a bailee, trustee, principal, agent, lessor, custodian etc.

Special Relationship 1. Bank as a Trustee:

As per Sec. 3 of Indian Trust Act, 1882 „ A "trust" is an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner.‟ Thus trustee is the holder of pr operty on behalf of a beneficiary. As per Sec. 153 „A trustee is bound to deal with the trust -property as carefully as a man of ordinary prudence would deal with such property if it were his own; and, in the absence of a contract to the contrary, a trustee so dealing is not responsible for the loss, destruction or deterioration of the trust- property.‟ A trustee has the right to reimbursement of expenses (Sec.32 of Indian Trust Act.).

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Indian Trust Act, 1882 HIDAYATULLAH NATIONAL LAW UNIVERSITY, RAIPUR

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In case of trust banker customer relationship is a special contract. In Canara Bank v. Canara 4

Sales Corpor ation , the Supreme Court held that, there is alwys an element of trust between

the bank and its custemer. The banks business depends upon this trust. 2. Bailee – Bailor:

Sec.148 of Indian Contract Act, 1872, defines "Bailment" "bailor" and "bailee". A "bailment" is the delivery of goods by one person to another for some purpose, upon a contract that they shall, when the purpose is accomplished, be returned or otherwise disposed of according to the directions 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". Banks secure their advances by obtaining tangible securities. In some cases physical possession of securities goods (Pledge), valuables, bonds etc., are taken. While taking physical possession of securities the bank becomes bailee and the customer bailor. Banks also keeps articles, valuables, securities etc., of its customers in Safe Custody and acts as a Bailee. As a bailee the bank is required to take care of the goods bailed. In Punj ab National Bank v K.B. Shetty,5 the bank was held liable for the negligence in taking care of the maintenance and operation of lockers resulting in the customer losing some ornaments. Banker is authorised to unilaterally increas locker charges but cannot impose on existting customer the requirement of advance payment of rent for 5 years. 6 Further the bank has right to revise the locker rent from time to time according to its own cost factors. The hirer cannot protest against it. He can only withdraw if he does not like it. 7 3.Lessor and Lessee:

Sec.105 of „Transfer of property Act 1882‟ defines lease, Lessor, lessee, premium and rent. As per the section “A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to

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A.I.R. 1987 S.C. : (1987) 62 Com. Cas. 280. (1991) 2 C.P.R. 633. 6 S.L. Bhargava v. U.C.O. Bank, (1993) C.P.J. 958. 7 Mihir Kumar v. U.B.I., (2002) 2 C.P.J. 38 (N.C.). 5


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be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.”

Definition of Lessor, lessee, premium and rent:

(1)The transferor is called the lessor, (2)The transferee is called the lessee, (3)The price is called the premium, and (4)The money, share, service or other thing to be so rendered is called the rent.” Providing safe deposit lockers is as an ancillary service provided by banks to customers. While providing Safe Deposit Vault/locker facility to their customers bank enters into an agreement with the customer. The agreement is known as “Memorandum of letting” and attracts stamp duty. The relationship between the bank and the customer is that of lessor and lessee. Banks lease (hire lockers to their customers) their immovable property to the customer and give them the right to enjoy such property during the specified period i.e. during the office/ banking hours and charge rentals. Bank has the right to break-open the locker in case the locker holder defaults in payment of rent. Banks do not assume any liability or responsibility in case of any damage to the contents kept in the locker. Banks do not insure the contents kept in the lockers by customers. 4. Agent and Principal: Sec.182 of „The Indian Contract Act, 1872‟ defines “an agent” as a person employed to do

any act for another or to represent another in dealings with third persons. The person for whom such act is done or who is so represented is called “the Principal”. Thus an agent is a person, who acts for and on behalf of the principal and under the latter‟s express or implied authority and the acts done within such authority are binding on his principal and, the principal is liable to the party for the acts of the agent. In all such cases bank act as agent of the customer and provisions of agency will continue to apply. Rights and duties of bank vis-avis customer will be agent and principal as provided under Indian Contract Act, 1872.


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In Bank of I ndia v. Off icial L iquidator,8 it was held that when a customer sends cheques for collection to the banker. His (banker) role becomes as an agent of the customer. 5. As a Custodian: A custodian is a person who acts as a caretaker of some thing. Banks take

legal responsibility for a customer‟s securities. While opening a dmat account bank becomes a custodian. 6. As a Guarantor: Banks give guarantee on behalf of their customers and enter in to their

shoes. Guarantee is a contingent contract. As per sec 31,of Indian contract Act guarantee is a " contingent contract ". Contingent contract is a contract to do or not to do something, if some event, collateral to such contract, does or does not happen. It would thus be observed that banker customer relationship is transactional relationship.

7. Mortgager and Mortgagee: “ Mortgager one who transfers an interest in specific

immovable property by creating a mortgage. Generally it is made for the purpose of securing the payment of money advanced or to be advanced by way of a loan, an existing or future debt or performance of an agreement which may give rise to pecuniary liability. A customer of the bank often takes advances from the bank on the security of immovable property. The customer is “mortgagor” and the bank is “mortgagee” and their relation is governed under the provision of the Transfer of Property Act.

8. Pawnor and Pawnee: A customer of the bank takes loan from the bank by way of security

of moveable property is called Pawnor (pledgee) and the relation between customer and banker stands Pawnor (pledgor) or Pawnee (pledgee). A pawn is a sort of bailment in which goods or chattels are delivered to anather as a pawn, to be a security of money borrowed. In Vimal Chandra Grover v. Bank of I ndia,9 the Bank provided overdraft facility of Rs. 5 lacs on the security of sharees of over more than 10 lacs with a condition to sell the shares and set off the debt. It was held that there was relation of Pawnee and Pawnor between the banker and the customer.

8

A.I.R. 1915 Bom. 375. A.I.R. 2000 S.C. 2181.

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Termination of relationship between a banker and a customer:

The relationship between a bank and a customer ceases on: (a) The death, insolvency, lunacy of the customer. (b) The customer closing the account i.e. Voluntary termination. (c) Liquidation of the company. (d) The closing of the account by the bank after giving due notice. (e) The completion of the contract or the specific transaction. (f) Under the operation of law. (g) Undesirable account of the Customer. The relationship developed between a banker and customer involves some duties on the part of both. Duties of a Banker

A 'Banker' has certain duties vis-à-vis his customer. These are: (a) Duty to maintain secrecy/confidentiality of customers' accounts. (b) Duty to honour cheques drawn by customers on their accounts and collect cheque, bills on his behalf. (c) Duty to pay bills etc., as per standing instructions of the customer. (d) Duty to provide proper services. (e) Duty to act as per the directions given by the customer. If directions are not given the banker has to act according to how he is expected to act. (f) Duty to submit periodical statements i.e. informing customers of the state of the account. (g) Articles/items kept should not be released to a third party without due authorization by the customer. Duty to maintain secrecy:

Banker has a duty to maintain secrecy of customers' accounts. Maintaining secrecy is not only a moral duty but bank is legally bound to keep the affairs of the customer secret. The principle behind this duty is that disclosure about the dealings of the customer to any unauthorized person may harm the reputation of customer and the bank may be held liable. The duty of maintaining secrecy does not cease with the closing of account or on the death of the account holder. As per Sec. 13 of “Banking Com panies Acquisition and Transfer of HIDAYATULLAH NATIONAL LAW UNIVERSITY, RAIPUR

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Undertakings Act 1970”- “Every corresponding new bank shall observe, except as otherwise required by law, the practices and usages customary among bankers, and, in particular, it shall not divulge any information relating to or to the affairs of its constituents except in circumstances in which it is, in accordance with law or practices and usages customary among bankers, necessary or appropriate for the corresponding new bank to divulge such information.” Maintaining secrecy is implied terms of the contract with the customer which bank enters into with the customer at the time of opening an account. Bank has not only to maintain secrecy of transactions, but secrecy is also to be maintained in respect of operations through ATM/ debit cards. Bank has also to maintain secrecy of user ID pins with due care so that it does fall in wrong hands. Failure to maintain secrecy:

Bank is liable to pay damages to the account holder for loss of money and reputation if it fails in its duty to maintain secrecy and discloses information relating to a customer's account or conduct of the account to any unauthorized person. Bank can also be liable to the third party if its wrongful disclosure harms the interest of the third party. If bank Knowingly furnishes wrong information. There has been a misrepresentation over estimation of favourable opinion Circumstances under which banker can disclose information of customer's account:

A bank can disclose information regarding customer's account to a person(s) under the following circumstances: (a) Under compulsion of law. (b) Under banking practices. (c) For protecting national interest. (d) For protecting bank‟s own interest. (e) Under express or implied consent of the customer.


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Disclosure under compulsion of law:

Banks disclose information to various authorities who by virtue of powers vested in them under provisions of various acts require banks to furnish information about customer‟s account. The information is called under: (i)

Section 4 of Banker's Book Evidence Act, 1891

(ii)

Section 94 (3) of Code of Civil Procedure Act, 1908

(iii)

Section 45 (B) of Reserve Bank of India Act, 1934

(iv)

Section 26 of Banking Regulation Act, 1949

(iv)

Section 36 of Gift Tax Act, 1958

(v)

Sections 131, 133 of Income Tax Act, 1961

(vi)

Section 29 of Industrial Development Bank of India Act, 1964

(vii)

Section 12of Foreign Exchange Management Act, (FEMA) 1999

(viii)

Section 12 of the Prevention of Money Laundering Act, 2002

Banks are required to furnish only the called for information (no additional information is to be furnished) on receipt of written request of the person who is vested with the authority to call for such information under the said acts. The customer is kept informed about the disclosure of the information. Disclosure under banking practices:

In order to ascertain financial position and credit worthiness of the person banks obtain information from other banks with which they are maintaining accounts. It is an established practice among bankers and implied consent of the customer is presumed to exist. The opinion is given in strictest confidence and without responsibility on the part of the bank furnishing such information. Credit information is furnished in coded terms to other banks on IBA format and without signatures. 2. Duty to provide proper accounts :

Banks are under duty bound to provide proper accounts to the customer of all the transactions done by him. Bank is required to submit a statement of accounts / passbook to the customer containing all the credits and debits in the account.


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3. Duty to honour cheques:

banker accepts the deposits from the customer with an obligation to repay it to him on demand or otherwise. The banker is therefore under a statutory obligation to honour his customer‟s cheques because, it is recognized under section 31 of the NI Act, 1881. The drawee of a cheque having sufficient funds of the drawer in his hands properly applicable to the payment of such cheque must pay the cheque when duly required so to do, and, in default of such payment, must compensate the drawer for any loss or damage caused by such default. Thus the banker is bound to honour his customer‟s cheques provided the following conditions are fulfilled(a) Sufficient balance in customer‟s account (b) Presentation of cheques within working hours of business (c) Presentation of cheques within reasonable time after ostensible date of its issue (d) Cheques should be presented at the branch where account is kept (e) Fulfilment of requirements of law

Bank can refuse to honour the cheques if: There is in sufficient balance in the account to

make payment of the cheque. Cheque issued does not pertain to the account on which it has been drawn. 1. If the cheque is not in order (post dated, stale, payment countermanded, amount in words and figure differs, etc.) 2. The balances held in account are earmarked for some specific purpose and the remaining balance is not sufficient to honour the cheque.


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Rights of a Banker:

It is not that the bank has only duties to wards its customers, it too has certain rights vis-à-vis his customers. The rights can broadly be classified as: Banker’s right of general lien

One of the important rights enjoyed by a banker is the right of general lien. Lien means the right of the creditor to retain goods and securities owned by the debtor until the debt due from him is paid. It may either be general or particular. 10 In Br ando v. Barn et , it was held that bankers most undoubtedly have a general lien on all

securities deposited with them as bankers unless there is an express or implied contract inconsistent with lien. In India sec 171 of the Indian Contract Act confers general lien upon bankers as follows bankers…..may in absence of a contract to the contrary, retain as a security for a general balance of account, any goods bailed to them. Explaination of the banker’s right of general lien

Lien means a legal claim to hold property as security. According to Halsbury, lien may be defined as “a right in man to retain that which is in his possession belonging to another, until certain demands of the person in possession is satisfied”. Lien is of two kinds- 1) specific or particular lien and 2) general lien A particular lien is one which confers a right to retain the goods in connection with a particular debt only while a general lien is a right to retain all the goods or any property of another until all the claims of the holder are satisfied. It extends to all transactions and thus more extensive.

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(1846). 12 C&F 787.


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Circumstances for exercising general lien:

1)

No agreement inconsistent with the right of lien.

2)

Property must be possessed in his capacity as a banker.

3)

Possession should be lawfully obtained.

4)

Property should not be entrusted to the banker for a specific purpose.

Incidents of lien:- lien attaches to:

1)

Bills of exchange or cheques deposited for collection or pending discount.

2)

Dividend warrants and interest warrants paid to the banker under mandates issued by the customer.

3)

Securities deposited to secure specific loan but left in banker‟s hand after loan is repaid.

4)

Securities, negotiable or not, which the banker has purchased or taken up, at the request of customer, for the amount paid.

Exceptions:- banker has no general lien

1)

On safe custody deposits.

2)

On securities or bills of exchange entrusted for specific purpose.

3)

On articles lefty by mistake or negligence.

4)

On deposit account.

5)

On stolen bond.

6)

Until due date of the loan.

7)

On trust account.

8)

On title deeds of immovable properties.


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Banker’s right of set-off

The right to set off is a statutory right which enables debtor to take into account a debt owing to him by a creditor, before the latter could recover the debt due to him from the debtor. Thus when a customer keeps two or more accounts at the same bank, some of which are overdrawn and some in credit, the bank has a right to combine such accounts and pay the resultant balance. In H alesowen Pr esscook and Assembl ies L td v. Westmi ni ster Ban k L td,11 it was held that a banker has the right to combine two accounts and to set off unless he has made some agreement express or implied to the contrary. Banker’s right for appropriation of payment

when a debtor owes two or more debts to a creditor and he pays some amount which is not sufficient to meet any debt to the creditor appropriation is done. It applies to a banker if the customer has more than one deposit or more than one loan account. In Devaynes v. Nobl e,12 famously known as Clayton’s case, a principle was laid down as to when the customer has current account and deposits and withdraws money frequently the first item on debit side will be discharged by the first item on credit side. The credit entries in the account adjust or set off the debit entries in chronological order. Banker’s right to claim incidental charges

the banker may claim incidental charges on unremunerative accounts such as service charges, processing charges, ledger folio charges, appraisal charges, penal charges and so on. Banker’s right to charge compound charges

A banker has a special privilege to charge compound interest. In Syndi cate Ban k v. West 13

Bengal Cement Ltd , the adding of unpaid interest due to the principal amount is

recognized. However, the SC abolished this in case of agricultural loans in the Bank of India case.

11

[1972] AC 785. (1816) 35 ER 781. 13 99 (2002) DLT 420. 12


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CONCLUSION


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REFERENCES BOOKS REFFERED: 

rd

, 23 Edition 2010, Lexis Tannan, ML, Tannan‟s Bankin g Law and Practice in I ndia Nexis Butterworths Wadhwa, Nagpur.



Varshney P.N., Banki ng Law and Practice , 13th Edition, 2010, Jain Book Agency, Delhi.



Gupta S.N., Banki ng L aw in Th eory and Practice , 5 th Edition, 2010, Universal Law Publishing Co. Pvt. Ltd.



Shekhar K.C. & Shekhar Lekshmy, Banki ng-Th eory and Pr actice , 20th Edition, 2011, Jain Book Agency, Delhi.





Singh Avtar; Banking and Negotiable Instruments, 2nd Edition 2011, Eastern Book Company. Myneni Dr. S.R.; Law of Bankings,1st Edition, 2006Asian Law House Hyderabad.

WEBSITES REFFERED: 

hanumant.comBanking20law20-20Meenakshi20Natesan.html



vidyagyan.blogspot.com/2009/09/relationship-between -banker-and.html



www.indg.in/financial.../relationship _ between _ banker_and_customer .pd..



www.scribd.com/.../GENERAL-RELATIONSHIP-BETWEEN-BANKER ...



http://buildupyourbankingknowledge.blogspot.in/2010/07/banker-customer-generalrelationship.html


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Anil Yadav Final Project of Banking Law

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