2nd Part_Negotiable Instrument

7/28/2019 2nd Part_Negotiable Instrument

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DISTINCTIONS BETWEEN NOTE AND BILL

a. Promise or order

A note contains an unconditional promise by the maker to pay the payee. While, a bill contains an

unconditional order of the drawer, to the drawee, to pay the payee.

b. Number of parties

A note has two parties, the maker and the payee. Whereas, a bill has three parties, the drawer, the draweeand the payee.

c. Whether maker, drawer can be payee?

In the case of a note, the maker cannot be the payee, since the same person cannot be both the promisor and

the promisee at the same time, while, in the case of a bill, the drawer can be the payee, e.g. pay to me or

order.

d. Position of payee

In the case of a note, the payee has immediate relation with the maker. Whereas, in the case of a bill, the

payee has immediate relation with the drawee.

e. Creation of liability

Making itself of a note creates liability of the maker. Whereas, acceptance of a bill creates liability of the

drawee.

f. Nature of liability

In the case of a note, the liability of the maker is primary and absolute. While, in the case of a bill, the

liability of the drawer is secondary and conditional. If the drawee does not accept the bill, only then the

liability of the drawer arises.

g. Whether operates as double securedNote does not operate as a double secured instrument. Whereas, a bill operates as a double secured

instrument, since the drawee is primarily, and the drawer is secondarily responsible for the bill.

h. Whether acceptance is required

A bill must be accepted by the drawee before payment, while a note does not require acceptance.

i. Notice of dishonour

When acceptance of a bill is denied, notice of dishonour must be given to the drawer and to the immediate

indorsers. Whereas, a note does not require acceptance, and as such, the question of notice of dishonour does

not arise at all.

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DISTINCTIONS BETWEEN BILL OF EXCHANGE AND CHEQUE

a. Whether drawn on a bank

A cheque is always drawn on a bank. While, a bill may be drawn on anyone, including a bank.

b. Whether payable on demand

A cheque must be drawn payable on demand. Whereas, a bill drawn payable on demand is absolutely void.

c. Whether acceptance is required

A bill must be accepted by the drawee before payment. While, a cheque does not require acceptance, since it

is intended for immediate payment.

d. Whether grace period is allowed

In the case of a bill payable after the expiry of a certain period, normally, a grace period of three days is

allowed in calculating the maturity date. A cheque is always payable on demand, and the question of grace

period does not arise at all.

e. Whether any time limitation for payment

A bill remains in circulation so long it remains unpaid. A cheque becomes stale if it is not presented within a

reasonable time, normally six months.

f. Scope of activity

The scope of activity of a bill is wider than that of a cheque.

g. Special form

In the case of a bill, no special form is necessary. A cheque is always drawn on a paper specially supplied by

the bank.

h. Whether need to be stamped

A bill must be properly stamped. A cheque need not be stamped.

i. Whether countermanding is possible

A cheque can be countermanded by the drawer, but not a bill.

j. Whether crossing is possible

A cheque may be crossed, but not a bill;

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DISTINCTIONS BETWEEN NOTE AND CHEQUE

a. Promise or Order

A note contains an unconditional promise. While, a cheque contains an unconditional order.

b. Number of Parties

A note has two parties, maker and payee. Whereas, a cheque has three parties, drawer, drawee and payee.

c. Whether any formality is required

In the case of a note, no formality is necessary, while a cheque is always drawn on paper supplied by the

banker.

d. Whether payable on demand

A note is payable on the expiry of a certain period or on demand. Whereas, a cheque is always payable on

demand.

e. Whether drawn on a Bank

A note can be drawn on any person, including a banker. While, a cheque is always drawn on a specifiedbanker.

f. Creation of Liability

In the case of a note making itself creates liability. Contractual relation between drawer and drawee, i.e.

banker creates liability.

KINDS OF CHEQUES

a. Open cheque

An open cheque is one which is payable in cash across the counter of the bank. Obviously, such a cheque is

exposed to great risk in the course of circulation, e.g. it may be stolen or lost, and any person getting hold of

it, can encash it, unless the drawer has already countermanded the payment.

b. Crossed cheque

A crossed cheque is one which has two short parallel lines marked across its face. It is payable only to

another bank through which it is presented. Naturally, it will not be paid across the counter. Crossed cheque

affords great protection to the payee.

Section 123 defines general crossing:.. ..

& Co Not Negotiable.. . ..

Section 124 defines special crossing:

. .

Sonali Bank, Motijheel Branch Sonali Bank, Motijheel Bank, Not Negotiable

.. .

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A cheque crossed specially will be paid when it is presented for collection by the bank named between the

parallel lines.

Not negotiable

A cheque containing the words not negotiable losses its features of negotiability, i.e. transferability free from

defects and transferability by indorsement. It is like any goods. The trransferee will get the same rights as

regards payment as the transferor (Section 130), but the transferee will not get the rights of a holder in due

course. So, the transferee takes it at his own risk. The object of not negotiable crossing is to afford protection

to the drawer or holder against miscarriage or dishonesty in the course of transit.

Account payee or restrictive crossing

Restrictive crossing has been adopted by commercial and banking usage. The term account payee only on a

cheque is interpreted as a direction to the receiving or collecting banker to credit the proceeds of the cheque

only to the account of the payee. If the banker goes against this order, i.e. if the collecting bank allows the

proceeds of a cheque so crossed to be credited to any other account, he will be guilty of negligence. Hence

account payee only crossed to be credited to any other account, he will be guilty of negligence. Hence

account payee only crossing is practically not negotiable as the banker will collect it on behalf of no person,other than the payee.

-------------------- -------------------- --------------------

A/C payee Mr.

Rahim only

A/C payee only A. B. Bank A/C

-------------------- -------------------- --------------------

WHEN A BANKER MUST REFUSE PAYMENT OF A CHEQUE

a. When the drawer countermands payment, i.e. instructs the banker not to honour a cheque. The effect ofsuch a notice is the same as if no cheque has been issued.

b. When the banker receives notice of the drawers death, since such a notice determines the authority of

the banker to honour cheques issued by the drawer.

c. When the drawer becomes insolvent.

d. When the Court declares the drawer insolvent and the banker receives Courts order attaching the money

of the drawer in the custody of the banker.

e. When the banker receives notice of drawers insanity.

f. When the cheque is irregular ambiguous, or otherwise materially altered.g. When the banker finds out that the holders title is defective.

h. When the banker receives notice of closing of account.

WHEN A BANKER MAY REFUSE PAYMENT OF A CHEQUE

a. When the banker has insufficient funds of the drawer with him.

b. When a cheque is of doubtful legality.

c. When a cheque is not duly presented, e.g. presented after banking hour.

d. (In the case of joint account) where the cheque has not been signed jointly.

e. Where a cheque has become stale, i.e. has not been presented within a reasonable period from the date of

payment. Such period is normally six months.

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2nd Part_Negotiable Instrument

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