Legal & statutory provisions affecting indian bankers


1. Legal Provisions Impacting Banking Operations

  • Negotiable Instruments Act, 1881:
    • Defines Negotiable Instruments such as Promissory Notes, Bills of Exchange, and Cheques, which are transferable and give the transferee a better title than the transferor.
    • Some other instruments like Railway Receipts, Bills of Lading, and Warehouse Receipts are also treated as negotiable instruments.
  • Banking Regulation Act, 1949:
    • Section 20: Banks are prohibited from granting loans against their own shares.
    • Section 24: Mandates banks to maintain Statutory Liquidity Ratio (SLR) in cash, gold, or approved securities.
    • Section 26A: Banks must transfer to the RBI any unclaimed deposits that have been inactive for 10 years.
    • Sections 45ZA to 45ZF: Govern the Nomination process in deposits, safe custody, and locker accounts.
  • Companies Act, 2013:
    • All companies, including banking businesses, must be registered under the Companies Act to be considered legal.
    • Section 125: Mandates registration of charges on company property, which could include mortgages or equitable charges.

2. Right of Lien and Set-Off

  • Banker’s Right of Lien:
    • The bank has a right of lien over goods and securities in its possession to secure a debt.
    • This lien can be exercised on securities for loans or unpaid locker rentals.
    • The lien may be specific (for particular debts) or general (for any debt owed to the bank).
  • Right of Set-Off:
    • Banks have the statutory right to set off a customer’s deposit to cover any outstanding debt unless explicitly prohibited by contract.
    • A reasonable notice should be given to customers before exercising this right to avoid complications like wrongful dishonor of cheques.

3. Major Regulatory and Statutory Legislation

  • Reserve Bank of India Act, 1934: Provides the regulatory framework for the functioning of the RBI and its role in controlling the monetary system.
  • Foreign Exchange Management Act (FEMA), 1999: Governs foreign exchange transactions, including the regulation of payments and investments across borders.
  • Prevention of Money Laundering Act (PMLA), 2002: Sets out provisions for anti-money laundering (AML) practices and reporting suspicious transactions to the authorities.
  • Insolvency and Bankruptcy Code, 2016: Regulates the resolution of financial insolvencies, including the recovery of dues from defaulting companies.

4. Banker’s Rights in Case of Default and Legal Actions

  • Garnishee Orders and Attachment Orders:
    • Garnishee Orders are issued by a court to a third party (e.g., a bank) holding the debtor’s money to attach funds for debt recovery.
    • Attachment Orders are issued by government authorities, like Income Tax or Sales Tax, to recover statutory dues.

5. Compliance and Ethical Standards

  • Regulatory Compliance:
    • Banks must ensure compliance with statutory and regulatory provisions from bodies like RBI, SEBI, and IBC.
    • Banks should comply with internal policies, market conduct standards, and codes of practice set by associations like the Indian Banks Association (IBA), FIMMDA, and BCSBI.
  • Whistleblower Policy:
    • Banks have whistleblower mechanisms that encourage employees and directors to report unethical conduct, ensuring transparency and accountability.

6. Key Advisory Bodies

  • Indian Banks Association (IBA): Provides guidelines on banking practices and standards.
  • Fixed Income Money Market and Derivatives Association of India (FIMMDA): Oversees standards for the trading of debt securities.
  • Foreign Exchange Dealers Association of India (FEDAI): Regulates the forex market and ensures compliance with foreign exchange regulations.