Today's Agenda: GUIDELINES AND OPERATING INSTRUCTIONS ON DOCUMENTATION
MEANING OF DOCUMENT:
- The term "document" as defined in Oxford Dictionary is "a deed, writing, inscription that furnishes evidence".
- This is a definition of wide import and would include even a piece of paper on which something is written by hand or typed or printed. However in legal arena the word document is given a different connotation.
- The definition of term "document" as given in Section 3 of Indian Evidence Act, 1872 is "a document shall include any matter written, expressed or described upon any substance by means of letters, figures or marks or by more than one of those means, which is intended to be used, or which may be used for the purpose of recording the same". The same definition is also given under Indian Penal Code.
SIGNIFICANCE OF DOCUMENTATION:
- Documents are the foundation upon which the superstructure of a legal/contractual relationship is built. Documents are of great importance as they assume the character of primary evidence in determining the rights and obligations of the respective parties in the day to day conduct of the account as well as when dispute arises between them.
- The terms and conditions of loans/advances, securities charged and repayment are reduced in writing which in turn helps to avoid and resolve the ambiguities if any. Correct and properly executed valid documentation ensures safety of the creditor's advances. It also helps in enforcing the security belonging to the borrowers when a suit is instituted in a court of law on default of the borrower
Proper documentation involves the following:
- Selection of appropriate format of documents.
- Proper execution of the documents
- Due stamping of the documents as per Stamp Act (where ever required as per the law)
- Due registration with the appropriate authority agency / authority wherever required and within the time stipulated by law.
BASIS OF DOCUMENTATION:
Documentation varies depending upon the following factors:
- Kind and constitution of Borrowers
- Type of credit facilities sanctioned
- Type of security offered
- Nature of charge to be created
Type of Borrowers
- Joint Account Holders
- Sole Proprietorship Concerns
- Partnership Firms
- Hindu Undivided Family (HUF)
- Companies-Private and Public
- Clubs, Societies etc.
Kinds of Securities
- Movable Assets
- Fixed Assets
- Immovable Assets
- Financial Securities
GUIDELINES FOR EXECUTION OF DOCUMENTS
- The Bank should ensure that the borrower is not a minor, an undischarged insolvent or a lunatic. The individual may sign his full name or his abbreviated signature but it must be his own name and signature.
- If some one is signing under a Power of Attorney the following precautions should be taken to ensure that the POA is properly executed and is valid and subsisting.
- The Principal should be an identifiable one. The POA must be in force. It must have been notarized or executed before magistrate or a registered one if immovable property is involved.
- Branch may get confirmation in writing from the "Principal" while sanctioning / reviewing the limits, obtaining AOD etc., stating that POA is valid.
- The original POA must be verified to ensure the correctness of its contents and a copy obtained for branch records must be kept along with Loan papers. Since the POA is revocable it should be ensured that the Bank gets a confirmation regarding the existence of the POA.
Joint Account Holders:
- All the joint parties should join in the application for the advance and in signing the documents.
- Authority to either or any one of the joint parties to operate the current/ savings bank account in credit does not apply to borrowing without the concurrence of all of them.
- In the event of death, lunacy or insolvency of one or more joint borrowers, all operations in the account should be stopped and instructions be sought internally either for recovery of the dues or for continuance of the facility/ies to the remaining accountholders.
Hindu Undivided Family:
- The Joint Hindu Family declaration form duly stamped should be obtained. The form should be signed by the Karta and other major coparceners including females in their personal capacities and minors should be represented by their guardians.
- An Authority letter should be obtained from all the coparceners of the Joint Hindu Family in favour of the Karta authorizing the Karta to execute the necessary documents for the benefit of the Joint Hindu Family.
- Loan documents and other necessary documents should be signed by the Karta as the Karta of Joint Hindu Family after obtaining such Authority Letter from all members of Joint Hindu Family.
- Letter of Authority to operate the Borrowal account in favour of a third party partner should be signed by all the partners. Although one partner can bind the firm, it is necessary that all partners sign all the documents and letters of acknowledgment of debt/ revival letter.
- Loan documents should be executed by all partners in their capacity as partners and also in their personal capacities.
- If a limited company is a partner in a firm authorised persons of the company should sign documents showing the company as a partner.
- When the facility is secured by way of hypothecation/mortgage then instead of executing fresh documents only an acknowledgement of debt can be signed by all partners new and existing and also by the guarantors if any.
- However, if there is a change in constitution the firm may execute fresh documents along with acknowledgement of debt.
- In the event of death, retirement or insolvency of a partner, the operations in the account should be stopped on receipt of notice of such happening.
Companies-Private and/or Public:
Documents to be obtained at the time of consideration of proposal.
- Certificate of Incorporation
- Memorandum and Articles of Association.
- Certificate of Commencement of business (for public limited companies).
- Audited Balance Sheets and Profit and Loss accounts for the last 3 years.
- Copy of the Board Resolution authorizing the borrowing and other relevant matters.
Scrutiny of Documents:
- Borrowing Powers of Company
- Restrictions on Borrowing Powers of Directors
- Board Resolution: - Board Resolution
- the name of the Bank
- Paramount of borrowings and the types of facilities
- Names of the director(s) who are authorised to execute the documents.
- Names of the director(s) in whose presence the common seal of the company will be affixed on the documents as per the Articles of Association of the Company.
- Names of the directors who will deposit the title deeds belonging to the company for the purpose of creating an equitable mortgage.
- Names of the directors who are authorised to operate the accounts of the company and sign the acknowledgement of debts, revival letter/confirmation of balances and securities periodically
Clubs, Societies, etc:
- Since these bodies have no capacity to contract, the Individual members of such institutions are liable for any credit facility provided they sign the cheques in their personal capacity.
- In case a loan is to be entertained,
the bye-laws of the society or club should be studied to
- the purpose for which a loan could be raised,
- extent of borrowing powers,
- powers of managing committee to charge the assets of the club/society, etc.
- A resolution should be passed by the society/club in this regard.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.