Wednesday 11 May 2016

MORTGAGE OF PROPERTY


 MORTGAGE OF PROPERTY



Yes, you can attach the Guarantor’s property as long as Bank has the first charge on that property and such properties can be attached irrespective of belonging to the Borrower or Guarantor. What is required is property must be charged to the Bank and while issuing notice of 60 days, you must ensure that Borrower as well as Guarantors are served with Sec.13 Notice, without exception.


If after receipt of the Securitisation Notice, during the period of 60 days or thereafter, if the Borrower or Guarantor sells or assigns, such dealer assignment is an illegality and therefore the Purchaser or the Act, if any person contravenes or abets the contravention, the provision of the Act or any rule made thereunder, he shall be punishable with imprisonment, which may extend for a period of one year or with fine, or with both.

Therefore, if anybody transfers or sells the charged properties after receipt of the Securitisation notice, the person who is the Purchaser, the Borrower and the Guarantor (in which the Bank has a secured interest), and if disposed, they may be prosecuted under Sec.29 before Judicial Magistrate 1st Class Court. Sec 29 provides that not only the contravention of the provisions of the Act but also rules made therein. Therefore, it is difficult for the Offender to escape from the Clutches of Law, if any (monkey business)  is done by him by disposing of the secured assets charged to most of his mischief, the Bank after getting the Notice u/s 13 (2) of the Act.

Moreover, in case of immovable properties, those are charged to the Bank are normally charged by creation of a Equitable or Registered Mortgage and almost all the Original Title Deeds are with Bank, as such, no. Original title deeds are left with Mortgagor. Hence, he cannot sell or dispose of the immovable properties, if done the Purchasers right to the property will be subject to Banks first claim being satisfied. However, assignment as invalid cannot be denied to the Bank and even criminal case can be filed by the Bank against all concerned in such cases.


Yes, if the State in which such Equitable Mortgage is made, there is a State Stamp Act, which prescribes Stamp Duty to be paid on such Equitable Mortgage created in the State, you must draw Memorandum of Entry which is required under State Law, the Stamp Officer of the State can enter the Bank and take physical possession of all those mortgaged documents, thereby the Bank will bereft of the security.

Not only the Bank should draw the Memorandum of Entry and affix stamp as required by State Law, but also the Memorandum of Entry must be entered in a Register maintained by the Bank for that purpose. Avoiding paying Stamp Duty on Memorandum of Entry is akin to sitting on a volcanic point.


Yes. This can be done but it will be a moral wrong on the part of the Bank as the intention is very clear to evade the legally payable State revenue, as if avoided to help the Borrower. However, when the Equitable Mortgage is created in a State, where there is no prescription of Stamp Duty payable on Memorandum Of Entry (MOE), it will be a perfect mortgage even it will be a perfect mortgage even if the property is situated outside that State. But, besides the aforesaid moral wrong, the Bank if it wants to invoke Securitisation Act or any other legal proceedings and rely upon the mortgage created outside the State, it is necessary that, within 30 days of these original documents being brought in the State in which here is the prescription of Stamp Duty payable on such mortgage, the Stamp Duty must be paid, and then only the mortgage can be recognised in a Court of Law or Tribunal, or for the purpose of taking action under Securitisation Act, in the State, where there is a requirement of paying Stamp Duty on MOE.

Therefore the Evidentiary value of the mortgage will be Nil, unless prescribed Stamp Duty is paid. Getting the MOE stamped at the time of going to Court is not a good practice as it may expose that the Bank is not stamping the MOE when executed, which is against Law and attract serious reactions from the Government.

Even when such mortgage documents are presented in the Court, the Court can impound the documents and send it to the State Authorities for non-stamping of those documents, which require such stamping under that State Law.

Under any circumstances, if there is no MOE made by the Bank, a fresh MOE must be made and given for stamping and stamps as well as penalties must be paid and the documents can be presented in judicial proceedings as Evidence. In certain cases, Banks do take a Power of Attorney to create such Equitable Mortgage in favour by the Bank Officer himself.

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