T.P.Act
a.manoharan
(Querist) 11 May 2009
This query is : Resolved
What is the difference between Registered Memorandum of Deposit of Title Deeds and Registered Simple Mortgage except stamp duty and Registration Charges? Even though rights and liabilities of the Mortgagors in both are one and the same , I hope still there is some further between them. Any leading SC Judgement in discussing about them?
A V Vishal
(Expert) 11 May 2009
Equitable mortgage is evidenced by deposit of title deeds of the immovable properties. It is not to be created by a written deed, ( if it is in writing, it needs to be registered as per transfer of property act). Equitable mortgage is a simple deposit of title deeds for securing debts. The memorandum of having deposited the title deeds (as EM) can subsequent to the time of creaion be recorded in writing and the memorandum even be registered with less stamp duty. But Registered mortgage is in writing at the time of creation, stamped, and registered.
a.manoharan
(Querist) 11 May 2009
Dear Sir , Thank you very much for your immedite reply and I agree with you. My suspicion is that after Registered Memorandum of Deposit of Title Deeds , subsequently if it is come to know that the property is not belonging to Mortgagor or the Court decreed against the mortgagee as the property is not belonging to mortgagor , can the Mortgagee get personal decree against the Mortgagor. I think, there are so many SC & HC judgements mentioning that Equitable mortgage is an intention of mortgagor to create mortgage whenever the mortgagee requires. But, after registration only the recitals of that deed is applicable. Sir, You know well that the recitals of the Registered Memorandum of Deposit of Title Deeds will be concise and having the details only loan amount, Demand Promissory Note ,interest rate, particulars of title deeds whereas the recitals of the Registered Simple Mortgage will be vast . In these circumstances, which one is better? Either Registered Memorandum of Deposit of Title Deeds and Registered Simple Mortgage ? Sir, Any detailed SC judgement discussing both and the legal consequences of the same?
a.manoharan
(Querist) 11 May 2009
Dear Sir , Thank you very much for your immedite reply and I agree with you. My suspicion is that after Registered Memorandum of Deposit of Title Deeds , subsequently if it is come to know that the property is not belonging to Mortgagor or the Court decreed against the mortgagee as the property is not belonging to mortgagor , can the Mortgagee get personal decree against the Mortgagor. I think, there are so many SC & HC judgements mentioning that Equitable mortgage is an intention of mortgagor to create mortgage whenever the mortgagee requires. But, after registration only the recitals of that deed is applicable. Sir, You know well that the recitals of the Registered Memorandum of Deposit of Title Deeds will be concise and having the details only loan amount, Demand Promissory Note ,interest rate, particulars of title deeds and particulars of property whereas the recitals of the Registered Simple Mortgage will be vast . In these circumstances, which one is better? Either Registered Memorandum of Deposit of Title Deeds and Registered Simple Mortgage ? Sir, Any detailed SC judgement discussing both and the legal consequences of the same?
Y V Vishweshwar Rao
(Expert) 11 May 2009
Your above Query is multi fold .
1- EM
2- Regd Simple Mortgage
3- Dispute on Mortgaged Property & Decree
4- Preferecne - Em or Rgd Simple mortgage !
deferecne between EM & Simple Mortgage is rightly explaned by Sri Vishal Advocate
Prefernece- EM ro Simple Mortgage - will be at the option of the Mortgagee
Dispute is concernign the Ttile of the Mortgagor - it can be attended separatly , according to the facts & merits of the each cased
a.manoharan
(Querist) 11 May 2009
Dear Mr.Y.V.Vishweshwar Rao,
Thank you very much for your immediate reply and I agree with you that Preference - EM or Simple Mortgage - will be at the option of the Mortgagee. But, my question is that which one is safer for mortgagee ? EM or Simple Mortgage ? Why? If legal consequences in both are one and the same , why the Mortgagor should spend unnecessarily more amount for Registered Simple Mortgage in lieu of stamp duty and registration charges than EM. Still , I hope that there is little more difference between EM and Simple Mortgage . That is why the Government discriminates both EM and Simple Mortgage . That is why I need a detailed SC judgement discussing both and the legal consequences of the same. I hope that I have clearly expressed my need and expectation.
Uma parameswaran
(Expert) 12 May 2009
I think simple mortgage is more suitable for mortgagee.If the mortgagor fails to repay the loan the mortgagee has the right to sell the property and recover the loan amount and interest from the sale amount.
Y V Vishweshwar Rao
(Expert) 07 June 2009
1-In Simple Regd Mortgage the Mortgae is to be created by execution and Registration of the Mortgage Deed - it will relfelcted in the Encumbrances Certificates .
2-In Equitable Mortgage - creration of mortgage by deposit of title deed with creditors and on subsequent day a memorandum of Equitabel mortgage will be writtne and singed by the Mortgagor recordign the deposit of title Deeds as security for the Debt . Previously there is no usage of Registration of the Memorandum of EM as such there was no record with SRO and in ECs there are no reflections - but now the memorandum of EM is also being Registered with less stamp duty and it is relcted in the EC .
3-Both- equitabel Mortgages and Simple Registered mortgages have to be enforced in the same procedure , there is no change in enforcing the Mortgages for recovery of Due amount
4- Where all the Ttile Deeds are Registered and admissible in Evidence as per the law , the Equitable mortgage is suitable
5- Where the Title is established by Pahanies/Record of Rights /long standing possesion /municipal Records - and no dispute regardign the title of the party- but there is no valid Registered Title deed to the Property - The Simple Registered Mortgage is suitable !
