Regarding mortgage the property
karthikeya manickam_M
(Querist) 15 June 2014
This query is : Resolved
good noon all.
i bought a property before 22 years from the government directly.From that time i am maintaining my documents perfectly,including patta, chitta everything.but there was an encroachment in my property in 2009. regarding that, i have filed a civil case to vacate. i have the nil-encumbrance-certificate from the year 1905.I have the current nil-encumbrance-certificate too,[april 2014] in the name of me.All the documents are perfect.
Please remember, there is no claim or case of my property from any body.
Now, i am in need of some money. so can i mortgage my property to someone and register it, in registrar's office?
Devajyoti Barman
(Expert) 15 June 2014
If there is no injunction order on transfer of this property, you can safely mortgage the same for raisingn some money.
ABDUL RAZIQUE
(Expert) 15 June 2014
The lands assigned to Patta may be mortgaged to the Government or to a Co-operative Society recognized by the Government including a land Mortgage Bank, Nationalised Bank (that is a corresponding New Bank as defined in the Banking Companies Acquisition and Transfer of
Undertakings Act, 1970), State Bank of India and its Subsidiaries and all
Scheduled Banks, or the Panchayat Samithi for obtaining any loan for the development of the land. The loan to be advanced will be paid in installments as fixed.
Dr J C Vashista
(Expert) 16 June 2014
1. What sort of encomberance is there on the property?
2. You are a lessee (have patta) and not the owner of the property, isn't it?
R.K Nanda
(Expert) 16 June 2014
agree with experts.
Rajendra K Goyal
(Expert) 16 June 2014
If there is no injunction from court you can proceed for mortgage or sale.
ajay sethi
(Expert) 16 June 2014
you can mortgage the property
karthikeya manickam_M
(Querist) 16 June 2014
Good noon all sir,
Thanking you., thank you so much. and can you please assert,as per which number of law it is perfectly possible.
because i should mention when i am going for report in case my mortgage is rejected.
And for Dr. J.C Vashista -- I am only the owner not a lesse.
Sankaranarayanan
(Expert) 16 June 2014
If title is clear then you can approach the bank and get the loan by way of mortgage of your property, Without repaying capacity most of the banks are not ready to give loan.
K.K.Ganguly
(Expert) 16 June 2014
1. If you are the title holder of the property which is unencumbered, then you can mortgage the said property to create security interest on the loan to be availed by you from the Bank,
2. It is not barred by any law,
3. So, you can apply for the loan,
4. First visit the Bank and talk to the Manager in this regard.
Dr J C Vashista
(Expert) 17 June 2014
Contact bank with property documents and proceed as advised by Mr. K K Ganguli and Sh. Shankar Narayanan, I fully agree with their expert advise.
Anirudh
(Expert) 17 June 2014
You say that but there was an encroachment in your property. THAT ITSELF IS AN ENCUMBRANCE.
Therefore while you may try to mortgage the property to bank or financial institution to meet your immediate financial needs, please be aware that the Banks and Financial Institutions will definitely do due diligence of the property and would come to know about the encroachment. After noticing it, either they may or may not agree to take your property on mortgage.
Devajyoti Barman
(Expert) 17 June 2014
Mortgage has nothing to do with the encumbrance.
Go ahead with the mortgage.
Anirudh
(Expert) 17 June 2014
That is OK. Whether even now there is encroachment on the property or not?
Advocate. Arunagiri
(Expert) 17 June 2014
When you apply for a loan, when the financier / bank visits the site, and see some encroachment in the property, your loan will get rejected.
T. Kalaiselvan, Advocate
(Expert) 18 June 2014
If you have a valid and marketable title, you can go ahead with mortgage of the property or securing loan from private public sector banks. You said there was an encroachment in the year 2009, what is the present position of the said encroachment?
Dr J C Vashista
(Expert) 18 June 2014
The banker/financier will sanction loan on the basis of documents qua the property despite the fact that it has some encroachment. The encroachment although an encumbrance over the property which has nothing to do with hypothetication formalities.
However, get the encroachment/encoumbrance qua your property removed and take the possession back from the encroacher, through legal means i.e.,process of law/Court.
Raj Kumar Makkad
(Expert) 18 June 2014
Section 69 of The Transfer of Property act, 1882.
ABDUL RAZIQUE
(Expert) 21 June 2014
Central Government Act
Section 69 in The Transfer of Property Act, 1882
69. Power of sale when valid.—1[
(1) ] 2[3[***] A mortgagee, or any person acting on his behalf, shall, subject to the provisions of this section have power to sell or concur in selling the mortgaged property or any part thereof, in default of payment of the mortgage-money, without the intervention of the court, in the following cases and in no others, namely:—]
(a) where the mortgage is an English mortgage, and neither the mortgagor nor the mortgagee is a Hindu, Muhammadan or Buddhist 4[or a member of any other race, sect, tribe or class from time to time specified in this behalf by 5[the State Government], in the Official Gazette];
(b) where 6[a power of sale without the intervention of the court is expressly conferred on the mortgagee by the mortgage-deed and] the mortgagee is 7[the Government];
(c) where 6[a power of sale without the intervention of the court is expressly conferred on the mortgagee by the mortgage-deed and] the mortgaged property or any part thereof 8[was, on the date of the execution of the mortgage-deed], situate within the towns of Calcutta, Madras, Bombay, 9[***] 10[or in any other town11 or area which the State Government may, by notification in the Official Gazette, specify in this behalf.] 12[(2)] 13[***] No such power shall be exercised unless and until— 14[(a)] notice in writing requiring payment of the principal money has been served on the mortgagor, or on one of several mortgagors, and default has been made in payment of the principal money, or of part thereof, for three months after such service; or 15[(b)] some interest under the mortgage amounting at least to five hundred rupees is in arrear and unpaid for three months after becoming due. 16[(3)] When a sale has been made in professed exercise of such a power, the title of the purchaser shall not be impeachable on the ground that no case had arisen to authorise the sale, or that due notice was not given, or that the power was otherwise improperly or irregularly exercised; but any person damnified by an unauthorised or improper or irregular exercise or the power shall have his remedy in damages against the person exercising the power. 17[(4)] The money which is received by the mortgagee, arising from the sale, after discharge of prior encumbrances, if any, to which the sale is not made subject, or after payment into Court under section 57 of a sum to meet any prior encumbrance, shall, in the absence of a contract to the contrary, be held by him in trust to be applied by him, first, in payment of all costs, charges and expenses properly incurred by him as incident to the sale or any attempted sale; and, secondly, in discharge of the mortgage-money and costs and other money, if any, due under the mortgage; and the residue of the money so received shall be paid to the person entitled to the mortgaged property, or authorised to give receipts for the proceeds of the sale thereof. 18[(5) Nothing in this section or in section 69A applies to powers conferred before the first day of July, 1882.] 19[***]
Dr J C Vashista
(Expert) 22 June 2014
Dear Sh. Raj Kumar Makkar ji,
Is there any applicability of Section 69 of the TPA, 1882 in the instant case? With due regards I want to know for my personal knowledge.
Raj Kumar Makkad
(Expert) 22 June 2014
Section 69 of TP Act has erroneously been posted here instead of reply against another query opened in separate thread and as there is no option to delete hence it remains posted.
Please ignore the above-noted post.
