Section 58(f)
ashwin kamdar
(Querist) 25 November 2011
This query is : Resolved
Pl. let me know if section 58(f) of transfer of property act 1882 is applicable if the title deeds of immovable property are simply deposited with the bank in panvel-maharastra. There is no charge created by the bank.
Nadeem Qureshi
(Expert) 25 November 2011
Dear Ashwin
Read it.
Section 58 in The Transfer Of Property Act, 1882
58. " Mortgage"," mortgagor"," mortgagee"," mortgage- money" and" mortgage- deed" defined.- (a) A mortgage is the transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability. The transferor is called a mortgagor, the transferee a mortgagee; the principal money and interest of which payment is secured for the time being are called the mortgage- money, and the instrument (if any) by which the transfer is effected is called a mortgage- deed.
Simple mortgage.- (b) Where, without delivering possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgage- money, and agrees, expressly or impliedly, that, in the event of his failing to pay according to his contract, the mortgagee shall have a right to cause the mortgaged property to be sold and the proceeds of sale to be applied, so far as may be necessary, in payment of the mortgage- money, the transaction is called a simple mortgage and the mortgagee a simple mortgagee. Mortgage by conditional sale.- (c) Where the mortgagor ostensibly sells the mortgaged property-- on condition that on default of payment of the mortgage- money on a certain date the sale shall become absolute, or on condition that on such payment being made the sale shall become void, or on condition that on such payment being made the buyer shall transfer the property to the seller, the transaction is called a mortgage by conditional sale and the mortgagee a mortgagee by conditional sale: 1[ Provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale.] Usufructuary mortgage.- (d) Where the mortgagor delivers possession 1[ or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorizes him to retain such possession until payment of the mortgage- money, and to receive the rents and profits accruing from the property 2[ or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage- money, or partly in lieu of interest 3[ or] partly in payment of the mortgage- money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee. English mortgage.- (e) Where the mortgagor binds himself to re- pay the mortgage- money on a certain date, and transfers the mortgaged property absolutely to the mortgagee, but subject to a proviso that he will retransfer it to the mortgagor upon payment of the mortgage- money as agreed, the transaction is called an English mortgage. Mortgage by deposit of title- deeds.- 4[ (f) Where a person in any of the following towns, namely, the towns of Calcutta, Madras, 5[ and Bombay], 6[ and in any other
1. Ins. by Act 20 of 1929, s. 19. 2 Subs. by s. 19, ibid., for" and to appropriate them". 3 Subs. by s. 19, ibid., for" and". 4 Added by s. 19, ibid. 5 Subs. by the A. O. 1948, for" Bombay and Karachi". The word" and" had been ins. by the A. O. 1937. 6 The words" Rangoon, Moulmein, Bassein and Akyab" omitted by the A. O. 1937.
1[ town which the 2[ State Government concerned] may, by notification in the Official Gazette, specify in this behalf, delivers to a creditor or his agent documents of title to immoveable property, with intent to create a security thereon, the transaction is called a mortgage by deposit of title- deeds. Anomalous mortgage.- (g) A mortgage which is not a simple mortgage, a mortgage by conditional sale, an usufructuary mortgage, an English mortgage or a mortgage by deposit of title- deeds within the meaning of this section is called an anomalous mortgage.]
ashwin kamdar
(Querist) 25 November 2011
This query is : Resolved
Can a bank retained title deeds of immovable property of a gurantor which were deposited with the bank as colleteral security by the principal borrower, wherese gurantor is discharged by the court but principal borrower is not discharged
Sankaranarayanan
(Expert) 25 November 2011
You can get the details from the sub registered office of the local
Rajeev Kumar
(Expert) 25 November 2011
Mr. Nadeem has well explained
Shonee Kapoor
(Expert) 25 November 2011
righty stated.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
Devajyoti Barman
(Expert) 25 November 2011
What does lead you to think that your query is a simple one when you yourself seems to be ignorant about it?
ashwin kamdar
(Querist) 25 November 2011
can a bank retained title deeds stands in the name of a gurantor which were deposited with the bank by the principal borrower as colleteral security, wherese subsiquently gurantor is discharged by the court but principal borrower is not discharged
prabhakar singh
(Expert) 26 November 2011
No!The bank should now release these original deeds and should ask the principal borrower to furnish other collateral.
But why did not the guarantor prayed court for this direction to the bank in the case where in court discharged him???
ashwin kamdar
(Querist) 27 November 2011
It was mentioned very clearly in the contentions- i.e. "the bank has retained our title deeds unlawfully saying that simple deposit of title deeds was amounting to eqitable motgage" but as a matter of fact these title deeds were deposited with the bank at their Panvel (Maharastra) branch which is not a notified area as per the official gazette of Govt. of Maharastra and in that case bank has to register the mortgage deed and has to creat a charge on the title deeds which was not done so.{ as per Sec58(f)of Transfer of property Act 1882}
The judgement was delivered by Div.Jt.Registrar of Co-Op. Society, Mumbai after few days of the final hearing and I came to know only after I got the copy of the judgement. As such, there is no provision of rectification of order under MCS Act
M V Gupta
(Expert) 28 November 2011
The bank is not entitled to retain the title deeds of Guarantors property for two reasos: 1. There was no mortgage by deposit of title deeds as the place where the title deeds were deposited was not notified for purposes of Sec. 58(f) of the TP Act. 2. The gaurantor was dischsarged by the Court and consequently not under liablity to discharge the loan. (Generally the Guarantors are asked to create scurity to support their liablity to the Bnak under the Guarantee - here the guarantor has been discharged by the court).
