Section 58 (F) of the TP Act.
Querist :
Anonymous
(Querist) 05 June 2010
This query is : Resolved
Can an equitable mortgage created by deposit of duplicate copy of Title deed (a copy on Rs. 2/- stamp paper duly registered as a duplicate copy with the Registrar)be held as valid?
More so when the said equitable mortgage by deposit of title Deed is created in a Town which was not notified on the date of the Mortgage as required u/s 58(f) of the T.P.Act.
The Property which is alleged to be mortgaged (as aforesaid) already stands sold and registered in the name of the buyers for more than 12 years prior to the date of the Recovery Certificate and its attachment. Can the Recovery Officer order for auction of such property in terms of a Recovery Certificate issued on the basis of a Preliminary Decree passed by a High Court on the basis of duplicate copy of title deed inspite of objections raised by the present owners before him? The said duplicate copy of title deed or any mortgage deed or document relating to the said mortgage was ever admitted by the defendants and the Hon'ble High Court passed the preliminary decree since it proceeded ex-parte against the defendants. Even those documents are not on record.
Is there any law / judgment on the matter?
Surrender K Singal
(Expert) 08 June 2010
So, it is the problem of the Buyer who would be unconcerned with the recovery certificate; is it not ?
If he is aggrieved of the Preliminary Decree said to be ex-parte and against objections by the 12 years' old Buyer, he can follow Civil Appeallate course or even review petition for setting aside of 4ex-parte decree, satifying the Court of his bona fide absence resulting in ex-parte decree !
Querist :
Anonymous
(Querist) 08 June 2010
It is true that the buyer is not concerned with the recovery certificate. However, since his property was ordered to be attached after the issuance of the Recovery Certificate he has filed objections before the Recovery officer, DRT and the same are pending for disposal.
The Town in which the title deeds are alleged to have been handed over for creation of Equitable Mortgage was not a notified Town as required under the TP Act.
on the date of the creation of the alleged mortgage. Is there any judgment on this point? There is one judgment of DRAT which has held such mortgage as illegal.
