srinivas (shop owner) 16 July 2012
The borrower took the loan by securing the loan with wife's and father's property title deeds with their consent (but no written agreement with wife and father ) and failed to repay the loan. He also gave the promissory notes.
1. can this be treated as equitable mortgage?
2. In money recovery suit, do we get the attachment on these properties?
Ajit Singh Cheema (practising Advocate) 16 July 2012
Yes , it is an equitable mortgage, as the person has delivered to a creditor the documents of title to the immovable property ,with intent to create a security thereon ,this transaction is called equitable mortgage under section 58 (f) of Transfer Of Property Act .
Kindly note money recovery suit should be filed under Order 34 of CPC for enforcement of mortgage .Though there is no need of getting the property attached as it is already mortgaged , You may move an application for attachment and get it attached .
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