OldWine007 (Service) 17 December 2012

Mortgage given by gharantor

One person after taking responsibility of my asset - destroyed it in March 2010. The value of the asset was about 5 lakh at that time. Thereafter - accepting his responsibility - he gave cheques of the principal amount which got bounced in April 2012 (This year). Lawyear's Notice was issued to him but the case was not filed as the person fell to my feet asking for mercy and stating his family condition and social status. I gave him chance to regain his ground. Now the person wants to mortgage a property of his sister-in-law till such time he procure money and release the mortgage.

Please let me know the legal procedure and authenticity of the mortgage by a third party as a guarantor. Can I sale and recover my money if he fails to pay me within stipulated time? If the mortgage is accepted, what would be my benefit of allowing him the time? Since the mortgage would be extended beyond three years of the time when the actua incidence took place, will my claim be time-barred and the mortgage would be revoked ?

Please help.

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3 Replies

Prasun Chandra Das (Banker) 17 December 2012

Why are you showing mercy to a person who (1) destroyed your asset, (2) has insufficient balance in his a/c to honour chqs, (3) does not seem to have any property/asset of Rs.5 lacs and wants to mortgage sister's property?

Mortgage is "transfer of interest in specific immovable property for the purpose of creating security for the money advanced or to be advanced, or for an existing or future debt or performance of an engagement giving rise to a pecuniary liability". So, there has to be a borrowing/debt/performance of an engagement giving rise to a pecuniary liability (that too in written form) between you two so that mortgage can even be enforced. Moreover, to practically enforce your right over the mortgaged property, you will have to spend lots of money and many years in courts. Pls note that SARFAESI is applicable to banks/FIs.

I am 100% sure that this person has no intention to pay. Pls do not show any leniency. File case u/s 138 and if he pays the money later, you can withdraw it.

Kumar Doab (FIN) 17 December 2012

Mr. Das has given valuable advice.Kindly followit.

This person seems to know many tricks and applying it to you.

Chetan Joshi (Advisory/Advocacy) 18 December 2012

Yes the mortgage deed via a third party will be binding...A fresh period of limitation will start from the date of mortgage deed which will act as acknowledge ment of his due debt.....

I am not too sure if he is really keen to return the money.....And I dont think that you can now file a 138 case for the limitaion is 30 days followed by a 15 day time......

Regards

Chetan(dot)7679(at)gmail(dot)com