Industrial Disputes: How to be settled? - Deepak Miglani
Industrial Dispute Act , and the provisions for Negotiation / Conciliation / Arbitration and Mediation are being discussed in this Article...
Monday, January 26, 2015
Thursday, January 15, 2015
Tuesday, January 13, 2015
Consumer protection in Indian finance: Going from ...
Ajay Shah's blog: Consumer protection in Indian finance: Going from ...: by Renuka Sane and Ajay Shah. Financial regulation in India, at present, is oriented towards product regulation. While protecting the in...
Saturday, January 10, 2015
Monday, January 5, 2015
Mortgage or Loan against Property in India
The expression “Mortgage” is a combination of two French words
“Mort” and “Gage” which has got a meaning of pledge. It is a transfer of
interest in an immovable property for securing the payment of money advanced as
a loan; and the same is defined under the section 58(a) of the Transfer of
Property Act, 1882, in India.
Mortgagor is the
transferor of interest in the immovable property; and Mortgagee is the transferee.
Every Owner of a property, with possession and statutory rights,
can mortgage his property, and a co-owner can mortgage his share of property.
In case of joint-share holders, they have to do jointly, and the liability will
be jointly and severally.
In case of Joint Hindu Families, a Kartha can bind other
coparceners for the Hindu Undivided Family properties for family business.
Different types of
Mortgages are:-
1. Simple / Registered
Mortgage-- As per
Section 58 (b) of the T.P Act, the mortgagor undertakes (binds himself personally) expressly or
impliedly to pay the advance (Mortgage money), and the Mortgagor does not deliver the
possession of mortgaged property (non-possessory mortgage). The property can be
sold only with the court intervention / permission. The registration
should be done within 4 months from the date of execution of the document (Sec
23 of Indian Registration Act), if the
value of the property involved is more than Rs. 100 ;and the registration is
mandatory (Section 59 of
Transfer of Property Act).
2. Mortgage by
conditional sale-- As per Section 58 (c) of the T.P Act, 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. The possession of
the mortgaged property is not transferred to mortgagee. It is an ostensible
sale (and not a real sale). In the case of non-payment of mortgage money, the
ostensible sale becomes a real/absolute sale (i.e. the property is deemed as
sold).
3.
Usufructuary Mortgage—Usufructuary
Mortgage is defined u/s 58(d) of the T.P Act.
The
mortgagee has the right to receive profits and rents accruing from the
property. The mortgagor does not bind himself personally for repayment of the
mortgage money. The mortgagee (lender) therefore cannot sue the mortgagor for
repayment of the mortgage debt. He cannot file suit for sale or foreclosure of
the mortgaged property. The mortgagee is left with only one remedy i.e. he can
appropriate the rents/profits towards liquidation of mortgage money and
interest thereon.
4. English Mortgage—English
Mortgage is defined under Sec 58(e) of the T.P Act. The mortgaged
property is transferred absolutely to the mortgagee. That is, all interests and
rights in the property are conveyed. It is different from simple mortgage. Thus
the English mortgage is entitled to immediate possession of mortgaged property.
The mortgagor binds himself personally to repay the mortgage money.
5. Mortgage by Deposit of Title Deeds (MDTD)—MDTD is
defined u/s 58(f) of the T.P. Act, and it is also called as Equitable Mortgage. Equitable mortgage
(as per English law), the mortgagor [owner or his authorised (only constituted)
attorney] in any of the notified towns delivers to the creditor (or his agent),
documents of title to immovable property (title deeds) with intent to create a
security thereon. The immovable property proposed to be equitably mortgaged (and/or the
financing branch) may be located/situated anywhere in India but the title deeds should be delivered
at the notified centre only. It is a sine qua non (an indispensable requisite)
for equitable mortgage. A deposit made outside the notified centres creates
neither a mortgage nor a charge. The debt may be existing or future. It is
common for Banks to advance loans or allow over-draft account against deposit
of title deeds and it might involve both existing and future advances, and such
transactions fall within the scope of the MDTD (United Bank v/s Ms. Lekharam , AIR 1965 SC 1591).
6. Anomalous Mortgage—Anomalous
Mortgage is defined u/s 58(f) of the T.P. Act. A mortgage which does not belong to any of the
five types is called anomalous mortgage. It possesses a mixed character of any
two or more types of mortgages.
Further
Mortgage can be created within the same parties and is supplemental to the
original deed of Mortgage.
Second
Mortgage can be created with a new mortgagee by entering into a separate
Deed of Second Mortgage, narrating the existence of First Mortgage.
Sub-Mortgage
or Derivative Mortgage can be created by the mortgagee by assigning /
depositing the title deed to a new purchaser (mortgagee). The sub-mortgagee can
be good only to the extent of the amount due on the mortgage and on payment of
the mortgage debt, the sub-mortgagee.
Assignment
of Mortgage is a written document which serves as a proof of transfer of a
loan obligation from the original borrower to a third party. Similarly, a lender
can assign the mortgage to the other lenders –which are also called as
Sub-Mortgage.
Sunday, January 4, 2015
Modified draft Indian Financial Code likely by mid-2015
Modified draft Indian Financial Code likely by mid-2015
The recommendations of the FSLRC are divided into legislative and non-legislative aspects.
It has recommended a seven-agency structure for the financial sector -- the Reserve Bank of India (RBI),Unified Financial Agency (UFA), Financial Sector Appellate Tribunal (FSAT), Resolution Corporation (RC), Financial Redressal Agency (FRA), Financial Stability and Development Council (FSDC) and Public Debt Management Agency (PDMA).
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