Anika Mardiah Chowdhury

A mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of a loan, an existing or future debt, or the performance of an engagement that may give rise to financial liability. In other words, a mortgage is a security for the loan that the lender makes to the borrower.

As per Section 58 of the Transfer of Property Act of 1882, a mortgage is an interest in rem with mortgage property and is not an ownership of the property by way of purchase, inheritance, gift, decree, auction, settlement, etc. As per section 17 of the Registration Act, 1908, the registration of Mortgagegage is mandatory. In the case of Mosharraf Hossain (Md.) and others Vs. Akhtar Hossain 2011, 40 CLC HCD as according to section 53E of the Transfer of Property Act, every instrument mortgage age, gift, or any other immovable property must be supported by an affidavit that he has lawful title in it; thus, the following suit is barred by law and rejected the objection.

Section 59 of the following Act states that where the principal money is more than one hundred takas or upwards Mortgagegage must have to be registered by the mortgagor and attested by two witnesses.

In practically the approachMortgagegage is slightly different in Bangladesh. In such a process, all the documents have to be submitted before the mortgagee or bank. Then, the bank takes clearance from the Bangladesh bank on pending loans or his details or any default if the person made in terms of loan payments. Also, will check if the property was mortgaged previously, which is still pending. Then makes the valuation of the property which will keep Mortgagegage. Then, I will check in the registered office if the property is registered or not; thus, the mortgage procedure is done by any bank company or mortgagee.

There are many kindsMortgagegage like Simple mortgaMortgagegage by conditional sale, Usufructuary mortgage, English mortgaMortgagegage by deposit of title deeds, and others. It is ideal to choose the usufructuMortgagegage as it delivers the possession, besides in the case of Asek Elahi Vs. Jalal Ahmedand others, 2012, 41 CLC AD to protect a raiyat from such transactions the lawmakers came to his rescue prohibiting him from entering into any kindMortgagegage other than the complete usufructuMortgagegage.

After the payment of mortgage money, the person interested in a share of the mortgaged property has the complete right to redeem his share on payment of a proportionate part of the amount remaining due on Mortgagegage as discuss in chapter IV of the following Act.

After the principal money has become paid, then the mortgagee, at a proper time and place, has to deliver the mortgagor the mortgage deed and all documents relating to the mortgaged property which are in the power of the mortgagee or where the mortgagee is in possession of the mortgaged property to deliver possession thereof to the mortgagor and at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct or to execute and registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished.

On the other hand, in the absence of a contract to the contrary, the mortgagee has a right at any time after the mortgage money has become due to him and before a decree has been made for the redemption of the mortgaged property or any decree that the mortgage-money has been paid or deposited. Then, the mortgagee, as, from now on, provided a right to obtain a decree that the mortgagor shall absolutely be debarred of his right to redeem the property or a decree that the property be sold. A suit to obtain a decree that a mortgagor shall be absolutely debarred of his right to redeem the mortgaged property is called a suit for foreclosure under the Transfer of Property Act. This can be seen in the case of Mirza Ahsan Habib Vs. Judge, Artha Rin Adalat, Khulna and another, 2011 40 CLC HCD where the mortgaged property that was given under disposal of the respondent-bank under section 33 (5) of the Artha Rin Adalat Ain, but the bank failed to dispose of the property and filed second execution case for selling, and it was held that the mortgaged property might also be disposed of in accordance with the law.

It is to be mention that if selling the mortgaged property is not enough to adjust the money then the mortgagee has a right or competent to attach the other properties of the mortgagor, this principle can be seen in the case of Turfatur Ain Chowdhury Vs. Artha Rin Adalat Dhaka and Others, 2015 44 CLC HCD. Also, once the auction is complete, no relief is available against such auction sale, but the mortgagor any proceedings against the mortgagee for compensation if it is proved that the auction sale was illegal as held by Rukunuddin Mollah (Md.) and others Vs. Artha Rin Adalat 2nd Court and others, 2015, 44 CLC HCD.

There is some responsibility of the mortgagee where he is in possession of the mortgaged property, though not liable for allowing the property to deteriorate. Still, he must not commit any act which is destructive or permanently harmful to it. Also, there are some rights of the mortgagee to sue for the mortgage money where the mortgagor binds himself to repay the same or where, by any cause other than the wrongful act or default of the mortgagor or mortgagee, the mortgaged property is wholly or partially destroyed, or the security is rendered insufficient. The mortgagee has given the mortgagor a reasonable opportunity to provide further security enough to render the whole security sufficient. The mortgagor has failed to do so or where the mortgagee is deprived of the whole or part of his security by or in consequence of the wrongful act or default of the mortgagor or any other reasons as mentioned under the Transfer of Property Act.

Lastly, to get a detour from thCourtrt, any party may file a suit under section 13 of the Artha Rin Adalat Ain, 2003, which states that if thCourtrt thinks fit that there is no conflict between the parties, thCourtrt will provide the judgment accordingly. In such a case, both the mortgagor, if the payment is completed, and the mortgagee, if the payment is due, can file a suit to obtain a degree against the mortgaged property to make their right absolute. It is notable that before the institution of any suit against any mortgagor, the mortgagee shall have to arrange for an auction sale of the property mortgaged, and it is a precondition for filing a suit as held in Ramjan Ali Tarafder (Md.) Vs. Bangladesh and others, 2015 44 CLC HCD.

Also, if the party wants, they can appoint an attorney under the Power of Attorney Act to sellMortgagegage or received the money against sale of any mortgaged property. It is to be mention that in caseMortgagegage by the company the RJSC has made rules that Mortgagegage and the mortgagee company or organization have to be registered in the RJSC by signing both parties the mortgagor and mortgagee.

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