Mortgage of Property, a brief discussion
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 loan an existing or future debt or the performance of an engagement which may give rise to a pecuniary liability. In other words, the mortgage is a security for the loan that the lender makes to the borrower.
As per Section 58 of the Transfer of Property Act, 1882 mortgage is an interest in rem with mortgage property and is not an ownership of the property by way of purchase, inheritance, gift, decree, and auction, settlement, etc. As per section 17 of the Registration Act, 1908 the registration of the mortgage is mandatory. In the case of Mosharraf Hossain (Md.) and others Vs. Akhtar Hossain 2011, 40 CLC HCD as according section 53E of the Transfer of Property Act every instrument like mortgage, gift or any other immovable property must be supported by an affidavit that he has lawful title in it, thus the following suit barred by law and rejected the plaint.
Section 59 of the following Act states that where the principal money is more than one hundred takas or upwards the mortgage must have to be registered by the mortgagor and attested by two witnesses.
In practically the approach to mortgage is slightly different in Bangladesh. In such a process, all the documents have to submit 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 is mortgaged previously which is still pending. Then makes the valuation of the property which will keep the mortgage. Then will check in the registered office if the property is register or not, thus the mortgage procedure is done by any bank or company or mortgagee.
There are many kinds of mortgage like Simple mortgage, Mortgage by conditional sale, Usufructuary mortgage, English mortgage, Mortgage by deposit of title deeds, and others. It is ideal to choose the usufructuary mortgage 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 kind of mortgage other than the complete usufructuary mortgage.
After the payment of mortgage money, the person interested in a share of the mortgaged property has the complete right to redeem his own share on payment of a proportionate part of the amount remaining due on the mortgage as discuss in chapter IV of the following Act.
Where after the principal money has become paid then the mortgagee at a proper time and place have 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 hereinafter provided a right to obtain from the Court a decree that the mortgagor shall be absolutely 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 as 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 may 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 there was illegality in the auction sale as held Rukunuddin Mollah (Md.) and others Vs. Artha Rin Adalat 2nd Court and others, 2015, 44 CLC HCD.
There has some responsibility of the mortgagee where he is in possession of the mortgaged property though not liable for allowing the property to deteriorate but he must not commit any act which is destructive or permanently injurious thereto. Also, there have 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 and the mortgagee has given the mortgagor a reasonable opportunity of providing further security enough to render the whole security sufficient and 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 others reasons as mentioned under the Transfer of Property Act.
Lastly, to get a decree from the court any party may file a suit under section 13 of the Artha Rin Adalat Ain, 2003 where it states that if the court thinks fit that there has no conflict between the parties then the court will provide the judgment as according. 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 sell or mortgage or received the money against sale of any mortgaged property. It is to be mention that in case of mortgage by the company the RJSC has made rules that the mortgage and the mortgagee company or organization have to be registered in the RJSC by signing both parties the mortgagor and mortgagee.