1.3 Ocultaciones de estrellas por asteroides
1.3.1 Asteroides simples
1.3.1.1 Actividad 3: Ocultaciones estelares por asteroides
Where check-off facility is not available to the bankers, post-dated cheques should be obtained.
In order to ensure prompt repayment of home loans, lending banks obtain post-dated cheques towards Equated Monthly Instalments (EMI). The banks have systems in place for dealing with the entire chain from custody, presentation of cheques on due dates, action to be taken on dishonour of cheques, etc.
(i)Date of PDCs
As a measure of practicality, lenders have the due date for instalments falling close to salary dates when the borrower's deposit account will contain funds.
(ii) Handling of cheques, returned unpaid
In case of cheques received unpaid from the paying banker for want of sufficient funds, the borrower should be immediately contacted. The cheque should be re-presented within a period of three days of its having been returned
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unpaid with written request from the borrower. In the event of the borrower failing to deposit the amount of the cheque, the undernoted procedure for initiating legal action under section 138 of the Negotiable Instruments Act, 1881, should be initiated:
Steps to be taken when a cheque is dishonoured on account of (a) insufficient funds (b) closing the account, (c) stop payment of the cheque (on account of insufficient funds).
Step 1
When a cheque is dishonoured, the bank has to give a notice in writing to the drawer within 15 days of the receipt of information by it from the finance institution regarding the return of the cheque.
Step 2
If drawer fails to make the payment of the said amount of money to the Bank within 15 days of the receipt of the notice mentioned in Step-1, Step-3 should be followed.
Step 3
A complaint should be filed before Court, within one month from the date of cause of action.
Example: If the last date for honouring the demand for payment was 1.1.2003, then cause of action is said to arise on that date. The complaint should be filed on or before 31.1.2003.
Management of PDCs is the most important measure for recovery as this ensures the regularity of repayment and prevention of overdues and NPAs.
19.6 DOCUMENTATION
The following is a listing of the documentation effort:
1. List of security documents related to the loan 2. Documents related to the property
3. Documentation where the mortgage is a second charge.
1. Documentation
Banks obtain the following documents, prior to disbursement of the loan.
• Demand Promissory Note and/or Term Loan Agreement for home loans.
• Agreement of Guarantee from the guarantors
• Letter authorising the bank to dispose of the proceeds of loan to ensure the end use of funds in accordance with the terms of sanction.
• Stamped letter of Memorandum of Equitable Mortgage (EM) for deposit of title deeds with an intention to create an EM in favour of the financing bank (or) Registered Mortgage Deed against the immovable property.
• Subrogation of mortgage agreement, in case of takeover of accounts from other bank/financial institution.
• Documents for pledge of Deposits in banks/NSC/IVP/KVP or assignment of Life Policy or hypothecation of movables. - Wherever applicable.
• An undertaking letter from the builders to the effect that they have not violated any norms or guidelines issued by Statutory authorities/Government restrictions/guidelines. (If this is not available, the branch must verify that the fiat financed has not been built in violation of the approved plan.)
• An indemnity/guarantee may be obtained if the builder has appealed to the authorities for regularisation of an unauthorised construction. (The decision to finance will depend upon the banks' judgment.)
• Valuation report from an engineer on the panel of the bank. Engineer's valuation report need not be insisted upon if the flat is acquired from Housing Board, State Development Authority/Bodies/ Local Improvement Trust.
Engineer's valuation report should not be older than 5 years.
• Legal opinion from the bank's advocate
• Declaration as to whether any relative is working in the Bank's prescribed format.
• Letter authorizing the bank to furnish opinion on the borrower's credit to Credit Information Bureau of India Ltd.
(CIBIL).
• No Objection Certificate (NOC) and a letter of undertaking from Housing Society (with whom flat is registered) to mark a lien in favour of the financing bank.
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2. Documents relating to the house
• Sale deeds through which the applicant has acquired title to the property/Agreement of Sale along with patta.
• If parent sale deed is not available, patta is a must.
• Encumbrance Certificate for 13 years showing nil encumbrances.
• Approved Building Plan.
• Parent Documents of 30 years.
• Legal opinion from the Bank's advocate certifying clear title to the property.
• Letter of Allotment from Housing Board/Society.
• Copy of approved plan.
• License/Permit for construction.
• Estimate/Valuation Report from approved valuers.
• Search Report from the records of the Registrar under whose jurisdiction the property is located/ Non-encumbrance certificate for 13 years to be obtained by the Bank's advocate.
• Registration Receipt.
• NOC from builder/seller.
• Payment Receipts.
• Possession Certificate (where applicable).
• NOC under the provisions of ULC Regulation Act, 1976 in original, wherever applicable.
• Copy of relative order, in case of conversion of agricultural lands to homestead land.
• Certificate from the Bank/Govt, approved architect/structural engineer regarding the condition of the house/flat, in the case of purchase of old property.
3. List of documents to be obtained in case of second mortgage/pari-passu charge
• Letter from the borrower to the bank (prospective mortgagee) for extending the earlier mortgage to secure the bank's (loan).
• Letter to be addressed by the prior mortgagee to the subsequent mortgagee, stating that the existing mortgage charge will subsist and will rank prior in charge to the proposed charge and authorizing the new lender to create a further charge on the property.
• Pari passu letter to be exchanged.
• Inter se pari passu agreement.
• Letter from first charge holder addressed to second charge holder.
• Letter to be issued by Bank for having second charge on the fixed assets. (This letter is to be addressed by the second charge holder to the first charge holder).
• All documents necessary for creation of a mortgage listed in the preceding paragraphs will form a part of the documentation.
Note: Given the complex nature of the process it would be a good idea to get an advocate to vet the documentation, necessary in each case.
19.7 MORTGAGE AS SECURITY
The next section deals with an important part of the security documentation, viz. mortgage. The basic steps in creating a mortgage are listed therein. The legal position surrounding the creation of mortgage and the precautions to be taken by a lender to secure his position are discussed in some detail.
Mortgage
1. Section 58(a) of the Transfer of Property Act, 1882 defines mortgage as "a transfer of an interest in specific immovable property for the purpose of security, for the payment of money advanced or to be advanced by way of a loan, an existing or future debit or the performance of an engagement which may give rise to a pecuniary liability".
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2. Types of Mortgage:
In India. Immovable property is accepted by the Banks as security usually by way of:
(a) Registered or Simple Mortgage, (b) Mortgage by Deposit of Title Deeds.
(a) Simple registered mortgage
Where, without delivering possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgage money, and agrees, either expressly or impliedly, that in the event of his failing to pay according to the contract, the mortgagee shall have a right to cause the mortgaged property to be sold and the proceeds of the sale to be applied, so far as may be necessary, in payment of mortgage money, the transaction is called simple registered mortgage.
Under simple registered mortgage, the Deed of Mortgage is required to be registered with the concerned sub-Registrar/Registrar of assurances by paying applicable stamp duty and registration charges within whose jurisdiction the whole or some portion of the property to which the document relates is situated, within four months from its date of execution. In this type of mortgage, property can be sold only with the intervention of the court. Thus, registered mortgage involves preparation of mortgage deed duly witnessed by two witnesses, payment of ad valorem stamp duty and registration of deed. Hence, it is a costly proposition.
(b) Mortgage by deposit of title deeds or equitable mortgage
1. Transfer of Property Act defines the "Mortgage by Deposit of Title Deeds" as follows:
"Where a person in any of the following towns, namely, the towns of Kolkata, Chennai and Mumbai and in any other town which the Statement Government concerned may, by notification in the Official Gazette, specify in this behalf, delivers to a creditor or his agent documents of title to immovable property, with intent to create a security thereon, the transaction is called a mortgage by Deposit of Title Deeds".
2. The essential requisites of a "Mortgage by Deposit of Title Deeds" are:
(a) There must be a debt, existing or future.
(b) There must be a deposit of documents of title to immovable property.
(c) The deposit must be made in one of the notified towns.
(d) The deposit must be made by the mortgagor or his agent with the mortgagee or his agent.
(e) The deposit must be made with an intent to create a security for the debt.
(f) Letter of intent should be obtained. Necessary entry should be made in the document register.
3. A mortgagee has the same rights under equitable and registered mortgages. So, an equitable mortgage will have priority over subsequent registered mortgages. An equitable mortgage remains valid as
long as the mortgagee retains the title deeds. If the mortgagee parts with possession of the title deeds, the mortgage will stand extinguished. If, however, the mortgagee parts with the possession of title deeds for a specific purpose, like examination by the solicitors or advocates of the intending purchaser of the mortgaged property, or for the creation of subsequent mortgage in favour of a second mortgagee on a specific understanding with the latter that the earlier mortgage is to subsist, the mortgagor will not be deemed to have parted with possession although he has parted with the custody of the title deeds.
4. The remedy of the mortgagee under an equitable mortgage is only sale of the mortgaged property through the court (i.e., suit for sale). One can tabulate, as follows, the transfer of rights in case of simple mortgage and equitable mortgage:
Particulars Simple Equitable
Mortgage Mortgage
1. Transfer of possession No No
2. Mortgagee's right
(i) To sue for personal liability Yes Yes
(ii) To sue for sale of mortgaged property Yes Yes
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(iii) To sue for foreclosure No No
(iv) To sell property without court's permission No No
(v) To enjoy income out of mortgaged property No No
(vi) To appoint receiver with court's permission No No