Procedure for Obtaining Possession of the Mortgaged Property

Mr. Z

Address….

Dear Sir,

Re: PROCEDURE FOR OBTAINING POSSESSION OF THE MORTGAGED PROPERTY.

We refer to your letter dated 17.05.2006 on the above subject matter.

We have perused the documents/papers referred to us. It appears that upon obtaining ownership certificate over the mortgaged property under section 33 (7) of the Artha Rin Adalat Ain, 2003, Company 1 (the “Company 1”) being the owner of the property served a notice to Mr. X (the “Mortgagor/Judgment debtor”) to hand over the possession of the said property to Company 1. In response of the said notice, Mr. y, Advocate, Supreme Court has sent a legal notice on behalf of the Mortgagor/Judgment debtor with a request to withdraw the claim made by the Company 1 and also requests to re fix the amount of installments by amicable settlement failing which Company 1 was warned that legal action would be initiated by Mr. X against Company 1. In such situation, the matter has been referred to us with a request to file a petition before the Artha Rin Adalat No. 2 for obtaining possession of the property through Court.

Please note that in Artha Rin Adalat Ain, 2003, there is no specific provision in respect of obtaining possession of the property which was owned by the decree-holder through Court under section 33 (7) of the said Ain. Moreover, section 33 (9) of the Artha Rin Adalat Ain reads as follows:

aviv-33(9)

In such situation as per request of Company 1, if we file a petition before the Artha Rin Adalat No. 2 for obtaining possession of the property through Court, there is every possibility that such application will be rejected such petition. However, Section 12 (5) and Section 12 (5 ka) reads as follows:

Any financial institute before filing of Artha Rin Suit may file a petition under section 12 (5) and 12 (5ka) of the Artha Rin Ain, 2003 before the District Magistrate for obtaining possession of the mortgaged property. Since there is no specific provision regarding obtaining possession of the property which was owned by the decree-holder through Court under section 33 (7) of the Artha Rin Adalat Ain, 2003, Company 1 may consider to take chance by filing an application under section 12 (5) and 12 (5ka) of the Artha Rin Ain, 2003 before the District Magistrate for obtaining possession of the said property.

Should you have any further query, please do not hesitate to revert back to us.

Thanking you.

Yours faithfully,

 

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For: “The Lawyers & Jurists”