Term Paper towards fulfilment of the assessment

in the subject of Drafting, Pleading and Conveyancing.

Final Draft

DPC DRAFTS & ASSIGNMENTS.

Submitted To; - Prof. Muhammed Khan Submitted By; - Shubham Sonawale

(Course Instructor) Enrolment No; - 2018049

 TABLE OF CONTENTS

1. DEFINE MORTGAGE AND EXPLAIN ITS KINDS.......................................................3

2. LEASE DEED: MEANING OF LEASE AND DISTINCTION BETWEEN LEASE

AND LICENCE.......................................................................................................................10

3. WRIT OF QUO WARRANTO........................................................................................12

4. APPLICATION UNDER ORDER 39 RULES 1 AND 2 READ WITH SECTION 151,

CPC..........................................................................................................................................14

5. COMPLAINT UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS

ACT, 1881................................................................................................................................17
 1. DEFINE MORTGAGE AND EXPLAIN ITS KINDS

Introduction

Mortgage origins from the old French work mortgage (13c.), mort gaige, literally “dead
pledge”. Thus, Mortgage could be understood as dead deal which happens either due to
payment of debt or when the payment fails.

In simple terms, Mortgage is transferring interest of an immovable property for securing a

loan or for a performance of an engagement. This is a pecuniary liability in a form of a debt
Transfer of Property Act, 1882 is the statutory law in India that contains provisions for
mortgage laws. Section 58(a) of the Act defines the term mortgage. The Section reads as
under:

“A mortgage is the transfer of an interest in specific immoveable 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.”

The person who mortgages the property, i.e. the transferor is the mortgagor and the person to
whom the property is mortgaged, i.e. the transferee is the mortgagee. The instrument used by
the parties involved in such transfer is known as the ‘mortgage deed.’ The principal money
and interest of which payment is secured for the time being are called the mortgage-money.

Types of Mortgages in India

There six kinds of mortgage in India, which are mentioned as follow:

1. Simple Mortgage

The term ‘Simple Mortgage’ is defined under Section 58(b) of the Transfer of Property Act,
1882. The Section reads as –

“Where, without delivering possession of the mortgaged property, the mortgagor binds
himself personally to pay the mortgage-money, and agrees, expressly or impliedly, that, in
the event of his failing to pay according to his contract, the mortgagee shall have a right to
cause the mortgaged property to be sold and the proceeds of sale to be applied, so far as may
be necessary, in payment of the mortgage-money, the transaction is called a simple mortgage
and the mortgagee a simple mortgagee.”

In this case, the mortgagor promises to pay the mortgage-money i.e. loan without delivering
possession of the mortgagor property and agrees expressly or impliedly that in case of non-
payment of the loan , the mortgagee shall have the right to cause the mortgaged property to
be sold through a decree or order from the Court, the mortgage is a simple mortgage. Thus, in
simple mortgage, the mortgagee is not given the possession of pledged property.

Characteristics of a simple Mortgage

a. The mortgagor takes personal undertaking to pay the loan.

b. The possession of the mortgage-property is not given to the mortgage.

c. In case of non-payment, the mortgagee has the right to have the mortgage-
property sold through the intervention of Court i.e. a decree for sale as a matter
of course.

d. Such a mortgage can only be made through a registered document irrespective

of the sum of money secured.

e. In simple mortgage, the security for the debt is two-fold, firstly, personal
obligation and secondly, property.

Further, the Privy Council in case of Ram Narayan Singh v. Adhindra Nath, the Court held
that the fact that some immovable property has been mentioned as security for its repayment
doesn’t displace the personal obligation of the mortgagor to repay the loan with the interest.
Moreover, in case of Kishan Lai v. Ganga Ram, the Allahbad High Court held that the very
words “right to cause the property to be sold” in section 58(b) of the Transfer of Property
Act, 1882 indicates that the power of sale is not to be exercised by the mortgagee without the
intervention of the Court.

2. Mortgage by conditional sale

The term “mortgage by conditional sale” is defined under Section 58(c) of the Transfer of
Property Act, 1882. The Section reads as –
“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, or on
condition that on such payment being made the sale shall become void, or on condition that
on such payment being made the buyer shall transfer the property to the seller, the
transaction is called a mortgage by conditional sale and the mortgagee a mortgagee by
conditional sale:

[Provided that no such transaction shall be deemed to be a mortgage, unless the condition is
embodied in the document which effects or purports to effect the sale.]”

The sale with a condition that upon repayment of the consideration amount, the purchaser
shall retransfer the property to the seller is known as Mortgage by conditional sale. Although,
the whole transaction looks like a conditional sale, yet, the intention of the parties is to secure
the money (an essential ingredient of the mortgage) which the seller takes as a loan from the
purchase.

Characteristics of Mortgage by Conditional Sale:

a. There is an ostensible sale of immovable property.

b. It is a conditional sale. The sale is subject to any of the following conditions:

 On non-payment of mortgage- money, the sale would become absolute or,

 On payment of mortgage money the sale shall become void or the buyer
shall retransfer the said property to the seller.

c. The condition must be embodied in the same document.

Further, the Supreme Court in Chunchun Jha v. Ibadat Ali, the Court held that if the sale
and repurchase are embodied in separate documents then the transaction cannot be a
mortgage whether the documents are contemporaneously executed or not.

3. Usufructuary mortgage

The term ‘Usufructuary mortgage’ is defined under Section 58(d) of the Transfer of Property
Act, 1882. The Section reads as –

“Where the mortgagor delivers possession 1[or expressly or by implication binds himself to
deliver possession] of the mortgaged property to the mortgagee, and authorizes him to retain
such possession until payment of the mortgage-money, and to receive the rents and profits
accruing from the property 2[or any part of such rents and profits and to appropriate the
same] in lieu of interest, or in payment of the mortgage-money, or partly in lieu of interest
3[or] partly in payment of the mortgage-money, the transaction is called an usufructuary
mortgage and the mortgagee an usufructuary mortgagee”

In this type of mortgage, the mortgagor delivers possession of the mortgaged property
whether expressly or impliedly to the mortgagee and gives him the authorization to retain the
mortgaged property until the payment of the mortgage-money. They also authorize the
mortgagee to receive the rent and profits accruing from the mortgaged property in lieu of
interest, either partly or wholly or in payment of the mortgaged money, either partly or
wholly. Therefore, on the payment of the debt, the mortgagee has no right of possession.

Characteristics of Usufructuary Mortgage:

a. Delivery of possession of the mortgage-property or, an express or implied

undertaking by the mortgagor to deliver such possession.

b. Enjoyment or use of the property by the mortgagee is until his dues are paid
off.

c. There is a transfer to the mortgagee is until their dues are paid off.

d. No personal liability of the mortgagor.

e. The mortgagee cannot foreclose or sue for sale of mortgage-property

f. No time-limit is fixed for the payment.

Further, in case of Hikmatulla v. Imam Ali, the Court held that mortgage is entitled to retain
possession until the money due is paid. In a Usufructuary mortgage, the time up to which
money may be paid by the mortgagor is uncertain. If any time is fixed the mortgage would
not be a Usufructuary mortgage.

4. English mortgage:

The term English Mortgage is defined under Section 58(e) of the Transfer of Property Act,
1882. The Section reads as –
“Where the mortgagor binds himself to re-pay the mortgage-money on a certain date, and
transfers the mortgaged property absolutely to the mortgagee, but subject to a proviso that
he will retransfer it to the mortgagor upon payment of the mortgage-money as agreed, the
transaction is called an English mortgage.”

In English mortgagee, the transaction between the mortgagor and the mortgagee is such that
the mortgagor agrees to repay the mortgage money on a specified date and transfers the
mortgaged property absolutely to the mortgagee. The only condition being that the mortgagee
agrees to retransfer the property to mortgagor upon payment of the agreed mortgage money.
The ownership of the property is transferred with a promise to repay the debt on a certain
date. And the mortgagee is entitled to the possession of the property and to the enjoyment of
the profits arising there from.

Characteristics of English Mortgage:

a. The mortgagor binds himself to repay the mortgage money on a certain date.

b. The mortgage- property is transferred absolutely to the mortgagee.

c. The absolute transfer is subject to a proviso that mortgagee will re-transfer the
property to mortgagor on payment of mortgage money on the said date.

d. It is known to mortgagee with certainty when the mortgagor is to redeem or he

to proceed to foreclose or sell.

In case of Narayan v. Venkataramana, the Court opined that the English Mortgage has three
essential ingredients. First, the mortgagor has to bind himself to repay the mortgage money
on a certain day. Secondly, the property mortgaged is transferred “absolutely” to the
mortgagee. Thirdly, this transfer is subject to a proviso that the mortgagee will reconvey the
property to the mortgagor upon payment of the mortgage- money on the date fixed for
repayment.

5. Mortgage by deposit of title-deeds:

The term ‘Mortgage by title deed’ is defined under Section 58(f) of the Transfer of Property
Act, 1882. The Section reads as –
“Where a person in any of the following towns, namely, the towns of Calcutta, Madras,[and
Bombay] and in any other town which the [State Government concerned] may, by
notification in the Official Gazette, specify in this behalf, delivers to a creditor or his agent
documents of title to immoveable property, with intent to create a security thereon, the
transaction is called a mortgage by deposit of title-deeds.”

This type of mortgage is known as an equitable mortgage. Here the mortgage loan is given by
the mortgagee upon the deposit of the title deeds of the property by the mortgagor.

The essential requirements of this type of mortgage are

1. There must be a debt

2. There must be a deposit of title deed with the lender

3. The deposit must be with the intention that the said title deed shall be the security for the
debt.

Mortgages by way of title deeds are on the same footing as that of simple mortgages. Further,
in Jethibai v. Putlibai, the Court held that there is no equitable mortgage unless there is a
connecting link between the debt and the possession of title-deeds suggesting a definite
intention on the part of the debtor that deeds are in possession of creditor as a security for the
debt.

6. Anomalous mortgage:

The term ‘anomalous mortgage is defined under Section 58(g) of the Transfer of Property
Act, 1882. The Section reads as –

“A mortgage which is not a simple mortgage, a mortgage by conditional sale, an

usufructuary mortgage, an English mortgage or a mortgage by deposit of title-deeds within
the meaning of this section is called an anomalous mortgage.”

So any mortgage that doesn’t fall within the ambit of simple mortgage, a mortgage by
conditional sale, a usufructuary mortgage, an English mortgage or a mortgage by deposit of
title deeds within the meaning of Section 58 of the Transfer of Property Act, 1882 is an
anomalous mortgage. That is to say when a transaction is a mortgage in all respects i.e. there
is the existence of debt and security of immovable property for re-payment of the debt the
agreement between the debtor and creditor is of such nature that it cannot be included in any
specific category of mortgage. It may also be combination of any two or more forms of
specific categories of mortgage.

In case of Madho Rao v. Gulam Mohiuddin, the Privy Council held that while considering
an anomalous mortgage, the intention of the parties must be gathered from the terms of the
instrument as controlled by the provisions of the Act.
 2. LEASE DEED: MEANING OF LEASE AND DISTINCTION BETWEEN
LEASE AND LICENCE.

As per Section 105 of the Transfer of Property Act, the definition of ‘Lease’ can be
understood as a transfer of a right to enjoy property for a certain time or in perpetuity; in
consideration of a price paid or promised or of money, a share of crop, service or any other
thing of value to be rendered periodically or on specific occasion to the Lessor by the Lessee
who accepts the transfer on such terms.

By executing a Lease Deed, what is transferred by the Lessor to the Lessee is only his right to
enjoy the property, subject to the terms agreed upon, and not the whole or any part of the
absolute ownership rights, this type of transfer in conveyancing parlance is known as a
‘demise’.

ESSENTIALS OF A LEASE

 Parties must be competent: The parties in a lease agreement should be competent to

enter into a contract. Lesser should be entitled to a property and have absolute rights
over that property.

 Right of possession: Ownership rights are not transferred in a lease, only the
possession of the property is transferred.

 Rent: Consideration for a lease can be taken in the form of a rent or premium.

 Acceptance: Lessee, who is to get the interest in the property after lease, has to accept
the lease agreement along with the time period and terms & conditions imposed on
the transfer.

 Time Period: Lease always takes place for a particular time period which is to be
specified in the lease agreement. It can be relaxed at the option of the lessor.
A lease can be understood as the rightful separation of ownership and possession i.e. prior to
the grant of the lease, the Lessor has the right to enjoy the possession of the land but during
the concurrence of the lease, he excludes himself from that right (Anwarali vs Jaminilal
Roy, AIR 1940 Cal. 89).

The usage of the term ‘demise’ in a Lease Deed or instrument of lease triggers the Lessor’s
liability for the warranty of quiet enjoyment of the property the Lessee is entitled to remain in
possession until the lease is terminated by due process of law (Jaswantsinh Mathurasinh &
Anr. vs Ahmedabad Municipal Corporation & Ors., 1992 Supp. (1) S.C.C. 5, 12.).

Lease License
1 The Lessee gets a right to possession and The Licensee gets a right use the property
enjoyment of the property but not for a fixed time and for a predetermined
ownership rights consideration
2 Usually involves a long-term duration, Involves a short-term duration, generally
can also be in perpetuity for 1 year but up to 5 years at maximum
(in Maharashtra)
3 The consideration can either be in the The consideration is usually in the form of
form of a one-time premium or as rent at a monthly license fee
periodic intervals
4 The lease cannot be easily terminated by License can be easily terminated by the
the Owner Owners considering the temporary nature
of the arrangement
5 The maintenance and upkeep of the Although there is a level of care required
property is the duty/responsibility of the the burden of maintenance and upkeep of
Lessee the property falls on the owner
6 Relatively higher cost of the transaction A deposit involved in the costs involved
are usually quite less
7 The preferred mode of transaction for Preferred mode of the transaction is short-
long-term residential arrangements and term residential arrangements
commercial setups
8 Documents involved are Agreement to Document involved is a Leave and
Lease or Lease Deed License Agreement
 3. WRIT OF QUO WARRANTO

IN THE HON’BLE HIGH COURT OF JUDICATURE AT BOMBAY

(Original Civil Jurisdiction)
Writ Petition No. 77 of 110, 2022.

1. Ram, son of Shyam resident of Mohan Pride.

_______ PETITIONER

Versus

1. Department of Energy, State of Maharashtra

2. Mr. Abhishek, son of Akash, Chairman of State Electricity Regulatory Commission.

_____RESPONDENTS

PETITION UNDER ARTICLE 226 OF THE CONSTITUTION FOR THE ISSUE OF

A WRIT OF QUO WARRANTO.

To

The Hon’ble the Chief Justice and his companion Judges of the Hon’ble High Court.

The above-named Petitioner begs to submit as under:

1. The Petitioner is a resident of India and is a law-abiding citizen of India.

2. That the Petitioner has approached this Hon'ble High Court seeking issuance of a writ in
nature of a Quo Warranto against Respondent No. 2, questioning his appointment and for his
consequent removal from the post of the Chairman of the State Electricity Regulatory
Commission.
3. That, on 5th October, the Respondent No. 2 has been appointed as the Chairman of the
State Electricity Regulatory Commission.

4. The Petitioner submits that that selection and appointment of respondent No. 2 on the post
of Chairman, State Electricity Regulatory Commission is in violation of the provisions
contained in the Electricity Act, 2003.

5. That the Respondent No. 2 has a criminal case registered in his case which pending against
the respondent No.2 and he is a person of doubtful integrity and therefore, he ought not to
have been appointed on the said post and appointment of respondent No. 2 on the post of
Chairman of State Electricity Regulatory Commission is legally unsustainable and is in
violation of statutory provisions.

6. That respondent No.2 is not a person of ability, integrity and standing who has adequate
knowledge of, and have shown capacity in, dealing with problems relating to engineering,
finance, commerce, economics, law or management. Therefore, his selection and
appointment deserve to be quashed being contrary to statutory provisions by issuance of a
writ in the nature of Quo Warranto.

7. Therefore, the Petitioner submits that, a writ in nature of Quo Warranto is issued by the
court on the following ground: -

a) That the appointment is in violation of the Electricity Act, 2003.

b) That the appointment is unsustainable and illegal in law

PRAYER

In the facts and circumstances stated above the petitioner prays that a direction in the form of
a writ of quo warranto or any other appropriate writ be issued for the subsequent removal of
the Respondent No. 2 from the post of the Chairman, State Electricity Regulatory
Commission.

Date: 5th November, 2022.

Place: Mumbai. Ram

(Counsel for Petitioner)

(Petitioner)
 4. APPLICATION UNDER ORDER 39 RULES 1 AND 2 READ WITH SECTION
151, CPC

IN THE COURT OF HON’BLE JUDICIAL MAGISTRATE FIRST CLASS, THANE.

Suit No 78 of 200

IN THE MATTER OF;

AN APPLICATION UNDER ORDER 39 RULES 1 AND 2 READ WITH SECTION 151
CPC ON PLAINTIFF FOR GRANT OF AD-INTERIM EX-PARTE INJUNCTION.

Abhijit Shekhar
Age 30 years, occupation - business,
resident of 245 Andheri,
MUMBAI 400 011
…..PLAI
NTIFF

VERSUS

Rohan More
age 30 years, occupation - Professor
resident of 1050 Thane,
MUMBAI 411 01l.
…..DEFENDANT

Respectfully Showeth:
 1. That the plaintiff has filed the accompanying suit for permanent injunction
against the defendants which is pending disposal before this Hon'ble Court.
2. That the plaintiff craves leave of this Hon'ble Court and prays that the contents
of the accompanying plaint/suit may kindly be read as part and parcel of this
application as those are not being repeated herein for the sake of brevity.
3. That the defendants particularly are influential people who believe in taking
the law in their own hands and also believe on using muscle powers.
4. That the defendants are bent upon grabbing the room and kitchen built by
plaintiff with his own hard-earned money and are threatening to forcibly evict
the plaintiff and his family through collusion with goondas and of official
machinery functioning.
5. That in case the defendants succeed in achieving their illegal designs of
forcibly evicting the plaintiff then the plaintiff will suffer an irreparable loss
and injury which cannot be compensated in terms of money.
6. That the plaintiff has a good prima facie case in his favour and against the
defendant and is likely to succeed therein
7. That the balance of convenience also lies in favour of the plaintiff and against
the defendant.

It is therefore respectfully prayed that during the pendency of the accompanying suit the
defendants, their agents, servants, relatives etc. may kindly be restrained from selling, parting
with, alienating, creating third party interest, interfering with the peaceful possession,
occupation, enjoyment and use of the demised premises in and adjacent to House No. 404 by
passing an ad-interim injunction in favour of the plaintiff.

Abhijit
Plaintiff
Through Advocate
Place - Thane
Dated – 10th November, 2022
 AFFIDAVIT IN SUPPORT OF APPLICATION

IN THE COURT OF HON’BLE JUDICIAL MAGISTRATE FIRST CLASS, THANE.

Suit No. of 78 of 200

In the Matter of:-
AN APPLICATION UNDER ORDER 39 RULES 1 AND 2 READ WITH SECTION 151
CPC ON PLAINTIFF FOR GRANT OF AD-INTERIM EX-PARTE INJUNCTION.

Abhijit … ..Plaintiff

VERSUS

Rohan …..Defendants
AFFIDAVIT

I Abhijit do hereby solemnly affirm and declare as under: -

1. That am the plaintiff in the above noted case and am well versed with the facts of the case,
and as such, am competent to depose to the same.
2. That the accompanying application under Order 39 Rules 1 & 2 read with section 151 CPC
has been drafted under my instructions. The contents stated therein are true and correct to my
knowledge, and the same may be read as part and parcel of this affidavit.
Deponent

VERIFICATION
Verified at on 10th day of November, 2022 that the contents of the above affidavit are true and
correct to my knowledge, no part of it is false and nothing material has been concealed
therefrom

Deponent
5. COMPLAINT UNDER SECTION 138 OF THE NEGOTIABLE
INSTRUMENTS ACT, 1881.

IN THE COURT OF THE JUDICIAL MAGISTRATE, FIRST CLASS, (COURT NO.

2), MUMBAI AT MUMBAI

Criminal Complaint No. 064/2022

Shri Rahul )

age 35 years, occupation - business, ) Complainant

resident of 1111 Goregaon, )

MUMBAI 400 011. )

Versus

Shri Swayam )

age 30 years, occupation - business, ) Accused

resident of 1050 Goregaon, )

MUMBAI 411 01l. )

IN THE MATTER OF;

A COMPLAINT U/S 138 OF THE NEGOTIABLE INSTRUMENTS ACT & SECTION 420
OF THE INDIAN PENAL CODE
The complainant abovenamed submits this complaint, praying to state as follows:

1. That the complainant is a resident of the within mentioned address, and he has been
running his business of hardware in the name and style as Mr Rahul Sales Corporation,
MUMBAI.

2. That the accused had been a customer of the complainant for the last ten years purchasing
goods from time to time.

3. That since there has been business relationship between the complainant and the accused
and also that the complainant could repose faith in the accused, he used to accept the cheques
issued by the accused against the purchased by the accused.

4. That during the recent past, there have been various transactions between the complainant
and the accused as detailed below:

5. That the complainant submits and says that the above-mentioned cheques were issued by
the accused at the time of delivery of goods and materials supplied to him by the
complainant, with an implied promise on the part of the accused that on the presentment of
these cheques, they will be honored.

6. That, however, all these cheques, have been dishonored by the bankers of the complainant,
and the same have been returned to the complainant with endorsement "Insufficiency of
Funds in the Account of the Drawer".

7. That the complainant says that had the complainant known that the cheques issued by the
accused would be dishonored, the complainant would never have delivered the materials and
goods to the accused.

8. That the complainant does hereby reiterate that the cheques which were issued by the
accused in discharge of his liability have been dishonored for the reason of insufficiency of
funds in his account.

9. That the complainant is also surprised that since the date of dishonor of cheques, he has
been making serious and sincere efforts to contact the accused personally, but unfortunately
the accused has been at large and not being available, and his whereabouts are also not
known to the complainant.
10. That taking into consideration such a typical position created by the accused, the
complainant has come to a tacit conclusion and also inferred that the accused took the
delivery of goods by deceiving and cheating the complainant when he issued the cheques
knowing it fully well that he had neither sufficient balance in his bank account, nor had he
made any alternative arrangements for crediting the necessary amount against the same.

11. That from the total behavior on the part of the accused, it is apparent that he is not only
liable civilly but also guilty of the criminal offences under the provisions of criminal laws
particularly under section 420 of the Indian Penal Code 1860 and under section 138 of the
Negotiable Instruments Act 1881.

12. That the cheques were presented to the bankers of the complainant on 7 th October the
same were returned to the complainant on 10 th October for insufficiency of funds in his
account.

13. That the complainant has accordingly served a notice, dated 12 th October on the accused,
demanding payment of the said amount of Rs. 80,000/-, but the accused did not do so, and
hence, this complaint.

14. That the cause of action for this complaint first arose on 15 th October and hence, this
complaint filed today is well within limitation.

15. That the offence has been committed within the local limits of the jurisdiction of this
Court, and hence, this Hon'ble Court has jurisdiction to try and decide this complaint.

16. That the necessary court-fee is paid herewith.

17. That the complainant, therefore, prays that -

(A). The accused be charged with and tried for the offence punishable u/s 138 of the
Negotiable Instruments Act and also u/s 420 of the Indian Penal Code and punished
according to law;

(B)This complainant be awarded from the accused the said amount of Rs. 80,000/-
along with interest @ 18% p.a. from the date of the issue of the said cheques till the
date of payment; and

(C) Any other orders in the interest of justice be kindly passed.

MUMBAI,

Sd/- STD

COMPLAINANT

Dated – 15th October, 2022.

Sd/-

ADVOCATE FOR COMPLAINANT

VERIFICATION

I, Shri Rahul, the present complainant, do hereby state on solemn affirmation that the
contents of this complaint in paras 1 to 17 are true and correct to the best of my knowledge
and belief, and so I have signed hereunder.

Sd/-COMPLAINANT