Deed
of English Mortgage
THIS
INDENTURE OF
MORTGAGE
executed at _______ this ______ day of _______ 200___ between M/S.
ABC LTD., a Company incorporated under the provisions of the
Companies Act, 1956 having its registered office at
_____________________________________________, hereinafter referred
to as ?THE
MORTGAGOR?
(which expression shall unless it be repugnant to the context or
meaning thereof be deemed to mean and include its successors and
assigns) of the ONE
PART;
AND X Y Z of __________, Indian Inhabitant having his address at
_________________________________________________________________
(which expression shall unless it be repugnant to the context or
meaning thereof be deemed to mean and include his heirs, legal
executors and administrators) hereinafter referred to as ?THE
MORTGAGEE?
of the OTHER PART;
WHEREAS:
(a) The
Mortgagor is the Owner of and well and sufficiently seized and
possessed of the property more particularly described in the Schedule
hereunder written (hereinafter referred to as ?the
said property?).
(b) The
Mortgagor being in need of finance for its business purposes,
requested the Mortgagee to provide the said finance.
(c) Pursuant
to the said request of the Mortgagor, the Mortgagee had agreed to
lend and advance and have advanced to the Mortgagor a sum of Rs.
20,00,000/- (Rupees twenty lacs only) against the security of the
said property by way of Mortgage for securing repayment of the
principal and interest thereof in the manner hereinafter appearing.
NOW
THIS INDENTURE WITNESSETH that in pursuance of the said agreement and
in consideration of the sum of Rs. 20,00,000/- (Rupees twenty lacs
only) paid to the Mortgagor by the Mortgagee on or before execution
hereof (the receipt whereof the Mortgagor doth hereby acknowledge and
of and from the same doth hereby release and discharge the Mortgagee)
THEY the Mortgagor doth hereby covenant with the Mortgagee that they
shall on the ____________ day of ____________ (hereinafter called
?the
due date?)
pay to the Mortgagee the said sum of Rs. 20,00,000/- (Rupees twenty
lacs only) together with interest thereof at the rate of 1.25 percent
per month with monthly rest (payable monthly along with the
installment of the principal amount) from the date hereof by equal
twenty monthly installments, the first of such payments shall be made
on the _____________ day of ________ and the subsequent payments
shall be made on or before 10th
day of each and every following month and will also pay after the due
date so long as the said sum of Rs. 20,00,000/- (Rupees twenty lacs
only) or any part thereof or interest thereof shall remain unpaid to
the Mortgagee in the manner aforesaid AND IT IS HEREBY AGREED AND
DECLARED that if any payment of interest is not made on the due date
(whether or not demanded) it shall be added to the principal sum and
compounded accordingly and shall be chargeable upon the mortgaged
property for all intents and purposes recorded herein, however, this
provision shall not in any way permit the Mortgagor to allow any
interest to fall in arrears nor shall it in anywise interfere with,
prejudice, limit or affect the powers of sale or of entry or any
other powers or remedies for securing and enforcing payment of the
Mortgage debt hereinafter contained.
AND
THIS INDENTURE ALSO WITNESSETH that the Mortgagor doth hereby grant
release convey and assure unto the Mortgagee all and singular the
said property more particularly described in the schedule hereunder
written with all and singular the buildings, courts, compounds,
yards, areas, ways, paths, passages, commons, gullies, sewers,
drains, trees, plants, shrubs, wells, waters, water-courses, lights,
liberties, privileges, easement, advantages and appurtenances,
whatsoever to the said property or any part thereof belonging or in
anywise appertaining or usually held or enjoyed or occupied therewith
or reputed to belong or be appurtenant thereto AND ALL the estate,
right, title, interest, claim and demand whatsoever of the Mortgagor
into and upon the said property and every part thereof (hereinafter
referred as ?the said premises?) TO HAVE AND TO HOLD the
said premises hereby granted unto and to the use of the Mortgagee
subject to the proviso for redemption next hereinafter contained.
PROVIDED
always that if the Mortgagor shall pay to the Mortgagee the said sum
of Rs. 20,00,000/- (Rupees Twenty lacs only) on the ____________ day
of ___________ 2003 together with the agreed rate of interest and in
the aforestated manner and also all other moneys by law or under
these presents payable by the Mortgagor to the Mortgagee (hereinafter
collectively referred to as ?the
Mortgage debt?)
then and in such case the Mortgagee shall at the requests, costs,
charges and expenses of the Mortgagor recovery the said property unto
and to the use of the Mortgagor and in the meantime and until any
default is made by the Mortgagor, the Mortgagor shall remain in the
possession or receipt of the rents and profits of the said property
and if the Mortgagor shall fail to pay to the Mortgagee on the due
date the Mortgage debt then the said property hereby granted shall
not be redeemable by the Mortgagor or any other person or persons
interested in the equity of redemption thereof at any time thereafter
and the Mortgagee shall be entitled to refuse to accept payment of
the Mortgage debt unless the Mortgagor or such person or persons
shall have given to the Mortgagee three months previous notice in
writing making an appointment to pay off the Mortgage debt on any
working day during banking hours and shall pay the same accordingly
and in conformity with such notice on such appointed day or unless
and in the alternative and in default or in lieu of such notice the
Mortgagor or such person or persons shall pay to the Mortgagee in
addition to the Mortgage debt and at the same time a further sum
equivalent to three months? interest on the Mortgage debt at
the rate of 1.25 percent per month with monthly rest and every
failure on the part of the Mortgagor or such person or persons to pay
off the Mortgage debt strictly in accordance with such notice as
aforesaid and on the day thereby appointed shall entitle the
Mortgagee to a fresh notice of the same sort or in default thereof to
three month?s further interest at the rate aforesaid.
PROVIDED
ALWAYS AND IT IS HEREBY AGREED that nothing hereinbefore contained
shall affect the right of the Mortgagee to call for payment at any
time after the due date of the money for the time being due and owing
to him on the security of these presents.
AND
the Mortgagor doth hereby covenant with the Mortgagee that the
Mortgagor now has good right and full power to grant the said
property hereby granted or expressed so to be and every part thereof
unto and to the use of the Mortgagee in manner aforesaid and that if
default shall be made in payment of the principal or interest thereof
in the manner provided above, the Mortgagee may at any time
thereafter enter into and upon the said property or any part thereof
in the name of the whole and shall thenceforth quietly possess and
enjoy the same and receive the rents and profits thereof without any
lawful interruption or disturbance whatsoever by the Mortgagor or any
other person or persons lawfully claiming under them, free from all
encumbrances whatsoever and further that they the Mortgagor and all
other persons having or lawfully or equitably claiming any estate or
interest in the said property or any part thereof shall and will from
time to time and at all times hereafter upon the request of the
Mortgagee and at the cost of the Mortgagor during the continuance of
this security and afterwards of the persons requiring the same to do
and execute or cause to be done and executed all such acts, deeds and
things, whatsoever for further and more perfectly assuring the said
property unto and to the use of the Mortgagee in manner aforesaid as
shall or may be reasonably required by the Mortgagee and also that
the Mortgagor shall from time to time and at all times during the
continuance of this security keep the said property hereby granted or
expressed so to be in a good and substantial state of repairs and
shall pay all the rates and taxes, assessment dues and duties payable
in respect of the same and in the event of default it shall be lawful
for the Mortgagee [without being bound to do so] to keep the said
property in such repairs and to pay such rates, taxes, assessments,
dues and duties as aforesaid and the Mortgagor shall and will from
time to time on demand pay to the Mortgagee all sums of money so paid
or expended together with interest thereon at the rate of 1.25
percent per month (to be compounded monthly) from the time the same
shall have been so paid or expended and until so repaid the same
shall be a charge upon the said property in addition to the principal
sum and interest thereof and also that the Mortgagor will so long as
any moneys shall remain due on the security of these presents keep
all the messuages and buildings hereby granted or expressed so to be,
insured with some reputed Fire Insurance Company in Mumbai against
loss or damage by fire in the sum of Rs. 30,00,000/- (Rupees Thirty
lacs) at the least and pay all premiums and sums of money necessary
for such purpose at least within thirty days from the date hereof and
will on demand deliver to the Mortgagee such insurance policy and the
receipt for every such payment duly endorsed and assigned in favour
of the Mortgagee and that the Mortgagor will not at any time
hereafter during the continuance of any such insurance as aforesaid
do any act or commit any default whereby the said insurance may be
rendered void or voidable or an increased premium become payable
therefore and shall and will in case at any time during the
continuance of this security the said insurance shall by any means
become void or voidable forthwith at his own costs effect a new
insurance in lieu of such void or voidable insurance in the name of
the Mortgagee and that if default shall be made in insuring or
keeping the said premises insured as aforesaid it shall be lawful for
the Mortgagee on giving 24 hours notice to insure and keep insured
the said property and that the Mortgagor will on demand repay to the
Mortgagee every sum of money expended for that purpose by him with
interest thereon at the rate aforesaid from the time of the same
respectively having been so expended and that until such repayment
the same shall be a charge upon the said property and it is hereby
agreed and declared that all sums of moneys received under or by
virtue of any such insurance as aforesaid shall at the option of the
Mortgagee either be forthwith applied in or towards substantially
rebuilding, reinstating and repairing the said property or in or
towards the payment of the principal money and interest for the time
being remaining due on the security of these presents provided always
and it is hereby agreed and declared that in the event of any damage
happening to the said property hereby granted by fire, tempest,
earthquake, lightning, rain or otherwise howsoever or if the
Mortgagor is wound up and/or ordered to be wound up or commits any
act of bankruptcy or becomes incapable of managing it?s affairs
at any time or times after the execution hereof so as to materially
impair the security hereby created then and in such case
notwithstanding anything herein contained to the contrary the whole
of the Mortgage debt shall at once at the option of the Mortgagee
become immediately payable as if the due date had then elapsed and in
such case all such rights and remedies shall be available to the
Mortgagee as would be available to him under the terms of these
presents or by law upon default being made in payment of the
principal money and interest hereby secured.
PROVIDED
ALWAYS AND IT IS RECORDED that the principal and interest shall be
paid every month regularly as provided above and if the same remains
unpaid for a period of three months then and in that case the whole
of mortgage debt shall become payable on demand as if the due date
had then elapsed and in such case all such rights and remedies
including the power of sale shall be available to the Mortgagee as
would be available to him under or by virtue of these presents or by
law upon default being made in payment of Mortgage debt hereby
secured.
And
it is hereby further recorded
that it shall be lawful for the Mortgagee, without any further
consent of the Mortgagor, to appoint, such person as he thinks fit to
be the Receiver, Agent and Attorney from time to time in the name of
the Mortgagor or otherwise to receive the rents and profits of the
said property from the present and future tenants and occupiers
thereof and the persons liable to pay the same respectively, and in
case of the non-payment thereof to use all or any lawful remedies for
recovering and obtaining payment of the same as fully and effectually
as the Mortgagor could do and the Mortgagor doth hereby direct the
present and future tenants and occupiers of the said property and the
persons liable to pay the same respectively, to pay the rents and
profits of the said property unto such Receiver and to any future
Receiver to be appointed as hereinafter mentioned and it is further
recorded that the receipt of the Receiver for the time being shall be
an effectual discharge to such tenants, occupiers and persons for
such rents and profits and the Receiver shall have power to make such
allowances to and arrangements with such tenants, occupiers and other
persons as he shall think fit and to give notice to quit and bring
and take actions and proceedings for ejectment and recovery of
possession of any of the said premises on the expiration or
determination or forfeiture of any tenancy or otherwise and to relet
the same or any part thereof from time to time to such person or
persons as he shall think fit at the best rents which may be
reasonably obtainable and it is hereby agreed that the Receiver shall
out of the rents and profits received by him in the first place pay
all ground rents, rates, taxes, charges, assessments and outgoings
(including cost of repair and insurance) for the time being payable
in respect of the said property and in the next place pay the expense
of collection and management and deduct and retain for his own use so
much not exceeding ten percent of the total amount received as in the
opinion of the Mortgagee the Receiver shall be reasonably entitled to
for his trouble and in the next place pay to the Mortgagee by equal
payments the interest from time to time accruing due on the security
of these presents and shall allow the surplus if any of the said
rents and profits to accumulate and pay the same to the Mortgagee in
reduction of the principal amount due to him Provided always that the
Receiver may be removed and a new Receiver may be appointed from time
to time by the Mortgagee and it is recorded that the Receiver shall
be deemed to be in all respects the agent of the Mortgagor and that
the Mortgagee shall not under any circumstances be answerable for any
loss or misapplication of the said rents and profits or any part
thereof by reason of any default, neglect or breach of trust of or by
the Receiver or for any other loss or damage occasioned by the acts
or defaults of the Receiver but such loss, misapplication and damage
and every Receiver?s salary shall be wholly borne and paid by
the Mortgagor Provided
also and it is hereby agreed
that the aforesaid power of appointing a Receiver conferred on the
Mortgagee shall not be exercised by him unless payment of interest
shall be in arrears for three months or unless some event has
happened whereby the Mortgagee shall be entitled to exercise his
power of sale or the Mortgagor having committed any breach and it is
recorded that once the Receiver is appointed by the Mortgagee no one
including tenant/occupants shall be entitled to question and/or
dispute the appointment and powers of the Receiver.
It
is hereby recorded, agreed and declared
that it shall be lawful for the Mortgagee at any time or times
hereafter without any further consent on the part of the Mortgagor to
sell the said property or any part or parts thereof by public auction
or private treaty in the manner and on the terms and conditions
deemed fit and proper by the Mortgagee with power to postpone such
sale from time to time and buy the same at any sale by public
auction, without being answerable for any loss or diminution in price
occasioned thereby and for the purposes aforesaid or any of them to
make agreements, execute assurances, give effectual receipts or
discharges for the purchase money, and do all other acts and things
for completing the sale Provided
always
and it is hereby recorded that such power of sale shall not be
exercised by the Mortgagee unless and until:?
(a) if
any payment of any money secured by this deed is not paid on the
dates on which they are payable, whether demanded or not and the same
or any part thereof remains unpaid even after notice in writing
(giving three calendar months time to rectify such breach) as
required by Section 69 sub-Section (2) of the Transfer of Property
Act is served upon the Mortgagor requiring payment of the said
amount.
(b) if
the Mortgagor commits any act of bankruptcy or otherwise becomes
incapable of managing it?s affairs or is wound up and/or
ordered to be wound up;
(c) if
the power of appointing a Receiver becomes exercisable; and
(d) if
the Mortgagor commits default in observing or fulfilling any of its
obligations herein and does not make good the default within clear 30
days from the day of service of notice by the Mortgagee specifying
the default.
And
it is hereby declared
that any such notice as aforesaid as well as any other notice
required to be served upon the Mortgagor shall be deemed to have been
duly served on the Mortgagor by delivering a copy of such notice to
the Mortgagor or sending the same through Post addressed to it?s
last known place or place of abode or by leaving or affixing the same
upon or to some part of the Mortgaged premises and shall be
sufficient and valid and it
is hereby further agreed and declared
that without prejudice to all rights conferred on the Mortgagee by
Section 69 of the Transfer of Property Act no purchaser upon any sale
to be made under the powers hereinbefore contained shall be bound or
concerned to see or inquire whether either of the case mentioned in
the proviso lastly hereinbefore contained has happened or whether any
such default has been made or whether any money remains owing on this
security or whether any such notice has been given or the steps
before exercising the power of sale are properly exercised and
notwithstanding any such irregularity, impropriety or want of
necessity such sale shall as far as regards the safety or protection
of the purchaser or purchasers be deemed to be within the aforesaid
power in that behalf and be valid and effectual accordingly and the
remedy of the Mortgagor in respect of any breach of the proviso
lastly herein before contained for any irregularity in any such sale
shall be in damages only and it is hereby agreed and declared that
upon any such sale as aforesaid the receipt of the Mortgagee for the
purchase money of the property sold shall be effectual discharge for
the money expressed to be received and that no purchaser shall be
concerned to see to the application of the purchase money or be
answerable for any loss, misapplication or non-application thereof
and it is hereby further agreed and declared that the Mortgagee shall
hold the moneys to arise from any such sale in the first place, there
from to reimburse himself or pay and discharge all the costs, charges
and expenses attending to or incurred in or about such sale or
otherwise in respect of the said property and in the next place to
apply such moneys in or towards satisfaction of all and singular the
moneys for the time being owing on the security of these presents and
to pay the surplus if any of the said moneys unto the Mortgagor and
it is declared that the Mortgagee shall not be answerable or
accountable for any involuntary losses which may happen in or about
the exercise or execution of the aforesaid powers or any of them and
it is hereby further agreed and declared that on the said property or
any portion thereof being at any time acquired by any authority or by
any other public body for a public purpose the Mortgagee shall be
entitled to receive the compensation to which the Mortgagor may be
entitled and to apply the same towards repayment of the moneys for
the time being due to him under these presents including interest in
lieu of notice and all proceedings for ascertainment and
apportionment of the compensation payable for the said property shall
be conducted by the Mortgagee through his Advocates and the Mortgagor
shall repay on demand to the Mortgagee all costs, charges and
expenses that may be incurred by the Mortgagee with interest thereon
at the rate aforesaid from the time the same having been incurred and
that until such repayment the same shall be a charge upon the said
property AND IT IS HEREBY FURTHER AGREED AND DECLARED that the
Mortgagor will pay all costs, charges and expenses in any manner
incurred or made by the Mortgagee of and incidental to these presents
or of and incidental to or in connection with this security including
the stamp duty and registration charges as well for the assertion or
defense of the right of the Mortgagee as for the protection and
security of the said property and for the demand realization and
recovery of the amount of principal and interest secured by these
presents or any part thereof or for the exercise of any of the powers
contained in these presents and the same shall be paid on demand by
the Mortgagor to the Mortgagee with interest thereon at the rate
aforesaid from the time of the same having been so incurred and that
until such repayment the same shall be a charge upon the said
property hereby granted.
Until
the repayment of the entire Mortgage debt in full, it
is agreed, recorded, confirmed and covenanted by the Mortgagor as
under:?
(i) They
shall keep the said property free from all encumbrances, liens and
reasonable doubts.
(ii) They
shall not without the written consent of the Mortgagee create any
lease and/or any kind of third party rights of whatsoever nature in
respect of the said property.
(iii) They
shall not transfer or create any new tenancies in respect of the
tenements in the said property.
THE
SCHEDULE ABOVE REFERRED TO:
(Description
of the said property)
IN
WITNESS WHEREOF the parties hereto have executed these presents on
the day and year find hereinabove written.
THE
COMMON SEAL OF the )
ABC
LTD., the MORTGAGOR above named )
is
hereunto affixed pursuant to the )
Resolution
of its Board of Directors )
passed
in that behalf, on the ______ )
day
of ___________ 200___ in the presence of )
(1)
_______________, Managing Director and )
(2)
__________________, Director and in )
the
presence of:? )
SIGNED,
SEALED AND DELIVERED by )
X
Y Z, the MORTGAGEE )
Above
named, in the presence of:? )
R
E C E I P T
RECEIVED
the day and year first above written of and from the withinnamed
Mortgagee the sum of Rs. 20,00,000/- (Rupees Twenty lacs only) being
the full consideration money as aforesaid.
Rs.
20,00,000/-
We
say Received
(THE
MORTGAGOR)