APAR Act 9Aअध्याय 2 · Scaling down of Debts and Future rate of Interest

धारा 9A · Special provision in respect of unsufructuary mortgages

(1)

This section applies to all mortgages executed at any time before the 30th September, 1947, and by virtue of which the mortgagee is in possession of the property mortgaged to him or any portion thereof.

(a)

where no rate of interest is stipulated for as due to the mortgagee, or

(b)

where a rate of interest is stipulated for as due to the mortgagee in respect of the principal amount secured by the mortgage or any portion thereof, in addition to the usufruct from the property, or in respect of any other sum payable to the mortgagee by the mortgagor in his capacity as such Explanation (1) A mortgagee shall be deemed to be in possession of the property mortgaged to him or any portion thereof, notwithstanding that he has leased it to the mortgagor or any other person.

(2)

The mortgagor shall be entitled to redeem the whole of the property mortgaged, notwithstanding that the time, if any fixed in the mortgage deed for redeeming the mortgage has not arrived.

(3)

Where the mortgagee has been in possession of the whole of the property mortgaged to him for an aggregate period of less than thirty years, the mortgagor shall not be entitled to redeem the mortgage, unless he pays to the mortgagee -

(i)

the difference between the principal amount secured by the mortgage and an amount bearing to the principal amount the same proportion as the period during which the mortgagee has been in possession bears to thirty years;

(ii)

where any interest on the principal amount secured by the mortgage or any portion thereof has been stipulated for, in addition to the usufruct from the property, the arrears of such interest as scaled down under section 8 or 9 read with section 12, or under section 13, as the case may be; and

(iii)

all other sums payable to the mortgagee by the mortgagor in his capacity as such, together with the interest, if any, due thereon

(4)

Where the mortgagee has been in possession of only a portion of the property mortgaged to him for an aggregate period of less than thirty years, the mortgagor shall not be entitled to redeem the mortgage, unless he pays to the mortgagee -

(i)

the difference between that portion of the principal amount secured by the mortgage which is attributable to the portion of the property in the possession of the mortgagee and an amount bearing to that portion of the principal amount, the same proportion as the period during which the mortgagee has been in possession bears to thirty years;

(ii)

Where any interest has been stipulated for in addition to the usufruct from the property, the arrears of interest on the portion of the principal amount referred to in clause(i) such arrears being scaled down under Sec 8 or 9 read with Sec 12 or under Sec 13, as the case may be;

(iii)

the balance of the debt as scaled down under Sec 8 or 9 read with Sec 12, or under Sec 13, as the case may be; and

(iv)

all other sums payable to the mortgagee by the mortgagor in his capacity as such, together with the interest, if any, due thereon

(5)

(a)

Where the mortgagee has been in possession of the whole of the property mortgaged to him for an aggregate period of thirty years or more, then, notwithstanding anything contained in sections 8,9,12 and 13, the mortgage debt shall be deemed to have been wholly discharged with effect from the expiry of the period of thirty years or where such period expired before the commencement of the Andhra Pradesh (Andhra Area) Agriculturists Relief (Amendment) Act, 1948, with effect from the commencement of that Act,

(i)if no interest has been stipulated for on the principal amount secured by the mortgage or any portion thereof, in addition to the usufruct from the property;

(ii)where such interest has been stipulated for, if no arrears of interest are due from the mortgagor; and

(iii)if no other sums or interest thereon are due to the mortgagee by the mortgagor in his capacity as such.

(b)

Where the mortgagee has been in possession of the whole of the property mortgaged to him for an aggregate period of thirty years or more, then, in cases not governed by clause (a), the mortgagor shall not be entitled to redeem the mortgage unless he pays to the mortgagee -

(i)the arrears of interest stipulated for in addition to the usufruct from the property, as scaled down under section 8 or 9 read with section 12, or under section 13, as the case may be; and

(ii)all other sums due to the mortgagee by the mortgagor in his capacity as such and referred to in sub clause (iii) of clause (a) together with any interest due thereon.

(6)

Where the mortgagee has been in possession of only a portion of the property mortgaged to him for an aggregate period of thirty years or more, the mortgagor shall not be entitled to redeem the mortgage unless he pays to the mortgagee -

(i)

where, in addition to the usufruct from the property, any interest has been stipulated for, the arrears of interest on that portion of the principal amount secured by the mortgage which is attributable to the portion of the property in the possession of the mortgagee, such arrears being scaled down under section 8 or 9 read with section 12, or under section 13, as the case may be;

(ii)

the balance of the debt not attributable to such portion of the property as scaled down under section 8 or 9 read with section 12, or under section 13, as the case may be;

(iii)

all other sums payable to the mortgagee by the mortgagor in his capacity as such, together with the interest, if any, due thereon

(7)

For the purposes of this section, the portion of the principal amount secured by the mortgage which is attributable to the portion of the property in the possession of the mortgagee shall be determined in the manner prescribed by rules made under this Act

(8)

The mortgagor shall not be entitled to redeem a mortgage under sub section (2) or obtain possession of the mortgaged property by virtue of sub section (5) (a), unless he pays to the mortgagee the cost of the improvements, if any, effected by him to the mortgaged property

(9)

(a)

(i)Except in cases falling under sub section (5) (a), where the mortgaged property or, as the case may be, the portion thereof in the possession of the mortgagee has been leased back to the mortgagor by the mortgagee, the rent due to the mortgagee under the lease (after deducting from such rent any revenue, tax or cess paid or payable by the mortgagee in respect of the property) shall be deemed to be the interest on the mortgage debt or the portion thereof attributable to the portion of the property aforesaid and the provisions of section 8 or 9 read with section 12, or of section 13, as the case may be, shall apply to the entire debt

(ii)Nothing contained in sub section (3) or sub section (4) shall apply to any debt falling under sub clause (i).

(b)

In cases falling under sub section (5) (a), where the property has been leased back to the mortgagor by the mortgagee, nothing contained in that sub section shall affect the right of the mortgagee to recover any rents due to him under the lease for any period before the date on which the mortgage debt is deemed to have been wholly discharged by virtue of that sub section, if such rents have not become barred by limitation under any law for time being in force.

(10)

Nothing contained in this section, except sub sections (1) and (2), shall apply to any mortgage -

(i)

[x x x]

(ii)

in respect of property situated in any area in the cases mentioned below: -

(a)

Where during the period after the 30th September, 1937 and before the 30th January 1948, the equity of redemption in the property subject to the mortgage has devolved either wholly or in part on a person, by or, through a transfer inter vivos either from the original mortgagor or from a person deriving title from or through such mortgagor otherwise than by a transfer inter vivos , then, to the whole or such part, as the case may be -

(b)

Where, during the period aforesaid, the mortgagee or any of his successors in interest has transferred either wholly or in part the mortgagee s rights in the property bona fide and for valuable consideration, then, to the whole or such part, as the case may be:

Provided that the transferee of a mortgage shall not be entitled to recover in respect of such mortgage, anything more than the value of the consideration for the transfer; but nothing herein contained shall, in cases where the property or portion thereof has been leased back to the mortgagor, affect the right of the transferee to recover the rents, if any, due under the lease, if such rents have not become barred by limitation under any law for the time being in force.

(c)

Where the mortgagee s interest in the property subject to the mortgage or any part of such interest belonged to or devolved on, two or more persons and during the period aforesaid, a partition has taken place among such persons, then, to the whole or such part of the interest, as the case may be.

(11)

Where the equity of redemption in the property subject to the mortgage or any part of such interest belonged to or devolved on, two or more persons and any one of them or any person claiming under any one of them has, during the period referred to in sub section (10), clause (ii) (a), redeemed the entire mortgage, nothing contained in this section shall affect the rights or the relief's to which the person redeeming the mortgage might be entitled to under any other law for the time being in force as against the other persons aforesaid.

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