this Court was that the
impugned judgment is unsustainable because the prior mortgage with PNB
constituted a legal impediment for the court to issue ... encumbrance, the mortgage would attach
itself and the mortgagee creditor's options can never be limited or
diminished. The mortgagee's right
contention, however, is
that it is a prior mortgagee and has substantial interest in respect of the very same property and,
consequently, the plaintiffs cannot
supra), the facts involved the sale of property without
disclosing a prior mortgage, despite stating that the property was free
from all liabilities. This
should grant, would be
evident.
26. Learned counsel contended that a prior mortgage nowhere
constituted a bar to granting a decree for specific performance ... encumbrance, such a mortgage would attach
itself and the mortgagee creditor's options can never be limited or
diminished. The mortgagees right to foreclosure
that the respondent bank's contention of being a prior
mortgagee could not prevail. The bank resisted the proceeding under Section ... best the bank could claim amounts arising from the
mortgage by deposit of title deeds prior to the sale deed, i.e. only in respect
mortgage of
lands covered by the Act except those by simple mortgage. The bank's claim
was founded upon equitable mortgage or interest created ... grievance - before the DRAT - was lack of notice of the
alleged prior mortgage and, besides, its invalidity given the binding nature
of the provisions
said property is free from all encumbrances
such as prior sale, gift, mortgage, disputes, litigation,
WP(C) No. 10316/2009 Page 5
acquisition, requisition, attachment ... property is free from all kinds of
encumbrances, such as prior sale, gift, mortgage, disputes,
litigation, acquisition, requisition attachment in the decree of
any court
mortgage suit
had to be instituted to enforce a mortgage debt (by sale of the property) and
that in its absence the mortgage could ... mortgage
debt by sale must instead be by way of a separate suit.
23. If the mortgage does indeed exist, it will create a prior
minimum lease rent. Clause 5 of the agreement permitted
SevenHills to mortgage and/or create charge of the schedule
property. The conditions read as follows ... owner
whichever is earlier.
17. MORTGAGE OF PLOT AND BUILDINGS
a) The SHCL is hereby allowed to sublease;
mortgage and create a charge
that since LKB had security in the form of mortgage over 15
acres of land, prior to the Development Agreement, with which
