principal money has become due, the mortgagor has a right to seek
redemption of the mortgaged property on him paying or tendering the
mortgage money. If the mortgage money is paid/tendered as required
under section 60, the mortgagee is required (a) to deliver to the
mortgagor the mortgage deed and all documents relating to the
mortgaged property which are in the possession or power of the
mortgagee; (b) where the mortgagee is in possession of the mortgaged
property, to deliver possession thereof to the mortgagor; and (c) at the
cost of the mortgagor, either to re-transfer the mortgaged property to
him or to such third person as he may direct, or to execute and (where
the mortgage has been effected by a registered instrument) to have
registered, an acknowledgment in writing that any right in derogation
of his interest transferred to the mortgagee, has been extinguished.
The said section further provides that nothing therein shall entitle a
person interested in a share only of the mortgaged property to redeem
his own share only, on payment of a proportionate part of the amount
remaining due on the mortgage, except where a mortgagee, or if there
are more mortgagees than one, all such mortgagees, has or have
acquired, in whole or in part, the share of a mortgagor. This section
therefore clearly provides that a mortgaged property cannot be
redeemed on payment of a part of the mortgage money. If the
mortgaged property has to be redeemed in terms of section 60 of the
Transfer of Property Act, 1882, the entire mortgage money has to be
tendered in terms of section 60, before redemption can be ordered.
The only exception is when a mortgagee has acquired, in whole or in
part, the share of a mortgagor. We find that the DRT, Pune has
completely lost sight of this fundamental principle enshrined in
section 60 of the Transfer of Property Act, 1882. We therefore find
that the DRAT, Mumbai was fully justified in setting aside the order
passed by the DRT, Pune.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2714 OF 2015
Mr Dipak Digambar Naik v/s Bank of Maharashtra and another
CORAM: V.M. KANADE &
B.P. COLABAWALLA JJ.
Pronounced on : 10th August, 2015
